[Federal Register Volume 62, Number 216 (Friday, November 7, 1997)]
[Proposed Rules]
[Pages 60199-60215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29515]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 20 and 90

[WT Docket No. 96-86; FCC 97-373]


The Development of Technical and Spectrum Requirements for 
Meeting Public Safety Agency Communication Requirements, Establishment 
of Rules and Requirements for Priority Access Service

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission adopts a Second Notice of Proposed Rulemaking 
(Second NPRM) which makes a range of proposals relating to public 
safety communications in the 746-806 MHz band and in general. The 
Second NPRM discusses goals for establishing a plan to ensure the 
efficient and effective use of spectrum to meet critical public safety 
communications needs, proposes and seeks comment on service rules for 
the 24 megahertz of spectrum that the Commission has proposed to 
allocate for public safety needs, seeks comment relating to the 
establishment of wireless priority access services by commercial 
systems for use in meeting communications needs in emergency and 
disaster situations, and proposes technical requirements to protect 
broadcast licensees operating in the 746-806 MHz band from 
interference. This action is taken as part of the Commission's 
compliance with its mandate under the Balanced Budget Act of 1997.

DATES: Comments are due on or before December 22, 1997, and reply 
comments are due on or before January 12, 1998. Written comments by the 
public on the proposed information collections are due January 6, 1998. 
Written comments on the proposed information collections must be 
submitted by the Office of Management and Budget (OMB) on or before 
January 6, 1998.

ADDRESSES: Federal Communications Commission, Office of the Secretary, 
Room 222, Washington, D.C. 20554. In addition to filing comments with 
the Secretary, a copy of any comments on the information collections 
contained herein should be submitted to Judy

[[Page 60200]]

Boley, Federal Communications Commission, Room 234, 1919 M Street, 
N.W., Washington, DC 20554, or via the Internet to <a href="/cdn-cgi/l/email-protection#543e363b38312d143237377a333b22"><span class="__cf_email__" data-cfemail="402a222f2c2539002623236e272f36">[email protected]</span></a>, and 
to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725-17th Street, N.W., 
Washington, D.C. 20503, or via the internet to <a href="/cdn-cgi/l/email-protection#402621292e1f1f3400252f306e272f36"><span class="__cf_email__" data-cfemail="cea8afa7a09191ba8eaba1bee0a9a1b8">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Marty Liebman, Mary Woytek, David 
Siehl, or Jon Reel, Policy Division, (202) 418-1310. For additional 
information concerning the information collections contained in this 
Second NPRM, contact Judy Boley at (202) 418-0214, or via the Internet 
at <a href="/cdn-cgi/l/email-protection#3b515954575e427b5d5858155c544d"><span class="__cf_email__" data-cfemail="c1aba3aeada4b881a7a2a2efa6aeb7">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Second NPRM in WT 
Docket No. 96-86, FCC 97-373, adopted October 9, 1997, and released 
October 24, 1997. The complete text of this notice is available for 
inspection and copying during normal business hours in the FCC 
Reference Center (Room 239), 1919 M Street, N.W., Washington, D.C., and 
also may be purchased from the Commission's copy contractor, 
International Transcription Services, (202) 857-3800, 1231 20th Street, 
N.W., Washington, DC 20036. This Second NPRM contains new information 
collections subject to the Paperwork Reduction Act of 1995 (PRA). It 
has been submitted to the Office of Management and Budget (OMB) for 
review under the PRA. OMB, the general public, and other Federal 
agencies are invited to comment on the proposed information collections 
contained in this proceeding.

Paperwork Reduction Act

    This Second NPRM contains a proposed information collection. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and the Office of Management and 
Budget (OMB) to comment on the information collections contained in 
this Second NPRM, as required by the Paperwork Reduction Act of 1995, 
Pub. L. 104-13. Public and agency comments are due January 6, 1998. 
Comments should address: (a) whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the Commission, including whether the information will have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology.
    OMB Approval Number: 3060-XXXX.
    Title: Development of Operational, Technical, and Spectrum 
Requirements For Meeting Federal, State and Local Public Safety Agency 
Communication Requirements Through the Year 2010, Establishment of 
Rules and Requirements for Priority Access Service (Second NPRM, WT 
Docket No. 96-86).
    Form No.: N/A.
    Type of Review: New Collection.
    Respondents: Primary: 55 regional planning committees + 1 national 
planning committee + 1 standards committee + 2,000 entities applying 
for extended implementation = 2,057.
    Third Party: 6,600 eligible entities (estimate based on 120 per 
regional committee). (This figure includes 2,000 eligible entities 
already included as primary respondents that may apply to the 
Commission for extended implementation.)
    Number of Respondents: 6,657.
    Estimated Time Per Response: Primary: Regional planning committee: 
10,270 hours; National planning committee: 10,000 hours; Standards 
committee: 10,000 hours; Entity seeking extended implementation: 10 
hours;
    Third Party: Eligible entity--6 hours.
    Total Annual Burden: 644,450 hours.
    Total Annual Cost: $0 . There are no capital/startup or operational 
and maintainance cost associated with this collection. The Commission 
estimates the respondents will not hire contract staff to prepare the 
material.
    Needs and Uses: In the Balanced Budget Act of 1997, Congress 
directed the Commission to dedicate 24 megahertz of spectrum in the 
746-806 MHz band for public safety services. The enclosed Second Notice 
of Proposed Rulemaking, FCC 97-393, in WT Docket No. 96-86 proposes 
service rules to make the spectrum available for licensing.
    In order to satisfy local and regional needs and preferences, the 
Commission proposes that regional planning committees made up of 
representatives from the public safety community draft and submit of 
regional plans. The regional plans may include plans for both spectrum 
reserved for interoperability and spectrum available for general public 
safety use. Creation of these plans will necessarily impose some 
burden, both on the eligible entities that make their needs known, and 
on the planners who seek to accommodate them. In addition, the 
Commission proposes that a planning committee convene to develop 
nationwide interoperability policies and procedures, and mentions the 
possibility that an entity may be formed to assist the Commission in 
formulating technical standards. Commission personnel will use the 
information to assign licenses, and may also use the information to 
determine regional spectrum requirements and to develop technical 
standards. The information will also be used to determine whether 
prospective licensees will operate in compliance with the Commission's 
rules. Without such information, the Commission could not accommodate 
regional requirements or provide for the optimal use of the available 
frequencies.

Synopsis of the Second Notice of Proposed Rulemaking

    1. In this Second Notice of Proposed Rulemaking (Second NPRM) the 
Commission makes a range of proposals relating to public safety 
communications in the 746-806 MHz spectrum band. The proposals include 
service rules for the 24 megahertz of spectrum that Congress, in the 
Balanced Budget Act of 1997, has committed to public safety services; 
<SUP>1</SUP> the establishment of wireless priority access services by 
commercial systems for use in meeting communications needs in 
emergencies; and technical requirements to protect broadcast licensees 
operating in the 746-806 MHz band from interference. The Commission 
notes that this Second NPRM does not address all the issues raised in 
the Notice of Proposed Rulemaking in this proceeding (61 FR 25185, May 
20, 1996) (Public Safety NPRM) or in the Final Report of the Public 
Safety Wireless Advisory Committee.<SUP>2</SUP> To the extent that 
important issues remain, they will be addressed in future proceedings.
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    \1\ Reallocation of Television Channels 60-69, the 746-806 MHz 
Band, ET Docket No. 97-157, Notice of Proposed Rulemaking, FCC 97-
245, 62 FR 41012 (July 31, 1997) (Allocation NPRM). Balanced Budget 
Act of 1997, Public Law 105-33, 111 Stat. 251 (1997).
    \2\ Final Report of the Public Safety Wireless Advisory 
Committee to the Federal Communications Commission and the National 
Telecommunications and Information Administration, September 11, 
1996 (PSWAC Final Report).
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I. Public Safety Communications

A. Interoperability Service Rules

    2. The Second NPRM first considers service rules in the 746-806 MHz 
band for public safety interoperability, and discusses the following 
issues that arise in the context of interoperability: location and 
amount of interoperability spectrum; types of communication; 
transmission technology; channel spacing; channel requirements; 
equipment standards; eligibility, use, and licensing; and trunking and

[[Page 60201]]

technical standards. The Second NPRM then discusses similar issues for 
the spectrum that is not reserved for interoperability, i.e., those 
frequencies to be made available for the use of individual public 
safety entities.
    3. The Public Safety NPRM proposed a formal definition of 
interoperability and related definitions of Infrastructure-independent 
and Infrastructure-dependent interoperability, and Multi-jurisdictional 
and Multi-disciplinary interoperability. The PSWAC Final Report adopted 
these definitions, and additionally proposed that ``mission critical'' 
communications be defined as that which must be immediate, ubiquitous, 
reliable and, in most cases, secure. The Commission seeks further 
comment on these definitions and on any proposals for different 
definitions.
1. Interoperability Spectrum

Location and Amount of Interoperability Spectrum

    4. The Commission proposes to dedicate a significant amount of 
spectrum in the 746-806 MHz band solely for interoperability 
communications. The Commission seeks comment on the amount of spectrum 
that should be dedicated for interoperability communications. The 
precise amount adopted by the Commission will also reflect the comments 
and suggestions received in regard to the spacing and number of 
channels required.
    5. The Second NPRM also asks commenters who believe that the 
Commission should attempt to allocate spectrum for interoperability 
from other public safety bands or elsewhere to indicate which bands 
should be used to provide such spectrum, and how channels within those 
bands might be cleared throughout the Nation in order to realize the 
Commission's goal of nationwide interoperable communications. If 
commenters believe that interoperability channels should be designated 
in more than one band, the Commission asks that they indicate how 
nationwide interoperability can be achieved using channels in different 
bands.

Types of Communication

    6. The Second NPRM tentatively concludes that it would be useful to 
categorize public safety communications into four separate types: 
voice, data, image/high speed data (image/HSD), and video. In order to 
determine whether and how each of these types of potential 
interoperability communications could or should be accommodated in the 
Commission's designation of interoperability spectrum, comment is 
solicited on whether the Commission should designate interoperability 
spectrum for:
    <bullet> Voice channels only (with data capability on such 
channels).
    <bullet> Voice and data channels only.
    <bullet> Voice, data, image/HSD, slow motion video, and full motion 
video channels.
    <bullet> Channels that would accommodate some other combination of 
uses.

Transmission Technology

    7. In order to ensure interoperability among all public safety 
agencies, an important factor to consider is whether to specify the 
modulation technology for interoperability channels. Because the 
Commission's goal is to provide for nationwide interoperability, the 
Commission tentatively concludes that at a minimum the Commission must 
specify whether analog FM or digital modulation technologies should be 
used for interoperability channels. The Second NPRM addresses these 
issues in the context of the various types of interoperability 
communications the Commission is considering.

Voice

    8. The Second NPRM invites comment on whether the achievement of 
interoperability on analog or digital modulation for voice 
interoperability channels should be specified. In addition, the Second 
NPRM seeks comment regarding whether standards on these channels, 
whether analog or digital, should be adopted. The Commission asks 
commenters how long it would take to develop digital standards and 
whether the time associated with the development process offsets the 
advantages of digital technology. The Commission also seeks comment 
regarding whether adopting a digital standard would result in all 
interoperability equipment being tied to today's digital technology for 
many years, even if that technology experiences great advances in the 
next century.

