75174 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1, 22, 24, 27, and 90 

[WT Docket Nos. 02–381, 01–14, 03–202; 

FCC 04–166] 

Facilitating the Provision of SpectrumBased Services to Rural Areas and 

Promoting Opportunities for Rural 

Telephone Companies To Provide 

Spectrum-Based Services

AGENCY: Federal Communications 

Commission.

ACTION: Proposed rule.

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) examines ways of 

amending its spectrum regulations and 

policies to promote the more rapid and 

efficient deployment of quality 

spectrum-based services in rural areas. 

In particular, the Commission seeks to 

expand upon the record in this 

proceeding by identifying additional 

measures that it can take to promote 

access to spectrum in rural areas. The 

Commission seeks additional comment 

on adopting an unserved-area or ‘‘keep 

what you use’’ re-licensing process for 

current and future wireless services and 

asks whether such measures are likely 

to spur the delivery of wireless services 

to rural areas. This document also 

inquires whether additional 

performance requirements might be 

appropriate for license terms subsequent 

to initial renewal to encourage the 

deployment of quality spectrum-based 

service in rural areas.

DATES: Comments due: January 14, 

2005. Reply Comments Due: February 

14, 2005.

FOR FURTHER INFORMATION CONTACT:

Allen A. Barna, Wireless 

Telecommunications Bureau, at (202) 

418–0620, or via the Internet at 

Allen.Barna@fcc.gov.

For additional information concerning 

the Paperwork Reduction Act 

information collection requirements 

contained in this document, contact 

Judith B. Herman at 202–418–0214, or 

via the Internet at JudithB.Herman@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a 

summary of the Further Notice of 

Proposed Rulemaking portion (Rural 

Further Notice) of the Commission’s 

Report and Order and Further Notice of 

Proposed Rulemaking FCC 04–166, in 

WT Docket Nos. 02–381, 01–14, and 03–

202, adopted July 8, 2004, and released 

September 27, 2004. Contemporaneous 

with this document, the Commission 

publishes the Report and Order and 

order on reconsideration portion (Report 

and Order) (summarized elsewhere in 

this publication). The full text of this 

document is available for public 

inspection and copying during regular 

business hours at the FCC Reference 

Information Center, 445 12th St., SW., 

Room CY–A257, Washington, DC 20554. 

The complete text may be purchased 

from the Commission’s duplicating 

contractor: Best Copy & Printing, Inc., 

445 12th Street, SW., Room CY–B402, 

Washington, DC, 20554, telephone 800–

378–3160, facsimile 202–488–5563, or 

via e-mail at fcc@bcpiweb.com. The full 

text may also be downloaded at:

http://www.fcc.gov. Alternative formats 

are available to persons with disabilities 

by contacting Brian Millin at (202) 418–

7426 or TTY (202) 418–7365 or at 

Brian.Millin@fcc.gov.

Synopsis of the Further Notice of 

Proposed Rulemaking 

I. Introduction 

1. In this Further NPRM, the 

widespread provision of 

communications services is not only 

one of the Commission’s primary public 

policy objectives, but also one of its 

statutory mandates. Our primary 

mission is to promote ‘‘communication 

by wire and radio so as to make 

available, so far as possible, to all the 

people of the United States, without 

discrimination on the basis of race, 

color, religion, national origin, or sex, a 

rapid, efficient, Nation-wide, and worldwide wire and radio communication 

service.’’ In addition, the Omnibus 

Budget Reconciliation Act of 1993 

added section 309(j) to the 

Communications Act, which requires 

the Commission to promote various 

objectives in designing a system of 

competitive bidding. A number of these 

objectives focus on the provision of 

spectrum-based services to rural areas, 

such as encouraging the development 

and rapid deployment of new 

technologies, products, and services for 

the benefit of the public, ‘‘including 

those residing in rural areas.’’ In 

addition to the rural service objectives 

mandated by section 309(j), Congress 

directed the Commission to pursue 

other broader public interest goals. 

Specifically, section 309(j)(3) requires 

the Commission to promote efficient 

and intensive use of the spectrum, 

encourage economic opportunity and 

competition, and recover for the public 

a portion of the value of the public 

spectrum. Given these statutory 

obligations, the Commission’s spectrum 

policy goals include facilitating the 

efficient use of spectrum, as well as 

fostering competition, and rapid, 

widespread service consistent with the 

goals of the Communications Act. In 

this proceeding, we released a Notice of 

Inquiry (Rural NOI) in December of 

2002, 68 FR 723 (January 7, 2003), and, 

in October 2003, we released our initial 

Notice of Proposed Rulemaking (Rural 

NPRM), 68 FR 64050 (November 12, 

2003). 

2. As noted in the Report and Order,

our current policies and rules generally 

facilitate rural development of wireless 

services where it is economic to do so. 

The competitive bidding process and 

related performance and other 

requirements for successful bidders, 

including existing substantial service 

and flexible use policies, encourage 

licensees to make productive and 

innovative use of spectrum. In addition, 

our secondary market mechanisms 

provide on-going opportunities for new 

entrants to gain access to spectrum from 

those licensees as market conditions 

change, thereby ensuring that spectrum 

moves to its highest valued uses over 

time. We believe that, insofar as they 

have economic incentives to do so, new 

wireless service providers will choose to 

enter rural markets and existing rural 

service providers will extend their 

presence further into the rural areas 

where they operate. 

3. As we acknowledge in the Report 

and Order, however, there may be 

circumstances in which our marketoriented policies are insufficient to 

foster access to spectrum and 

deployment of service in rural areas. In 

such cases, we will continue to consider 

the adoption of appropriate performance 

requirements, along with other means, 

for both existing and future licenses to 

further encourage the provision of 

wireless service to rural areas. 

Accordingly, in this Further Notice, we 

build on the record accumulated in 

response to the Rural NPRM and we 

seek comment on the appropriate 

mechanisms to further ensure that 

spectrum ultimately continues to be put 

to its highest valued use. In particular, 

we seek additional comment on the 

effectiveness of our partitioning, 

disaggregation, spectrum leasing and 

other market-based policies and rules in 

making wireless services available to 

more rural areas. We also seek comment 

on our potential use of ‘‘keep-what-youuse’’ re-licensing mechanisms, renewal 

term substantial service requirements, 

as well as other alternatives to move 

unused or underused spectrum to those 

who may be able to use it more 

intensively. We also seek comment on 

the economic impacts of employing 

such approaches and whether different 

services may benefit from different 

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 75175

approaches to expanded spectrum 

access. 

4. As noted above, service to rural 

areas may be delayed because entities 

that are otherwise willing and able to 

deploy service lack access to spectrum. 

The increasing use of unlicensed 

wireless technologies and applications 

in rural areas suggests that operators 

will deploy service if there is 

availability of or access to spectrum 

with which to do so. Accordingly, we 

undertake this further inquiry to assess 

alternative methods that will ensure that 

spectrum rights flow to those who are 

willing and able to put spectrum to use 

in rural areas. 

5. In this Rural Further Notice, we 

seek to explore whether changing our 

method for enforcing performance 

requirements or adding renewal term 

performance requirements could have a 

beneficial impact on the deployment of 

wireless service to rural areas. In this 

regard, this section examines how the 

licensing of wireless services has 

evolved from a ‘‘keep what you use’’

standard to a ‘‘complete forfeiture’’

approach. The following paragraphs 

provide an overview of the development 

of licensing models and performance 

standards, while also providing the 

Commission’s rationale behind these 

policy shifts. 

II. Background 

6. Site-by-site Construction. Initially, 

the Commission licensed mobile and 

fixed wireless services on a site-by-site 

and frequency-by-frequency basis. 

Licensees were authorized to operate a 

station only at a specific location, using 

a specific frequency or frequencies. 

Some examples of this type of licensing 

approach include one or more base 

stations with mobile units in the 

vicinity, or a fixed communications 

path between two points. With this type 

of site-specific licensing, the 

Commission adopted a ‘‘keep what you 

use’’ performance requirement, meaning 

that at the end of a licensee’s 

construction period, any unconstructed 

areas or frequencies came back under 

Commission control for re-licensing on 

a first-come, first served (often precoordinated) site-by-site basis. In this 

regard, the Commission sought to 

ensure timely use of spectrum and ‘‘to 

ensure that the channels which we 

make available to eligibles are put in 

‘use’ and not put in ‘storage.’ ’’

7. For example, the Commission’s 

original rules governing 800 MHz SMR 

were designed to license dispatch radio 

systems on a transmitter-by-transmitter 

basis in local markets. The Commission 

typically gave an 800 MHz SMR 

licensee up to 12 months after the grant 

of a license to construct and begin 

operation of its facilities, meaning that 

each licensed site and frequency had to 

be up and running within one year. At 

the end of that time period, licensed 

areas and frequencies that were 

unconstructed reverted back to the 

Commission for re-licensing. 

8. Hybrid Licensing. As technology 

evolved, mobile wireless providers 

sought to expand their reach and to 

provide service over a wide area. Two 

different approaches of ‘‘wide-area’’

licensing developed in response to 

increasing demand for new services: the 

SMR model and the cellular model. 

