[Federal Register Volume 60, Number 208 (Friday, October 27, 1995)]
[Notices]
[Pages 55090-55110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26490]
[[Page 55089]]
_______________________________________________________________________
Part II
Department of Agriculture
_______________________________________________________________________
Forest Service
_______________________________________________________________________
Fee Schedule for Communications Uses on National Forest System Lands;
Notice
Federal Register / Vol. 60, No. 208 / Friday, October 27, 1995 /
Notices
[[Page 55090]]
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AB51
Fee Schedule for Communications Uses on National Forest System
Lands
AGENCY: Forest Service, USDA.
ACTION: Notice; adoption of final policy.
-----------------------------------------------------------------------
SUMMARY: The Forest Service is adopting a final policy and a revised
fee schedule for determining annual rental fees for communications uses
authorized on National Forest System Lands in the Western States,
Forest Service Regions 1 through 6. The Forest Service and the
Department of Interior, Bureau of Land Management, have jointly
developed identical fee schedules; the agencies have the same
definitions for use categories and similar administrative procedures.
(The Bureau of Land Management is issuing its fee schedule and
procedures in a separate final rule.) These revisions are necessary to
establish annual agency rental fees that are consistent for the Western
States; based on sound business management practices; and reflective of
fair market value, as required by title V of the Federal Land Policy
and Management Act of 1976, the Independent Offices Appropriations Act
of 1952, and the Office of Management and Budget Circular A-25.
EFFECTIVE DATE: This policy is effective November 6, 1995 for new use
authorizations and on January 1, 1996, for existing use authorizations.
FOR FURTHER INFORMATION CONTACT: Questions about this policy should be
addressed to John Anderson, Lands Staff (2700), Forest Service, USDA,
P.O. Box 96090, Washington, DC 20090-6090, (202) 205-1256.
SUPPLEMENTARY INFORMATION:
Background
Use of National Forest System Lands for transmission of electronic
signals, commonly called communications uses, is authorized by title V
of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761-
1771). Authorizations currently in effect number approximately 6,300.
This use involves the construction of a building and tower with
antennae or the placement of one or more antennae atop a building owned
by another authorization holder. The Forest Service has sought for
several years to establish fair market value fees for communications
uses as required by statutory and regulatory authority.
From 1987 to 1992, through various notices in the Federal Register
the Forest Service began publishing final and revised fee schedules on
a regional basis for selected categories of communications uses on
sites serving rural areas. The notices explained the need for further
analysis to complete the fee schedules for the remaining use
categories. In the interim, on-site appraisals would determine
commercial mobile radio and cellular telephone fees for sites serving
urban areas (Los Angeles, Albuquerque, and Boise, for example) and for
television and FM radio broadcast.
To forestall the effect of significant fee increases on
authorization holders, especially in rural areas, Congress adopted
administrative provisions in the Appropriations Acts for Interior and
Related Agencies for fiscal years 1990 through 1994 preventing the
Forest Service from raising fees over the amount in effect on January
1, 1989. In the fiscal year 1992 appropriations, Congress extended the
prohibition to include those authorizations issued by the Department of
Interior, Bureau of Land Management (BLM). In addition, the conference
report for the Appropriations Act directed the Secretaries of
Agriculture and Interior to establish a broad-based Radio and
Television Broadcast Use Fee Advisory Committee (Advisory Committee).
The Advisory Committee's charge was to review the schedules, with
particular emphasis on their impact on rural communities in the Western
United States.
The Forest Service and BLM entered into a joint agency agreement in
April 1991 to develop parallel procedures and standards for
establishing fair market rental values for communications uses on lands
they administer. The objective of the effort was to develop joint
market-based fee schedules.
The Advisory Committee submitted its report to the Secretaries on
December 11, 1992. The report made several recommendations: (1) Use of
fee schedules instead of individual site appraisals to improve cost
efficiency and administration, (2) acceptance of industry-recognized
market ranking systems, (3) a phase-in period for rent increases
greater than $1,000, (4) collection of 25 percent of the gross sublease
income received from tenants by facility owners, (5) issuance of a
``footprint'' lease in which only facility owners would hold
authorizations, and (6) annual fee increases based on the Consumer
Price Index (Urban Consumer, U.S. City Average).
On July 13, 1993, the Forest Service published a Federal Register
notice (58 FR 37840) requesting public comments on a proposed fee
schedule for the four categories of commercial uses previously excluded
from the regional schedules. The uses included television broadcast, FM
radio broadcast, commercial mobile radio, and cellular telephone uses.
The adoption of a final revised fee schedule would complete the
regional schedules in place in Forest Service Regions 1 through 6 in
the Western United States. Additionally, the agency stated its
intention that its fee schedule be fully consistent with that of BLM
and acknowledged that BLM planned to issue a separate Federal Register
notice proposing the use of fee schedules for all communications uses
applicable to lands under its jurisdiction.
The Forest Service and BLM jointly reviewed and considered the
comments received by the Forest Service on its July 1993 proposed
policy (58 FR 37840, July 13, 1993), incorporating and adopting the
comments as appropriate in the development of the BLM proposed rule. On
July 12, 1994, BLM published a proposed rule in the Federal Register
(59 FR 35596), requesting comments on amendments to its right-of-way
regulations. The proposed rule contained procedures for setting fair
market rent for communications uses on public land and established
rental schedules and procedures for eleven categories of communications
service.
On July 12, 1994, the House of Representatives Committee on Natural
Resources, Subcommittee on National Parks, Forests and Public Lands,
and the Committee on Government Operations, Subcommittee on
Environment, Energy, and Natural Resources held a joint hearing on
communications site fees. The General Accounting Office released a
report (GAO-RCED-94-248) at this hearing that concluded that current
fees for communications sites on Federal lands were usually
significantly below fair market value. The report acknowledged that the
Forest Service fees are based on an outdated formula established forty
years ago and the BLM rental rates are based on out-of-date appraisals.
The report concluded that appropriations-related legislation impeded
agency efforts to implement new fees. The report warned that if the
limits continued, the Federal Government would not obtain fair market
value for communications sites for many years. Because of the joint
agency testimony and the General Accounting Office report, the
committees strongly encouraged the agencies to complete the fee
schedules as soon as possible.
The Forest Service and BLM developed the final fee schedules using
[[Page 55091]]
information gained from public responses to the proposed Forest Service
policy (58 FR 37840, July 13, 1993) and the proposed BLM rule (59 FR
35596, July 12, 1994). The agencies also used the Advisory Committee
report, the General Accounting Office report, discussions with hundreds
of industry representatives and private lessors, commercial
communications site managers, State and local government
representatives, and appraisers, and nearly 2,000 confirmed private
lease transactions. The final Forest Service policy is being issued as
amendments to Forest Service Handbook (FSH) 2709.11, Special Uses
Handbook, chapter 30, Fee Determinations, and chapter 40, Special Uses
Administration. The text of the policy is set out at the end of this
notice.
Analysis and Response to Public Comments
The Forest Service received 84 comments on the July 13, 1993,
notice of proposed policy (58 FR 37840). Analyses of public comments
were accomplished using standard Forest Service procedures designed to
ensure an objective and systematic analysis. The agency received
comments from 13 Western States; 28 percent of the responses came from
California. While the proposed fee schedule applies only to the Western
States, responses were received from parent companies of authorization
holders, national organizations, and other interested parties located
throughout the United States.
Respondents were grouped under the following categories:
------------------------------------------------------------------------
Respondent type Number Percentage
------------------------------------------------------------------------
Commercial Mobile Radio/or Building Owner......... 34 40
Television Broadcaster............................ 9 11
Organization...................................... 8 10
Other Communications User......................... 8 10
Cellular Telephone................................ 7 8
Other Federal, State, or County Agencies.......... 6 7
FM Radio Broadcaster.............................. 5 6
General Public.................................... 4 5
Translator or Repeater............................ 3 3
------------------------------------------------------------------------
All responses consisted of individual letters. No form letters or
petitions were received.
The BLM received a total of 61 comments on the proposed rule (59 FR
35596, July 12, 1994): 35 nonbroadcast users, 6 broadcast users, 6
industry groups, 4 private citizens, 2 state agencies, 1 county
association, and 1 Federal agency. In several cases, the same users,
industry groups, and state agencies had also commented on the Forest
Service proposed policy (58 FR 37840, July 13, 1993).
General Comments on Communications Site Fees and Agency Response
Based upon early comments to BLM's 1994 proposed rule (59 FR 35596,
July 12, 1994) both agencies recognized the need for additional
information to evaluate the responses appropriately. The BLM held
several meetings with respondents during the comment period to verify
information was recommendations submitted by respondents and to clarify
the intent of the proposed rule. Forest Service representatives
attended these meetings. Also, additional information and gathered from
other Federal agencies and industry contacts to determine comparable
and appropriate groupings for the fee schedule.
The agency did not incorporate changes in the final policy and fee
schedule when the comments would (1) require additional detailed
studies or development of specific criteria and instructions for each
category of use, (2) lead to subjective, potentially inconsistent
application of the fee schedule, or (3) require procedures that
unnecessarily encumber both the holder's business and the agency's
management practices.
Method for Determining Fees
Comment. Some respondents expressed general support for the effort
to develop a fee schedule. One respondent strongly favored the master
appraisal approach and the development of fee schedules. This
respondent also called for inclusion of an urban schedule for other use
categories, such as common carrier microwave relay, industrial
microwave relay, mobile radio, internal communications, natural
resource/ environmental monitoring, and passive reflector. One
respondent from the commercial use sector (cellular telephone) favored
the schedule and accompanying communications site procedures.
Thirty respondents disagreed with the method and criteria used to
develop the schedule. They suggested that the fees should be based on:
(1) A flat fee using the square footage of the building and the height
of the tower, (2) bare land values, (3) wider population increments,
(4) a percentage based on total households and market size, (5)
appraisals at high-value sites using local market data, (6) the
Advisory Committee schedule, (7) the next best use concept, and (8) a
more graduated scale that would charge site users in proportion to
their market size.
Others noted that the schedule was incomplete and needed additional
categories to establish fees for: (1) Buildings operated by facility
managers whose primary business is space rental, (2) cable and
subscription television companies serving more than 1,500 households,
(3) broadcast translators for more than 60,001 people, (4) AM radio
broadcasters, and (5) urban microwave and common carrier uses.
Response. To develop a policy and schedule that are easy to
understand and implement, the agency is adopting a final schedule that
uses one population ranking method for all uses to calculate fees. The
agency disagrees with respondents who said that there was no link
between population and rent charged for a communications site. To the
contrary, market information shows that land rents overall are
generally higher on sites serving large metropolitan areas than those
sites serving less populated areas. Therefore, the agency developed a
final schedule that more directly correlates to the population of the
market served and the authorized use of the facility. This type of
rating system reflects the actual market area served better than
population figures that do not correlate to market areas.
