02-24421. The Development of Operational, Technical and Spectrum Requirements For Meeting Federal, State and Local Public Safety Agency Communication Requirements Through the Year 2010

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Commission finalizes various technical and operational rules and policies regarding use of public safety frequencies in the 764-776 MHz and 794-806 MHz bands designated for narrowband Interoperability uses. (“Interoperability” is used here to mean an essential communications link within public safety and public service wireless communications systems which permits units from two or more different entities to interact with one another and to exchange information according to a prescribed method in order to achieve predictable results.) This action follows the recommendation of the Public Safety National Coordination Committee (NCC). Also, in this document the Commission addresses petitions for reconsideration or clarification of the Fourth Report and Order. Finally the Commission considers on its own motion several matters prompted by these petitions and other filings. These Commission actions will facilitate public safety Interoperability capabilities in the 700 MHz Band.

DATES:

This rule is effective October 28, 2002. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of October 28, 2002.

FOR FURTHER INFORMATION CONTACT:

Roberto Mussenden [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Federal Communications Commission's Fourth Memorandum Opinion and Order, FCC 02-67, adopted on March 5, 2002, and released on March 14, 2002, as corrected by Erratum, DA 02-902 (rel. April 19, 2002), and Second Erratum, DA-02-2297 (rel. September 20, 2002). The full text of this Fourth Memorandum Opinion and Order is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text with the summarized band plan chart may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at [phone] or TTY [phone].

1. We have carefully considered the issues presented on reconsideration of the Fourth Report and Order, 66 FR 10632, February 16, 2001. We agree with petitioners that “secondary trunking channels” ought to be evenly distributed among all four former TV channels 63, 64, 68, and 69, but decline to designate 6.25 kHz bandwidth “guard channels,” immediately above and below each narrowband Interoperability channel set (12.5 kHz bandwidth). Because the proposed pre-coordination database is not yet operational, we believe it premature, at this time, to mandate that public safety entities use such a database as a condition of licensing in the 700 MHz public safety band. In addition, we continue to believe that states and local jurisdictions are in the best position to determine access priority levels, and thus we refrain from establishing nationwide, codified priority levels in the 700 MHz public safety band. Likewise, we affirm our decision not to adopt a table of Interoperability channel assignments for nationwide use. Finally, we believe that adoption of Project 25 Phase I as the digital voice standard for the 700 MHz public safety band Interoperability channels will allow for early entry into that spectrum by public safety entities located in areas presently unencumbered by television stations operating on TV channels 63, 64, 68, and 69; thus we do not believe a transition period is necessary before the standard becomes mandatory.

I. Procedural Matters

A. Regulatory Flexibility Act

2. Paragraph four contains a Supplemental Final Regulatory Flexibility Analysis (SFRFA) with respect to the Fourth Memorandum Opinion and Order. As required by the Regulatory Flexibility Act, the Commission has prepared the analysis of the possible impact on small entities of the rules set forth in this document. The Commission's Consumer Information Bureau, Reference Information Center, will send a copy of this Fourth Memorandum Opinion and Order, including the SFRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the Regulatory Flexibility Act.

B. Paperwork Reduction Act

3. This Fourth Memorandum Opinion and Order does not contain any new or modified information collection. Therefore, it is not subject to the requirements for a paperwork reduction analysis, and the Commission has not performed one.

II. Supplemental Final Regulatory Flexibility Analysis

4. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Fourth Notice of Proposed Rule Making, 65 FR 51788, August 25, 2000, of this proceeding. The Commission sought written public comment on the proposals in the Fourth Notice of Proposed Rule Making, including comment on the IRFA. A Final Regulatory Flexibility Analysis (FRFA) was incorporated into the Fourth Report and Order. The present Supplemental Final Regulatory Flexibility Analysis (SFRFA) conforms to the RFA.

A. Need for, and Objectives of, the Fourth Memorandum Opinion and Order

5. Our objective is to promote the early and efficient use of public safety spectrum in the frequencies at 764-776 MHz and 794-806 MHz (the 700 MHz band). Specifically, this action will: promote spectrum efficiency through allowing secondary trunking on the Interoperability channels; promote efficient administration of the Interoperability channels by state or local entities; permit encryption on the Interoperability channels; and establish digital voice standards and efficiency standards for the Interoperability channels.

