[Federal Register Volume 63, Number 246 (Wednesday, December 23, 1998)]
[Rules and Regulations]
[Pages 71039-71041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33979]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 26
[ET Docket No. 94-32; FCC 98-212]
Allocation of Spectrum Below 5 GHz Transferred from Federal
Government Use
AGENCY: Federal Communications Commission.
ACTION: Final rule; petitions for reconsideration.
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SUMMARY: The Federal Communications Commission has adopted a Memorandum
Opinion and Order (MO&O) responding to petitions for reconsideration of
the First Report and Order and Second Report and Order regarding the
General Wireless Communications Service (GWCS). The MO&O grants in part
a petition for reconsideration of the Second Report and Order filed by
the Wireless Cable Association International (WCAI), to the extent that
it modifies the rule on antenna structure clearance procedures to
conform with streamlined rules applicable to all services. The MO&O
dismisses in part and denies in part a petition for reconsideration of
the First Report and Order filed by several organizations (Joint
Petitioners), and a petition for reconsideration of the Second Report
and Order filed by the Association for Maximum Service Television, Inc.
(MSTV).
EFFECTIVE DATE: January 22, 1999.
FOR FURTHER INFORMATION CONTACT: Peter G. Wolfe, Policy Division,
Wireless Telecommunications Bureau, (202) 418-1310.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Memorandum Opinion
and Order in ET Docket No. 94-32, FCC 98-212 , adopted on August 26,
1998, and released on November 25, 1998. The complete text of this
decision is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, N.W.,
Washington, D.C., and also may be purchased from the Commission's copy
contractor, International Transcription Service, (202) 857-3800, 1231
20th Street, N.W., Washington, DC 20036.
Synopsis of Memorandum Opinion and Order
1. The Commission adopts a Memorandum Opinion and Order (MO&O)
which grants in part a petition for reconsideration of the Second
Report and Order (Second R&O) in this proceeding (60 FR 40712, August
9, 1998), filed by the Wireless Cable Association International (WCAI).
The MO&O denies WCAI's request that all GWCS licensees be permitted to
partition their service areas because the Commission intends to address
this issue in another proceeding. The MO&O denies a request by WCAI to
license GWCS in Basic Trading Areas (BTAs) rather than Economic Areas
(EAs), and denies in part and dismisses in part a petition for
reconsideration of the First Report and Order (First R&O) (60 FR 13071,
March 10, 1995) filed by the Association for Maximum Service Television
Inc. (MSTV) and several other organizations (Joint Petitioners) and a
petition for reconsideration of the Second R&O filed by MSTV. The
latter two petitions both claim that the Commission exceeded its
statutory authority in creating GWCS and therefore that the Commission
should revisit its decision to establish a licensing structure for the
service.
2. The MO&O first considers a petition for reconsideration of the
First R&O filed by the Joint Petitioners, claiming that the general
allocation of the 4660-4685 MHz band to the Fixed and Mobile services
is overly broad because it will permit an unidentified mix of services
to operate in the band. The Commission disagrees with this argument,
finding that the petitioners merely restate the issues examined and
decided in the First R&0. The MO&O also dismisses the Joint
Petitioners' argument that the specific allocation of the 4660-4685 MHz
band to GWCS is not in the public interest, because the Commission had
not designated the frequency band for GWCS at the time the petition was
filed, and that the Commission subsequently found in the Second R&O
that the designation to GWCS is in the public interest.
3. The MO&O also denies MSTV's petition for reconsideration of the
Second R&O dealing with the specific designation of the band for GWCS.
MSTV contends that the Commission should suspend this allocation and
related assignments pending the resolution of assignment of spectrum to
the Broadcast Auxiliary Service in other
[[Page 71040]]
proceedings. The Commission determines that the arguments and concerns
raised by MSTV were considered and decided in the Second R&O and that
MSTV petition and comments and petitions filed by parties in support of
MSTV provide no new information or arguments that persuade the
Commission that the actions taken in the Second R&O should be changed
or set aside.
4. The MO&O denies a request made by WCAI to license GWCS using
geographic areas known as BTAs rather than EAs. WCAI argues that the
decision made in the Second R&O will seriously prejudice those service
providers (including wireless cable operators) that intend to utilize
GWCS in conjunction with other services that are licensed on the basis
of BTAs. The Commission in denying the request stresses the importance
of providing flexibility for a wide range of services without favoring
any particular existing service. The Commission finds it particularly
appropriate to use a geographical service area designation that is
capable of accommodating a broad range of services where, as here, the
Commission does not have any firm information as to what the uses of
the services are likely to be.