To provide consistent procedures and a fee schedule identical to
that of the BLM, the Forest Service expanded the fee schedule to
include all categories of communications uses on National Forest System
lands. The categories are: (1) Television broadcast, (2) AM/FM radio
broadcast, (3) cable television, (4) broadcast translators, low power
television and low power FM radio, (5) commercial mobile radio service
and facility manager, (6) cellular telephone, (7) private mobile radio
service, (8) microwave, and (9) other communications uses. Two use
categories, passive reflector and local exchange network, will remain
as regional schedules. The final Forest Service policy establishes
identical definitions as the BLM for use categories. The agency is
making these changes to the policy in Forest Service Handbook (FSH)
2709.11, Special Uses Handbook, chapter 40, Special Uses
Administration, section 48, Communications. The final fee policy and
schedule, including implementation, phase-in, and updating procedures,
are included in FSH 2709.11, chapter 30, Fee Determinations, section
36.2, Communications Site Fee Schedule. The text of the policy and fee
schedule in
[[Page 55092]]
FSH 2709.11 are set forth at the end of this notice.
Fee Values
Comment. Four respondents indicated the proposed fees were too low.
One respondent felt the fees averaged approximately 15-25 percent below
comparable private market values. In particular this respondent said
that television and radio were at least 15-20 percent below and mobile
and cellular were approximately 20-25 percent below private market
values. Another respondent characterized the use of public lands by
television and radio broadcast users at less than fair market value as
a subsidy, giving them an unfair competitive advantage.
Six respondents commented that the fees were higher than fair
market value and were artificially inflated. They objected to the
conclusions in the appraisals used to support the fees. Primary reasons
they noted were: (1) The Forest Service agreed that the Advisory
Committee approach of setting a fee schedule is appropriate, but then
changed the Area of Dominant Influence (ADI) groupings; (2) the impact
of the proposal on small business is significant; (3) the survey
erroneously calculated user site fees; and (4) the fees were based on
the broadcast station operator's ability to pay. One respondent
suggested additional population strata in the categories.
Response. The agency has revised the final policy and fee schedule
in response to public comments received on the Forest Service's
proposed policy (58 FR 37840, July 13, 1993) and public comments
received by BLM in response to its proposed rule (59 FR 35596, July 12,
1994). In addition, the agency has considered market information
provided by users, industry groups, and private and Government
appraisers, and other management considerations associated with
developing a cost-effective method for setting and collecting fair
market value for communications use of National Forest System land.
The final policy incorporates many Advisory Committee
recommendations, such as use of a schedule instead of individual
appraisals, issuance of one authorization (lease) to facility owners, a
phase-in provision, and use of an index to update annual fees.
The agency believes the final schedule reflects a reasonable fee
based on fair market value for the type of use, location, and rights
authorized. By adopting identical schedules and similar authorization
documents and application procedures to those of BLM, the Forest
Service can give holders consistent and improved services. The schedule
will replace the outdated, inconsistent approaches to assessing and
collecting rental fees in different Forest Service regions and between
the Forest Service BLM.
Additional Criteria for Establishing Fees
Comment. Several respondents said that additional criteria should
be considered when applying the fees, such as rate adjustments for
roadless and powerless sites or similar value-added services provided
by private landowners/lessors. Respondents said that waivers or
exemptions for those users who provide public service should be
considered. Respondents also said that administrative delays and red
tape make Federal sites less attractive than private sites. Respondents
were also concerned with the requirement of free use for other Federal
agencies and provisions considering the number of radio units in a
facility.
Some respondents had difficulty understanding the different fee
schedules (Regional versus National ) and were unsure of how to
classify a use. They also believed the schedule did not acknowledge the
significant financial discrepancy between two operators on the same
site.
Reponse. The agency recognizes that the July 1993 proposed policy
(58 FR 38740, July 13, 1993) did not offer a detailed explanation of
the proposed policy or how the fee schedule was derived. Respondents
could not clearly determine how their specific uses applied to the
schedule. In addition, the fee schedule in the Forest Service's
proposed policy (58 FR 37840, July 13, 1993) applied to only four uses:
television broadcast, FM radio broadcast, commercial mobile radio, and
cellular telephone. The methods of determining the fee strata varied
from the application of Arbitron Company market rankings for television
and radio broadcast, to the application of population and metropolitan
statistical figures for commercial mobile radio and cellular telephone
uses.
In response to the public comments, the final policy and fee
schedule include the following changes:
1. The fee schedule is based on a ranking of Ranally Metro Areas
(RMAs) as identified in the ``Rand McNally Commercial Atlas and
Marketing Guide, 1995.'' An RMA represents Rand McNally's definition of
metropolitan areas in the United States. There are 452 RMAs. Four
hundred and seventeen have a population of 50,000 or more. Thirty-five
listed RMAs have a population near 50,000 and are included as RMAs
because they include a central city of an official Metropolitan
Statistical Area.
2. The fee is based on the location of the communications site and
whether or not it serves an RMA, serves a community(ies) not listed as
an RMA, or is in a remote, sparsely populated area that does not serve
any individual community.
3. If the communications site serves an RMA, the fee is determined
by the category of use and the population range on the schedule that
includes the RMA population.
4. If the communications site serves a community not listed as an
RMA, the fee is determined by the category of use and the population
range on the schedule that corresponds with the most recent population
for the largest community served by the site, as indicated in the
current ``Rand McNally Road Atlas.''
5. If the communications site does not serve a community the fee is
based on the minimum scheduled fee for the type of facility and use.
Comments on Specific Communication Uses and Agency Response
Comments received on the Forest Service's and BLM's proposed
schedules (published in 58 FR 37840, July 13, 1993, and 59 FR 35596,
July 12, 1994, respectively) and responses to those comments are
incorporated in each of the following categories.
Television Broadcast Fees. The Forest Service proposed fee schedule
used the Arbitron Company's Area of Dominant Influence (ADI) market
rankings to determine the fee strata. Five separate strata were
proposed, presenting fees from $45,000 for the highest market areas
(750,000 television households and more) to $3,000 for the market area
containing 49,999 households and less and non-ADI areas.
Comment. Seven television broadcasters addressed their comments
specifically to this category. In all cases, the comments showed
disagreement with the proposed fees. Respondents expressed their
concern that television revenues in small rural markets have been
dropping and categories were not consistent with the actual market
size. They stated that the proposed fees were not within the range
charged by private landowners in the Western States. Respondents
suggested that the fees should be based on the value per household or
on the actual number of television households reached from a site
listed in the ``Broadcast Factbook.'' One respondent suggested a lower
category (below 49,999) for rural broadcasters.
[[Page 55093]]
The comments indicated a need to reconsider the use of Arbitron ADI
rankings as a basis for determining fees, to expand the population
strata to provide smaller intervals, and to establish additional strata
below 49,999. In addition, in December 1993 (after publication of the
proposed schedule) the Arbitron Company ceased publication of the ADI
market rankings.
In response to the comments received by the Forest Service and the
discontinuation of the ADI rankings, the BLM based its proposed
schedule (59 FR 35596, July 12, 1994) for television broadcast on the
latest U.S. census figures for populations of the principal community
(city, cities, metropolitan area, county, or counties) served by the
transmitter. The proposed BLM schedule expanded the fee strata to nine
divisions that range from populations of 2,000,000 and above to below
14,999.
Most comments on the BLM proposal favored the expanded fee strata.
However, several respondents opposed using the population of the
principal communities served and asked that it be reconsidered.
Generally, respondents said the concept was too vague and difficult to
determine the population served using census information. In addition,
they said differences in calculating total population of the principal
communities served would create inequities. Several respondents
suggested the schedule should be based on market ranking methods used
by industry, such as the Nielsen Dominant Market Area ranking system.
Reponse. The agency found there are some advantages to basing the
schedule on industry-recognized market ranking surveys, since (1) they
are based on the relative size of markets in which stations compete,
and broadcasters generally accept them; (2) the surveys are updated
each year, allowing for rent adjustments that reflect changes in
private market conditions; and (3) rents could be based on the market
actually served instead of the location of the transmitter or city of
license.
However, there are also disadvantages to using the surveys. The
market does not measure the households or audience reached by the
broadcast transmitter located on National Forest System lands alone.
Instead, the market includes households reached using a combination of
microwave and broadcast translators that serve other smaller markets.
This feature inadvertently inflates rental payments for those stations
that have extensive translator networks serving communities outside the
area normally served by the transmitter. The surveys do not include
affiliate stations serving smaller communities within the market areas.
Affiliate stations included in a market area would be assessed the same
fee though they serve a smaller population of the market area.
From the additional information and analysis of alternatives, the
agency found that basing fees on the population of the principal
communities served by the broadcast transmitter would be difficult to
implement. Additionally, the disadvantages associated with use of
Nielsen market rankings would unnecessarily complicate the fee
schedule. Therefore, based on available market data, recent appraisals,
and information received from respondents, the final fee schedule
establishes nine separate fee strata based on the Rand McNally RMA
population rankings. Because of the redistribution of strata, the final
fees range from $45,000 (RMA of 5,000,000 and above) to $1,200 (RMA of
less than 25,000). This action reduces fees for some television
broadcast uses as shown in the proposed Forest Service fee schedule.
FM Radio Broadcast Fees. The proposed Forest Service schedule used
population data from the Arbitron Company's Metro Survey Area (MSA) to
determine the fee strata. The proposed schedule displayed five
divisions in the fee strata from 1,000,000 persons and more to 74,999
and less and non-MSA areas.
Comment. Four respondents in the FM radio group and one agency
commented on the proposed fees. Several of these respondents stated the
increased fees would have a significant economic impact on many small
entities and make it impossible for small businesses to say
economically sound. Specific and recurring comments were: (1) The fees
were prohibitive for stations with potential audiences of 25,000 or
less, (2) there should be a lower minimum fee per FM broadcast site,
(3) greater weight should have been given to the market size served by
respective radio stations, and (4) the respective value of lands used
for transmitter location would carry a higher value in the more densely
populated areas than the small areas. One respondent asked that the
agency calculate rentals to broadcasters with reference to comparable
uses and consider the public service rendered by broadcasters, along
with the enhancement in value of Forest Service properties. One
respondent asked if a cause and effect study had been completed.
Another respondent asked that the schedule include AM radio broadcast.
The responses indicated a need to develop additional population strata
and expansion of the market ranking system for radio broadcast to
determine fee strata.
The BLM proposed the same method as television broadcast (using
U.S. census population figures for the principal community or
communities served) and expansion of the fee strata into the same nine
divisions for FM radio broadcast as proposed for television broadcast.
Respondents to the BLM proposal objected to the use of the
population of a community served to determined fee strata. These
respondents pointed out that radio market rankings are not nationwide
and there are significant gaps in coverage. Therefore, other methods
should be developed to establish rent in those areas not covered by the
market ranking service. Several respondents to the BLM proposal also
suggested the schedule include AM radio broadcast.
Response. The Forest Service has recalculated the final nine FM
radio broadcast strata to match the Rand McNally RMAs. The fees range
from $34,000 (5,000,000 and above RMA) to $900 (less than 25,000 RMA).
The agency has modified the schedule to include AM radio broadcast uses
at 70 percent of the FM schedule. Co-located AM and FM stations pay the
full FM radio broadcast fee. The final fee schedule reduces the impact
of urban area rates on the rural radio broadcaster.
