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 Federal  Communications  Commission  FCC  00-  288 
 1 
 Before  the 
 Federal  Communications  Commission  Washington,  D.  C.  20554 

 In  the  Matter  of  ) 
 ) 
 Amendment  of  Part  90  of  the  Commissions  )  PR  Docket  No.  93-  144 
 Rules  to  Facilitate  Future  Development  of  ) 
 SMR  Systems  in  the  800  MHz  Frequency  ) 
 Band  ) 
 ) 
 ) 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  August  2,  2000  Released:  August  4,  2000 
 By  the  Commission: 
 1.  In  this  Memorandum  Opinion  and  Order,  we  address  the  construction  requirements  that  the 
 Commission  should  impose  on  incumbent  800  MHz  Specialized  Mobile  Radio  (SMR)  commercial  licensees 
 operating  wide  area  systems  1  that  include  Business  and  Industrial  /  Land  Transportation  (BI/  LT)  channels 
 obtained  prior  to  1995  through  inter-  category  sharing.  2  For  the  reasons  described  herein,  we  will  allow 
 incumbent  wide-  area  800  MHz  SMR  licensees  using  BI/  LT  channels  who  were  within  their  construction 
 periods  at  the  time  of  the  decision  in  Fresno  Mobile  Radio  v.  FCC  3  to  apply  the  same  construction 
 requirements  as  were  given  by  our  recent  Fresno  Remand  Order  4  to  wide-  area  incumbents  operating  on 
 SMR  channels. 

 I.  BACKGROUND 

 2.  The  800  MHz  band  is  divided  into  four  channel  groups    SMR,  General  Category,  BI/  LT,  and 
 Public  Safety,  each  with  its  own  eligibility  rules.  800  MHz  SMR  channels  are  designated  for  commercial 
 use,  while  800  MHz  BI/  LT  channels  are  designated  for  non-  commercial  internal  use  by  the  licensee.  Prior 
 to  1995,  in  certain  circumstances,  the  Commission  allowed  SMR  licensees  to  apply  for  BI/  LT  channels 
 under  inter-  category  sharing  rules,  which  the  SMR  licensee  could  then  use  commercially  despite  the 
 eligibility  criteria  that  otherwise  reserved  these  channels  for  private  internal  use.  5  Inter-  category  sharing  by 

 1  See  47  C.  F.  R.    90.629.  See  also  Amendment  of  Part  90  of  the  Commissions  Rules  to  Facilitate  Future 
 Development  of  SMR  Systems  in  the  800  MHz  Frequency  Band,  Memorandum  Opinion  and  Order  on  Remand,  14 
 FCC  Rcd.  21679,  21680,  n.  6  (  4)(  Remand  Order). 

 2  See  47  C.  F.  R.    90.  615(  a)(  1994),  90.621(  e)(  1994). 

 3  Fresno  Mobile  Radio,  Inc.,  et  al.  v.  FCC,  165  F.  3d  965  (D.  C.  Cir.  1999)  (Fresno). 
 4  Remand  Order  at  21679  (  1). 
 5  See  47  C.  F.  R.    90.  615(  a)  and  90.621(  e)  (1994);  see  also  Inter-  Category  Sharing  of  Private  Mobile  Radio 
 Frequencies  in  the  806/  821/  851-  866  MHz  bands,  Order,  10  FCC  Rcd.  7350  (WTB:  1995)  (Inter-  Category  Freeze 
 Order).  In  April  of  1995,  the  Wireless  Telecommunications  Bureau  (Bureau)  stopped  accepting  applications  for  such 
 inter-  category  sharing. 
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 SMR  licensees  was  permitted  if  the  BI/  LT  channel  sought  by  the  SMR  licensee  was  unoccupied  and  if  there 
 were  no  SMR  channels  available  in  the  licensees  service  area.  6 