5. WCAI also requests that the Commission should expand the
partitioning option adopted in the Second R&O to allow all GWCS
licensees, not just rural telephone companies, to partition their
service area. The Commission dismisses this request noting that the
issue will be resolved in the Geographic Partitioning and Spectrum
Disaggregation proceeding, WT Docket 96-148 (Report and Order at 62 FR
00653, January 6, 1997, and Further Notice of Proposed Rule Making at
62 FR 00696, January 6, 1997).
6. The MO&O grants the portion of WCAI's petition which asks that
the Commission amend its rules to permit the mounting of antennas on
existing structures that have previously received a ``no hazard''
determination from the Federal Aviation Administration (FAA) without
any additional Commission authorization.1 The Commission
finds that it amended its antenna structure clearance procedures after
the adoption of the Second R & O, and that these amended rules allow
mounting of antennas on existing structures that have already received
a ``no hazard'' determination from the FAA and have been registered
with the Commission without prior Commission approval. Therefore, the
Commission grants WCAI's request by amending part 26 of the rules to
reflect current antenna structure requirements.
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\1\ WCAI indicates that 47 CFR 26.309(a) provides that a GWCS
antenna structure may not be 200 feet or more above ground level
without prior Commission approval.
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Revised Final Regulatory Flexibility Analysis
7. As required by Section 603 of the Regulatory Flexibility Act, 5
U.S.C. 603 (RFA),2 an Initial Regulatory Flexibility
Analysis (IRFA) was incorporated in the First Notice of Proposed
Rulemaking (First NPRM) 3 and a Further Initial Regulatory
Flexibility Analysis (FIRFA) was incorporated in the Second Notice of
Proposed Rulemaking (Second NPRM).4 The Commission sought
written public comments on the proposals in the First NPRM and the
Second NPRM, including on the IRFA and the FIRFA. A Final Regulatory
Flexibility Analysis (FRFA) was incorporated in the Commission's First
R&O in this proceeding and in the Commission's Second R&O. The
Commission's Revised Final Regulatory Flexibility Analysis (RFRFA) in
this MO&O conforms to the RFA, as amended by the Contract With America
Advancement Act of 1996, Public Law No. 104-121, 110 Stat. 847 (1996)
(CWAAA).5
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\2\ Regulatory Flexibility Act, Public Law No. 96-354, 94 Stat.
1164 (enacted Sept. 19, 1980) (Regulatory Flexibility Act).
\3\ 59 FR 59292, November 17, 1994.
\4\ 60 FR 13102, March 10, 1995.
\5\ Title II of the CWAAA is ``The Small Business Regulatory
Enforcement Fairness Act of 1996,'' (SBREFA), codified at 5 U.S.C.
601.
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I. Need For and Objective of the Rules
8. This MO&O streamlines the antenna structure clearance procedures
for General Wireless Communications Services (GWCS) which were adopted
in the Second R&O to conform with the procedures applicable to all
wireless services. The new antenna structure clearance procedures
eliminate the need for Commission approval of antenna structures that
have already been approved by the Federal Aviation Administration
(FAA). A petition for reconsideration contended that no Commission
approval should be required for the mounting of antennas on existing
structures which have received an FAA ``no hazard'' determination. The
Commission concludes that it is in the public interest to apply to GWCS
the streamlined antenna structure clearance rules which were adopted
for all services subsequent to the adoption of the Second R&O.
II. Summary of Issues Raised by the Public Comments in Response to
the Final Regulatory Flexibility Analysis
9. No comments were submitted in direct response to the Initial or
Final Regulatory Flexibility Analyses. However, WCAI filed a Petition
for Reconsideration of the Second R&O which contended that the
Commission should amend its rules to permit the mounting of antennas on
existing structures that have previously received a ``no hazard''
determination from the FAA, without any additional Commission
authorization.
III. Projected Reporting, Recordkeeping, and Other Compliance
Requirements of the Rule
10. None. The rule merely requires that GWCS licensees conform to
the applicable antenna structure rules.
IV. Description and Estimate of Small Entities Subject to the Rules
11. The rule adopted in this MO&O will apply to prospective GWCS
licensees. In the Second R&O, the Commission established rules for the
auction of 875 GWCS licenses, and provided that small businesses would
have the benefit of preferential bidding credits and installment
payments. In the Second R&O, the Commission also adopted the small
business definition applicable to broadband PCS, i.e., any firm,
together with its attributable investors and affiliates, with average
gross revenues for the three preceding years not in excess of $40
million.6 Since auctions have not been held for GWCS, we
cannot estimate the number of licensees that fit within this category.
Under the Small Business Administration (SBA) rules applicable to
radiotelephone companies, a small entity is a radiotelephone company
employing fewer than 1,500 persons.7
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\6\ In the Fourth Report and Order in this proceeding ( 63 FR
56573, October 22, 1998), the Commission revised the rules
applicable to GWCS to provide that, in calculating gross revenues
for the purposes of small business eligibility, applicants will be
required to count the gross revenues of the de facto and de jure
controlling interests of the applicant and its affiliates.
\7\ 13 CFR 121.201, Standard Industrial Classification (SIC)
Code 4812.
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12. The 1992 Census of Transportation, Communications, and
Utilities, conducted by the Bureau of the Census, which is the most
recent information available, shows that only 12 radiotelephone firms
out of a total of 1,178 such firms which operated during 1992 had 1,000
or more employees.8
[[Page 71041]]
Given the facts that nearly all radiotelephone companies have fewer
than 1,000 employees and that no reliable estimate of the number of
prospective GWCS licensees can be made, we assume, for purposes of our
evaluations and conclusions in this revised FRFA, that all of the
licenses will be awarded to small entities, as that term is defined by
the SBA.
