[Federal Register Volume 64, Number 175 (Friday, September 10, 1999)]
[Proposed Rules]
[Pages 49128-49135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23575]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 15, 22, 24, 25, 26, 27, 90, 95, 100, and 101
[WT Docket No. 99-266, FCC 99-205]
Extending Wireless Telecommunications Services to Tribal Lands
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document seeks comment on potential terrestrial wireless
and satellite policy initiatives to address the telecommunications
needs of Indians living on tribal lands. The Commission has been
instructed to help ensure that all Americans have access to affordable
telecommunications services. Consistent with that mandate, the
Commission seeks to secure for consumers living on tribal lands the
same opportunities to take advantage of telecommunications capabilities
that other Americans have. In addition, the Commission seeks comment on
whether to extend these initiatives to consumers in other unserved
areas.
DATES: Comments are due November 9, 1999, and reply comments are due
December 9, 1999.
ADDRESSES: Federal Communications Commission, Secretary, 445 Twelfth
Street, SW, Room TW-A325, Washington, DC 20554. Comments filed through
the Commission's Electronic Comment Filing System (ECFS) can be sent as
an electronic file via the Internet to http://www.fcc.gov/e-file/
ecfs.html. See the Supplementary Information section for additional
information about paper and electronic filing.
FOR FUTHER INFORMATION CONTACT: Joel Taubenblatt, Wireless
Telecommunications Bureau, at (202) 418-1513.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM) in WT Docket No. 96-266, adopted August
5, 1999 and released August 18, 1999. The complete text of this NPRM is
available for inspection and copying during normal business hours in
the Commission's Reference Center, room CY-A257, 445 12th Street SW,
Washington, DC. This NPRM is also available through the Internet at
http://www.fcc.gov/Bureaus/Wireless/Notices/1999/fcc99205.pdf. The
complete text may be purchased from the Commission's duplicating
contractor, International Transcription Service, Inc. (ITS, Inc.) at
1231 20th Street NW, Washington, DC 10036, (202) 857-3800.
I. Introduction
1. The Telecommunications Act of 1996 has instructed the Commission
to help ensure that all Americans have access to affordable
telecommunications services. Consistent with that mandate, the
Commission seeks comment on the potential of terrestrial and satellite
wireless technologies to provide basic telephone service on tribal
lands and other unserved areas, particularly in remote areas where
wireline alternatives would be significantly more expensive. The
Commission also seeks comment on possible changes to our rules for
terrestrial wireless and satellite services that would provide greater
incentives for terrestrial wireless and satellite carriers to extend
service to tribal lands and other unserved areas.
2. In conjunction with this NPRM, the Commission adopted a
companion Further Notice of Proposed Rulemaking in CC Docket No. 96-45,
FCC 99-204 (to be published at a later date in the Federal Register) in
which the Commission proposes initiatives to encourage the extension of
wireline service to tribal lands and other unserved areas and to expand
subsidies for all telecommunications carriers--whether wireline,
terrestrial wireless, or satellite--that serve such areas.
II. Background
3. Commission representatives have met with many tribal leaders and
other representatives of Indian communities to obtain their insights
into the problem of low telecommunications penetration on tribal lands.
Earlier this year, the Commission held two public hearings at which
federal and state officials, tribal officials, consumer advocates, and
telecommunications service providers addressed issues such as the costs
of delivering services to remote areas having very low population
densities, the impact of the size of local calling areas on the
affordability of service, the quality of telephone service on tribal
lands, the complexities of governmental jurisdiction and sovereignty
issues, and the effects of low incomes and high unemployment on tribal
lands on telephone service.
4. Because many tribal lands, particularly those in the western
United States, are geographically isolated, obtaining the lowest cost
for providing basic telephone service to the population on the tribal
land may often require use of a terrestrial wireless technology, a
satellite technology, or a combination of these technologies.
Terrestrial wireless technology includes both mobile services, such as
cellular and Personal Communications Service (PCS), and fixed
``wireless local loop'' services (WLL). A hybrid terrestrial/satellite
wireless model would involve a satellite providing the communications
link between an isolated community and the nation's public switched
telephone network for long distance telephony, with a terrestrial
wireless loop used to link the individual residents and businesses in a
particular community for local telephony. Alternatively, satellites can
be used alone for long distance and local telephony through the use of
handheld phones that can communicate directly with the satellites.
III. Discussion
5. Accordingly, this NPRM seeks comment on whether certain changes
to the Commission's rules for terrestrial wireless and satellite
services would provide greater incentives for existing carriers to
extend these services to tribal lands and other unserved areas.
Possible rule changes include: (a) Relaxing power and antenna height
limits for wireless services to reduce the number of transmitting
facilities required to provide service to a tribal land/unserved area,
and thus reduce the cost of providing service to that tribal land/
unserved area, without creating a significant risk of interference
among wireless systems; (b) creating incentives in our buildout
requirements to encourage buildout on tribal lands and other unserved
areas (e.g., for services subject to a specific population/geographic
coverage requirement, apply a multiplier to the population or land area
of a tribal land/unserved area for purposes of meeting the
requirement);
[[Page 49129]]
(c) under certain conditions, allowing licensees to expand their
coverage into adjacent licensing areas in order to provide full
coverage to a tribal land, provided that the adjacent licensee has had
a reasonable opportunity to extend coverage itself and has not done so,
and provided that such coverage does not cause interference to the
adjacent licensee's actual operations; (d) modifying restrictions on
commercial use of spectrum by certain categories of non-commercial
radio licensees in cases where such licensees wish to provide service
to tribal lands or other unserved areas; (e) relaxing restrictions on
the transfer of ``designated entity'' licenses to non-designated
entities where the non-designated entity commits to provide service to
a tribal land or other unserved area; and (f) adopting policies that
encourage the use of satellite technology (or combined satellite-
wireless technology) to provide service on tribal lands or other
unserved areas, where such service would be technologically efficient.