Commercial Mobile Radio Fees. The Forest Service fees proposed for
this category were based on the number of persons within the area
served, as determined by the latest U.S. census population estimates.
The agency proposed five fee strata divisions ranging from 500,000
persons to 59,999 and fewer persons.
Comment. This category received more comments than any other.
Thirty-six respondents commented. Nearly all (31) identified themselves
as commercial mobile radio users. The overall intensity of the comments
reflects the most concern, disagreement, and confusion.
Major issues involved (1) the validity, quantity, and quality of
the private lease transactions used in the contract appraisal and the
market studies, (2) the credibility of the market data, and (3) fees in
rural areas which are higher than the private market. Many respondents
argued that the appraisals and fee schedule did not represent fair
market value and were not adequately justified with relevant data.
Several called for lower population strata and gave examples of what
the population/fees should be. Others respondents asked for more
studies in rural areas and commented that higher fees were not in
[[Page 55094]]
the best interest of the public or local economies. They said that fee
increases would harm small businesses because they would have to pass
along the fee increases to their customers.
A few respondents simply stated their fees should be lower. Others
said the fees were not what industry had agreed to. One respondent
stated that recent legislation reclassified certain private carrier
radio operators and required regulation by the Federal Communications
Commission. One respondent asked that the respondent's fee be
considered in a special category, or reduced, because of the
respondent's public service.
Many respondents stated that the schedule needed further
clarification and was confusing in certain areas. Many building tenants
were uncertain how the agency would apply the fee schedule, believing
they would be subject to the proposed fees as tenants. Facility owners
who do not own or operate equipment and lease building and antenna
space to other commercial radio service providers expressed confusion
about how or if the fee schedule would apply to them in existing
situation, such as leases, and multi-user permits.
The Forest Service recognizes that the lack of clear explanation on
application of the schedule for this use category led to
misinterpretation and confusion.
The BLM proposal included commercial mobile radio service (CMRS) in
a nonbroadcast rental schedule and proposed several changes. These
changes include: (1) Expanding the original five population divisions
to nine to reflect market areas ranging from zero to more than
2,000,000, (2) basing fees on the population of the largest county
predominantly served by the transmitter, (3) proposing a separate
category for facility managers (building owners), and (4) adjusting
fees in most strata to reflect the findings of additional analysis.
While respondents to the BLM proposal generally favored the
expanded fee strata, most respondents objected to using county
population as a basis for setting fees. Respondents to BLM's proposal
strongly opposed the fees in each strata, stating they were unfair and
too high, and would drive many small businesses out of the market.
Several respondents provided additional information showing the
proposed schedule fees were above the private market rates.
Several respondents to the BLM proposal questioned the similarity
of the CMRS category and facility manager category. They suggested that
BLM eliminate the facility manager category and incorporate it into the
CMRS category. Other respondents said that CMRS is dependent on
microwave communication equipment and pointed out that the difference
in land rent between the two uses was less than 4 percent. In response
to BLM's proposal, they asked that microwave communication equipment
used to support a CMRS operation be charged one fee at the CMRS rate.
Response. In consideration of public comments to the agency's and
BLM's proposed fee schedule, available market data, and additional
industry information focusing primarily on rural areas, the final
Forest Service policy and fee schedule for the CMRS category include
the following changes:
1. The final fee schedule based on the standard RMAs establishes
nine fee strata. Fees range from $12,000 in the highest RMA to $600 in
the lowest RMA, reducing final fees in six of the nine strata.
2. The agency has adjusted the final fees to more closely coincide
with fees for cellular telephone uses. The market analysis shows
cellular telephone and CMRS providers often compete for sites in larger
markets at similar private market rates. Comparable market information
in less populated areas shows CMRS providers pay less than cellular
telephone.
3. The definition for CMRS has been broadened to include facility
managers and ancillary microwave link equipment.
Cellular Telephone Fees. The proposed Forest Service schedule
defined three fee strata for cellular telephone based on populations
within a Standard Metropolitan Statistical Area (SMSA). Fees within the
strata ranged from $7,500 to $2,500.
Comment. Overall, respondents were supportive of the cellular fees.
However, they suggested several modifications. They suggested that the
agency abandon the term ``SMSA'' and determine the area a site covers
based on contour maps filed with the Federal Communications Commission
(FCC).
Two respondents to the BLM proposal suggested that they include
specialized mobile radio, a similar wireless system, in the cellular
category. They reasoned that Congress in recent legislation (Omnibus
Budget Reconciliation Act of 1993) directed Federal agencies to
regulate similar wireless telecommunications services consistently.
Other respondents were concerned about two emerging technologies:
personal communication service (PCS) and microcells. PCS is smaller to
cellular telephone service. The major difference between PCS and
cellular telephone is that PCS operates at a low power and has smaller
area coverage. However, the PCS network is more concentrated and
requires more sites than a cellular service. The respondents warned
that it would be inappropriate to require PCS users to pay the same
fees as a cellular telephone users. While PCS service is not yet
available, a similar service using mocrocells is provided now in rural,
sparsely populated areas as an addition to wireline and cellular
telephone service. The respondents suggested a separate fee of $2,500
per year.
Response. Because of the comments, other methods to determine the
fee strata were explored and analyzed. The BLM proposal included
cellular telephone in a nonbroadcast rental schedule and proposed
expanding population divisions from three to nine. The BLM proposed
basing fees on the population of the largest county predominantly
served by the transmitter. The expanded strata, based on county
populations, resulted in proposed fees ranging from $10,000 to $2,500.
Contrary to respondents' comments, additional analysis shows that
in large metro markets, cellular telephone companies and commercial
mobile radio service providers often pay similar rents in the private
market. However, in small- to medium-size markets, commercial mobile
service providers pay less than cellular telephone users. Therefore,
the final Forest Service fee schedule reflects the differences in fees
and maintains separate schedules for cellular telephone and commercial
mobile radio service.
After considering the suggestions and gathering additional
information from industry and the Federal Communications Commission
(FCC), the Forest Service has deleted PCS from the definition for the
cellular telephone category. Once site requirements are determined for
PCS, the agency will consider amending the fee schedules. However, the
agency has broadened the definition of cellular telephone to include
other related technologies in the event PCS facilities are similar. It
is the intent of the agency to apply the fee schedule to similar,
emerging technologies when practical. Additionally, microcell service
will not be included in the cellular telephone category at this time.
In consideration of the public comments and available market data,
the final policy and fee schedule for the cellular category include the
following changes:
[[Page 55095]]
1. The final fee schedule based on the standard RMAs establishes
nine fee strata. Fees range from $12,000 in the highest RMA to $2,500
in the lowest RMA.
2. The agency has adjusted the final fees in the top population
strata to coincide with fees paid by CMRS users. The market analysis
shows cellular telephone providers and CMRS providers often compete for
sites in larger markets at similar private market rates, while
comparable market information in less populated areas shows CMRS
providers pay less than cellular telephone providers.
3. The agency has deleted PCS from the definition for the category
of cellular telephone.
4. The definition for cellular telephone has been broadened to
include other related technologies.
Proposed Fee Indexing
Comment. Fourteen respondents commented on the proposal to use the
U.S. Department of Labor, Bureau of Labor Statistics' Consumer Price
Index for All Urban Consumers (CPI-U) as an annual index to ensure fees
are kept current with fair market values. Calculating the amount of the
annual adjustment involves increasing the previous year's fee by the
change in the annual CPI-U on a July-to-July basis.
Some respondents acknowledged that a CPI-U clause or other method
for annual adjustment that properly reflects changes in economic
conditions is appropriate. These respondents stated that annual
indexing is typical and recognized in private industry.
Most respondents providing commercial mobile radio service objected
to the use of indexing without a cap (or other similar method) to keep
fees from exceeding fair market value. Two respondents disagreed with
the use of indexing in any form. Others maintained that the practice is
not common in the private market, especially for commercial mobile
radio leases, and said indexing does not fairly or accurately take into
account the ability of various site owners to negotiate rents at other
sites that do not automatically include such increases. Respondents
pointed out that 95 percent of the communications leases of three large
companies in California either have no cost-of-living clause or have a
cap.
One respondent stated that annual indexing tied to a cost-of-living
index will not ensure that the rent will stay current with fair market
values. This respondent suggested that the only way to ensure fair
market rent is for the agency annually to assess the fees to see if
they are comparable to the rents paid for similar uses on private land.
In response to the comments and additional analysis, the BLM
proposal provided for a 5 percent per year limit to the annual index
change. Many respondents to the BLM proposal generally supported use of
the CPI-U to index the fees. Several of these respondents, however,
disagreed with the 5 percent year limitation, suggesting the increases
should be less than 1 percent, but no more than 3 percent of the
preceding year. One respondent said the limitation was too generous and
should be limited to a specific period, and then full CPI-U adjustment
should be applied to the fees.
Response. After further study, the agency found that recent
transactions show increases in annual rent are linked to changes in the
CPI-U instead of increases in land value. Moreover, the agency agrees
with respondents that the increases, in time, would be higher than
normal increases in land rents in the private market.
The agency believes that one inherent problem with a fee schedule
is that over the long term it may not adequately reflect fair market
rent. Individual market rents in specific areas may be more or less
than rents set by using the schedule. The agency believes limiting the
CPI-U increases to no more than 5 percent per year will minimize any
potential inflation of fees. The agency has revised the final fee
policy to include a 5 percent per year limitation on the CPI-U
increases. The CPI-U increase, not exceeding 5 percent for the year,
will be applied to annual fees beginning in 1997.
Use of Leases and Applicable Fees
The Forest Service proposed policy included the issuance of a
``footprint lease'' (lease) to facility owners (holders) authorizing
the subleasing of space in the facility to other communications users
(tenants). If such a lease provision in implemented, the agency would
no longer require separate authorizations for tenants in a facility. In
addition to the annual rental fee indicated in the proposed schedule, a
percentage of the gross rental receipts paid to the holders by tenants
in facilities would be assessed for certain use categories. The agency
would require holders to submit to the agency a certified list of
tenants, types of uses, and gross rental revenues received from
tenants.
Comment. Generally, respondents did not object to the use of a
lease as a means to authorize all users of a facility under one
document. However, there was strong opposition to the gross rental
receipts concept and, in particular, the 25 percent figure.
Respondents commented that the use of a lease treats similar
businesses differently, giving an unfair competitive advantage when one
is a holder versus a user as a tenant. Respondents said building owners
would raise tenant's rents 30 to 40 percent to compensate for fee
increases to the agency. They also said that the opportunity for
holders to abuse the fee system could result in reduced revenues to the
agency. One respondent was concerned that implementation of the lease
could have adverse consequences for public radio broadcasters because
building owners may not be aware that public broadcasters are entitled
to an exemption from Forest Service fees. The respondent asked that the
agency clarify the exemption and waiver policy. One respondent asked
the agency to establish a minimum level for facilities or number of
transmitters before imposing the highest rental rate. The respondent
also suggested that the lease should include the total number of
facilities an operator has at a site, even if it is more than one
building. Another respondent suggested that a contract be developed on
a case-by-case basis to compensate user groups that are the primary
source of administration and technical support and suggested that the
group receive compensation or reduced fees.
