Multiple Address Systems

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 22 and 101

[WT Docket No. 97-81, FCC 97-58]

Multiple Address Systems

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This Notice of Proposed Rule Making (NPRM) proposes to amend

the Commission's rules in order to streamline licensing procedures and

provide additional flexibility for Multiple Address Systems (MAS)

licensees. These proposals were adopted as part of the Commission's

continuing effort to establish a flexible regulatory framework for

spectrum allocations. The effects of these proposals would be to

maximize the use of radio frequency spectrum allocated to MAS.

DATES: Comments are due on or before April 21, 1997. Reply comments are

due on or before May 6, 1997.

ADDRESSES: You must send comments and reply comments to the Office of

the Secretary, Federal Communications Commission, Washington, DC 20554.

You may also file informal comments by electronic mail. You should

address informal comments to [email protected]. You must put the docket

number of this proceeding on the subject line (``WT Docket No. 97-

81''). You must also include your full name and Postal Service mailing

address in the text of the message. Comments on the information

collections contained herein should be submitted to Dorothy Conway,

Federal Communications Commission, Room 234, 1919 M Street, NW.,

Washington, DC 20554, or via the internet to [email protected], and to

Timothy Fain, OMB Desk Officer, 10236 NEOB, 725-17th Street, NW.,

Washington, DC 20503 or via the internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Bob James of the Commission's Wireless

Telecommunications Bureau at (202)

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418-0680 or via email at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's NPRM,

FCC 97-58, adopted February 19, 1997, and released February 27, 1997.

The full text of this NPRM is available for inspection and copying

during normal business hours in the FCC Reference Center (Room 239),

1919 M Street, NW., Washington, DC. The complete text may be purchased

from the Commission's copy contractor, ITS, Inc., 2100 M Street NW.,

Suite 140, Washington, DC 20037, telephone (202) 857-3800.

Paperwork Reduction Act

This NPRM contains either a proposed or modified information

collection. As part of the Commission's continuing effort to reduce

paperwork burdens, we invite the general public, the Office of

Management and Budget (OMB), and other agencies to take this

opportunity to comment on the information collections contained in this

NPRM, as required by the Paperwork Reduction Act of 1995, Public Law

104-13. Public and agency comments are due at the same time as other

comments on this NPRM; OMB comments are due 60 days after the

publication of this NPRM in the Federal Register. Comments should

address: (a) Whether the proposed collection of information is

necessary for the proper performance of the functions of the

Commission, including whether the information shall have practical

utility; (b) the accuracy of the Commission's burden estimates; (c)

ways to enhance the quality, utility, and clarity of the information

collected; and (d) ways to minimize the burden of the collection of

information on the respondents, including the use of automated

collection techniques or other forms of information technology.

Summary of Notice

1. This NPRM seeks to further the development and implementation of

MAS. Accordingly, this NPRM tentatively concludes that the 932/941 MHz

and 928/959 MHz MAS bands should be designated for subscriber-based

services and licensed on a geographic basis, with service areas based

on the U.S. Department of Commerce's Economic Areas. In this vein,

licensees providing such subscriber-based services would be presumed

telecommunications carriers and would be required to meet liberal

construction/coverage requirements with their service areas. Further,

the Commission proposes to resolve mutually exclusive applications for

the 932/941 MHz and 928/959 MHz MAS licenses through competitive

bidding.

2. In contrast to the subscriber-based services discussed above,

this NPRM tentatively concludes that the 928/952/956 MHz MAS bands

should be designated exclusively for private use and seeks comment on

whether these bands should continue to be licensed on a site-by-site

basis or should be licensed on a geographic basis. The Commission also

proposes to set aside five channel pairs in the 932/941 MHz MAS bands,

to be licensed on a first-come, first-served basis, for Federal

Government/Public Safety communications.

3. This NPRM also seeks to further the development of MAS by

reducing regulatory burdens and increasing flexibility for all MAS

licensees. For example, the Commission proposes to simplify and

streamline the MAS licensing process. The Commission also proposes to

increase operational flexibility by allowing MAS licensees to provide

mobile and fixed operations on a co-primary basis with point-to-point

and point-to-multipoint operations. Further, the Commission seeks

comment on whether 12.5 kHz or larger blocks of spectrum should be

available to MAS licensees in order to broaden the range of

communications services possible using MAS spectrum.

4. Finally, effective February 19, 1997, this NPRM suspends the

acceptance and processing of MAS applications in the 932/941 MHz and

928/959 MHz bands, and subscriber-based MAS applications in the 928/

952/956 MHz bands, except certain pending applications, applications

for minor modifications, and applications for license assignment or

transfer of control, during the pendency of this rule making. This

suspension, however, does not affect MAS applications for private,

internal communications in the 928/952/956 MHz bands.