The NPRM also seeks comment on whether the grant of additional
flexibility to wireless licensees should be conditioned on the
existence of a binding agreement between the licensee and relevant
tribal authority.
6. In addition to inquiring about incentives for existing
terrestrial wireless and satellite carriers to extend service to tribal
lands/unserved areas, the NPRM seeks comment on the following ways to
encourage service to tribal lands/unserved areas in the Commission's
development and licensing of new services: (a) Identifying frequency
bands that are not currently allocated for telecommunications service
that could potentially be used to provide basic telephone service on
tribal lands/unserved areas; (b) allowing ``drop-in'' licensing of
unused channels in otherwise allocated and licensed spectrum to provide
service to tribal lands/unserved areas; (c) in new services,
establishing licensing area boundaries that will not splinter tribal
lands among multiple licensees; (d) adopting technical and operational
rules that encourage development of low-cost technology in new services
suitable for providing service in sparsely populated areas such as
tribal lands; (e) in future auctions, awarding bidding credits to
auction winners (regardless of designated entity status) who commit to
provide service to tribal lands/unserved areas in their markets; and
(f) using licensing authority to encourage the use of satellite
technology to serve tribal lands/unserved areas.
IV. Procedural Matters
A. Ex Parte Rules--Permit-But-Disclose Proceeding
7. This proceeding is a permit-but-disclose notice and comment
rulemaking proceeding. Ex parte presentations are permitted, except
during the Sunshine Agenda period, provided they are disclosed as
provided in Commission rules. See generally 47 CFR 1.1202, 1.1203 and
1.1206.
B. Initial Regulatory Flexibility Analysis
8. As required by the Regulatory Flexibility Act, see 5 U.S.C. 603,
the Commission has prepared an Initial Regulatory Flexibility Analysis
(``IRFA'') of the possible impact on small entities of the proposals
suggested in this NPRM. The IRFA is set forth in the section V. Written
public comments are requested on the IRFA. These comments must be filed
in accordance with the same filing deadlines as comments on the NPRM,
as set forth in the ``DATES'' section and they must have a separate and
distinct heading designating them as responses to the IRFA. The
Commission's Office of Public Affairs, Reference Operations Division,
will send a copy of this NPRM, including the IRFA, to the Chief Counsel
for Advocacy of the Small Business Administration, in accordance with
the Regulatory Flexibility Act, see 5 U.S.C. 603(a).
C. Initial Paperwork Reduction Act of 1995 Analysis
9. This NPRM contains neither a new nor a modified information
collection.
D. Comment Dates
10. Pursuant to Secs. 1.415 and 1.419 of the Commission's Rules, 47
CFR 1.415, 1.419, comments are due November 9, 1999, and reply comments
are due December 9, 1999. Comments may be filed using the Commission's
Electronic Comment Filing System (ECFS) or by filing paper copies. See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121
(May 1, 1998).
11. Comments filed through the ECFS can be sent as an electronic
file via the Internet to http://www.fcc.gov/e-file/ecfs.html>.
Generally, only one copy of an electronic submission must be filed. If
multiple docket or rulemaking numbers appear in the caption of this
proceeding, however, commenters must transmit one electronic copy of
the comments to each docket or rulemaking number referenced in the
caption. In completing the transmittal screen, commenters should
include their full name, Postal Service mailing address, and the
applicable docket or rulemaking number. Parties may also submit an
electronic comment by Internet e-mail. To get filing instructions for
e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and
should include the following words in the body of the message, ``get
form .'' A sample form and directions will be sent
in reply.
12. Parties who choose to file by paper must file an original and
four copies of each filing. If participants would like each
Commissioner to receive a personal copy of their comments, an original
plus nine copies must be filed. If more than one docket or rulemaking
number appears in the caption of this proceeding, commenters must
submit two additional copies for each additional docket or rulemaking
number. All filings must be sent to the Commission's Secretary, Magalie
Roman Salas, Office of the Secretary, Federal Communications
Commission, The Portals, 445 Twelfth Street, S.W., Room TW-A325,
Washington, DC 20554.
13. All relevant and timely comments will be considered by the
Commission before final action is taken in this proceeding. Comments
and reply comments will be available for public inspection during
regular business hours in the FCC Reference Center, The Portals, 445
Twelfth Street, S.W., Room CY-A257, Washington, DC 20554.
V. Initial Regulatory Flexibility Analysis
14. As required by the Regulatory Flexibility Act (RFA),\1\ the
Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities of
the policies and rules proposed in this Notice of Proposed Rulemaking.
Written public comments are requested on this IRFA. These comments must
be filed in accordance with the same filing deadlines for comments on
the rest of this Notice of Proposed Rulemaking, as set forth in section
IV.D of the SUPPLEMENTARY INFORMATION, and they must have a separate
and distinct heading designating them as responses to the IRFA. The
Commission's Office of Public Affairs, Reference Operations Division,
will send a copy of this Notice of Proposed Rulemaking, including the
IRFA, to the Chief Counsel for Advocacy
[[Page 49130]]
of the Small Business Administration, in accordance with the RFA.\2\
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\1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has
been amended by the Contract With America Advancement Act of 1996,
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the
CWAAA is the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA).
\2\ See 5 U.S.C. 603(a).