 3.  On  December  23,  1999,  in  response  to  a  remand  of  its  800  MHz  SMR  Reconsideration  Order  7  by  the 
 District  of  Columbia  Circuit  in  Fresno,  8  the  Commission  released  an  order  determining  that  incumbent  800 
 MHz  SMR  licensees  who  had  obtained  extended  implementation  (  EI)  authority  to  build  wide-  area 
 systems  and  who  were  within  their  extended  construction  periods  at  the  time  of  the  Fresno  decision  could 
 apply  construction  requirements  similar  to  those  given  to  SMR  Economic  Area  (  EA)  licensees  in  the  800 
 MHz  band.  9  In  the  Remand  Order,  however,  we  granted  relief  only  to  wide-  area  incumbents  operating  on 
 SMR  channels.  We  did  not  address  the  construction  status  of  wide-  area  incumbents  operating  on  non-  SMR 
 channels  obtained  through  inter-  category  sharing,  because  we  concluded  that  this  issue  was  beyond  the 
 scope  of  the  proceeding.  10  We  indicated  that  we  would  determine  the  construction  requirements  for  wide-area 
 licensees  on  these  channels  in  WT  Docket  No.  99-  87,  the  pending  Balanced  Budget  Act  (BBA) 
 proceeding.  11 

 4.  Upon  further  reflection,  the  Commission  decided  to  determine  the  construction  status  of  BI/  LT 
 channels  used  by  wide-  area  800  MHz  SMR  licensees  in  the  Fresno  Remand  proceeding,  rather  than  in  the 
 BBA  proceeding.  On  March  2,  2000,  therefore,  we  released  a  Public  Notice  seeking  comment  on  whether 
 we  should  adopt  construction  rules  for  wide-  area  incumbent  800  MHz  SMR  licensees  using  BI/  LT  channels 
 that  would  be  similar  to  those  adopted  in  the  Remand  Order  for  wide-  area  SMR  licensees  using  SMR 
 channels.  12  We  also  requested  comment  on  the  applicable  construction  requirements  (e.  g.,  substantial 
 service  or  population-  based)  for  wide-  area  incumbent  800  MHz  SMR  licenses  using  BI/  LT  channels.  13 

 6  Inter-  Category  Freeze  Order,  10  FCC  Rcd.  at  7350  (  2). 
 7  See  Amendment  of  Part  90  of  the  Commissions  Rules  to  Facilitate  Future  Development  of  SMR  Systems  in  the 
 800  MHz  Frequency  Band,  Memorandum  Opinion  and  Order  on  Reconsideration,  12  FCC  Rcd.  9972  (1997)  (800 
 MHz  SMR  Reconsideration  Order)  (Commission  affirmed  decision  that  rejustified  extended  implementation  (  EI) 
 licensees  would  receive  maximum  of  two  years  to  complete  construction  of  facilities,  and  any  site-  specific  license 
 within  a  licensees  wide-  area  footprint  not  constructed  by  the  two-  year  deadline  would  automatically  cancel,  with 
 unconstructed  channels  reverting  to  the  EA  licensee);  see  also  Remand  Order  at  21682-  3  (  6-  8). 
 8  See  Fresno,  supra,  n.  3. 

 9  Remand  Order  at  21679  (  1).  Also,  see  Remand  Order  at  21679-  21685  (  2-  10)  for  detailed  background, 
 including  the  procedural  history  of  the  Fresno  matter,  descriptions  of  the  relevant  groups  of  licensees,  and  explanations 
 of  the  relevant  sets  of  construction  requirements. 

 10  Remand  Order  at  21689  (  20).  The  Bureau  had  previously  granted  the  Southern  Company  and  Nextel 

 Communications,  Inc.  extensions  of  their  extended  implementation  periods  for  their  BI/  LT  channels  until  final  rules 
 regarding  licensing  of  the  BI/  LT  channels  take  effect  in  the  context  of  the  Commissions  rulemaking  proceeding  to 
 implement  the  Balanced  Budget  Act  of  1997.  See  Southern  Company  Request  for  Waiver  of  Section  90.  629  of  the 
 Commission's  Rules,  Memorandum  Opinion  and  Order,  14  FCC  Rcd.  1851  (WTB:  1998);  In  the  Matter  of  Nextel 
 Communications,  Inc.,  Order,  15  FCC  Rcd.  93  (WTB:  1999).  Since  we  now  settle  the  issue  of  what  construction 
 requirements  apply  to  these  channels,  the  extensions  granted  to  Southern  and  Nextel  shall  end  on  the  dates  that  apply  to 
 each  according  to  the  formula  set  forth  in  paragraph  ten  of  this  Memorandum  Opinion  and  Order. 