Data, Image/HSD, and Video

    9. Given that technical standards will have to be developed 
regardless of whether analog or digital technology is used for data 
channels, the Commission proposes to adopt the use of digital 
modulation on such channels, in order to benefit from the throughput 
advantages of digital technology. Because image/HSD and video 
communications also involve the transmission of digital information, 
the Commission proposes to adopt the use of digital modulation on these 
channels. The same considerations allotted to data communications would 
apply to image/HSD and video communications. The Second NPRM seeks 
comment on these proposals.
    10. As a related issue, the Second NPRM seeks comment regarding 
whether technical standards should be mandated for data, image/HSD, or 
video equipment used for interoperability. If so, the Second NPRM also 
asks what technical standards would be necessary on data, image/HSD, 
and video channels to achieve interoperability if digital systems, or 
analog-based systems, are employed? In addition, the Commission asks 
commenters to indicate the data rates they believe are desirable or 
necessary for each type of digital communication (i.e., data, image/
HSD, and video).

Channel Spacing

    11. An important consideration in deciding how spectrum should be 
designated for different types of interoperable communications is the 
spacing of the channels needed to support such communications. The 
Second NPRM therefore explores this issue with respect to each of the 
four categories of interoperable communications discussed above, and 
requests comment on any other categories that may be appropriate.
    12. The Commission seeks comment regarding the following issues 
relating to channel spacing for interoperability channels:
    <bullet> What channel spacing is needed to ensure appropriate voice 
quality and clarity for voice interoperability channels?
    <bullet> Should the interoperability channels be spaced 25 
kilohertz apart to more easily enable these channels to be incorporated 
into equipment operating in the 806-821 MHz band? Or should the 
Commission consider a transition to 12.5 kHz channels for the 806-821 
MHz band?
    <bullet> What channel spacing is needed to ensure appropriate data 
capacity for data interoperability channels?
    <bullet> To what extent might voice channels also be used by public 
safety personnel to carry data?
    13. The Second NPRM seeks comment on what channel spacings should 
be adopted for voice, data, image/hsd, and video interoperability 
channels. The Commission requests that commenters consider issues such 
as the use of analog or digital technology and the appropriate data 
rates for different types of communications, and discuss their 
rationale in suggesting appropriate channel spacings for voice, data, 
image/HSD, slow motion video, and full

[[Page 60202]]

motion video channels. The Commission also asks commenters to indicate 
whether the channel spacings they suggest are based on current or 
future state-of-the-art technology in digital efficiency, as measured 
in bits/second/Hertz.

Channel Requirements

    14. The Second NPRM seeks input regarding the number of 
interoperability channels that should be designated for each type of 
communication described above, and with regard to additional factors 
related to channelization, such as the number of paired or unpaired 
channels needed for the various types of communications.
    15. Specifically, the Second NPRM seeks comment on the number of 
channels that commenters believe should be dedicated for 
interoperability uses for: voice transmissions (mobile-only, or base 
and mobile channel pairs); data transmissions (base-only, or base and 
mobile channel pairs); image/HSD transmissions (base-only, or base and 
mobile channel pairs); slow motion video transmissions (mobile-only, or 
base and mobile channel pairs); and full motion video transmissions 
(mobile-only, or base and mobile channel pairs). In commenting on the 
number of interoperability channels that should be designated, the 
Commission asks interested parties to indicate the channel spacing they 
assume for each type of channel.

Equipment Standards

    16. The Commission recognizes that poor quality receivers could 
impede communications on the interoperability channels, and so invites 
comment as to whether to establish receiver standards for the 
interoperability channels. The Commission observes that its authority 
to regulate receiver standards may be limited. It notes, for example, 
that Sec. 302(a) of the Communications Act grants the Commission 
specific authority to regulate the susceptibility to interference of 
home electronic equipment such as TV receivers. The Commission 
therefore asks those commenters recommending mandatory receiver 
standards to indicate the technical parameters to be standardized and 
to address the Commission's legal authority to adopt such standards.
    17. The Second NPRM also seeks comment regarding whether the 
Commission should require that all public safety mobile and portable 
radios operating in the 746-806 MHz band be capable of operating on all 
voice and data interoperability channels in that band. In addition, the 
Second NPRM invites comment regarding whether it is technically 
feasible to incorporate the 746-806 MHz interoperability channels into 
mobile and portable radios operating in the 806-824/851-869 MHz band, 
and whether doing so is dependent on whether the Commission employs 
television Channels 68 and 69 for mobile-to-base transmissions or 
whether the Commission decides instead to use television Channels 63 
and 64 for some or all mobile-to-base transmissions. If incorporating 
746-806 MHz interoperability channels into 806-824/851-869 MHz mobile 
and portable radios is technically feasible, commenters are asked to 
address whether the Commission should require that all public safety 
mobile and portable radios operating in 806-824/851-869 MHz band 
manufactured or imported beginning one year after the effective date of 
the Report and Order adopted in this proceeding, be capable of 
operating on the interoperability channels in the 746-806 MHz band.
    18. On the other hand, the Commission suggests that the best and 
easiest way to provide for mobile and portable radio equipment on these 
channels might be for equipment manufacturers to build 
``interoperability radios'' (i.e., radios that transmit and receive 
only on voice and data interoperability channels). The Second NPRM 
seeks comment on this option, and on the trade-offs between this and 
the previous option (of requiring all radios to operate on the 
interoperability channels).
2. Eligibility, Use, and Licensing

Definitions

    19. The Public Safety NPRM tentatively concluded that the 
Commission should adopt formal definitions relating to public safety. 
The Commission does not intend to take further action on the 
definitions it proposed, however, since in directing the Commission to 
assign 24 megahertz of spectrum in the 746-806 MHz band for public 
safety services, Congress defined ``public safety services'' to mean 
services: <SUP>3</SUP>
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    \3\ Sec. 337(f)(1) of the Communications Act, 47 U.S.C. 
337(f)(1), as added by the Balanced Budget Act of 1997, 3004.
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    (A) the sole or principal purpose of which is to protect the safety 
of life, health, or property;
    (B) that are provided--
    (i) By State or local government entities; or
    (ii) By nongovernmental organizations that are authorized by a 
governmental entity whose primary mission is the provision of such 
services; and
    (C) that are not made commercially available to the public by the 
provider.
    20. The Second NPRM tentatively concludes that a definition of a 
public safety service provider can be based upon the statutory 
definition of public safety services, and that such a definition would 
be helpful in developing service rules for the 746-806 MHz band. The 
Second NPRM proposes to define the term as follows:
    Public Safety Service Provider: (1) A State or local government 
entity that provides public safety services; or (2) a non-governmental 
organization that is authorized to provide public safety services by a 
governmental entity pursuant to Sec. 337(f)(1)(B)(ii) of the 
Communications Act.
    21. The Commission notes that two broad groups fall within this 
definition--governmental public safety services providers, and 
authorized non-governmental public safety services providers. The 
Commission also notes that many entities with public safety interests, 
and with which public safety service providers may need to communicate 
by radio, do not fall within the statutory definition. Eligibility 
issues regarding use of the interoperability channels and for channels 
from the non-interoperability (general use) public safety spectrum are 
discussed under separate headings below.

National and Regional Planning

    22. The Second NPRM addresses how interoperability spectrum may 
best be managed for effective interoperable communications. As a 
threshold question, however, the Commission asks commenters to discuss 
which policies it should set at the national level, and which should be 
set by those in closer proximity to State and local public safety 
users. In the NPSPAC Proceeding, the Commission established 55 regions 
and directed each to develop plans for use of both the interoperability 
and the non-interoperability channels.<SUP>4</SUP> The regions were to 
establish procedures for interoperability that best suited their 
individual requirements. The Commission could adopt a similar process 
for the interoperable channels in the 746-806 MHz band. The Second NPRM 
tentatively concludes that the Commission's primary goal with respect

[[Page 60203]]

to interoperability should be seamless interoperability on a nationwide 
basis.
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    \4\ Development and Implementation of a Public Safety National 
Plan and Amendment of Part 90 to Establish Service Rules and 
Technical Standards for Use of the 821-824/866-869 MHz Bands by the 
Public Safety Services, GEN Docket No. 87-112, (NPSPAC Proceeding), 
Memorandum Opinion and Order, 53 FR 11849 (April 11, 1988). See 
Report and Order, GEN Docket Nos. 87-112, 53 FR 1022 (January 15, 
1988) (NPSPAC Report and Order).
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    23. The Second NPRM requests comment regarding four alternative 
approaches to managing the interoperability channels in the 746-806 MHz 
band. First, the Commission asks commenters to consider whether the 
individual NPSPAC regional planning committees should develop plans for 
the operation and use of the interoperability channels in the 746-806 
MHz band. Second, as a variation on this approach, commenters should 
consider whether the Commission should create parallel regional 
organizations devoted entirely to developing plans and procedures for 
use of the interoperability channels. Commenters favoring either of 
these two options should discuss how these channels could be entrusted 
to the individual regions without compromising the goal of seamless 
nationwide interoperability.
    24. As a third alternative, the Second NPRM asks whether a national 
planning process to develop nationwide plans and procedures for the 
interoperability channels should be adopted. Finally, the Second NPRM 
asks commenters to discuss a fourth option in which specific nationwide 
guidelines and procedures for the use of the interoperability channels 
would be developed.

Categories of Interoperability Uses

    25. In the Public Safety NPRM, the Commission discussed public 
safety interoperability in three general contexts: day-to-day, mutual 
aid, and emergency preparedness or task force operations. The Second 
NPRM asks whether it is necessary or advisable to provide specific 
amounts of spectrum for each of these uses, or whether the Commission 
should instead provide spectrum for general interoperability use. If 
commenters believe that interoperability channels should be designated 
for specific uses, the Commission asks them to suggest how many of each 
type of channel should be designated for each category.
    26. The Second NPRM also asks commenters to consider whether in an 
emergency all voice, data, image/HSD, and video interoperability 
channels should become mutual aid channels. The Commission invites 
comment regarding the alternative approaches of allowing the regions, 
either individually or as participants in a national planning 
committee, to decide how many channels, and what kind of channels, 
should be used for each category of interoperability. If the Commission 
permits the regions to decide these questions, commenters should 
discuss whether the Commission should designate a minimum number of the 
interoperability channels for mutual aid and set their location. The 
Commission's tentative view is that this would ensure that immediately 
identifiable channels would be available for mutual aid nationwide.

Eligibility and Use of Interoperability Channels

    27. The Commission tentatively concludes that all public safety 
service providers should be eligible to use all of the interoperability 
channels. The Commission also tentatively concludes, however, that 
eligibility alone should not guarantee unlimited access to these 
channels, but rather that their use should only be permitted in 
accordance with the plan for interoperability. The Commission also 
believes that it would be consistent with the new Sec. 337 of the 
Communications Act and the intent of Congress to broaden the 
eligibility for interoperability channels, because public safety 
service providers may need to interact with entities which provide 
services that do not fall within the definition of public safety 
services established by Congress in Sec. 337. The Commission 
tentatively concludes that public safety service providers will need to 
communicate with their Federal counterparts, and seeks comment 
regarding how the interoperability channels should be made available to 
Federal users, and how the Table of Allocations may need to be revised 
to permit Federal use. The Second NPRM also seeks comment regarding 
whether such use would be consistent with congressional objectives in 
amending Sec. 337 of the Communications Act.
    28. The Second NPRM next proposes that authorized non-governmental 
providers are among the public safety service providers for whom the 
interoperability channels are specifically intended, but that orderly 
and effective use of these channels requires that all users use the 
interoperability channels only in accordance with the interoperability 
plan. The Commission further tentatively concludes that, in formulating 
such plans, the planners should have full latitude to restrict the use 
of the interoperability channels as they judge necessary to ensure that 
these channels are put to effective use. The Second NPRM seeks comment 
on these tentative conclusions.
    29. The Second NPRM further asks commenters whether the plans 
governing access to the interoperability channels should be designed by 
the individual regions, either through the regional planning committees 
or through regional committees established specifically to address 
interoperability, or whether at least some of these rules should be 
prescribed at the national level, either by the Commission or through a 
national interoperability planning committee. The Commission asks 
commenters to consider the possibility that some rules for the 
interoperability channels, such as the mutual aid channels or the task 
force channels, might be formulated by the Commission, while regional 
committees or other regional groups might formulate the rules governing 
access to the channels designated for day-to-day use. The Commission 
also asks commenters whether access by Federal agencies should be 
regulated at the national level, with the rules governing access by 
other entities to be set at the regional level. Finally, the Second 
NPRM asks whether standards and procedures should be adopted to ensure 
that the interoperability plans are reasonable, effective, and fair.
    30. The Second NPRM also solicits comment regarding whether some 
channels should be designated for particular services nationwide, or 
whether all eligible entities should have access to all the channels 
within a given category. Commenters are again asked whether these 
decisions should be made by the regions individually, either through 
the regional planning committees or through regional committees 
established specifically to address interoperability; by a national 
interoperability planning committee; or by the Commission. Commenters 
should consider the option of the Commission deciding these issues for 
some, but not all, of the interoperability channels.
    31. The Second NPRM also invites comment regarding how the voice, 
data, image/HSD, and video interoperability channels should be assigned 
to licensees. Specifically the Second NPRM asks whether authorizations 
for base and control transmitters operating on the interoperability 
channels should be obtained from the Commission, or whether the 
Commission should adopt an alternative approach, such as giving the 
regions more authority for the interoperability channels and allowing 
each region to authorize individual agencies to operate base stations 
without the need for separate station authorizations. In either case, 
public safety entities could operate mobile units and portables on the 
interoperability channels without separate authorization as long as 
they were operating in accordance with the approved regional plan.

