[Federal Register Volume 62, Number 64 (Thursday, April 3, 1997)]
[Proposed Rules]
[Pages 16004-16007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8013]
Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 /
Proposed Rules
[[Page 16004]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 2 and 90
[PR Docket No. 89-552, GN Docket No. 93-252, PP Docket No. 93-253; FCC
97-57]
Provision for the Use of the 220-222 MHz Band by the Private Land
Mobile Radio Service; Implementation of Sections 3(n) and 332 of the
Communications Act Regulatory Treatment of Mobile Services; and
Implementation of Section 309(j) of the Communications Act--Competitive
Bidding
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commission adopts a Third Report and Order and Fifth
Notice of Proposed Rulemaking regarding the use of the 220-222 MHz Band
(220 MHz service) by the Private Land Mobile Radio Service. The Third
Report and Order portion of this decision is summarized elsewhere in
this edition of the Federal Register. The Fifth Notice of Proposed
Rulemaking (Fifth NPRM) seeks comment on various issues related to the
partitioning of 220 MHz licenses and whether to permit full
partitioning and disaggregation in the 220 MHz service. This action is
taken to establish a record from which to consider the specific rules
that should govern partitioning and the benefits and drawbacks of full
partitioning and disaggregation, and to reach an ultimate decision.
DATES: Comments are due on or before April 15, 1997, and reply comments
are due on or before April 30, 1997. Written comments by the public on
the proposed and/or modified information collections are due June 2,
1997.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the Secretary, a copy of any 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.
FOR FURTHER INFORMATION CONTACT: Mary Woytek, (202) 418-1310, or Frank
Stilwell, (202) 418-0660, Wireless Telecommunications Bureau. For
additional information concerning the information collections contained
in this Fifth NPRM, contact Dorothy Conway at (202) 418-0217, or via
the Internet at dconway@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Fifth Notice of
Proposed Rulemaking segment of the Third Report and Order and Fifth
Notice of Proposed Rulemaking in PR Docket No. 89-552, FCC 97-57,
adopted February 19, 1997, and released March 12, 1997. The Third
Report and Order portion of this decision is summarized elsewhere in
this edition of the Federal Register. 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, NW,
Washington, DC 20554 and also may be purchased from the Commission's
copy contractor, International Transcription Service, (202) 857-3800,
2100 M Street, NW, Suite 140, Washington, DC 20037.
Paperwork Reduction Act
This Fifth NPRM contains either a proposed or modified information
collection. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public to comment on the
information collections contained in this Fifth NPRM, as required by
the Paperwork Reduction Act of 1995, Public Law 104-13. Public comments
are due June 2, 1997. 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.
OMB Approval Number: New Collection (which adds respondents to
three existing collections 3060-0105, FCC 430; 3060-0319, FCC 490;
3060-0623, FCC 600).
Title: Amendment of Part 90 of the Commission's Rules to Provide
for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
Service.
Form No.: FCC Forms 430, 490, and 600.
Type of Review: New collection.
Respondents: 220 MHz applicants and potential applicants and
licensees.
Number of Respondents; Estimated Time Per Response and Total Annual
Burden: If the proposed changes in the Fifth NPRM are adopted the
respondents and burden for the FCC Form's 430, 490 and 600 as follows:
The FCC 430 has 1,900 respondents, to be increased to 23,050; the
estimated time for completion is 2 hours per respondent. The total
annual burden for the FCC 430 would increase to 46,100 hours. The Form
490 has 5,000 respondents, to be increased to 28,500; the estimated
time for completion is 3 hours per respondent. The total annual burden
for the FCC 490 would increase to 85,500. The FCC 600 has 194,769
respondents, which may be increased by the Third Report and Order to
197,777, and further increased to 244,777 by the Fifth NPRM. The
estimated time for completion is 4 hours per respondent. The total
annual burden is 779,076. This figure will be increased to 791,108 by
an information collection adopted in the Third Report and Order portion
of this decision and to 979,108 hours if the changes proposed in the
Fifth NPRM are adopted.
Needs and Uses: The information will be used by Commission
personnel to determine if the licensee is a qualifying entity to obtain
a partitioned license or disaggregated spectrum. Additionally, the
information will be used by Commission personnel to determine who is
using spectrum and thus maintain the integrity of the spectrum.
