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###### Federal Communications Commission

          - 47 CFR Part 90
          - [WT Docket No. 02-55; DA 11-315]

# AGENCY:

Federal Communications Commission.

# ACTION:

Final rule.

# 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                           ( print 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:
    - 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.                
    - 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.
    - All licensees currently operating in the Interleaved Band will remain on their current frequencies, except those relocating to the ESMR band.
    - 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.
    - Licensees in the modified Guard Band may, at their option, relocate to the Interleaved or Expansion Band.
    - 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:
    - 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.
    - 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.
    - 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

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

### Stage 2

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

### Stage 3 (If Necessary)

    - Relocate PAI's EA and site-based channels to the ESMR band.
    - If the ESMR band cannot accommodate all ESMR band licensees, then:

○ Relieve the shortfall by redesignating Sprint channels for use by other licensees, and, if necessary,

○ 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                           ( print 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

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).

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

§ 90.617 

* * * * *

(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:

* * * * *

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

§ 90.677 

* * * * *

                            (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