3650-3700 MHz Government Transfer Band

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 2

[ET Docket No. 98-237, FCC 98-337]

3650-3700 MHz Government Transfer Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document proposes to allocate the 3650-3700 MHz band to

the non-Government fixed service on a primary basis. In addition, we

order that applications for use of this band by new or major modified

earth station facilities in the fixed-satellite service (``FSS'') will

no longer be accepted, as December 18, 1998, the release date of this

Notice of Proposed Rule Making and Order. We also propose to delete the

existing Government and non-Government radiolocation service

allocations from the 3650-3700 MHz band, but will grandfather three

existing Government radiolocation sites. We also propose to delete the

unused Government aeronautical radionavigation service allocation from

the 3650-3700 MHz band. The adoption of these proposals would provide

spectrum for new fixed services.

DATES: Comments are due February 16, 1999, reply comments are due March

1, 1999.

ADDRESSES: All filings must be sent to the Commission's Secretary,

Magalie Roman Salas, Office of the Secretary, Federal Communications

Commission, 445 12th Street, SW, Room TW-A325, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Tom Mooring, Office of Engineering and

Technology, (202) 418-2450.

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

of Proposed Rule Making and Order, ET Docket No. 98-237, FCC 98-337,

adopted December 17, 1998, and released December 18, 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, NW, Washington, DC, and also may be purchased from

the Commission's duplication contractor, International Transcription

Service, (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

7, 1998, and released December 18, 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, NW, Washington, DC, and also may be purchased from

the Commission's duplication contractor, International Transcription

Service, (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

Summary of the Notice of Proposed Rule Making and Order

1. Introduction. By this action, we propose to allocate the 3650-

3700 MHz band to the non-Government fixed service on a primary basis.

We envision that this spectrum will be used to provide a broad range of

new fixed point-to-point and point-to-multipoint services, directly

linking residences, businesses, and other fixed locations to an ever-

developing array of networks. Through these new links, traditional

voice telephony and a wide variety of new broadband, high-speed, data

and video services, such as Internet access and video conferencing,

could be delivered to the home and to small businesses. This new fixed

service may thus lead to new and more effective competition to existing

wireline local exchange carrier services by providing for an economical

means to offer competitive ``local loop'' or ``last-mile'' facilities.

One such service that could operate in this band is Fixed Wireless

Access (``FWA''), but we do not intend to constrain use of the band

only to that purpose. In addition, we intend that this proposal will be

helpful in achieving the overarching goal of section 706 of the

Telecommunications Act of 1996, to ``encourage the deployment on a

reasonable and timely basis of advanced telecommunications capability

to all Americans * * * by utilizing * * * measures that promote

competition in the local telecommunications market.''

2

only to that purpose. In addition, we intend that this proposal will be

helpful in achieving the overarching goal of section 706 of the

Telecommunications Act of 1996, to ``encourage the deployment on a

reasonable and timely basis of advanced telecommunications capability

to all Americans * * * by utilizing * * * measures that promote

competition in the local telecommunications market.''

2. To ensure that adequate opportunities exist for the provision of

fixed services in the 3650-3700 MHz band, we will no longer accept

applications for use of this band by new or major modified earth

station facilities in the FSS, as of December 18, 1998, the release

date of the Notice of Proposed Rule Making and Order. Existing earth

stations, however, will be grandfathered. We also propose to delete the

existing Government and non-Government radiolocation service

allocations from the 3650-3700 MHz band, but will grandfather three

existing Government radiolocation sites. In addition, we propose to

delete the unused Government aeronautical radionavigation service

allocation from the 3650-3700 MHz band. Finally, we request comment on

whether, to realize the full potential benefits of this spectrum, the

band should be offered for license as a single 50 megahertz block on

either a nationwide or large regional service area basis.

