Fee Schedule for Communications Uses on National Forest System Lands

SUMMARY: The Forest Service is adopting a final policy and a revised

fee schedule for determining annual rental fees for communications uses

authorized on National Forest System Lands in the Western States,

Forest Service Regions 1 through 6. The Forest Service and the

Department of Interior, Bureau of Land Management, have jointly

developed identical fee schedules; the agencies have the same

definitions for use categories and similar administrative procedures.

(The Bureau of Land Management is issuing its fee schedule and

procedures in a separate final rule.) These revisions are necessary to

establish annual agency rental fees that are consistent for the Western

States; based on sound business management practices; and reflective of

fair market value, as required by title V of the Federal Land Policy

and Management Act of 1976, the Independent Offices Appropriations Act

of 1952, and the Office of Management and Budget Circular A-25.

EFFECTIVE DATE: This policy is effective November 6, 1995 for new use

authorizations and on January 1, 1996, for existing use authorizations.

FOR FURTHER INFORMATION CONTACT: Questions about this policy should be

addressed to John Anderson, Lands Staff (2700), Forest Service, USDA,

P.O. Box 96090, Washington, DC 20090-6090, (202) 205-1256.

SUPPLEMENTARY INFORMATION:

Background

Use of National Forest System Lands for transmission of electronic

signals, commonly called communications uses, is authorized by title V

of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761-

1771). Authorizations currently in effect number approximately 6,300.

This use involves the construction of a building and tower with

antennae or the placement of one or more antennae atop a building owned

by another authorization holder. The Forest Service has sought for

several years to establish fair market value fees for communications

uses as required by statutory and regulatory authority.

From 1987 to 1992, through various notices in the Federal Register

the Forest Service began publishing final and revised fee schedules on

a regional basis for selected categories of communications uses on

sites serving rural areas. The notices explained the need for further

analysis to complete the fee schedules for the remaining use

categories. In the interim, on-site appraisals would determine

commercial mobile radio and cellular telephone fees for sites serving

urban areas (Los Angeles, Albuquerque, and Boise, for example) and for

television and FM radio broadcast.

To forestall the effect of significant fee increases on

authorization holders, especially in rural areas, Congress adopted

administrative provisions in the Appropriations Acts for Interior and

Related Agencies for fiscal years 1990 through 1994 preventing the

Forest Service from raising fees over the amount in effect on January

1, 1989. In the fiscal year 1992 appropriations, Congress extended the

prohibition to include those authorizations issued by the Department of

Interior, Bureau of Land Management (BLM). In addition, the conference

report for the Appropriations Act directed the Secretaries of

Agriculture and Interior to establish a broad-based Radio and

Television Broadcast Use Fee Advisory Committee (Advisory Committee).

The Advisory Committee's charge was to review the schedules, with

particular emphasis on their impact on rural communities in the Western

United States.

The Forest Service and BLM entered into a joint agency agreement in

April 1991 to develop parallel procedures and standards for

establishing fair market rental values for communications uses on lands

they administer. The objective of the effort was to develop joint

market-based fee schedules.

The Advisory Committee submitted its report to the Secretaries on

December 11, 1992. The report made several recommendations: (1) Use of

fee schedules instead of individual site appraisals to improve cost

efficiency and administration, (2) acceptance of industry-recognized

market ranking systems, (3) a phase-in period for rent increases

greater than $1,000, (4) collection of 25 percent of the gross sublease

income received from tenants by facility owners, (5) issuance of a

``footprint'' lease in which only facility owners would hold

authorizations, and (6) annual fee increases based on the Consumer

Price Index (Urban Consumer, U.S. City Average).

On July 13, 1993, the Forest Service published a Federal Register

notice (58 FR 37840) requesting public comments on a proposed fee

schedule for the four categories of commercial uses previously excluded

from the regional schedules. The uses included television broadcast, FM

radio broadcast, commercial mobile radio, and cellular telephone uses.

The adoption of a final revised fee schedule would complete the

regional schedules in place in Forest Service Regions 1 through 6 in

the Western United States. Additionally, the agency stated its

intention that its fee schedule be fully consistent with that of BLM

and acknowledged that BLM planned to issue a separate Federal Register

notice proposing the use of fee schedules for all communications uses

applicable to lands under its jurisdiction.

The Forest Service and BLM jointly reviewed and considered the

comments received by the Forest Service on its July 1993 proposed

policy (58 FR 37840, July 13, 1993), incorporating and adopting the

comments as appropriate in the development of the BLM proposed rule. On

July 12, 1994, BLM published a proposed rule in the Federal Register

(59 FR 35596), requesting comments on amendments to its right-of-way

regulations. The proposed rule contained procedures for setting fair

market rent for communications uses on public land and established

rental schedules and procedures for eleven categories of communications

service.

On July 12, 1994, the House of Representatives Committee on Natural

Resources, Subcommittee on National Parks, Forests and Public Lands,

and the Committee on Government Operations, Subcommittee on

Environment, Energy, and Natural Resources held a joint hearing on

communications site fees. The General Accounting Office released a

report (GAO-RCED-94-248) at this hearing that concluded that current

fees for communications sites on Federal lands were usually

significantly below fair market value. The report acknowledged that the

Forest Service fees are based on an outdated formula established forty

years ago and the BLM rental rates are based on out-of-date appraisals.

The report concluded that appropriations-related legislation impeded

agency efforts to implement new fees. The report warned that if the

limits continued, the Federal Government would not obtain fair market

value for communications sites for many years. Because of the joint

agency testimony and the General Accounting Office report, the

committees strongly encouraged the agencies to complete the fee

schedules as soon as possible.

The Forest Service and BLM developed the final fee schedules using

[[Page 55091]]

information gained from public responses to the proposed Forest Service

policy (58 FR 37840, July 13, 1993) and the proposed BLM rule (59 FR

35596, July 12, 1994). The agencies also used the Advisory Committee

report, the General Accounting Office report, discussions with hundreds

of industry representatives and private lessors, commercial

communications site managers, State and local government

representatives, and appraisers, and nearly 2,000 confirmed private

lease transactions. The final Forest Service policy is being issued as

amendments to Forest Service Handbook (FSH) 2709.11, Special Uses

Handbook, chapter 30, Fee Determinations, and chapter 40, Special Uses

Administration. The text of the policy is set out at the end of this

notice.

Analysis and Response to Public Comments

The Forest Service received 84 comments on the July 13, 1993,

notice of proposed policy (58 FR 37840). Analyses of public comments

were accomplished using standard Forest Service procedures designed to

ensure an objective and systematic analysis. The agency received

comments from 13 Western States; 28 percent of the responses came from

California. While the proposed fee schedule applies only to the Western

States, responses were received from parent companies of authorization

holders, national organizations, and other interested parties located

throughout the United States.

Respondents were grouped under the following categories:

------------------------------------------------------------------------

Respondent type Number Percentage

------------------------------------------------------------------------

Commercial Mobile Radio/or Building Owner......... 34 40

Television Broadcaster............................ 9 11

Organization...................................... 8 10

Other Communications User......................... 8 10

Cellular Telephone................................ 7 8

Other Federal, State, or County Agencies.......... 6 7

FM Radio Broadcaster.............................. 5 6

General Public.................................... 4 5

Translator or Repeater............................ 3 3

------------------------------------------------------------------------

All responses consisted of individual letters. No form letters or

petitions were received.

The BLM received a total of 61 comments on the proposed rule (59 FR

35596, July 12, 1994): 35 nonbroadcast users, 6 broadcast users, 6

industry groups, 4 private citizens, 2 state agencies, 1 county

association, and 1 Federal agency. In several cases, the same users,

industry groups, and state agencies had also commented on the Forest

Service proposed policy (58 FR 37840, July 13, 1993).

General Comments on Communications Site Fees and Agency Response

Based upon early comments to BLM's 1994 proposed rule (59 FR 35596,

July 12, 1994) both agencies recognized the need for additional

information to evaluate the responses appropriately. The BLM held

several meetings with respondents during the comment period to verify

information was recommendations submitted by respondents and to clarify

the intent of the proposed rule. Forest Service representatives

attended these meetings. Also, additional information and gathered from

other Federal agencies and industry contacts to determine comparable

and appropriate groupings for the fee schedule.

The agency did not incorporate changes in the final policy and fee

schedule when the comments would (1) require additional detailed

studies or development of specific criteria and instructions for each

category of use, (2) lead to subjective, potentially inconsistent

application of the fee schedule, or (3) require procedures that

unnecessarily encumber both the holder's business and the agency's

management practices.

Method for Determining Fees

Comment. Some respondents expressed general support for the effort

to develop a fee schedule. One respondent strongly favored the master

appraisal approach and the development of fee schedules. This

respondent also called for inclusion of an urban schedule for other use

categories, such as common carrier microwave relay, industrial

microwave relay, mobile radio, internal communications, natural

resource/ environmental monitoring, and passive reflector. One

respondent from the commercial use sector (cellular telephone) favored

the schedule and accompanying communications site procedures.

Thirty respondents disagreed with the method and criteria used to

develop the schedule. They suggested that the fees should be based on:

(1) A flat fee using the square footage of the building and the height

of the tower, (2) bare land values, (3) wider population increments,

(4) a percentage based on total households and market size, (5)

appraisals at high-value sites using local market data, (6) the

Advisory Committee schedule, (7) the next best use concept, and (8) a

more graduated scale that would charge site users in proportion to

their market size.

Others noted that the schedule was incomplete and needed additional

categories to establish fees for: (1) Buildings operated by facility

managers whose primary business is space rental, (2) cable and

subscription television companies serving more than 1,500 households,

(3) broadcast translators for more than 60,001 people, (4) AM radio

broadcasters, and (5) urban microwave and common carrier uses.

Response. To develop a policy and schedule that are easy to

understand and implement, the agency is adopting a final schedule that

uses one population ranking method for all uses to calculate fees. The

agency disagrees with respondents who said that there was no link

between population and rent charged for a communications site. To the

contrary, market information shows that land rents overall are

generally higher on sites serving large metropolitan areas than those

sites serving less populated areas. Therefore, the agency developed a

final schedule that more directly correlates to the population of the

market served and the authorized use of the facility. This type of

rating system reflects the actual market area served better than

population figures that do not correlate to market areas.

To provide consistent procedures and a fee schedule identical to

that of the BLM, the Forest Service expanded the fee schedule to

include all categories of communications uses on National Forest System

lands. The categories are: (1) Television broadcast, (2) AM/FM radio

broadcast, (3) cable television, (4) broadcast translators, low power

television and low power FM radio, (5) commercial mobile radio service

and facility manager, (6) cellular telephone, (7) private mobile radio

service, (8) microwave, and (9) other communications uses. Two use

categories, passive reflector and local exchange network, will remain

as regional schedules. The final Forest Service policy establishes

identical definitions as the BLM for use categories. The agency is

making these changes to the policy in Forest Service Handbook (FSH)

2709.11, Special Uses Handbook, chapter 40, Special Uses

Administration, section 48, Communications. The final fee policy and

schedule, including implementation, phase-in, and updating procedures,

are included in FSH 2709.11, chapter 30, Fee Determinations, section

36.2, Communications Site Fee Schedule. The text of the policy and fee

schedule in

[[Page 55092]]

FSH 2709.11 are set forth at the end of this notice.