Twenty-one respondents disagreed with the proposal to use a
percentage of gross rental receipts as a part of the holders rental
fee. Specific and recurring reasons objecting to the concept included:
(1) Collection of a percentage of gross receipts, or revenue sharing in
addition to the annual rental fee, is inconsistent with private leases
and does not represent fair market value; (2) administering a system
that utilizes a percentage of rent as part of the fee system is
cumbersome and inefficient, and creates unnecessary and unproductive
expense for both the Government and users; and (3) the proposal would
involve unnecessary Government intrusion into the holder's business
affairs.
In contrast, one respondent stated the percentage of revenue
sharing was too low, saying that 30-35 percent was probably more
appropriate.
Several respondents commented favorably on the proposed lease
concept. Specifically, these respondents stated it would encourage use
of existing facilities; minimize the clutter of separate facilities;
reduce the financial burden on tenants; and improve the agency's
management
[[Page 55096]]
practices while ensuring high-quality site standards.
Many respondents asked for additional explanation of how and when
the agency would issue leases and what use categories would pay the
percentage of gross rental receipts. Some respondents understood it to
apply specifically to broadcasters. Others understood it applied only
in the largest markets, while some understood it applied to all
markets.
The agency recognizes that the lease and percentage of gross rental
receipts concept did not include enough specific information to allow
respondents to clearly determine the intent of the proposed policy and
implementing procedures.
In response to this issue, BLM incorporated some of the
respondents' suggestions in its proposed rule. For example, additional
information was added explaining how the lease would affect all users
in a facility and that the percentage of gross rental receipts applies
to all categories of use in all population strata. The BLM proposed
rule would also reduce the percentage to 15 percent for five years and
then would raise the percentage to 25 percent thereafter.
Most of the respondents commenting on the BLM proposal were CMRS
users, who indicated a strong opposition to the proposed percentage of
gross rental receipts. Respondents stated that it was unfair, not
supported by market data, and exorbitant in view of the proposed base
rents, and that it would be difficult and costly to implement. Most
respondents pointed out that, with few exceptions, a landowner in the
private market does not receive an additional amount for tenants in
facilities. Several respondents submitted private market lease
information to substantiate their views. Several likened the proposal
to a tax and were dismayed at the prospect of the Government being a
partner in their business.
Two respondents to the BLM proposal agreed with the concept and
suggested that the percentage should not be reduced for the first five
years, but applied immediately.
Another respondent to the BLM proposal observed that setting the
rental payment on the authorized use, without adjusting for other users
in the facility, would encourage lower rent users to obtain an
authorization and then to rent to higher rent users, reducing the rent
paid by the holder. The respondent suggested the rental payment should
be based on the actual users in the facility.
Response. The Forest Service reviewed additional market information
and found that it is not a widespread practice for landowners to charge
a percentage of gross rent from tenants. This is especially true in
rural areas. While there is some evidence that it does occur in newer
leases for multiple use sites serving large population areas, it is not
yet a common practice in the private market in all areas. The final fee
schedule does not include a percentage of gross rental receipts.
However, the agency believes that multiple user facilities are more
valuable than single user facilities, and the additional rights and
privileges granted to tenants should be considered in the determination
of fees for the use of public land. To ignore the increased demand for
communications use would not reflect fair market value.
The agency considered and evaluated alternatives for assessing fees
for tenant occupancy as suggested by respondents. Based on the comments
and additional analysis, the agency concluded the fee should be based
on the actual uses in the facility and reflect the revenue building
owners collect from tenants.
Therefore, in response to the public comments, analysis of the
alternatives, and additional information gathered in preparing this
final notice, the Forest Service final fee policy includes the
following changes:
1. One authorization granting the right to construct, operate, and
sublease to tenants will be issued to the owner of each facility. The
Forest Service and BLM will adopt a common format for communications
use authorizations. The new authorization will authorize tenant
occupancy, if desired by the holder, without prior written consent of
the Forest Service or BLM.
a. In a facility with tenants, the holder's base fee is determined
by the use that generates the highest fee on the schedule (highest
valued use) of any of the uses in the facility, excluding those uses
that would qualify for a fee exemption and/or waiver. If the schedule
fee for another use in the facility is higher than the holder's, the
holder's use is subordinated for purposes of calculating total fees for
the facility. By October 15 each year, the holder will be required to
provide the authorized officer with a certified statement listing the
name and type of use for each tenant in the holder's facility on
September 30 of that year.
b. Uses defined as ``customer'' (including private (other) and
internal (PMRS) categories), renting space in a communication facility,
and uses that would qualify for a fee exemption and/or waiver are not
used to calculate total fees for the facility.
c. An additional fee for tenant occupancy applies to all other use
categories in every population strata not identified in the preceding
paragraph b. The additional fee is calculated on 25 percent of the
scheduled fee.
d. The total fee for the facility is the base fee, plus the
additional fee (the additional fee is based on 25 percent of the
schedule fee for the holder's use and other tenant uses in the
facility). (These requirements are in FSH 2709.11, sec. 36.21, included
at the end of this notice.)
2. The fee for a facility with no tenants is the schedule fee for
the holder's category of use.
3. A tenant in a facility may hold a separate authorization,
without subtenancy rights, at the full schedule fee based on the
tenant's category of use. A tenant is defined in the policy (sec. 48.1,
para. 5) as a communications user who rents space in a communications
facility and operates communication equipment for the purpose of re-
selling communications services to others for profit.
Proposed Phase-In of Fee Schedule
The agency proposed to phase in fee increases to minimize the
possible significant economic burden on users. As stated in the
proposal, fee increases of $1,000 or more would be phased in over a 5-
year period at $1,000 per year or 20 percent of the total increase per
year, whichever is greater.
Comment. Two respondents expressed support for a phase-in
provision. One suggested including the 25 percent of gross rental
receipts received from tenants in the phase-in.
Several respondents objected to the 5-year phase-in provision.
Specifically, these respondents stated that the magnitude of the fee
increases was so great that the 5-year period was not long enough. They
suggested that the agency extend the phase-in period to at least 10
years to allow current users the option of relocating their equipment
or renegotiating tenant leases. One respondent suggested using a third
party arbitrator to determine if the new fair market rents cause
economic hardship to existing permittees. Another respondent proposed a
3-year phase-in period, but limiting increases to no more than 5
percent for certain FM radio broadcast categories.
Several respondents to the BLM proposal agreed that a phase-in
provision for base fees was reasonable. In contrast, one respondent
felt the provision was too generous, favored existing users over new
users, and continued the subsidy of communications site fees.
Other respondents asked for additional relief from the percentage
of
[[Page 55097]]
gross rental receipts, and several commented that the process was
confusing and too complex.
Based on the respondents' comments and suggestions to the BLM
proposed rule, BLM proposed the following revisions to simplify the
process: (1) Increases in the base fee in excess of $1,000 or 20
percent of the current fee, whichever is greater; would be phased in;
(2) increases after the first year would be based on an equal annual
installment, plus the inflation-adjusted increase (CPI-U), rather than
limiting the phase-in to $1,000 per year or 20 percent of the total
increase per year, whichever is greater, (3) the additional fee for the
percentage of gross rental receipts would also qualify for a phase-in
to reduce the potential impact of large increases in rent.
Response. The Forest Service recognizes that its proposed phase-in
provision was unnecessarily complex so that respondents could not
easily determine how it would be applied.
After considering the comments, the agency believes the phase-in of
initial fee increases is a necessary and reasonable component of the
final fee policy. While phase-ins will result in reduced receipts to
the Treasury in the first year of implementation, the provision will
substantially reduce the initial economic impact of fee increases on
holders. The phase-in will provide time for facility owners and tenants
to decide if they want to consolidate uses and adjust financial
business plans.
Therefore, the final fee policy retains the 5-year phase-in period
for fee increases. However, in response to comments to simplify the
phase-in procedure, the agency has included the following revisions in
the final policy:
1. Any fee increases of more than $1,000 will be phased in over a
5-year period, eliminating the 20 percent or more calculation. Stated
another way, during the first year of implementation, fees will not
increase more than $1,000 over the current year fees.
As an example:
A current fee is $700
A new fee based on the schedule is $2,700
Total fee increase = $2,000 (greater than the $1,000 minimum)
First year's fee = $1,700 ($700+$1,000)
The remaining increase, $1,000, would be added in equal annual
installments ($250) for years two through five, plus the CPI-U
adjustment.
Assuming a 2 percent increase in the CPI-U during the phase-in
period, the fee (rounded to the nearest dollar) would be calculated as
follows:
Year 1 (1996)-- $700+$1,000=$1,700
Year 2 (1997)--$1,700+$250 x 1.02=$1,989
Year 3 (1998)--$1,989+$250 x 1.02=$2,284
Year 4 (1999)--$2,284+$250 x 1.02=$2,584
Year 5 (2000)--$2,584+$250 x 1.02=$2,891
Year 6 (2001)--$2,891 x 1.02=$2,949
Reevaluation of Fee Schedule
The Forest Service proposed policy contained a ten-year, or less,
period for reevaluation of the fee schedule to ensure fees remain at
fair market value.
Comment. One respondent objected, stating that the reevaluation
could occur in 1 or 2 years, and the fees were already too high. In
contrast, another respondent felt the agency should insist on
reevaluation of fair market fees every 5 years, since the technology
and demand for facility space is increasing. In addition, this
respondent said that private landowners use short-term leases so that
they do not have to reevaluate the rents.
The BLM proposed rule did not specify a period for reevaluation of
the fee schedule. Instead BLM proposed to revise the schedule
periodically, if necessary, to ensure the fees are fair. One respondent
to the BLM proposal asked what was meant by ``periodically'' and
another suggested that the fee schedule should be reevaluated every 5
years. The respondent noted that private market use fees have surged
over the last several years and that unless there is a mechanism to
update market information, the schedule would fall below fair market
value.
Response. The Forest Service prefers a more flexible option,
similar to private business practices, to keep the fees comparable with
changing technology and fluctuations in the private market rental
rates. The agency will continually monitor the private market to ensure
the schedule fees remain current with market conditions.
Therefore, the final policy provides for review and updating of the
schedule no later than 10 years from the date of implementation, and at
least every 10 years thereafter, to ensure the fees reflect fair market
value.
Clarification of Other Provisions of Proposed Policy
Use of Appraisals To Set Fair Market Fees. The Forest Service
proposed policy allowed exceptions to the fee schedule in certain
situations. For example, a bid procedure was suggested where a
communications use is the focus of competitive interest, or an
appraisal might be appropriate for uses on sites with truly unique
characteristics. All of the regional schedules provide that the
authorized officer may use site-specific appraisals or other sound
business management principles, when it is determined that the fee
schedule does not reflect fair market value, and the schedules
specifically do not apply to fees previously established through
competitive bid or appraisal.
Comment. Respondents to the Forest Service proposed policy did not
comment on this provision of the policy. The BLM included similar
language in its proposed rule to reserve the right to use individual
appraisals or other valuation procedures to calculate fees. Several
respondents to the BLM proposal commented that the authorized officer
could determine fees based on appraisals instead of using the fee
schedule. They were concerned the fee schedule would not be uniformly
used to determine fees. One respondent asked for specific criteria or
guidance on when the agency would use appraisals. Another respondent
suggested that it would be appropriate to establish standards
identifying when the fee schedule would not yield fair market value.