B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

6. No comments were submitted in response to the IRFA.

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

7. 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. The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operations; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (ninety-one percent) are small entities.

8. Public Safety Radio Pool Licensees. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Spectrum in the 700 MHz band for public safety services is governed by 47 U.S.C. 337. Non-Federal governmental entities as well as private businesses are licensees for these services. All governmental entities with populations of less than 50,000 fall within the definition of a small entity.

9. Radio and Television Equipment Manufacturers. We anticipate that at least six radio equipment manufacturers will be affected by our decisions in this proceeding. According to the SBA's regulations, a radio and television broadcasting and communications equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would therefore be classified as small entities. We do not have information that indicates how many of the six radio equipment manufacturers associated with this proceeding are among these 778 firms. However, Motorola and Ericsson, two of the six manufacturers, are major, nationwide radio equipment manufacturers, and, thus, we conclude that these manufacturers would not qualify as small businesses.

10. Television Stations. This proceeding will affect full service TV station licensees (Channels 60-69), TV translator facilities, and low power TV (LPTV) stations. The SBA defines a TV broadcasting station that has no more than $10.5 million in annual receipts as a “small business.” TV broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by TV to the public, except cable and other pay TV services. Included in this industry are commercial, religious, educational, and other TV stations. Also included are establishments primarily engaged in TV broadcasting and which produce taped TV program materials. Separate establishments primarily engaged in producing taped TV program materials are classified under another NAICS Code.

11. There were 1,509 TV stations operating in the United States in 1992. That number has remained fairly constant as indicated by the approximately 1,551 operating TV broadcasting stations in the United States as of February 28, 1997. For 1992 the number of TV stations that produced less than $10.0 million in revenue was 1,155 establishments, or approximately 77 percent of the 1,509 establishments. There are currently 95 full service analog TV stations, either operating or with approved construction permits on channels 60-69. In the DTV Proceeding, we adopted a DTV Table that provides only 15 allotments for DTV stations on channels 60-69 in the continental United States. There are seven DTV allotments in channels 60-69 outside the continental United States. Thus, the rules will affect approximately 117 TV stations; approximately 90 of those stations may be considered small businesses. These estimates may overstate the number of small entities since the revenue figures on which they are based do not include or aggregate revenues from non-TV affiliated companies. We recognize that the rules may also impact minority-owned and women-owned stations, some of which may be small entities. In 2000, minorities owned and controlled 23 (1.9 percent) of 1,288 full power commercial TV stations in the United States. According to the U.S. Bureau of the Census, in 1987 women owned and controlled 27 (1.9 percent) of 1,342 commercial and non-commercial TV stations in the United States.

12. There are currently 4,977 TV translator stations and 1,952 LPTV stations. Approximately 1,309 low power TV and TV translator stations are on channels 60-69 which could be affected by policies in this proceeding. The Commission does not collect financial information of any broadcast facility and the Department of Commerce does not collect financial information on these broadcast facilities. We will assume for present purposes, however, that most of these broadcast facilities, including LPTV stations, could be classified as small businesses. As indicated earlier, approximately 77 percent of TV stations are designated under this analysis as potentially small businesses. Given this, LPTV and TV translator stations would not likely have revenues that exceed the SBA maximum to be designated as small businesses.

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

13. The Fourth Memorandum Opinion and Order does not adopt rules that will entail reporting, recordkeeping, and/or third-party consultation.

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

14. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603.

15. The NCC, comprised of representatives from government, the public safety community, and the communications equipment manufacturing industry, was chartered by the FCC as a Federal Advisory Committee, effective February 25, 1999. The NCC made recommendations concerning various issues addressed in the Fourth Notice of Proposed Rulemaking. We note that in several instances, to benefit all entities, including small entities, we did not propose a particular recommendation.

