[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Rules and Regulations]
[Pages 11681-11683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4787]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 02-55; DA 11-315]


Improving Public Safety Communications in the 800 MHz Band; New 
800 MHz Band Plan for Puerto Rico and the U.S. Virgin Islands

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document summarizes the Fourth Report and Order, which 
establishes a new 800 MHz band plan for the U.S. Virgin Islands (USVI). 
This action is necessary to meet the Commission's goals to improve 
public safety communications in the 800 MHz band. The effect of this 
order ensures an orderly and efficient transition to the new 800 MHz 
band plan in the USVI.

DATES: Effective March 3, 2011.

FOR FURTHER INFORMATION CONTACT: John Evanoff, Policy Division, Public 
Safety and Homeland Security Bureau, (202) 418-0848.

SUPPLEMENTARY INFORMATION: This is a summary of the Fourth Report and 
Order, DA 11-315, released on February 18, 2011. The complete text of 
the Fourth Report and Order is available for inspection and copying 
during normal business hours in the FCC Reference Information Center, 
Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. 
The document may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room 
CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-
2893, facsimile (202) 863-2898, or via e-mail at http://www.bcpiweb.com. It is also available on the Commission's Web site at 
http://www.fcc.gov.

Synopsis of the Fourth Report and Order

    In a July 2004 Report and Order, the Commission reconfigured the 
800 MHz band to eliminate interference to public safety and other land 
mobile communication systems operating in the band, 69 FR 67823, 
November 22, 2004. In a Third Report and Order and Third

[[Page 11682]]

Further Notice of Proposed Rulemaking, adopted in April 2010, the 
Public Safety and Homeland Security Bureau, on delegated authority 
sought comment on its tentative conclusion to adopt the same 800 MHz 
band plan in the USVI as it had adopted in Puerto Rico, 75 FR 35363, 
June 22, 2010. The Bureau received two comments in response.
    Based on the record, the Bureau adopted its tentative conclusion 
because it best fulfills the Commission's goal to separate--to the 
greatest extent possible--public safety and other non-cellular 
licensees from licensees that employ cellular technology in the 800 MHz 
band. The non-ESMR band plan adopted contains the following elements:
    <bullet> All NPSPAC channels will be relocated from the 821-824/
866-869 MHz segment to channel assignments 15 MHz lower in frequency, 
i.e., to the 806-809/851-854 MHz band segment. Currently, there are no 
NPSPAC licensees in the USVI.
    <bullet> As with the Puerto Rico band plan, USVI incumbents in the 
806-809/851-854 MHz band segment will be relocated to comparable 
spectrum in the Interleaved, Expansion, or ESMR Band, depending on 
their eligibility.
    <bullet> All licensees currently operating in the Interleaved Band 
will remain on their current frequencies, except those relocating to 
the ESMR band.
    <bullet> All non-ESMR incumbents that are not public safety 
licensees and that currently operate in the Expansion Band, as 
modified, will remain on their current frequencies.
    <bullet> Licensees in the modified Guard Band may, at their option, 
relocate to the Interleaved or Expansion Band.
    <bullet> All licensees that currently operate between 817-821/862-
866 MHz and are not eligible to remain in the ESMR band will be 
relocated to the 809-816.5/854-861.5 MHz band segment, which includes 
the Interleaved and Expansion Bands of the USVI Band Plan.
    The ESMR Band in the USVI is identical to the U.S. non-border 817-
824/862-869 MHz ESMR band segment. Because not all ESMR and ESMR-
eligible licensees in USVI may be accommodated within that ESMR Band 
segment, the Bureau apportioned the USVI ESMR Band and directed the TA 
to use the following procedure:
    <bullet> The TA will attempt to assign replacement channels to the 
EA-based non-Sprint ESMR and ESMR-eligible licensees on a 1:1 basis 
relative to their existing USVI holdings. If ESMR channels remain after 
this assignment, the TA shall assign them to Sprint.
    <bullet> If, however, sufficient ESMR channels are not available to 
assign them on a 1:1 basis to all non-Sprint ESMR and ESMR-eligible 
licensees electing to relocate to the ESMR band, then the number of 
Sprint ESMR channels will be reduced to the extent necessary to assign 
channels to the non-Sprint licensees on a 1:1 basis.
    <bullet> If sufficient ESMR channels are not available following 
the apportionment, supra, then the holdings of all ESMR and ESMR-
eligible licensees electing to relocate to the ESMR band will be 
reduced pro rata such that all such licensees are accommodated in the 
band.
    The Bureau adopted a single 90-day mandatory negotiation period for 
the remaining incumbent licensees that must be returned from the 816.5-
821/861.5-866 MHz portion of the band. Thereafter, if Sprint and an 
incumbent licensee have not negotiated a Frequency Reconfiguration 
Agreement with Sprint, they must enter mandatory TA-sponsored 
mediation. The Bureau also established a 12-month transition period to 
complete rebanding in USVI. The transition period will start on March 
21, 2011 and end on March 20, 2012.
    The Bureau also extended the filing freeze on new applications in 
the USVI region until thirty working days after the date for completion 
of mandatory negotiations. However, the freeze does not apply to 
applications for modification of license that do not change an 800 MHz 
frequency or expand an 800 MHz station's existing coverage area (e.g., 
administrative updates), assignments/transfers, or renewal-only 
applications. In addition, licensees in the USVI region may expand 
their facilities or add channels during the freeze, but only pursuant 
to Special Temporary Authorization (STA). Requests for STA must be 
accompanied by a demonstration that, without the new or expanded 
facilities, there would be a specific, material and serious adverse 
effect on the safety of life or property.
    The Bureau also envisioned band reconfiguration in USVI will occur 
in the following stages, consistent with the Puerto Rico implementation 
plan:

