00-19478. Allocation of Spectrum at 2 GHz for Use by the Mobile-Satellite Service

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document confirms the Commission's decision to require new Mobile-Satellite Service (MSS) licensees in the reallocated 1990-2025 MHz and 2165-2200 MHz bands to bear the cost of relocating Broadcast Auxiliary Service (BAS, including the Cable Television Relay Service and the Local Television Transmission Service) licensees in the 1990-2110 MHz band, and Fixed Service (FS) microwave licensees from the 2165-2200 MHz bands in cases where sharing between MSS and FS is not possible. The Commission also declines a request for mandatory submission of information by incumbent BAS and FS licensees, and dismisses a petition requesting a freeze on new BAS licenses.

DATES:

Effective September 6, 2000.

FOR FURTHER INFORMATION CONTACT:

Sean White, Office of Engineering and Technology, 202/418-2453, [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Second Report and Order and Second Memorandum Opinion and Order, adopted June 27, 2000, and released July 3, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, S.W., Washington, D.C., and also may be purchased from the Commission's duplication contractor, International Transcription Service, [phone], 1231 20th Street, N.W. Washington, D.C. 20036.

Summary of the Second Report and Order and Second Memorandum Opinion and Order

1. In this Second Report and Order and Second Memorandum Opinion and Order, the Commission confirms its decision to require new Mobile-Satellite Service (MSS) licensees in the 1990-2025 MHz and 2165-2200 MHz bands to relocate incumbent BAS and FS licensees with which they are unable to share spectrum. In the March 1997 First Report and Order and Further Notice of Proposed Rule Making in ETN Docket No. 95-18, 62 FR 19509, April 22, 1997, we allocated the 1990-2025 MHz and 2165-2200 MHz bands to the Mobile-Satellite Service (MSS).

2. In response to a Petition for Further Limited Consideration filed by ICO, Ltd., we reaffirm our decision in the First Report and Order and Further Notice of Proposed Rule Making, that new MSS licensees in the 1990-2025 MHz and 2165-2200 MHz band will be required to relocate incumbent licensees in those bands, at the expense of the MSS licensees. This decision is consistent with the policy we established in the First Report and Order and Further Notice of Proposed Rule Making, ET Docket No. 92-9, 58 FR 46457, September 2, 1993; and proposed throughout that proceeding. ICO presented no new arguments justifying a change to this policy.

3. In response to a Petition for Expedited Reconsideration filed by the ICO U.S.A. Service Group (IUSG), we decline to change our decision, made in the Third Notice of Proposed Rule Making and Memorandum Opinion and Order and Order in this proceeding, ET Docket No. 95-18, 63 FR 69606, December 17, 1998, to deny a request filed by IUSG to require incumbent BAS and FS licensees to submit extensive information to facilitate the relocation process. We note that much of the information requested by IUSG is already available in our data bases, and that the remainder would be made available by incumbent BAS and FS licensees in the relocation negotiation process.

4. In response to an Emergency Petition for Further Limited Consideration filed by IUSG, we decline as moot a request to impose a “freeze” on the licensing of new BAS facilities. We reject this petition because we made no prior decision on the issue of freezing BAS licenses, and therefore the issue was not ripe for reconsideration. Further, we address the freezing of BAS licenses in the Second Report and Order.

5. This allocation will require that the candidate bands be cleared of BAS incumbents in the 1990-2025 MHz band. In order to accommodate these incumbents, we confirm our decision to require MSS licensees to bear the costs of moving BAS licensees to their new band, at 2025-2110 MHz. The relocation of BAS licensees will occur in two phases. In Phase I, the BAS band, which currently consists of seven channels of 17 or 18 megahertz, will be narrowed by reducing the channels to 14.5 or 15 megahertz each, freeing 18 megahertz of spectrum at 1990-2008 MHz for initiation of MSS operations. When this 18 megahertz is fully occupied, and MSS licensees require the remaining 17 megahertz of spectrum, at 2008-2025, Phase II of the BAS relocation will begin, and the BAS band will be reduced to its final form of seven channels of 12.1 or 12.4 megahertz width, at 2025-2110 MHz. BAS licensees and MSS licensees will negotiate the terms of relocation, but generally, the costs of relocation will be borne by MSS.

6. The MSS allocation will also require relocation of FS microwave incumbents. We addressed this issue in the First Report and Order and Further Notice of Proposed Rule Making in ET Docket No. 92-9, 58 FR 46457, September 2, 1993, and will follow the same procedures, requiring that MSS licensees negotiate relocation with FS licensees and bear the cost of relocating them from the 2165-2200 MHz band.

