[Federal Register Volume 63, Number 113 (Friday, June 12, 1998)]
[Rules and Regulations]
[Pages 32580-32592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15710]
[[Page 32579]]
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Part VI
Federal Communications Commission
_______________________________________________________________________
47 CFR Part 90
Reconsideration of the Rules and Policies for the 220-222 MHz Radio
Service; Final Rule
Federal Register / Vol. 63, No. 113/ Friday, June 12, 1998 / Rules
and Regulations
[[Page 32580]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[PR Docket No. 89-552, GN Docket No. 93-252, and PP Docket No. 92-253;
FCC 98-93]
Reconsideration of the Rules and Policies for the 220-222 MHz
Radio Service
AGENCY: Federal Communications Commission.
ACTION: Final rule; petitions for reconsideration.
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SUMMARY: The Federal Communications Commission has adopted a Memorandum
Opinion and Order on Reconsideration (MO&O) concerning rules and
policies for the 220-222 MHz radio service (220 service). The MO&O
responds to petitions for reconsideration or clarification of the 220
MHz Second Report and Order (Second R&O) and the 220 MHz Third Report
and Order (Third R&O) in this proceeding. This MO&O reaffirms the
decision in the Second R&O with one clarification. The MO&O also
generally reaffirms the rules adopted in the Third R&O, but adopts some
changes and clarifications. The intended effect of this action is to
clarify and resolve issues pertaining to the 220 service prior to the
Commission's auction of remaining spectrum within that service.
EFFECTIVE DATE: August 11, 1998.
Written comments by the public on the new information collections
are due on or before July 13, 1998.
ADDRESSES: A copy of any comments on the information collections
contained in the MO&O should be submitted Judy Boley, Federal
Communications Commission, Room 234, 1919 M Street, N.W., Washington,
D.C. 20503, or via the internet to jboley@fcc.gov, and to Timothy Fain,
OMB Desk Officer, 10236 NEOB, 725-17th Street, N.W., Washington, D.C.
20503, or via the internet to fain__t@al.eop.gov.
FOR FURTHER INFORMATION CONTACT: For Non-Auction Information: Marty
Liebman, Mary Woytek, or Jon Reel, 202-418-1310. For Auction
Information: Frank Stilwell, 202-418-0660.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Memorandum Opinion
and Order on Reconsideration in PR Docket No. 89-552, GN Docket 93-252,
and PP Docket 93-253, FCC 98-93, adopted on May 14, 1998, and released
on May 21, 1998. 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, N.W., Washington, D.C., and
may be purchased from the Commission's copy contractor, International
Transcription Service, (202) 857-3800, 1231 20th Street, N.W.,
Washington, DC 20036. The complete text is also available under the
file name fcc98093.wp on the Commission's internet site at http://
www.fcc.gov/Bureaus/Wireless/Orders/1998/index.html. Written comments
must be submitted by OMB on the new information collections on or
before July 27, 1998.
Paperwork Reduction Act
This MO&O contains new information collections that have been
submitted to the Office of Management and Budget (OMB) for Emergency
Clearance under the Paperwork Reduction Act, Public Law No. 104-13. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and the OMB to comment on these
information collections. Comments should address: (a) whether the new
collections of information are 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: 3060-XXXX.
Title: Private Land Mobile Radio Services Part 90.
Form No.: N/A.
Type of Review: New collection.
Respondents: Licensees in the 220-222 MHz band.
Number of Responses: 18,400.
Estimated Time Per Response: 30 minutes to 12 hours. These
estimates are for various burdens including coordinating actions with
other licensees, submitting certifications with applications for
modifications of authorizations, and seeking a waiver of section
90.729(b).
Frequency of Response: On occasion.
Total Annual Burden: Approximately 44,850 hours.
Needs and Uses: The information collected will be used by the
Commission to verify licensee compliance with Commission rules and
regulations, to ensure the integrity of the 220 MHz service, and to
ensure that licensees continue to fulfill their statutory
responsibilities in accordance with the Communications Act of 1934.
Synopsis of Memorandum Opinion and Order on Reconsideration
1. The Commission adopts a Memorandum Opinion and Order on
Reconsideration (MO&O) which responds to petitions for reconsideration
or clarification of two Orders previously adopted in this proceeding
concerning the 220-222 MHz radio service (220 MHz service). The 220 MHz
Second Report and Order (Second R&O) (61 FR 03841, February 2, 1996)
enabled existing 220 MHz licensees to modify their licenses to relocate
their authorized base stations within Commission specified parameters.
The 220 MHz Third Report and Order (Third R&O) (62 FR 16004, April 3,
1997) established rules to govern the future operation and licensing of
the 220 MHz service. In response to petitions for reconsideration or
clarification of the Second R&O, the MO&O reaffirms the earlier
decision with one clarification, stating the Commission's continuing
belief that the modification procedures the Commission has adopted
provide existing 220 MHz licensees flexibility to complete construction
of their systems and provide service without unreasonably impairing the
opportunity of potential competitors to obtain licenses in the 220 MHz
service. In general, the MO&O affirms the rules for the 220 MHz service
adopted in the Third R&O, but adopts some changes and clarifications.
2. The MO&O first considers issues raised on reconsideration of the
Third R&O. The Commission denies the petitions which seek to modify the
Commission's rule that specifies the co-channel protection that must be
provided to Phase I licensees by Phase II licensees.\1\ In the Third
R&O, the Commission decided that Phase II Economic Area (EA) and
Regional licensees would be required to locate their base stations at
least 120 km from the base stations of co-channel Phase I licensees,
except that Phase II licensees would be permitted to locate their base
stations less than 120 km from the base stations of co-channel Phase I
licensees if they provide 10 dB protection to the predicted 38 dBuV/m
(dBu) service contour of the base stations of the Phase I licensees.
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\1\ Licensees granted authorizations from among applications
filed on or before May 24, 1991, are hereinafter referred to as
Phase I licensees. On August 28, 1995, the Commission released the
220 MHz Third Notice of New Rulemaking (Third Notice) (60 FR 46564,
September 7, 1995), which proposed market area licensing and more
flexible technical rules for the next phase (Phase II) of licensing
of the 220 MHz band.
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3. Petitioners seek reconsideration of this decision, arguing that
Phase II
[[Page 32581]]
licensees should be required, in locating their base stations, to
afford greater protection to co-channel Phase I licensees by providing
10 dB protection to the predicted 28 dBu service contour of all co-
channel Phase I base stations. Other petitioners do not oppose
continued protection of the 38 dBu service contour, but assert that the
Commission should afford greater than 10 dB protection to that contour.
4. Petitioners argue that the decision made by the Commission in
the Third R&O to provide 10 dB protection to the 38 dBu contour of
Phase I stations does not provide adequate protection between Phase I
and Phase II licensees. Petitioners contend that 220 MHz systems
significantly outperform the Commission's original coverage estimation,
and that 220 MHz customers operate throughout the 28 dBu areas.
Petitioners add that failure to adopt protection criteria based on a 28
dBu contour denies Phase I 220 MHz licensees a quality of service
comparable to that of competitive wireless systems.
5. Based on its detailed analysis of the technical information and
arguments provided by petitioners (see paragraphs 28-67 of the full
text of the MO&O), the Commission concludes that petitioners failed to
adequately support their claims, and that retention of the rule that
provides for 10 dB protection to the 38 dBu contour of Phase I stations
will not adversely affect operations in the 220 MHz service. The
Commission indicates, too, that it is confident that the existing 220
MHz protection criteria will enable Phase I licensees and future Phase
II licensees to operate in harmony.
6. The Commission denies petitions requesting a change to the way a
Phase I license service contour is calculated. In the Third R&O, the
Commission decided that Phase II EA and Regional licensees could locate
their base stations less than 120 km from the base stations of co-
channel Phase I licensees if they provide 10 dB protection to the
predicted 38 dBu service contour of the base stations of such
licensees. The Commission also decided in the Third R&O that the
predicted 38 dBu contour of Phase I licensees would be calculated based
on the licensee's authorized effective radiated power (ERP) and height
above average terrain (HAAT)--not on the maximum allowable ERP and HAAT
provided in the Commission's rules for the 220-222 MHz band. The
Commission further determined that licensees operating at power levels
lower than their initially authorized ERP would be required to seek
modification of their authorization to reflect the lower ERP.
7. Petitioners disagree with the Commission's decision to require
Phase I licensees to modify their authorizations to reflect the
system's actual ERP, and to define the service area based upon actual
ERP. Petitioners contend that this is a departure from previous
Commission policy for Part 90, and argue that these requirements will
result in a significant reduction in the protection afforded to Phase I
licensees. Several parties contend that a Phase I licensee's service
area should be defined based on maximum authorized power and height
levels.
8. The Commission disagrees with petitioners. It indicates that in
developing rules for authorizing Phase II licensees to serve a
particular geographic area, it sought to allow them to serve any
portion of that area, except for portions of the area already being
served by co-channel Phase I licensees. The Commission states that the
area ``already being served'' by co-channel Phase I licensees is the
area the licensee was serving at the time the decisions adopted in the
Third R&O became effective, and must therefore be calculated based on
the licensee's ERP and HAAT at that time. The Commission also indicates
that, as discussed in paragraphs 175-184 of the full text of the MO&O,
the area being served by a Phase I licensee that relocated its base
station in accordance with the provisions of the Second R&O is
calculated based on the HAAT and the ERP of the relocated base station.
