[Federal Register Volume 60, Number 153 (Wednesday, August 9, 1995)]
[Rules and Regulations]
[Pages 40712-40732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19486]
[[Page 40711]]
_______________________________________________________________________
Part V
Federal Communications Commission
_______________________________________________________________________
47 CFR Parts 1 and 26
General Wireless Communications Service; Final Rule
Federal Register / Vol. 60, No. 153 / Wednesday, August 9, 1995, /
Rules and Regulations
[[Page 40712]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 26
[ET Docket No. 94-32, FCC 95-319]
Wireless Service; General Wireless Communications Service
agency: Federal Communications Commission.
action: Final rule.
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summary: This Second Report and Order creates the General Wireless
Communications Service and adopts rules for licensing of this service
in the 4660-4685 MHz band. These rules will be found in newly adopted
47 CFR Part 26. The creation of the General Wireless Service comes in
response to the Omnibus Budget Reconciliation Act of 1993
(Reconciliation Act), and is intended to benefit the public by
permitting and encouraging the introduction of new services and the
enhancement of existing services. These new and enhanced services and
uses will create new jobs, foster economic growth, and improve access
to communications by industry and the American public.
effective date: August 9, 1995. Section 26.104 which contains
information collection requirements will not become effective until
approved by the Office of Management and Budget. Notice of such
approval and the effective date will be provided in the Federal
Register.
for further information contact: Karen Rackley, 202-418-0620, or Dan
Grosh 202-418-1534.
supplementary information:
Type of Review: New collection requirement
Title: In the Matter of Allocation of Spectrum Below 5 GHz Transferred
from Federal Government Use
OMB Number: None.
Form Number:
Affected Public: Business or other-for-profit organizations, not-for-
profit institutions, and state, local, or tribal governments.
Number of Respondents: 875
Estimated time per response: Approximately 4 hours
Total burden: Approximately 3500 hours five and ten years after initial
license grant
Needs and Uses: These requirements comply with Congressional directive
that the Commission adopt performance requirements to ensure prompt
service to rural areas, prevent stockpiling or warehousing of spectrum
and encourage investment in and development of new technologies
This is a synopsis of the Second Report and Order is avaialble for
inspection and copying during normal business hours in the FCC
Reference Center (Room 239), 1919 M Street, NW., Washington, DC, and
also may be purchased from the Commission's copy contractor,
International Transcription Service, at (202) 857-3800, 2100 M Street,
NW., Suite 140, Washington, DC 20037.
Synopsis of the Second Report and Order
1. By this action, the Commission creates the General Wireless
Communications Service (GWCS), and adopts rules for licensing of this
service in the 4660-4685 MHz band. The 25 megahertz of spectrum in the
4660-4685 MHz band was transferred from Federal Government to private
sector use and was allocated to the Fixed and Mobile services in the
First Report and Order and Second Notice of Proposal Rule Making (First
R&O/Second NPRM) in this proceeding. (The Notice of Inquiry in this
proceeding was published at 59 FR 255589, May 17, 1994; the Notice of
Proposed Rule Making at 59 FR 19393, May 17, 1994; the Notice of
Proposed Rule Making at 59 FR 19393, November 17, 1994; and the First
Report and Order at 60 FR 13102, March 10, 1995.)
2. The First R&O allocated the 2390-2400 MHz band for use by
unlicensed Personal Communicationa Services (PCS) devices, provided for
continued use of the 2402-2417 MHz band by devices operating in
accordance with Part 15 of our rules, supgraded the allocation of these
bands for use by the Amateur service on a primary basis, and allocation
the 5440-4685 MHz band for use by Fixed and Mobile Service. The Second
NPRM proposed rules for use of the 4660=NPRM proposed rule for use of
the 4660-4685 MHz band.
Service Rules
3. The Second NPRM proposed to create a new service, the General
Wireless Communications Service (GWCS), for licensing of the 4660-4685
MHz band. This new service would allow a licensee to provide a wide
range of Fixed or Mobile services. As stated in the Second NPRM, CWCS
would provide licensees an opportunity to use the spectrum flexibility
in order to meet the needs of consumers. Services that would not be
within the proposed GWCS category included Broadcast services, Radio
location services, and Satellite services.
4. The Commission proposed to establish the flexible GWCS service
classification in order to enhance the ability of service providers to
meet a variety of user needs. The Commission also acknowledged the
possibility that these needs might better be accommodated by rules that
prescribe the use of the 4660-4685 MHz frequency band only by specific
services. Interested parties who opposed the proposed establishment of
a GWCS category were asked to suggest ways in which use of the 4660-
4685 MHz band could be limited to specific services. For example, the
Commission sought comment on (1) what services should be treated as
eligible; (2) whether we should divide channels in the band in a matter
which assigns Fixed services exclusively to certain channels and Mobile
services exclusively to other channels in the band; (3) whether we
should establish priorities for Fixed service or Mobile service use of
some or all of the channels established in the band; and (4) whether we
should assign some or all channels established in the band for
exclusive use by private Fixed or Mobile Services. Proponents of this
alternative approach for designating services in the 4660-4685 MHz
frequency band were asked to provide facts and arguments supporting
their view that such an approach would better serve the Commission's
objectives and the public interest than would the establishment of
GWCS, which would permit use of the spectrum for these as well as other
applications.
5. The Commission adopts the proposed General Wireless
Communications Service for the 4660-4685 MHz block, largely as proposed
in the Second NPRM. This flexible, broadly defined service should
accommodate a wide variety of potential Fixed and Mobile service uses,
including all of those identified by the commenters. The flexibility of
GWCS should also help make frequencies available for new technologies
and services, including those that have been mentioned in the current
comments and those that may be developed in the years ahead. In
addition, as a service category that is not limited to specific past
and current uses, but is available for the implementation of future
technologies, GWCS should encourage research and investment to invent,
develop, and market new technologies, and spur their deployment to
serve consumers.
6. Under the Reconciliation Act, the spectrum reallocated from
Federal Government use is to be allocated and assigned to public use
under a plan that makes frequencies available for new technologies and
services, and stimulates the development of such technologies. The
Commission believes that the General Wireless
[[Page 40713]]
Communications Service will foster the accomplishment of these goals.
Additionally, GWCS should stimulate efficient use of the spectrum by
encouraging licensees to find ways to use the spectrum for the variety
of services allowed under the license. Of equal importance, GWCS will
accommodate and spur the development of new technologies and services.
7. Commenters have not persuaded the Commission that limiting
assignments to any of their specific proposed uses of the spectrum
would better meet the goals of the Reconciliation Act, the
Communications Act, and the public interest. Restricting the 4660-4685
MHz spectrum to defined uses or services, such as the specific uses
proposed by various commenters, would tend to reduce the attractiveness
of this spectrum for new technologies and services. Moreover, as
discussed above, GWCS is flexible enough to permit the specific uses
suggested by such commenters, as well as the other uses identified in
the comments. If GWCS spectrum assignment applications submitted by
qualified parties now seeking service-specific allocations are not
mutually exclusive, those parties will be granted licenses to provide
the specific services they wish to provide, as well as other
permissible GWCS services. In the event the spectrum is assigned by
auction because of mutual exclusivity, they will also be able to
participate and seek to obtain licenses.
8. The Commission also believes that any interference issues that
may arise among GWCS licensees can be satisfactorily resolved by
general non-interference standards and technical rules. Many potential
sources of unacceptable interference have been eliminated by barring
use of GWCS for Broadcast services, Radiolocation services, and
Satellite services. Further, the grant of each GWCS license will be
made subject to the condition that the licensee not cause unacceptable
interference with any other licensee or service. Failure to abide by
this condition will render the licensee subject to fines, damages, or
forfeiture of the license. The Commission is adopting technical rules
similar to those in place for PCS. To the extent it proves necessary,
the Commission can consider whether revisions to those rules are
warranted after GWCS licenses are assigned.
9. The Commission finds no merit in arguments that the Fixed and
Mobile allocation of this spectrum, and use of the flexible GWCS
designation for assigning this spectrum, are unlawful. As discussed in
the First Report and Order the provisions of the Communications Act and
Commission precedent support the legality of allocating frequencies to
more than one radiocommunication service, and of assigning licenses for
use by a broadly defined service. The Commission is required by the
National Telecommunications and Information Administration Organization
Act (NTIAO Act) to issue regulations to allocate the 50 megahertz of
spectrum that the Secretary of Commerce identified and recommended for
immediate reallocation from Federal Government use no later than 18
months from enactment of the Reconciliation Act.\1\ For purposes of
this portion of the NTIAO Act, the term ``allocation'' is defined as
``an entry in the National Table of Frequency Allocations of a given
frequency band for the purpose of its use by one or more
radiocommunication services.'' \2\ The Table of Frequency Allocations
often contains allocations to more than one type of service \3\ and
such allocations are specifically authorized in this instance by the
NTIAO Act. Therefore, allocation of the 4660-4685 MHz band to Fixed and
Mobile Services is permissible and consistent with established
practice.
\1\ Section 115(a) of the National Telecommunications and
Information Administration Organization Act, 47 U.S.C. Sec. 925(a)
(NTIAO Act).
\2\ Section 111(1) of the NTIAO Act, 47 U.S.C. Sec. 921(1).
\3\ See 47 C.F.R. Sec. 2.106.
10. The Commission also believes that such an allocation is
consistent with the Commission's obligations under the Communications
Act. The Commission has broad authority under the Communications Act to
allocate spectrum. This authority derives from Section 303 of the
Communications Act. Nothing in the language of Section 303 establishes
or suggests any limitation or restriction on the Commission's
discretion to prescribe the nature of the service to be rendered over
radio frequencies or authority to assign (or allocate) frequencies to
the various classes of stations. Moreover, nothing in the language of
Section 303 or its legislative history suggests that the Commission is
prohibited from assigning spectrum to stations for more than one
permissible use, or otherwise limits the Commission's discretion in
making spectrum allocations that it deems to serve the public interest.
With respect to allocation decisions, courts have accorded
``substantial deference'' to Commission determinations.\4\ Finally,
Commission precedent supports the permissibility of allocating spectrum
in a manner that allows for its use by a broadly defined service.
\4\ See National Ass'n of Regulatory Util. Comm'ners v. FCC, 525
F.2d 630, 636 (D.C. Cir.), cert. denied, 425 U.S. 992 (1976); see
also Telocator Network of America v. FCC, 691 F.2d 525, 549
(D.C.Cir. 1982).
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11. The Commission, in the Second NPRM, noted that, in addition to
the Fixed and Mobile service allocation adopted in the First R&O, 4660-
4685 MHz is allocated on a co-primary basis for non-government fixed-
satellite service (FSS) space-to-Earth links, with use limited to
international inter-continental systems and subject to a case-by-case
electromagnetic analysis in accordance with US footnote 245 of the
Table of Frequency Allocations. The NOI in this proceeding requested
comment on the necessity of maintaining the US245 restrictions on FSS
use of this band, considering that it would no longer be available for
Federal Government use. To facilitate the shared used of this band, the
Second NPRM proposed to maintain the restrictions set forth in US
footnote 245 on use of 4660-4685 MHz and requested comments on this
proposal. The Commission adopts the proposal as contained in the Second
NPRM and retains the restriction in this footnote.
12. The Commission next considers public safety issues. Under the
NTIAO Act, the Commission's plan for allocating and assigning former
Federal Government spectrum must contain appropriate provisions to
ensure not only the availability of frequencies for new services, but
also ``the safety of life and property in accordance with the policies
of Section 1 of the [Communication Act]'' \5\ In the current record,
the Association of Public-Safety Communications Officials-
International, Inc. (APCO) proposes designating at least a portion of
the 4660-4685 MHz band for public safety mobile and aeronautical video
operations. The current record does not, however, provide a sound basis
for concluding that any or all of the 4660-4685 MHz band should be
assigned as APCO suggests.
\5\ Section 115(b)(2)(C) of the NTIAO Act, codified at 47 U.S.C.
Sec. 925(b)(2)(C).
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13. The Commission is firmly committed to ensuring that wireless
and wired communications resources are deployed to promote the safety
of life and property, as well as to carry out the other public interest
goals of the Communications Act. The FCC and NTIA recently formed a
Public Safety Wireless Advisory Committee to prepare a report on
operational, technical and spectrum requirements of Federal, state and
local public safety entities through
[[Page 40714]]
the year 2010. This Committee is expected to begin its work in the very
near future. The plan the Commission is developing for the 200 MHz of
Federal Government spectrum scheduled to be reallocated to non-
Government use over the next 10 years will contain provisions to
address how the reallocated Federal Government spectrum can best be
used to satisfy unmet national safety needs. The Commission is directed
by statute to submit and implement this plan by February 1996.\6\
\6\ See Section 115(b) of the NTIAO Act, codified at 47 U.S.C.
Sec. 925(b).
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14. It is the Commission's hope and intent that the gaps identified
in the current record regarding the scope of public safety needs for
additional wireless spectrum, and how those needs might best and most
efficiently be met, will spur public safety organizations and other
interested parties to work together to help us develop an effective
plan for using wireless communications to meet any unmet and future
public safety needs. The FCC-NTIA Public Safety Wireless Advisory
Committee will offer one useful forum for such efforts. One of the
tasks undertaken by the advisory committee will be to identify spectrum
for federal, state, and local public safety use. As part of that
process, the Commission suggests that the advisory committee explore
potential public safety uses of the 4635-4660 MHz band. The Commission
expects to begin proceedings in the near future to allocate and
establish rules for assigning this band, which consists of reallocated
Federal Government spectrum which is scheduled to become available in
January 1997. This band is directly adjacent to the 4660-4685 MHz band
we are designating to GWCS in this Order and thus has essentially the
same technical characteristics and potential uses. Public safety
organizations may develop proposals to ensure that the Commission has a
complete, well-developed record to consider whether and how this band
might be allocated and assigned to meet public safety needs.
Use of Spectrum
15. The Commission expects that the General Wireless Communications
Service will benefit the public by providing licensees the opportunity
to use the spectrum in a variety of ways they find appropriate. The
Second NPRM tentatively concluded that it is likely that these uses
will principally involve the provision of subscriber-based services.
Based on this conclusion, the Commission proposed to use competitive
bidding as the assignment method for this spectrum if mutually
exclusive applications are filed. Section 309(j)(2)(A) of the
Communications Act provides that competitive bidding may be used by the
Commission to assign spectrum if the ``principal use'' of the spectrum
involves, or is reasonably likely to involve, the transmission or
reception of communications signals to subscribers for compensation.
