[Federal Register Volume 59, Number 243 (Tuesday, December 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30753]
[[Page Unknown]]
[Federal Register: December 20, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 94
[ET Docket No. 92-9; FCC 94-303]
Redevelopment of Spectrum To Encourage Innovation in the Use of
New Telecommunications Technologies
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: By this Second Memorandum Opinion and Order (Second MO&O) the
Commission refines and clarifies the rules and policies adopted to make
spectrum available for emerging telecommunications technologies. The
Second MO&O adopts rules to complete a regulatory framework for
relocating fixed microwave operations where necessary to implement
services using emerging technologies in the 2 GHz bands. This action is
necessary to provide 2 GHz spectrum for future wireless communications
services while preventing disruption to incumbent 2 GHz fixed microwave
licensees. This action facilitates future authorizations of a broad
range of new wireless communications services that employ emerging
technologies.
EFFECTIVE DATE: January 19, 1995.
FOR FURTHER INFORMATION CONTACT: Fred Lee Thomas, Office of Engineering
and Technology, (202) 653-6204.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Memorandum Opinion and Order (Second MO&O) adopted November 28, 1994,
and released December 2, 1994. A summary of the Memorandum Opinion and
Order (MO&O) that is reconsidered in the Second MO&O may be found at 59
FR 19642 (April 25, 1994). This action will not add to or decrease the
public reporting burden. The full text of this Commission decision is
available for inspection and copying during regular business hours in
the FCC Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision also may be purchased from the
Commission's duplication contractor, International Transcription
Service, (202) 857-3800, 2100 M Street, NW., Washington, DC 20037.
Summary of the Second Memorandum Opinion and Order
1. The Second MO&O responded to a Petition for Reconsideration
filed jointly by the Public Safety Microwave Committee (PSMC), the
Association of Public-Safety Communications Officials-International,
Inc. (APCO), the County of Los Angeles (LA County), and the Forestry-
Conservation Communication Association (FCCA) (collectively
``Petitioners''). Petitioners requested that the Commission not subject
incumbent public safety facilities to mandatory relocation.
2. The Second MO&O effected changes to the rules to further the
Commission's goals of providing for the fair and equitable sharing of 2
GHz spectrum by new services and the existing fixed microwave services
that currently use these frequencies, and for the relocation of
existing 2 GHz facilities to other spectrum where necessary. The rules
provide licensees of services using emerging technologies with access
to 2 GHz frequencies in a reasonable timeframe, while at the same time
preventing disruption to existing 2 GHz operations and minimizing the
economic impact on the existing licensees.
3. Specifically, the Commission amended the negotiation procedures
for mandatory relocation of existing microwave facilities to provide
for use of independent estimates of the cost to replace an existing
facility in resolving disputes between licensees of existing facilities
and new service providers. The Commission also modified the relocation
plan to extend the mandatory negotiation period for public safety
entities to two years. The relocation plan for public safety facilities
will now provide a three-year period for voluntary negotiations
followed by a two-year period for mandatory negotiations.
4. In the First Report and Order in this proceeding 57 FR 49020,
October 29, 1992, the Commission exempted licensees of incumbent public
safety facilities from involuntary relocation. In the Third Report and
Order, 58 FR 46547, September 1993, it clarified the definition of
public safety. The Commission's purpose in each decision was to ensure
that essential safety of life and property communications are not
disrupted or otherwise disadvantaged.
5. In the MO&O the Commission concluded on its own motion that it
would be in the public interest to subject all incumbent facilities,
including public safety, to mandatory relocation if an emerging
technology provider requires the spectrum. Of particular concern was
providing adequate spectrum for operation of new licensed personal
communications services (PCS) services, and operation of unlicensed PCS
devices, in major urban areas where there are a large number of
incumbent public safety fixed microwave facilities. It has been
recognized by incumbent fixed microwave users and PCS interests alike
that it will not be possible for PCS and fixed microwave to operate in
the same geographic area on the same frequency without interfering with
each other. Upon review of the record, the Commission concluded that
PCS service may be precluded or severely limited in some areas unless
public safety licensees relocate when necessary. Allowing all public
safety facilities to remain in the band indefinitely would defeat the
Commission's primary goal of providing usable spectrum for the
implementation of emerging technologies.
6. In the Second MO&O the Commission stated that it continues to
believe that it is in the public interest to subject all incumbent 2
GHz fixed microwave facilities, including public safety licensees, to
mandatory relocation if an emerging technology provider requires the
spectrum they are using. The Commission concluded that its decision is
supported by the record in this proceeding. Further, the Commission
stated that this decision, along with the associated transition adopted
in previous decisions, as modified in the MO&O, provides a fair balance
between the interests of the incumbent fixed microwave service and
those services that will use new emerging technologies, such as PCS.
