03-25870. 2 GHz Suspension

AGENCY:

Federal Communications Commission.

ACTION:

Final rule; suspension order.

SUMMARY:

This document suspends for 60 days, until November 4, 2003, the expiration date for the initial two-year mandatory negotiation period for Phase 1 of the 2 GHz band relocation plan between Mobile-Satellite Service (MSS) and Broadcast Auxiliary Service (BAS). The mandatory negotiation period will continue to remain in effect for the duration of this suspension or until otherwise modified by Commission action. The Commission retains the option to shorten or lengthen this suspension as circumstances warrant.

DATES:

Effective September 6, 2003.

FOR FURTHER INFORMATION CONTACT:

Gary Thayer, Office of Engineering and Technology, [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Order, ET Docket No. 95-18, DA 03-2838, adopted September 4, 2003, and released September 5, 2003. The full text of this document is available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at [phone] or TTY [phone].

Summary of the Order

1. The Order effectively immediately suspends, for 60 days, until November 4, 2003, the expiration date for the initial two-year mandatory negotiation period for Phase 1 of the 2 GHz band relocation plan between Mobile-Satellite Service (MSS) and Broadcast Auxiliary Service (BAS). This mandatory negotiation period was originally adopted in the Second Report and Order and Second Memorandum Opinion and Order (Second Report and Order), 65 FR 48174, August 7, 2000, in this proceeding, and later extended until September 6, 2003, in a subsequent Order (Suspension Order), 67 FR 53755, August 19, 2002. The mandatory negotiation period will continue to remain in effect for the duration of this suspension or until otherwise modified by Commission action. We retain the option to shorten or lengthen this suspension as circumstances warrant.

2. This action only relates to 35 megahertz of spectrum, currently used by BAS licensees, in the 1990-2025 MHz band. In 1997, the Commission reallocated this spectrum, paired with 35 megahertz in the 2165-2200 MHz band used by Fixed Service (FS) licensees, for MSS, effective January 1, 2000. In the Second Report and Order, it adopted relocation procedures for incumbent licensees in these bands. The relocation plan was modeled after the Commission's earlier Emerging Technologies policies in ET Docket No. 92-9, and requires MSS entrants to provide comparable facilities to BAS and FS incumbents that are relocated prior to specified sunset dates. The BAS relocation plan calls for a two-phase relocation, each phase beginning with a two-year mandatory negotiation period. In the event that an agreement for relocation is not reached by the end of a particular negotiation period, the MSS licensee(s) have the option of relocating BAS incumbents involuntarily. The initial, two-year mandatory negotiation period for Phase 1 commenced upon Federal Register publication of the Second Report and Order on September 6, 2000, and was due to expire on September 6, 2002. The Suspension Order extended this date by one year, to September 6, 2003.

3. Recently, the Commission adopted decisions that will permit alternative uses and new allocations in portions of the 2 GHz band that had been allocated for MSS. In a Third Report and Order, Third Notice of Proposed Rulemaking, and Second Memorandum Opinion and Order, 68 FR 11987, March 13, 2003, in ET Docket No. 00-258, it reallocated a portion of this spectrum in order to provide for new Fixed and Mobile services, including Advanced Wireless Services (AWS). In a Report and Order and Notice of Proposed Rulemaking in IB Docket No. 01-185, it permitted MSS licensees to provide ancillary terrestrial component (ATC) operations in the 2 GHz MSS band. The Commission has not yet adopted any modifications to the existing BAS and FS relocation rules as may be necessary in light of these decisions.

4. In the Suspension Order, the Commission noted the outstanding issues in the MSS Flexibility Notice and AWS Notice proceedings relating to use of the 2 GHz MSS band and concluded that it did not appear that it would be able to act on the respective issues prior to the Phase 1 BAS mandatory negotiation deadline of September 6, 2002. It concluded that it was in the public interest to continue the negotiating period until we were able to address these relocation issues. It also found that it was prudent and in the public interest to suspend the expiration of the initial negotiation period for one year under those circumstances, rather than prejudice consideration of the relocation issues presented in the pending proceedings. The Commission further stated that it retained the option to shorten or lengthen this suspension as circumstances warranted.

5. In February of this year, the Commission decided to reallocate portions of the 2 GHz MSS band (in ET Docket No. 00-258) and modify the nature of permissible MSS use of the band (in IB Docket No. 01-185). However, it has not yet addressed the modifications to the BAS and FS relocation plan that may be necessary because of these decisions and several outstanding Petitions for Reconsideration and Clarification. Accordingly, the considerations that led the Commission to adopt the Suspension Order continue to apply with respect to the scheduled September 6, 2003, expiration date for the initial Phase 1 mandatory BAS negotiation period. Specifically, we find that it is in the public interest to continue the negotiating period until we address outstanding relocation issues in the band. Also, by suspending the expiration of the initial negotiation period, we will not prejudice consideration of the relocation issues still pending. For these reasons, we suspend, effective immediately upon release of this order, expiration of the initial Phase 1, two-year mandatory BAS negotiation period for 60 days, until November 4, 2003.

6. As in the Suspension Order, we retain the option to shorten or lengthen this suspension as circumstances warrant. We also emphasize that the action taken herein is interim in nature and does not prejudice further action in other proceedings. For the duration of this suspension, all other aspects of the initial mandatory BAS negotiation period will continue in force and, as a consequence, BAS incumbents will not be subject to involuntary relocation by MSS licensees. For the duration of the suspension, we likewise require MSS and BAS licensees to comply with all negotiation requirements and procedures adopted in the Second Report and Order that are applicable to the initial BAS mandatory negotiation period.

Ordering Clauses

7. Authority for issuance of this Order is contained in sections 4(i), 5(c), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 155(c), 303(f), and 303(r), and Section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d). This action is taken under delegated authority, pursuant to sections 0.31(m) and 0.241(a) of the Commission's Rules, 47 CFR 0.31(m) and 0.241(a).

8. Pursuant to sections 4(i), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), and 303(r), Section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d), and sections 0.31(m) and 0.241(a) of the Commission's Rules, 47 CFR 0.31(m) and 0.241(a), the expiration date of September 6, 2002, for the initial two-year mandatory BAS negotiation period for Phase 1 set forth in the Second Report and Order in ET Docket No. 95-18 is hereby suspended, effective immediately upon release of this order, for 60 days until November 4, 2003.

List of Subjects in 47 CFR Parts 74 and 78

• Communications equipment
• Radio

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 74 and 78 to read as follows:

1. The authority citation for part 74 continues to read as follows:

Authority: 47 U.S.C. 154, 303, 307, and 554.

2. Section 74.690 is amended by revising the note following paragraph (e) to read as follows:

§ 74.690

Transition of the 1990-2025 MHz band from the Broadcast Auxiliary Service to emerging technologies.

* * * * *

(e) * * *

Note to paragraph (e):

FCC suspends for 60 days, until November 4, 2003, the expiration date for the initial two-year mandatory negotiation period in paragraph (e)(1) and the beginning of the involuntary relocation period in paragraph (e)(4).

3. The authority citation for part 78 continues to read as follows:

Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085, 47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309.

4. Section 78.40 is amended by revising the note following paragraph (f) to read as follows:

§ 78.40

Transition of the 1990-2025 MHz band from the Cable Television Relay Service to emerging technologies.

* * * * *

(f) * * *

Note to paragraph (f):

FCC suspends for 60 days, until November 4, 2003, the expiration date for the initial two-year mandatory negotiation period in paragraph (e)(1) and the beginning of the involuntary relocation period in paragraph (f)(4).