[Federal Register Volume 62, Number 48 (Wednesday, March 12, 1997)]
[Proposed Rules]
[Pages 11407-11410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6166]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 22 and 101
[WT Docket No. 97-81, FCC 97-58]
Multiple Address Systems
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This Notice of Proposed Rule Making (NPRM) proposes to amend
the Commission's rules in order to streamline licensing procedures and
provide additional flexibility for Multiple Address Systems (MAS)
licensees. These proposals were adopted as part of the Commission's
continuing effort to establish a flexible regulatory framework for
spectrum allocations. The effects of these proposals would be to
maximize the use of radio frequency spectrum allocated to MAS.
DATES: Comments are due on or before April 21, 1997. Reply comments are
due on or before May 6, 1997.
ADDRESSES: You must send comments and reply comments to the Office of
the Secretary, Federal Communications Commission, Washington, DC 20554.
You may also file informal comments by electronic mail. You should
address informal comments to bjames@fcc.gov. You must put the docket
number of this proceeding on the subject line (``WT Docket No. 97-
81''). You must also include your full name and Postal Service mailing
address in the text of the message. Comments on the information
collections contained herein should be submitted to Dorothy Conway,
Federal Communications Commission, Room 234, 1919 M Street, NW.,
Washington, DC 20554, or via the internet to dconway@fcc.gov, and to
Timothy Fain, OMB Desk Officer, 10236 NEOB, 725-17th Street, NW.,
Washington, DC 20503 or via the internet to fain__t@al.eop.gov.
FOR FURTHER INFORMATION CONTACT: Bob James of the Commission's Wireless
Telecommunications Bureau at (202)
[[Page 11408]]
418-0680 or via email at bjames@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's NPRM,
FCC 97-58, adopted February 19, 1997, and released February 27, 1997.
The full text of this NPRM is available for inspection and copying
during normal business hours in the FCC Reference Center (Room 239),
1919 M Street, NW., Washington, DC. The complete text may be purchased
from the Commission's copy contractor, ITS, Inc., 2100 M Street NW.,
Suite 140, Washington, DC 20037, telephone (202) 857-3800.
Paperwork Reduction Act
This NPRM contains either a proposed or modified information
collection. As part of the Commission's continuing effort to reduce
paperwork burdens, we invite the general public, the Office of
Management and Budget (OMB), and other agencies to take this
opportunity to comment on the information collections contained in this
NPRM, as required by the Paperwork Reduction Act of 1995, Public Law
104-13. Public and agency comments are due at the same time as other
comments on this NPRM; OMB comments are due 60 days after the
publication of this NPRM in the Federal Register. Comments should
address: (a) Whether the proposed collection of information is
necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
Summary of Notice
1. This NPRM seeks to further the development and implementation of
MAS. Accordingly, this NPRM tentatively concludes that the 932/941 MHz
and 928/959 MHz MAS bands should be designated for subscriber-based
services and licensed on a geographic basis, with service areas based
on the U.S. Department of Commerce's Economic Areas. In this vein,
licensees providing such subscriber-based services would be presumed
telecommunications carriers and would be required to meet liberal
construction/coverage requirements with their service areas. Further,
the Commission proposes to resolve mutually exclusive applications for
the 932/941 MHz and 928/959 MHz MAS licenses through competitive
bidding.
2. In contrast to the subscriber-based services discussed above,
this NPRM tentatively concludes that the 928/952/956 MHz MAS bands
should be designated exclusively for private use and seeks comment on
whether these bands should continue to be licensed on a site-by-site
basis or should be licensed on a geographic basis. The Commission also
proposes to set aside five channel pairs in the 932/941 MHz MAS bands,
to be licensed on a first-come, first-served basis, for Federal
Government/Public Safety communications.
3. This NPRM also seeks to further the development of MAS by
reducing regulatory burdens and increasing flexibility for all MAS
licensees. For example, the Commission proposes to simplify and
streamline the MAS licensing process. The Commission also proposes to
increase operational flexibility by allowing MAS licensees to provide
mobile and fixed operations on a co-primary basis with point-to-point
and point-to-multipoint operations. Further, the Commission seeks
comment on whether 12.5 kHz or larger blocks of spectrum should be
available to MAS licensees in order to broaden the range of
communications services possible using MAS spectrum.
4. Finally, effective February 19, 1997, this NPRM suspends the
acceptance and processing of MAS applications in the 932/941 MHz and
928/959 MHz bands, and subscriber-based MAS applications in the 928/
952/956 MHz bands, except certain pending applications, applications
for minor modifications, and applications for license assignment or
transfer of control, during the pendency of this rule making. This
suspension, however, does not affect MAS applications for private,
internal communications in the 928/952/956 MHz bands.
