02-8304. Improving Public Safety Communications in the 800 MHz Band and Consolidating the 900 MHz Industrial/Land Transportation and Business Pool Channels

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document, the Commission seeks comment on proposals made by the National Association of Manufacturers and MRFAC, Inc. and Nextel Communications, Inc. for alleviation of interference to public safety communications in the 800 MHz band. The primary objective of the Notice of Proposed Rule Making is to explore all available options and alternatives for improving the spectrum environment for public safety operations in the 800 MHz Band and to ensure that public safety agencies have access to adequate spectrum resources in the 800 MHz band to support their critical missions. The Commission also requests comment on the terms and conditions of licenses in the 900 MHz land mobile band if it is used to relocate 800 MHz licensees to resolve interference. Finally, the Commission also seeks comment on a Petition for Rule Making filed by the Personal Communications Industry Association (PCIA) to consolidate the Business and Industrial/Land Transportation Pools.

DATES:

Written comments by the public on the proposed are due on or before May 6, 2002, and reply comments are due on or before June 4, 2002.

ADDRESSES:

Acting Secretary, William F. Caton, Office of the Secretary, Federal Communications Commission, 445 12th St., SW., Washington, DC 20554. Filings can be sent first class by the US Postal Service, by an overnight courier or hand and messenger-delivered. Hand and message-delivered paper filings must be delivered to 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. Overnight courier (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

FOR FURTHER INFORMATION CONTACT:

Michael J. Wilhelm, Wireless Telecommunications Bureau, Public Safety and Private Wireless Division, at [phone] (voice), [phone] (TTY), [e-mail] (e-mail).

SUPPLEMENTARY INFORMATION:

This is a summary of the Federal Communications Commission's Notice of Proposed Rule Making, FCC 02-81, adopted on March 14, 2002 and released on March 15, 2002. The full text of this Notice of Proposed Rule Making is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text and graphical appendices may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Martha Contee at [phone] or TTY [phone].

1. In this NPRM, the Commission:

• Describes the current configuration of the 800 MHz band public safety and non-public safety systems.
• Discusses the causes of severe interference to public safety communications.
• Tentatively concludes that increasing levels of harmful interference to public safety communications on the 800 MHz band must be remedied.
• Discusses various means of reconfiguring the 800 MHz band in a manner that will effectively minimize interference to public safety radio systems from Commercial Mobile Radio Service stations using cellular architecture.
• Requests information on the amount of spectrum sufficient to meet the needs of public safety.
• Discusses means of handling licensing and frequency coordination if the 800 MHz band is restructured and incumbent 800 MHz licensees are relocated to other suitable bands.
• With respect to any necessary incumbent relocation, discusses what replacement spectrum would be appropriate for displaced incumbents, who would be reimbursed for relocating and who would pay the costs associated with relocation.
• Considers complementary means of reducing interference to 800 MHz public safety communications in addition to reconfiguration of the 800 MHz frequency band, including receiver standards, stricter limits on out of band emissions, and more robust public safety signals.
• Describes and discusses PCIA's petition for rule making seeking to consolidate the Business and Industrial/Land Transportation pools.
• Requests comment on the terms and conditions of licenses in the 900 MHz land mobile band if it is used to relocate displaced licensees.

2. If commenting parties believe 800 MHz band restructuring is necessary to mitigate interference to 800 MHz public safety systems, they should describe their restructuring proposals in sufficiently exact detail that the Commission can ascertain whether they meet our goal of resolving interference with minimum disruption to existing services. If the 800 MHz band is restructured, there is the potential for gaining additional spectrum for use by public safety agencies. Before adopting any plan that would realize additional public safety spectrum, the Commission requires quantitative information on public safety agencies' needs for additional spectrum. The Commission seeks such information in this NPRM. In order that the Commission may build a record sufficient to take timely and effective action to alleviate interference to public safety communications, it solicits comments from the public safety community, telecommunications carriers, Specialized Mobile Radio, Business and Industrial/Land Transportation licensees and their representatives, equipment manufacturers, government agencies and any other parties who can contribute to a solution to an interference problem potentially threatening to life and property. Also, the Commission seeks comment from all interested parties on PCIA's proposal to merge the 900 MHz Business and Industrial/Land Transportation pools into a single pool accessible to both services.

I. Procedural Matters

A. Ex Parte Rules

3. Pursuant to § 1.1206 of the Commission's ex parte rules, 47 CFR 1.1206, this rulemaking proceeding is a permit-but-disclose proceeding. Provided they are disclosed in accordance with the Commission's rules, ex parte presentations are permitted, except during the Sunshine Agenda period.

