[Federal Register Volume 63, Number 143 (Monday, July 27, 1998)]
[Rules and Regulations]
[Pages 40059-40066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19943]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 20, 80, and 90
[PR Docket No. 92-257; FCC 98-151]
Maritime Communications
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission has adopted a Third Report and Order and
Memorandum Opinion and Order in PR Docket No. 92-257 which simplifies
the licensing process and introduces additional flexibility for public
coast stations. Specifically, the Commission amends the maritime
service rules to designate geographic licensing regions for very high
frequency (VHF) public coast stations, and assign all currently
unassigned VHF public correspondence channels on a geographic basis by
competitive bidding. The uniform competitive bidding rules will apply
in public coast station auctions. The Commission also adopts small
business provisions for qualifying public coast station applicants, and
defines the criteria used to determine eligibility for these
provisions. The effect will be to promote and facilitate the
participation of small businesses in the Commission's auctions and in
the provision of spectrum-based services.
EFFECTIVE DATE: September 25, 1998.
FOR FURTHER INFORMATION CONTACT: Non-auction information: Scot Stone of
the Wireless Telecommunications Bureau, Public Safety and Private
Wireless Division, at (202) 418-0680 or via E-mail to
sstone@fcc.gov''. Auction information: Anne Napoli of the Wireless
Telecommunications Bureau, Auctions and Industry Analysis Division,
Legal Branch, at (202) 418-0660. TTY: (202) 418-7233.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order and Memorandum Opinion and Order, PR Docket No. 92-
257, FCC 98-51, adopted , July 6, 1998, and released, July 9, 1998. The
full text of this Third Report and Order and Memorandum Opinion and
Order is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, NW,
Washington, DC. The complete text may be purchased from the
Commission's copy contractor, International Transcription Services,
1231 20th Street, NW, Washington, DC 20036, telephone (202) 857-3800,
facsimile (202) 857-3805. Alternative formats (computer diskette, large
print, audio cassette, and Braille) are available to persons with
disabilities by contacting Martha Contee at (202) 418-0260, TTY (202)
418-2555, or at mcontee@fcc.gov. The full text of the Third Report and
Order and Memorandum Opinion and Order can also be downloaded at:
http://www.fcc.gov/Bureaus/Wireless/Orders/1998/fcc98151.txt or http://
www.fcc.gov/Bureaus/Wireless/Orders/1998/fcc98151.wp, and the map set
out in the paper version may be downloaded at http://www.fcc.gov/
Bureaus/Wireless/Orders/1998/fc98151a.pdf.
Summary of the Third Report and Order and Memorandum Opinion and
Order
1. The Commission initiated the instant proceeding to update the
Maritime Service rules to promote the use of new, spectrally efficient
radio communications techniques. In the Second Further Notice of
Proposed Rule Making (62 FR 37533, July 14, 1997), the Commission
proposed rules to simplify the license process for VHF public coast
stations.
2. The Commission amends the rules to license VHF public
correspondence channel pairs on a geographic basis, in lieu of the
site-based approach presently used. The Commission designates forty-two
licensing areas: nine maritime VHF Public Coast areas (VPCs), each
consisting of one or more Economic Areas (EAs) within one hundred miles
of major waterways and grouped together in accordance with Coast Guard
Districts; and thirty-three inland VPCs, each consisting of a single EA
no part of which is within one hundred miles of a major waterway.
3. The Commission amends the rules to authorize a single geographic
area licensee to operate on all currently unassigned VHF public
correspondence frequencies within its licensing area for a ten-year
license term. Each geographic area licensee may place stations anywhere
within its region to serve vessels or units on land, so long as marine-
originating traffic is given priority and incumbent operations are
protected. Base stations and land units will be blanket licensed under
the geographic license, except that individual licensing is required
for base stations that require submission of an Environmental
Assessment under 47 CFR 1.1307 or international coordination, or will
affect the radio frequency quiet zones described in 47 CFR 80.21. The
Commission amends the rules to permit partitioning and disaggregation
of the geographic licenses, with partitionees and disaggregatees to
hold their licenses for the remainder of the original licensee's term
and to have a renewal expectancy.
4. Incumbent VHF public coast station licensees, and private land
mobile radio (PLMR) licensees sharing marine spectrum in inland
regions, may continue operating indefinitely, and incumbents and
geographic area licensees must afford interference protection to one
another. If an incumbent fails to construct, discontinues operations,
or otherwise has its license terminated, its authorization
automatically reverts to the geographic licensee. Incumbent licensees
may renew, transfer, assign, and modify their license in any manner so
long as such modifications do not extend the incumbent's service area;
proposed modifications that would extend an incumbent's service area or
request additional frequencies are contingent upon an agreement with
each affected licensee.
5. Geographic licensees must provide substantial service.
Licensees' showings will be reviewed on a case-by-case basis, but the
Commission provides the following safe-harbor examples: for maritime
VPC licensees, coverage to one-third of the region's major waterways
within five years, and continuous to two-thirds of the region's major
waterways within ten years; for inland VPC licensees (and partitionees
of maritime VPC licensees where the partitioned area is not contiguous
with a major waterway), coverage to one-third of the population of the
region within five years and two-thirds of the region's population
within ten years.
