Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations 37055

1 Geographic Partitioning and Spectrum

Disaggregation by Commericial Mobile Radio

Services Licensees, WT Docket No. 96–148, FCC

96–287, Notice of Proposed Rulemaking, 11 FCC

Rcd. 10187 (1996).

2Public Law 104–121, 110 Stat. 847 (1996)

(CWAA, Subtitle II of the Small Business

Regulatory Enforcement Fairness Act of 1996

(SBREFA) codified at 5 U.S.C. 601, et seq.)

Dated: June 7, 2000.

James L. Harte,

Travel Team Leader, Travel Management

Policy Division.

[FR Doc. 00–14796 Filed 6–12–00; 8:45 am]

BILLING CODE 6820–34–C

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 22

[WT Docket No. 96–148; GN Docket No. 96–

113; FCC 00–141]

Geographic Partitioning and Spectrum

Disaggregation by Commercial Mobile

Radio Services Licensees

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document modifies the

Commission’s rules governing Cellular

Radiotelephone Service (cellular

service) to permit spectrum

disaggregation by cellular licensees. In

addition, the Commission maintains its

existing geographic partitioning rules

for initial cellular licensees, and extends

partitioning rules to unserved area

licensees. This document also resolves

several related issues relevant to cellular

partitioning and disaggregation.

DATES: Effective July 13, 2000.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Steinberg, Wireless

Telecommunications Bureau,

Commercial Wireless Division, at (202)

418–0896.

SUPPLEMENTARY INFORMATION: Synopsis

of the Second Report and Order.

‘‘Partitioning’’ is the assignment of

geographic portions of a radio license

along geopolitical or other boundaries.

‘‘Disaggregation’’ is the assignment of

discrete portions or ‘‘blocks’’ of

spectrum licensed to a geographic

licensee or other qualifying entity. The

Commission has previously examined

partitioning and disaggregation for

many Commercial Mobile Radio

Services (CMRS) on a service-by-service

basis, and has adopted geographic

partitioning and spectrum

disaggregation rules for several services.

In the Further Notice of Proposed

Rulemaking in this proceeding, 62 FR

696 (January 6, 1997), the Commission

tentatively concluded that it is now

appropriate to consider permitting full

partitioning and disaggregation in the

cellular service.

2. The Commission concludes that

modifying its cellular rules to allow

disaggregation will promote competition

and further regulatory symmetry

between cellular and other CMRS

licensees. Extending flexible

disaggregation rules to cellular will

increase carriers’ flexibility to tailor

their service offerings to meet market

demands, thus increasing competition

and enhancing the efficient use of

spectrum. The Commission further finds

that there are no technical or other

constraints unique to the cellular

service that would make disaggregation

either impractical or administratively

burdensome. The Commission therefore

modifies its rules to permit cellular

licensees to disaggregate portions of

their spectrum to other eligible entities.

In addition, the Commission declines to

adopt minimum standards regarding the

amount of spectrum that cellular

licensees may disaggregate.

3. With regard to partitioning, the

Commission decides to retain its

existing partitioning rules for initial

cellular licensees, and to provide for

partitioning by unserved area licensees.

The Commission recognizes that the

current cellular partitioning rules are

different from the rules for

geographically licensed services because

the rules restrict cellular partitioning

outside the licensee’s Cellular

Geographic Service Area (CGSA) after

the initial five-year buildout period.

However, this restriction ensures that

the cellular partitioning rules do not

conflict with the unserved area rules,

and the Commission finds that the rules

are sufficiently flexible so as not to

place cellular licensees at a competitive

disadvantage compared to other CMRS.

The Commission also believes that

cellular unserved area licensees should

have the ability to partition their service

areas. As in the case of initial cellular

licensees, the Commission will allow

cellular unserved area licensees to

partition within their designated

licensing areas during the initial

buildout period of the license. After the

expiration of the 12-month buildout

period, an unserved area licensee may

not partition outside of the licensing

area established as a result of the

buildout process.

4. The Commission retains its existing

cellular construction rules as they apply

to partitioning. These rules provide

sufficient flexibility for cellular

licensees to build out their markets and

to respond to demands for service.

Thus, where a cellular licensee

partitions its license prior to the

expiration of the relevant buildout

period, each partitionee will be

responsible for completing the buildout

in its partitioned area within the

remainder of the original buildout

period. Any area that remains unbuilt at

the conclusion of the buildout period

will revert to the Commission and be

available for unserved area licensing.

With respect to disaggregation, the

parties will be required to certify in

their disaggregation application which

party will be responsible for building

out the licensed area.

