05-21406. Advanced Wireless Services

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document reallocates the 2155-2160 MHz band for Fixed and Mobile services and designates the 2155-2175 MHz band for Advanced Wireless Service (AWS) use. We continue our ongoing efforts to promote spectrum utilization and efficiency with regard to the provision of new services, including Advanced Wireless Services (AWS).

DATES:

Effective November 25, 2005.

FOR FURTHER INFORMATION CONTACT:

Priya Shrinivasan, Office of Engineering & Technology, [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Eighth Report and Order, ET Docket No. 00-258, FCC 05-172, adopted September 23, 2005, and released September 29, 2005. The full text of this document is available on the Commission's Internet site at http://www.fcc.gov. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone [phone]; fax [phone]; e-mail [e-mail].

Summary of the Report and Order

1. In the Eighth Report and Order (“Eighth R&O”) in ET Docket No. 00-258, the Commission continues its ongoing efforts to promote spectrum utilization and efficiency with regard to the provision of new services, including Advanced Wireless Services (AWS). Advanced wireless systems could provide, for example, a wide range of voice, data and broadband services over a variety of mobile and fixed networks. Specifically, the Commission reallocates the 2155-2160 MHz band for Fixed and Mobile services and designates the 2155-2175 MHz band for AWS use.

2. Based on the Commission's determination that additional spectrum is needed for AWS use, and because the characteristics of the 2155-2175 MHz band make it well suited for such use, concludes that designating this band for AWS will promote efficient use of the spectrum and allow for the rapid introduction of high-value services in the band. Because the 2155-2175 MHz band is adjacent to the 2110-2155 MHz and 2175-2180 MHz bands that have already been designated for AWS, an AWS designation for this band will create 70 MHz of contiguous spectrum that will promote the rapid introduction of new technologies and service offerings, and will foster the use of the highest potential spectrum. Furthermore, designation of the 2155-2175 MHz band for AWS use is consistent with the Commission's previous decisions to designate spectrum for AWS on a primary basis to support the types of high powered mobile applications associated with AWS and Broadband PCS expansion. In addition, as proposed, the Commission allocates the 2155-2160 MHz band to Fixed and Mobile services in order to allow the provision of AWS in this band. Although commenters did not explicitly address the Commission's proposal to add a Mobile allocation to the 2155-2160 MHz band, such support is implicit in their support for redesignating the 2155-2175 MHz band for AWS use because a Mobile allocation is essential for the provision of AWS.

3. The Commission notes that it does not decide here how to assign this new AWS spectrum at 2155-2175 MHz but will consider this issue in a separate service rules proceeding at a later date. It also notes that a current bilateral agreement in the 2155-2160/62 kHz band between the United States and Canada provides for coordinated use of Broadband Radio Service (BRS) and Educational Broadband Service (EBS) along the common border. The sharing of the 2160/62-2175 MHz band between the United States and Canada is covered by Arrangement A of the Agreement Concerning the Coordination and Use of Radio Frequencies Above Thirty Megacycles per Second, with Annex, as amended. There are no agreements with Mexico in the 2155-2175 MHz band. Accordingly, the Commission notes that there may be a need to negotiate new or modified agreements to provide for more flexible use of the spectrum with Canada and Mexico along the common borders.

Final Regulatory Flexibility Analysis

4. As required by the Regulatory Flexibility Act (RFA) ^[1] an Initial Regulatory Flexibility Analysis was incorporated in the Third Notice of Proposed Rule Making (Third NPRM) in ET Docket 00-258, 68 FR 12015, March 13, 2003.^[2] The Commission sought written public comment on the proposals in the Third NPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.^[3]

A. Need for, and Objectives of, the Eighth Report and Order

5. The Eighth Report and Order (Eighth R&O) reallocates the 2155-2160 MHz band for Fixed and Mobile services and designates the 2155-2175 MHz band for the provision of advanced wireless services (AWS). The Eighth R&O is the latest in a series of decisions in ET Docket 00-258 allocating spectrum that can be used for the provision of new and innovative wireless communications services that we have collectively referred to as “AWS.” The provision of this spectrum serves the public interest by promoting the rapid deployment of efficient radio communications facilities and supports the goals of Section 7 of the Communications Act,^[4] which sets forth a policy of encouraging the provision of new technologies and services to the public.

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

6. There were no comments filed that specifically addressed the rules and policies proposed in 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 entities that will be affected by the rules.^[5] The RFA defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” ^[6] In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities.^[7] Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA).^[8]

8. Multipoint Distribution Service, Multichannel Multipoint Distribution Service. Multichannel Multipoint Distribution Service (MMDS) systems, often referred to as “wireless cable,” transmit video programming to subscribers using the microwave frequencies of Multipoint Distribution Service (MDS) and Instructional Television Fixed Service (ITFS).^[9] In connection with the 1996 MDS auction, the Commission defined “small business” 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. The SBA has approved of this standard.^[10] The MDS auction resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs).^[11] Of the 67 auction winners, 61 claimed status as a small business. At this time, we estimate that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities.^[12]

9. In addition, the SBA has developed a small business size standard for Cable and Other Program Distribution,^[13] which includes all such companies generating $12.5 million or less in annual receipts.^[14] According to Census Bureau data for 1997, there were a total of 1,311 firms in this category that had operated for the entire year.^[15] Of this total, 1,180 firms had annual receipts of under $10 million, and an additional 52 firms had receipts of $10 million or more but less than $25 million.^[16] Consequently, we estimate that the majority of providers in this service category are small businesses that may be affected by the proposed rules and policies. Because the Commission's action only affects MDS operations in the 2155-2160/62 MHz band, the actual number of MDS providers who will be affected by the proposed reallocation will only represent a small fraction of these small businesses.

