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Proposed Rule

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AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

This document seeks comment on whether certain rule changes would be in the public interest. Specifically, the Commission seeks comment on whether it should modify the equipment rules for non-Public Safety licensees operating in the private land mobile radio bands between 222 MHz and 896 MHz by prohibiting the manufacture or importation of equipment that does not meet certain efficiency standards by certain dates. The Commission also seeks comment as to whether Business and Industrial/Land Transportation category (BI/LT) licensees in the 896-901/935-940 MHz (900 MHz) band should be allowed to assign or transfer their spectrum to CMRS licensees for use in CMRS operations, or to modify the licenses to CMRS use in their own systems.

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DATES:

Interested parties may file comments on or before March 5, 2001 and reply comments on or before April 2, 2001.

ADDRESSES:

An original and four copies of all comments should be filed with the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., TW-A325, Washington, DC 20554.

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FOR FURTHER INFORMATION CONTACT:

Guy Benson (regarding equipment efficiency rules) or Karen Franklin (regarding the 900 MHz band), (202) 418-0680, TTY (202) 418-7233, or via e-mail at gbenson@fcc.gov or kfrankli@fcc.gov, Wireless Telecommunications Bureau, Public Safety and Private Wireless Division.

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SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM) in FCC 00-403; WT Docket No. 99-87, adopted on November 9, 2000 and released on November 20, 2000. The full text of this FNPRM is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW. Washington, DC 20037. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Martha Contee at (202) 418-0260 or TTY (202) 418-2555.

Summary of the Notice

1. Equipment efficiency rules. On June 19, 1998, the American Mobile Telecommunications Association (AMTA) filed a petition for rule making proposing that certain Part 90 licensees be required to employ new spectrum-efficient technologies. Specifically, AMTA urges that non-Public Safety licensees in the bands between 222 MHz and 896 MHz be required to deploy technology that achieves the equivalent of two times the capacity of most current operations. The gain in efficiency would result in one voice path per 12.5 kilohertz of spectrum, using a 25 kilohertz frequency. AMTA proposes that the requirement be phased in from 2003 to 2020, beginning with the most congested areas. Licensees not deploying this new equipment would be required to accept secondary status.

2. AMTA contends that such requirements are needed because, under the current rules, it is financially imprudent for a licensee to invest in new, more efficient technology, since doing so results in additional costs without additional benefits. The current rules, which were adopted in the Refarming proceeding, provide that, in order to effect a transition to a narrowband channel plan, we will type certify only increasingly efficient equipment. Specifically, since February 14, 1997, we have certified equipment for 25 kilohertz channels only if it is also capable of operating on 12.5 kilohertz and/or narrower channels. After January 1, 2005, only new equipment that operates on 6.25 kilohertz channel bandwidths will be certified. New equipment that operates on 25 and/or 12.5 kilohertz channels will be certified only if it is also capable of operating on 6.25 kilohertz or narrower channels. The rules do not require users to replace existing systems.

3. When the Commission adopted the current rules in 1995, it specifically declined to implement a comprehensive set of dates mandating strict manufacturing and licensing requirements. The Commission concluded that the type certification process itself could provide the catalyst for transition from one technology to another by promoting a natural migration to new technologies. The Commission concluded that this approach was preferable to requiring manufacturing or licensing of narrowband equipment by certain dates, because it would provide users immediate flexibility in equipment decisions, provide a period for the development of new technologies, and avoid creating an unreasonable burden for licensees.

4. AMTA and other commenters argue that a new approach is needed, because the migration to narrowband technology is not occurring as rapidly as the Commission intended. Other commenters believe that the Refarming rules should be retained at least for the time being, because not enough time has elapsed in order to reap the benefits of the well-considered compromises the Commission adopted in that proceeding. After considering the record and comments in this proceeding, we are inclined to agree with AMTA that the current pace of migration to more spectrally efficient technology is not rapid enough. We seek comment on this tentative conclusion, as well as whether enough time has elapsed to allow us to evaluate the effectiveness of our current rules.

5. Commenters believing that the rules need to be revised should also discuss what action the Commission should take. We tentatively conclude that that we should encourage the migration to narrowband technology by prohibiting the manufacture or importation of equipment that does not meet certain efficiency standards by certain dates. We continue to be concerned that requiring the employment of new spectrum-efficient technologies by certain dates, as proposed by AMTA, would impose unreasonable burdens on licensees, and we acknowledge the concerns raised by opponents of AMTA's proposal that it would be unfair to require users to replace systems in which they have recently invested substantial amounts. On the other hand, a user that continues to employ spectrally inefficient equipment, when more efficient alternatives are available, is harming other users with whom it is sharing the frequencies in these bands. Therefore, we are also concerned with a system that permits users to remain on spectrally inefficient systems indefinitely. We request comment on these issues and on the comparative merits of alternative approaches to addressing these concerns. We also request comment on what timetable would be appropriate for implementing any new requirement. One alternative would be to prohibit the manufacture or importation of equipment that does not meet certain efficiency standards by January 1, 2005, which, is the date after which, under our current rules, only new equipment that operates on 6.25 kilohertz channel bandwidths will be certified. We seek comment on this proposal and alternative dates for this proposal to become effective. Commenters are encouraged to suggest specific dates and specific efficiency requirements, and to explain their recommendations.