Final Regulatory Flexibility Analysis

7. As required by the Regulatory Flexibility Act (RFA),^[1] an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the First Report and Order and Further Notice of Proposed Rule Making ^[2] and the Memorandum Opinion and Order and Third Notice of Proposed Rule Making and Order (Third Notice) ^[3] in this docket, ET Docket No. 95-18. The Commission sought written comment on the proposals in the First R&O/Further Notice and the Third Notice, including comment on the IRFAs. The present Final Regulatory Flexibility Analysis (FRFA) in this Second Report and Order and Second Memorandum Opinion and Order (Second R&O/Second MO&O) conforms to the RFA.^[4]

A. Need for, and Objectives of, this Second R&O/Second MO&O

8. This Second R&O/Second MO&O establishes rules to govern the relocation of Broadcast Auxiliary Service (BAS), Local Television Transmission Service (LTTS), and Cable Television Relay Service (CARS) licensees from the 1990-2025 MHz band to the remainder of the BAS band, at 2025-2110 MHz. The 1990-2025 MHz band has been reallocated to the Mobile-Satellite Service (MSS). This Second R&O/Second MO&O also establishes rules to govern the relocation of Fixed Service (FS) licensees from the 2165-2200 MHz spectrum, reallocated to the MSS, to FS bands above 4 GHz. These rules are designed to ensure an orderly and expeditious transition of these licensees from the 2 GHz spectrum so that MSS operations may be conducted in a designated segment of the spectrum. At the same time, the rules are designed to ensure that incumbent BAS, LTTS, CARS, and FS licensees suffer no harm from relocation.

B. Summary of Significant Issues Raised in Comments in Response to the IRFAs

9. No comments were filed in response to the IRFAs. Nonetheless, the Commission considered the impact of our rules governing the relocation of the BAS, LTTS, CARS, and FS licensees, some of whom may be small entities, from the 2 GHz spectrum. This 2 GHz spectrum was reallocated to the MSS, none of whose licensees will be small entities. The Commission considered several different relocation scenarios, some of which would have imposed the economic burden of relocation on BAS, LTTS, CARS, and FS licensees, including small entities. The Commission rejected a variety of scenarios which would have shifted some or all of the economic burden of relocation from MSS licensees to BAS, LTTS, CARS, and FS licensees. See Section E infra for a discussion of the alternatives considered by the Commission.

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

10. 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.^[5] The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of the Small Business Act.^[6] A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.^[7] The term “small entity” also has the same meaning as “small governmental jurisdiction,” which means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” ^[8]

(a) BAS, LTTS, and CARS Licensees: This service involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit to the studio). CARS includes transmitters generally used to relay cable programming within cable television system distribution systems. BAS and LTTS licensees are entities classified by the SBA as Category 4833 (Television Broadcasting Stations), which are small businesses if they have annual revenues below 10.5 million dollars.^[9] CARS licensees are classified as Category 4841 (Cable and Other Pay Television Services), which are small businesses if they have annual revenues below 11 million dollars.^[10]

(1) The Commission estimates that there are a total of approximately 2200 BAS, LTTS, and CARS licensees in the United States. Neither the Commission nor the Department of Commerce collect financial information on any broadcast facility, including these auxiliary facilities. We believe, however, that few, if any, of these licensees could be classified as small businesses. Most auxiliary transmitters are owned by parent stations that would likely have annual revenues that exceed the SBA maximum to be designated as a small business ($10.5 million for a TV station and $11 million for a cable system). Furthermore, they do not meet the Small Business Act's definition of a “small business concern” because they are not independently owned and operated.

(b) MSS Licensees: The Commission has not developed a definition of small entities applicable to MSS licensees. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to Category 4899 (Communications Services “Not Elsewhere Classified” (NEC)). This definition provides that a small entity is one with $11.0 million or less in annual receipts.^[11] Eight potential MSS licensees will be affected by this rule making proceeding. Given the extremely high start-up costs for MSS companies, none will be small entities.