Competitive Bidding Procedures
6. Background. In Implementation of Sections 3(n) and 332 of the
Communications Act, Regulatory Treatment of Mobile Services, Second
Report and Order, 59 FR 18493 (March 7, 1994), the Commission
classified the public coast station service as a commercial mobile
radio service (CMRS). Subsequently, in Implementation of Section 309(j)
of the Communications Act--Competitive Bidding, Second Report and
Order, 59 FR 22980 (May 4, 1994), the Commission determined that as a
CMRS service, mutually exclusive applications for public coast station
licenses would be resolved through competitive
[[Page 40060]]
bidding. The Commission proposed to establish competitive bidding rules
for public coast station licenses in the Second Further Notice.
Following the release of the Second Further Notice, Congress passed the
Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251 (Aug. 5,
1997) (Balanced Budget Act), which expanded and extended the
Commission's auction authority.
7. Decision. The Commission earlier concluded that the public coast
station service is subject to competitive bidding. This conclusion is
unchanged by the Balanced Budget Act, which provides that all licenses
and construction permits for which mutually exclusive applications are
accepted, with certain exceptions not applicable here, shall be granted
by means of competitive bidding. The Commission therefore believes that
it lacks discretion to resolve mutually exclusive public coast license
applications by any means other than competitive bidding. Since the
Balanced Budget Act expressly provides that competitive bidding shall
not be used for public safety radio services, the inland VPC channel
pairs set aside for public safety use shall be awarded by other means,
to be decided as part of the Commission's pending public safety
proceeding, see 62 FR 60199 (November 7, 1997).
Competitive Bidding Issues
8. Proposal. The Commission proposed in the Second Further Notice
to adopt service specific rules to govern public coast station
auction(s), pending the adoption of final uniform competitive bidding
rules, as proposed in Amendment of Part 1 of the Commission's Rules--
Competitive Bidding Procedures, Second Report and Order, Order on
Reconsideration, and Fifth Notice of Proposed Rule Making, 62 FR 13540
(March 21, 1997). In accordance with the Commission's practice of
establishing definitions for ``small business'' on a service-by-service
basis, the Commission also sought comment on establishing a ``small
business'' definition for public coast station auction(s). The
Commission tentatively concluded that, to determine small business
status, public coast station applicants should attribute the gross
revenues of their controlling principals and affiliates, and that the
definition of affiliate in the public coast context should include an
exception for Indian tribes, Alaska Region and Village Corporations.
The Commission tentatively decided not to provide special consideration
for incumbent licensees in the competitive bidding process.
9. Decision. The uniform competitive bidding rules recently adopted
in Amendment of Part 1 of the Commission's Rules--Competitive Bidding
Procedures, Third Report and Order, 63 FR 2315 (January 15, 1998) (Part
1 Third Report and Order), and found in Subpart Q of Part 1 of the
Commission's rules, will apply in public coast station auction(s).
Thus, the Part 1 definition of affiliate, which includes an exemption
for Indian Tribes and Alaska Region and Village Corporations, will
apply in public coast station auction(s), see 47 CFR 1.2110(b)(4).
Consistent with this approach, procedural matters such as the general
design and timing of the auction(s); license grouping; bid increments;
activity and stopping rules; and application and payment requirements,
including upfront payments, will be determined by the Wireless
Telecommunications Bureau pursuant to its delegated authority. See 47
CFR 0.131(c), 0.331, 0.332.
10. For purposes of public coast auction(s), the Commission defines
a small business as an entity that, together with controlling interests
and affiliates, has average gross revenues for the preceding three
years not to exceed fifteen million dollars, and a ``very small''
business as an entity that, together with controlling interests and
affiliates, has average gross revenues for the preceding three years
not to exceed three million dollars. A two-tiered definition will allow
very small incumbents to compete favorably with larger entities, and
will provide entities with relatively low gross revenues an opportunity
to participate meaningfully in the auction(s).
11. The Commission also adopts its tentative conclusion to
attribute the gross revenues of the applicant, its controlling
principals and their affiliates in determining small business
eligibility. However, the adopted rule refers to ``controlling
interests'' rather than ``controlling principals,'' and provides a
definition of this term for further clarification. A ``controlling
interest'' includes individuals or entities with de jure and de facto
control of the applicant. De jure control is 50.1% of the voting stock
of a corporation or, in the case of a partnership, the general
partners. De facto control is determined on a case-by-case basis. The
controlling interest definition also provides for attribution of
partnership and other ownership interests, and offers guidance on
calculation of various types of ownership interests. When an applicant
cannot identify controlling interests under the definition, the
revenues of all interest holders in the applicant and their affiliates
are counted. This approach is consistent with the Commission's proposal
in Amendment of Part 1 of the Commission's Rules--Competitive Bidding
Procedures, Second Further Notice of Proposed Rule Making, 63 FR 770
(January 7, 1998), and with the attribution rules applied in recent
Commission auctions. The effect will be to ensure that only qualifying
entities receive small business benefits, and to enable these entities
to attract passive financing in a highly competitive and evolving
market. The Commission also emphasizes that all bidders are subject to
the ownership disclosure requirements set forth in 47 CFR 1.2112.
