2 GHz for Use by the Mobile Satellite Service

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 74, and 78

[ET Docket No. 95-18; FCC 97-93]

2 GHz for Use by the Mobile Satellite Service

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In the Further Notice of Proposed Rule Making (Further NPRM),

we propose specific details of relocation of affected Broadcast

Auxiliary Service (BAS), Cable Television Relay Service (CARS), Local

Television Transmission Service (LTTS), and Fixed Satellite (FS)

licensees, and request comment on our proposals. We propose to

channelize the new BAS band into seven channels of 15 megahertz

bandwidth, with the new channelization plan to become primary on

January 1, 2000, or the day after the last Fixed Service (FS) licensee

in the 2110-2130 MHz band has been relocated in accordance with

Sections 101.69-101.81 of the Commission's rules, whichever date is

later. We further propose to allow MSS operators to negotiate with BAS

licensees for relocation. The new and enhanced services and uses

permitted by this action will create new jobs, foster economic growth,

and improve access to communications by industry and the American

public.

DATES: Comments must be submitted on or before June 23, 1997 and reply

comments must be submitted on or before July 21, 1997.

ADDRESSES: Office of the Secretary, Federal Communications Commission,

Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Sean White, Office of Engineering and

Technology, 202-418-2453.

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

Further Notice of Proposed Rule Making, (Further NPRM), ET Docket 95-

18, FCC 97-93, adopted March 13, 1997, and released March 14, 1997. The

full text of this Commission decision is available for inspection and

copying during normal business hours in the FCC Reference Center (Room

239), 1919 M Street, N.W., Washington, D.C., and also may be purchased

from the Commission's duplication contractor, International

Transcription Service, (202) 857-3800, 2100 M Street, N.W., Suite 140,

Washington, D.C. 20037.

Summary of the Further NPRM of Proposed Rule Making

1. In the Further NPRM of Proposed Rule Making (``Further NPRM''),

the Commission proposes to rechannelize the new Broadcast Auxiliary

Service (BAS) spectrum from the current seven channels (within the

1990-2110 MHz band), each of 17 or 18 megahertz bandwidth, to seven

channels (at 2025-2130 MHz band), each of 15 megahertz bandwidth. The

Further NPRM also proposes to provide for the relocation and

rechannelization of incumbent BAS, Cable Television Relay Service

(CARS), and Local Television Transmission Service (LTTS) licensees in

accordance with the Commission's Emerging Technologies policies,

providing for voluntary and mandatory negotiations between incumbent

licensees and new MSS operators, and involuntary relocation of

incumbents if agreements cannot be reached. The Further NPRM proposes

that, in the case of involuntary relocation, all costs of relocation

will be borne by the MSS licensee. The Further NPRM also proposes that

the Emerging Technologies policies for the relocation of incumbent FS

licensees (in the 2110-2130 and 2165-2200 MHz bands) be followed,

including voluntary and mandatory negotiation periods, provision for

involuntary relocation with all costs borne by the MSS operator, and a

``sunset'' date of ten years after the beginning of the voluntary

negotiation period, after which FS licensees will be required to

relocate at their own expense if MSS needs the frequencies within which

FS licensees operate.