9. The Commission states that if it were to assume that all 220 MHz
Phase I licensees are operating at the maximum power and antenna height
for the 220 MHz service when many are not operating at such parameters
and may never operate at such parameters, it could force Phase II
licensees to provide considerably greater protection to co-channel
Phase I licensees than necessary, and thereby potentially deny service
to the public in areas beyond the Phase I licensee's actual 38 dBu
service contour. The Commission also indicates that to protect a Phase
I licensee's base station in accordance with a power level that the
licensee might employ at some time in the future could also deny
service to the public.
10. The Commission therefore denies requests for the adoption of
alternative methods for calculating a Phase I licensees service contour
made by petitioners. As indicated in the MO&O, the Wireless
Telecommunications Bureau will issue a Public Notice following the
adoption of the MO&O announcing when applications must be filed by
Phase I, non-nationwide licensees in order to enable such licensees to
comply with the requirement that they modify their authorization to
reflect the ERP at which they were operating at the time the decisions
adopted in the Third R&O became effective.
11. The Commission grants in part the petitions that request that
Phase I licensees be permitted to modify their authorizations to the
extent that Phase I licensees will be permitted to make modifications
to their authorizations which do not expand their 38 dBu service
contour, and also will be permitted to convert their site-by-site
licenses to a single license. Otherwise such petitions are denied.
12. The Commission recognizes that licensed sites may become
unusable for a variety of reasons and agrees with petitioners arguments
that, in order to maintain the economic and technical viability of a
licensee's 220 MHz service, Phase I incumbent licensees should be
permitted to modify their authorizations (e.g., to relocate their base
station, to change the ERP or HAAT of their base station) as long as
doing so does not expand their service contour, as that contour has
been defined in this proceeding. Such licensees will therefore be
permitted to make those modifications to their authorizations that do
not expand their 38 dBu service contour. Phase I licensees will also be
able to add additional transmitters within their 38 dBu service contour
without prior authorization from the Commission, e.g., to fill in
``dead spots'' in coverage or to reconfigure their systems to increase
capacity within their service area, so long as signals from such
transmitters do not expand their 38 dBu service contour.
13. The MO&O notes that a Phase I licensee who relocates under the
criteria set forth in the Second R&O (and as further considered in this
MO&O) must first establish its 38 dBu service contour at its new base
station site in accordance with the Commission's rules for relocation
before it can take advantage of the flexibility provided in this
section. In addition, Phase I licensees will be required to notify the
Commission of any changes in technical parameters or additional
stations constructed through a minor modification of their license.
These modification applications will not be subject to public notice
and petition to deny provisions in the Commission's rules, or mutually
exclusive applications.
14. The Commission's rules require geographic separation between
Phase I
[[Page 32582]]
base stations transmitting on the upper 40 channels in the 220-221 MHz
band (i.e., channels 161-200, referred to in the Commission's rules as
``Sub-band B'') and Phase I base stations receiving on the lower 40
channels in the 221-222 MHz band (i.e., channels 1-40, referred to in
the Commission's rules as ``Sub-band A''). Also, as indicated in the
Third R&O, the Commission's rules require Phase II licensees
transmitting on Sub-band B channels to provide geographic protection to
Phase I licensees operating on Sub-band A channels; and require Phase
II licensees operating on Sub-band B and Sub-band A channels to
coordinate the location of their base stations with one another to
avoid interference. The Commission's decision in this MO&O to permit
Phase I, non-nationwide licensees to modify their authorizations to add
additional transmitter sites or change the operating parameters or
location of their base station, however, raises interference concerns
if such stations are authorized to licensees operating in Sub-bands A
and B.
15. First, with respect to potential interference among Phase I
licensees, the Commission believes that Phase I licensees authorized on
Sub-band A or Sub-band B channels that may seek to add additional
transmitter sites or change the operating parameters or location of
their base stations should be required to coordinate such actions in a
manner similar to the way that Phase II licensees authorized on Sub-
band A and Sub-band B channels must coordinate the location of their
base stations under Sec. 90.723(f) of the Commission's rules. Thus, to
ensure that appropriate geographic separations are maintained if
licensees authorized on Sub-band A or Sub-band B channels seek
modifications to add additional transmitter sites or change the
operating parameters or location of their base station, the Commission
will require licensees authorized on Sub-band A or Sub-band B channels
to coordinate such actions with one another to avoid interference.
These licensees must include with their application for a minor
modification of their authorization, a certification that the station
has been appropriately coordinated.
16. Second, Sec. 90.723(e) currently requires Phase II licensees
authorized on Sub-band B channels, in locating their base stations, to
provide geographic protection to the base stations of Phase I licensees
authorized on Sub-band A channels. However, the Commission does not
believe that it would be appropriate to require a Phase II licensee
authorized on Sub-band B, as it constructs its EA or Regional system,
to have to protect receivers associated with additional transmitter
sites that a Phase I licensee authorized on Sub-band A might add within
its service contour at any time in the future. The Commission thus
concludes, that a Phase II licensee authorized on Sub-band B channels
should continue to provide geographic protection to Phase I licensees
authorized on Sub-band A, but only to the base station of such
licensees, as authorized at the time the Phase II, Sub-band B licensee
seeks to construct its station.
17. Third, under the Commission's existing rules, there are no
protection or coordination requirements among Phase I licensees
authorized on Sub-band B and Phase II licensees authorized on Sub-band
A. However, if Phase I, Sub-band B licensees are permitted to add
additional transmitter sites or modify the operating parameters or
location of their base station at any time in the future, such actions
could cause unforeseen interference to the base stations of Phase II,
Sub-band A licensees. The Commission will therefore require Phase I,
Sub-band B licensees, in adding additional transmitter sites or
modifying the operating parameters or location of their base station,
to coordinate such actions with Phase II licensees authorized on Sub-
band A. Phase I, Sub-band B licensees must include with their
application for a minor modification of their authorization, a
certification that the station has been appropriately coordinated.
18. In addition, the Commission will allow Phase I 220 MHz
licensees to convert their site-by-site licenses to a single license
authorizing operations throughout the incumbents' contiguous and
overlapping 38 dBu service contours of their constructed multiple
sites. Phase I licensees seeking such reissued licenses must make a
one-time filing of specific information for each of their external base
station sites to assist the Commission staff in updating the
Commission's database. The Commission also will require evidence that
such facilities are constructed and placed in operation and that, by
operation of the Commission's rules, no other licensee would be able to
use these channels within this geographic area. The Commission notes
that facilities added or modified that do not extend the 38 dBu service
contour will not require prior approval under this procedure.
19. The Commission believes this decision strikes a fair balance
between the interests of incumbents and Phase II licensees. A Phase I
licensee will be free to maintain full operational flexibility in
providing service within its own service contour, while ensuring that
the licensee's use of the spectrum does not negatively impact other 220
MHz operations.
20. In response to a petition seeking clarification of the decision
in the Third R&O that the emission limits provided in Sec. 90.212(f) of
the Commission's rules must be met only at the outermost edges of
contiguous channels, the Commission indicates that such emission limits
must be met only at the outermost edges of contiguous channels,
including those cases in which licensees combine multiple
authorizations that result in contiguous channels. The Commission also
clarifies that, so long as licensees combining multiple authorizations
to create a contiguous channel block maintain the required co-channel
protection on all of the channels that comprise the channel block, such
licensees will be permitted to eliminate the emission mask on all
``inside channels.''
21. The Commission grants a petition to modify Sec. 90.729(b) of
its rules to provide that the antenna height limitation for stations
operating on 221-222 MHz frequencies be associated with HAAT of the
station's transmitting antenna, rather than the antenna's height above
ground. The Commission indicates that by requiring licensees operating
on these frequencies to limit the height of their transmitting antenna
to 7 meters HAAT, it will eliminate instances of licensees
inadvertently causing interference to adjacent channel operations by
transmitting at an antenna height of 7 meters above ground at a
particularly high elevation. The Commission also modifies
Sec. 90.729(c) to indicate that the height restriction of base stations
operating on channels 196-200 must be associated with such station's
transmitting antenna HAAT, rather than the antenna's height above
ground.
22. The Commission denies petitions requesting that the power limit
for fixed stations operating on mobile channels (i.e., channels in the
221-222 MHz band) be raised from 50 watts ERP to 500 watts ERP. The
Commission indicates that if 220 MHz licensees were to be permitted, as
petitioners propose, to operate fixed stations in the 221-222 MHz band
at a power level of 500 watts ERP--ten times higher than the current
limit--it would be concerned about the possibility of interference to
adjacent channel 220 MHz land mobile operations. The Commission
therefore rejects the adoption of a rule that would allow for such
transmissions.
