[Federal Register Volume 74, Number 186 (Monday, September 28, 2009)]
[Proposed Rules]
[Pages 49356-49359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23331]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WT Docket Nos. 03-66; RM-10586, FCC 09-70]


Facilitating the Provision of Fixed and Mobile Broadband Access, 
Educational and Other Advanced Services in the 2150-2162 and 2500-2690 
MHz Bands

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this document, the Commission seeks comment on its proposal 
to require applicants that win BRS licenses in Auction 86, and any 
subsequent auction, to demonstrate substantial service on or before 
four years from the date of license grant. Further, the Commission 
seeks comment on a proposed clarification to the substantial service 
rule applicable to the Broadband Radio Service and to the

[[Page 49357]]

Educational Broadband Service. The Commission's proposals, if adopted, 
would ensure that spectrum in the 2.5 GHz band is put in use and would 
promote the provision of innovative services and rapid service to the 
public.

DATES: Submit comments on or before October 13, 2009. Submit reply 
comments on or before October 23, 2009.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. You may submit comments, identified by FCC 09-70, 
or by WT Docket No. 03-66, by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#98dedbdbada8acd8fefbfbb6fff7ee"><span class="__cf_email__" data-cfemail="8fc9ccccbabfbbcfe9ececa1e8e0f9">[email protected]</span></a> or phone: (202) 
418-0530 or TTY: (202) 418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Nancy M. Zaczek, Wireless 
Telecommunications Bureau, Broadband Division, Federal Communications 
Commission, 445 12th Street, SW., Washington, DC 20554, at (202) 418-
0274 or via the Internet to <a href="/cdn-cgi/l/email-protection#236d424d405a0d794240594648634540400d444c55"><span class="__cf_email__" data-cfemail="57193639342e790d36342d323c1731343479303821">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Broadband Radio Service/Educational Broadband Service Third Further 
Notice of Proposed Rulemaking (BRS/EBS 3rd FNPRM), FCC 09-70, adopted 
on September 8, 2009, and released on September 11, 2009. The full text 
of this document is available for inspection and copying during normal 
business hours in the FCC Reference Information Center, Room CY-A257, 
445 12th Street, SW., Washington, DC 20554. The complete text may be 
purchased from the Commission's duplicating contractor, Best Copy and 
Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554, 1-800-378-3160 or via e-mail at <a href="/cdn-cgi/l/email-protection#ef898c8caf8d8c9f86988a8dc18c8082"><span class="__cf_email__" data-cfemail="8ee8ededceecedfee7f9ebeca0ede1e3">[email protected]</span></a>. 
The complete text is also available on the Commission's Web site at 
http://wireless.fcc.gov/edocs_public/attachment/FCC-09-70A1doc. This 
full text may also be downloaded at: http://wireless.fcc.gov/releases.html. Alternative formats (computer diskette, large print, 
audio cassette, and Braille) are available by contacting Brian Millin 
at (202) 418-7426, TTY (202) 418-7365, or via e-mail to 
<a href="/cdn-cgi/l/email-protection#5c3e3135303035321c3a3f3f723b332a"><span class="__cf_email__" data-cfemail="3456595d58585d5a745257571a535b42">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