2. The Commission carefully considered the balance of interests

between new technology providers and incumbent service licensees, in

the Emerging Technologies proceeding, ET Docket 92-9. Considering that

the emerging technology service provider receives the benefits of

operating in the band, including anticipated substantial profits, the

Commission concluded that it is fair to require the new technology

service to pay for the relocation of the displaced incumbents. Though

the 1990-2110 MHz BAS band was not part of the Emerging Technologies

proceeding, the logic of the Emerging Technologies proceeding applies

equally well to BAS, CARS, and LTTS. MSS commenters advocate requiring

BAS band licensees to finance their own relocation as their equipment

depreciates and they purchase new equipment, claiming that the total

costs of relocation, added to the high cost of launching satellites,

would cripple the nascent MSS industry. This assertion, however,

contradicts the position of MSS commenters that there is a huge,

underserved demand for MSS. We believe that MSS licensees will build

the cost of relocating BAS band licensees into their financial plans,

and still will be able to provide service at a profit. We propose to

rechannelize the BAS band to seven channels of 15 megahertz width each,

as opposed to the current 17- and 18-megahertz channel widths, in order

to maintain seven channels in the 2 GHz BAS band, but we also request

comment on whether allowing flexibility in channelization would better

serve the needs of the BAS, CARS, and LTTS industries. Because the

current and new BAS bands overlap, BAS, CARS, and LTTS licensees are

likely to interfere with each other if both the current and proposed

new channel plans are used simultaneously. To address this problem, we

propose to make the new channel plan primary on January 1, 2000, or

after the 2110-2130 MHz band is cleared of incumbent FS licensees,

whichever is later. We also inquire whether a later date would be more

appropriate, and whether we should allow switchover on a market-by-

market basis, rather than a nationwide basis. We inquire whether we

should allow BAS, CARS, and LTTS licensees to negotiate with MSS

individually, or whether we should impose marketwide or nationwide

negotiators whose agreements would be binding on all licensees. We also

[[Page 19539]]

propose the same negotiation periods as those established in the

Emerging Technologies proceeding: a two-year voluntary negotiation

period, followed by a one-year mandatory negotiation period, followed

by involuntary relocation. In the case of involuntary relocation, we

propose to apply the requirements of our Emerging Technologies

policies: (1) payment of all relocation expenses by the MSS operator,

(2) full comparability of replacement facilities, and (3) the right of

the incumbents to return to their original spectrum at MSS expense,

should the replacement facilities prove not to be fully comparable

within one year after relocation. Finally, we propose to require

subsequently entering MSS operators to compensate earlier operators for

a portion of the expenses incurred in clearing the BAS band.

3. We also propose to follow our Emerging Technologies policies in

providing for the relocation of FS incumbents from the 2110-2130 MHz

and 2165-2200 MHz bands, as codified at 47 CFR 101.69-101.81.

Incumbents will be relocated from the 2110-2130 MHz band to clear that

band for relocated BAS operations. In our Emerging Technologies

proceeding, we established two periods for negotiation between new

emerging technology licensees and incumbent FS licensees. The first

period is for voluntary negotiations, in which the parties may arrive

at any mutually agreeable solution. Negotiations during this period are

strictly voluntary, and we established no parameters for these

negotiations. The voluntary period begins with our acceptance of

license applications for the emerging technology service, and lasts for

two years, or, in the case of public safety FS, three

years.1 The voluntary period is followed by a mandatory

negotiation period, which begins at any time after expiration of the

voluntary period when the emerging technologies licensee informs the FS

incumbent in writing of the emerging technology licensee's desire to

negotiate relocation. During the mandatory period, the parties would be

required to negotiate in good faith, but again the parameters of the

negotiation are left to the parties. The mandatory period lasts for one

year, or two years for public safety FS incumbents.2 Should

the parties fail to reach an agreement during the mandatory negotiation

period, the emerging technology provider would be able to request

involuntary relocation of the existing facility. Involuntary relocation

requires that the emerging technology provider (1) guarantee payment of

all costs of relocating the incumbent to a comparable facility; (2)

complete all activities necessary for placing the new facilities into

operation, including engineering and frequency coordination; and (3)

build and test the new FS or alternative system. Once comparable

facilities are made available to the incumbent microwave operator, the

Commission will amend the 2 GHz license of the incumbent to secondary

status. After relocation, the FS incumbent is entitled to a one-year

trial period to determine whether the facilities are indeed comparable,

and if they are not, the emerging technologies licensee is required to

remedy the defects or pay to relocate the FS incumbent back to its

former or an equivalent 2 GHz frequency.3

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\1\ Public safety FS licensees eligible for the three-year

voluntary negotiation period are defined in Emerging Technologies,

ET Docket 92-9, Memorandum Opinion and Order, 9 FCC Rcd 1943 at

Paras. 36-41, 59 FR 19642, April 25, 1994.

\2\ See Emerging Technologies, ET Docket 92-9, Third Report and

Order and Memorandum Opinion and Order, 8 FCC Rcd. 6589 at para. 15,

58 FR 46547, September 2, 1993.

\3\ See 47 CFR 21.50, 94.59.