5. This is a non-restricted notice and comment rule making

proceeding. Ex Parte presentations are permitted, except during the

Sunshine Agenda period, provided they are disclosed as provided in

Commission rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).

6. Pursuant to applicable procedures set forth in Sections 1.415

and 1.419 of the Commission's Rules, 47 CFR 1.415 and 1.419, interested

parties may file comments on or before April 21, 1997, and reply

comments on or before May 6, 1997. To file formally in this proceeding,

you must file an original and four copies of all comments, reply

comments, and supporting comments. If you want each Commissioner to

receive a personal copy of your comments, you must file an original

plus nine copies. You must send comments and reply comments to Office

of the Secretary, Federal Communications Commission, Washington, DC

20554. You may also file informal comments by electronics mail. You

should address informal comments to [email protected]. You must put the

docket number of the proceeding on the subject line (``WT Docket No.

97-81''). You must also include your full name and Postal Service

mailing address in the text of the message. Formal and informal

comments and reply comments will be available for public inspection

during regular business hours in the F.C.C. Reference Center of the

Federal Communications Commission, Room 239, 1919 M Street, NW.,

Washington, DC 20554.

7. Authority for issuance of this NPRM is contained in Sections

4(i), 303(r), and 309(j) of the Communications Act of 1934, as amended,

47 U.S.C. 154(i), 303(r), and 309(j).

List of Subjects

47 CFR Part 22

Communications common carriers, Radio, Reporting and recordkeeping

requirements.

47 CFR Part 101

Radio, Reporting and recordkeeping requirements.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Note:This attachment will not be published in the Code of

Federal Regulations.

Attachment

Initial Regulatory Flexibility Analysis

1. Pursuant to the Regulatory Flexibility Act (RFA), see 5

U.S.C. 603, the Commission has prepared this Initial Regulatory

Flexibility Analysis (IRFA) of the expected impact on small entities

of the policies and rules proposed in this NPRM. Written public

comments are requested on the IRFA. Comments must be identified as

responses to the IRFA and must be filed by the deadlines for

comments on the NPRM. The Secretary shall cause a copy of this NPRM

to be sent to the Chief counsel for Advocacy of the Small Business

Administration, in accordance with 5 U.S.C. 603(a).

A. Reason for Action

2. This NPRM requests public comment on our proposals to

maximize the use of spectrum allocated to Multiple Address Systems

in the Microwave Service. These proposals include: (1) Converting

licensing of MAS spectrum for which the principal use will involve,

or is reasonably likely to involve, ``subscriber-based'' services,

from site-by-site licensing to geographic area licensing, (2)

simplifying and streamlining the MAS licensing procedures and rules,

(3) increasing licensee flexibility to provide

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communication services that are responsive to dynamic demands, and

(4) employing competitive bidding procedures (auctions) to resolve

mutually exclusive applications for MAS spectrum for which the

principal use will involve, or is reasonably likely to involve,

``subscriber-based'' services, In addition, by this NPRM we

temporarily suspend the acceptance and processing of MAS

applications, with the exception of applications in a few noted

categories.

B. Objectives

3. In attempting to maximize the use of MAS spectrum, we

continue our efforts to establish a flexible regulatory framework

for spectrum allocations that will, among other things, provide

opportunities for continued development of competitive new service

offerings by allowing flexible use of spectrum, expedite market

entry through modified licensing procedures, and promote

technological innovation by eliminating unnecessary regulatory

burdens.

C. Legal Basis

4. The authority for this action is contained in Sections 4(i),

303(r), and 309(j) of the Communications Act of 1934, as amended, 47

U.S.C. 154(i), 303(r), and 309(j). See also Administrative Procedure

Act, 5 U.S.C. Sec. 553.

D. Description and Estimate of Small Entities Affected

5. Pursuant to the Contract with America Advancement Act of

1996, Public Law 104-121, 110 Stat. 847 (1996), the Commission is

required to estimate in its Final Regulatory Flexibility Analysis

the number of small entities to which a rule will apply, provide a

description of such entities, and assess the impact of the rule on

such entities. The Regulatory Flexibility Act defines a ``small

business'' to be the same as a ``small business concern'' under the

Small Business Act unless the Commission has developed one or more

definitions that are appropriate to its activities. Under the Small

Business Act, a ``small business concern'' is one that: (1) Is

independently owned and operated; (2) is not dominant in its field

of operation; and (3) meets any additional criteria established by

the Small Business Administration (SBA). To assist the Commission in

this analysis, commenters are requested to provide information

regarding how many MAS entities, total, would be affected by the

various proposals on which the Commission seeks comment in this

NPRM. In particular, we seek estimates of how many affected entities

will be considered ``small businesses.'' In this regard, we ask

commenters to note that we have requested comment regarding the

establishment of a small business definition for MAS for the purpose

of competitive bidding.