A. Fixed Service Proposal

3. An important spectrum management goal of the Commission for

terrestrial commercial wireless services is to promote efficient and

flexible use of the electromagnetic spectrum while enabling licensees

to use the spectrum free of harmful interference. Specifically for the

3650-3700 MHz band, our reallocation decision must accommodate

continued use of the band for incumbent earth station reception of FSS

signals--which are significantly weaker than the anticipated

terrestrial service signals--and for incumbent high-powered Government

radars transmitting from three grandfathered sites

ensees

to use the spectrum free of harmful interference. Specifically for the

3650-3700 MHz band, our reallocation decision must accommodate

continued use of the band for incumbent earth station reception of FSS

signals--which are significantly weaker than the anticipated

terrestrial service signals--and for incumbent high-powered Government

radars transmitting from three grandfathered sites. Moreover, our

decision must account for the extremely high emissions that are

produced by high-powered Government fixed and mobile radar operations

in adjacent spectrum below 3650 MHz. In light of this challenging

spectrum sharing environment, we tentatively find that mobile service

use of the 3650-3700 MHz band would be severely constrained but that

the band is well suited for fixed service use. Nonetheless, we believe

that there is a broad range of fixed services that could operate in

this spectrum. In particular, a fixed service allocation in this band

may facilitate an alternative means of providing basic telephone

service, thus mitigating the impact of the local loop bottleneck and

fostering a competitive market structure for direct PSTN access to

residential and small business consumers. A fixed service allocation

also may be used to provide broadband access to the Internet, thus

furthering the general objectives of section 706 to bring competitive,

advanced telecommunications capability to all Americans.

4. Internationally, this type of fixed service is known as FWA and

there is strong interest in providing for these services in the 3400-

3700 MHz frequency range, especially the 3400-3600 MHz band. In the

United States, the 3400-3600 MHz band is not available because it is

heavily used by the military, thus allocation of alternative or

additional spectrum that could be used for this type of service may be

desirable. We believe that the 3650-3700 MHz band is viable for the

provision of some types of FWA services

es in the 3400-

3700 MHz frequency range, especially the 3400-3600 MHz band. In the

United States, the 3400-3600 MHz band is not available because it is

heavily used by the military, thus allocation of alternative or

additional spectrum that could be used for this type of service may be

desirable. We believe that the 3650-3700 MHz band is viable for the

provision of some types of FWA services. Accordingly, we propose to

allocate the 3650-3700 MHz band to the fixed service on a co-primary

basis with incumbent non-Government FSS earth stations and with

Government radiolocation operations from three grandfathered sites.

However, in keeping with our policy favoring a licensee's innovative

use of the spectrum in response to consumer market demand, we do not

intend to designate the allocation for, or to limit use of this

spectrum to, FWA services. Thus, the extent to which FWA--or any other

particular fixed services--would be implemented in the proposed

allocation would be determined solely by market forces. We anticipate

that this spectrum will be initially licensed by competitive bidding

pursuant to the authority granted under section 309(j) of the

Communications Act. We seek comment on our proposal.

5. During the coordination process, NTIA informed us that the

recently enacted statutory provision concerning payment of the

relocation costs of Federal entities does not apply to the 3650-3700

MHz band. Based on our own independent analysis, we reach the same

conclusion.

6. Commenters should also address various technical issues

pertinent to fixed service use of the 3650-3700 MHz band, including

FWA. For example, we are aware that existing FWA technology deployed

internationally in the 3400-3600 MHz band uses Frequency Division

Duplex (``FDD'') technology with either a 50- or 100-megahertz

separation between transmit and receive channels

he same

conclusion.

6. Commenters should also address various technical issues

pertinent to fixed service use of the 3650-3700 MHz band, including

FWA. For example, we are aware that existing FWA technology deployed

internationally in the 3400-3600 MHz band uses Frequency Division

Duplex (``FDD'') technology with either a 50- or 100-megahertz

separation between transmit and receive channels. The amount of

spectrum available in the instant allocation, however, lends itself to

a maximum separation of 25-megahertz, which may be insufficient to

support traditional FDD technology. Nevertheless, fixed services using

Time Division Duplex (``TDD'') technology may be viable in the band. We

request comment on these technical issues. Commenters should address

whether FDD technology could be successfully developed and deployed in

this band and whether TDD technology deployment in the band is likely

to be viable for service to consumers.