 11  See  Implementation  of  Sections  309(  j)  and  337  of  the  Communications  Act  of  1934,  as  amended,  Notice  of 
 Proposed  Rule  Making,  WT  Docket  No.  99-  87,  64  Fed.  Reg.  23571  (1999). 
 12  See  Public  Notice,  Commission  Requests  Comment,  Pursuant  to  Fresno  Mobile  Radio,  Inc.  v.  FCC,  on  the 

 Construction  Requirements  for  Commercial,  Wide-  Area  800  MHz  Licensees  Operating  on  Non-  SMR  Channels 
 Through  Inter-  Category  Sharing,  15  FCC  Rcd.  5436  (2000)  (BI/  LT  Comment  PN). 

 13  Id. 
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 5.  In  response  to  the  BI/  LT  Comment  PN,  we  received  four  comments  and  one  reply  comment.  14  All 
 but  one  of  the  commenters  contend  that  wide-  area  800  MHz  SMR  licenses  using  BI/  LT  channels  should 
 receive  the  same  construction  requirements  established  by  the  Remand  Order  for  wide-  area  incumbents 
 using  SMR  channels.  15  In  its  comments,  Southern  Company  (Southern)  points  to  the  CMRS  Third  Report 
 and  Order  as  evidence  that  the  Commission  has  already  determined  that  all  CMRS  licensees  should  have 
 similar  coverage  requirements,  and  that  there  is  no  rational  basis  for  singling  out  SMR  licensees  using 
 BI/  LT  channels  as  the  only  CMRS  providers  that  are  not  entitled  to  flexible  coverage  requirements.  16 
 Nextel  Communications,  Inc.  (Nextel)  maintains  that  regulatory  parity  requires  giving  wide-  area  800  MHz 
 SMR  licenses  using  BI/  LT  channels  the  same  flexible  construction  requirements  as  those  given  to  other 
 CMRS  providers  because  they  provide  similar  services.  17  The  American  Mobile  Telecommunication 
 Association,  Inc.  (AMTA)  maintains  that  all  channels  properly  licensed  to  a  wide-  area  SMR  system  under 
 the  Commissions  rules  are  part  of  that  system  and  should  be  subject  to  the  same  regulatory  treatment.  18 
 Finally,  Chadmoore  Wireless  Group,  Inc.  (Chadmoore)  supports  revision  to  the  construction  requirements 
 for  wide-  area  SMR  licensees  using  BI/  LT  channels  only  if  the  Commission  provides  similar  construction 
 relief  to  Chadmoore  and  certain  other  800  MHz  licensees  that  were  expressly  denied  relief  by  the  Fresno 
 Remand  Order.  19 

 II.  DISCUSSION 
 6.  On  the  basis  of  the  record  before  us,  we  conclude  that  wide-  area  incumbent  800  MHz  SMR  licensees 
 operating  on  BI/  LT  channels  are  sufficiently  similar  to  wide-  area  incumbent  800  MHz  licensees  operating 
 on  SMR  channels  that  they  should  have  the  same  flexibility  with  respect  to  construction  requirements.  The 
 record  demonstrates  that  some  of  the  wide-  area  SMR  licensees  who  received  EI  authorizations  from  the 
 Commission  are  licensed  to  operate  both  on  SMR  channels  and  on  BI/  LT  channels  that  they  obtained 
 through  inter-  category  sharing  for  commercial  use.  In  Southerns  case,  the  vast  majority  of  channels  in  its 
 wide-  area  SMR  system  are  BI/  LT  channels  obtained  through  inter-  category  sharing.  The  record  further 
 demonstrates  that  wide-  area  SMR  licensees  such  as  Southern  use  inter-  category  BI/  LT  channels 
 interchangeably  with  SMR  channels,  and  that  the  BI/  LT  channels  licensed  on  this  basis  are  used  to  provide 
 service  that  is  similar,  if  not  identical,  to  that  provided  on  SMR  channels  by  800  MHz  EA  and  incumbent 
 wide-  area  SMR  licensees.  20  Accordingly,  we  agree  with  Southern,  AMTA,  and  other  supporting 
 commenters  that  wide-  area  800  MHz  SMR  licensees  using  BI/  LT  channels  should  be  subject  to  the  same 