Fee Values

Comment. Four respondents indicated the proposed fees were too low.

One respondent felt the fees averaged approximately 15-25 percent below

comparable private market values. In particular this respondent said

that television and radio were at least 15-20 percent below and mobile

and cellular were approximately 20-25 percent below private market

values. Another respondent characterized the use of public lands by

television and radio broadcast users at less than fair market value as

a subsidy, giving them an unfair competitive advantage.

Six respondents commented that the fees were higher than fair

market value and were artificially inflated. They objected to the

conclusions in the appraisals used to support the fees. Primary reasons

they noted were: (1) The Forest Service agreed that the Advisory

Committee approach of setting a fee schedule is appropriate, but then

changed the Area of Dominant Influence (ADI) groupings; (2) the impact

of the proposal on small business is significant; (3) the survey

erroneously calculated user site fees; and (4) the fees were based on

the broadcast station operator's ability to pay. One respondent

suggested additional population strata in the categories.

Response. The agency has revised the final policy and fee schedule

in response to public comments received on the Forest Service's

proposed policy (58 FR 37840, July 13, 1993) and public comments

received by BLM in response to its proposed rule (59 FR 35596, July 12,

1994). In addition, the agency has considered market information

provided by users, industry groups, and private and Government

appraisers, and other management considerations associated with

developing a cost-effective method for setting and collecting fair

market value for communications use of National Forest System land.

The final policy incorporates many Advisory Committee

recommendations, such as use of a schedule instead of individual

appraisals, issuance of one authorization (lease) to facility owners, a

phase-in provision, and use of an index to update annual fees.

The agency believes the final schedule reflects a reasonable fee

based on fair market value for the type of use, location, and rights

authorized. By adopting identical schedules and similar authorization

documents and application procedures to those of BLM, the Forest

Service can give holders consistent and improved services. The schedule

will replace the outdated, inconsistent approaches to assessing and

collecting rental fees in different Forest Service regions and between

the Forest Service BLM.

Additional Criteria for Establishing Fees

Comment. Several respondents said that additional criteria should

be considered when applying the fees, such as rate adjustments for

roadless and powerless sites or similar value-added services provided

by private landowners/lessors. Respondents said that waivers or

exemptions for those users who provide public service should be

considered. Respondents also said that administrative delays and red

tape make Federal sites less attractive than private sites. Respondents

were also concerned with the requirement of free use for other Federal

agencies and provisions considering the number of radio units in a

facility.

Some respondents had difficulty understanding the different fee

schedules (Regional versus National ) and were unsure of how to

classify a use. They also believed the schedule did not acknowledge the

significant financial discrepancy between two operators on the same

site.

Reponse. The agency recognizes that the July 1993 proposed policy

(58 FR 38740, July 13, 1993) did not offer a detailed explanation of

the proposed policy or how the fee schedule was derived. Respondents

could not clearly determine how their specific uses applied to the

schedule. In addition, the fee schedule in the Forest Service's

proposed policy (58 FR 37840, July 13, 1993) applied to only four uses:

television broadcast, FM radio broadcast, commercial mobile radio, and

cellular telephone. The methods of determining the fee strata varied

from the application of Arbitron Company market rankings for television

and radio broadcast, to the application of population and metropolitan

statistical figures for commercial mobile radio and cellular telephone

uses.

In response to the public comments, the final policy and fee

schedule include the following changes:

1. The fee schedule is based on a ranking of Ranally Metro Areas

(RMAs) as identified in the ``Rand McNally Commercial Atlas and

Marketing Guide, 1995.'' An RMA represents Rand McNally's definition of

metropolitan areas in the United States. There are 452 RMAs. Four

hundred and seventeen have a population of 50,000 or more. Thirty-five

listed RMAs have a population near 50,000 and are included as RMAs

because they include a central city of an official Metropolitan

Statistical Area.

2. The fee is based on the location of the communications site and

whether or not it serves an RMA, serves a community(ies) not listed as

an RMA, or is in a remote, sparsely populated area that does not serve

any individual community.

3. If the communications site serves an RMA, the fee is determined

by the category of use and the population range on the schedule that

includes the RMA population.

4. If the communications site serves a community not listed as an

RMA, the fee is determined by the category of use and the population

range on the schedule that corresponds with the most recent population

for the largest community served by the site, as indicated in the

current ``Rand McNally Road Atlas.''

5. If the communications site does not serve a community the fee is

based on the minimum scheduled fee for the type of facility and use.

Comments on Specific Communication Uses and Agency Response

Comments received on the Forest Service's and BLM's proposed

schedules (published in 58 FR 37840, July 13, 1993, and 59 FR 35596,

July 12, 1994, respectively) and responses to those comments are

incorporated in each of the following categories.

Television Broadcast Fees. The Forest Service proposed fee schedule

used the Arbitron Company's Area of Dominant Influence (ADI) market

rankings to determine the fee strata. Five separate strata were

proposed, presenting fees from $45,000 for the highest market areas

(750,000 television households and more) to $3,000 for the market area

containing 49,999 households and less and non-ADI areas.

Comment. Seven television broadcasters addressed their comments

specifically to this category. In all cases, the comments showed

disagreement with the proposed fees. Respondents expressed their

concern that television revenues in small rural markets have been

dropping and categories were not consistent with the actual market

size. They stated that the proposed fees were not within the range

charged by private landowners in the Western States. Respondents

suggested that the fees should be based on the value per household or

on the actual number of television households reached from a site

listed in the ``Broadcast Factbook.'' One respondent suggested a lower

category (below 49,999) for rural broadcasters.

[[Page 55093]]

The comments indicated a need to reconsider the use of Arbitron ADI

rankings as a basis for determining fees, to expand the population

strata to provide smaller intervals, and to establish additional strata

below 49,999. In addition, in December 1993 (after publication of the

proposed schedule) the Arbitron Company ceased publication of the ADI

market rankings.

In response to the comments received by the Forest Service and the

discontinuation of the ADI rankings, the BLM based its proposed

schedule (59 FR 35596, July 12, 1994) for television broadcast on the

latest U.S. census figures for populations of the principal community

(city, cities, metropolitan area, county, or counties) served by the

transmitter. The proposed BLM schedule expanded the fee strata to nine

divisions that range from populations of 2,000,000 and above to below

14,999.

Most comments on the BLM proposal favored the expanded fee strata.

However, several respondents opposed using the population of the

principal communities served and asked that it be reconsidered.

Generally, respondents said the concept was too vague and difficult to

determine the population served using census information. In addition,

they said differences in calculating total population of the principal

communities served would create inequities. Several respondents

suggested the schedule should be based on market ranking methods used

by industry, such as the Nielsen Dominant Market Area ranking system.

Reponse. The agency found there are some advantages to basing the

schedule on industry-recognized market ranking surveys, since (1) they

are based on the relative size of markets in which stations compete,

and broadcasters generally accept them; (2) the surveys are updated

each year, allowing for rent adjustments that reflect changes in

private market conditions; and (3) rents could be based on the market

actually served instead of the location of the transmitter or city of

license.

However, there are also disadvantages to using the surveys. The

market does not measure the households or audience reached by the

broadcast transmitter located on National Forest System lands alone.

Instead, the market includes households reached using a combination of

microwave and broadcast translators that serve other smaller markets.

This feature inadvertently inflates rental payments for those stations

that have extensive translator networks serving communities outside the

area normally served by the transmitter. The surveys do not include

affiliate stations serving smaller communities within the market areas.

Affiliate stations included in a market area would be assessed the same

fee though they serve a smaller population of the market area.

From the additional information and analysis of alternatives, the

agency found that basing fees on the population of the principal

communities served by the broadcast transmitter would be difficult to

implement. Additionally, the disadvantages associated with use of

Nielsen market rankings would unnecessarily complicate the fee

schedule. Therefore, based on available market data, recent appraisals,

and information received from respondents, the final fee schedule

establishes nine separate fee strata based on the Rand McNally RMA

population rankings. Because of the redistribution of strata, the final

fees range from $45,000 (RMA of 5,000,000 and above) to $1,200 (RMA of

less than 25,000). This action reduces fees for some television

broadcast uses as shown in the proposed Forest Service fee schedule.

FM Radio Broadcast Fees. The proposed Forest Service schedule used

population data from the Arbitron Company's Metro Survey Area (MSA) to

determine the fee strata. The proposed schedule displayed five

divisions in the fee strata from 1,000,000 persons and more to 74,999

and less and non-MSA areas.

Comment. Four respondents in the FM radio group and one agency

commented on the proposed fees. Several of these respondents stated the

increased fees would have a significant economic impact on many small

entities and make it impossible for small businesses to say

economically sound. Specific and recurring comments were: (1) The fees

were prohibitive for stations with potential audiences of 25,000 or

less, (2) there should be a lower minimum fee per FM broadcast site,

(3) greater weight should have been given to the market size served by

respective radio stations, and (4) the respective value of lands used

for transmitter location would carry a higher value in the more densely

populated areas than the small areas. One respondent asked that the

agency calculate rentals to broadcasters with reference to comparable

uses and consider the public service rendered by broadcasters, along

with the enhancement in value of Forest Service properties. One

respondent asked if a cause and effect study had been completed.

Another respondent asked that the schedule include AM radio broadcast.

The responses indicated a need to develop additional population strata

and expansion of the market ranking system for radio broadcast to

determine fee strata.

The BLM proposed the same method as television broadcast (using

U.S. census population figures for the principal community or

communities served) and expansion of the fee strata into the same nine

divisions for FM radio broadcast as proposed for television broadcast.

Respondents to the BLM proposal objected to the use of the

population of a community served to determined fee strata. These

respondents pointed out that radio market rankings are not nationwide

and there are significant gaps in coverage. Therefore, other methods

should be developed to establish rent in those areas not covered by the

market ranking service. Several respondents to the BLM proposal also

suggested the schedule include AM radio broadcast.

Response. The Forest Service has recalculated the final nine FM

radio broadcast strata to match the Rand McNally RMAs. The fees range

from $34,000 (5,000,000 and above RMA) to $900 (less than 25,000 RMA).

The agency has modified the schedule to include AM radio broadcast uses

at 70 percent of the FM schedule. Co-located AM and FM stations pay the

full FM radio broadcast fee. The final fee schedule reduces the impact

of urban area rates on the rural radio broadcaster.

Commercial Mobile Radio Fees. The Forest Service fees proposed for

this category were based on the number of persons within the area

served, as determined by the latest U.S. census population estimates.

The agency proposed five fee strata divisions ranging from 500,000

persons to 59,999 and fewer persons.

Comment. This category received more comments than any other.

Thirty-six respondents commented. Nearly all (31) identified themselves

as commercial mobile radio users. The overall intensity of the comments

reflects the most concern, disagreement, and confusion.

