[Federal Register Volume 61, Number 225 (Wednesday, November 20, 1996)]
[Proposed Rules]
[Pages 59048-59072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29530]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 2, 27, and 97
[GN Docket No. 96-228; FCC 96-441]
Wireless Communications Service
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: By this Notice of Proposed Rule Making (``NPRM''), the Federal
Communications Commission (``Commission'') proposes to establish a new
Wireless Communications Service (``WCS'') in the 2305-2320 and 2345-
2360 MHz bands. This action is being taken pursuant to the Omnibus
Consolidated Appropriations Act, 1997 (``Appropriations Act''). The
intended effect of this action is to make thirty megahertz of spectrum
available for the provision of fixed, mobile, radiolocation services,
or satellite Digital Audio Radio Services (``satellite DARS'').
DATES: Comments must be submitted on or before December 4, 1996 and
reply comments must be submitted on or before December 16, 1996.
ADDRESSES: Comments and reply comments should be sent to Office of the
Secretary, Federal Communications Commission, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Tom Mooring, Office of Engineering and
Technology, (202) 418-2450, or Matthew Moses or Joshua Roland, Wireless
Telecommunications Bureau at (202) 418-0660.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's NPRM
in GN Docket No. 96-228, adopted on November 8, 1996, and released on
November 12, 1996. The complete NPRM is available for inspection and
copying during normal business hours in the FCC Reference Center (Room
239), 1919 M Street, N.W., Washington, D.C., and also may be purchased
from the Commission's duplication contractor, International
Transcription Service, (202) 857-3800, 2100 M Street, N.W., Suite 140,
Washington D.C. 20037. The complete NPRM is also available on the
Commission's Internet home page (http://www.fcc.gov/).
Summary of NPRM
I. Introduction
1. By this action, we propose to establish a new Wireless
Communications Service (``WCS'') in the 2305-2320 and 2345-2360 MHz
bands. We also propose to award one or more WCS licenses by competitive
bidding using multiple round electronic auction procedures. We further
propose to permit the WCS licensee to provide any fixed, mobile,
radiolocation services, or satellite Digital Audio Radio Services
(``satellite DARS''), consistent with the international Radio
Regulations. Finally, we propose to establish service and technical
rules to ensure that harmful interference is not caused to other radio
services. We believe that these proposals will enable WCS licensees to
use their spectrum in the most technically and economically efficient
manner practicable. This action is being taken pursuant to the Omnibus
Consolidated Appropriations Act, 1997, P.L. 104-208, 110 Stat. 3009
(1996). (``Appropriations Act'').
II. Background
A. Appropriations Act
2. The Appropriations Act requires the Commission to reallocate the
frequencies at 2305-2320 and 2345-2360 MHz to wireless services that
are consistent with international agreements concerning spectrum
allocations, and to assign the use of such frequencies by competitive
bidding pursuant to Section 309(j) of the Communications Act of 1934
(``Communications Act''). See 47 U.S.C. 309(j). In addition, the
Appropriations Act requires that the Commission, in making these bands
of frequencies available for competitive bidding, seek to promote the
most efficient use of the spectrum, and take into account the needs of
public safety radio services. The Appropriations Act also requires that
the Commission commence the competitive bidding process for the
assignment of the frequencies made available by this action no later
than April 15, 1997. Finally, the Appropriations Act requires the
Commission to conduct the competitive bidding for these frequencies in
a manner that ensures that all proceeds of the bidding are deposited in
accordance with Section 309(j)(8) of the
[[Page 59049]]
Communications Act, not later than September 30, 1997.
3. In order to make this spectrum available for licensing quickly,
the Appropriations Act grants the Commission permission to use
expedited administrative procedures. Specifically, the Appropriations
Act states that rules governing the frequencies made available by this
proceeding will be effective immediately upon publication in the
Federal Register. The Appropriations Act makes inapplicable to this
rule making proceeding the contrary requirements of 5 U.S.C. 553(d)
(Administrative Procedure Act provision that a substantive rule must
generally be published in the Federal Register at least 30 days before
its effective date) and 5 U.S.C. Secs. 801(a)(3) and 806(a) (Contract
With America Advancement Act provisions). The Appropriations Act
further provides that 5 U.S.C. Chapter 6 (regulatory flexibility
analysis requirements) and 44 U.S.C. 3507 and 3512 (information
collection requirements) will not apply to the rules and competitive
bidding procedures governing the frequencies at issue here. Further,
the statute provides that the Commission may grant a license
application for these frequencies no earlier than seven days following
issuance of a public notice of the acceptance for filing of the
application or major amendment thereto, notwithstanding the 30-day
public notice provisions of 47 U.S.C. 309(b). Finally, the statute
provides that the Commission may specify a period that is not less than
five days following issuance of such public notice for the filing of
petitions to deny a license application for these frequencies,
notwithstanding the 30-day public notice provisions of 47 U.S.C.
Sec. 309(d)(1).
B. Existing Spectrum Allocations and Use
i. International
4. With regard to the frequencies under consideration in this
proceeding, the member nations of the International Telecommunication
Union (``ITU'') have adopted the following radio service allocations
that apply to use of this spectrum in the United States. The 2300-2450
MHz band is allocated to the fixed, mobile, and radiolocation services
on a primary basis.1 In addition, the 2310-2360 MHz band is
allocated to the broadcasting-satellite service (sound) and
complementary terrestrial sound broadcasting service on a primary basis
in the United States, and this use is limited to digital audio
broadcasting. Finally, the 2300-2450 MHz band is allocated to the
amateur radio service on a secondary basis.
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\1\ The aeronautical mobile service for telemetry, however, has
priority over other uses by the mobile service in the 2300-2390 MHz
band in the United States and the 2300-2483.5 MHz band in Canada.
See international footnote S5.394. We also note that the ITU is
transitioning to new Simplified Radio Regulations, which use the
``S'' numbering scheme for international footnotes. In anticipation
of the ITU's ultimate conversion to the Simplified Radio
Regulations, we are employing the new ``S'' numbering scheme for
international footnotes adopted in this proceeding. The Commission
lists the international footnotes immediately following the Table of
Frequency Allocations in Section 2.106 of the Rules. See 47 CFR
Sec. 2.106. Until such time as this list is revised in its entirety
to comport with the new ``S'' numbering scheme, those international
footnotes that are amended to the new scheme in individual
proceedings will be listed in Section 2.106 immediately prior to the
list of unamended footnotes employing the old numbering scheme.
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ii. Domestic
5. In the United States, the 2300-2310 MHz band was made available
for exclusive non-Government use as of August 10, 1995.2
Currently, the only non-Government use of this band is by the amateur
radio service, which operates in this spectrum on a secondary basis.
The 2310-2360 MHz band was recently re-allocated to the non-Government
broadcasting-satellite service on primary basis. This allocation is
limited to digital audio broadcasting, commonly known as satellite
DARS, in the United States.3 In the action allocating this
spectrum to satellite DARS, we stated that it would be necessary to
accommodate the aeronautical telemetry services now operating in the
2310-2360 MHz band in the 2360-2390 MHz band. The aeronautical
telemetry community supported this re-accommodation. Continued use of
the 2310-2360 MHz band by aeronautical telemetry and radiolocation
users will be on a secondary basis.4
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\2\ During the reallocation process, the National
Telecommunications and Information Administration (``NTIA'')
recommended the following constraints: (1) the 2300-2310 MHz band
must not be used for airborne or space-to-Earth links; (2)
commercial operations at 2300-2310 MHz must be limited to less than
one watt of power; (3) unwanted emission levels of commercial
applications on any frequency below 2300 MHz must be attenuated
below the mean power of the unmodulated carrier by 70 dB; (4) and
operation of commercial devices in the 2300-2310 MHz band must not
be permitted on Ft. Irwin, California. See Spectrum Reallocation
Final Report, U.S. Department of Commerce, February 1995, at pages
4-15 and 4-16.
\3\ We are considering service, licensing and technical rules
for satellite DARS in IB Docket No. 95-91. See Establishment of
Rules and Policies for the Digital Audio Radio Satellite Service in
the 2310-2360 MHz Frequency Band, IB Docket No. 95-91, Notice of
Proposed Rule Making, 60 FR 35166 (July 6, 1995) (``Satellite DARS
NPRM'').
\4\ The 2320-2345 MHz band will continue to be available for the
Government and non-Government mobile service and Government
radiolocation service on a primary basis, until January 1, 1997, or
until such time as a broadcasting-satellite (sound) service has been
brought into use in such a manner as to affect or be affected by the
mobile and radiolocation services, whichever is the later date.
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III. Discussion
A. Reallocation of Spectrum for WCS
6. The Appropriations Act directs the Commission to reallocate the
2305-2320 and 2345-2360 MHz bands to wireless services that are
consistent with international agreements concerning spectrum
allocations. We interpret this provision to mean that the Commission
may allocate this spectrum to any or all radio services also contained
in the International Table of Frequency Allocations applicable to the
United States. We believe that the allocation for WCS should provide
for the broadest range of services permitted under international
agreements. Accordingly, we propose to allocate the 2305-2320 and 2345-
2360 MHz bands to the fixed, mobile, and radiolocation services on a
primary basis. We also propose to retain the current primary
broadcasting-satellite allocation in the 2310-2320 and 2345-2360 MHz
bands. We request comment on these proposals.
7. We note, however, that the large number of Canadian fixed
service facilities in the 2310-2320 MHz band has previously caused us
to request comment on licensing satellite DARS in the 2320-2360 MHz
band first.5 Accordingly, we request comment on the feasibility of
satellite DARS in the 2310-2320 MHz band and on whether we should limit
satellite DARS to the 2345-2360 MHz portion of the WCS spectrum.
Alternatively, we could limit operations at 2310-2320 MHz to
complementary terrestrial DARS operations subject to coordination with
[[Page 59050]]
Canada. We request comment on these options.
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\5\ See note 3, supra. Satellite CD Radio, Inc., an applicant
for a satellite DARS license, conducted an independent study which
analyzed the coordination of U.S. satellite DARS systems with
Canadian terrestrial systems and submitted it to the Commission. See
Letter to Chief, Satellite Radio Branch regarding the Coordination
of 2310-2360 MHz with Canada (``Coordination Study''), dated
February 14, 1994, IB Docket No. 95-91. According to the
Coordination Study, in 1994, 186 of 213 Canadian terrestrial
stations operated between 2310-2320 MHz. See Coordination Study at
14. See also letter from Satellite Engineering Branch dated February
16, 1996 to representatives of Satellite CD Radio and other DARS
applicants. Recent discussions between our staff and Industry Canada
indicate that there are now approximately 230 Canadian terrestrial
stations operating in the 2310-2360 MHz band. In addition, Canada
has mobile aeronautical telemetry (``MAT'') operations in the
2329.25-2390 MHz band.
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8. As mentioned above, the 2300-2310 MHz band is currently
allocated to the amateur radio service on a secondary basis. In
addition, the 2310-2360 MHz band is permitted to be used by
aeronautical telemetry operations on a secondary basis. We do not
propose any changes to these allocations at this time. We reiterate,
however, that these operations would be secondary to any WCS use of the
2305-2320 and 2345-2360 MHz bands. We seek comment on this approach.
B. Licensing Plan for WCS
i. Permitted Services
9. As indicated above, our spectrum allocation proposals for the
2305-2320 and 2345-2360 MHz bands would permit the provision of a broad
range of fixed, mobile, radiolocation and broadcasting-satellite
services. In keeping with this broad allocation, we propose to permit a
WCS licensee to use this spectrum for any use permitted within any of
the allocation categories of fixed, mobile, radiolocation, and
broadcasting-satellite services, subject to international requirements
and coordination. In establishing the General Wireless Communications
Service (``GWCS'') in August, 1995, we concluded that authorizing a
wide variety of services bounded only by international allocations
comported with our statutory authority and served the public interest
by fostering the provision and mix of services most desired by the
public.6 Similarly, we believe that permitting this flexibility in
service offerings for WCS will foster the provision and mix of WCS
services most desired by the public. We request comment on this
approach. In particular, we request comment on industry experience and
plans with regard to the GWCS, including how our rules permitting any
and all allocable services in that band have served or are expected to
serve the public interest in rapidly making available to the public
those services most desired.
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\6\ See Allocation of Spectrum Below 5 GHz Transferred from
Federal Government Use, Second Report and Order, 60 FR 40712 (August
9, 1995). See also Becht, ``The General Wireless Communications
Service: FCC Spectrum Traffic Cop or Broker?,'' 4 Commlaw Conspectus
95 (1996).
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ii. Licensed Service Areas
10. We also generally believe that licensing the WCS spectrum on
the basis of large geographic service areas would facilitate operation
of the broadest possible range of new communications services in the
WCS spectrum and would promote their introduction in the most rapid and
efficient manner. We request comment on the appropriate size for WCS
licenses. Specifically, we request comment on whether WCS should be
licensed on the basis of the 51 Major Trading Areas (``MTAs'') defined
for the narrowband and broadband Personal Communications Service
(``PCS''),7 regional service areas similar to the 5 regions
adopted for narrowband PCS,8 or on a nationwide basis. For
example, in the case of broadband PCS, we noted that the 51 MTA service
areas, would provide certain economies of scale and scope needed for
the development of low cost equipment, would promote the development
roaming within large geographic areas and would facilitate
interoperability. In the case of narrowband PCS, we found it desirable
to provide a service category that is smaller than nationwide but
larger than the 51 Major Trading Areas on which many of the narrowband
PCS licenses are based. We observed that regional licenses would better
reflect the technologies and business plans of parties intending to
implement narrowband PCS systems serving wide areas that cover multiple
cities. On the other hand, a nationwide service area would facilitate
nationwide roaming and interoperability of services, and avoid the need
for negotiation of roaming agreements among multiple carriers. A
nationwide approach would also allow for maximum economies of scale,
thus minimizing both the cost of providing service and the cost of
equipment.
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\7\ Rand McNally & Company (``Rand McNally'') has divided the 50
States and the District of Columbia into 47 MTAs. See Rand McNally
1992 Commercial Atlas & Marketing Guide at pages 38-39 (123rd
edition). Following the approach we have taken with regard to other
services in which we have used MTA license areas, we would separate
Alaska from the Seattle MTA so that Alaska would be licensed as a
separate MTA-like area. We also would license separately the
following insular areas as MTA-like areas: (1) Puerto Rico and the
United States Virgin Islands; (2) Guam and the Northern Mariana
Islands; and (3) American Samoa. Thus, if this alternative is
adopted, we would license 51 MTAs and MTA-like areas, which is the
approach we adopted in PCS. See 47 CFR Secs. 24.102(c) and
24.202(a). We note that Rand McNally owns the copyright to MTA
Listings. The Personal Communications Industry Association and Rand
McNally entered into an agreement regarding the use of Rand
McNally's market area designations (e.g., MTAs) for licensing of
various mobile radio services. WCS services in the 2305-2320 and
2345-2360 MHz bands are not covered by this agreement. Accordingly,
a license agreement with Rand McNally would be necessary. The
listings of the MTAs, including the counties, parishes, and census
divisions that comprise each MTA, are available for public
inspection in the Office of Engineering and Technology's Technical
Information Center, 2nd Floor, 2000 M Street, N.W., Washington, D.C.
\8\ The five regional narrowband PCS services areas were
developed by aggregating MTAs into five geographic areas, each with
approximately twenty percent of the nation's population. The five
regions defined for narrowband PCS licenses are set forth in 47 CFR
Secs. 24.102(b). Thus, if we were to use the narrowband PCS regional
service areas, as indicated above for MTAs, a license agreement with
Rand McNally would be necessary. Alternatively, if a regional
service area approach is deemed appropriate, we could also, for
example, aggregate the 172 Economic Areas developed by the
Department of Commerce into five geographic areas, each with
approximately twenty percent of the nation's population. For
example, such an approach was proposed for 220 MHz services in PR
Docket No. 89-552. The Bureau of Economic Analysis within the
Department of Commerce has divided the 50 States and the District of
Columbia into 172 Economic Areas (``EAs''). Each EA consists of one
or more economic nodes--metropolitan areas or similar areas that
serve as centers of economic activity--and the surrounding counties
that are economically related to the nodes. (Metropolitan areas
include metropolitan statistical areas, primary metropolitan
statistical areas, and New England county metropolitan areas.)
Commuting patterns are the main factor used in determining the
economic relationship among counties. The EA definition procedure
requires that, as far as possible, each area include both the place
of work and the place of residence of its labor force. See Final
Redefinition of the BEA Economic Areas, 60 FR 13114 (March 10, 1995)
(reducing number of EAs from 183 to 172). We adopted these 172 EAs
as GWCS service areas and have listed them in 47 CFR Sec. 26.102(a).
In addition, we defined three additional, EA-like, GWCS service
areas: (1) Puerto Rico and the United States Virgin Islands; (2)
Guam and the Northern Mariana Islands; and (3) American Samoa. 47
CFR Sec. 26.102(b).
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iii. Spectrum for Each License
11. We also request comment on the appropriate amount of spectrum
to be provided for each WCS license. We specifically request comment on
a range of spectrum options for WCS, that is whether 5, 10, 15 or 30
MHz is the most suitable amount. We are particularly interested in
commenters' views regarding the minimum bandwidth needed to permit WCS
operators to compete effectively. For example, 5 MHz bandwidths would
allow for paging, radiolocation, dispatch, or point-to-point backbone
operations. Larger bandwidths, such as 10 to 15 MHz, would allow more
direct competition with existing fixed and mobile service providers.
Such an amount may also better support some multi-channel satellite
DARS. Alternatively, a single 30 MHz license may offer the most
effective approach for providing new two-way fixed or point-to-
multipoint uses such as interconnection with the Internet and other
digital network services. Finally, we request comment on what size
spectrum block could best support, in part or fully, the provision of
fixed local loop services.
