Allocation of Spectrum Below 5 GHz Transferred from Federal Government Use

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 26

[ET Docket No. 94-32; FCC 98-212]

Allocation of Spectrum Below 5 GHz Transferred from Federal

Government Use

AGENCY: Federal Communications Commission.

ACTION: Final rule; petitions for reconsideration.

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SUMMARY: The Federal Communications Commission has adopted a Memorandum

Opinion and Order (MO&O) responding to petitions for reconsideration of

the First Report and Order and Second Report and Order regarding the

General Wireless Communications Service (GWCS). The MO&O grants in part

a petition for reconsideration of the Second Report and Order filed by

the Wireless Cable Association International (WCAI), to the extent that

it modifies the rule on antenna structure clearance procedures to

conform with streamlined rules applicable to all services. The MO&O

dismisses in part and denies in part a petition for reconsideration of

the First Report and Order filed by several organizations (Joint

Petitioners), and a petition for reconsideration of the Second Report

and Order filed by the Association for Maximum Service Television, Inc.

(MSTV).

EFFECTIVE DATE: January 22, 1999.

FOR FURTHER INFORMATION CONTACT: Peter G. Wolfe, Policy Division,

Wireless Telecommunications Bureau, (202) 418-1310.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Memorandum Opinion

and Order in ET Docket No. 94-32, FCC 98-212 , adopted on August 26,

1998, and released on November 25, 1998. The complete text of this

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 copy

contractor, International Transcription Service, (202) 857-3800, 1231

20th Street, N.W., Washington, DC 20036.

Synopsis of Memorandum Opinion and Order

1. The Commission adopts a Memorandum Opinion and Order (MO&O)

which grants in part a petition for reconsideration of the Second

Report and Order (Second R&O) in this proceeding (60 FR 40712, August

9, 1998), filed by the Wireless Cable Association International (WCAI).

The MO&O denies WCAI's request that all GWCS licensees be permitted to

partition their service areas because the Commission intends to address

this issue in another proceeding. The MO&O denies a request by WCAI to

license GWCS in Basic Trading Areas (BTAs) rather than Economic Areas

(EAs), and denies in part and dismisses in part a petition for

reconsideration of the First Report and Order (First R&O) (60 FR 13071,

March 10, 1995) filed by the Association for Maximum Service Television

Inc. (MSTV) and several other organizations (Joint Petitioners) and a

petition for reconsideration of the Second R&O filed by MSTV. The

latter two petitions both claim that the Commission exceeded its

statutory authority in creating GWCS and therefore that the Commission

should revisit its decision to establish a licensing structure for the

service.

2. The MO&O first considers a petition for reconsideration of the

First R&O filed by the Joint Petitioners, claiming that the general

allocation of the 4660-4685 MHz band to the Fixed and Mobile services

is overly broad because it will permit an unidentified mix of services

to operate in the band. The Commission disagrees with this argument,

finding that the petitioners merely restate the issues examined and

decided in the First R&0. The MO&O also dismisses the Joint

Petitioners' argument that the specific allocation of the 4660-4685 MHz

band to GWCS is not in the public interest, because the Commission had

not designated the frequency band for GWCS at the time the petition was

filed, and that the Commission subsequently found in the Second R&O

that the designation to GWCS is in the public interest.

3. The MO&O also denies MSTV's petition for reconsideration of the

Second R&O dealing with the specific designation of the band for GWCS.

MSTV contends that the Commission should suspend this allocation and

related assignments pending the resolution of assignment of spectrum to

the Broadcast Auxiliary Service in other

[[Page 71040]]

proceedings. The Commission determines that the arguments and concerns

raised by MSTV were considered and decided in the Second R&O and that

MSTV petition and comments and petitions filed by parties in support of

MSTV provide no new information or arguments that persuade the

Commission that the actions taken in the Second R&O should be changed

or set aside.

4. The MO&O denies a request made by WCAI to license GWCS using

geographic areas known as BTAs rather than EAs. WCAI argues that the

decision made in the Second R&O will seriously prejudice those service

providers (including wireless cable operators) that intend to utilize

GWCS in conjunction with other services that are licensed on the basis

of BTAs. The Commission in denying the request stresses the importance

of providing flexibility for a wide range of services without favoring

any particular existing service. The Commission finds it particularly

appropriate to use a geographical service area designation that is

capable of accommodating a broad range of services where, as here, the

Commission does not have any firm information as to what the uses of

the services are likely to be.

5. WCAI also requests that the Commission should expand the

partitioning option adopted in the Second R&O to allow all GWCS

licensees, not just rural telephone companies, to partition their

service area. The Commission dismisses this request noting that the

issue will be resolved in the Geographic Partitioning and Spectrum

Disaggregation proceeding, WT Docket 96-148 (Report and Order at 62 FR

00653, January 6, 1997, and Further Notice of Proposed Rule Making at

62 FR 00696, January 6, 1997).

6. The MO&O grants the portion of WCAI's petition which asks that

the Commission amend its rules to permit the mounting of antennas on

existing structures that have previously received a ``no hazard''

determination from the Federal Aviation Administration (FAA) without

any additional Commission authorization.1 The Commission

finds that it amended its antenna structure clearance procedures after

the adoption of the Second R & O, and that these amended rules allow

mounting of antennas on existing structures that have already received

a ``no hazard'' determination from the FAA and have been registered

with the Commission without prior Commission approval. Therefore, the

Commission grants WCAI's request by amending part 26 of the rules to

reflect current antenna structure requirements.

