Domestic Public Fixed Radio Services; Local Multipoint Distribution Service

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 21

[CC Docket No. 92-297]

Domestic Public Fixed Radio Services; Local Multipoint

Distribution Service

AGENCY: Federal Communications Commission.

ACTION: Request for comments.

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SUMMARY: The Commission requests comments on whether it should

establish a Federal Advisory Committee to negotiate proposed technical

rules governing the provision of terrestrial and satellite services in

the 27.5-29.5 GHz frequency band.

DATES: Comments may be filed on or before March 21, 1994.

ADDRESSES: Comments should be sent to the Office of the Secretary, CC

Docket 92-297, Federal Communications Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Susan Magnotti, Domestic Radio Branch, Common Carrier Bureau, (202)

634-1773.

SUPPLEMENTARY INFORMATION: The Commission hereby seeks comment on

establishing an Advisory Committee to negotiate regulations defining

the technical rules appropriate to sharing the 27.5--29.5 GHz band by

the proposed Local Multipoint Distribution Service and by satellite

services. The negotiations are to assist the Commission in developing

regulations that will facilitate the shared use of this spectrum by

both satellite uplink and terrestrial point-to-multipoint service

providers. Any negotiating committee would be created under the Federal

Advisory Committee Act (FACA), 5 U.S.C. App. 2, and the Negotiated

Rulemaking Act of 1990 (NRA), Public Law 101-648, November 28, 1990,

and would consist of representatives of the interests that will be

significantly affected by the outcome of these rules.

The Commission has proposed to redesignate the use of the 27.5-29.5

GHz band from point-to-point terrestrial service to point-to-multipoint

service. Rulemaking to Amend Part 1 and Part 21 of the Commission's

Rules to Redesignate the 27.5-29.5 GHz Frequency Band and to Establish

Rules and Policies for Local Multipoint Distribution Service, Notice of

Proposed Rulemaking, 8 FCC Rcd 557 (1993) (CC Docket 92-297). The band

is also allocated on a coprimary basis to fixed satellite services. One

licensee, CellularVision of New York (CVNY, formerly Hye Crest

Management, Inc.), holds a regular license to provide terrestrial

point-to-multipoint service in this band to the New York City Primary

Metropolitan Statistical Area. Other entities hold experimental

licenses to test similar services in other areas. As discussed in the

Second Notice of Proposed Rulemaking, CC Docket No. 92-297, FCC 94-12,

released concurrently with this notice, some of the spectrum in the 28

GHz band may be needed for satellite earth stations that will

interconnect with mobile satellite systems. Moreover, the experimental

Advanced Communications Technology Satellite (ACTS) launched by NASA in

1993 is using a portion of the band (29.0-29.5 GHz) for research

purposes. The satellite has a four-year life expectancy. Hughes Space

and Communications Company has filed an application to provide service

in this band.

I. Regulatory Negotiation

Regulatory negotiation is a technique through which the Commission

hopes to develop better regulations that may be implemented in a less

adversarial setting. Negotiations are conducted through an Advisory

Committee chartered under FACA. The goal of the Committee is to reach

consensus on the language or substance of appropriate rules. If a

consensus is reached, it is used as the basis of the Commission's

proposal. All procedural requirements of the Administrative Procedure

Act (APA) and other applicable statutes continue to apply.

When making a determination regarding the suitability of a

proceeding for the negotiated rulemaking process, the Commission must

consider whether:

(a) There is a need for the rules to be developed;

(b) There are a limited number of identifiable interests that will

be significantly affected by the rules;

(c) There is a reasonable likelihood that a committee can be

convened with a balanced representation of persons who: (1) Can

adequately represent the identifiable interests and (2) are willing to

negotiate in good faith to reach a consensus on the proposed rules;

(d) There is a reasonable likelihood that a committee will reach a

consensus on the proposed rules within a fixed period of time;

(e) The negotiated rulemaking procedure will not unreasonably delay

the notice of proposed rulemaking and the issuance of final rules;