B. Filing Procedures

4. Pursuant to Sections 1.415 and 1.419 of the Commission's Rules, 47 CFR 1.415 and 1.419, interested parties may file comments on this Notice of Proposed Rule Making on or before May 6, 2002, and reply comments on or before June 4, 2002. Comments and reply comments should be filed in WT Docket No. 02-55. All relevant and timely filings will be considered by the Commission before final action is taken in this proceeding. To file formally in this proceeding, interested parties must file an original and four copies of each comment or reply comment. Commenting parties who wish each Commissioner to receive personal copies of their submissions must file an original and nine copies of each comment and reply comment. Comments and reply comments must be directed to William F. Caton, Office of the Secretary, Federal Communications Commission, 445 12th St., SW., Washington, DC 20554. Copies of all comments also should be provided to (1) the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, and (2) Michael J. Wilhelm, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Filings can be sent first class by the US Postal Service, by an overnight courier or hand and messenger-delivered. Hand and messenger-delivered paper filings must be delivered to 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. Overnight courier (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

5. Comments may also be filed using the Commission's Electronic Comment Filing System (ECFS). Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/​e-file/​ecfs.html. Generally, only one copy of an electronic submission must be filed. Parties may also submit an electronic comment by Internet e-mail. To obtain filing instructions for e-mail comments, commenting parties should send an e-mail to [e-mail], and should include the following words in the body of the message: “get form <your e-mail address>.” A sample form and directions will be sent in reply. Or, you may obtain a copy of the ASCII Electronic Transmittal Form (FORM-ET) at http://www.fcc.gov/​e-file/​email.html.

6. Comments and reply comments will be available for public inspection during regular business hours at the FCC Reference Information Center, Room CY-A257, at the Federal Communications Commission, 445 12th St., SW, Washington, DC. 20554. Copies of comments and reply comments are available through the Commission's duplicating contractor: Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone [phone], facsimile 202-863-2898, or via e-mail at [e-mail]. This Notice of Proposed Rulemaking can be found on the Wireless Telecommunications Bureau home page at http://wireless.fcc.gov.

C. Regulatory Flexibility Act

7. Pursuant to the Regulatory Flexibility Act, see 5 U.S.C. 603, the Initial Regulatory Flexibility Act Analysis is set forth beginning at paragraph nine. We request written public comments on the Initial Regulatory Flexibility Analysis. These comments must be filed in accordance with the same filing deadlines as the comments on the rest of the Notice of Proposed Rule Making, and must have a separate and distinct heading designating them as responses to the Initial Regulatory Flexibility Analysis. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rule Making, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the Regulatory Flexibility Act.

8. The proposals contained herein have been analyzed with respect to the Paperwork Reduction Act of 1980 and found to contain no new or modified form, information collection and/or record keeping, labeling, disclosure, or record retention requirements; and will not increase or decrease burden hours imposed on the public.

II. Initial Regulatory Flexibility Analysis for Notice of Proposed Rulemaking

9. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in this Notice of Proposed Rulemaking (Notice). Written public comments are requested regarding this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice provided in paragraph 4 of the item. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the Notice and IRFA (or summaries thereof) will be published in the Federal Register.

A. Need for, and Objectives of, the Proposed Rules

10. In the Notice, we consider proposals submitted by Nextel, Inc. (Nextel) and the National Association of Manufacturers and MRFAC, Inc. (NAM). Nextel proposes to: (1) Expand the 800 MHz public safety spectrum by consolidating it into 10 MHz blocks of contiguous channels at 806-816 MHz and 851-861 MHz; (2) relocate National Public Safety Planning Advisory Committee (NPSPAC) licensees from their current 821-824 MHz and 866-869 MHz channels into the above blocks of contiguous public safety spectrum; (3) relocate Business, Industrial and Land Transportation (I/LT), and Specialized Mobile Radio (SMR) licensees from their current channels in the 809.75-816 MHz and 854.75-861 MHz band to channels in the 896-901 MHz and 935-940 MHz band and in the 762-764 MHz and 792-794 MHz Guard Band Block B; (4) establish an allocation for “low site, low power digital SMR” licensees in the 816-824 MHz and 861-869 MHz band; and (5) establish two 5 MHz blocks for “Nextel SMR” in the 2 GHz Mobile Satellite Service (MSS) band. NAM proposes that the 800 MHz land mobile band be restructured so that there is a public safety segment from 806-811 MHz and 851-856 MHz; an SMR, Business, and Industrial and Land Transportation segment from 811-816 MHz and 856-861 MHz; and a Cellular Architecture Digital SMR segment at 816-824 MHz and 861-869 MHz. We will also give consideration to other reallocation proposals. We have tentatively concluded that spectrum reallocation would be in the public interest because it would solve current and future harmful interference to 800 MHz public safety communications.