7. We also want to consider the ramifications of our allocation

proposal for the development of service rules in a subsequent

rulemaking proceeding. Generally, we request comment on whether the

Local Multipoint Distribution Service (``LMDS'') (Part 101, Subparts L

and M) or Wireless Communications Service (``WCS'') (Part 27) service

rules, modified as necessary, or an entirely new set of service rules,

should be applied to the fixed services offered pursuant to the new

allocation. Specifically, in view of the limited amount of spectrum

subject to the proposed allocation and the significant pertinent

technical constraints, we request comment on how a choice of initial

spectrum licensing blocks and geographic service areas will, in light

of the current state of technology, affect the viability in the band of

the various fixed services, including FWA. In particular, we seek

comment on the size of the spectrum blocks within the 3650-3700 MHz

band that should be offered for initial licensing

technical constraints, we request comment on how a choice of initial

spectrum licensing blocks and geographic service areas will, in light

of the current state of technology, affect the viability in the band of

the various fixed services, including FWA. In particular, we seek

comment on the size of the spectrum blocks within the 3650-3700 MHz

band that should be offered for initial licensing. For instance, should

the spectrum be initially licensed as a single 50-megahertz block or

would the various fixed services still be viable if initially licensed

as two or more blocks of spectrum? If the latter, should the spectrum

be initially offered as contiguous or paired blocks and, if paired

blocks, should they be symmetric or asymmetric in size. In addition, we

seek comment on the appropriate geographic size of service areas for

initial licensing. Specifically, we request comment on whether, in

order to facilitate widespread competition in the ``local loop'' or

``last-mile'' facilities market, the band should be initially licensed

for a single nationwide service area, or for several large regional

service areas, or for some other choice of smaller geographic service

areas. We invite comment on the competitive ramifications of offering

only a single license, covering the entire 50 megahertz of spectrum

nationwide. For example, could such a sole licensee garner an economic

monopoly or have undue market power, or would it face adequate

competition from wireline and wireless service providers? To what

extent, if any, would imposition of licensee eligibility requirements

affect the answer to the preceding question?

8. The specific radio frequency environment for the 3650-3700 MHz

band in the United States raises additional technical issues

nsee garner an economic

monopoly or have undue market power, or would it face adequate

competition from wireline and wireless service providers? To what

extent, if any, would imposition of licensee eligibility requirements

affect the answer to the preceding question?

8. The specific radio frequency environment for the 3650-3700 MHz

band in the United States raises additional technical issues. Any new

service in the band must be able to co-exist with extremely high-

powered Government mobile radar systems in the adjacent 3300-3650 MHz

band, as well as with occasional high-powered in-band use at three

grandfathered sites (Pascagoula, Mississippi; Pensacola, Florida; and

Saint Inigoes, Maryland). We request comment on what actions we should

take to promote the ability of new services to co-exist with these

radars. Also, given the need to protect adjacent band FSS earth station

reception, we request comment on whether the out-of-band emissions

limit of 43 + 10 log (P) dB should be applied to the proposed fixed

service allocation. In addition, we request comment on whether Very

Small Aperture Terminals (``VSATs'') should be precluded from operating

in spectrum immediately adjacent to the new fixed service allocation,

perhaps by requiring a 3.5-meter diameter minimum antenna size for

earth stations licensed to receive the 3700-3720 MHz segment.

9. As part of our evaluation of the 3650-3700 MHz band for the

proposed fixed service, we are cognizant of the need to protect earth

station reception of very weak signals transmitted by geostationary

orbit FSS satellites in the band. We are disinclined, however, to apply

to this band the spectrum sharing criteria now used in the adjacent

3700-4200 MHz band

receive the 3700-3720 MHz segment.