12. We also seek comment on plans for licensing the WCS consistent
with whatever minimum bandwidth should
[[Page 59051]]
be adopted. We specifically request comment, for example, on whether
the WCS spectrum should be assigned on a paired or unpaired basis.
Alternatively, we request comment on an approach where spectrum
bandwidths or pairing of the spectrum are determined through the
competitive bidding process. For example, the 30 MHz of spectrum could
be divided into 5 MHz ``channels'' and the amount of spectrum and the
location of the spectrum (i.e., contiguous or paired) for each WCS
licensee would be determined through the auction process. We seek
comment on all of these alternatives and we further invite commenting
parties to suggest additional alternatives for both the amount of
spectrum and the size of service areas for WCS licensees.
13. Finally, we note that the Appropriations Act requires that the
Commission conclude initial licensing of this spectrum and the
collection of all bidding proceeds on an expedited basis. We believe
that licensing the WCS spectrum for service to large areas, with
relatively few licenses to be awarded, would speed the WCS licensing
process and the collection of bidding proceeds, consistent with the
requirements of the Appropriations Act. In addressing the relative
merits of licensing the WCS spectrum on the basis of each of the
spectrum and service area possibilities discussed above, we ask
interested parties to keep in mind the total number of licenses to be
auctioned and to comment on whether that number of licenses can
reasonably be auctioned within the time periods established by the
Appropriations Act.9 Whatever initial licensing approach is chosen
for WCS, we propose to permit spectrum and service area aggregation
through the auction process, e.g., we would permit parties to bid for
more than one license. In addition, as discussed below, we propose to
allow post-auction partitioning and disaggregation. We request comment
on how the choice of the number of licensees and amount of spectrum
provided could affect competition. Commenting parties should also
address the extent to which the new communications services offered by
WCS would compete with other new and existing communications services.
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\9\ We note, however, that a licensing plan of six 5 MHz
licenses for each of the 51 MTA-like service areas would require the
auctioning of 306 licenses. Given our previous auction experience,
such an auction may be difficult to complete within the timeframe
required under the Appropriations Act and may require different
auction methodology, such as oral outcry, to complete on a timely
basis. We therefore generally will not entertain proposals that
would require the auctioning of more than 306 WCS licenses.
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C. Use of Competitive Bidding
14. The Appropriations Act directs the Commission to assign
licenses to use the 2305-2320 and 2345-2360 MHz bands by competitive
bidding pursuant to Section 309(j) of the Communications Act. Section
309(j) generally provides that auctions may be used to award licenses
among mutually exclusive applicants where the principal use of such
spectrum will involve, or is reasonably likely to involve, a
subscription-based service. We believe that it is reasonable to
conclude that, given the broad service allocations we are proposing and
the manner in which we are proposing to license this spectrum, the
principal use of the WCS will involve, or is reasonably likely to
involve, the transmission or reception of communications signals to
subscribers for compensation. We anticipate that the most likely uses
of WCS will be to provide a mix of fixed and mobile services similar to
other services currently operating on a subscription basis. Fixed (and
radiolocation) services are expected to include services that are
generally similar to the Multichannel Multipoint Distribution Service
(``MMDS''), the Location and Monitoring Service (``LMS''), Digital
Termination Systems (``DTS''), Digital Electronic Messaging Service
(``DEMS'') and certain of the services provided by Local Multipoint
Distribution Service (``LMDS''). Mobile services are expected to
include services generally similar to PCS, cellular, Specialized Mobile
Radio (``SMR'') and paging. All of these services are currently
provided to subscribers for compensation and we expect that the new WCS
offerings would be provided on a similar basis. In this regard, even if
a WCS licensee chooses to offer a satellite DARS service on that
portion of the spectrum available for such use, we believe it likely
that this service would also be offered on a subscription basis. We
request comment on this assessment.
15. As required by the Appropriations Act, we are proposing to
assign licenses to use the WCS frequencies by competitive bidding in
accordance with the principles set forth in Section 309(j) of the
Communications Act. Section 309(j)(3)(A) states that the Commission
shall seek to promote the development and rapid deployment of new
technologies, products, and services for the benefit of the public,
including those residing in rural areas, without administrative or
judicial delays. In this regard, we believe that providing for large
service areas, in conjunction with our broad, flexible allocation
approach described above, will foster the development of the greatest
range of new services and technologies. This approach will also permit
these services and technologies to be deployed in a rapid and efficient
manner to all areas of the nation, including rural areas.
16. Section 309(j)(3)(B) states that the Commission shall seek to
promote economic opportunity and competition and ensure that new and
innovative technologies are readily accessible to the American people
by avoiding excessive concentration of licenses and by disseminating
licenses among a wide variety of applicants, including small
businesses, rural telephone companies, and businesses owned by members
of minority groups and women. Consistent with this objective, we are
proposing to allow WCS licensees to disaggregate portions of their
assigned spectrum and partition geographic service areas through a
transfer of FCC license authority. In addition, licensees would be
permitted to ``franchise'' portions of their spectrum and geographic
service areas on a leased basis, where the WCS licensee would retain
ultimate responsibility for meeting interference and other licensing
requirements. We recently addressed the issues of geographic
partitioning and spectrum disaggregation by Commercial Mobile Radio
Service (``CMRS'') licensees, and noted that providing licensees with
the flexibility to partition their geographic service areas will create
smaller areas that can be licensed to small businesses, including those
entities which may not have the resources to participate, successfully
in spectrum auctions.10 In addition, partitioning may provide a
funding source that will enable licensees to construct their systems
and provide the latest in technological enhancements to the public. We
believe that this ability to disaggregate and franchise the use of this
spectrum may also help to promote the prompt introduction of new
services to rural areas and facilitate participation in these services
by a wide variety of parties including small businesses, rural
telephone companies, and businesses owned by members of minority groups
and women.
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\10\ See Geographic Partitioning and Spectrum Disaggregation by
Commercial Mobile Radio Services Licensees; Implementation of
Section 257 of the Communications Act--Elimination of Market Entry
Barriers (Elimination of Market Barriers), WT Docket No. 96-148,
Notice of Proposed Rule Making, 61 FR 38693 (July 25, 1996).
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17. Finally, we note that Section 309(j)(6)(F) of the
Communications Act specifically states that the use of competitive
bidding shall not be
[[Page 59052]]
construed to prohibit the Commission from issuing nationwide, regional,
or local licenses. We also note that using large geographic service
areas would simplify the licensing process, and help to ensure that the
auction is completed in a timely manner, as required by the
Appropriations Act. Accordingly, we believe that the WCS competitive
bidding options described above fully comport with the requirements and
intent of Section 3001 of the Appropriations Act and Section 309(j) of
the Communications Act. We seek comment on this assessment.
D. Promote Efficient Spectrum Use
18. The Appropriations Act states that in making these frequencies
available for competitive bidding, the Commission shall seek to promote
the most efficient use of the spectrum. In general, we believe that
assigning frequencies through competitive bidding ensures that spectrum
is made available to those who value it most highly and therefore are
most likely to put it to its most economically efficient use. In
addition, as indicated above, we are proposing that the WCS spectrum
may be used to provide any type of fixed, mobile, radiolocation or
satellite DARS services. We believe there are significant competitive
alternatives for each of these types of services that will ensure that
WCS licensees have incentives to operate in an efficient and effective
manner. We therefore believe that there will be sufficient market
incentives to promote the most efficient use of the 2305-2320 and 2345-
2360 MHz bands, as required by the Appropriations Act.
E. Public Safety Needs
19. The Appropriations Act instructs the Commission to take into
account the needs of public safety radio services in making the WCS
spectrum available through competitive bidding. In addition, a letter
from the Chairman and Ranking Member of the House Committee on Commerce
reiterates Congressional intent that we consider the needs of public
safety in auctioning this spectrum. In particular, this letter suggests
that the Commission, consistent with its obligation to promote the
public interest, ``pay particular attention to how the needs of public
safety as well as commercial applicants may best be met in determining
how to design this auction.'' As Congress directed, we will consider
the needs of public safety radio services in this proceeding by seeking
comment on a broad array of options. We note that the Appropriations
Act marks the first time that Congress has specifically directed the
Commission to consider the needs of public safety radio services in
connection with licensing a particular spectrum band. We invite
interested parties, including public safety entities, to comment on how
we could best effectuate the Congressional intent with regard to public
safety needs related to this spectrum.
20. The Public Safety Wireless Advisory Committee recently issued a
report (``PSWAC Final Report'') that analyzes the current and future
communications resource and underlying spectrum needs of entities whose
primary mission is public safety. The PSWAC Final Report makes several
recommendations for satisfying the immediate and future needs of the
public safety community through the year 2010 including (1) the
provision of additional spectrum, (2) improved interoperability, (3)
more flexible licensing policies, (4) increased sharing of spectral and
other resources, (5) greater use of commercial services and (6)
alternative methods for funding public safety communications. In
fulfilling Congress's mandate to take into account the needs of public
safety in auctioning this spectrum, we seek comment on which of these
objectives can best be achieved through an auction of this spectrum. We
ask commenters to make specific recommendations regarding how we can
design auction and licensing rules that will benefit the public safety
community consistent with the recommendations contained in the PSWAC
Final Report.
21. One of the needs identified by public safety is additional
spectrum. We note that the PSWAC Final Report did not recommend this
band for public safety use, but we also recognize that Congress had not
directed the Commission to reallocate and auction this spectrum when
the PSWAC Final Report was submitted. We therefore seek comment on
whether we should consider an allocation of some portion of this
spectrum to meet the needs of public safety providers. In light of the
specific language of this statute, we seek comment on whether we have
statutory authority to make such an allocation. Alternatively, should
the Commission assign this spectrum with a public interest obligation
to contribute towards the other needs identified by the public safety
community? We seek comment on whether the Commission would have the
authority to adopt such an approach.
22. In addition, it may be that in the WCS spectrum some of the
communications needs of public safety entities could be met by
commercial systems serving the general public and possibly with some
customized features for the exclusive use of public safety users.
Public safety organizations may find it desirable to subscribe to a
service offered by the commercial provider or lease capacity or
spectrum from a commercial provider. We note that a key recommendation
of the PSWAC Final Report suggested that ``a range of non-mission
critical communications can be satisfied by commercial systems'' and
concluded that: Commercial wireless systems, such as cellular, Personal
Communications Services (PCS), mobile satellite, paging, data, and
network applications, are evolving rapidly and may offer tangible and
reasonable alternatives to the demand for additional spectrum to meet
present and future Public Safety requirements.
We seek comment on whether and how commercial services operating in
this spectrum could address some of the communications needs of the
public safety community. Specifically, what types of commercial
services in this band would public safety entities find useful? Should
the Commission take steps to encourage the use of the spectrum for such
services? If so, what steps should it take? For example, should public
safety needs be considered in determining the geographic scope and size
of WCS licenses? If so, what size spectrum blocks or particular
geographic license areas would be most conducive to the types of
services the public safety community would find useful? Should the
Commission offer bidding credits to commercial providers who propose to
provide these types of services?
F. Service and Technical Rules
i. Eligibility
23. We propose that there be no restrictions on eligibility for a
WCS license, other than those foreign ownership restrictions set forth
in Sections 310(a), 310(b)(1) and 310(b)(2) of the Communications Act.
We believe that opening the WCS market to a wide range of applicants
will permit and encourage entrepreneurial efforts to develop new
technologies and services, while helping to ensure the highest and best
use of this spectrum. We also believe that, given the relatively large
amount of spectrum that is available to provide services similar to
those that could be operated on the WCS spectrum, opening up
eligibility to all applicants, in this instance, will not lead to
concerns about excessive concentration of market power.\11\ On the
[[Page 59053]]
other hand, disallowing existing licensees or other entities from
competing for a WCS license could deny the public the benefits of
economies of scope and scale from the use of this spectrum.
---------------------------------------------------------------------------
\11\ In this regard, we also see no reason to preclude the
pending satellite DARS applicants from participating in the
competitive bidding process for the 2310-2320 and 2345-2360 MHz
bands.
---------------------------------------------------------------------------
ii. CMRS Spectrum Cap
24. The CMRS spectrum cap \12\ was adopted in 1994 to ``discourage
anti-competitive behavior while at the same time maintaining incentives
for innovation and efficiency.'' We were concerned that ``excessive
aggregation [of spectrum] by any one of several CMRS licensees could
reduce competition by precluding entry by other service providers and
might thus confer excessive market power on incumbents.'' The spectrum
cap is intended to promote a vigorous competitive market for the
provision of commercial mobile radio services, and to ensure that each
mobile service provider (i.e., cellular, PCS or SMR licensee) has the
opportunity to obtain sufficient spectrum to compete effectively and
that no single provider is able to preclude the provision of service by
effective competitors or significantly reduce the number of competitors
by aggregating spectrum.
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\12\ The spectrum cap currently provides that ``[n]o licensee in
the broadband PCS, cellular, or SMR services (including all parties
under common control) regulated as CMRS shall have an attributable
interest in a total of more than 45 megahertz of licensed broadband
PCS, cellular and SMR spectrum regulated as CMRS with significant
overlap in any geographic area.'' See 47 CFR Sec. 20.6(a); see also
Amendment of Parts 20 and 24 of the Commission's Rules--Broadband
PCS Competitive Bidding and the Commercial Mobile Radio Service
Spectrum Cap, WT Docket No. 96-59, Report and Order, 61 FR 33859
(July 1, 1996) (maintaining the 45 megahertz CMRS spectrum cap and
eliminating the 35 megahertz cellular/PCS spectrum cap and the 40
megahertz PCS spectrum cap).
---------------------------------------------------------------------------
25. We seek comment on whether WCS spectrum used to provide CMRS
should count against the 45 megahertz spectrum cap that applies to
certain CMRS licensees. We note that applying the spectrum cap could
well exclude firms with the most experience and innovative technologies
from participating in the auction and having the opportunity to use
this spectrum to serve the public. On the other hand, if a CMRS
provider with the maximum amount of spectrum permitted under our
current CMRS spectrum cap were to acquire WCS spectrum, that provider
possibly could gain a dominant position in the CMRS marketplace. We are
interested in commenters' views on whether the WCS spectrum is likely
to be used to provide CMRS services, and, if so, whether the current
CMRS market is sufficiently competitive that the considerations that
gave rise to adoption of the CMRS spectrum cap are not applicable to
the WCS spectrum. Commenters should also address the potential costs of
applying the cap to the WCS spectrum in terms of lost economies of
scale and scope that might exist if CMRS licensees were allowed to
acquire this spectrum.
26. To the extent that commenters believe that the WCS spectrum
will be used for CMRS services, we also seek comment on any alternative
mechanisms that would be appropriate to protect against the
concentration of control of licenses for CMRS spectrum, in order to
ensure vigorous competition in wireless services and to implement the
Communications Act.
iii. Disaggregation and Partitioning
27. As indicated above, we propose to permit the WCS licensee or
licensees to partition their service areas and to disaggregate their
spectrum. We believe that such an approach would serve to promote the
efficient use of the spectrum. It would also provide a means to
overcome entry barriers through the creation of smaller licenses that
require less capital, thereby facilitating greater participation by
smaller entities such as small businesses, rural telephone companies
and businesses owned by minorities and women.
28. We therefore propose to permit WCS licensees to partition their
service areas into smaller geographic service areas. We also propose to
permit WCS licensees to disaggregate their spectrum into smaller
blocks. Thus, a WCS licensee would be allowed to transfer the license
for all or a portion of its spectrum in a given geographic area to
another party. For the purposes of partitioning and disaggregation, we
also propose to require that WCS systems be designed to not exceed a
signal level of 47 dBuV/m at the licensee's service area boundary,
unless the affected adjacent service area licensees have agreed to a
different signal level. We request comment on what limits, if any,
should be placed on a WCS licensee's ability to partition its service
area and disaggregate its spectrum.
29. We note that in WT Docket No. 96-148, we recently proposed to
permit both geographic partitioning and spectrum disaggregation by CMRS
licensees.13 In the case of broadband PCS service, we proposed to
permit geographic partitioning along county lines and spectrum
disaggregation to a minimum of one megahertz. In making this proposal,
we tentatively concluded that requiring partitioning of licenses along
county lines and spectrum disaggregation of not less than one megahertz
would reduce the administrative burden on the Commission and minimize
interference concerns among licensees. We also indicated that once an
initial license is assigned, we believe that licensees should
ordinarily be free to disaggregate their spectrum and to partition
their service areas in order to operate within the parameters that they
determine to be efficient. We request comment on whether such an
approach should apply to the WCS spectrum. We also request comment on
whether, if we were to establish initial nationwide WCS service areas,
geographic partitioning should be limited to larger areas such as the
51 MTA service areas. Such an approach might facilitate the relicensing
of such areas if the licensee were, for example, to go out of business.
This approach may also reduce the administrative burden on the
Commission or for international coordination of WCS operations. As
indicated above, we are also proposing to allow WCS licensees to
franchise portions of their spectrum and geographic service areas on a
leased basis. In such cases, we see no need to limit such operations to
any minimum amount of spectrum or any particular geographic area since
the WCS licensee would retain ultimate control and responsibility for
all operations and there is no additional administrative burden on the
Commission. We request comment on these proposals.
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\13\ See Geographic Partitioning and Spectrum Disaggregation by
Commercial Mobile Radio Service Licensees, WT Docket No. 96-148,
Notice of Proposed Rule Making, 61 FR 38693 (July 25, 1996).
