[Federal Register Volume 61, Number 95 (Wednesday, May 15, 1996)]
[Proposed Rules]
[Pages 24469-24473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12269]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 15, 22, and 24
[WT Docket No. 95-157; RM-8643; FCC 96-196]
Microwave Relocation Rules; Comment Request for Blocks C Through
F
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: By this Further Notice of Proposed Rule Making, the Commission
seeks further comment on certain aspects of the microwave relocation
rules for C, D, E, and F blocks. Specifically, the Commission seeks
further comment on whether to adjust the negotiation periods by
shortening the voluntary negotiation period and lengthening the
mandatory negotiation period for the D, E, and F blocks, and whether
the negotiation periods for the C block should be subject to the same
adjustment. The Commission also seeks comment on whether microwave
incumbents should be permitted to seek reimbursement from PCS licensees
through participation in the cost-sharing plan. The Commission believes
that the rules proposed herein, will expedite the clearing of the 2 GHz
band in an equitable and efficient manner.
DATES: Comments must be filed on or before May 28, 1996 and reply
comments on or before June 7, 1996.
ADDRESSES: Federal Communications Commission, 1919 M Street, N.W.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Michael Hamra (202) 418-0620, Wireless
Telecommunications Bureau.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Further Notice of
Proposed Rule Making, adopted April 24, 1996 and released April 30,
1996. The complete text of this Further Notice of Proposed Rule Making
is available for inspection and copying during normal business hours in
the FCC Reference Center, Room 230, 1919 M Street, N.W., Washington,
D.C., and also may be purchased from the Commission's copy contractor,
International Transcription Service, at (202) 857-3800, 2100 M Street,
N.W., Suite 140, Washington, D.C. 20037.
FURTHER NOTICE OF PROPOSED RULE MAKING
I. Background
1. In the First Report and Order and Third Notice of Proposed Rule
Making in ET Docket No. 92-9, 57 FR 49020 (October 29, 1992) the
Commission reallocated the 1850-1990, 2110-2150, and 2160-2200 MHz
bands from private and common carrier fixed microwave services to
emerging technology services. The Commission also established
procedures for 2 GHz microwave incumbents to be relocated to available
frequencies in higher bands or to other media, by encouraging
incumbents to negotiate voluntary relocation agreements with emerging
technology licensees or manufacturers of unlicensed devices when
frequencies used by the incumbent are needed to implement the emerging
technology. The First Report and Order stated that, should negotiations
fail, the emerging technology licensee could request involuntary
relocation of the incumbent, provided that the emerging technology
service provider pays the cost of relocating the incumbent to a
comparable facility.
2. In the Commission's Third Report and Order in ET Docket No. 92-
9, 58 FR 46547 (September 2, 1993) as modified on reconsideration by
the Memorandum Opinion and Order, 59 FR 19642 (April 25, 1994) the
Commission established additional details of the transition plan to
enable emerging technology providers to relocate incumbent facilities.
The relocation process consists of two negotiation periods that must
expire before an emerging technology licensee may request involuntary
relocation. The first is a fixed two-year period for voluntary
negotiations--three years for public safety incumbents, e.g., police,
fire, and emergency medical--commencing with the Commission's
acceptance of applications for emerging technology services, during
which the emerging technology providers and microwave licensees may
negotiate any mutually acceptable relocation agreement. Negotiations
are strictly voluntary. If no agreement is reached, the emerging
technology licensee may initiate a one-year mandatory negotiation
period--or two-year mandatory period if the incumbent is a public
safety licensee--during which the parties are required to negotiate in
good faith.
3. Should the parties fail to reach an agreement during the
mandatory negotiation period, the emerging technology provider may
request involuntary relocation of the existing facility. Involuntary
relocation requires that the emerging technology provider (1) guarantee
payment of all costs of relocating the incumbent to a comparable
facility; (2) complete all activities necessary for placing the new
facilities into operation, including engineering and frequency
coordination; and (3) build and test the new microwave (or alternative)
system. Once comparable facilities are made available to the incumbent
microwave operator, the Commission will amend the 2 GHz license of the
incumbent to secondary status. After relocation, the microwave
incumbent is entitled to a one-year trial period to determine whether
the facilities are indeed comparable, and if they are not, the emerging
technology licensee must remedy the defects or pay to relocate the
incumbent back to its former or an equivalent 2 GHz frequency.