23. The Commission concludes that the only manner in which a
licensee
[[Page 32583]]
could operate a fixed station in the 221-222 MHz band at a power level
of 500 watts ERP without disrupting the operations of other 220 MHz
licensees would be for that licensee to gain the consent of all
affected 220 MHz licensees to operate such a station. It will therefore
permit a licensee seeking to operate fixed stations in the 221-222 MHz
band at a power level of 500 watts ERP to seek a waiver of
Sec. 90.729(b) of the Commission's rules if the licensee obtains the
consent for such operation from the following licensees authorized on
channels up to 200 kHz removed from the channels of the licensee: (1)
All nationwide licensees; (2) all Phase II non-nationwide licensees
that are authorized in an EA or Region that is located within 6 km of
the licensee's proposed fixed station; (3) all Government nationwide
users; and (4) all Phase I non-nationwide licensees with a base station
that is located within 6 km of the licensee's proposed fixed station.
As discussed in paragraphs 95-106 of the full text of the MO&O, Phase I
non-nationwide licensees may modify their authorizations to add
additional transmitters within their existing service area, or change
the operating parameters or location of their base station. The
Commission concludes that such a licensee seeking the consent of a
Phase I non-nationwide licensee to operate at 500 watts ERP will not be
required to obtain the consent of that licensee with regard to any
additional transmitters for which the licensee obtains authorization.
The licensee will only be required to obtain the consent with regard to
the licensee's base station, as authorized at the time the licensee
seeks the consent.
24. The Commission dismisses on procedural grounds petitions
requesting that the Commission raise the allowable power limit for the
base stations of nationwide licensees from 500 watts ERP to 1400 watts
ERP. The Commission finds that, because in the Third Notice, the
Commission did not seek comment with regard to the appropriateness its
rule that provides the height-power restrictions for stations operating
in the 220 MHz band, and because commenters, in response to the Third
Notice, did not seek modification of the rule with regard to height-
power limitations for stations operating in the 220-221 MHz band, and
because the Commission did not address or modify the 220-221 MHz band
height-power limitations in the Third R&O, this matter is beyond the
scope of this reconsideration proceeding. The Commission does, however,
believe that an increase in the allowable power for nationwide
licensees would be acceptable provided that appropriate technical
criteria are established to ensure that interference does not occur to
adjacent channel systems. The Commission therefore invites those
parties seeking modification of the Commission's rules regarding this
matter to submit a petition for rulemaking in order to change the
allowable power limit and to develop such criteria.
25. The MO&O declines requests to specify the criteria used to
determine whether licensees have provided substantial service as
alternative means of meeting their construction requirements. The MO&O
instead refers parties seeking clarification of the standard beyond the
definition in the Commission's rules to the Commission's stated purpose
in applying the standard to 220 MHz, and to previous examples the
Commission has given of substantial service. The MO&O maintains that
any further elaboration of the standard at this time would only limit
its flexibility and usefulness to licensees and their customers.
26. The MO&O removes the 220 MHz service spectrum efficiency
standard and thus grants petitions seeking elimination of the
efficiency standard as applied to paging operations. In the Third R&O,
the Commission concluded that Phase I and Phase II licensees combining
contiguous 5 kHz channels in order to operate on channels wider than 5
kHz would be required to meet the following spectrum efficiency
standard: for voice communications, a licensee was required to employ
equipment that provides at least one voice channel per 5 kHz of channel
bandwidth; for data communications, a licensee was required to employ
equipment that operates at a data rate of at least 4,800 bits per
second per 5 kHz of channel bandwidth. The standard was implemented
through the Commission's equipment type acceptance process.
27. The Commission agrees with petitioners who argue that the goal
of making the 220 MHz service rules more flexible by permitting paging
on a primary basis, and by permitting the aggregation of contiguous
channels, is threatened because paging equipment is not presently
capable of meeting the efficiency standard for the band. The Commission
also believes that, since adoption of the Third R&O, circumstances have
developed in a manner that suggests that 220 MHz spectrum will be used
efficiently by service providers regardless of whether any spectrum
efficiency standard is imposed.
28. Although the Commission is convinced by the showings in the
record that carriers seeking to offer one-way paging services would be
impaired in their ability to take advantage of the licensing
flexibility introduced in the Third R&O because of the requirements of
the spectrum efficiency standard, the Commission is not persuaded by
the claim of some petitioners that the best solution to this problem is
to exempt paging carriers from the standard. The Commission explains
that singling out paging services for special treatment while leaving
the standard in place would have the potential effect of impeding the
introduction and deployment of other services demanded by consumers
that use available equipment that does not comply with the strictures
of the efficiency standard.
29. The Commission further notes that elimination of the efficiency
standard, while avoiding the policy deficiencies that are inherent in
an exemption limited to one class of carriers, grants the relief sought
by the petitioners. The Commission concludes that there is not a
rational basis for avoiding this problem for carriers choosing to offer
one type of service while permitting the problem to stand as a barrier
to carriers offering other services. Although the Commission notes that
no party has petitioned directly for this result, the Commission does
not believe that any 220 MHz licensee or applicant will be harmed by
this grant of additional flexibility.
30. Elimination of the standard preserves the Commission policy of
maximizing flexible use of spectrum. This policy is particularly
important for 220 MHz spectrum because small businesses may be
prominent players in developing this spectrum, and these businesses
would directly benefit from a flexible spectrum use policy that enables
them to respond efficiently to marketplace demand. The Commission
further observes that, in services where the Commission has used
competitive bidding to award licenses, there is evidence that licensees
are using spectrally efficient technologies, despite the decision of
the Commission not to impose spectrum efficiency standards.
31. The Commission states that eliminating the spectrum efficiency
standard for combined contiguous channels should not be construed as a
lessening of its commitment to using this band to stimulate innovative
narrowband technology. Because the efficiency standard applies only to
those licensees who may combine contiguous 5 kHz channels to form
larger channels, it has only limited effect on the majority of 220 MHz
service licensees whose
[[Page 32584]]
channels are not contiguous. The Commission therefore believes the
market for efficient narrowband 5 kHz equipment will remain strong. The
Commission also notes that, subsequent to its adoption of the Third
R&O, its decision in the 220 MHz Fourth Report and Order in this
proceeding (62 FR 46211, September 2, 1997) (Fourth R&O) has stimulated
deployment of spectrally efficient 5 kHz equipment.
32. Although most of the debate in the record focused on the
standard for data, the Commission also removes the spectrum efficiency
standard for voice communications. The Commission discerns no
reasonable legal or policy basis to make a distinction with respect to
the application of a spectrum efficiency standard. Elimination of the
standard will grant licensees seeking to provide voice services
comparable flexibility to employ the type of technology that best meets
their needs. As with 220 MHz licensees that provide data services, the
Commission is confident that licensees providing voice services will
seek to ensure the success of their business plans by using the most
spectrally efficient technologies to serve the maximum number of
customers.
33. The Commission rejects one petitioner's suggestion that it
adopt a lenient efficiency standard that would become stricter over
time. The Commission explains that if a stricter standard were phased
in, and operators were permitted to continue using equipment they had
acquired under the early, more lenient standard, the later standard
would probably have little effect. The Commission also rejects
petitioners' proposal that the efficiency standard of the Refarming
proceeding be applied to the 220 MHz band. The Commission notes that
the 220 MHz band--a small sector of the radio spectrum, clear of
incumbents using older, inefficient technology, in which the Commission
has attempted to foster technological innovation--presents quite
different circumstances and concerns. The Commission is not persuaded
that conformance of the two standards would significantly promote the
goals of either docket, and notes that nothing in the Refarming
proceeding would preclude the use of 5 kHz equipment in refarmed bands.
34. The Commission notes that its decision renders moot the
question of whether waiver requests regarding the spectrum efficiency
standard should be subject to public comment, as a petitioner
requested. In the MO&O, the removal of the spectrum efficiency standard
is discussed in paragraphs 111-149.
35. The MO&O next clarifies construction requirements contained in
Sec. 90.769 of the Commission's rules by stipulating that Sec. 90.769
applies only to Phase II nationwide licensees and not to Phase I
nationwide licensees. The title of Sec. 90.769 is amended accordingly
to avoid confusion.
36. The MO&O grants a petition requesting that the Commission
reconsider or clarify language regarding the return of pending
nationwide 220 MHz applications, by clarifying that the language
ordering the return of pending nationwide applications does not apply
to pending, commercial, nationwide 220 MHz applications. The Commission
notes, however, that the applications for nationwide, commercial 220
MHz licenses have since been dismissed.
37. Regarding acquisition of multiple nationwide licenses, the MO&O
dismisses as moot a petition asking that the Commission amend its rules
to permit entities to obtain more than one Phase I authorization in a
geographic area. The Fourth R&O in this proceeding, which was adopted
after the petition for reconsideration was filed, repealed
Sec. 90.739(a) of the Commission's rules which restricted the
circumstances under which a Phase I licensee could obtain an additional
license. Section 90.739 was revised to provide that there would be no
limit on the number of licenses that may be authorized to a single 220
MHz service licensee. Thus, no additional action is required by the
Commission at this time.
