1998 Biennial Regulatory ReviewPrivate Land Mobile Radio Services

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 98-182, RM-9222; FCC 98-251]

1998 Biennial Regulatory Review--Private Land Mobile Radio

Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document proposes several amendments to the Commission's

Rules as part of its 1998 biennial review of regulations. Additionally,

this document addresses certain rules regarding extended implementation

periods for public safety licensees, and an ex parte filing in the

Commission's Refarming Proceeding, PR Docket No. 92-235, regarding

trunking on frequencies in the bands between 150 and 512 MHz. This

document proposes various rule changes applicable to the Private Land

Mobile Radio Services that will either simplify and upgrade part 90

and/or be deregulatory in nature. The proposed rules will reduce the

regulatory burden on licensees, and will promote more efficient and

flexible use of the private land mobile radio frequency spectrum.

DATES: Comments are due January 4, 1999, and reply comments are due

January 22, 1999.

ADDRESSES: Federal Communications Commission, Office of the Secretary,

Room 222, Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT: Gene Thomson, Policy and Rules Branch,

Public Safety and Private Wireless Division, Wireless

Telecommunications Bureau, (202) 418-0680.

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

of Proposed Rule Making, (``Notice''), WT Docket No. 98-182, FCC 98-

251, adopted September 30, 1998, and released October 20, 1998. The

full text of this document is available for inspection and copying

during normal business hours in the FCC Reference Center, Room 246,

1919 M Street N.W. Washington, D.C. The complete text may be purchased

from the Commission's copy contractor, ITS, Inc., 1231 20th St. N.W.,

Washington, D.C. 20036, telephone (202) 857-3800. The complete (but

unofficial) text is also available on the Commission's Internet site at

http://www.fcc.gov/Bureaus/Wireless/Notices/1998/index.html

under the file name ``fcc98251.txt'' in ASCII text and ``fcc98251.wp''

in Word Perfect format.

Synopsis of the Notice of Proposed Rule Making

1. The Commission has released a Notice of Proposed Rule Making

that proposes several amendments to the part 90 Private Land Mobile

Radio Services rules. This action is part of our 1998 biennial review

of regulations pursuant to Section 11 of the Communications Act of

1934, as amended. Section 11 requires us to review all our regulations

applicable to providers of telecommunications service and determine

whether any rule is no longer in the public interest as a result of

meaningful economic competition between providers of telecommunications

service, and whether such regulations should be deleted or modified.

However, we believe it is appropriate to review all of our regulations

relating to administering wireless services, not just those pertaining

to providers of a telecommunications service, to determine which

regulations can be streamlined or eliminated. A comprehensive review of

part 90 of the Commission's Rules determined which regulations were

either not in the public interest or were obsolete, overly complex,

required editorial change, or redundant in nature.

2. The document proposes:

a. to amend 47 CFR 90.35(c)(60) to indicate that, in addition to

permitting the use of the listed frequencies at any location for low

power, non-voice operation, voice operation will be permitted when the

frequencies are used specifically for cargo handling purposes.

b. to amend 47 CFR 90.149(a) to provide that licenses for stations

authorized under part 90 will be issued for a term not to exceed ten

years from the date of initial issuance or renewal.

c. to amend 47 CFR 90.155 to permit any public safety applicant to

seek extended implementation authorization pursuant to the provisions

of 47 CFR 90.629.

d. to amend 47 CFR 90.175(i)(14), to require that applicants for

any of the fifteen 220 MHz public safety channels set forth in 47 CFR

90.719(c) and 90.720, submit their applications to a public safety

frequency coordinator for frequency coordination prior to submission of

the applications to the Commission.

e. to amend 47 CFR 90.179 to provide that a radio facility

authorized to a public safety licensee may be shared with a Federal

government entity on a cost-shared, non-profit basis.