12. The Commission adopts its tentative decision not to provide
special consideration to incumbent public coast service licensees that
participate in the auction(s), because the Commission believes that new
entrants and incumbents should have an equal opportunity to obtain
spectrum. Qualifying incumbents may benefit from the adopted small
business provisions.
13. The bidding credit levels for public coast auction(s) will
conform to the schedule adopted in the Part 1 Third Report and Order.
The Part 1 Third Report and Order adopted bidding credits of thirty-
five percent for entities with annual gross revenues not to exceed
three million, and twenty-five percent for entities with annual gross
revenues not to exceed fifteen million. See 47 CFR 1.21110(e)(2)(i)-
(ii). Thus, public coast station applicants meeting the definition of
``very small'' business will receive a thirty-five percent bidding
credit, and applicants meeting the definition of ``small'' business
will receive a twenty-five percent bidding credit.
14. In the Part 1 Third Report and Order, the Commission held that
installment payments will not be used in the immediate future as a
means of financing small business participation in Commission auctions.
Since the Commission received no comment on this issue in this
proceeding, installment payments will not be available in public coast
station auctions for reasons discussed in the Part 1 Third Report and
Order.
15. The Commission also received no comments or proposals regarding
the sufficiency of small business provisions in promoting participation
by minority-and women-owned businesses and rural telephone companies.
Therefore, the Commission concludes that it lacks a sufficient record
to support such provisions at this time.
16. The Commission may seek comment in a future proceeding on
[[Page 40061]]
whether the adopted small business provisions should be modified for
auctions of high seas and Automated Maritime Telecommunications Service
public coast station spectrum.
Regulatory Flexibility Act
17. As required by the Regulatory Flexibility Act (RFA), an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated into the Second
Further Notice of Proposed Rule Making in this proceeding (Second
Further Notice). The Commission sought written public comment on the
proposals in the Second Further Notice, including comment on the IRFA.
This present Final Regulatory Flexibility Analysis (FRFA) conforms to
the RFA.
18. Need for, and Objectives of, the Third Report and Order and
Memorandum Opinion and Order. Our objective is to simplify our
licensing process for VHF public coast stations. Specifically, this
action will: (1) convert licensing of VHF public coast station spectrum
from site-by-site licensing to geographic area licensing, (2) simplify
and streamline the VHF public coast spectrum licensing procedures and
rules, (3) increase licensee flexibility to provide communication
services that are responsive to dynamic market demands, and (4)
introduce market-based forces into the Maritime Services by using
competitive bidding procedures (auctions) to resolve mutually exclusive
applications for public coast spectrum. We find that these actions will
increase the number and types of communications services available to
the maritime community and improve the safety of life and property at
sea, and that the potential benefits to the maritime community exceed
any negative effects that may result form the promulgation of rules for
this purpose. Thus, we conclude that the public interest is served by
amending our rules as described above.
19. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. No comments were submitted in response to the
IRFA. In general comments on the Second Further Notice, however, some
small business commenters raised issues that might affect small
business entities. In particular, some small business commenters argued
that geographic licensing should be used only in certain areas; or that
incumbent licensees be permitted to expand their systems before any
auctions are held; or that license areas should be smaller than Coast
Guard Districts, to permit smaller licensees to participate in auctions
without having to bid for territory far exceeding their operating
needs. The Commission carefully considered each of these comments in
reaching the decision set forth herein.
20. Description and Estimate of the Number of Small Entities to
Which Rules Will Apply. The rules adopted herein will apply to
licensees using public coast spectrum. The Commission has not developed
a definition of the term ``small entity'' specifically applicable to
public coast station licensees. Therefore, the applicable definition of
small entity is the definition under the Small Business Administration
rules applicable to radiotelephone service providers. This definition
provides that a small entity is any entity employing less than 1,500
persons. See 13 CFR 121.201, Standard Industrial Classification (SIC)
Code 4812. Since the size data provided by the Small Business
Administration does not enable us to make a meaningful estimate of the
number of current or prospective public coast station licensees which
are small businesses, no commenters responded to our request for
information regarding the number of small entities that use or are
likely to use public coast spectrum, we used the 1992 Census of
Transportation, Communications, and Utilities, conducted by the Bureau
of Census, which is the most recent information available. This
document 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. There are over 100 public coast station licensees. Based on
the proposals contained herein, it is unlikely that more than 50
licensees will be authorized in the future. Therefore, for purposes of
our evaluations and conclusions in this FRFA, we estimate that there
are approximately 150 public coast station licensees which are small
businesses, as that term is defined by the Small Business
Administration.
21. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements. All small businesses that choose to
participate in the competitive bidding for these services will be
required to demonstrate that they meet the criteria set forth to
qualify as small businesses, as required under part 1, subpart Q of the
Commission's Rules, 47 CFR part 1, subpart Q. Any small business
applicant wishing to avail itself of small business provisions will
need to make the general financial disclosures necessary to establish
that the small business is in fact small. Prior to auction each small
business applicant will be required to submit an FCC Form 175, OMB
Clearance Number 3060-0600. The estimated time for filling out an FCC
Form 175 is 45 minutes. In addition to filing an FCC Form 175, each
applicant will have to submit information regarding the ownership of
the applicant, any joint venture arrangements or bidding consortia that
the applicant has entered into, and financial information demonstrating
that a business wishing to qualify for bidding credits is a small
business. Applicants that do not have audited financial statements
available will be permitted to certify to the validity of their
financial showings. While many small businesses have chosen to employ
attorneys prior to filing an application to participate in an auction,
the rules are intended to enable a small business working with the
information in a bidder information package to file an application on
its own. When an applicant wins a license, it will be required to
submit an FCC Form 494 (common carrier), which will require technical
information regarding the applicant's proposals for providing service.