While these approaches permitted SMR 

and cellular carriers to operate within a 

wide-area footprint, the Commission’s 

site-specific licensing rules and ‘‘keep 

what you use’’ policy still applied. 

9. For example, responding to 

growing demand for mobile telephony 

and limited capacity, SMR licensees 

sought to operate technically 

innovative, wide-area systems. Because 

of the complexity and expense of 

building these systems, however, 

licensees were frequently unable to 

provision service within the 8 to 12 

month time frame required by 

Commission rules. Beginning in 1991, 

the Commission granted waivers and 

extended implementation authority to 

many SMR licensees, giving them 

authority to expand the geographic 

scope of their services and combine 

large numbers of channels in order to 

provide service intended to compete 

with cellular. Applicants who were 

granted waivers or extended 

implementation authority received 

additional time to construct the licensed 

spectrum. However, applicants still had 

to apply for each site individually and 

in the event the licensee did not 

construct and operate the frequencies 

within the extended time period, the 

unused spectrum came back under 

Commission control for re-licensing. 

10. In contrast, wide-area licensing for 

the cellular radiotelephone service 

followed a different path. In establishing 

commercial licensing of cellular in 

1981, the Commission recognized the 

need to define cellular service areas 

while also providing authorized cellular 

operators with the freedom they needed 

to adapt their systems in the face of 

growing and changing demand. The 

Commission established a regulatory 

structure centered on cellular 

geographic service areas (CGSAs) that 

would be defined by license applicants 

themselves as the areas within a market 

that they intended to serve. An 

applicant was required to serve at least 

75 percent of its CGSA. The 

Commission soon after added an 

additional rule, requiring applicants to 

define their CGSAs to cover at least 75 

percent of the population or area of the 

corresponding MSA or RSA. Carriers 

operating in MSAs were required to 

place their cellular stations into 

operation within 36 months of the 

initial license grant, while operators in 

RSAs had 18 months to construct. In 

addition, the Commission afforded 

licensees a five-year ‘‘fill-in’’ period in 

which a licensee could apply to expand 

the boundaries of its CGSA within the 

MSA/RSA without the worry of 

competing interests from another 

applicant. 

11. As the popularity of cellular 

service began to grow, the Commission 

determined that it was not in the public 

interest to allow a cellular licensee to 

protect unserved territory for an 

unlimited period of time simply because 

the territory was part of its CGSA. The 

Commission, therefore, imposed a 

‘‘keep-what-you-use’’ regime on all 

cellular licenses, and established rules 

and procedures for accepting 

applications to operate new cellular 

systems in areas still unserved at the 

expiration of the incumbent’s five-year 

‘‘fill-in’’ period. In addition, the 

Commission adopted rules determining 

the size of CGSAs by a mathematical 

formula and redefined the boundaries 

authorized for existing cellular systems 

to more closely mirror the areas of 

actual construction and coverage so that 

potential licensees for the cellular 

unserved areas would have a clearer 

picture of which areas were available. 

At the end of the five year ‘‘fill-in’’

period, any unused spectrum reverted 

back to the Commission for re-licensing. 

New licenses authorized as a result of 

the unserved area licensing rules are 

licensed on a site-specific basis, and 

licensees are required to complete 

construction and provide service to the 

public within one year of the initial 

authorization grant. 

12. Geographic Area-based Approach. 

While the hybrid licensing models did 

help to expand wireless service, 

problems remained. For example, even 

with waivers and grants of extended 

implementation authority developed in 

the hybrid licensing model, the SMR 

licensing process remained cumbersome 

because of the requirement that SMR 

sites and frequencies be licensed 

individually. The Commission noted 

specifically that site-by-site licensing 

deprives licensees of flexibility to move 

transmitter sites throughout a defined 

service area without seeking the 

Commission’s prior approval.’’ In order 

to provide wireless licensees with 

needed flexibility, therefore, the 

Commission adopted a system of 

75176 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 

geographic-area licensing with 

minimum coverage requirements based 

on population or geography. At the 

same time, the Commission transitioned 

from the ‘‘keep what you use’’ licensing 

policy to a ‘‘complete forfeiture’’

approach, which made licenses subject 

to automatic cancellation for failure to 

meet interim coverage requirements at 

specified benchmarks. Failure to meet 

applicable performance benchmarks 

would result in complete loss of the 

license, even in areas where 

construction had already been 

completed. 

13. The Commission first applied 

geographic area licensing and a 

‘‘complete forfeiture’’ performance 

standard when it established the 

narrowband and broadband PCS 

services. In order to permit the widest 

possible range of mobile 

communications, the Commission put 

in place technical standards that would 

permit significant flexibility in both the 

design and implementation of PCS 

systems as well as geographic- and 

population-based construction 

benchmarks that would ensure that 

licensees built out their systems or face 

forfeiture of their licenses. The 

Commission concluded that these and 

other changes to its licensing approach 

would encourage diversity of 

technologies and speed deployment of 

service. In addition, in 2000, the 

Commission adopted ‘‘substantial 

service’’ as an alternative construction 

requirement for PCS licensees. As 

noted, under the ‘‘complete forfeiture’’

approach, failure to meet these 

benchmarks results in automatic 

cancellation or non-renewal of the 

entire PCS license, including the rights 

to operate from any facilities already 

constructed under the authorization. 

14. The Commission also applied 

geographic area licensing to existing 

services, such as SMR. The Commission 

sought to institute policies that would 

afford wide-area SMR system licensees 

opportunities to bid on new licenses 

that offered the same flexibility as 

cellular and PCS licenses in terms of 

facility location, design, construction, 

and modification. Therefore, the 

Commission designated the upper 200 

channels of 800 MHz SMR spectrum for 

geographic-area licensing based on EAs, 

and overlayed geographic markets over 

existing site-based systems. The 

Commission granted licensees the 

authority to construct base stations at 

any available site and on any available 

channel within their spectrum blocks so 

long as previously existing site-based 

facilities are provided appropriate 

interference protection. Using the 

‘‘complete forfeiture’’ approach, the 

Commission also instituted minimum 

coverage and channel use requirements 

at three- and five-year benchmarks. Two 

years later, in 1997, the Commission 

adopted geographic-area licensing with 

EA service areas for the lower 230 800 

MHz channels as well, stating that 

geographic area licensing remains the 

most efficient and logical licensing 

approach for the majority of licensees in 

the band. The Commission adopted 

construction requirements similar to the 

upper channels, but eliminated the 

channel usage requirement and also 

adopted an alternative plan whereby 

licensees in the lower 230 channels can 

satisfy coverage obligations by 

providing substantial service within five 

years of license. 

15. In recent years, the Commission 

has continued to embrace geographic 

area licensing and moved towards the 

adoption of more flexible construction 

requirements, such as substantial 

service. This shift has occurred in order 

to provide flexibility for licensees 

seeking to provide a variety of services 

with their spectrum, not all of which 

require pervasive geographic coverage, 

as well as to accommodate licenses 

encompassing very large service areas as 

opposed to smaller site-based licenses. 

In keeping with its goal of flexibility for 

licensees, the Commission has also 

adopted substantial service as the sole 

standard, or as an alternate standard, for 

many services. For example, LMDS, 39 

GHz and 24 GHz microwave services all 

have the sole construction requirement 

of providing substantial service by the 

end of the initial license term. As 

discussed earlier, the Commission’s 

increasing movement towards 

substantial service as an alternative 

means of meeting construction 

requirements has been met with mixed 

reactions. Based on this difference of 

opinion between commenters, we seek 

further comment in the paragraphs 

below as to the appropriate performance 

standards to apply.

16. We note that regardless of the type 

of requirement, our current performance 

requirements apply only during the 

initial term. As noted, once a licensee 

renews its license, no additional 

performance requirements are imposed 

in subsequent terms other than the 

standard necessary in order to achieve 

a renewal expectancy. In the case of 

renewals, if an incumbent files an 

appropriate and timely application and 

neither the public nor the Commission 

objects, the license will typically be 

renewed for another term. However, if 

another party objects or files a 

competing application, a licensee must 

demonstrate that it is entitled to a 

renewal expectancy. A renewal 

applicant involved in a comparative 

renewal proceeding will acquire a 

renewal expectancy if the applicant 

provides sufficient evidence that the 

applicant has provided substantial 

service during its license term, and that 

the applicant has substantially complied 

with the Communications Act, as well 

as with all applicable Commission rules 

and policies. As a general matter, if a 

renewal applicant satisfies these 

requirements, the applicant will be 

granted a renewal expectancy and other 

competing applications will be 

dismissed. 

III. Further Notice of Proposed 

Rulemaking 

A. Existing Market-Based Models 

17. The Commission’s rules and 

policies provide interested parties with 

several market-based vehicles for 

obtaining access to licensed spectrum 

through the secondary market. First, an 

interested party may obtain a license 

through the assignment and transfer of 

control process, pursuant to 

Commission review and approval under 

section 310(d) of the Communications 

Act. Furthermore, by utilizing the 

partitioning and disaggregation process, 

parties need not buy a license ‘‘as is—

instead, parties may obtain licenses for 

a particular subset of frequencies and 

carve out certain geographic areas that 

satisfy their unique needs, while the 

original licensee retains the remaining 

frequencies and geographic areas. 