38. Consistent with the conclusions reached in the Part I Third
R&O, (63 FR 2315, January 15, 1998) the Commission eliminates
installment payment plans for small and very small businesses
participating in the 220 MHz service auction, and increases the level
of bidding credits for such entities. Small businesses with gross
revenues not to exceed $15 million will receive a 25 percent bidding
credit and very small businesses with gross revenues not to exceed $3
million will receive a 35 percent bidding credit. The MO&O also amends
Sec. 90.1015 of the Commission's rules to permit auction winners to
make their final payments within ten (10) business days after the
applicable deadline, provided that they also pay a late fee of five (5)
percent of the amount due. This change will conform the 220 MHz rules
with the generally-applicable part 1 rules. Applicants that do not
submit the required final payment and 5 percent late fee within the 10-
day late payment period will be declared in default and will be subject
to the default payment specified in Sec. 1.2104(g) of the Commission's
rules. The Commission emphasizes that the decision to permit late
payments is limited to payments owed by winning bidders that have
submitted timely initial down payments. Finally, regarding installment
payments, the Commission reiterates that the procedures set forth in
part 1, Subpart Q of the Commission's rules apply to the Phase II 220
MHz service unless otherwise indicated in part 90 of the Commission's
rules. The Commission thus clarifies that applicants at the short- and
long-form application stages are subject to the reporting requirements
contained in the newly adopted part 1 ownership disclosure rule.
39. Finally, regarding the Third R&O, the MO&O denies on procedural
grounds petitions to reconsider the construction requirements for Phase
I licensees, particularly the requirement that nationwide, Phase I
licensees construct all five channels at a minimum number of base
stations at certain urban sites. The MO&O also dismisses on procedural
grounds petitions to cease requiring nationwide, Phase I licensees to
obtain specific licenses for each base station.
40. The MO&O also considers petitions for reconsideration and
clarification filed in response to the Second R&O which adopted a one-
time modification procedure that allows licensees to modify their
licenses to relocate their authorized base stations to previously
unauthorized locations. Under this procedure, licensees with base
stations authorized inside any Designated Filing Area (DFA) were
permitted to relocate their base stations up to one-half the distance
over 120 km toward any authorized co-channel base station, to a maximum
distance of 8 km. Licensees with base stations authorized outside the
boundaries of any DFA were permitted to relocate their base stations up
to one-half the distance over 120 km toward any authorized co-channel
base station, to a maximum distance of 25 km, so long as they did not
locate their base station more than 8 km inside the boundaries of any
DFA.
41. The Commission finds that the Second R&O set out a clear and
unambiguous framework governing the maximum distance licensees are
permitted to move under the modification procedure. Under this
framework, contrary to the assertions of the petitioners, the defining
element of a proposed modification is not the ultimate location of the
base station--the defining element is based on the initially authorized
location.
42. The Commission denies petitions requesting that licensees be
permitted moves up to a maximum distance of 25
[[Page 32585]]
km, rather than the 8 km authorized in the Second R&O, if the licensees
is moving from a location within a DFA to a location outside that DFA.
In ruling against the petitions, the MO&O states that the purpose of
the modification procedure was to enable 220 MHz licensees to carry out
their initial business plans by finding a useable site within their
planned area of service. It was not the Commission's intention for the
modification procedure to serve as an opportunity for a licensee to
abandon its original plan to serve a particular area in favor of a more
attractive or different service area. The Commission maintains that a
licensee who is presently authorized within a DFA, would have available
to it the same multiplicity of base station sites within an 8 km radius
as a licensee who is moving from a location within a DFA to another
location within a DFA.
43. The fact that a licensee initially authorized in a DFA chooses
to seek a new base station site outside its DFA should not entitle that
licensee to be treated in the same manner as a licensee that was
initially authorized outside a DFA, and therefore, presumably requires
a larger area, i.e., 25 km, within which to find a new base station
site. Therefore, the Commission reaffirms its determination that a
licensee with an authorized base station located in a DFA will be
permitted to relocate its base station up to one-half the distance over
120 km toward any co-channel licensee's initially authorized base
station, to a maximum distance of 8 km, regardless of whether the
relocated base station site is inside or outside the boundaries of the
DFA. The Commission also denies a petition asking for clarification of
its position to indicate that a licensee whose initially authorized
site is located inside a DFA within 8 km of the perimeter and who seeks
to modify its authorization in order to move to a location outside the
DFA be permitted to move its site up to one-half the distance over 120
km toward any co-channel licensee's initially authorized base station,
to a maximum distance of 25 km.
44. The MO&O grants, in part, petitions requesting that the
Commission accept modifications of operating parameters other than
relocation modifications to the extent that the Commission clarifies
that licensees who seek to relocate may modify their antenna HAAT.
Otherwise these petitions are denied with respect to this issue. The
Commission states that the Second R&O sought to accommodate Phase I
licensees that for various unforeseen reasons were unable to construct
at their authorized locations and so provided such licensees with the
opportunity to seek modification of their licenses to relocate their
base stations. The Second R&O did not provide for licensees to modify
their authorizations for any other reason, such as to change their
power or antenna height.
45. The Commission continues to believe that the modification
procedure set out in the Second R&O appropriately accommodates the
needs of licensees who were unable to construct at their authorized
locations. The intention of the Commission in the Second R&O was to
craft carefully and narrowly drawn relocation parameters to provide
relief to existing licensees but not to allow them to enhance their
position in the marketplace. The interest of the Commission in
establishing precise and narrow criteria was heightened by the fact
that the Commission allowed these licensees to file modification
applications without providing an opportunity for other potential
applicants to file competing initial applications. Thus, the MO&O finds
no basis for any general extension of the modification parameters to
include changes to antenna height and power at a licensee's originally
authorized location. The Commission notes that if a licensee who did
not seek to relocate believed it was impossible to remain at the same
HAAT at the original location, there is nothing in the Second R&O that
would prevent such a licensee from applying for a waiver of the
Commission's rules. The Commission also notes, however, that licensees
who decided not to relocate under the procedures announced in the
Second R&O will be permitted to make changes to their technical
parameters, as provided elsewhere in the MO&O as long as such
modifications do not expand their 38 dBu service contour.
46. In addition, because it is highly unlikely that a licensee who
relocates its base station will be able to install its antenna at the
identical HAAT specified in its existing authorization, the Commission
clarifies that licensees seeking to relocate are also permitted to
modify their HAAT. On the other hand, it would not be necessary for a
licensee who relocates to operate at the new site at a different power
level, and thus the Second R&O does not allow a licensees who relocates
to change its power level.
47. If, however, as a result of raising the antenna height, the
height and power combination exceeds the provisions of the ERP vs.
Antenna Height Table in Sec. 90.729 of the Commission's rules, the
rules require that the licensee's authorized power shall be reduced
accordingly so that the operations of the licensee remain in compliance
with the provisions of that section. Any applicant seeking to relocate
and to alter operating power levels is permitted to relocate (if the
application is in conformance with applicable rules), but the Second
R&O does not establish any authorization pursuant to which the
applicant may alter operating power levels. The Commission notes that
after a licensee relocates in accordance with the Commission's
modification procedures and establishes its 38 dBu service contour, the
licensee will be able to make changes to its authorization, including
its power level, provided that doing so does not expand its 38 dBu
service contour.
48. As for licensees who were granted Special Temporary Authority
(STA) at their original locations but at increased height or power,
those STAs were granted only on a temporary basis, and they conferred
no guarantee that the licensee would be able to obtain a permanent
authorization in accordance with those changes. In addition, a licensee
with an STA to operate at different height or power parameters would
not be precluded from offering service if the licensee is not granted
permanent authorization at those parameters. Only the coverage area
would be altered.
49. Finally, the Commission notes that petitioners base their
arguments in part on the assumption that existing stations are likely
to be protected under new Phase II rules based on a service contour.
Petitioners further assert that such protection is likely to be based
on maximum allowable height and power. In fact, the protection afforded
Phase I licensees by future Phase II licensees has been addressed by
the Commission in the Third R&O, where the Commission determined that
Phase I licensees would be protected to their 38 dBu service contour
based on actual, as opposed to maximum, height and power. This decision
was affirmed in this MO&O.
50. In the Second R&O the Commission recognized that a number of
licensees had obtained STAs to operate base stations at alternative
locations and that some of these locations would not meet the
permissible modification requirements established in the Second R&O.
The Commission believed that it would not be appropriate to require
licensees to discontinue operations if they had obtained STAs to
operate at alternate locations and were currently operating or planning
to operate at such locations. The Second R&O therefore provided that a
licensee who had been granted an
[[Page 32586]]
STA to operate at an alternative site would be permitted to seek
permanent authorization at the STA site if the licensee certified that
it had (1) constructed its base station and placed the base station in
operation, or commenced service at that site; or (2) taken delivery of
its base station transceiver on or before the adoption date of the
Second R&O. The Commission provided that such licensees were permitted
to seek permanent authorization at the STA site regardless of whether
locating at the STA site would be in strict conformance with the
relocation distance limitations prescribed in the modification
procedure.
51. The MO&O denies petitions requesting that the Commission
reconsider or clarify that if a licensee had taken delivery of its base
station transceiver on or before January 26, 1996, and had filed an
application for STA on or before January 26, 1996, the licensee need
not have been granted an STA by January 26, 1996, in order to be
allowed to seek permanent authorizations at its STA site. The MO&O
concludes that it was the Commission's intent in the Second R&O that
the relief provided for licensees operating under STAs be restricted to
those licensees who had been granted STAs on or before January 26,
1996.