9. As part of our evaluation of the 3650-3700 MHz band for the

proposed fixed service, we are cognizant of the need to protect earth

station reception of very weak signals transmitted by geostationary

orbit FSS satellites in the band. We are disinclined, however, to apply

to this band the spectrum sharing criteria now used in the adjacent

3700-4200 MHz band. In particular, we note that the maximum equivalent

isotropically radiated power limit now employed for long-haul fixed

point-to-point transmissions in the 3700-4200 MHz band--55 dBW per

polarization--appears inappropriate for short-haul fixed point-to-

multipoint services that licensees may wish to provide in the 3650-3700

MHz band. Specifically, we observe that high-power, fixed point-to-

point operations co-exist with C-band earth stations because of the

extremely large coordination distances employed in siting new

facilities; but these coordination distances may unnecessarily

constrain the deployment in the band of fixed links that require less

power. For instance, one frequency coordinator, Comsearch, requires

coordination of all new C-band microwave stations that would be located

within a 125-mile radius around any FSS earth station operating in C-

band. This coordination method, however, appears too onerous for other

fixed services that could use the 3650-3700 MHz band. Instead, if

appropriately more restrictive power limits were imposed on some fixed

service uses of this band, e.g., FWA, we believe that the viability of

these services in the band would be unaffected and that the

coordination distance requirement could be significantly reduced. For

example, we could subject certain fixed stations transmitting in the

3650-3700 MHz band to power limits similar to those now employed for

Broadband PCS, i.e., a base station height/power limit of 1640 watts

peak e.i.r.p. with an antenna height up to 300 meters (984 feet)

e

APA requirements because the changes are necessary to preserve the

status quo availability of the spectrum for terrestrial wireless

services pending the Commission's ultimate determination in this

proceeding.3 Also, in order to permanently implement this

action, we propose to add to the United States Table of Frequency

Allocations a new non-Government footnote, which would read as follows:

\1\ See 47 CFR 25.116(b)(1),(4). Major amendments resulting from

ownership changes or arising under our environmental processing rule

may still be filed and will be accepted. See 47 CFR

25.116(b)(2),(3).

\2\ See 47 CFR 25.117. Modifications not requiring prior

authorization pursuant to 47 CFR 25.118 would be unaffected.

\3\ See 5 U.S.C. 553 (b) and (d).

In the 3650-3700 MHz band and for the fixed-satellite service

(space-to-Earth), license applications for new earth stations, major

amendments to pending earth station facilities applications, or

applications for major modifications to existing earth station

facilities filed on or after December 18, 1998 shall not be

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accepted.

We request comment on this proposal, including on how it affects the

ability of FSS licensees to satisfy the demand for international

intercontinental downlink capacity in this region of the spectrum. In

addition, we seek comment on alternative methods to meet the

terrestrial fixed service's needs in the 3650-3700 MHz band while

minimizing the effect on FSS operations. Commenters should provide

detailed supporting engineering data and analysis in support of their

positions.

11. We also seek comment on whether the FSS allocation in the band

should be deleted

n this region of the spectrum. In

addition, we seek comment on alternative methods to meet the

terrestrial fixed service's needs in the 3650-3700 MHz band while

minimizing the effect on FSS operations. Commenters should provide

detailed supporting engineering data and analysis in support of their

positions.

11. We also seek comment on whether the FSS allocation in the band

should be deleted. If so, we seek comment on whether we should propose

to grandfather the existing earth stations operating in the band, or

allow new fixed service licensees to have the right to require

grandfathered earth stations to vacate the band, subject to

reimbursement in a manner consistent with the Commission's Emerging

Technologies, see ET Docket No. 92-9, First Report and Order and Third

Notice of Proposed Rulemaking, 7 FCC Rcd 6886 (1992), 57 FR 49020,

October 29, 1992, relocation policies, or whether, in any event, the

allocation status of these earth stations should be changed to

secondary after a specified time period, for example, 10 years.

12. Commercial Radar. Also in order to preserve the availability of

this spectrum for the proposed fixed service, we propose to delete the

unused secondary non-Government radiolocation service allocation at

3650-3700 MHz. We note that there would remain 550 megahertz of

secondary non-Government radiolocation service spectrum at 3100-3650

MHz, which we believe is adequate to accommodate current and future

non-Government radiolocation services in this frequency range. Further,

because we anticipate that the 3650-3700 MHz band is likely to be

intensively utilized by the fixed service, deleting this radiolocation

allocation would eliminate potential interference problems between

these services. We seek comment on this proposal.

13. Government Operations. We propose to delete the Government

radiolocation service allocation from the 3650-3700 MHz mixed-use band,

except for grandfathering three Government radiolocation sites that

would continue operations in the band

service, deleting this radiolocation

allocation would eliminate potential interference problems between

these services. We seek comment on this proposal.

