Reallocation of TV Channels 60-69, the 746-806 MHz Band

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 2

[ET Docket No. 97-157; FCC 97-421]

Reallocation of TV Channels 60-69, the 746-806 MHz Band

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: By this Report and Order (``R&O''), the Commission reallocates

the 746-806 MHz band, currently television (TV) channels 60-69, as

proposed in the Notice of Proposed Rule Making (``Notice'') in this

proceeding. In consultation with the Secretary of Commerce and the

Attorney General, we allocate 24 megahertz of this band, at 764-776 MHz

and 794-806 MHz, on a primary basis to the fixed and mobile services,

and designate this spectrum for public safety use. We allocate the

remaining 36 megahertz of the band on a primary basis to the fixed,

mobile, and new broadcasting services for commercial use, to be

assigned by auction. During the digital television (``DTV'') transition

period, TV channels 60-69 will continue to be used for analog and

digital TV broadcasting. We are establishing policies for the

protection of such stations during the DTV transition. We are also

providing for continued use of TV channels 60-69 on a secondary basis

for low power TV and translator stations until the end of the DTV

transition period.

EFFECTIVE DATE: April 13, 1998.

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

Technology, (202) 418-2453.

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

and Order, ET Docket 97-157, FCC 97-421, adopted December 31, 1997, and

released January 6, 1998. 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, 1231

20th Street, N.W. Washington, D.C. 20036.

Summary of the Report and Order

1. This Report and Order reallocates the 746-806 MHz band,

currently comprising television (TV) channels 60-69, as proposed in the

Notice of Proposed Rule Making in this proceeding, 62 FR 41012, July

31, 1997. The Balanced Budget Act of 1997 (Budget Act) requires the

allocation of 24 megahertz of spectrum for public safety from TV

channels 60-69, in consultation with the Secretary of Commerce and the

Attorney General, not later than January 1, 1998.1 There is

inadequate spectrum to meet the needs of many public safety

organizations, particularly in major metropolitan regions. Public

safety requires spectrum to facilitate interoperability and for new

types of communications capabilities that will strengthen and enhance

public safety. Therefore, as required by the Budget Act, after

consulting with and considering the views of the Secretary of Commerce

and the Attorney General, we are allocating 24 MHz of spectrum (TV

Channels 63, 64, 68, and 69, or, in other words, the 764-776 MHz and

794-806 MHz bands) to the fixed and mobile services on a primary basis

for public

[[Page 6670]]

safety services.2 We have initiated a separate proceeding to

establish the rules that will govern how this spectrum will be used by

public safety agencies. Also in accordance with the Budget Act, we are

allocating the remaining 36 megahertz of channels 60-69 to the fixed

and mobile services on a primary basis, and retaining the primary

allocation of this spectrum to the broadcasting service. Licenses in

this 36 megahertz of spectrum will be assigned to commercial licensees

through competitive bidding in accordance with procedures that will be

determined in a later proceeding. This 36 megahertz of commercial

spectrum can be used to make new technologies and services available to

the American public. These proposals are an outgrowth of our digital

television (DTV) transition plan. During the DTV transition, channels

60-69 will continue to be used for analog and digital TV broadcasting.

We are establishing policies for the protection of such stations during

the DTV transition. We are also providing for continued use of TV

channels 60-69 on a secondary basis for low power TV and translator

stations until the end of the DTV transition period.

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\1\ See Budget Act, section 3004 (adding new section 337 of the

Communications Act).

\2\ The Budget Act provides that this spectrum is to be

allocated ``for public safety services according to the terms and

conditions established by the Commission, in consultation with the

Secretary of Commerce and the Attorney General.'' Budget Act section

3004(a)(1). Section 3004 of the Budget Act defines public safety

services as

Services--

(A) The sole or principal purpose of which is to protect the

safety of life, health, or property;

(B) That are provided--

(i) By State or local government entities; or

(ii) By nongovernmental organizations that are authorized by a

governmental entity whose primary mission is the provision of such

services; and

(C) That are not made commercially available to the public by

the provider.

Budget Act section 3004(f)(1).