52. The Commission finds no basis to conclude that the January 26,
1996, deadline is arbitrary or capricious. The Commission grants STAs
to licensees upon a showing of need. Prior to January 26, 1996, the
Commission granted STAs because 220 MHz licensees would be unable to
operate at base station sites other than their initially authorized
locations, because the Commission had not yet announced final
modification rules for the 220 MHz service. As of January 26, 1996, the
final modification and relocation procedures had been announced and
thus there no longer was any need for an STA. After that date it would
have only been necessary to issue an STA in order to meet a licensee's
needs in an emergency situation.
53. As to those licensees who took delivery of their equipment and
expended time and resources preparing their STA site for construction,
but who waited to apply for an STA until late January, the Commission
notes that an STA does not guarantee any right to obtain permanent
authorization at the STA site. While pre-grant construction may not be
an uncommon practice, the Commission's rules provide that licensees who
construct prior to receiving an authorization do so at their own risk.
Licensees were able to apply for STAs at any time during the planning
or construction of their base stations and had no reason to delay
filing their STA applications. At the time the Second R&O was released,
the construction deadline was February 2, 1996. The Commission's
regulations caution applicants to file STA applications at least 10
days prior to the date of proposed operation. Therefore, a licensee who
filed an STA application after January 23, 1996, could not reasonably
have expected to receive an STA prior to the construction deadline.
54. For these reasons, the Commission concludes that a licensee who
had taken delivery of its base station transceiver on or before January
26, 1996, must have been granted an STA on or before January 26, 1996,
in order to be allowed to seek permanent authorization at its STA site.
The Commission notes that licensees who were not granted STAs on or
before January 26, 1996, were permitted to modify their base station
locations in accordance with the relocation rules set forth in
Secs. 90.753(a) and 90.753(b) of the Commission's rules.
55. The MO&O denies petitions seeking clarification of the Second
R&O to allow waiver requests to be accompanied by an alternative site
proposal. The Second R&O recognized that in certain areas of the Nation
it is possible that the technical characteristics of base station sites
available under the relocation procedure may be considerably inferior
to the technical characteristics of currently licensed sites and sites
that may exist at nearby, more elevated locations. In these cases, the
Commission contemplated that licensees would seek a waiver of the
modification procedures the Commission adopted in the Second R&O.
Petitioners express concern that the Second R&O did not provide for a
protection mechanism or for a tolling of the construction period for
licensees filing such waiver requests. They argue that if a waiver
request is ultimately denied, a licensee would lose its authorization
for failure to construct by March 11, 1996.
56. Under the Commission's general waiver rule for services
licensed under part 90, a waiver applicant must show that no reasonable
alternative exists within existing rules. Furthermore, the standard for
granting waiver requests, as set forth in Wait Radio, is that ``the
very essence of waiver is the assumed validity of the general rule, and
also the applicant's violation unless waiver is granted.'' 2
Thus, a licensee seeking a waiver of the Commission's rules to locate
its base station at a site not permitted under the modification
procedure must, in order to apply for a waiver, have no alternative
available under the rules. If a licensee is able to offer an
alternative relocation site, then, it could be argued that there is no
reasonable basis for a waiver.
---------------------------------------------------------------------------
\2\ Wait Radio v. FCC, 418 F.2d 1153, 1158 (D.C. Cir. 1969).
---------------------------------------------------------------------------
57. Therefore, a 220 MHz licensee seeking a waiver would need to
show that site alternatives within the parameters of the Commission's
relocation rules would be so inferior that they would preclude a viable
system. To decide otherwise and permit licensees to make alternative
site showings would not be consistent with this rule and also would
impair one of the policy objectives set forth in the Second R&O, i.e.,
to provide existing licensees flexibility to complete construction of
their systems and provide service while not unreasonably impairing the
opportunity of potential competitors to obtain licenses in the 220 MHz
service. The Commission believes that it provided sufficient
flexibility to incumbent licensees by permitting them to relocate their
base stations while at the same time insulating them from any competing
filings by new applicants. To go further, as petitioners urge the
Commission to do, would risk an adverse impact on the competitive
development of the 220 MHz service.
58. The Commission concludes that the Second R&O posed a clear and
reasonable choice for 220 MHz licensee, that if a licensee believed
that, due to unique terrain features, it wanted to apply for a waiver
of the modification procedures established in the Second R&O, it could
chose to do so. The Second R&O did not provide licensees with the
option of applying for a waiver while at the same time allowing them to
attempt to retain their option to construct at an alternate, although
inferior, site which complies with the rules.
59. The Commission provided licensees with a reasonable framework
for modifying their base station locations, and petitioners, in the
Commission's view, have not presented persuasive arguments that the
Commission should now change that framework to allow for alternative
site proposals to accompany waiver requests. Furthermore, since the
Commission is affirming that licensees may not file alternative
locations proposals with a waiver request, the Commission does not need
to reach the question of whether to allow licensees whose waiver
requests are denied a reasonable period of time to construct their
facilities at an alternative site. The
[[Page 32587]]
Commission notes, however, that the Second R&O stated that the
Commission will extend the deadline for a licensee to construct its
station and place it in operation, or commence service beyond August
15, 1996, by the number of days after June 1, 1996, that pass before a
licensee's timely filed modification application is actually granted.
Therefore, a licensee who is granted a waiver after June 1, 1996, will
have an adequate period of time to construct its station.
60. Finally, the MO&O denies petitions asking for clarification
that the Commission will accept waiver requests other than the specific
type of waiver request discussed in the Second R&O because such
clarification is unnecessary under the Commission's rules. The
Commission notes that there is nothing in the Second R&O that would
prevent a licensee from seeking an appropriate and timely waiver of the
Commission's rules if the licensee believes it has met the Commission's
standard for waiver.
Supplemental Final Regulatory Flexibility Analysis
61. As required by the Regulatory Flexibility Act (RFA),\3\ a Final
Regulatory Flexibility Analysis (FRFA) was incorporated in Appendix B
of the 220 MHz Second Report and Order (Second R&O) and in Appendix A
of the 220 MHz Third Report and Order (Third R&O) in this proceeding.
The Commission's Supplemental Final Regulatory Flexibility Analysis
(Supplemental FRFA) in this Memorandum Opinion and Order on
Reconsideration (MO&O) reflects revised or additional information to
that contained in those FRFAs. This Supplemental FRFA is thus limited
to matters raised in response to the Second R&O or the Third R&O that
are granted on reconsideration in the MO&O. This Supplemental FRFA
conforms to the RFA, as amended by the Contract with America
Advancement Act of 1996 (CWAAA).\4\
---------------------------------------------------------------------------
\3\ See 5 U.S.C. 603.
\4\ Public Law No. 104-121, 110 Stat. 846 (1996), codified at 5
U.S.C. 601-612. Title II of the CWAAA is The Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA).
---------------------------------------------------------------------------
I. Need for and Objectives of the Action
62. The actions taken in this MO&O are in response to petitions for
reconsideration or clarification of the service rules adopted in the
Third R&O to implement service in the 220-222 MHz frequency band (220
MHz service), and in response to petitions for reconsideration or
clarification of license modification rules adopted in the Second R&O.
The petitions are denied, with the following exceptions. The rule
changes adopted in the MO&O grant in part the petitions that Phase I
licensees be permitted to modify their authorizations to the extent
that Phase I licensees will be permitted to make modifications to their
authorizations which do not expand their 38 dBu service contours. Phase
I licensees will also be permitted to convert their site-by-site
licenses to a single license. The Commission's objective in permitting
such modifications is to provide Phase I licensees with maximum
flexibility while striking a fair balance between the interests of
incumbent licensees and Phase II licensees.
63. The Commission also grants the petition that the antenna height
limitation for stations operating in the 220 MHz band be associated
with the HAAT of the station's transmitting antenna, rather than the
antenna's height above ground. The Commission's objective is to
eliminate instances of licensees inadvertently causing interference to
adjacent channel operations.
64. The MO&O removes the 220 MHz service spectrum efficiency
standard, and thus grants the petition that the Commission eliminate
the efficiency standard as applied to paging operations. In light of
the observations of petitioners regarding the unavailability of
equipment that would meet the standard, the Commission now believes
that imposition of the standard could inadvertently deny the provision
of certain services in the 220-222 MHz band, contrary to the intent of
the Third R&O. The Commission's objective in removing the standard is
to facilitate the provision of a wide range of services in the 220 MHz
band.
65. In addition, the Commission addresses certain issues that the
Part I Third R&O directs be resolved in this proceeding. Consistent
with the conclusions reached in the Part I Third R&O, the Commission
eliminates installment payment plans for small and very small
businesses participating in the 220 MHz service auction, and increases
the level of bidding credits for such entities. The Commission will
also amend its rules to permit auction winners to make their final
payments within 10 business days after the applicable deadline,
provided that they also pay a late fee of 5 percent of the amount due.