13. Government Operations. We propose to delete the Government

radiolocation service allocation from the 3650-3700 MHz mixed-use band,

except for grandfathering three Government radiolocation sites that

would continue operations in the band. This proposal would be

implemented by adding a new United States footnote to the Table of

Frequency Allocations, which would read as follows:

In the 3650-3700 MHz band, after January 1, 1999, Government

operations in the radiolocation service may continue on a primary

basis at three sites: Pascagoula, Mississippi (30 deg. 22' North

Latitude, 88 deg. 29' West Longitude); Pensacola, Florida (30 deg.

21' 28'' North Latitude, 87 deg. 16' 26'' West Longitude); and Saint

Inigoes, Maryland (38 deg. 10' North Latitude, 76 deg. 23' West

Longitude). The Commission shall coordinate non-Government fixed

stations within 80 kilometers of the grandfathered sites on a case-

by-case basis with NTIA through the Frequency Assignment

Subcommittee. Naval vessels shall not transmit in the 3650-3700 MHz

band until the vessel is at least [distance to be determined]

4 nautical miles off the coasts of the United States,

Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana

Islands, and American Samoa.

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\4\ The Commission and NTIA are discussing this issue in the

coordination process. We anticipate adopting the distance developed

in the coordination process in the Report and Order in this

proceeding.

In addition, we propose to delete the unused Government aeronautical

radionavigation service (ground-based) allocation from the band. We

seek comment on these proposals.

C. Possibility of Land Mobile Use

mission and NTIA are discussing this issue in the

coordination process. We anticipate adopting the distance developed

in the coordination process in the Report and Order in this

proceeding.

In addition, we propose to delete the unused Government aeronautical

radionavigation service (ground-based) allocation from the band. We

seek comment on these proposals.

C. Possibility of Land Mobile Use

14. We observe that in ITU Region 2 (the Americas) the 3650-3700

MHz band is also allocated to the mobile except aeronautical mobile

service on a primary basis. We have considered whether to propose

domestic adoption of this allocation, i.e., an allocation in the United

States for land mobile and maritime mobile uses, but not for

aeronautical mobile use. We are aware of the difficulties of sharing

spectrum between low-power FSS satellite signals and mobile units.

Thus, the Commission has traditionally licensed satellite downlinks in

bands that are not used by mobile units. Additionally, during the

coordination process, NTIA indicated that mobile service operations

within 80 kilometers of the three grandfathered sites should be

prohibited in order to protect the low-level radar return signals. In

this instant proceeding, we tentatively find that allocating the 3650-

3700 MHz band to the fixed service only, and not to the land mobile

service, would better protect incumbent Government radar operations and

non-Government FSS reception from harmful interference. We request

comment on this conclusion and, alternatively, on whether we should

allocate the 3650-3700 MHz band to the land mobile service. Commenters

supporting a land mobile service allocation should submit detailed

supporting engineering data and analysis.

D. Receiver Standards

better protect incumbent Government radar operations and

non-Government FSS reception from harmful interference. We request

comment on this conclusion and, alternatively, on whether we should

allocate the 3650-3700 MHz band to the land mobile service. Commenters

supporting a land mobile service allocation should submit detailed

supporting engineering data and analysis.

D. Receiver Standards

15. We decline to propose the transmitter emission and receiver

selectivity standards that NTIA requested in the Final Report because

we continue to believe that this matter is best left to market forces.

Specifically, we believe that, by making the appropriate technical

information available to manufacturers, they will, as a matter of

course, take into account the electromagnetic environment when

designing and building equipment for the 3650-3700 MHz

band.5 This process, we believe, is most likely to encourage

the development and implementation of innovative technology that will

promote coexistence with high-powered in-band

and adjacent band Government radar operations. We request comment on

our proposal.

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\5\ We are working closely with NTIA to make available the

information that potential non-Government licensees will need in

order to evaluate the viability of new commercial services in the

3650-3700 MHz band. Specifically, we intend to obtain (1) the

coordinates of those geographic areas that would be affected by

Government systems (assuming signal line-of-sight propagation for an

effective 4/3 Earth radius); and (2) the equipment operating

characteristics of the Government systems, including the values of

radar broadband transmit noise, the radar's e.i.r.p. and spectral

characteristics of the e.i.r.p. as a function of frequency. Once

NTIA has provided this information, Commission staff will plot the

impacted areas and we will make this information available to the

public

ctive 4/3 Earth radius); and (2) the equipment operating

characteristics of the Government systems, including the values of

radar broadband transmit noise, the radar's e.i.r.p. and spectral

characteristics of the e.i.r.p. as a function of frequency. Once

NTIA has provided this information, Commission staff will plot the

impacted areas and we will make this information available to the

public.

