[Federal Register Volume 63, Number 37 (Wednesday, February 25, 1998)]
[Rules and Regulations]
[Pages 9443-9448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4750]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 101
[CC Docket No. 92-297; FCC 98-15]
Reconsideration of the Rules and Policies for Local Multipoint
Distribution Service
AGENCY: Federal Communications Commission.
ACTION: Final rule; petitions for reconsideration.
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SUMMARY: The Federal Communications Commission has adopted a Third
Order on Reconsideration (Third Reconsideration Order) in the Local
Multipoint Distribution Service (LMDS) proceeding, reaffirming its
commitment to the rapid implementation of LMDS and the broad range of
one-way and two-way voice, video, and data service capabilities that
LMDS offers. LMDS is a fixed, point-to-multipoint wireless service that
has the flexibility and potential to promote competition in the
telephony and cable distribution marketplaces, as well as to introduce
new and innovative services to the public. The action is taken to
resolve petitions for reconsideration of the service rules, except the
competitive bidding rules, adopted in the Second Report and Order,
Order on Reconsideration, and Fifth Notice of Proposed Rulemaking
(Second Report and Order) to implement LMDS in the 27.5-28.35 GHz,
29.1-29.25 GHz , and 31.0-31.3 GHz frequency bands. The limited
revisions to the Commission's rules adopted in this Third
Reconsideration Order will permit certain point-to-point operations on
a secondary basis to LMDS in the 31 GHz band under the previous service
rules replaced by LMDS without adversely affecting LMDS or the
initiation of the auction and licensing of LMDS under the LMDS service
rules.
EFFECTIVE DATE: April 27, 1998.
FOR FURTHER INFORMATION CONTACT: Barbara Reideler or Jay Whaley, Policy
Division, Wireless Telecommunications Bureau, (202) 418-1310.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Third
Reconsideration Order in CC Docket No. 92-297, FCC 98-15, adopted on
February 3, 1998, and released on February 11, 1998. The complete text
of this decision 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
copy contractor, International Transcription Service, (202) 857-3800,
1231 20th Street, N.W., Washington, DC 20036.
Synopsis of Third Reconsideration Order
1. On March 11, 1997, the Commission adopted a Second Report and
Order, Order on Reconsideration, and Fifth Notice of Proposed
Rulemaking (Second Report and Order) 1 in this proceeding,
which designated the 31.0-31.3 GHz frequency band (31 GHz band) for
Local Multipoint Distribution Service (LMDS) and adopted competitive
bidding and service rules to implement LMDS in the 27.5-28.35 GHz and
29.1-29.25 GHz frequency bands (28 GHz band) and the 31 GHz band. In
this Third Order on Reconsideration (Third Reconsideration Order), the
Commission addressed petitions for reconsideration and clarification of
the Second Report and Order, except petitions for reconsideration of
the LMDS competitive bidding rules.2 The petitions were
denied, with one exception that resulted in limited revisions to the
rules adopted in the Second Report and Order. The Third Reconsideration
Order deferred consideration of the comments filed in response to the
Fifth Notice of Proposed Rulemaking, which was issued in conjunction
with the Second Report and Order, to a separate Report and Order to be
issued in the near future.
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\1\ Rulemaking To Amend Parts 1, 2, 21, and 25 of the
Commission's Rules To Redesignate the 27.5-29.5 GHz Frequency Band,
To Reallocate the 29.5-30.0 GHz Frequency Band, To Establish Rules
and Policies for Local Multipoint Distribution Service and for Fixed
Satellite Services, Petitions for Reconsideration of the Denial of
Applications for Waiver of the Commission's Common Carrier Point-to-
Point Microwave Radio Service Rules, CC Docket No. 92-297, Suite 12
Group Petition for Pioneer Preference, PP-22; Second Report and
Order, Order on Reconsideration, and Fifth Notice of Proposed
Rulemaking, 12 FCC Rcd 12545 (1997), 62 FR 23148, April 29, 1997,
and 62 FR 16514, April 7, 1997.
\2\ The petitions for reconsideration of the LMDS competitive
bidding rules were considered in the Second Order on Reconsideration
at 62 FR 48787, September 17, 1997.