16. In formulating the rules in the Fourth Memorandum Opinion and Order, we reduced economic burdens wherever possible. The regulatory burdens that we have adopted are necessary to ensure that the public receives the public safety benefits of innovative new services in a prompt and efficient manner. For example, we have adopted technical and operational rules that will promote competition in the equipment market. We believe that the rules must be as competitively and technologically neutral as possible, in order to allow for competing equipment designs and to avoid hindering future innovative technological developments. We note that tighter technical specifications generally allow more intense spectrum use, but may result in higher equipment costs. Conversely, although wider tolerances may allow manufacturers to use less costly component parts in transmitting equipment, they also may result in less efficient spectrum use. With these considerations in mind, we believe that the technical regulations we adopt herein provide a reasonable balance of these concerns.

17. Under the regional planning process, frequency coordination is competitive. Frequency coordination is the process by which a private organization recommends to the Commission the most appropriate frequencies for private land mobile radio service applicants. Frequency coordinators provide a valuable service to the Commission by eliminating common application errors, thereby improving the quality of the applications and resolving potential interference problems at the source. We continue to believe that the encouragement of competition among coordinators promotes cost-based pricing of coordination services and provides incentives for enhancing service quality. Therefore, we will continue to allow any of the certified public safety coordinators to provide coordination in the 700 MHz band.

18. Recognizing the budgetary constraints that public safety entities face as a matter of course, we have adopted rules that encourage broad-based efforts, such as projects on the state and regional level, to coordinate and consolidate operations that are critical to meeting the needs of public safety with cost effective, spectrally-efficient radio systems. For example, we have adopted permissive trunking on certain public safety channels in the 700 MHz band. Trunked systems provide service to many governmental entities in a specific geographic area and offer a higher degree of efficiency than some smaller, non-trunked systems. A difficulty in establishing these types of shared systems is that they require individual agencies to surrender some autonomy in return for the efficiencies and better coverage of a larger system. In addition, the funding required to develop the infrastructure necessary to support some of the newer technologies is often too great to permit small public safety agencies to participate in new, sophisticated, spectrum efficient, wireless radio systems. These same agencies, however, might be able to participate in a county-wide or state-wide system. For these, and other, reasons, we encourage the use of shared systems in the public safety community.

19. Report to Congress: The Commission will send a copy of the Fourth Memorandum Opinion and Order, including this SFRFA, 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 Fourth Memorandum Opinion and Order to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the Fourth Memorandum Opinion and Order and SFRFA (or summaries thereof) will be published in the Federal Register. See 5 U.S.C. 604(b).

III. Ordering Clauses

20. Authority for the issuance of this Fourth Memorandum Opinion and Order is contained in sections 4(i), 4(j), 7(a), 302, 303(b), 303(f), 303(g), 303(r), 307(e), 332(a), and 332(c) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 157(a), 302, 303(b), 303(f), 303(g), 303(r), 307(e), 332(a), 332(c).

21. This Fourth Memorandum Opinion and Order will be effective October 28, 2002.

22. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Fourth Memorandum Opinion and Order, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

23. Pursuant to section 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 405, and § 1.429(i) of the Commission's rules, 47 CFR 1.429(i), that the petitions for reconsideration, clarification, and/or a declaratory ruling filed by Motorola, the North America TETRA Forum, Sergeant John S. Powell, the Public Safety Wireless Network, Com-Net Ericsson Critical Radio Systems, Inc. are granted to the extent indicated herein and otherwise are denied.

List of Subjects in 47 CFR Part 90

• Communications equipment
• Incorporation by reference
• Radio
• Reporting and recordkeeping requirements

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

Rule Changes

Part 90 of Title 47 of the Code of Federal Regulations is amended as follows:

1. The authority citation for part 90 continues to read as follows:

Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).

2. Section 90.531 is amended by revising paragraphs (b)(1)(iii), (b)(2), (b)(7), (c)(1), (d) introductory text, (d)(1), and (2) to read as follows:

§ 90.531

Band plan.