Major issues involved (1) the validity, quantity, and quality of

the private lease transactions used in the contract appraisal and the

market studies, (2) the credibility of the market data, and (3) fees in

rural areas which are higher than the private market. Many respondents

argued that the appraisals and fee schedule did not represent fair

market value and were not adequately justified with relevant data.

Several called for lower population strata and gave examples of what

the population/fees should be. Others respondents asked for more

studies in rural areas and commented that higher fees were not in

[[Page 55094]]

the best interest of the public or local economies. They said that fee

increases would harm small businesses because they would have to pass

along the fee increases to their customers.

A few respondents simply stated their fees should be lower. Others

said the fees were not what industry had agreed to. One respondent

stated that recent legislation reclassified certain private carrier

radio operators and required regulation by the Federal Communications

Commission. One respondent asked that the respondent's fee be

considered in a special category, or reduced, because of the

respondent's public service.

Many respondents stated that the schedule needed further

clarification and was confusing in certain areas. Many building tenants

were uncertain how the agency would apply the fee schedule, believing

they would be subject to the proposed fees as tenants. Facility owners

who do not own or operate equipment and lease building and antenna

space to other commercial radio service providers expressed confusion

about how or if the fee schedule would apply to them in existing

situation, such as leases, and multi-user permits.

The Forest Service recognizes that the lack of clear explanation on

application of the schedule for this use category led to

misinterpretation and confusion.

The BLM proposal included commercial mobile radio service (CMRS) in

a nonbroadcast rental schedule and proposed several changes. These

changes include: (1) Expanding the original five population divisions

to nine to reflect market areas ranging from zero to more than

2,000,000, (2) basing fees on the population of the largest county

predominantly served by the transmitter, (3) proposing a separate

category for facility managers (building owners), and (4) adjusting

fees in most strata to reflect the findings of additional analysis.

While respondents to the BLM proposal generally favored the

expanded fee strata, most respondents objected to using county

population as a basis for setting fees. Respondents to BLM's proposal

strongly opposed the fees in each strata, stating they were unfair and

too high, and would drive many small businesses out of the market.

Several respondents provided additional information showing the

proposed schedule fees were above the private market rates.

Several respondents to the BLM proposal questioned the similarity

of the CMRS category and facility manager category. They suggested that

BLM eliminate the facility manager category and incorporate it into the

CMRS category. Other respondents said that CMRS is dependent on

microwave communication equipment and pointed out that the difference

in land rent between the two uses was less than 4 percent. In response

to BLM's proposal, they asked that microwave communication equipment

used to support a CMRS operation be charged one fee at the CMRS rate.

Response. In consideration of public comments to the agency's and

BLM's proposed fee schedule, available market data, and additional

industry information focusing primarily on rural areas, the final

Forest Service policy and fee schedule for the CMRS category include

the following changes:

1. The final fee schedule based on the standard RMAs establishes

nine fee strata. Fees range from $12,000 in the highest RMA to $600 in

the lowest RMA, reducing final fees in six of the nine strata.

2. The agency has adjusted the final fees to more closely coincide

with fees for cellular telephone uses. The market analysis shows

cellular telephone and CMRS providers often compete for sites in larger

markets at similar private market rates. Comparable market information

in less populated areas shows CMRS providers pay less than cellular

telephone.

3. The definition for CMRS has been broadened to include facility

managers and ancillary microwave link equipment.

Cellular Telephone Fees. The proposed Forest Service schedule

defined three fee strata for cellular telephone based on populations

within a Standard Metropolitan Statistical Area (SMSA). Fees within the

strata ranged from $7,500 to $2,500.

Comment. Overall, respondents were supportive of the cellular fees.

However, they suggested several modifications. They suggested that the

agency abandon the term ``SMSA'' and determine the area a site covers

based on contour maps filed with the Federal Communications Commission

(FCC).

Two respondents to the BLM proposal suggested that they include

specialized mobile radio, a similar wireless system, in the cellular

category. They reasoned that Congress in recent legislation (Omnibus

Budget Reconciliation Act of 1993) directed Federal agencies to

regulate similar wireless telecommunications services consistently.

Other respondents were concerned about two emerging technologies:

personal communication service (PCS) and microcells. PCS is smaller to

cellular telephone service. The major difference between PCS and

cellular telephone is that PCS operates at a low power and has smaller

area coverage. However, the PCS network is more concentrated and

requires more sites than a cellular service. The respondents warned

that it would be inappropriate to require PCS users to pay the same

fees as a cellular telephone users. While PCS service is not yet

available, a similar service using mocrocells is provided now in rural,

sparsely populated areas as an addition to wireline and cellular

telephone service. The respondents suggested a separate fee of $2,500

per year.

Response. Because of the comments, other methods to determine the

fee strata were explored and analyzed. The BLM proposal included

cellular telephone in a nonbroadcast rental schedule and proposed

expanding population divisions from three to nine. The BLM proposed

basing fees on the population of the largest county predominantly

served by the transmitter. The expanded strata, based on county

populations, resulted in proposed fees ranging from $10,000 to $2,500.

Contrary to respondents' comments, additional analysis shows that

in large metro markets, cellular telephone companies and commercial

mobile radio service providers often pay similar rents in the private

market. However, in small- to medium-size markets, commercial mobile

service providers pay less than cellular telephone users. Therefore,

the final Forest Service fee schedule reflects the differences in fees

and maintains separate schedules for cellular telephone and commercial

mobile radio service.

After considering the suggestions and gathering additional

information from industry and the Federal Communications Commission

(FCC), the Forest Service has deleted PCS from the definition for the

cellular telephone category. Once site requirements are determined for

PCS, the agency will consider amending the fee schedules. However, the

agency has broadened the definition of cellular telephone to include

other related technologies in the event PCS facilities are similar. It

is the intent of the agency to apply the fee schedule to similar,

emerging technologies when practical. Additionally, microcell service

will not be included in the cellular telephone category at this time.

In consideration of the public comments and available market data,

the final policy and fee schedule for the cellular category include the

following changes:

[[Page 55095]]

1. The final fee schedule based on the standard RMAs establishes

nine fee strata. Fees range from $12,000 in the highest RMA to $2,500

in the lowest RMA.

2. The agency has adjusted the final fees in the top population

strata to coincide with fees paid by CMRS users. The market analysis

shows cellular telephone providers and CMRS providers often compete for

sites in larger markets at similar private market rates, while

comparable market information in less populated areas shows CMRS

providers pay less than cellular telephone providers.

3. The agency has deleted PCS from the definition for the category

of cellular telephone.

4. The definition for cellular telephone has been broadened to

include other related technologies.

Proposed Fee Indexing

Comment. Fourteen respondents commented on the proposal to use the

U.S. Department of Labor, Bureau of Labor Statistics' Consumer Price

Index for All Urban Consumers (CPI-U) as an annual index to ensure fees

are kept current with fair market values. Calculating the amount of the

annual adjustment involves increasing the previous year's fee by the

change in the annual CPI-U on a July-to-July basis.

Some respondents acknowledged that a CPI-U clause or other method

for annual adjustment that properly reflects changes in economic

conditions is appropriate. These respondents stated that annual

indexing is typical and recognized in private industry.

Most respondents providing commercial mobile radio service objected

to the use of indexing without a cap (or other similar method) to keep

fees from exceeding fair market value. Two respondents disagreed with

the use of indexing in any form. Others maintained that the practice is

not common in the private market, especially for commercial mobile

radio leases, and said indexing does not fairly or accurately take into

account the ability of various site owners to negotiate rents at other

sites that do not automatically include such increases. Respondents

pointed out that 95 percent of the communications leases of three large

companies in California either have no cost-of-living clause or have a

cap.

One respondent stated that annual indexing tied to a cost-of-living

index will not ensure that the rent will stay current with fair market

values. This respondent suggested that the only way to ensure fair

market rent is for the agency annually to assess the fees to see if

they are comparable to the rents paid for similar uses on private land.

In response to the comments and additional analysis, the BLM

proposal provided for a 5 percent per year limit to the annual index

change. Many respondents to the BLM proposal generally supported use of

the CPI-U to index the fees. Several of these respondents, however,

disagreed with the 5 percent year limitation, suggesting the increases

should be less than 1 percent, but no more than 3 percent of the

preceding year. One respondent said the limitation was too generous and

should be limited to a specific period, and then full CPI-U adjustment

should be applied to the fees.

Response. After further study, the agency found that recent

transactions show increases in annual rent are linked to changes in the

CPI-U instead of increases in land value. Moreover, the agency agrees

with respondents that the increases, in time, would be higher than

normal increases in land rents in the private market.

The agency believes that one inherent problem with a fee schedule

is that over the long term it may not adequately reflect fair market

rent. Individual market rents in specific areas may be more or less

than rents set by using the schedule. The agency believes limiting the

CPI-U increases to no more than 5 percent per year will minimize any

potential inflation of fees. The agency has revised the final fee

policy to include a 5 percent per year limitation on the CPI-U

increases. The CPI-U increase, not exceeding 5 percent for the year,

will be applied to annual fees beginning in 1997.

Use of Leases and Applicable Fees

The Forest Service proposed policy included the issuance of a

``footprint lease'' (lease) to facility owners (holders) authorizing

the subleasing of space in the facility to other communications users

(tenants). If such a lease provision in implemented, the agency would

no longer require separate authorizations for tenants in a facility. In

addition to the annual rental fee indicated in the proposed schedule, a

percentage of the gross rental receipts paid to the holders by tenants

in facilities would be assessed for certain use categories. The agency

would require holders to submit to the agency a certified list of

tenants, types of uses, and gross rental revenues received from

tenants.

Comment. Generally, respondents did not object to the use of a

lease as a means to authorize all users of a facility under one

document. However, there was strong opposition to the gross rental

receipts concept and, in particular, the 25 percent figure.

Respondents commented that the use of a lease treats similar

businesses differently, giving an unfair competitive advantage when one

is a holder versus a user as a tenant. Respondents said building owners

would raise tenant's rents 30 to 40 percent to compensate for fee

increases to the agency. They also said that the opportunity for

holders to abuse the fee system could result in reduced revenues to the

agency. One respondent was concerned that implementation of the lease

could have adverse consequences for public radio broadcasters because

building owners may not be aware that public broadcasters are entitled

to an exemption from Forest Service fees. The respondent asked that the

agency clarify the exemption and waiver policy. One respondent asked

the agency to establish a minimum level for facilities or number of

transmitters before imposing the highest rental rate. The respondent

also suggested that the lease should include the total number of

facilities an operator has at a site, even if it is more than one

building. Another respondent suggested that a contract be developed on

a case-by-case basis to compensate user groups that are the primary

source of administration and technical support and suggested that the

group receive compensation or reduced fees.

Twenty-one respondents disagreed with the proposal to use a

percentage of gross rental receipts as a part of the holders rental

fee. Specific and recurring reasons objecting to the concept included:

(1) Collection of a percentage of gross receipts, or revenue sharing in

addition to the annual rental fee, is inconsistent with private leases

and does not represent fair market value; (2) administering a system

that utilizes a percentage of rent as part of the fee system is

cumbersome and inefficient, and creates unnecessary and unproductive

expense for both the Government and users; and (3) the proposal would

involve unnecessary Government intrusion into the holder's business

affairs.