6. 900 MHz band. In the Report and Order portion of this item, we amended our rules to allow 800 MHz BI/LT licensees to assign or transfer their spectrum to CMRS licensees for use in CMRS operations, or to modify the licenses to CMRS use in their own systems. We also adopted rules to safeguard against trafficking in 800 MHz BI/LT licenses, and notification procedures to avoid interference to 800 MHz public safety operations. We did not ask commenters to address whether we should also extend this flexibility to any other frequency bands, and therefore did not consider any such rule amendments.

7. We now seek comment on whether this flexibility in use of PLMR channels should be extended to the 900 MHz band. We believe that such an action would promote the statutory objective of regulatory symmetry among CMRS Start Printed Page 88providers. We intend, if we introduce such flexibility for licensees in the 900 MHz band, to impose an appropriate holding period requirement on all licenses the application for which is filed on or after the date we adopt this item. We would take such an action in order to ensure that our request for comment on this issue does not motivate prospective licensees to apply for vacant PLMR spectrum with the sole intent of using it for CMRS operations. Given the unique characteristics of the 800 MHz PLMR bands, however, we also seek comment as to whether there are any reasons we should continue to treat the 800 MHz and 900 MHz bands differently.

Regulatory Flexibility Analysis

8. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible impact on small entities of the proposals and tentative conclusions set forth in the FNPRM in WT Docket No. 99-87. Written public comments are requested on the IRFA. Comments on the IRFA must have a separate and distinct heading designating them as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM. In accordance with the RFA, the Commission will send a copy of this FNPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

Filing Procedures

9. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before March 5, 2001, and reply comments on or before April 2, 2001. Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).

10. Comments filed through the ECFS can be sent as an electronic file via the Internet to <http://www.fcc.gov/​e-file/​ecfs.html>. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To obtain filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

11. Parties choosing to file by paper must file an original and four copies of each filing. If participants want each Commissioner to receive a personal copy of their comments, an original plus nine copies must be filed. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, The Portals, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. In addition, courtesy copies should be delivered to Leora Hochstein, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW., Room #4-A633, Washington, DC 20554 and Scot Stone, Public Safety and Private Wireless Division, Federal Communications Commission, 445 12th Street, SW., Room #4-B408, Washington, DC 20554.

12. All relevant and timely comments will be considered by the Commission before final action is taken in this proceeding. Comments and reply comments will be available for public inspection and duplication during regular business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. Copies also may be obtained from International Transcription Services, Inc., 445 12th Street, SW., Room CY-B400, Washington, DC 20554, (202) 314-3070.

Ordering Clauses

13. Authority for issuance of this FNPRM is contained in sections 4(I), 309(r), and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 309(j).

Initial Regulatory Flexibility Analysis

14. As required by the Regulatory Flexibility Act (“RFA”), the Commission has prepared this present Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on small entities by the policies and rules proposed in this FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on this FNPRM. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”).

Need for, and Objectives of, the Proposed Rules

15. The purpose of this FNPRM is to determine whether it would be in the public interest, convenience, and necessity to amend our rules governing non-public safety private land mobile radio (“PLMR”) licensees in the bands between 222 MHz and 896 MHz in order to expedite the transition to narrowband technology. As is described in the FNPRM, AMTA urges that non-Public Safety licensees in the bands between 222 MHz and 896 MHz be required to deploy technology that achieves the equivalent of two times the capacity of most current operations. AMTA asserts that the gain in efficiency would result in one voice path per 12.5 kilohertz of spectrum, using a 25 kilokertz frequency. AMTA proposes that the requirement be phased in from 2003 to 2020, beginning with the most congested areas. Other commenters believe that the Refarming rules should be retained at least for the time being, because not enough time has elapsed in order to reap the benefits of the well-considered compromises the Commission adopted in that proceeding. The Report and Order tentatively concludes that we should encourage the migration to narrowband technology by prohibiting the manufacture or importation of equipment that does not meet certain efficiency standards by certain dates and requests comment on these issues and the comparative merits of alternative approaches to addressing the concerns that have been raised, including what timetable would be appropriate for implementing any new requirement.

16. The FNPRM also seeks comment on whether to permit 900 MHz Business and Industrial/Land Transportation (“BI/LT”) licensees to modify their licenses to permit CMRS use. The Commission believes that extending this flexibility to 900 MHz BI/LT licensees would promote the statutory objective of regulatory symmetry among CMRS providers.

Legal Basis

17. Authority for issuance of this FNPRM is contained in Sections 4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as amended.

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

18. 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 Start Printed Page 89the proposed rules, if adopted. Under the RFA, small entities may include small organizations, small businesses, and small governmental jurisdictions. The RFA generally defines the term “small business” as having the same meaning as the term “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 operation; and (3) satisfies any additional criteria established by the 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.

19. The proposed rule amendments may affect users of public safety radio services and private radio licensees that are regulated under Part 90 of the Commission's rules, and may also affect manufacturers of radio equipment. An analysis of the number of small entities affected follows.