(c) FS Licensees: The Commission has not developed a definition of small entities applicable to FS microwave licensees. Licensees in this service are State and local governments and SBA Categories 4813 (Telephone Communications, Except Radiotelephone),^[12] 4619 (Pipelines, N.E.C.),^[13] 4911 (Electric Services) and other utility companies,^[14] and Major Group 47 (Transportation Services, i.e., railroads).^[15] Therefore, the applicable definitions of small entity are the definition under the SBA rules applicable to these activities. This definition provides that small entities are Telephone Communications companies employing fewer than 1500 employees, Pipeline companies with annual receipts of less than $25 million, Electric Services companies generating less than 4 million megawatt hours annually, and Transportation Services, including railroads, with annual receipts of less than $5 million annually. Licensees in the FS also include State and local governments with populations of less than 50,000.

(1) Some FS licensees are likely to be small entities. Using Census Bureau data we estimate that 81,600 of the State and local Governments are small entities.^[16] There are approximately 4200 FS microwave links licensed to Telephone Communications companies. The Commission has no data on how many of these links belong to each licensee. Therefore, the total number of telephone licensees must be 4200 or less, of whom a minority may be small entities. Approximately 4000 FS microwave links are licensed to Pipeline companies, Electric Services companies, Transportation Services including railroads, and local and State governments. The Commission has no data on how many of these links belong to each licensee. Therefore, the total number of Pipeline companies, Electric Services companies, Transportation Services including railroads, and local and State government licensees must be 4000 or less, of whom a minority may be small entities.

(d) Using the best data available, the Commission estimates that a large majority of BAS, LTTS, CARS, and FS licensees are not small entities. Because of the high costs attendant to the start-up of MSS operations, none of the eight MSS licensees affected by this rule making will be small entities.

D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

11. The adopted rules would require affected BAS, LTTS, CARS, and FS licensees, some of whom may be small entities, to negotiate with MSS licensees for relocation (including replacement or retuning of equipment) or rechannelization or both. These negotiations would include negotiating timetables for relocation and costs. These negotiations are likely to require the skills of accountants and engineers to evaluate the economic and technical requirements of relocation, and of attorneys or other negotiators to conduct negotiations. The estimated cost per incumbent BAS, LTTS, CARS, or FS licensee of relocation negotiations is $2000 to $8000. The Commission has permitted BAS, LTTS, CARS, and FS licensees to negotiate collectively for relocation. Collective negotiations, if employed by these licensees, will reduce the costs of negotiation for each licensee.

E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

12. The Commission decided that new MSS licensees, none of whom will be small entities, will be required to relocate or rechannelize incumbent BAS, LTTS, CARS, and FS licensees in the 2 GHz band, some of whom are likely to be small entities, at the expense of the new MSS licensees. The Commission considered the alternative of requiring current BAS, LTTS, CARS, and FS licensees in the 2 GHz band to relocate or rechannelize at their own expense. The Commission rejected this alternative as excessively burdensome on these incumbent licensees, including small entities, and not in the public interest.

13. MSS commenters advocated requiring BAS, LTTS, and CARS licensees to finance their own relocation as their equipment depreciated and they purchased new equipment, claiming that the total costs of relocation, added to the high cost of launching satellites, would cripple the nascent MSS industry. MSS commenters also asserted, however, that there is a huge, underserved demand for MSS. We believe that MSS licensees will build the cost of relocating BAS, LTTS, and CARS licensees into their financial plans, and still will be able to provide service at a profit. In the alternative, MSS may choose to defer expeditious access to the spectrum currently heavily used by BAS, LTTS, and CARS licensees and defer deployment of MSS systems for ten years, in which case no relocation or rechannelization would be required.

14. MSS commenters advocated requiring MSS licensees to pay only the depreciated value of the equipment of incumbent FS licensees, some of which may be small entities. The Commission rejected this position, adhering to our requirement that MSS licensees must provide relocated incumbent FS licensees with comparable facilities in the bands to which the FS licensees are relocated.

15. In the case of involuntary relocation of BAS, LTTS, CARS, and FS licensees, the Commission applied the requirements of our Emerging Technologies policies: (1) payment of all relocation expenses by the MSS operator, (2) full comparability of replacement facilities, and (3) the right of the incumbents to demand that MSS licensees cure any defects, should the replacement facilities prove not to be fully comparable after relocation. The relocation requirements adopted by the Commission will guarantee that BAS, LTTS, CARS, and FS licensees, some of whom are likely to be small entities, will suffer no, or minimal, economic impact as a result of relocation.