[[Page 60204]]

3. Trunking on Interoperability Spectrum
    32. The Second NPRM notes that in a large-scale emergency, wireless 
communication among many personnel from different agencies and regions 
must be rapidly coordinated. It tentatively concludes that a trunked 
system is the best, and possibly the only practicable, method by which 
this goal can be achieved.
    33. The Commission has not required use of specific trunking 
standards for public safety communications services, nor has it 
specified such standards for private or commercial mobile radio 
services. However, the Commission states that interoperability among 
public safety users could be thwarted absent a trunking standard. It 
also states that it is vitally important that the public safety 
spectrum be used in the most efficient way feasible. For these reasons, 
as well as the operational benefits that trunking technology can 
provide, the Second NPRM asks whether the Commission should adopt a 
trunking standard for communications on the interoperability channels. 
Because the Commission's goal is to promote the ability of public 
safety users to communicate across regional as well as across agency 
lines, the Commission asks whether it should mandate a single 
nationwide trunking standard, rather than leave to the individual 
regions the decision of whether to employ conventional or trunked 
operations, or of selecting regional trunking standards.
4. Technical Standards for Interoperability Spectrum
    34. The Second NPRM suggests various approaches for developing 
digital or trunking standards for interoperability channels and invites 
comment regarding these approaches. The Commission is particularly 
interested in views concerning the option that would have the greatest 
likelihood of successfully meeting the needs of the public safety 
community. Because the Commission intends to initiate licensing of the 
public safety spectrum as soon as practicable, it also requests 
comments as to the approach to development of standards for 
interoperability spectrum that is likely to be the most expeditious. 
Finally, the Commission indicates that in addition to a basic trunking 
standard for interoperability channels, related technical standards may 
be required to enable effective interoperability. Therefore, the Second 
NPRM invites comments as to the scope of any such additional standards 
that may be needed to ensure effective interoperability, how such 
standards should be developed, and what elements these standards should 
encompass.

B. General Service Rules

    35. The Second NPRM turns from the service rules for the portion of 
the public safety spectrum designed to promote interoperability to 
similar issues related to service rules for the remainder of the public 
safety spectrum in the 746-806 MHz band. For these general service 
rules, the Commission's primary concerns are to alleviate the shortage 
of channels available to public safety agencies for their internal use 
and to provide spectrum for new types of communications, such as image 
and video.
1. Regional Planning Committees
    36. The Second NPRM proposed to use the regional planning approach 
taken an earlier allocation of spectrum, the allocation of the 821-824/
866-869 MHz bands for public safety use. In that instance, the 
Commission used a National Plan created by the National Public Safety 
Planning Advisory Committee (NPSPAC).<SUP>5</SUP> This plan comprised 
both national and regional elements, which allowed the Commission to 
establish nationwide rules where appropriate, but still provided 
sufficient flexibility for regional planners to tailor solutions to 
local public safety problems. The Commission tentatively concludes that 
this dichotomy between national and regional elements has been 
successful and thus proposes to use the regional planning approach 
again for that portion of the public safety spectrum that is not 
devoted to interoperability. The Second NPRM seeks comment regarding 
this proposal, as well as any other alternatives for the administration 
of the spectrum, and encourages suggestions regarding the organization 
and operation of the regions and the regional planning committees. 
Commenters should consider the Commission goals of equitable 
distribution of frequencies, efficient use of spectrum, and minimizing 
the burden on both public safety service providers and the regional 
planning committees.
---------------------------------------------------------------------------

    \5\ See NPSPAC Report and Order.
---------------------------------------------------------------------------

    37. The Second NPRM proposes to retain the boundaries of current 
regions. Minor modifications may be needed depending upon the comments 
received. The Commission asks whether the boundaries of the multi-state 
regions that serve metropolitan areas are drawn along optimal lines, 
and whether other multi-state metropolitan regions should be created. 
The Second NPRM proposes to retain the existing committees, with at 
most minor modifications to their boundaries, and to add the 746-806 
MHz band to the 821-824/866-869 MHz bands that the planning committees 
have been using to create regional plans. The Commission seeks comment 
regarding this proposal.
    38. The Second NPRM invites commenters to address the procedures 
for ensuring the equitable distribution of frequencies among eligible 
entities, and to evaluate any need for procedural guidelines for the 
committees. The Second NPRM also proposes that regional plans be 
required to include the same minimum elements as required by the NPSPAC 
Report and Order. These include:
    <bullet> A cover page that clearly identified the document as the 
regional plan for the defined region.
    <bullet> The name of the regional planning chairperson, including 
mailing address and telephone number.
    <bullet> The names of the members of the regional planning 
committee, including organizational affiliations, mailing addresses, 
and telephone numbers.
    <bullet> A summary of the major elements of the plan.
    <bullet> A general description of how the spectrum would be 
allotted among the various eligible users within the region.
    <bullet> An explanation of how the requirements of all eligible 
entities within the region were considered and, to the degree possible, 
met.
    <bullet> An explanation as to how needs were assigned priorities in 
areas where not all eligible entities could receive licenses.
    <bullet> An explanation of how the plan had been coordinated with 
adjacent regions.
    <bullet> A detailed description of how the plan put the spectrum to 
the best possible use by requiring system design with minimum coverage 
areas, by assigning frequencies so that maximum frequency reuse and 
offset channel use may be made, by using trunking, and by requiring 
small entities with minimal requirements to join together in using a 
single system where possible.
    <bullet> The signature of the regional planning chairperson.
    The Commission invites comment regarding whether these listed 
elements should be amended to include any additional provisions, or 
whether the current elements require clarification or reformulation.
    The Second NPRM proposes to utilize the same review and 
modification procedures as followed under the National Plan. These 
procedures include public notice and opportunity for comment. The 
Commission notes that this proceeding presents an

[[Page 60205]]

opportunity to revise the process, and invites comment regarding ways 
that the modification procedures could be improved. The Commission 
invites commenters to address the requirement that regions wishing to 
modify their plans must obtain the express concurrence of adjacent 
regional planning committees to the proposed modifications prior to 
submitting them for Commission approval.
2. Eligibility and Licensing of General Use Channels
    40. Regarding the channels in the 746-806 MHz band public safety 
spectrum that are not reserved for interoperability, the Second NPRM 
tentatively concludes that the Commission should limit eligibility to 
entities that provide public safety services, as defined for this 
spectrum in Sec. 337(f)(1) of the Communications Act. The Commission 
further tentatively concludes that the regional planning committees 
should, as an element of their regional plans, specify precisely which 
groups within the broad categories of the statutory definition they 
suggest should receive frequencies within their regions. The Second 
NPRM seeks comment on these tentative conclusions.
    41. The Second NPRM also asks whether the Commission should 
prescribe rules or guidelines for determining if a service meets the 
statutory definition of a public safety service, and whether the 
Commission should prescribe substantive or procedural rules for the 
authorization of non-governmental organizations by governmental public 
safety service providers, as provided in Sec. 337(f)(1)(B)(ii) of the 
Communications Act.
3. Provision and Use of Public Safety Channels
    42. The following is a discussion of various issues relating to the 
provision and use of the general public safety spectrum. The goal with 
respect to the assignment of the general use spectrum is to provide a 
regulatory framework that will enable a variety of types of 
communications, and to facilitate utilization of an array of innovative 
technologies for the public safety community. The Second NPRM seeks 
comment on various matters that will assist us in developing such a 
framework.

Types of Communication

    43. The Second NPRM seeks comment regarding what types of public 
safety communications should be reserved for the new band:
    <bullet> Voice channels only (with data capability on such 
channels).
    <bullet> Voice channels and data channels only.
    <bullet> Voice, data, image/HSD, slow motion video, and full motion 
video channels.
    <bullet> Channels that would accommodate some other combination of 
uses.

Channel Spacing

    44. The Second NPRM next considers the matter of channel spacing 
for the general use channels. In so doing, it considers whether the 
Commission should decide on appropriate spacings for the channels 
designated in the 746-806 MHz band, or whether to employ a different 
approach to channelizing the band. The Commission suggests three such 
methods, each of which would give the regions various degrees of 
latitude in deciding on the spacings for channels licensed in their 
region, and seeks comments on these approaches.
    45. If the Commission decides to play a role in determining the 
spacing of channels in the band, it seeks input from commenters 
regarding what those channel spacings should be for voice, data, image/
HSD, slow motion video, and full motion video channels.

Channel Requirements

    46. The Second NPRM next explores the issue of how many of each 
type of channel--e.g., voice, data, image/HSD, or video--should be 
designated for assignment. It again suggests various methods that would 
give the regions different degrees of flexibility to decide how many of 
each type of channel should be made available for assignment in the 
respective regions. The Second NPRM seeks comment on these different 
approaches to determining how many channels will be made available for 
assignment to public safety licensees.
    47. If it is decided that the Commission will devise the band plan 
to be used by all regions, comment is requested on the number of 
channels that should be designated for each of the following proposed 
uses:
    <bullet> Voice transmissions (mobile-only, or base and mobile 
channel pairs).
    <bullet> Data transmissions (base-only, or base and mobile channel 
pairs).
    <bullet> Image/HSD transmissions (base-only, or base and mobile 
channel pairs).
    <bullet> Slow motion video transmissions (mobile-only, or base and 
mobile channel pairs).
    <bullet> Full motion video transmissions (mobile-only, or base and 
mobile channel pairs).
    Finally, the Second NPRM invites comment as to whether voice, data, 
image/HSD, or video channels could or should be shared among public 
safety entities within a given area, or whether all assignments should 
be made on an exclusive basis.

Transmission Technology

    48. The Second NPRM examines the issue of whether there is a need 
to mandate a particular transmission technology on the regularly 
assigned public safety channels. The Commission believes it would be 
preferable to give public safety licensees the ability to choose among 
available analog or digital technologies on their own authorized 
channels, and it is therefore not inclined to require any particular 
transmission technology to be mandated for voice, data, image/HSD, or 
video transmissions in the portion of the public safety spectrum in the 
746-806 MHz band not used for interoperability. The Second NPRM seeks 
comment on this approach.