20. Public Safety radio services and Governmental entities. Public Safety radio services include police, fire, local governments, forestry conservation, highway maintenance, and emergency medical services. The SBA rules contain a definition for small radiotelephone (wireless) companies, which encompasses business entities engaged in radiotelephone communications employing no more that 1,500 persons. There are a total of approximately 127,540 licensees within these services. Governmental entities as well as private businesses comprise the licensees for these services. The RFA also includes small governmental entities as a part of the regulatory flexibility analysis. “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 96 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, the Commission estimates that 81,600 (91 percent) are small entities.

21. Specialized Mobile Radio (“SMR”). The Commission awards bidding credits in auctions for geographic area 800 MHz and 900 MHz SMR licenses to two tiers of firms: (1) “small entities,” those with revenues of no more than $15 million in each of the three previous calendar years; and (2) “very small entities,” those with revenues of no more than $3 million in each of the three previous calendar years. The regulations defining “small entity” and “very small entity” in the context of 800 MHz SMR (upper 10 MHz and lower 230 channels) and 900 MHz SMR have been approved by the SBA. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. We assume, for our purposes here, that all of the remaining existing extended implementation authorizations are held by small entities, as that term is defined by the SBA. The Commission has held auctions for geographic area licenses in the 800 MHz (upper 10 MHz) and 900 MHz SMR bands. There were 60 winning bidders that qualified as small and very small entities in the 900 MHz auction. Of the 1,020 licenses won in the 900 MHz auction, 263 licenses were won by bidders qualifying as small and very small entities. In the 800 MHz SMR auction, 38 of the 524 licenses awarded were won by small and very small entities.

22. Estimates for PLMR Licensees. Private land mobile radio systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a definition of small entities specifically applicable to PLMR users, nor has the SBA developed any such definition. The SBA rules do, however, contain a definition for small radiotelephone (wireless) companies. Included in this definition are business entities engaged in radiotelephone communications employing no more that 1,500 persons. Entities engaged in telegraph and other message communications with no more than $5 million in annual receipts also qualify as small business concerns. According to the Bureau of the Census, only twelve radiotelephone firms of a total of 1,178 such firms which operated during 1992 had 1,000 or more employees. For the purpose of determining whether a licensee is a small business as defined by the SBA, each licensee would need to be evaluated within its own business area. The Commission's fiscal year 1994 annual report indicates that, at the end of fiscal year 1994, there were 1,101,711 licensees operating 12,882,623 transmitters in the PLMR bands below 512 MHz.

23. 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.

Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

24. Possible requirements under consideration in this FNPRM would impose new compliance requirements for certain 900 MHz PLMR licensees regulated under Part 90 of the Commission's rules that seek to modify their licenses to for use in CMRS systems. Assuming the rules adopted in the Report and Order are a good model for 900 MHz PLMR (which assumption has yet to be established), the Commission might require applicants, upon submitting a modification application, to: (a) Certify that the coor adjacent channel 800 MHz public safety licensees in the same geographic area have been notified of the application; and (b) commit that they will take affirmative steps to avoid harmful interference to such public safety licensees. These steps may be necessary to reduce risks of increased interference.

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

25. 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): (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (iii) the use of performance, rather than design, standards; and (iv) an exemption from coverage of the rule or any part thereof for small entities.

26. The Commission believes that migration to narrowband technologies, Start Printed Page 90should benefit all entities, as it will result in more efficient use of the spectrum by allowing a greater number of entities to share existing spectrum. However, requiring the use of narrowband equipment by a date certain, or prohibiting the manufacture or import of non-compliant equipment, could impact some small entities requiring them to upgrade their communications systems before they would otherwise do so. An alternative would be to maintain the current rules, which are intended to foster migration to narrowband technology by way of progressively more stringent type certification requirements. We issue this FNPRM in order to consider whether a change in the Rules would benefit small entities and other PLMR licensees.

27. In the Report and Order portion of this item, we amended our rules to allow 800 MHz BI/LT licensees to assign or transfer their spectrum to CMRS licensees for use in CMRS operations, or to modify the licenses to CMRS use in their own systems. We also adopted rules to safeguard against trafficking in 800 MHz Business and I/LT licenses, and notification procedures to avoid interference to 800 MHz public safety operations. This FNPRM now seeks comment on whether this flexibility in use of PLMR channels should be extended to the 900 MHz band.

28. In the context of 800 MHz PLMR, we have found that allowing licensees to convert their frequencies to CMRS use or assign or transfer these frequencies to CMRS entities will not affect the supply of available PLMR spectrum for licensing from the PLMR pool, and thus should not further exacerbate the current shortage of private spectrum available to small business entities and other PLMR eligibles. An alternative approach might permit such modifications without restriction; however, this might affect the supply of available PLMR spectrum which might, in turn, have possible adverse effects on small businesses.

Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

29. None.

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List of Subjects in 47 CFR Parts 1 and 90

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Federal Communications Commission.

William F. Caton,

Deputy Secretary.

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[FR Doc. 01-41 Filed 12-29-00; 8:45 am]

BILLING CODE 6712-01-P