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A. Need for and Objectives of the Proposed Rules
15. We are issuing this Notice of Proposed Rulemaking to seeks
comment on potential terrestrial wireless and satellite policy
initiatives to address the telecommunications needs of consumers living
on tribal lands. As stated, the Telecommunications Act of 1996
instructed the Commission to help ensure that all Americans have access
to affordable telecommunications services. Consistent with that
mandate, we seek to secure for consumers living on tribal lands the
same opportunities to take advantage of telecommunications capabilities
that other Americans have. In addition, we seek comment on whether to
extend these initiatives to consumers in other unserved areas.
16. Specifically, this Notice of Proposed Rulemaking seeks comment
on the following potential initiatives for encouraging existing
wireless licensees to provide telecommunications service to tribal
lands and other unserved areas: (a) Relaxing antenna height and
transmitter power limitations applicable to service providers in tribal
lands and other unserved areas; (b) establishing flexible buildout
requirements for carriers providing telephone service to tribal lands
and other unserved areas; (c) permitting licensees to expand coverage
into adjacent licensing areas in order to provide full coverage to
tribal lands and other unserved areas; (d) allowing licensees in
certain private (non-CMRS) services to provide basic telephone service
to tribal lands and other unserved areas; (e) lifting restrictions on
transfer of wireless licenses awarded to designated entities (DEs) for
carriers providing service to tribal lands and other unserved areas;
(f) modifying regulations to promote the deployment of satellite
technology to tribal lands and other unserved areas; and (g) granting
of additional flexibility to carriers providing service to tribal lands
and other unserved areas based on the existence of a binding agreement
between the carrier and the affected tribe.
17. In addition, this Notice of Proposed Rulemaking seeks comment
on the following ways to encourage service to tribal lands/unserved
areas in the Commission's development and licensing of new services:
(a) Identifying frequency bands that are not currently allocated for
telecommunications service that could potentially be used to provide
basic telephone service on tribal lands/unserved areas; (b) allowing
``drop-in'' licensing of unassigned or unused channels in otherwise
allocated and licensed spectrum to provide service to tribal lands/
unserved areas; (c) establishing licensing area boundaries for new
services that will not splinter tribal lands among multiple licensees;
(d) adopting technical and operational rules that encourage development
of low-cost technology in new services suitable for providing service
in sparsely populated areas such as tribal lands; (e) in future
auctions, awarding bidding credits to auction winners (regardless of
designated entity status) who commit to provide service to tribal
lands/unserved areas in their markets; and (f) using our licensing
authority to encourage the provision of satellite-based
telecommunication services to tribal lands and other unserved areas.
B. Legal Basis
18. The potential actions on which comment is sought in this Notice
of Proposed Rulemaking would be authorized under sections 4(i), 303(r),
and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 303(r), and 309(j).
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
19. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.\3\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \4\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\5\ A small business concern is one that:
(a) Is independently owned and operated; (b) is not dominant in its
field of operation; and (c) satisfies any additional criteria
established by the Small Business Administration (SBA).\6\ A small
organization is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
\7\ Nationwide, as of 1992, there were approximately 275,801 small
organizations.\8\ And finally, ``Small governmental jurisdiction''
generally means ``governments of cities, counties, towns, townships,
villages, school districts, or special districts, with a population of
less than 50,000.'' \9\ As of 1992, there were approximately 85,006
such jurisdictions in the United States.\10\ This number includes
38,978 counties, cities, and towns; of these, 37,566, or 96 percent,
have populations of fewer than 50,000.\11\ The Census Bureau estimates
that this ratio is approximately accurate for all governmental
entities. Thus, of the 85,006 governmental entities, we estimate that
81,600 (91 percent) are small entities.
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\3\ 5 U.S.C. 603(b)(3).
\4\ Id. at 601(6).
\5\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in 15 U.S.C. 632). Pursuant to the
RFA, the statutory definition of a small business applies ``unless
an agency, after consultation with the Office of Advocacy of the
Small Business Administration and after opportunity for public
comment, establishes one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\6\ Small Business Act, 15 U.S.C. 632.
\7\ 5 U.S.C. 601(4).
\8\ 1992 Economic Census, U.S. Bureau of the Census, Table 6
(special tabulation of data under contract to Office of Advocacy of
the U.S. Small Business Administration).
\9\ 5 U.S.C. 601(5).
\10\ U.S. Dept. of Commerce, Bureau of the Census, ``1992 Census
of Governments.''
\11\ Id.
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20. We further describe and estimate the number of small business
concerns that may be affected by the proposed rules, if adopted,
including wireless and satellite service providers. To assist the
Commission in analyzing the total number of potentially affected small
entities, commenters are requested to provide estimates of the number
of small entities that may be affected by any rule changes resulting
from this Notice of Proposed Rulemaking.
i. Wireless (Radiotelephone) Providers
21. SBA has developed a definition of small entities for
radiotelephone (wireless) companies. The Census Bureau reports that
there were 1,176 such companies in operation for at least one year at
the end of 1992.\12\ According to SBA's definition, a small business
radiotelephone company is one employing no more than 1,500 persons.\13\
The Census Bureau also reported that 1,164 of those radiotelephone
companies had fewer than 1,000 employees. Thus, even if all of the
remaining 12 companies had more than 1,500 employees, there would still
be 1,164 radiotelephone companies that might qualify as small entities
if they are independently owned and operated. Although it seems certain
[[Page 49131]]
that some of these carriers are not independently owned and operated,
we are unable at this time to estimate with greater precision the
number of radiotelephone carriers and service providers that would
qualify as small business concerns under SBA's definition.
Consequently, we estimate that there are fewer than 1,164 small entity
radiotelephone companies that may be affected by the policies and rules
proposed in this Notice of Proposed Rulemaking. We next attempt to
refine further this estimate to correspond with the categories of
wireless (radiotelephone) companies that are commonly used under our
rules.
