E7-7252. Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as Amended; Promotion of Spectrum Efficient Technologies on Certain Part 90 Frequencies

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission or FCC) declines, for now, to establish a schedule for Private Land Mobile Radio (PLMR) systems in the 150-174 MHz and 421-512 MHz bands to transition to 6.25 kHz technology; and revises the implementation date of the 6.25 kHz requirement for equipment certification from January 1, 2005 to January 1, 2011.

DATES:

Effective May 18, 2007.

FOR FURTHER INFORMATION CONTACT:

Melvin Spann, [e-mail], Mobility Division, Wireless Telecommunications Bureau at [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Federal Communications Commission's Third Report and Order in WT Docket No. 99-87 (Third Report and Order), FCC 07-39, adopted on March 22, 2007, and released on March 26, 2007. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by sending an e-mail to [e-mail] or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. The Third Report and Order addresses issues raised in the Second Report and Order and Second Further Notice of Proposed Rule Making, (2nd R&O and 2nd FNPRM) and Third Memorandum Opinion and Order, Third Further Notice of Proposed Rule Making and Order (3rd MO&O, 3rd FNPRM and Order) in this proceeding. The Commission takes the following significant actions in the Third Report and Order: (i) declines to establish a schedule for PLMR systems in the 150-174 MHz and 421-512 MHz bands to transition to 6.25 kHz technology, and (ii) revises the implementation date of the 6.25 kHz requirement for equipment certification from January 1, 2005 to January 1, 2011.

I. Procedural Matters

A. Paperwork Reduction Act Analysis

2. The Third Report and Order does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

B. Report to Congress

3. The Commission will send a copy of this Third Report and Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

C. Final Regulatory Flexibility Analysis

4. As required by the Regulatory Flexibility Act (RFA), see 5 U.S.C. 604, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible impact of the rule changes contained in this Third Report and Order on small entities. The Commission's Consumer Information Bureau, Reference Information Center, will send a copy of this Third Report and Order, including the FRFA Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

Need for, and Objectives of, the Third Report and Order

5. The Third Report and Order addresses comments in response to the Third Further Notice of Proposed Rule Making, in WT Docket 99-87; FCC 04-292 at 70 FR 34666, concerning a contemplated mandatory transition to 6.25 kHz technology for Private Land Mobile Radio (PLMR) users. In the Third Report and Order, we change the implementation date of 47 CFR 90.203(j)(4)-(5) from January 1, 2005, to January 1, 2011. The rule change reduces burdens on equipment manufacturers and furthers the Commission's objectives to encourage the development and use of increasingly spectrally efficient technology. Once the rule change becomes effective, applications for equipment certification received on or after January 1, 2011, will be granted only if the equipment either (1) is capable of operating on 6.25 kHz channels, or (2) meets a narrowband efficiency standard, i.e., one channel per 6.25 kHz (voice) or 4800 bits per second per 6.25 kHz (data).

Summary of Significant Issues Raised by Public Comments in Response to the IRFA

6. No comments or reply comments were filed in direct response to the IRFA. The Commission has, however, reviewed the general comments that may impact small businesses. Much of the potential impact on small businesses arose from the previous requirement that applications for equipment certification received on or after January 1, 2005, will be granted only if the equipment either (1) is capable of operating on 6.25 kHz channels, or (2) meets a narrowband efficiency standard, i.e., one channel per 6.25 kHz (voice) or 4800 bits per second per 6.25 kHz (data). The burdens and hardships associated with equipment manufacturers meeting this requirement were cited in opposition to this requirement.

Description and Estimate of the Number of Small Entities To Which Rules Will Apply

7. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2002, there were approximately 1.6 million small organizations. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

8. The rule change effectuated by this Third Report and Order applies to manufacturers of radio equipment designed to operate on private land mobile frequencies in the 150-174 MHz and 421-512 MHz bands. The rule change and decisions herein also have a nominal, merely indirect application to users of Public Safety Radio Pool services and private radio licensees that are regulated under part 90 of the Commission's rules.