5. This is a non-restricted notice and comment rule making
proceeding. Ex Parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed as provided in
Commission rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
6. Pursuant to applicable procedures set forth in Sections 1.415
and 1.419 of the Commission's Rules, 47 CFR 1.415 and 1.419, interested
parties may file comments on or before April 21, 1997, and reply
comments on or before May 6, 1997. To file formally in this proceeding,
you must file an original and four copies of all comments, reply
comments, and supporting comments. If you want each Commissioner to
receive a personal copy of your comments, you must file an original
plus nine copies. You must send comments and reply comments to Office
of the Secretary, Federal Communications Commission, Washington, DC
20554. You may also file informal comments by electronics mail. You
should address informal comments to bjames@fcc.gov. You must put the
docket number of the proceeding on the subject line (``WT Docket No.
97-81''). You must also include your full name and Postal Service
mailing address in the text of the message. Formal and informal
comments and reply comments will be available for public inspection
during regular business hours in the F.C.C. Reference Center of the
Federal Communications Commission, Room 239, 1919 M Street, NW.,
Washington, DC 20554.
7. Authority for issuance of this NPRM is contained in Sections
4(i), 303(r), and 309(j) of the Communications Act of 1934, as amended,
47 U.S.C. 154(i), 303(r), and 309(j).
List of Subjects
47 CFR Part 22
Communications common carriers, Radio, Reporting and recordkeeping
requirements.
47 CFR Part 101
Radio, Reporting and recordkeeping requirements.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Note:This attachment will not be published in the Code of
Federal Regulations.
Attachment
Initial Regulatory Flexibility Analysis
1. Pursuant to the Regulatory Flexibility Act (RFA), see 5
U.S.C. 603, the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the expected impact on small entities
of the policies and rules proposed in this NPRM. Written public
comments are requested on the IRFA. Comments must be identified as
responses to the IRFA and must be filed by the deadlines for
comments on the NPRM. The Secretary shall cause a copy of this NPRM
to be sent to the Chief counsel for Advocacy of the Small Business
Administration, in accordance with 5 U.S.C. 603(a).
A. Reason for Action
2. This NPRM requests public comment on our proposals to
maximize the use of spectrum allocated to Multiple Address Systems
in the Microwave Service. These proposals include: (1) Converting
licensing of MAS spectrum for which the principal use will involve,
or is reasonably likely to involve, ``subscriber-based'' services,
from site-by-site licensing to geographic area licensing, (2)
simplifying and streamlining the MAS licensing procedures and rules,
(3) increasing licensee flexibility to provide
[[Page 11409]]
communication services that are responsive to dynamic demands, and
(4) employing competitive bidding procedures (auctions) to resolve
mutually exclusive applications for MAS spectrum for which the
principal use will involve, or is reasonably likely to involve,
``subscriber-based'' services, In addition, by this NPRM we
temporarily suspend the acceptance and processing of MAS
applications, with the exception of applications in a few noted
categories.
B. Objectives
3. In attempting to maximize the use of MAS spectrum, we
continue our efforts to establish a flexible regulatory framework
for spectrum allocations that will, among other things, provide
opportunities for continued development of competitive new service
offerings by allowing flexible use of spectrum, expedite market
entry through modified licensing procedures, and promote
technological innovation by eliminating unnecessary regulatory
burdens.
C. Legal Basis
4. The authority for this action is contained in Sections 4(i),
303(r), and 309(j) of the Communications Act of 1934, as amended, 47
U.S.C. 154(i), 303(r), and 309(j). See also Administrative Procedure
Act, 5 U.S.C. Sec. 553.
D. Description and Estimate of Small Entities Affected
5. Pursuant to the Contract with America Advancement Act of
1996, Public Law 104-121, 110 Stat. 847 (1996), the Commission is
required to estimate in its Final Regulatory Flexibility Analysis
the number of small entities to which a rule will apply, provide a
description of such entities, and assess the impact of the rule on
such entities. The Regulatory Flexibility Act defines a ``small
business'' to be the same as a ``small business concern'' under the
Small Business Act unless the Commission has developed one or more
definitions that are appropriate to its activities. Under the Small
Business Act, a ``small business concern'' is one that: (1) Is
independently owned and operated; (2) is not dominant in its field
of operation; and (3) meets any additional criteria established by
the Small Business Administration (SBA). To assist the Commission in
this analysis, commenters are requested to provide information
regarding how many MAS entities, total, would be affected by the
various proposals on which the Commission seeks comment in this
NPRM. In particular, we seek estimates of how many affected entities
will be considered ``small businesses.'' In this regard, we ask
commenters to note that we have requested comment regarding the
establishment of a small business definition for MAS for the purpose
of competitive bidding.