II. Summary of Significant Issues Raised by the Public in Response
to the Final Regulatory Flexibility Analyses
66. No comments were received in direct response to the FRFAs.
Small Business in Telecommunications (SBT) commented that the
Commission's position regarding license modifications appeared to
express more concern for future licensees than for incumbent licensees
who are currently providing service to the public. The actions taken in
this MO&O reflect the Commission's recognition that licensed sites may
become unusable for a variety of reasons. The Commission is persuaded
by arguments that, in order to maintain the economic and technical
viability of a licensee's 220 MHz service, Phase I incumbent licensees
should be permitted to modify their authorizations as long as doing so
does not expand their service contour. Modifications to Phase I
licensees' authorizations which do not expand their 38 dBu service
contour will therefore be permitted.
67. Phase I licensees will also be able to add new transmitters
within their 38 dBu service contour without prior authorization from
the Commission so long as signals from such transmitters do not expand
the 38 dBu service contour. These modification applications will not be
subject to public notice and petition to deny provisions in the
Commission's rules, and will not be subject to mutually exclusive
applications. In addition, the Commission will allow Phase I 220 MHz
licensees to convert their site-by-site licenses to a single license
authorizing operations throughout the incumbents' contiguous and
overlapping 38 dBu service contours of their constructed multiple
sites. The Commission believes this decision strikes a fair balance
between the interests of incumbents and Phase II licensees.
68. The MO&O, as provided in the Part I Third R&O, eliminates
installment payment financing for small and very small businesses
participating in the Phase II 220 MHz service auction. At the same
time, in order to offer small and very small businesses a meaningful
opportunity to participate in the auction, the Commission has offered
higher bidding credits, consistent with those available through a loan.
III. Description and Estimate of the Number of Small Entities to
Which Rules Will Apply
A. Phase II Licensees
69. As in the FRFAs, the service regulations the Commission adopts
to implement the Phase II 220 MHz service would apply to all entities
seeking a Phase II 220 MHz license. As discussed in the FRFAs, using
the Small Business Administration (SBA) definitions applicable to
radiotelephone companies and to cable and pay television services,
[[Page 32588]]
a majority of 220 MHz service entities may be small businesses.
70. The Commission had not developed a more refined definition of
small entities applicable to the 220 MHz service, prior to the Third
R&O, because the Phase II 220 MHz service is a new service. The RFA
amendments were not in effect until after release of the Third Notice,
therefore no data was received establishing the number of small
businesses associated with the Phase II 220 MHz service. In the Third
R&O, the Commission adopted criteria for defining small businesses and
very small businesses for purposes of determining their eligibility for
special provisions such as bidding credits and installment payments.
The SBA has approved these definitions for Phase II licensees. The
Commission will use the definitions in estimating the potential number
of small entities applying for auctionable spectrum.
71. The Commission defined a small business as an entity that,
together with its affiliates and controlling principals, has average
gross revenues not exceeding $15 million for the preceding three years.
Additionally, bidding credits and an installment payment plan were made
available to each applicant that is a very small business, defined as
an entity that, together with its affiliates and controlling
principals, has average gross revenues that are not more than $3
million for the preceding three years.
72. No parties submitting or commenting on the petitions for
reconsideration giving rise to this MO&O commented on the potential
number of entities that would be small businesses or very small
businesses, and the Commission is unable to predict accurately the
number of applicants for the Phase II 220 MHz service that would fit
the definition of a small business or a very small business for
competitive bidding purposes.
73. In the FRFAs, the Commission estimated that it would receive
approximately 2,220 total applications for the Phase II 220 MHz
service, i.e., 2,000 Public Safety applications (including 1,000 EMRS
applications), 90 applications for Economic Area channels, 20
applications for Regional channels, 100 applications for secondary
service, and 10 applications for Nationwide channels. These applicants
(many of whom may be small entities), as well as Phase I 220 MHz
licensees (discussed below), and at least six equipment manufacturers
(three of which may be small entities), were subject to the rules
adopted in the Third R&O.
74. The Commission justified the auctions-related estimate of
participation, including an estimate of 120 small entities, by
referring to its experience in the auction of the 900 MHz SMR service,
a service similar to the 220 MHz service. In the 900 MHz SMR service,
which utilized an identical definition for small business, 1,050
licenses were made available and a total of 128 applications were
received in the auction. Of these applications, 71 qualified as very
small businesses and 30 qualified as small businesses. A total of 908
licenses will be made available for authorization in the 220 MHz
service auction. Given that 128 qualified applications were received in
the 900 MHz SMR auction, the Commission anticipated receiving slightly
fewer or 120 applications in the 220 MHz service auction. Given that 71
applicants qualified as very small businesses and 30 applicants
qualified as small businesses in the 900 MHz SMR auction, the
Commission estimated that proportionately fewer, or 65 applicants,
would qualify as very small businesses and 27 applicants would qualify
as small businesses in the 220 MHz service auction.
75. Because the elimination of installment payments is
counterbalanced by the Commission's decision to elevate the size of
bidding credits, the Commission anticipates that the figures it has
presented regarding the estimated number of small entities
participating in the 220 MHz service auction will remain unchanged. The
Commission therefore anticipates that approximately 55 percent of the
120 applicants will qualify as very small businesses and 23 percent
will qualify as small businesses.
B. Phase I Licensees
76. The Commission has not developed a definition of small entities
applicable to 220 MHz Phase I licensees, or equipment manufacturers for
purposes of this Supplemental FRFA, and, since the RFA amendments were
not in effect until after the release of the Third Notice and the 220
MHz Fourth Notice of Proposed Rulemaking (60 FR 46566, September 7,
1995) was closed, the Commission did not request information regarding
the number of small businesses that are associated with the 220 MHz
service.
77. To estimate the number of Phase I licensees and the number of
220 MHz equipment manufacturers that are small businesses the
Commission shall use the relevant definitions provided by SBA.
78. There are approximately 1,515 non-nationwide Phase I licensees
and four nationwide licensees currently authorized to operate in the
220 MHz band. To estimate the number of such entities that are small
businesses, the Commission applies the definition of a small entity
under SBA rules applicable to radiotelephone companies. This definition
provides that a small entity is a radiotelephone company employing no
more than 1,500 persons. According to the Bureau of the Census, only 12
radiotelephone firms out of a total of 1,178 such firms which operated
during 1992 had 1,000 or more employees. Therefore, even if all 12 of
these firms were 220 MHz service companies, nearly all 220 MHz service
companies were small businesses under the SBA's definition.
C. Radio Equipment Manufacturers
79. The Commission anticipates that at least six radio equipment
manufacturers will be affected by the decisions in this proceeding.
According to SBA 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 no more than 750 employees and would therefore be
classified as small entities. The Commission does not have information
that indicates how many of the six radio equipment manufacturers
associated with this proceeding are among these 778 firms. However,
because three of these manufacturers (Motorola, Ericsson, and E.F.
Johnson) are major, nationwide radio equipment manufacturers, the
Commission concludes that these manufacturers would not qualify as
small business.
IV. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
80. Phase I non-nationwide licensees who modify their
authorizations as outlined in this MO&O or add new transmitters within
their 38 dBu service contour will be required to file an FCC Form 600
with the Commission. Phase I non-nationwide licensees who decide to
convert their site-by-site licenses to a single license authorizing
operations throughout the incumbents' contiguous and overlapping 38 dBu
service contours of their constructed multiple sites will also be
required to file an FCC Form 600. Phase I, non-nationwide licensees
will be required to file an FCC Form 600 to comply with the requirement
that they modify their authorization to reflect the ERP at which they
were operating at the time the decisions adopted in the Third R&O
[[Page 32589]]
became effective. The FCC Form 600 is currently in use and has already
received OMB clearance.
81. Phase I licensees authorized on Channels 161-200 and Channels
1-40 will be required to coordinate the addition, removal, or
modification of station sites among themselves to avoid interference.
Such licensees will also be required to include, in their application
for minor modification of their authorization to add, remove, or modify
a station site, a certification that the station has been appropriately
coordinated. Phase I licensees authorized on Channels 161-200 will be
required to coordinate the addition, removal, or modification of
station sites with Phase II licensees authorized on Channels 1-40. Such
Phase I licensees will also be required to include, in their
application for minor modification of their authorization to add,
remove, or modify a station site, a certification that the station has
been appropriately coordinated. Licensees seeking a waiver of
Sec. 90.729(b) of the Commission's rules to operate fixed stations in
the 221-222 MHz band at a power level of 500 watts ERP will be required
to gain the consent for such operation from all affected 220 MHz
licensees.
V. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
82. The actions taken in this MO&O are in response to petitions for
reconsideration including, the Commission believes, several filed by
small businesses. The changes minimize any possible significant
economic impact on small entities, while remaining consistent with the
objectives of this proceeding.
83. The MO&O grants the petitions of Phase I licensees to the
extent of permitting, upon application, modifications to Phase I
licensees' authorizations which do not expand their 38 dBu service
contour. Phase I licensees also will be permitted to convert their
site-by-site licenses to a single license. The deregulatory nature of
these steps helps minimize the economic impact of telecommunications
regulation on small entities.