 14  See  Attachment  A. 
 15  See  Remand  Order  at  21686  (  12). 
 16  Southern  Comments  at  5-  8. 
 17  Nextel  Comments  at  1-  2,  5-  6.  Nextel  also  comments  that  the  Commission  should  allow  BI/  LT  licensees  the 
 flexibility  to  assign  or  transfer  control  of  BI/  LT  spectrum  to  commercial  users.  Id.  at  2-  3,  6-  9.  This  issue  is  before  the 
 Commission  in  the  BBA  proceeding  and  we  will  address  it  in  that  context.  See  Public  Notice,  Wireless 
 Telecommunications  Bureau  Seeks  Comment  on  Licensing  of  PMRS  channels  in  the  800  MHz  Band  for  Use  in 
 Commercial  SMR  Systems,  14  FCC  Rcd.  11795  (1999);  see  also  Implementation  of  Sections  309(  j)  and  337  of  the 
 Communications  Act  of  1934  as  Amended,  WT  Docket  No.  99-  87,  Notice  of  Proposed  Rule  Making,  14  FCC  Rcd. 
 5206  (1999).  In  the  BI/  LT  Comment  PN,  we  specifically  limited  comments  to  the  narrow  issue  of  the  appropriate 
 construction  requirements  for  wide-  area  800  MHz  SMR  licenses  using  BI/  LT  channels. 

 18  AMTA  Comments  at  5. 

 19  Chadmoore  Comments  at  2-  3. 
 20  Nextel  Comments  at  5-  6;  Southern  at  2-  3,  AMTA  at  2. 
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 construction  requirements  given  to  800  MHz  SMR  EA  licensees  by  our  rules  and  to  eligible  wide-  area  SMR 
 licensees  by  our  Remand  Order. 

 7.  Recognizing  that  these  licensees  may  already  have  constructed  their  systems  in  accordance  with  the 
 requirements  in  place  at  the  time  (i.  e.,  site-  by-  site,  channel-  by-  channel),  we  will  give  eligible  wide-  area  800 
 MHz  SMR  licenses  using  BI/  LT  channels  the  option  of  complying  with  the  site-  specific  construction 
 requirements  associated  with  their  EI  authorizations  or  applying  the  EA  population  coverage  requirements 
 to  their  wide-  area  systems.  This  option  applies  only  to  wide-  area  800  MHz  SMR  licensees  using  BI/  LT 
 channels  obtained  through  inter-  category  sharing.  We  believe  that  giving  wide-  area  800  MHz  SMR  licenses 
 using  BI/  LT  channels  the  choice  between  applying  site-  specific  requirements  or  the  EA  coverage 
 requirements  will  establish  regulatory  parity  among  all  similarly  situated  wide-  area  800  MHz  SMR 
 licensees. 

 8.  Chadmoore  supports  granting  the  Fresno  relief  to  incumbent  wide-  area  800  MHz  SMR  licenses 
 using  BI/  LT  channels  only  if  the  Commission  retroactively  extends  the  relief  outlined  in  the  Remand  Order 
 to  any  800  MHz  SMR  incumbent  licensee  that  has  ever  sought  EI  authority,  whether  or  not  such  authority 
 was  granted.  21  We  decline  to  address  this  issue  in  the  context  of  this  Order.  As  noted  above,  the  BI/  LT 
 Comment  PN  sought  comment  only  on  the  issue  of  the  appropriate  construction  requirements  for  wide-  area 
 SMR  licenses  using  BI/  LT  channels,  and  did  not  address  Chadmoores  request  for  retroactive  relief. 
 Chadmoore  has  previously  raised  the  same  issue  in  its  pending  petition  for  reconsideration  of  the  Remand 
 Order,  22  and  we  will  address  it  in  that  context. 