3. Additionally, the document requests comments on: (1) An ex parte

filing in the Commission's Refarming Proceeding, PR Docket No. 92-235,

regarding trunking on frequencies in the bands between 150 and 512 MHz;

(2) the Land Mobile Communications Council's suggestion that

decentralized trunking systems be designated as such on the licensees'

authorizations, and whether two separate authorizations are needed for

``hybrid'' trunked systems; (3) whether the licensing requirement can

be eliminated for certain part 90 frequencies and; (4) the concept of

Adjacent Channel Couples Power as proposed by Motorola, Inc. as an

alternative approach to emission masks for limiting out-of-band

emissions. The document proposes these rule changes applicable to the

Private Land Mobile Radio Services that will either simplify and

upgrade part 90 and/or be deregulatory in nature. The document also

invites commenters to submit information on the costs and benefits of

the rules at issue in this proceeding and of the Commissions proposed

modifications. The document does not address the part 90 Commercial

Radio Services.

Administrative Matters

Initial Regulatory Flexibility Analysis

4. As required by the Regulatory Flexibility Act (``RFA''), the

Commission has prepared this present Initial Regulatory Flexibility

Analysis (``IRFA'') of the possible significant economic impact on

small entities by the policies and rules proposed in this Notice of

Proposed Rule Making (``Notice''). Written public comments are

requested on this IRFA. Comments must be identified as responses to the

IRFA and must be filed by the deadlines for comments on this Notice.

The Commission will send a copy of the Notice, including this IRFA, to

the Chief Counsel for Advocacy of the Small Business Administration.

See 5 U.S.C. 603(a).

A. Need For, and Objectives Of, the Proposed Rules

5. Although not required by statute, we initiate this proceeding in

conjunction with the Commission's 1998 biennial regulatory under

Section 11 of the Communications Act of 1934, 47 U.S.C. 161. Section 11

requires us to

[[Page 65569]]

review all our regulations applicable to providers of

telecommunications service and determine whether any rule is no longer

in the public interest as a result of meaningful economic competition

between providers of telecommunications service, and whether such

regulations should be deleted or modified. As part of our biennial

review of regulations required under Section 11, however, we believe it

is appropriate to review all of our regulations relating to

administering wireless services, not just those pertaining to providers

of a telecommunications service, to determine which regulations can be

streamlined or eliminated. Therefore, to streamline part 90 of the

rules and reduce regulatory requirements, the Commission proposes to

amend part 90 of its rules to: (1) Modify the language of specific

rules to eliminate the confusions that applicants have had, which in

many cases, has caused additional effort on the part of the applicant

and resultant delays in application processing; (2) extend all five-

year license terms to ten years, thus reducing the licensee's burden

and costs for license renewal; (3) for stations with an eight-month

construction period, increase the time in which a station must be

placed in operation from eight to twelve months; (4) provide extended

implementation periods for public safety licensees under identical

parameters regardless of the operating frequency band and; (5) permit

public safety licensees with excess communications capacity to provide

communications service to the Federal Government on a non-profit, cost-

shared basis. We believe these changes will encourage growth of land

mobile systems and enhance telecommunications offerings for consumers,

producers and new entrants.

B. Legal Basis

6. Authority for issuance of this Notice of Proposed Rulemaking is

contained in Sections 4(i) and 303(r) of the Communications Act of

1934, as amended, 47 U.S.C. 154(i) and 303(r).

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

the Proposed Rules Will Apply

7. 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 ``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'').

Pursuant to 5 U.S.C. 601(3), the statutory definition of a small

business applies ``unless an agency after consultation with the Office

of Advocacy of the SBA and after opportunity for public comment,

establishes one or more definitions of such term which are appropriate

to the activities of the agency and publishes such definition(s) in the

Federal Register.''

8. Depending upon individual circumstances, the various proposed

rules will apply to only certain businesses and local government

entities that operate radio systems for their own internal use in the

Private Land Mobile Radio (PLMR) services. PLMR systems serve an

essential role in a vast range of industrial, business, land

transportation, and public safety activities. These radios are used by

companies of all sizes operating in all U.S. business categories.