5. The Commission adopts its

proposal to permit combined

partitioning and disaggregation for

cellular. The Commission also

determines that the license terms for

partitioned and disaggregated cellular

licenses will be limited to the remaining

term of the underlying licenses, and that

partitionees and disaggregatees may

obtain renewal expectancy on the same

basis as initial cellular licensees and

other CMRS licensees. Finally, the

Commission declines to change its

current procedures for reviewing and

licensing cellular partitioning

transactions, and adopts these

procedures for reviewing and licensing

disaggregation transactions.

Final Regulatory Flexibility Analysis

6. As required by section 603 of the

Regulatory Flexibility Act (RFA), 5

U.S.C. 603, an Initial Regulatory

Flexibility Analysis (IRFA) was

incorporated in the Further Notice of

Proposed Rulemaking (Further Notice)

in WT Docket No. 96–148.1 The

Commission sought written public

comment on the proposals in the

Further Notice, including the IRFA. The

Commission’s Final Regulatory

Flexibility Analysis (FRFA) in this

Second Report and Order conforms to

the RFA, as amended by the Contract

With America Advancement Act of

1996.2

A. Need for and Purpose of This Action

7. In this document, we modify our

rules for the Cellular Radiotelephone

Service (cellular) to permit partitioning

and disaggregation for all licensees in

these services. The rules adopted herein

also implement Congress’ goal of giving

small businesses the opportunity to

participate in the provision of spectrumbased services in accordance with 47

U.S.C. 309(j)(4)(D) and reduce entry

barriers for small businesses in

accordance with 47 U.S.C. 257. With

flexible partitioning and disaggregation,

additional entities, including small

businesses, may participate in the

37056 Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations

3 5 U.S.C. 603(b)(3), 604(a)(3).

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

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

6 1992 Economic Census, U.S. Bureau of the

Census, Table 6 (special tabulation of data under

contract to Office of Advocacy of the U.S. Small

Business Administration).

7 5 U.S.C. 601(3) (incorporating by reference the

definition of ‘‘small business concern’’ in 15 U.S.C.

632).

8 15 U.S.C. 632.

9 13 CFR 121.201, Standard Industrial

Classification (SIC) Code 4812.

10U.S. Small Business Administration 1992

Economic Census Employment Report, Bureau of

the Census, U.S. Department of Commerce, SIC

Code 4812 (radiotelephone communications

industry data adopted by the SBA Office of

Advocacy).

11Bureau of the Census, U.S. Department of

Commerce, 1992 Census of Transportation,

Communications, and Utilities, UC92–S–1, Subject

Series, Establishment and Firm Size, Table 5,

Employment Size of Firms: 1992, SIC Code 4812

(issued May 1995).

12FCC, Telecommunications Industry Revenue:

TRS Fund Worksheet Data, Figure 2 (Number of

Carriers Paying Into the TRS Fund by Type of

Carrier) (Nov. 1997).

provision of cellular service without

needing to acquire wholesale an existing

license (with all of the bundle of rights

currently associated with the existing

license). Acquiring ‘‘less’’ than the

current license will presumably be a

flexible and less expensive alternative

for entities desiring to provide these

services.

B. Description and Number of Small

Entities Involved

8. The RFA directs agencies to

provide a description of and, where

feasible, an estimate of the number of

small entities that will be affected by

our rules.3 The RFA generally defines

the term ‘‘small entity’’ as having the

same meaning as the terms ‘‘small

business,’’ ‘‘small organization,’’ and

‘‘small governmental jurisdiction.’’ 4 A

small organization is generally ‘‘any notfor-profit enterprise which is

independently owned and operated and

is not dominant in its field.’’ 5

Nationwide, there are 275,801 small

organizations.6 In addition, the term

‘‘small business’’ has the same meaning

as the term ‘‘small business concern’’

under section 3 of the Small Business

Act.7 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) meets any

additional criteria established by the

Small Business Administration (SBA).8

9. The rules adopted in this document

will affect all small businesses which

avail themselves of these rule changes,

including small businesses currently

holding cellular licenses who choose to

partition and/or disaggregate, and small

businesses that may acquire licenses

through partitioning and/or

disaggregation. We have not developed

a definition of small entities applicable

to cellular licensees.