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4. We propose to provide for FS relocation in this case using the

same sunset period and good faith guidelines as those established in

the Microwave Cost-Sharing proceeding, 11 FCC Rcd 8825 (1996), 61 FR

29679, June 12, 1996. Ten years after the beginning of the voluntary

negotiation period for the first MSS licensees, MSS operators would no

longer be required to pay the costs of relocating FS incumbents, and

would be able to require the incumbents to cease operating or relocate

at their own expense upon six months written notice. The MSS and FS

industries are currently developing interference standards under the

good offices of Telecommunications Industry Association (TIA). We

propose to adopt these standards, or their successors, in determining

whether our sunset rules would apply to a given FS incumbent. At the

end of the six-month notice period, the incumbent FS licensees would be

required to surrender their 2 GHz licenses to the Commission, unless

the incumbent FS licensees arrived at an agreement with the MSS

operators to allow the incumbent FS licensee to continue operations.

During mandatory negotiations, we propose to adhere to the guidelines

enumerated in the Microwave Cost-Sharing proceeding. We request comment

on whether we should apply the sunset rule of 47 CFR 101.81 and the

good faith guidelines of 47 CFR 101.75 for the 2110-2130 MHz and 2165-

2200 MHz bands. If so, we inquire whether the sunset date should be ten

years after the beginning of the voluntary negotiation period for

relocation, as in 47 CFR 101.81, or some other date.

5. In the Microwave Cost-Sharing proceeding, we also proposed to

adjust the voluntary and mandatory negotiation periods for FS

relocation in the case of the D, E, and F spectrum blocks of PCS.

Specifically, we proposed to reduce the voluntary period to one year,

or two years in the case of public safety FS incumbents. We proposed to

increase the mandatory negotiation period to two years, or three years

in the case of public safety FS. Thus, the total negotiation period

would remain the same, but the division into voluntary and mandatory

periods would be altered. We request comment on whether we should

adjust the negotiation periods for the MSS band. If so, should we

follow the proposal in our Microwave Cost-Sharing proceeding, or should

we establish some other negotiation periods? Also, should we begin the

voluntary negotiation period when we accept applications for MSS

licensing, or at some later date?

6. In addition to addressing FS in the 2110-2130 MHz and 2165-2200

MHz bands, we inquire into procedures for relocation of FS licensees in

the 2130-2150 MHz band. This band is not directly reallocated by this

proceeding, but FS links in the 2130-2150 MHz band are paired with

links in the 2180-2200 MHz band, which is being reallocated to MSS. We

propose to allow parties to negotiate the relocation of links in the

2130-2150 MHz band during negotiations for the relocation of FS

licensees in the 2180-2200 MHz band. We inquire, however, whether we

should assume that the involuntary relocation of FS links in the 2180-

2200 MHz band necessitates relocation of the paired links in the 2130-

2150 MHz band, or whether we should require relocation only of links in

the 2180-2200 MHz band, leaving situate the paired links in the 2130-

2150 MHz band, unless the FS licensees involved demonstrate the need to

have the paired links in the 2130-2150 MHz band included in involuntary

relocation. Commenters are urged to address the feasibility of paired

links in widely separated frequency bands, as well as any other aspects

of this question.

7. Finally, we propose to require subsequently entering MSS

operators to compensate earlier MSS operators for the costs of

relocating incumbent FS licensees. We propose that the subsequently

entering MSS operators will pay a proportionate share of the costs of

clearing the spectrum band that

[[Page 19540]]

the subsequently entering MSS operator is authorized to use. Further,

in any case where the earlier MSS operator was able to share spectrum

with FS incumbents, but the entry of another MSS operator necessitates

relocation, we propose to require the earlier MSS operator to

compensate the subsequently entering MSS operator in the same manner.

We also inquire, whether we should consider the age and value of FS

equipment in determining costs issues in the case of involuntary

relocation.

8. We request comment on all these proposals. Commenters are

encouraged to present possible alternatives to any of the proposals

presented in the Further NPRM. We also specifically inquire whether

there are sound reasons to establish different relocation procedures

for the BAS band than those we establish for FS relocation.

9. This action would make more spectrum available to MSS providers

from the year 2000 forward. The staff has concluded that there is a

need for more MSS spectrum, and the spectrum at issue will allow both

domestic and global MSS systems to be established. The reduction of the

BAS band would encourage more efficient use of the spectrum, and would

increase the amount of remaining spectrum available for emerging

technologies. The spectrum allocation would require relocation of BAS

and FS licensees, in accordance with our Emerging Technologies rules.