This application will require information provided by an engineer who
will have knowledge of the system's design.
22. Steps Taken to Minimize Burdens of Small Entities, and
Significant Alternatives Considered. The Commission in this proceeding
has considered comments on ways to implement broad changes to the
Maritime Service rules. In doing so, the Commission has adopted
alternatives which minimize burdens placed on small entities. First, it
has decided to establish a presumption that geographic area licensees
are telecommunications carriers, avoiding the need for small
telecommunications to provide detailed information about their
operations. Also, it has exempted by rule from the Channel 16 safety
watch requirement public coast stations eligible whose areas are served
by government stations, replacing the prior requirement that such coast
stations individually request an exemption. In addition, the Commission
has eased the construction requirements for VHF public coast stations.
23. The Commission considered and rejected several significant
alternatives. It rejected the alternative of licensing all VHF public
coast spectrum by Coast Guard District. Instead, it will license such
spectrum in areas removed from major waterways by inland VHF Public
Coast Station Area (VPCs), identical to Economic Areas (EAs), allowing
small entities there to participate in the auction without bidding for
territory far exceeding their operating needs. The Commission rejected
the alternative of
[[Page 40062]]
delaying the auctions for the inland VPCs by holding frequencies open
for public safety applications. Instead, the Commission designated
public safety channels in advance. The Commission rejected the
alternative of requiring each geographic area licensee to provide
detailed information about the services it will offer, so the
Commission could determine whether the licensee is a telecommunications
carrier. Instead, the Commission established a rebuttable presumption
that geographic area licensees are telecommunications carriers, so only
those seeking to avoid that classification need submit such
information.
24. The Commission will send a copy of the Third Report and Order
and Memorandum Opinion and Order, including this FRFA, in a report to
be sent to Congress pursuant to the Small Business Regulatory
Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A). In
addition, the Commission will send a copy of the Third Report and Order
and Memorandum Opinion and Order, including this FRFA, to the Chief
Counsel for Advocacy of the Small Business.
Paperwork Reduction Act
25. This Third Report and Order and Memorandum Opinion and Order
contains neither a modified nor a new information collection.
List of Subjects
47 CFR Part 20
Communications common carriers, Radio, Reporting and recordkeeping
requirements.
47 CFR Part 80
Communications equipment, Radio, Vessels.
47 CFR Part 90
Communications equipment, Radio.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Accordingly, 47 CFR parts 20, 80, and 90 are amended as follows:
PART 20--COMMERCIAL MOBILE RADIO SERVICES
1. The authority citation for part 20 continues to read as follows:
Authority: Secs. 4, 251-2, 303, and 332, 48 Stat. 1066, 1062, as
amended; 47 U.S.C. 154, 251-4, 303, and 332 unless otherwise noted.
2. Amend Sec. 20.9 by revising paragraph (b) introductory text and
paragraph (b)(1) to read as follows:
Sec. 20.9 Commercial mobile radio service.
* * * * *
(b) Licensees of a Personal Communications Service or applicants
for a Personal Communications Service license, and Public Coast Station
licensees or applicants, proposing to use any Personal Communications
Service or Public Coast Station spectrum to offer service on a private
mobile radio service basis must overcome the presumption that Personal
Communications Service and Public Coast Stations are commercial mobile
radio services.
(1) The applicant or licensee (who must file an application to
modify its authorization) seeking authority to dedicate a portion of
the spectrum for private mobile radio service, must include a
certification that it will offer Personal Communications Service or
Public Coast Station service on a private mobile radio service basis.
The certification must include a description of the proposed service
sufficient to demonstrate that it is not within the definition of
commercial mobile radio service in Sec. 20.3 of this chapter. Any
application requesting to use any Personal Communications Service or
Public Coast Station spectrum to offer service on a private mobile
radio service basis will be placed on public notice by the Commission.
* * * * *
PART 80--STATIONS IN THE MARITIME SERVICES
3. The authority citation for part 80 is revised to read as
follows:
Authority: Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066,
1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless
otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105,
as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12
UST 2377.
4. Amend Sec. 80.3 by revising paragraph (b) to read as follows:
Sec. 80.3 Other applicable rule parts of this chapter.
* * * * *
(b) Part 1. This part includes rules of practice and procedure for
license applications, adjudicatory proceedings, procedures for
reconsideration and review of Commission actions; provisions concerning
violation notices and forfeiture proceedings; and the environmental
processing requirements that, if applicable, must be complied with
prior to the initiation of construction. Subpart Q of Part 1 contains
rules governing competitive bidding procedures for resolving mutually
exclusive applications for certain initial licenses.
* * * * *
5. Amend Sec. 80.25 by revising paragraph (b) to read as follows:
Sec. 80.25 License term.