In contrast, one respondent stated the percentage of revenue

sharing was too low, saying that 30-35 percent was probably more

appropriate.

Several respondents commented favorably on the proposed lease

concept. Specifically, these respondents stated it would encourage use

of existing facilities; minimize the clutter of separate facilities;

reduce the financial burden on tenants; and improve the agency's

management

[[Page 55096]]

practices while ensuring high-quality site standards.

Many respondents asked for additional explanation of how and when

the agency would issue leases and what use categories would pay the

percentage of gross rental receipts. Some respondents understood it to

apply specifically to broadcasters. Others understood it applied only

in the largest markets, while some understood it applied to all

markets.

The agency recognizes that the lease and percentage of gross rental

receipts concept did not include enough specific information to allow

respondents to clearly determine the intent of the proposed policy and

implementing procedures.

In response to this issue, BLM incorporated some of the

respondents' suggestions in its proposed rule. For example, additional

information was added explaining how the lease would affect all users

in a facility and that the percentage of gross rental receipts applies

to all categories of use in all population strata. The BLM proposed

rule would also reduce the percentage to 15 percent for five years and

then would raise the percentage to 25 percent thereafter.

Most of the respondents commenting on the BLM proposal were CMRS

users, who indicated a strong opposition to the proposed percentage of

gross rental receipts. Respondents stated that it was unfair, not

supported by market data, and exorbitant in view of the proposed base

rents, and that it would be difficult and costly to implement. Most

respondents pointed out that, with few exceptions, a landowner in the

private market does not receive an additional amount for tenants in

facilities. Several respondents submitted private market lease

information to substantiate their views. Several likened the proposal

to a tax and were dismayed at the prospect of the Government being a

partner in their business.

Two respondents to the BLM proposal agreed with the concept and

suggested that the percentage should not be reduced for the first five

years, but applied immediately.

Another respondent to the BLM proposal observed that setting the

rental payment on the authorized use, without adjusting for other users

in the facility, would encourage lower rent users to obtain an

authorization and then to rent to higher rent users, reducing the rent

paid by the holder. The respondent suggested the rental payment should

be based on the actual users in the facility.

Response. The Forest Service reviewed additional market information

and found that it is not a widespread practice for landowners to charge

a percentage of gross rent from tenants. This is especially true in

rural areas. While there is some evidence that it does occur in newer

leases for multiple use sites serving large population areas, it is not

yet a common practice in the private market in all areas. The final fee

schedule does not include a percentage of gross rental receipts.

However, the agency believes that multiple user facilities are more

valuable than single user facilities, and the additional rights and

privileges granted to tenants should be considered in the determination

of fees for the use of public land. To ignore the increased demand for

communications use would not reflect fair market value.

The agency considered and evaluated alternatives for assessing fees

for tenant occupancy as suggested by respondents. Based on the comments

and additional analysis, the agency concluded the fee should be based

on the actual uses in the facility and reflect the revenue building

owners collect from tenants.

Therefore, in response to the public comments, analysis of the

alternatives, and additional information gathered in preparing this

final notice, the Forest Service final fee policy includes the

following changes:

1. One authorization granting the right to construct, operate, and

sublease to tenants will be issued to the owner of each facility. The

Forest Service and BLM will adopt a common format for communications

use authorizations. The new authorization will authorize tenant

occupancy, if desired by the holder, without prior written consent of

the Forest Service or BLM.

a. In a facility with tenants, the holder's base fee is determined

by the use that generates the highest fee on the schedule (highest

valued use) of any of the uses in the facility, excluding those uses

that would qualify for a fee exemption and/or waiver. If the schedule

fee for another use in the facility is higher than the holder's, the

holder's use is subordinated for purposes of calculating total fees for

the facility. By October 15 each year, the holder will be required to

provide the authorized officer with a certified statement listing the

name and type of use for each tenant in the holder's facility on

September 30 of that year.

b. Uses defined as ``customer'' (including private (other) and

internal (PMRS) categories), renting space in a communication facility,

and uses that would qualify for a fee exemption and/or waiver are not

used to calculate total fees for the facility.

c. An additional fee for tenant occupancy applies to all other use

categories in every population strata not identified in the preceding

paragraph b. The additional fee is calculated on 25 percent of the

scheduled fee.

d. The total fee for the facility is the base fee, plus the

additional fee (the additional fee is based on 25 percent of the

schedule fee for the holder's use and other tenant uses in the

facility). (These requirements are in FSH 2709.11, sec. 36.21, included

at the end of this notice.)

2. The fee for a facility with no tenants is the schedule fee for

the holder's category of use.

3. A tenant in a facility may hold a separate authorization,

without subtenancy rights, at the full schedule fee based on the

tenant's category of use. A tenant is defined in the policy (sec. 48.1,

para. 5) as a communications user who rents space in a communications

facility and operates communication equipment for the purpose of re-

selling communications services to others for profit.

Proposed Phase-In of Fee Schedule

The agency proposed to phase in fee increases to minimize the

possible significant economic burden on users. As stated in the

proposal, fee increases of $1,000 or more would be phased in over a 5-

year period at $1,000 per year or 20 percent of the total increase per

year, whichever is greater.

Comment. Two respondents expressed support for a phase-in

provision. One suggested including the 25 percent of gross rental

receipts received from tenants in the phase-in.

Several respondents objected to the 5-year phase-in provision.

Specifically, these respondents stated that the magnitude of the fee

increases was so great that the 5-year period was not long enough. They

suggested that the agency extend the phase-in period to at least 10

years to allow current users the option of relocating their equipment

or renegotiating tenant leases. One respondent suggested using a third

party arbitrator to determine if the new fair market rents cause

economic hardship to existing permittees. Another respondent proposed a

3-year phase-in period, but limiting increases to no more than 5

percent for certain FM radio broadcast categories.

Several respondents to the BLM proposal agreed that a phase-in

provision for base fees was reasonable. In contrast, one respondent

felt the provision was too generous, favored existing users over new

users, and continued the subsidy of communications site fees.

Other respondents asked for additional relief from the percentage

of

[[Page 55097]]

gross rental receipts, and several commented that the process was

confusing and too complex.

Based on the respondents' comments and suggestions to the BLM

proposed rule, BLM proposed the following revisions to simplify the

process: (1) Increases in the base fee in excess of $1,000 or 20

percent of the current fee, whichever is greater; would be phased in;

(2) increases after the first year would be based on an equal annual

installment, plus the inflation-adjusted increase (CPI-U), rather than

limiting the phase-in to $1,000 per year or 20 percent of the total

increase per year, whichever is greater, (3) the additional fee for the

percentage of gross rental receipts would also qualify for a phase-in

to reduce the potential impact of large increases in rent.

Response. The Forest Service recognizes that its proposed phase-in

provision was unnecessarily complex so that respondents could not

easily determine how it would be applied.

After considering the comments, the agency believes the phase-in of

initial fee increases is a necessary and reasonable component of the

final fee policy. While phase-ins will result in reduced receipts to

the Treasury in the first year of implementation, the provision will

substantially reduce the initial economic impact of fee increases on

holders. The phase-in will provide time for facility owners and tenants

to decide if they want to consolidate uses and adjust financial

business plans.

Therefore, the final fee policy retains the 5-year phase-in period

for fee increases. However, in response to comments to simplify the

phase-in procedure, the agency has included the following revisions in

the final policy:

1. Any fee increases of more than $1,000 will be phased in over a

5-year period, eliminating the 20 percent or more calculation. Stated

another way, during the first year of implementation, fees will not

increase more than $1,000 over the current year fees.

As an example:

A current fee is $700

A new fee based on the schedule is $2,700

Total fee increase = $2,000 (greater than the $1,000 minimum)

First year's fee = $1,700 ($700+$1,000)

The remaining increase, $1,000, would be added in equal annual

installments ($250) for years two through five, plus the CPI-U

adjustment.

Assuming a 2 percent increase in the CPI-U during the phase-in

period, the fee (rounded to the nearest dollar) would be calculated as

follows:

Year 1 (1996)-- $700+$1,000=$1,700

Year 2 (1997)--$1,700+$250 x 1.02=$1,989

Year 3 (1998)--$1,989+$250 x 1.02=$2,284

Year 4 (1999)--$2,284+$250 x 1.02=$2,584

Year 5 (2000)--$2,584+$250 x 1.02=$2,891

Year 6 (2001)--$2,891 x 1.02=$2,949

Reevaluation of Fee Schedule

The Forest Service proposed policy contained a ten-year, or less,

period for reevaluation of the fee schedule to ensure fees remain at

fair market value.

Comment. One respondent objected, stating that the reevaluation

could occur in 1 or 2 years, and the fees were already too high. In

contrast, another respondent felt the agency should insist on

reevaluation of fair market fees every 5 years, since the technology

and demand for facility space is increasing. In addition, this

respondent said that private landowners use short-term leases so that

they do not have to reevaluate the rents.

The BLM proposed rule did not specify a period for reevaluation of

the fee schedule. Instead BLM proposed to revise the schedule

periodically, if necessary, to ensure the fees are fair. One respondent

to the BLM proposal asked what was meant by ``periodically'' and

another suggested that the fee schedule should be reevaluated every 5

years. The respondent noted that private market use fees have surged

over the last several years and that unless there is a mechanism to

update market information, the schedule would fall below fair market

value.

Response. The Forest Service prefers a more flexible option,

similar to private business practices, to keep the fees comparable with

changing technology and fluctuations in the private market rental

rates. The agency will continually monitor the private market to ensure

the schedule fees remain current with market conditions.

Therefore, the final policy provides for review and updating of the

schedule no later than 10 years from the date of implementation, and at

least every 10 years thereafter, to ensure the fees reflect fair market

value.

Clarification of Other Provisions of Proposed Policy

Use of Appraisals To Set Fair Market Fees. The Forest Service

proposed policy allowed exceptions to the fee schedule in certain

situations. For example, a bid procedure was suggested where a

communications use is the focus of competitive interest, or an

appraisal might be appropriate for uses on sites with truly unique

characteristics. All of the regional schedules provide that the

authorized officer may use site-specific appraisals or other sound

business management principles, when it is determined that the fee

schedule does not reflect fair market value, and the schedules

specifically do not apply to fees previously established through

competitive bid or appraisal.

Comment. Respondents to the Forest Service proposed policy did not

comment on this provision of the policy. The BLM included similar

language in its proposed rule to reserve the right to use individual

appraisals or other valuation procedures to calculate fees. Several

respondents to the BLM proposal commented that the authorized officer

could determine fees based on appraisals instead of using the fee

schedule. They were concerned the fee schedule would not be uniformly

used to determine fees. One respondent asked for specific criteria or

guidance on when the agency would use appraisals. Another respondent

suggested that it would be appropriate to establish standards

identifying when the fee schedule would not yield fair market value.

Response. The final Forest Service fee policy (FSH 2709.11, sec.