Second, parties may utilize the 

spectrum leasing process—further 

enabled under the Commission’s 

secondary markets proceeding—to 

engage in short- and long-term leases. 

Based upon the record developed in 

response to the Rural NPRM, we are 

hopeful that these measures will 

provide effective means of providing 

access to spectrum through the 

secondary market. As discussed below, 

however, it appears that there are ways 

in which these mechanisms 

nevertheless may not satisfy the needs 

of some parties; in the following 

paragraph, we identify some of the key 

concerns with these mechanisms, as 

reflected in the record, and seek 

additional comment on the efficacy of 

these procedures in providing access to 

spectrum in rural areas. 

18. As an initial matter, we observe 

that the record reflects some 

disagreement with respect to the 

effectiveness of our partitioning and 

disaggregation policies in providing 

access to spectrum in rural areas. On the 

one hand, the record provides 

information on partitioning and 

disaggregation transactions that suggest 

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 75177

these policies are working. On the other 

hand, the record also shows that some 

rural carriers may not be receiving the 

benefits of partitioning and 

disaggregation. According to 

commenter, the problems with 

partitioning and disaggregation are 

multi-fold: (1) The Commission’s rules 

do not provide licensees with an 

incentive to ‘carve out’ portions of their 

license areas for rural carriers; (2) the 

administrative costs of entering into and 

managing the partitioning/

disaggregation process outweigh the 

realized financial gains; (3) and 

licensees wish to retain the entire 

geographic area when they go to sell the 

system as a whole in the future, because 

licensees perceive that unpartitioned 

licenses will have a higher resale value. 

Another commenter echoes these 

concerns, stating that large national and 

regional carriers that control licenses for 

most of the spectrum are not willing or 

able to devote the time and resources 

necessary to negotiate and implement 

arrangements on the scale desired by 

rural telephone companies. 

19. In order to identify the specific 

nature and extent to which our 

partitioning and disaggregation rules are 

working, we seek additional comment 

on specific partitioning and 

disaggregation transactions, as well as 

the negotiations process. We seek to 

develop a more comprehensive 

understanding of the ways in which this 

process may be insufficient to promote 

access to spectrum. Given the 

conflicting record regarding the ability 

of carriers to engage in smaller-scale 

partitioning and disaggregation 

transactions, we believe that additional 

information, particularly specific 

transaction data, will facilitate our 

greater understanding of the benefits 

and shortfalls of our partitioning and 

disaggregation policies in fostering 

access to spectrum in rural areas. We 

also seek comment on how these 

policies may work in coordination with 

potential re-licensing mechanisms such 

as ‘‘keep what you use,’’ as discussed in 

greater detail below. We note that 

certain commenters proposed various 

incentives for licensees to engage in 

partitioning and disaggregation, 

including the provision of bidding 

credits for auction winners that commit 

to partitioning portions of their licenses 

to rural carriers, monetary credits 

towards a future spectrum auction in 

exchange for the return of unused 

spectrum, and credits towards licensees’

construction obligations. We ask for 

comment on these proposals and also 

seek comment on additional incentives 

that are likely to encourage partitioning 

and disaggregation in rural areas. 

20. In addition to the partitioning and 

disaggregation process, the 

Commission’s rules also facilitate access 

to spectrum on the secondary market 

through spectrum leasing. Because our 

rules further enabling spectrum leasing 

went into effect on January 24, 2004, we 

are not yet in a position to evaluate the 

effectiveness of spectrum leasing in 

providing access to spectrum in rural 

areas. Nevertheless, we are encouraged 

by the record that interested parties will 

take advantage of our spectrum leasing 

rules to obtain access to previously 

‘‘unused’’ spectrum and provide 

innovative and new service offerings to 

the public. Indeed, based upon 

preliminary information regarding 

proposed spectrum leasing transactions, 

we are optimistic that our spectrum 

leasing rules are affording many new 

opportunities for access to spectrum, 

including spectrum in rural areas.

21. While the record in response to 

the Rural NPRM indicates that many 

commenters are optimistic that our 

spectrum leasing will promote the 

deployment of wireless services to rural 

areas and therefore urge the 

Commission to ‘‘wait and see’’ how 

secondary markets develop prior to 

taking any regulatory action to 

encourage spectrum access, others 

indicate concern that this market-based 

mechanism will be an insufficient 

means of providing spectrum access. 

Accordingly, we seek additional 

comment on how spectrum leasing is 

addressing concerns about access to 

spectrum, particularly from those who 

have entered into, or are contemplating, 

such transactions. In particular, we seek 

comment regarding situations where 

parties’ need for spectrum have been 

accommodated by spectrum leasing as 

well as situations where those needs 

may not have been satisfied by the 

availability of such leasing. 

B. ‘‘Keep What You Use’’ Re-licensing 

Measures 

22. Based upon the record developed 

in this proceeding, as well as available 

data on partitioning and disaggregation 

transactions and preliminary 

information on spectrum leasing 

agreements, we believe that our current 

policies and regulations are working to 

promote access to ‘‘unused’’ spectrum. 

Nevertheless, the record also suggests 

that, for a variety of reasons, there may 

be instances where these market-based 

policies may not be adequate to promote 

access to spectrum in rural areas. As we 

have already indicated, the rapid 

provision of broadband and other 

wireless services to rural areas is of 

critical importance in accomplishing 

our statutory and public policy 

objectives. Accordingly, if we determine 

that our current policies are insufficient 

to increase access to spectrum, we may 

take additional measures to ensure that 

unused spectrum moves into the hands 

of those who stand ready and willing to 

deploy wireless voice and data services 

to rural Americans. 

23. Based upon the record received in 

response to the Rural NPRM, 

commenters indicate that extending the 

‘‘keep what you use’’ to additional 

wireless services may provide a variety 

of benefits. For those services that 

otherwise would be subject to a 

‘‘complete forfeiture’’ approach, a ‘‘keep 

what you use’’ approach might also 

have the benefit of allowing future 

licensees in those services to keep 

certain portions of their licenses rather 

than forfeiting the entire license for 

failure to satisfy certain benchmarks. 

24. We also recognize, however, that 

adopting a ‘‘keep what you use’’

approach may yield certain unintended 

and potentially detrimental 

consequences, as asserted by a number 

of commenters. As an initial matter, 

commenters suggest that adopting a 

‘‘keep what you use’’ approach may not 

actually result in additional rural 

deployment, because, if it is 

economically beneficial for a carrier to 

deploy services in a particular area, they 

have sufficient incentive to do so 

without regulatory intervention. 

Second, commenters caution that 

adopting a ‘‘keep what you use’’

approach may upset the valuation of 

spectrum licenses and chill investment 

in wireless services. Third, such an 

approach might result in uneconomic 

construction, in an attempt to ‘‘save’’

licensed area. Fourth, adopting the 

‘‘keep what you use’’ approach may 

result in numerous administrative and 

legal costs, including the costs of 

initially assessing whether the spectrum 

is being ‘‘used,’’ reclaiming the subject 

spectrum and resolving ‘‘any 

controversy or litigation that may arise 

as a result,’’ engaging in the re-licensing 

process, and ‘‘waiting to see whether the 

new licensees actually provide the 

desired wireless service to the indicated 

rural territory.’’ Finally, carriers express 

concern that adopting a ‘‘keep what you 

use’’ approach may strip a licensee of 

legitimate business opportunities, such 

as the ability to lease excess spectrum 

in the secondary market. 

25. Given the potential benefits and 

drawbacks of the ‘‘keep what you use’’

approach, we intend to continue to 

examine carefully the potential use of 

this mechanism to increase access to 

spectrum in this proceeding as well as 

75178 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 

in future service-specific proceedings. 

In the Rural NPRM, the Commission 

limited its inquiry regarding spectrum 

re-licensing and adoption of the ‘‘keep 

what you use’’ approach to future 

spectrum allocations only. In this Rural 

Further Notice, however, we extend our 

inquiry to include all licensed terrestrial 

wireless services that are within the 

scope of this proceeding, as well as 

future spectrum allocations. 

Accordingly, we see comment on the 

benefits, if any, of extending the ‘‘keep 

what you use’’ approach. We ask 

whether the potential benefits of the 

‘‘keep what you use’’ approach, in terms 

of increasing access to spectrum in rural 

areas, are likely to outweigh the 

potential costs. In this regard, 

commenters are asked to discuss the 

likelihood that such an approach will in 

fact cause uneconomic construction. We 

note that, to the extent that any 

construction requirement will cause a 

licensee to deploy facilities in a manner 

in which it may not otherwise have in 

the absence of such a rule, any build-out 

obligation could to some extent be said 

to cause uneconomic investment or 

construction. Accordingly, we seek 

comment on whether a ‘‘keep what you 

use’’ approach will cause undue 

disruption or whether it should more 

appropriately be viewed as one of many 

factors to be considered by a licensee in 

determining whether or not to deploy 

facilities in a given area. 