Because of the vast array of PLMR users, the Commission has not

developed nor would it be possible to develop a definition of small

entities specifically applicable to PLMR users. For the purpose of

determining whether a licensee is a small business as defined by the

SBA, each licensee would need to be evaluated within its own business

area.

9. We note that the Commission's 1994 Annual Report indicates that

at the end of fiscal year 1994, there were approximately 292,000

stations and 5.4 million transmitters operating just in the 800 and 900

MHz and 24 GHz bands. Further, because any entity engaged in a business

activity is eligible to hold a PLMR license, these proposed rules could

potentially impact every small business in the U.S.

10. 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 a population of less 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 proposed rules. Therefore in this IRFA, we seek comment

on the number of small businesses which could be impacted by the

proposed rule changes.

D. Description of Projected Reporting, Recordkeeping and Other

Compliance Requirements

11. No new reporting, recordkeeping, or other compliance

requirements would be imposed on applicants or licensees as a result of

the actions proposed in this rulemaking proceeding.

E. Steps Taken to Minimize Significant Economic Impact on Small

Entities, and Significant Alternatives Considered

12. Many of our proposed rules will result in economic benefits to

small business and local government entities. We believe that there

would be several public interest benefits gained by extending the

license term for all part 90 licensees to ten years. First, there would

be an economic benefit to new applicants in that their licensing costs

would effectively be lowered. Under the Commission's current license

fee structure, a part 90 licensee with a ten-year authorization has an

economic advantage over a licensee with a five-year license in that it

enjoys a longer license term at less cost. Second, under our proposal,

existing five-year licenses would receive a ten-year renewal period

upon expiration of the five-year license, thus halving the licensee's

long-term renewal costs.

13. Regarding the proposal to increase the time in which a station

must be placed in operation from eight to twelve months, we envision

that this change in the regulatory treatment of PLMRS stations would

reduce the necessity for a licensee to request an extension of the time

to construct, and thus would eliminate the costs necessary to make such

a request.

14. The distinction between systems operating above and below 800

MHz is about to change because recently adopted rules will lead to the

availability of new narrowband equipment and increase the possibility

of using trunked equipment. This will, in turn, lead to larger, more

complex public safety systems. Our proposal to permit ``slow growth''

extended implementation periods under the same parameters for systems

operating below and above 800 MHz will enable faster system planning

and implementation, resulting in reduced costs to licensees.

15. Permitting a public safety licensee to share its station with a

Federal government entity, is on a non-profit, cost-sharing basis would

be beneficial to

[[Page 65570]]

both parties. It would lower the operational costs of the public safety

system in that the public safety licensee would obtain cost-sharing

benefits from the Federal agency, and it would enable the Federal

agency to obtain needed communications at a lower cost than if the

Federal agency had to implement its own communications system.

16. We seek comments on these tentative conclusions.

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

Proposed Rules

17. None.

Ordering Clauses

18. It is ordered that, pursuant to Sections 4(i), 4(j), 303(r),

and 403 of the Communications Act of 1934, as amended, 47 U.S.C.

154(i), 154(j), 303(r) and 403, notice is hereby given of proposed

amendments to part 90 of the Commission's Rules, 47 CFR part 90, in

accordance with the proposals, discussions, and statement of issues in

this Notice of Proposed Rulemaking.

19. It is further ordered that the Petition for Rulemaking

submitted by the Association of Public-Safety Communications Officials-

International, Inc. is granted to the extent indicated in the Notice of

Proposed Rulemaking.

20. It is further ordered that the Commission's Office of Public

Affairs, Reference Operations Division, shall send a copy of this

Notice of Proposed Rulemaking, including the Initial Regulatory

Flexibility Analysis to the Chief Counsel for Advocacy of the Small

Business Administration.