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\1\ WCAI indicates that 47 CFR 26.309(a) provides that a GWCS

antenna structure may not be 200 feet or more above ground level

without prior Commission approval.

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Revised Final Regulatory Flexibility Analysis

7. As required by Section 603 of the Regulatory Flexibility Act, 5

U.S.C. 603 (RFA),2 an Initial Regulatory Flexibility

Analysis (IRFA) was incorporated in the First Notice of Proposed

Rulemaking (First NPRM) 3 and a Further Initial Regulatory

Flexibility Analysis (FIRFA) was incorporated in the Second Notice of

Proposed Rulemaking (Second NPRM).4 The Commission sought

written public comments on the proposals in the First NPRM and the

Second NPRM, including on the IRFA and the FIRFA. A Final Regulatory

Flexibility Analysis (FRFA) was incorporated in the Commission's First

R&O in this proceeding and in the Commission's Second R&O. The

Commission's Revised Final Regulatory Flexibility Analysis (RFRFA) in

this MO&O conforms to the RFA, as amended by the Contract With America

Advancement Act of 1996, Public Law No. 104-121, 110 Stat. 847 (1996)

(CWAAA).5

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\2\ Regulatory Flexibility Act, Public Law No. 96-354, 94 Stat.

1164 (enacted Sept. 19, 1980) (Regulatory Flexibility Act).

\3\ 59 FR 59292, November 17, 1994.

\4\ 60 FR 13102, March 10, 1995.

\5\ Title II of the CWAAA is ``The Small Business Regulatory

Enforcement Fairness Act of 1996,'' (SBREFA), codified at 5 U.S.C.

601.

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I. Need For and Objective of the Rules

8. This MO&O streamlines the antenna structure clearance procedures

for General Wireless Communications Services (GWCS) which were adopted

in the Second R&O to conform with the procedures applicable to all

wireless services. The new antenna structure clearance procedures

eliminate the need for Commission approval of antenna structures that

have already been approved by the Federal Aviation Administration

(FAA). A petition for reconsideration contended that no Commission

approval should be required for the mounting of antennas on existing

structures which have received an FAA ``no hazard'' determination. The

Commission concludes that it is in the public interest to apply to GWCS

the streamlined antenna structure clearance rules which were adopted

for all services subsequent to the adoption of the Second R&O.

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

the Final Regulatory Flexibility Analysis

9. No comments were submitted in direct response to the Initial or

Final Regulatory Flexibility Analyses. However, WCAI filed a Petition

for Reconsideration of the Second R&O which contended that the

Commission should amend its rules to permit the mounting of antennas on

existing structures that have previously received a ``no hazard''

determination from the FAA, without any additional Commission

authorization.

III. Projected Reporting, Recordkeeping, and Other Compliance

Requirements of the Rule

10. None. The rule merely requires that GWCS licensees conform to

the applicable antenna structure rules.

IV. Description and Estimate of Small Entities Subject to the Rules

11. The rule adopted in this MO&O will apply to prospective GWCS

licensees. In the Second R&O, the Commission established rules for the

auction of 875 GWCS licenses, and provided that small businesses would

have the benefit of preferential bidding credits and installment

payments. In the Second R&O, the Commission also adopted the small

business definition applicable to broadband PCS, i.e., any firm,

together with its attributable investors and affiliates, with average

gross revenues for the three preceding years not in excess of $40

million.6 Since auctions have not been held for GWCS, we

cannot estimate the number of licensees that fit within this category.

Under the Small Business Administration (SBA) rules applicable to

radiotelephone companies, a small entity is a radiotelephone company

employing fewer than 1,500 persons.7

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\6\ In the Fourth Report and Order in this proceeding ( 63 FR

56573, October 22, 1998), the Commission revised the rules

applicable to GWCS to provide that, in calculating gross revenues

for the purposes of small business eligibility, applicants will be

required to count the gross revenues of the de facto and de jure

controlling interests of the applicant and its affiliates.

\7\ 13 CFR 121.201, Standard Industrial Classification (SIC)

Code 4812.

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12. The 1992 Census of Transportation, Communications, and

Utilities, conducted by the Bureau of the Census, which is the most

recent information available, shows that only 12 radiotelephone firms

out of a total of 1,178 such firms which operated during 1992 had 1,000

or more employees.8

[[Page 71041]]

Given the facts that nearly all radiotelephone companies have fewer

than 1,000 employees and that no reliable estimate of the number of

prospective GWCS licensees can be made, we assume, for purposes of our

evaluations and conclusions in this revised FRFA, that all of the

licenses will be awarded to small entities, as that term is defined by

the SBA.