Report to Congress: The Commission will send a copy of the Second R&O/Second MO&O, including this FRFA, in a report to be sent to Congress pursuant to the SBREFA, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Second R&O/Second MO&O, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 2

• Frequency allocations and radio treaty matters
• Radio

47 CFR Parts 74 and 101

• Radio

47 CFR Part 78

• Cable television
• Radio

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons discussed in the preamble, parts 2, 74, 78, and 101 of title 47 of the Code of Federal Regulations are amended as follows:

PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS

1. The authority citation for part 2 continues to read as follows:

Authority: 47 U.S.C. 154, 302(a), 303, and 336, unless otherwise noted.

2. In § 2.106, the Table of Frequency Allocations is amended to read as follows:

a. Revise pages 48 and 49 of the Table.

b. In the list of United States footnotes, revise footnote US90, remove footnotes US111 and US219, and add footnotes US346 and US347.

c. In the list of non-Federal Government footnotes, revise footnotes NG23, NG118 and NG153, and add footnotes NG156 and NG168.

The revisions and additions read as follows:

§ 2.106

Table of Frequency Allocations.

* * * * *

* * * * *

United States (US) Footnotes

* * * * *

US90 In the band 2025-2110 MHz, the power flux-density at the Earth's surface produced by emissions from a space station in the space operation, Earth exploration-satellite, or space research services that is transmitting in the space-to-space direction, for all conditions and all methods of modulation, shall not exceed the following values in any 4 kHz sub-band:

(a) −154 dBW/m² for angles of arrival above the horizontal plane (δ) of 0° to 5°,

(b) −154 + 0.5(δ−5) dBW/m² for δ of 5° to 25°, and

(c) −144 dBW/m² for δ of 25° to 90°.

* * * * *

US346 Except as provided by footnote US222, the use of the band 2025-2110 MHz by the Government space operation service (Earth-to-space), Earth exploration-satellite service (Earth-to-space), and space research service (Earth-to-space) shall not constrain the deployment of the Television Broadcast Auxiliary Service, the Cable Television Relay Service, or the Local Television Transmission Service. To facilitate compatible operations between non-Government terrestrial receiving stations at fixed sites and Government earth station transmitters, coordination is required. To facilitate compatible operations between non-government terrestrial transmitting stations and Government spacecraft receivers, the terrestrial transmitters shall not be high-density systems (see Recommendations ITU-R SA.1154 and ITU-R F.1247).

US347 In the band 2025-2110 MHz, non-Government Earth-to-space and space-to-space transmissions may be authorized in the space research and Earth exploration-satellite services subject to such conditions as may be applied on a case-by-case basis. Such transmissions shall not cause harmful interference to Government and non-Government stations operating in accordance with the Table of Frequency Allocations.

* * * * *

Non-Federal Government (NG) Footnotes

* * * * *

NG23 Frequencies in the band 2100-2200 MHz may also be assigned to stations in the International Fixed Public Radiocommunication Services located south of 25° 30′ North Latitude in the State of Florida and in U.S. insular areas in the Caribbean, except that no new assignments in the band 2150-2162 MHz will be made to such stations after February 25, 1974 and no new assignments in the band 2165-2200 MHz will be made to such stations after June 27, 2000.

* * * * *

NG118 In the band 2025-2110 MHz, television translator relay stations may be authorized to use frequencies on a secondary basis to other stations in the Television Broadcast Auxiliary Service that are operating in accordance with the Table of Frequency Allocations.

* * * * *

NG153 The bands 2110-2150 MHz and 2160-2165 MHz are reserved for future emerging technologies on a co-primary basis with the fixed and mobile services. Allocations to specific services will be made in future proceedings.

* * * * *

NG156 The band 1990-2025 MHz is also allocated to the fixed and mobile services on a primary basis for facilities where the receipt date of the initial application was prior to June 27, 2000, and on a secondary basis for all other initial applications. Not later than September 6, 2010, the band 1990-2025 MHz is allocated to the fixed and mobile services on a secondary basis.

* * * * *

NG168 The band 2165-2200 MHz is also allocated to the fixed and mobile services on a primary basis for facilities where the receipt date of the initial application was prior to January 16, 1992, and on a secondary basis for all other initial applications. Not later than September 6, 2010, the band 2165-2200 MHz is allocated to the fixed and mobile services on a secondary basis.

* * * * *

PART 74—EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER PROGRAM DISTRIBUTION SERVICES

3. The authority citation for part 74 continues to read as follows:

Authority: 47 U.S.C. 154, 303, 307, 336(f) and 554.

4. Section 74.602 is amended by adding paragraphs (a)(3) and (a)(4) to read as follows:

§ 74.602

Frequency assignment.