Stage 1

    <bullet> Clear non-Sprint incumbent licensees from Channels 1-120. 
Defer assigning replacement spectrum for Preferred Acquisitions, Inc. 
(PAI) EA licenses.

Stage 2

    <bullet> Relocate EA and site-based ESMR licensees (except PAI) 
from the Interleaved channels to the ESMR band.
    <bullet> Relocate high-site incumbents from the ESMR band to the 
cleared Interleaved channels.
    <bullet> Relocate EA/ESMR licensees from the Guard Band to the 
cleared ESMR channels.

Stage 3 (If Necessary)

    <bullet> Relocate PAI's EA and site-based channels to the ESMR 
band.
    <bullet> If the ESMR band cannot accommodate all ESMR band 
licensees, then:
    [cir] Relieve the shortfall by redesignating Sprint channels for 
use by other licensees, and, if necessary,
    [cir] Reduce the number of all licensees' channels pro rata in 
order to accommodate all licensees within the ESMR band.

Procedural Matters

Final Regulatory Flexibility Certification

    The Regulatory Flexibility Act of 1980 (RFA) requires that a 
regulatory flexibility analysis be prepared for rulemaking proceedings, 
unless the agency certifies that ``the rule will not have a significant 
economic impact on a substantial number of small entities.'' The RFA 
generally defines ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. 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). We certify that the rule changes 
and actions in this Fourth Report and Order will have no significant 
economic impact on a substantial number of small entities.
    In this Fourth Report and Order, the Public Safety and Homeland 
Security Bureau, on delegated authority, establishes a revised 800 MHz 
band plan for the USVI in order to accomplish the Commission's goals 
for band reconfiguration. The band plan is identical to the band plan 
that the Commission previously adopted in this proceeding with one 
exception--the USVI band plan, identical to the Puerto Rico band plan, 
includes a slightly larger Expansion Band and a slightly smaller Guard 
Band. The USVI Expansion and Guard Bands we establish will not have a 
significant impact on a substantial number of small businesses, and our 
aim is to provide interference protection to non-ESMR licensees. 
Furthermore, although ESMR

[[Page 11683]]

licensees and ESMR-eligible licensees may be subject to a pro rata 
apportionment of spectrum, the number of such entities is not 
substantial, their operating capacity would not be significantly 
reduced, and the economic effect on their operations would not be 
significant. Therefore, we certify that the requirements of this Fourth 
Report and Order will not have a significant economic impact on a 
substantial number of small entities.