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2. The Second Report and Order adopted an ownership rule that
imposed a three-year restriction on the eligibility of incumbent local
exchange companies (LECs) and incumbent cable companies to hold an
attributable interest in the larger LMDS license of 1,150 megahertz
whose geographic service area significantly overlaps such incumbent's
authorized or franchised service area. The Third Reconsideration Order
reviewed the portion of the eligibility restriction that permits
incumbent LECs and incumbent cable companies to bid
[[Page 9444]]
on and acquire such an in-region LMDS license, so long as they
subsequently come into compliance with the eligibility restriction
through divestiture of the ineligible interests or areas within 90 days
of the grant of such license.
3. The Commission affirmed that the divestiture rule is consistent
with similar rules in similar ownership eligibility restrictions and
would not undermine the restriction. Ineligible incumbents would not be
able to distort the auction process, which is protected by several
provisions that prevent various anticompetitive strategies. The rule
also is consistent with the Commission's goal to structure the
eligibility restriction as flexibly as possible to minimize potential
adverse limitations on incumbent LECs and incumbent cable companies by
permitting them to compete for the LMDS license and then decide which
business to pursue or divest.
4. The Third Reconsideration Order also reviewed the portion of the
eligibility rule that defines an ownership interest of 20 percent or
higher as an attributable interest for eligibility purposes. The
Commission affirmed that the 20 percent attribution level better serves
the competitive goals for LMDS than a 10 percent attribution level for
several reasons. The 20 percent level maximizes the opportunity for
competition and increases the availability of financing by permitting a
wide variety of players to enter the markeplace and provide financing,
while preventing anticompetitive activities of incumbents. The 20
percent level was reasonably based upon a market analysis and
predictive judgments that weighed and balanced several competing
interests, and was adopted because it is more reasonable than other
levels in achieving the goals of the eligibility restriction. In
addition, there are safeguards in the LMDS attribution rule that make
incumbent cable companies ineligible to hold a controlling interest in
an LMDS licensee, even if their attributable ownership interest is less
than 20 percent.
5. The Commission found that the 20 percent level is consistent
with the ownership restriction that applies to similar wireless
services and that was adopted to achieve similar goals to promote
competition and prevent the concentration of spectrum among entities
with the incentive to prevent competition. Although the Commission uses
a 5 percent level in another ownership restriction, the circumstances
are different and require a more restrictive approach than LMDS.
Different ownership attribution standards have been adopted in the
context of different rulemakings, depending on the particular
circumstances and objectives in each case.
6. The Commission also reviewed the portion of the eligibility rule
that does not treat debts, warrants and similar convertible interests
as attributable interests until conversion is effected. The Third
Reconsideration Order affirmed the rule, which is consistent with
similar ownership restrictions adopted by the Commission. The different
treatment of such debts and interests in the attributable interest
provisions of the LMDS designated entity auction rules also adopted in
the Second Report and Order was based on the different circumstances
and objectives of the designated entity rules and was consistent with
the auction rules adopted in other services. The Third Reconsideration
Order found that existing Commission rules prevent incumbent LECs and
incumbent cable companies that hold such convertible instruments from
engaging in anticompetitive activities and undermining the eligibility
restriction. In addition, the Commission has adopted ownership
disclosure requirements that the Third Reconsideration Order directs
LMDS applicants to address in the long-form applications to be filed by
the LMDS auction winners and that provide additional safeguards to
ensure that anticompetitive conduct does not materialize.
7. The Third Reconsideration Order determined that the policies and
criteria used in establishing ownership restrictions in various
rulemakings for different services would benefit from a comprehensive
evaluation. Accordingly, the Commission decided to initiate a
proceeding to examine the various ownership restrictions, including
their ownership attribution standards and their treatment of
convertible interests, later this year.
8. The Third Reconsideration Order reviewed the decision to apply
the eligibility restriction to all incumbent LECs and incumbent cable
companies, including rural incumbent LECs. The Commission affirmed that
the rule is consistent with the policy objectives of section 309(j) of
the Communications Act to promote competition in all areas, ensure
prompt delivery of service to rural areas, and provide opportunities
for rural telephone companies. Rural incumbent LECs have the same
incentives for anticompetitive use of LMDS licenses as other incumbent
LECs to bar the entry of new competitors. The eligibility restriction
reserves the initial licensing of LMDS for entrants without market
power to ensure new competitors to all areas, including rural areas.