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2. We do not adopt an alternative proposal to allocate channels 66-

69 for public safety instead of channels 63, 64, 68, and 69. It is not

clear that this alternative proposal would reduce adjacent channel

interference. In any event, properly crafted technical rules will

minimize adjacent channel interference. More importantly, this proposal

would have a severe impact on public safety radio communications

equipment. We anticipate that much of the public safety communications

in the 746-806 MHz band will be two-way. Two-way radios require

filtering to permit simultaneous transmission and reception. Small

separations between transmit and receive frequencies increase the size,

weight, power requirements, and cost of these radios. The mobile nature

of public safety communications requires that these factors be

minimized to the extent possible. Manufacturers of radio equipment have

expressed confidence in their ability to design two-way public safety

radios with transmit/receive separations of 30 megahertz. On the other

hand, shorter separations, such as the 12 megahertz suggested by the

alternate proposal, would significantly increase the cost and weight of

public safety radio equipment. Further, the 30 megahertz separation

proposed in the Notice will allow the design of public safety equipment

more compatible with, and more easily integrated into, current public

safety systems in the 800 MHz band. On balance, we believe that

channels 63, 64, 68, and 69 are most appropriate for public safety use,

and therefore, we are reallocating the 764-776 MHz and 794-806 MHz

bands to the fixed and mobile services for this purpose.

3. We reject the argument that broadcasting should not retain an

allocation in the 36 megahertz of commercial spectrum after the DTV

transition. Commenters generally agreed that including full power

broadcasting in this spectrum is likely to cause interference problems

with other commercial applications, especially low-power mobile

applications. We recognize that technical challenges are involved in

sharing spectrum between full power broadcasting and land mobile

services. However, we plan to address sharing issues in our service

rules proceeding, and are not persuaded that such sharing is not

feasible. At the same time, we wish to make it clear that analog TV and

DTV operations not licensed by competitive bidding as provided by the

Budget Act will be required to vacate this spectrum in accordance with

the DTV transition plan. Finally, we find that this allocation will not

deter investment in new communications services or systems, because the

746-806 MHz band is highly desirable spectrum for fixed, mobile, and

broadcasting operations, any of which are likely to attract investment

interest.

4. We observe that our DTV transition plan is currently under

review in a separate proceeding, and that additional DTV allotments are

under consideration for channels 60-69. However, we reject the argument

that we should avoid reallocating this spectrum in order to provide a

``safe haven'' for addressing problems that may arise during the DTV

transition. As an initial matter, we note that the Budget Act directs

the Commission to allocate 24 megahertz of this spectrum for public

safety use and 36 megahertz for commercial use by January 1, 1998. Thus

we do not have the latitude to delay reallocation of this spectrum.

Moreover, even if we had the discretion to do so, we do not believe it

would be necessary to retain this spectrum as a ``safe haven''. The DTV

transition plan is the product of extensive technical study and review.

If problems should arise, in most cases alternative solutions to use of

channels 60-69 will be available. The limited potential benefits of

retaining channels 60-69 as a ``safe haven'' are outweighed by the

costs of delaying much needed public safety services and opportunities

for new services. We also find no merit in the argument that we should

remove immediately all TV broadcasting operations from TV channels 60-

69. The operation of some TV and DTV stations in this spectrum is

clearly required to facilitate the DTV transition; and the Budget Act

provides for this, stating ``[a]ny person who holds a television

broadcast license to operate between 746 and 806 megahertz may not

operate at that frequency after the date on which the digital

television service transition period terminates, as determined by the

Commission.''

5. We recognize that the DTV transition and the reallocation of TV

channels 60-69 to other services will have a significant impact on LPTV

and TV translators. While we are committed to take reasonable steps to

reduce the impact on such operations, we are obligated to facilitate

the DTV transition and to reallocate the TV channels 60-69 as directed

under the Budget Act. Section 3004 of the Budget Act states that anyone

holding a television broadcast license in the band ``may not operate at

that frequency after the date on which the digital television

transition period terminates, as determined by the Commission.''

3 This provision of the Budget Act leaves us no latitude in

clearing LPTV and TV translator stations from the band at the end of

the DTV transition period. We will permit LPTV and TV translators to

continue to operate on channels 60-69 until the end of the DTV

transition period, as long as they do not cause harmful interference to

primary services. The DTV transition period is currently scheduled to

end December 31, 2006, but may be extended in some markets for several

reasons.4 In many rural areas, LPTV and TV translator

licensees will be able to continue

[[Page 6671]]

broadcasting because demand for spectrum for both public safety and

commercial applications is likely to be less in rural areas than in

urban areas.

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\3\ See Budget Act section 3004 (adding new section 337(e)(1) of

the Communications Act).

\4\ Budget Act section 3003 (adding new section 309(j)(14) of

the Communications Act) establishes the conditions under which the

Commission shall extend the end of the DTV transition period beyond

December 31, 2006.

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6. LPTV operators also can be accommodated in other ways. We will

consider whether there are any other steps that may be of benefit to

LPTV and TV translator operations as we develop service rules for the

commercial spectrum. We emphasize that all the provisions we made in

the DTV Proceeding Sixth Report and Order to accommodate LPTV and TV

translator stations also apply to LPTV and TV translator stations in

channels 60-69.