Response. The final Forest Service fee policy (FSH 2709.11, sec.
36.21a) clarifies that the authorized officer may deviate from the
schedule and use other methods, including appraisals, to determine fair
market value fees for communications uses when one of the following
criteria applies:
1. The fee or use is not covered by the fee schedule.
2. The fee has been or will be established through competitive bid
or appraisal and will be updated in accordance with the terms and
conditions of the authorization.
3. The Regional Forester concurs with the authorized officer's
determination that the communications site serves a population of 1
million or more and the expected fee for the communications use is more
than $10,000 above the established fee schedule.
4. The expected fee exceeds the schedule rate fee by 5 times or
more.
General Provisions for Fee Exemptions and Waivers. The Forest
Service fee exemption and waiver policy, addressing all land uses, is
set forth in FSH 2709.11, chapter 30 and Forest Service Manual (FSM)
chapter 2715. The authority to set criteria for and grant exemptions
from fees is either reserved to Federal agencies or set by law. The
authorized officer determines fee waivers on a case-by-case basis and
may grant a fee waiver when equitable and in the public interest.
[[Page 55098]]
Fee Waiver
Comment. Several respondents to the Forest Service proposed policy
suggested broadening the current fee waiver policy. Specific and
recurring comments from respondents asked that the agency: (1) Grant
exemptions, rather than waivers, to nonprofit organizations and public
service organizations; (2) recognize that ``public'' and
``noncommercial, educational television'' are one and the same; and (3)
change the classification of noncommercial, educational television and
radio broadcasters to the exempt category, rather than the waiver
category.
Response. The agency is not persuaded by respondents' statements
that ``public'' and ``noncommercial, educational television'' are one
and the same. While the current policy does not provide fee exemptions,
as requested by respondents, it does provide a full waiver of fees,
with specific qualifying criteria. The outcome is the same whether the
fee is exempt or fully waived. The agency believes the policy should
not include additional exemptions, criteria, or changes to terminology.
Fee Waiver for All Television and Radio Broadcasters
Comment. Some respondents to the Forest Service proposed policy
asked that the agency reconsider its waiver policy and adopt the
Advisory Committee proposal of a 30 percent discount for all radio and
television broadcasters in recognition of the public service they
provide. One respondent asked for an explanation of the waiver policy
when an easement is issued.
Response. The Forest Service recognizes the need to clarify the
current fee waiver policy as it applies to commercial and noncommercial
television and radio broadcasters. However, the agency disagrees with
respondents' statements that television and radio broadcast stations
should receive a 30 percent discount on use fees, since they provide
important news and emergency programming without direct cost to the
public. The General Accounting Office report (GAO-RCED-94-248) agrees
with the position of the Department of Agriculture's General Counsel
that reducing fees for broadcasters is not appropriate unless there is
some direct and tangible benefit to the public lands. The report (GAO
RCED-94-248) states further that providing public service discounts to
all broadcasters simply because they do not directly charge the public
is not appropriate. The agency agrees with the report that a public
service discount should not be provided to all commercial radio and
television broadcasters, and the respondents' suggestion has not been
adopted in the final policy.
Fee waivers and exemptions are dependent on the nature of the use
authorized, and the business and intent of the authorization holder.
The terms and conditions of easements and leases provide for
assignability (transfer) of the rights and privileges authorized.
Situations could arise in which easement or lease holders who qualify
for exempted or waived fees could transfer their fee exempted or waived
status to unqualified authorization holders. Therefore, if the use fees
are waived, an easement or lease will not be granted.
The final fee waiver policy in FSH 2709.11, section 31.2 (available
on request from the FOR FURTHER INFORMATION CONTACT listed earlier in
this notice) includes the following changes:
1. Adds a requirement that noncommercial educational radio and
television broadcast stations have nonprofit status as defined in
section 501(c)(3) of the Internal Revenue Code.
2. Requires an annual verification of nonprofit designation from
the Internal Revenue Service (IRS).
3. Moves States and local governments to the full waiver category
without qualifying criteria.
4. Adds direction that the authorized officer shall not waive fees
when the holder (except a Federal agency) derives revenue from tenants
in the facility. Existing Forest Service policy exempts Federal
agencies from only the land rental fee. When Federal agencies are
tenants in a communications facility, they are expected to pay a fee to
the holder for any use of the facilities.
Adjustment of Fees for Free Federal Government Use of Facilities
Comment. While not discussed in the Forest Service proposed policy,
two respondents commented that the fee schedule and policy should
recognize the requirement placed on some holders to provide for the
free use of the facilities by Federal Government agencies. The
respondents asked that if the practice is allowed to continue, an
adjustment for free Federal Government use should be considered when
determining the holder's annual fees.
Response. The agency acknowledges this practice has occurred in
isolated cases. However, there is no formal or informal policy
permitting such practices. Therefore, the final fee policy includes
direction that such requirements in existing authorizations shall be
considered in setting fair market rental fees by allowing a temporary
fee adjustment. The final policy in FSH 2709.11, section 36.25 provides
that when a holder has been required to set aside a percentage of the
square footage of building space as free use to other Federal
Government agencies, the total annual fee will be reduced by the same
percentage. The fee adjustment will be valid during the time the holder
is committed to the tenant enjoying free use. The agency has also
included direction in FSH 2709.11, section 48.1, paragraph 3,
prohibiting authorized officers from issuing authorizations that
require holders to provide free rental space to Federal Governmental
entities.
Administrative Complexity
Comment. Several respondents to the Forest Service proposed policy
said that they needed additional explanation to properly interpret and
apply the proposed policy and fee schedule. Major problem areas
identified by respondents included determining use categories,
identifying internal versus commercial use, applying a complex phase-in
procedure, and maintaining consistent administrative and application
procedures. Several respondents complained that it takes too long to
process applications for a communication site use and called for a
reduction in the amount of ``red-tape.''
Response. The revised policy and fee schedule provide for
streamlining implementation of the fee schedule; improve application
and administrative procedures and make them consistent in the different
Regions; and provide important incentives to maximize the use of
communications facilities. In addition, the changes encourage continued
growth of communications markets and services, especially in rural
areas; improve customer service and business practices; set rental fees
that are predictable and can be easily updated; encourage improved
communications site management; substantially reduce the agency's and
holder's administrative burden; and implement procedures more
consistent with private market practices.
Once implemented, the improved business practices will work better,
cost less, and produce measurable benefits enhancing the working
relationship between the Forest Service and the communications site
users.
The agency has made the following major changes in the final policy
in FSH 2709.11, chapters 30 and 40, to streamline implementation of the
fee
[[Page 55099]]
schedule and provide consistent administration:
1. Defines use categories more broadly to include other related
uses associated with the maintenance and monitoring of the use. As an
example, internal mobile radio is often associated with other uses and,
therefore, is included in the definition of each category of use (FSH
2709.11, sec. 48.11 and 48.12).
2. Redefines commercial mobile radio service to include internal
and private communication uses not sold for a profit, that is, private
mobile radio, internal microwave, and so forth. Holders operating
commercial mobile radio service companies operate and maintain a wide
range of mobile, wireless communication services for customers (FSH
2709.11, sec. 48.12a).
3. Revises definitions to provide that occupants owning and
operating communication equipment in a commercial mobile radio service
facility for internal use only, and not re-selling their service for a
profit, are considered customers, not tenants. The base fee assessed
does not include any adjustment for customers (FSH 2709.11, sec.
36.21).
4. Allows facility owners and tenants to decide if they want to
consolidate their authorizations (FSH 2709.11, sec. 48.1, para. 7).
5. Eliminates the requirement that the holder obtain prior written
consent of the authorized officer before allowing other parties to use
the facility (FSH 2709.11, sec. 48.1, para. 7).
6. Phases in fee increases if the new scheduled fee exceeds the
1995 fee by $1,000 (FSH 2709.11, sec. 36.22).
7. Reduces the information burden placed on holders (FSH 2709.11,
sec. 48.1, para. 7).
8. Encourages new applicants to co-locate in existing facilities,
thus reducing surface disturbances and the proliferation of structures
(FSH 2709.11, sec. 48.1, para. 1). Use Categories Not Included in
Forest Service 1993 Proposed Policy. The Regional schedules recognize a
total of 14 uses, generally corresponding to types of communications
licenses issued by the FCC. Each Regional schedule, revised in 1992,
uses separate market analyses to establish fees for specific use
categories within a given Regional area and/or zone. The schedules
appear as Regional supplements to chapter 30 FSH 2709.11, Special Uses
Handbook. The following use categories included in the Regional
supplements were not included in the Forest Service's proposed fee
schedule: (1) Broadcast translator, (2) cable and subscription
television, (3) common carrier microwave relay, (4) industrial
microwave relay, (5) mobile radio: internal communications, (6) natural
resource/environmental monitoring, (7) passive reflector, (8) amateur
radio, (9) personal/private receive only, and (10) local exchange
network. One use, low power television, was omitted from the Regional
schedules.
Based on the comments received on the Forest Service proposed
policy, additional research on private market practices, and comments
received on the BLM proposed rule, the Forest Service is adopting a
national fee schedule for all communications uses (except two
categories of use) that is consistent with that of the BLM schedule.
The agency is making the following changes to the use categories which
appear in FSH 2709.11, section 48, and were described in the Regional
schedules:
1. Adds low power television and radio uses to the broadcast
translator category; remains the category as broadcast translator and
low power television and low power FM radio (sec. 48.11d).
2. Renames the cable and subscription TV category as cable
television (sec. 48.11c).
3. Renames the mobile radio: internal category as private mobile
radio service (sec. 48.12c).
4. Combines the private microwave and common carrier microwave
categories; renames the category as microwave (sec. 48.12d).
5. Combines the amateur radio, natural resource and environmental
monitoring, and personal/private receive only categories; establishes
fees and renames the category as other communications uses (sec.
48.13).
6. Changes the definitions for most categories (sec. 48.1, para.
5).
Following is a summary of the changes to each category. The changes
reflect the information provided from respondents and additional joint
analysis with BLM of the use categories and fee schedules in the six
Regions.
Cable Television. (FSH 2709.11, sec. 48.11c). The current Regional
schedules base the fees on the number of households served by a cable
television franchise. Depending upon the Region, fees vary from $75 for
less than 200 subscribers to $3,000 for more than 2,500 subscribers,
with fees for uses serving more than 2,500 subscribers to be determined
by appraisal or other means. A review of current market information
revealed there is still limited comparable lease data for cable
television use in larger markets.
Therefore, the final policy (sec. 48.11c) and fee schedule (sec.
36.21, ex. 01) make the following changes to the cable television
category (formerly in the Regional schedules for cable television):
1. Fees are based on the standard RMA population ranges,
establishing fees for four population ranges (less than 25,000 to
299,999). The final fees vary from $600 to $2,400.
2. Fees for uses in population ranges not covered by the schedule
(300,000 and above) continue to be determined on a Regional basis by
other reasonable methods, including appraisals.