9. The Commission also concluded that the eligibility restriction
does not subject rural incumbent LECs to greater disqualification under
its definition of a significant overlap, which occurs when the service
area of an incumbent LEC or incumbent cable company includes at least
10 percent of the population of the LMDS licensed service area. Whether
applied to an entire licensed area or a smaller partitioned licensed
area, a significant overlap was determined to create the potential for
exercise of undue market power by incumbent LECs, including rural
incumbent LECs. The Commission affirmed that if an incumbent LEC or
incumbent cable company, including a rural incumbent LEC, is prevented
from acquiring an LMDS license that significantly overlaps its service
area, it is not barred altogether from acquiring an LMDS license and
several alternatives are available. The incumbent LEC or incumbent
cable company may acquire an LMDS license that does not significantly
overlap, that overlaps so long as it divests the overlapping area
within 90 days of a grant of the license, or that is partitioned from a
larger LMDS license and complies with the eligibility restriction.
Incumbents also may acquire the 150 megahertz LMDS license to which the
eligibility restriction does not apply.
10. The Third Reconsideration Order noted that in the Second Report
and Order, the Commission has committed to initiate a review of the
eligibility restriction in the year 2000, in order to determine whether
the restriction should be extended to promote competition. The
Commission determined, on reconsideration, to begin this review prior
to 2000 and to provide a framework for the use of the Commission's
resources in carrying out the review. Therefore, the Chief Economist,
the Chief of the Cable Services Bureau, the Chief of the Common Carrier
Bureau, the Chief of the Mass Media Bureau, the Chief of the
International Bureau, the General Counsel, and the Chief of the
Wireless Telecommunications Bureau were instructed to prepare jointly a
study examining whether there has been sufficient entry and increases
in competition to sunset the eligibility restriction on incumbent LECs
and incumbent cable companies. The results of this study, together with
a joint recommendation, are to be submitted to the Commission no later
than June 30, 1999. Based on the report and joint
[[Page 9445]]
recommendation, the Commission intends to determine whether to initiate
a rulemaking proceeding to extend the date for the termination of the
eligibility restriction.
11. The Third Reconsideration Order identified safeguards that
exist, even after the eligibility restriction is terminated, to ensure
that proposed license acquisitions by incumbent LECs or incumbent cable
operators will not be inconsistent with the pro-competitive policies on
which the restriction is based. After the initial auctioning of LMDS
licenses, licenses are acquired under the Commission's transfer and
assignment rules, which require prior Commission approval. The Third
Reconsideration Order determined that the Commission would consider
whether a particular market is sufficiently competitive before granting
approval, and would rely on an examination of the same factors
identified in the Second Report and Order for determining whether a
market is sufficiently competitive to grant a waiver of the eligibility
restriction under section 101.1003(a)(2) of the Commission's Rules (47
CFR 101.1003(a)(2)).
12. The Third Reconsideration Order granted a petition for
clarification of the LMDS technical rules concerning frequency
coordination and emission masks. The Second Report and Order imposed a
frequency coordination requirement on LMDS licensees that requires
licensees to initiate the coordination procedures in the Commission's
rules to avoid interference problems with any neighboring LMDS licensee
located within 20 kilometers of the boundaries of its service area. The
Commission clarified that the identity of any such neighboring
licensees is readily available in the Commission's database in order
for the LMDS licensee to fulfill its obligation to provide notification
of its operations to such neighbors. The Commission further clarified
that such neighbor is required to respond to the notification with
specific information concerning any problem, providing the LMDS
licensee with sufficient information to further enable it to fulfill
its obligation to complete the coordination process. The Third
Reconsideration Order also clarified that the emission mask
requirements in part 101 of the Commission's Rules apply to LMDS and
that LMDS will be governed by the emission specifications set out in
section 101.111 of the Rules (47 CFR 101.111(a)(2)).
13. The Third Reconsideration Order reviewed whether the flexible
LMDS construction rule, which requires LMDS licensees to demonstrate
substantial service during the 10-year licensed period in order to be
granted license renewal, adversely impacts rural LECs and is
inconsistent with section 309(j) of the statute. The Commission
affirmed that the flexibility of the rule will promote efficient use of
the spectrum, encourage service to rural areas, and prevent the
warehousing of spectrum, which are consistent with the policies in
section 309 (j). The Commission affirmed that specific construction
benchmarks were not devised because of the broad range of new and
innovative LMDS services, many of which are in the design stage.