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\12\ United States Department of Commerce, Bureau of the Census,
1992 Census of Transportation, Communications, and Utilities:
Establishment and Firm Size, at Firm Size 1-123 (1995) (``1992
Census'').
\13\ 13 CFR 121.201, SIC Code 4812.
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22. Cellular, PCS, SMR and Other Mobile Service Providers. In an
effort to further refine our calculation of the number of
radiotelephone companies that may be affected by the policies and rules
proposed herein, if adopted, we consider the data that we collect
annually in connection with the TRS for the subcategories Wireless
Telephony (which includes Cellular, PCS, and SMR) and Other Mobile
Service Providers. Neither the Commission nor the SBA has developed a
definition of small entities specifically applicable to these broad
subcategories, so we will utilize the closest applicable definition
under SBA rules--which, for both categories, is for radiotelephone
(wireless) companies.\14\ To the extent that the Commission has adopted
definitions for small entities providing PCS and SMR services, we
discuss those definitions. According to our most recent TRS data, 732
companies reported that they are engaged in the provision of Wireless
Telephony services and 23 companies reported that they are engaged in
the provision of Other Mobile Services.\15\ Although it seems certain
that some of these carriers are not independently owned and operated,
or have more than 1,500 employees, we are unable at this time to
estimate with greater precision the number of Wireless Telephony
Providers and Other Mobile Service Providers, except as described, that
would qualify as small business concerns under SBA's definition.
Consequently, we estimate that there are fewer than 732 small entity
Wireless Telephony Providers and fewer than 23 small entity Other
Mobile Service Providers that might be affected by the policies and
rules proposed in this Notice of Proposed Rulemaking.
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\14\ Id.
\15\ FCC, Carrier Locator: Interstate Service Providers, Figure
1 (Jan. 1999) (Carrier Locator). See also 47 CFR 64.601 et seq.
(TRS). The most reliable source of information regarding the numbers
of commercial wireless entities appears to be data the Commission
publishes annually in its Carrier Locator report, derived from
filings made in connection with the Telecommunications Relay Service
(TRS).
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23. Broadband PCS Licensees. The broadband PCS spectrum is divided
into six frequency blocks designated A through F, and the Commission
has held auctions for each block. The Commission defined ``small
entity'' for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar
years.\16\ For Block F, an additional classification for ``very small
business'' was added, and is defined as an entity that, together with
its affiliates, has average gross revenues of not more than $15 million
for the preceding three calendar years.\17\ These regulations defining
``small entity'' in the context of broadband PCS auctions have been
approved by SBA.\18\ No small businesses within the SBA-approved
definition bid successfully for licenses in Blocks A and B. There were
90 winning bidders that qualified as small entities in the Block C
auctions. A total of 93 small and very small business bidders won
approximately 40% of the 1,479 licenses for Blocks D, E, and F.
However, licenses for Blocks C through F have not been awarded fully,
therefore there are few, if any, small businesses currently providing
PCS services. Based on this information, we estimate that the number of
small broadband PCS licenses will include the 90 winning C Block
bidders and the 93 qualifying bidders in the D, E, and F blocks, for a
total of 183 small PCS providers as defined by SBA and the
Commissioner's auction rules.
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\16\ See Amendment of Parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, Report and Order, 61 FR 33859 (July 1,
1996); FCC 96-278, WT Docket No. 96-59, Paras. 57-60 (June 24,
1996), see also 47 CFR 24.720(b).
\17\ Id., at para. 60.
\18\ Implementation of Section 309(j) of the Communications
Act--Competitive Bidding, PP Docket No. 93-253, Fifth Report and
Order, 59 FR 37566 (July 22, 1994), 9 FCC Rcd.5532, 5581-84 (1994).
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24. SMR Licensees. Pursuant to 47 CFR 90.814(b)(1), the Commission
has defined ``small entity'' in auctions for geographic area 800 MHz
and 900 MHz SMR licenses as a firm that had average annual gross
revenues of less than $15 million in the three previous calendar years.
The definition of a ``small entity'' in the context of 800 MHz SMR has
been approved by the SBA,\19\ and approval for the 900 MHz SMR
definition has been sought. The proposed rules may apply to SMR
providers in the 800 MHz and 900 MHz bands that either hold geographic
area licenses or have obtained extended implementation authorizations.
We do not know how many firms provide 800 MHz or 900 MHz geographic
area SMR service pursuant to extended implementation authorizations,
nor how many of these providers have annual revenues of less than $15
million. Consequently, we estimate, for purposes of this IRFA, that all
of the extended implementation authorizations may be held by small
entities, some of which may be affected by the policies and rules
proposed in this Notice of Proposed Rulemaking.
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\19\ See Amendment of Parts 2 and 90 of the Commission's Rules
to Provide for the Use of 200 Channels Outside the Designated Filing
Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the
Specialized Mobile Radio Pool, PR Docket No. 89-553, Second Order on
Reconsideration and Seventh Report and Order, 60 FR 48913 (September
21, 1995), 11 FCC Rcd 2639, 2693-702 (1995); Amendment of Part 90 of
the Commission's Rules to Facilitate Future Development of SMR
Systems in the 800 MHz Frequency Band, PR Docket No. 93-144, First
Report and Order, Eighth Report and Order, and Second Further Notice
of Proposed Rulemaking, 61 FR 6212 (February 16, 1996), 11 FCC Rcd
1463 (1995).