Equipment Standards

    49. The Second NPRM tentatively concludes that there is no need to 
mandate receiver standards on the non-interoperability public safety 
channels. It also seeks comment on the issue of whether, if technically 
feasible, the Commission should require all public safety mobile and 
portable radios operating in the 746-806 MHz band to be capable of 
operating on all public safety and commercial channels in the band. The 
Commission indicates that the use of equipment capable of operating on 
the entire 746-806 MHz band could enable public safety users to employ 
commercial spectrum when and where such spectrum is available from 
commercial providers.

C. Technical Parameters for all Public Safety Channels and Operations 
in 746-806 MHz Band

    50. In this section, the Second NPRM discusses various technical 
parameters that are associated with the operation and use of both the 
interoperable and general public safety channels. These parameters must 
be quantified in order to ensure the effective, efficient, and 
interference-free operation of these channels.
1. Bandwidth
    51. The Second NPRM seeks comment as to the maximum authorized 
bandwidths that should be specified for different types of general and 
interoperability communications--i.e., voice data, image/HSD and video. 
Also, if the Commission decides to permit regions to determine the 
spacings of their channels, it proposes to require the regions to 
identify the maximum authorized bandwidths that would be

[[Page 60206]]

associated with those channels. The Second NPRM seeks comment on these 
proposals.
2. Emission Mask; Frequency Stability; Power and Antenna Height
    52. Part 90 of the Commission's rules specifies the required 
frequency stability, emission mask, and authorized power and antenna 
height for channels used in the various private land mobile bands. As 
with the authorization of maximum bandwidth, the Commission seeks 
comment regarding these parameters for the channels used for the four 
types of general and interoperability public safety communications.
    53. Also, if the Commission permits regions to determine the 
spacings of their general use channels, it proposes to require the 
regions to identify the emission masks and frequency stabilities that 
would be associated with those channels. The Second NPRM seeks comment 
on these proposals.
3. Base Station Protection
    54. The Second NPRM solicits comment on whether the Commission 
should specify the protection criteria that would apply to all 
exclusively assigned base stations operating on the public safety 
channels in the 746-806 MHz band, or whether the Commission should 
allow base stations to be assigned in accordance with protection 
criteria established in the regional plans. The Commission asks 
commenters supporting the establishment of uniform protection criteria 
to indicate whether they believe that the existing protection criteria 
for the 800 MHz and 900 MHz bands are appropriate, or whether some 
other standards should be applied.

D. Construction Requirements

    55. The Second NPRM seeks comment on the appropriate construction 
deadline for licensees operating on the public safety spectrum in the 
746-806 MHz band, including comment on factors that the Commission 
should consider in establishing construction deadlines that will best 
promote the timely deployment of public safety facilities.

E. Use of Television Channels 63, 64, 68, and 69 for Public Safety

    56. In the Allocation NPRM, the Commission proposed the use of 
television Channels 63, 64, 68, and 69 for public safety. If the 
Commission decides in that proceeding to dedicate these particular 
television channels to public safety, then, to facilitate two-way, 
base/mobile communications, the Second NPRM proposes that: (1) the 
frequencies in Channels 63 and 64 (764-776 MHz) be used for all base-
to-mobile transmissions; (2) the frequencies in Channels 68 and 69 
(794-806 MHz) be used for all mobile-to-base transmissions; and (3) 
when providing for paired base-to-mobile and mobile-to-base 
communications, any base frequencies in Channel 63 should be paired 
with mobile frequencies in Channel 68 and any base frequencies in 
Channel 64 should be paired with mobile frequencies in Channel 69. The 
Second NPRM seeks comment on these proposals and, in particular, asks 
commenters who may utilize signals from the glonass satellites to 
discuss any concerns they may have about the possible use of Channels 
68 and 69 for mobile-to-base public safety communications.

II. Priority Access Service

A. Background

    57. The Department of Defense, as executive agent of the National 
Communications System (NCS), filed on October 19, 1995, a Petition for 
Rulemaking (Petition) on behalf of NCS, requesting the Commission to 
initiate a rulemaking proceeding to implement Cellular Priority Access 
Service (CPAS). According to NCS, the term ``priority access'' means 
that in emergencies, when cellular spectrum is congested, authorized 
priority users would gain access to the next available cellular channel 
before subscribers not engaged in national security and emergency 
preparedness (NSEP) functions.
    58. Following the Commission's issuance of the Public Safety NPRM, 
the Wireless Telecommunications Bureau (Wireless Bureau) released a 
Public Notice seeking comment on the NCS Petition and asking interested 
parties to address the extent to which the issues raised in the NCS 
Petition are related to the public safety rulemaking 
proceeding.<SUP>6</SUP> The Commission received 20 comments and five 
reply comments in response to the CPAS Public Notice. Subsequent to the 
receipt of those comments, the Defense Information Systems Agency 
(DISA) filed a letter on behalf of NCS, submitting additional 
information concerning the CPAS proposal.
---------------------------------------------------------------------------

    \6\ Public Notice, Petition for Rulemaking Filed, Commission 
Seeks Comment on Petition for Rulemaking filed by National 
Communications System, WT Docket No. 96-86, 61 FR 18538 (April 18, 
1996) (CPAS Public Notice).
---------------------------------------------------------------------------

1. NCS Petition for Rulemaking
    59. NCS asserts that priority access to cellular spectrum is 
essential in conducting response and recovery efforts of NSEP personnel 
at Federal, State, and local levels. The NCS Petition proposes that 
CPAS would be a voluntary offering of cellular carriers who would then 
be subject to mandatory CPAS rules should they elect to provide the 
service. Under the NCS proposal, cellular carriers would be permitted 
to charge for the service, determine the amount of spectrum available 
to CPAS, and discontinue the CPAS service offering at any time.
    60. NCS also submits that the proposed CPAS rules would be 
consistent with the priority access rules that the Executive Office of 
the President will adopt concurrently for situations in which the 
President invokes war emergency powers pursuant to Sec. 706 of the 
Communications Act. For implementation of CPAS, NCS submits that 
Priority Access Channel Assignment (PACA) technology, a cellular 
features description, should be used. The PACA feature permits the 
subscriber to obtain priority access to voice or traffic channels by 
queuing the originating calls of subscribers when channels are not 
available. Under the PACA queuing scheme, as proposed by NCS, there 
would be five levels of priority.
    61. NCS proposes that State and local emergency providers would 
have the same priority level as Federal defense and law enforcement 
agencies and urges a uniform, nationwide cellular priority access 
scheme for effective implementation of CPAS. The rules advocated by NCS 
would (1) authorize cellular service providers to provide priority 
access; (2) ensure that such providers, when doing so, are not in 
violation of Communications Act provisions barring unreasonable 
discrimination or undue preference; and (3) override any existing 
contractual provisions inconsistent with the rules adopted.
2. PSWAC Final Report
    62. The PSWAC Final Report also addresses the role of commercial 
services in supporting public safety communications. Among its 
recommendations, PSWAC states that ``[t]he use of commercial services 
and private contracts should be facilitated, provided the essential 
requirements for coverage, priority access and system restoration, 
security, and reliability are met.'' <SUP>7</SUP> Further, the PSWAC 
Interoperability Subcommittee (PSWAC ISC) finds that, although 
commercial systems could be used to achieve

[[Page 60207]]

interoperability, they currently do not meet the requirements addressed 
in the PSWAC Final Report. Although the PSWAC ISC recommends that the 
Commission adopt rules to make commercial systems more responsive to 
public safety needs, including a requirement to offer a priority access 
option, it contends that there are many shortcomings to the NCS CPAS 
proposal. The PSWAC ISC concludes that those shortcomings flow from 
market forces and are not readily susceptible to regulatory cures.
---------------------------------------------------------------------------

    \7\ PSWAC Final Report at 4.
---------------------------------------------------------------------------

B. Discussion of NCS Proposed Rules and Related Issues

1. Priority Access and Public Safety Communications Generally
    63. The Second NPRM concludes that it is advisable to consider the 
issues raised by the NCS Petition in the context of this proceeding and 
therefore seeks comment on those issues. In the view of the Commission, 
based in part on the conclusions of the PSWAC Final Report, there is a 
substantial nexus between considerations of priority access and the 
needs of the public safety community. The Second NPRM maintains that 
the need for expedition regarding disposition of the wide range of 
public safety issues mitigates any concern that linking Commission 
consideration of these issues with Commission consideration of the NCS 
priority access proposal will delay resolution of the issues raised by 
the NCS Petition.
    64. The Second NPRM specifically asks commenters to address the NCS 
contention that, although the public safety rulemaking might ultimately 
mitigate the need for priority access, there could be no harm in having 
rules to address the current situation.
    65. The Commission believes that the record developed thus far 
regarding the NCS Petition does not furnish an adequate basis at this 
time for making more comprehensive proposals on issues relating to 
priority access. Based on the comments the Commission receives with 
respect to various priority access issues discussed in the Second NPRM 
and other related issues, it will determine how to proceed further in 
establishing priority access rules.
2. Priority Levels
    66. The Second NPRM finds that it is premature to propose specific 
levels for priority based on the NCS proposal, and seeks more comment 
on the issue of priority levels that should be included in priority 
access.
    67. The Commission believes that in the context of issues and 
problems raised in this Second NPRM, there are significant questions 
regarding how a priority access structure can best be formulated and 
applied. In this respect, the Second NPRM seeks comment on how the 
Commission should examine and resolve this issue. Interested parties 
may comment, for example, on whether it is better to require a formal 
prioritization structure or whether a less formal, more flexible 
approach should evolve. In terms of what is the most effective means to 
allow and encourage the marketplace to respond to the kinds of demand 
for this service offering, the Second NPRM seeks comment regarding 
whether the Commission should prescribe rules for priority levels, rely 
on industry and governmental agency groups to establish uniformly 
applied priority levels, or leave to carriers the decision to offer 
individual or customized priority levels, consistent with a single set 
of principles and criteria, to the subscribers who demand priority 
access.
    68. The Second NPRM also seeks further comment on what priority 
access structure or structures would be most suitable to the commercial 
wireless environment as it continues to develop. Commenters should 
address what scheme of priority levels would provide the optimal 
service to meet the needs of NSEP users and associated public safety 
personnel while not interfering with the needs of citizens in 
emergencies. The Commission also seeks comment on what role should be 
played by commercial wireless providers, manufacturers of the equipment 
required, regional planning committees, Public Safety Answering Point 
(PSAP) personnel, trade associations, standard setting bodies such as 
the Telecommunications Industry Association (TIA), and other potential 
participants in going forward in the development of priority access.
3. Spectrum Capacity of Commercial Carrier Networks
    69. The Second NPRM addresses contentions that a key consideration 
supporting the need for priority access is the current lack of 
sufficient capacity in the commercial wireless network. With a shortage 
of capacity, the flooding of the network by a high incidence of 
attempted calls in emergency situations could lead to increased 
blocking of a portion of those calls. Consequently, factors that affect 
capacity are also likely to affect the ability and incentive of 
commercial wireless service providers to furnish priority access 
services, as well as the need of the public safety community to obtain 
and utilize such services.
    70. The amount of spectrum available for dedicated public safety 
communications uses is being substantially increased by the 
availability of 24 megahertz of spectrum in the 746-806 MHz band. One 
question in examining the NCS proposal is whether this increased 
spectrum for public safety communications lessens the need for priority 
access arrangements regardless of the status of capacity on commercial 
wireless networks. Thus, the Commission seeks comment regarding the 
relationship between the availability of this new public safety 
spectrum and the need for priority access arrangements.
    71. Finally, the Second NPRM seeks comment regarding whether other 
recent developments in the utilization of spectrum for public safety 
communications may diminish the need for priority access services.
4. Liability Under Sec. 202 of Communications Act

Adequacy of Current Provisions

    72. The Second NPRM tentatively finds that, to the extent the 
provision of priority access service is a voluntary offering made by a 
carrier and to the extent the Commission refrains from establishing 
detailed rules regarding various levels of priority access, it would be 
prudent for the Commission to provide specifically for limitations on 
liability under Sec. 202. Thus, the Second NPRM proposes that it will 
be sufficient for a Commercial Mobile Radio Service (CMRS) provider, in 
responding to any complaint alleging an unreasonable discrimination or 
undue preference under Sec. 202 of the Communications Act, to 
demonstrate that the service provided by the carrier is exclusively 
designed to enable authorized priority users, in emergency situations 
when spectrum used by the carrier is congested, to gain access to the 
next available channel on the service network of the carrier, before 
subscribers not engaged in public safety or NSEP functions. The 
Commission seeks comment on this proposal.
    73. Further, the Commission tentatively concludes that the types of 
priority access services that will qualify for limitation of liability 
under Sec. 202 should be limited to CMRS services providing priority 
access to NSEP personnel, including Federal Government entities, in 
addition to State and local governmental entities performing public 
safety functions. Thus, the Commission also tentatively concludes that 
priority access services provided by commercial carriers to corporate 
or other business or private subscribers on a private contractual

[[Page 60208]]

basis would not constitute the type of priority access service that 
would qualify for any limitation of liability under Sec. 202. The 
Commission tentatively concludes that this approach is consistent with 
the objective to serve the national defense and to meet the needs of 
public safety entities to improve their ability to respond to 
emergencies and disasters, and seeks comment on these tentative 
conclusions.
    74. The Second NPRM also seeks comment regarding types of actions 
and conduct by carriers, in providing priority access service to 
authorized priority users, that would qualify for limitation of 
liability under Sec. 202 of the Communications Act, as proposed in the 
Second NPRM.