Stricter requirements could discourage participation in LMDS because
the services and equipment are under development.
14. The Third Reconsideration Order upheld the decision to
designate the entire 300 megahertz in the 31 GHz band for LMDS and to
terminate licensing under the previous service rules, which provided a
point-to-point localized service in the 31 GHz band. In denying the
petition for reconsideration to designate only 150 megahertz in the 31
GHz band plan for LMDS, the Commission found that there was adequate
support for its finding that the entire 300 megahertz should be
designated to LMDS to ensure its potential for development of a full
range of broadband telecommunications and video distribution services
and to fulfill the Commission's obligation to designate spectrum for
the most effective and efficient use.
15. The Third Reconsideration Order reviewed the decision to
dismiss the applications that were filed under the previous point-to-
point 31 GHz service rules and were pending at the Commission when the
LMDS service rules were adopted for the 31 GHz band on March 11, 1997,
in the Second Report and Order. On reconsideration, the dismissed
applicants were allowed to refile the dismissed applications within 60
days of the effective date of the Third Reconsideration Order under
existing application rules in part 101 of the Commission's Rules (47
CFR 101.1, et seq.). Operating rules were modified to permit the 31 GHz
operations under the technical parameters that applied to previously
authorized 31 GHz licenses.
16. The Third Reconsideration Order permitted authorization of the
same stations and services requested in the dismissed applications, but
prohibited expansion of the authorized operations beyond the scope of
the initial license. The new licensees and the existing 31 GHz
licensees were directed to share the band with each other consistent
with such authorizations under the previous rules. However, all
operations in the new licenses will be authorized on a secondary basis
to LMDS operations, and any such new 31 GHz operations are required not
to interfere with LMDS operations and to accept any interference from
LMDS. The Commission concluded that these unique circumstances
prevented any adverse impact on LMDS operations to be provided in the
31 GHz band and on the future licensing of the band under the LMDS
service rules.
17. Only entities that had applications dismissed when the Second
Report and Order was adopted were eligible to refile such applications
under the previous 31 GHz application rules for secondary authorization
to LMDS. Similar treatment was not accorded to entirely new
applications for future licensing under the previous 31 GHz services,
because that would not alleviate concerns of potential harm to LMDS or
benefit such future licensees in the face of incompatible LMDS
operations. The Third Reconsideration Order, however, recognized the
important public interest objectives of governmental entities that
requested ongoing licensing of the 31 GHz band under the previous 31
GHz service rules for traffic control systems that meet Federal goals
to reduce vehicular traffic congestion and air pollution. Several
alternative means were identified by which such governmental entities
may still acquire authorization for spectrum use or can otherwise
obtain the traffic services they need.
18. The Third Reconsideration Order reviewed the Order on
Reconsideration issued in conjunction with the Second Report and Order
that upheld the decision to dismiss several hundred waiver applications
for authority to provide LMDS in the 28 GHz band under the previous 28
GHz service rules. The Commission denied petitioners' claims on further
reconsideration that dismissal of their 28 GHz waiver applications was
the result of retroactive rulemaking and disparate treatment, and
should not have been summarily dismissed. The Commission explained that
an applicant has no vested right to a continuation of the substantive
standards in effect at the time an application was filed and, thus, the
waiver applicants had no vested rights that were affected. In addition,
unless a waiver of the rules was granted as the applicants requested,
applications that failed to comply with the 28 GHz licensing rules
under which they were filed may be dismissed summarily.
[[Page 9446]]
Supplemental Final Regulatory Flexibility Analysis
19. As required by the Regulatory Flexibility Act, see 5 U.S.C. 603
(RFA), a Final Regulatory Flexibility Analysis (FRFA) was incorporated
in the Second Report and Order, Order on Reconsideration, and Fifth
Notice of Proposed Rulemaking (Second Report and Order) in this
proceeding. The Commission's Supplemental Final Regulatory Flexibility
Analysis (SFRFA) in this Third Reconsideration Order reflects revised
or additional information to that contained in the FRFA. The SFRFA thus
is limited to matters raised in response to the Second Report and Order
that are granted on reconsideration in the Third Reconsideration Order.