7. We believe that most holders of TV station construction permits

in channels 60-69 are sufficiently advanced in the licensing process

that it would be inequitable to rescind their permits. At the same

time, as we pointed out in the Notice, there are outstanding

construction permits that were issued years ago, on which there has

been little progress. In order to ensure that holders of construction

permits, both for new facilities and modification of existing

facilities, progress in construction, we are establishing a deadline by

which construction must be completed. We believe that three years is

sufficient time for current construction permits to build or improve

their facilities, and also provides a date certain for planning

purposes for public safety agencies and commercial entities. Therefore,

we will cancel any construction permit issued before the release date

of this Report and Order for which no license application has been

filed as of January 2, 2001.

8. We decline to indefinitely protected analog TV stations up to

their maximum possible coverage. Such a measure would deny areas of the

country to public safety and commercial licensees, even though the

current licensees may never increase their coverage to the maximum.

Accordingly, we will protect analog TV licensees up to their actual

coverage until the end of the DTV transition period. In this regard, we

will process requests for minor modifications to existing analog TV

stations and construction permits. However, the planning and

development of new services would be impeded if we were to permit

modifications that increase service area on an indefinite basis. We

believe that licensees have been aware of the DTV transition plan and

have had the opportunity to plan necessary modifications. Accordingly,

as of six months after the release date of this Report and Order we

will no longer accept requests for modifications to increase the

service areas of stations operating on TV channels 60-69. With regard

to DTV, we will protect the full coverage area until the end of the DTV

transition period.5 We recognize that stations may not be

able to provide full coverage initially and we do not wish to impede

growth and development of DTV.

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\5\ DTV coverage areas are established in the DTV Sixth Report

and Order, Paras. 29-33.

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9. In the DTV Sixth Further Notice of Proposed Rule Making, we

provided a final opportunity for the filing of new applications for

analog stations for vacant allotments and rule making petitions to add

channels to the TV Table of Allotments, thereby accommodating parties

who were in the process of preparing application and rule making

submissions. We are aware of the investment in planning, effort, and

money that have been put into these and other pending applications and

petitions to amend the TV allotment table. However, we continue to

believe that it is important to maximize the utility of the 746-806 MHz

band for public safety and new commercial services. For these reasons,

we will not authorize additional new analog full-service television

stations on channels 60-69. However, we will at a later date provide

applicants and petitioners an opportunity to amend their applications

and petitions, if possible, to seek a channel below channel 60. We will

thereafter dismiss any applications or allotment petitions that are not

satisfactorily amended. We direct the Mass Media Bureau to announce the

details of this amendment opportunity by Public Notice, at a date after

we complete action on our broadcast auction proceeding and the

petitions for reconsideration in the DTV proceeding. To encourage

settlements among mutually exclusive applicants, we authorize the Mass

Media Bureau to waive for this special amendment opportunity the rule

which limits reimbursements of applicants to legitimate and prudent

expenses (47 CFR 73.3525(a)(3)). Finally, we note that all conditions

pertaining to the applications and rule making petitions will continue

to apply.

Final Regulatory Flexibility Analysis

10. As required by the Regulatory Flexibility Act

(RFA),6 the Commission incorporated an Initial Regulatory

Flexibility Analysis (IRFA) of the expected significant economic impact

on small entities in the Notice of Proposed Rule Making (Notice) in

this proceeding. The Commission sought written public comments on the

proposals in the Notice, including the IRFA. This Final Regulatory

Flexibility Analysis (FRFA) conforms to the RFA, as amended by the

Contract With America Advancement Act of 1996 (CWAAA), Public Law 104-

121, 110 Stat. 847.7

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\6\ 5 U.S.C. 603.

\7\ Public Law 104-121, 110 Stat. 847 (1996)(CWAAA, Subtitle II

of the Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA), codified at 5 U.S.C. 601 et seq.).

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A. Need for and Purpose of This Action

11. In this Report and Order, the Commission reallocates the 746-

806 MHz band, television (TV) Channels 60-69, to other services. We

allocate 24 megahertz at 764-776 MHz and 794-806 MHz for public safety

use. We allocate the remaining 36 megahertz at 746-764 MHz and 776-794

MHz to the fixed and mobile services, and to retain the allocation to

the broadcasting service in these bands. We further assure the

protection of full-power TV stations in the band until the transition

to digital television (DTV) is complete, and retain the secondary

status in the band of Low Power TV (LPTV) and TV translator stations

until the end of the DTV transition period. These allocations will help

alleviate a critical shortage of public safety spectrum, make new

technologies and services available to the American public, and allow

more efficient use of spectrum in the 746-806 MHz band.