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25. The Commission recently held auctions for geographic area
licenses in the 900 MHz SMR band. There were 60 winning bidders who
qualified as small entities in the 900 MHz auction. Based on this
information, we estimate that the number of geographic area SMR
licensees that may be affected by the policies and rules proposed in
this Notice of Proposed Rulemaking includes these 60 small entities. No
auctions have been held for 800 MHz geographic area SMR licenses.
Therefore, no small entities currently hold these licenses. A total of
525 licenses will be awarded for the upper 200 channels in the 800 MHz
geographic area SMR auction. The Commission, however, has not yet
determined how many licenses will be awarded for the lower 230 channels
in the 800 MHz geographic area SMR auction. There is no basis,
moreover, on which to estimate how many small entities will win these
licenses. Given that nearly all radiotelephone companies have fewer
than 1,000 employees and that no reliable estimate of the number of
prospective 800 MHz licensees can be made, we estimate, for purposes of
this IRFA, that all of the licenses may be awarded to small entities,
some of which may be affected by the policies and rules proposed in
this Notice of Proposed Rulemaking.
26. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II licenses. There
[[Page 49132]]
are approximately 1,515 such non-nationwide licensees and four
nationwide licensees currently authorized to operate in the 220 MHz
band. The Commission has not developed a definition of small entities
specifically applicable to such incumbent 220 MHz Phase I licensees. To
estimate the number of such licensees that are small businesses, we
apply the definition under the SBA rules applicable to Radiotelephone
Communications companies.\20\ According to the Bureau of the Census,
only 12 radiotelephone firms out of a total of 1,178 firms that
operated during 1992 had 1,000 or more employees.\21\ Therefore, if
this general ratio continues to 1999 in the context of Phase I 220 MHz
licensees, we estimate that nearly all such licensees are small
businesses under the SBA's definition.
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\20\ 13 CFR 121.201, SIC Code 4812. This definition provides
that a small entity is a radiotelephone company employing no more
than 1,500 persons.
\21\ U.S. Bureau of the Census, U.S. Department of Commerce,
1992 Census of Transportation, Communications, and Utilities, UC92-
S-1, Subject Series, Establishment and Firm Size, Table 5,
Employment Size of Firms; 1992, SIC code 4812 (issued May 1995).
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27. 220 MHz Radio Service--Phase II Licensees. The Phase II 220 MHz
service is a new service, and is subject to spectrum auctions. In the
220 MHz Third Report and Order we adopted criteria for defining small
businesses and very small businesses for purposes of determining their
eligibility for special provisions such as bidding credits and
installment payments.\22\ We have defined a small business as an entity
that, together with its affiliates and controlling principals, has
average gross revenues not exceeding $15 million for the preceding
three years. Additionally, a very small business is defined as an
entity that, together with its affiliates and controlling principals,
has average gross revenues that are not more than three million dollars
for the preceding three years.\23\ An auction of Phase II licenses
commenced on September 15, 1998, and closed on October 22, 1998.\24\
908 licenses were auctioned in three different-sized geographic areas:
three nationwide licenses, 30 Regional Economic Area Group Licenses,
and 875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693
were sold. Companies claiming small business status won: one of the
Nationwide licenses, 67% of the Regional licenses, and 54% of the EA
licenses. As of January 22, 1999, the Commission announced that it was
prepared to grant 654 of the Phase II licenses won at auction.\25\ A
reauction of the remaining, unsold licenses was completed on June 30,
1999, with 16 bidders winning 222 of the Phase II licenses.\26\ As a
result, we estimate that 16 or fewer of these final winning bidders are
small or very small businesses.
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\22\ Amendment of Part 90 of the Commission's Rules to Provide
for the Use of the 220-222 MHz Band by Private Land Mobile Radio
Service, Third Report and Order and Fifth Notice of Proposed
Rulemaking, 12 FCC Rcd 10943, 11068-70, at paras. 291-295 (1997)
(220 MHz Third Report and Order) 62 FR 15978 (April 3, 1997). The
SBA has approved these definitions. See Letter from A. Alvarez,
Administrator, SBA, to D. Phythyon, Chief, Wireless
Telecommunications Bureau, FCC (Jan. 6, 1998).
\23\ 220 MHz Third Report and Order, 62 FR 15978 (April 3,
1997), 12 FCC Rcd at 11068-69, para. 291.
\24\ See generally Public Notice, ``220 MHz Service Auction
Closes,'' Report No. WT 98-36 (Wireless Telecom. Bur. Oct. 23,
1998).
\25\ Public Notice, ``FCC Announces It Is Prepared to Grant 654
Phase II 220 MHz Licenses After Final Payment Is Made,'' Report No.
AUC-18-H, DA No. 99-229 (Wireless Telecom. Bur. Jan. 22, 1999).
\26\ Public Notice, ``Phase II 220 MHz Service Spectrum Auction
Closes,'' Report No. AUC-99-24-E, DA No. 99-1287 (Wireless Telecom.
Bur. July 1, 1999).
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28. Paging Licensees. On June 7, 1999, the Wireless
Telecommunications Bureau announced the first in a series of auctions
of paging licenses, the first to commence on December 7, 1999.\27\ The
Bureau has proposed that the first auction be composed of 2,499
licenses.\28\ The Commission utilizes a two-tiered definition of small
businesses in the context of auctioning licenses in the Common Carrier
Paging and exclusive Private Carrier Paging services.\29\ A small
business is defined as either (a) an entity that, together with its
affiliates and controlling principals, has average gross revenues for
the three preceding years of not more than $3 million, or (b) an entity
that, together with affiliates and controlling principals, has average
gross revenues for the three preceding calendar years of not more than
$15 million. The SBA has approved this definition.\30\ At present,
there are approximately 24,000 Private Paging licenses and 74,000
Common Carrier Paging licenses. In addition, according to the most
recent Carrier Locator data, 137 carriers reported that they were
engaged in the provision of either paging or messaging services, which
are placed together in the data.\31\ Because the auction has yet to
occur, we do not have data specifying the number of winning bidders
that will meet the above small business definition. Also, we will
assume that there currently are 137 or fewer small businesses paging
carriers.