4. Under these procedures, it is possible for a relocation
agreement between a PCS licensee and a microwave incumbent to have
spectrum-clearing benefits for other PCS licensees as well. First, some
microwave spectrum blocks overlap with one or more PCS blocks, because
the spectrum in the 1850-1990 MHz band was assigned differently in the
two services. Second, incumbents' receivers may be susceptible to
adjacent or co-channel interference from PCS licensees in more than one
PCS spectrum block. For example, a microwave link located partially in
Block A, partially in Block D, and adjacent to Block B, may cause
interference to or receive interference from PCS licensees that are
licensed in each of those blocks. Third, because most 2 GHz microwave
licensees operate multi-link systems, PCS licensees may be asked to
relocate links that do not directly encumber their own spectrum or
service area in order to obtain the microwave incumbent's voluntary
consent to relocate. Finally, the Unlicensed PCS Ad Hoc Committee for 2
GHz Microwave Transition and Management Inc. (``UTAM''), the frequency
coordinator for the PCS spectrum designated for unlicensed devices,
expects that some licensed PCS providers will have to relocate links in
the unlicensed band that are paired with links in licensed PCS
spectrum. The Commission has designated UTAM to coordinate relocation
in the 1910-1930 MHz band, which has been reallocated for unlicensed
PCS devices. Once the 1910-1930 MHz band is clear, or there is little
risk of interference to the remaining incumbents, and UTAM has
recovered its relocation costs, UTAM's role will end and it will be
dissolved.
5. Because the Commission is licensing PCS providers at different
times and multiple PCS licensees may benefit from the relocation of a
microwave system or even a single link, the first PCS licensee in the
market potentially bears a disproportionate share of relocation costs.
Subsequent PCS licensees to enter the market may
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therefore obtain a windfall. As a result of this potential ``free
rider'' problem, the first PCS licensee in the market might not
relocate a link or might delay its deployment of PCS if it believes
that another PCS licensee will relocate the link first, thus paying for
some or all of the relocation costs. In addition, unless cost-sharing
is adopted, PCS licensees might not engage in relocation that is cost-
effective if viewed from an industry-wide perspective. For example, a
link that encumbers two PCS blocks might not be moved if the cost is
greater than the benefit to any single licensee, even though the joint
benefit received by two or more licensees exceeds the cost of
relocating the link.
6. In 1994, PCIA proposed a cost-sharing plan to alleviate the free
rider problem, which the Commission found to be attractive in theory
but dismissed as underdeveloped. On May 5, 1995, Pacific Bell
(``PacBell'') filed a Petition for Rulemaking. In its petition, PacBell
proposed a detailed cost-sharing plan in which PCS licensees on all
blocks, licensed and unlicensed, would share in the cost of relocating
microwave stations. On May 16, 1995, the Commission requested comment
on PacBell's proposal. Most parties that commented on PacBell's
Petition for Rulemaking supported the cost-sharing concept, although
the comments reflected some differences regarding the details of the
proposal. On October 12, 1995, the Commission adopted a Notice of
Proposed Rule Making, 60 FR 55529 (November 1, 1995) which sought
comment on a modified version of the plan proposed by PacBell.
7. The Commission also adopted and released with this Further
Notice of Proposed Rule Making, the First Report and Order changing and
clarifying certain aspects of the microwave relocation rules adopted in
the Commission's Emerging Technologies proceeding, ET Docket No. 92-9.
II. Further Notice of Proposed Rule Making
8. In this Further Notice of Proposed Rule Making, the Commission
seeks comment on whether to shorten the voluntary negotiation period
and lengthen the mandatory negotiation period for the D, E, and F
blocks. The Commission also seeks comment on whether the negotiation
periods for the C block should be subject to the same adjustment.
Finally, the Commission proposes that microwave incumbents be permitted
to relocate some of their own links and obtain reimbursement rights
pursuant to the cost-sharing plan adopted in the First Report and
Order.
A. Voluntary and Mandatory Negotiation Periods for C, D, E, and F
Blocks
9. The Commission agrees with commenters, however, that changing
the negotiation timetable for PCS blocks other than the A and B blocks
may not raise the same concerns. In the case of the D, E, and F blocks,
bidding has not commenced and there are no ongoing negotiations between
PCS licensees and incumbents. Therefore, the Commission believes it is
appropriate to consider whether the relocation process in these blocks
would benefit from adjusting the negotiation periods. Specifically, the
Commission seeks comment on whether to adjust the negotiation periods
for the D, E, and F blocks by shortening the voluntary negotiation
period by one year and lengthening the mandatory period by one year.