List of Subjects in 47 CFR Part 90

Communications equipment, Radio.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal

Communications Commission proposes to amend 47 CFR part 90 as follows:

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

1. The authority citation for part 90 continues to read as follows:

Authority: Sections 4, 303, and 332, 48 Stat. 1066, 1082, as

amended: 47 U.S.C. 154, 303, and 332, unless otherwise noted.

2. Section 90.1 is amended by revising paragraph (b) to read as

follows:

Sec. 90. 1 Basis and purpose.

* * * * *

(b) Purpose. This part states the conditions under which radio

communications systems may be licensed and used in the Public Safety

Pool, Industrial/Land Transportation Pool, and the Radiolocation Radio

Service. These rules do not govern radio systems employed by agencies

of the Federal Government.

3. Section 90.35 is amended by revising paragraph (c)(60)(i) to

read as follows:

Sec. 90.35 Industrial/Business Pool.

* * * * *

(c) * * *

(60) (i) Frequencies subject to this limitation may be used for

voice or non-voice communications when utilized for cargo handling from

a dock, or a cargo handling facility, to a vessel alongside. Any number

of the frequencies may be authorized to one licensee for the purpose.

Mobile relay stations may be temporarily installed at or in the

vicinity of a dock or cargo handling facility and used when a vessel is

alongside the dock or cargo handling facility.

* * * * *

4. Section 90.149 is amended by revising paragraph (a) to read as

follows:

Sec. 90. 149 License term.

(a) Licenses for stations authorized under this part will be issued

for a term not to exceed ten (10) years from the date of the original

issuance, modification, or renewal.

* * * * *

5. Section 90.155 is revised to read as follows:

Sec. 90.155 Time in which station must be placed in operation.

(a) All stations authorized under this part, except as provided in

Secs. 90.629, 90.665, and 90.685, must be placed in operation within

twelve (12) months from the date of grant or the authorization cancels

automatically and must be returned to the Commission.

(b) A local government entity in the Public Safety Pool, applying

for any frequency in this part, may also seek extended implementation

authorization pursuant to Sec. 90.629.

(c) For purposes of this section, a base station is not considered

to be placed in operation unless at least one associated mobile station

is also placed in operation. See also Secs. 90.633(d) and 90.631(f).

(d) Multilateration LMS systems authorized in accordance with

Sec. 90.353 must be constructed and placed in operation within twelve

(12) months from the date of grant or the authorization cancels

automatically and must be returned to the Commission. MTA-licensed

multilateration LMS systems will be considered constructed and placed

in operation if such systems construct a sufficient number of base

stations that utilize multilateration technology (see paragraph (e) of

this section) to provide multilateration location service to a

substantial portion of at least one BTA in the MTA.

(e) A multilateration LMS station will be considered constructed

and placed in operation if it is built in accordance with its

authorized parameters and is regularly interacting with one or more

other stations to provide location service, using multilateration

technology, to one or more mobile units. Specifically, LMS

multilateration stations will only be considered constructed and placed

in operation if they are part of a system that can interrogate a

mobile, receive the response at 3 or more sites, compute the location

from the time of arrival of the responses and transmit the location

either back to the mobile or to a subscriber's fixed site.

(f) For purposes of this section, a station licensed to provide

commercial mobile radio service is not considered to have commenced

service unless it provides service to at least one unaffiliated party.

(g) Application for extension of time to commence service may be

made on FCC Form 600. Extensions of time must be filed prior to the

expiration of the construction period. Extensions will be granted only

if the licensee shows that the failure to commence service is due to

causes beyond its control. No extensions will be granted for delays

caused by lack of financing, lack of site availability, for the

assignment or transfer of control of an authorization, or for failure

to timely order equipment. If the licensee orders equipment within 90

days of the license grant, a presumption of due diligence is created.

(h) An application for modification of an authorization (under

construction) at the existing location does not extend the initial

construction period. If additional time to commence service is

required, a request for such additional time must be submitted on FCC

Form 600, either separately or in conjunction with the submission of

the FCC Form 600 requesting modification.