B. Legal Basis

12. This action is taken pursuant to Sections 4(i), 303(c), 303(f),

303(g), 303(r), and 337(a) of the Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 303(c), 303(f), 303(g), 303(r), and 337(a);

and section 3004 of the Balanced Budget Act of 1997, Public Law 105-33,

111 Stat. 251 section 3004 (1997).

C. Summary of Issues Raised by the Public Comments in Response to the

IRFA

13. One commenter responded to the IRFA. The Mountain Broadcasting

Corporation (Mountain) states that individual small businesses in the

televsion broadcasting industry will be harmed by interference and loss

of service resulting from our attempts to clear channels 60-69, while

providing interference protection for DTV service during the DTV

transition. Mountain contends that existing analog UHF stations must be

protected from interference from new DTV stations.8

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\8\ See Mountain Comments at 5-6.

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[[Page 6672]]

D. Changes Made to the Proposed Rules

14. In the Notice in this proceeding, released July 10, 1997, we

proposed to reallocate the 746-806 MHz band, currently comprising TV

channels 60-69. We proposed to allocate 24 megahertz, at 764-776 MHz

and 794-806 MHz (channels 63, 64, 68, and 69) to the fixed and mobile

services, for the exclusive use of public safety services. We proposed

to allocate the remaining 36 megahertz, at 746-764 MHz and 776-794 MHz

(channels 60-62 and 65-67) to the fixed, mobile, and broadcasting

services. We stated in the Notice that we anticipated that licenses in

this 36 megahertz of spectrum would be assigned through competitive

bidding. We also inquired into protection of TV stations on channels

60-69 from interference by new licensees during the DTV transition

period, but deferred specific interference protection standards to a

separate proceeding on service rules for the 746-806 MHz band. We

reaffirmed the secondary status of LPTV and TV translators in the

entire 746-806 MHz band until the end of the DTV transition period, and

inquired whether we should take any other measures to accommodate LPTV

in the band.

15. This Report and Order contains no substantial changes to the

Notice. The only commenter who addressed the IRFA in the Notice

addressed potential DTV-to-analog TV interference problems. This was

not an issue in this proceeding; it was therefore impossible to address

the comment in this Report and Order.

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

the Proposed Rules Will Apply

16. Definition of a ``small business''.

Under the RFA, small entities may include small organizations, small

businesses, and small governmental jurisdictions. 5 U.S.C. 601(6). The

RFA, 5 U.S.C. 601(3), generally defines the term ``small business'' as

having the same meaning as the term ``small business concern'' under

the Small Business Act, 15 U.S.C. 632. A small business concern is one

which: (1) is independently owned and operated; (2) is not dominant in

its field of operation; and (3) satisfies any additional criteria

established by the Small Business Administration (``SBA''). According

to the SBA's regulations, entities engaged in television broadcasting

Standard Industrial Classification (``SIC'') Code 4833--Television

Broadcasting Stations, may have a maximum of $10.5 million in annual

receipts in order to qualify as a small business concern. This standard

also applies in determining whether an entity is a small business for

purposes of the RFA.

17. Issues in applying the definition of a ``small business''. As

discussed below, we could not precisely apply the foregoing definition

of ``small business'' in developing our estimates of the number of

small entities to which the rules will apply. Our estimates reflect our

best judgments based on the data available to us.

An element of the definition of ``small business'' is that the

entity not be dominant in its field of operation. We were unable at

this time to define or quantify the criteria that would establish

whether a specific television station is dominant in its field of

operation. Accordingly, the following estimates of small businesses to

which the new rules will apply do not exclude any television station

from the definition of a small business on this basis and are therefore

over inclusive to that extent. An additional element of the definition

of ``small business'' is that the entity must be independently owned

and operated. As discussed further below, we could not fully apply this

criterion, and our estimates of small businesses to which the rules may

apply may be over inclusive to this extent. The SBA's general size

standards are developed taking into account these two statutory

criteria. This does not preclude us from taking these factors into

account in making our estimates of the numbers of small entities.

18. Television station estimates based on census data. The Notice

of Proposed Rule Making will affect full service television stations,

TV translator facilities, and LPTV stations. The Small Business

Administration defines a television broadcasting station that has no

more than $10.5 million in annual receipts as a small

business.9 Television broadcasting stations consist of

establishments primarily engaged in broadcasting visual programs by

television to the public, except cable and other pay television

services.10 Included in this industry are commercial,

religious, educational, and other television stations.11

Also included are establishments primarily engaged in television

broadcasting and which produce taped television program

materials.12 Separate establishments primarily engaged in

producing taped television program materials are classified under

another SIC number. 13

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\9\ 13 CFR 121.201, Standard Industrial Code (SIC) 4833 (1996).