6. The proposals in the NPRM would effect MAS licensees and

applicants for licenses. Such entities fall into two categories: (1)

Those using MAS spectrum for which the principal use involves, will

involve, or is reasonably likely to involve, ``subscriber-based''

(commercial) services, and (2) those using, or intending to use, MAS

spectrum to provide for their own internal communications needs.

Theoretically, it is also possible that an entity could fall into

both categories. The spectrum uses in the two categories differ

markedly.

7. With respect to the first category, neither the Commission

nor the Small Business Administration (SBA) has developed a specific

definition of small entities applicable to MAS licensees that

provide commercial subscription services. The applicable definition

of small entity in this instance appears to be the definition under

the SBA rules applicable to establishments engaged in radiotelephone

communications. This definition provides that a small entity is any

entity employing fewer than 1,500 persons. See 13 CFR 121.201,

Standard Industrial Classification (SIC) Code 4812. The 1992 Census

of Transportation, Communications and Utilities, conducted by the

Bureau of the Census, which is the most recent information

available, shows that only 12 radiotelephone firms out of a total of

1,178 such firms operated during 1992 had 1,000 or more employees.

Therefore, whether or not any or all of these 12 firms are MAS

commercial service providers, nearly all MAS commercial service

providers are small businesses by the Small Business

Administration's definition. The Commission's licensing database

indicates that, as of November 8, 1996, there were a total of 8,171

MAS station authorizations. Of these, 1087 authorizations were for

common carrier service.

8. Alternatively, under the SBA rules, the applicable definition

of small entity for MAS licensees that provide commercial

subscription services may also be applicable to establishments

primarily engaged in furnishing telegraph and other message

communications. This definition provides that a small entity is an

entity with annual receipts of $5 million or less. See 13 CFR

121.201, Standard Industrial Classification (SIC) Code 4822. 1992

Census data, which is the most recent information available,

indicates that, of the 286 firms under this category, 247 had annual

receipts of $4.999 million or less. We seek comment on whether the

appropriate definition for such MAS licensees is SIC Code 4812, SIC

Code 4822, or both.

9. The Commission seeks comment on the number of small entities

that currently provide commercial MAS subscription service, and the

number of small entities that would anticipate filing applications

to provide such service under the various proposals described in the

NPRM. We seek comment on whether we should conclude, for purposes of

the Final Regulatory Flexibility Analysis in this matter, that all

MAS commercial communications service providers are small entities.

10. With respect to the second category, which consist of

entities that use or seek to use MAS spectrum to provide for their

own internal communications needs, we note that MAS serves an

essential role in a range of industrial, business, land

transportation, and public safety activities. These radios are used

by companies of all sizes operating in virtually all U.S. business

categories. Because of the array of users, the Commission has not

developed (nor would it be possible to develop) a definition of

small entities specifically applicable to such MAS users. Nor is

there a precise SBA definition. In this context we again seek

comment on whether the appropriate definition of small entity under

the SBA rules is that applicable to radiotelephone companies: any

entity employing fewer than 1,500 persons. See 13 CFR 121.201,

Standard Industrial Classification (SIC) Code 4812. Again,

alternatively, we seek comment on the appropriateness of defining

such MAS licensees under SIC Code 4822, concerning establishments

primarily engaged in furnishing telegraph or other message

communications, or perhaps under both Codes 4812 and 4822. For the

purpose of determining whether a licensee is a small business as

defined by the Small Business Administration, each licensee would

need to be evaluated within its own business area. The Commission's

licensing database indicates that, as of November 8, 1996, of the

8,171 total MAS station authorizations, 7,084 authorizations were

for private radio service, and of these, 426 were for private mobile

service.

11. We seek comment on the number of small entities that use MAS

spectrum for their internal communications needs. Further, we seek

comment on the number of small entities that are likely to apply for

licenses, under the various proposals described in the NPRM, to

obtain spectrum for their own internal communications needs. Because

any entity engaged in a business or commercial activity is eligible

to hold an MAS license, the proposals in the NPRM could

prospectively affect any small business in the United States

interested in using MAS for its own communications needs. In other

words, the universe of prospective or possible MAS users includes

all U.S. small businesses.