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\27\ Public Notice, ``First Paging Service Spectrum Auction
Scheduled for December 7, 1999,'' Report No. AUC-99-26-A, DA No. 99-
1103, 64 FR 36009 (July 2, 1999), (Wireless Telecommunications
Bureau, June 7, 1999).
\28\ Id.
\29\ See 47 CFR 20.9(a)(1) (noting that private paging services
may be treated as common carriage services).
\30\ See Letter from A. Alvarez, Administrator, SBA, to A.J.
Zoslov, Chief, Auctions Division, Wireless Telecommunications
Bureau, FCC (Dec. 2, 1998).
\31\ Carrier Locator at Fig. 1.
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29. Narrowband PCS Licensees. The Commission has auctioned
nationwide and regional licenses for narrowband PCS. There are 11
nationwide and 30 regional licensees for narrowband PCS. The Commission
does not have sufficient information to determine whether any of these
licensees are small businesses within the SBA-approved definition for
radiotelephone companies. At present, there have been no auctions held
for the major trading area (MTA) and basic trading area (BTA)
narrowband PCS licenses. The Commission anticipates a total of 561 MTA
licenses and 2,958 BTA licenses will be awarded by auction. Such
auctions have not yet been scheduled, however. Given that nearly all
radiotelephone companies have no more than 1,500 employees and that no
reliable estimate of the number of prospective MTA and BTA narrowband
licensees can be made, we assume, for purposes of this IRFA, that all
of the licenses will be awarded to small entities, as that term is
defined by the SBA.
30. Rural Radiotelephone Service. The Commission has not adopted a
definition of small entity specific to the Rural Radiotelephone
Service.\32\ A significant subset of the Rural Radiotelephone Service
is the Basic Exchange Telephone Radio Systems (BETRS).\33\ We will use
the SBA's definition applicable to radiotelephone companies, i.e., an
entity employing no more than 1,500 persons.\34\ There are
approximately 1,000 licensees in the Rural Radiotelephone Service, and
we estimate that almost all of them qualify as small entities under the
SBA's definition.
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\32\ The service is defined in section 22.99 of the Commission's
rules, 47 CFR 22.99.
\33\ BETRS is defined in sections 22.757 and 22.759 of the
Commission's rules, 47 CFR 22.757, 22.759.
\34\ 13 CFR 121.201, SIC Code 4812.
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31. Air-Ground Radiotelephone Service. The Commission has not
adopted a definition of small entity specific to the Air-Ground
Radiotelephone Service.\35\ Accordingly, we will use the SBA's
definition applicable to radiotelephone companies, i.e., an entity
employing no more than
[[Page 49133]]
1,500 persons.\36\ There are approximately 100 licensees in the Air-
Ground Radiotelephone Service, and we estimate that almost all of them
qualify as small entities under the SBA definition.
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\35\ The service is defined in section 22.99 of the Commission's
rules, 47 CFR 22.99.
\36\ 13 CFR 121.201, SIC Code 4812.
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32. Private Land Mobile Radio (PLMR). PLMR systems, also known as
Private Mobile Radio Service (PMRS) systems, serve an essential role in
a range of industrial, business, land transportation, and public safety
activities.\37\ These radios are used by companies of all sizes
operating in all U.S. business categories. The Commission has not
developed a definition of small entity specifically applicable to PLMR
licensees due to the vast array of PLMR users. For the purpose of
determining whether a licensee is a small business as defined by the
SBA, each licensee would need to be evaluated within its own business
area. The Commission is unable at this time to estimate the number of
small businesses, if any, that could be impacted by the proposed rules.
However, the Commission's 1994 Annual Report on PLMRs \38\ indicates
that at the end of fiscal year 1994 there were 1,087,267 licensees
operating 12,481,989 transmitters in the PLMR bands below 512 MHz.
Because any entity engaged in a commercial activity is eligible to hold
a PLMR license, the proposed rules in this context could potentially
impact any small U.S. business that chooses to become licensed in this
service. On July 21, 1999, the Wireless Telecommunications Bureau
requested public comment on whether the licensing of PMRS frequencies
in the 800 MHz band for commercial SMR use would serve the public
interest.\39\
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\37\ See 47 CFR 20.9(a)(2) (noting that certain Industrial/
Business Pool service may be treated as common carriage service).
\38\ Federal Communications Commission, 60th Annual Report,
Fiscal Year 1994, at 116.
\39\ Public Notice, ``Wireless Telecommunications Bureau
Incorporates Nextel Communications, Inc. Waiver Record into WT
Docket No. 99-87: Seeks Comment on Licensing of PMRS Channels in the
800 MHz Band for Use in Commercial SMR Systems,'' DA 99-1431
(Wireless Telecom. Bureau July 21, 1999).
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33. Fixed Microwave Services. Microwave services include common
carrier,\40\ private-operational fixed \41\ and broadcast auxiliary
radio services.\42\ At present, there are approximately 22,015 common
carrier fixed licensees in the microwave services. The Commission has
not yet defined a small business with respect to microwave services.
For purposes of this IRFA, we will utilize the SBA's definition
applicable to radiotelephone companies--i.e., an entity with no more
than 1,500 persons.\43\ We estimate, for this purpose, that all of the
Fixed Microwave licensees (excluding broadcast auxiliary licensees)
would qualify as small entities under the SBA definition for
radiotelephone companies.