26. We also seek comment on the 

impact of such a re-licensing approach 

on secondary markets. Because 

licensees may wish to recoup some 

financial benefit from their unused 

spectrum, rather than simply allowing it 

to revert to the Commission, a ‘‘keep 

what you use’’ approach would seem to 

encourage licensees to engage in more 

partitioning, disaggregation, and 

spectrum licensing arrangements. For 

these reasons, adoption of a ‘‘keep what 

you use’’ approach might well 

complement our existing market-based 

policies. On the other hand, we note 

that certain commenters caution that a 

‘‘keep what you use’’ approach to 

spectrum re-licensing could eliminate 

long range benefits from the 

Commission’s positive steps taken to 

foster development of a secondary 

market in spectrum. We seek 

clarification on the potential impact of 

a ‘‘keep what you use’’ approach on our 

secondary market policies. 

27. We acknowledge that any ‘‘keep 

what you use’’ approach would 

necessitate certain important 

administrative determinations, such as 

identifying what constitutes ‘‘use’’ for 

particular services and requiring 

licensees to demonstrate sufficient 

‘‘use.’’ However, we do not intend to set 

out a comprehensive definition of 

spectrum ‘‘use’’ in this proceeding. 

Should we adopt a ‘‘keep what you use’’

approach, we will examine the 

definition of ‘‘use’’ and other 

administrative issues in future servicespecific proceedings. 

C. Renewal Term Substantial Service 

Requirements 

28. We also seek comment on whether 

we should strengthen the application of 

substantial service performance 

requirements after initial license terms 

as a means of encouraging access to 

spectrum and provision of service in 

rural areas. The Report and Order

provided most geographic area licensees 

with the option of satisfying a 

substantial service standard if they did 

not already have such an option. As 

discussed in the Report and Order, the 

unique characteristics and 

considerations inherent in constructing 

within rural areas may make it 

impractical for licensees with 

population-based build-out 

requirements to construct in such areas. 

We believe that enabling licensees to 

fulfill their construction obligations by 

providing substantial service affords 

them the flexibility to deploy facilities 

in sparsely populated areas that 

otherwise may not be served. Indeed, 

the record in this proceeding supports 

our belief that the substantial service 

requirement enhances licensee ability to 

bring service to rural areas. 

29. We therefore seek comment on the 

viability of more rigorous substantial 

service construction requirements for 

licenses beyond their initial license 

terms. Given our interest in ensuring 

that spectrum is available to those who 

actively seek to deploy facilities, we ask 

if such a measure would promote access 

to spectrum and expanded service in 

sparsely populated areas. We also ask 

how best to structure any new 

substantial service requirements for use 

in renewal license terms that will 

expand coverage in rural areas. For 

example, should we require the 

provision of additional coverage beyond 

that which is sufficient to satisfy the 

existing substantial service standard 

during the initial license term? In other 

words, is it reasonable to expect a 

carrier to expand its coverage over time 

and therefore impose an increasing 

substantial service requirement? If so, 

we ask commenters to explain how best 

to formulate such standards to provide 

both existing and prospective licensees 

with flexibility to develop or revise their 

long-term business plans and build-out 

strategies but also with sufficient clarity 

for them to understand what needs to be 

accomplished and by what date. In 

addition, we ask commenters to 

describe any safe harbor provisions that 

would facilitate compliance or explain 

why the adoption of a safe harbor for 

that particular standard would not be 

appropriate. In addition, given our 

desire to encourage the deployment of 

service in rural areas, should we require 

licensees to demonstrate that some 

percentage of the rural population of its 

licensed areas is being covered in order 

to satisfy its substantial service showing 

whether or not a competing application 

is filed against a renewal application? 

Recognizing the reservations of some to 

the imposition of performance 

requirements during renewal license 

terms, we also seek comment on any 

disadvantages that might accrue if we 

were to strengthen substantial service 

performance after initial terms.

D. Other Alternatives 

30. We ask commenters to identify 

any other methods we might adopt to 

make unused spectrum available to 

those better positioned to deploy service 

in the event our market-based policies 

fail to do so. For example, as stated 

earlier, although we believe it is 

premature at this time to adopt the use 

of easements, we will continue to 

consider the potential impact of 

easements on the incentives of all 

parties to ensure the highest and best 

use of the band. Comments in this 

proceeding provided mixed views on 

such use. One commenter generally 

supports such easements provided they 

permit, but do not require, licensees to 

allow the operation of unlicensed 

devices on their networks. However, 

others submit that such easements or 

underlays for the provision of 

unlicensed services should not be 

permitted because they believe that 

unlicensed overlays will interfere with 

the Commission’s secondary market 

policies, would create uncertainty 

regarding a licensee’s spectrum rights, 

as well as raise interference concerns. 

We, nevertheless, remain interested in 

the role that easements or other 

authorized secondary uses could play in 

providing incentives for the 

development by third parties of new 

devices and services that will increase 

access to spectrum, such as softwaredefined radios and other frequency-agile 

devices in frequency bands that are 

otherwise currently restricted to 

exclusive license holders. Such ability 

to take advantage of unused portions of 

licensed spectrum could lead to the 

development of more equipment at 

lower costs, a key barrier to entry in 

rural areas. Nonetheless, we also seek to 

afford license holders as much 

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 75179

reliability in their spectrum usage rights 

as practicable. In light of the objections 

of some to the possible use of 

easements, we ask commenters to clarify 

their objections and, where possible, 

provide examples of potential adverse 

consequences. Should we choose to use 

such easements, we ask, first, how they 

could be structured to increase 

spectrum access and service coverage 

while also addressing the concerns 

raised in the comments. Second, after 

what time period should we allow 

entities to employ such easements, e.g., 

immediately after renewal if a certain 

standard was not met during the initial 

term, or at some other point? 

31. Finally, because we recognize that 

different wireless services may benefit 

from different approaches to spectrum 

access, we ask commenters to identify 

the specific services to which their 

proposed approaches should apply and 

whether there are any services that 

should be excluded. For example, how 

should the re-licensing methodologies 

available for mobile wireless services be 

different than those for fixed services? 

Should different approaches be applied 

to different geographic markets, i.e. is it 

appropriate to apply the same relicensing method for a nationwide 

license as well as a MTA-based license? 

IV. Procedural Matters 

A. Ex Parte Rules—Permit-But-Disclose 

Proceeding 

32. This is a permit-but-disclose 

notice and comment rule making 

proceeding. Ex parte presentations are 

permitted, except during the Sunshine 

Agenda period, provided they are 

disclosed as provided in Commission 

rules. 

B. Initial Regulatory Flexibility Analysis 

1. Introduction 

33. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), the Commission has prepared 

this present Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

a substantial number of small entities by 

the policies and rules proposed in this 

Further Notice of Proposed Rulemaking 

(Further Notice). 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 the 

Further Notice provided in paragraph 

183 of the item. The Commission will 

send a copy of the Further Notice, 

including this IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration (SBA). In 

addition, the Further Notice and IRFA 

(or summaries thereof) will be 

published in the Federal Register. 

2. Need for, and Objectives of, the 

Proposed Rules 

34. In this Rural Further Notice, the 

Commission seeks to expand upon the 

record received in response to the Rural 

NPRM, with respect to additional 

measures that the Commission can take 

in order to promote the further 

expansion of spectrum-based services 

into rural areas. As the Commission 

observed in the Report and Order, there 

may be circumstances in which our 

market-oriented policies lack the ability 

to foster access to spectrum and 

deployment of wireless service in rural 

areas. In situations such as these, 

therefore, it may be appropriate to 

impose renewal-term performance 

requirements for both existing and 

future licenses in order to continue to 

encourage the provisioning of wireless 

service to rural areas. Based on these 

observations, the Further Notice seeks 

comment in the following areas. 

35. First, the Commission seeks 

comment on the appropriate mechanism 

to further ensure that spectrum 

continues to be put to its highest valued 

use. Specifically, the Rural Further 

Notice seeks additional comment 

concerning the effectiveness of the 

Commission’s partitioning, 

disaggregation, and secondary markets 

rules as well as other market-based 

policies and rules in making wireless 

services available in more rural areas. 

36. Second, the Commission also 

seeks comment on the potential use of 

‘‘keep what you use’’ relicensing 

mechanisms, renewal term substantial 

service requirements, and other 

alternatives such as easements to move 

unused or underused spectrum to those 

carriers who may be able to use it more 

intensively. At the same time, the 

Commission seeks comment on the 

economic impact of employing the 

above approaches and whether there are 

different services that may benefit from 

a different approach to expanded 

spectrum access.

3. Legal Basis 

37. The Commission tentatively 

concludes that it has authority to issue 

the Rural Further Notice under sections 

4(i), 11, 303(r), 309(j) and 706 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 157, 161, 

303(r), and 309(j). 

4. Description and Estimate of the 

Number of Small Entities to Which the 

Rules Will Apply 

38. The RFA directs agencies to 

provide a description of, and where 

feasible, an estimate of the number of 

small entities that may be affected by 

the rules adopted herein. The RFA 

generally defines the term ‘‘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). 