---------------------------------------------------------------------------
iv. License Term
30. The Communications Act allows the Commission to establish a
license term of up to 10 years, except for broadcasting stations, which
may have a license term of up to 8 years. Previously, the Commission
established a 10 year license term for CMRS, but has used a 5 year
license term for private services. For services in the 2305-2320 and
2345-2360 MHz bands, we propose to establish a license term of 10
years, with a renewal expectancy similar to that of PCS and cellular
telephone licensees. We believe that this relatively long license term,
combined with a high renewal expectancy, should help provide a stable
regulatory environment that will be attractive to investors and,
thereby, encourage development of this new frequency band. With respect
to the renewal of a WCS license, we propose to consider the amount and
type of service being provided by the licensee
[[Page 59054]]
in connection with its license renewal application. In this connection,
we propose to require WCS licensees to submit a showing five years from
license grant and ten years from license grant demonstrating the
construction of facilities and the level of service being provided.
31. In the event that a WCS license is partitioned or
disaggregated, we propose that any partitionee/disaggregatee be
authorized to hold its license for the remainder of the partitioner's/
disaggregator's original ten-year license term. We tentatively conclude
that this approach is appropriate because a licensee, through
partitioning, should not be able to confer greater rights than it was
awarded under the terms of its license grant. Moreover, we tentatively
conclude that this approach would be the simplest to administer. We
also observe that this approach is similar to the partitioning
provisions we recently adopted for the Multipoint Distribution Service
14 and proposed for Broadband PCS. We solicit comment on this
tentative conclusion.
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\14\ See Amendment of Parts of Parts 21 and 74 of the
Commission's Rules With Regard to Filing Procedures in the
Multipoint Distribution Service and in the Instructional Television
Fixed Service, MM Docket No. 94-131, Report and Order, 60 FR 36524
(July 17, 1995).
---------------------------------------------------------------------------
v. Regulatory Status
32. The Communications Act applies differing requirements based on
the type of service and the regulatory status of licensees, e.g.,
whether the service is common carrier or private. A WCS operator would
be allowed to provide a variety or combination of fixed, mobile,
satellite DARS, and radiolocation services. Therefore, we propose to
rely on the applicant to identify the type of WCS service or services
it will provide, with sufficient detail to enable the Commission to
determine the applicant's regulatory status. This approach should allow
us to carry out our responsibilities while imposing the least
regulatory burden on the licensee. To clarify and simplify the initial
regulatory status, we will presume that a WCS licensee is providing a
CMRS service, which we believe will be a likely use of this spectrum,
as discussed above. We delegate to the Wireless Telecommunications
Bureau authority to develop forms appropriate to collect this data, and
to monitor changes in licensee status. Moreover, we propose that the
broadcasting-satellite service allocation be governed by the satellite
DARS regulations currently under development in IB Docket No. 95-91. We
request comment on these proposals.
vi. Out-of-Band Emission Limits
33. Since WCS will operate in the 2305-2320 and 2345-2360 MHz
bands, we need to consider interference protection to the following
adjacent operations: (1) Satellite DARS at 2320-2345 MHz, (2)
Government Deep Space Network receivers at 2290-2300 MHz, and (3)
Government and commercial telemetry above 2360 MHz.
34. In order to provide protection to these adjacent operations, we
propose that all emissions outside of the WCS bands of operation be
attenuated below the maximum spectral power density (p) within the band
of operation, as follows:
(1) For fixed operations, including radiolocation: By a factor not less
than 43 + 10 log (p) dB on all frequencies between 2300 and 2305 MHz
and above 2360 MHz; and not less than 70 + 10 log (p) dB on all
frequencies below 2300 MHz and between 2320-2345 MHz band.
(2) For mobile operations, including radiolocation: By a factor not
less than 43 + 10 log (p) dB on all frequencies between 2300 and 2305
MHz, between 2320 and 2345 MHz, and above 2360 MHz; and not less than
70 + 10 log (p) dB on all frequencies below 2300 MHz.
(3) For WCS satellite DARS operations: The limits set forth in Section
25.202(f) of the Commission's rules apply.
For fixed and mobile operations, including radiolocation, the above
requirements are based on peak measurements using a resolution
bandwidth of at least 1 MHz. In addition, to further protect operations
in adjacent bands, we propose to require that the frequency stability
of transmission within the 2305-2320 and 2345-2360 MHz bands be
sufficient to ensure that the fundamental emissions remain within the
authorized frequency bands. We request comment on these proposed out-
of-band emissions limits.
35. Finally, in order to protect Government Deep Space Network
receivers at 2290-2300 MHz, we propose to prohibit use of the 2305-2310
MHz band for airborne or space-to-Earth links. Further, we propose that
WCS operations within 50 kilometers (31 miles) of 35 deg.20' North
Latitude and 116 deg.53' West Longitude (coordinates of the Deep Space
Network receive site) be subject to coordination. Alternatively, we
request comment on whether it would be more appropriate to require less
out-of-band attenuation in the case of mobile transmitters, (i.e., such
transmitters would be subject to only the 43 + 10 log (p) dB
requirement) but require that the coordination zone be extended to 120
kilometers (75 miles). Parties should address the trade-offs with
regard to lower mobile equipment costs and the additional coordination
constraints imposed by this alternative.
vii. International Coordination
36. Until international agreements are completed, WCS operations
will be required to protect existing non-U.S. operations in the 2305-
2320 and 2345-2360 MHz bands, and WCS operations in the border areas
would be subject to coordination with those countries, as appropriate.
In addition, satellite DARS operations on WCS spectrum would be subject
to international satellite coordination procedures. With regard to this
matter, parties should be aware that international coordination could
be a complex and lengthy process and could vary significantly depending
upon the types of WCS services that are to be provided. International
coordination requirements, therefore, should be taken carefully into
account in developing business plans for the provision of WCS. This is
particularly important for parties contemplating the provisions of WCS
in border areas or the provision of satellite DARS operations.15
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\15\ Potential satellite DARS applicants should consult the
letter from Satellite Engineering Branch dated February 16, 1996 to
representatives of Satellite CD Radio and other DARS applicants and
responses thereto that address coordination in these bands for
satellite DARS. These documents are filed in IB Docket No. 95-91,
GEN Docket 90-357, RM No. 8610, PP-24, PP-86, and PP-87.
---------------------------------------------------------------------------
viii. RF Safety
37. With regard to RF safety requirements, we propose to treat
specific WCS services and devices, operating within the 2305-2320 MHz
and 2345-2360 MHz bands, in a comparable manner to other services and
devices that have similar operating characteristics. Sections
1.1307(b), 2.1091, and 2.1093 of our rules list the services and
devices for which an environmental evaluation must be performed.
Accordingly, we propose that an environmental evaluation for RF
exposure would be required for the following WCS operations: (1)
Transmitting terrestrial stations in the satellite DARS service; (2)
fixed operations, including base stations and radiolocation, that have
an effective radiated power (``ERP'') greater than 2000 watts; and, (3)
mobile and portable devices that have operating characteristics or
functions similar to cellular, PCS or ``covered'' SMR services, i.e.,
operations that are typified by long periods of use or are
interconnected to the public switched telephone network. We invite
comment
[[Page 59055]]
on this proposal and request suggestions for alternatives that would
ensure public safety with respect to exposure to RF radiation.
G. Auction Procedures
38. In accordance with the Appropriations Act, and pursuant to the
expedited schedule imposed thereby, we propose below an auction design
and pre-auction procedures for the WCS service. Specifically, we
propose that the method of competitive bidding be a simultaneous
multiple round electronic auction (if more than one license is
offered). We base this proposal on the need to quickly auction the WCS
licenses and to promote the efficient use of the spectrum. The
Appropriations Act requires the Commission to commence the WCS auction
no later than April 15, 1997, and to conduct the auction in a manner
that ensures that all proceeds are deposited into the United States
Treasury no later than September 30, 1997.
i. Competitive Bidding Design
39. We anticipate conducting the auction for the WCS in conformity
with the general competitive bidding rules in Part 1, Subpart Q of the
Commission's Rules, and substantially consistent with the auctions that
have been employed in other wireless services. In the Second Report and
Order, 59 FR 22980 (May 4, 1994), in the competitive bidding
docket,16 we indicated that we would tailor the design of each
auction to fit the characteristics of the licenses to be awarded, and
we established criteria for selecting the auction design most
appropriate for each particular service. In general, we indicated that
the auction procedures chosen for each service should be those that
will best promote the policy objectives identified by Congress.17
We further concluded in the Second Report and Order that in most cases
the goals set forth in Section 309(j) will be best achieved by
designing auctions that award authorizations to the parties that value
them most highly. As we explained, such parties are most likely to
deploy new technologies and services rapidly, and to promote the
development of competition for the provision of those and other
services.
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\16\ Implementation of Section 309(j) of the Communications
Act--Competitive Bidding, PP Docket No. 93-253, FCC 94-61, Second
Report and Order, 59 FR 22980 (May 4, 1994) (``Second Report and
Order'').
\17\ Congress's objectives are, in this instance, set forth in
two places: Section 309(j) of the Communications Act (47 U.S.C.
Sec. 309(j)) and Section 3001 of the Appropriations Act.
---------------------------------------------------------------------------
40. We propose to adopt the simultaneous multiple round competitive
bidding design used in the PCS auctions for the WCS auction. Multiple
round bidding should provide more information to bidders than single
round bidding during the auction about the values of the licenses. With
better information, bidders have less incentive to shade their bids
downward in order to avoid the ``winner's curse,'' that is, the
tendency for the winner to be the bidder who most overestimates the
value of the item being auctioned. Finally, multiple round bidding is
likely to be more fair than single round bidding. Every bidder has the
opportunity to win if it is willing to pay the most for it. Thus, we
tentatively conclude that multiple round bidding would be the best
method of auctioning the WCS license or licenses, and we seek comment
on this tentative conclusion.
41. We also tentatively conclude that, if more than one WCS license
is to be awarded, all WCS licenses should be awarded in a single
simultaneous multiple round auction. A single simultaneous auction will
facilitate any aggregation strategies that bidders may have, and it
would provide the most information to bidders about license values at a
time that they can best put that information to use. We seek comment on
this tentative conclusion.
42. If we adopt simultaneous multiple round bidding as our method
of auctioning WCS licenses, we believe that bidding should be allowed
only by electronic means. Though oral outcry auctions can be simple and
rapid, it is not possible to auction multiple licenses simultaneously
in an oral auction. Further, given the potentially large value of the
WCS spectrum, we believe that an electronic multiple round auction is
preferable because it would permit bidders time between rounds to
confer with principals and reassess their valuation models and bidding
strategies. This is especially important if more than one license is to
be awarded. Thus, we tentatively conclude that electronic bidding would
be the best method of submitting bids for this auction. In the event
that we decide to use electronic multiple round bidding, we tentatively
conclude that this auction should be conducted by remote bidding (by
computer) without the option of telephonic bidding. We also propose,
however, to reserve the discretion to conduct the WCS auction on-site
should circumstances warrant. We seek comment on all of these proposals
and tentative conclusions.
ii. Bidding Procedures
43. We tentatively conclude that the WCS auction will follow the
general competitive bidding procedures of Part 1, Subpart Q. We seek
comment on this tentative conclusion.
44. Minimum Opening Bid and Minimum Bid Increments. We also
tentatively conclude to reserve the discretion to establish a minimum
opening bid for the WCS license or licenses. A minimum opening bid
would cause bidders to start bidding at a substantial fraction of the
final price of the license or licenses, thus ensuring that the auction
proceeds quickly and increasing the likelihood that the public receives
fair market value for the license or licenses. We seek comment on this
tentative conclusion. In addition, we ask interested parties to suggest
the appropriate level of a minimum opening bid for the WCS license or
licenses. We also tentatively conclude that the Wireless Bureau should
be given discretion to establish, raise and lower minimum bid
increments in the course of the auction. We seek comment on this
approach.
45. Tie Bids. Where a tie bid occurs, we tentatively conclude that
the high bidder should be determined by the order in which the bids
were received by the Commission. We request comment on this tentative
conclusion.
iii. Procedural and Payment Issues
46. Subpart Q of Part 1 of the Commission's rules also establishes
procedural and payment rules for FCC auctions generally, and we
tentatively conclude that, with certain modifications proposed below,
these rules should apply to the WCS auction. We seek comment on this
tentative conclusion.
47. Pre-Auction Application Procedures. Applicants would be
required to file a short-form application, FCC Form 175, prior to the
auction. In addition, although we have previously allowed for both
electronic and manual filing of such applications, we tentatively
conclude that we should require electronic filing of all applications
for this auction. We believe that electronic filing of applications
would serve the best interests of auction participants as well as
ensure that the WCS auction will be completed within the timeframe
mandated under the Appropriations Act. We have developed user-friendly
electronic filing software and Internet World Wide Web forms to give
applicants the ability to easily and inexpensively file and review
applications. This software helps applicants ensure the accuracy of
their applications as they are filling them out, and enables them to
avoid discovering errors and omissions after the applications are
already filed.
[[Page 59056]]
Particularly in light of the legislative deadline of April 15, 1997,
for commencement of this auction, we believe that requiring electronic
filing would be helpful to applicants as well as the Commission. By
shortening the time required for the Commission to process applications
before the auction, electronic filing would increase the lead time
available to applicants to pursue business plans and arrange necessary
financing before the short-form deadline. We seek comment on these
proposals and tentative conclusions.
48. As part of the information provided in the short-form
application, we propose to require that an applicant's electronic
submission of FCC Form 175 include a certification that the applicant
is not in default on any Commission licenses and that it is not
delinquent on any extension of credit from any federal agency. In the
Second Report and Order, we decided that we should require sufficient
information on the short-form application to make a determination that
``the application is not in violation of Commission rules and that
applications not meeting those requirements may be dismissed prior to
the competitive bidding.'' Part of this documentation includes
certification that the bidder has the legal, technical, financial, and
other qualifications to bid in the auction. A certification regarding
defaulted licenses and delinquent payments to federal agencies would
enable us to better evaluate the financial qualifications of potential
bidders, because it would allow us to determine whether any bidder may
later be subject to a monetary judgment or collection procedures that
may impair its financial ability to provide service.
49. Upfront Payment. The Part 1 rules require the submission of an
upfront payment as a prerequisite to participation in spectrum
auctions. We propose to set the amount of the WCS upfront payment based
on the general formula we adopted in the Competitive Bidding Second
Report and Order of $.02 per megahertz per population. We seek comment
on this proposal. We also seek comment on alternative methods of
establishing an upfront payment, and in particular, on how the
Commission may estimate the value of the spectrum to be auctioned.
50. We also propose to require that bidders deposit their upfront
payments in our lock-box bank by wire transfer by a date to be
announced by public notice. Although in the past we have permitted
payment by cashier's check, we believe that requiring wire transfers
would benefit bidders by streamlining and expediting the administration
of the auction. Our experience has shown that verification of payments
remitted to us by cashier's check is time-consuming and cumbersome and
requires the allotment of extra processing time prior to the start of
the auction. Permitting payment by cashier's check would require that
upfront payments be made at an earlier point, which would decrease
applicants' lead time to pursue business plans and arrange necessary
financing before the start of the auction. In addition, we believe
that, given the large number of financial institutions offering wire
transfer services, a requirement that bidders remit their upfront
payments by wire transfer would result in minimal, if any, extra cost
to auction applicants. Such a cost is far outweighed by the benefit of
speeding the auction process through quicker verification of payments.
We seek comment on this tentative conclusion.
51. Down Payment and Full Payment. We tentatively conclude that to
help ensure that auction winners are able to pay the full amount of
their bids requires every winning bidder in an auction to tender a down
payment sufficient to bring its total amount on deposit with the
Commission up to 20 percent of its winning bid. We therefore
tentatively conclude that the winning bidder or bidders in the WCS
auction should be required to submit a down payment equal to 20 percent
of its winning bid within 10 business days after the issuance of a
public notice announcing the winning bidder for the license. We seek
comment on this tentative conclusion.
52. If a winning bidder makes its down payment in a timely manner,
we propose that it file an FCC Form 600 long-form application and
follow the long-form application procedures in Section 1.2107. After
reviewing the winning bidder's long-form application, and after
verifying receipt of the winning bidder's 20 percent down payment, the
Commission would announce the application's acceptance for filing, thus
triggering the filing window for petitions to deny. Under Section
3001(c) of the Appropriations Act, parties would have five days
following public notice that an application was accepted for filing to
file a petition to deny. Because Section 3001(c) provides for a period
of seven (7) days following such public notice before any licenses may
be awarded, we propose to allow three (3) days for parties to file a
response to any petition to deny. If, pursuant to Section 309(d) of the
Communications Act, the Commission dismissed or denied any and all
petitions to deny, the Commission would announce by public notice that
it is prepared to award the license, and the winning bidder would then
have 10 business days to submit the balance of its winning bid. If the
bidder does so, the license would be granted. If the bidder fails to
submit the required down payment or the balance of the winning bid or
the license is otherwise denied, we would assess a default payment as
discussed below. We request comment on these proposals.
53. Amendments and Modifications of Applications. To encourage
maximum bidder participation, we propose to allow applicants to amend
or modify their short-form applications as provided in Section 1.2105.
In the broadband PCS context, we modified our rules to permit ownership
changes that result when consortium investors drop out of bidding
consortia, even if control of the consortium changes due to this
restructuring.18 We propose to adopt the same exception to our
rule prohibiting major amendments in the WCS auction. We seek comment
on all of this proposal.
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\18\ See Implementation of Section 309(j) of the Communications
Act--Competitive Bidding, PP Docket No. 93-253, Fourth Memorandum
Opinion and Order, 59 FR 53364 (October 24, 1994).