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\8\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992
Census of Transportation, Communications, and Utilities, UC92-2S-1,
Subject Series, Establishment and Firm Size, Table 5, Employment
Size of Firms: 1992, SIC Code 4812 (issued May 1995).
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V. Steps Taken To Minimize the Burdens on Small Entities
13. The rule adopted in the MO&O reduces the burdens on small
entities placed upon them by the rule adopted in the Second R&O. The
rule adopted in the MO&O accomplishes this objective by permitting the
mounting of antennas on existing structures that have previously
received a ``no hazard'' determination by the FAA, without any
additional Commission authorization, and by applying streamlined
antenna clearance procedures which have been applied to all services.
VI. Significant Alternatives Considered and Rejected
14. The Commission made this change in the antenna clearance rules
in response to a Petition for Reconsideration. The Commission could
have retained the original rule, but the Commission found that its new
antenna clearance rules minimize burdens on all licensees, without
having a negative impact on the public interest or public safety.
VII. Report to Congress
15. The Commission shall send a copy of this Revised Final
Regulatory Flexibility Analysis, together with the MO&O, in a report to
Congress pursuant of the Small Business Regulatory Enforcement Fairness
Act of 1996.9 A copy of the MO&O and this RFRFA (or summary
thereof) shall be sent to the Chief Counsel for Advocacy for the Small
business Administration.
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\9\ 5 U.S.C. 801(a)(1)(A).
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Ordering Clauses
16. As required by Section 603 of the Regulatory Flexibility
Act,10 the Commission has prepared a Revised Final
Regulatory Flexibility Analysis of the expected impact on small
entities of the changes in our rules adopted herein The Revised Final
Regulatory Flexibility Analysis is in this document and in Appendix B
of the full text of the MO&O.
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\10\ 5 U.S.C. 603.
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17. This action is taken pursuant to sections 4(i), 5(c), 302,
303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934,
47 U.S.C. 154(i), 155(c), 302, 303(c), 303(f), 303(g), 303(r).
18. Accordingly, it is ordered that the petition for
reconsideration of Allocation of Spectrum Below 5 GHz Transferred from
Federal Government Use, ET Docket No. 94-32, First Report and Order and
Second Notice of Proposed Rulemaking, filed by the Association for
Maximum Service Television, Inc., the Association of America's Public
Television Stations, Capital Cities/ABC, Inc., CBS, Inc., the Fox
Television Group of companies, the National Association of
Broadcasters, the National Broadcasting Company, Inc., the Public
Broadcasting Service, Inc., and the Radio-Television News Directors
Association is dismissed in part and otherwise is denied.
19. It is further ordered that the petition for reconsideration of
Allocation of Spectrum Below 5 GHz Transferred from Federal Government
Use, ET Docket No. 94-32, Second Report and Order, filed by Association
for Maximum Service Television, Inc., is denied, and the petition for
reconsideration filed by Wireless Cable Association International is
granted in part to the extent discussed , and otherwise is denied.
20. It is further ordered that Part 26 of the Commission's Rules is
amended and will become effective January 22, 1999.
21. It is further ordered that the Director, Office of Public
Affairs, shall send a copy of this Order, including the Revised Final
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration in accordance with section 603(a) of
the Regulatory Flexibility Act, 5 U.S.C. 603(a).
List of Subjects in 47 CFR Part 26
Radio, General wireless communications service.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Part 26 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 26--GENERAL WIRELESS COMMUNICATIONS SERVICE
1. The authority citation for part 26 continues to read as follows:
Authority: 47 U.S.C. sections 154, 301, 302, 303, 309, and 332,
unless otherwise noted.
2. Add a new section 26.56 to read as follows:
Sec. 26.56 Antenna structures; air navigation safety.
Licensees that own their antenna structures must not allow these
antenna structures to become a hazard to air navigation. In general,
antenna structure owners are responsible for registering antenna
structures with the FCC if required by part 17 of this chapter, and for
installing and maintaining any required marking and lighting. However,
in the event of default of this responsibility by an antenna structure
owner, each FCC permittee or licensee authorized to use an affected
antenna structure will be held responsible by the FCC for ensuring that
the antenna structure continues to meet the requirements of part 17 of
this chapter. See Sec. 17.6 of this chapter.
(a) Marking and lighting. Antenna structures must be marked,
lighted and maintained in accordance with part 17 of this chapter and
all applicable rules and requirements of the Federal Aviation
Administration.
(b) Maintenance contracts. Antenna structure owners (or licensees
and permittees, in the event of default by an antenna structure owner)
may enter into contracts with other entities to monitor and carry out
necessary maintenance of antenna structures. Antenna structure owners
(or licensees and permittees, in the event of default by an antenna
structure owner) that make such contractual arrangements continue to be
responsible for the maintenance of antenna structures in regard to air
navigation safety.
Sec. 26.309 [Removed]
3. Section 26.309 is removed.
[FR Doc. 98-33979 Filed 12-22-98; 8:45 am]
BILLING CODE 6712-01-P