16. Based on the record, the Second NPRM tentatively concluded that
the principal use of this spectrum under the Commission's proposed
General Wireless Communications Service would involve, or was
reasonably likely to involve, the receipt by the licensee of
compensation from subscribers in return for enabling those subscribers
to receive or transmit communications signals. The Commission requested
further comment on this tentative conclusion. Based on the record in
response to the Second NPRM, the Commission finds it likely that the
principal use of this band will be for subscription services.
Assignment Method
17. Sections 309(j)(1) and 309(j)(2) of the Communications Act \7\
permit auctions where mutually exclusive applications for initial
licenses or construction permits are accepted for filing by the
Commission and where the principal use of the spectrum will involve or
is reasonably likely to involve the receipt by the licensee of
compensation from subscribers in return for enabling those subscribers
to receive or transmit communications signals. As explained above, The
Commission believes that the principal use of this spectrum will meet
these requirements. In addition, Section 309(j)(2)(B) requires the
Commission, before it may adopt the use of auctions to award licenses,
to determine that use of competitive bidding will promote the
objectives described in Sections 1 and 309(j)(3) of the Communications
Act. The Second NPRM tentatively concluded that the use of competitive
bidding to assign licenses in the 4660-4685 MHz band would promote
these objectives. The Second NPRM also requested comments on other
possible assignment methods.
\7\ 47 U.S.C. Secs. 309(j)(1), 309(j)(2).
18. The Commission concludes that, in cases of mutually-exclusive
applications, GWCS spectrum should be assigned by auction, as we
tentatively concluded in the Second NPRM. Based on our experience with
comparative hearings, lotteries, and auctions, the Commission believes
that auctions will in this case achieve the statutory objectives of
Section 309(j)(3) of the Communications Act.
19. One important aspect of any assignment method is determining
whether applications are mutually exclusive. In the Second NPRM, the
Commission proposed to use a 30-day filing window or other application
cut-off method to allow for competing applications. The Second NPRM
also sought comment on whether some other type of filing group would be
more appropriate for determining whether initial applications are
mutually exclusive. None of the commenters addressed this issue or
suggested alternatives to the proposed 30-day filing window. Therefore,
the Commission adopts the 30-day filing window as proposed for GWCS
applications.
Channelization; Aggregation
20. The Second NPRM next proposed that the 4660-4685 MHz band be
licensed in five blocks, each of which would be 5 megahertz wide. The
Second NPRM proposed to limit a single entity from obtaining more than
three of these blocks in a single geographic licensing area. The Second
NPRM further proposed that, regardless of the specific service to be
provided, this spectrum will not count against the 45 megahertz
spectrum cap that applies to certain commercial mobile radio service
(CMRS) licensees.
21. The Commission adopts the proposed channelization plan
consisting of five 5 megahertz blocks. The Commission also adopts the
proposed aggregation limit of 15 megahertz of spectrum that may be
obtained by a single entity. Lastly, the Commission adopts its
tentative conclusion not to count this spectrum against the 45
megahertz spectrum cap that applies to certain CMRS licenses.
License Areas
22. The Commission will issue GWCS licenses based on EA-like
geographic areas. The complete list of EA and EA-like areas is shown in
Appendix C of the full text of this Second Report and Order. The five 5
MHz blocks will be designated as Blocks A through E: Block A (4660-4665
MHz), Block B (4665-4670 MHz), Block C (4670-4675 MHz), Block D (4675-
4680 MHz) and Block E (4680-4685 MHz).
Eligibility
23. The Second NPRM proposed, in the event the Commission
determined it reasonably likely that GWCS services would be commercial
services, that there be no restrictions on eligibility to apply for
licenses in this band other
[[Page 40715]]
than those foreign ownership restrictions that apply to CMRS and common
carrier fixed system licensees, and the restriction on foreign
governments or their representatives related to the holding of private
mobile radio service licenses. Although rural telephone companies would
be eligible, the Commission did not propose to treat them differently
than other applicants. The Commission now adopts these proposed broad
eligibility standards for GWCS applications.
Competitive Bidding Issues
24. In the Second NPRM, the Commission proposed to use auctions to
issue licenses for GWCS services in the 4660-4685 MHz band that meet
the statutory auction criteria and sought comment on a wide range of
issues related to competitive bidding. For example, regarding
competitive bidding methodology for licenses in the 4660-4685 MHz band,
the Second NPRM proposed to use simultaneous multiple round bidding for
licensing of the proposed 5 MHz-wide MTA spectrum blocks. The
Commission also tentatively proposed to auction all licenses
simultaneously, because of the relatively high value and significant
interdependence of the licenses. Commenters were asked to address these
tentative conclusions and whether any other competitive bidding designs
might be more appropriate for the licensing of this spectrum. The
Commission adopts the tentative conclusion in the Second NPRM and will
auction this spectrum by simultaneous multiple round bidding. However,
the Commission reserves the discretion to hold one or more auctions.
25. The Second NPRM also sought comment on whether to allow
combinatorial bidding for GWCS services, because it may be necessary or
at least highly desirable that spectrum used for some services (e.g.,
air-ground service) be licensed to the same entity nationwide.
Combinatorial bidding is an auction method which allows applicants to
bid for multiple licenses as all or nothing packages, e.g., all
licenses nationwide on a particular spectrum block, with the licenses
awarded as a package if the combinatorial bid is greater than the sum
of the high bids on the individual licenses in the package. The
Commission declines to adopt combinatorial bidding in this decision,
but will establish reduced bid withdrawal penalties for entities
seeking nationwide licenses that should achieve results similar to
combinatorial bidding, with far less uncertainty and complexity.
26. The Second NPRM invited comment on bidding procedures to be
used in the 4660-4685 MHz auctions, including bid increments, duration
of bidding rounds, stopping rules, and activity rules. Assuming that
the Commission would use simultaneous multiple round auctions, the
Second NPRM generally proposed to use the same or similar bidding
procedures to those used in simultaneous multiple round bidding for
MTA-based PCS licenses. The Commission sought comment on whether any
variations on these procedures should be adopted for licenses in the
4660-4685 MHz band. Based upon our successful experience in auctioning
PCS spectrum and the absence of any dispute concerning the efficacy of
the bidding procedures used there, the Commission adopts essentially
the same procedures for GWCS licenses. Additional, more detailed
information on bidding procedures and other auction information will be
made public prior to the auction.
27. This Second Report and Order next considers procedural,
payment, and penalty issues. As discussed below, the Commission will
generally follow the procedural, payment, and penalty rules established
in Subpart Q of Part 1 of the Commission's Rules.\8\ First, regarding
upfront payments, as in the case of other auctionable services, the
Commission will require participants in the 4660-4685 MHz auction to
tender to the Commission, in advance of the auction, a substantial
upfront payment as a condition of bidding in order to ensure that only
serious, qualified bidders participate in auctions and to ensure
payment of the penalty in the event of bid withdrawal or default. For
GWCS, the Commission adopts the standard upfront payment formula of
$0.02 per pop per MHz for the largest combination of MHz-pops a bidder
anticipates bidding on in any single round of bidding.
\8\ 47 C.F.R. Part 1, Subpart Q.
28. Second, the Commission adopts a requirement for 4660-4685 MHz
GWCS licensees that successful bidders tender a 20 percent down payment
on their bids to discourage default between the auction and licensing
and to ensure payment of the penalty if such default occurs. Third, the
Commission adopts the bid withdrawal, default, and disqualification
rules for 4660-4685 MHz licensing based on the procedures established
in our general competitive bidding rules. Under these procedures, any
bidder who withdraws a high bid during an auction before the Commission
declares bidding closed, or defaults by failing to remit the required
down payment within the prescribed time, will be required to reimburse
the Commission in the amount of the difference between its high bid and
the amount of the winning bid the next time the license is offered by
the Commission, if the subsequent winning bid is lower. One exception
is that the Commission will limit the bid withdrawal penalties for
nationwide bidders to 5 percent of the withdrawn bids. A defaulting
auction winner will be assessed an additional penalty of three percent
of the subsequent winning bid or three percent of the amount of the
defaulting bid, whichever is less, up to 5 percent of the withdrawn
bids. In the event that an auction winner defaults or is otherwise
disqualified, the Commission will re-auction the license either to
existing or new applicants. The Commission will retain discretion,
however, to offer the license to the next highest bidder at its final
bid level if the default occurs within five business days of the close
of bidding.
29. The Commission next considers regulatory safeguards. First, the
Commission establishes unjust enrichment regulations as directed by the
Reconciliation Act. Specifically, the Commission adopts the transfer
disclosure requirements contained in Section 1.2111(a) of our rules for
all 4660-4685 MHz licenses obtained through the competitive bidding
process. In addition, the Commission adopts the specific rules
governing unjust enrichment by designated entities as proposed in the
Second NPRM. Generally, applicants transferring their licenses within
three years after the initial license grant will be required to file,
together with their transfer application, the associated contracts for
sale, option agreements, management agreements, and all other documents
disclosing the total consideration received in return for the transfer
of its license.
30. Second, the Commission contemplates performance standards, as
instructed by the Reconciliation Act and finds that no additional
performance requirements are needed beyond the specific performance
standards already provided for in the 4660-4685 MHz service rules.
31. Third, the Commission considers rules prohibiting collusion and
adopts rules for the 4660-4685 service which are identical to those
found at 47 CFR Sec. 1.2105(c). Under these procedures, bidders will be
required to identify on their applications all parties with whom they
have entered into any consortium arrangements, joint ventures,
partnerships, or other agreements or
[[Page 40716]]
understandings that relate to the competitive bidding process. Bidders
will also be required to certify that they have not entered into any
explicit or implicit agreements, arrangements, or understandings with
any parties, other than those identified, regarding the amount of their
bid, bidding strategies or the particular properties on which they will
or will not bid.
32. The Second Report and Order deals with several issues regarding
eligibility criteria and general rules governing the award of licensing
preferences to certain designated entities, i.e. minority groups and
women. In keeping with the general parameters set forth in PR Docket
93-253, the Second NPRM in the current docket proposed specific
measures and eligibility criteria for designated entities in the 4660-
4685 MHz service, designed to ensure that such designated entities are
given the opportunity to participate both in the competitive bidding
process and in the provision of service in the 4660-4685 MHz band. The
Commission sought comment on these proposals, and specifically on
identifying special provisions tailored to the unique characteristics
of the service or services that might be offered in the 4660-4865 MHz
band, in order to create meaningful incentives and opportunities in the
service for small businesses and businesses owned by minorities and/or
women.
33. In the Second NPRM, the Commission discussed and sought comment
on these special provisions for designated entities:
(1) for businesses owned by women and minorities the Commission
proposed that installment payments be available on all licenses and
that a bidding credit of 25 percent be available on one of the five
proposed spectrum blocks;
(2) for small business the Commission sought comment on allowing a
reduced down payment requirement coupled with installment payments;
(3) the Commission did not believe that special preferences are
needed to ensure adequate participation of rural telephone companies;
(4) the Commission sought comments on reducing upfront payments to
encourage participation in the auction, particularly by all eligible
designated entities; and
(5) the Commission sought comment on whether and how to designate
one 5 MHz spectrum block as an ``entrepreneurs' block.''
34. The Commission also discussed and solicited comments on issues
of the eligibility criteria for designated entities and provisions to
prevent unjust enrichment by trafficking in licenses acquired through
the use of bidding credits or installment payments.
35. The Commission concludes that its plan to award licenses for
the 4660-4685 MHz band based on EA regions, will substantially enhance
the opportunities for designated entities to participate in the GWCS
license auction. Partitioning of licenses will further increase the
opportunities for designated entities. Based on our experience in the
other auctions held to date, the Commission is also adopting bidding
and payment provisions that will help ensure that the auction assigns
licenses to the bidders who value them most highly, while encouraging
the participation of designated entities. Specifically, the Commission
will permit small business licensees to make their payments in
installments computed at a reasonable rate of interest (the rate for
ten year U.S. Treasury obligations plus 2.5 percent). Small businesses
will in addition be permitted to make reduced down payments and
interest-only payments in the first two years of the license term, and
will be allowed a 10 percent bidding credit on all blocks of spectrum.
The Commission also adopt rules to prevent unjust enrichment from
bidding preferences. The Commission does not adopt an entrepreneurial
set aside, but will apply the designated entity bidding preferences to
all five spectrum blocks.
36. The Commission limit eligibility for bidding credits,
installment payments and reduced down payments to small businesses,
including those owned by members of minority groups and women. The
Commission lacks the information necessary to set different eligibility
criteria for minority and women-owned entities that do not meet our
small business size standards in order to achieve the goals of Section
309(j) in the GWCS services. By providing credits on all blocks,
licensing the blocks based on EA geographic areas, and permitting
disaggregation and partitioning, the Commission will create substantial
opportunities for all small businesses, including those owned by
minorities and women.
37. The Second NPRM requested comment on whether the Commission
should utilize the Small Business Association net worth/net income
definition of a small business (a net worth not in excess of $6 million
with average net income after Federal income taxes for the preceding
years not in excess of $2 million) we adopted in the Competitive
Bidding Second Report and Order or, in the alternative, a gross revenue
standard like that used in the broadband PCS context (average gross
revenues for the three preceding years not in excess of $40 million).
The Commission also proposed to apply the same affiliation and
attribution rules for calculating revenues that we have previously
adopted in the PCS context.
38. The Commission finds that the GWCS overall may be similar to
broadband PCS in its requirements for capital and adopts the small
business definition adopted there, namely any firm, together with its
attributable investors and affiliates, with average gross revenues for
the three preceding years not in excess of $40 million. The Commission
also applies to 4660-4685 MHz applicants the same affiliation and
attribution rules for calculating revenues previously adopted in the
PCS context.
39. On the issues of installment payments and down payments, the
Commission believes that ensuring the opportunity for small businesses
to participate in providing service in the 4660-4685 MHz band is
important for the telecommunications industry. The record in PR Docket
93-253 indicates that small businesses have not become major
participants in telecommunications. The record in that docket also
shows that small businesses have particular difficulties obtaining
capital. As discussed in the Second NPRM, it appears that installment
payments may have been more effective than bidding credits in
attracting capital in the regional narrowband PCS auction, possibly
because installment payments shift some of the financial risk of future
failure to the Government. Therefore, the Commission adopts installment
payments for any GWCS licensee meeting the definition of a small
business.