BRS/EBS Third FNPRM

    1. Background. The Commission's general practice has been to adopt 
performance requirements associated with licenses to be met at a 
deadline measured in some period of time from the issue of the license 
(e.g., a licensee may have to demonstrate substantial service 5 years 
from issue of the license). Regarding incumbent BRS licenses, licensees 
were required to construct within twelve months of the date of license 
grant. Regarding BTA licenses, the former MDS rules provided that 
``within five years of the grant of a BTA authorization, the 
authorization holder must construct MDS stations to provide signals * * 
* that are capable of reaching at least two-thirds of the population of 
the applicable service area.'' Subsequently, in April 2006, the 
Commission adopted May 1, 2011 as the uniform date by which all BRS BTA 
authorization holders and incumbent BRS and EBS licensees must 
demonstrate substantial service.
    2. The Commission adopted May 1, 2011 as the date for BRS licensees 
to demonstrate substantial service because it is the date that renewal 
applications for incumbent BRS licenses are due. Moreover, May 1, 2011 
is approximately five years from the date of release of the BRS/EBS 
Second Report and Order, which gave existing BRS licensees five years 
to build out their systems, while they simultaneously transitioned to 
the new band plan and technical rules. Thus, the Commission concluded, 
requiring BRS licensees to demonstrate substantial service by May 1, 
2011 struck the appropriate balance between ensuring that the band is 
promptly placed in use and giving licensees fair opportunity to 
transition their facilities. The Commission then required that BRS 
incumbent licensees file their demonstration of substantial service 
with their respective renewal applications.
    3. On April 24, 2009, the Wireless Telecommunications Bureau 
announced that it intended to auction 78 BRS BTA licenses, 75 of which 
will be overlay licenses that were originally offered in Auction 6 and 
are now available as a result of default, cancellation, or termination. 
Three additional licenses were created by the Commission in the BRS/EBS 
Fourth MO&O, when the Commission amended its rules to establish three 
Gulf of Mexico Service Areas for BRS. It is anticipated that the 
auction of these 78 BRS licenses will commence on October 27, 2009. 
Under the rules adopted by the Commission in 2006, auction winners of 
these 78 licenses will also be required to demonstrate substantial 
service on or before May 1, 2011.
    4. In response to the Auction 86 Procedures Public Notice, SAL 
Spectrum, LLC (SAL Spectrum) asked the Commission to give applicants 
that win BRS licenses in Auction 86 ten years in which to demonstrate 
substantial service. SAL Spectrum argues that requiring licensees who 
receive their licenses in Auction 86 to demonstrate substantial service 
by May 1, 2011 ``will discourage participation in Auction 86 and 
deflate the amount that participants will be willing to bid.'' The Ad 
Hoc BRS Applicants Association supports giving new licensees ten years 
to demonstrate substantial service. The Wireless Communications 
Association International, Inc. (WCA) and Clearwire Corporation 
(Clearwire) opposed SAL Spectrum's proposal. They contend that it would 
not be in the public interest to give new licensees ten years to 
demonstrate substantial service because the spectrum could lie fallow 
during that period. WCA recommends that any additional time ``be an 
appropriate balance between the goal of ensuring that the spectrum is 
put to good use and permitting winners a reasonable opportunity to 
construct.'' Clearwire argues that the existing May 1, 2011 substantial 
service deadline should apply.
    5. We tentatively conclude that we should require applicants that 
win BRS licenses in Auction 86, and any subsequent auction of BRS 
licenses, to demonstrate substantial service on or before four years 
from the date their respective licenses are granted. We agree with WCA 
that the substantial service deadline should ensure that spectrum is 
promptly placed in use while allowing licensees a reasonable 
opportunity to construct.
    6. We tentatively conclude that a four-year time period will allow 
new licensees sufficient time to build out their systems and put the 
spectrum to use. Although the May 1, 2011 date adopted by the 
Commission in the BRS/EBS Second Report and Order gave BRS licensees 
five years to build out their systems, during this five-year period 
licensees had to simultaneously transition to the new band plan and 
technical rules. Since the adoption of the BRS/EBS 2nd Report and 
Order, however, the transition of the 2500-

[[Page 49358]]