6. The proposals in the NPRM would effect MAS licensees and
applicants for licenses. Such entities fall into two categories: (1)
Those using MAS spectrum for which the principal use involves, will
involve, or is reasonably likely to involve, ``subscriber-based''
(commercial) services, and (2) those using, or intending to use, MAS
spectrum to provide for their own internal communications needs.
Theoretically, it is also possible that an entity could fall into
both categories. The spectrum uses in the two categories differ
markedly.
7. With respect to the first category, neither the Commission
nor the Small Business Administration (SBA) has developed a specific
definition of small entities applicable to MAS licensees that
provide commercial subscription services. The applicable definition
of small entity in this instance appears to be the definition under
the SBA rules applicable to establishments engaged in radiotelephone
communications. This definition provides that a small entity is any
entity employing fewer than 1,500 persons. See 13 CFR 121.201,
Standard Industrial Classification (SIC) Code 4812. The 1992 Census
of Transportation, Communications and Utilities, conducted by the
Bureau of the Census, which is the most recent information
available, shows that only 12 radiotelephone firms out of a total of
1,178 such firms operated during 1992 had 1,000 or more employees.
Therefore, whether or not any or all of these 12 firms are MAS
commercial service providers, nearly all MAS commercial service
providers are small businesses by the Small Business
Administration's definition. The Commission's licensing database
indicates that, as of November 8, 1996, there were a total of 8,171
MAS station authorizations. Of these, 1087 authorizations were for
common carrier service.
8. Alternatively, under the SBA rules, the applicable definition
of small entity for MAS licensees that provide commercial
subscription services may also be applicable to establishments
primarily engaged in furnishing telegraph and other message
communications. This definition provides that a small entity is an
entity with annual receipts of $5 million or less. See 13 CFR
121.201, Standard Industrial Classification (SIC) Code 4822. 1992
Census data, which is the most recent information available,
indicates that, of the 286 firms under this category, 247 had annual
receipts of $4.999 million or less. We seek comment on whether the
appropriate definition for such MAS licensees is SIC Code 4812, SIC
Code 4822, or both.
9. The Commission seeks comment on the number of small entities
that currently provide commercial MAS subscription service, and the
number of small entities that would anticipate filing applications
to provide such service under the various proposals described in the
NPRM. We seek comment on whether we should conclude, for purposes of
the Final Regulatory Flexibility Analysis in this matter, that all
MAS commercial communications service providers are small entities.
10. With respect to the second category, which consist of
entities that use or seek to use MAS spectrum to provide for their
own internal communications needs, we note that MAS serves an
essential role in a range of industrial, business, land
transportation, and public safety activities. These radios are used
by companies of all sizes operating in virtually all U.S. business
categories. Because of the array of users, the Commission has not
developed (nor would it be possible to develop) a definition of
small entities specifically applicable to such MAS users. Nor is
there a precise SBA definition. In this context we again seek
comment on whether the appropriate definition of small entity under
the SBA rules is that applicable to radiotelephone companies: any
entity employing fewer than 1,500 persons. See 13 CFR 121.201,
Standard Industrial Classification (SIC) Code 4812. Again,
alternatively, we seek comment on the appropriateness of defining
such MAS licensees under SIC Code 4822, concerning establishments
primarily engaged in furnishing telegraph or other message
communications, or perhaps under both Codes 4812 and 4822. For the
purpose of determining whether a licensee is a small business as
defined by the Small Business Administration, each licensee would
need to be evaluated within its own business area. The Commission's
licensing database indicates that, as of November 8, 1996, of the
8,171 total MAS station authorizations, 7,084 authorizations were
for private radio service, and of these, 426 were for private mobile
service.
11. We seek comment on the number of small entities that use MAS
spectrum for their internal communications needs. Further, we seek
comment on the number of small entities that are likely to apply for
licenses, under the various proposals described in the NPRM, to
obtain spectrum for their own internal communications needs. Because
any entity engaged in a business or commercial activity is eligible
to hold an MAS license, the proposals in the NPRM could
prospectively affect any small business in the United States
interested in using MAS for its own communications needs. In other
words, the universe of prospective or possible MAS users includes
all U.S. small businesses.