(f) The agency has adequate resources and is willing to commit such

resources, including technical assistance, to the committee, and

(g) The agency will, to the maximum extent possible consistent with

the legal obligations of the agency, use the consensus of the committee

with respect to the proposed rules as the basis for the rules proposed

by the agency for notice and comment. Negotiated Rulemaking Act Sec. 3,

5 U.S.C. 583(a).

II. Subject and Scope of Rule for Negotiated Rulemaking

The Commission is proposing that the technical regulations to

govern the provision of Local Multipoint Distribution Service and fixed

satellite use of the 28 GHz band be developed through negotiation. We

believe that the selection criteria listed above are met. Technical

rules are necessary to establish under what circumstances, if any,

sharing between satellite and terrestrial uses is feasible. The parties

whose interests are affected are identifiable from comments filed in

this proceeding. These interests can be adequately represented on a

committee, and we believe that representatives will act in good faith

to reach a consensus on technical rules within a set time frame. We

believe that the negotiated rulemaking process will better use public

and private resources than would our requiring more iterations of

written comments will an adequate record is developed. We have adequate

resources to commit to this endeavor and would use the consensus report

of the committee to develop proposed technical rules.

The Commission has identified the following primary issue that

should be addressed in the negotiations and resolved in the proposed

rules developed by the Committee:

What technical rules should be adopted for the Local Multipoint

Distribution Service and/or the fixed satellite service so as to

maximize the sharing of the spectrum among these services?

If the Negotiated Rulemaking Committee is able to accommodate all

proposed uses of the band, we ask that it proposes specific rules to

effectuate a sharing plan. We ask that it provide an analysis of how

benefits of its proposed solution outweigh other options for

accommodating these services. Specifically, we ask that it explain:

--The proper definition of the product market and geographic market for

the services proposed;

--The degree of competition anticipated within the relevant market

(including the extent to which the proposed services are expected to

compete with existing services);

--The degree to which new services and technological innovations will

be stimulated by the proposed allocation;

--The amount and nature of investment in the national

telecommunications infrastructure expected as a result of the use of

the band for the particular service(s);

--The kind and number of jobs that would be created as a result of the

licensing of particular services;

--Any other available data concerning the economic growth expected to

result from the allocation for the particular service(s).

Other issues may be included by the parties. All recommendations or

proposed rules must comply with International Telecommunication Union

treaty obligations.

III. Potential Interests and Participants

The Commission has identified the following interests as those most

likely to be significantly affected by the proposed rules:

(a) Developers, manufacturers, and licensees of Local Multipoint

Distribution Service;

(b) Pending mobile-satellite applicants in the 1610-1625.5/2483.5-

2500 MHz band filing by the June 2, 1991 cutoff date for these

applications;

(c) Fixed-satellite service applicants and service providers.

The following have tentatively been identified as potentially

affected interests should the Commission proceed with a negotiated

rulemaking: Suite 12 Group, Bell Atlantic Companies, Video/Phone

Systems, Inc., Endgate Company, Gigahertz Equipment Company, David

Sarnoff Research Center, The University of Texas System, NASA, Ellipsat

Corporation, Motorola Satellite Communications, Inc., Constellation

Communications, Inc., Loral/Qualcomm Satellite Service, Inc., TRW,

Inc., American Mobile Satellite Corporation, Hughes Space and

Communications Company, a representative of public television and

educational parties commenting in CC Docket 92-297, Comsearch, Inc.,

and the Domestic Facilities Division, Common Carrier Bureau, Federal

Communications Commission.

IV. Formation of the Negotiating Committee

A. Procedure for Establishing an Advisory Committee

Under FACA, an Advisory Committee may be established only after

consultation with the General Services Administration (GSA) and the

filing of a charter with Congress. The Commission will prepare a

charter and initiate the requisite consultation process prior to

formation of the Committee and the commencement of negotiations.

B. Participants

The number of participants in the group is estimated to be about 20

and should not exceed 25. A number larger than this could make it

difficult to conduct efficient negotiations. Each interest will have

the opportunity to be adequately represented, although this does not

necessarily mean that each potentially affected entity will have its

own representative. Further, we must be satisfied that the group, as a

whole, reflects a proper balance and mix of interests. In this respect,

we are especially interested in receiving nominations to participate

from public interest advocacy groups, users groups, and educators and

academics.

Entities that will be significantly affected by the proposed rules

and which believe that their interests will not be adequately

represented by any entity specified in paragraph 8 above, may apply

for, or nominate another entity for, membership on the Committee. Each

application for nomination must include:

(a) The name of the applicant or nominee and a description of the

interests the entity will represent,

(b) Evidence that the applicant or nominee is authorized to

represent parties related to the interests the entity proposes to

represent,

(c) A written commitment that the applicant or nominee shall

actively participate in good faith in the development of the rules

under consideration,

(d) The reasons that the entities specified in paragraph 8 do not

adequately represent the interests of the entity submitting the

application or nomination.