Finally, the new and enhanced services and uses permitted by this

action will create new jobs, foster economic growth, and improve access

to communications by industry and the American public.

Initial Regulatory Flexibility Analysis

10. As required by Section 603 of the Regulatory Flexibility

Act,4 the Commission has prepared an IRFA of the expected

significant economic impact on small entities by the policies and rules

proposed in this Further Notice of Proposed Rule Making (Further 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 Further NPRM provided above in paragraph 83. The

Secretary shall send a copy of this NPRM, including the IRFA, to the

Chief Counsel for Advocacy of the Small Business Administration in

accordance with paragraph 603(a) of the Regulatory Flexibility Act.

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\4\ 5 U.S.C. 603.

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A. Need for and Objectives of the Proposed Rules

11. The Further NPRM proposes rules to govern the relocation of

Broadcast Auxiliary Service (BAS), Local Television Transmission

Service (LTTS), Cable Television Relay Service (CARS), and Fixed

Service (FS) licensees from the 2 GHz spectrum reallocated to the MSS.

These rules are designed to ensure an orderly transition of these

licensees from the spectrum so that MSS operations may be conducted in

the spectrum. At the same time, the rules are designed to ensure that

incumbent BAS, LTTS, CARS, and FS licensees suffer no harm from

relocation.

B. Legal Basis

12. The Communications Act of 1934, as amended, gives the

Commission authority to ``make such regulations as it may deem

necessary to prevent interference between stations and to carry out the

provisions of [the Communications Act].'' 47 U.S.C. 303(f).

C. Description and Estimate of the Number of Small Entities to Which

the Proposed Rules Will Apply

13. BAS, LTTS, and CARS Licensees

This service involves a variety of transmitters, generally used to

relay broadcast programming to the public (through translator and

booster stations) or within the program distribution chain (from a

remote news gathering unit back to the station). It also includes

Instructional Television Fixed Service stations, which are used to

relay programming to the home or office, similar to that provided by

the cable television systems. The Commission has not developed a

definition of small entities applicable to Broadcast Auxiliary Service,

Local Television Transmission Service or Cable Television Relay

Service. Therefore, the applicable definition of small entity is the

definition under the Small Business Administration (SBA) rules

applicable to radiotelephone companies. SBA has defined a small

business for Standard Industrial Classification (SIC) category 4812

(Radiotelephone Communications) to be small entities when they have

fewer than 1500 employees.5

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\5\ 13 CFR 121.201 Standard Industrial Classification (SIC) Code

4812.

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(a) There are currently 2,663 FM translators and boosters, 4, 926

TV translators, and 1,921 Low Power TV stations which will be affected

by the new requirements. The FCC does not collect financial information

on any broadcast facility and the Department of Commerce does not

collect financial information on these auxiliary broadcast facilities.

We believe that most, if not all, of these auxiliary facilities could

be classified as small businesses by themselves. We recognize that most

translators and boosters are owned by a parent station which, in some

cases, would be covered by the revenue definition of small business

entity discussed above. These stations would likely have annual

revenues that exceed the SBA maximum to be designated as a small

business (either $5 million for a radio station or $10.5 million for a

TV station). As we indicated earlier, 96% of radio stations and 78% of

TV stations are designated as small businesses.

(b) There are currently 2,000 licensed cable television relay

stations, which will probably be affected by the new requirement. The

Commission receives approximately 1,000 CARS applications on an annual

basis. The FCC is not required to collect financial information on

these facilities.

14. Fixed Service Licensees

The Further NPRM pertains to fixed service microwave licensees. The

Commission has not developed a definition of small entities applicable

to Fixed Service microwave licensees. Therefore, the applicable

definition of small entity is the definition under the Small Business

Administration (SBA) rules applicable to radiotelephone companies. This

definition provides that a small entity is a radiotelephone company

employing fewer than 1,500 persons. Census Bureau data indicates that

there are 1,164 radiotelephone companies with fewer than 1500

employees, that might qualify as small entities if they are

independently owned and operated. Since the Regulatory Flexibility Act

amendments were not in effect until the record in this proceeding was

closed, the Commission was unable to request information regarding the

number of small businesses that would be affected by this action.