40. Under this approach, small business licensees may elect to pay
their winning bid amount (less upfront payments) in installments over
the ten year term of the license, with interest charges to be fixed at
the time of licensing at a rate equal to the rate for ten year U.S.
Treasury obligations plus 2.5 percent. Installment payments would be
due quarterly on the anniversary of the day the license was granted.
Timely payment of all installments would be a condition of the license
grant and failure to make such timely payments would be grounds for
revocation of the license.
41. The Commission also adopts additional payment preferences to
further reduce the capital needs of small businesses. Small business
licensees will be permitted to make interest-only installment payments
during the first two years of the license. The
[[Page 40717]]
Commission also reduces down payments for small businesses to 5 percent
of the winning bid due five days after the auction closes and the
remaining 5 percent down payment due five days after Public Notice that
the license is ready for grant.
42. The Second NPRM next proposed a 25 percent bidding credit on
one of the five proposed spectrum blocks for small businesses owned by
women and minorities. These bidding credits would be available
exclusively to minority and women-owned businesses. The Commission also
proposed installment payments for these entities and sought comment on
whether installment payments should also be available for small
businesses. The Commission did not believe that special preferences
were needed to ensure adequate participation of rural telephone
companies in the provision of services in this spectrum, in view of the
uncertainty concerning what specific uses may emerge in this band, the
potential prices that licenses may bring, the effects of provisions for
partitioning or leasing spectrum, and the advantages of incumbency and
economies of scale that may already benefit rural telephone companies.
The Second NPRM sought comment on this analysis.
43. The Commission adopts a 10 percent bidding credit for small
businesses. As discussed above, the Commission is adopting installment
payments for small business bidders and the small EA geographic
licensing areas. In the Commission's judgment, these and other
provisions of the licensing and auction rules should ensure that small
businesses, including small businesses owned by women and minorities,
will be able to participate effectively in obtaining GWCS licenses,
whether or not those licenses are auctioned.
44. The Commission next considers transfer restrictions and unjust
enrichment provisions. Restrictions on the transfer or assignment of
licenses acquired by designated entities are intended to promote the
Congressional intent that designated entities be permitted to
participate in the provision of spectrum-based services, not simply to
profit from trafficking in licenses acquired with the help of bidding
preferences. The Commission adopts the proposal contained in the Second
NPRM. Specifically, the Commission adopts a payment requirement on
transfers of such licenses to entities that are not small businesses.
Small businesses seeking to transfer a license to an entity that is not
owned by women or minorities would be required to reimburse the
government for the amount of the bidding credit, plus interest at the
rate imposed for installment financing at the time the license was
awarded, before the transfer would be permitted. The amount of the
penalty would be reduced over time so that a transfer in the first two
years of the license would result in a payment of 100 percent of the
value of the bidding credit; in year three of the license term the
payment would be 75 percent; in year four the penalty would be 50
percent and in year five the payment would be 25 percent, after which
there would be no payment.
45. On the issue of rural telephone company partitions, the
Commission, in the Second NPRM, proposed to permit partitioning of MTA-
based licenses, to permit licensees to lease the rights to operate a
GWCS system within portions of their geographic service area or
transfer their license to partition their service areas geographically,
allowing another party to be licensed in the partitioned area, subject
to Commission approval. The Commission elects to adopt partitioning
procedures similar to those used for cellular licenses and adopted for
broadband PCS licenses.
46. The Second NPRM next sought comment on whether to designate one
5 MHz spectrum block as an ``entrepreneurs' '' block. The Commission
also invited comment on how eligibility for such a block should be
defined. The Commission declines to adopt an entrepreneur's block for
this band, based on our belief that bidding credits, installment
payment options, and the other approaches also adopted will generate
sufficient incentives to encourage participation in GWCS licensing.
Unlike a set-aside, they also should not generate the risk of
inefficient use of the 4660-4685 MHz spectrum and of dampening
incentives for innovation.
Technical Rules
47. The Second NPRM proposed general and minimal technical
restrictions that are based on the PCS rules. Specifically, the
Commission proposed to limit the field strength at licensees' service
area boundaries to 55 dBu unless licensees operating in adjacent areas
agree to higher field strengths along their mutual border.\9\ The
Commission stated that licensees would be expected to coordinate their
operations at the service area boundaries. The Second NPRM further
stated that the Commission would encourage licensees to resolve
adjacent channel interference problems. The Commission did, however,
propose to require licensees to attenuate the power below the
transmitter power (P) by at least 43 plus 10log10(P) or 80
decibels, whichever is less, for any emission at the edges of the 4660-
4685 MHz band. Comments were requested on these proposals and any other
technical rules that commenters believed appropriate.
\9\ The minimum field strength required for a good quality
service for mobile reception in an urban environment is 35 dBu (CCIR
Report 358-5) and the proposed 55 dBu field strength limit allows 20
dB additional for location variability.
---------------------------------------------------------------------------
48. Based on the record, the Commission adopts the technical rules
as proposed in the Second NPRM. The PCS-based technical rules appear to
be the best available rules to govern the flexible GWCS designation.
However, the Commission recognizes that the technical rules may need to
be adjusted to suit the needs of the eventual licensees. The rules also
anticipate that licensees will in the first instance seek to resolve
interference problems among themselves.
License Term
49. The Second NPRM noted that the Communications Act allows the
Commission to establish a license term of up to 10 years, except for
television or radio broadcasting stations, which may have a license
term of up to 5 and 7 years, respectively. For services in the 4660-
4685 MHz band, the Second NPRM proposed to establish a license term of
10 years, with a renewal expectancy similar to that of PCS and cellular
telephone licensees. The Second NPRM indicated that this relatively
long license term, combined with a high renewal expectancy, should help
provide a stable regulatory environment that will be attractive to
investors and, thereby, encourage development of this new frequency
band. The Commission noted, however, that commenters had proposed using
this band for auxiliary broadcast service and the statute requires that
the term of any license for the operation of any auxiliary broadcast
station or equipment must be concurrent with the term of the license
for such primary television station. Therefore, the Second NPRM asked
that commenters address whether the Commission should allow differing
license terms in this band. The Commission finds that the statutory
provision that requires a shorter license term will generally not
apply, expect in the case of an applicant seeking to use GWCS for
auxiliary broadcast use by a single station, within the meaning of
Section 307(c).
Construction Requirements
50. The Commission, in the Second NPRM, acknowledged that the very
wide array of potential services that
[[Page 40718]]
could be offered in this band makes it difficult to develop
construction requirements that can be applied fairly and equitably,
without skewing the workings of the market. The Commission also
recognized our responsibility to ensure that the spectrum we assign is
used effectively. Therefore, the Second NPRM proposed, and the
Commission now adopts, rules that would require build-out rules modeled
on those adopted for broadband PCS. Specifically, these rules will
require that within five years licensees in this band offer service to
one-third of the population in the area in which they are licensed, and
to serve two-thirds within ten years of being licensed. The Commission
will also consider waivers or modification of these rules based on
demonstrations that the spectrum is being used efficiently, not
warehoused or stockpiled.
Regulatory Status
51. The Communications Act and Commission rules often apply
differing requirements based on the type of service and the regulatory
status of licensees. The new GWCS category for the 4660-4685 band would
allow licensees to provide a variety or combination of Fixed and Mobile
services. Under this service, both Fixed and Mobile applications would
be permitted and an individual licensee could provide a number of Fixed
and Mobile services. In the Second NPRM, the Commission observed that
it may be difficult to determine the regulatory status of GWCS
licensees. The Commission proposed to rely on applicants to identify
specifically the type of service or services they intend to provide,
and require them to include sufficient detail to enable the Commission
to determine if the service will be Fixed or Mobile, and whether it
will be offered as a commercial mobile radio service, a private mobile
radio service, a common carrier Fixed service, or a private Fixed
service. Comment was requested on the most efficient manner in which to
administer the requirements of the Communications Act and the
Commission's Rules, and grant licensees as much operational flexibility
as possible. The Commission also solicited comments on whether to
develop a new application long form for this general allocation or
require an applicant to be responsible for filing the appropriate
license application based upon the nature of the service designated by
the applicant. Commenters were asked to address whether it is necessary
for the Commission to require licensees to notify the Commission if
they change the type of service offered using some or all of their
licensed spectrum even though the new use would be permissible under
the Commission's rules.
52. The Commission adopts the proposed approach of relying on
applicants to identify the type of GWCS service or services each will
provide, with sufficient detail to enable the Commission to determine
the applicant's regulatory status. The proposed added step would
usually be unnecessary and would tend to delay the offering of new
services. The Commission believes that it would be in the public
interest to develop an application form for the new service. To clarify
and simplify the regulatory status of licensees, the Commission also
adopts a presumption that GWCS licenses are providing fixed common
carrier services, which appears from the record to be the most likely
and common use of this spectrum. This presumption may be rebutted by an
appropriate showing. The Commission delegates to the Wireless
Telecommunications Bureau authority to develop forms appropriate to
collect this data, and to monitor changes in licensee status.
Licensing Issues
53. The Second NPRM requested comment on whether the Commission is
required or should find that it is in the public interest to adopt
additional licensing rules in order to comply with the statutory
requirement that we adopt assignment rules before August 10, 1995. The
Commission finds it unnecessary at present to adopt additional license
rules for GWCS. The Commission will follow the statutory provisions of
Section 309(d) for public notice and other requirements. With respect
to other licensing issues, the Commission will consider whether any
additional rules are necessary, and what form those rules should take,
after we have proceeded with the application and licensing process. The
Commission should at that time have a more detailed understanding of
the services licensees intend to provide and their regulatory status.
Final Regulatory Flexibility Analysis
54. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
605, it is certified that this decision will have an impact on small
entities interested in operating on the 4660-4685 MHz band. As detailed
in the full text of the Second Report and Order, the Commission has
attempted, wherever possible within the statutory constraints, to
establish regulations which, to the extent possible, minimize the
burdens on such small businesses while providing maximum flexibility.
The full text of the Commission's final regulatory flexibility analysis
may be found in paragraph ____ of the full text of this decision.
Ordering Clauses
55. Accordingly, IT IS ORDERED that Part 26 of the Commission's
Rules is added as set forth below. This action is taken pursuant to
Sections 4(i) and 303(r) of the Communications Act of 1934, as amended,
47 U.S.C. Secs. 154(i) and 303(r).
56. IT IS FURTHER ORDERED that the rule changes made herein WILL
BECOME EFFECTIVE at the time of their publication in the Federal
Register.\10\
\10\ This Order is adopted pursuant to a statutory requirement
that the Commission, by August 9, 1995, allocate and establish
licensing rules for 50 megahertz of spectrum that was transferred
from Federal Government to private sector use, as required by the
Budget Act. Thus, there is good cause to order the rule changes
publication. See 5 U.S.C. Sec. 553(d)(3).
---------------------------------------------------------------------------
List of Subjects
47 CFR Part 1
Telecommunications.
47 CFR Part 26
General wireless communications service.
Federal Communications Commission.
William F. Canton,
Acting Secretary.
Rule Changes
Part 1 of Title 47 of the Code of Federal Regulations is amended as
follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for Part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise
noted.
2. New paragraph (a)(8) is added to Section 1.2102 to read as
follows:
Sec. 1.2102 Eligibility of applications for competitive bidding.
(a) * * *
(8) General Wireless Communications Service (GWCS) (see Part 26 of
this chapter).
* * * * *
Part 26 of Chapter I of Title 47 of the Code of Federal Regulations
is added to read as follows:
[[Page 40719]]
PART 26--GENERAL WIRELESS COMMUNICATIONS SERVICE
Subpart A--General Information
Sec.
26.1 Basis and purpose.
26.2 Other applicable rule parts.
26.3 Permissible communications.
26.4 Terms and definitions.
Subpart B--Applications and Licenses
26.11 Initial authorization.
26.12 Eligibility.
26.13 License period.
26.14 Criteria for comparative renewal proceedings.
Subpart C--Technical Standards
26.51 Equipment authorization.
26.52 RF hazards.
26.53 Emission limits.
26.54 Frequency stability.
26.55 Field strength limits.
Subpart D--Miscellaneous
26.101 Multiple ownership restrictions.
26.102 Service areas.
26.103 Frequencies.
26.104 Construction requirements.
Subpart E--Competitive Bidding Procedures for GWCS
26.201 GWCS subject to competitive bidding.
26.202 Competitive bidding design for GWCS licensing.
26.203 Competitive bidding mechanisms.
26.204 Withdrawal, default and disqualification penalties.
26.205 Bidding application (FCC Form 175 and 175-S Short-Form.
26.206 Submission of upfront payments and down payments.
26.207 Long form applications.
26.208 License grant, denial, default, and disqualification.
26.209 Eligibility for partitioned licenses.
26.210 Provisions for small businesses.
Subpart F--Application, Licensing, and Processing Rules for GWCS
26.301 Authorization required.
26.302 Eligibility.
26.303 Formal and informal applications.
26.304 Filing of GWCS applications, fees, and numbers of copies.
26.305 Standard application forms and permissive changes or minor
modifications for the General Wireless Communications Service.
26.306 Miscellaneous forms.
26.307 General application requirements.
26.308 Technical content of applications; maintenance of list of
station locations.
26.309 Station antenna structures.
26.310 Waiver of rules.
26.311 Defective applications.
26.312 Inconsistent or conflicting applications.
26.313 Amendment of application for General Wireless Communications
Service filed on FCC Form 175.
26.314 Amendment of applications for General Wireless
Communications Service (other than applications filed on FCC Form
175).
26.315 Application for temporary authorizations.
26.316 Receipt of application; applications in the General Wireless
Communications Service filed on FCC Form 175 and other applications
in the GWCS.
26.317 Public notice period.
26.318 Dismissal and return of applications.
26.319 Ownership changes and agreements to amend or to dismiss
applications or pleadings.
26.320 Opposition to applications.
26.321 Mutually exclusive applications.
26.322 Consideration of applications.
26.323 Post-auction divestitures.
26.324 Transfer of control or assignment of station authorization.
26.325 Extension of time to complete construction.
26.326 Termination of authorization.
Authority: 47 U.S.C. Sections 154, 301, 302, 303, 309 and 332,
unless otherwise noted.
Subpart A--General Information
Sec. 26.1 Basis and purpose.
This section contains the statutory basis for this part of the
rules and provides the purpose for which this part is issued.
(a) Basis. The rules for the general wireless communications
service (GWCS) in this part are promulgated under the provisions of the
Communications Act of 1934, as amended, that vests authority in the
Federal Communications Commission to regulate radio transmission and to
issue licenses for stations.