\10\ Economics and Statistics Administration, Bureau of Census,

U.S. Department of Commerce, 1992 Census of Transportation,

Communications and Utilities, Establishment and Firm Size, Series

UC92-S-1, Appendix A-9 (1995).

\11\ Id. See Executive Office of the President, Office of

Management and Budget, Standard Industrial Classification Manual

(1987), at 283, which describes ``Television Broadcasting Stations

(SIC Code 4833) as:

Establishments primarily engaged in broadcasting visual programs

by television to the public, except cable and other pay television

services. Included in this industry are commercial, religious,

educational and other television stations. Also included here are

establishments primarily engaged in television broadcasting and

which produce taped television program materials.

\12\ Economics and Statistics Administration, Bureau of Census,

U.S. Department of Commerce, supra note 7, Appendix A-9.

\13\ Id.; SIC 7812 (Motion Picture and Video Tape Production);

SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services

(producers of live radio and television programs).

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19. There were 1,509 television stations operating in the nation in

1992.14 That number has remained fairly constant as

indicated by the approximately 1,551 operating television broadcasting

stations in the nation as of February 28, 1997.15 For

199216 the number of television stations that produced less

than $10.0 million in revenue was 1,155 establishments, or

approximately 77 percent of the 1,509 establishments.17

Thus, the rules will affect approximately 1,551 television stations;

approximately 1,194 of those stations are considered small

businesses.18 These estimates may overstate the number of

small entities since the revenue figures on which they are based do not

include or aggregate revenues from non-television affiliated companies.

We recognize that the rules may also impact minority and women owned

stations, some of which may be small entities. In 1995, minorities

owned and controlled 37 (3.0%) of 1,221 commercial television stations

in the United States.19 According to the

[[Page 6673]]

U.S. Bureau of the Census, in 1987 women owned and controlled 27 (1.9%)

of 1,342 commercial and non-commercial television stations in the

United States.20

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\14\ FCC News Release No. 31327, Jan. 13, 1993; Economics and

Statistics Administration, Bureau of Census, U.S. Department of

Commerce, supra note 7, Appendix A-9.

\15\ FCC News Release No. 7033, March 6, 1997.

\16\ Census for Communications' establishments are performed

every five years ending with a ``2'' or ``7''. See Economics and

Statistics Administration, Bureau of Census, U.S. Department of

Commerce, supra note 7, at III.

\17\ The amount of $10 million was used to estimate the number

of small business establishments because the relevant Census

categories stopped at $9,999,999 and began at $10,000,000. No

category for $10.5 million existed. Thus, the number is as accurate

as it is possible to calculate with the available information.

\18\ We use the 77 percent figure of TV stations operating at

less than $10 million for 1992 and apply it to the 1997 total of

1551 TV stations to arrive at 1,194 stations categorized as small

businesses.

\19\ Minority Commercial Broadcast Ownership in the United

States, U.S. Dep't of Commerce, National Telecommunications and

Information Administration, The Minority Telecommunications

Development Program (``MTDP'') (April 1996). MTDP considers minority

ownership as ownership of more than 50% of a broadcast corporation's

stock, voting control in a broadcast partnership, or ownership of a

broadcasting property as an individual proprietor. Id. The minority

groups included in this report are Black, Hispanic, Asian, and

Native American.

\20\ See Comments of American Women in Radio and Television,

Inc. in MM Docket No. 94-149 and MM Docket No. 91-140, at 4 n.4

(filed May 17, 1995), citing 1987 Economic Censuses, Women-Owned

Business, WB87-1, U.S. Dep't of Commerce, Bureau of the Census,

August 1990 (based on 1987 Census). After the 1987 Census report,

the Census Bureau did not provide data by particular communications

services (four-digit Standard Industrial Classification (SIC) Code),

but rather by the general two-digit SIC Code for communications

(#48). Consequently, since 1987, the U.S. Census Bureau has not

updated data on ownership of broadcast facilities by women, nor does

the FCC collect such data. However, we sought comment on whether the

Annual Ownership Report Form 323 should be amended to include

information on the gender and race of broadcast license owners.

Policies and Rules Regarding Minority and Female Ownership of Mass

Media Facilities, Notice of Proposed Rule Making, 10 FCC Rcd 2788,

2797 (1995), 60 FR 06068, February 1, 1995.

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20. There are currently 4,977 TV translator stations and 1,952 LPTV

stations which would be affected by the allocation policy and other

policies in this proceeding.21 The Commission does not

collect financial information of any broadcast facility and the

Department of Commerce does not collect financial information on these

broadcast facilities. We will assume for present purposes, however,

that most of these broadcast facilities, including LPTV stations, could

be classified as small businesses. As indicated earlier, approximately

77 percent of television stations are designated under this analysis as

potentially small business. Given this, LPTV and TV translator stations

would not likely have revenues that exceed the SBA maximum to be

designated as small businesses.