This SFRFA conforms to the RFA, as amended by the Contract with America
Advancement Act of 1996 (CWAAA), Public Law 104-121, 110 Stat. 846
(1996), codified at 5 U.S.C. 601 et seq.
I. Need For and Objectives of the Action
20. The actions taken in this Third Reconsideration Order are in
response to petitions for reconsideration or clarification of the
service rules, except competitive bidding rules, adopted in the Second
Report and Order to implement the new Local Multipoint Distribution
Service (LMDS) in the 28 GHz and 31 GHz frequency bands. The petitions
are denied, except the petitions seeking reconsideration of the
decision to dismiss the pending applications requesting authorization
of 31 GHz services under the previous service rules. The rule changes
adopted in the Third Reconsideration Order allow the dismissed
applicants to refile their applications for the same 31 GHz
authorization, but on a secondary basis to LMDS. The rule changes are
intended to permit the limited 31 GHz services requested in the
dismissed applications that include traffic control systems, among
other services in the public interest, while reaffirming the
Commission's decision to terminate future licensing of new applications
under the previous 31 GHz service rules and designate the 31 GHz band
for LMDS, which offers a wide array of telecommunications and video
programming distribution services.
II. Summary of Significant Issues Raised by the Public in Response
to the Final Regulatory Flexibility Statement
21. No comments were received in direct response to the FRFA. In
response generally to the Second Report and Order, the Commission
received petitions, as well as ex parte letters and letters in support,
that seek reconsideration, and also received oppositions to those
petitions. Sierra Digital Communications, Inc (Sierra) requests that
the dismissed 31 GHz applications be reinstated and the licensees given
the same interference protections and relocation procedure that the
Commission accorded incumbent 31 GHz licensees when it redesignated the
31 GHz band for LMDS. Sierra argues that the potential public interest
benefits in authorizing the requested services in the dismissed
applications, which include public safety services and public
expenditures, outweigh any benefits that may come from licensing 31 GHz
for LMDS free of the requested services. Nevada Department of
Transportation (Nevada DOT) requests that its applications and the
applications of the Las Vegas Cities (Cities) for a traffic control
system be granted on a temporary basis and secondary to LMDS in order
to allow the implementation of equipment that was purchased and
installed and to provide public safety services while the licensees
seek an alternative technology or frequency band.
22. CellularVision USA, Inc. (CellularVision) and Texas Instruments
(TI) oppose the requests. They contend that authorization of the 31 GHz
operations in the dismissed applications is inconsistent with the
decision to designate the 31 GHz for LMDS and that the operations would
interfere with LMDS, result in enforcement problems for LMDS, and
precipitate other applications for similar relief.
III. Description and Estimate of the Number of Small Entities to
Which Rules Will Apply
23. The rule changes adopted in the Third Reconsideration Order
would apply to a specific number of entities that had pending
applications for authorization of 31 GHz services on file that were
dismissed when the Commission adopted the Second Report and Order on
March 11, 1997. We estimate that there are approximately 10 dismissed
applicants with several dismissed applications, based on Commission
records. The dismissed applicants are permitted to refile the dismissed
applications and obtain a license to provide the 31 GHz services
designated in the band before the Commission designated the band for
LMDS. No new applicants may request such 31 GHz authorization. Also, no
new applications may be filed by the dismissed applicants, which may
only refile the dismissed applications.
24. The FRFA found that the rules adopted at that time would apply
to all incumbent 31 GHz licensees providing 31 GHz services under the
previous 31 GHz service rules. The Commission determined the
description and estimate of the number of small entities among the
total number of 31 GHz licensees based on the licensed services and
their qualifications as small entities. Of the total number of 86
licensees, 59 were Local Television Transmission Service (LTTS)
licensees, 8 were private business licensees, and 19 were governmental
entities. To determine which of the licensees qualified as small
entities, the Commission estimated the number of governmental entities
with populations less than 50,000, but was unable to determine which of
LTTS licensees or private business licensees were small. To ensure that
no small interests were overlooked, the Commission assumed that most of
the licensees were small entities and estimated that at least 50 of the
86 licensees to be small entities.
25. Since the revisions adopted in the Third Reconsideration Order
do not apply to incumbent 31 GHz licensees, the estimates of small
entities in the FRFA is not affected and does not need to be adjusted.