36.21a) clarifies that the authorized officer may deviate from the

schedule and use other methods, including appraisals, to determine fair

market value fees for communications uses when one of the following

criteria applies:

1. The fee or use is not covered by the fee schedule.

2. The fee has been or will be established through competitive bid

or appraisal and will be updated in accordance with the terms and

conditions of the authorization.

3. The Regional Forester concurs with the authorized officer's

determination that the communications site serves a population of 1

million or more and the expected fee for the communications use is more

than $10,000 above the established fee schedule.

4. The expected fee exceeds the schedule rate fee by 5 times or

more.

General Provisions for Fee Exemptions and Waivers. The Forest

Service fee exemption and waiver policy, addressing all land uses, is

set forth in FSH 2709.11, chapter 30 and Forest Service Manual (FSM)

chapter 2715. The authority to set criteria for and grant exemptions

from fees is either reserved to Federal agencies or set by law. The

authorized officer determines fee waivers on a case-by-case basis and

may grant a fee waiver when equitable and in the public interest.

[[Page 55098]]

Fee Waiver

Comment. Several respondents to the Forest Service proposed policy

suggested broadening the current fee waiver policy. Specific and

recurring comments from respondents asked that the agency: (1) Grant

exemptions, rather than waivers, to nonprofit organizations and public

service organizations; (2) recognize that ``public'' and

``noncommercial, educational television'' are one and the same; and (3)

change the classification of noncommercial, educational television and

radio broadcasters to the exempt category, rather than the waiver

category.

Response. The agency is not persuaded by respondents' statements

that ``public'' and ``noncommercial, educational television'' are one

and the same. While the current policy does not provide fee exemptions,

as requested by respondents, it does provide a full waiver of fees,

with specific qualifying criteria. The outcome is the same whether the

fee is exempt or fully waived. The agency believes the policy should

not include additional exemptions, criteria, or changes to terminology.

Fee Waiver for All Television and Radio Broadcasters

Comment. Some respondents to the Forest Service proposed policy

asked that the agency reconsider its waiver policy and adopt the

Advisory Committee proposal of a 30 percent discount for all radio and

television broadcasters in recognition of the public service they

provide. One respondent asked for an explanation of the waiver policy

when an easement is issued.

Response. The Forest Service recognizes the need to clarify the

current fee waiver policy as it applies to commercial and noncommercial

television and radio broadcasters. However, the agency disagrees with

respondents' statements that television and radio broadcast stations

should receive a 30 percent discount on use fees, since they provide

important news and emergency programming without direct cost to the

public. The General Accounting Office report (GAO-RCED-94-248) agrees

with the position of the Department of Agriculture's General Counsel

that reducing fees for broadcasters is not appropriate unless there is

some direct and tangible benefit to the public lands. The report (GAO

RCED-94-248) states further that providing public service discounts to

all broadcasters simply because they do not directly charge the public

is not appropriate. The agency agrees with the report that a public

service discount should not be provided to all commercial radio and

television broadcasters, and the respondents' suggestion has not been

adopted in the final policy.

Fee waivers and exemptions are dependent on the nature of the use

authorized, and the business and intent of the authorization holder.

The terms and conditions of easements and leases provide for

assignability (transfer) of the rights and privileges authorized.

Situations could arise in which easement or lease holders who qualify

for exempted or waived fees could transfer their fee exempted or waived

status to unqualified authorization holders. Therefore, if the use fees

are waived, an easement or lease will not be granted.

The final fee waiver policy in FSH 2709.11, section 31.2 (available

on request from the FOR FURTHER INFORMATION CONTACT listed earlier in

this notice) includes the following changes:

1. Adds a requirement that noncommercial educational radio and

television broadcast stations have nonprofit status as defined in

section 501(c)(3) of the Internal Revenue Code.

2. Requires an annual verification of nonprofit designation from

the Internal Revenue Service (IRS).

3. Moves States and local governments to the full waiver category

without qualifying criteria.

4. Adds direction that the authorized officer shall not waive fees

when the holder (except a Federal agency) derives revenue from tenants

in the facility. Existing Forest Service policy exempts Federal

agencies from only the land rental fee. When Federal agencies are

tenants in a communications facility, they are expected to pay a fee to

the holder for any use of the facilities.

Adjustment of Fees for Free Federal Government Use of Facilities

Comment. While not discussed in the Forest Service proposed policy,

two respondents commented that the fee schedule and policy should

recognize the requirement placed on some holders to provide for the

free use of the facilities by Federal Government agencies. The

respondents asked that if the practice is allowed to continue, an

adjustment for free Federal Government use should be considered when

determining the holder's annual fees.

Response. The agency acknowledges this practice has occurred in

isolated cases. However, there is no formal or informal policy

permitting such practices. Therefore, the final fee policy includes

direction that such requirements in existing authorizations shall be

considered in setting fair market rental fees by allowing a temporary

fee adjustment. The final policy in FSH 2709.11, section 36.25 provides

that when a holder has been required to set aside a percentage of the

square footage of building space as free use to other Federal

Government agencies, the total annual fee will be reduced by the same

percentage. The fee adjustment will be valid during the time the holder

is committed to the tenant enjoying free use. The agency has also

included direction in FSH 2709.11, section 48.1, paragraph 3,

prohibiting authorized officers from issuing authorizations that

require holders to provide free rental space to Federal Governmental

entities.

Administrative Complexity

Comment. Several respondents to the Forest Service proposed policy

said that they needed additional explanation to properly interpret and

apply the proposed policy and fee schedule. Major problem areas

identified by respondents included determining use categories,

identifying internal versus commercial use, applying a complex phase-in

procedure, and maintaining consistent administrative and application

procedures. Several respondents complained that it takes too long to

process applications for a communication site use and called for a

reduction in the amount of ``red-tape.''

Response. The revised policy and fee schedule provide for

streamlining implementation of the fee schedule; improve application

and administrative procedures and make them consistent in the different

Regions; and provide important incentives to maximize the use of

communications facilities. In addition, the changes encourage continued

growth of communications markets and services, especially in rural

areas; improve customer service and business practices; set rental fees

that are predictable and can be easily updated; encourage improved

communications site management; substantially reduce the agency's and

holder's administrative burden; and implement procedures more

consistent with private market practices.

Once implemented, the improved business practices will work better,

cost less, and produce measurable benefits enhancing the working

relationship between the Forest Service and the communications site

users.

The agency has made the following major changes in the final policy

in FSH 2709.11, chapters 30 and 40, to streamline implementation of the

fee

[[Page 55099]]

schedule and provide consistent administration:

1. Defines use categories more broadly to include other related

uses associated with the maintenance and monitoring of the use. As an

example, internal mobile radio is often associated with other uses and,

therefore, is included in the definition of each category of use (FSH

2709.11, sec. 48.11 and 48.12).

2. Redefines commercial mobile radio service to include internal

and private communication uses not sold for a profit, that is, private

mobile radio, internal microwave, and so forth. Holders operating

commercial mobile radio service companies operate and maintain a wide

range of mobile, wireless communication services for customers (FSH

2709.11, sec. 48.12a).

3. Revises definitions to provide that occupants owning and

operating communication equipment in a commercial mobile radio service

facility for internal use only, and not re-selling their service for a

profit, are considered customers, not tenants. The base fee assessed

does not include any adjustment for customers (FSH 2709.11, sec.

36.21).

4. Allows facility owners and tenants to decide if they want to

consolidate their authorizations (FSH 2709.11, sec. 48.1, para. 7).

5. Eliminates the requirement that the holder obtain prior written

consent of the authorized officer before allowing other parties to use

the facility (FSH 2709.11, sec. 48.1, para. 7).

6. Phases in fee increases if the new scheduled fee exceeds the

1995 fee by $1,000 (FSH 2709.11, sec. 36.22).

7. Reduces the information burden placed on holders (FSH 2709.11,

sec. 48.1, para. 7).

8. Encourages new applicants to co-locate in existing facilities,

thus reducing surface disturbances and the proliferation of structures

(FSH 2709.11, sec. 48.1, para. 1). Use Categories Not Included in

Forest Service 1993 Proposed Policy. The Regional schedules recognize a

total of 14 uses, generally corresponding to types of communications

licenses issued by the FCC. Each Regional schedule, revised in 1992,

uses separate market analyses to establish fees for specific use

categories within a given Regional area and/or zone. The schedules

appear as Regional supplements to chapter 30 FSH 2709.11, Special Uses

Handbook. The following use categories included in the Regional

supplements were not included in the Forest Service's proposed fee

schedule: (1) Broadcast translator, (2) cable and subscription

television, (3) common carrier microwave relay, (4) industrial

microwave relay, (5) mobile radio: internal communications, (6) natural

resource/environmental monitoring, (7) passive reflector, (8) amateur

radio, (9) personal/private receive only, and (10) local exchange

network. One use, low power television, was omitted from the Regional

schedules.

Based on the comments received on the Forest Service proposed

policy, additional research on private market practices, and comments

received on the BLM proposed rule, the Forest Service is adopting a

national fee schedule for all communications uses (except two

categories of use) that is consistent with that of the BLM schedule.

The agency is making the following changes to the use categories which

appear in FSH 2709.11, section 48, and were described in the Regional

schedules:

1. Adds low power television and radio uses to the broadcast

translator category; remains the category as broadcast translator and

low power television and low power FM radio (sec. 48.11d).

2. Renames the cable and subscription TV category as cable

television (sec. 48.11c).

3. Renames the mobile radio: internal category as private mobile

radio service (sec. 48.12c).

4. Combines the private microwave and common carrier microwave

categories; renames the category as microwave (sec. 48.12d).

5. Combines the amateur radio, natural resource and environmental

monitoring, and personal/private receive only categories; establishes

fees and renames the category as other communications uses (sec.

48.13).

6. Changes the definitions for most categories (sec. 48.1, para.

5).

Following is a summary of the changes to each category. The changes

reflect the information provided from respondents and additional joint

analysis with BLM of the use categories and fee schedules in the six

Regions.

Cable Television. (FSH 2709.11, sec. 48.11c). The current Regional

schedules base the fees on the number of households served by a cable

television franchise. Depending upon the Region, fees vary from $75 for

less than 200 subscribers to $3,000 for more than 2,500 subscribers,

with fees for uses serving more than 2,500 subscribers to be determined

by appraisal or other means. A review of current market information

revealed there is still limited comparable lease data for cable

television use in larger markets.

Therefore, the final policy (sec. 48.11c) and fee schedule (sec.

36.21, ex. 01) make the following changes to the cable television

category (formerly in the Regional schedules for cable television):

1. Fees are based on the standard RMA population ranges,

establishing fees for four population ranges (less than 25,000 to

299,999). The final fees vary from $600 to $2,400.

2. Fees for uses in population ranges not covered by the schedule

(300,000 and above) continue to be determined on a Regional basis by

other reasonable methods, including appraisals.

3. If a nonscheduled fee is indicated, the current fee remains in

effect until the new fee is determined.

4. Until a new fee is determined, a cable television use is not to

be used to determine the highest value use for purposes of calculating

building owner fees; but the building owner fee is based on the second

highest value use in the facility covered by the schedule.