2690 MHz band has been initiated in virtually the entire United States 
and has been completed in most of the country. Given that new BRS 
licensees will not face issues related to simultaneous transition and 
construction, we tentatively conclude that requiring new BRS licensees 
to build out within four years of license grant will ensure that the 
spectrum is put in use, promote the provision of innovative services, 
and promote rapid service to the public.
    7. The proposal to require substantial service within four years of 
license grant is consistent with the decision to establish initial 
buildout requirements within four years of the effective date of the 
DTV transition or of license grant in the 700 MHz band. Therefore, we 
tentatively conclude that a four-year deadline is more appropriate than 
the ten-year deadline. We believe that a ten-year deadline is excessive 
and could lead to spectrum being unused for an inordinately long period 
of time. Also, we believe the better course of action is to provide 
advance notice to potential bidders regarding their buildout 
obligations. Thus, we tentatively conclude that we should require new 
BRS licensees awarded in Auction 86 to demonstrate substantial service 
on or before four years from the date of license grant. In addition, we 
note that the same rationale would apply to any BRS licensee whose 
initial license is granted near the May 1, 2011 substantial service 
deadline. Therefore, we tentatively conclude that we should adopt a 
rule that would require any BRS licensee whose initial license is 
granted after the revised rule becomes effective to demonstrate 
substantial service on or before a date four years from the date the 
license was granted. We seek comment on this proposal and alternatives.
    8. We also propose to revise the introductory text to Sec.  
27.14(o) of the Commission's rules to more clearly state the 
Commission's intent to allow BRS or EBS licensees to demonstrate 
substantial service if their respective lessees met one of the safe 
harbors adopted by the Commission and to allow licenses to be combined 
for purposes of demonstrating substantial service under certain 
circumstances. We seek comment on this proposal.

Procedural Matters

Ex Parte Rules--Permit-But-Disclose Proceeding

    9. This is a permit-but-disclose notice and comment rulemaking 
proceeding. Ex parte presentations are permitted, except during the 
Sunshine Agenda period, provided they are disclosed pursuant to the 
Commission's rules.

Comment Period and Procedures

    10. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, 1.419, interested parties may file comments and 
reply comments on or before the dates indicated on the first page of 
this document. Comments may be filed using: (1) The Commission's 
Electronic Comment Filing System (ECFS), (2) the Federal Government's 
eRulemaking Portal, or (3) by filing paper copies. See Electronic 
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
    <bullet> Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
    <bullet> For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
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 via the Internet e-mail. To get filing 
instructions for e-mail comments, commenters should send an e-mail to 
<a href="/cdn-cgi/l/email-protection#2045434653604643430e474f56"><span class="__cf_email__" data-cfemail="d8bdbbbeab98bebbbbf6bfb7ae">[email protected]</span></a>, and include the following words in the body of the 
message, ``get form.'' A sample form and directions will be sent in 
response.
    <bullet> Paper Filers: 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, 
filers must submit two additional copies for each additional docket or 
rulemaking number. 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). All filings must be addressed to 
the Commission's Secretary, Office of the Secretary, Federal 
Communications Commission. The Commission's contractor will receive 
hand-delivered or messenger-delivered paper filings for the 
Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, 
Washington, DC 20002. The filing hours at this location are 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. 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, 
Express, and Priority mail must be addressed to 445 12th Street, SW., 
Washington, DC 20554.
    <bullet> People with Disabilities: To request materials in 
accessible formats for people with disabilities (braille, large print, 
electronic files, audio format), send an e-mail to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="7e181d1d4b4e4a3e181d1d50191108">[email protected]</a> or 
call the Consumer & Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (tty).
    <bullet> Availability of Documents: The public may view the 
documents filed in this proceeding during regular business hours in the 
FCC Reference Information Center, Federal Communications Commission, 
445 12th Street, SW., Room CY-A257, Washington, DC 20554, and on the 
Commission's Internet Home Page: http://www.fcc.gov. Copies of comments 
and reply comments are also available through the Commission's 
duplicating contractor: Best Copy and Printing, Inc., 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554, 1-800-378-3160.