12. The RFA also includes small governmental entities as a part
of the regulatory flexibility analysis. The definition of a small
governmental entity is one with populations of fewer than 50,000.
There are 85,006 governmental entities in the nation. This number
includes such entities as states, counties, cities, utility
districts and school districts. There are no figures available on
what portion of this number has populations of fewer than 50,000.
However, this number includes 38,978 counties, cities and towns, and
of those, 37,566, or 96 percent, have populations of fewer than
50,000. The Census Bureau estimates that this ratio is approximately
accurate for all governmental entities. Thus, of the 85,006
governmental entities, we estimate that 96 percent, or 81,600, are
small entities that may be affected by our rules.
13. Again, we have requested comment regarding the establishment
of a refined small business definition for MAS for the purpose of
competitive bidding. This NPRM does not propose any definition, but
merely seeks comment on this issue.
E. Reporting, Recordkeeping, and Other Compliance Requirements
14. If we have competitive bidding to award certain MAS
licenses, as proposed, and also establish a small business
definition for the purpose of competitive bidding, then all small
businesses that choose to participate
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in these services will be required to demonstrate that they meet the
criteria set forth in quality as small businesses. See generally 47
CFR Part 1, Subpart Q (competitive bidding proceedings). Any small
business applicant wishing to avail itself of small business
provisions will need to make the general financial disclosures
necessary to establish that the small business is in fact small.
15. If this occurs, prior to auction each small business
applicant will be required to submit an FCC Form 175, OMB Clearance
Number 3060-0600. The estimated time for filling out an FCC Form 175
is 45 minutes. In addition to filing an FCC Form 175, each applicant
must submit information regarding the ownership of the applicant,
any joint venture arrangements or bidding consortia that the
applicant has entered into, and financial information which
demonstrates that a small business wishing to qualify for
installment payments and bidding credits is a small business.
Applicants that do not have audited financial statements available
will be permitted to certify to the validity of their financial
showings. While many small businesses have chosen to employ
attorneys prior to filing an application to participate in an
auction, the rules are proposed so that a small business working
with the information in a bidder information package can file an
application on its own. When an applicant wins a license, it will be
required to submit an FCC Form 494 (common carrier) or FCC Form 402
(private radio), which will require technical information regarding
the applicant's proposals for providing service. This application
will require information provided by an engineer who will have
knowledge of the systems design. (Also, the Commission is currently
developing a single, consolidated MAS form, FCC Form 415, which will
eventually supersede both Form 494 and Form 402.)
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposals
16. None.
G. Significant Alternatives Minimizing the Impact on Small Entities
Consistent With the Stated Objectives
17. The NPRM solicits comment on a variety of proposals, some of
which are described below. Any significant alternatives presented in
the comments will be considered. As noted, we have requested comment
regarding the establishment of a small business definition for MAS.
We also seek comment generally on the existence of small entities in
MAS and how many total entities, existing and potential, would be
affected by the proposed rules in the NPRM. Finally, we request that
each commenter identify whether it is a ``small business'' under
either of the two SBA definitions described supra--either employing
fewer than 1,500 employees (for radiotelephone communications
companies) or having annual receipts of $5 million or less (for
telegraph or other message communications companies).
18. The Commission expects that licensing subscriber-based MAS
bands by geographic area, as proposed, will assist small businesses.
As described supra, such licensing makes expansion of operations
easier, and this flexibility assists all licenses, including small
business licensees. We also believe that the proposed EA geographic
area service area is large enough to support the services
contemplated while being small enough to be attractive to small
business entities. The NPRM also proposes a purely private
allocation for licenses using MAS solely for internal uses. In
addition, the proposed flexible approach to the build-out of MAS
systems will assist licensees, including small business licensees,
in designing and implementing their particular business plans, while
the partitioning and disaggregation proposals will assist those
small businesses that might otherwise be unable to acquire a
``full'' license as currently configured. Finally, we believe that
the proposed spectrum auction will assist small entities desiring to
obtain MAS licenses. This approach gets licenses to those most
likely to use them most effectively. By contrast, when awarding
licenses by lotteries it is only coincidental when the license is
awarded to the entity best suited to using the license. Using
lotteries, therefore, creates uncertainty for all would-be
licensees, including those that are small business. We seek comment
on all proposals and alternatives described in the NPRM, and the
impact that such proposals and alternatives might have on small
entities.
[FR Doc. 97-6166 Filed 3-11-97; 8:45 am]
BILLING CODE 6712-01-P