---------------------------------------------------------------------------
54. Bid Withdrawal, Default and Disqualification. We tentatively
conclude that the withdrawal, default, and disqualification rules for
the WCS auction should be based upon the procedures established in our
general competitive bidding rules. With regard to bids which are
submitted in error, we propose to apply the guidelines which we
recently fashioned to provide for relief from the bid withdrawal
payment requirements under certain circumstances.19
---------------------------------------------------------------------------
\19\ See Atlanta Trucking Associates, Inc. and MAP Wireless
L.L.C. Requests to Waive Bid Withdrawal Payment Provisions, Order,
61 FR 25807 (May 23, 1996), recon. pending. See also Georgia
Independent PCS Corporation Request to Waive Bid Withdrawal Payment
Provision, Order, 61 FR 25810 (May 23, 1996), app. rev. pending.
---------------------------------------------------------------------------
iv. Regulatory Safeguards
55. Anti-Collusion. In the Second Report and Order, we adopted
anti-collusion rules in connection with competitive bidding, explaining
that these rules, which are codified at 47 CFR Sec. 1.2105, would
enhance the competitiveness of both the auction process and the post-
auction market structure.20 We propose to apply these
[[Page 59057]]
same rules to the auction of the WCS spectrum.
---------------------------------------------------------------------------
\20\ See 47 CFR Sec. 1.2105(c). See also Second Report and
Order, 59 FR 22980 (May 23, 1996); Second Memorandum Opinion and
Order, 59 FR 7245 (August 26, 1996); ``Wireless Telecommunications
Bureau Clarifies Spectrum Auction Anti-Collusion Rules,'' Public
Notice, 11 FCC Rcd 9645 (1995); ``Wireless Telecommunications Bureau
Ponders Guidance on the Anti-Collusion Rule for D, E and F Block
Bidders,'' Public Notice, 11 FCC Rcd 10134 (1996).
---------------------------------------------------------------------------
56. Performance Requirements. In implementing auction procedures,
the Commission is required under Section 309(j) of the Communications
Act to include ``safeguards to protect the public interest in the use
of the spectrum'' and performance requirements ``to ensure prompt
delivery of service to rural areas, to prevent stockpiling or
warehousing of spectrum by licensees or permittees, and to promote
investment in and rapid deployment of new technologies and services.''
We have previously found that these objectives could be satisfied
through build-out requirements (see, e.g., Implementation of Section
309(j) of the Communications Act--Competitive Bidding, Fifth Report and
Order, PP Docket No. 93-253, FCC 94-178, 9 FCC Rcd 5532, 5570 (1994);
Amendment of Parts 21 and 74 of the Commission's Rules With Regard to
Filing Procedures in the Multipoint Distribution Service and in the
Instructional Television Fixed Service and Implementation of Section
309(j) of the Communications Act--Competitive Bidding, Report and
Order, PP Docket No. 93-253 and MM Docket No. 94-131, FCC 95-230, 10
FCC Rcd 9589, 9659-60 (1995); Allocation of Spectrum Below 5 GHz
Transferred from Federal Government Use, Second Report and Order, ET
Docket No. 94-32, FCC 95-319, 11 FCC Rcd 624, 669-670 (1995)). We note,
however, that we have never concluded that such requirements are
mandated by Section 309(j).
57. Build-out requirements may encourage the provision of service
to areas that would not necessarily receive service expeditiously
solely through the operation of market forces. In addition, build-out
requirements may also prevent stockpiling or warehousing of spectrum by
allowing licenses to be recovered and made available to entities more
willing and able to provide service expeditiously. As is discussed
below, however, we have some concern as to whether applying these
requirements to the licenses of the WCS spectrum is the best way to
address Congress's concerns.
58. In this NPRM, we propose that a WCS licensee have the
flexibility to offer a range of services, rather than being restricted
to a particular use. See para. 9, supra. Given the broad range of
services that may be deployed over WCS spectrum, it may be that
performance requirements in the form of construction benchmarks are not
necessary to meet Section 309(j)'s objectives regarding warehousing and
rapid deployment. Where we allow flexible use and the ultimate use (or
uses) of a license is uncertain, simply requiring construction by
itself does not sufficiently encourage the licensee to deploy assets in
any particular market (e.g., the voice or data market) or to provide
any particular service. In addition, requiring construction by itself
does not ensure that licenses are put to use in an efficient and
procompetitive manner. Moreover, WCS construction requirements alone
may not be effective to ensure the provision of service to rural areas.
59. We also note that build-out requirements can be harmful because
they might result in one of several forms of uneconomic construction:
construction in geographic areas different than those that would be
served in a competitive environment; deployment at a different rate
than would occur in a competitive environment; or deployment of
technology and equipment differing from that which competition would
dictate. Further, strict build-out requirements might have the
unintended consequence of causing firms to build first in urban areas
where the mandatory benchmarks could be met most cheaply, and thus slow
the development of service to rural areas. It may be difficult to
devise construction requirements that avoid these negative effects.
60. We believe we may be able to appropriately address the
statutory concerns of preventing warehousing of spectrum and promoting
rapid deployment of new technologies and services in other ways. First,
the concern regarding warehousing may be addressed by awarding licenses
through auctions. Auctioning itself provides economic incentives for
licensees to utilize spectrum efficiently and to provide service
rapidly. Second, the goal of promoting service to rural areas can be
furthered by our proposal to allow partitioning and disaggregation.
And, of course, the broad universal service policies of the
Telecommunications Act of 1996 will contribute substantially to
addressing this objective as well.
61. Commenters should address whether the auction and service rules
that we are proposing here, together with our overall competition and
universal service policies, constitute effective safeguards and
performance requirements for WCS licensing, or whether specific
construction requirements are also needed. If we decide not to impose
construction requirements, we would reserve the right to review this
policy in the future if we receive complaints related to Section
309(j)(4)(B), or if our own monitoring initiatives or investigations
indicate that a reassessment is warranted. Thus, we propose to further
reserve the right to impose construction requirements on a WCS license
or licenses in the future if evidence of actual competitive or rural
service problems arises and if construction requirements can
effectively ameliorate those problems. We seek comment on these
proposals and tentative conclusions.
v. Treatment of Designated Entities
62. Section 309(j) of the Communications Act provides that, when
promulgating competitive bidding regulations, the Commission must
``ensure that small businesses, rural telephone companies, and
businesses owned by members of minority groups and women [commonly
referred to as `designated entities'] are given the opportunity to
participate in the provision of spectrum-based services.'' As noted
above, our allocation proposal contemplates that a WCS licensee will
have broad flexibility in determining the range of services it will
offer, and that licenses will be issued for broad geographic areas.
Commenters should address the extent to which potentially high capital
costs for constructing WCS systems affect the advisability of adopting
specific provisions applicable to the WCS auction. We note that our
proposed partitioning and disaggregation rules for WCS licensing may
provide designated entities with additional opportunities to
participate in the provision of WCS service.
63. The Appropriations Act requires that the Commission conduct the
auction in a manner that ensures that all proceeds of the bidding are
deposited in the Treasury no later than September 30, 1997. Because of
the expedited procedures imposed by the Appropriations Act, an entity
acquiring a WCS authorization must be prepared to make payment on its
full bid amount quickly. Thus, we tentatively conclude that installment
payment plans would be an inappropriate mechanism for encouraging
designated entity participation in the WCS auction. We invite comment
on this tentative conclusion and on how the Congressional intent
concerning designated entities can be effectuated in connection with
competitive bidding for WCS licenses. For example, would bidding
credits be appropriate in this service? If so, should they be limited
to small businesses or provided to all designated entities? In
addition, to the
[[Page 59058]]
extent commenters suggest special provisions for small businesses, we
also seek comment on the appropriate definition for small business.
Additionally, should any special provisions be afforded to rural
telephone companies? To the extent that commenters propose specific
provisions to ensure the participation of minority and women-owned
businesses, we also invite them to address how such provisions should
be crafted to meet the relevant standards of judicial review (strict
scrutiny for minorities and intermediate scrutiny for women).\21\
---------------------------------------------------------------------------
\21\ See, for relevant standards of review, Adarand Constructors
v. Pena, 115 S.Ct. 2097 (1995) (``[Racial] classifications are
constitutional only if they are narrowly tailored measures that
further compelling governmental interests''), and United States v.
Virginia, 116 S.Ct. 2264 (June 26, 1996) (``Parties who seek to
defend gender-based governmental action must demonstrate an
`exceedingly persuasive justification' for that action'').
---------------------------------------------------------------------------
H. Other Administrative Matters
64. We propose to update the entries for the 2300-2450 MHz band in
the international table (columns 1 through 3 of the Table of Frequency
Allocations (``Table''), 47 CFR 2.106) in accordance with the Final
Acts of the 1995 World Radiocommunication Conference. Specifically, the
following international footnotes would be re-numbered using the new
``S'' numbering scheme: 664 (S5.282), 750B (S5.393), 751
(S5.394),22 751A (S5.395), 751B (S5.396), and 752 (S5.150).23
---------------------------------------------------------------------------
\22\ In addition to being re-numbered, the text of footnote 751
was modified. Specifically, aeronautical telemetry in the United
States now has priority over other mobile service uses in the 2300-
2390 MHz band (that is, the 2300-2310 MHz band has been added to the
existing restriction). (At the next competent conference, we intend
to have the aeronautical telemetry restriction removed from the
2300-2320 and 2345-2360 MHz bands in the United States.) In
addition, aeronautical telemetry in Canada now has priority over
other mobile service uses in the 2300-2483.5 MHz band (this is an
entirely new restriction in Canada). Finally, Australia and Papua
New Guinea have removed the aeronautical telemetry priority use
restriction from the 2310-2390 MHz band.
\23\ Footnote 752 was one of seven international footnotes that
separately designated certain bands for industrial, scientific and
medical applications. These international footnotes (534, 546, 548,
707, 752, 806, and 881) were combined into a single international
footnote, S5.150.
---------------------------------------------------------------------------
65. We also propose to update the entries for the 2300-2310, 2400-
2402, and 2417-2450 MHz bands in the Government radio service
allocations' column (column 4 of the Table) in accordance with the
newly revised NTIA Manual. Specifically, all existing Government
allocations and footnote references would be deleted from the 2300-2310
and 2400-2402 MHz bands and reference to footnote G123 would be added
to both bands. Footnote G123, which permits Government operations in
2300-2310 and 2400-2402 MHz bands to continue only on a non-
interference basis to authorized non-Government operations and requires
that Government operations not hinder the implementation of any non-
Government operation, would also be added to the list of Government
footnotes. With regard to the 2417-2450 MHz band, the primary
Government radiolocation service allocation would be downgraded to a
secondary service and reference to footnote G124 would be added.
Footnote G124, which states that the 2417-2450 MHz band has been
reallocated to shared Government/non-Government use, would also be
added to the list of Government footnotes.
66. We also propose to update the entries for the 2305-2320 and
2345-2360 MHz bands in the non-Government radio service allocations'
column (column 5 of the Table) in accordance with our proposals herein.
Specifically, we propose to add the fixed, mobile, and radiolocation
services on a primary basis to the 2305-2320 and 2345-2360 MHz bands,
to delete the reference to footnote US253 from the 2300-2310 MHz band,
to add a reference to footnote USxxx to the 2305-2310 MHz band, and to
add a reference to footnote USyyy in the 2310-2320 and 2345-2360 MHz
bands. Proposed United States footnote USxxx, which prohibits airborne
and space-to-Earth transmissions in the 2305-2310 MHz band and which
also requires that WCS operations in the 2305-2310 MHz band within 50
kilometers of the Deep Space receive site located on Fort Irwin,
California be coordinated, and proposed United States footnote USyyy,
which provides for continued secondary aeronautical telemetry use of
the 2310-2320 and 2345-2360 MHz bands, would be added to the list of
United States footnotes. In addition, we propose to update the entries
for the 2305-2320 and 2345-2360 MHz bands in the rule part cross
reference column (column 6 of the Table) to add a reference to the
Wireless Communications Service.
List of Subjects
47 CFR Part 1
Administrative practice and procedure.
47 CFR Part 2
Radio.
47 CFR Part 27
Administrative practice and procedure, Communications common
carriers, Communications equipment, Radio, Reporting and recordkeeping
requirements.
47 CFR Part 97
Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Proposed Amendatory Text
Parts 1, 2, 27, and 97 of title 47 of the Code of Federal
Regulations are proposed to be amended as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise
noted.
2. In Sec. 1.1307, the text of paragraph (b)(1) preceding the table
and the first sentence of paragraph (b)(2) are revised and new entries
for Wireless Communications Service are added to Table 1 in paragraph
(b)(1) following the entry for Satellite Communications (part 25) to
read as follows:
Sec. 1.1307 Actions which may have a significant environmental
effect, for which Environmental Assessments (EAs) must be prepared.
* * * * *
(b) * * *
(1) The exposure limits in Sec. 1.1310 are generally applicable to
all facilities, operations and transmitters regulated by the
Commission. However, a determination of compliance with the exposure
limits in Sec. 1.1310 (routine environmental evaluation), and
preparation of an EA if the limits are exceeded, is necessary only for
facilities, operations and transmitters that fall into the categories
listed in Table 1 of this paragraph (b)(1), or those specified in
paragraph (b)(2) of this section. All other facilities, operations and
transmitters are categorically excluded from making such studies or
preparing an EA, except as indicated in paragraphs (c) and (d) of this
section. For purposes of Table 1, ``rooftop'' means the roof or
otherwise outside, topmost level or levels of a building structure that
is occupied as a workplace or residence and where either workers or the
general public may have access. The term ``power'' in column 2 of Table
1 refers to total operating power of the transmitting operation in
question in terms of effective radiated power (ERP), equivalent
isotropically radiated power (EIRP), or peak envelope power (PEP), as
defined in Sec. 2.1 of this chapter. For the case of the Cellular
Radiotelephone
[[Page 59059]]
Service, subpart H of part 22 of this chapter; the Personal
Communications Service, part 24 of this chapter, the Wireless
Communications Service, part 27 of this chapter and covered Specialized
Mobile Radio Service operations, part 90 of this chapter, the phrase
``total power of all channels'' in column 2 of Table 1 means the sum of
the ERP or EIRP of all co-located simultaneously operating transmitters
of the facility. When applying the criteria of Table 1, radiation in
all directions should be considered. For the case of transmitting
facilities using sectorized transmitting antennas, applicants and
licensees should apply the criteria to all transmitting channels in a
given sector, noting that for a highly directional antenna there is
relatively little contribution to ERP or EIRP summation for other
directions.
Table 1.--Transmitters, Facilities and Operations Subject to Routine
Environmental Evaluation
------------------------------------------------------------------------
Service (Title 47 CFR Rule Part) Evaluation required if
------------------------------------------------------------------------
* * * *
* * *
Wireless Communications Service (for those All included.
services with similar or identical operating
characteristics or functions to the Digital
Audio Radio Service) (part 27).
Wireless Communications Service (for those Total power of all
services with similar or identical operating channels > 2000 W ERP
characteristics or functions to the Multipoint (3280 W EIRP)
Distribution Service, Cellular Radiotelephone
Service, Personal Communications Service,
Paging or Radiotelephone Service, or Paging
Operations or ``covered'' Specialized Mobile
Radio Services within the Private Land Mobile
Radio Services) (part 27).
* * * *
* * *
------------------------------------------------------------------------
* * * * *
(2) Mobile and portable transmitting devices that operate in the
Cellular Radiotelephone Service, the Personal Communications Services
(PCS), the Wireless Communications Service, the Satellite
Communications Services, the Maritime Services (ship earth stations
only) covered Specialized Mobile Radio Service, providers authorized
under subpart H of part 22, part 24, part 25, part 27, part 80, and
part 90 of this chapter are subject to routine environmental evaluation
for RF exposure prior to equipment authorization or use, as specified
in Secs. 2.1091 and 2.1093 of this chapter.
* * *
* * * * *
3. New paragraph (a)(9) is added to Sec. 1.2102 to read as follows:
Sec. 1.2102 Eligibility of applications for competitive bidding.
(a) * * *
(9) Wireless Communications Service (WCS) (see part 27 of this
chapter).
* * * * *
PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS
1. The authority citation for part 2 continues to read as follows:
Authority: Section 4, 302, 303, and 307 of the Communications
Act of 1934, as amended, 47 U.S.C. sections 154, 302, 303 and 307,
unless otherwise noted.
2. Section 2.106, the Table of Frequency Allocations, is amended as
follows:
a. Remove the existing entries for 2300-2450 MHz.
b. Add entries in numerical order for 2300-2450 MHz.
c. In the International Footnotes under heading I., add footnotes
S5.150, S5.282 , S5.393, S5.394, S5.395, and S5.396 in numerical order.
d. In the International Footnotes under heading II., remove
footnotes 750B, 751, 751A, and 751B.
e. Remove United States footnote US253.
f. Add United States footnotes US[xxx] and US[yyy].
g. Revise United States footnotes US276 and US328.
h. Revise Government footnote G2.
i. Add Government footnotes G120, G123 and G124 in numerical order.
The revisions and additions read as follows:
Sec. 2.106 Table of Frequency Allocations.
* * * * *
International table United States table FCC use designators
----------------------------------------------------------------------------------------------------------------
Non-
Region 1-- Region 2-- Region 3-- Government Government Rule Special-use
allocation MHz allocation MHz allocation MHz Allocation Allocation part(s) frequencies
MHz MHz
(1) (2) (3) (4) (5) (6) (7)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
2300-2305 2300-2305 2300-2305 2300-2305 2300-2305 ........... ..............
FIXED FIXED FIXED Amateur Amateur ..............
(97)
MOBILE MOBILE MOBILE
Amateur RADIOLOCATION RADIOLOCATION
Radiolocation Amateur Amateur ............. ............. ........... ..............
S5.394 G123 ............. ........... ..............
----------------------------------------------------------------------------------------------------------------
2305-2310 2305-2310 2305-2310 2305-2310 2305-2310
FIXED FIXED FIXED FIXED WIRELESS
COMMUNICAT
IONS (27)
MOBILE MOBILE MOBILE MOBILE ...........