Specifically, the transition policy for mandatory relocation of
incumbent public safety operations required to relocate, summarized
below, will not disadvantage public safety incumbents.
--All relocation costs will be paid entirely by the emerging technology
licensee. These costs include all engineering, equipment, and site
costs and FCC fees, as well as any reasonable additional costs.
--Relocation facilities must be fully comparable to those being
replaced.
--All activities necessary for placing the new facilities into
operation including engineering and frequency coordination must be
completed before relocation, including engineering and frequency
coordination.
--The new communications system must be fully built and tested before
the relocation itself commences.
--Should the new facilities in practice prove not to be equivalent in
every respect, within one year the public safety operation may relocate
back to its original facilities and stay there until complete
equivalency (or better) is attained.
7. When disputes do arise in relocation negotiations, the
Commission stated that they can be resolved best through individual
mediation and arbitration efforts rather than adjudication by the
Commission. Thus, the Commission emphasized its intent to use
alternative dispute resolution (``ADR'') techniques to expedite and
improve the relocation process whenever feasible. Resolution of such
disputes entirely by the Commission's adjudication processes would be
time consuming and costly to all parties. Therefore, the Commission
continued to encourage parties unable to voluntarily conclude
relocation agreements to employ ADR techniques during both the
voluntary and mandatory negotiation periods.
8. Nevertheless, the Commission stated that it is cognizant of
Petitioners' concern that public safety entities with limited resources
not be placed in situations in which they would have to accept less
favorable terms if disputes arise in the negotiation and relocation
process. In considering this issue, in addition to or as a supplement
to ADR, the Commission stated that it believes an effective way to
expedite the negotiation process and minimize the burden on all parties
in these situations is to encourage parties to utilize independent,
impartial estimates of the costs to relocate the existing operation to
a comparable facility. In order to be fair to all parties, the
independent estimates would need to include both the specifications for
a comparable new facility and the costs associated with providing that
facility to the incumbent licensee. The Commission stated that it
believes that in most cases the availability of the option of choosing
to resolve disputes through the use of independent estimates will
provide an incentive for both sides in a negotiation to work quickly
towards a mutually agreeable solution. In cases in which such estimates
are obtained, they will provide a benchmark for an agreement that could
avoid the need for the parties bringing the dispute to the Commission.
However, where such disputes come before the Commission, it will expect
the incumbent to have obtained bona fide independent estimates of its
relocation costs and to present those estimates to the Commission for
consideration.
9. Accordingly, the Commission modified its mandatory relocation
procedures to provide for consideration of independent estimates by
third parties not associated or otherwise affiliated with either the
incumbent licensee or the new service provider. Under this new
provision, the Commission will consider the independent estimates of
the cost of replacement facilities obtained by incumbent licensees in
deciding any relocation disputes that are brought before it. The
Commission stated that it believes that the responsibility for
obtaining independent estimates should rest with the incumbent
licensee, as the licensee will be in the best position to describe to
parties preparing estimates the operating requirements for the new
facility. Incumbent licensees are encouraged to present two separately
prepared estimates obtained from qualified professional third parties.
10. The Commission stated that independent estimates presented in
disputes brought to it for resolution must include a specification for
the comparable facility and a statement of costs of providing that
facility to the incumbent licensee. The specification should describe
the design and technical parameters of the new facility, the equipment
to be used in its construction, a statement attesting to the
comparability of the proposed new facility to the facility it would
replace, and a testing and transition plan. The cost statement should
include individual estimates for the design of the new facility,
equipment, and testing, as well as the transition. Where the two
estimates are substantially different, the Commission expects the
participating parties to choose the most reliable and reasonable
estimate, average the two estimates, or obtain a third estimate by a
mutually agreeable party. If a dispute is brought to the Commission, it
will consider the two estimates as evidence of the relocation cost but
retain discretion to make its own determination based upon the facts
presented to the Commission. In deciding such cases, the Commission
stated that it intends to be guided by the principle of ensuring that
the incumbent is provided a comparable facility at the minimum cost to
the new service provider.
11. The Commission stated that it encouraged public safety
licensees to obtain two independent estimates of the cost to relocate
with comparable facilities early in the relocation process. The
Commission believes that such estimates will be very helpful in the
negotiation process, including those cases that employ ADR techniques.
Moreover, having such estimates at its disposal, should Commission
intervention become necessary, will expedite a relocation process that
is fair to all parties.