(a) * * *

(3)(i) After January 1, 2000, stations may adhere to the channel plan specified in paragraph (a) of this section, or to the following channel plan in Band A:

Channel A01—2008-2023 MHz

Channel A02—2023-2037.5 MHz

Channel A03—2037.5-2052 MHz

Channel A04—2052-2066.5 MHz

Channel A05—2066.5-2081 MHz

Channel A06—2081-2095.5 MHz

Channel A07—2095.5-2110 MHz

(ii) Broadcast Auxiliary Service, Cable Television Remote Pickup Service, and Local Television Transmission Service licensees in Nielsen Designated Market Areas 1-30 will be required to use the Band A channel plan in paragraph (a)(3)(i) of this section after completion of relocation by an Emerging Technologies licensee in accordance with § 74.690. Licensees declining relocation and licensees in Nielsen Designated Market Areas 31 and higher will be required to discontinue use of the 1990-2008 MHz band when informed by a Mobile-Satellite Service licensee that it intends to begin operations in the 1990-2008 MHz band.

(4)(i) When Mobile-Satellite Service licensees begin operations in the 2008-2025 MHz band, stations may adhere to the channel plan specified, but are forbidden to use Channel A01, or may adhere to the following channel plan in Band A:

Channel A01—2025-2037.4 MHz

Channel A02—2037.4-2049.5 MHz

Channel A03—2049.5-2061.6 MHz

Channel A04—2061.6-2073.7 MHz

Channel A05—2073.7-2085.8 MHz

Channel A06—2085.8-2097.9 MHz

Channel A07—2097.9-2110 MHz

(ii) Broadcast Auxiliary Service, Cable Television Remote Pickup Service, and Local Television Transmission Service licensees in Nielsen Designated Market Areas 1-30 will be required to use the Band A channel plan in paragraph (a)(4)(i) of this section after completion of relocation by an Emerging Technologies licensee in accordance with § 74.690. Licensees declining relocation and licensees in Nielsen Designated Market Areas 31 and higher will be required to discontinue use of the 2008-2025 MHz band when informed by a Mobile-Satellite Service licensee that it intends to begin operations in the 2008-2025 MHz band.

5. Section 74.690 is added to Subpart F to read as follows:

§ 74.690

Transition of the 1990-2025 MHz band from the Broadcast Auxiliary Service to emerging technologies.

(a) Licensees proposing to implement Mobile-Satellite Services using emerging technologies (MSS Licensees) may negotiate with Broadcast Auxiliary Service licensees (Existing Licensees) in the 1990-2110 MHz band for the purpose of agreeing to terms under which the Existing Licensees would relocate their operations to the 2025-2110 MHz band, to other authorized bands, or to other media; or alternatively, would discontinue use of the 2008-2025 MHz band when informed by a Mobile-Satellite Service licensee that it intends to begin operations in the 2008-2025 MHz band.

(b) Existing Licensees in the 1990-2025 MHz band allocated for licensed emerging technology services will maintain primary status in these bands until an MSS Licensee completes relocation of the Existing Licensee's operations.

(c) The Commission will amend the operating license of the Existing Licensee to secondary status only if the following requirements are met:

(1) The service applicant, provider, licensee, or representative using an emerging technology guarantees payment of all relocation costs, including all engineering, equipment, site and FCC fees, as well as any reasonable additional costs that the relocated Existing Licensee might incur as a result of operation in another authorized band or migration to another medium;

(2) The MSS Licensee completes all activities necessary for implementing the replacement facilities, including engineering and cost analysis of the relocation procedure and, if radio facilities are used, identifying and obtaining, on the incumbents' behalf, new microwave or Local Television Transmission frequencies and frequency coordination; and

(3) The MSS Licensee builds the replacement system and tests it for comparability with the existing system.

(d) The Existing Licensee is not required to relocate until the alternative facilities are available to it for a reasonable time to make adjustments, determine comparability, and ensure a seamless handoff. If within one year after the relocation to new facilities the Existing Licensee demonstrates that the new facilities are not comparable to the former facilities, the MSS Licensee must remedy the defects.