Amateur RADIOLOCATION RADIOLOCATION RADIOLOCATION Amateur
(97)
Radiolocation Amateur Amateur Amateur
S5.394 USxxx G123 USxxx ........... ..............
----------------------------------------------------------------------------------------------------------------
[[Page 59060]]
2310-2320 2310-2320 2310-2320 2310-2320 2310-2320
BROADCASTING- WIRELESS Digital Audio
SATELLITE COMMUNICAT Radio
US327 IONS (27) Services.
FIXED FIXED FIXED Fixed FIXED
MOBILE MOBILE MOBILE Mobile USyyy MOBILE USyyy
Amateur RADIOLOCATION RADIOLOCATION Radiolocation RADIOLOCATION
G2
Radiolocation Amateur Amateur
S5.395 S5.393 S5.394 S5.393 S5.396 S5.396 US327 S5.396 US328
S5.396 US328 G120
----------------------------------------------------------------------------------------------------------------
2320-2345 2320-2345 2320-2345 2320-2345 2320-2345 Digital Audio
BROADCASTING- Radio
SATELLITE US Services.
327
FIXED FIXED FIXED Fixed
MOBILE MOBILE MOBILE Mobile US276 Mobile US276
Amateur RADIOLOCATION RADIOLOCATION Radiolocation
G2
Radiolocation Amateur Amateur
S5.395 S5.393 S5.394 S5.393 S5.396 S5.396 US327 S5.396 US328
S5.396 US328 G120
----------------------------------------------------------------------------------------------------------------
2345-2360 2345-2360 2345-2360 2345-2360 2345-2360 Digital Audio
BROADCASTING WIRELESS Radio
SATELLITE COMMUNICAT Services.
US327 IONS (27)
FIXED FIXED FIXED Fixed FIXED
MOBILE MOBILE MOBILE Mobile USyyy MOBILE USyyy
Amateur RADIOLOCATION RADIOLOCATION Radiolocation RADIOLOCATION ........... ..............
G2
Radiolocation Amateur Amateur
S5.395 S5.393 S5.394 S5.393 S5.396 S5.396 US327 S5.396 US328 ........... ..............
S5.396 US328 G120
----------------------------------------------------------------------------------------------------------------
2360-2390 2360-2390 2360-2390 2360-2390 2360-2390 ........... ..............
FIXED FIXED FIXED MOBILE US276 MOBILE US276 ........... ..............
MOBILE MOBILE MOBILE RADIOLOCATION ............. ........... ..............
G2
Amateur RADIOLOCATION RADIOLOCATION Fixed ............. ........... ..............
Radiolocation Amateur Amateur
S5.394 G120 ............. ........... ..............
----------------------------------------------------------------------------------------------------------------
2390-2400 2390-2400 2390-2400 2390-2400 2390-2400 ........... ..............
FIXED FIXED FIXED AMATEUR AMATEUR ..............
(97)
MOBILE MOBILE MOBILE Radio ..............
Frequency
Devices
(15)
Amateur RADIOLOCATION RADIOLOCATION ...........
Radiolocation Amateur Amateur ........... ..............
S5.394 G122 ............. ........... ..............
----------------------------------------------------------------------------------------------------------------
2400-2402 2400-2402 2400-2402 2400-2402 2400-2402 ........... ..............
FIXED FIXED FIXED Amateur Amateur ..............
(97)
MOBILE MOBILE MOBILE ........... ..............
Amateur RADIOLOCATION RADIOLOCATION ...........
Radiolocation Amateur Amateur ........... ..............
S5.150 S5.282 S5.150 S5.282 S5.150 S5.282 S5.150 G123 S5.150 S5.282
S5.394
----------------------------------------------------------------------------------------------------------------
2402-2417 2402-2417 2402-2417 2402-2417 2402-2417 ........... ..............
FIXED FIXED FIXED AMATEUR AMATEUR ..............
(97)
MOBILE MOBILE MOBILE Radio ..............
Frequency
Devices
(15)
Amateur RADIOLOCATION RADIOLOCATION ........... ..............
Radiolocation Amateur Amateur ........... ..............
S5.150 S5.282 S5.150 S5.282 S5.150 S5.282 S5.150 G122 S5.150 S5.282
S5.394
----------------------------------------------------------------------------------------------------------------
2417-2450 2417-2450 2417-2450 2417-2450 2417-2450
FIXED FIXED FIXED Radiolocation Amateur Amateur ..............
G2 (97)
MOBILE MOBILE MOBILE ............. ............. ........... ..............
Amateur RADIOLOCATION RADIOLOCATION ...........
Radiolocation Amateur Amateur ........... ..............
S5.150 S5.282 S5.150 S5.282 S5.150 S5.282 S5.150 S5.282 S5.150 S5.282
S5.394 G124
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 59061]]
International Footnotes
* * * * *
I. New ``S'' Numbering Scheme
* * * * *
S5.150 The following bands:
13533-13567 kHz (centre frequency 13560 kHz),
26957-27283 kHz (centre frequency 27120 kHz),
40.66-40.70 MHz (centre frequency 40.68 MHz),
902-928 MHz in Region 2 (centre frequency 915 MHz),
2400-2500 MHz (centre frequency 2450 MHz),
5725-5875 MHz (centre frequency 5800 MHz), and
24-24.25 GHz (centre frequency 24.125 GHz)
are also designated for industrial, scientific and medical (ISM)
applications. Radiocommunication services operating within these
bands must accept harmful interference which may be caused by these
applications. ISM equipment operating in these bands is subject to
the provisions of No. 1815/S15.13.
S5.282 In the bands 435-438 MHz, 1260-1270 MHz, 2400-2450 MHz,
3400-3410 MHz (in Regions 2 and 3 only) and 5650-5670 MHz, the
amateur-satellite service may operate subject to not causing harmful
interference to other services operating in accordance with the
Table (see No. S5.43). Administrations authorizing such use shall
ensure that any harmful interference caused by emissions from a
station in the amateur-satellite service is immediately eliminated
in accordance with the provisions of No. 2741/S25.11. The use of the
bands 1260-1270 MHz and 5650-5670 MHz by the amateur-satellite
service is limited to the Earth-to-space direction.
* * * * *
S5.393 Additional allocation: in the United States and India,
the band 2310-2360 MHz is also allocated to the broadcasting-
satellite service (sound) and complementary terrestrial sound
broadcasting service on a primary basis. Such use is limited to
digital audio broadcasting and is subject to the provisions of
Resolution 528 (WARC-92).
S5.394 In the United States, the use of the band 2300-2390 MHz
by the aeronautical mobile service for telemetry has priority over
other uses by the mobile services. In Canada, the use of the band
2300-2483.5 MHz by the aeronautical mobile service for telemetry has
priority over other uses by the mobile services.
S5.395 In France, the use of the band 2310-2360 MHz by the
aeronautical mobile service for telemetry has priority over other
uses by the mobile service.
S5.396 Space stations of the broadcasting-satellite service in
the band 2310-2360 MHz operating in accordance with No. S5.393 that
may affect the services to which this band is allocated in other
countries shall be coordinated and notified in accordance with
Resolution 33. Complementary terrestrial broadcasting stations shall
be subject to bilateral coordination with neighboring countries
prior to their bringing into use.
* * * * *
United States (US) Footnotes
* * * * *
US276 Except as otherwise provided for herein, use of the
bands 2320-2345 and 2360-2390 MHz by the mobile service is limited
to aeronautical telemetering and associated telecommand operations
for flight testing of manned or unmanned aircraft, missiles or major
components thereof. The following four frequencies are shared on a
co-equal basis for telemetering and associated telecommand
operations of expendable and re-usable launch vehicles whether or
not such operations involve flight testing: 2332.5, 2364.5, 2370.5,
and 2382.5 MHz. All other mobile telemetering uses shall be
secondary to the above uses.
* * * * *
US328 In the band 2320-2345 MHz, the mobile and radiolocation
services are allocated on a primary basis until 1 January 1997 or
until broadcasting-satellite (sound) service has been brought into
use in such a manner as to affect or be affected by the mobile and
radiolocation services in those service areas, whichever is later.
The broadcasting-satellite (sound) service during implementation
should also take cognizance of the expendable and reusable launch
vehicle frequencies 2312.5, 2332.5, and 2352.5 MHz, to minimize the
impact on this mobile service use to the extent possible.
* * * * *
US[xxx] In the 2305-2310 MHz band, airborne and space-to-Earth
operations are prohibited. Additionally, in the 2305-2310 MHz band,
Wireless Communications Service operations within 50 kilometers of
35 deg.20' North Latitude and 116 deg.53' West Longitude shall be
coordinated on a case-by-case basis through the frequency assignment
subcommittee in order to minimize harmful interference to NASA's
Goldstone Deep Space facility.
US[yyy] The bands 2310-2320 and 2345-2360 MHz are also available
for aeronautical telemetering and associated telecommand operations
for flight testing of manned or unmanned aircraft, missiles or major
components thereof on a secondary basis to the Wireless
Communications Service. The following two frequencies are shared on
a co-equal basis for telemetering and associated telecommand
operations of expendable and re-usable launch vehicles whether or
not such operations involve flight testing: 2312.5 and 2352.5 MHz.
Other mobile telemetering uses may be provided on a non-interference
basis to the above uses.
* * * * *
Government Footnotes
* * * * *
G2 In the bands 216-225, 420-450 (except as provided by US217),
890-902, 928-942, 1300-1400, 2310-2390, 2417-2450, 2700-2900, 5650-
5925, and 9000-9200 MHz, the Government radiolocation is limited to
the military services.
* * * * *
G120 Development of airborne primary radars in the band 2310-
2390 MHz with peak transmitter power in excess of 250 watts for use
in the United States is not permitted.
* * * * *
G123 The bands 2300-2310 and 2400-2402 MHz were identified for
reallocation, effective August 10, 1995, for exclusive non-
Government use under Title VI of the Omnibus Budget Reconciliation
Act of 1993. Effective August 10, 1995, any Government operations in
these bands are on a non-interference basis to authorized non-
Government operations and shall not hinder the implementation of any
non-Government operations.
G124 The band 2417-2450 MHz was identified for reallocation,
effective August 10, 1995, for mixed Government and non-Government
use under Title VI of the Omnibus Budget Reconciliation Act of 1993.
3. Section 2.1091 is amended by revising the first sentence in
paragraph (c) to read as follows:
Sec. 2.1091 Radiofrequency radiation exposure evaluation: mobile and
unlicensed devices.
* * * * *
(c) Mobile devices that operate in the Cellular Radiotelephone
Service, the Personal Communications Services, the Wireless
Communications Service, the Satellite Communications Services, the
Maritime Services and the Specialized Mobile Radio Service authorized
under subpart H of part 22 of this chapter, part 24 of this chapter,
part 25 of this chapter, part 27 of this chapter (only mobile devices
with similar or identical operating characteristics to those authorized
under subpart H of part 22, part 24, and ``covered'' SMR under part 90
of this chapter), part 80 of this chapter (ship earth station devices
only) and part 90 of this chapter (``covered'' SMR devices only, as
defined in the note to Table 1 of Sec. 1.1307(b)(1) of this chapter),
are subject to routine environmental evaluation for RF exposure prior
to equipment authorization or use if their effective radiated power
(ERP) is 1.5 watts or more. * * *
* * * * *
4. Section 2.1093 is amended by revising the first sentence of
paragraph (c) to read as follows:
Sec. 2.1093 Radiofrequency radiation exposure evaluation: portable
devices.
* * * * *
(c) Portable devices that operate in the Cellular Radiotelephone
Service, the Personal Communications Services, the Wireless
Communications Service, the Satellite Communications services, the
Maritime Services and the Specialized Mobile Radio Service authorized
under subpart H of part 22 of this chapter, part 24 of this chapter,
part 25 of this chapter, part 27 of this chapter (only portable devices
with similar or identical operating characteristics to those authorized
under subpart H of
[[Page 59062]]
part 22, part 24, and ``covered'' SMR under part 90 of this chapter),
part 80 of this chapter (ship earth station devices only), part 90 of
this chapter (``covered'' SMR devices only, as defined in the note to
Table 1 of Sec. 1.1307(b)(1) of this chapter), and portable unlicensed
personal communication service and millimeter wave devices authorized
under Sec. 15.253, Sec. 15.255 or subpart D of part 15 of this chapter
are subject to routine environmental evaluation for RF exposure prior
to equipment authorization or use. * * *
* * * * *
5. A new part 27 is added to read as follows:
PART 27--WIRELESS COMMUNICATIONS SERVICE
Subpart A--General Information
Sec.
27.1 Basis and purpose.
27.2 Permissible communications.
27.3 Other applicable rule parts.
27.4 Terms and definitions.
Subpart B--Applications and Licenses
27.11 Initial authorization.
27.12 Eligibility.
27.13 License period.
27.14 Criteria for comparative renewal proceedings.
27.15 Geographic partitioning and spectrum disaggregation.
27.16 Franchising
Subpart C--Technical Standards
27.51 Equipment authorization.
27.52 RF safety.
27.53 Emission limits.
27.54 Frequency stability.
27.55 Field strength limits.
27.56 Antenna structures; air navigation safety.
27.57 International coordination.
Subpart D--Competitive Bidding Procedures for WCS
27.201 WCS subject to competitive bidding.
27.202 Competitive bidding mechanisms.
27.203 Withdrawal, default, and disqualification payments.
27.204 Bidding application and certification procedures.
27.205 Submission of upfront payments.
27.206 Submission of down payment and filing of long-form
applications.
27.207 Procedures for filing petitions to deny against WCS long-
form applications.
Subpart E--Application, Licensing, and Processing Rules for WCS
27.301 Authorization required.
27.302 Eligibility.
27.303 Formal and informal applications.
27.304 Filing of WCS applications, fees, and numbers of copies.
27.305 Standard application forms and permissive changes or minor
modifications for the Wireless Communications Service.
27.306 Miscellaneous forms.
27.307 General application requirements.
27.308 Technical content of applications; maintenance of list of
station locations.
27.310 Waiver of rules.
27.311 Defective applications.
27.312 Inconsistent or conflicting applications.
27.313 Amendment of applications for Wireless Communications
Service (other than applications filed on FCC Form 175).
27.314 Application for temporary authorizations.
27.315 Receipt of application; applications in the Wireless
Communications Service filed on FCC Form 175 and other applications
in the WCS Service.
27.316 Public notice period.
27.317 Dismissal and return of applications.
27.318 Ownership changes and agreements to amend or dismiss
applications or pleadings.
27.319 Opposition to applications.
27.320 Mutually exclusive applications.
27.321 Consideration of applications.
27.322 Post-auction divestitures.
27.323 Transfer of control or assignment of station authorization.
27.324 Termination of authorization.
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309 and 332.
Subpart A--General Information
Sec. 27.1 Basis and purpose.
This section contains the statutory basis for the rules in this
part and provides the purpose for which this part is issued.
(a) Basis. The rules for the Wireless Communications Service (WCS)
in this part are promulgated under the provisions of the Communications
Act of 1934, as amended, that vest authority in the Federal
Communications Commission to regulate radio transmission and to issue
licenses for radio stations.
(b) Purpose. This part states the conditions under which the 2305-
2320 MHz and 2345-2360 MHz bands are made available and licensed for
the provision of WCS.
(c) Scope. The rules in this part apply only to stations authorized
under this part.
Sec. 27.2 Permissible communications.
Subject to the rules in this part, fixed, mobile and radiolocation
services may be provided using the 2305-2320 and 2345-2360 MHz bands.
In addition, satellite digital audio radio service (DARS) may be
provided using the 2310-2320 and 2345-2360 MHz bands. Satellite DARS
service shall be provided in manner consistent with part 25 of this
chapter.
Sec. 27.3 Other applicable rule parts.
Other FCC rule parts in this chapter applicable to the Wireless
Communications Service include the following:
(a) Part 0. Part 0 of this chapter describes the Commission's
organization and delegations of authority. Part 0 of this chapter also
lists available Commission publications, standards and procedures for
access to Commission records, and location of Commission Field Offices.
(b) Part 1. Part 1 of this chapter includes rules of practice and
procedure for license applications, adjudicatory proceedings,
procedures for reconsideration and review of the Commission's actions;
provisions concerning violation notices and forfeiture proceedings;
competitive bidding procedures, and the environmental requirements
that, if applicable, must be complied with prior to the initiation of
construction.
(c) Part 2. Part 2 of this chapter contains the Table of Frequency
Allocations and special requirements in international regulations,
recommendations, agreements, and treaties. Part 2 of this chapter also
contains standards and procedures concerning the marketing and
importation of radio frequency devices, and for obtaining equipment
authorization.
(d) Part 5. Part 5 of this chapter contains rules prescribing the
manner in which parts of the radio frequency spectrum may be made
available for experimentation.
(e) Part 17. Part 17 of this chapter contains requirements for
construction, marking and lighting of antenna towers.
(f) Part 25. Part 25 of this chapter contains the requirements for
satellite communications, including the satellite DARS.
(g) Part 68. Part 68 of this chapter contains technical standards
for connection of terminal equipment to the telephone network.
Sec. 27.4 Terms and definitions.
Assigned frequency. The center of the frequency band assigned to a
station.
Authorized bandwidth. The maximum width of the band of frequencies
permitted to be used by a station. This is normally considered to be
the necessary or occupied bandwidth, whichever is greater.
Average terrain. The average elevation of terrain between 3 and 16
kilometers from the antenna site.
Effective Radiated Power (e.r.p.) (in a given direction). The
product of the power supplied to the antenna and its
[[Page 59063]]
gain relative to a half-wave dipole in a given direction.