 9.  Construction  Period.  We  did  not  receive  any  comment  on  when  the  five-  year  construction  period 
 should  begin  for  BI/  LT  channels  licensed  to  wide-  area  SMR  licensees  that  elect  to  apply  the  EA 
 construction  requirements.  We  therefore  adopt  the  framework  outlined  in  the  Remand  Order,  which  begins 
 the  construction  period  from  the  licensees  EI  grant  date.  Therefore,  an  eligible  wide-  area  SMR  licensee 
 that  elects  to  apply  the  EA  construction  requirements  to  its  BI/  LT  channels  must  have  constructed  and 
 placed  into  operation  a  sufficient  number  of  base  stations  to  provide  coverage  to  at  least  two-  thirds  of  the 
 population  of  its  wide-  area  system,  or  must  provide  substantial  service  to  the  licensed  area,  within  five  years 
 of  EI  grant  plus  the  tolling  period  described  below.  23 

 10.  Effect  of  Tolling  on  Construction  Deadline.  For  all  licensees  entitled  to  relief  under  this  decision, 
 we  will  add  546  days  to  their  construction  periods,  representing  the  amount  of  time  between  the  Fresno 
 decision  and  the  release  of  this  order.  Therefore,  the  applicable  construction  deadline  for  any  eligible  wide-area 
 licensee  that  elects  to  apply  the  EA  coverage  requirements  will  be  five  years  from  the  date  of  EI  grant 
 plus  546  days.  Likewise,  the  applicable  construction  deadline  for  eligible  licensees  that  do  not  elect  the  EA 
 requirements  will  be  546  days  after  the  EI  deadline  established  in  the  800  MHz  Rejustification  Orders.  24 

 21  Chadmoore  Comments  at  2-  3. 
 22  Petition  for  Reconsideration,  filed  by  Chadmoore  Communications,  Inc.,  dated  January  23,  2000. 
 23  Remand  Order  at  21686-  7,  (  13-  14).  Because  the  BI/  LT  channels  are  interlaced  with  the  lower  80  SMR 
 channels  in  the  800  MHz  band,  the  alternative  construction  requirements  available  to  licensees  granted  relief  under  the 
 present  Order  are  the  same  as  those  outlined  in  the  Remand  Order  for  the  lower  230  channels  (which  include  the 
 lower  80  SMR  channels  and  the  150  General  Category  channels).  Id.  at  21687  (  14).  The  requirements  applicable 
 to  the  upper  200  channels  are  not  relevant  to  the  present  Memorandum  Opinion  and  Order. 

 24  Remand  Order  at  21683,  n.  29  (  7),  citing  Amendment  of  Part  90  of  the  Commissions  Rules  to  Facilitate  Future 

 Development  of  SMR  Systems  in  the  800  MHz  Frequency  Band,  Order,  13  FCC  Rcd.  1533  (WTB:  1997),  recon.,  12 
 FCC  Rcd.  18349  (WTB:  1997)  (collectively,  800  MHz  Rejustification  Orders). 
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 11.  Certification  Filing.  A  wide-  area  SMR  licensee  that  is  eligible  for  relief  under  this  Order  must 
 certify  in  a  filing  with  the  Bureau  that  it  has  either  met  the  EA  construction  requirements,  as  set  out  herein, 
 or  complied  with  the  terms  of  its  EI  authorization.  In  addition  to  the  certification,  if  a  licensee  chooses  to 
 meet  the  EA  requirements  for  channels  in  the  lower  230  channels  using  the  substantial  service  option,  it 
 must  demonstrate  in  the  same  filing  with  the  Bureau  how  it  is  providing  substantial  service.  All  filings  must 
 be  made  within  fifteen  (15)  days  after  the  licensees  applicable  construction  deadline,  25  as  defined  supra,  or 
 sixty  (60)  days  after  the  publication  of  this  Memorandum  Opinion  and  Order  in  the  Federal  Register, 
 whichever  is  later. 

 12.  Area  of  Coverage.  When  determining  if  an  eligible  licensee  has  met  a  specific  coverage 
 requirement  (i.  e.,  covering  two-  thirds  of  the  population),  the  population  should  be  measured  using  the 
 licensees  wide-  area  footprint  as  established  in  the  licensees  EI  rejustification  submission.  For  this 
 purpose,  we  adopt  the  guidelines  in  the  Remand  Order,  i.  e.,  the  licensee  should  compute  the  population 
 covered  within  its  footprint  on  a  county  basis  using  1990  U.  S.  Census  information.  26  In  cases  in  which  the 
 footprint  does  not  align  with  county  boundaries,  the  licensee  should  include  the  entire  population  of  the 
 county  if  the  licensee  covers  any  portion  of  it. 