12. The RFA also includes small governmental entities as a part

of the regulatory flexibility analysis. The definition of a small

governmental entity is one with populations of fewer than 50,000.

There are 85,006 governmental entities in the nation. This number

includes such entities as states, counties, cities, utility

districts and school districts. There are no figures available on

what portion of this number has populations of fewer than 50,000.

However, this number includes 38,978 counties, cities and towns, and

of those, 37,566, or 96 percent, have populations of fewer than

50,000. The Census Bureau estimates that this ratio is approximately

accurate for all governmental entities. Thus, of the 85,006

governmental entities, we estimate that 96 percent, or 81,600, are

small entities that may be affected by our rules.

13. Again, we have requested comment regarding the establishment

of a refined small business definition for MAS for the purpose of

competitive bidding. This NPRM does not propose any definition, but

merely seeks comment on this issue.

E. Reporting, Recordkeeping, and Other Compliance Requirements

14. If we have competitive bidding to award certain MAS

licenses, as proposed, and also establish a small business

definition for the purpose of competitive bidding, then all small

businesses that choose to participate

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in these services will be required to demonstrate that they meet the

criteria set forth in quality as small businesses. See generally 47

CFR Part 1, Subpart Q (competitive bidding proceedings). Any small

business applicant wishing to avail itself of small business

provisions will need to make the general financial disclosures

necessary to establish that the small business is in fact small.

15. If this occurs, prior to auction each small business

applicant will be required to submit an FCC Form 175, OMB Clearance

Number 3060-0600. The estimated time for filling out an FCC Form 175

is 45 minutes. In addition to filing an FCC Form 175, each applicant

must submit information regarding the ownership of the applicant,

any joint venture arrangements or bidding consortia that the

applicant has entered into, and financial information which

demonstrates that a small business wishing to qualify for

installment payments and bidding credits is a small business.

Applicants that do not have audited financial statements available

will be permitted to certify to the validity of their financial

showings. While many small businesses have chosen to employ

attorneys prior to filing an application to participate in an

auction, the rules are proposed so that a small business working

with the information in a bidder information package can file an

application on its own. When an applicant wins a license, it will be

required to submit an FCC Form 494 (common carrier) or FCC Form 402

(private radio), which will require technical information regarding

the applicant's proposals for providing service. This application

will require information provided by an engineer who will have

knowledge of the systems design. (Also, the Commission is currently

developing a single, consolidated MAS form, FCC Form 415, which will

eventually supersede both Form 494 and Form 402.)

F. Federal Rules That May Duplicate, Overlap, or Conflict With the

Proposals

16. None.

G. Significant Alternatives Minimizing the Impact on Small Entities

Consistent With the Stated Objectives

17. The NPRM solicits comment on a variety of proposals, some of

which are described below. Any significant alternatives presented in

the comments will be considered. As noted, we have requested comment

regarding the establishment of a small business definition for MAS.

We also seek comment generally on the existence of small entities in

MAS and how many total entities, existing and potential, would be

affected by the proposed rules in the NPRM. Finally, we request that

each commenter identify whether it is a ``small business'' under

either of the two SBA definitions described supra--either employing

fewer than 1,500 employees (for radiotelephone communications

companies) or having annual receipts of $5 million or less (for

telegraph or other message communications companies).

18. The Commission expects that licensing subscriber-based MAS

bands by geographic area, as proposed, will assist small businesses.

As described supra, such licensing makes expansion of operations

easier, and this flexibility assists all licenses, including small

business licensees. We also believe that the proposed EA geographic

area service area is large enough to support the services

contemplated while being small enough to be attractive to small

business entities. The NPRM also proposes a purely private

allocation for licenses using MAS solely for internal uses. In

addition, the proposed flexible approach to the build-out of MAS

systems will assist licensees, including small business licensees,

in designing and implementing their particular business plans, while

the partitioning and disaggregation proposals will assist those

small businesses that might otherwise be unable to acquire a

``full'' license as currently configured. Finally, we believe that

the proposed spectrum auction will assist small entities desiring to

obtain MAS licenses. This approach gets licenses to those most

likely to use them most effectively. By contrast, when awarding

licenses by lotteries it is only coincidental when the license is

awarded to the entity best suited to using the license. Using

lotteries, therefore, creates uncertainty for all would-be

licensees, including those that are small business. We seek comment

on all proposals and alternatives described in the NPRM, and the

impact that such proposals and alternatives might have on small

entities.

[FR Doc. 97-6166 Filed 3-11-97; 8:45 am]

BILLING CODE 6712-01-P