(b) Purpose. This part states the conditions under which portions
of the radio spectrum are made available and licensed for GWCS.
(c) Scope. The rules in this part apply only to stations authorized
under this part.
Sec. 26.2 Other applicable rule parts.
Other FCC rule parts applicable to licensees in the general
wireless communications service include the following:
(a) Part 0. This part describes the Commission's organization and
delegations of authority. Part 0 of this chapter also lists available
Commission publications, standards and procedures for access to
Commission records, and location of Commission Field Offices.
(b) Part 1. This part includes rules of practice and procedure for
license applications, adjudicatory proceedings, procedures for
reconsideration and review of the Commission's actions; provisions
concerning violation notices and forfeiture proceedings; and the
environmental requirements that, if applicable, must be complied with
prior to the initiation of construction.
(c) Part 2. This part contains the Table of Frequency Allocations
and special requirements in international regulations, recommendations,
agreements, treaties. This part also contains standards and procedures
concerning the marketing and importation of radio frequency devices,
and for obtaining equipment authorization.
(d) Part 5. This part contains rules prescribing the manner in
which parts of the radio frequency spectrum may be made available for
experimentation.
(e) Part 17. This part contains requirements for construction,
marking and lighting of antenna towers.
(f) Part 68. This part contains technical standards for connection
of terminal equipment to the telephone network.
Sec. 26.3 Permissible communications.
GWCS licensees may provide any fixed or mobile communications
service on their assigned spectrum. Broadcasting services,
Radiolocation services and satellite services as defined in Sec. 2.1 of
this chapter are prohibited.
Sec. 26.4 Terms and definitions.
Assigned frequency. The center of the frequency band assigned to a
station.
Authorized bandwidth. The maximum width of the band of frequencies
permitted to be used by a station. This is normally considered to be
the necessary or occupied bandwidth, whichever is greater.
Average terrain. The average elevation of terrain between 3 and 16
kilometers from the antenna site.
Effective radiated power (e.r.p.) (in a given direction). The
product of the power supplied to the antenna and its gain relative to a
half-wave dipole in a given direction.
Equivalent isotropically radiated power (e.i.r.p.). The product of
the power supplied to the antenna and the antenna gain in a given
direction relative to an isotropic antenna.
Fixed service. A radio communication service between specified
fixed points.
Fixed station. A station in the fixed service.
Gross revenues. Gross revenues shall mean all income received by an
entity, whether earned or passive, before any deductions are made for
costs of doing business (e.g. cost of goods sold), as evidenced by
audited financial statements for the relevant number of calendar years
preceding January 1, 1994, or, if audited financial statements were not
prepared on a calendar-year basis, for the most recently completed
fiscal years preceding the filing of the applicant's short-form
application (Form 175). For applications filed after December 31, 1995,
gross revenues shall
[[Page 40720]]
be evidenced by audited financial statements for the preceding relevant
number of calendar or fiscal years. If an entity was not in existence
for all or part of the relevant period, gross revenues shall be
evidenced by the audited financial statements of the entity's
predecessor-in-interest or, if there is no identifiable predecessor-in-
interest, unaudited financial statements certified by the applicant as
accurate.
Land mobile service. A mobile service between base stations and
land mobile stations, or between land mobile stations.
Land mobile station. A mobile station in the land mobile service
capable of surface movement within the geographic limits of a country
or continent.
Land station. A station in the mobile service not intended to be
used while in motion.
Mobile service. A radio communication service between mobile and
land stations, or between mobile stations.
Mobile station. A station in the mobile service intended to be used
while in motion or during halts at unspecified points.
National Geodetic Reference System (NGRS): The name given to all
geodetic control data contained in the National Geodetic Survey (NGS)
data base. (Source: National Geodetic Survey, U.S. Department of
Commerce)
Rural telephone company. A rural telephone company is a local
exchange carrier having 100,000 or fewer access lines, including all
affiliates.
Small business: consortium of small businesses.
(1) A small business is an entity that, together with its
affiliates and persons or entities that hold interest in such entity
and their affiliates, has average annual gross revenues that are not
more than $40 million for the preceding three years.
(2) A small business consortium is a conglomerate organization
formed as a joint venture between or among mutually-independent
business firms, each of which individually satisfies the definition of
a small business.
Total assets. Total assets shall mean the book value (except where
generally accepted accounting principles (GAAP) require market
valuation) of all property owned by an entity, whether real or
personal, tangible or intangible, as evidenced by the most recent
audited financial statements.
Subpart B--Applications and Licenses
Sec. 26.11 Initial authorization.
(a) An applicant must file an application for an initial
authorization in each market and frequency block desired.
(b) Blanket licenses are granted for each market and frequency
block. Applications for individual sites are not required and will not
be accepted.
Sec. 26.12 Eligibility.
Any entity, other than those precluded by section 310 of the
Communications Act of 1934, as amended, 47 U.S.C. Sec. 310, is eligible
to hold a license under this part.
Sec. 26.13 License period.
Licenses for service areas will be granted for ten year terms from
the date of original issuance or renewal.
Sec. 26.14 Criteria for comparative renewal proceedings.
A renewal applicant involved in a comparative renewal proceeding
shall receive a preference, commonly referred to as a renewal
expectancy, which is the most important comparative factor to be
considered in the proceeding, if its past record for the relevant
license period demonstrates that the renewal applicant:
(a) Has provided ``substantial'' service during its past license
term. ``Substantial'' service is defined as service which is sound,
favorable, and substantially above a level of mediocre service which
might just minimally warrant renewal; and
(b) Has substantially complied with applicable Commission rules,
policies and the Communications Act.
Subpart C--Technical Standards
Sec. 26.51 Equipment authorization.
(a) Each transmitter utilized for operation under this part and
each transmitter marketed, as set forth in Sec. 2.803 of this chapter,
must be of a type that has been authorized by the Commission under its
type acceptance procedure.
(b) The Commission periodically publishes a list of type accepted
equipment, entitled ``Radio Equipment List, Equipment Accepted for
Licensing.'' Copies of this list are available for public reference at
the Commission's offices in Washington, D.C., at each of its field
offices, and may be ordered from its copy contractor.
(c) Any manufacturer of radio transmitting equipment to be used in
these services may request equipment authorization following the
procedures set forth in Subpart J of part 2 of this chapter. Equipment
authorization for an individual transmitter may be requested by an
applicant for a station authorization by following the procedures set
forth in part 2 of this chapter. Such equipment if approved or accepted
will not normally be included in the Commission's Radio Equipment List
but will be individually enumerated on the station authorization.
(d) Applicants for type acceptance of transmitters that operate in
these services must determine that the equipment complies with IEEE
C95.1-1991, (ANSI/IEEE C95.1-1991), ``IEEE Standards for Safety Levels
with Respect to Human Exposure to Radio Frequency Electromagnetic
Fields, 3 kHz to 300 GHz'' as measured using methods specified in IEEE
C95.3-1991, (ANSI/IEEE C95.3-1991), ``Recommended Practice for the
Measurement of Potentially Hazardous Electromagnetic Fields--RF and
Microwave.'' The applicant for type acceptance is required to submit a
statement affirming that the equipment complies with these standards as
measured by an approved method and to maintain a record showing the
basis for the statement of compliance with IEEE C.95.1-1991. (See
Sec. 26.52 for availability of IEEE standards.)
Sec. 26.52 RF hazards.
(a) Licensees and manufacturers are required to ensure that their
facilities and equipment comply with IEEE C95.1-1991. Measurement
methods are specified in IEEE C95.3-1991. Copies of these standards are
available from IEEE Standards Board, 445 Hoes Lane, P.O. Box 1331,
Piscataway, NJ 08855-1331. Telephone: 1-800-678-4333. The limits for
both ``controlled'' and ``uncontrolled'' environments, as defined by
IEEE C95.1-1991, will apply to all GWCS base and mobile stations, as
appropriate. The application for equipment authorization must contain a
statement confirming compliance with IEEE C95.1-1991. Technical
information showing the basis for this statement must be submitted to
the Commission upon request.
(b) GWCS hand-held devices whose maximum radiated power is 100
milliwatts or less are not required to be evaluated for compliance with
ANSI/IEEE SAR (specific absorption rate) requirements, as long as 2.5
cm separation distance is maintained between the radiating structure
and the body of the user. (The ANSI/IEEE standard uses the term
``radiated power,'' meaning input power to the antenna.)
(c) For further information on the Commission's environmental rules
see Secs. 1.1301 through 1.1319 of this chapter.
[[Page 40721]]
Sec. 26.53 Emission limits.
(a) The power of any emission at the edges of the 4660-4685 MHz
band shall be attenuated below the transmitter power (P) by at least 43
+ 10 log10(P) or 80 decibels, whichever is less.
(b) Compliance with these provisions is based on the use of
measurement instrumentation employing a resolution bandwidth of 1 MHz
or greater. However, in the 1 MHz bands immediately outside and
adjacent to the frequency block a resolution bandwidth of at least one
percent of the emission bandwidth of the fundamental emission of the
transmitter may be employed. The emission bandwidth is defined as the
width of the signal between two points, one below the carrier center
frequency and one above the carrier center frequency, outside of which
all emission are attenuated at least 26 dB below the transmitter power.
(c) When measuring the emission limits, the nominal carrier
frequency shall be adjusted as close to the license's frequency block
edges, both upper and lower, as the design permits.
(d) The measurements of emission power can be expressed in peak or
average values, provided that they are expressed in the same parameters
as the transmission power.
(e) When an emission outside of the authorized bandwidth causes
harmful interference, the Commission may, at its discretion, require
greater attenuation than specified in this section.
Sec. 26.54 Frequency stability.
The frequency stability shall be sufficient to ensure that the
fundamental emission stays within the authorized frequency block.
Sec. 26.55 Field strength limits.
The predicted or measured median field strength at any location on
the border of the GWCS service area shall not exceed 55 dBu unless
licensees operating in adjacent areas agree to higher field strength
along their mutual borders.
Subpart D--Miscellaneous
Sec. 26.101 Multiple ownership restrictions.
(a) GWCS licensees shall not have an ownership interest in more
than three of the five, 5 megahertz wide channels available in any
geographic area. For purposes of this restriction, a GWCS licensee is:
(1) Any institutional investor, as defined in Sec. 26.4, with an
ownership interest of ten or more percent in a GWCS license; and
(2) Any other person or entity with an ownership interest of five
or more percent in a GWCS license.
(b) In cases where a party had indirect ownership, through an
interest in an intervening entity (or entities) that has ownership in
the GWCS license, that indirect ownership shall be attributable if the
percentages of ownership at each level, multiplied together, equal five
or more percent ownership of the GWCS license, except that if the
ownership percentage for an interest in any link in the chain exceeds
50 percent or represents actual control, it shall be treated as if it
were a 100 percent interest.
Example. Party X has a non-controlling ownership interest of 25
percent in Company Y, which in turn has a non-controlling ownership
interest of 10 percent in Company Z, the GWCS licensee. Party X's
effective ownership interest in Company Z is Party X's ownership
interest in Company Y (25 percent) times Company Y's ownership
interest in Company Z (10 percent). Therefore, Party X's effective
ownership interest in Company Z is 2.5 percent, and is not
attributable.
(c) Notwithstanding paragraph (b) of this section, the following
interests shall not constitute attributable ownership interests for
purposes of paragraph (a) of this section.
(1) A limited partnership interest held by an institutional
investor (as defined Sec. 26.4) where the limited partner is not
materially involved, directly or indirectly, in the management or
operation of the GWCS holdings of the partnership, and the licensee so
certifies. The criteria which would assure adequate insulation for the
purposes of this certification require:
(i) Prohibiting limited partners from acting as employees of the
limited partnership if responsibilities relate to the carrier
activities of the licensee;
(ii) Barring the limited partners from serving as independent
contractors;
(iii) Restricting communication among limited partners and the
general partner regarding day-to-day activities of the licensee;
(iv) Empowering the general partner to veto admissions of new
general partners;
(v) Restricting the circumstances in which the limited partners can
remove the general partner;
(vi) Prohibiting the limited partners from providing services to
the partnership relating to the GWCS holdings of the licensee; and
(vii) Stating that the limited partners may not become involved in
the management or operation of the licensee.
Sec. 26.102 Service areas.
GWCS service areas are based on Economic Areas developed by the
Bureau of Economic Analysis, Department of Commerce, referred to as
``EAs'' and three additional EA-like service areas: Guam and the
Northern Mariana Islands (combined as one service area), Puerto Rico
and the United States Virgin Islands (combined as one service area),
and American Samoa.
(a) Economic Areas. Codes from 001 to 172 are assigned to the EAs
in approximate geographic order, beginning with 001 in northern Maine,
continuing south to Florida, then north to the Great Lakes, and
continuing in a serpentine pattern to the West Coast. Except for the
Western Oklahoma EA (126), the Northern Michigan EA (058), and the 17
EAs that mainly correspond to consolidated metropolitan statistical
areas (CMSAs), each EA is named for the metropolitan area or city that
is the node of its largest component economic area (CEA) and that is
usually, but not always, the largest metropolitan area or city in the
EA. Each CEA consists of a single economic node and the surrounding
counties that are economically related to the node. The following list
provides EA codes and names.