* * * * *

(b) * * *

(1) * * *

(iii) Narrowband trunking Interoperability channels. The following Interoperability channel pairs may be combined with the appropriate adjacent secondary trunking channel pairs and used in trunked mode on a secondary basis to conventional Interoperability operations: 23/983, 24/984, 103/1063, 104/1064, 183/1143, 184/1144, 263/1223, 264/1224, 657/1617, 658/1618, 737/1697, 738/1698, 817/1777, 818/1778, 897/1857, 898/1858. For every ten general use channels trunked at a station, entities may obtain a license to operate in the trunked mode on two of the above contiguous Interoperability channel pairs. The maximum number of Interoperability channel pairs that can be trunked at any one location is eight.

* * * * *

(2) Narrowband reserve channels. The following narrowband channels are undesignated and reserved: 37, 38, 61, 62, 77, 78, 117, 118, 141, 142, 157, 158, 197, 198, 221, 222, 237, 238, 277, 278, 301, 302, 317, 318, 643, 644, 683, 684, 699, 700, 723, 724, 763, 764, 779, 780, 803, 804, 843, 844, 859, 860, 883, 884, 923, 924, 939, 940, 997, 998, 1021, 1022, 1037, 1038, 1077, 1078, 1101, 1102, 1117, 1118, 1157, 1158, 1181, 1182, 1197, 1198, 1237, 1238, 1261, 1262, 1277, 1278, 1603, 1604, 1643, 1644, 1659, 1660, 1683, 1684, 1723, 1724, 1739, 1740, 1763, 1764, 1803, 1804, 1819, 1820, 1843, 1844, 1883, 1884, 1899, 1900.

* * * * *

(7) Secondary trunking channels. The following channel pairs are reserved for secondary trunking operations: 21/981, 22/982, 101/1061, 102/1062, 181/1141, 182/1142, 261/1221, 262/1222, 659/1619, 660/1620, 739/1699, 740/1700, 819/1779, 820/1780, 899/1859, and 900/1860. They may be used only in combination with the appropriate adjacent Interoperability channel pairs specified in paragraph (b)(1)(iii) of this section in trunked systems.

(c) * * *

(1) Wideband Interoperability channels. The following wideband channels are designated for nationwide Interoperability licensing and use, but are not available for licensing or use pending Commission adoption of a wideband Interoperability standard: 28-30, 37-39, 46-48, 73-75, 82-84, 91-93, 148-150, 157-159, 166-168, 193-195, 202-204, 211-213.

* * * * *

(d) Combining channels. Except as noted in this section, at the discretion of the appropriate regional planning committee, contiguous channels may be used in combination in order to accommodate requirements for larger bandwidth emissions, in accordance with this paragraph. Interoperability channels may not be combined with channels in another group except for channels for secondary trunking channels.

(1) Narrowband. Two or four contiguous narrowband (6.25 kHz) channels may be used in combination as 12.5 kHz or 25 kHz channels, respectively. The lower (in frequency) channel for two channel combinations must be an odd (i.e., 1, 3, 5 * * *) numbered channel. The lowest (in frequency) channel for four channel combinations must be a channel whose number is equal to 1+(4xn), where n = any integer between 0 and 479, inclusive (e.g., channel number 1, 5, * * * 1917). Channel combinations are designated by the lowest and highest channel numbers separated by a hyphen, e.g., “1-2” for a two channel combination and “1-4” for a four channel combination.

(2) Wideband. Two or three contiguous wideband (50 kHz) channels may be used in combination as 100 kHz or 150 kHz channels, respectively. The lower (in frequency) channel for two channel combinations must be a channel whose number is equal to 1+(3xn) or 2+(3xn), where n = any integer between 0 and 79, inclusive (e.g., channel number 1, 2, 4, 5, 7, 8, * * * 238, 239). The lowest (in frequency) channel for three channel combinations must be a channel whose number is equal to 1+(3xn), where n = any integer between 0 and 79, inclusive (e.g., channel number 1, 4, 7, 10, * * * 238). Channel combinations are designated by the lowest and highest channel numbers separated by a hyphen, e.g., “1-2” for a two channel combination and “1-3” for a three channel combination.

* * * * *

3. Section 90.547 is revised to read as follows:

§ 90.547

Narrowband Interoperability channel capability requirement.