Sec. 90.167 [Removed]

6. Section 90.167 is removed.

7. Section 90.175 is amended by revising paragraph (i)(14) to read

as follows:

[[Page 65571]]

Sec. 90.175 Frequency coordination requirements.

* * * * *

(i) * * *

(14) Except for applications for the frequencies set forth in

Secs. 90.719(c) and 90.720, applications for frequencies in the 220-222

MHz band.

* * * * *

8. Section 90.177 is amended by revising the second sentence of

paragraph (d)(2) to read as follows:

Sec. 90.177 Protection of certain radio receiving locations.

* * * * *

(d) * * *

(2) * * * Prospective applicants should communicate with: Chief,

Compliance and Information Bureau, Federal Communications Commission,

Washington, D.C. 20554.

* * * * *

9. Section 90.179 is amended by adding paragraph (h) to read as

follows:

Sec. 90.179 Shared use of radio stations.

* * * * *

(h) Licensees authorized to operate radio systems on Public Safety

Pool frequencies designated in Sec. 90.20 may share their facilities

with Federal Government entities on a non-profit, cost-shared basis.

Such a sharing arrangement is subject to the provisions of paragraphs

(b), (d), and (e) of this section.

10. Section 90.187 is amended by adding paragraph (d) to read as

follows:

Sec. 90.187 Trunking in the bands between 150 and 512 MHz.

* * * * *

(d) The maximum number of frequency pairs that may be assigned at

any one time for the operation of a trunked radio station (class of

station YG or YW) is ten.

11. Section 90.421 is revised to read as follows:

Sec. 90.421 Operation of mobile station units not under the control of

the licensee.

Mobile stations, as defined in Sec. 90.7 include vehicular-mounted

and hand-held units. Such units may be operated by persons other than

the licensee, as provided for below, when necessary for the licensee to

meet its requirements in connection with the activities for which it is

licensed. If the number of such units, together with units operated by

the licensee, exceeds the number of mobile units authorized to the

licensee, license modification is required. The licensee is responsible

for taking necessary precautions to prevent unauthorized operation of

such units not under its control.

(a) Public Safety Pool. (1) Mobile units licensed in the Public

Safety Pool may be installed in any vehicle which in an emergency would

require cooperation and coordination with the licensee, and in any

vehicle used in the performance, under contract, of official activities

of the licensee. This provision does not permit the installation of

radio units in non-emergency vehicles that are not performing

governmental functions under contract but with which the licensee might

wish to communicate.

(2) Mobile units licensed under Sec. 90.20(a)(2)(iii) may be

installed in a vehicle or be hand-carried for use by any person with

whom cooperation or coordinations is required for medical services

activities.

(b) Industrial/Business Pool. Mobile units licensed in the

Industrial/Business Pool may be installed in vehicles of persons

furnishing under contract to the licensee and for the duration of the

contract, a facility or service directly related to the activities of

the licensee.

(c) In addition to the above, frequencies assigned to licensees in

the Private Land Mobile Radio Services may be installed in the

facilities of those who assist the licensee in emergencies and with

whom the licensee must communicate in situations involving imminent

safety to life or property.

12. Section 90.629 is amended by revising paragraphs (a)(1) and

(a)(2) and adding paragraph (f) to read as follows:

Sec. 90.629 Extended implementation period.

* * * * *

(a) * * *

(1) The proposed system will require longer than twelve (12) months

to construct and place in operation because of its purpose, size, or

complexity; or

(2) The proposed system is to be part of a coordinated or

integrated wide-area system which will require more than twelve (12)

months to plan, approve, fund, purchase, construct, and place in

operation; or

* * * * *

(f) Pursuant to Sec. 90.155(b), the provisions of this section

shall apply to local government entities applying for any frequency in

the Public Safety Pool.

[FR Doc. 98-31608 Filed 11-25-98; 8:45 am]

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