Exercise of Forbearance Authority

    75. The Second NPRM, in addition to the liability proposals 
discussed above, additionally seeks comment on alternative measures 
that the Commission could employ to ensure providers of priority access 
that they are excluded from potential liability under Sec. 202. Such 
measures might include, for example, the exercise of the Commission's 
forbearance authority under Sec. 10 of the Communications Act.
    76. Sec. 10 gives the Commission authority to forbear from applying 
any provision of the Communications Act, including Sec. 202 and 
notwithstanding Sec. 332(c)(1)(A), to a telecommunications service or 
class of telecommunications services, provided that the Commission 
makes certain determinations established in the statute.
    77. Sec. 10(a) of the Communications Act sets forth three 
prerequisite determinations for the Commission to make. The statute 
requires that, before forbearing from applying any section of Title II, 
the Commission must find that each of the following conditions applies:
    (1) Enforcement of such regulation or provision is not necessary in 
order to ensure that the charges, practices, classifications, or 
regulations by, for, or in connection with that telecommunications 
carrier or telecommunications service are just and reasonable and are 
not unjustly or unreasonably discriminatory;
    (2) Enforcement of such regulation or provision is not necessary 
for the protection of consumers; and
    (3) Forbearance from applying such provision or regulation is 
consistent with the public interest.
    78. The Commission seeks comment regarding whether it would be 
appropriate to forbear from applying Sec. 202(a) of the Communications 
Act to the extent a carrier offers priority access service to NSEP 
personnel or to State or local governmental entities performing public 
safety functions. The Commission also asks for comment on the 
definition of consumers, what factors should be considered, what 
problems may arise in making those determinations, and examples of 
applying these tests in evaluating whether forbearance is appropriate.
    79. Moreover, Sec. 10(b) of the Communications Act requires 
weighing competitive effects in determining whether forbearance is 
consistent with the public interest under Sec. 10(a)(3). With regard to 
this requirement of Sec. 10(b), the Second NPRM asks what the potential 
competitive effects of commercially provided priority access service 
would be among CMRS providers, what the relevance of those competitive 
effects is regarding forbearance, and what the impact of those 
competitive effects would be on whether priority access is voluntary or 
mandatory.
5. Voluntary or Mandatory Provision of Priority Access
    80. The Second NPRM seeks comment regarding whether CMRS providers 
should be permitted to provide priority access services on a voluntary 
basis. As a general matter, the Commission believes it is sound public 
policy to pursue market solutions to communications needs. The Second 
NPRM asks commenters to address whether, in this case, it is reasonable 
to expect that competitive forces will prompt CMRS providers to respond 
to market demand by developing and offering priority access services 
that meet the needs of Federal, State, and local government agencies.
    81. In addition, whether CPAS is voluntary or mandatory may dictate 
the necessity for cost recovery or funding mechanisms. The Second NPRM 
seeks further comment concerning the means of funding that would result 
in the most effective implementation of priority access. The Second 
NPRM also invites comment on whether a flexible, non-prescriptive 
approach to funding would be advisable in order to allow carriers and 
government officials the latitude to develop cost recovery solutions 
that address particular needs for priority access.
6. Potential Limitations of Priority Access Service
    82. NCS recognizes current technical constraints in the 
implementation of CPAS, because the standards for CPAS are still in the 
developmental stage. The Second NPRM seeks comment regarding the 
potential technical limitations summarized in this section. In 
particular, the Second NPRM asks commenters to address the extent of 
these potential limitations, efforts underway to reduce or overcome the 
limitations, and the implications of these potential problems for the 
viability and effectiveness of priority access systems.

Technical Standards; Operational Limitations

    83. The NCS Petition suggests that priority access should be 
implemented using a PACA queuing scheme. The record indicates that the 
standard for the PACA feature, IS-53 A, is applicable only to cellular 
systems that use a Time Division Multiple Access (TDMA) air interface. 
Despite ongoing improvements, current analog phones still will not work 
with the CPAS scheme, because they have a five-second ``timeout'' 
feature.
    84. In addition, implementation of the PACA standard requires the 
use of a switch-to-switch protocol, for intersystem interoperability 
(roaming). The Commission's understanding is that this protocol, IS-41 
Rev. C, is final for cellular service and available for broadband PCS, 
and is currently implemented throughout a substantial part of the 
wireless industry. The IS-41 Rev. C protocol, however, is not 
compatible with all digital systems. Thus, the Second NPRM seeks 
comment regarding the progress of the development of priority access 
standards for digital cellular systems, and for wireless systems in 
general.
    85. A further potential problem is that, although current protocols 
may provide intersystem capability for newly initiated calls, there 
appears to be no capability to provide for roaming between different 
systems while there is a pending request in the queue. The Second NPRM 
seeks comment regarding the significance of this technical issue. In 
particular, the Commission seeks comment regarding whether public 
safety users intend to use priority access while moving from place to 
place, or whether they contemplate that priority access will more 
likely be used at relatively confined emergency scenes.
    86. Finally, the Second NPRM notes that CPAS, as proposed in the 
NCS Petition, does not have dispatch capability with immediate 
communications access. The Commission seeks comment regarding this 
issue, and regarding whether priority access will meet the needs of 
public safety personnel.

[[Page 60209]]

Equipment and Hardware Limitations

    87. The record indicates that the PACA feature can be installed 
only in new phones, and thus is not ``backward compatible.'' Therefore, 
existing CMRS phones would not allow deployment of a priority access 
service.
    88. Moreover, the CPAS feature is designed for implementation only 
by NSEP users who will have to acquire a commercial off-the-shelf or 
dual-mode handset built in accordance with the digital interface 
standards necessary to allow ``queuing'' operation. The record also 
indicates that for the CPAS proposal to work with analog handsets, 
cellular providers would have to implement the CPAS scheme differently 
than proposed, or implement two different CPAS schemes. The Second NPRM 
seeks comment regarding these priority access implementation issues.

Security Limitations

    89. Consideration of the NCS CPAS proposal for NSEP users also 
entails recognition of the need for secure communications. Lack of 
security regarding analog-based cellular systems has been considered to 
be a problem, and digital communications may not be as secure as once 
thought, even with encryption codes. Additionally, there is comment 
that the proposed 3-digit code, ``*xx,'' to acquire access into the 
queue could be easily tampered with by computer ``hackers.'' The Second 
NPRM seeks comment regarding these security issues.
7. Other Issues

Types of Commercial Wireless Carriers Offering Priority Access

    90. In view of the proposal for additional dedicated spectrum for 
public safety and increased capacity of existing and new CMRS 
providers, the Second NPRM tentatively concludes that all CMRS 
carriers, including cellular carriers, should be considered as 
potential providers of priority access service. The Second NPRM seeks 
comment on this tentative conclusion. The Second NPRM also seeks 
comment on whether priority access should be applicable to Mobile 
Satellite Systems (MSS) that are treated as CMRS under part 20 of the 
Commission's rules. Generally in this regard, the Commission also seeks 
comment on whether the applicability of priority access rules to CMRS 
carriers should parallel the same CMRS services as are subject to E911 
requirements.
    91. The Second NPRM further requests that commenters address the 
role of resellers of CMRS in offering priority access, particularly 
focussing on the issue of non-discrimination in resale. Finally, the 
Second NPRM seeks comment on whether priority access should be applied 
in the case of any newly reallocated spectrum that is made available to 
CMRS providers who may desire to provide priority access as part of 
their new service offerings.

Administration of Priority Access

    92. In view of the scope of the Commission's proposal concerning 
priority access, the Commission finds it unnecessary at this time to 
address issues concerning aspects of administering priority access that 
were raised by the commenters. Those issues include the assignment of 
priority levels and safeguarding against potential abuses of priority 
access systems. Another issue the Commission is deferring is who should 
have or share responsibility in the administration of priority access, 
whether administrators of the regional planning committees and Public 
Safety Answering Points should have a role. While the Commission has 
decided to defer consideration of these issues, government entities, 
public safety agencies, and commercial providers of wireless service 
are encouraged to continue to work together to resolve them.

III. Protection of Television Services

    93. In this section of the Second NPRM, the Commission discusses 
technical requirements for protecting incumbent channel 60-69 broadcast 
licensees and planned channel 60-69 digital television (DTV) allotments 
against interference. The Commission notes that its previous sharing 
criteria and analyses, which provided for the land mobile and 
television sharing of the 470-512 MHz band (TV channels 14-20), were 
based upon use of ``traditional'' private land mobile technology that 
typically employed a high powered base station to provide wide area 
coverage. The Commission anticipates that public safety users will 
employ such systems to a significant degree. At this juncture, however, 
it is not clear what types of services, technologies, or system 
architectures may be used for new types of public safety services. 
Accordingly, the Commission believes it is appropriate to consider in 
this proceeding a variety of approaches and criteria for protecting TV 
broadcasting from the services that will occupy channels 60-69.

Geographic Spacing Requirements Based on 55-Mile Reference Grade B 
Contour

    94. The Commission indicates that it could protect co-channel 
analog TV stations on channels 60-69 during the DTV transition period 
by adopting geographical spacing requirements based on a 40 dB D/U 
signal ratio at the 55-mile Grade B contour of the protected TV 
station,<SUP>8</SUP> and could protect adjacent channel TV operations 
by adopting geographical spacing requirements based on a 0 dB D/U 
signal ratio.<SUP>9</SUP> The Commission states that if it were to 
adopt this approach, it would favor development of a table permitting 
operation at distances based on particular powers and antenna heights, 
similar to that in the current geographic separation standards in 
subpart L of part 90 of the Commission's rules. The Commission 
recognizes, however, that a table that permits operation at closer 
distances based on reduced power and antenna height may still be 
unnecessarily restrictive. The Commission therefore requests comment on 
whether adopting uniform geographic spacings based on the use of 
separation tables would be appropriate, and if so, what separation 
distances should be used in such tables.
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    \8\ See Sec. 90.309 of the Commission's rules, 47 CFR 90.309.
    \9\ The adjacent channel separation requirement would also apply 
to protection of analog television operations on Channel 59.
---------------------------------------------------------------------------

    95. The Commission also invites comment as to whether it should 
establish different separation distances to protect TV operations from 
interference from fixed and mobile operations in the 746-806 MHz band, 
and whether it should use different spacing requirements depending on 
the technology employed, location in the TV channel, or any other 
factor. Also, the Commission tentatively concludes that it would be 
appropriate to allow new licensees and TV licensees privately to 
negotiate shorter geographic separations than those the Commission has 
proposed.
    96. Finally, the Commission recognizes that, in addition to 
addressing protection of analog TV stations, it must also address 
protection criteria for DTV stations operating on channels 60-69 during 
the transition period. It therefore seeks comment on the appropriate D/
U ratios that should be applied for the protection of DTV stations.