The revisions instead apply to the small and specific number of
dismissed applicants that requested 31 GHz licenses and are permitted
to refile for the same services requested in the dismissed
applications. There are a variety of dismissed applicants, including
governmental entities and private businesses. Inasmuch as the total
number of dismissed applicants is very small and only ten are
estimated, the Commission assumed that all of these are small entities
in order to ensure that no small interests are overlooked.
IV. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
26. The dismissed applicants have the option to refile applications
for the same services requested in the dismissed applications within 60
days following the effective date of the Third Reconsideration Order.
Not all of the dismissed applicants may decide to refile their
dismissed applications. The filing fees were refunded to the dismissed
applicants that paid fees. The applicants may only apply for the same
stations and services contained in the dismissed applications, and the
licenses will be secondary to LMDS licenses. All of the dismissed
applications requested service authorizations that are governed by the
established licensing, operating, and technical rules and procedures in
part 101 of the Commission's Rules (47 CFR 101.1 et seq.). Thus, the
data
[[Page 9447]]
required for refiling the dismissed applications were collected on the
dismissed applications and the refiling requirement does not require
new information nor impose any undue burdens on the dismissed 31 GHz
applicants, including small businesses.
V. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
27. The rule changes adopted in the Third Reconsideration Order are
in response to petitions for reconsideration filed by entities that,
for purposes of this analysis, we have considered to be small entities.
The changes minimize any significant economic impact on small entities
consistent with our objectives in adopting the rule changes and
consistent with the comments we received.
28. The requests of Sierra, Nevada DOT, and other commenters are
granted to permit the 31 GHz operations requested in the dismissed
applications. Although the Commission determined that terminating
future licensing under the 31 GHz rules is consistent with the public
interest in designating the 31 GHz band for LMDS, the Commission found
that permitting the operations reflected in the dismissed applications
and modified by the Order is an exception based on unique circumstances
that is in the public interest. Nevada DOT demonstrates that dismissal
of the considerable number of applications to implement the Las Vegas
traffic control system would not spare the unnecessary expenses
identified in the Second Report and Order, but rather would prevent the
use of purchased and installed equipment until a replacement technology
is found. To the extent that applicants have already invested in
constructing these systems, the system could be implemented during the
inception of LMDS without substantial additional investment for
retooling or relocation at this time.
29. Although Sierra requests that the Commission reinstate the
dismissed applications, the Commission decided that providing the
dismissed applicants with the opportunity to refile the applications is
a more reasonable approach to licensing the dismissed applications. The
filing fees were returned to the dismissed applicants that paid fees.
The Third Reconsideration Order reaffirmed the dismissal of the pending
applications, but without prejudice to their being refiled within 60
days of the effective date of the Third Reconsideration Order to
provide applicants time to consider whether to refile. Circumstances
have changed since the pending applications were filed and reinstated
applications may not reflect the applicant interests or intentions. The
new licenses will be secondary to LMDS licenses and limited to the
scope of the services authorized, without modification for expansion.
Dismissed applicants that do not wish to operate in this manner have
the option to not reapply.
30. The Commissioners decided to permit the dismissed applicants to
refile the applications for licensed authorization under the
established licensing procedures in part 101, which governed the
dismissed applications. Licenses will be issued for a 10-year period
and may be renewed, which provides Nevada DOT more opportunity to
implement its services than the temporary license it requested. As for
CellularVision's concern that allowing the refiling of the dismissed
applications will encourage the filing of similar applications, only
the applications that were dismissed in the Second Report and Order may
be refiled and they are limited to the same stations and services
contained in the pending applications. The number of applicants are
very few and the scope of their services is already identified in the
dismissed applications, so that uncertainties about the impact of the
refiling opportunity should be reduced.
31. The Commission decided to authorize any licenses based on the
dismissed applications on a secondary basis to LMDS, so that such 31
GHz licensees may not interfere with LMDS and must accept any
interference from LMDS. As noted, the Commission considered the
concerns of CellularVision and TI about potential interference with
LMDS operations. Under a license that is secondary to LMDS licenses,
the licensees are prevented from adversely impacting LMDS and are
required to modify their systems to eliminate interference or seek
alternative access to frequencies. As the Commission concluded, it is
in the public interest to allow these important traffic control
facilities to continue to operate as long as they do not interfere with
future LMDS operations. In addition, the new licensees may provide
service to the full extent permitted under the license, but are not
permitted any expansion or increase in operations, further minimizing
any impact of the new 31 GHz services on LMDS.