84. By removing the 220 MHz service spectrum efficiency standard,
the MO&O grants the petition that the Commission eliminate the
efficiency standard as applied to paging operations. The deregulatory
nature of this step helps to minimize the economic impact of
telecommunications regulation on small entities. We considered
retaining the standard and exempting paging only, but rejected this
course as potentially discouraging the provision of innovative
services. The Commission also considered replacing the standard with a
more lenient standard that would be made stricter over time, but
rejected this course because the Commission believes operators would
continue using equipment acquired under the more lenient standard, in
which case the later standard would have little effect. The Commission
also considered conforming the 220 MHz band spectrum efficiency
standard to the standard used in the Refarming proceeding. The
Commission concluded, however, that because it applies only to
aggregated, contiguous channels, and expires in 2001, the 220 MHz
standard touches too few licensees for too short a time to
significantly increase equipment development for the refarmed bands.
85. The Commission also believes that small businesses may be
prominent players in developing this spectrum, and these businesses
would directly benefit from a flexible spectrum use policy that enables
them to respond efficiently to marketplace demand. Given the relatively
small amount of spectrum assigned in a 220 MHz license, the Commission
thinks it is reasonable to expect that acquisition of the 220 MHz Phase
II licenses may be relatively affordable and therefore this service may
be particularly attractive to small businesses.
86. Consistent with the conclusions reached in the Part 1 Third
R&O, the MO&O eliminates installment payment plans for small and very
small businesses participating in the 220 MHz service auction, and
increase the level of bidding credits for such entities. The Commission
will also amend its rules to permit auction winners to make their final
payments within 10 business days after the applicable deadline,
provided that they also pay a late fee of 5 percent of the amount due.
87. While installment payment plans for small entities in the 220
MHz service are eliminated in the MO&O, the Commission found that
better alternatives to assist small businesses as well as ensure
provision of new services to the public are to raise bidding credits
for existing categories of small entities. The Commission believes that
bidding credits of sufficient size will enable small businesses to
secure private financing. This suggestion is consistent with the
Commission's experience in other auctions in which installment payments
were not offered and small entities nevertheless have been successful
(e.g., the auction of Wireless Communications Service licenses, for
which bidding credits were heightened to accommodate the lack of
installment payments). Prior to the MO&O, bidding credits of 10 percent
were offered to small businesses and 25 percent to very small
businesses. The Commission now offers bidding credits of 25 percent to
small businesses and 35 percent to very small businesses. The levels of
bidding credits adopted offer a reasonable accommodation for the
elimination of installment payments.
VI. Report to Congress
88. The Commission will send a copy of this Supplementary Final
Regulatory Flexibility Analysis, along with the MO&O, in a report to
Congress pursuant to the Small Business Regulatory Enforcement Fairness
Act of 1996.5 In addition, the Commission will send a copy
of the MO&O, including this Supplemental FRFA to the Chief Counsel for
Advocacy for SBA.
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\5\ See 5 U.S.C. 801(a)(1)(A).
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Ordering Clauses
89. Accordingly, it is ordered, that the petitions for
reconsideration or clarification filed by American Mobile
Telecommunications Association; Incom Communications Corporation, SEA,
Inc., In Touch Services, Inc., Philip Adler dba Communications
Management Company, and Aircom Communications, Inc.; In Touch Services,
Inc.; Police Emergency Services, Inc. and Bostom and Associates
Company; and SMR Advisory Group, L.C. with respect to the 220 MHz
Second Report and Order in PR Docket No. 89-552 and GN Docket No. 93-
252, are granted to the extent provided herein and otherwise are
denied. This action is taken pursuant to sections 4(i), 4(j), 303(d),
303(r), 309(j), 332, and 405 of the Communications Act of 1934, 47
U.S.C. 154(i), 154(j), 303(d), 303(r), 309(j), 332, 405.
90. It is further ordered, that the petitions for reconsideration
or clarification filed by American Mobile Telecommunications
Association, Inc.; Comtech Communications, Inc.; Glenayre Technologies,
Inc.; Global Cellular Communications, Inc.; INTEK Diversified Corp.;
Metricom, Inc.; National Communications Group, Capital Communications
Group, Columbia Communications Group, Lonesome Dove Communications,
All-American Communications Partners, and Shiner Bock Group; Personal
Communications Industry Association; SEA Inc.; Rush Network Corp.; and
SMR Advisory Group L.C. with respect to the 220 MHz Third Report and
Order in PR Docket No. 89-552 and GN Docket No. 93-252, are granted to
the extent provided herein and otherwise are
[[Page 32590]]
denied. This action is taken pursuant to sections 4(i), 4(j), 303(d),
303(r), 309(j), 332, and 405 of the Communications Act of 1934, 47
U.S.C. 154(i), 154(j), 303(d), 303(r), 309(j), 332, 405.
91. It is further ordered that the Commission's rules are amended
as indicated. It is further ordered that the provisions of this Order
and the Commission's rules, as amended in this decision, shall become
effective August 11, 1998.
92. It is further ordered that a Public Notice will be issued by
the Wireless Telecommunications Bureau following the adoption of this
Order announcing when applications must be filed by Phase I, non-
nationwide licensees in order to enable such licensees to comply with
the requirement that they modify their authorization to reflect the ERP
at which they were operating at the time the decisions adopted in the
220 MHz Third Report and Order became effective.
93. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this
Order, including the Supplemental Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 90
Radio.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
For the reasons stated in the preamble part 90 of title 47 of the
Code of Federal Regulations is amended as follows:
PART 90--PRIVATE LAND MOBILE SERVICES
1. The authority citation for Part 90 continues to read as follows:
Authority: 47 U.S.C. 154, 251-2, 303, 309, and 332, unless
otherwise noted.
2. Section 90.203 is amended by revising paragraph (k) to read as
follows:
Sec. 90.203 Type acceptance required.
* * * * *
(k) For transmitters operating on frequencies in the 220-222 MHz
band, type acceptance will only be granted for equipment with channel
bandwidths up to 5 kHz, except that type acceptance will be granted for
equipment operating on 220-222 MHz band Channels 1 through 160
(220.0025 through 220.7975/221.0025 through 221.7975), 171 through 180
(220.8525 through 220.8975/221.8525 through 221.8975), and 186 through
200 (220.9275 through 220.9975/221.9275 through 221.9975) with channel
bandwidths greater than 5 kHz.
3. Section 90.711 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 90.711 Processing of Phase II applications.
(a) Phase II applications for authorizations on Channels 166
through 170 and Channels 181 through 185 will be processed on a first-
come, first-served basis. When multiple applications are filed on the
same day for these frequencies in the same geographic area, and
insufficient frequencies are available to grant all applications (i.e.,
if all applications were granted, violation of the station separation
provisions of Sec. 90.723(k) would result), these applications will be
considered mutually exclusive and will be subject to random selection
procedures pursuant to Sec. 1.972 of this chapter.
* * * * *
4. Section 90.723 is amended by revising paragraphs (e) and (f),
redesignating paragraphs (g), (h), and (i) as paragraphs (i), (j), and
(k), respectively, and by adding paragraphs (g) and (h) to read as
follows:
Sec. 90.723 Selection and assignment of frequencies.
* * * * *
(e) Phase II licensees authorized on 220-221 MHz frequencies
assigned from Sub-band B will be required to geographically separate
their base station or fixed station transmitters from the base station
or fixed station receivers of Phase I licensees authorized on 221-222
MHz frequencies 200 kHz removed or less in Sub-band A in accordance
with the Table in paragraph (d) of this section. Such Phase II
licensees will not be required to geographically separate their base
station or fixed station transmitters from receivers associated with
additional transmitter sites that are added by such Phase I licensees
in accordance with the provisions of Sec. 90.745(a).
(f) Phase II licensees with base or fixed stations transmitting on
220-221 MHz frequencies assigned from Sub-band B and Phase II licensees
with base or fixed stations receiving on Sub-band A 221-222 MHz
frequencies, if such transmitting and receiving frequencies are 200 kHz
or less removed from one another, will be required to coordinate the
location of their base stations or fixed stations to avoid interference
and to cooperate to resolve any instances of interference in accordance
with the provisions of Sec. 90.173(b).
(g) Phase I licensees with base or fixed stations transmitting on
220-221 MHz frequencies assigned from Sub-band B and Phase I licensees
with base or fixed stations receiving on Sub-band A 221-222 MHz
frequencies (if such transmitting and receiving frequencies are 200 kHz
or less removed from one another) that add, remove, or modify station
sites in accordance with the provisions of Sec. 90.745(a) will be
required to coordinate such actions with one another to avoid
interference and to cooperate to resolve any instances of interference
in accordance with the provisions of Sec. 90.173(b).
(h) Phase I licensees with base or fixed stations transmitting on
220-221 MHz frequencies assigned from Sub-band B that add, remove, or
modify station sites in accordance with the provisions of
Sec. 90.745(a) will be required to coordinate such actions with Phase
II licensees with base or fixed stations receiving on Sub-band A 221-
222 MHz frequencies 200 kHz or less removed.
* * * * *
5. Section 90.729 is amended by revising paragraphs (b) and (c)
introductory text to read as follows:
Sec. 90.729 Limitations on power and antenna height.