39. Cellular Licensees. The SBA has 

developed a small business size 

standard for small businesses in the 

category ‘‘Cellular and Other Wireless 

Telecommunications.’’ Under that SBA 

category, a business is small if it has 

1,500 or fewer employees. According to 

the Bureau of the Census, only twelve 

firms out of a total of 1,238 cellular and 

other wireless telecommunications 

firms operating during 1997 had 1,000 

or more employees. Therefore, even if 

all 12 of these firms were cellular 

telephone companies, nearly all cellular 

carriers are small businesses under the 

SBA’s definition. 

40. 220 MHz Radio Service—Phase I 

Licensees. The 220 MHz service has 

both Phase I and Phase II licenses. Phase 

I licensing was conducted by lotteries in 

1992 and 1993. There are approximately 

1,515 such non-nationwide licensees 

and four nationwide licensees currently 

authorized to operate in the 220 MHz 

band. The Commission has not 

developed a definition of small entities 

specifically applicable to such 

incumbent 220 MHz Phase I licensees. 

To estimate the number of such 

licensees that are small businesses, we 

apply the small business size standard 

under the SBA rules applicable to 

‘‘Cellular and Other Wireless 

Telecommunications’’ companies. This 

category provides that a small business 

is a wireless company employing no 

more than 1,500 persons. According to 

the Census Bureau data for 1997, only 

12 firms out of a total of 1,238 such 

firms that operated for the entire year, 

had 1,000 or more employees. If this 

general ratio continues in the context of 

Phase I 220 MHz licensees, the 

Commission estimates that nearly all 

such licensees are small businesses 

under the SBA’s small business 

standard. 

41. 220 MHz Radio Service—Phase II 

Licensees. The 220 MHz service has 

both Phase I and Phase II licenses. The 

Phase II 220 MHz service is subject to 

spectrum auctions. For this service in 

75180 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 

1997, we adopted a small business size 

standard for defining ‘‘small’’ and ‘‘very 

small’’ businesses for purposes of 

determining their eligibility for special 

provisions such as bidding credits and 

installment payments. This small 

business standard indicates that a 

‘‘small business’’ is an entity that, 

together with its affiliates and 

controlling principals, has average gross 

revenues not exceeding $15 million for 

the preceding three years. A ‘‘very small 

business’’ is defined as an entity that, 

together with its affiliates and 

controlling principals, has average gross 

revenues that do not exceed $3 million 

for the preceding three years. The SBA 

has approved these small size standards. 

Auctions of Phase II licenses 

commenced on September 15, 1998, and 

closed on October 22, 1998. In the first 

auction, 908 licenses were auctioned in 

three different-sized geographic areas: 

three nationwide licenses, 30 Regional 

Economic Area Group (EAG) Licenses, 

and 875 Economic Area (EA) Licenses. 

Of the 908 licenses auctioned, 693 were 

sold. Thirty-nine small businesses won 

373 licenses in the first 220 MHz 

auction. A second auction included 225 

licenses: 216 EA licenses and 9 EAG 

licenses. Fourteen companies claiming 

small business status won 158 licenses. 

A third auction included four licenses: 

2 BEA licenses and 2 EAG licenses in 

the 220 MHz Service. No small or very 

small business won any of these 

licenses. 

42. Lower 700 MHz Band Licenses.

We adopted criteria for defining three 

groups of small businesses for purposes 

of determining their eligibility for 

special provisions such as bidding 

credits. We have defined a small 

business as an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues not 

exceeding $40 million for the preceding 

three years. A very small business is 

defined as an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues that are not 

more than $15 million for the preceding 

three years. Additionally, the lower 700 

MHz Service has a third category of 

small business status that may be 

claimed for Metropolitan/Rural Service 

Area (MSA/RSA) licenses. The third 

category is entrepreneur, which is 

defined as an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues that are not 

more than $3 million for the preceding 

three years. The SBA has approved 

these small size standards. An auction 

of 740 licenses (one license in each of 

the 734 MSAs/RSAs and one license in 

each of the six EAGs) commenced on 

August 27, 2002, and closed on 

September 18, 2002. Of the 740 licenses 

available for auction, 484 licenses were 

sold to 102 winning bidders. Seventytwo of the winning bidders claimed 

small business, very small business or 

entrepreneur status and won a total of 

329 licenses. A second auction 

commenced on May 28, 2003, and 

closed on June 13, 2003, and included 

256 licenses: 5 EAG licenses and 476 

CMA licenses. Seventeen winning 

bidders claimed small or very small 

business status and won sixty licenses, 

and nine winning bidders claimed 

entrepreneur status and won 154 

licenses. 

43. Upper 700 MHz Band Licenses.

The Commission authorized service in 

the upper 700 MHz band in 2000. The 

related auction, previously scheduled 

for January 13, 2003, has been 

postponed. 

44. Paging. For the Paging Service in 

1997, we adopted a size standard for 

‘‘small businesses’’ for purposes of 

determining their eligibility for special 

provisions such as bidding credits and 

installment payments. A small business 

is an entity that, together with its 

affiliates and controlling principals, has 

average gross revenues not exceeding 

$15 million for the preceding three 

years. The SBA has approved this 

definition. An auction of Metropolitan 

Economic Area (MEA) licenses 

commenced on February 24, 2000, and 

closed on March 2, 2000. Of the 2,499 

licenses auctioned, 985 were sold. Fiftyseven companies claiming small 

business status won 440 licenses. An 

auction of Metropolitan Economic Area 

(MEA) and EA licenses commenced on 

October 30, 2001, and closed on 

December 5, 2001. Of the 15,514 

licenses auctioned, 5,323 were sold. 

One-hundred thirty-two companies 

claiming small business status 

purchased 3,724 licenses. A third 

auction, consisting of 8,874 licenses in 

each of 175 EAs and 1,328 licenses in 

all but three of the 51 MEAs 

commenced on May 13, 2003, and 

closed on May 28, 2003. Seventy-seven 

bidders claiming small or very small 

business status won 2,093 licenses. 

Currently, there are approximately 

24,000 Private Paging site-specific 

licenses and 74,000 Common Carrier 

Paging licenses. According to the most 

recent Trends in Telephone Service, 608 

private and common carriers reported 

that they were engaged in the provision 

of either paging or ‘‘other mobile’’

services. Of these, we estimate that 589 

are small, under the SBA-approved 

small business size standard. We 

estimate that the majority of private and 

common carrier paging providers would 

qualify as small entities under the SBA 

definition. 

45. Broadband Personal 

Communications Service (PCS). The 

broadband PCS spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission has created a small 

business size standard for Blocks C and 

F as an entity that has average gross 

revenues of less than $40 million in the 

three previous calendar years. For Block 

F, an additional small business size 

standard for ‘‘very small business’’ was 

added and is defined as an entity that, 

together with its affiliates, has average 

gross revenues of not more than $15 

million for the preceding three calendar 

years. These small business size 

standards, in the context of broadband 

PCS auctions, have been approved by 

the SBA. No small businesses within the 

SBA-approved small business size 

standards bid successfully for licenses 

in Blocks A and B. There were 90 

winning bidders that qualified as small 

entities in the Block C auctions. A total 

of 93 ‘‘small’’ and ‘‘very small’’ business 

bidders won approximately 40 percent 

of the 1,479 licenses for Blocks D, E, and 

F. On March 23, 1999, the Commission 

reauctioned 155 C, D, E, and F Block 

licenses; there were 113 small business 

winning bidders. 

46. Narrowband PCS. The 

Commission held an auction for 

Narrowband PCS licenses that 

commenced on July 25, 1994, and 

closed on July 29, 1994. A second 

commenced on October 26, 1994, and 

closed on November 8, 1994. For 

purposes of the first two Narrowband 

PCS auctions, ‘‘small businesses’’ were 

entities with average gross revenues for 

the prior three calendar years of $40 

million or less. Through these auctions, 

the Commission awarded a total of 41 

licenses, 11 of which were obtained by 

four small businesses. To ensure 

meaningful participation by small 

business entities in future auctions, the 

Commission adopted a two-tiered small 

business size standard in 2000. A ‘‘small 

business’’ is an entity that, together with 

affiliates and controlling interests, has 

average gross revenues for the three 

preceding years of not more than $40 

million. A ‘‘very small business’’ is an 

entity that, together with affiliates and 

controlling interests, has average gross 

revenues for the three preceding years of 

not more than $15 million. The SBA has 

approved these small business size 

standards. A third auction commenced 

on October 3, 2001, and closed on 

October 16, 2001. Here, five bidders 

won 317 (MTA and nationwide) 

licenses. Three of these claimed status 

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 75181

as a small or very small entity and won 

311 licenses. A fourth auction 

commenced on September 24, 2003, and 

closed on September 29, 2003. Here, 

four bidders won 48 licenses. Four of 

these claimed status as a very small 

entity and won 48 licenses. Finally, a 

fifth auction commenced on September 

24, 2003, and closed on September 25, 

2003. Here, one bidder won five 

licenses. That bidder claimed status as 

a very small entity.