(a) Except as noted in this section, mobile and portable transmitters operating on narrowband channels in the 764-776 MHz and 794-806 MHz frequency bands must be capable of operating on all of the designated nationwide narrowband Interoperability channels pursuant to the standards specified in this part.

(1) Mobile and portable transmitters that are designed to operate only on the Low Power Channels specified in § 90.531 (b)(3) and (4) are exempt from this Interoperability channel requirement.

(2) Mobile and portable transmitters that are designed to operate only in the data mode must be capable of operation on the data Interoperability channels specified in § 90.531(b)(1)(i); but need not be capable of voice operation on other Interoperability channels.

(3) Mobile and portable transmitters that are designed to operate only in the voice mode do not have to operate on the data Interoperability channels specified in § 90.531(b)(1)(i).

(b) Mobile and portable transmitters designed for data are not required to be voice capable, and vice versa.

4. Section 90.548 is revised to read as follows:

§ 90.548

Interoperability Technical Standards.

(a) Transmitters operating on those narrowband channels in the 764-776 and 794-806 MHz band designated for interoperability (See 90.531) shall conform to the following technical standards:

(1) Transmitters designed for voice operation shall include a 12.5 kHz bandwidth mode of operation conforming to the following standards, which are incorporated by reference: Project 25 FDMA Common Air Interface—New Technology Standards Project—Digital Radio Technical Standards, approved April 15, 1998, Telecommunications Industry Association, ANSI/TIA/EIA-102.BAAA-1998; Project 25 Vocoder Description, approved May 5, 1998, Telecommunications Industry Association, ANSI/TIA/EIA-102.BABA-1998.

(2) Transmitters designed for data transmission shall include a 12.5 kHz bandwidth mode of operation conforming to the following standards, which are incorporated by reference: Project 25 Data Overview—New Technology Standards Project—Digital Radio Technical Standards, approved March 3, 2000, Telecommunications Industry Association, ANSI/TIA/EIA-102.BAEA-2000; Project 25 Packet Data Specification—New Technology Standards Project—Digital Radio Technical Standards, approved March 3, 2000, Telecommunications Industry Association, ANSI/TIA/EIA-102.BAEB-2000; Project 25 Radio Control Protocol (RCP)—New Technology Standards Project—Digital Radio Technical Standards, approved March 3, 2000, Telecommunications Industry Association, ANSI/TIA/EIA-102.BAEE-2000; Project 25 FDMA Common Air Interface—New Technology Standards Project—Digital Radio Technical Standards, approved April 15, 1998, Telecommunications Industry Association, ANSI/TIA/EIA-102.BAAA-1998.

(b) The Director of the Federal Register approves these incorporations by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the standards listed in this section that are incorporated by reference may be inspected at the Federal Communications Commission, 445 12th Street, SW., Washington, DC (Reference Information Center) or at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC. The standards can also be purchased from TIA/EIA, 2500 Wilson Boulevard, Arlington, VA, 22201; Global Engineering Documents, 15 Inverness Way East, Englewood, CO 80112; or the American National Standards Institute, 25 West 43rd Street, Fourth Floor, New York, NY 10036 (or via the Internet at www.ansi.org.)

5. Section 90.553 is amended by revising paragraphs (b) and (c) to read as follows:

§ 90.553

Encryption.

* * * * *

(b) If Encryption is employed then the following encryption protocol must be used: Project 25 DES Encryption Protocol, approved January 23, 2001, Telecommunications Industry Association, ANSI/TIA/EIA-102.AAAA-A-2001.

(c) The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the standard listed in this section that are incorporated by reference may be inspected at the Federal Communications Commission, 445 12th Street, SW., Washington, DC (Reference Information Center) or at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC. The standard can also be purchased from TIA/EIA, 2500 Wilson Boulevard, Arlington, VA, 22201; Global Engineering Documents, 15 Inverness Way East, Englewood, CO 80112; or the American National Standards Institute, 25 West 43rd Street, Fourth Floor, New York, NY 10036 (or via the Internet at www.ansi.org.)