3. If a nonscheduled fee is indicated, the current fee remains in
effect until the new fee is determined.
4. Until a new fee is determined, a cable television use is not to
be used to determine the highest value use for purposes of calculating
building owner fees; but the building owner fee is based on the second
highest value use in the facility covered by the schedule.
Broadcast Translator, Low Power Television, and Low Power FM Radio.
(FSH 2709.11, sec. 48.11d). Based on the number of persons within the
area served, the regional fee schedules vary from $75 for less than
15,000 persons to $1,000 for 60,000 persons, with populations over
60,000 to be determined by appraisal or other means. The National
Translator Association supported these fees when published by the
Forest Service Regions in 1992.
Comment. Several respondents to the Fores Service proposed fee
schedule asked that the agency establish a separate category for low
power television (LPTV). Low power television stations are essentially
broadcast translators that originate programming. The devices cannot
interfere with full-power stations and are limited to 10 watts VHF and
1000 watts UHF. Since the devices usually serve remote areas or
specific unique markets, there is little information to suggest that
there is a difference in land rent from broadcast translators.
Response. After considering the comments and reviewing the use
categories, the agency found it would be appropriate to include LPTV
and low power FM radio (LPFM) uses in the broadcast translator
category. In addition, the agency found there is insufficient
comparable lease data to establish fees for broadcast translator and
LPTV use in the larger urban markets. Therefore, the final policy (sec.
48.11d) and fee schedule (sec. 36.21, ex. 01) make the following
changes to the broadcast translator category (formerly in the Regional
schedules for broadcast translator):
1. Fees are based on the standard RMA population ranges,
establishing fees for four population ranges (less
[[Page 55100]]
than 25,000 to 299,999). The final fees vary from $100 to $2,400.
2. Fees for uses in population ranges not covered by the schedule
(300,000 and above) continue to be determined on a Regional basis by
other reasonable methods, including appraisals.
3. If a nonscheduled fee is indicated, the current fee remains in
effect until the new fee is determined.
4. Until a new fee can be determined, a broadcast translator/LPTV/
LPFM use is not to be used to determine the highest value use for
purposes of calculating a building owner fee. In this situation, the
building owner fee is based on the second highest value use in the
facility covered by the schedule.
Private Mobile Radio Service. (FSH 2709.11, sec. 48.12c). The
Regional schedules adopted an annual fee for private mobile radio use,
rather than using population or areas served as a basis for fee
determination. Fees for uses identified as mobile radio: internal in
the Regional schedules, vary from $350 to $1,700.
Comment. A respondent to the BLM proposed rule pointed out that in
some situations internal mobile radio and microwave systems must be
used together. Commonly called ancillary uses, the systems give support
or connect one another on the same communications facility. To
eliminate confusion, the respondent suggested that when microwave and
mobile radio uses are present in the same facility as ancillary uses,
the fee should be based on the private mobile use if the microwave ends
at the facility and is used for the control of the mobile facility.
Response. The agency agrees with the respondent. If the microwave
and mobile radio uses are ancillary to each other, the holder should
not pay two separate fees. To correct the problem, the definition has
been broadened to include other equipment for the control of a
facility. A separate fee is not to be charged for ancillary uses.
If microwave and private mobile radio uses are present in the same
facility, but are independent of each other, they are considered as
separate uses for purposes of fee calculation.
The final policy (sec. 48.12c) and fee schedule (sec. 36.21, ex.
01) make the following changes to the private mobile radio service
category (formerly in the Regional schedules as mobile radio:
internal):
1. Fees are based on the standard RMA population ranges,
establishing fees for nine population ranges. The final fees vary from
$350 to $10,000.
2. The definition has been broadened to include other
communications equipment necessary for the control of a facility.
3. A separate fee is not assessed for ancillary microwave use.
Microwave. (FSH 2709.11, sec. 48.12d). Two separate categories,
common carrier microwave and industrial microwave, were established in
the Regional schedules. Based on the geographical location and the
number of persons served, the fees vary from $1,000 in the rural areas
to as much as $5,500 in urban areas.
Comment. Several respondents to the BLM proposed rule observed that
there is little difference in the rent paid for private (industrial) or
common carrier microwave facilities in the private market.
Response. The agency agrees with the respondents and has combined
the two categories into one category for microwave.
The final policy is FSH 2709.11 (sec. 48.12d) and fee schedule
(sec. 36.21, ex. 01) make the following changes to the microwave
categories (formerly in the Regional schedules for common carrier and
industrial microwave):
1. One category, microwave, combines the previous categories for
common carrier microwave and industrial microwave uses.
2. Fees are based on the standard RMA population ranges,
establishing fees for nine population ranges. The final fees vary from
$1,500 to $10,000.
3. The definition has been broadened to include other
communications equipment necessary for the control of a facility.
4. A separate fee is not assessed for ancillary private mobile
radio use.
5. Fees for a microwave use with an ancillary private mobile radio
use are based on the scheduled rate for microwave.
Other Categories. The Regional schedules adopted a $75 fee for
separate categories of amateur radio, personal/private receivers, and
environmental monitoring equipment uses for all geographic locations.
The final policy (FSH 2709.11, sec. 48.13) combines these uses into one
category, other uses, and the final fee schedule (sec. 36.21, ex. 01)
maintains the $75 fee.
Two other categories, passive reflector and local exchange network,
are in the Regional schedules but are not in the final agency policy or
fee schedule. Passive reflector use fees vary from $475 to $1,000,
depending upon the location and populations served. The system is used
primarily in remote areas. Fees for local exchange network uses, a
radio service providing basic exchange telephone radio service (BETRS)
to remote areas, were established in the 1992 schedules using
information gathered from a national fee analysis and rates for common
carrier microwave. Fees vary from $75 to $4,000, depending on the
persons served in a particular geographic area.
Passive reflectors and local exchange networks are unique systems
with limited use. In many areas the systems are being replaced by new
emerging technologies. Therefore, the final fee schedule excludes both
uses and fees will continue to be determined on a Regional basis.
Definitions. The final policy includes a definition for each use
category and other commonly used terms in FSH 2709.11, section 48.
Fee Schedule Implementation
The draft policy indicated the final fee schedule and associated
policy changes would require Forest Service Regions 1 through 6 to
modify their existing fee schedules and to give notice of those changes
in the Federal Register. However, in consideration of the public
comments that the fee schedules would still be incomplete, and because
of the coordinated effort with the BLM to issue joint market-based fee
schedules, the final fee schedule revises those procedures.
Instead, the final fee schedule replaces the Regional schedules,
except for passive reflector and local exchange network uses. The fee
schedule in FSH 2709.11, section 36.01, exhibit 01, will be updated
annually to reflect:
1. The CPI-U adjustment factor to apply to annual billings for
existing authorizations.
2. Revised schedule fees, reflecting the CPI-U adjustment, to be
used for new authorizations.
3. Changes to the RMA population rankings.
The agency recognizes that the final fee schedule may result in a
reduction of current fees for some holders, for several reasons,
including:
1. Fees established by 1992 Regional schedules which have been
increased by the CPI-U adjustment factor each year.
2. Definition of a ``customer'' to include internal and private
uses renting space within a communication facility and not re-selling
communication services to others.
3. The inherent leveling effect of a fee schedule applying a
national market-based ranking system rather than specific geographic
market conditions.
However, the agency believes implementation of a national fee
schedule for most communications uses and the annual updating of fees
with applicable CPI-U adjustments through national direction will end
the inequity
[[Page 55101]]
between fees charged to users in different regions and at the same time
return fair market value in rental income to the United States.
The final fee schedule does not apply to Region 8 and 9
(encompassing the 33 eastern States) or Region 10 (Alaska). The Forest
Service is currently validating the fee schedule's applicability to
communications uses in the 33 eastern States. The agency expects to
implement the fee schedule for Regions 8 and 9 with any necessary
adjustments in 1997. Region 10 (Alaska) will continue to use the
Regional fee schedule adopted in 1992.
The Forest Service plans the following actions and methods for
implementing the final policy:
1. The Forest Service and the BLM will develop and adopt a new
document for communication use authorizations for use by both agencies.
The new authorization will allow tenant occupancy, eliminating the
requirement for prior written consent of the agency or issuance of
separate authorizations to tenants.
2. All authorization holders will receive notice of the regulatory
changes affecting communications site use fees, and they will be given
the option to convert to the new authorization. The holders will have
60 days to respond to the authorized officer indicating their
intention. Permits that expire will be replaced with the new
authorization.
3. Tenants may retain an existing authorization or relinquish the
authorization and be included in the facility owner's authorization.
Tenants electing to maintain an existing authorization will be billed
the full use fee according to the schedule and category of use.
4. Fees for uses not included in the schedule continue to be
determined on a Regional basis by other reasonable methods, including
appraisals.
5. If a nonscheduled fee is indicated, the current fee remains in
effect until the new fee is determined.
6. Until new fees can be determined, nonscheduled use categories
are not to be used to determine the highest value use for purposes of
calculating building owner fees, but are based on the second highest
value use in the facility covered by the schedule.
7. Separate fees are not assessed for ancillary uses.
8. Holders will be notified of the calendar year 1996 fee by
written notice from the authorized officer. The notification will
include instructions for appealing the new fees in accordance with
existing regulations.
9. The fee schedule is effective November 6, 1995 for new use
authorizations (new construction) and on January 1, 1996, for existing
use authorizations.
Controlling Paperwork Burdens on the Public
This policy will not result in additional paperwork not already
required by law or not already approved for use. The information
collection being requested as a result of this action has been approved
by OMB (Number 0596-0082, expiration date--June 30, 1996). Therefore,
further review required under provisions of the Paperwork Reduction Act
of 1995 (Pub. L. 104-13 (May 22, 1995)) and implementing regulations at
5 CFR 1320 do not apply.
Regulatory Impact
This final policy has been reviewed under Executive Order 12866 on
Regulatory Planning and Review. The agency has determined that this
final policy is a significant regulatory action subject to Office of
Management and Budget review.
Currently, annual costs for processing applications (including
analysis for environmental and heritage resources) and determining fees
for communications uses are estimated at $63,000 for the Forest Service
and $32,500 for applicants. Annual costs to the Forest Service to
administer existing authorized communications site uses are estimated
at $1,985,500.
Under the existing fee system, approximately $2 million are
collected annually from the 6,300 authorized communications site users
on National Forest System (NFS) lands. Fees are waived for other
Federal, State, and local municipalities and some non-profit
organizations.
Each of the 6,300 current authorizations is issued for one user.
The Forest Service requires proof of FCC licensing for each
authorization. Due to the complexity of communications technology, the
Forest Service is unable to economically track each user within each
building. It is estimated that there are between 500 and 1,000
unidentified and unauthorized users operating on NFS lands. These users
may or may not be licensed by FCC and are not paying compensation for
the use.
The new process reduces the number of applications and permits,
increasing benefits through reduced costs, more efficient
administration, and reduction of environmental planning analyses.