Other Approaches

    97. The Commission also requests comment on whether approaches 
other than the use of geographic separation tables based on the 
assumption of a 55-mile reference Grade B contour should be employed 
for the protection of TV operations. For example, since TV broadcast 
stations are authorized with

[[Page 60210]]

effective radiated power (ERP) levels up to 5 megawatts, at an antenna 
HAAT of 610 meters (2,000 feet), it requests comment on whether the 
size of the reference contour should be increased accordingly. The 
Commission also seeks comment on whether the use of tables based on a 
particular reference Grade B contour could unnecessarily inhibit 
innovative or case-specific solutions to potential interference 
problems, and it therefore seeks comment on whether protection criteria 
should instead be based on requiring that a predicted D/U signal ratio 
be met based on a TV licensee's authorized facilities.

Other Issues

    98. In the DTV Proceeding,<SUP>10</SUP> the Commission raised the 
possibility that, in negotiating among themselves for changes in 
allotments and assignments, TV licensees could include agreements for 
compensation. The Commission proposes to permit new licensees in this 
spectrum similarly to reach agreements with licensees of protected TV 
stations, including holders of construction permits, compensating them 
for converting to DTV transmission only before the end of the DTV 
transition period, accepting higher levels of interference than those 
allowed by the protection standards, or otherwise accommodating new 
licensees in these bands. The Commission believes that these measures 
would benefit the public by accelerating the transition to DTV and 
clearing the 746-806 MHz band for public safety services.
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    \10\ Advanced Television Systems and their Impact upon the 
Existing Television Broadcast Service, MM Docket No. 87-268 (DTV 
Proceeding), Sixth Report and Order, 62 FR 26684 (May 14, 1997) (DTV 
Sixth Report and Order), recon. pending.
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Administrative Matters

    99. Pursuant to applicable procedures set forth in Secs. 1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested 
parties may file comments on or before December 22, 1997, and reply 
comments on or before January 12, 1998. All relevant and timely 
comments will be considered by the Commission before final action is 
taken in this proceeding. To file formally in this proceeding, you must 
file an original plus five copies of all comments, reply comments, and 
supporting comments. If participants want each Commissioner to receive 
a personal copy of their comments, an original plus nine copies must be 
filed. Comments and reply comments should be sent to the Office of the 
Secretary, Federal Communications Commission, Washington, D.C. 20554. 
Comments and reply comments will be available for public inspection 
during regular business hours in the FCC Reference Center (Room 239), 
1919 M Street, N.W., Washington, D.C. 20554. Copies of comments and 
reply comments are available through the Commission's duplicating 
contractor: International Transcription Services, Inc. (ITS, Inc.), 
1231 20th Street, N.W., Washington, D.C. 20036 (202) 857-3800.
    100. This Second NPRM is a permit-but-disclose notice and comment 
rulemaking proceeding. Ex parte presentations are permitted, provided 
they are disclosed as provided in the Commission rules. See generally 
47 CFR 1.1202, 1.1203, and 1.1206(a). Initial Regulatory Flexibility 
Analysis 
    101. As required by Sec. 603 of the Regulatory Flexibility Act, the 
Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the expected impact on small entities of the proposals 
suggested in this document. Written public comments are requested on 
the IRFA. These comments must be filed in accordance with the same 
filing deadlines as comments on the rest of this Second NPRM, but they 
must have a separate and distinct heading designating them as responses 
to the IRFA.

Initial Regulatory Flexibility Act Statement

Initial Regulatory Flexibility Analysis

    102. As required by the Regulatory Flexibility Act 
(RFA),<SUP>11</SUP> the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (IRFA) of the expected significant 
economic impact on small entities by the policies and rules proposed in 
this Second Notice of Proposed Rulemaking (Second NPRM). 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 Second NPRM provided above in paragraph 248 of the Second NPRM. 
The Commission will send a copy of the Second NPRM, including this 
IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA).<SUP>12</SUP> In addition, the Second NPRM and 
IRFA (or summaries thereof) will be published in the Federal 
Register.<SUP>13</SUP>
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    \11\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Contract with America Advancement Act of 1996, Pub. 
L. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA).
    \12\ See 5 U.S.C. 603(a).
    \13\ See id. 
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A. Need for, and Objectives of, the Proposed Action

    103. This rulemaking proceeding was initiated to propose service 
rules for 24 megahertz of spectrum in the 746-806 MHz band. The 
spectrum, which is currently used by television (TV) Channels 60-69, is 
being made available to meet various public safety communications 
needs.
    104. This rulemaking proceeding was also initiated to seek comment 
regarding whether certain commercial mobile radio service (CMRS) 
providers should be authorized to offer priority access service on a 
voluntary basis for purposes of enhancing national security and 
emergency preparedness (NSEP) functions. Priority access service will 
enable NSEP personnel and other public safety users to receive priority 
to available channels during emergencies. The rulemaking proceeding is 
also initiated to secure comment on other issues concerning such 
priority access.
    105. The Commission endeavors to (1) provide for modern and 
innovative communications at high levels of efficiency and 
effectiveness required by the Nation's public safety entities; (2) 
explore the possibility of certain commercial services being used for 
public safety applications; and (3) protect TV stations on Channels 60-
69 during the transition to digital television (DTV).

B. Legal Basis

    106. The proposed action is authorized under Secs. 1, 4(i), 10, 
201, 202, 303(b), 303(g), 303(j), 303(r), and 403 of the Communications 
Act, 47 U.S.C. 151, 154(i), 160, 201, 202, 303(b), 303(g), 303(j), 
303(r), 403.

C. Reporting, Recordkeeping, and Other Compliance Requirements

    107. The Commission proposes the filing of regional plans drafted 
by planning committees made up of representatives of the public safety 
community. Applicants for public safety licenses may be required to 
make submissions to the planning committees justifying their requests 
for spectrum, and will be required to submit applications for spectrum 
licenses on Form 601. The proposals under consideration in the Second 
NPRM include the possibility of imposing recordkeeping and reporting 
requirements on individuals or organizations involved in establishing a 
national planning process to develop a nationwide interoperability 
plan, on individuals or organizations that may assist us in developing 
technical standards, and on small government

[[Page 60211]]

agencies who may request extended implementation. The Commission 
requests comment on how these requirements can be modified to reduce 
the burden on small entities and still meet the objectives of this 
proceeding.
    108. With respect to priority access service, the proposals of the 
Commission in this Second NPRM do not entail reporting, recordkeeping, 
or other compliance requirements. If, however, there are matters 
pertaining to such requirements that relate to those issues on which 
the Commission also seeks comment in this Second NPRM, the Commission 
invites commenters to address how those matters may affect small 
entities who may be potential providers of priority access service.

D. Description and Number of Small Entities Involved

    109. This Second NPRM will affect TV station licenses on Channels 
60-69, public safety entities, and commercial mobile radio service 
(CMRS) providers. Commenters are requested to provide information 
regarding how many entities (overall) and how many small entities would 
be affected by the proposed rules in the Second NPRM.
(a) Television Stations
(1) Television Station Estimates Based on Census Data
    110. The Second NPRM will affect full service TV stations, TV 
translator facilities, and low power TV (LPTV) stations. The Small 
Business Administration defines a TV broadcasting station that has no 
more than $10.5 million in annual receipts as a small 
business.<SUP>14</SUP> TV broadcasting stations consist of 
establishments primarily engaged in broadcasting visual programs by TV 
to the public, except cable and other pay TV services.<SUP>15</SUP> 
Included in this industry are commercial, religious, educational, and 
other TV stations.<SUP>16</SUP> Also included are establishments 
primarily engaged in TV broadcasting and which produce taped TV program 
materials.<SUP>17</SUP> Separate establishments primarily engaged in 
producing taped TV program materials are classified under another SIC 
number.<SUP>18</SUP>
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    \14\ 13 CFR 121.201, Standard Industrial Code (SIC) 4833 (1996).
    \15\ Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, 1992 Census of Transportation, 
Communications and Utilities, Establishment and Firm Size, Series 
UC92-S-1, App. A-9 (1995) (ESA 1992 Census).
    \16\ Id. See Executive Office of the President, Office of 
Management and Budget, Standard Industrial Classification Manual 
(1987), at 283, which describes TV Broadcasting Station (SIC Code 
4833) as:
    Establishments primarily engaged in broadcasting visual programs 
by television to the public, except cable and other pay television 
services. Included in this industry are commercial, religious, 
educational and other television stations. Also included here are 
establishments primarily engaged in television broadcasting and 
which produce taped television program materials.
    \17\ ESA 1992 Census at App. A-9.
    \18\ Id.; SIC 7812 (Motion Picture and Video Tape Production); 
SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services 
(producers of live radio and TV programs).
---------------------------------------------------------------------------

    111. There were 1,509 TV stations operating in the Nation in 1992 
<SUP>19</SUP> That number has remained fairly constant as indicated by 
the approximately 1,551 operating TV broadcasting stations in the 
Nation as of February 28, 1997.<SUP>20</SUP> For 1992<SUP>21</SUP> the 
number of TV stations that produced less than $10.0 million in revenue 
was 1,155 establishments, or approximately 77 percent of the 1,509 
establishments.<SUP>22</SUP> There are currently 95 full service analog 
TV stations, either operating or with approved construction permits on 
channels 60-69.<SUP>23</SUP> In the DTV Proceeding, the Commission 
adopted a DTV Table which provides only 15 allotments for DTV stations 
on channels 60-69 in the continental United States.<SUP>24</SUP> There 
are seven DTV allotments in channels 60-69 outside the continental 
United States.<SUP>25</SUP> Thus, the rules will affect approximately 
117 TV stations; approximately 90 of those stations may be considered 
small businesses.<SUP>26</SUP> These estimates may overstate the number 
of small entities since the revenue figures on which they are based do 
not include or aggregate revenues from non-TV affiliated companies. The 
Commission recognizes that the rules may also impact minority-owned and 
women-owned stations, some of which may be small entities. In 1995, 
minorities owned and controlled 37 (3.0 percent) of 1,221 commercial TV 
stations in the United States.<SUP>27</SUP> According to the U.S. 
Bureau of the Census, in 1987 women owned and controlled 27 (1.9 
percent) of 1,342 commercial and non-commercial TV stations in the 
United States.<SUP>28</SUP>
---------------------------------------------------------------------------