Paperwork Reduction Analysis

    11. This document does not contain proposed information collections 
subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In 
addition, therefore, it does not contain any proposed information 
collection burden ``for small business concerns with fewer than 25 
employees,'' pursuant to the Small Business Paperwork Relief Act of 
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Initial Regulatory Flexibility Analysis

    12. The Regulatory Flexibility Act (RFA) requires that an agency 
prepare a regulatory flexibility analysis for notice-and-comment 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not, if promulgated, 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

[[Page 49359]]

established by the Small Business Administration (SBA).
    13. In the BRS/EBS Third FNPRM, the Commission has proposed 
extending the deadline for demonstrating substantial service for those 
licensees that are granted a BRS license after the adoption date of a 
rule in this proceeding. The Commission proposes this action in light 
of its decision to auction 78 available BRS BTA licenses starting on 
October 27, 2009. The Commission is concerned that these licensees, and 
any other licensees whose initial license is granted after the 
effective date of the rules adopted in this proceeding, may not be able 
to meet the substantial service deadline adopted by the Commission on 
April 12, 2006. This proposal, if adopted, would not create any 
additional burdens for BRS licensees. All BRS licensees must 
demonstrate substantial service. If adopted, however, this decision 
would relieve certain licensees of the burden of demonstrating 
substantial service on or before May 1, 2011, which would, in many 
cases, be just over a year from the date of license grant. Thus the 
Commission's proposal, if adopted, would relieve licensees granted an 
initial license after the effective date of the rules adopted in this 
proceeding, from having to meet the May 1, 2011 deadline, but would 
require them to demonstrate substantial service four years from the 
date of license grant.
    14. The Commission therefore certifies, pursuant to the RFA, that 
the proposals in the BRS/EBS Third FNPRM, if adopted, will not have a 
significant economic impact on a substantial number of small entities. 
If commenters believe that the proposals discussed in the BRS/EBS Third 
FNPRM require additional RFA analysis, they should include a discussion 
of these issues in their comments and additionally label them as RFA 
comments.

Ordering Clauses

    15. It is ordered that notice is hereby given of the proposed 
regulatory changes described in this Third Further Notice of Proposed 
Rulemaking, and that comment is sought on these proposals.
    16. It is further ordered that pursuant to section 4(i) of the 
Communications Act of 1934, 47 U.S.C.154(i), that the Commission's 
Consumer and Governmental Affairs Bureau, Reference Information Center, 
shall send a copy of this Third Further Notice of Proposed Rulemaking, 
including the Initial Regulatory Certification, to the Chief Counsel 
for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 27

    Communications common carriers, Communications equipment, Equal 
employment opportunity, Radio, Reporting and recordkeeping 
requirements, Satellites, Securities, Telecommunications.

Marlene H. Dortch,
Secretary, Federal Communications Commission.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 27 as follows:

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

    1. The authority citation for part 27 continues to read as follows:

    Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 
337 unless otherwise noted.

    2. Amend Sec.  27.14 by revising paragraph (o) introductory text to 
read as follows:


Sec.  27.14  Construction requirements; Criteria for renewal.

* * * * *
    (o) BRS and EBS licensees originally issued a BRS or EBS license 
prior to [insert effective date of final rule] must make a showing of 
substantial service no later than May 1, 2011. With respect to initial 
BRS licenses issued after [insert effective date of final rule], the 
licensee must make a showing of substantial service within four years 
from the date of issue of the license. Incumbent BRS licensees that are 
required to demonstrate substantial service by May 1, 2011 must file 
their substantial service showing with their renewal applications. 
``Substantial service'' is defined as service which is sound, 
favorable, and substantially above a level of mediocre service which 
just might minimally warrant renewal. Substantial service for BRS and 
EBS licensees is satisfied if a licensee meets the requirements of 
paragraph (o)(1), (o)(2), or (o)(3) of this section. If a licensee has 
not met the requirements of paragraph (o)(1), (o)(2), or (o)(3) of this 
section, then demonstration of substantial service shall proceed on a 
case-by-case basis. Except as provided in paragraphs (o)(4) and (o)(5) 
of this section, all substantial service determinations will be made on 
a license-by-license basis. Failure by any licensee to demonstrate 
substantial service will result in forfeiture of the license and the 
licensee will be ineligible to regain it.
* * * * *
[FR Doc. E9-23331 Filed 9-25-09; 8:45 am]
BILLING CODE 6712-01-P


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