Equivalent Isotropically Radiated Power (e.i.r.p.). The product of
the power supplied to the antenna and the antenna gain in a given
direction relative to an isotropic antenna.
Fixed Service. A radio communication service between specified
fixed points.
Fixed Station. A station in the fixed service.
Land Mobile Service. A mobile service between base stations and
land mobile stations, or between land mobile stations.
Land Mobile Station. A mobile station in the land mobile service
capable of surface movement within the geographic limits of a country
or continent.
Land Station. A station in the mobile service not intended to be
used while in motion.
Mobile Service. A radio communication service between mobile and
land stations, or between mobile stations.
Mobile Station. A station in the mobile service intended to be used
while in motion or during halts at unspecified points.
National Geodetic Reference System (NGRS). The name given to all
geodetic control data contained in the National Geodetic Survey (NGS)
data base. (Source: National Geodetic Survey, U.S. Department of
Commerce)
Radiodetermination. The determination of the position, velocity
and/or other characteristics of an object, or the obtaining of
information relating to these parameters, by means of the propagation
properties of radio waves.
Radiolocation. Radiodetermination used for purposes other than
those of radionavigation.
Radionavigation. Radiodetermination used for the purpose of
navigation, including obstruction warning.
Satellite Digital Audio Radio Service (``satellite DARS''). A
radiocommunication service in which compact disc quality programming is
digitally transmitted by one or more space stations.
Wireless Communications Service. A radiocommunication service that
encompasses fixed, mobile, satellite DARS, and radiolocation services.
Subpart B--Applications and Licenses
Sec. 27.11 Initial authorization.
(a) An applicant must file an application for an initial WCS
authorization.
(b) The initial WCS authorizations shall be granted for [XX]
megahertz of spectrum and shall be on a [geographical basis to be
determined].
(c) The initial WCS authorizations shall be a blanket license.
Applications for individual sites are not required and will not be
accepted.
Sec. 27.12 Eligibility.
Any entity, other than those precluded by 310 of the Communications
Act of 1934, as amended, 47 U.S.C. 310, is eligible to hold a license
under this part.
Sec. 27.13 License period.
Licenses shall be granted for ten year terms from the date of
original issuance or renewal.
Sec. 27.14 Criteria for comparative renewal proceedings.
(a) A renewal applicant involved in a comparative renewal
proceeding shall receive a preference, commonly referred to as a
renewal expectancy, which is the most important comparative factor to
be considered in the proceeding, if its past record for the relevant
license period demonstrates that the renewal applicant:
(1) Has provided ``substantial'' service during its past license
term. In addition, the communications provided must be sound,
favorable, and substantially above a level of mediocre service which
might just minimally warrant renewal; and
(2) Has substantially complied with applicable Commission rules,
policies and the Communications Act.
(b) At five and ten years from the date of original issuance or
renewal, the licensee shall report to the Commission what it has built
and the percentage of its service area population that it serves. The
Commission shall take these reports into account during its
consideration of the renewal application.
Sec. 27.15 Geographic partitioning and spectrum disaggregation.
(a) Geographic partitioning and spectrum disaggregation are
permitted without restriction.
(b) In the event that the WCS license is partitioned or
disaggregated, any partitionee/disaggregatee shall be authorized to
hold its license for the remainder of the partitioner's/disaggregator's
original ten-year license term.
Sec. 27.16 Franchising.
In the event that the WCS licensee franchises portions of its
spectrum and geographic service area on a leased basis, the WCS
licensee shall retain ultimate responsibility for meeting interference
and other licensing requirements.
Subpart C--Technical Standards
Sec. 27.51 Equipment authorization.
(a) Each transmitter utilized for operation under this part and
each transmitter marketed, as set forth in Sec. 2.803 of this chapter,
must be of a type that has been authorized by the Commission under its
type acceptance procedure.
(b) The Commission periodically publishes a list of type accepted
equipment, entitled ``Radio Equipment List, Equipment Accepted for
Licensing.'' Copies of this list are available for public reference at
the Commission's offices in Washington, D.C., at each of its field
offices, and may be ordered from its copy contractor.
(c) Any manufacturer of radio transmitting equipment to be used in
these services may request equipment authorization following the
procedures set forth in subpart J of part 2 of this chapter. Equipment
authorization for an individual transmitter may be requested by an
applicant for a station authorization by following the procedures set
forth in part 2 of this chapter. Such equipment if approved or accepted
will not normally be included in the Commission's Radio Equipment List
but will be individually enumerated on the station authorization.
Sec. 27.52 RF safety.
Licensees and manufacturers are subject to the radio frequency
radiation exposure requirements specified in Secs. 1.1307(b), 2.1091,
and 2.1093 of this chapter, as appropriate. Applications for equipment
authorization of mobile or portable devices operating under this
section must contain a statement confirming compliance with these
requirements for both fundamental emissions and unwanted emissions.
Technical information showing the basis for this statement must be
submitted to the Commission upon request.
Sec. 27.53 Emission limits.
(a) The peak power of any emission outside the licensee's bands of
operation shall be attenuated below the maximum peak spectral power
density (p) within the band of operation by the following amounts:
(1) For fixed operations: By a factor not less than 43 + 10 log (p)
dB on all frequencies between 2300 and 2305 MHz and above 2360 MHz; and
not less than 70 + 10 log (p) dB on all frequencies below 2300 MHz and
between 2320-2345 MHz band;
(2) For mobile operations: By a factor not less than 43 + 10 log
(p) dB on all frequencies between 2300 and 2305
[[Page 59064]]
MHz, between 2320 and 2345 MHz, and above 2360 MHz; and not less than
70 + 10 log (p) dB on all frequencies below 2300 MHz;
(3) For the purposes of this section, radiolocation shall be
classified as either a fixed or mobile service, depending upon the
application; and
(4) Compliance with these provisions is based on the use of
measurement instrumentation employing a resolution bandwidth of 1 MHz
or greater. However, in the 1 MHz bands immediately outside and
adjacent to the frequency bands of operation a smaller resolution
bandwidth of at least one percent of the emission bandwidth of the
fundamental emission of the transmitter may be employed, provided the
measured energy is integrated to provide the total energy in a 1 MHz
bandwidth.
(b) For WCS satellite DARS operations: The limits set forth in
Sec. 25.202(f) of this chapter apply.
(c) When measuring the emission limits, the nominal carrier
frequency shall be adjusted as close to the edges, both upper and
lower, of the license's bands of operation as the design permits.
(d) When an emission outside of the authorized bandwidth causes
harmful interference, the Commission may, at its discretion, require
greater attenuation than specified in this section.
Sec. 27.54 Frequency stability.
The frequency stability shall be sufficient to ensure that the
fundamental emissions stay within the authorized bands of operation.
Sec. 27.55 Field strength limits.
If geographic partitioning is employed, the predicted or measured
median field strength at any location on the border of the WCS service
area shall not exceed 47 dBuV/m unless the parties agree to a higher
field strength.
Sec. 27.56 Antenna structures; air navigation safety.
A licensee that owns its antenna structures must not allow these
antenna structures to become a hazard to air navigation. In general,
antenna structure owners are responsible for registering antenna
structures with the FCC if required by part 17 of this chapter, and for
installing and maintaining any required marking and lighting. However,
in the event of default of this responsibility by an antenna structure
owner, the FCC permittee or licensee authorized to use an affected
antenna structure will be held responsible by the FCC for ensuring that
the antenna structure continues to meet the requirements of part 17 of
this chapter. See Sec. 17.6 of this chapter.
(a) Marking and lighting. Antenna structures must be marked,
lighted and maintained in accordance with part 17 of this chapter and
all applicable rules and requirements of the Federal Aviation
Administration.
(b) Maintenance contracts. Antenna structure owners (or licensees
and permittees, in the event of default by an antenna structure owner)
may enter into contracts with other entities to monitor and carry out
necessary maintenance of antenna structures. Antenna structure owners
(or licensees and permittees, in the event of default by an antenna
structure owner) that make such contractual arrangements continue to be
responsible for the maintenance of antenna structures in regard to air
navigation safety.
Sec. 27.57 International coordination.
WCS operations shall protect existing Canadian and Mexican
operations in the 2305-2320 and 2345-2360 MHz bands. WCS operations
along the US/Canadian and US/Mexican border areas shall be subject to
coordination, as appropriate. In addition, satellite DARS operations on
WCS spectrum shall be subject to international coordination procedures.
Subpart D--Competitive Bidding Procedures for WCS
Sec. 27.201 WCS subject to competitive bidding.
Mutually exclusive initial applications to provide WCS service are
subject to competitive bidding procedures. In addition to the rules set
forth in this subpart, the following competitive bidding rules found in
part 1, subpart Q, of this chapter shall apply to WCS: Secs. 1.2101,
1.2102, 1.2103, 1.2104(a) through (f), (h) and (i), 1.2105(b) through
(c), 1.2109 and 1.2111 of this chapter.
Sec. 27.202 Competitive bidding mechanisms.
In addition to the provisions of Sec. 1.2104(a) through (f), (h)
and (i), the following provisions will apply to WCS:
(a) Tie bids. Where a tie bid occurs, the high bidder will be
determined by the order in which the bids were received by the
Commission.
(b) Maximum bid increments. The Commission may, by announcement
before or during the auction, require maximum bid increments in dollar
or percentage terms.
Sec. 27.203 Withdrawal, default and disqualification payments.
When the Commission conducts a simultaneous multiple round auction
pursuant to section 27.202, the Commission will impose payments on
bidders who withdraw high bids during the course of an auction, or who
default on payments due after an auction closes or who are
disqualified.
(a) Bid withdrawal prior to close of auction. A bidder who
withdraws a high bid during the course of an auction will be subject to
a payment equal to the difference between the amount bid and the amount
of the winning bid the next time the license is offered by the
Commission. No withdrawal payment would be assessed if the subsequent
winning bid exceeds the withdrawn bid. This payment amount will be
deducted from any upfront payments or down payments that the
withdrawing bidder has deposited with the Commission.
(b) Default or disqualification after close of auction. If a high
bidder defaults or is disqualified after the close of such an auction,
the defaulting bidder will be subject to the payment in paragraph (a)
of this section plus an additional payment equal to 3 percent of the
subsequent winning bid. If the subsequent winning bid exceeds the
defaulting bidder's bid amount, the 3 percent payment will be
calculated based on the defaulting bidder's bid amount. These amounts
will be deducted from any upfront payments or down payments that the
defaulting or disqualified bidder has deposited with the Commission.
(c) Erroneous bids. If at any point during an auction an erroneous
bid is withdrawn in the same round in which it was submitted, the bid
withdrawal payment will be the greater of:
(1) The minimum bid increment for that license and round; and
(2) The standard bid withdrawal payment, as defined in paragraph
(a) of this section, calculated as if the bidder had made the minimum
accepted bid. If an erroneous bid is withdrawn in the round immediately
following the round in which it was submitted, and the auction is in
Stage I or Stage II, the withdrawal payment will be the greater of:
(i) Two times the minimum bid increment during the round in which
the erroneous bid was submitted; and
(ii) The standard withdrawal payment, as defined in paragraph (a)
of this section, calculated as if the bidder had made a bid one bid
increment above the minimum accepted bid. If an erroneous bid is
withdrawn two or more rounds following the round in which it was
submitted, the bidder will not be eligible for any reduction in the bid
withdrawal payment as defined in paragraph (a) of this section. During
Stage III of an auction, if an erroneous bid is not withdrawn during
the round
[[Page 59065]]
in which it was submitted, the bidder will not be eligible for any
reduction in the bid withdrawal payment as defined in paragraph (a) of
this section.
Sec. 27.204 Bidding application and certification procedures.
(a) Submission of short-form application (FCC Form 175). In order
to be eligible to bid, an applicant must timely submit, by means of
electronic filing, a short-form application (FCC Form 175). Unless
otherwise provided by public notice, the Form 175 need not be
accompanied by an upfront payment (see Sec. 27.205).
(1) All Form 175s will be due on the date specified by public
notice.
(2) The Form 175 must contain the following information:
(i) Identification of each license on which the applicant wishes to
bid;
(ii) The applicant's name, if the applicant is an individual. If
the applicant is a corporation, then the short-form application will
require the name and address of the corporate office and the name and
title of an officer or director. If the applicant is a partnership,
then the application will require the name, citizenship and address of
all partners, and, if a partner is not a natural person, then the name
and title of a responsible person should be included as well. If the
applicant is a trust, then the name and address of the trustee will be
required. If the applicant is none of the above, then it must identify
and describe itself and its principals or other responsible persons;
(iii) The identity of the person(s) authorized to make or withdraw
a bid;
(iv) Certification that the applicant is legally, technically,
financially and otherwise qualified pursuant to section 308(b) of the
Communications Act of 1934, as amended. The Commission will accept
applications certifying that a request for waiver or other relief from
the requirements of section 310 is pending;
(v) Certification that the applicant is in compliance with the
foreign ownership provisions of section 310 of the Communications Act
of 1934, as amended;
(vi) Certification that the applicant is and will, during the
pendency of its application(s), remain in compliance with any service-
specific qualifications applicable to the licenses on which the
applicant intends to bid including, but not limited to, financial
qualifications. The Commission may require certification in certain
services that the applicant will, following grant of a license, come
into compliance with certain service-specific rules, including, but not
limited to, ownership eligibility limitations;
(vii) An exhibit, certified as truthful under penalty of perjury,
identifying all parties with whom the applicant has entered into
partnerships, joint ventures, consortia or other agreements,
arrangements or understandings of any kind relating to the licenses
being auctioned, including any such agreements relating to the post-
auction market structure;
(viii) Certification under penalty of perjury that it has not
entered and will not enter into any explicit or implicit agreements,
arrangements or understandings of any kind with any parties other than
those identified pursuant to paragraph (a)(2)(vii) of this section
regarding the amount of their bids, bidding strategies or the
particular licenses on which they will or will not bid; and
(ix) Certification under penalty of perjury that it is not in
default on any Commission licenses and that it is not delinquent on any
extension of credit from any federal agency;
Note to paragraph (a): The Commission may also request
applicants to submit additional information for informational
purposes to aid in its preparation of required reports to Congress.
(b) Modification and amendment of application. Applicants will be
permitted to amend their Form 175 applications to make minor amendments
to correct minor errors or defects such as typographical errors.
Applicants will also be permitted to amend FCC Form 175 to make changes
to the information required by paragraph (a) of this section (such as
ownership changes or changes in the identification of parties to
bidding consortia), provided such changes do not result in a change in
control of the applicant and do not involve another applicant (or
parties in interest to an applicant) who has applied for licenses in
any of the same geographic license areas as the applicant. Amendments
which change control of the applicant will be considered major
amendments. An FCC Form 175 which is amended by a major amendment will
be considered to be newly filed and cannot be resubmitted after
applicable filing deadlines. See also Sec. 1.2105 of this chapter.
Sec. 27.205 Submission of upfront payments.
(a) The Commission may require applicants for licenses subject to
competitive bidding to submit an upfront payment. In that event, the
amount of the upfront payment and the procedures for submitting it will
be set forth in a public notice. No interest will be paid on upfront
payments.
(b) Upfront payments must be made by wire transfer.
(c) If the applicant does not submit at least the minimum upfront
payment, it will be ineligible to bid, its application will be
dismissed and any upfront payment it has made will be returned.
(d) The upfront payment(s) of a bidder will be credited toward any
down payment required for licenses on which the bidder is the high
bidder. Where the upfront payment amount exceeds the required deposit
of a winning bidder, the Commission may refund the excess amount after
determining that no bid withdrawal payments are owed by that bidder.
(e) In accordance with the provisions of paragraph (d) of this
section, in the event a payment is assessed pursuant to Sec. 27.203 for
bid withdrawal or default, upfront payments or down payments on deposit
with the Commission will be used to satisfy the bid withdrawal or
default payment before being applied toward any additional payment
obligations that the high bidder may have.
Sec. 27.206 Submission of down payment and filing of long-form
applications.
(a) After bidding has ended, the Commission will identify and
notify the high bidder and declare the bidding closed.
(b) Within ten (10) business days after being notified that it is a
high bidder on a particular license(s), a high bidder must submit to
the Commission's lockbox bank such additional funds (the ``down
payment'') as are necessary to bring its total deposits (not including
upfront payments applied to satisfy bid withdrawal or default payments)
up to twenty (20) percent of its high bid(s). This down payment must be
made by wire transfer or cashier's check drawn in U.S. dollars from a
financial institution whose deposits are insured by the Federal Deposit
Insurance Corporation and must be made payable to the Federal
Communications Commission. Down payments will be held by the Commission
until the high bidder has been awarded the license and has paid the
remaining balance due on the license, in which case it will not be
returned, or until the winning bidder is found unqualified to be a
licensee or has defaulted, in which case it will be returned, less
applicable payments. No interest will be paid on any down payment.
(c) A high bidder that meets its down payment obligations in a
timely manner must, within ten (10) business days after being notified
that it is a high bidder,
[[Page 59066]]
submit an additional application (the ``long-form application'')
pursuant to the rules governing the service in which the applicant is
the high bidder. Notwithstanding any other provision in chapter I of
title 47 of the Code of Federal Regulations to the contrary, high
bidders need not submit an additional application filing fee with their
long-form applications. Notwithstanding any other provision in chapter
I of title 47 of the Code of Federal Regulations to the contrary, the
high bidder's long-form application must be mailed or otherwise
delivered to: Office of the Secretary, Federal Communications
Commission, Attention: Auction Application Processing Section, 1919 M
Street, N.W., Room 222, Washington, D.C. 20554. An applicant that fails
to submit the required long-form application as required under this
section, and fails to establish good cause for any late-filed
submission, shall be deemed to have defaulted and will be subject to
the payments set forth in Sec. 27.203.