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\21\ FCC News Release No. 7033, March 6, 1997.

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21. Alternative classification of small television stations. An

alternative way to classify small television stations is by the number

of employees. The Commission currently applies a standard based on the

number of employees in administering its Equal Employment Opportunity

(``EEO'') rule for broadcasting.22 Thus, radio or television

stations with fewer than five full-time employees are exempted from

certain EEO reporting and record keeping requirements.23 We

estimate that the total number of commercial television stations with 4

or fewer employees is 132 and that the total number of noncommercial

educational television stations with 4 or fewer employees is

136.24

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\22\ The Commission's definition of a small broadcast station

for purposes of applying its EEO rule was adopted prior to the

requirement of approval by the Small Business Administration

pursuant to Section 3(a) of the Small Business Act, 15 U.S.C.

632(a), as amended by section 222 of the Small Business Credit and

Business Opportunity Enhancement Act of 1992, Public Law 102-366,

section 222(b)(1), 106 Stat. 999 (1992), as further amended by the

Small Business Administration Reauthorization and Amendments Act of

1994, Public Law 103-403, section 301, 108 Stat. 4187 (1994).

However, this definition was adopted after public notice and an

opportunity for comment. See Report and Order in Docket No. 18244,

23 FCC 2d 430 (1970).

\23\ See, e.g., 47 CFR 73.3612 (Requirement to file annual

employment reports on Form 395-B applies to licensees with five or

more full-time employees); First Report and Order in Docket No.

21474 (In the Matter of Amendment of Broadcast Equal Employment

Opportunity Rules and FCC Form 395), 70 FCC 2d 1466 (1979). The

Commission is currently considering how to decrease the

administrative burdens imposed by the EEO rule on small stations

while maintaining the effectiveness of our broadcast EEO

enforcement. Order and Notice of Proposed Rule Making in MM Docket

No. 96-16 (In the Matter of Streamlining Broadcast EEO Rule and

Policies, Vacating the EEO Forfeiture Policy Statement and Amending

Section 1.80 of the Commission's Rules to Include EEO Forfeiture

Guidelines), 11 FCC Rcd 5154 (1996), 61 FR 9964, March 12, 1996. One

option under consideration is whether to define a small station for

purposes of affording such relief as one with ten or fewer full-time

employees. Id. at para. 21.

\24\ We base this estimate on a compilation of 1995 Broadcast

Station Annual Employment Reports (FCC Form 395-B), performed by

staff of the Equal Opportunity Employment Branch, Mass Media Bureau,

FCC.

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22. We have concluded that the 746-806 MHz band can be recovered

immediately, and that it is in the public interest to reallocate this

spectrum to uses in addition to TV broadcasting. We believe that such a

reallocation is possible while continuing to protect TV. There are 95

full power TV stations, either operating or with approved construction

permits, in Channel 60-69. There are also nine proposed stations, and

approximately 15 stations will be added during the DTV transition

period, for a total of approximately 110 nationwide. There are also

approximately 1,366 LPTV stations and TV translator stations in the

band, operating on a secondary basis to full power TV stations. We

propose to immediately reallocate the 746-806 MHz band in order to

maximize the public benefit available from its use.

23. The RFA also includes small governmental entities as a part of

the regulatory flexibility analysis.25 The definition of a

small governmental entity is one with a population of fewer than

50,000.26 There are approximately 85,006 governmental

entities in the nation.27 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 have

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 50,000.28 The Census Bureau

estimates that this ratio is approximately accurate for all

governmental entities. Thus, of the approximately 85,006 governmental

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

that may be affected by our rules.

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\25\ 5 U.S.C. 601(5).

\26\ Id.

\27\ 1992 Census of Governments, U.S. Bureau of the Census, U.S.

Department of Commerce.

\28\ Id.

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F. Description of Projected Reporting, Record Keeping and Other

Compliance Requirements

24. None.

G. Significant Alternatives Considered and Rejected

25. We do not provide LPTV and TV translator stations with the same

protection afforded to full-power TV stations. Because of the large

number of such stations, protecting them would significantly diminish

the utility of the 746-806 MHz band to both public safety and

commercial users. Also, LPTV and TV translator stations are secondary

in this band, and we have made public safety and commercial services

primary in the band. We affirm measures which will allow as many LPTV

and TV translator stations as possible to remain in operation until the

end of the DTV transition period. We continue the secondary status of

these stations, so that they will not be required to change or cease

their operations until they actually interfere with one of the newly-

allocated services.

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

Proposed Rules

26. None.

List of Subjects in 47 CFR Part 2

Frequency allocations and radio treaty matters, Radio.