10. Fixed Microwave Services. Microwave services include common carrier,^[17] private-operational fixed,^[18] and broadcast auxiliary radio services.^[19] At present, there are approximately 36,708 common carrier fixed licensees and 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not yet defined a small business with respect to microwave services. For purposes of the FRFA, we will use the SBA's definition applicable to Cellular and other Wireless Telecommunications companies—i.e., an entity with no more than 1,500 persons.^[20] According to Census Bureau data for 1997, there were 977 firms in this category, total, that operated for the entire year.^[21] Of this total, 965 firms had employment of 999 or fewer employees, and an additional twelve firms had employment of 1,000 employees or more.^[22] Thus, under this size standard, majority of firms can be considered small. We note that the number of firms does not necessarily track the number of licensees. We estimate that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition.

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

11. The Eighth R&O reallocates the 2155-2160 MHz band and designates the 2155-2175 MHz band to support the introduction of new AWS applications. The item does not propose service rules. The ultimate use of the band will be determined by future proceedings that adopt specific service rules and, more generally, by market forces operating within the framework of such rules. Accordingly, the item contains no new reporting, recordkeeping, or other compliance requirements.

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

12. 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.^[23]

13. In the Eighth R&O, we decided to provide additional spectrum to support the introduction of AWS because doing so will promote the rapid deployment of efficient radio communications. Another option would have been to not reallocate or designate the 2155-2160 MHz band. We rejected this alternative because doing so would have limited our ability to provide additional spectrum and done little to minimize the potential economic impact on small entities. Specifically, because incumbent users in the 2155-2160 MHz band are subject to a transition plan adopted in a separate proceeding and would ultimately be required to cease use of spectrum in this band, a decision to not reallocate the spectrum would only have a minimal, short-term effect on incumbent users yet make it much more likely that valuable spectrum resources would lie fallow. Additionally, the provision of additional spectrum that can be used to support AWS can directly benefit small business entities by providing new opportunities for the provision of innovative new fixed and mobile wireless services by such entities.

F. Report to Congress

14. The Commission will send a copy of the Eighth R&O, including this FRFA, in a report to be sent to Congress pursuant to the SBREFA.^[24] In addition, the Commission will send a copy of the Eighth R&O, including the FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Eighth R&O and the FRFA (or summaries thereof) will also be published in the Federal Register.^[25]

Ordering Clauses

15. Pursuant to Sections 1, 4(i), 7(a), 301, 303(f), 303(g), 303(r), 307, 316, 332 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r), 307, 316, and 332, this Eighth Report and Order is Adopted and that part 2 of the Commission's rules is amended, as specified in the regulatory text, effective November 25, 2005.

16. Pursuant to Section 5(c) of the Communications Act, as amended, 47 U.S.C. 155(c), the Office of Engineering and Technology and the Wireless Telecommunications Bureau Are Granted Delegated Authority to implement the requirement set forth in this Order.

17. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Eighth Report and Order, including the Final Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 2

• Communications equipment
• Reporting and recordkeeping requirements

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

Final Rule

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 2 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, 302a, 303, and 336, unless otherwise noted.

2. Section 2.106, the Table of Frequency Allocations, is amended by revising page 34.

The revisions read as follows:

§ 2.106

Table of Frequency Allocations.

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Footnotes

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, Pub. L. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

2.  Amendment of Part 2 of the Commission's Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation Wireless Systems, ET Docket No. 00-258, IB Docket No. 99-81, Third Report and Order, Third Notice of Proposed Rulemaking and Second Memorandum Opinion and Order, 18 FCC Rcd 2223 (2003).

3.  5 U.S.C. 604.

4.  47 U.S.C. 157.

5.  5 U.S.C. 603(b)(3), 604(a)(3).

6.  5 U.S.C. 601(6).

7.  5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), 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, established one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition in the Federal Register.”

8.  15 U.S.C. 632.

9.  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, Report and Order, 10 FCC Rcd 9589, 9593, paragraph 7 (1995) (“MDS Auction R&O”). The MDS and ITFS was renamed the Broadband Radio Service (BRS) and Educational Broadband Service (EBS), respectively. See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules to Facilitate the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 MHz Band, WT Docket No. 03-66, Report and Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 14165 (2004).

10.  See Letter to Margaret Wiener, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from Gary Jackson, Assistant Administrator for Size Standards, Small Business Administration (dated Mar. 20, 2003) (noting approval of $40 million size standard for MDS auction).

11.  Basic Trading Areas (BTAs) were designed by Rand McNally and are the geographic areas by which MDS was auctioned and authorized. See MDS Auction R&O, 10 FCC Rcd at 9608, paragraph 34.

12.  47 U.S.C. 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of section 309(j) of the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-auction licenses, the applicable standard is SBA's small business size standard for “other telecommunications” (annual receipts of $12.5 million or less). See 13 CFR 121.201, NAICS code 517910.

13.  13 CFR 121.201, NAICS code 517510.

14.  Id.

15.  U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4 (issued October 2000).

16.  Id.

17.  47 CFR part 101 et seq. (formerly, part 21 of the Commission's rules) for common carrier fixed microwave services (except MDS).

18.  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.

19.  Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission's rules. See 47 CFR, part 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.

20.  13 CFR 121.201, NAICS code 517212.

21.  U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Employment Size of Firms Subject to Federal Income Tax: 1997,” Table 5 (issued Oct. 2000).

22.  Id. The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is “Firms with 1,000 employees or more.”

23.  5 U.S.C. 603(c).

24.  See 5 U.S.C. 801(a)(1)(A).

25.  See 5 U.S.C. 604(b).