If, in response to this Notice, any additional entities request

membership or representation in the negotiating group, the Commission

will determine whether that entity should be added to the group. The

Commission will make that decision based on whether the entity would be

substantially affected by the rule and whether that entity is already

adequately represented in the negotiating group.

C. Agenda

If the Commission decides to establish a negotiating committee and

its charter is approved, it is anticipated that the Committee's first

meeting will take place in March or April, 1994, at the Commission's

offices, Washington, DC, at a building, room, date, and time that will

be announced. At this initial meeting, the committee will complete

action on all procedural matters and establish a target date for

submission of its recommendations. We expect that the target date would

be no later than July, 1994. We anticipate a publication of a Further

Notice of Proposed Rulemaking not later than October, 1994.

V. Negotiation Procedures

The following procedures and guidelines will apply to the

Committee, if formed. These procedures may be modified, however, after

reviewing the comments received in response to this Notice or during

the negotiation process.

A. Facilitator

The Commission will nominate a person to serve as a neutral

facilitator for the negotiations of the Committee, subject to the

approval of the Committee by consensus. The facilitator will not be

involved in the substantive development of the regulations. The

facilitator's roles are to: (1) Chair negotiating sessions, (2) help

the negotiation process run smoothly, (3) help participants define and

reach a consensus, and (4) manage record-keeping and minute-keeping.

B. Good Faith Negotiations

Since participants must be willing to negotiate in good faith, each

organization--including the Commission--must designate a qualified

individual to represent its interests. Thomas S. Tycz, Deputy Chief,

Domestic Facilities Division, Common Carrier Bureau, will be the

Commission's representative.

C. Meetings and Compensation

Meetings will be held in the Washington, DC area at the convenience

of the Committee. The Commission, if requested, will provide the

facilities needed to conduct the meetings, and will provide the

facilities needed to conduct the meetings, and will provide any

necessary technical support. Private sector members of the Committee

will serve without government compensation or reimbursement of

expenses. Private sector members will not be special government

employees for any purposes whatsoever.

D. Committee Procedures

Under the general guidance and direction of the facilitator, and

subject to any applicable legal requirements, the members will

establish the procedures for committee meetings that they consider most

appropriate.

E. Consensus

The goal of the Committee is consensus. The Negotiated Rulemaking

Act defines consensus as unanimous concurrence among the represented

interests, although the Act permits the Committee to agree to another

specified definition. In the event the Committee is unable to reach a

consensus, the Committee may include in a report any other information,

recommendations, or materials that the Committee considers appropriate,

and any Committee member may include as an addendum to the report

additional information, recommendations, or materials. Parties to the

negotiation may withdraw at any time. If this happens, the remaining

Committee members and the Commission will evaluate whether the

Committee should continue.

F. Record of Meetings

Pursuant to FACA, the Committee will keep a record of all committee

meetings. This record will be placed in the public docket for this

rulemaking (CC Docket 92-297). The Commission will announce committee

meetings in the Federal Register. These meetings will be open to the

public.

VI. Conclusion

The Commission requests public comment on whether: (1) It should

establish a Federal Advisory Committee, (2) it has properly identified

the interests that are significantly affected by the key issues listed

above, (3) the suggested committee membership reflects a balanced

representation of these interests, and (4) regulatory negotiation is

appropriate for this rulemaking.

Pursuant to the applicable procedures set forth in section 4(c) of

the Negotiated Rulemaking Act of 1990, 5 U.S.C. 584(c), interested

parties may file comments and applications for Committee membership on

or before March 18, 1994. Comments and/or applications should be sent

to the Office of the Secretary, CC Docket No. 92-297, Federal

Communications Commission, Washington, DC 20554. Comments and

applications will be available for public inspection during regular

business hours in the Dockets Public Reference Room of the Federal

Communications Commission, 1919 M Street, NW., Washington, DC 20554.

For further information pertaining to the establishment of the

negotiation committee and associated matters, contact Susan

Magnotti, Domestic Radio Branch, 2025 M Street, NW., Washington, DC

20554, (202) 634-1773.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 94-3772 Filed 2-16-94; 8:45 am]

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