Under this approach, non-public safety incumbents would have a one-year
negotiation period instead of the two-year negotiation period provided
under current rules, and the mandatory negotiation period would be
lengthened from one to two years. Similarly, public safety incumbents
would have a two-year voluntary negotiation period instead of a three-
years period, and a three-year mandatory negotiation period instead of
a two-year period.
10. This approach could potentially accelerate the development of
PCS in the D, E, and F blocks by speeding up the negotiation process
and creating additional incentives for incumbents to enter into early
agreements. At the same time, while incumbents would be required to
commence mandatory negotiations sooner than under the existing rules,
they would have the same total amount of time for negotiations provided
under the existing rules before they become subject to involuntary
relocation. The Commission seeks comment on whether this adjustment
would effectively balance the interests of PCS licensees in bringing
service to the public quickly and the interest of microwave incumbents
in making a smooth transition to relocated facilities.
11. Finally, the Commission seeks comment on whether to make the
same changes discussed above to the voluntary and mandatory negotiation
periods applicable to C block. The Commission notes that C block is in
a different posture from the D, E, and F blocks because the C block
auction is ongoing and possibly near conclusion, and bidding has been
based on the current rules. At the same time, the voluntary negotiation
period for C block has not yet commenced, so unlike A and B blocks,
there are no ongoing negotiations currently taking place in reliance on
the current rules. The Commission seeks comment on whether shortening
the voluntary period and lengthening the mandatory negotiation period
for C block would facilitate the development of PCS in this band and
what effect it would have on negotiations between C block licensees and
microwave incumbents.
B. Microwave Incumbent Participation in Cost-Sharing Plan
12. The Commission tentatively concludes that microwave incumbents
that relocate themselves should be allowed to obtain reimbursement
rights and collect reimbursement under the cost-sharing plan from
later-entrant PCS licensees that would have interfered with the
relocated link. The Commission agrees with incumbents that allowing
incumbent participation might facilitate system-wide relocations and
could potentially expedite the deployment of PCS. The Commission is
concerned, however, about what the incentive would be for an incumbent
to minimize costs, if the incumbent knows in advance that it may be
able to recover some of its expenses from PCS licensees. The Commission
seeks comment, therefore, on how subsequent PCS licensees could be
protected from being required to pay a larger amount to an incumbent
that relocates itself than to another PCS licensee who has an incentive
to minimize expenses. In addition, the Commission also questions
whether a large number of incumbents would avail themselves of such an
option, given that the Commission's rules require PCS licensees to pay
for the entire cost of providing incumbents with comparable facilities.
Assuming the Commission allows incumbent participation, the Commission
seeks comment on whether, for purposes of the cost-sharing formula, the
Commission should treat incumbents as if they were the initial PCS
relocator.
III. Conclusion
13. The Commission believes that the rules proposed in this Further
Notice of Proposed Rule Making will promote the public policy goals set
forth by Congress. The Commission believes that the proposals for
negotiation and reimbursement will facilitate the rapid relocation of
microwave facilities operating in the 2 GHz band, and will allow PCS
licensees to offer service to the public in an expeditious manner.
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IV. Procedural Matters
A. Initial Regulatory Flexibility Act
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 policies and
rules proposed in this Further NPRM (Further Notice). Written public
comments are requested on the IRFA.
Reason for Action: This rulemaking proceeding was initiated to
secure comment on whether the negotiation period for the D, E, and F
block PCS licensees should be adjusted by shortening the voluntary
period by one year (i.e., to one year for non-public safety incumbents
and two years for public safety incumbents) and lengthening the
mandatory negotiation period for these blocks by a corresponding year
(i.e., to two years for non-public safety incumbents and three years
for public safety incumbents); whether the negotiation periods for the
C block should be subject to the same readjustments as the negotiation
periods for the D, E, and F blocks; and whether microwave incumbents
should be permitted to seek reimbursement from PCS licensees through
the cost-sharing plan. This proposal would facilitate negotiations
between the parties and promote the efficient relocation of microwave
licensees by encouraging microwave incumbents to relocate their own
microwave systems, thus bringing PCS services to the public in an
speedy manner.
Objectives: Our objective is to facilitate negotiations between PCS
licensees and microwave incumbents. This proposal would also enable
microwave incumbents who pay to relocate their own links to collect
reimbursement from PCS licensees that benefit from the relocation.