47. Specialized Mobile Radio (SMR). 

The Commission awards ‘‘small entity’’

bidding credits in auctions for SMR 

geographic area licenses in the 800 MHz 

and 900 MHz bands to firms that had 

revenues of no more than $15 million in 

each of the three previous calendar 

years. The Commission awards ‘‘very 

small entity’’ bidding credits to firms 

that had revenues of no more than $3 

million in each of the three previous 

calendar years. The SBA has approved 

these small business size standards for 

the 900 MHz Service. The Commission 

has held auctions for geographic area 

licenses in the 800 MHz and 900 MHz 

bands. The 900 MHz SMR auction began 

on December 5, 1995, and closed on 

April 15, 1996. Sixty bidders claiming 

that they qualified as small businesses 

under the $15 million size standard won 

263 geographic area licenses in the 900 

MHz SMR band. The 800 MHz SMR 

auction for the upper 200 channels 

began on October 28, 1997, and was 

completed on December 8, 1997. Ten 

bidders claiming that they qualified as 

small businesses under the $15 million 

size standard won 38 geographic area 

licenses for the upper 200 channels in 

the 800 MHz SMR band. A second 

auction for the 800 MHz band was held 

on January 10, 2002 and closed on 

January 17, 2002 and included 23 BEA 

licenses. One bidder claiming small 

business status won five licenses. 

48. The auction of the 1,050 800 MHz 

SMR geographic area licenses for the 

General Category channels began on 

August 16, 2000, and was completed on 

September 1, 2000. Eleven bidders won 

108 geographic area licenses for the 

General Category channels in the 800 

MHz SMR band qualified as small 

businesses under the $15 million size 

standard. In an auction completed on 

December 5, 2000, a total of 2,800 

Economic Area licenses in the lower 80 

channels of the 800 MHz SMR service 

were sold. Of the 22 winning bidders, 

19 claimed ‘‘small business’’ status and 

won 129 licenses. Thus, combining all 

three auctions, 40 winning bidders for 

geographic licenses in the 800 MHz 

SMR band claimed status as small 

business. 

49. In addition, there are numerous 

incumbent site-by-site SMR licensees 

and licensees with extended 

implementation authorizations in the 

800 and 900 MHz bands. We do not 

know how many firms provide 800 MHz 

or 900 MHz geographic area SMR 

pursuant to extended implementation 

authorizations, nor how many of these 

providers have annual revenues of no 

more than $15 million. One firm has 

over $15 million in revenues. We 

assume, for purposes of this analysis, 

that all of the remaining existing 

extended implementation 

authorizations are held by small 

entities, as that small business size 

standard is established by the SBA. 

50. Private Land Mobile Radio

(PLMR). PLMR systems serve an 

essential role in a range of industrial, 

business, land transportation, and 

public safety activities. These radios are 

used by companies of all sizes operating 

in all U.S. business categories, and are 

often used in support of the licensee’s 

primary (non-telecommunications) 

business operations. For the purpose of 

determining whether a licensee of a 

PLMR system is a small business as 

defined by the SBA, we could use the 

definition for ‘‘Cellular and Other 

Wireless Telecommunications.’’ This 

definition provides that a small entity is 

any such entity employing no more than 

1,500 persons. The Commission does 

not require PLMR licensees to disclose 

information about number of 

employees, so the Commission does not 

have information that could be used to 

determine how many PLMR licensees 

constitute small entities under this 

definition. Moreover, because PLMR 

licensees generally are not in the 

business of providing cellular or other 

wireless telecommunications services 

but instead use the licensed facilities in 

support of other business activities, we 

are not certain that the Cellular and 

Other Wireless Telecommunications 

category is appropriate for determining 

how many PLMR licensees are small 

entities for this analysis. Rather, it may 

be more appropriate to assess PLMR 

licensees under the standards applied to 

the particular industry subsector to 

which the licensee belongs. 

51. The Commission’s 1994 Annual 

Report on PLMRs indicates that at the 

end of fiscal year 1994, there were 

1,087,267 licensees operating 

12,481,989 transmitters in the PLMR 

bands below 512 MHz. Because any 

entity engaged in a commercial activity 

is eligible to hold a PLMR license, the 

revised rules in this context could 

potentially impact every small business 

in the United States. 

52. Fixed Microwave Services. Fixed 

microwave services include common 

carrier, private-operational fixed, and 

broadcast auxiliary radio services. 

Currently, there are approximately 

22,015 common carrier fixed licensees 

and 61,670 private operational-fixed 

licensees and broadcast auxiliary radio 

licensees in the microwave services. 

The Commission has not yet defined a 

small business with respect to 

microwave services. For purposes of 

this FRFA, we will use the SBA’s 

definition applicable to ‘‘Cellular and 

Other Wireless Telecommunications’’

companies—that is, an entity with no 

more than 1,500 persons. The 

Commission does not have data 

specifying the number of these licensees 

that have more than 1,500 employees, 

and thus is unable at this time to 

estimate with greater precision the 

number of fixed microwave service 

licensees that would qualify as small 

business concerns under the SBA’s 

small business size standard. 

Consequently, the Commission 

estimates that there are 22,015 or fewer 

small common carrier fixed licensees 

and 61,670 or fewer small private 

operational-fixed licensees and small 

broadcast auxiliary radio licensees in 

the microwave services that may be 

affected by the rules and policies 

adopted herein. The Commission notes, 

however, that the common carrier 

microwave fixed licensee category 

includes some large entities. 

53. Wireless Communications 

Services. This service can be used for 

fixed, mobile, radiolocation, and digital 

audio broadcasting satellite uses. The 

Commission defined ‘‘small business’’

for the wireless communications 

services (WCS) auction as an entity with 

average gross revenues of $40 million 

for each of the three preceding years, 

and a ‘‘very small business’’ as an entity 

with average gross revenues of $15 

million for each of the three preceding 

years. The SBA has approved these 

definitions. The FCC auctioned 

geographic area licenses in the WCS 

service. In the auction, which 

commenced on April 15, 1997 and 

closed on April 25, 1997, there were 

seven bidders that won 31 licenses that 

qualified as very small business entities, 

and one bidder that won one license 

that qualified as a small business entity. 

An auction for one license in the 1670–

1674 MHz band commenced on April 

30, 2003 and closed the same day. One 

license was awarded. The winning 

bidder was not a small entity. 

54. 39 GHz Service. The Commission 

defines ‘‘small entity’’ for 39 GHz 

licenses as an entity that has average 

gross revenues of less than $40 million 

75182 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 

in the three previous calendar years. 

‘‘Very small business’’ is defined as an 

entity that, together with its affiliates, 

has average gross revenues of not more 

than $15 million for the preceding three 

calendar years. The SBA has approved 

these definitions. The auction of the 

2,173 39 GHz licenses began on April 

12, 2000, and closed on May 8, 2000. 

The 18 bidders who claimed small 

business status won 849 licenses. 

55. Local Multipoint Distribution 

Service. An auction of the 986 Local 

Multipoint Distribution Service (LMDS) 

licenses began on February 18, 1998, 

and closed on March 25, 1998. The 

Commission defined ‘‘small entity’’ for 

LMDS licenses as an entity that has 

average gross revenues of less than $40 

million in the three previous calendar 

years. An additional classification for 

‘‘very small business’’ was added and is 

defined as an entity that, together with 

its affiliates, has average gross revenues 

of not more than $15 million for the 

preceding three calendar years. These 

regulations defining ‘‘small entity’’ in 

the context of LMDS auctions have been 

approved by the SBA. There were 93 

winning bidders that qualified as small 

entities in the LMDS auctions. A total of 

93 small and very small business 

bidders won approximately 277 A Block 

licenses and 387 B Block licenses. On 

March 27, 1999, the Commission reauctioned 161 licenses; there were 32 

small and very small business winning 

bidders that won 119 licenses. 

56. 218–219 MHz Service. The first 

auction of 218–219 MHz (previously 

referred to as the Interactive and Video 

Data Service or IVDS) spectrum resulted 

in 178 entities winning licenses for 594 

Metropolitan Statistical Areas (MSAs). 

Of the 594 licenses, 567 were won by 

167 entities qualifying as a small 

business. For that auction, we defined a 

small business as an entity that, together 

with its affiliates, has no more than a $6 

million net worth and, after federal 

income taxes (excluding any carry over 

losses), has no more than $2 million in 

annual profits each year for the previous 

two years. For this service in 1999, we 

defined a small business as an entity 

that, together with its affiliates and 

persons or entities that hold interests in 

such an entity and their affiliates, has 

average annual gross revenues not 

exceeding $15 million for the preceding 

three years. A very small business is 

defined as an entity that, together with 

its affiliates and persons or entities that 

hold interests in such an entity and its 

affiliates, has average annual gross 

revenues not exceeding $3 million for 

the preceding three years. The SBA has 

approved of these definitions. At this 

time, we cannot estimate the number of 

licenses that will be won by entities 

qualifying as small or very small 

businesses under our rules in future 

auctions of 218–219 MHz spectrum. 