Paperwork Reduction Act Analysis

    This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. Therefore it does not contain any new or 
modified ``information burden for small business concerns with fewer 
than 25 employees,'' pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198.

Congressional Review Act

    The Commission will send a copy of this Fourth Report and Order in 
a report to be sent to Congress and the Government Accountability 
Office, pursuant to the Congressional Review Act.

Ordering Clauses

    Accordingly, it is ordered, pursuant to Sections 4(i) and 332 of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 332, and 
Sections 0.191 and 0.392 of the Commission's rules, 47 CFR 0.191, 
0.392, that this Fourth Report and Order is adopted.
    It is further ordered that the amendments of the Commission's rules 
set forth below, are effective, upon the date of publication in the 
Federal Register.
    It is further ordered that the Final Regulatory Flexibility 
Certification required by Section 604 of the Regulatory Flexibility 
Act, 5 U.S.C. 604, and as set forth above is adopted.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Fourth Report and Order, including the Final Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
Small Business Administration.

List of Subjects in 47 CFR Part 90

    Radio.

Federal Communications Commission.
Michael J. Wilhelm,
Deputy Chief, Policy Division, Public Safety and Homeland Security 
Bureau.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 90 as follows:

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

0
1. The authority citation for part 90 continues to read as follows:

    Authority: 4(i), 11, 303(g), 303(r), and 302(c)(7) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), 332(c)(7).

0
2. Section 90.617 is amended by revising the introductory text to 
paragraphs (k)(1)through (k)(4) to read as follows:


Sec.  90.617  Frequencies in the 809.750-824/854.750-869 MHz, and 896-
901/935-940 MHz bands available for trunked, conventional or cellular 
system use in non-border areas.

* * * * *
    (k) * * *
    (1) Mobile units (except in Puerto Rico and the U.S. Virgin 
Islands):
* * * * *
    (2) Portable units (except in Puerto Rico and the U.S. Virgin 
Islands):
* * * * *
    (3) Mobile units operating in Puerto Rico and the U.S. Virgin 
Islands:
* * * * *
    (4) Portable units operating in Puerto Rico and the U.S. Virgin 
Islands:
* * * * *

0
3. Section 90.677 is amended by revising the first sentence in 
paragraph (b) and revising paragraph (c) introductory text to read as 
follows:


Sec.  90.677  Reconfiguration of the 806-824/851-869 MHz band in order 
to separate cellular systems from non-cellular systems.

* * * * *
    (b) Voluntary negotiations. Thirty days before the start date for 
each NPSPAC region other than Region 47 and Region 48, the Chief, 
Public Safety and Homeland Security Bureau will issue a public notice 
initiating a three-month voluntary negotiation period. * * *
    (c) Mandatory negotiations. If no agreement is reached by the end 
of the voluntary period, a three-month mandatory negotiation period 
will begin during which both Sprint Nextel and the incumbents must 
negotiate in ``good faith.'' In Region 47, a 90-day mandatory 
negotiation period will begin 60 days after the effective date of the 
Third Report and Order and Third Further Notice of Proposed Rulemaking 
in WT Docket 02-55. In Region 48, a 90-day mandatory negotiation period 
will begin on March 21, 2011. Sprint Nextel and relocating incumbents 
may agree to conduct face-to-face negotiations or either party may 
elect to communicate with the other party through the Transition 
Administrator. All parties are charged with the obligation of utmost 
``good faith'' in the negotiation process. Among the factors relevant 
to a ``good-faith'' determination are:
* * * * *
[FR Doc. 2011-4787 Filed 3-2-11; 8:45 am]
BILLING CODE 6712-01-P