Cost-sharing is necessary to enhance the speed of relocation and
provide an incentive to incumbents to move their own links. This action
would result in faster deployment of PCS and delivery of service to the
public.
Legal Basis: The proposed action is authorized under the
Communications Act, Sections 4(i), 7, 303(c), 303(f), 303(g), 303(r),
and 332, 47 U.S.C. 154(i), 303(c), 303(f), 303(g), 303(r), 332, as
amended.
Reporting, Record keeping, and Other Compliance Requirements: Under
the proposal contained in the Further NPRM, microwave incumbents who
relocate their own links would be required to document the relocation
costs paid and report them to a central clearinghouse. Later PCS market
entrants would then be required to file a Prior Coordination
Notification with the clearinghouse and, if necessary, reimburse the
incumbent for relocation expenses.
Federal Rules Which Overlap, Duplicate or Conflict With These
Rules: None.
Description, Potential Impact, and Number of Small Entities
Involved: This proposal would benefit small PCS licensees by
facilitating negotiations with microwave incumbents and allowing them
to bring their services to market sooner. This proposal would also
benefit small microwave incumbents by enabling them to relocate their
entire system at once and collect reimbursement from PCS licensees who
benefit from the resulting clearance of the spectrum. Such incumbents
would therefore benefit from the reduced time and administrative
inconvenience involved with relocating links at different times. The 2
GHz fixed microwave bands support a number of industries that provide
vital services to the public. We are committed to ensuring that the
incumbents' services are not disrupted and that the economic impact of
this proceeding on the incumbents is minimal. We must further take into
consideration that not all of the incumbent licensees are large
businesses, particularly in the bands above 2 GHz, and that many of the
licensees are local government entities that are not funded through
rate regulation. We believe that this proceeding would further our
policy of encouraging rapid deployment of PCS and system-wide
relocations of microwave incumbents. After evaluating comments filed in
response to the Further NPRM, the Commission will examine further the
impact of all rule changes on small entities and set forth its findings
in the Final Regulatory Flexibility Analysis.
Significant Alternatives Minimizing the Impact on Small Entities
Consistent with the Stated Objectives: We have reduced burdens wherever
possible. The regulatory burdens we have retained are necessary in
order to ensure that the public receives the benefits of innovative new
services in a prompt and efficient manner. We will continue to examine
alternatives in the future with the objectives of eliminating
unnecessary regulations and minimizing any significant economic impact
on small entities.
IRFA Comments: We request written public comment on the foregoing
Initial Regulatory Flexibility Analysis. Comments must have a separate
and distinct heading designating them as responses to the IRFA and must
be filed by the comment deadlines set forth in this Further NPRM.
B. Ex Parte Rules--Non-Restricted Proceeding
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 Commission rules.
C. Comment Period
Pursuant to applicable procedures set forth in Sections 1.415 and
1.419 of the Commission's rules, interested parties may file comments
on or before May 28, 1996, and reply comments on or before June 7,
1996. 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 should
send comments and reply comments to Office of the Secretary, Federal
Communications Commission, Washington, D.C. 20554. Comments and reply
comments will be available for public inspection during regular
business hours in the Reference Center of the Federal Communications
Commission, Room 239, 1919 M Street, N.W., Washington, D.C. 20554. A
copy of all comments should also be filed with the Commission's copy
contractor, ITS, Inc., 2100 M Street, N.W., Suite 140, (202) 857-3800.
D. Authority
Authority for issuance of this Further Notice of Proposed Rule
Making is contained in the Communications Act, Sections 4(i), 7,
303(c), 303(f), 303(g), 303(r), and 332, 47 U.S.C. 154(i), 157, 303(c),
303(f), 303(g), 303(r), 332, as amended.
E. Ordering Clauses
It is ordered that the Initial Regulatory Flexibility Analysis, as
required by Section 604 of the Regulatory Flexibility Act, and as set
forth in Section VII(A) is Adopted.
It is further ordered that the Secretary shall send a copy of this
Further Notice of Proposed Rule Making to the Chief Counsel for
Advocacy of the Small Business Administration.
List of Subjects
47 CFR Part 22
Radio.
47 CFR Part 24
Personal communications services.
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47 CFR Part 101
Fixed microwave services.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-12269 Filed 5-14-96; 8:45 am]
BILLING CODE 6712-01-P