15. Satellite Communications Services

The Commission has not developed a definition of small entities

applicable to satellite communications licensees. Therefore, the

applicable definition of small entity is the definition under the Small

Business Administration (SBA) rules applicable to Communications

Services ``Not Elsewhere Classified.'' This definition provides that a

small entity is one with $11.0 million or less in annual

receipts.6 According to Census Bureau data, there are 848

firms

[[Page 19541]]

that fall under the category of Communications Services, Not Elsewhere

Classified. Of those, approximately 775 reported annual receipts of $11

million or less and qualify as small entities.7

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\6\ 13 CFR 121.201, Standard Industrial Classification (SIC)

Code 4899.

\7\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992

Census of Transportation, Communications, and Utilities, UC92-S-1,

Subject Series, Establishment and Firm Size, Table 2D, Employment

Size of Firms: 1992, SIC Code 4899 (issued May 1995).

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16. Satellite systems authorized by the Commission can be divided

into the following categories: Mobile-Satellite Service (MSS) non-

geostationary satellite orbit (LEO) (low or medium orbit satellites);

MSS geostationary; MSS stations; and Fixed-Satellite Service.

D. Description of Projected Reporting, Recordkeeping and Other

Compliance Requirements

17. The proposed rules would require all BAS, LTTS, CARS, and FS

licensees, as well as MSS operators, to negotiate for relocation or

rechannelization or both, including negotiating timetables and costs.

These negotiations are likely to require the skills of accountants and

engineers to evaluate the economic and technical requirements of

relocation.

E. Significant Alternatives to Proposed Rules Which Minimize

Significant Economic Impact on Small Entities and Accomplish Stated

Objectives

18. The Commission considered the alternative of requiring current

BAS, LTTS, CARS, and FS licensees in the 2 GHz band to relocate or

rechannelize or both at their own expense. The Commission rejected this

alternative as excessively burdensome on these incumbent licensees, and

not in the public interest.

19. MSS commenters advocate requiring BAS band licensees to finance

their own relocation as their equipment depreciates and they purchase

new equipment, claiming that the total costs of relocation, added to

the high cost of launching satellites, would cripple the nascent MSS

industry. This assertion, however, contradicts the position of MSS

commenters that there is a huge, underserved demand for MSS. We believe

that MSS licensees will build the cost of relocating BAS band licensees

into their financial plans, and still will be able to provide service

at a profit. We propose to rechannelize the BAS band to seven channels

of 15 megahertz width each, as opposed to the current 17- and 18-

megahertz channel widths, in order to maintain seven channels in the 2

GHz BAS band, but we also request comment on whether allowing

flexibility in channelization would better serve the needs of the BAS,

CARS, and LTTS industries. Because the current and new BAS bands

overlap, BAS, CARS, and LTTS licensees are likely to interfere with

each other if both the current and proposed new channel plans are used

simultaneously. To address this problem, we would propose to make the

new channel plan primary on January 1, 2000, or after the 2110-2130 MHz

band is cleared of incumbent FS licensees, whichever is later. We would

also inquire whether a later date would be more appropriate, and

whether we may allow switchover on a market-by-market basis, rather

than a nationwide basis. We inquire whether we should allow BAS, CARS,

and LTTS licensees to negotiate with MSS individually, or whether we

should impose marketwide or nationwide negotiators whose agreements

would be binding on all licensees. We propose the same negotiation

periods as those established in the Emerging Technologies proceeding: a

two-year voluntary negotiation period, followed by a one-year mandatory

negotiation period, followed by involuntary relocation. In the case of

involuntary relocation, we propose to apply the requirements of our

Emerging Technologies policies: (1) payment of all relocation expenses

by the MSS operator, (2) full comparability of replacement facilities,

and (3) the right of the incumbents to return to their original

spectrum at MSS expense, should the replacement facilities prove not to

be fully comparable within one year after relocation. Finally, we would

propose to require subsequently entering MSS operators to compensate

earlier operators for a portion of the expenses incurred in clearing

the BAS band.

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

Proposed Rules

20. None.

List of Subjects

47 CFR Part 2

Communications equipment, Radio.

47 CFR Part 74

Television broadcasting.

47 CFR Part 78

Cable television, Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97-9828 Filed 4-21-97; 8:45 am]

BILLING CODE 6712-01-P