05-11476. Promotion of Spectrum Efficient Technologies on Certain Frequencies

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document, the Commission seeks comments on whether to defer or eliminate the requirement in the rules that certain applications for equipment authorization received on or after January 1, 2005, specify 6.24 kHz capability.

DATES:

Submit comments on or before August 15, 2005, and reply comments are due on or before September 13, 2005.

FOR FURTHER INFORMATION CONTACT:

Rodney Conway, [e-mail], Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau, [phone], TTY [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Federal Communications Commission's Third Further Notice of Proposed Rule Making (3rd Further NPRM), FCC 04-292, adopted on December 20, 2004, and released on December 23, 2004. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the FCC's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at [phone] or TTY [phone] or at [e-mail].

1. In the Second Further Notice of Proposed Rule Making (2nd Further NPRM) in this proceeding (68 FR 42337, July 17, 2003), the Commission sought comment on whether it should adopt measures to facilitate the migration to 6.25 kHz operations. In comments to the (2nd Further NPRM) and in separate pleadings, parties argued that the Commission should eliminate or, in the alternative, defer, the requirement in 47 CFR 90.203(j)(5) that equipment approval applications received on or after January 1, 2005 for equipment operating in the 150-174 MHz and/or 421-512 MHz bands must either be capable of operating on 6.25 kHz channels or meet a narrowband efficiency standard of one channel per 6.25 kHz (voice) or 4800 bits per second per 6.25 kHz (data).

2. Because these pleadings raise an issue beyond but connected to the Commission's inquiry in the 2nd Further NPRM, the 3rd Further NPRM seeks comment on this proposal. Specifically, it seeks comment on the petitioners' assumption that the current rule would place onerous burdens on manufacturers and jeopardize the promotion of interoperability between users in the absence of a 6.25 kHz equivalent efficiency standard. It also seeks comment on whether the question hinges on a distinction between equipment-based technologies that are specifically manufactured to utilize 6.25 kHz channel bandwidth as opposed to reconfigured 12.5 kHz equipment or software-defined 12.5 kHz equipment made capable of operating on channel bandwidths with an equivalent efficiency of 6.25 kHz. In the absence of a single, equipment-based 6.25 kHz technology standard, would the deployment of non-standardized equipment capable of utilizing 6.25 kHz efficiency channel bandwidths significantly hamper interoperability? The Commission seeks comment on these and any other related issues, but emphasizes that it is not reopening the record for comments regarding the broader issues raised in the 2nd Further NPRM regarding migration to 6.25 kHz technology.

3. For Commission licensees operating in the Federal Government bands 150.05-150.8 MHz, 162.0125-173.2 MHz, and 173.4-174 MHz, we recognize that a separate ongoing proceeding—ET Docket No. 04-243—is addressing whether different narrowbanding requirements are needed to account for the Federal Government's own narrowbanding plans in those bands. Accordingly, we defer decisions with respect to those bands to that proceeding.

I. Procedural Matters

A. Ex Parte Rules—Permit-But-Disclose Proceeding

4. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's rules.

B. Comment Dates

5. Pursuant to § 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before August 15, 2005, and reply comments on or before September 13, 2005. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.

6. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/​e-file/​ecfs.html. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to [e-mail], and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th St., SW., Washington, DC 20554. Filings can be sent first class by the U.S. Postal Service, by an overnight courier or hand and message-delivered. Hand and message-delivered paper filings must be delivered to 236 Massachusetts Avenue, NE, Suite 110, Washington, DC 20002. Filings delivered by overnight courier (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

7. Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to: Rodney Conway, Wireless Telecommunications Bureau, 445 12th St., SW., Room 3-C405, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Microsoft Word or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the docket number in this case, WT Docket No. 99-87), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters should send diskette copies to the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th St., SW., Room CY-B402, Washington, DC 20554.

C. Paperwork Reduction Act

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

II. Regulatory Flexibility Act Analysis

9. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Third Further Notice of Proposed Rule Making (3rd Further NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on this Further NPRM provided above in para. 5, supra. The Commission will send a copy of the 3rd Further NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the 3rd Further NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

Need for, and Objectives of, the Proposed Rules

10. The purpose of this 3rd Further NPRM is to determine whether it would be in the public interest, convenience, and necessity to amend our rules governing private land mobile radio licensees in the 150-174 MHz and 421-512 MHz bands to modify or eliminate the requirement in § 90.203(j)(5) of the Commission's rules that require applications for certification of equipment received on or after January 1, 2005 operating with a 25 kHz bandwidth only to the extent that the equipment meets the spectrum efficiency standard of one channel per 6.25 kHz of channel bandwidth (voice) or 4800 bits per second per 6.25 kHz (data).