(e) Subject to the terms of this paragraph (e), Phase I of the relocation of Existing Licensees will be carried out in the following manner:

(1) Beginning September 6, 2010, Existing Licensees and MSS Licensees may negotiate individually or collectively for relocation of Existing Licensees to one of the channel plans specified in § 74.602(a)(3). Parties may not decline to negotiate, though Existing Licensees may decline to be relocated. MSS Licensees must relocate all Existing Licensees in Nielsen Designated Market Areas 1-30 prior to beginning operations, except those Existing Licensees that decline relocation. If the parties are unable to reach a negotiated agreement, MSS Licensees may involuntarily relocate Existing Licensees after two years. As of the date that any MSS Licensee announces the beginning of operations in the 1990-2008 MHz band, licensees who are not on the new channel plan specified in § 74.602(a)(3) must discontinue use of Channel A01 (1990-2008 MHz).

(2) Before negotiating with MSS Licensees, Existing Licensees in Nielsen Designated Market Areas where there is a BAS frequency coordinator must coordinate and select a band plan for the market area. Thereafter, all negotiations must produce solutions that adhere to the market area's band plan.

(3) After the date the first MSS Licensee begins operations, MSS Licensees must relocate Existing Licensees in Nielsen Designated Market Areas 31-100 within three years, unless any Existing Licensee declines relocation.

(4) Beginning on the date any MSS Licensee announces in writing to Existing Licensees its intention to begin operations in the 2008-2025 MHz band, Existing Licensees and MSS Licensees may negotiate individually or collectively for relocation of Existing Licensees to one of the channel plans specified in § 74.602(a)(4). MSS Licensees must relocate all Existing Licensees in Nielsen Designated Market Areas 1-30 prior to beginning operations, except those Existing Licensees that decline relocation. If the parties are unable to reach a negotiated agreement, MSS Licensees may involuntarily relocate Existing Licensees after two years. As of the date that any MSS Licensee announces its intention to begin operations in the 2008-2025 MHz band, licensees who are not on the new channel plan specified in § 74.602(a)(4) must discontinue use of Channel A01 (2008-2023 MHz).

(5) After the date the first MSS Licensee begins operations in the 2008-2025 MHz band, MSS Licensees must relocate Existing Licensees in Nielsen Designated Market Areas 31-100 within three years, and in the remaining Nielsen Designated Market Areas within five years.

(6) Ten years after the date specified in paragraph (e)(1) of this section, all Existing Licensees will become secondary in the 1990-2025 MHz band. Upon written demand by any MSS Licensee, Existing Licensees must cease all operations in the 1990-2025 MHz band within six months.

PART 78—CABLE TELEVISION RELAY SERVICE

6. The authority citation for part 78 continues to read as follows:

Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as amended, 1064, 1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309.

§ 78.11

[Amended]

7. Section 78.11(f) is amended by removing the term “1990-2110 MHz” and adding in its place “2025-2110 MHz”.

8. Section 78.18 is amended by designating the text following the heading of paragraph (a)(6) as paragraph (a)(6)(i) and adding paragraph (a)(6)(ii) to read as follows:

§ 78.18

Frequency assignments.

(a) * * *

(6) * * *

(i) * * *

(ii) After a licensee has been relocated in accordance with the provisions of § 78.40, operations will be in the band 2025-2110 MHz. The following channel plan will apply, subject to the provisions of § 74.604 of this chapter:

Frequency Band (MHz)

2025-2037.4

2037.4-2049.5

2049.5-2061.6

2061.6-2073.7

2073.7-2085.8

2085.8-2097.9

2097.9-2110

* * * * *

9. Section 78.40 is added to Subpart B to read as follows:

§ 78.40

Transition of the 1990-2025 MHz band from the Cable Television Relay Service to Emerging Technologies.

(a) Licensees proposing to implement Mobile-Satellite Services using emerging technologies (MSS Licensees) may negotiate with Cable Television Relay Service licensees (Existing Licensees) in the 1990-2110 MHz band for the purpose of agreeing to terms under which the Existing Licensees would relocate their operations to the 2025-2110 MHz band, to other authorized bands, or to other media; or alternatively, would accept a sharing arrangement with the MSS Licensee that may result in an otherwise impermissible level of interference to the Existing Licensee's operations.

(b) Existing Licensees in the 1990-2025 MHz band allocated for licensed emerging technology services will maintain primary status in these bands until an MSS Licensee completes relocation of the Existing Licensee's operations.