Synopsis of the Fifth Notice of Proposed Rulemaking
1. The Commission has concluded in the Third Report and Order that
it will permit any holder of a Phase II Economic Area (EA), nationwide,
or Regional 220 MHz license to partition portions of its
authorization.1 In this Fifth NPRM, the Commission considers the
issue of full partitioning for Phase I nationwide 220 MHz licensees and
the establishment of disaggregation rules for the 220 MHz service. As
we indicated in the recent Partitioning Report and Order (which
expanded the Commission's rules to permit geographic partitioning and
disaggregation for all broadband PCS licensees), the Commission
believes that partitioning and disaggregation are an effective means of
providing broadband PCS licensees with the flexibility they need to
tailor their service offerings to meet market demands.2 The
Partitioning Report and Order further concluded that partitioning and
disaggregation may be used to overcome entry barriers through the
creation of smaller licenses that require less capital, thereby
facilitating greater participation by small businesses, rural telephone
companies, and minority- and female-owned
[[Page 16005]]
businesses.3 The Commission seeks comment on whether these
benefits similarly justify the extension of partitioning rules to Phase
I nationwide licensees and the establishment of disaggregation rules
for the 220 MHz service.
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\1\ The Commission refers to such licenses as ``Covered Phase II
licenses.''
\2\Report and Order and Further Notice of Proposed Rule Making
in GN Docket No. 96-113, 62 FR 653 (January 6, 1997).
\3\ Id.
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2. The Commission seeks comment as to how various requirements
imposed on covered Phase II licensees may be modified if such licensees
partition their authorization. The Commission also invites comment as
to whether partitioning of 220 MHz Phase I nationwide licenses should
be permitted in a manner similar to the rules for partitioning that
have been adopted for broadband PCS licensees. The Commission
tentatively concludes that it should not adopt partitioning for those
Phase II licensees that are not covered Phase II licensees and non-
nationwide Phase I licensees because such licenses are awarded on a
site-specific rather than for a geographic area basis. In addition, the
Commission seeks comment as to whether all Phase I and Phase II 220 MHz
licensees should be permitted to disaggregate their licensed spectrum.
Since the 220 MHz service includes non-commercial uses by Public Safety
and EMRS entities, the Commission seeks comment as to whether
additional rules for partitioning and disaggregation should be adopted
to address the use of the 220 MHz service for possible commercial and
non-commercial services.
3. The full text of this Fifth NPRM solicits comment on specific
aspects of partitioning and disaggregation, which will need to be
addressed if the Commission decides to adopt partitioning for Phase I
nationwide licensees and disaggregation for all 220 MHz licensees. For
example, Phase I nationwide licensees are not currently permitted to
assign or transfer a license before the licensee has constructed at
least 40 percent of the proposed system. The Commission therefore seeks
comment as to whether a Phase I nationwide licensee should be permitted
to partition or disaggregate prior to constructing at least 40 percent
of its proposed system. The Commission also seeks comment as to whether
there are technical or regulatory constraints unique to the 220 MHz
service that would render partitioning or disaggregation impractical or
administratively burdensome.
4. Covered Phase II 220 MHz service areas are based on nationwide,
Economic Areas or Regional Areas. In addition, there are Phase I
nationwide licenses in the 220 MHz service. The Commission tentatively
concludes that a flexible approach to partitioned areas, similar to the
one adopted for broadband PCS, is appropriate for the 220 MHz service.
The Commission therefore proposes to permit partitioning of Phase I
nationwide and covered Phase II 220 MHz licenses based on any license
area defined by the parties. Comment is invited on this proposal, and
in particular on whether this proposal is consistent with the
Commission's licensing of the 220 MHz service, and whether there are
any technical or other issues unique to the 220 MHz service that might
impede the adoption of a flexible approach to defining the partitioned
license area.
5. The Commission next seeks comment as to whether, if
disaggregation in the 220 MHz service is permitted, minimum
disaggregation standards are necessary. The Commission seeks to
determine whether, given the unique characteristics of the 220 MHz
service, technological and administrative considerations warrant the
adoption of such standards. The Commission seeks comment as to whether
to adopt standards which would be flexible enough to encourage
disaggregation while providing a standard which is consistent with its
technical rules and by which it would be able to track disaggregated
spectrum and review disaggregation proposals in an expeditious fashion.