Given the success of small businesses in 

the previous auction, and the 

prevalence of small businesses in the 

subscription television services and 

message communications industries, we 

assume for purposes of this FRFA that 

in future auctions, many, and perhaps 

all, of the licenses may be awarded to 

small businesses. 

57. Location and Monitoring Service

(LMS). Multilateration LMS systems use 

non-voice radio techniques to determine 

the location and status of mobile radio 

units. For purposes of auctioning LMS 

licenses, the Commission has defined 

‘‘small business’’ as an entity that, 

together with controlling interests and 

affiliates, has average annual gross 

revenues for the preceding three years 

not exceeding $15 million. A ‘‘very 

small business’’ is defined as an entity 

that, together with controlling interests 

and affiliates, has average annual gross 

revenues for the preceding three years 

not exceeding $3 million. These 

definitions have been approved by the 

SBA. An auction for LMS licenses 

commenced on February 23, 1999, and 

closed on March 5, 1999. Of the 528 

licenses auctioned, 289 licenses were 

sold to four small businesses. We cannot 

accurately predict the number of 

remaining licenses that could be 

awarded to small entities in future LMS 

auctions.

58. Rural Radiotelephone Service. We 

use the SBA definition applicable to 

cellular and other wireless 

telecommunication companies, i.e., an 

entity employing no more than 1,500 

persons. There are approximately 1,000 

licensees in the Rural Radiotelephone 

Service, and the Commission estimates 

that there are 1,000 or fewer small entity 

licensees in the Rural Radiotelephone 

Service that may be affected by the rules 

and policies adopted herein. 

59. Air-Ground Radiotelephone 

Service. We use the SBA definition 

applicable to cellular and other wireless 

telecommunication companies, i.e., an 

entity employing no more than 1,500 

persons. There are approximately 10 

licensees in the Air-Ground 

Radiotelephone Service, and the 

Commission estimates that almost all of 

them qualify as small entities under the 

SBA definition. 

60. Offshore Radiotelephone Service.

This service operates on several ultra 

high frequency (UHF) TV broadcast 

channels that are not used for TV 

broadcasting in the coastal area of the 

states bordering the Gulf of Mexico. At 

present, there are approximately 55 

licensees in this service. We use the 

SBA definition applicable to cellular 

and other wireless telecommunication 

companies, i.e., an entity employing no 

more than 1,500 persons. The 

Commission is unable at this time to 

estimate the number of licensees that 

would qualify as small entities under 

the SBA definition. The Commission 

assumes, for purposes of this FRFA, that 

all of the 55 licensees are small entities, 

as that term is defined by the SBA. 

61. Multiple Address Systems (MAS). 

Entities using MAS spectrum, in 

general, fall into two categories: (1) 

Those using the spectrum for profitbased uses, and (2) those using the 

spectrum for private internal uses. With 

respect to the first category, the 

Commission defines ‘‘small entity’’ for 

MAS licenses as an entity that has 

average gross revenues of less than $15 

million in the three previous calendar 

years. ‘‘Very small business’’ is defined 

as an entity that, together with its 

affiliates, has average gross revenues of 

not more than $3 million for the 

preceding three calendar years. The 

SBA has approved of these definitions. 

The majority of these entities will most 

likely be licensed in bands where the 

Commission has implemented a 

geographic area licensing approach that 

would require the use of competitive 

bidding procedures to resolve mutually 

exclusive applications. The 

Commission’s licensing database 

indicates that, as of January 20, 1999, 

there were a total of 8,670 MAS station 

authorizations. Of these, 260 

authorizations were associated with 

common carrier service. In addition, an 

auction for 5,104 MAS licenses in 176 

EAs began November 14, 2001, and 

closed on November 27, 2001. Seven 

winning bidders claimed status as small 

or very small businesses and won 611 

licenses. 

62. With respect to the second 

category, which consists of entities that 

use, or seek to use, MAS spectrum to 

accommodate their own internal 

communications needs, we note that 

MAS serves an essential role in a range 

of industrial, safety, business, and land 

transportation activities. MAS radios are 

used by companies of all sizes, 

operating in virtually all U.S. business 

categories, and by all types of public 

safety entities. For the majority of 

private internal users, the definitions 

developed by the SBA would be more 

appropriate. The applicable definition 

of small entity in this instance appears 

to be the ‘‘Cellular and Other Wireless 

Telecommunications’’ definition under 

the SBA rules. This definition provides 

that a small entity is any entity 

employing no more than 1,500 persons. 

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 75183

The Commission’s licensing database 

indicates that, as of January 20, 1999, of 

the 8,670 total MAS station 

authorizations, 8,410 authorizations 

were for private radio service, and of 

these, 1,433 were for private land 

mobile radio service.

63. Incumbent 24 GHz Licensees. The 

rules that we adopt could affect 

incumbent licensees who were relocated 

to the 24 GHz band from the 18 GHz 

band, and applicants who wish to 

provide services in the 24 GHz band. 

The Commission did not develop a 

definition of small entities applicable to 

existing licensees in the 24 GHz band. 

Therefore, the applicable definition of 

small entity is the definition under the 

SBA rules for ‘‘Cellular and Other 

Wireless Telecommunications.’’ This 

definition provides that a small entity is 

any entity employing no more than 

1,500 persons. The 1992 Census of 

Transportation, Communications and 

Utilities, conducted by the Bureau of the 

Census, which is the most recent 

information available, shows that only 

12 radiotelephone (now Wireless) firms 

out of a total of 1,178 such firms that 

operated during 1992 had 1,000 or more 

employees. This information 

notwithstanding, we believe that there 

are only two licensees in the 24 GHz 

band that were relocated from the 18 

GHz band: Teligent and TRW, Inc. It is 

our understanding that Teligent and its 

related companies have less than 1,500 

employees, though this may change in 

the future. TRW is not a small entity. 

Thus, only one incumbent licensee in 

the 24 GHz band is a small business 

entity. 

64. Future 24 GHz Licensees. With 

respect to new applicants in the 24 GHz 

band, we have defined ‘‘small business’’

as an entity that, together with 

controlling interests and affiliates, has 

average annual gross revenues for the 

three preceding years not exceeding $15 

million. ‘‘Very small business’’ in the 24 

GHz band is defined as an entity that, 

together with controlling interests and 

affiliates, has average gross revenues not 

exceeding $3 million for the preceding 

three years. The SBA has approved 

these definitions. The Commission will 

not know how many licensees will be 

small or very small businesses until the 

auction, if required, is held. 

65. 700 MHz Guard Band Licenses. In 

the 700 MHz Guard Band Order, we 

adopted a small business size standard 

for ‘‘small businesses’’ and ‘‘very small 

businesses’’ for purposes of determining 

their eligibility for special provisions 

such as bidding credits and installment 

payments. A ‘‘small business’’ is an 

entity that, together with its affiliates 

and controlling principals, has average 

gross revenues not exceeding $15 

million for the preceding three years. 

Additionally, a ‘‘very small business’’ is 

an entity that, together with its affiliates 

and controlling principals, has average 

gross revenues that are not more than $3 

million for the preceding three years. 

An auction of 52 MEA licenses 

commenced on September 6, 2000, and 

closed on September 21, 2000. Of the 

104 licenses auctioned, 96 licenses were 

sold to nine bidders. Five of these 

bidders were small businesses that won 

a total of 26 licenses. A second auction 

of 700 MHz Guard Band licenses 

commenced on February 13, 2001 and 

closed on February 21, 2001. All eight 

of the licenses auctioned were sold to 

three bidders. One of these bidders was 

a small business that won a total of two 

licenses. 

66. In addition, the SBA has 

developed a small business size 

standard for Cable and Other Program 

Distribution, which includes all such 

companies generating $12.5 million or 

less in annual receipts. According to 

Census Bureau data for 1997, there were 

a total of 1,311 firms in this category, 

total, that had operated for the entire 

year. Of this total, 1,180 firms had 

annual receipts of under $10 million, 

and an additional 52 firms had receipts 

of $10 million or more but less than $25 

million. Consequently, we estimate that 

the majority of providers in this service 

category are small businesses that may 

be affected by the rules and policies 

proposed in the Rural Further Notice. 

5. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

67. The Rural Further Notice does not 

propose any specific reporting, 

recordkeeping or compliance 

requirements. However, we seek 

comment on what, if any, requirements 

may arise as a result of our discussion 

in the Rural Further Notice. 

6. Steps Taken to Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

68. The RFA requires an agency to 

describe any significant, specifically 

small business, alternatives that it has 

considered in developing its approach, 

which may include the following four 

alternatives (among others): (1) The 

establishment of differing compliance or 

reporting requirements or timetables 

that take into account the resources 

available to small entities; (2) the 

clarification, consolidation, or 

simplification of compliance or 

reporting requirements under the rule 

for small entities; (3) the use of 

performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities. 