Code and Name
001 Bangor, ME
002 Portland, ME
003 Boston-Worcester-Lawrence-Lowell-Brockton, MA-NH
004 Burlington, VT
005 Albany-Schenectady-Troy, NY
006 Syracuse, NY
007 Rochester, NY
008 Buffalo-Niagara Falls, NY
009 State College, PA
010 New York-No. New Jersey-Long Island, NY-NJ-CT-PA
011 Harrisburg-Lebanon-Carlisle, PA
012 Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD
013 Washington-Baltimore, DC-MD-VA-WV
014 Salisbury, MD
015 Richmond-Petersburg, VA
016 Staunton, VA
017 Roanoke, VA
018 Greensboro-Winston-Salem-High Point, NC
019 Raleigh-Durham-Chapel Hill, NC
020 Norfolk-Virginia Beach-Newport News, VA-NC
021 Greensville, NC
022 Fayettesville, NC
023 Charlotte-Gastonia-Rock Hill, NC-SC
024 Columbia, SC
025 Wilmington, NC
026 Charleston-North Charleston, SC
027 Augusta-Aiken, GA-SC
028 Savannah, GA
029 Jacksonville, FL
[[Page 40722]]
030 Orlando, FL
031 Miami-Fort Lauderdale, FL
032 Fort Myers-Cape Coral, FL
033 Sarasota-Bradenton, FL
034 Tampa-St. Petersburg-Clearwater, FL
035 Tallahassee, FA
036 Dothan, AL
037 Albany, GA
038 Macon, GA
039 Columbus, GA-AL
040 Atlanta, GA
041 Greenville-Spartanburg-Anderson, SC
042 Asheville, NC
043 Chattanooga, TN-GA
044 Knoxville, TN
045 Johnson City-Kingsport-Bristol, TN-VA
046 Hickory-Morganton, NC
047 Lexington, KY
048 Charleston, WV
049 Cincinnati-Hamilton, OH-KY-IN
050 Dayton-Springfield, OH
051 Columbus, OH
052 Wheeling, WV-OH
053 Pittsburgh, PA
054 Erie, PA
055 Cleveland-Akron, OH
056 Toledo, OH
057 Detroit-Ann Arbor-Flint, MI
058 Northern Michigan, MI
059 Green Bay, WI
060 Appleton-Oshkosh-Neenah, WI
061 Traverse City, MI
062 Grand Rapids-Muskegon-Holland, MI
063 Milwaukee-Racine, WI
064 Chicago-Gary-Kenosha, IL-IN-WI
065 Elkhart-Goshen, IN
066 Fort Wayne, IN
067 Indianapolis, IN
068 Champaign-Urbana, IL
069 Evansville-Henderson, IN-KY
070 Louisville, KY-IN
071 Nashville, TN
072 Paducah, KY
073 Memphis, TN-AR-MS
074 Huntsville, AL
075 Tupelo, MS
076 Greenville, MS
077 Jackson, MS
078 Birmingham, AL
079 Montgomery, AL
080 Mobile, AL
081 Pensacola, FL
082 Biloxi-Gulfport-Pascagoula, MS
083 New Orleans, LA
084 Baton Rouge, LA
085 Lafayette, LA
086 Lake Charles, LA
087 Beaumont-Port Arthur, TX
088 Shreveport-Bossier City, LA
089 Monroe, LA
090 Little Rock-North Little Rock, AR
091 Fort Smith, AR-OK
092 Fayetteville-Springdale-Rogers, AR
093 Joplin, MO
094 Springfield, MO
095 Jonesboro, AR
096 St. Louis, MO-IL
097 Springfield, IL
098 Columbia, MO
099 Kansas City, MO-KS
100 Des Moines, IA
101 Peoria-Pekin, IL
102 Davenport-Moline-Rock Island, IA-IL
103 Cedar Rapids, IA
104 Madison, WI
105 La Crosse, WI-MN
106 Rochester, MN
107 Minneapolis-St. Paul, MN-WI
108 Wausau, WI
109 Duluth-Superior, MN-WI
110 Grand Forks, ND-MN
111 Minot, ND
112 Bismarck, ND
113 Fargo-Moorhead, ND-MN
114 Aberdeen, SD
115 Rapid City, SD
116 Sioux Falls, SD
117 Sioux City, IA-NE
118 Omaha, NE-IA
119 Lincoln, NE
120 Grand Island, NE
121 North Platte, NE
122 Wichita, KS
123 Topeka, KS
124 Tulsa, OK
125 Oklahoma City, OK
126 Western Oklahoma, OK
127 Dallas-Fort Worth, TX
128 Abilene, TX
129 San Angelo, TX
130 Austin-San Marcos, TX
131 Houston-Galveston-Brazoria, TX
132 Corpus Christi, TX
133 McAllen-Edinburg-Mission, TX
134 San Antonio, TX
135 Odessa-Midland, TX
136 Hobbs, NM
137 Lubbock, TX
138 Amarillo, TX
139 Santa Fe, NM
140 Pueblo, CO
141 Denver-Boulder-Greeley, CO
142 Scottsbluff, NE
143 Casper, WY
144 Billings, MT
145 Great Fallas, MT
146 Missoula, MT
147 Spokane, WA
148 Idaho Falls, ID
149 Twin Falls, ID
150 Boise City, ID
151 Reno, NV
152 Salt Lake City-Ogden, UT
153 Las Vegas, NV-AZ
154 Flagstaff, AZ
155 Farmington, NM
156 Albuquerque, NM
157 El Paso, TX
158 Phoenix-Mesa, AZ
159 Tucson, AZ
160 Los Angeles-Riverside-Orange County, CA
161 San Diego, CA
162 Fresno, CA
163 San Francisco-Oakland-San Jose, CA
164 Sacramento-Yolo, CA
165 Redding, CA
166 Eugene-Springfield, OR
167 Portland-Salem, OR-WA
168 Pendleton, OR
169 Richland-Kennewick-Pasco, WA
170 Seattle-Tacoma-Bremerton, WA
171 Anchorage, AK
172 Honolulu, HI
(b) Other eligible areas not included in the Bureau of Economic
Analysis's list of EAs include: Guam and the Northern Mariana Islands,
Puerto Rico and United States Virgin Islands, and American Samoa.
Sec. 26.103 Frequencies.
The following frequencies are available for GWCS in the Economic
Areas and other areas described in Sec. 26.102 as shown below.
Channel Block and Frequency Band
Block A: 4660-4665 MHz
Block B: 4665-4670 MHz
Block C: 4670-4675 MHz
Block D: 4675-4680 MHz
Block E: 4680-4685 MHz
Sec. 26.104 Construction requirements.
(a) GWCS licensees shall within five years of initial license grant
date offer service to one-third of the population in the area in which
they are licensed. Licensees shall serve two-thirds of the population
in the area in which they are licensed within ten years of initial
license grant date.
(b) In demonstrating compliance with the above construction
requirements, licensees must base their calculations on signal field
strengths that ensure reliable service for the technology utilized.
Licensees may use any service radius contour formula developed or
generally used by industry, provided that such formula is based on the
technical characteristics of their system.
(c) Upon meeting the five and ten year benchmarks in paragraph (a)
of this section, licensees shall file a map and other supporting
documentation that demonstrates compliance with the geographic area or
population coverage requirement. Licensees shall file a statement
indicating commencement of service. The filing must be received at the
Commission on or before expiration of the relevant period.
(d) If the sale of a license is approved, the new licensee is held
to the original build-out requirement.
(e) Failure by a licensee to meet the above construction
requirements may result in forfeiture of the license and ineligibility
to regain it.
[[Page 40723]]
Note to Sec. 26.104: Population-based construction requirements
contained in this section shall be based on the 1990 census.
Subpart E--Competitive Bidding Procedures for GWCS
Sec. 26.201 GWCS subject to competitive bidding.
Mutually exclusive initial applications to provide GWCS service are
subject to competitive bidding procedures. The general competitive
bidding procedures found in 47 CFR Part 1, Subpart Q, will apply unless
otherwise provided in this part.
Sec. 26.202 Competitive bidding design for GWCS licensing.
(a) The Commission will employ the following competitive bidding
designs when choosing from among mutually exclusive initial
applications to provide GWCS service:
(1) Simultaneous multiple round actions
(2) Sequential oral auctions
(b) The Commission may design and test alternative procedures. The
Commission will announce by Public Notice before each auction the
competitive bidding design to be employed in a particular auction.
(c) The Commission may use single combined auctions, which combine
bidding for two or more substitutable licenses and award licenses to
the highest bidders until the available licenses are exhausted. This
technique may be used in conjunction with any type of auction.
Sec. 26.203 Competitive bidding mechanisms.
(a) Sequencing. The Commission will establish and may vary the
sequence in which GWCS licenses will be auctioned.
(b) Reservation price. The Commission may establish a reservation
price, either disclosed or undisclosed, below which a license subject
to auction will not be awarded.
(c) Minimum bid increments. The Commission may, by announcement
before or during an auction, require minimum bid increments in dollar
or percentage terms. The Commission may also establish by Public Notice
a suggested opening bid or a minimum opening bid on each license.
(d) Stopping rules. The Commission may establish stopping rules
before or during multiple round auctions in order to terminate an
auction within a reasonable time.
(e) Activity rules. The Commission may establish activity rules
which require a minimum amount of bidding activity. In the event that
the Commission establishes an activity rule in connection with a
simultaneous multiple round auction, each bidder will be entitled to
request and will be automatically granted one activity rule waiver
during each stage of an auction, or one automatic waiver during a
specified number of bidding rounds. The Commission may change by Public
Notice the number and frequency of such automatic activity rule waivers
for a specific auction.
(f) Bidder identification during auctions. The Commission may
choose, on an auction-by-auction basis, to release the identity of the
bidders associated with bidder identification numbers. The Commission
will announce by Public Notice before each auction whether bidder
identities will be revealed.
(g) Nationwide bidders. Bidders seeking to aggregate EA-based GWCS
licenses into nationwide licenses are required to declare the number of
nationwide aggregations for which they will bid and to be active in
every round of bidding on sufficient licenses to create the number of
declared aggregations.
Sec. 26.204 Withdrawal, default and disqualification penalties.
(a) When the Commission conducts a simultaneous multiple round
auction pursuant to Sec. 26.202(a)(1), the Commission will impose
penalties on bidders who withdraw high bids during the course of an
auction, or who default on payments due after an auction closes or who
are disqualified.
(1) Bid withdrawal prior to close of auction. A bidder who
withdraws a high bid during the course of an auction will be subject to
a penalty equal to the difference between the amount bid and the amount
of the winning bid the next time the license is offered by the
Commission. No withdrawal penalty would be assessed if the subsequent
winning bid exceeds the withdrawn bid. This penalty amount will be
deducted from any upfront payments or down payments that the
withdrawing bidder has deposited with the Commission. The withdrawal
penalty for a nationwide bidder for each aggregation is limited to 5
percent of the aggregate withdrawn bids. The withdrawal penalty for a
nationwide bidder is calculated between the sum of the withdrawn bids
and the sum of the subsequent high bids on the withdrawn licenses.
(2) Default or disqualification after close of auction. If a high
bidder defaults or is disqualified after the close of such an auction,
the defaulting bidder will be subject to the penalty in paragraph
(a)(1) of this section plus an additional penalty equal to three (3)
percent of the subsequent winning bid. If the subsequent winning bid.
If the subsequent winning bid exceeds the defaulting bidder's bid
amount, the 3 percent penalty will be calculated based on the
defaulting bidder's bid amount. These amounts will be deducted from any
upfront payments or down payments that the defaulting or disqualified
bidder has deposited with the Commission.
(b) When the Commission conducts sequential oral auctions, the
Commission may modify the penalties to be paid in the event of bid
withdrawal, default disqualification; provided, however, that such
penalties shall not exceed the penalties specified above.
(c) In the case of single round bidding for GWCS licenses:
(1) If a bid is withdrawn before the Commission releases the
initial Public Notice announcing the winning bidder(s), no bid
withdrawal penalty will be assessed.
(2) If a bid is withdrawn after the Commission releases the initial
Public Notice announcing the winning bidder(s), the bid withdrawal
penalty will be equal to the difference between the high bid amount and
the amount of the next highest valid bid. A bid will be considered
valid for this purpose if the bidder has not already been designated
the winning bidder on more licenses than it is permitted to be awarded.
Losing bidders will only be subject to this bid withdrawal penalty for
a period of 30 days after the Commission releases the initial Public
Notice announcing the winning bidders.
(d) In the case of oral sequential bidding for GWCS licenses:
(1) If a bid is withdrawn before the Commission has declared the
bidding to be closed for the license bid on, no bid withdrawal penalty
will be assessed.
(2) If a bid is withdrawn after the Commission has declared the
bidding to be closed for the license bid on, the bid withdrawal penalty
of Sec. 1.2104(g) of this chapter and paragraphs (a)(1) and (a)(2) of
this section will apply.
Sec. 26.205 Bidding application (FCC) Form 175 and 175-S Short-Form).
All applicants for initial provision of GWCS service must submit
applications on FCC Forms 175 and 175-S pursuant to the procedures set
forth in Sec. 1.2105 of this chapter. The Commission will issue a
Public Notice announcing the date of a GWCS auction, the licenses which
are to be auctioned, and the date on or before which applicants
intending to participate in an upcoming GWCS auction must file their
applications in order to be eligible for that auction. The
[[Page 40724]]
Public Notice will also contain information necessary for completion of
the application as well as other important information such as the
materials which must accompany the Forms, any filing fee that must
accompany the application or any upfront payment that will need to be
submitted, and the location where the application must be filed.
Sec. 26.206 Submission of upfront payments and down payments.
(a) Where the Commission uses simultaneous multiple round auctions
or oral sequential auctions bidders will be required to submit an
upfront payment pursuant to the procedures set forth in Sec. 1.2106 of
this chapter.
(b) Winning bidders in an auction must submit a down payment to the
Commission in accordance with the procedures set forth in Sec. 1.2107
(a) and (b) of this chapter.
(c) Notwithstanding paragraphs (a) and (b) of this section,
eligible small businesses may submit a down payment of 5 percent of the
winning bid five days after the auction closes and 5 percent five days
after public notice that the license is ready for grant.
Sec. 26.207 Long form applications.
Winning bidders will be required to submit long form applications
on FCC form XXX, as modified, within ten (10) business days after being
notified that they are the winning bidder. Applications on FCC Form XXX
shall be submitted pursuant to the procedures set forth in subpart G of
this part and Sec. 1.2107 (c) and (d) of this chapter and any
associated Public Notices. Only auction winners will be eligible to
file applications on FCC Form XXX for initial GWCS licenses in the
event of mutual exclusivity between applicants filing Form 175. Winning
bidders need not complete Schedule B to Form XXX.
Sec. 26.208 License grant, denial, default, and disqualification.
(a) Unless eligible for installment payments and/or a bidding
credit, each winning bidder is required to pay the balance of its
winning bid in a lump sum payment within five (5) business days
following the award of the license. Grant of the license will be
conditioned upon full and timely payment of the winning bid amount.
(b) A bidder who withdraws its bid, defaults on a payment or is
disqualified will be subject to the penalties specified in Sec. 1.2109
of this Chapter.
(c) An eligible small business may elect to pay its winning bid,
less up-front payments, over the terms of the license. Interest charges
are fixed at the time of licensing at the rate equal to U.S. Treasury
obligation plus 2.5 percent. Installment payments are due quarterly on
the anniversary of the day the license was granted, except that
interest-only installment payments are permitted during the first two
years of the license.
Sec. 26.209 Eligibility for partitioned licenses.