    \19\ Allocation NPRM, at App. C; ESA 1992 Census at App. A-9.
    \20\ Allocation NPRM, at App. C.
    \21\ A census for communications establishments is performed 
every five years ending with a ``2'' or ``7.'' See ESA 1992 Census 
at III.
    \22\ The amount of $10 million was used to estimate the number 
of small business establishments because the relevant Census 
categories stopped at $9,999,999 and began at $10,000,000. No 
category for $10.5 million existed. Thus, the number is as accurate 
as it is possible to calculate with the available information.
    \23\ See Allocation NPRM at para. 2.
    \24\ See DTV Proceeding, Sixth Report and Order, App.B.
    \25\ Allocation NPRM at para. 2 n.5.
    \26\ The Commission uses the 77 percent figure of TV stations 
operating at less than $10 million for 1992 and apply it to the 117 
TV stations to arrive at 90 stations categorized as small 
businesses.
    \27\ Minority Commercial Broadcast Ownership in the United 
States, U.S. Dep't of Commerce, National Telecommunications and 
Information Administration, The Minority Telecommunications 
Development Program (``MTDP'') (April 1996). MTDP considers minority 
ownership as ownership of more than 50 percent of a broadcast 
corporation's stock, voting control in a broadcast partnership, or 
ownership of a broadcasting property as an individual proprietor. 
Id. The minority groups included in this report are Black, Hispanic, 
Asian, and Native American.
    \28\ See Comments of American Women in Radio and TV, Inc. in MM 
Docket No. 94-149 and MM Docket No. 91-140, at 4 n.4 (filed May 17, 
1995), citing 1987 Economic Censuses, Women-Owned Business, WB87-1, 
U.S. Dep't of Commerce, Bureau of the Census, August 1990 (based on 
1987 Census). After the 1987 Census report, the Census Bureau did 
not provide data by particular communications services (four-digit 
SIC Code), but rather by the general two-digit SIC Code for 
communications (#48). Consequently, since 1987, the Census Bureau 
has not updated data on ownership of broadcast facilities by women, 
nor does the Commission collect such data. However, the Commission 
sought comment on whether the Annual Ownership Report Form 323 
should be amended to include information on the gender and race of 
broadcast license owners. Policies and Rules Regarding Minority and 
Female Ownership of Mass Media Facilities, Notice of Proposed 
Rulemaking, 60 FR 06068 (February 1, 1995).
---------------------------------------------------------------------------

    112. There are currently 4,977 TV translator stations and 1,952 
LPTV stations.<SUP>29</SUP> Approximately 1,309 low power TV and TV 
translator stations are on channels 60-69 <SUP>30</SUP> which could be 
affected by policies in this proceeding. The Commission does not 
collect financial information of any broadcast facility and the 
Department of Commerce does not collect financial information on these 
broadcast facilities. The Commission will assume for present purposes, 
however, that most of these broadcast facilities, including LPTV 
stations, could be classified as small businesses. As indicated 
earlier, approximately 77 percent of TV stations are designated under 
this analysis as potentially small businesses. Given this, LPTV and TV 
translator stations would not likely have revenues that exceed the SBA 
maximum to be designated as small businesses.
---------------------------------------------------------------------------

    \29\ Allocation NPRM, at App. C.
    \30\ Allocation NPRM at para. 2 n.3.
---------------------------------------------------------------------------

(2) Alternative Classification of Small TV Stations
    113. An alternative way to classify small TV stations is by the 
number of employees. The Commission currently applies a standard based 
on the number of employees in administering its Equal Employment 
Opportunity (EEO) rule for broadcasting.<SUP>31</SUP> Thus, radio or TV

[[Page 60212]]

stations with fewer than five full-time employees are exempted from 
certain EEO reporting and recordkeeping requirements.<SUP>32</SUP> The 
Commission estimates that the total number of commercial TV stations 
with four or fewer employees is 132 and that the total number of non-
commercial educational TV stations with four or fewer employees is 
136.<SUP>33</SUP> The Commission does not know how many of these 
stations operate on Channels 60-69.
---------------------------------------------------------------------------

    \31\ The Commission's definition of a small broadcast station 
for purposes of applying its EEO rule was adopted prior to the 
requirement of approval by the Small Business Administration 
pursuant to section 3(a) of the Small Business Act, 15 U.S.C. 
632(a). However, this definition was adopted after public notice and 
an opportunity for comment. See Petition for Rulemaking To Require 
Broadcast Licensees To Show Non-Discrimination in Their Employment 
Practices, Docket No. 18244, RM-1144, Report and Order, 35 FR 8925 
(June 6, 1970).
    \32\ See, e.g., 47 CFR 73.3612 (requirement to file annual 
employment reports on Form 395 applies to licensees with five or 
more full-time employees); Amendment of Broadcast Equal Employment 
Opportunity Rules and FCC Form 395, Docket No. 21474, First Report 
and Order, 44 FR 6722 (February 2, 1979). The Commission is 
currently considering how to decrease the administrative burdens 
imposed by the EEO rule on small stations while maintaining the 
effectiveness of our broadcast EEO enforcement. See Streamlining 
Broadcast EEO Rule and Policies, Vacating the EEO Forfeiture Policy 
Statement and Amending Section 1.80 of the Commission's Rules to 
Include EEO Forfeiture Guidelines, MM Docket No. 96-16, Order and 
Notice of Proposed Rulemaking, 61 FR 9964 (March 12, 1996). One 
option under consideration is whether to define a small station for 
purposes of affording such relief as one with ten or fewer full-time 
employees.
    \33\ The Commission bases this estimate on a compilation of 1995 
Broadcast Station Annual Employment Reports (FCC Form 395-B), 
performed by staff of the Equal Opportunity Employment Branch, Mass 
Media Bureau, FCC.
---------------------------------------------------------------------------

(b) Public Safety Entities
    114. The public safety entities that will be affected by this 
Second NPRM are governmental entities. The definition of a small 
governmental entity is one with a population of fewer than 
50,000.<SUP>34</SUP> There are approximately 85,006 governmental 
entities in the Nation.<SUP>35</SUP> This number includes such entities 
as States, counties, cities, utility districts, and school districts. 
There are no figures available on what portion of this number have 
populations of fewer than 50,000. However, this number includes 38,978 
counties, cities, and towns, and, of those, 37,566, or 96 percent, have 
populations of fewer than 50,000.<SUP>36</SUP> The Census Bureau 
estimates that this ratio is approximately accurate for all government 
entities. Thus, of the approximately 85,006 governmental entities, the 
Commission estimates that 96 percent, or 81,600, are small entities 
that may be affected by our rules. The Commission solicits comment on 
this estimate.
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    \34\ 5 U.S.C. 601(5).
    \35\ 1992 Census of Governments, U.S. Bureau of the Census, U.S. 
Department of Commerce.
    \36\ Id.
---------------------------------------------------------------------------

(c) Entities With Regard to Priority Access Service
    115. Concerning the provision of priority access service, 
commenters are requested to provide information regarding how many 
providers of CMRS, existing and potential, will be considered small 
businesses. ``Small business'' is defined as having the same meaning as 
the term ``small business concern'' under the Small Business 
Act.<SUP>37</SUP> 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 
SBA. The Commission seeks comment as to whether this definition is 
appropriate in this context. Additionally, the Commission requests each 
commenter to identify whether it is a small business under this 
definition. If the commenter is a subsidiary of another entity, this 
information should be provided for both the subsidiary and the parent 
corporation or entity.
---------------------------------------------------------------------------

    \37\ 15 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632).
---------------------------------------------------------------------------

    116. The Commission has not yet developed a definition of small 
entities which respect to the provision of a CMRS service offering of 
priority access. Therefore, for entities not falling within other 
established SBA categories, the applicable definition of small entity 
is the definition under the SBA applicable to the ``Communications 
Services, Not Elsewhere Classified'' category. This definition provides 
that a small entity is one with $11.0 million or less in annual 
receipts.<SUP>38</SUP> The Census Bureau estimates indicate that of the 
848 firms in the ``Communications Services, Not Elsewhere Classified'' 
category, 775 are small businesses. While the Commission anticipates 
some CMRS providers would elect to provide priority access service, it 
is not possible to predict either how many, or what percentage, of 
these providers would be small entities.
---------------------------------------------------------------------------

    \38\ 13 CFR 120.21, SIC Code 4899.
---------------------------------------------------------------------------

(1) Cellular Radio Telephone Service
    117. The Commission has 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 no more than 1,500 
persons.<SUP>39</SUP> The size data provided by the SBA does not enable 
the Commission 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.<SUP>40</SUP> The 
Commission therefore used the 1992 Census of Transportation, 
Communications, and Utilities, conducted by the Bureau of the Census, 
which is the most recent information available. That census shows that 
only 12 radiotelephone firms out of a total of 1,178 such firms which 
operated during 1992 had 1,000 or more employees.<SUP>41</SUP> 
Therefore, even if all 12 of these large firms were cellular telephone 
companies, all of the remainder were small businesses under the SBA's 
definition. The Commission assumes that, for purposes of its 
evaluations and conclusions in this IRFA, all of the current cellular 
licensees are small entities, as that term is defined by the SBA. 
Although there are 1,758 cellular licenses, the Commission does not 
know the number of cellular licensees, since a cellular licensee may 
own several licenses.
---------------------------------------------------------------------------

    \39\ 13 CFR 121.201, Standard Industrial Classification (SIC) 
Code 4812.
    \40\ U.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).
    \41\ U.S. Bureau 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).
---------------------------------------------------------------------------

(2) Broadband Personal Communications Service
    118. The broadband PCS spectrum is divided into six frequency 
blocks designated A through F. Pursuant to Sec. 24.720(b) of the 
Commission's rules,<SUP>42</SUP> the Commission has defined ``small 
entity'' for Block C and Block F licensees as firms that had average 
gross revenues of less than $40 million in the three previous calendar 
years. This regulation defining ``small entity'' in the context of 
broadband PCS auctions has been approved by the SBA.<SUP>43</SUP>
---------------------------------------------------------------------------

    \42\ 47 CFR 24.720(b).
    \43\ See Implementation of Section 309(j) of the Communications 
Act--Competitive Bidding, PP Docket No. 93-253, Fifth Report and 
Order, 59 FR 37566 (July 22, 1994).
---------------------------------------------------------------------------

    119. The Commission has auctioned broadband PCS licenses in all of 
its spectrum blocks A through F. The Commission does not have 
sufficient data to determine how many small businesses under the 
Commission's definition bid successfully for licenses in Blocks A and 
B. As of now, there are

[[Page 60213]]

90 non-defaulting winning bidders that qualify as small entities in the 
Block C auction and 93 non-defaulting winning bidders that qualify as 
small entities in the D, E, and F Block auctions. Based on this 
information, the Commission concludes that the number of broadband PCS 
licensees that would be affected by the proposals in this Second NPRM 
includes the 183 non-defaulting winning bidders that qualify as small 
entities in the C, D, E, and F Block broadband PCS auctions.
(3) Specialized Mobile Radio
    120. Pursuant to Sec. 90.814(b)(1) of the Commission's 
rules,<SUP>44</SUP> the Commission has defined ``small entity'' for 
geographic area 800 MHz and 900 MHz SMR licenses as firms that had 
average gross revenues of less than $15 million in the three previous 
calendar years. This regulation defining ``small entity'' in the 
context of 800 MHz and 900 MHz SMR has been approved by the 
SBA.<SUP>45</SUP>
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    \44\ 47 CFR 90.814(b)(1).
    \45\ See Amendment of Parts 2 and 90 of the Commission's Rules 
to Provide for the Use of 200 Channels Outside the Designated Filing 
Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the 
Specialized Mobile Radio Pool, PR Docket No. 89-553, Second Order on 
Reconsideration and Seventh Report and Order, 60 FR 48913 (September 
21, 1995); Amendment of Part 90 of the Commission's Rules to 
Facilitate Future Development of SMR Systems in the 800 MHz 
Frequency Band, PR Docket No. 93-144, Implementation of Sections 
3(n) and 322 of the Communications Act--Regulatory Treatment of 
Mobile Services, GN Docket No. 93-252, Implementation of Section 
309(j) of the Communications Act--Competitive Bidding, PP Docket No. 
93-253, First Report and Order, Eighth Report and Order, and Second 
Further Notice of Proposed Rulemaking, 61 FR 6212 (February 16, 
1996).
---------------------------------------------------------------------------