Federal Communications Commission.

William F. Caton,

Deputy Secretary.

Rules Changes

For the reasons discussed in the preamble part 2 of title 47 of the

Code of Federal Regulations, is amended as follows:

[[Page 6674]]

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL

RULES AND REGULATIONS

1. The authority citation for part 2 continues to read as follows:

Authority: 47 U.S.C. 154, 302, 303, 307, and 336, unless

otherwise noted.

2. Section 2.106, the Table of Frequency Allocations, is amended as

follows:

a. Remove the existing entries for 614-790 MHz and 790-806 MHz.

b. Add entries in numerical order for 614-746 MHz through 794-

806MHz.

c. In the International Footnotes under heading I., add footnotes

S5.293, S5.296, S5.300, S5.309, S5.310, S5.311, S5.312, S5.313, S5.314,

S5.315, and S5.316 in numerical order.

d. In the Non-Government (NG) Footnotes, remove footnotes NG30 and

NG43, revise footnote NG149, and add in numerical order footnotes NG158

and NG159.

The revisions and additions read as follows:

Sec. 2.106 Table of Frequency Allocations.

* * * * *

International table United States table FCC use designators

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

Government Non-

Region 2-- Region 3-- --------------- Government

Region 1-- allocation MHz allocation MHz --------------- Rule Special-use

allocation MHz Allocation Allocation part(s) frequencies

MHz MHz

(1) (2) (3) (4) (5) (6) (7)

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

* * * * * * *

614-746 614-746 614-746 614-746 614-746 RADIO

BROADCASTING BROADCASTING FIXED BROADCASTING BROADCAST

Fixed MOBILE (TV) (73)

Mobile BROADCASTING Auxiliary

Broadcasti

ng (74)

S5.296 S5.300 S5.293 S5.309

S5.311 S5.310

S5.312 S5.311 S5.311 NG128 NG149

746-764 746-764 746-764 746-764 746-764 PRIVATE

BROADCASTING BROADCASTING FIXED FIXED LAND

Fixed MOBILE MOBILE MOBILE

Mobile BROADCASTING BROADCASTING (90)

RADIO

BROADCAST

(TV) (73)

WIRELESS

COMMUNICAT

IONS (27)

Auxiliary

Broadcasti

ng (74)

S5.296 S5.300 S5.293 S5.309

S5.311 S5.310 S5.311 NG128 NG159

S5.312 S5.311

764-776 764-776 764-776 764-776 764-776

BROADCASTING BROADCASTING FIXED FIXED PRIVATE

Fixed MOBILE MOBILE LAND

Mobile BROADCASTING MOBILE

(90)

Auxiliary

Broadcasti

ng (74)

S5.312 S5.313

S5.314

S5.315 S5.316 S5.293 S5.309 S5.311 NG128 NG159

S5.310

776-790 776-790 776-790 776-790 776-790

BROADCASTING BROADCASTING FIXED FIXED PRIVATE

Fixed MOBILE MOBILE LAND

Mobile BROADCASTING BROADCASTING MOBILE

(90)

RADIO

BROADCAST

(TV) (73)

WIRELESS

COMMUNICAT

IONS (27)

Auxiliary

Broadcasti

ng (74)

S5.312 S5.313

S5.314

S5.315 S5.316

S5.293 S5.309 S5.311 NG128 NG158

S5.310 NG159

790-794 790-794 790-794 790-794 790-794

FIXED BROADCASTING FIXED FIXED PRIVATE

BROADCASTING Fixed MOBILE MOBILE LAND

Mobile BROADCASTING BROADCASTING MOBILE

(90)

RADIO

BROADCAST

(TV) (73)

WIRELESS

COMMUNICAT

IONS (27)

Auxiliary

Broadcasti

ng (74)

[[Page 6675]]

S5.312 S5.313

S5.314

S5.315 S5.316 S5.293 S5.309 S5.311 NG128 NG159

S5.310

794-806 794-806 794-806 794-806 794-806

FIXED BROADCASTING FIXED FIXED PRIVATE

BROADCASTING Fixed MOBILE MOBILE LAND

Mobile BROADCASTING MOBILE

(90)

Auxiliary

Broadcasti

ng (74)

S5.312 S5.313

S5.314

S5.315 S5.316 S5.293 S5.309 NG128 NG158

S5.310 NG159

* * * * * * *

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

International Footnotes

* * * * *

I. New ``S'' Numbering Scheme

* * * * *

S5.293 Different category of service: in Chile, Colombia, Cuba,

the United States, Guyana, Honduras, Jamaica, Mexico and Panama, the

allocation of the bands 470-512 MHz and 614-806 MHz to the fixed and

mobile services is on a primary basis, (see No. S5.33), subject to

agreement obtained under Article 14/No. S9.21.