Broadcast Translator, Low Power Television, and Low Power FM Radio.

(FSH 2709.11, sec. 48.11d). Based on the number of persons within the

area served, the regional fee schedules vary from $75 for less than

15,000 persons to $1,000 for 60,000 persons, with populations over

60,000 to be determined by appraisal or other means. The National

Translator Association supported these fees when published by the

Forest Service Regions in 1992.

Comment. Several respondents to the Fores Service proposed fee

schedule asked that the agency establish a separate category for low

power television (LPTV). Low power television stations are essentially

broadcast translators that originate programming. The devices cannot

interfere with full-power stations and are limited to 10 watts VHF and

1000 watts UHF. Since the devices usually serve remote areas or

specific unique markets, there is little information to suggest that

there is a difference in land rent from broadcast translators.

Response. After considering the comments and reviewing the use

categories, the agency found it would be appropriate to include LPTV

and low power FM radio (LPFM) uses in the broadcast translator

category. In addition, the agency found there is insufficient

comparable lease data to establish fees for broadcast translator and

LPTV use in the larger urban markets. Therefore, the final policy (sec.

48.11d) and fee schedule (sec. 36.21, ex. 01) make the following

changes to the broadcast translator category (formerly in the Regional

schedules for broadcast translator):

1. Fees are based on the standard RMA population ranges,

establishing fees for four population ranges (less

[[Page 55100]]

than 25,000 to 299,999). The final fees vary from $100 to $2,400.

2. Fees for uses in population ranges not covered by the schedule

(300,000 and above) continue to be determined on a Regional basis by

other reasonable methods, including appraisals.

3. If a nonscheduled fee is indicated, the current fee remains in

effect until the new fee is determined.

4. Until a new fee can be determined, a broadcast translator/LPTV/

LPFM use is not to be used to determine the highest value use for

purposes of calculating a building owner fee. In this situation, the

building owner fee is based on the second highest value use in the

facility covered by the schedule.

Private Mobile Radio Service. (FSH 2709.11, sec. 48.12c). The

Regional schedules adopted an annual fee for private mobile radio use,

rather than using population or areas served as a basis for fee

determination. Fees for uses identified as mobile radio: internal in

the Regional schedules, vary from $350 to $1,700.

Comment. A respondent to the BLM proposed rule pointed out that in

some situations internal mobile radio and microwave systems must be

used together. Commonly called ancillary uses, the systems give support

or connect one another on the same communications facility. To

eliminate confusion, the respondent suggested that when microwave and

mobile radio uses are present in the same facility as ancillary uses,

the fee should be based on the private mobile use if the microwave ends

at the facility and is used for the control of the mobile facility.

Response. The agency agrees with the respondent. If the microwave

and mobile radio uses are ancillary to each other, the holder should

not pay two separate fees. To correct the problem, the definition has

been broadened to include other equipment for the control of a

facility. A separate fee is not to be charged for ancillary uses.

If microwave and private mobile radio uses are present in the same

facility, but are independent of each other, they are considered as

separate uses for purposes of fee calculation.

The final policy (sec. 48.12c) and fee schedule (sec. 36.21, ex.

01) make the following changes to the private mobile radio service

category (formerly in the Regional schedules as mobile radio:

internal):

1. Fees are based on the standard RMA population ranges,

establishing fees for nine population ranges. The final fees vary from

$350 to $10,000.

2. The definition has been broadened to include other

communications equipment necessary for the control of a facility.

3. A separate fee is not assessed for ancillary microwave use.

Microwave. (FSH 2709.11, sec. 48.12d). Two separate categories,

common carrier microwave and industrial microwave, were established in

the Regional schedules. Based on the geographical location and the

number of persons served, the fees vary from $1,000 in the rural areas

to as much as $5,500 in urban areas.

Comment. Several respondents to the BLM proposed rule observed that

there is little difference in the rent paid for private (industrial) or

common carrier microwave facilities in the private market.

Response. The agency agrees with the respondents and has combined

the two categories into one category for microwave.

The final policy is FSH 2709.11 (sec. 48.12d) and fee schedule

(sec. 36.21, ex. 01) make the following changes to the microwave

categories (formerly in the Regional schedules for common carrier and

industrial microwave):

1. One category, microwave, combines the previous categories for

common carrier microwave and industrial microwave uses.

2. Fees are based on the standard RMA population ranges,

establishing fees for nine population ranges. The final fees vary from

$1,500 to $10,000.

3. The definition has been broadened to include other

communications equipment necessary for the control of a facility.

4. A separate fee is not assessed for ancillary private mobile

radio use.

5. Fees for a microwave use with an ancillary private mobile radio

use are based on the scheduled rate for microwave.

Other Categories. The Regional schedules adopted a $75 fee for

separate categories of amateur radio, personal/private receivers, and

environmental monitoring equipment uses for all geographic locations.

The final policy (FSH 2709.11, sec. 48.13) combines these uses into one

category, other uses, and the final fee schedule (sec. 36.21, ex. 01)

maintains the $75 fee.

Two other categories, passive reflector and local exchange network,

are in the Regional schedules but are not in the final agency policy or

fee schedule. Passive reflector use fees vary from $475 to $1,000,

depending upon the location and populations served. The system is used

primarily in remote areas. Fees for local exchange network uses, a

radio service providing basic exchange telephone radio service (BETRS)

to remote areas, were established in the 1992 schedules using

information gathered from a national fee analysis and rates for common

carrier microwave. Fees vary from $75 to $4,000, depending on the

persons served in a particular geographic area.

Passive reflectors and local exchange networks are unique systems

with limited use. In many areas the systems are being replaced by new

emerging technologies. Therefore, the final fee schedule excludes both

uses and fees will continue to be determined on a Regional basis.

Definitions. The final policy includes a definition for each use

category and other commonly used terms in FSH 2709.11, section 48.

Fee Schedule Implementation

The draft policy indicated the final fee schedule and associated

policy changes would require Forest Service Regions 1 through 6 to

modify their existing fee schedules and to give notice of those changes

in the Federal Register. However, in consideration of the public

comments that the fee schedules would still be incomplete, and because

of the coordinated effort with the BLM to issue joint market-based fee

schedules, the final fee schedule revises those procedures.

Instead, the final fee schedule replaces the Regional schedules,

except for passive reflector and local exchange network uses. The fee

schedule in FSH 2709.11, section 36.01, exhibit 01, will be updated

annually to reflect:

1. The CPI-U adjustment factor to apply to annual billings for

existing authorizations.

2. Revised schedule fees, reflecting the CPI-U adjustment, to be

used for new authorizations.

3. Changes to the RMA population rankings.

The agency recognizes that the final fee schedule may result in a

reduction of current fees for some holders, for several reasons,

including:

1. Fees established by 1992 Regional schedules which have been

increased by the CPI-U adjustment factor each year.

2. Definition of a ``customer'' to include internal and private

uses renting space within a communication facility and not re-selling

communication services to others.

3. The inherent leveling effect of a fee schedule applying a

national market-based ranking system rather than specific geographic

market conditions.

However, the agency believes implementation of a national fee

schedule for most communications uses and the annual updating of fees

with applicable CPI-U adjustments through national direction will end

the inequity

[[Page 55101]]

between fees charged to users in different regions and at the same time

return fair market value in rental income to the United States.

The final fee schedule does not apply to Region 8 and 9

(encompassing the 33 eastern States) or Region 10 (Alaska). The Forest

Service is currently validating the fee schedule's applicability to

communications uses in the 33 eastern States. The agency expects to

implement the fee schedule for Regions 8 and 9 with any necessary

adjustments in 1997. Region 10 (Alaska) will continue to use the

Regional fee schedule adopted in 1992.

The Forest Service plans the following actions and methods for

implementing the final policy:

1. The Forest Service and the BLM will develop and adopt a new

document for communication use authorizations for use by both agencies.

The new authorization will allow tenant occupancy, eliminating the

requirement for prior written consent of the agency or issuance of

separate authorizations to tenants.

2. All authorization holders will receive notice of the regulatory

changes affecting communications site use fees, and they will be given

the option to convert to the new authorization. The holders will have

60 days to respond to the authorized officer indicating their

intention. Permits that expire will be replaced with the new

authorization.

3. Tenants may retain an existing authorization or relinquish the

authorization and be included in the facility owner's authorization.

Tenants electing to maintain an existing authorization will be billed

the full use fee according to the schedule and category of use.

4. Fees for uses not included in the schedule continue to be

determined on a Regional basis by other reasonable methods, including

appraisals.

5. If a nonscheduled fee is indicated, the current fee remains in

effect until the new fee is determined.

6. Until new fees can be determined, nonscheduled use categories

are not to be used to determine the highest value use for purposes of

calculating building owner fees, but are based on the second highest

value use in the facility covered by the schedule.

7. Separate fees are not assessed for ancillary uses.

8. Holders will be notified of the calendar year 1996 fee by

written notice from the authorized officer. The notification will

include instructions for appealing the new fees in accordance with

existing regulations.

9. The fee schedule is effective November 6, 1995 for new use

authorizations (new construction) and on January 1, 1996, for existing

use authorizations.

Controlling Paperwork Burdens on the Public

This policy will not result in additional paperwork not already

required by law or not already approved for use. The information

collection being requested as a result of this action has been approved

by OMB (Number 0596-0082, expiration date--June 30, 1996). Therefore,

further review required under provisions of the Paperwork Reduction Act

of 1995 (Pub. L. 104-13 (May 22, 1995)) and implementing regulations at

5 CFR 1320 do not apply.

Regulatory Impact

This final policy has been reviewed under Executive Order 12866 on

Regulatory Planning and Review. The agency has determined that this

final policy is a significant regulatory action subject to Office of

Management and Budget review.

Currently, annual costs for processing applications (including

analysis for environmental and heritage resources) and determining fees

for communications uses are estimated at $63,000 for the Forest Service

and $32,500 for applicants. Annual costs to the Forest Service to

administer existing authorized communications site uses are estimated

at $1,985,500.

Under the existing fee system, approximately $2 million are

collected annually from the 6,300 authorized communications site users

on National Forest System (NFS) lands. Fees are waived for other

Federal, State, and local municipalities and some non-profit

organizations.

Each of the 6,300 current authorizations is issued for one user.

The Forest Service requires proof of FCC licensing for each

authorization. Due to the complexity of communications technology, the

Forest Service is unable to economically track each user within each

building. It is estimated that there are between 500 and 1,000

unidentified and unauthorized users operating on NFS lands. These users

may or may not be licensed by FCC and are not paying compensation for

the use.

The new process reduces the number of applications and permits,

increasing benefits through reduced costs, more efficient

administration, and reduction of environmental planning analyses.

Administrative savings to the government would be approximately

$975,000 and savings to communication site applicants and users would

be approximately $16,250. With a decrease in caseload, Forest Service

personnel will be able to provide better customer service to the

public. Additionally, reduced caseload will enable the Forest Service

to better administer existing uses, thereby ensuring uses are

consistent with the terms and conditions of the lease and applicable

policies, regulations, and laws. Non-profit organization that have

annual certification by the Internal Revenue Service, such as public

television and radio broadcasters and religious broadcasters, will have

their fees waived. Reductions in operating expenses for these

organizations may increase their ability to provide goods and services

to the publics they serve.