Therefore, the applicable definition of

small entity is the definition under the

SBA rules applicable to radiotelephone

companies. This definition provides

that a small entity is a radiotelephone

company employing fewer than 1,500

persons.9 The size data provided by the

SBA does not enable us to make a

meaningful estimate of the number of

cellular providers which are small

entities because it combines all

radiotelephone companies with 500 or

more employees.10

10. The 1992 Census of

Transportation, Communications, and

Utilities, conducted by the Bureau of the

Census, is the most recent information

available. This document shows that

only twelve radiotelephone firms out of

a total of 1,178 such firms that operated

during 1992 had 1,000 or more

employees.11 Therefore, even if all

twelve of these large firms were cellular

telephone companies, nearly all of the

cellular carriers were small businesses

under the SBA’s definition. We assume,

for purposes of this FRFA, that all of the

current cellular licensees are small

entities, as that term is defined by the

SBA. In addition, we note that there are

1,758 cellular licenses; however, a

cellular licensee may own several

licenses. The most reliable source of

information regarding the number of

cellular service providers nationwide

appears to be data that we publish

annually in our Telecommunications

Industry Revenue report, regarding the

Telecommunications Relay Service

(TRS). The report places cellular

licensees and Personal Communications

Services (PCS) licensees in one group.

According to the data released in

November 1997, there are 804

companies reporting that they engage in

cellular or PCS service.12 It seems

certain that some of these carriers are

not independently owned and operated,

or have more than 1,500 employees;

however, we are unable at this time to

estimate with greater precision the

number of cellular service carriers

qualifying as small business concerns

under the SBA’s definition. For

purposes of this FRFA, we estimate that

there are fewer than 804 small cellular

service carriers.

C. Summary of Projected Reporting,

Recordkeeping and Other Compliance

Requirements

11. The rules adopted in this

document will impose reporting and

recordkeeping requirements on small

businesses seeking licenses through

partitioning and disaggregation. The

information requirements will be used

to determine whether the licensee is a

qualifying entity to obtain a partitioned

license or disaggregated spectrum. Any

applicant requesting such a license, will

provide this information in a one-time

filing. The applicant will submit this

information on a FCC Form 490

Application for Assignment of

Authorization or Consent to Transfer of

Control of License. The applicant will

also submit an FCC Form 430 Licensee

Qualification Report if one is not

already on file with us, and an FCC

Form 600 Application for Mobile Radio

Service Authorization. These forms are

currently in use and have already

received Office of Management and

Budget clearance. We estimate that the

average burden on the applicant is three

hours for the information necessary to

complete these forms. We further

estimate that seventy-five percent of the

respondents (which may include small

businesses) will contract out the burden

of responding. Finally, we estimate that

it will take approximately thirty

minutes to coordinate information with

those contractors. The remaining

twenty-five percent of respondents

(which may include small businesses)

are estimated to employ in-house staff to

provide the information.

D. Steps Taken To Minimize Burdens on

Small Entities

12. The rules adopted in this

document are designed to implement

Congress’ goal of giving small

businesses, as well as other entities, the

opportunity to participate in the

provision of spectrum-based services

and are consistent with the

Communications Act’s mandate to

identify and eliminate market entry

barriers for entrepreneurs and small

businesses in the provision and

ownership of telecommunications

services.

13. Allowing non-restricted

partitioning of licenses will facilitate

market entry by parties who may lack

the financial resources for participation

in auctions, including small businesses.

Some small businesses may have been

unable to obtain cellular licenses

through sale due to high asking prices.

By eliminating this restriction and

allowing flexible partitioning, small

businesses will be able to obtain

partitioned licenses for smaller service

areas at presumably reduced costs,

thereby providing a method for small

businesses to enter the cellular

marketplace.

14. Similarly, allowing immediate

disaggregation of cellular licenses will

Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations 37057

facilitate the entry of new competitors to

the provision of these services, many of

whom will be small businesses seeking

to acquire a smaller amount of spectrum

at a reduced cost. Additionally,

allowing disaggregation of spectrum in

any amount will also promote

participation by small businesses who

may seek to acquire a smaller amount of

cellular spectrum tailored to meet the

needs of their proposed service.

E. Significant Alternatives Considered

and Rejected

15. We considered and rejected

several alternative proposals concerning

partitioning and disaggregation:

• We considered and rejected the

option of continuing to disallow

disaggregation of cellular spectrum. We

concluded that permitting

disaggregation would promote

competition and further regulatory

symmetry, and that there were no

technical or other constraints that

would make cellular disaggregation

either impractical or administratively

burdensome.

• We declined to establish any

minimum amount of spectrum that can

be disaggregated. We concluded that

allowing flexibility in disaggregation

would promote more efficient use of

spectrum and permit deployment of a

wider array of services.

• We declined to allow additional

flexibility in our cellular partitioning

rules. We concluded that our existing

rules are sufficiently flexible so as not

to place cellular licensees at a

competitive disadvantage compared to

other CMRS, and that additional

flexibility would be inconsistent with

our cellular unserved area rules.