    121. The proposals set forth in the Second NPRM may apply to SMR 
providers in the 800 MHz and 900 MHz bands. The Commission does not 
know how many firms provide 800 MHz or 900 MHz geographic area SMR 
service, nor how many of these providers have annual revenues of less 
than $15 million.
    122. The Commission recently held auctions for geographic area 
licenses in the 900 MHz SMR band. There were 60 winning bidders who 
qualified as small entities under the Commission's definition in the 
900 MHz auction. Based on this information, the Commission concludes 
that the number of geographic area SMR licensees affected by the 
proposals set forth in this Second NPRM includes these 60 small 
entities.
    123. No auctions have been held for 800 MHz geographic area SMR 
licenses. Therefore, no small entities currently hold these licenses. A 
total of 525 licenses will be awarded for the upper 200 channels in the 
800 MHz geographic area SMR auction. However, the Commission has not 
yet determined how many licenses will be awarded for the lower 230 
channels in the 800 MHz geographic area SMR auction. There is no basis 
to estimate, moreover, how many small entities within the SBA's 
definition will win these licenses. Given the facts that nearly all 
radiotelephone companies have fewer than 1,000 employees and that no 
reliable estimate of the number of prospective 800 MHz SMR licensees 
can be made, the Commission assumes, for purposes of our evaluations 
and conclusions in this IRFA, that all of the licenses will be awarded 
to small entities, as that term is defined by the SBA.
(4) 220 MHz Service
    124. Licensees for 220 MHz services that meet the definition of 
CMRS may be providers of priority access service if there is a demand 
for these services during emergencies and disasters. The Commission has 
classified providers of 220 MHz service into Phase I and Phase II 
licensees. There are approximately 2,800 non-nationwide Phase I 
licensees and 4 nationwide licensees currently authorized to operate in 
the 220 MHz band. The Commission has estimated that there are 
approximately 900 potential Phase II licensees.
    125. At this time, however, there is no basis upon which to 
estimate definitively the number of 220 MHz service licensees, either 
current or potential, that are small businesses. To estimate the number 
of such entities that are small businesses, the Commission applies the 
definition of a small entity under SBA rules applicable to 
radiotelephone companies. This definition provides that a small entity 
is a radiotelephone company employing no more than 1,500 
persons.<SUP>46</SUP> However, the size data provided by the SBA do not 
allow the Commission to make a meaningful estimate of the number of 220 
MHz providers that are small entities because they combine all 
radiotelephone companies with 500 or more employees.<SUP>47</SUP> The 
Commission therefore uses the 1992 Census of Transportation, 
Communications, and Utilities, conducted by the Bureau of the Census, 
which is the most recent information available. Data from the Bureau of 
the Census' 1992 study indicate that only 12 out of a total 1,178 
radiotelephone firms which operated during 1992 had 1,000 or more 
employees--and these may or may not be small entities, depending on 
whether they employed more or less than 1,500 employees.<SUP>48</SUP> 
But 1,166 radiotelephone firms had fewer than 1,000 employees and 
therefore, under the SBA definition, are small entities. However, the 
Commission does not know how many of these 1,166 firms are likely to be 
involved in the 220 MHz service.
---------------------------------------------------------------------------

    \46\ 13 CFR 121.201, Standard Industrial Classification (SIC) 
Code 4812.
    \47\ 1992 Economic Census Employment Report, Bureau of the 
Census, U.S. Department of Commerce, Table 3, SIC Code 4812 
(industry data adapted by the Office of Advocacy for the U.S. Small 
Business Administration).
    \48\ U.S. Bureau 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).
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    126. To assist the Commission in this analysis, commenters are 
requested to provide information regarding how many total 220 MHz 
service entities, existing and potential, may offer a priority access 
service. In particular, the Commission seeks estimates of how many 220 
MHz service entities, existing or potential, will be considered small 
businesses.
(5) Mobile Satellite Services (MSS)
    127. The Commission has not developed a definition of small 
entities applicable to licensees in the international services. 
Therefore, the applicable definition of small entity is the definition 
under the SBA rules applicable to Communications Services, Not 
Elsewhere Classified (NEC). This definition provides that a small 
entity is expressed as one with $11.0 million or less in annual 
receipts.<SUP>49</SUP> According to the Census Bureau, there were a 
total of 848 communications services, NEC in operation in 1992, and a 
total of 775 had annual receipts of less than $9,999 
million.<SUP>50</SUP>
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    \49\ 13 CFR 120.121, SIC Code 4899.
    \50\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D, SIC 4899 (U.S. Bureau of the Census data under 
contract to the Office of Advocacy of the U.S. Small Business 
Administration).
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    128. Mobile Satellite Services or Mobile Satellite Earth Stations 
are intended to be used while in motion or during halts at unspecified 
points. These stations operate as part of a network that includes a 
fixed hub or stations. The stations that are capable of transmitting 
while a platform is moving are included under Sec. 20.7(c) of the 
Commission's rules <SUP>51</SUP> as mobile services within the meaning 
of Secs. 3(27) and 332 of the Communications Act.<SUP>52</SUP> Those 
MSS services are treated as CMRS if they connect to the Public Switched 
Network (PSN) and also satisfy other criteria of Sec. 332. Facilities 
provided

[[Page 60214]]

through a transportable platform that cannot move when the 
communications service is offered are excluded from 
Sec. 20.7(c).<SUP>53</SUP>
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    \51\ 47 CFR 20.7(c).
    \52\ 47 U.S.C. 153(27), 332.
    \53\ 47 CFR 20.7(c).
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    129. The MSS networks may provide a variety of land, maritime and 
aeronautical voice and data services. There are eight mobile satellite 
licensees. At this time, the Commission is unable to make a precise 
estimate of the number of small businesses that are mobile satellite 
earth station licensees and could be considered CMRS providers of 
priority access service.
(5) Other Commercial Mobile Radio Services
    130. Other CMRS services may potentially be providers of priority 
access service if there is a demand for the transmission of voice, 
data, or text messages during emergencies and disasters.
a. Paging and Radiotelephone Service, and Paging Operations
    131. The Commission has proposed a two-tier definition of small 
businesses in the context of auctioning licenses in the paging service. 
Under the proposal, a small business will be defined as either (1) a 
entity that, together with its affiliates and controlling principals, 
has average gross revenues for the three preceding years of not more 
than $3 million; or (2) an entity that, together with affiliates and 
controlling principals, has average gross revenues for the three 
preceding calendar years of not more than $15 million. Since the SBA 
has not yet approved this definition for paging companies, we utilize 
the SBA's definition applicable to radiotelephone companies, i.e., an 
entity employing no more than 1,500 persons.<SUP>54</SUP>
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    \54\ 13 CFR 121.201, SIC 4812.
---------------------------------------------------------------------------

    132. The Commission estimates that the total current number of 
paging carriers is approximately 600. In addition, the Commission 
anticipates that a total of 16,630 non-nationwide geographic area 
licenses will be granted or auctioned. The geographic area licenses 
will consist of 2,550 Major Trading Area (MTA) licenses and 14,080 
Economic Area (EA) licenses. In addition to the 47 Rand McNally MTAs, 
the Commission is licensing Alaska as a separate MTA and adding three 
MTAs for the U.S. territories, for a total of 51 MTAs. No auctions of 
paging licenses have been held yet, and there is no basis to determine 
the number of licenses that will be awarded to small entities. Given 
the fact that nearly all radiotelephone companies have fewer than 1,000 
employees, and that no reliable estimate of the number of paging 
licensees can be made, the Commission assumes, for purposes of this 
IRFA, that all of the current licensees and the 16,630 geographic area 
paging licensees either are or will consist of small entities, as that 
term is defined by the SBA.
    133. Although the Second NPRM requests comment concerning all CMRS 
providers, the number of paging licensees that elect to provide some 
form of priority access service may depend on whether there is a market 
for wireless data or message text transmissions in emergency and 
disaster environments. The number may also depend on whether two-way 
paging providers, rather than providers of traditionally one-way 
service, are eventually included under any priority access rules.
b. Narrowband PCS
    134. The Commission has auctioned nationwide and regional licenses 
for narrowband PCS. The Commission does not have sufficient information 
to determine whether any of these licensees are small businesses within 
the SBA-approved definition. At present, there have been no auctions 
held for the MTA and Basic Trading Area (BTA) narrowband PCS licenses. 
The Commission anticipates a total of 561 MTA licensees and 2,958 BTA 
licensees will be awarded in the auctions. Those auctions, however, 
have not yet been scheduled. Given that nearly all radiotelephone 
companies have fewer than 1,500 employees and that no reliable estimate 
of the number of prospective MTA and BTA narrowband licensees can be 
made, the Commission assumes, that all of the licensees will be awarded 
to small entities, as that term is defined by the SBA.\55\
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    \55\ See id.
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c. Air-Ground Radiotelephone Service
    135. The Commission has not adopted a definition of small business 
specific to the Air-Ground Radiotelephone Service, which is defined in 
Sec. 22.99 of the Commission's rules.<SUP>56</SUP> Accordingly, the 
Commission will use the SBA's definition applicable to radiotelephone 
companies, i.e., an entity employing no more than 1,500 
persons.<SUP>57</SUP> There are approximately 100 licensees in the Air-
Ground Radiotelephone Service, and the Commission estimates that almost 
all of them qualify as small under the SBA definition.
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    \56\ 47 CFR 22.99.
    \57\ 13 CFR 121.201, SIC 4812.
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E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    136. The Commission has reduced burdens wherever possible. To 
minimize any negative impact, however, we propose certain incentives 
for small entities, which will redound to their benefit. While public 
safety entities will be required to submit regional plans (to enable 
the Commission to accommodate regional needs and preferences), they 
will be able to pool their resources in developing such plans. The 
regulatory burdens the Commission has retained, such as filing 
applications on appropriate forms, are necessary in order to ensure 
that the public receives the benefits of innovative new services in a 
prompt and efficient manner. The Commission will continue to examine 
alternatives in the future with the objectives of eliminating 
unnecessary regulations and minimizing significant economic impact on 
small entities. The Commission seeks comment on significant 
alternatives commenters believe should be adopted.
    137. With respect to priority access service, the Commission is 
seeking comment regarding whether the provision of priority access 
service by wireless carriers should be on a voluntary basis. Thus, 
small entities at their option can elect to provide the service should 
they determine that there is a competitive market opportunity to do so. 
In addition, the Commission is proposing that in providing priority 
access service, providers of certain CMRS services are to be insulated 
from liability under Sec. 202 of the Communications Act.<SUP>58</SUP> 
The Commission also seeks comment on alternatives regarding the 
priority access issues raised in the Second NPRM.
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    \58\ 47 U.S.C. 202.
---------------------------------------------------------------------------

F. Federal Rules Which Overlap, Duplicate or Conflict With These Rules

    138. None.Insert Reg Flex Here.

Ordering Clauses

    139. Accordingly, it is ordered, pursuant to Secs. 1, 4(i), 10, 
201, 202, 303(b), 303(g), 303(j), 303(r), and 403 of the Communications 
Act, 47 U.S.C. 151, 154(i), 160, 201, 202, 303(b), 303(g), 303(j), 
303(r), 403, that notice is hereby given of the proposed regulatory 
changes described in this Second Notice of Proposed Rulemaking, and 
that comment is sought on these proposals.
    140. It is further ordered that the Secretary shall send a copy of 
this Second Notice of Proposed Rulemaking, including the Initial 
Regulatory Flexibility Analysis, to the Chief

[[Page 60215]]

Counsel for Advocacy of the Small Business Administration in accordance 
with Sec. 603(a) of the Regulatory Flexibility Act.\59\
    141. It is further ordered that the Petition for Rulemaking filed 
on October 19, 1995, on behalf of the National Communications System is 
granted in part to the extent indicated herein.

List of Subjects

47 CFR Part 20

    Communications common carriers.

47 CFR Part 90

    Communications equipment, Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-29515 Filed 11-6-97; 8:45 am]
BILLING CODE 6712-01-P

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  \59\ Pub. L. 96-354, 94 Stat. 1165, 5 U.S.C. 601-612 (1980).
      



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