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E. RF Safety

16. With regard to RF safety requirements, we propose to treat

stations operating in the 3650-3700 MHz band in a comparable manner to

other services and devices that have similar operating characteristics.

Sections 1.1307(b), 2.1091, and 2.1093 of our rules list the services

and devices for which an environmental evaluation must be performed.

Accordingly, we propose that an environmental evaluation for RF

exposure would be required for the following operations: (1) Fixed

stations and base stations (if land mobile operations are permitted)

that have an e.i.r.p. greater than 1640 watts; and, (2) land mobile

stations (if land mobile operations are permitted), including portable

devices, that have operating characteristics or functions similar to

cellular, PCS or ``covered'' SMR services, i.e., operations that are

typified by long periods of use or are interconnected to the public

switched telephone network. We invite comment on this proposal and

welcome the submission of alternative proposals that would ensure

public safety with respect to exposure to RF radiation.

17. Accordingly, it is ordered that, pursuant to sections 4(i),

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

1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and

303(r), the Notice of Proposed Rule Making and Order is adopted.

18

elcome the submission of alternative proposals that would ensure

public safety with respect to exposure to RF radiation.

17. Accordingly, it is ordered that, pursuant to sections 4(i),

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

1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and

303(r), the Notice of Proposed Rule Making and Order is adopted.

18. It is further ordered that, in the 3650-3700 MHz band and for

the fixed-satellite service (space-to-Earth), license applications for

new earth stations, major amendments to pending earth station

applications, or applications for major modifications to existing earth

station facilities filed on or after December 18, 1998 shall not be

accepted.

19. It is further ordered that, in accordance with section 603(a)

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

Public Affairs, Reference Operations Division, shall send a copy of the

Notice of Proposed Rule Making and Order, including the Initial

Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of

the Small Business Administration.

Initial Regulatory Flexibility Analysis

20. As required by the Regulatory Flexibility Act

(``RFA''),6 the Commission has prepared an Initial

Regulatory Flexibility Analysis (``IRFA'') of the possible significant

economic impact on small entities by the policies and rules proposed in

the Notice of Proposed Rule Making and Order (ET Docket No. 98-237).

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 of Proposed Rule Making and Order. The

Office of Public Affairs, Reference Operations Division, shall send a

copy of the Notice of Proposed Rule Making and Order, including the

Initial Regulatory Flexibility Analysis, to the Chief Counsel for

Advocacy of the Small Business Administration. See 5 U.S.C. 603(a)

responses to the IRFA and must be filed by the deadlines

for comments on this Notice of Proposed Rule Making and Order. The

Office of Public Affairs, Reference Operations Division, shall send a

copy of the Notice of Proposed Rule Making and Order, including the

Initial Regulatory Flexibility Analysis, to the Chief Counsel for

Advocacy of the Small Business Administration. See 5 U.S.C. 603(a). The

Notice of Proposed Rule Making and Order and the IRFA will be published

in the Federal Register.

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\6\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has

been amended by the Contract With America Advancement Act of 1996,

Public Law 104-121, 110 Stat. 847 (1996) (``CWAAA'') Title II of the

CWAAA is the Small Business Regulatory Enforcement Fairness Act of

1996 (``SBREFRA'').

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Need for and Objectives of the Proposed Rules

21. This Notice proposes to allocate the 3650-3700 MHz band to the

fixed service on a primary basis. We take this action on our own

initiative in order to make this transfer spectrum available for

commercial services. The adoption of this proposal would accommodate

growing demand for fixed services.

Legal Basis

22. This action is taken pursuant to sections 4(i), 7(a), 303(c),

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

amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r).

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

Proposed Rules Will Apply

The adoption of this proposal would accommodate

growing demand for fixed services.

Legal Basis

22. This action is taken pursuant to sections 4(i), 7(a), 303(c),

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

amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r).