• We declined to apply a new license

term to partitioned license areas or

disaggregated spectrum. We found that

allowing parties to ‘‘re-start’’ their

license term would effectively allow a

licensee to extend its license term and

could lead to circumvention of our

license term rules.

F. Report to Congress

16. We shall include a copy of this

Final Regulatory Flexibility Analysis,

along with this Second Report and

Order, in a report to be sent to Congress

pursuant to the Small Business

Regulatory Enforcement Fairness Act of

1996, 5 U.S.C. 801(a)(1)(A). A copy of

this Final Regulatory Flexibility

Analysis will also be published in the

Federal Register.

G. Ordering Clauses

17. Accordingly, pursuant to the

authority of sections 4(i), 257, 303(g),

303(r), and 332(a) of the

Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 257, 303(g),

303(r), and 332(a), part 22 of the

Commission’s Rules, 47 CFR 22.1, et

seq., Is Amended as set forth in the rule

changes.

18. The rules adopted herein will

become effective July 13, 2000. This

action is taken pursuant to sections 4(i),

303(r), and 309(j) of the

Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 303(r),

309(j).

List of Subjects in 47 CFR Part 22

Radio.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons set forth in the

preamble, the Federal Communications

Commission amends 47 CFR part 22 as

follows:

PART 22—PUBLIC MOBILE SERVICES

1. The authority citation for part 22

continues to read:

Authority: 47 U.S.C. 154, 222, 303, 309 and

332.

2. Add § 22.948 to read as follows:

§ 22.948 Partitioning and Disaggregation.

(a) Eligibility. (1) Generally. Parties

seeking approval for partitioning and

disaggregation shall request an

authorization for partial assignment of a

license pursuant to § 1.948 of this

chapter. Cellular licensees may partition

or disaggregate their spectrum to other

qualified entities.

(2) Partitioning. During the five year

build-out period, as defined in § 22.947,

cellular licensees may partition any

portion of their cellular market to other

qualified entities. After the five year

build-out period, cellular licensees and

unserved area licensees may partition

any portion of their Cellular Geographic

Service Area (CGSA), as defined by

§ 22.911, to other qualified entities but

may not partition unserved portions of

their cellular market.

(3) Disaggregation. After the five year

build-out period, as defined in § 22.947,

parties obtaining disaggregated

spectrum may only use such spectrum

in that portion of the cellular market

encompassed by the original licensee’s

CGSA and may not use such spectrum

to provide service to unserved portions

of the cellular market.

(b) Disaggregation. Cellular licensees

and unserved area licensees may

disaggregate spectrum in any amount.

(c) Combined partitioning and

disaggregation. The Commission will

consider requests for partial assignment

of cellular licenses that propose

combinations of partitioning and

disaggregation.

(d) License Term. The license term for

the partitioned license area and for

disaggregated spectrum shall be the

remainder of the original cellular

licensee’s or the unserved area

licensee’s license term provided for in

§ 22.144(a).

[FR Doc. 00–14872 Filed 6–12–00; 8:45 am]

BILLING CODE 6712–01–P

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 1807, 1811, 1812, 1815,

1816, 1823, 1842, 1846, and 1852

Risk Management

AGENCY: National Aeronautics and

Space Administration (NASA).

ACTION: Interim rule and request for

comments.

SUMMARY: This interim rule changes the

NASA FAR Supplement (NFS) to

emphasize considerations of risk

management, including safety, security

(including information technology

security), health, export control, and

damage to the environment, within the

acquisition process. The interim rule

addresses risk management within the

context of acquisition planning,

selecting sources, choosing contract

type, structuring award fee incentives,

administering contracts, and conducting

contractor surveillance. Also, this

interim rule provides that contractors

not be paid award fee for any evaluation

period in which there is a major breach

of safety or security.

DATES: Effective Date: This rule is

effective July 13, 2000.

Applicability Date: This rule applies

to solicitations issued on or after July

13, 2000.

Comment Date: Comments should be

submitted to NASA at the address below

on or before August 14, 2000.

ADDRESSES: Interested parties should

submit written comments to James H.

Dolvin, NASA Headquarters Office of

Procurement, Contract Management

Division (Code HK), Washington, DC

20546. Comments may also be

submitted by e-mail to

jdolvin1@mail.hq.nasa.gov.

FOR FURTHER INFORMATION CONTACT:

James H. Dolvin, (202) 358–1279.

SUPPLEMENTARY INFORMATION:

A. Background

It is critically important for NASA to

achieve mission success without