(a) Notwithstanding Sec. 26.102, an applicant that is a rural
telephone company, as defined in Sec. 26.4, may be granted a GWCS
license that is geographically partitioned from a separately licensed
EA, so long as the EA applicant or licensee has voluntarily agreed (in
writing) to partition a portion of the license to the rural telephone
company.
(b) If partitioned licenses are being applied for in conjunction
with a license(s) to be awarded through competitive biding procedures--
(1) The applicable procedures for filing short-form applications
and for submitting upfront payments and down payments contained in this
part and Part 1 of this chapter shall be followed by the applicant, who
must disclose as part of its short-form application all parties to
agreement(s) with or among rural telephone companies to partition the
license pursuant to this section, if won at auction (see
Sec. 1.2105(a)(2)(viii));
(2) Each rural telephone company that is a party to an agreement to
partition the license shall file a long-form application for its
respective, mutually agreed-upon geographic area together with the
application for the remainder of the EA filed by the auction winner.
(c) If the partitioned license is being applied for as a partial
assignment of the EA license following grant of the initial license,
request for authorization for partial assignment of a license shall be
made pursuant to Sec. 26.324.
(d) Each application for a partitioned area (long-form initial
application or partial assignment application) shall contain a
partitioning plan that must propose to establish a partitioned area to
be licensed that meets the following criteria:
(1) Conforms to established geopolitical boundaries (such as county
lines);
(2) Includes the wireline service area of the rural telephone
company applicant; and
(3) Is reasonably related to the rural telephone company's wireline
service area.
Note to paragraph (d)(3): A partitioned service area will be
presumed to be reasonably related to the rural telephone company's
wireline service area if the partitioned service area contains no
more than twice the population overlap between the rural telephone
company's wireline service area and the partitioned area.
(e) Each licensee in each partitioned area will be responsible for
meeting the construction requirements in its area (see Sec. 26.104).
Sec. 26.210 Provisions for small businesses.
(a) Bidding credits. A winning bidder that qualifies as a small
business or a consortium of small businesses may use a bidding credit
of ten percent to lower the cost of its winning bid.
(b) Installment payments. A winning bidder that qualifies as a
small business may pay its winning bid amount (less upfront payments)
in installments over the ten year term of the license, with interest
charges to be fixed at the time of licensing at a rate equal to the
rate for ten year U.S. Treasury obligations plus 2.5 percent.
Installment payments are due quarterly on the anniversary of the day
the license is granted. Failure to make timely installment payments may
result in revocation of the license. Small businesses are permitted to
make interest-only installment payments during the first two years of
the license.
(c) Down payments. A winning bidder that qualifies as a small
business is permitted to make a down payment equal to 5 percent of the
winning bid due five days after the auction closes with the remaining 5
percent down payment dues five days after Public Notice that the
license is ready for grant.
(d) Unjust enrichment. If a licensee that utilizes a bidding credit
under this section seeks to assign or transfer control of its license
to an entity not meeting the eligibility standards for bidding credits
or seeks to make any other change in ownership that would result in the
licensee no longer qualifying for bidding credits under this section,
the licensee must seek Commission approval and reimburse the government
for the amount of the bidding credit, plus interest at the rate imposed
for installment financing at the time the license was awarded as a
condition of the approval of such assignment, transfer or other
ownership change. The amount of the payment would be reduced over time
so that a transfer in the first two years of the license would result
in a payment of 100 percent of the value of the bidding credit; in year
three of the license term the payment would be 75 percent; in year four
the payment would be 50 percent and in year five the payment would be
25 percent, after which there would be no payment. Transfer of control
or assignment of station license is also subject to provisions of
Sec. 1.2111 of this chapter.
[[Page 40725]]
Subpart F--Application, Licensing, and Processing Rules for GWCS
Sec. 26.301 Authorization required.
No person shall use or operate any device for the transmission of
energy or communications by radio in the services authorized by this
part except as provided in this part.
Sec. 26.302 Eligibility.
(a) General. Authorizations will be granted upon proper application
if:
(1) The applicant is qualified under the applicable laws and the
regulations, policies and decisions issued under those laws, including
Secs. 26.101 and 26.12;
(2) There are frequencies available to provide satisfactory
service; and
(3) The public interest, convenience or necessity would be served
by a grant.
(b) Alien ownership. A GWCS authorization to provide Commercial
Mobile Radio Service may not be granted to or held by:
(1) Any alien or the representative of any alien.
(2) Any corporation organized under the laws of any foreign
government.
(3) Any corporation of which any officer or director is an alien or
of which more than one-fifth of the capital stock is owned of record or
voted by aliens or their representatives or by a foreign government or
representative thereof or any corporation organized under the laws of a
foreign country.
(4) Any corporation directly or indirectly controlled by any other
corporation of which any officer or more than one-fourth of the
directors are aliens, or of which more than one-fourth of the capital
stock is owned of record or voted by aliens, their representatives, or
by a foreign government or representative thereof, or by any
corporation organized under the laws of a foreign country, if the
Commission finds that the public interest will be served by the refusal
or revocation of such license.
(c) A GWCS authorization to provide Private Mobile Radio Service
may not be granted to or held by a foreign government or a
representative thereof.
Sec. 26.303 Formal and informal applications.
(a) Except for an authorization under any of the conditions stated
in section 308(a) of the Communications Act of 1934 (47 U.S.C. 308(a)),
the Commission may grant only upon written application received by it,
the following authorization: station licenses; modifications of
licenses; renewals of licenses; transfers and assignments of station
licenses, or any right thereunder.
(b) Except as may be otherwise permitted by this part, a separate
written application shall be filed for each instrument of authorization
requested. Applications may be:
(1) ``Formal applications'' where the Commission has prescribed in
this Part a standard form; or
(2) ``Informal applications'' (normally in letter form) where the
Commission has not prescribed a standard form.
(c) An information application will be accepted for filing only if:
(1) A standard form is not prescribed or clearly applicable to the
authorization requested;
(2) It is a document submitted, in duplicate, with a caption which
indicates clearly the nature of the request, radio service involved,
location of the station, and the application file number (if known);
and
(3) It contains all the technical details and informational
showings required by the rules and states clearly and completely the
facts involved and authorization desired.
Sec. 26.304 Filing of GWCS applications, fees, and numbers of copies.
(a) As prescribed by Secs. 26.304 and 26.307, standard formal
application forms applicable to the GWCS may be obtained from either:
(1) Federal Communications Commission, Washington, DC 20554; or
(2) By calling the Commission's Forms Distribution Center, (202)
418-3676.
(b) Applications for the initial provision of GWCS service must be
filed on FCC Form 175 in accordance with the rules in Sec. 26.305 and
Part 1, Subpart Q of this chapter. In the event of mutual exclusivity
between applicants filing FCC Form 175, only auction winners will be
eligible to file subsequent long form applications on FCC Form XXX for
initial GWCS licenses. Mutually exclusive applications filed on Form
175 are subject to competitive bidding under those rules. GWCS
applicants filing Form XXX need not complete Schedule B.
(c) All applications for GWCS radio station authorizations (other
than applications for initial provision of GWCS service filed on FCC
Form 175) shall be submitted for filing to: Federal Communications
Commission, Washington, DC 20554, Attention: GWCS Processing Section.
Applications requiring fees as set forth at Part 1, Subpart G, of this
chapter must be filed in accordance with Sec. 0.401(b) of this chapter.
(d) All correspondence or amendments concerning a submitted
application shall clearly identify the name of the applicant, applicant
identification number or Commission file number (if known) or station
call sign of the application involved, and may be sent directly to the
Wireless Telecommunications Bureau, Washington, DC 20554, GWCS
Processing Section.
(e) Except as otherwise specified, all applications, amendments,
correspondence, pleadings and forms (including FCC Form 175) shall be
submitted on one original paper copy and with thee microfiche copies,
including exhibits and attachments thereto, and shall be signed as
prescribed by Sec. 1.743 of this chapter. Unless otherwise provided by
the FCC, filings of five pages or less are exempt from the requirement
to submit on microfiche, as well as emergency filings like letters
requesting special temporary authority. Those filing any amendments,
correspondence, pleadings, and forms must simultaneously submit the
original hard copy which must be stamped ``original''. In addition to
the original hard copy, those filing pleadings, including pleadings
under Sec. 1.2108 of this chapter shall also submit 2 paper copies as
provided in Sec. 1.51 of this chapter.
(1) Microfiche copies. Each microfiche copy must be a copy of the
signed original. Each microfiche copy shall be a 148mm 0A 105mm
negative (clear transparent characters appearing on an opaque
background) at 240A to 270A reduction for microfiche or microfiche
jackets. One of the microfiche sets must be a silver halide camera
master or a copy made on silver halide film such as Kodak Direct
Duplicatory Film. The microfiche must be placed in paper microfiche
envelopes and submitted in a B6 (125mm 0A 176 mm) or 5 0A 7.5 inch
envelope. All applicants must leave Row ``A'' (the first row for page
images) of the first fiche blank for in-house identification purposes.
(2) All applications and all amendments must have the following
information printed on the mailing envelope, the microfiche envelope,
and on the title area at the top of the microfiche:
(i) The name of the applicant;
(ii) The type of application (e.g. nationwide, or EA);
(iii) The month and year of the document;
(iv) Name of the document;
(v) File number, applicant identification number, and call sign, if
assigned; and
(vi) The identification number and date of the Public Notice
announcing the auction in response to which the application was filed
(if applicable).
[[Page 40726]]
Each microfiche copy of pleadings shall include:
(A) The month and year of the document;
(B) Name of the document;
(C) Name of the filing party;
(D) File number, applicant identification number, and call sign, if
assigned;
(E) The identification number and date of the Public Notice
announcing the auction in response to which the application was filed
(if applicable). Abbreviations may be used if they are easily
understood.
Sec. 26.305 Standard application forms and permissive changes or minor
modifications for the General Wireless Communications Service.
(a) Applications for the initial provision of GWCS service must be
filed on FCC Forms 175 and 175-S.
(b) Subsequent application by auction winners or non-mutually
exclusive applicants for GWCS radio station(s) under Part 26. FCC Form
XXX (``Application for New or Modified General Wireless Communications
Service Under Part 26'') shall be submitted by each auction winner for
each GWCS license applied for on FCC Form 175. In the event that mutual
exclusivity does not exist between applicants filing FCC Form 175, the
Commission will so inform the applicant and the applicant will also
file FCC Form XXX. Blanket licenses are granted for each market
frequency block. Applications for individual sites are not needed and
will not be accepted. See Sec. 26.11. GWCS applicants filing Form XXX
need not complete Schedule B.
(c) Extensions of time and reinstatement. When a licensee cannot
complete construction in accordance with the provisions of Sec. 26.104,
a timely application for extension of time (FCC Form 489) must be
filed.
Sec. 26.306 Miscellaneous forms.
(a) Licensee qualifications. FCC Form 430 (``Common Carrier and
Satellite Radio Licensee Qualifications Report'') shall be filed by
General Wireless Communications Service licensees only as required by
Form 490 (Application for Assignment or Transfer of Control Under part
22).
(b) Renewal of station license. Except for renewal of special
temporary authorizations, FCC Form 405 (``Application for Renewal of
Station License'') must be filed in duplicate by the licensee between
thirty (30) and sixty (60) days prior to the expiration date of the
license sought to be renewed.
Sec. 26.307 General application requirements.
(a) Each application (including applications filed on forms 175 and
XXX) for a radio station authorization or for consent to assignment or
transfer of control in the GWCS shall disclose fully the real party or
parties in interest and must include the following information:
(1) A list of its subsidiaries, if any. Subsidiary means any
business five per cent or more whose stock, warrants, options or debt
securities are owned by the applicant or an officer, director,
stockholder or key management personnel of the applicant. This list
must include a description of each subsidiary's principal business and
a description of each subsidiary's relationship to the applicant.
(2) A list of its affiliates, if any. Affiliates means any business
which holds a five per cent or more interest in the applicant, or any
business in which a five per cent or more interest is held by another
company which holds a five per cent interest in the applicant (e.g.
Company A owns 5% of Company B and 5% of Company B and 5% of Company C;
Companies B and C are affiliates).
(3) A list of the names, addresses, citizenship and principal
business of any person holding five per cent or more of each class of
stock, warrants, options or debt securities together with the amount
and percentage held, and the name, address, citizenship and principal
place of business of any person on whose account, if other than the
holder, such interest is held. If any of these persons are related by
blood or marriage, include such relationship in the statement.
(4) In the case of partnerships, the name and address of each
partner, each partner's citizenship and the share or interest
participation in the partnership. This information must be provided for
all partners, regardless of their respective ownership interests in the
partnership. A signed and dated copy of the partnership agreement must
be included in the application. This information must be included in
Exhibit V of the application.
(b) Each application for a radio station authorization in the GWCS
must:
(1) Submit the information required by the Commission's rules,
requests, and application forms;
(2) Be maintained by the applicant substantially accurate and
complete in all significant respects in accordance with the provisions
of Sec. 1.65 of this chapter; and
(3) Show compliance with and make all special showings that may be
applicable.
(c) Where documents, exhibits, or other lengthy showings already on
file with the Commission contain information which is required by an
application form, the application may specifically refer to such
information, if:
(1) The information previously filed is over one A4 (21 cm x 29.7
cm) or 8.5 x 11 inch (21.6 cm x 27.9 cm) page in length, and all
information referenced therein is current and accurate in all
significant respects under Sec. 1.65 of this chapter; and
(2) The reference states specifically where the previously filed
information can actually be found, including mention of:
(i) The station call sign or application file number whenever the
reference is to station files or previously filed applications;
(ii) The title of the proceeding, the docket number, and any legal
citations, whenever the reference is to a docketed proceeding. However,
questions on an application form which call for specific technical
data, or which can be answered by a ``yes'' or ``no'' or other short
answer shall be answered as appropriate and shall not be cross-
referenced to a previous filing.
(d) In addition to the general application requirements of Subpart
F of this part and Sec. 1.2105 of this chapter, applicants shall submit
any additional documents, exhibits, or signed written statements of
fact:
(1) As may be required by these rules; and
(2) As the Commission, at any time after the filing of an
application and during the term of any authorization, may require from
any applicant, permittee, or licensee to enable it to determine whether
a radio authorization should be granted, denied, or revoked.
(e) Except when the Commission has declared explicitly to the
contrary, an informational requirement does not in itself imply the
processing treatment of decisional weight to be accorded the response.