11. We also consider a proposal that the 800 MHz and 900 MHz Business and Industrial/Land Transportation (I/LT) pools be consolidated into a single pool accessible by both services. In the alternative, we propose to lift the freeze on intercategory sharing that prevents the use of I/LT channels by Business entities.

B. Legal Basis

12. Authority for issuance of this item is contained in Sections 4(i), and 303(f) and (r) and Section 332 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f) and (r), 332.

C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

13. 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 proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under Section 3 of the Small Business Act, unless the Commission has developed one or more definitions that are appropriate for 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) satisfies any additional criteria established by the Small Business Administration.

14. 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 1992, there were approximately 275,801 small organizations. A “small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number included 38,978 counties, cities, and towns; of these, 37,566, or ninety-six 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 81,600 (ninety-one percent) are small entities. Below, we further describe and estimate the number of small entities—applicants, licensees, and radio equipment manufacturers—that may be affected by the proposals, if adopted, in this Notice.

15. Public Safety Radio Licensees. There are currently 1320 public safety and NSPAC licensees who would be required to relocate their station facilities, with some reimbursement, if the NAM or Nextel proposals described in the Notice of Proposed Rulemaking were adopted. The NSPAC licensees operate on six (6) MHz of spectrum from 821-824 and 866-869 MHz known as the NSPAC channels. In this band the public safety channels are not interleaved with channels of other services; however, the band abuts the upper 200 SMR channels ending at 821/866 MHz and the cellular band beginning at 824/869 MHz. The other public safety licensees—operating on channels interleaved with channels of other services—affected by this proceeding include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services operating in the 800 MHz band. Non-Federal government entities, as well as private businesses, are licensees for these services. As indicated above, all governmental entities with populations of less than 50,000 fall within the definition of a small entity.

16. Neither the Commission nor the SBA has developed a definition of small businesses directed specifically toward public safety licensees. Therefore, the applicable definition of small business is the definition under the SBA rules applicable to radiotelephone (wireless) companies. This provides that a small business is a radiotelephone company employing no more than 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms from a total of 1,178 such firms that operated during 1992 had 1,000 or more employees. Therefore, even if all twelve of these firms were public safety licensees, nearly all would be small businesses under the SBA's definition, if independently owned and operated.

17. Business, I/LT, and SMR licensees. At present, there are 2,100 Business and I/LT licensees who would be required to relocate their station facilities, without reimbursement, if the Nextel proposal described in the Notice were adopted. Also, there are currently 1,100 SMR licensees who would be required to relocate their station facilities, without reimbursement, if the Nextel proposal were implemented. Significantly fewer such licensees would have to be relocated under the NAM proposal. Neither the Commission nor the SBA has developed a definition of small businesses directed specifically toward these licensees. Therefore, the applicable definition of small business is the definition under the SBA rules applicable to radiotelephone (wireless) companies. This provides that a small business is a radiotelephone company employing no more than 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms from a total of 1,178 such firms that operated during 1992 had 1,000 or more employees. Therefore, even if all twelve of these firms were business, ILT, SMR, or MSS licensees, nearly all would be small businesses under the SBA's definition, if independently owned and operated.

18. Communications Equipment Manufacturers. This proposal will provide marketing opportunities for radio manufacturers, some of which may be small businesses. According to the Small Business Administration's regulations, a radio and television broadcasting and communications equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and, therefore, would be classified as small entities. We do not have information that indicates how many radio equipment manufacturers who would be interested in manufacturing the new radio equipment are among these 778 small firms. Motorola and M/A COM Private Radio Systems, Inc., however, are major, nationwide radio equipment manufacturers, and thus, would not qualify as small businesses.

D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

19. The Notice of Proposed Rulemaking does not propose a rule that will entail additional reporting, recordkeeping, and/or third-party consultation or other compliance efforts.

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

20. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed 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 or reporting requirements under the rule for 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 small entities. 5 U.S.C. 603.

21. As an alternative to relocating Business, I/LT, and SMR systems, we will consider: (a) Allowing the licensees of these systems to remain on the public safety channels, on a secondary basis, after the realignment plan is implemented, as proposed by Nextel; or (b) allowing Business, I/LT and SMR systems to remain in the 800 MHz band as proposed by NAM. We will also consider such alternatives as may be recommended in comments to the Notice. We will also evaluate whether the 700 MHz public safety allocation, though currently encumbered with television stations, can satisfactorily meet public safety's spectrum needs.

F. Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rules

22. None.

III. Ordering Clause

23. Authority for the issuance of this Notice of Proposed Rule Making is contained in Sections 4(i), 303(f) and (r), 332 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f) and (r), 332.

List of Subjects in 47 CFR Part 90

• Communications equipment
• Radio
• Reporting and recordkeeping requirements

Federal Communications Commission.

William F. Caton,

Acting Secretary.