(c) The Commission will amend the operating license of the Existing Licensee to secondary status only if the following requirements are met:

(1) The service applicant, provider, licensee, or representative using an emerging technology guarantees payment of all relocation costs, including all engineering, equipment, site and FCC fees, as well as any reasonable additional costs that the relocated Existing Licensee might incur as a result of operation in another authorized band or migration to another medium;

(2) The MSS Licensee completes all activities necessary for implementing the replacement facilities, including engineering and cost analysis of the relocation procedure and, if radio facilities are used, identifying and obtaining, on the incumbents' behalf, new microwave or Local Television Transmission frequencies and frequency coordination; and

(3) The MSS Licensee builds the replacement system and tests it for comparability with the existing system.

(d) The Existing Licensee is not required to relocate until the alternative facilities are available to it for a reasonable time to make adjustments, determine comparability, and ensure a seamless handoff.

(e) If within one year after the relocation to new facilities the Existing Licensee demonstrates that the new facilities are not comparable to the former facilities, the MSS Licensee must remedy the defect.

(f) Subject to the terms of this paragraph (f), Phase I of the relocation of Existing Licensees will be carried out in the following manner:

(1) Beginning September 6, 2000, Existing Licensees and MSS Licensees may negotiate individually or collectively for relocation of Existing Licensees to one of the channel plans specified in § 74.602(a)(3) of this chapter. Parties may not decline to negotiate, though Existing Licensees may decline to be relocated. MSS Licensees must relocate all Existing Licensees in Nielsen Designated Market Areas 1-30 prior to beginning operations, except those Existing Licensees that decline relocation. If the parties are unable to reach a negotiated agreement, MSS Licensees may involuntarily relocate Existing Licensees after two years. As of the date that any MSS Licensee announces the beginning of operations in the 1990-2008 MHz band, licensees who are not on the new channel plan specified in § 74.602(a)(3) of this chapter must discontinue use of Channel A01 (1990-2008 MHz).

(2) Before negotiating with MSS Licensees, Existing Licensees in Nielsen Designated Market Areas where there is a BAS frequency coordinator must coordinate and select a band plan for the market area. Thereafter, all negotiations must produce solutions that adhere to the market area's band plan.

(3) After the date the first MSS Licensee begins operations, MSS Licensees must relocate Existing Licensees in Nielsen Designated Market Areas 31-100 within three years, unless any Existing Licensee declines relocation.

(4) Beginning on the date any MSS Licensee announces in writing to Existing Licensees its intention to begin operations in the 2008-2025 MHz band, Existing Licensees and MSS Licensees may negotiate individually or collectively for relocation of Existing Licensees to one of the channel plans specified in § 74.602(a)(4) of this chapter. MSS Licensees must relocate all Existing Licensees in Nielsen Designated Market Areas 1-30 prior to beginning operations, except those Existing Licensees that decline relocation. If the parties are unable to reach a negotiated agreement, MSS Licensees may involuntarily relocate Existing Licensees after two years. As of the date that any MSS Licensee announces its intention to begin operations in the 2008-2025 MHz band, licensees who are not on the new channel plan specified in § 74.602(a)(4) of this chapter must discontinue use of Channel A01 (2008-2023 MHz).

(5) After the date the first MSS Licensee begins operations in the 2008-2025 MHz band, MSS Licensees must relocate Existing Licensees in the remaining Nielsen Designated Market Areas within three years.

(6) Ten years after the date specified in paragraph (f)(1) of this section, all Existing Licensees will become secondary in the 1990-2025 MHz band. Upon written demand by any MSS Licensee, Existing Licensees must cease all operations in the 1990-2025 MHz band within six months.

§ 78.101

[Amended]

10. In § 78.101(a), the table is amended by removing the term “1,990 to 2,110” in the first column and adding in its place “2,025 to 2,110”.

11. In § 78.103(e) the table is revised to read as follows:

§ 78.103

Emissions and emission limitations.

* * * * *

(e) * * *

Frequency band (MHz)	Maximum authorized band-width (MHz)
1,990 to 2,110	17 or 18.1
6,425 to 6,525	8 or 25.
6,875 to 7,125	25.
12,700 to 13,250	25.
17,700 to 19,700	80.
31,000 to 31,300	25 or 50.
1 After a licensee has been relocated in accordance with § 78.40, the maximum authorized bandwidth in the frequency band 2,025 to 2,110 MHz will be 12.1/12.4 MHz.

PART 101—FIXED MICROWAVE SERVICES

12. The authority citation for part 101 continues to read as follows:

Authority: 47 U.S.C. 154, 303.

13. Section 101.69 is amended by adding paragraph (d) to read as follows:

§ 101.69

Transition of the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz bands from the fixed microwave services to personal communications services and emerging technologies.