The new schedule increases receipts to the Federal treasury by an

estimated $18 million annually by charging fees more accurately

reflecting fair market value as required by the Federal Land Policy and

Management Act. This is a conservative estimate based on the findings

of the joint Forest Service and BLM 1991 Report to Congress where fees

were determined to be $20 to $25 million below fair market value.

Fees under the new schedule are consistent with those on private

sites and reduce discrepancies between Federal and private site fees.

Increased revenue to the Federal treasury assists with Administration

and Congressional efforts to reduce the Federal deficit.

The granting of a lease to communications site users with a

guaranteed term provides benefits to the user for planning and may

increase opportunities for obtaining financing. Additionally, a

consistent fee system across the Forest Service and BLM reduces

confusion and simplifies processing for corporate users who may require

leases at more than one location.

Moreover, this final policy has been considered in light of the

Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been

determined that this action will not have a significant economic impact

on a substantial number of small entities as defined by that act. The

phase-in of annual fees described in this notice will allow small

entities to adjust to the new fees over a period of time and thus

minimize the risk of adverse impact on some businesses because of the

magnitude of the increase in some fees.

Environmental Impact

Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR

43180, September 18, 1992) excludes from documentation in an

environmental assessment or impact statement ``rules, regulations, or

policies to establish Service-wide administrative procedures,

[[Page 55102]]

program processes or instructions.'' Based on consideration of the

comments received and the nature and scope of this policy, the Forest

Service has determined that this policy falls within this category of

actions and that no extraordinary circumstances exist which would

require preparation of an environmental assessment or environmental

impact statement.

Dated: July 17, 1995.

David G. Unger,

Associate Chief.

Final Handbook Revision

Note: The Forest Service organizes its directive system by

alphanumeric codes and subject headings. Only those sections of the

Forest Service Handbook (FSH) 2709.11, Special Uses Handbook,

affected by this policy are included in this notice. The intended

audience for this direction is Forest Service employees charged with

issuing and administering communications use authorizations. The

text of the revised policy and fee schedule follows:

FSH 2709.11--Special Uses Handbook

Chapter 30--Fee Determination

36.2--Communications Site Fee Schedule. This section provides

direction for use of the fee schedule for communications uses on

National Forest System lands.

36.21--Determination of Fees. The authorized officer shall request

that the holder provide a certified statement by October 15 of each

year containing a list of tenants, by category of use, in the facility

on September 30 of that year.

Calculate the annual fee using the fee schedule (ex. 01) and the

population strata based on the Ranally Metro Area (RMA) population and

city listing (ex. 02). The fee schedule provides rental fees by

category of use and population. See section 36.21a for exceptions to

using the fee schedule.

1. Consider the following when determining fees:

a. If the communications site serves an RMA community (ex. 02),

determine the fee by the category of use and the corresponding

population range on the fee schedule (ex. 01).

b. If the communications site does not serve a listed RMA community

(ex. 02), determine the fee based on the population of the largest

community (according to the most current ``Rand McNally Road Atlas'')

served by the site.

c. If the communications site does not serve a community, determine

the fee based on the lowest scheduled fee (ex. 01) for the category of

use, except in situations described in section 36.21a.

d. Consider co-owned AM and FM stations located in the same

facility as two radio stations in determining fees.

e. Do not apply the 25 percent schedule rate for customers (sec.

48.1, para. 5), including internal and private users, renting space in

a communications facility.

2. Apply the fee schedule to communications uses providing the

following services:

a. Television Broadcast. (Sec. 48.11a of this Handbook).

b. AM and FM Radio Broadcast. (Sec. 48.11b).

c. Cable Television. (Sec. 48.11c).

d. Broadcast Translator, Low Power Television, and Low Power FM

Radio. (Sec. 48.11d).

e. Commercial Mobile Radio Service (CMRS) and Facility Manager.

(Sec. 48.12a).

f. Cellular Telephone. (Sec. 48.12b).

g. Private Mobile Radio Service. Stand alone operations only. (Sec.

48.12c).

h. Microwave. Common carriers microwave relay and industrial

microwave. (Sec. 48.12d).

i. Other Communications Uses. Stand alone operations only. This

category includes the following uses: amateur radio; personal/private

receive only; and natural resource and environmental monitoring. (Sec.

48.13).

3. Except for fees that apply to a facility manager (para. 4),

assess fees for all the preceding uses in paragraphs 2a to 2i providing

rental space to tenants as follows:

a. Determine a base fee from the schedule rate fee for the

building owner or the use generating the highest schedule fee in the

facility. If the highest schedule fee is a ``tenant'' fee, the

``tenant'' fee becomes the base fee and the building owner's

schedule rate fee is used as a tenant fee for calculating additional

fees (following para. b).

b. Add 25 percent of the schedule fee for each ``tenant'' (ex.

01). Include 25 percent of the building owner's scheduled fee if it

is not the highest fee and, therefore, not used as the base fee.

Sample fee calculations are provided as follows:

Example 1: A communications facility serving an RMA population area

of 200,000, with a CMRS provider (building owner), one TV broadcaster,

two FM broadcasters, one cellular telephone, and two private mobile

radio users.

Base fee=$6,000 (TV broadcast is the highest value use in the

facility)+$750 (25% CMRS provider (building owner)+$2,000 (25% of

two FM broadcasters)+$1,000 (25% cellular telephone)+$0.00 (no

charge for PMRS)=Total fee for the facility: $9,750.

Example 2: A communications facility serving an RMA population area

of 800,000, with a TV station (building owner), one FM broadcaster, and

three private mobile radio users.

Base fee=$14,000 (TV broadcast is the highest value use in the

facility)+$2,500 (25% FM broadcaster)+$0.00 (no charge for

PMRS)=Total fee for the facility: $16,500.

4. Fees for facility managers are calculated differently from other

uses. Facility managers provide rental space for other communications

uses; they do not directly provide communications services to others.

Determine the base fee as described in the proceeding paragraph.

However, if the highest valued scheduled fee for the facility is not

the facility manager's, do not ``substitute'' the 25 percent facility

manager rental fee for the tenant fee used for the base fee.

Sample fee calculations for facility manager uses are provided as

follows:

Example 1: A facility manager serving an RMA population area of

200,000, with three microwave providers and two amateur radio

operators.

Base fee=$3,000 (the facility manager schedule rate is the

highest valued use in the facility)+$1,500 (25% three microwave

users)+$0.00 (no charge for amateur radio)=Total fee for the

facility: $4,500.

Example 2: A facility manager serving an RMA population area of

800,000, with a TV station, three FM broadcasters, and three private

mobile radio users.

Base fee=$14,000 (TV broadcast is the highest value use in the

facility)+$7,500 (25% FM broadcaster)+$0.00 (no charge for

PMRS)=Total fee for the facility: $21,500.

36.21a--Exceptions to Fee Schedule. Fees not established by use of

the fee schedule shall be based on comparative market surveys,

appraisals, or other reasonable methods. All such fee determinations

shall be documented, supported, and approved by the authorized officer.

The following are exceptions to the fee schedule:

1. The fee or use is not covered by the fee schedule.

2. The fee has been or will be established through competitive bid

or appraisal and will be updated in accordance with the terms and

conditions of the authorization.

3. The Regional Forester concurs with the authorized officer's

determination that the communications site serves a population of 1

million or more and the expected fee for the communications use is more

than $10,000 above the established fee schedule.

4. The expected fee exceeds the schedule rate fee by 5 times or

more.

36.22--Phase-in of Fees. Fees for new uses (new construction) do

not qualify for a phase-in. For existing uses, phase in first year

increases in fees of more than $1,000 over a 5-year period. For

example, if the current total fee is $700,

[[Page 55103]]

and the new total fee is $2,700, calculate the 5-year phase-in as

follows:

1. Year 1996. $700 (current total fee in 1995) + $1,000 (limit of

first year increase) = $1,700 (first year's fee in 1996);

2. Year 1997. $1,700 (first year fee in 1996) + $250 (\1/4\ of

remaining increase ($1,000) greater than $1,000) x 1.02* =

$1,989 (second year's fee in 1997);

3. Year 1998. $1,989 (second year's fee in 1997) + $250 (\1/4\ of

remaining increase ($1,000) greater than $1,000) x 1.02* =

$2,284 (third year's fee in 1998);

4. Year 1999. $2,284 (third year's fee in 1998) + $250 (\1/4\ of

remaining increase ($1,000) greater than $1,000) x 1.02* =

$2,584 (fourth year's fee in 1999);

5. Year 2000. $2,584 (fourth year's fee in 1999) + $250 (\1/4\ of

remaining increase ($1,000) greater than $1,000) x 1.02* =

$2,891 (fifth year's fee in 2000);

6. Year 2001. Phase-in of the fee schedule has been completed. In

succeeding years, apply only the CPI-U to the previous year's fee.

$2,891 (fifth year's fee in 2000) x 1.02* = $2,949 (fee in 2001).

*Assumed 2 percent increase each year in the United States

Department of Labor Consumer Price Index for All Urban Consumers--

U.S. City Average (CPI-U).

36.23--Updating Fee Schedule. The Director of Lands, Washington

Office, shall update the fee schedule (sec. 36.21, ex. 01) annually,

based on the CPI-U published in July of each year. Annual adjustments

based on the CPI-U shall be limited to 5 percent. The Director of Lands

shall review the fee schedule no later than 10 years after the date of

implementation of this schedule, and at least every 10 years

thereafter, to ensure that fees reflect fair market value.

The Director of Lands shall review and update the RMA city and

population table (sec. 36.21, ex. 02) annually.

36.24--Fee Waivers and Exemptions. For direction on fee waivers and

exemptions, see sections 31.2 through 31.4

36.25--Fee Adjustment for Required Free Use. In no circumstance

require a private holder to provide free rental space to Federal

agencies or any other entity. In order to rectify past situations in

which the Forest Service required the holder to provide free rental

space, discount the annual fee by the same percentage that the entity

receiving free use occupies (in square feet) in that building. For

example, if the Forest Service previously required a building owner to

provide free use for 20 percent of the building, discount the annual

fee by 20 percent. Such a discount is valid for the period of time

specified in an existing agreement between the parties.

BILLING CODE 3410-11-M

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BILLING CODE 3410-11-C

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Chapter 40--Special Uses Administration

48--Communications.

48.1--Communications Uses. This special-uses group includes a

variety of communications use categories which utilize National Forest

System land. Typically the use occurs on a designated site and includes

buildings, towers, and other support improvements.

1. Authority. Authorizations for all communications uses are issued

under the authority of the Act of October 21, 1976 (43 U.S.C. 1761).

This authority must be cited on all authorizations issued for

communications uses.

2. Objectives. The objectives of communications use management are

to authorize only those uses which meet forest land and resource

management plan objectives; to facilitate the orderly development of

sites to provide a safe and high quality communications environment; to

maximize efficient use of the communications site; and to collect fair

market value fees for communications uses on National Forest System

lands.