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\40\ 47 CFR 101 et seq. (formerly, Part 21 of the Commission's
rules).
\41\ Persons eligible under Parts 80 and 90 of the Commission's
rules can use Private Operational-Fixed Microwave services. See 47
CFR Parts 80 and 90. Stations in this service are called
operational-fixed to distinguish them from common carrier and public
fixed stations. Only the licensee may use the operational-fixed
station, and only for communications related to the licensee's
commercial, industrial, or safety operations.
\42\ Auxiliary Microwave Service is governed by Part 74 of the
Commission's Rules. See 47 CFR 74 et seq. Available to licensees of
broadcast stations and to broadcast and cable network entities,
broadcast auxiliary microwave stations are used for relaying
broadcast television signals from the studio to the transmitter, or
between two points such as a main studio and an auxiliary studio.
The service also includes mobile TV pickups, which relay signals
from a remote location back to the studio.
\43\ 13 CFR 121.201, SIC Code 4812.
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34. Offshore Radiotelephone Service. This service operates on
several UHF TV broadcast channels that are not used for TV broadcasting
in the coastal area of the states bordering the Gulf of Mexico.\44\ At
present, there are approximately 55 licensees in this service. We are
unable at this time to estimate the number of licensees that would
qualify as small entities under the SBA's definition for radiotelephone
communications.
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\44\ This service is governed by Subpart I of Part 22 of the
Commission's Rules. See 47 CFR 22.1001-22.1037.
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35. Wireless Communications Services. This service can be used for
fixed, mobile, radio, location and digital audio broadcasting satellite
uses. The Commission defined ``small business'' for the wireless
communications services (WCS) auction as an entity with average gross
revenues of $40 million for each of the three preceding years, and a
``very small business'' as an entity with average gross revenues of $15
million for each of the three preceding years. The Commission auctioned
geographic area licenses in the WCS service. In the auction, there were
seven winning bidders that qualified as very small business entities,
and one that qualified as a small business entity. We conclude that the
number of geographic area WCS licensees that may be affected by the
decisions and rules proposed in the Further Notice includes these eight
entities.
36. Multipoint Distribution Systems (MDS). The Commission has
defined ``small entity'' for the auction of MDS as an entity that,
together with its affiliates, has average gross annual revenues that
are not more than $40 million for the preceding three calendar
years.\45\ This definition of a small entity in the context of MDS
auctions has been approved by the SBA.\46\ The Commission completed its
MDS auction in March 1996 for authorizations in 493 basic trading areas
(BTAs). Of 67 winning bidders, 61 qualified as small entities.\47\
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\45\ 47 CFR 21.961(b)(1).
\46\ See Amendment of Parts 21 and 74 of the Commission's Rules
With Regard to Filing Procedures in the Multipoint Distribution
Service and in the Instructional Television Fixed Service and
Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, MM Docket No. 94-31 and PP Docket No. 93-253,
Report and Order, 60 FR 36524 (July 17, 1999), 10 FCC Rcd 9589
(1995).
\47\ One of these small entities, O'ahu Wireless Cable, Inc.,
was subsequently acquired by GTE Media Ventures, Inc., which did not
qualify as a small entity for purposes of the MDS auction.
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37. MDS is also heavily encumbered with licensees of stations
authorized prior to the auction. The SBA has developed a definition of
small entities for pay television services, which includes all such
companies generating $11 million or less in annual receipts.\48\ This
definition includes multipoint distribution systems, and thus applies
to MDS licensees and wireless cable operators who did not participate
in the MDS auction. Information available to us indicates that there
are 832 of these licensees and operators that do not generate revenue
in excess of $11 million annually. Therefore, for purposes of this
IRFA, we find there are approximately 892 small MDS providers as
defined by the SBA and the Commission's auction rules, some which may
be affected by the decisions and rules proposed in the Further Notice.
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\48\ 13 CFR 121.201.
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ii. Satellite Providers
38. International Service Providers. The Commission has not
developed a definition of small entities applicable to licensees in the
international services. Therefore, the applicable definition of small
entity is the definition under the SBA rules applicable to
Communications Services, Not Elsewhere Classified (NEC). This
definition provides that a small entity is expressed as one with $11
million or less in annual receipts.\49\ According to the Census Bureau,
there were a total of 848 Communications Services NEC in operation in
1992, and a total of 775 had annual receipts of less than $9.999
[[Page 49134]]
million.\50\ We note that those entities providing only international
service will not be affected by our proposed rules, if adopted. We do
not, however, have sufficient data to estimate with greater detail
those entities providing both international and domestic services or
only domestic service. Consequently, we estimate that there are fewer
than 775 small international service entities potentially impacted by
our rules.
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\49\ 13 CFR 120.121, SIC 4899.
\50\ United States Dept. of Commerce, Bureau of Census, 1992
Economic Census Industry and Enterprise Receipts Size Report, at
Table 2D.
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39. Fixed Satellite Transmit/Receive Earth Stations. Based on
actual payments from FY 1998, there are approximately 3,100 earth
station authorizations, a portion of which are Fixed Satellite
Transmit/Receive Earth Stations.\51\ We do not request nor collect
annual revenue information, and thus are unable to estimate the number
of the earth stations that would constitute a small business under the
SBA definition.
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\51\ See Assessment and Collection of Regulatory Fees for Fiscal
Year 1999, Report and Order, FCC 99-146, 64 FR 35831 (July 1, 1999)
at Attachment A (released June 18, 1999).
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40. Fixed Satellite Small Transmit/Receive Earth Stations. There
are 3,100 earth station authorizations, a portion of which are Fixed
Satellite Small Transmit/Receive Earth Stations.\52\ We do not request
nor collect annual revenue information, and thus are unable to estimate
the number of fixed satellite transmit/receive earth stations that
would constitute a small business under the SBA definition.