* * * * *

(d) Relocation of FMS licensees in the 2165-2200 MHz band by Mobile-Satellite Service (MSS) licensees will be subject to mandatory negotiations only. Mandatory negotiation periods are defined as follows:

(1) Non-public safety incumbents will have a two-year mandatory negotiation period; and

(2) Public safety incumbents will have a three-year mandatory negotiation period.

14. Section 101.73 is amended by adding paragraph (d) to read as follows:

§ 101.73

Mandatory negotiations.

* * * * *

(d) Provisions for Relocation of Fixed Microwave Licensees in the 2165-2200 MHz band. Mandatory negotiations will commence when the Mobile-Satellite Service (MSS) licensee informs the fixed microwave licensee in writing of its desire to negotiate. Mandatory negotiations will be conducted with the goal of providing the fixed microwave licensee with comparable facilities, defined as facilities possessing the following characteristics:

(1) Throughput. Communications throughput is the amount of information transferred within a system in a given amount of time. If analog facilities are being replaced with analog, comparable facilities provide an equivalent number of 4 kHz voice channels. If digital facilities are being replaced with digital, comparable facilities provide equivalent data loading bits per second (bps).

(2) Reliability. System reliability is the degree to which information is transferred accurately within a system. Comparable facilities provide reliability equal to the overall reliability of the FMS system. For digital systems, reliability is measured by the percent of time the bit error rate (BER) exceeds a desired value, and for analog or digital voice transmission, it is measured by the percent of time that audio signal quality meets an established threshold. If an analog system is replaced with a digital system, only the resulting frequency response, harmonic distortion, signal-to-noise and its reliability will be considered in determining comparable reliability.

(3) Operating Costs. Operating costs are the cost to operate and maintain the FMS system. MSS licensees would compensate FMS licensees for any increased recurring costs associated with the replacement facilities (e.g., additional rental payments, and increased utility fees) for five years after relocation. MSS licensees could satisfy this obligation by making a lump-sum payment based on present value using current interest rates. Additionally, the maintenance costs to the FMS licensee would be equivalent to the 2 GHz system in order for the replacement system to be comparable.

15. Section 101.75 is amended by adding two sentences at the end of paragraph (d), to read as follows:

§ 101.75

Involuntary relocation procedures.

* * * * *

(d) * * * FMS licensees relocated from the 2165-2200 MHz band may not be returned to their former 2 GHz channels. All other remedies specified in this paragraph (d) are available to FMS licensees relocated from the 2165-2200 MHz band, and may be invoked whenever the FMS licensee demonstrates that its replacement facility is not comparable, subject to no time limit.

16. Section 101.83 is added to Subpart B to read as follows:

§ 101.83

Reimbursement of relocation expenses in the 2115-2150 MHz and 2165-2200 MHz bands.

(a) Whenever an ET licensee (including Mobile-Satellite Service licensees) in the 2115-2150 MHz or 2165-2200 MHz bands relocates an incumbent paired microwave link with one path in the 2115-2150 MHz band, and the paired path in the 2165-2200 MHz band, the ET licensee is entitled to reimbursement of 50% of its relocation costs from any subsequently entering ET licensee which would have been required to relocate the same fixed microwave link.

(b) The subsequently entering ET licensee must reimburse the relocating ET licensee before the subsequently entering licensee may begin operations in these bands, unless the subsequently entering ET licensee can demonstrate that, according to established interference criteria, it would not have interfered with the microwave link in question.

(c) The total costs of which 50% is to be reimbursed will not exceed $250,000 per paired fixed microwave link relocated, nor $150,000 if a new or modified tower is required.

Footnotes

1.  See 5 U.S.C. 601. 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.  First R&O/Further Notice, 12 FCC Rcd 7388, 62 FR 19509, April 22, 1997.

3.  Third Notice, 13 FCC Rcd 23949, 63 FR 69606.

4.  See 5 U.S.C. 604.

5.  5 U.S.C.. 603(b)(3).

6.  Id. 601(3).

7.  Id. At 632.

8.  Id. At 601(5).

9.  13 CFR 121.210, Standard Industrial Classification (SIC) Code 4833.

10.  Id. SEC Code 4812.

11.  Id. SIC Code 4899.

12.  Id. SIC Code 4813.

13.  Id. SIC Code 4619.

14.  Id. SIC Code 4911.

15.  Id. SIC Major Group 47.

16.  See 5 U.S.C. 601(5).