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

Proposed Rules Will Apply

23. The RFA generally defines the term ``small entity'' as having

the same meaning as the terms ``small business,'' ``small

organization,'' and ``small governmental jurisdiction.'' 7

For the purposes of this Notice, the IRFA defines a ``small business''

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

Act,8 unless the Commission has developed one or more

definitions that are appropriate to its activities.9 Under

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

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

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

Small Business Administration (``SBA'').10

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\7\ Id. Sec. 601(6).

\8\ 15 U.S.C. 632.

\9\ See 5 U.S.C. 601(3) (incorporating by reference the

definition of ``small business concern'' in 5 U.S.C. 632).

\10\ 15 U.S.C. 632.

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eria established by the

Small Business Administration (``SBA'').10

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\7\ Id. Sec. 601(6).

\8\ 15 U.S.C. 632.

\9\ See 5 U.S.C. 601(3) (incorporating by reference the

definition of ``small business concern'' in 5 U.S.C. 632).

\10\ 15 U.S.C. 632.

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24. The Commission has not developed a definition of small entities

applicable to Fixed Satellite Service licensees. Therefore, the

applicable definition of small entity is the definition under the SBA

rules applicable to Communications services, Not Elsewhere Classified.

This definition provides that a small entity is one with no more than

$11.0 million in annual receipts.11 According to Census

Bureau data, there are 848 firms 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.12 We note that new services will

be permitted under the adopted designations for FSS, and we are unable

at this time to provide a more precise estimate of how many potential

small entities will be providing these services.

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\11\ 13 CFR 121.201, Standard Industrial Classification (SIC)

Code 4899.

\12\ 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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3 CFR 121.201, Standard Industrial Classification (SIC)

Code 4899.

\12\ 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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25. As described, the designations we hereby adopt will permit

wireless services, as broadly defined. Neither the Commission nor the

SBA has developed a definition of small entities applicable to wireless

services licensees. Therefore, the applicable definition of small

entity is the definition under the SBA rules applicable to

radiotelephone (wireless) companies. This provides that a small entity

is a radiotelephone company employing no more than 1,500

persons.13 According to the Bureau of the Census, only

twelve radiotelephone firms out of a total of 1,178 such firms which

operated during 1992 had 1,000 or more employees.14 We note

that new services will be permitted under the adopted designations for

wireless services, and we are unable at this time to provide a more

precise estimate of how many potential small entities will be providing

these services.

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\13\ 13 CFR 121.201, SIC code 4812.

\14\ 1992 Census, Series UC92-S-1, at Table 5, SIC code 4812.

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26. The Commission has not yet determined or proposed how many

licenses will be awarded, nor will it know how many licensees will be

small businesses until the auction, if required, is held. Even after

that, the Commission will not know how many licensees will partition

their license areas or

Table 5, SIC code 4812.

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26. The Commission has not yet determined or proposed how many

licenses will be awarded, nor will it know how many licensees will be

small businesses until the auction, if required, is held. Even after

that, the Commission will not know how many licensees will partition

their license areas or

disaggregate their spectrum blocks, if partitioning and disaggregation

are allowed. This proceeding proposes only to allocate the 3650-3700

MHz band to the non-Government fixed service generally. A future

proceeding will address service rules specifically, and we will address

small business concerns at that time. We invite comment on this

analysis.

Description of Projected Reporting, Recordkeeping and Other Compliance

Requirements

27. Rules that may apply to the licensing of these operations or

other operating requirements will likely be addressed in a separate

rule making proceeding and any reporting, recordkeeping and other

compliance requirements will be addressed therein.

Significant Alternatives to Proposed Rules Which Minimize Significant

Economic Impact on Small Entities and Accomplish Stated Objectives

28. No Petitions for Rulemaking were filed to initiate this

proceeding and there are no comments in this proceeding that suggest

alternatives to this proposed allocation and associated technical

requirements. We request comment on alternatives that might minimize

the amount of economic impact on small entities.

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

Proposed Rules

29. None.

List of Subjects in 47 CFR Part 2

Communications equipment, reporting and recordkeeping requirements.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 99-837 Filed 1-13-99; 8:45 am]

BILLING CODE 6712-01-U