(f) All applicants (except applicants filing FCC Form 175) are
required to indicate at the time their application is filed whether or
not a Commission grant of the application may have a significant
environmental impact as defined by Sec. 1.1307 of this chapter. If
answered affirmatively, the requisite environmental assessment as
prescribed in Sec. 1.1311 of this chapter must be filed with the
application and Commission environmental review must be completed prior
to construction. See Sec. 1.1312 of this chapter. All GWCS licensees
are subject to a continuing obligation to determine whether subsequent
construction may have a
[[Page 40727]]
significant environmental impact prior to undertaking such construction
and to otherwise comply with Secs. 1.1301 through 1.1319 of this
chapter. See Sec. 1.1312 of this chapter.
Sec. 26.308 Technical content of applications; maintenance of list of
station locations.
All applications required by this part shall contain all technical
information required by the application forms or associated Public
Notice(s). Applications other than initial applications for a GWCS
license must also comply with all technical requirements of the rules
governing the GWCS (see Subparts C and D as appropriate).
Sec. 26.309 Station antenna structures.
(a) Unless the GWCS licensee has received prior approval from the
FCC, no antenna structure, including radiating elements, tower,
supports and all appurtenances, may be higher than 61 m (200 feet)
above ground level at its site.
(b) Unless the GWCS licensee has received prior approval from the
FCC, no antenna structure at an airport or heliport that is available
for public use and is listed in the Airport Directory of the current
Airman's Information Manual or in either the Alaska or Pacific Airman's
Guide and Chart Supplement; or at an airport or heliport under
construction that is the subject of a notice or proposal on file with
the FAA, and except for military airports, it is clearly indicated that
the airport will be available for public use; or at an airport or
heliport that is operated by the armed forces of the United States; or
at a place near any of these airports or heliports, may be higher than:
(1) 1 m above the airport elevation for each 100 m from the airport
runway longer than 1 km within 6.1 km of the antenna structure.
(2) 2 m above the airport elevation for each 100 m from the nearest
runway shorter than 1 km within 3.1 km of the antenna structure.
(3) 4 m above the airport elevation for each 100 m from the nearest
landing pad within 1.5 km of the antenna structure.
(c) A GWCS station antenna structure no higher than 6.1 m (10 feet)
above ground level at its site or no higher than 6.1 m above any
natural object or existing manmade structure, other than an antenna
structure, is exempt from the requirements of paragraphs (a) and (b) of
this section.
(d) Further details as to whether an aeronautical study and/or
obstruction marking and lighting may be required, and specifications
for obstruction marking and lighting are contained in Part 17 of this
chapter, Construction, Marking and Lighting of Antenna Structures. To
request approval to place an antenna structure higher than the limits
specified in paragraphs (a), (b), and (c) of this section, the licensee
must notify the Federal Aviation Administration (FAA) on FAA Form 7460-
1 and the FCC on FCC Form 854.
Sec. 26.310 Waiver of rules.
(a) Request for waivers. (1) Waivers of these rules may be granted
upon application or by the Commission on its own motion. Requests for
waivers shall contain a statement of reasons sufficient to justify a
waiver. Waivers will not be granted except upon an affirmative showing:
(i) That the underlying purpose of the rule will not be served, or
would be frustrated, by its application in a particular case, and that
grant of the waiver is otherwise in the public interest; or
(ii) That the unique facts and circumstances of a particular case
render application of the rule inequitable, unduly burdensome or
otherwise contrary to the public interest. Applicants must also show
the lack of a reasonable alternative.
(2) If the information necessary to support a waiver request is
already on file, the applicant may cross-reference to the specific
filing where it may be found.
(b) Denial of waiver, alternate showing required. If a waiver is
not granted, the application will be dismissed as defective unless the
applicant has also provided an alternative proposal which complies with
the Commission's rules (including any required showings).
Sec. 26.311 Defective applications.
(a) Unless the Commission shall otherwise permit, an application
will be unacceptable for filing and will be returned to the applicant
with a brief statement as to the omissions or discrepancies if:
(1) The application is defective with respect to completeness of
answers to questions, informational showings, executive, or other
matters of a formal character; or
(2) The application does not comply with the Commission's rules,
regulations, specific requirements for additional information or other
requirements. See also Sec. 1.2105 of this chapter.
(b) Some examples of common deficiencies which result in defective
applications under paragraph (a) of this section are:
(1) The application is not filled out completely and signed;
(2) The application (other an application filed on FCC Form 175)
does not include an environmental assessment as required for an action
that may have a significant impact upon the environment, as defined in
Sec. 1.1307 of this chapter.
(3) The application is filed prior to the Public Notice issued
under Sec. 26.317 announcing the application filing date for the
relevant auction or after the cutoff date prescribed in that Public
Notice;
(c) If an applicant is requested by the Commission to file any
documents or any supplementary or explanatory information not
specifically required in the prescribed application form, a failure to
comply with such request within a specified time period will be deemed
to render the application defective and will subject it to dismissal.
Sec. 26.312 Inconsistent or conflicting applications.
While an application is pending and undecided, no subsequent
inconsistent or conflicting application may be filed by the same
applicant, his successor or assignee, or on behalf or for the benefit
of the same applicant, his successor or assignee.
Sec. 26.313 Amendment of application for General Wireless
Communications Service filed on FCC Form 175.
(a) The Commission will provide bidders a limited opportunity to
cure defects in FCC Form 175 specified herein except for failure to
sign the application and to make certifications. These are defects
which may not be cured. See also Sec. 1.2105 of this chapter.
(b) For GWCS, applicants will be permitted to amend their Form 175
applications to make minor amendments to correct minor errors or
defects such as typographical errors. Applicants will also be permitted
to amend FCC Form 175, to make ownership changes or changes in the
identification of parties to bidding consortia, provided such changes
do not result in a change in control of the applicant and do not
involve another applicant (or parties in interest to an applicant) who
has applied for any of the same licenses as the applicant. Amendments
which change control of the applicant will be considered major
amendments. An FCC Form 175 which is amended by a major amendment will
be considered to be newly filed and cannot be resubmitted after
applicable filing deadlines. See also Sec. 1.2105 of this chapter.
[[Page 40728]]
Sec. 26.314 Amendment of applications for General Wireless
Communications Service (other than applications filed on FCC Form 175).
This section applies to all applications for General Wireless
Communications Service other than applications filed on FCC Form 175.
(a) Amendments as of right. A pending application may be amended as
a matter or right if the application has not been designated for
hearing.
(1) Amendments shall comply with Sec. 26.319, as applicable; and
(2) Amendments which resolve interference conflicts or amendments
under Sec. 26.319 may be filed at any time.
(b) The Commission or the presiding officer may grant requests to
amend an application designated for hearing only if a written petition
demonstrating good cause is submitted and properly served upon the
parties of record.
(c) Major amendments, minor amendments. The Commission will
classify all amendments as minor except in the cases listed below. An
amendment shall be deemed to be a major amendment subject to
Sec. 26.317 under any of the following circumstances:
(1) Change in technical proposal. If the amendment results in a
substantial change in the engineering proposal such as (but not
necessarily limited to) a change in, or an addition of, a radio
frequency; or
(2) Amendment to proposed service area. If the amendment extends
the reliable service area of the proposed facilities outside its EA or
other applicable market area as defined in Sec. 26.102; or
(3) A substantial change in ownership or control.
(d) If a petition to deny (or other formal objection) has been
filed, any amendment, requests for waiver, (or other written
communications) shall be served on the petitioner, unless waiver of
this requirement is granted pursuant to paragraph (e) of this section.
See also Sec. 1.2108 of this chapter.
(e) The Commission may waive the service requirements of paragraph
(d) of this section and prescribe such alternative procedures as may be
appropriate under the circumstances to protect petitioners' interests
and to avoid undue delay in a proceeding, if an applicant submits a
request for waiver which demonstrates that the service requirement is
unreasonably burdensome.
(f) Any amendment to an application shall be signed and shall be
submitted in the same manner, and with the same number of copies, as
was the original application. Amendments may be made in letter form if
they comply in all other respects with the requirements of this
chapter.
(g) An application will be considered to be a newly filed
application if it is amended by a major amendment (as defined in this
section), except in the following circumstances:
(1) The amendment reflects only a change in ownership or control
found by the Commission to be in the public interest;
(2) The amendment corrects typographical transcription, or similar
clerical errors which are clearly demonstrated to be mistakes by
reference to other parts of the application, and whose discovery does
not create new or increased frequency conflicts;
(3) The amendment does not create new or increased frequency
conflicts, and is demonstrably necessitated by events which the
applicant could not have reasonably foreseen at the time of filing,
such as, for example:
(i) The loss of a transmitter or receiver site by condemnation,
natural causes, or loss of lease or option; or
(ii) Obstruction of a proposed transmission path caused by the
erection of a new building or other structure.
Sec. 26.315 Application for temporary authorizations.
(a) In circumstances requiring immediate or temporary use of
facilities, request may be made for special temporary authority to
install and/or operate new or modified equipment. Any such request may
be submitted as an informal application in the manner set forth in
Sec. 26.303 and must contain full particulars as to the proposed
operation including all facts sufficient to justify the temporary
authority sought and the public interest therein. No such request will
be considered unless the request is received by the Commission at least
10 days prior to the date of proposed construction or operation or,
where an extension is sought, expiration date of the existing temporary
authorization. A request received within less than 10 days may be
accepted upon due showing of sufficient reasons for the delay in
submitting such request.
(b) Special temporary authorizations may be granted without regard
to the 30-day public notice requirements of Sec. 26.317 when:
(1) The authorization is for a period not to exceed 30 days and no
application for regular operation is contemplated to be filed;
(2) The authorization is for a period not to exceed 60 days pending
the filing of an application for such regular operation;
(3) The authorization is to permit interim operation to facilitate
completion of authorized construction or to provide substantially the
same service as previously authorized; or
(4) The authorization is made upon a finding that there are
extraordinary circumstances requiring operation in the public interest
and that delay in the institution of such service would seriously
prejudice the public interest.
(c) Temporary authorizations of operation not exceed 180 days may
be granted under the standards of section 309(f) of the Communications
Act where extraordinary circumstances so require. Extensions of the
temporary authorization for a period of 180 days each may also be
granted, but the renewal applicant bears a heavy burden to show that
extraordinary circumstances warrant such an extension.
(d) In cases of emergency found by the Commission, involving danger
to life or property or due to damage of equipment, or during a national
emergency proclaimed by the president or declared by the Congress or
during the continuance of any war in which the United States is engaged
and when such action is necessary for the national defense or safety or
otherwise in furtherance of the war effort, or in cases of emergency
where the Commission finds that it would not feasible to secure renewal
applications from existing licensees or otherwise to follow normal
licensing procedure, the Commission will grant radio station
authorizations and station licenses, or modifications or renewals
thereof, during the emergency found by the Commission or during the
continuance of any such national emergency or war, as special temporary
licenses, only for the period of emergency or war requiring such
action, without the filing of formal applications.
Sec. 26.316 Recept of application; applications in the General
Wireless Communications Service filed on FCC Form 175 and other
applications in the GWCS Service.
All applications for the initial provision of GWCS service must be
submitted on FCC Forms 175 and 175-S. Mutually exclusive initial
applications in the General Wireless Communications Services are
subject to competitive bidding. FCC Form XXX (``Application for New or
Modified General Wireless Communications Service Radio Station Under
Part 26'') must be submitted by each winning bidder for each GWCS
license applied
[[Page 40729]]
for on FCC Form 175. In the event that mutual exclusivity does not
exist between applicants filing FCC Form 175, the applicant will also
file FCC Form 401. The aforementioned Forms 175, 175-S, and XXX are
subject to the provisions of Part 1, Subpart Q of this chapter
(``Competitive Bidding Proceedings'') and subpart E of this part.
Blanket licenses are granted for each market frequency block.
Applications for individual sites are not needed and will not be
accepted. See Sec. 26.11.
(b) Applications received for filing are given a file number. The
assignment of a file number to an application is merely for
administrative convenience and does not indicate the acceptance of the
application for filing and processing. Such assignment of a file number
will not preclude the subsequent return or dismissal of the application
if it is found to be not in accordance with the Commission's rules.
(c) Acceptance of an application for filing merely means that it
has been the subject of a preliminary review as to completeness. Such
acceptance will not preclude the subsequent return or dismissal of the
application if it is found to be defective or not in accordance with
the Commission's rules.
Sec. 26.317 Public notice period.
(a) At regular intervals, the Commission will issue a public notice
listing:
(1) The acceptance for filing of all applications and major
amendments thereto:
(2) Significant Commission actions concerning applications listed
as acceptable for filing;
(3) Information which the Commission in its discretion believes of
public significance. Such notices are solely for the purpose of
informing the public and do not create any rights in an applicant or
any other person.
(4) Special environmental considerations as required by part 1 of
this chapter.
(b) The Commission will not grant any application until expiration
of a period of thirty (30) days following the issuance date of a public
notice listing the application, or any major amendments thereto, as
acceptable for filing. Provided, that the Commission will not grant an
application filed on Form XXX filed either by a winning bidder or by an
applicant whose Form 175 application is not mutually exclusive with
other applicants, until the expiration of a period of forty (40) days
following the issuance of a public notice listing the application, or
any major amendments thereto, as acceptable for filing. See also
Sec. 1.2108 of this chapter.
(c) As an exception to paragraphs (a)(1), (a)(2) of this section,
the public notice provisions are not applicable to applications:
(1) For authorization of a minor technical change in the facilities
of an authorized station where such a change would not be classified as
a major amendment (as defined by Sec. 26.314) were such a change to be
submitted as an amendment to a pending application;
(2) For issuance of a license subsequent to a radio station
authorization or, pending application for a grant of such license, any
special or temporary authorization to permit interim operation to
facilitate completion of authorized construction or to provide
substantially the same service as would be authorized by such license;
(3) For extension of time to complete construction of authorized
facilities, see Sec. 26.104;
(4) For temporary authorization pursuant to Sec. 25.315;
(5) For an authorization under any of the proviso clauses of
section 308(a) of the Communications Act of 1934 (47 U.S.C. 308(a));
(6) For consent to an involuntary assignment or transfer of control
of a radio authorization; or
(7) For consent to a voluntary assignment or transfer of control of
a radio authorization, where the assignment or transfer does not
involve a substantial change in ownership or control.
Sec. 26.318 Dismissal and return of applications.
(a) Any application may be dismissed without prejudice as a matter
of right if the applicant requests its dismissal prior to designation
for hearing or, in the case of applications filed on Forms 175 and 175-
S, prior to auction. An applicant's request for the return of his
application after it has been accepted for filing will be considered to
be a request for dismissal without prejudice. Applicants requesting
dismissal of their applications are also subject to Sec. 1.2104 of this
chapter.