S5.296 Additional allocation: in Germany, Austria, Belgium,

Cyprus, Denmark, Spain, Finland, France, Ireland, Israel, Italy,

Libya, Malta, Morocco, Monaco, Norway, the Netherlands, Portugal,

the United Kingdom, Sweden, Switzerland, Swaziland, Syria, Tunisia

and Turkey, the band 470-790 MHz is also allocated on a secondary

basis to the land mobile service, intended for applications

ancillary to broadcasting. Stations of the land mobile service in

the countries mentioned in this footnote, shall not cause harmful

interference to existing or planned stations operating in accordance

with the Table of Frequency Allocations in countries other than

those listed in this footnote.

S5.300 Additional allocation: in Israel, Libya, Syria and

Sudan, the band 582-790 MHz is also allocated to the fixed and

mobile, except aeronautical mobile, services on a secondary basis.

S5.309 Different category of service: in Costa Rica, El

Salvador and Honduras, the allocation of the band 614-806 MHz to the

fixed service is on a primary basis (see No. S5.33), subject to

agreement obtained under Article 14/No. S9.21.

S5.310 Additional allocation: in Cuba, the band 614-890 MHz is

also allocated to the radionavigation service on a primary basis,

subject to agreement obtained under Article 14/No. S9.21.

S5.311 Within the frequency band 620-790 MHz, assignments may

be made to television stations using frequency modulation in the

broadcasting-satellite service subject to agreement between the

administrations concerned and those having services, operating in

accordance with the Table, which may be affected (see Resolutions 33

and 507). Such stations shall not produce a power flux-density in

excess of the value-129 dB(W/m2) for angles of arrival

less than 20 deg. (see Recommendation 705) within the territories of

other countries without the consent of the administrations of those

countries.

S5.312 Additional allocation: in Armenia, Azerbaijan, Belarus,

Bulgaria, Georgia, Hungary, Kazakhstan, Latvia, Lithuania, Moldova,

Mongolia, Uzbekistan, Poland, Kyrgyzstan, Slovakia, the Czech

Republic, Romania, Russia, Tajikistan, Turkmenistan and Ukraine, the

band 645-862 MHz is also allocated to the aeronautical

radionavigation service on a primary basis.

S5.313 Alternative allocation: in Spain and France, the band

790-830 MHz is allocated to the broadcasting service on a primary

basis.

S5.314 Additional allocation: in Austria, Italy, the United

Kingdom and Swaziland, the band 790-862 MHz is also allocated to the

land mobile service on a secondary basis.

S5.315 Alternative allocation: in Greece, Italy, Morocco and

Tunisia, the band 790-838 MHz is allocated to the broadcasting

service on a primary basis.

S5.316 Additional allocation: in Germany, Bosnia and

Herzegovina, Burkina Faso, Cameroon, Cote d'Ivoire, Croatia,

Denmark, Egypt, Finland, Israel, Kenya, The Former Yugoslav Republic

of Macedonia, Libya, Liechtenstein, Monaco, Norway, the Netherlands,

Portugal, Sweden, Switzerland and Yugoslavia, the band 790-830 MHz,

and in these same countries and in Spain, France, Gabon, Malta and

Syria, the band 830-862 MHz, are also allocated to the mobile,

except aeronautical mobile, service on a primary basis. However,

stations of the mobile service in the countries mentioned in

connection with each band referred to in this footnote shall not

cause harmful interference to, or claim protection from, stations of

services operating in accordance with the Table in countries other

than those mentioned in connection with the band.

* * * * *

Non-Government (NG) Footnotes

* * * * *

NG149 The frequency bands 54-72 MHz, 76-88 MHz, 174-216 MHz,

470-512 MHz, 512-608 MHz, and 614-746 MHz are also allocated to the

fixed service to permit subscription television operations in

accordance with Part 73 of the rules.

* * * * *

NG158 The frequency bands 764-776 MHz and 794-806 MHz are

available for assignment exclusively to the public safety services,

to be defined in Docket No. WT 96-86.

NG159 Full power analog television stations licensed pursuant

to applications filed before January 2, 2001, and new digital

television (DTV) broadcasting operations in the 746-806 MHz band

will be entitled to protection from harmful interference until the

end of the DTV transition period. After the end of the DTV

transition period, the Commission may assign licenses in the 746-806

MHz band without regard to existing television and DTV operations.

Low power television and television translators in the 746-806

MHz band must cease operations in the band at the end of the DTV

transition period.

* * * * *

[FR Doc. 98-2757 Filed 2-9-98; 8:45 am]

BILLING CODE 6712-01-P