* * * * *
(b) Licenses other than ship stations in the maritime services will
normally be issued for a term of five years from the date of original
issuance, major modification, or renewal, except that licenses for VHF
public coast stations will normally be issued for a term of ten years
from the date of original issuance, major modification, or renewal.
Licenses, other than Public Coast and Alaska Public Fixed stations, may
be renewed up to ninety (90) days after the date the license expires.
* * * * *
6. Revise Sec. 80.49 to read as follows:
Sec. 80.49 Construction and regional service requirements.
(a) Public coast stations. (1) Each VHF public coast station
geographic area licensee must make a showing of substantial service
within its region or service area (subpart P) within five years of the
initial license grant, and again within ten years of the initial
license grant, or the authorization becomes invalid and must be
returned to the Commission for cancellation. ``Substantial'' service is
defined as service which is sound, favorable, and substantially above a
level of mediocre service which just might minimally warrant renewal.
For site-based VHF public coast station licensees, when a new license
has been issued or additional operating frequencies have been
authorized, if the station or frequencies authorized have not been
placed in operation within twelve months from the date of the grant,
the authorization becomes invalid and must be returned to the
Commission for cancellation.
(2) For LF, MF, HF, and AMTS band public coast station licensees,
when a new license has been issued or additional operating frequencies
have been authorized, if the station or frequencies authorized have not
been placed in operation within eight months from the date of the
grant, the authorization becomes invalid and must be returned to the
Commission for cancellation.
(b) Public fixed stations. When a new license has been issued or
additional operating frequencies have been authorized, if the station
or frequencies authorized have not been placed in operation within
twelve months from the date of the grant, the authorization
[[Page 40063]]
becomes invalid and must be returned to the Commission for
cancellation.
7. Add Sec. 80.60 to subpart B to read as follows:
Sec. 80.60 Partitioned licenses and disaggregated spectrum.
(a) Eligibility. VHF Public Coast Station Area (VPCSA) licensees,
see Sec. 80.371(c)(1)(ii) of this part, may partition their geographic
service area or disaggregate their spectrum pursuant to the procedures
set forth in this section. Parties seeking approval for partitioning
and disaggregation shall request an authorization for partial
assignment pursuant to Sec. 1.924 of this chapter.
(b) Technical standards. (1) Partitioning. In the case of
partitioning, all requests for authorization for partial assignment of
a license must include, as an attachment, a description of the
partitioned service area. The partitioned service area shall be defined
by coordinate points at every 3 degrees along the partitioned service
area unless an FCC-recognized service area is utilized (e.g.,
Metropolitan Service Area, Rural Service Area, or Economic Area) or
county lines are used. The geographic coordinates must be specified in
degrees, minutes, and seconds to the nearest second of latitude and
longitude, and must be based upon the 1983 North American Datum
(NAD83). In a case where an FCC-recognized service area or county lines
are utilized, applicants need only list the specific area(s) (through
use of FCC designations or county names) that constitute the
partitioned area.
(2) Disaggregation. Spectrum may be disaggregated in any amount,
provided acquired spectrum is disaggregated according to frequency
pairs.
(3) Combined partitioning and disaggregation. The Commission will
consider requests for partial assignment of licenses that propose
combinations of partitioning and disaggregation.
(c) License term. The license term for a partitioned license area
and for disaggregated spectrum shall be the remainder of the original
licensee's term as provided for in Sec. 80.25 of this part.
(d) Construction Requirements. (1) Partitioning. Partial assignors
and assignees for license partitioning have two options to meet
construction requirements. Under the first option, the partitionor and
partitionee would each certify that they will independently satisfy the
substantial service requirement for their respective partitioned areas.
If either licensee failed to meet its substantial service showing
requirement, only the non-performing licensee's renewal application
would be subject to dismissal. Under the second option, the partitioner
certifies that it has met or will meet the substantial service
requirement for the entire market. If the partitioner fails to meet the
substantial service standard, however, only its renewal application
would be subject to forfeiture at renewal.
(2) Disaggregation. Partial assignors and assignees for license
disaggregation have two options to meet construction requirements.
Under the first option, the disaggregator and disaggregatee would
certify that they each will share responsibility for meeting the
substantial service requirement for the geographic service area. If
parties choose this option and either party fails to do so, both
licenses would be subject to forfeiture at renewal. The second option
would allow the parties to agree that either the disaggregator or the
disaggregatee would be responsible for meeting the substantial service
requirement for the geographic service area. If parties choose this
option, and the party responsible for meeting the construction
requirement fails to do so, only the license of the nonperforming party
would be subject to forfeiture at renewal.
8. Amend Sec. 80.70 by adding new paragraph (c) to read as follows:
Sec. 80.70 Special provisions relative to coast station VHF
facilities.
* * * * *
(c) A VHF (156-162 MHz) public coast station licensee initially
authorized on any of the channels listed in the table in
Sec. 80.371(c)(1)(i) of this part may transfer or assign its channel(s)
to another entity. If the proposed transferee or assignee is the
geographic area licensee for the geographic area to which the channel
is allocated, such transfer or assignment will be deemed to be in the
public interest. However, such presumption will be rebuttable.
9. Revise Sec. 80.105 to read as follows:
Sec. 80.105 General obligations of coast stations.