Administrative savings to the government would be approximately
$975,000 and savings to communication site applicants and users would
be approximately $16,250. With a decrease in caseload, Forest Service
personnel will be able to provide better customer service to the
public. Additionally, reduced caseload will enable the Forest Service
to better administer existing uses, thereby ensuring uses are
consistent with the terms and conditions of the lease and applicable
policies, regulations, and laws. Non-profit organization that have
annual certification by the Internal Revenue Service, such as public
television and radio broadcasters and religious broadcasters, will have
their fees waived. Reductions in operating expenses for these
organizations may increase their ability to provide goods and services
to the publics they serve.
The new schedule increases receipts to the Federal treasury by an
estimated $18 million annually by charging fees more accurately
reflecting fair market value as required by the Federal Land Policy and
Management Act. This is a conservative estimate based on the findings
of the joint Forest Service and BLM 1991 Report to Congress where fees
were determined to be $20 to $25 million below fair market value.
Fees under the new schedule are consistent with those on private
sites and reduce discrepancies between Federal and private site fees.
Increased revenue to the Federal treasury assists with Administration
and Congressional efforts to reduce the Federal deficit.
The granting of a lease to communications site users with a
guaranteed term provides benefits to the user for planning and may
increase opportunities for obtaining financing. Additionally, a
consistent fee system across the Forest Service and BLM reduces
confusion and simplifies processing for corporate users who may require
leases at more than one location.
Moreover, this final policy has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by that act. The
phase-in of annual fees described in this notice will allow small
entities to adjust to the new fees over a period of time and thus
minimize the risk of adverse impact on some businesses because of the
magnitude of the increase in some fees.
Environmental Impact
Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR
43180, September 18, 1992) excludes from documentation in an
environmental assessment or impact statement ``rules, regulations, or
policies to establish Service-wide administrative procedures,
[[Page 55102]]
program processes or instructions.'' Based on consideration of the
comments received and the nature and scope of this policy, the Forest
Service has determined that this policy falls within this category of
actions and that no extraordinary circumstances exist which would
require preparation of an environmental assessment or environmental
impact statement.
Dated: July 17, 1995.
David G. Unger,
Associate Chief.
Final Handbook Revision
Note: The Forest Service organizes its directive system by
alphanumeric codes and subject headings. Only those sections of the
Forest Service Handbook (FSH) 2709.11, Special Uses Handbook,
affected by this policy are included in this notice. The intended
audience for this direction is Forest Service employees charged with
issuing and administering communications use authorizations. The
text of the revised policy and fee schedule follows:
FSH 2709.11--Special Uses Handbook
Chapter 30--Fee Determination
36.2--Communications Site Fee Schedule. This section provides
direction for use of the fee schedule for communications uses on
National Forest System lands.
36.21--Determination of Fees. The authorized officer shall request
that the holder provide a certified statement by October 15 of each
year containing a list of tenants, by category of use, in the facility
on September 30 of that year.
Calculate the annual fee using the fee schedule (ex. 01) and the
population strata based on the Ranally Metro Area (RMA) population and
city listing (ex. 02). The fee schedule provides rental fees by
category of use and population. See section 36.21a for exceptions to
using the fee schedule.
1. Consider the following when determining fees:
a. If the communications site serves an RMA community (ex. 02),
determine the fee by the category of use and the corresponding
population range on the fee schedule (ex. 01).
b. If the communications site does not serve a listed RMA community
(ex. 02), determine the fee based on the population of the largest
community (according to the most current ``Rand McNally Road Atlas'')
served by the site.
c. If the communications site does not serve a community, determine
the fee based on the lowest scheduled fee (ex. 01) for the category of
use, except in situations described in section 36.21a.
d. Consider co-owned AM and FM stations located in the same
facility as two radio stations in determining fees.
e. Do not apply the 25 percent schedule rate for customers (sec.
48.1, para. 5), including internal and private users, renting space in
a communications facility.
2. Apply the fee schedule to communications uses providing the
following services:
a. Television Broadcast. (Sec. 48.11a of this Handbook).
b. AM and FM Radio Broadcast. (Sec. 48.11b).
c. Cable Television. (Sec. 48.11c).
d. Broadcast Translator, Low Power Television, and Low Power FM
Radio. (Sec. 48.11d).
e. Commercial Mobile Radio Service (CMRS) and Facility Manager.
(Sec. 48.12a).
f. Cellular Telephone. (Sec. 48.12b).
g. Private Mobile Radio Service. Stand alone operations only. (Sec.
48.12c).
h. Microwave. Common carriers microwave relay and industrial
microwave. (Sec. 48.12d).
i. Other Communications Uses. Stand alone operations only. This
category includes the following uses: amateur radio; personal/private
receive only; and natural resource and environmental monitoring. (Sec.
48.13).
3. Except for fees that apply to a facility manager (para. 4),
assess fees for all the preceding uses in paragraphs 2a to 2i providing
rental space to tenants as follows:
a. Determine a base fee from the schedule rate fee for the
building owner or the use generating the highest schedule fee in the
facility. If the highest schedule fee is a ``tenant'' fee, the
``tenant'' fee becomes the base fee and the building owner's
schedule rate fee is used as a tenant fee for calculating additional
fees (following para. b).
b. Add 25 percent of the schedule fee for each ``tenant'' (ex.
01). Include 25 percent of the building owner's scheduled fee if it
is not the highest fee and, therefore, not used as the base fee.
Sample fee calculations are provided as follows:
Example 1: A communications facility serving an RMA population area
of 200,000, with a CMRS provider (building owner), one TV broadcaster,
two FM broadcasters, one cellular telephone, and two private mobile
radio users.
Base fee=$6,000 (TV broadcast is the highest value use in the
facility)+$750 (25% CMRS provider (building owner)+$2,000 (25% of
two FM broadcasters)+$1,000 (25% cellular telephone)+$0.00 (no
charge for PMRS)=Total fee for the facility: $9,750.
Example 2: A communications facility serving an RMA population area
of 800,000, with a TV station (building owner), one FM broadcaster, and
three private mobile radio users.
Base fee=$14,000 (TV broadcast is the highest value use in the
facility)+$2,500 (25% FM broadcaster)+$0.00 (no charge for
PMRS)=Total fee for the facility: $16,500.
4. Fees for facility managers are calculated differently from other
uses. Facility managers provide rental space for other communications
uses; they do not directly provide communications services to others.
Determine the base fee as described in the proceeding paragraph.
However, if the highest valued scheduled fee for the facility is not
the facility manager's, do not ``substitute'' the 25 percent facility
manager rental fee for the tenant fee used for the base fee.
Sample fee calculations for facility manager uses are provided as
follows:
Example 1: A facility manager serving an RMA population area of
200,000, with three microwave providers and two amateur radio
operators.
Base fee=$3,000 (the facility manager schedule rate is the
highest valued use in the facility)+$1,500 (25% three microwave
users)+$0.00 (no charge for amateur radio)=Total fee for the
facility: $4,500.
Example 2: A facility manager serving an RMA population area of
800,000, with a TV station, three FM broadcasters, and three private
mobile radio users.
Base fee=$14,000 (TV broadcast is the highest value use in the
facility)+$7,500 (25% FM broadcaster)+$0.00 (no charge for
PMRS)=Total fee for the facility: $21,500.
36.21a--Exceptions to Fee Schedule. Fees not established by use of
the fee schedule shall be based on comparative market surveys,
appraisals, or other reasonable methods. All such fee determinations
shall be documented, supported, and approved by the authorized officer.
The following are exceptions to the fee schedule:
1. The fee or use is not covered by the fee schedule.
2. The fee has been or will be established through competitive bid
or appraisal and will be updated in accordance with the terms and
conditions of the authorization.
3. The Regional Forester concurs with the authorized officer's
determination that the communications site serves a population of 1
million or more and the expected fee for the communications use is more
than $10,000 above the established fee schedule.
4. The expected fee exceeds the schedule rate fee by 5 times or
more.
36.22--Phase-in of Fees. Fees for new uses (new construction) do
not qualify for a phase-in. For existing uses, phase in first year
increases in fees of more than $1,000 over a 5-year period. For
example, if the current total fee is $700,
[[Page 55103]]
and the new total fee is $2,700, calculate the 5-year phase-in as
follows:
1. Year 1996. $700 (current total fee in 1995) + $1,000 (limit of
first year increase) = $1,700 (first year's fee in 1996);
2. Year 1997. $1,700 (first year fee in 1996) + $250 (\1/4\ of
remaining increase ($1,000) greater than $1,000) x 1.02* =
$1,989 (second year's fee in 1997);
3. Year 1998. $1,989 (second year's fee in 1997) + $250 (\1/4\ of
remaining increase ($1,000) greater than $1,000) x 1.02* =
$2,284 (third year's fee in 1998);
4. Year 1999. $2,284 (third year's fee in 1998) + $250 (\1/4\ of
remaining increase ($1,000) greater than $1,000) x 1.02* =
$2,584 (fourth year's fee in 1999);
5. Year 2000. $2,584 (fourth year's fee in 1999) + $250 (\1/4\ of
remaining increase ($1,000) greater than $1,000) x 1.02* =
$2,891 (fifth year's fee in 2000);
6. Year 2001. Phase-in of the fee schedule has been completed. In
succeeding years, apply only the CPI-U to the previous year's fee.
$2,891 (fifth year's fee in 2000) x 1.02* = $2,949 (fee in 2001).
*Assumed 2 percent increase each year in the United States
Department of Labor Consumer Price Index for All Urban Consumers--
U.S. City Average (CPI-U).
36.23--Updating Fee Schedule. The Director of Lands, Washington
Office, shall update the fee schedule (sec. 36.21, ex. 01) annually,
based on the CPI-U published in July of each year. Annual adjustments
based on the CPI-U shall be limited to 5 percent. The Director of Lands
shall review the fee schedule no later than 10 years after the date of
implementation of this schedule, and at least every 10 years
thereafter, to ensure that fees reflect fair market value.
The Director of Lands shall review and update the RMA city and
population table (sec. 36.21, ex. 02) annually.
36.24--Fee Waivers and Exemptions. For direction on fee waivers and
exemptions, see sections 31.2 through 31.4
36.25--Fee Adjustment for Required Free Use. In no circumstance
require a private holder to provide free rental space to Federal
agencies or any other entity. In order to rectify past situations in
which the Forest Service required the holder to provide free rental
space, discount the annual fee by the same percentage that the entity
receiving free use occupies (in square feet) in that building. For
example, if the Forest Service previously required a building owner to
provide free use for 20 percent of the building, discount the annual
fee by 20 percent. Such a discount is valid for the period of time
specified in an existing agreement between the parties.
BILLING CODE 3410-11-M
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[GRAPHIC][TIFF OMITTED]TN27OC95.001
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BILLING CODE 3410-11-C
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Chapter 40--Special Uses Administration
48--Communications.
48.1--Communications Uses. This special-uses group includes a
variety of communications use categories which utilize National Forest
System land. Typically the use occurs on a designated site and includes
buildings, towers, and other support improvements.
1. Authority. Authorizations for all communications uses are issued
under the authority of the Act of October 21, 1976 (43 U.S.C. 1761).
This authority must be cited on all authorizations issued for
communications uses.