(b) A request to dismiss an application without prejudice will be
considered after designation for hearing only if:
(1) A written petition is submitted to the Commission and is
properly served upon all parties of record, and
(2) The petition complies with the provisions of this Section and
demonstrates good cause.
(c) The Commission will dismiss an application for failure to
prosecute or for failure to respond substantially within a specified
time period to official correspondence or requests for additional
information. Dismissal shall be without prejudice if made prior to
designation for hearing or prior to auction, but dismissal may be made
with prejudice for unsatisfactory compliance or after designation for
hearing or after the applicant is notified that it is the winning
bidder under the auction process.
Sec. 26.319 Ownership changes and agreements to amend or to dismiss
applications or pleadings.
(a) Applicability. Subject to the provisions of Sec. 1.2105 of this
chapter (Bidding Application and Certification Procedures; Prohibition
of Collusion), this section applies to applicants and all other parties
interested in pending applications who wish to resolve contested
matters among themselves with a formal or an informal agreement or
understanding. This section applies only when the agreement or
understanding will result in:
(1) A major change in the ownership of an applicant to which
Sec. 26.323 and 26.324 would apply, or
(2) The individual or mutual withdrawal, amendment or dismissal of
any pending application, amendment, petitioner or other pleading.
(b) Parties that have filed an application in the GWCS that is
mutually exclusive with one or more other applications, and then enter
into an agreement to resolve the mutual exclusivity by withdrawing or
requesting dismissal of the application or an amendment thereto, must
obtain the approval of the FCC. Parties that have filed a petition to
deny, informal objection or other pleading against a pending
application, and then seek to withdraw or request dismissal of the
petition, either unilaterally or in exchange for a financial
consideration, must obtain the approval of the FCC.
(1) The party withdrawing or requesting dismissal of its
application, petition to deny, informal objection or other pleading
must submit to the FCC a request for approval of the withdrawal or
dismissal, a copy of any written agreement related to the withdrawal or
dismissal, and an affidavit setting forth:
(i) A certification that neither the party nor its principals has
received or will receive any money or other consideration in excess of
the legitimate and prudent expenses incurred in prosecuting the
application, petition to deny, informal objection or other pleading in
exchange for the withdrawal or dismissal of the application, petition
to deny, informal objection or other
[[Page 40730]]
pleading, except that this provision does not apply to dismissal or
withdrawal of applications pursuant to bona fide merger agreements;
(ii) The exact nature and amount of any consideration received or
promised;
(iii) An itemized accounting of the expenses for which it seeks
reimbursement; and
(iv) The terms of any oral agreement related to the withdrawal or
dismissal of the application, petition to deny, informal objection or
other pleading.
(2) In addition, within 5 days of the filing date of the
applicant's or petitioner's request for approval, each remaining party
to any written or oral agreement must submit an affidavit setting
forth:
(i) A certification that neither the applicant nor its principals
has paid or will pay money or other consideration in excess of the
legitimate and prudent expenses of the petitioner in exchange for
withdrawing or dismissing the application, petition to deny, informal
objection or other pleading; and
(ii) The terms of any oral agreement relating to the withdrawal or
dismissal of the application, petition to deny, informal objection or
other pleading.
(3) For the purposes of this section:
(i) Affidavits filed pursuant to this section must be executed by
the filing party, if an individual, a partner having personal knowledge
of the facts, if a partnership, or an officer having personal knowledge
of the facts, if a corporation or association.
(ii) Applications, petitions to deny, informal objections and other
pleadings are deemed to be pending before the FCC from the time the
application or petition to deny is filed with the FCC until such time
as an order of the FCC granting, denying or dismissing the application,
petition to deny, informal objection or other pleading is no longer
subject to reconsideration by the FCC or to review by any court.
(iii) ``Legitimate and prudent expenses'' are those expenses
reasonably incurred by a party in preparing to file, filing,
prosecuting and/or settling its application, petition to deny, informal
objection or other pleading for which reimbursement is sought.
(iv) ``Other consideration'' consists of financial concessions,
including, but not limited to, the transfer of assets or the provision
of tangible pecuniary benefit, as well as non-financial concessions
that confer any type of benefit on the recipient.
(v) Reimbursement by an applicant of the legitimate and prudent
expenses of a potential petitioner or objector, incurred reasonably and
directly in preparing to file a petition to deny, will not be
considered to be payment for refraining from filing a petition to deny
or an informal objection. Payments made directly to a potential
petitioner or objector, or a person related to a potential petitioner
or objector, to implement non-financial promises are prohibited unless
specifically approved by the FCC.
Sec. 26.320 Opposition to applications.
(a) Petitions to deny (including petitions for other forms or
relief) and responsive pleadings for Commission consideration must
comply with Sec. 1.2108 of this chapter and must:
(1) Identify the application or applications (including applicant's
name, station location, Commission file numbers and radio service
involved) with which it is concerned;
(2) Be filed in accordance with the pleading limitations, filing
periods, and other applicable provisions Secs. 1.41 through 1.52 of
this chapter except where otherwise provided in Sec. 1.2108 of this
chapter;
(3) Contain specific allegations of fact which, except for facts of
which official notice may be taken, shall be supported by affidavit of
a person or persons with personal knowledge thereof, and which shall be
sufficient to demonstrate that the petitioner (or respondent) is a
party in interest and that a grant of, or other Commission action
regarding, the application would be prima facie inconsistent with the
public interest;
(4) Be filed within thirty (30) days after the date of public
notice announcing the acceptance for filing of any such application or
major amendment thereto (unless the Commission otherwise extends the
filing deadline); and
(5) Contain a certificate of service showing that it has been
mailed to the applicant no later than the date of filing thereof with
the Commission.
(b) A petition to deny a major amendment to a previously filed
application may only raise matters directly related to the amendment
which could not have been raised in connection with the underlying,
previously filed application. This does not apply to petitioners who
gain standing because of the major amendment.
(c) parties who file frivolous petitions to deny may be subject to
sanctions including monetary forfeitures, license revocation, if they
are FCC licensees, and may be prohibited from participating in future
auctions.
Sec. 26.321 Mutually exclusive applications.
(a) The Commission will consider applications to be mutually
exclusive if their conflicts are such that the grant of one application
would effectively preclude by reason of harmful electrical
interference, or other practical reason, the grant of one or more of
the other applications. The Commission will presume ``harmful
electrical interference'' to mean interference which would result in a
material impairment to service rendered to the public despite full
cooperation in good faith by all applicants or parties to achieve
reasonable technical adjustments which would avoid electrical conflict.
(b) Mutually exclusive applications filed on Form 175 for the
initial provision of GWCS service are subject to competitive bidding in
accordance with the procedures in Subpart F of this part and in Part 1,
Subpart Q of this chapter.
(c) An application will be entitled to comparative consideration
with one or more conflicting applications only if the Commission
determines that such comparative consideration will serve the public
interest.
Sec. 26.322 Consideration of applications.
(a) Applications for an instrument of authorization will be granted
if, upon examination of the application and upon consideration of such
other matters as it may officially notice, the Commission finds that
the grant will serve the public interest, convenience, and necessity.
See also Sec. 1.2108 of this chapter.
(b) The grant shall be without a formal hearing if, upon
consideration of the application, any pleadings or objections filed, or
other matters which may be officially noticed, the Commission finds
that:
(1) The application is acceptable for filing, and is in accordance
with the Commission's rules, regulations, and other requirements;
(2) The application is not subject to a post-auction hearing or to
comparative consideration pursuant to Sec. 26.321 with another
application(s);
(3) A grant of the application would not cause harmful electrical
interference to an authorized station;
(4) There are no substantial and material questions of fact
presented; and
(5) The applicant is qualified under current FCC regulations and
policies.
(c) If the Commission should grant without a formal hearing an
application for an instrument of authorization which is subject to a
petition to deny filed in accordance with Sec. 26.320, the Commission
will deny the petition by the issuance of a Memorandum Opinion
[[Page 40731]]
and Order which will concisely report the reasons for the denial and
dispose of all substantial issues raised by the petition.
(d) Whenever the Commission, without a formal hearing, grants any
application in part, or subject to any terms or conditions other than
those normally applied to applications of the same type, it shall
inform the applicant of the reasons therefor, and the grant shall be
considered final unless the Commission should revise its action (either
by granting the application as originally requested, or by designating
the application for a formal evidentiary hearing) in response to a
petition for reconsideration which:
(1) Is filed by the applicant within thirty (30) days from the date
of the letter or order giving the reasons for the partial or
conditioned grant;
(2) Rejects the grant as made and explains the reasons why the
application should be granted as originally requested; and,
(3) Returns the instrument of authorization.
(e) The Commission will designate an application for a formal
hearing, specifying with particularly the matters and things in issue,
if, upon consideration of the application, any pleadings or objections
filed, or other matters which be officially noticed, the Commission
determines that:
(1) A substantial and material question of fact is presented (see
also Sec. 1.2108 of this chapter);
(2) The Commission is unable for any reason to make the findings
specified in paragraph (a) of this section and the application is
acceptable for filing, complete, and in accordance with the
Commission's rules, regulations, and other requirements; or
(3) The application is entitled to comparative consideration (under
Sec. 26.321) with another application (or applications).
(f) The Commission may grant, deny or take other action with
respect to an application designated for a formal hearing pursuant to
paragraph (e) of this section or Part 1 of this chapter.
(g) Reconsideration or review of any final action taken by the
Commission will be in accordance with Part 1, Subpart A of this
chapter.
Sec. 26.323 Post-action divestitures.
Any parties sharing a common non-controlling ownership interests
who aggregate more GWCS spectrum among them than a single entity is
entitled to hold will be permitted to divest sufficient properties
within 90 days of the license grant to come into compliance with the
spectrum aggregation limits as follows:
(a) The GWCS applicant shall submit a signed statement with its
long-form application stating that sufficient properties will be
divested within 90 days of the license grant. If the licensee is
otherwise qualified, the Commission will grant the applications subject
to a condition that the licensee come into compliance with the GWCS
spectrum aggregation limits within 90 days of grant.
(b) Within 90 days of license grant, the licensee must certify that
the applicant and all parties to the application have come into
compliance with the GWCS spectrum aggregation limits. If the licensee
fails to submit the certification within 90 days, the Commission will
immediately cancel all broadband GWCS licenses won by the applicant,
impose the default payment and, based on the facts presented, take any
other action it deems appropriate. Divestiture may be an interim
trustee if a buyer has not been secured in the required time frame, as
long as the applicant has no interest in or control of the trustee, and
the trustee may dispose of the property as it sees fit. In no event may
the trustee retain the property for longer than six months from grant
of license.
Sec. 26.324 Transfer of control or assignment of station
authorization.
(a) Authorizations shall be transferred or assigned to another
party, voluntarily (for example, by contract) or involuntarily (for
example, by death, bankruptcy, or legal disability), directly or
indirectly or by transfer of control of any corporation holding such
authorization, only upon application and approval by the Commission. A
transfer of control or assignment of station authorization in the
General Wireless Communications Service is also subject to Sec. 1.2111
of this chapter (Assignment or transfer of control: unjust enrichment).
(1) A change from less than 50% ownership to 50% or more ownership
shall always be considered a transfer of control.
(2) In other situations a controlling interest shall be determined
on a case-by-case basis considering the distribution of ownership, and
the relationships of the owners, including family relationships.
(b) Form required:
(1) Assignment.
(i) FCC Form 490 shall be filed to assign a license or permit.
(ii) In the case of involuntary assignment, FCC Form 490 shall be
filed within 30 days of the event causing the assignment.
(2) Transfer of control.
(i) FCC Form 490 shall be submitted in order to transfer control of
a corporation holding a license or permit.
(ii) In the case of involuntary transfer of control, FCC Form 490
shall be filed within 30 days of the event causing the transfer.
(3) Form 430. Whenever an application must be filed under
paragraphs (a)(1) or (a)(2) of this section, the assignee or transferee
shall file FCC Form 430 (``Common Carrier Radio License Qualification
Report'') unless an accurate report is on file with the Commission.
(4) Notification of completion. The Commission shall be notified by
letter of the date of completion of the assignment or transfer of
control.
(5) If the transfer of control of a license is approved, the new
licensee is held to the original build-out requirement of Sec. 26.104.
(c) In acting upon applications for transfer of control or
assignment, the Commission will not consider whether the public
interest, convenience, and necessity might be served by the transfer or
assignment of the authorization to a person other than the proposed
transferee or assignee.
(d) Applicants seeking to transfer their licenses within three
years after the initial license grant date are required to file,
together with their transfer application, the associated contracts for
sale, option agreements, management agreements, and all other documents
disclosing the total consideration to be received in return for the
transfer of the license.
Sec. 26.325 Extension of time to complete construction.
(a) If construction is not completed within the time period set
forth in Sec. 26.104, the authorization will automatically expire.
Before the period for construction expires an application for an
extension of time to complete construction (FCC Form 489) may be filed.
See paragraph (b) of this section. Within 30 days after the
authorization expires an application for reinstatement may be filed on
FCC Form 489.
(b) An application for extension of time to complete construction
may be made on FCC Form 489. Extension of time requests must be filed
prior to the expiration of the construction period. Extensions will be
granted only if the licensee shows that the failure to complete
construction is due to causes beyond his control. An application for
modification of an authorization (under construction) does not extend
the initial
[[Page 40732]]
construction period. If additional time to construct is required, an
FCC Form 489 must be submitted.
Sec. 26.326 Termination of authorization.
(a) (1) All authorizations shall terminate on the date specified on
the authorization or on the date specified by these rules, unless a
timely application for renewal has been filed.
(2) If no application for renewal has been made before the
authorization's expiration date, a late application for renewal will
only be considered if it is filed within 30 days of the expiration date
and shows that the failure to file a timely application was due to
causes beyond the applicant's control. During this 30 day period
reinstatement applications must be filed on FCC Form 489. Service to
subscribers need not be suspended while a late filed renewal
application is pending, but such service shall be without prejudice to
Commission action on the renewal application and any related sanctions.
See also Sec. 26.14 (Criteria for Comparative Renewal Proceedings).
(b) Special Temporary Authority. A special temporary authorization
shall automatically terminate upon failure to comply with the
conditions in the authorization.
[FR Doc. 95-19486 Filed 8-8-95; 8:45 am]
BILLING CODE 6712-01-M