(d) As an exhibit to its long-form application, the applicant must
provide a detailed explanation of the terms and conditions and parties
involved in any bidding consortia, joint venture, partnership or other
agreement or arrangement it had entered into relating to the
competitive bidding process prior to the time bidding was completed.
Such agreements must have been entered into prior to the filing of
short-form applications pursuant to Sec. 27.204.
Sec. 27.207 Procedures for filing petitions to deny against WCS long-
form applications.
(a) Within five (5) days after the Commission gives public notice
that a long-form application has been accepted for filing, petitions to
deny that application may be filed. Any such petitions must contain
allegations of fact supported by affidavit of a person or persons with
personal knowledge thereof, and be served by hand upon the applicant or
its representative.
(b) An applicant may file an opposition to any petition to deny
within three (3) days after the deadline for filing petitions to deny.
Allegations of fact or denials thereof must be supported by affidavit
of a person or persons with personal knowledge thereof, and such
opposition must be served by hand upon the petitioner.
(c) If the Commission determines that:
(1) An applicant is qualified and there is no substantial and
material issue of fact concerning that determination, it will grant the
application;
(2) An applicant is not qualified and that there is no substantial
issue of fact concerning that determination, the Commission need not
hold a evidentiary hearing and will deny the application; and
(3) Substantial and material issues of fact require a hearing, it
will conduct a hearing. The Commission may permit all or part of the
evidence to be submitted in written form and may permit employees other
than administrative law judges to preside at the taking of written
evidence. Such hearing will be conducted on an expedited basis.
Subpart E--Application, Licensing, and Processing Rules for WCS
Sec. 27.301 Authorization required.
No person shall use or operate any device for the transmission of
energy or communications by radio in the services authorized by this
part except as provided in this part.
Sec. 27.302 Eligibility.
(a) General. Authorizations will be granted upon proper application
if:
(1) The applicant is qualified under the applicable laws and the
regulations, policies and decisions issued under those laws, including
Secs. 27.101 and 27.12;
(2) There are frequencies available to provide satisfactory
service; and
(3) The public interest, convenience or necessity would be served
by a grant.
(b) Alien ownership. A WCS authorization to provide Commercial
Mobile Radio Service may not be granted to or held by:
(1) Any alien or the representative of any alien;
(2) Any corporation organized under the laws of any foreign
government;
(3) Any corporation of which more than one-fifth of the capital
stock is owned of record or voted by aliens or their representatives or
by a foreign government or representative thereof or any corporation
organized under the laws of a foreign country; or
(4) Any corporation directly or indirectly controlled by any other
corporation of which more than one-fourth of the capital stock is owned
of record or voted by aliens, their representatives, or by a foreign
government or representative thereof, or by any corporation organized
under the laws of a foreign country, if the Commission finds that the
public interest will be served by the refusal or revocation of such
license.
(c) A WCS authorization to provide Private Mobile Radio Service may
not be granted to or held by a foreign government or a representative
thereof.
Sec. 27.303 Formal and informal applications.
(a) Except for an authorization under any of the conditions stated
in section 308(a) of the Communications Act of 1934 (47 U.S.C. 308(a)),
the Commission may grant only upon written application received by it,
the following authorization: station licenses; modifications of
licenses; renewals of licenses; transfers and assignments of station
licenses, or any right thereunder.
(b) Except as may be otherwise permitted by this part, a separate
written application shall be filed for each instrument of authorization
requested. Applications may be:
(1) ``Formal applications'' where the Commission has prescribed in
this part a standard form; or
(2) ``Informal applications'' (normally in letter form) where the
Commission has not prescribed a standard form.
(c) An informal application will be accepted for filing only if:
(1) A standard form is not prescribed or clearly applicable to the
authorization requested;
(2) It is a document submitted, in duplicate, with a caption which
indicates clearly the nature of the request, radio service involved,
location of the station, and the application file number (if known);
and
(3) It contains all the technical details and informational
showings required by the rules and states clearly and completely the
facts involved and authorization desired.
Sec. 27.304 Filing of WCS applications, fees, and numbers of copies.
(a) As prescribed by Secs. 27.305 and 27.307, standard formal
application forms applicable to the WCS may be obtained from either:
(1) Federal Communications Commission, Washington, DC 20554; or
(2) By calling the Commission's Forms Distribution Center, (202)
418-3676.
(b) Applications for the initial provision of WCS service must be
filed on FCC Form 175 in accordance with the rules in Secs. 27.204 and
27.305 and part 1, subpart Q, of this chapter. In the event of mutual
exclusivity between applicants filing FCC Form 175, only auction
winners will be eligible to file subsequent long form applications on
FCC Form [XXX] for initial WCS licenses. Mutually exclusive
applications filed on Form 175 are subject to competitive bidding under
the rules in Secs. 27.204 and 27.305 and part 1, subpart Q, of this
chapter. WCS applicants filing Form [XXX] need not complete Schedule B.
(c) All applications for WCS radio station authorizations (other
than
[[Page 59067]]
applications for initial provision of WCS service filed on FCC Form
175) shall be submitted for filing to: Federal Communications
Commission, Washington, DC 20554, Attention: WCS Processing Section.
Applications requiring fees as set forth at part 1, subpart G, of this
chapter must be filed in accordance with Sec. 0.401(b) of this chapter.
(d) All correspondence or amendments concerning a submitted
application shall clearly identify the name of the applicant, applicant
identification number or Commission file number (if known) or station
call sign of the application involved, and may be sent directly to the
Wireless Telecommunications Bureau, Washington, DC 20554, WCS
Processing Section.
(e) Except as otherwise specified, all applications, amendments,
correspondence, pleadings and forms (with the exception of FCC Form
175, which is to be filed electronically pursuant to Sec. 27.204) shall
be submitted on one original paper copy and with three microfiche
copies, including exhibits and attachments thereto, and shall be signed
as prescribed by Sec. 1.743 of this chapter. Unless otherwise provided
by the FCC, filings of five pages or less are exempt from the
requirement to submit on microfiche, as well as emergency filings like
letters requesting special temporary authority. Those filing any
amendments, correspondence, pleadings, and forms must simultaneously
submit the original hard copy which must be stamped ``original''. In
addition to the original hard copy, those filing pleadings, including
pleadings under Sec. 1.2108 of this chapter shall also submit 2 paper
copies as provided in Sec. 1.51 of this chapter.
(1) Microfiche copies. Each microfiche copy must be a copy of the
signed original. Each microfiche copy shall be a 148 mm 0A 105 mm
negative (clear transparent characters appearing on an opaque
background) at 240A to 270A reduction for microfiche or microfiche
jackets. One of the microfiche sets must be a silver halide camera
master or a copy made on silver halide film such as Kodak Direct
Duplicatory Film. The microfiche must be placed in paper microfiche
envelopes and submitted in a B6 (125 mm 0A 176 mm) or 5 0A 7.5 inch
envelope. All applicants must leave Row ``A'' (the first row for page
images) of the first fiche blank for in-house identification purposes.
(2) All applications and all amendments must have the following
information printed on the mailing envelope, the microfiche envelope,
and on the title area at the top of the microfiche:
(i) The name of the applicant;
(ii) The type of application (e.g. nationwide, regional, etc.);
(iii) The month and year of the document;
(iv) Name of the document;
(v) File number, applicant identification number, and call sign, if
assigned; and
(vi) Each microfiche copy of pleadings shall include:
(A) The month and year of the document;
(B) Name of the document;
(C) Name of the filing party; and
(D) File number, applicant identification number, and call sign, if
assigned:
Sec. 27.305 Standard application forms and permissive changes or minor
modifications for the Wireless Communications Service.
(a) Applications for the initial provision of WCS service must be
filed electronically on FCC Forms 175 and 175-S.
(b) Subsequent application by auction winners or non-mutually
exclusive applicants for WCS radio station(s) under this part. FCC Form
[XXX] (``Application for New or Modified Wireless Communications
Service Under Part 27'') shall be submitted by each auction winner for
each WCS license applied for on FCC Form 175. In the event that mutual
exclusivity does not exist between applicants filing FCC Form 175, the
Commission will so inform the applicant and the applicant will also
file FCC Form [XXX]. Blanket licenses are granted for each market
frequency block. Applications for individual sites are not needed and
will not be accepted. See Sec. 27.11. WCS applicants filing Form [XXX]
need not complete Schedule B.
Sec. 27.306 Miscellaneous forms.
(a) Licensee qualifications. FCC Form 430 (``Common Carrier and
Satellite Radio Licensee Qualifications Report'') shall be filed by
Wireless Communications Service licensees only as required by Form 490
(Application for Assignment or Transfer of Control Under part 22 of
this chapter).
(b) Renewal of station license. Except for renewal of special
temporary authorizations, FCC Form 405 (``Application for Renewal of
Station License'') must be filed in duplicate by the licensee between
thirty (30) and sixty (60) days prior to the expiration date of the
license sought to be renewed.
Sec. 27.307 General application requirements.
(a) Each application (including applications filed on Forms 175 and
[XXX]) for a radio station authorization or for consent to assignment
or transfer of control in the WCS shall disclose fully the real party
or parties in interest and must include the following information:
(1) A list of its subsidiaries, if any. Subsidiary means any
business five per cent or more whose stock, warrants, options or debt
securities are owned by the applicant or an officer, director,
stockholder or key management personnel of the applicant. This list
must include a description of each subsidiary's principal business and
a description of each subsidiary's relationship to the applicant.
(2) A list of its affiliates, if any. Affiliates means any business
which holds a five percent or more interest in the applicant, or any
business in which a five percent or more interest is held by another
company which holds a five percent interest in the applicant (e.g.
Company A owns 5% of Company B and 5% of Company C; Companies B and C
are affiliates).
(3) A list of the names, addresses, citizenship and principal
business of any person holding five percent or more of each class of
stock, warrants, options or debt securities together with the amount
and percentage held, and the name, address, citizenship and principal
place of business of any person on whose account, if other than the
holder, such interest is held. If any of these persons are related by
blood or marriage, include such relationship in the statement.
(4) In the case of partnerships, the name and address of each
partner, each partner's citizenship and the share or interest
participation in the partnership. This information must be provided for
all partners, regardless of their respective ownership interests in the
partnership. A signed and dated copy of the partnership agreement must
be included in the application. This information must be included in
Exhibit V of the application.
(b) Each application for a radio station authorization in the WCS
must:
(1) Submit the information required by the Commission's rules,
requests, and application forms;
(2) Be maintained by the applicant substantially accurate and
complete in all significant respects in accordance with the provisions
of Sec. 1.65 of this chapter; and
(3) Show compliance with and make all special showings that may be
applicable.
[[Page 59068]]
(c) Where documents, exhibits, or other lengthy showings already on
file with the Commission contain information which is required by an
application form, the application may specifically refer to such
information, if:
(1) The information previously filed is over one A4 (21 cm x 29.7
cm) or 8.5 x 11 inch (21.6 cm x 27.9 cm) page in length, and all
information referenced therein is current and accurate in all
significant respects under Sec. 1.65 of this chapter; and
(2) The reference states specifically where the previously filed
information can actually be found, including mention of:
(i) The station call sign or application file number whenever the
reference is to station files or previously filed applications; and
(ii) The title of the proceeding, the docket number, and any legal
citations, whenever the reference is to a docketed proceeding. However,
questions on an application form which call for specific technical
data, or which can be answered by a ``yes'' or ``no'' or other short
answer shall be answered as appropriate and shall not be cross-
referenced to a previous filing.
(d) In addition to the general application requirements of subpart
F of this part and Sec. 1.2105 of this chapter, applicants shall submit
any additional documents, exhibits, or signed written statements of
fact:
(1) As may be required by this chapter; and
(2) As the Commission, at any time after the filing of an
application and during the term of any authorization, may require from
any applicant, permittee, or licensee to enable it to determine whether
a radio authorization should be granted, denied, or revoked.
(e) Except when the Commission has declared explicitly to the
contrary, an informational requirement does not in itself imply the
processing treatment of decisional weight to be accorded the response.
(f) All applicants (except applicants filing FCC Form 175) are
required to indicate at the time their application is filed whether or
not a Commission grant of the application may have a significant
environmental impact as defined by Sec. 1.1307 of this chapter. If
answered affirmatively, the requisite environmental assessment as
prescribed in Sec. 1.1311 of this chapter must be filed with the
application and Commission environmental review must be completed prior
to construction. See Sec. 1.1312 of this chapter. All WCS licensees are
subject to a continuing obligation to determine whether subsequent
construction may have a significant environmental impact prior to
undertaking such construction and to otherwise comply with Secs. 1.1301
through 1.1319 of this chapter. See Sec. 1.1312 of this chapter.
Sec. 27.308 Technical content of applications; maintenance of list of
station locations.
All applications required by this part shall contain all technical
information required by the application forms or associated public
notice(s). Applications other than initial applications for a WCS
license must also comply with all technical requirements of the rules
governing the WCS (see subparts C and D of this part as appropriate).
Sec. 27.310 Waiver of rules.
(a) Request for waivers. (1) Waivers of the rules in this chapter
may be granted upon application or by the Commission on its own motion.
Requests for waivers shall contain a statement of reasons sufficient to
justify a waiver. Waivers will not be granted except upon an
affirmative showing:
(i) That the underlying purpose of the rule in this chapter will
not be served, or would be frustrated, by its application in a
particular case, and that grant of the waiver is otherwise in the
public interest; or
(ii) That the unique facts and circumstances of a particular case
render application of the rule in this chapter inequitable, unduly
burdensome or otherwise contrary to the public interest. Applicants
must also show the lack of a reasonable alternative.
(2) If the information necessary to support a waiver request is
already on file, the applicant may cross-reference to the specific
filing where it may be found.
(b) Denial of waiver, alternate showing required. If a waiver is
not granted, the application will be dismissed as defective unless the
applicant has also provided an alternative proposal which complies with
the Commission's rules in this chapter (including any required
showings).
Sec. 27.311 Defective applications.
(a) Unless the Commission shall otherwise permit, an application
will be unacceptable for filing and will be returned to the applicant
with a brief statement as to the omissions or discrepancies if:
(1) The application is defective with respect to completeness of
answers to questions, informational showings, execution, or other
matters of a formal character; or
(2) The application does not comply with the Commission's rules,
regulations, specific requirements for additional information or other
requirements. See also Sec. 1.2105 of this chapter.
(b) Some examples of common deficiencies which result in defective
applications under paragraph (a) of this section are:
(1) The application is not filled out completely and signed;
(2) The application (other than an application filed on FCC Form
175) does not include an environmental assessment as required for an
action that may have a significant impact upon the environment, as
defined in Sec. 1.1307 of this chapter; or
(3) The application is filed prior to the public notice issued
under Sec. 27.317 announcing the application filing date for the
relevant auction or after the cutoff date prescribed in that public
notice.
(c) If an applicant is requested by the Commission to file any
documents or any supplementary or explanatory information not
specifically required in the prescribed application form, a failure to
comply with such request within a specified time period will be deemed
to render the application defective and will subject it to dismissal.
Sec. 27.312 Inconsistent or conflicting applications.
While an application is pending and undecided under this part, no
subsequent inconsistent or conflicting application may be filed by the
same applicant, his successor or assignee, or on behalf or for the
benefit of the same applicant, his successor or assignee.
Sec. 27.313 Amendment of applications for Wireless Communications
Service (other than applications filed on FCC Form 175).
This section applies to all applications for Wireless
Communications Service other than applications filed on FCC Form 175.
(a) Amendments as of right. A pending application may be amended as
a matter of right if the application has not been designated for
hearing.
(1) Amendments shall comply with Sec. 27.319, as applicable; and
(2) Amendments which resolve interference conflicts or amendments
under Sec. 27.319 may be filed at any time.
(b) The Commission or the presiding officer may grant requests to
amend an application designated for hearing only if a written petition
demonstrating good cause is submitted and properly served upon the
parties of record.
(c) Major amendments, minor amendments. The Commission will
classify all amendments as minor except
[[Page 59069]]
in the cases listed in this paragraph (c). An amendment shall be deemed
to be a major amendment subject to Sec. 27.317 under any of the
following circumstances:
(1) Change in technical proposal. If the amendment results in a
substantial change in the engineering proposal such as (but not
necessarily limited to) a change in, or an addition of, a radio
frequency;
(2) Amendment to proposed service area. If the amendment extends
the reliable service area of the proposed facilities outside its EA or
other applicable market area as defined in Sec. 27.102; or
(3) A substantial change in ownership or control.
(d) If a petition to deny (or other formal objection) has been
filed, any amendment, requests for waiver, (or other written
communications) shall be served on the petitioner by hand, unless
waiver of this requirement is granted pursuant to paragraph (e) of this
section. See also Sec. 1.2108 of this chapter.
(e) The Commission may waive the service requirements of paragraph
(d) of this section and prescribe such alternative procedures as may be
appropriate under the circumstances to protect petitioners' interests
and to avoid undue delay in a proceeding, if an applicant submits a
request for waiver which demonstrates that the service requirement is
unreasonably burdensome.
(f) Any amendment to an application shall be signed and shall be
submitted in the same manner, and with the same number of copies, as
was the original application. Amendments may be made in letter form if
they comply in all other respects with the requirements of this
chapter.
(g) An application will be considered to be a newly filed
application if it is amended by a major amendment (as defined in this
section), except in the following circumstances:
(1) The amendment reflects only a change in ownership or control
found by the Commission to be in the public interest;
(2) The amendment corrects typographical transcription, or similar
clerical errors which are clearly demonstrated to be mistakes by
reference to other parts of the application, and whose discovery does
not create new or increased frequency conflicts;
(3) The amendment does not create new or increased frequency
conflicts, and is demonstrably necessitated by events which the
applicant could not have reasonably foreseen at the time of filing,
such as, for example:
(i) The loss of a transmitter or receiver site by condemnation,
natural causes, or loss of lease or option; or
(ii) Obstruction of a proposed transmission path caused by the
erection of a new building or other structure.