6. The Commission further seeks comment regarding whether combined
partitioning and disaggregation should be permitted for the 220 MHz
service. The Commission tentatively concludes that it should permit
such combinations in order to provide parties the flexibility they need
to respond to market forces and demands for service relevant to their
particular locations and service offerings.
7. The Commission seeks comment as to whether it should adopt rules
for covered Phase II licensees to establish dual construction options
and attendant requirements for 220 MHz service partitioners and
partitionees, similar to those adopted for broadband PCS. Under the
first option, the partitionee certifies that it will satisfy the same
construction requirements as the original licensee. The partitionee
then must meet the prescribed service requirements in its partitioned
area while the partitioner is responsible for meeting those
requirements in the area it has retained. Under the second option, the
original licensee certifies that it has already met or will meet its 5-
year construction requirement and that it will meet the 10-year
requirement for the entire market involved. Because the original
licensee retains the responsibility for meeting the construction
requirements for the entire market, the partitionee is permitted to
comply with a less rigorous construction requirement--the partitionee
must only meet a substantial service requirement for its partitioned
license area at the end of the 10-year license term. The Commission
particularly seeks comment as to the appropriateness of the lesser
construction requirement for the second option.
8. The Commission invites comment as to whether to adopt rules for
covered Phase II licensees similar to the disaggregation rules adopted
for broadband PCS. Under this certification approach, the
disaggregating parties would be required to submit a certification,
signed by both the disaggregator and disaggregatee, stating whether one
or both of the parties will retain responsibility for meeting the 5-
and 10-year construction requirements for the 220 MHz market involved.
If one party takes responsibility for meeting the construction
requirements, then that party would be subject to license forfeiture
for failing to meet the construction requirements, but such a failure
would not affect the status of the other party's license. If both
parties agree to share the responsibility for meeting the construction
requirements, then both parties' licenses would be subject to
forfeiture if either party fails to meet the construction requirements.
9. The Commission proposes rules for licensees other than covered
Phase II licensees that differ from the approach taken in the
Partitioning Report and Order. Phase I non-nationwide licensees and
Phase II licensees authorized on Public Safety or EMRS channels are not
authorized to operate within a particular geographic area, but instead
are authorized to construct a single land mobile base station for base
and mobile operations. Phase I non-nationwide licensees must construct
their systems, having all specified base stations constructed with all
channels, and place their systems in operation within eight months of
the initial license grant.
10. The Commission proposes that Phase I non-nationwide licensees
be permitted to disaggregate their licensed spectrum only after they
have met the applicable construction deadline. The Commission also
proposes that Phase II licensees operating on Public Safety or EMRS
channels should be permitted to disaggregate their licensed spectrum
only after they have met the applicable construction deadline. Since
the construction deadline would therefore
[[Page 16006]]
be met before any disaggregation is allowed, no construction
requirement would be imposed on a disaggregatee. Comment is solicited
on these proposals.
11. The Commission next tentatively concludes that a disaggregatee
obtaining spectrum from a Phase I nationwide licensee should be
required to meet the same two-, four-, six-, and 10-year construction
requirements as the original licensee. The disaggregatee would be
required to meet the same two-, four-, six-, and 10-year requirements
as the original licensee for the spectrum it obtains. The Commission
seeks comment on this tentative conclusion.
12. Because the construction requirements for Phase I nationwide
licensees differ so markedly from those pertaining to Phase II
nationwide licensees or licensees in other services such as broadband
PCS or GWCS, it does not appear, as a practical matter, to be possible
to have similar construction options for Phase I nationwide
partitionees. Given the difficulties created by these construction
requirements, the Commission seeks comment on whether partitioning of
Phase I nationwide licenses should be permitted. If such partitioning
is allowed, the Commission seeks comment on what construction
requirements could be imposed on the original licensee and any
partitionees. In light of the unique construction requirements imposed
on Phase I nationwide licensees, the Commission also seeks comment on
what type of construction requirements should be imposed on Phase I
licensees and their partitionees and disaggregatees if a Phase I
nationwide license is both partitioned and disaggregated.