Legal Basis

11. Authority for issuance of this 3rd Further NPRM is contained in sections 4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as amended.

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

12. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. Under the RFA, small entities may include small organizations, small businesses, and small governmental jurisdictions. The RFA generally defines the term “small business” as having the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations.

13. The proposed rule amendments may affect users of Public Safety Radio Pool services and private radio licensees that are regulated under part 90 of the Commission's rules, and may also affect manufacturers of radio equipment. An analysis of the number of small entities affected follows.

14. Public safety services and Governmental entities. Public safety radio services include police, fire, local governments, forestry conservation, highway maintenance, and emergency medical services. The SBA rules contain a definition for small radiotelephone (wireless) companies that encompass business entities engaged in radiotelephone communications employing no more that 1,500 persons. There are a total of approximately 127,540 licensees within these services. Governmental entities as well as private businesses comprise the licensees for these services. The RFA also includes small governmental entities as a part of the regulatory flexibility analysis. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, the Commission estimates that 81,600 (96 percent) are small entities.

15. Estimates for PLMR Licensees. Private land mobile radio systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a definition of small entities specifically applicable to PLMR users, nor has the SBA developed any such definition. The SBA rules do, however, contain a definition for small radiotelephone (wireless) companies. Included in this definition are business entities engaged in radiotelephone communications employing no more that 1,500 persons. Entities engaged in telegraph and other message communications with no more than $5 million in annual receipts also qualify as small business concerns. According to the Bureau of the Census, only twelve radiotelephone firms of a total of 1,178 such firms which operated during 1992 had 1,000 or more employees. For the purpose of determining whether a licensee is a small business as defined by the SBA, each licensee would need to be evaluated within its own business area. The Commission's fiscal year 1994 annual report indicates that, at the end of fiscal year 1994, there were 1,101,711 licensees operating 12,882,623 transmitters in the PLMR bands below 512 MHz.

16. Equipment Manufacturers. We anticipate that at least six radio equipment manufacturers will be affected by our decisions in this proceeding. According to the SBA's regulations, a radio and television broadcasting and communications equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would therefore be classified as small entities.

Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

17. This 3rd Further NPRM stays the January 1, 2005 date in § 90.203(j)(5) of the Commission's rules pending resolution of the issues presented in the 2nd Further NPRM and the Petition to Defer. Therefore, the 3rd Further NPRM removes any administrative or recordkeeping burdens associated with the requirement that applications for certification of equipment received on or after January 1, 2005 operating with a 25 kHz bandwidth will be permitted only to the extent that the equipment meets the spectrum efficiency standard of one channel per 6.25 kHz of channel bandwidth (voice) or 4800 bits per second per 6.25 kHz (data) pursuant to § 90.203 (j)(5) of the Commission's rules.

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

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

19. The objective in the Refarming proceeding was to provide a means to transition licensees to 6.25 kHz technology. Migration to 12.5 kHz technology was viewed as a stepping stone to operation at 6.25 kHz technology. However, requiring the use of 6.25 kHz technology by a date certain could impact some small entities requiring them to upgrade their communications systems before they would otherwise do so. An alternative would be to maintain the current rules, which are intended to foster migration to narrowband technology by way of progressively more stringent type certification requirements. We issue this 3rd Further NPRM to stay the effectiveness of § 90.203(j)(5) of the Commission's rules and thereby ensure that a January 1, 2005 deadline would not injure any party while we consider whether a change in the Commission's rules would benefit small entities and other PLMR licensees.

Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

None.

III. Ordering Clauses

20. Pursuant to sections 1, 2, 4(i), 301, 302, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 301, 302, and 303, and §§ 1.421 and 1.425 of the Commission's rules, 47 CFR 1.421 and 1.425, it is ordered that the Third Further Notice of Proposed Rule Making is hereby adopted.

21. It is further ordered that the Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Third Memorandum Opinion and Order, Third Further Notice of Proposed Rule Making including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the U.S. Small Business Administration.

List of Subjects in 47 CFR Part 90

• Communications equipment
• Radio
• Reporting and recordkeeping requirements

Federal Communications Commission.

Marlene H. Dortch,

Secretary .