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\8\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992

Census of Transportation, Communications, and Utilities, UC92-2S-1,

Subject Series, Establishment and Firm Size, Table 5, Employment

Size of Firms: 1992, SIC Code 4812 (issued May 1995).

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V. Steps Taken To Minimize the Burdens on Small Entities

13. The rule adopted in the MO&O reduces the burdens on small

entities placed upon them by the rule adopted in the Second R&O. The

rule adopted in the MO&O accomplishes this objective by permitting the

mounting of antennas on existing structures that have previously

received a ``no hazard'' determination by the FAA, without any

additional Commission authorization, and by applying streamlined

antenna clearance procedures which have been applied to all services.

VI. Significant Alternatives Considered and Rejected

14. The Commission made this change in the antenna clearance rules

in response to a Petition for Reconsideration. The Commission could

have retained the original rule, but the Commission found that its new

antenna clearance rules minimize burdens on all licensees, without

having a negative impact on the public interest or public safety.

VII. Report to Congress

15. The Commission shall send a copy of this Revised Final

Regulatory Flexibility Analysis, together with the MO&O, in a report to

Congress pursuant of the Small Business Regulatory Enforcement Fairness

Act of 1996.9 A copy of the MO&O and this RFRFA (or summary

thereof) shall be sent to the Chief Counsel for Advocacy for the Small

business Administration.

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\9\ 5 U.S.C. 801(a)(1)(A).

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Ordering Clauses

16. As required by Section 603 of the Regulatory Flexibility

Act,10 the Commission has prepared a Revised Final

Regulatory Flexibility Analysis of the expected impact on small

entities of the changes in our rules adopted herein The Revised Final

Regulatory Flexibility Analysis is in this document and in Appendix B

of the full text of the MO&O.

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\10\ 5 U.S.C. 603.

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17. This action is taken pursuant to sections 4(i), 5(c), 302,

303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934,

47 U.S.C. 154(i), 155(c), 302, 303(c), 303(f), 303(g), 303(r).

18. Accordingly, it is ordered that the petition for

reconsideration of Allocation of Spectrum Below 5 GHz Transferred from

Federal Government Use, ET Docket No. 94-32, First Report and Order and

Second Notice of Proposed Rulemaking, filed by the Association for

Maximum Service Television, Inc., the Association of America's Public

Television Stations, Capital Cities/ABC, Inc., CBS, Inc., the Fox

Television Group of companies, the National Association of

Broadcasters, the National Broadcasting Company, Inc., the Public

Broadcasting Service, Inc., and the Radio-Television News Directors

Association is dismissed in part and otherwise is denied.

19. It is further ordered that the petition for reconsideration of

Allocation of Spectrum Below 5 GHz Transferred from Federal Government

Use, ET Docket No. 94-32, Second Report and Order, filed by Association

for Maximum Service Television, Inc., is denied, and the petition for

reconsideration filed by Wireless Cable Association International is

granted in part to the extent discussed , and otherwise is denied.

20. It is further ordered that Part 26 of the Commission's Rules is

amended and will become effective January 22, 1999.

21. It is further ordered that the Director, Office of Public

Affairs, shall send a copy of this Order, including the Revised Final

Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of

the Small Business Administration in accordance with section 603(a) of

the Regulatory Flexibility Act, 5 U.S.C. 603(a).

List of Subjects in 47 CFR Part 26

Radio, General wireless communications service.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Part 26 of title 47 of the Code of Federal Regulations is amended

as follows:

PART 26--GENERAL WIRELESS COMMUNICATIONS SERVICE

1. The authority citation for part 26 continues to read as follows:

Authority: 47 U.S.C. sections 154, 301, 302, 303, 309, and 332,

unless otherwise noted.

2. Add a new section 26.56 to read as follows:

Sec. 26.56 Antenna structures; air navigation safety.

Licensees that own their antenna structures must not allow these

antenna structures to become a hazard to air navigation. In general,

antenna structure owners are responsible for registering antenna

structures with the FCC if required by part 17 of this chapter, and for

installing and maintaining any required marking and lighting. However,

in the event of default of this responsibility by an antenna structure

owner, each FCC permittee or licensee authorized to use an affected

antenna structure will be held responsible by the FCC for ensuring that

the antenna structure continues to meet the requirements of part 17 of

this chapter. See Sec. 17.6 of this chapter.

(a) Marking and lighting. Antenna structures must be marked,

lighted and maintained in accordance with part 17 of this chapter and

all applicable rules and requirements of the Federal Aviation

Administration.

(b) Maintenance contracts. Antenna structure owners (or licensees

and permittees, in the event of default by an antenna structure owner)

may enter into contracts with other entities to monitor and carry out

necessary maintenance of antenna structures. Antenna structure owners

(or licensees and permittees, in the event of default by an antenna

structure owner) that make such contractual arrangements continue to be

responsible for the maintenance of antenna structures in regard to air

navigation safety.

Sec. 26.309 [Removed]

3. Section 26.309 is removed.

[FR Doc. 98-33979 Filed 12-22-98; 8:45 am]

BILLING CODE 6712-01-P