2. Objectives. The objectives of communications use management are
to authorize only those uses which meet forest land and resource
management plan objectives; to facilitate the orderly development of
sites to provide a safe and high quality communications environment; to
maximize efficient use of the communications site; and to collect fair
market value fees for communications uses on National Forest System
lands.
3. Policy. Except for single uses which involve minor development
(such as personal receive only use, resource monitoring use, or
temporary use), communications sites must be designated before a new
authorization for communications use can be issued. Communications site
designation is a land use allocation and shall be made through the land
resource management planning process (FSM 1920).
Fees for communication uses shall be assessed in accordance with
direction in chapter 30 of this Handbook.
Authorized officers shall not consider or issue authorizations that
involve bartering or augmentation of goods or services, such as
requiring the holder to provide free government use of facilities or
construction of other improvements not associated with the use.
4. Responsibility. The Regional Forester is responsible for
approval of communication site plans; this responsibility may be
delegated to the Forest Supervisor. Following communications site plan
approval, Forest Supervisors have the authority to issue special-use
permits, within the guidelines of the site plan. This responsibility
may be delegated to the District Ranger.
5. Definitions. Definitions for other technical terms not listed in
this section may be found in Federal Standard 1037 (FS 1037A), a
standard glossary of telecommunication terms available from the General
Services Administration.
Attenuation. Decrease in magnitude of current, voltage, or power of
a signal in transmission between points. May be expressed in decibels
(dB).
Band Width. A portion of the frequency spectrum authorized for use
by a specific license; measured in kilohertz (KHz) or megahertz (MHz).
Of concern is the amount of spectrum authorized: that is, a small
amount (15 KHz) for two-way radio, a larger amount (6 MHz) for
television broadcast, and a very large amount (many MHz) for radar.
Base Rent. The fee amount determined by the highest value use in a
communications site facility. Base rent is applicable only to a
facility owner's fee.
Beam Path. Direction or corridor of energy radiated from a
directional antenna. Usually refers to microwave, which requires an
unobstructed point-to-point corridor.
Continuous Broadcast or Constant Carrier. A continuously operating
transmitter, not a microwave.
Communications Site. An area of National Forest System land
designated through the land and resource management planning process. A
communications site may be limited to a single communications facility,
but most often encompasses more than one. Each site is identified by
name; usually a local prominent landmark, such as Bald Mountain
Communications Site.
Customer. An individual, business, organization, or agency that is
paying a facility owner or tenant for communications services and is
not re-selling communication services to others. Private (other use
category) and internal (private mobile radio services category)
communication uses leasing space in a building and not re-selling
communication services to others are considered customers for fee
calculation purposes.
Effective Radiated Power. The power supplied to the antenna
multiplied by the relative gain of the antenna in a given direction.
Effective Receiver Sensitivity. The signal level required to detect
and reproduce usable information from the local electromagnetic
environment.
Electromagnetic Compatibility. The ability of telecommunications
equipment, subsystems, or system to operate in their intended
operational environments without suffering or causing unacceptable
degradation because of electromagnetic radiation or response. Refers to
coexistence of different types of equipment in the same area.
Facility. A building, tower, and/or other physical improvement that
is built, installed, or established to house and support authorized
communications uses.
Facility Manager. The holder of a Forest Service communications use
authorization who leases space for other communication users. A
facility manager does not directly provide communications services to
third parties.
Frequency Assignment. The process of authorizing a specific
frequency, group of frequencies, or frequency band to be used at a
certain location under specific conditions such as band width, power,
azimuth, duty cycle, or modulation.
Gain. The increase in effective signal power in transmission under
stated conditions. (Note: Power gain is expressed in decibels.)
Harmful Interference. Any transmission, radiation, or induction
which specifically degrades, obstructs, or interrupts the services
provided by such stations.
High Gain Antenna. An antenna whose effective radiated power in a
given direction is greater than the input power.
Microwave. High frequencies commonly between 900 and 30,000
megahertz.
Mobile Station. A two-way radio station designed for operation when
in motion or at unspecified points.
Noise. An undesired disturbance within the useful frequency band.
Noise Floor. Existing volume (magnitude) of electronic noise power
measured in decibels and referred to as an electronic value (such as
milliwatt).
Omnidirectional Antenna. An antenna whose radiation pattern is
nondirectional in azimuth (meaning it radiates or receives in 360
degrees).
Point-to-point Radio Communications. Radio communications between
two fixed stations.
Polarization (Polarity). Term referring to antenna radiation
polarity, which can be horizontal, vertical, or circular.
Radiation Pattern. A graphical representation of power radiation of
an antenna, usually shown for the two principal planes, vertical and
horizontal.
Receiver Desensitivity. A consequence of undesired reradiated
frequency energy entering a receiver. Reduces the ability to receive
weaker signals.
Repeater. A device that simultaneously transmits all properly coded
input signals received, or in the case of pulses, amplifies, reshapes,
retimes, or performs a combination of any of these functions on an
input signal for retransmission.
Reradiation. Energy radiated by a galvanic junction in a nonlinear
[[Page 55109]]
manner. Sources may include radio equipment, antennas, metallic debris,
defective structural components, unterminated antenna cables, or
passive repeater.
Tenant. A communications user who rents space in a communications
facility and operates communications equipment for the purpose of re-
selling communications services to others for profit. Tenants may hold
separate authorizations, without subtenancy rights, at the full
schedule fee based on the category of use.
Trunking. A system which allows a number of radio channels to be
operated as a single system allowing service to multiple users.
Wave Guide. A hollow metallic conduit within which electromagnetic
waves may be propagated.
7. Authorization and Administration.
(4) Issuance of Authorizations. Use the appropriate authorization
form to authorize use of National Forest System lands for
communications uses by facility owners. Tenants in a facility owner's
building are not required to have a separate authorization. If,
however, a tenant requests an authorization, authorize tenant use using
Form FS-2700-4a, Special-Use Permit for Communications Uses (ch. 50),
without tenant occupancy rights, and charge the tenant the full
schedule fee for that use (ch 30).
(5) Fee Calculation. Calculate fees for communications uses in
accordance with the direction in chapter 30. Fees for new sites may be
established using a prospectus.
48.11--Broadcast Uses.
48.11a--Television Broadcast. This category includes facilities
licensed by the Federal Communications Commission (FCC) that broadcast
UHF and VHF audio and video signals for general public reception and
the communications equipment directly related to the operation,
maintenance, and monitoring of the use.
Users include television stations (major and independent networks)
that generate income through commercial advertisement and public
television stations whose operations are supported by subscriptions,
grants, and donations. Broadcast areas may overlap State boundaries.
This category of use relates only to primary transmitters and not to
any rebroadcast systems such as translators, transmitting devices such
as microwave relays serving broadcast translators, or holders licensed
by the FCC as low power television (LPTV).
48.11b--AM and FM Radio Broadcast. This category includes
facilities licensed by the Federal Communications Commission (FCC) that
broadcast AM and FM audio signals for general public reception and the
communications equipment directly related to the operation,
maintenance, and monitoring of the use.
Users include radio stations which generate revenues from
commercial advertising and public radio stations whose revenues are
supported by subscriptions, grants, and donations. Broadcast areas
often overlap State boundaries. This category of use relates only to
primary transmitters and not to any rebroadcast systems such as
translators, microwave relays serving broadcast translators, or holders
licensed by the FCC as low power FM radio.
48.11c--Cable Television. This category includes FCC-licensed
facilities that transmit video programming to multiple subscribers in a
community over a wired or wireless network, and the communications
equipment directly related to the operation, maintenance, or monitoring
of the use. These systems normally operate as a commercial entity
within an authorized franchise area. The category does not include
rebroadcast devices, or personal or internal antenna systems such as
private systems serving hotels or residences.
48.11d--Broadcast Translator, Low Power Television, and Low Power
FM Radio. This category of use consists of FCC-licensed translators,
low power television (LPTV), low power FM radio (LPFM), and
communications equipment directly related to the operation,
maintenance, or monitoring of the use. Microwave facilities used in
conjunction with the systems are included in the category. Translators
receive a television or FM radio broadcast signal and rebroadcast it on
a different channel or frequency for local reception. In some cases the
translator relays the signal to another amplifier or translator. Low
power television and FM radio stations are broadcast translators that
originate programming. This category of use includes translators
associated with public telecommunications service.
48.12--Non-Broadcast Uses.
48.12a--Commercial Mobile Radio Service (CMRS) and Facility
Manager. This category of use includes FCC-licensed facilities
providing mobile radio communications service to individual customers,
and the communications equipment directly related to the operation,
maintenance, or monitoring of the use. Examples of mobile radio systems
in this category are two-way voice and paging services such as
community repeaters, trunked radio (specialized mobile radio), two-way
radio dispatch, public switched network (telephone/data) interconnect
service, microwave communications link equipment, and internal and
private communications uses not sold for a profit (that is, private
mobile radio, internal microwave, and so forth). Some holders may not
hold FCC licenses or operate communications equipment, but they may
lease building, tower, and related facility space as part of their
business enterprise and act as facility managers.
48.12b--Cellular Telephone. Cellular telephone includes holders of
FCC-licensed systems and related technologies for mobile communications
that use a blend of radio and telephone switching technology to provide
public switched network services for fixed and mobile users within a
geographic area. The system consists of cell sites containing
transmitting and receiving antennas, cellular base station radio,
telephone equipment, and often microwave communications link equipment,
and the communications equipment directly related to the maintenance
and monitoring of the use.
48.12c--Private Mobile Radio Service. This use category includes
holders of FCC-licensed private mobile radio systems primarily used by
a single entity for the purposes of mobile internal communications, and
the communications equipment directly related to the operation,
maintenance, or monitoring of the use. The communications service is
not sold to others and is limited to the user. Services generally
include private local radio dispatch, private paging services, and
ancillary microwave communications equipment for the control of the
mobile facilities.
48.12d--Microwave. This use includes holders of FCC-licensed
facilities used for long-line intrastate and interstate public
telephone, television, information, and data transmissions, or used by
pipeline and power companies, railroads, and land resource management
companies in support of the holder's primary business. Also included is
communications equipment directly related to the operation,
maintenance, or monitoring of the use, such as mobile radio service.
48.12e--Local Exchange Network. This use refers to a radio service
which provides basic telephone service, primarily to rural communities.
48.12f--Passive Reflector. Passive reflectors include various types
of nonpowered reflector devices used to bend or ricochet electronic
signals between active relay stations or between an active relay
station and a terminal. A
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passive reflector commonly serves a microwave communications system.
The reflector requires point-to-point line-of-sight with the connecting
relay stations, but does not require electric power. Maintenance is
minimal and reflectors seldom require site visits for maintenance or
monitoring.
48.13--Other Communications Uses. This category includes holders of
FCC-licensed private communications uses such as amateur radio;
personal/private receive-only antennas designed for the reception of
electronic signals to serve private homes; natural resource and
environmental monitoring equipment used by weather stations, seismic
stations, and snow measurement courses; and other small, low power
devices used to monitor or control remote activities. These facilities
are personally owned and not operated for profit.
[FR Doc. 95-26490 Filed 10-26-95; 8:45 am]
BILLING CODE 3410-11-M