 III.  CONCLUSION 
 13.  For  the  reasons  given  above,  any  incumbent  wide-  area  800  MHz  SMR  licensee  that  uses  BI/  LT 
 channels  obtained  through  inter-  category  sharing  and  was  still  in  its  construction  period  as  of  the  date  of  the 
 Fresno  decision  may  choose  to  apply  either  the  existing  site-  by-  site,  channel-  by-  channel  construction 
 requirements  or  the  alternative  construction  requirements  set  forth  in  this  Memorandum  Opinion  and  Order. 
 Eligible  licensees  must  certify  in  a  filing  with  the  Commission  their  compliance  with  one  of  the  enumerated 
 requirements  within  the  later  of  fifteen  days  from  their  applicable  construction  benchmarks,  as  defined 
 herein,  or  sixty  days  from  the  effective  date  of  this  decision. 

 IV.  PROCEDURAL  MATTERS 
 A.  Regulatory  Flexibility  Act 
 14.  To  assist  the  public  in  determining  the  possible  impact  on  small  entities  of  the  requirements  adopted 
 in  this  Memorandum  Opinion  and  Order,  the  Commission  has  prepared  a  Supplemental  Final  Regulatory 
 Flexibility  Analysis  (Supplemental  FRFA),  set  forth  in  Appendix  B.  The  Office  of  Public  Affairs, 
 Reference  Operations  Division,  will  send  a  copy  of  the  Memorandum  Opinion  and  Order,  including  this 
 Supplemental  FRFA,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration,  in 
 accordance  with  the  Regulatory  Flexibility  Act.  27 

 B.  Paperwork  Reduction  Act  of  1995  Analysis 
 15.  This  Memorandum  Opinion  and  Order  contains  a  modified  information  collection  that  the 
 Commission  is  submitting  to  the  Office  of  Management  and  Budget  requesting  clearance  under  the 
 Paperwork  Reduction  Act  of  1995. 

 25  See  47  C.  F.  R.    1.946(  d). 
 26  Remand  Order  at  21687  (  14). 
 27  See  5  U.  S.  C.    601  et.  seq. 
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 C.  Further  Information 
 16.  For  further  information  concerning  this  Memorandum  Opinion  and  Order,  contact  Don  Johnson, 
 Commercial  Wireless  Division,  Policy  &  Rules  Branch,  Wireless  Telecommunications  Bureau  at  (202)  418-7240. 

 V.  ORDERING  CLAUSES 
 17.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  section  4(  i)  of  the  Communications  Act  of  1934,  as 
 amended,  47  U.  S.  C.    154(  i),  incumbent  wide-  area  800  MHz  Specialized  Mobile  Radio  licensees  using 
 Business  and  Industrial  /  Land  Transportation  channels  eligible  for  relief  as  described  herein  must  comply 
 with  the  terms  of  their  extended  implementation  authorizations  or  apply  the  alternative  construction 
 requirements  described  herein. 

 18.  IT  IS  FURTHER  ORDERED  that  incumbent  wide-  area  800  MHz  Specialized  Mobile  Radio 
 licensees  using  Business  and  Industrial  /  Land  Transportation  channels  eligible  for  relief  as  described  herein 
 must  certify  in  a  filing  with  the  Wireless  Telecommunications  Bureau  their  compliance  with  the 
 construction  requirements  as  described  herein  within  the  later  of  fifteen  days  after  the  licensees  applicable 
 construction  deadline,  as  described  herein,  or  sixty  days  after  publication  of  this  Memorandum  Opinion  and 
 Order  in  the  Federal  Register. 

 19.  IT  IS  FURTHER  ORDERED  that  the  extensions  of  Extended  Implementation  Authority  granted  by 
 the  Wireless  Telecommunications  Bureau  to  Southern  Communications,  Inc.  and  Nextel  Communications, 
 Inc.  on  December  4,  1998  and  December  30,  1999,  respectively,  ARE  MODIFIED  to  expire  in  accordance 
 with  the  requirements  outlined  in  Paragraph  10  of  this  Memorandum  Opinion  and  Order. 