32. Thus, the Commission declined to grant Sierra's request to
accord the new licensees the same interference protection against LMDS
that the Commission adopted in the Second Report and Order for non-LTTS
licensees in the outer 150 megahertz segment of the 31 GHz band. That
protection was based on the needs of existing 31 GHz licensees that had
well-established traffic control systems or private business services
that were licensed before LMDS was designated for the band,
circumstances which do not apply here. Moreover, Nevada DOT requests
that the dismissed applications, including the considerable number of
its own and those of the Cities, be subject to secondary status to LMDS
to accommodate LMDS concerns and facilitate the authorization of the
dismissed applications in light of the redesignation of the band for
LMDS. On balance, permitting the licensing of the limited operations
requested in the few dismissed applications on a secondary basis to
LMDS will prevent the undue economic hardships to small entities that
seek to implement the proposed services, while preventing any chilling
effect on the potential development of LMDS in 31 GHz by new LMDS
licensees that are small entities.
VI. Report to Congress
33. The Commission will send a copy of this Supplementary Final
Regulatory Flexibility Analysis, along with the Third Reconsideration
Order, in a report to Congress pursuant to the Small Business
Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A).
A copy of the Third Reconsideration Order and this SFRFA (or summary
thereof) be sent to the Chief Counsel for Advocacy for the Small
Business Administration.
Ordering Clauses
34. Accordingly, it is ordered that the actions of the Commission
herein are taken pursuant to sections 4(i), 257, 303(r), and 309(j) of
the Communications Act of 1934, 47 U.S.C. 154(i), 257, 303(r), 309(j).
35. It is further ordered that the late-filed letters of CommPare,
Inc., CSG Wireless, Inc., State of Nevada Department of Transportation,
Parsons Transportation Group, Inc., and Westec Communications, Inc.,
are accepted.
36. It is further ordered that the Petitions for Reconsideration
filed by the Independent Alliance, LBC Communications, LDH
International, Inc., M3 Illinois Telecommunications Corporation, the
Rural Telecommunications Group, Sierra Communications, Inc., and Webcel
Communications, Inc., are granted to the extent indicated herein and
otherwise are denied.
37. It is further ordered that the Motion for Stay Pending Review
of Petition for Reconsideration filed by LDH International, Inc., is
denied.
[[Page 9448]]
38. It is further ordered that the Commission's Rules are amended
as set forth in the Rule Changes.
39. It is further ordered that the applications that were dismissed
in the Second Report and Order are permitted to be refiled under the
terms and conditions in this Third Reconsideration Order and shall be
filed no later than 60 days following the effective date of this Order.
40. It is further ordered that the provisions of this Order and the
Commission's Rules, as amended in the Rule Changes, shall become
effective 60 days after publication in the Federal Register.
41. It is further ordered that the Director, Office of Public
Affairs, shall send a copy of this Order, including the Supplemental
Final Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration in accordance with
section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 603(a).
List of Subjects in 47 CFR Part 101
Radio, Reporting and recordkeeping requirements.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Part 101 of Chapter I of Title 47 of the Code of Federal
Regulations is amended as follows:
PART 101--FIXED MICROWAVE SERVICE
1. The authority citation for part 101 continues to read as
follows:
Authority: 47 U.S.C. 154, 303, 309(j), unless otherwise noted.
2. Section 101.57 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 101.57 Modification of station license.
(a)(1)(i) Except as provided in paragraph (a)(1)(ii) of this
section and in Sec. 101.59, no modification of a license issued
pursuant to this part (or the facilities described thereunder) may be
made except upon application to the Commission.
(ii) The provisions of paragraph (a)(1)(i) of this section shall
not apply in the case of:
(A) Licenses authorized for operation in the 31,000-31,300 MHz band
prior to March 11, 1997;
(B) Non-Local Multipoint Distribution Service licenses authorized
for such operation in the band pursuant to applications refiled no
later than April 27, 1998; and
(C) The Local Multipoint Distribution Service as provided in
Sec. 101.61(c)(10).
* * * * *
3. Section 101.103 is amended by adding paragraph (b)(3) as
follows:
Sec. 101. 103 Frequency coordination procedures.