69. As stated, the Rural Further 

Notice, the Commission seeks detailed 

comment on additional measures that 

the Commission can take in order to 

promote the further deployment of 

wireless services to rural and 

underserved areas. As a general matter, 

it is reasonable to conclude that targeted 

programs designed to encourage 

deployment of services in high cost or 

hard-to-serve rural areas could impose 

additional regulatory requirements on a 

substantial number of carriers, 

including small entities. Overall, 

however, the Commission believes that 

by creating further opportunities for 

carriers to serve rural areas, small 

entities could see a significant positive 

economic impact as a result of a new 

ability to deploy their services in 

smaller, rural areas to which their 

business plans may be better suited. A 

more specific discussion of the impact 

to small entities is detailed below. 

70. In this Rural Further Notice, the 

Commission seeks additional comment 

on the effectiveness of its current 

partitioning, disaggregation, and 

secondary markets spectrum leasing 

rules in the deployment of wireless 

service to rural areas. Specifically, the 

Commission seeks to develop a better 

understanding of the ways in which 

these rules may be insufficient to 

promote access to spectrum for all 

carriers, including small entities. For 

example, the Commission seeks 

comment on an alternative proposal 

initially suggested by a previous 

commenter, which would modify the 

current rules to provide bidding credits 

for auction winners that commit to 

partitioning portions of their licenses to 

rural carriers. This plan could impact all 

rural carriers, including small entities, 

by giving them greater access to 

spectrum. In addition, the Commission 

also requests comment on an alternative 

approach to the current spectrum 

leasing rules that would require carriers 

to take affirmative steps to enter into 

spectrum leasing arrangements, such as 

requiring them to report leasing requests 

made to them and the reasons the 

requests did not result in a lease. An 

alternative such as this could impact 

small entities by enabling them to enter 

smaller spectrum leasing arrangements 

for which they may be better suited. 

71. The Rural Further Notice also 

seeks comment on the potential use of 

‘‘keep what you use’’ relicensing 

mechanisms as well as renewal term 

substantial service requirements in 

order to further encourage the 

provisioning of wireless service to rural 

75184 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 

areas. However, the Commission also 

seeks comment on the alternative raised 

by commenters that a ‘‘keep what you 

use’’ approach could potentially impede 

the efforts taken by the Commission 

with the secondary markets rules. In 

addition, the Rural Further Notice

requests comment on an alternative 

approach that would adopt a substantial 

service construction requirement for 

licenses that are beyond their initial 

terms. In this respect, the Commission 

asks whether such measures would 

promote access to spectrum in sparsely 

populated areas and thereby ease the 

way for carriers, including small 

entities, to serve rural and underserved 

areas. 

7. Federal Rules that May Duplicate, 

Overlap or Conflict with the Proposed 

Rules. 

72. None. 

C. Initial Paperwork Reduction Act of 

1995 Analysis 

73. This Rural Further Notice does not 

contain either a proposed or a modified 

information collection. Accordingly, we 

need not seek comment on the impact 

of this Rural Further Notice on 

information collections, pursuant to the 

Paperwork Reduction Act of 1995. 

D. Comment Dates 

74. Pursuant to §§ 1.415 and 1.419 of 

the Commission’s rules, interested 

parties may file comments on or before 

January 14, 2005, and reply comments 

on or before February 14, 2005. 

Comments and reply comments should 

be filed in WT Docket Nos. 02–381, 01–

14, 03–202. Comments may be filed 

using the Commission’s Electronic 

Comment Filing System (ECFS) or by 

filing paper copies. 

75. Comments filed through the ECFS 

can be sent as an electronic file via the 

Internet to http://www.fcc.gov/cgb/ecfs/. 

Generally, only one copy of an 

electronic submission must be filed. If 

multiple docket or rulemaking numbers 

appear in the caption of this proceeding, 

however, commenters must transmit 

one electronic copy of the comments to 

each docket or rulemaking number 

referenced in the caption. In completing 

the transmittal screen, commenters 

should include their full name, U.S. 

Postal Service mailing address, and the 

applicable docket or rulemaking 

number. Parties may also submit an 

electronic comment by Internet e-mail. 

To get filing instructions for e-mail 

comments, commenters should send an 

e-mail to ecfs@fcc.gov, and should 

include the following words in the body 

of the message, ‘‘get form.’’ A sample 

form and directions will be sent in 

reply. Parties who choose to file by 

paper must file an original and four 

copies of each filing. If more than one 

docket or rulemaking number appears in 

the caption of this proceeding, 

commenters must submit two additional 

copies for each additional docket or 

rulemaking number. 

76. Parties that choose to file by paper 

must file an original and four copies of 

each filing. Filings can be sent by hand 

or messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although we continue to experience 

delays in receiving U.S. Postal Service 

mail). The Commission’s contractor, 

Best Copy and Printing, Inc., will 

receive hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location will be 8 a.m. to 7 p.m. 

All hand deliveries must be held 

together with rubber bands or fasteners. 

Any envelopes must be disposed of 

before entering the building. One copy 

of all comments should also be sent to 

the Commission’s contractor, Natek, 

Inc., 445 12th Street, SW., Suite CY–

B402, Washington, DC 20554. In 

addition, parties who choose to file by 

paper should provide a courtesy copy of 

each filing to Allen A. Barna, Mobility 

Division, Wireless Telecommunications 

Bureau, 445 12th Street, SW., Portals I, 

Room 6324, Washington, DC 20554 or 

by e-mail to allen.barna@fcc.gov.

77. Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. U.S. Postal Service first-class 

mail, Express Mail, and Priority Mail 

should be addressed to Natek, Inc., 445 

12th Street, SW., Washington, DC 

20554. All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. 

78. Copies of all filings will be 

available for public inspection and 

copying during regular business hours 

at the FCC Reference Information 

Center, Room CY–A257, at Portals II, 

445 12th St., SW., Washington, DC 

20554, and will be placed on the 

Commission’s Internet site. Copies of 

comments and reply comments will be 

available through the Commission’s 

contractor, Natek, Inc., 445 12th St., 

SW., Room CY–B402, Washington, DC 

20554, www.bcpiweb.com, 1–800–378–

3160.

If you are sending this type of document or using this delivery method It should be addressed for delivery to 

Hand-delivered or messenger-delivered paper filings for the Commission’s Secretary.236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002 (8 

to 7 p.m.). 

Other messenger-delivered documents, including documents sent by 

overnight mail (other than United States Postal Service Express Mail 

and Priority Mail).

9300 East Hampton Drive, Capitol Heights, MD 20743 (8 a.m. to 5:30 

p.m.). 

United States Postal Service first-class mail, Express Mail, and Priority 

Mail.

445 12th Street, SW., Washington, DC 20554. 

79. Parties who choose to file by 

paper should also submit their 

comments on diskette. These diskettes, 

plus one paper copy, should be 

submitted to: Milton Price, Mobility 

Division, Wireless Telecommunications 

Bureau, Federal Communications 

Commission, at 236 Massachusetts 

Avenue, NE., Suite 110, Washington, DC 

20002. Such a submission should be on 

a 3.5-inch diskette formatted in an IBM 

compatible format using Word or 

compatible software. The diskette 

should be accompanied by a cover letter 

and should be submitted in ‘‘read only’’

mode. The diskette should be clearly 

labeled with the commenter’s name, 

proceeding (including the docket 

numbers, WT Docket Nos. 02–381, 01–

14, 03–202, type of pleading (comment 

or reply comment), date of submission, 

and the name of the electronic file on 

the diskette. The label should also 

include the following phrase ‘‘Disk 

Copy—Not an Original.’’ Each diskette 

should contain only one party’s 

pleadings, preferably in a single 

electronic file. In addition, commenters 

must send diskette copies to the 

Commission’s copy contractor, 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554 (see alternative 

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Proposed Rules 75185

addresses above for delivery by hand or 

messenger). 

80. Regardless of whether parties 

choose to file electronically or by paper, 

parties should also file one copy of any 

documents filed in this docket with the 

Commission’s copy contractor, 445 12th 

Street SW., CY–B402, Washington, DC 

20554 (see alternative addresses above 

for delivery by hand or messenger). 

81. Alternative formats (computer 

diskette, large print, audio cassette and 

Braille) are available to persons with 

disabilities by contacting Brian Millin at 

(202) 418–7426, TTY (202) 418–2555, or 

via e-mail to Brian.Millin@fcc.gov. This 

Report and Order and Further Notice of 

Proposed Rulemaking can also be 

downloaded in Microsoft Word and 

ASCII formats at http://www.fcc.gov/

wtb. 

IV. Ordering Clauses 

82. Pursuant to the authority 

contained in sections 4(i), 11, 303(r), 

309(j) and 706 of the Communications 

Act of 1934, as amended, 47 U.S.C. 

154(i), 157, 161, 303(r), and 309(j), this 

further notice of proposed rulemaking is 

adopted. 

83. The Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

the Report and Order and Further 

Notice of Proposed Rulemaking, 

including the Initial Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration.

Federal Communications Commission. 

William F. Caton, 

Deputy Secretary.

[FR Doc. 04–27050 Filed 12–14–04; 8:45 am] 

BILLING CODE 6712–01–P