 20.  IT  IS  FURTHER  ORDERED  that  the  Commissions  Consumer  Information  Bureau,  the  Reference 
 Information  Center,  SHALL  SEND  a  copy  of  this  Memorandum  Opinion  and  Order,  including  the 
 Supplemental  Final  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small 
 Business  Administration. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 Magalie  Roman  Salas 
 Secretary 
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 APPENDIX  A:  LIST  OF  THE  PARTIES 
 Comments 
 American  Mobile  Telecommunications  Association,  Inc.  (AMTA) 
 Chadmoore  Wireless  Group,  Inc.  (Chadmoore) 
 Nextel  Communications,  Inc.  (Nextel) 
 Southern  Company  (Southern) 

 Reply  Comments 
 Southern  Company  (Southern) 
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 APPENDIX  B: 
 SUPPLEMENTAL  FINAL  REGULATORY  FLEXIBILITY  ANALYSIS 
 To  assist  the  public  in  determining  the  possible  impact  on  small  entities  of  the  provisions  in  this 
 Memorandum  Opinion  and  Order,  the  Commission  has  prepared  this  Supplemental  Final 
 Regulatory  Flexibility  Analysis  (Supplemental  FRFA). 

 Need  for,  and  Objectives  of,  the  Memorandum  Opinion  and  Order 
 This  Memorandum  Opinion  and  Order  was  initiated  by  public  notice.  The  Commission 
 sought  comment  to  determine  whether  incumbent  wide-  area  800  MHz  SMR  licensees  granted 
 extended  implementation  (EI)  and  operating  on  non-  SMR  channels  (e.  g.,  Business  and  Industrial  / 
 Land  Transportation  (BI/  LT)  channels)  through  inter-  category  sharing  should  receive  construction 
 requirements  similar  to  those  received  by  Economic  Area  (EA)  800  MHz  SMR  licensees  and 
 incumbent  wide-  area  800  MHz  SMR  licensees  granted  relief  on  remand  of  the  order  of  the  United 
 States  Court  of  Appeals  for  the  District  of  Columbia  in  the  case  of  Fresno  Mobile  Relays,  Inc.  v. 
 Federal  Communications  Commission  (Fresno).  1  In  Fresno,  the  court  stated  that  the  Commission 
 had  not  adequately  explained  why  incumbent  wide-  area  800  MHz  SMR  licensees  granted  extended 
 implementation  (EI)  must  construct  and  operate  all  channels  at  all  sites  or  lose  the  unconstructed 
 channels,  while  Economic  Area  (EA)  800  MHz  SMR  licensees  need  only  provide  coverage  to  a 
 certain  percentage  of  the  population  within  their  licensed  areas.  This  Memorandum  Opinion  and 
 Order  allows  incumbent  wide-  area  800  MHz  SMR  licensees  operating  on  BI/  LT  channels  who 
 were  within  their  construction  periods  at  the  time  of  the  Fresno  decision  to  choose  between 
 complying  with  the  terms  of  their  EI  authorizations  or  applying  construction  requirements  similar  to 
 those  given  to  EA  licensees.  Therefore,  this  Memorandum  Opinion  and  Order  (1)  gives  the 
 incumbent  licensees  greater  flexibility  to  leave  certain  sites  and  channels  unconstructed  (for 
 potential  future  use);  (2)  establishes  reasonable  regulatory  parity  between  incumbent  wide-  area 
 licensees  and  EA  licensees  in  the  800  MHz  SMR  service,  without  prejudicing  the  interests  of  either; 
 and  (3)  provides  the  800  MHz  SMR  service  with  a  degree  of  certainty  for  both  current  and  future 
 EA  licensees. 

 Summary  of  Significant  Issues  Raised  by  Public  Comment  in  Response  to  the  Initial  Regulatory  Flexibility  Analysis 

 As  noted  above,  this  Memorandum  Opinion  and  Order  was  initiated  by  public  notice  released 
 by  the  Commission.  Therefore,  there  was  no  Initial  Regulatory  Flexibility  Analysis. 