* * * * *
(b) * * *
(3) Non-LMDS operations in the entire 31,000-31,300 MHz band
licensed after March 11, 1997, based on applications refiled no later
than April 27, 1998 are unprotected with respect to each other and
subject to harmful interference from each other.
(i) Such operations and any operations licensed prior to March 11,
1997, in the band are unprotected with respect to each other and
subject to harmful interference from each other.
(ii) Such operations are licensed on a secondary basis to LMDS
operations licensed in the band, may not cause interference to LMDS
operations, and are not protected from interference from LMDS
operations.
(iii) Such operations licensed on a point-to-point basis may not be
extended or otherwise modified through the addition of point-to-point
links. Such operations licensed on a point-to-radius basis may add
additional stations within the licensed area.
* * * * *
4. Section 101.107 is amended by revising footnote 8 in paragraph
(a) to read as follows:
Sec. 101.107 Frequency tolerance.
(a) * * *
\8\ For stations authorized prior to March 11, 1997, and for
non-Local Multipoint Distribution Service stations authorized
pursuant to applications refiled no later than April 27, 1998, the
transmitter frequency tolerance shall not exceed 0.030 percent.
* * * * *
5. Section 101.113 is amended by revising footnote 8 in paragraph
(a) to read as follows:
Sec. 101.113 Transmitter power limitations.
(a) * * *
\8\ For stations authorized prior to March 11, 1997, and for
non-Local Multipoint Distribution Service stations authorized
pursuant to applications refiled no later than April 27, 1998, the
transmitter output power shall not exceed 0.050 watt.
* * * * *
6. Section 101.147 is amended by revising footnote 16 in paragraph
(a) and by revising the introductory text of paragraph (u) to read as
follows:
Sec. 101.147 Frequency assignments
(a) * * *
\16\ As of June 30, 1997, frequencies in these bands are
available for assignment only to LMDS radio stations, except for
non-LMDS radio stations authorized pursuant to applications refiled
no later than April 27, 1998.
* * * * *
(u) 31,000-31,300 MHz. Stations licensed in this band prior to
March 11, 1997, may continue their authorized operations, subject to
license renewal, on the condition that harmful interference will not be
caused to LMDS operations licensed in this band after June 30, 1997.
Non-LMDS stations licensed after March 11, 1997, based on applications
refiled no later than April 27, 1998 are unprotected and subject to
harmful interference from each other and from stations licensed prior
to March 11, 1997, and are licensed on a secondary basis to LMDS. In
the sub-bands 31,000-31,075 MHz and 31,225-31,300 MHz, stations
initially licensed prior to March 11, 1997, except in LTTS, and LMDS
operations authorized after June 30, 1997, are equally protected
against harmful interference from each other in accordance with the
provisions of Sec. 101.103(b). For stations, except in LTTS, permitted
to relocate to these sub-bands, the following paired frequencies are
available: * * *
* * * * *
7. Section 101.803 is amended by revising note 7 of paragraph (a)
and revising note 9 of paragraph (d) to read as follows:
Sec. 101.803 Frequencies.
(a) * * *
\7\ As of June 30, 1997, frequencies in this band only are
available for assignment to LMDS radio stations, except for non-LMDS
radio stations authorized pursuant to applications refiled no later
than April 27, 1998. Stations authorized prior to June 30, 1997, may
continue to operate within the existing terms of the outstanding
licenses, subject to renewal. Non-LMDS stations authorized pursuant
to applications refiled no later than April 27, 1998 shall operate
on an unprotected basis and subject to harmful interference from
similarly licensed stations or stations licensed prior to June 30,
1997, and on a secondary basis to LMDS radio stations.
(d) * * *
* * * * *
\9\ As of June 30, 1997, frequencies in this band only are
available for assignment to LMDS radio stations, except for non-LMDS
stations authorized pursuant to applications refiled no later than
April 27, 1998. Stations authorized prior to June 30, 1997, may
continue to operate within the existing terms of the outstanding
licenses, subject to renewal. Non-LMDS stations authorized pursuant
to applications refiled no later than April 27, 1998 shall operate
on an unprotected basis and subject to harmful interference from
each other or stations licensed prior to June 30, 1997, and on a
secondary basis to LMDS radio stations.
* * * * *
[FR Doc. 98-4750 Filed 2-24-98; 8:45 am]
BILLING CODE 6712-01-P