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\52\ Id.
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41. Fixed Satellite Very Small Aperture Terminal (VSAT) Systems.
These stations operate on a primary basis, and frequency coordination
with terrestrial microwave systems is not required. Thus, a single
``blanket'' application may be filed for a specified number of small
antennas and one or more hub stations. The Commission has processed 377
applications.\53\ We do not request nor collect annual revenue
information, and thus are unable to estimate the number of VSAT systems
that would constitute a small business under the SBA definition.
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\53\ Id.
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42. Mobile Satellite Earth Stations. There are 11 licensees.\54\ We
do not request or collect annual revenue information, and thus are
unable to estimate the number of mobile satellite earth stations that
would constitute a small business under the SBA definition.
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\54\ Id.
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43. Radio Determination Satellite Earth Stations. There are four
licensees.\55\ We do not request nor collect annual revenue
information, and thus are unable to estimate the number of radio
determination satellite earth stations that would constitute a small
business under the SBA definition.
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\55\ Id.
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44. Space Stations (Geostationary). Commission records show that
there are 43 Geostationary Space Station licensees.\56\ We do not
request nor collect annual revenue information, and thus are unable to
estimate the number of geostationary space stations that would
constitute a small business under the SBA definition.
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\56\ Id.
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45. Space Stations (Non-Geostationary). There are 12 Non-
Geostationary Space Station licensees, of which only two systems are
operational.\57\ We do not request nor collect annual revenue
information, and thus are unable to estimate the number of non-
geostationary space stations that would constitute a small business
under the SBA definition.
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\57\ Id.
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
46. This Notice of Proposed Rulemaking proposes no additional
reporting or recordkeeping measures. The Notice of Proposed Rulemaking
does seek comment on whether the Commission should permit additional
flexibility in its rules to create incentives for the extension of
wireless or satellite service to tribal lands or other unserved areas.
For example, in section III.A.1 of the Notice of Proposed Rulemaking,
we seek comment on whether to relax antenna height and transmitter
power limits for providers that commit to serving tribal lands or other
unserved areas. In section III.A.2 of the Notice of Proposed
Rulemaking, we seek comment on whether to liberalize our buildout rules
for providers that commit to serve a tribal land or other unserved
area. In section III.A.7 of the Notice of Proposed Rulemaking, we state
that to the extent that we grant additional flexibility to providers,
we believe it is important to ensure that providers actually provide
service to tribal lands or other unserved areas in exchange for such
flexibility. We therefore seek comment in that section on whether the
grant of additional flexibility to wireless or satellite licensees
should be conditioned on the existence of a binding agreement between
the licensee and relevant tribal authority in the case of tribal lands,
or a binding agreement between the licensee and another authority in
the case of other unserved areas. To the extent that licensees choose
to take advantage of any additional flexibility that we adopt, they may
be required to comply with requirements to prove the existence of such
binding agreements.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
47. As described in Section II of the Notice of Proposed
Rulemaking, the Commission held two public hearings earlier this year
at which federal and state officials, tribal officials, and
telecommunications services providers addressed issues such as the
costs of delivering services to remote areas having very low population
densities, the impact of the size of local calling areas on the
affordability of service, the quality of telephone service on tribal
lands, the complexities of governmental jurisdiction and sovereignty
issues, and the effects of low incomes and high unemployment on tribal
lands on telephone service. Following up on the record developed in
those hearings, we have decided to seek comment in this Notice of
Proposed Rulemaking on specific potential initiatives that the
Commission could adopt to facilitate the provision of
telecommunications service to tribal lands and other unserved areas
using wireless or satellite technologies.
48. For example, in section III.B.1 of the Notice of Proposed
Rulemaking, we seek comment on whether there are unallocated or
unlicensed spectrum bands that could be used by telecommunications
providers, including small entities, to serve the needs of tribal lands
and other unserved areas. In section III.B of the Notice of Proposed
Rulemaking, we seek comment on whether there are unused channels in
otherwise allocated and licensed spectrum that could be used by
telecommunications providers, including small entities, to provide
telephone service to tribal lands and other unserved areas. In section
III.A.5 of the Notice of Proposed Rulemaking, we seek comment on
whether the Commission should modify its restrictions on the transfer
of spectrum from ``designated entities'' (DEs) (entrepreneurs and small
businesses) to non-DEs in order to facilitate the provision of
telecommunications service to tribal lands or other unserved areas. We
believe that at this juncture it is necessary to seek comment on the
various alternatives set forth in this Notice of Proposed Rulemaking,
including the three listed as examples, for encouraging the provision
of telecommunications service to tribal
[[Page 49135]]
lands and other unserved areas. We encourage commenters to discuss any
other alternatives that would minimize any significant economic impact
on small entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
49. None.
List of Subjects
47 CFR Part 1
Communications common carriers, Radio, Telecommunications.
47 CFR Parts 15, 95, and 101
Communications equipment, Radio.
47 CFR Part 22
Communications common carriers, Communications equipment, Radio,
Rural areas.
47 CFR Part 24
Personal communications services, Radio.
47 CFR Part 25
Communications common carriers, Communications equipment, Radio,
Satellites.
47 CFR Part 26
Communications common carriers, Radio.
47 CFR Part 27
Wireless communications service, Radio.
47 CFR Part 90
Common carriers, Communications equipment, Radio.
47 CFR Part 100
Communications equipment, Radio, Satellites.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 99-23575 Filed 9-9-99; 8:45 am]
BILLING CODE 6712-01-P