Each coast station or marine-utility station must acknowledge and
receive all calls directed to it by ship or aircraft stations. Such
stations are permitted to transmit safety communication to any ship or
aircraft station. VHF (156-162 MHz) public coast stations may provide
fixed or hybrid services on a co-primary basis with mobile operations.
10. Amend Sec. 80.303 by revising paragraph (b) to read as follows:
Sec. 80.303 Watch on 156.800 MHz (Channel 16).
* * * * *
(b) A coast station is exempt from compliance with the watch
requirement when Federal, State, or Local Government stations maintain
a watch on 156.800 MHz over 95% of the coast station's service area.
Each licensee exempted by rule must notify the nearest district office
of the U.S. Coast Guard at least thirty days prior to discontinuing the
watch, or in the case of new stations, at least thirty days prior to
commencing service. The Coast Guard may require any coast station to
maintain the watch temporarily or permanently. The Coast Guard may also
require any coast station to remain capable of either immediately
resuming the watch or providing the Coast Guard direct dial-up access
to the necessary 156.800 MHz transceiver at no charge so that the Coast
Guard can maintain the watch.
* * * * *
11. Amend Sec. 80.371 by revising paragraph (c) intoductory text,
adding paragraph (c)(1)(i) before the table, and adding paragraphs
(c)(1)(ii), (c)(1)(iii), (c)(2), (c)(3), and (c)(4) to read as follows:
Sec. 80.371 Public correspondence frequencies.
* * * * *
(c) Working frequencies in the marine VHF 156-162 MHz band. (1)(i)
The frequency pairs listed in the table in paragraph (c)(1)(ii) are
available for assignment to public coast stations for public
correspondence communications with ship stations and units on land.
* * * * *
(ii) Service areas in the marine VHF 156-162 MHz band are VHF
Public Coast Station Areas (VPCSAs). As listed in the table in this
paragraph, VPCSAs are based on, and composed of one or more of, the U.S
Department of Commerce's 172 Economic Areas (EAs). See 60 FR 13114
(March 10, 1995). In addition, the Commission shall treat Guam and the
Northern Mariana Islands, Puerto Rico and the United States Virgin
Islands, American Samoa, and the Gulf of Mexico as EA-like areas, and
has assigned them EA numbers 173-176, respectively. Maps of the EAs and
VPCSAs are available for public inspection and copying at the Public
Safety and Private Wireless Division, room 8010, 2025 M Street, NW,
Washington, DC. Except as shown in the table, the frequency pairs
listed in paragraph (c)(1)(i) of this section are available for
assignment to a single licensee in each of the VPCSAs listed in the
table in this paragraph. In addition to the listed EAs listed in the
table in this paragraph, each VPCSA also includes the adjacent waters
under the jurisdiction of the United States.
[[Page 40064]]
------------------------------------------------------------------------
VHF Public coast station areas (VPCSAs)
-------------------------------------------------------------------------
Frequency pairs
VPCSAs EAs not available for
assignment
------------------------------------------------------------------------
1 (Northern Atlantic)......... 1-5, 10.............. .................
2 (Mid-Atlantic).............. 9, 11-23, 25, 42, 46. .................
3 (Southern Atlantic)......... 24, 26-34, 37, 38, .................
40, 41, 174.
4 (Mississippi River)......... 34, 36, 39, 43-45, 47- .................
53, 67-107, 113, 116-
120, 122-125, 127,
130-134, 176.
5 (Great Lakes)............... 6-8, 54-66, 108, 109. .................
6 (Southern Pacific).......... 160-165.............. .................
7 (Northern Pacific).......... 147, 166-170......... .................
8 (Hawaii).................... 172, 173, 175........ .................
9 (Alaska).................... 171.................. .................
10 (Grand Forks).............. 110.................. 84, 25.
11 (Minot).................... 111.................. 84, 25.
12 (Bismarck)................. 112.................. 84, 25.
13 (Aberdeen)................. 114.................. 84, 25.
14 (Rapid City)............... 115.................. 84, 25.
15 (North Platte)............. 121.................. 84, 25.
16 (Western Oklahoma)......... 126.................. 25, 85.
17 (Abilene).................. 128.................. 25, 85.
18 (San Angelo)............... 129.................. 25, 85.
19 (Odessa-Midland)........... 135.................. 25, 85.
20 (Hobbs).................... 136.................. 25, 85.
21 (Lubbock).................. 137.................. 25, 85.
22 (Amarillo)................. 138.................. 25, 85.
23 (Santa Fe)................. 139.................. 84, 25.
24 (Pueblo)................... 140.................. 84, 25.
25 (Denver-Boulder-Greeley)... 141.................. 84, 25.
26 (Scottsbluff).............. 142.................. 84, 25.
27 (Casper)................... 143.................. 84, 25.
28 (Billings)................. 144.................. 84, 25.
29 (Great Falls).............. 145.................. 84, 25.
30 (Missoula)................. 146.................. 84, 25.
31 (Idaho Falls).............. 148.................. 25, 85.
32 (Twin Falls)............... 149.................. 25, 85.
33 (Boise City)............... 150.................. 84, 25.
34 (Reno)..................... 151.................. 84, 25.
35 (Salt Lake City-Ogden)..... 152.................. 25, 85.
36 (Las Vegas)................ 153.................. 84, 25.