 Description  and  Estimate  of  the  Number  of  Small  Entities  to  Which  Rules  Will  Apply 
 The  Regulatory  Flexibility  Act  (RFA)  directs  agencies  to  provide  a  description  of  and,  where 
 feasible,  an  estimate  of  the  number  of  small  entities  that  may  be  affected  by  our  rules.  2  The  RFA 
 generally  defines  the  term  "small  entity"  as  having  the  same  meaning  as  the  terms  "small  business," 
 "small  organization,"  and  "small  governmental  jurisdiction."  3  In  addition,  the  term  "small  business" 

 1  Fresno  Mobile  Radio,  Inc.,  et  al.  v.  FCC,  165  F.  3d  965  (D.  C.  Cir.  1999). 
 2  5  U.  S.  C.    603(  b)(  3). 
 3  5  U.  S.  C.    601(  6). 
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 has  the  same  meaning  as  the  term  "small  business  concern"  under  the  Small  Business  Act.  4  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).  5  A  small  organization  is  generally  "any  not-  for-  profit  enterprise  which  is 
 independently  owned  and  operated  and  is  not  dominant  in  its  field."  6  The  provisions  adopted  in  this 
 Memorandum  Opinion  and  Order  will  apply  to  approximately  30  -  35  current  incumbent  800  MHz 
 SMR  operators,  most  of  which  may  be  considered  small  entities. 

 Description  of  Projected  Reporting,  Recordkeeping,  and  Other  Compliance  Requirements 
 This  Memorandum  Opinion  and  Order  gives  eligible  wide-  area  800  MHz  SMR  licensees 
 operating  on  BI/  LT  channels  through  inter-  category  sharing  the  option  of  complying  with  the  terms 
 of  their  EI  authorizations  or  applying  EA-  type  construction  requirements  to  their  wide  area 
 footprints.  If  an  eligible  licensee  chooses  the  former,  it  need  only  comply  with  the  requirements 
 already  imposed  by  the  Commissions  rules.  If  an  eligible  licensee  chooses  the  latter,  it  must 
 determine  if  it  meets  the  coverage  requirement.  The  licensee  must  then  certify  compliance  with 
 these  requirements  in  a  filing  with  the  Wireless  Telecommunications  Bureau  (Bureau)  at  its 
 applicable  construction  deadline.  In  lieu  of  the  specific  coverage  requirements,  an  eligible  licensee 
 may  demonstrate  that  it  is  providing  substantial  service.  If  a  licensee  chooses  this  option,  it  must 
 provide  in  a  filing  with  the  Bureau  a  description  of  how  it  is  providing  substantial  service. 

 Steps  Taken  to  Minimize  Significant  Economic  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered 

 The  action  taken  by  this  Memorandum  Opinion  and  Order  not  only  gives  eligible  incumbent 
 wide-  area  800  MHz  SMR  licensees  greater  flexibility  to  leave  certain  sites  and  channels 
 unconstructed  (for  potential  future  use),  but  also  establishes  reasonable  parity  between  incumbent 
 wide-  area  licensees  and  EA  licensees  in  the  800  MHz  SMR  service.  Eligible  incumbent  licensees 
 need  only  report  their  compliance  with  the  construction  requirements  in  the  same  fashion  that  EA 
 800  MHz  licensees  do  (i.  e.,  in  a  certification  and,  if  the  substantial  service  option  is  elected,  a 
 demonstration). 

 Report  to  Congress 
 The  Commission  shall  send  a  copy  of  this  Supplemental  Final  Regulatory  Flexibility  Analysis, 
 along  with  this  Memorandum  Opinion  and  Order,  in  a  report  to  Congress  pursuant  to  the  Small 
 Business  Enforcement  Fairness  Act  of  1996,  5  U.  S.  C.    801(  a)(  1)(  A).  A  copy  of  this  Supplemental 
 Final  Regulatory  Flexibility  Analysis  will  also  be  published  in  the  Federal  Register. 

 4  5  U.  S.  C.    601(  3)  (incorporating  by  reference  the  definition  of  "small  business  concern"  in  15  U.  S.  C. 
   632).  Pursuant  to  the  RFA,  the  statutory  definition  of  a  small  business  applies  "unless  an  agency,  after 
 consultation  with  the  Office  of  Advocacy  of  the  Small  Business  Administration  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."  5  U.  S.  C.    601(  3). 

 5  Small  Business  Act,  15  U.  S.  C.    632  (1996). 

 6  5  U.  S.  C.    601(  4). 
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