13. Regarding the license term, the Commission seeks comment as to
whether its 220 MHz rules should provide that parties obtaining
partitioned 220 MHz licenses or disaggregated spectrum hold their
license for the remainder of the original licensee's five- or 10-year
license term. In addition, the Commission seeks comment as to whether
220 MHz partitionees and disaggregatees should be afforded the same
renewal expectancy as other 220 MHz licensees. The Commission
tentatively concludes that limiting the license term of the partitionee
or disaggregatee is necessary to ensure that there is maximum incentive
for parties to pursue available spectrum as quickly as practicable.
14. The Commission's competitive bidding rules for the covered
Phase II 220 MHz service include provisions for installment payments
and bidding credits for small businesses and very small businesses. The
Commission has also adopted rules to prevent unjust enrichment by such
entities that seek to transfer licenses obtained through use of one of
these special benefits. The Commission tentatively concludes that the
Phase II 220 MHz service partitionees and disaggregatees that would
qualify as small businesses or very small businesses should be
permitted to pay their pro rata share of the remaining government
obligation through installment payments. The Commission seeks comment
on this tentative conclusion. The Commission also invites comment as to
the exact mechanisms for apportioning the remaining government
obligation between the parties and whether there are any unique
circumstances that would make devising such a scheme for the Phase II
220 MHz service more difficult than for broadband PCS. Since Phase II
220 MHz service areas are allotted on a geographic basis, in a manner
similar to broadband PCS, the Commission proposes using population as
the objective measure to calculate the relative value of the
partitioned area and amount of spectrum disaggregated as the objective
measure for disaggregation, and seeks comment on this proposal.
15. The Commission invites comment on whether to apply unjust
enrichment rules to small or very small business Phase II 220 MHz
licensees that partition or disaggregate to non-small businesses.
Commenters should address how to calculate unjust enrichment payments
for designated entity Phase II 220 MHz service licensees paying through
installment payments and those that were awarded bidding credits that
partition or disaggregate to non-small businesses. The Commission asks
that commenters also address how it should calculate unjust enrichment
payments in situations where a very small business partitions or
disaggregates to a small business that qualifies for a lower bidding
credit. Commenters should also address whether the unjust enrichment
payments should be calculated on a proportional basis, using population
of the partitioned area and amount of spectrum disaggregated as the
objective measures. The Commission proposes using methods similar to
those adopted for broadband PCS for calculating the amount of the
unjust enrichment payments that must be paid in such circumstances, and
seeks comment on this proposal.
16. Section 90.709(d) of the Commission's rules currently forbids
partial assignment of Phase I 220 MHz licenses. However, since there
are existing partial assignment rules for commercial mobile radio
stations in part 90, the Commission proposes utilizing partial
assignment procedures, similar to those adopted for broadband PCS, to
review 220 MHz partitioning and disaggregation transactions. Partial
assignment applications would be placed on public notice and subject to
petitions to deny. The parties would be required to submit an FCC Form
490, an FCC Form 600 and, if necessary, an FCC Form 430, together as
one package under cover of the FCC Form 490. The Commission invites
comment on whether any additional procedures are necessary for
reviewing these applications. We also seek comment on how licensing
issues should be addressed for non-commercial mobile radio stations in
the 220 MHz service with respect to partial assignments.
Administrative Matters
17. Pursuant to applicable procedures set forth in Secs. 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 15, 1997, and reply
comments on or before April 30, 1997. To file formally in this
proceeding, you must file an original plus 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 should send comments and reply comments to Office
of the Secretary, Federal Communications Commission, Washington, DC
20554. Comments and reply comments will be available for public
inspection during regular business hours in the FCC Reference Center
(Room 239), 1919 M Street, NW., Washington, DC 20554.
18. This is a non-restricted notice and comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed as provided in the
Commission rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
Initial Regulatory Flexibility Act Statement
19. As required by section 603 of the Regulatory Flexibility Act,
the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small entities of the proposals
suggested in this document. Written public comments are requested on
the IRFA. These comments must be filed in accordance with the same
filing deadlines as comments on the rest of this Fifth Notice of
Proposed Rulemaking, but they must have a separate and distinct heading
[[Page 16007]]
designating them as responses to the Initial Regulatory Flexibility
Analysis. The Secretary shall send a copy of this Fifth Notice of
Proposed Rulemaking, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act. Public Law 96-354, 94 Stat. 1164, 5 U.S.C. 601 et seq.
(1981).
List of Subjects in 47 CFR Part 90
Business and industry, Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-8013 Filed 4-2-97; 8:45 am]
BILLING CODE 6712-01-P