37 (Flagstaff)................ 154.................. 84, 25.
38 (Farmington)............... 155.................. 84, 25.
39 (Albuquerque).............. 156.................. 84, 25.
40 (El Paso).................. 157.................. 25, 85.
41 (Phoenix-Mesa)............. 158.................. 84, 25.
42 (Tucson)................... 159.................. 84, 25.
------------------------------------------------------------------------
(iii) Subject to paragraph (c)(3) of this section, each licensee
may also operate on 12.5 kHz offset frequencies in areas where the
licensee is authorized on both frequencies adjacent to the offset
frequency, and in areas where the licensee on the other side of the
offset frequency consents to the licensee's use of the adjacent offset
frequency.
(2) Any recovered channel pairs will revert automatically to the
holder of the VPCSA license within which such channels are included,
except the channel pairs listed in the table in paragraph (c)(1)(ii) of
this section. Those channel pairs, and any channel pairs recovered
where there is no VPCSA licensee, will be retained by the Commission
for future licensing.
(3) VPCSA licensees may not operate on Channel 228B (162.0125 MHz),
which is available for use in the Coast Guard's Ports and Waterways
Safety System (PAWSS)). In addition, within six months of the
conclusion of the competitive bidding procedures to determine the
licensees in each VPCSA, the U.S. Coast Guard shall submit to each
licensee of VPCSAs 1-9 a plan specifying up to two narrowband channel
pairs offset 12.5 kHz from the channels set forth in the table in
paragraph (c)(1)(i) of this section, for use in the PAWSS. The final
selection of the PAWSS channel pairs can be negotiated (if the VPCSA
licensee objects to the Coast Guard proposal, it shall make a
counterproposal within three months) and established by an agreement
between the parties. All parties are required to negotiate in good
faith. If no agreement is reached within one year of the date the Coast
Guard submitted its plan, the Coast Guard may petition the Commission
to select the channel pairs.
(4) Subject to the requirements of Sec. 80.21, each VPCSA licensee
may place stations anywhere within its region without obtaining prior
Commission approval provided:
(i) It provides to co-channel coast station incumbent licensees,
and incumbent Private Land Mobile Radio licensees authorized under part
90 of this chapter on a primary basis, protection as defined in subpart
P of this part. VPCSA licensees that share a common border may either
distribute the available frequencies upon mutual agreement or request
that the Commission assign frequencies along the common border.
[[Page 40065]]
(ii) The locations and/or technical parameters of the transmitters
are such that individual coordination of the channel assignment(s) with
a foreign administration, under applicable international agreements and
rules in this part, is not required.
(iii) For any construction or alteration that would exceed the
requirements of Sec. 17.7 of this chapter, licensees must notify the
appropriate Regional Office of the Federal Aviation Administration (FAA
Form 7460-1) and file a request for antenna height clearance and
obstruction marking and lighting specifications (FCC Form 854) with the
FCC, Attn: Information Processing Branch, 1270 Fairfield Rd.,
Gettysburg, PA 17325-7245.
(iv) The transmitters must not have a significant environmental
effect as defined by Secs. 1.1301 through 1.1319 of this chapter.
* * * * *
12. Revise Sec. 80.751 to read as follows:
Sec. 80.751 Scope.
This subpart specifies receiver antenna terminal requirements in
terms of power, and relates the power available at the receiver antenna
terminals to transmitter power and antenna height and gain. It also
sets forth the co-channel interference protection that VHF public coast
station geographic area licensees must provide to incumbents.
13. Revise Sec. 80.773 to read as follows:
Sec. 80.773 Co-channel interference protection.
(a) Where a VHF public coast station geographic area licensee
shares a frequency with an incumbent VHF public coast station licensee,
the ratio of desired to undesired signal strengths must be at least 12
dB within the service area of the station.
(b) Where a VHF public coast station geographic area licensee
shares a frequency with an incumbent private land mobile radio
licensee, the VHF public coast station geographic area licensee must
provide at least 10 dB protection to the PLMR incumbent's predicted 38
dBu signal level contour. The PLMR incumbent's predicted 38 dBu signal
level contour is calculated using the F(50, 50) field strength chart
for Channels 7-13 in Sec. 73.699 (Fig. 10a) of this chapter, with a 9
dB correction factor for antenna height differential, and is based on
the licensee's authorized effective radiated power and antenna height-
above-average-terrain.
14. Add new subpart Y to read as follows:
Subpart Y--Competitive Bidding Procedures
Sec.
80.1251 Maritime communications services subject to competitive
bidding.
80.1252 Designated entities.
Sec. 80.1251 Maritime communications services subject to competitive
bidding.
Mutually exclusive initial applications for VPCSA licenses, high
seas public coast station licenses, and AMTS coast station licenses are
subject to competitive bidding procedures. The procedures set forth in
part 1, subpart Q of this chapter will apply unless otherwise provided
in this part.
Sec. 80.1252 Designated entities.
(a) This section addresses certain issues concerning designated
entities in maritime communications services subject to competitive
bidding. Issues that are not addressed in this section are governed by
the designated entity provisions in part 1, subpart Q of this chapter.
(b) Eligibility for small business provisions. (1) A small business
is an entity that, together with its affiliates and controlling
interests, has average gross revenues not to exceed $15 million for the
preceding three years.