9. Equipment Manufacturers. We anticipate that at least six radio equipment manufacturers will be affected by our decisions in this proceeding. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 establishments had employed less than 500, and an additional 13 had employed 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

10. Public safety services and Governmental entities. Public safety radio services include police, fire, local governments, forestry conservation, highway maintenance, and emergency medical services. The SBA rules contain a definition for small radiotelephone (wireless) companies that encompass business entities engaged in radiotelephone communications employing no more that 1,500 persons. There are a total of approximately 127,540 licensees within these services. Governmental entities as well as private businesses comprise the licensees for these services. The RFA also includes small governmental entities as a part of the regulatory flexibility analysis. As noted, under the RFA, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

11. Estimates for PLMR Licensees. Private land mobile radio systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a definition of small entities specifically applicable to PLMR users, nor has the SBA developed any such definition. The SBA rules do, however, contain a definition for small radiotelephone (wireless) companies. Included in this definition are business entities engaged in radiotelephone communications employing no more that 1,500 persons. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. Thus, under this size standard, the majority of firms can be considered small. For the purpose of determining whether a licensee is a small business as defined by the SBA, each licensee would need to be evaluated within its own business area. The Commission's fiscal year 1994 annual report indicates that, at the end of fiscal year 1994, there were 1,101,711 licensees operating 12,882,623 transmitters in the PLMR bands below 512 MHz.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

12. Equipment manufacturers need to make note of the new implementation date of January 1, 2011, for 47 CFR 90.203(j)(4)-(5) of the Commission's Rules, as established in this Third Report and Order. Applications for equipment certification and received on or after January 1, 2011, will be granted only if the equipment either (1) is capable of operating on 6.25 kHz channels, or (2) meets a narrowband efficiency standard, i.e., one channel per 6.25 kHz (voice) or 4800 bits per second per 6.25 kHz (data). We believe that both small and large entities will encounter the same proportional costs to comply with these requirements.

Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered

13. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

14. The only rule change we adopt herein is to delay the implementation date of our certification requirements from January 1, 2005, to January 1, 2011. Applications for equipment certification received on or after January 1, 2011, will be granted only if the equipment either (1) is capable of operating on 6.25 kHz channels, or (2) meets a narrowband efficiency standard, i.e., one channel per 6.25 kHz (voice) or 4800 bits per second per 6.25 kHz (data). This rule change reduces the impact on equipment manufacturers of the prior rule, which required compliance sooner. We delayed the implementation date because a majority of commenters believed that enforcing an equipment authorization cut-off now would place onerous burdens on manufacturers. We anticipate that small licensees will experience little impact as a result of this rule change. By 2011, licensees in the market for new equipment will have a choice between 12.5 kHz-capable and 6.25 kHz-capable equipment.

15. We investigated alternatives to the January 1, 2011, implementation date of our certification requirements, including elimination of the requirements, as requested by some commenters. We rejected earlier dates because they might not allow enough time for 6.25 kHz standards to be finalized. We believe that earlier dates would not provide significant relief to equipment manufacturers, and that they would incur excessive costs to meet our certification requirements. Next, we considered dates after 2011, as well as eliminating our 6.25 kHz equipment certification requirements completely. While we realize that these options would further minimize the economic impact on equipment manufacturers, we rejected these options they would excessively delay our objective to encourage the development and use of spectrally efficient technology.

D. Report to Congress

16. The Commission will send a copy of this Third Report and Order in WT Docket No. 99-87, including the Final Regulatory Flexibility Analysis, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Third Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the SBA. A copy of the Third Report and Order and the Final Regulatory Flexibility Analysis (or summaries thereof) will also be published in the Federal Register.

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:

PART 90—PRIVATE LAND MOBILE RADIO SERVICES

1. The authority citation for part 90 continues to read as follows:

Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).

2. Amend § 90.203 by revising paragraph (j)(4) introductory text and paragraph (j)(5); and removing paragraph (j)(6); and by redesignating paragraphs (j)(7) through (j)(11) as (j)(6) through (j)(10) to read as follows:

§ 90.203

Certification required.

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(j) * * *

(4) Applications for part 90 certification of transmitters designed to operate on frequencies in the 150.8-162.0125 MHz, 173.2-173.4 MHz, and/or 421-512 MHz bands, received on or after January 1, 2011, except for hand-held transmitters with an output power of two watts or less, will only be granted for equipment with the following channel bandwidths:

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(5) Applications for part 90 certification of transmitters designed to operate on frequencies in the 150.8-162.0125 MHz, 173.2-173.4 MHz, and/or 421-512 MHz bands, received on or after January 1, 2011, must include a certification that the equipment meets a spectrum efficiency standard of one voice channel per 6.25 kHz of channel bandwidth. Additionally, if the equipment is capable of transmitting data, has transmitter output power greater than 500 mW, and has a channel bandwidth of more than 6.25 kHz, the equipment must be capable of supporting a minimum data rate of 4800 bits per second per 6.25 kHz of channel bandwidth.

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