Sec. 27.314 Application for temporary authorizations.
(a) In circumstances requiring immediate or temporary use of
facilities, request may be made for special temporary authority to
install and/or operate new or modified equipment. Any such request may
be submitted as an informal application in the manner set forth in
Sec. 27.303 and must contain full particulars as to the proposed
operation including all facts sufficient to justify the temporary
authority sought and the public interest therein. No such request will
be considered unless the request is received by the Commission at least
10 days prior to the date of proposed construction or operation or,
where an extension is sought, expiration date of the existing temporary
authorization. A request received within less than 10 days may be
accepted upon due showing of sufficient reasons for the delay in
submitting such request.
(b) Special temporary authorizations may be granted without regard
to the 30-day public notice requirements of Sec. 27.317 when:
(1) The authorization is for a period not to exceed 30 days and no
application for regular operation is contemplated to be filed;
(2) The authorization is for a period not to exceed 60 days pending
the filing of an application for such regular operation;
(3) The authorization is to permit interim operation to facilitate
completion of authorized construction or to provide substantially the
same service as previously authorized; or
(4) The authorization is made upon a finding that there are
extraordinary circumstances requiring operation in the public interest
and that delay in the institution of such service would seriously
prejudice the public interest.
(c) Temporary authorizations of operation not to exceed 180 days
may be granted under the standards of section 309(f) of the
Communications Act where extraordinary circumstances so require.
Extensions of the temporary authorization for a period of 180 days each
may also be granted, but the renewal applicant bears a heavy burden to
show that extraordinary circumstances warrant such an extension.
(d) In cases of emergency found by the Commission, involving danger
to life or property or due to damage of equipment, or during a national
emergency proclaimed by the president or declared by the Congress or
during the continuance of any war in which the United States is engaged
and when such action is necessary for the national defense or safety or
otherwise in furtherance of the war effort, or in cases of emergency
where the Commission finds that it would not be feasible to secure
renewal applications from existing licensees or otherwise to follow
normal licensing procedure, the Commission will grant radio station
authorizations and station licenses, or modifications or renewals
thereof, during the emergency found by the Commission or during the
continuance of any such national emergency or war, as special temporary
licenses, only for the period of emergency or war requiring such
action, without the filing of formal applications.
Sec. 27.315 Receipt of application; applications in the Wireless
Communications Service filed on FCC Form 175 and other applications in
the WCS Service.
(a) All applications for the initial provision of WCS service must
be submitted by means of electronic filing on FCC Forms 175 and 175-S.
Mutually exclusive initial applications in the Wireless Communications
Service are subject to competitive bidding. FCC Form [XXX]
(``Application for New or Modified Subscription Radio Service Radio
Station Under Part 27'') must be submitted by each winning bidder for
each WCS license applied for on FCC Form 175. In the event that mutual
exclusivity does not exist between applicants filing FCC Form 175, the
applicant will also file FCC Form 401. The aforementioned Forms 175,
175-S, and [XXX] are subject to the provisions of part 1, subpart Q, of
this chapter (``Competitive Bidding Proceedings'') and subpart D of
this part. Blanket licenses are granted for each market frequency
block. Applications for individual sites are not needed and will not be
accepted. See Sec. 27.11.
(b) Applications received for filing are given a file number. The
assignment of a file number to an application is merely for
administrative convenience and does not indicate the acceptance of the
application for filing and processing. Such assignment of a file number
will not preclude the subsequent return or dismissal of the application
if it is found to be defective or not in accordance with the
Commission's rules in this chapter.
(c) Acceptance of an application for filing merely means that it
has been the
[[Page 59070]]
subject of a preliminary review as to completeness. Such acceptance
will not preclude the subsequent return or dismissal of the application
if it is found to be defective or not in accordance with the
Commission's rules in this chapter.
Sec. 27.316 Public notice period.
(a) At regular intervals, the Commission will issue a public notice
listing:
(1) The acceptance for filing of all applications and major
amendments thereto;
(2) Significant Commission actions concerning applications listed
as acceptable for filing;
(3) Information which the Commission in its discretion believes of
public significance. Such notices are solely for the purpose of
informing the public and do not create any rights in an applicant or
any other person; or
(4) Special environmental considerations as required by part 1 of
this chapter.
(b) The Commission will not grant any application until expiration
of a period of seven (7) days following the issuance date of a public
notice listing the application, or any major amendments thereto, as
acceptable for filing. Provided, that the Commission will not grant an
application filed on Form [XXX] filed either by a winning bidder or by
an applicant whose Form 175 application is not mutually exclusive with
other applicants, until the expiration of a period of forty (40) days
following the issuance of a public notice listing the application, or
any major amendments thereto, as acceptable for filing. See also
Sec. 27.207.
(c) As an exception to paragraphs (a)(1), (a)(2) and (b) of this
section, the public notice provisions are not applicable to
applications:
(1) For authorization of a minor technical change in the facilities
of an authorized station where such a change would not be classified as
a major amendment (as defined by Sec. 27.314) were such a change to be
submitted as an amendment to a pending application;
(2) For issuance of a license subsequent to a radio station
authorization or, pending application for a grant of such license, any
special or temporary authorization to permit interim operation to
facilitate completion of authorized construction or to provide
substantially the same service as would be authorized by such license;
(3) For extension of time to complete construction of authorized
facilities, see Sec. 27.104;
(4) For temporary authorization pursuant to Sec. 27.314;
(5) For an authorization under any of the proviso clauses of
section 308(a) of the Communications Act of 1934 (47 U.S.C. 308(a));
(6) For consent to an involuntary assignment or transfer of control
of a radio authorization; or
(7) For consent to a voluntary assignment or transfer of control of
a radio authorization, where the assignment or transfer does not
involve a substantial change in ownership or control.
Sec. 27.317 Dismissal and return of applications.
(a) Any application may be dismissed without prejudice as a matter
of right if the applicant requests its dismissal prior to designation
for hearing or, in the case of applications filed on Forms 175 and 175-
S, prior to auction. An applicant's request for the return of his
application after it has been accepted for filing will be considered to
be a request for dismissal without prejudice. Applicants requesting
dismissal of their applications are also subject to Sec. 1.2104 of this
chapter.
(b) A request to dismiss an application without prejudice will be
considered after designation for hearing only if:
(1) A written petition is submitted to the Commission and is
properly served upon all parties of record; and
(2) The petition complies with the provisions of this section and
demonstrates good cause.
(c) The Commission will dismiss an application for failure to
prosecute or for failure to respond substantially within a specified
time period to official correspondence or requests for additional
information. Dismissal shall be without prejudice if made prior to
designation for hearing or prior to auction, but dismissal may be made
with prejudice for unsatisfactory compliance or after designation for
hearing or after the applicant is notified that it is the winning
bidder under the auction process.
Sec. 27.318 Ownership changes and agreements to amend or to dismiss
applications or pleadings.
(a) Applicability. Subject to the provisions of Sec. 1.2105 of this
chapter (Bidding Application and Certification Procedures; Prohibition
of Collusion), this section applies to applicants and all other parties
interested in pending applications who wish to resolve contested
matters among themselves with a formal or an informal agreement or
understanding. This section applies only when the agreement or
understanding will result in:
(1) A major change in the ownership of an applicant to which
Secs. 27.313(c) and 27.313(g) apply [or which would cause the applicant
to lose its status as a designated entity under Sec. 27.XXX]; or
(2) The individual or mutual withdrawal, amendment or dismissal of
any pending application, amendment, petition or other pleading.
(b) The provisions of Sec. 22.129 of this chapter will apply in the
event of the filing of petitions to deny or other pleadings or informal
objections filed against WCS applications. The provisions of
Sec. 22.129 of this chapter will apply in the event of dismissal of WCS
applications. The provisions of Sec. 22.129(c) of this chapter will
apply in the event of threats to file petitions to deny or other
pleadings or informal objections against WCS applications.
Sec. 27.319 Opposition to applications.
(a) Petitions to deny (including petitions for other forms of
relief) and responsive pleadings for Commission consideration must
comply with Sec. 27.207 and must:
(1) Identify the application or applications (including applicant's
name, station location, Commission file numbers and radio service
involved) with which it is concerned;
(2) Be filed in accordance with the pleading limitations, filing
periods, and other applicable provisions of Secs. 1.41 through 1.52 of
this chapter except where otherwise provided in Sec. 27.207;
(3) Contain specific allegations of fact which, except for facts of
which official notice may be taken, shall be supported by affidavit of
a person or persons with personal knowledge thereof, and which shall be
sufficient to demonstrate that the petitioner (or respondent) is a
party in interest and that a grant of, or other Commission action
regarding, the application would be prima facie inconsistent with the
public interest;
(4) Be filed within five (5) days after the date of public notice
announcing the acceptance for filing of any such application or major
amendment thereto (unless the Commission otherwise extends the filing
deadline); and
(5) Contain a certificate of service showing that it has been hand
delivered to the applicant no later than the date of filing thereof
with the Commission.
(b) A petition to deny a major amendment to a previously filed
application may only raise matters directly related to the amendment
which could not have been raised in connection with the underlying,
previously filed application. This does not apply to petitioners who
gain
[[Page 59071]]
standing because of the major amendment.
(c) Parties who file frivolous petitions to deny may be subject to
sanctions including monetary forfeitures, license revocation, if they
are FCC licensees, and may be prohibited from participating in future
auctions.
Sec. 27.320 Mutually exclusive applications.
(a) The Commission will consider applications to be mutually
exclusive if their conflicts are such that the grant of one application
would effectively preclude by reason of harmful electrical
interference, or other practical reason, the grant of one or more of
the other applications. The Commission will presume ``harmful
electrical interference'' to mean interference which would result in a
material impairment to service rendered to the public despite full
cooperation in good faith by all applicants or parties to achieve
reasonable technical adjustments which would avoid electrical conflict.
(b) Mutually exclusive applications filed on Form 175 for the
initial provision of WCS service are subject to competitive bidding in
accordance with the procedures in subpart F of this part and in part 1,
subpart Q, of this chapter.
(c) An application will be entitled to comparative consideration
with one or more conflicting applications only if the Commission
determines that such comparative consideration will serve the public
interest.
Sec. 27.321 Consideration of applications.
(a) Applications for an instrument of authorization will be granted
if, upon examination of the application and upon consideration of such
other matters as it may officially notice, the Commission finds that
the grant will serve the public interest, convenience, and necessity.
See also Sec. 1.2108 of this chapter.
(b) The grant shall be without a formal hearing if, upon
consideration of the application, any pleadings or objections filed, or
other matters which may be officially noticed, the Commission finds
that:
(1) The application is acceptable for filing, and is in accordance
with the Commission's rules (47 CFR chapter I), regulations, and other
requirements;
(2) The application is not subject to a post-auction hearing or to
comparative consideration pursuant to Sec. 27.320 with another
application(s);
(3) A grant of the application would not cause harmful electrical
interference to an authorized station;
(4) There are no substantial and material questions of fact
presented; and
(5) The applicant is qualified under current FCC regulations and
policies.
(c) If the Commission should grant without a formal hearing an
application for an instrument of authorization which is subject to a
petition to deny filed in accordance with Sec. 27.319, the Commission
will deny the petition by the issuance of a Memorandum Opinion and
Order which will concisely report the reasons for the denial and
dispose of all substantial issues raised by the petition.
(d) Whenever the Commission, without a formal hearing, grants any
application in part, or subject to any terms or conditions other than
those normally applied to applications of the same type, it shall
inform the applicant of the reasons therefor, and the grant shall be
considered final unless the Commission should revise its action (either
by granting the application as originally requested, or by designating
the application for a formal evidentiary hearing) in response to a
petition for reconsideration which:
(1) Is filed by the applicant within thirty (30) days from the date
of the letter or order giving the reasons for the partial or
conditioned grant;
(2) Rejects the grant as made and explains the reasons why the
application should be granted as originally requested; and
(3) Returns the instrument of authorization.
(e) The Commission will designate an application for a formal
hearing, specifying with particularity the matters and things in issue,
if, upon consideration of the application, any pleadings or objections
filed, or other matters which may be officially noticed, the Commission
determines that:
(1) A substantial and material question of fact is presented (see
also Sec. 1.2108 of this chapter);
(2) The Commission is unable for any reason to make the findings
specified in paragraph (a) of this section and the application is
acceptable for filing, complete, and in accordance with the
Commission's rules, regulations, and other requirements; or
(3) The application is entitled to comparative consideration (under
Sec. 27.320) with another application (or applications).
(f) The Commission may grant, deny or take other action with
respect to an application designated for a formal hearing pursuant to
paragraph (e) of this section or part 1 of this chapter.
(g) Reconsideration or review of any final action taken by the
Commission will be in accordance with part 1, subpart A, of this
chapter.
Sec. 27.322 Post-auction divestitures.
Any parties sharing a common non-controlling ownership interest who
aggregate more WCS spectrum among them than a single entity is entitled
to hold will be permitted to divest sufficient properties within 90
days of the license grant to come into compliance with the spectrum
aggregation limits as follows:
(a) The WCS applicant shall submit a signed statement with its
long-form application stating that sufficient properties will be
divested within 90 days of the license grant. If the licensee is
otherwise qualified, the Commission will grant the applications subject
to a condition that the licensee come into compliance with the WCS
spectrum aggregation limits within 90 days of grant.
(b) Within 90 days of license grant, the licensee must certify that
the applicant and all parties to the application have come into
compliance with the WCS spectrum aggregation limits. If the licensee
fails to submit the certification within 90 days, the Commission will
immediately cancel all broadband WCS licenses won by the applicant,
impose the default payment and, based on the facts presented take any
other action it may deem appropriate. Divestiture may be to an interim
trustee if a buyer has not been secured in the required time frame, as
long as the applicant has no interest in or control of the trustee, and
the trustee may dispose of the property as it sees fit. In no event may
the trustee retain the property for longer than six months from grant
of license.
Sec. 27.323 Transfer of control or assignment of station
authorization.
(a) Authorizations shall be transferred or assigned to another
party, voluntarily (for example, by contract) or involuntarily (for
example, by death, bankruptcy, or legal disability), directly or
indirectly or by transfer of control of any corporation holding such
authorization, only upon application and approval by the Commission. A
transfer of control or assignment of station authorization in the
Wireless Communications Service is also subject to Sec. 1.2111 of this
chapter (Assignment or transfer of control: unjust enrichment).
(1) A change from less than 50% ownership to 50% or more ownership
shall always be considered a transfer of control.
(2) In other situations a controlling interest shall be determined
on a case- by-case basis considering the distribution of ownership, and
the
[[Page 59072]]
relationships of the owners, including family relationships.
(b) Form required: (1) Assignment. (i) FCC Form 490 shall be filed
to assign a license or permit.
(ii) In the case of involuntary assignment, FCC Form 490 shall be
filed within 30 days of the event causing the assignment.
(2) Transfer of control. (i) FCC Form 490 shall be submitted in
order to transfer control of a corporation holding a license or permit.
(ii) In the case of involuntary transfer of control, FCC Form 490
shall be filed within 30 days of the event causing the transfer.
(3) Form 430. Whenever an application must be filed under
paragraphs (a)(1) or (a)(2) of this section, the assignee or transferee
shall file FCC Form 430 (``Common Carrier Radio License Qualification
Report'') unless an accurate report is on file with the Commission.
(4) Notification of completion. The Commission shall be notified by
letter of the date of completion of the assignment or transfer of
control.
(5) If the transfer of control of a license is approved, the new
licensee is held to the original build-out requirement of Sec. 27.104.
(c) In acting upon applications for transfer of control or
assignment, the Commission will not consider whether the public
interest, convenience, and necessity might be served by the transfer or
assignment of the authorization to a person other than the proposed
transferee or assignee.
(d) Applicants seeking to transfer their licenses within three
years after the initial license grant date are required to file,
together with their transfer application, the associated contracts for
sale, option agreements, management agreements, and all other documents
disclosing the total consideration to be received in return for the
transfer of the license.
Sec. 27.324 Termination of authorization.
(a)(1) All authorizations shall terminate on the date specified on
the authorization or on the date specified by the rules in this part,
unless a timely application for renewal has been filed.
(2) If no application for renewal has been made before the
authorization's expiration date, a late application for renewal will
only be considered if it is filed within 30 days of the expiration date
and shows that the failure to file a timely application was due to
causes beyond the applicant's control. During this 30 day period
reinstatement applications must be filed on FCC Form 489. Service to
subscribers need not be suspended while a late filed renewal
application is pending, but such service shall be without prejudice to
Commission action on the renewal application and any related sanctions.
See also Sec. 27.14 (Criteria for Comparative Renewal Proceedings).
(b) Special Temporary Authority. A special temporary authorization
shall automatically terminate upon failure to comply with the
conditions in the authorization.
PART 97--AMATEUR RADIO SERVICE
1. The authority citation for part 97 continues to read as follows:
Authority: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303.
Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47
U.S.C. 151-155, 301-609, unless otherwise noted.
2. Section 97.303(j)(2) is revised to read as follows:
Sec. 97.303 Frequency sharing requirements.
* * * * *
(j) * * *
(2) The 2300-2310 MHz segment is allocated to the amateur service
on a secondary basis. The 2390-2400 MHz and 2402-2417 MHz segments are
allocated to the amateur service on a primary basis. No amateur station
transmitting in the 2400-2450 MHz segment is protected from
interference due to the operation of industrial, scientific, and
medical devices on 2450 MHz.
* * * * *
[FR Doc. 96-29530 Filed 11-15-96; 10:55 am]
BILLING CODE 6712-01-P