(2) A very small business is an entity that, together with its
affiliates and controlling interests, has average gross revenues not to
exceed $3 million for the preceding three years.
(3) For purposes of determining whether an entity meets either of
the definitions set forth in paragraph (b)(1) or (b)(2) of this
section, the gross revenues of the entity, its affiliates, and
controlling interests shall be considered on a cumulative basis and
aggregated.
(4) Where an applicant or licensee cannot identify controlling
interests under the standards set forth in this section, the gross
revenues of all interest holders in the applicant, and their
affiliates, will be attributable.
(5) A consortium of small businesses (or a consortium of very small
businesses) is a conglomerate organization formed as a joint venture
between or among mutually independent business firms, each of which
individually satisfies the definition in paragraph (b)(1) of this
section (or each of which individually satisfies the definition in
paragraph (b)(2) of this section). Where an applicant or licensee is a
consortium of small businesses (or very small businesses), the gross
revenues of each small business (or very small business) shall not be
aggregated.
(c) Controlling interest. (1) For purposes of this section,
controlling interest includes individuals or entities with de jure and
de facto control of the applicant. De jure control is greater than 50
percent of the voting stock of a corporation, or in the case of a
partnership, the general partner. De facto control is determined on a
case-by-case basis. An entity must disclose its equity interest and
demonstrate at least the following indicia of control to establish that
it retains de facto control of the applicant:
(i) The entity constitutes or appoints more than 50 percent of the
board of directors or management committee;
(ii) The entity has authority to appoint, promote, demote, and fire
senior executives that control the day-to-day activities of the
licensee; and
(iii) The entity plays an integral role in management decisions.
(2) Calculation of certain interests. (i) Ownership interests shall
be calculated on a fully diluted basis; all agreements such as
warrants, stock options and convertible debentures will generally be
treated as if the rights thereunder already have been fully exercised.
(ii) Partnership and other ownership interests and any stock
interest equity, or outstanding stock, or outstanding voting stock
shall be attributed as specified in paragraphs (c)(2)(iii) through
(c)(2)(ix) of this section.
(iii) Stock interests held in trust shall be attributed to any
person who holds or shares the power to vote such stock, to any person
who has the sole power to sell such stock, and, to any person who has
the right to revoke the trust at will or to replace the trustee at
will. If the trustee has a familial, personal, or extra-trust business
relationship to the grantor or the beneficiary, the grantor or
beneficiary, as appropriate, will be attributed with the stock
interests held in trust.
(iv) Non-voting stock shall be attributed as an interest in the
issuing entity.
(v) Limited partnership interests shall be attributed to limited
partners and shall be calculated according to both the percentage of
equity paid in and the percentage of distribution of profits and
losses.
(vi) Officers and directors of an entity shall be considered to
have an attributable interest in the entity. The officers and directors
of an entity that controls a licensee or applicant shall be considered
to have an attributable interest in the licensee or applicant.
(vii) Ownership interests that are held indirectly by any party
through one or more intervening corporations will be determined by
successive multiplication of the ownership percentages for each link in
the vertical ownership chain and
[[Page 40066]]
application of the relevant attribution benchmark to the resulting
product, except that if the ownership percentage for an interest in any
link in the chain exceeds 50 percent or represents actual control, it
shall be treated as if it were a 100 percent interest.
(viii) Any person who manages the operations of an applicant or
licensee pursuant to a management agreement shall be considered to have
an attributable interest in such applicant or licensee if such person,
or its affiliate pursuant to Sec. 1.2110(b)(4) of this chapter, has
authority to make decisions or otherwise engage in practices or
activities that determine, or significantly influence:
(A) The nature or types of services offered by such an applicant or
licensee;
(B) The terms upon which such services are offered; or
(C) The prices charged for such services.
(ix) Any licensee or its affiliate who enters into a joint
marketing arrangement with an applicant or licensee, or its affiliate,
shall be considered to have an attributable interest, if such applicant
or licensee, or its affiliate, has authority to make decisions or
otherwise engage in practices or activities that determine, or
significantly influence,
(A) The nature or types of services offered by such an applicant or
licensee;
(B) The terms upon which such services are offered; or
(C) The prices charged for such services.
(d) A winning bidder that qualifies as a small business or a
consortium of small businesses as defined in Sec. 80.1252(b)(1) or
Sec. 80.1252(b)(5) of this subpart may use the bidding credit specified
in Sec. 1.2110(e)(2)(ii) of this chapter. A winning bidder that
qualifies as a very small business or a consortium of very small
businesses as defined in Sec. 80.1252(b)(2) or Sec. 80.1252(b)(5) of
this subpart may use the bidding credit specified in
Sec. 1.2110(e)(2)(i) of this chapter.
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
15. The authority citation for part 90 continues to read as
follows:
Authority: Secs. 4, 251-2, 303, 309, and 332, 48 Stat. 1066,
1082, as amended; 47 U.S.C. 154, 251-2, 303, 309 and 332, unless
otherwise noted.
Sec. 90.283 [Removed and Reserved]
16. Removed and reserve Sec. 90.283.
[FR Doc. 98-19943 Filed 7-24-98; 8:45 am]
BILLING CODE 6712-01-P