* * * * *
(b) The maximum permissible ERP for mobile units is 50 watts.
Portable units are considered as mobile units. Licensees operating
fixed stations or paging base stations transmitting on frequencies in
the 221-222 MHz band may not operate such fixed stations or paging base
stations at power levels greater than 50 watts ERP, and may not
transmit from antennas that are higher than 7 meters above average
terrain, except that transmissions from antennas that are higher than 7
meters above average terrain will be permitted if the effective
radiated power of such transmissions is reduced below 50 watts ERP by
20 log10(h/7) dB, where h is the height above average
terrain (HAAT), in meters.
(c) Base station and fixed station transmissions on base station
transmit Channels 196-200 are limited to 2 watts ERP and a maximum
antenna HAAT of 6.1 meters (20 ft). Licensees authorized on these
channels may operate at power levels above 2 watts ERP or with a
maximum antenna HAAT greater than 6.1 meters (20 ft) if:
* * * * *
6. Section 90.733 is amended by revising paragraphs (d), (e), and
(g) to read as follows:
[[Page 32591]]
Sec. 90.733 Permissible operations.
* * * * *
(d) Licensees, except for licensees authorized on Channels 161
through 170 and 181 through 185, may combine any number of their
authorized, contiguous channels (including channels derived from
multiple authorizations) to form channels wider than 5 kHz.
(e) In combining authorized, contiguous channels (including
channels derived from multiple authorizations) to form channels wider
than 5 kHz, the emission limits in Sec. 90.210(f) must be met only at
the outermost edges of the contiguous channels. Transmitters shall be
tested to confirm compliance with this requirement with the
transmission located as close to the band edges as permitted by the
design of the transmitter. The frequency stability requirements in
Sec. 90.213 shall apply only to the outermost of the contiguous
channels authorized to the licensee. However, the frequency stability
employed for transmissions operating inside the outermost contiguous
channels must be such that the emission limits in Sec. 90.210(f) are
met over the temperature and voltage variations prescribed in
Sec. 2.995 of this chapter.
* * * * *
(g) The transmissions of a Phase I non-nationwide licensee's paging
base station, or fixed station transmitting on frequencies in the 220-
221 MHz band, must meet the requirements of Secs. 90.723(d), (g), (h),
and (k), and 90.729, and such a station must operate at the effective
radiated power and antenna height-above-average-terrain prescribed in
the licensee's land mobile base station authorization.
* * * * *
7. Section 90.745 is added to read as follows:
Sec. 90.745 Phase I licensee service areas.
(a) A Phase I licensee's service area shall be defined by the
predicted 38 dBu service contour of its authorized base station or
fixed station transmitting on frequencies in the 220-221 MHz band at
its initially authorized location or at the location authorized in
accordance with Secs. 90.751, 90.753, 90.755 and 90.757 if the licensee
has sought modification of its license to relocate its initially
authorized base station. The Phase I licensee's predicted 38 dBu
service contour is calculated using the F(50,50) field strength chart
for Channels 7-13 in Sec. 73.699 (Fig. 10) of this chapter, with a 9 dB
correction factor for antenna height differential, and is based on the
authorized effective radiated power (ERP) and antenna height-above-
average-terrain of the licensee's base station or fixed station. Phase
I licensees are permitted to add, remove, or modify transmitter sites
within their existing service area without prior notification to the
Commission so long as their predicted 38 dBu service contour is not
expanded. The incumbent licensee must, however, notify the Commission
within 30 days of the completion of any changes in technical parameters
or additional stations constructed through a minor modification of its
license. Such notification must be made by submitting the appropriate
FCC form and must include the appropriate filing fee, if any. These
minor modification applications are not subject to public notice and
petition to deny requirements or mutually exclusive applications.
(b) Phase I licensees holding authorizations for service areas that
are contiguous and overlapping may exchange these authorizations for a
single license, authorizing operations throughout the contiguous and
overlapping service areas. Phase I licensees exercising this license
exchange option must submit specific information for each of their
external base station sites.
8. The section heading of Sec. 90.769 is revised to read as
follows:
Sec. 90.769 Construction and implementation of Phase II nationwide
licenses.
* * * * *
9. Section 90.1011 is revised to read as follows:
Sec. 90.1011 Submission of upfront payments and down payments.
(a) The Commission will require applicants to submit an upfront
payment prior to the start of a 220 MHz Service auction. The amount of
the upfront payment for each geographic area license auctioned and the
procedures for submitting it will be set forth by the Wireless
Telecommunications Bureau in a public notice in accordance with
Sec. 1.2106 of this chapter.
(b) Each winning bidder in a 220 MHz Service auction must submit a
down payment to the Commission in an amount sufficient to bring its
total deposits up to 20 percent of its winning bid within ten (10)
business days following the release of a Public Notice announcing the
close of bidding.
10. Section 90.1013 is revised to read as follows:
Sec. 90.1013 Long-form application (FCC Form 601).
Each successful bidder for a 220 MHz geographic area license must
submit a long-form application (FCC Form 601) within ten (10) business
days after being notified by Public Notice that it is the winning
bidder. Applications for 220 MHz geographic area licenses on FCC Form
601 must be submitted in accordance with Sec. 1.2107 of this chapter,
all applicable procedures set forth in the rules in this part, and any
applicable Public Notices that the Commission may issue in connection
with an auction. After an auction, the Commission will not accept long-
form applications for 220 MHz geographic area licenses from anyone
other than the auction winners and parties seeking partitioned licenses
pursuant to agreements with auction winners under Sec. 90.1019 of this
chapter.
11. Section 90.1015 is revised to read as follows:
Sec. 90.1015 License grant, denial, default, and disqualification.
(a) Unless otherwise specified by Public Notice, auction winners
are required to pay the balance of their winning bids in a lump sum
within ten (10) business days following the release of a Public Notice
establishing the payment deadline. If a winning bidder fails to pay the
balance of its winning bids in a lump sum by the applicable deadline as
specified by the Commission, it will be allowed to make payment within
ten (10) business days after the payment deadline, provided that it
also pays a late fee equal to five percent of the amount due. When a
winning bidder fails to pay the balance of its winning bid by the late
payment deadline, it is considered to be in default on its license(s)
and subject to the applicable default payments. Licenses will be
awarded upon the full and timely payment of winning bids and any
applicable late fees.
(b) A bidder that withdraws its bid subsequent to the close of
bidding, defaults on a payment due, or is disqualified, is subject to
the payments specified in Sec. 1.2104(g), Sec. 1.2109, and Sec. 90.1007
of this chapter, as applicable.
12. Section 90.1017 is revised to read as follows:
Sec. 90.1017 Bidding credits for small businesses and very small
businesses.
(a) Bidding credits. A winning bidder that qualifies as a small
business or a consortium of small businesses as defined in
Sec. 90.1021(b)(1) or Sec. 90.1021(b)(4) may use a bidding credit of 25
percent to lower the cost of its winning bid. A winning bidder that
qualifies as a very small business or a consortium of very small
businesses as defined in Sec. 90.1021(b)(2) or Sec. 90.1021(b)(4) may
use a bidding credit
[[Page 32592]]
of 35 percent to lower the cost of its winning bid.
(b) Unjust enrichment--Bidding credits. (1) If a small business or
very small business (as defined in Secs. 90.1021(b)(1) and
90.1021(b)(2), respectively) that utilizes a bidding credit under this
section seeks to transfer control or assign an authorization to an
entity that is not a small business or a very small business, or seeks
to make any other change in ownership that would result in the licensee
losing eligibility as a small business or very small business, the
small business or very small business must seek Commission approval and
reimburse the U.S. government for the amount of the bidding credit,
plus interest based on the rate for ten year U.S. Treasury obligations
applicable on the date the license was granted, as a condition of
approval of the assignment, transfer, or other ownership change.
(2) If a very small business (as defined in Sec. 90.1021(b)(2))
that utilizes a bidding credit under this section seeks to transfer
control or assign an authorization to a small business meeting the
eligibility standards for a lower bidding credit, or seeks to make any
other change in ownership that would result in the licensee qualifying
for a lower bidding credit under this section, the licensee must seek
Commission approval and reimburse the U.S. government for the
difference between the amount of the bidding credit obtained by the
licensee and the bidding credit for which the assignee, transferee, or
licensee is eligible under this section, plus interest based on the
rate for ten year U.S. Treasury obligations applicable on the date the
license was granted, as a condition of the approval of such assignment,
transfer, or other ownership change.
(3) The amount of payments made pursuant to paragraphs (b)(1) and
(b)(2) of this section will be reduced over time as follows: A transfer
in the first two years of the license term will result in a forfeiture
of 100 percent of the value of the bidding credit (or the difference
between the bidding credit obtained by the original licensee and the
bidding credit for which the post-transfer licensee is eligible); in
year 3 of the license term the payment will be 75 percent; in year 4
the payment will be 50 percent; and in year 5 the payment will be 25
percent, after which there will be no assessment.
[FR Doc. 98-15710 Filed 6-11-98; 8:45 am]
BILLING CODE 6712-01-P