3. Policy. Except for single uses which involve minor development

(such as personal receive only use, resource monitoring use, or

temporary use), communications sites must be designated before a new

authorization for communications use can be issued. Communications site

designation is a land use allocation and shall be made through the land

resource management planning process (FSM 1920).

Fees for communication uses shall be assessed in accordance with

direction in chapter 30 of this Handbook.

Authorized officers shall not consider or issue authorizations that

involve bartering or augmentation of goods or services, such as

requiring the holder to provide free government use of facilities or

construction of other improvements not associated with the use.

4. Responsibility. The Regional Forester is responsible for

approval of communication site plans; this responsibility may be

delegated to the Forest Supervisor. Following communications site plan

approval, Forest Supervisors have the authority to issue special-use

permits, within the guidelines of the site plan. This responsibility

may be delegated to the District Ranger.

5. Definitions. Definitions for other technical terms not listed in

this section may be found in Federal Standard 1037 (FS 1037A), a

standard glossary of telecommunication terms available from the General

Services Administration.

Attenuation. Decrease in magnitude of current, voltage, or power of

a signal in transmission between points. May be expressed in decibels

(dB).

Band Width. A portion of the frequency spectrum authorized for use

by a specific license; measured in kilohertz (KHz) or megahertz (MHz).

Of concern is the amount of spectrum authorized: that is, a small

amount (15 KHz) for two-way radio, a larger amount (6 MHz) for

television broadcast, and a very large amount (many MHz) for radar.

Base Rent. The fee amount determined by the highest value use in a

communications site facility. Base rent is applicable only to a

facility owner's fee.

Beam Path. Direction or corridor of energy radiated from a

directional antenna. Usually refers to microwave, which requires an

unobstructed point-to-point corridor.

Continuous Broadcast or Constant Carrier. A continuously operating

transmitter, not a microwave.

Communications Site. An area of National Forest System land

designated through the land and resource management planning process. A

communications site may be limited to a single communications facility,

but most often encompasses more than one. Each site is identified by

name; usually a local prominent landmark, such as Bald Mountain

Communications Site.

Customer. An individual, business, organization, or agency that is

paying a facility owner or tenant for communications services and is

not re-selling communication services to others. Private (other use

category) and internal (private mobile radio services category)

communication uses leasing space in a building and not re-selling

communication services to others are considered customers for fee

calculation purposes.

Effective Radiated Power. The power supplied to the antenna

multiplied by the relative gain of the antenna in a given direction.

Effective Receiver Sensitivity. The signal level required to detect

and reproduce usable information from the local electromagnetic

environment.

Electromagnetic Compatibility. The ability of telecommunications

equipment, subsystems, or system to operate in their intended

operational environments without suffering or causing unacceptable

degradation because of electromagnetic radiation or response. Refers to

coexistence of different types of equipment in the same area.

Facility. A building, tower, and/or other physical improvement that

is built, installed, or established to house and support authorized

communications uses.

Facility Manager. The holder of a Forest Service communications use

authorization who leases space for other communication users. A

facility manager does not directly provide communications services to

third parties.

Frequency Assignment. The process of authorizing a specific

frequency, group of frequencies, or frequency band to be used at a

certain location under specific conditions such as band width, power,

azimuth, duty cycle, or modulation.

Gain. The increase in effective signal power in transmission under

stated conditions. (Note: Power gain is expressed in decibels.)

Harmful Interference. Any transmission, radiation, or induction

which specifically degrades, obstructs, or interrupts the services

provided by such stations.

High Gain Antenna. An antenna whose effective radiated power in a

given direction is greater than the input power.

Microwave. High frequencies commonly between 900 and 30,000

megahertz.

Mobile Station. A two-way radio station designed for operation when

in motion or at unspecified points.

Noise. An undesired disturbance within the useful frequency band.

Noise Floor. Existing volume (magnitude) of electronic noise power

measured in decibels and referred to as an electronic value (such as

milliwatt).

Omnidirectional Antenna. An antenna whose radiation pattern is

nondirectional in azimuth (meaning it radiates or receives in 360

degrees).

Point-to-point Radio Communications. Radio communications between

two fixed stations.

Polarization (Polarity). Term referring to antenna radiation

polarity, which can be horizontal, vertical, or circular.

Radiation Pattern. A graphical representation of power radiation of

an antenna, usually shown for the two principal planes, vertical and

horizontal.

Receiver Desensitivity. A consequence of undesired reradiated

frequency energy entering a receiver. Reduces the ability to receive

weaker signals.

Repeater. A device that simultaneously transmits all properly coded

input signals received, or in the case of pulses, amplifies, reshapes,

retimes, or performs a combination of any of these functions on an

input signal for retransmission.

Reradiation. Energy radiated by a galvanic junction in a nonlinear

[[Page 55109]]

manner. Sources may include radio equipment, antennas, metallic debris,

defective structural components, unterminated antenna cables, or

passive repeater.

Tenant. A communications user who rents space in a communications

facility and operates communications equipment for the purpose of re-

selling communications services to others for profit. Tenants may hold

separate authorizations, without subtenancy rights, at the full

schedule fee based on the category of use.

Trunking. A system which allows a number of radio channels to be

operated as a single system allowing service to multiple users.

Wave Guide. A hollow metallic conduit within which electromagnetic

waves may be propagated.

7. Authorization and Administration.

(4) Issuance of Authorizations. Use the appropriate authorization

form to authorize use of National Forest System lands for

communications uses by facility owners. Tenants in a facility owner's

building are not required to have a separate authorization. If,

however, a tenant requests an authorization, authorize tenant use using

Form FS-2700-4a, Special-Use Permit for Communications Uses (ch. 50),

without tenant occupancy rights, and charge the tenant the full

schedule fee for that use (ch 30).

(5) Fee Calculation. Calculate fees for communications uses in

accordance with the direction in chapter 30. Fees for new sites may be

established using a prospectus.

48.11--Broadcast Uses.

48.11a--Television Broadcast. This category includes facilities

licensed by the Federal Communications Commission (FCC) that broadcast

UHF and VHF audio and video signals for general public reception and

the communications equipment directly related to the operation,

maintenance, and monitoring of the use.

Users include television stations (major and independent networks)

that generate income through commercial advertisement and public

television stations whose operations are supported by subscriptions,

grants, and donations. Broadcast areas may overlap State boundaries.

This category of use relates only to primary transmitters and not to

any rebroadcast systems such as translators, transmitting devices such

as microwave relays serving broadcast translators, or holders licensed

by the FCC as low power television (LPTV).

48.11b--AM and FM Radio Broadcast. This category includes

facilities licensed by the Federal Communications Commission (FCC) that

broadcast AM and FM audio signals for general public reception and the

communications equipment directly related to the operation,

maintenance, and monitoring of the use.

Users include radio stations which generate revenues from

commercial advertising and public radio stations whose revenues are

supported by subscriptions, grants, and donations. Broadcast areas

often overlap State boundaries. This category of use relates only to

primary transmitters and not to any rebroadcast systems such as

translators, microwave relays serving broadcast translators, or holders

licensed by the FCC as low power FM radio.

48.11c--Cable Television. This category includes FCC-licensed

facilities that transmit video programming to multiple subscribers in a

community over a wired or wireless network, and the communications

equipment directly related to the operation, maintenance, or monitoring

of the use. These systems normally operate as a commercial entity

within an authorized franchise area. The category does not include

rebroadcast devices, or personal or internal antenna systems such as

private systems serving hotels or residences.

48.11d--Broadcast Translator, Low Power Television, and Low Power

FM Radio. This category of use consists of FCC-licensed translators,

low power television (LPTV), low power FM radio (LPFM), and

communications equipment directly related to the operation,

maintenance, or monitoring of the use. Microwave facilities used in

conjunction with the systems are included in the category. Translators

receive a television or FM radio broadcast signal and rebroadcast it on

a different channel or frequency for local reception. In some cases the

translator relays the signal to another amplifier or translator. Low

power television and FM radio stations are broadcast translators that

originate programming. This category of use includes translators

associated with public telecommunications service.

48.12--Non-Broadcast Uses.

48.12a--Commercial Mobile Radio Service (CMRS) and Facility

Manager. This category of use includes FCC-licensed facilities

providing mobile radio communications service to individual customers,

and the communications equipment directly related to the operation,

maintenance, or monitoring of the use. Examples of mobile radio systems

in this category are two-way voice and paging services such as

community repeaters, trunked radio (specialized mobile radio), two-way

radio dispatch, public switched network (telephone/data) interconnect

service, microwave communications link equipment, and internal and

private communications uses not sold for a profit (that is, private

mobile radio, internal microwave, and so forth). Some holders may not

hold FCC licenses or operate communications equipment, but they may

lease building, tower, and related facility space as part of their

business enterprise and act as facility managers.

48.12b--Cellular Telephone. Cellular telephone includes holders of

FCC-licensed systems and related technologies for mobile communications

that use a blend of radio and telephone switching technology to provide

public switched network services for fixed and mobile users within a

geographic area. The system consists of cell sites containing

transmitting and receiving antennas, cellular base station radio,

telephone equipment, and often microwave communications link equipment,

and the communications equipment directly related to the maintenance

and monitoring of the use.

48.12c--Private Mobile Radio Service. This use category includes

holders of FCC-licensed private mobile radio systems primarily used by

a single entity for the purposes of mobile internal communications, and

the communications equipment directly related to the operation,

maintenance, or monitoring of the use. The communications service is

not sold to others and is limited to the user. Services generally

include private local radio dispatch, private paging services, and

ancillary microwave communications equipment for the control of the

mobile facilities.

48.12d--Microwave. This use includes holders of FCC-licensed

facilities used for long-line intrastate and interstate public

telephone, television, information, and data transmissions, or used by

pipeline and power companies, railroads, and land resource management

companies in support of the holder's primary business. Also included is

communications equipment directly related to the operation,

maintenance, or monitoring of the use, such as mobile radio service.

48.12e--Local Exchange Network. This use refers to a radio service

which provides basic telephone service, primarily to rural communities.

48.12f--Passive Reflector. Passive reflectors include various types

of nonpowered reflector devices used to bend or ricochet electronic

signals between active relay stations or between an active relay

station and a terminal. A

[[Page 55110]]

passive reflector commonly serves a microwave communications system.

The reflector requires point-to-point line-of-sight with the connecting

relay stations, but does not require electric power. Maintenance is

minimal and reflectors seldom require site visits for maintenance or

monitoring.

48.13--Other Communications Uses. This category includes holders of

FCC-licensed private communications uses such as amateur radio;

personal/private receive-only antennas designed for the reception of

electronic signals to serve private homes; natural resource and

environmental monitoring equipment used by weather stations, seismic

stations, and snow measurement courses; and other small, low power

devices used to monitor or control remote activities. These facilities

are personally owned and not operated for profit.

[FR Doc. 95-26490 Filed 10-26-95; 8:45 am]

BILLING CODE 3410-11-M