12. The Commission also shared Petitioners' concern that public
safety systems, especially those in rural areas, must have adequate
time to negotiate relocation agreements. Previously, the Commission
recognized that the demand for the new technology spectrum will vary
from market to market and from one area to another and that in some
areas, incumbent 2 GHz facilities may not need to relocate as quickly
as in areas where spectrum is needed more quickly for emerging
technologies. In the MO&O, the Commission adopted a bifurcated four-
year voluntary/one-year mandatory negotiation period to accommodate
these variations in demand. However, the Commission agreed with
Petitioners that public safety licensees may need more than one year to
negotiate agreements where the negotiations do not start until sometime
after the voluntary period has expired. Accordingly, the Commission
modified the relocation plan to extend the mandatory negotiation period
for public safety entities to two years. However, the Commission
concluded that it would not serve the public interest in implementing
broadband PCS to extend to six years the current five year period of
protection for public safety facilities. As stated previously in this
proceeding, the Commission's primary goal is to provide usable spectrum
for the implementation of emerging technologies in an expeditious
manner. Therefore, the Commission maintained the current five year
period for public safety facilities by shortening the four-year
voluntary period to three-years. The relocation plan for public safety
facilities will thus provide a three-year period for voluntary
negotiations followed by a two-year period for mandatory negotiations.
This will provide public safety entities, especially those with
facilities in rural areas, ample time to negotiate and conclude
agreements.
13. Ordering Clauses. Accordingly, it is ordered, That the petition
for reconsideration filed jointly by the Public Safety Microwave
Committee, the Association of Public-Safety Communications Officials-
International, Inc., the County of Los Angeles, and the Forestry-
Conservation Communication Association IS GRANTED to the extent
described above and is denied in all other respects. Further, it is
ordered, That Part 94 of the Commission's Rules and Regulations is
amended as specified in the Appendix, effective 30 days after
publication in the Federal Register. This action is taken pursuant to
Sections 4(i), 7(a), 303(c), 303(g), and 303(r), of the Communications
Act of 1934, as amended, 47 U.S.C. Sections 154(i), 157(a), 303(c),
303(g), and 303(r).
List of Subjects in 47 CFR Part 94
Radio.
Amendatory Text
Title 47 of the Code of Federal Regulations, Part 94, is amended as
follows:
PART 94--PRIVATE OPERATIONAL-FIXED MICROWAVE SERVICE
1. The authority citation in Part 94 continues to read:
Authority: Secs. 4, 303, 48 Stat., as amended, 1066, 1082; 47
U.S.C. 154, 303, unless otherwise noted.
2. Sections 94.59(b) and 94.59(f) are revised to read as follows:
Sec. 94.59 Transition of the 1.85-1.99, 2.13-2.15, and 2.18-2.20 GHz
bands from Private Operational-Fixed Microwave Service to emerging
technologies.
* * * * *
(b) Private Operational-Fixed Microwave Service licensees, with the
exception of public safety facilities defined in paragraph (f) of this
section, in bands allocated for licensed emerging technology services
will maintain primary status in these bands until two years after the
Commission commences acceptance of applications for an emerging
technology service (two-year voluntary negotiation period), and until
one year after an emerging technology service licensee initiates
negotiations for relocation of the fixed microwave licensee's
operations (one-year mandatory negotiation period) or, in bands
allocated for unlicensed emerging technology services, until one year
after an emerging technology unlicensed equipment supplier or
representative initiates negotiations for relocation of the fixed
microwave licensee's operations (one-year mandatory negotiation
period). When it is necessary for an emerging technology provider or
representative of unlicensed device manufacturers to negotiate with a
fixed microwave licensee with operations in spectrum adjacent to that
of the emerging technology provider, the transition schedule of the
entity requesting the move will apply. Public safety facilities defined
in paragraph (f) of this section will maintain primary status in these
bands until three years after the Commission commences acceptance of
applications for an emerging technology service (three-year voluntary
negotiation period), and until two years after an emerging technology
service licensee or an emerging technology unlicensed equipment
supplier or representative initiates negotiations for relocation of the
fixed microwave licensee's operations (two-year mandatory negotiation
period).
* * * * *
(f) Public safety facilitates subject to the three-year voluntary
and two-year mandatory negotiation periods, are those in which the
majority of communications carried are used for police, fire, or
emergency medical services operations involving safety of life and
property. The facilities within this exception are those Part 94
facilities currently licensed on a primary basis pursuant to the
eligibility requirements of Section 90.19, Police Radio Service;
Section 90.21, Fire Radio Service; Section 90.27, Emergency Medical
Radio Service; and Subpart C of Part 90, Special Emergency Radio
Services. Licensees of other Part 94 facilities licensed on a primary
basis under the eligibility requirements of Part 90, Subparts B and C,
are permitted to request similar treatment upon demonstrating that the
majority of the communications carried on those facilities are used for
operations involving safety of life and property.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 94-30753 Filed 12-19-94; 8:45 am]
BILLING CODE 6712-01-M
