[Federal Register Volume 77, Number 61 (Thursday, March 29, 2012)]
[Proposed Rules]
[Pages 18991-18996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7588]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 12-64; WT Docket No. 11-110; FCC 12-25]


Channel Spacing and Bandwidth Limitations for Certain Economic 
Area (EA)-Based 800 MHz Specialized Mobile Radio (SMR) Licensees

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document proposes to modify the Commission's rules to 
allow Economic Area (EA)-based 800 MHz Specialized Mobile Radio (SMR) 
licensees to exceed a channel spacing and bandwidth limitation, subject 
to two conditions. The Commission proposes to allow licensees to exceed 
the channel spacing and bandwidth limitation in the 813.5-824/858.5-869 
MHz band in National Public Safety Planning Advisory Committee (NPSPAC) 
regions where 800 MHz public safety licensee reconfiguration is 
complete. In areas where 800 MHz public safety reconfiguration is 
incomplete, EA-based 800 MHz licensees would only be allowed to exceed 
the channel spacing and bandwidth limitation in the 813.5-821/858.5-866 
MHz band. Further, the Commission proposes to require any EA-based 800 
MHz SMR licensee that intends to exceed the channel spacing and 
bandwidth limitation of its rules, which govern the above-listed MHz 
bands, to provide 30 days written notice to public safety licensees 
with base stations in the NPSPAC region and within 113 kilometers (70 
miles) of the affected NPSPAC region. The Commission seeks comment on 
any additional steps that may need to be taken to protect 800 MHz 
public safety licensees against any possible increased interference. 
The proposed rule changes would allow geographic-based 800 MHz SMR 
licensees the flexibility to deploy new technologies and to better 
utilize their licensed spectrum, while also protecting 800 MHz public 
safety entities.

DATES: Submit comments on or before April 13, 2012 and reply comments 
are due on or before April 23, 2012.

ADDRESSES: You may submit comments, identified by WT Docket No. 12-64; 
WT Docket No. 11-110; FCC 12-25, by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> People With Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: <a href="/cdn-cgi/l/email-protection#094f4a4a3c393d496f6a6a276e667f"><span class="__cf_email__" data-cfemail="9ed8ddddabaeaadef8fdfdb0f9f1e8">[email protected]</span></a> or phone 202-418-
0530 or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Brian Regan, Mobility Division, 
Wireless Telecommunications Bureau, <a href="/cdn-cgi/l/email-protection#f597879c949bdb879092949bb5939696db929a83"><span class="__cf_email__" data-cfemail="a9cbdbc0c8c787dbcccec8c7e9cfcaca87cec6df">[email protected]</span></a>, (202) 418-
2849.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (Notice) in WT Docket No. 12-64, WT Docket No. 
11-110; FCC 12-25, adopted March 7, 2012, and released March 9, 2012. 
The full text of this document is available for inspection and copying 
during normal business hours in the FCC Reference Center, 445 12th 
Street SW., Washington, DC 20554. The complete text may be purchased 
from the Commission's copy contractor, Best Copy and Printing, Inc., 
445 12th Street SW., Room CY-B402, Washington, DC 20554, (202) 488-
5300, facsimile (202) 488-5563, or via email at <a href="/cdn-cgi/l/email-protection#67010404270504170e1002054904080a"><span class="__cf_email__" data-cfemail="5f393c3c1f3d3c2f36283a3d713c3032">[email protected]</span></a>. The 
full text may also be downloaded at: www.fcc.gov. Alternative formats 
are available to persons with disabilities by sending an email to 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="8fe9ececbabfbbcfe9ececa1e8e0f9">[email protected]</a> or by calling the Consumer & Governmental Affairs Bureau 
at 202-418-0530 (voice), 202-418-0432 (TTY).

Initial Paperwork Reduction Act of 1995 Analysis

    This document contains proposed information collection 
requirements. 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 collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Public and agency comments 
are due May 29, 2012.
    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 shall 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; (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; and (e) 
ways to further reduce the information collection burden on small 
business concerns with fewer than 25 employees. In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might 
further reduce the information collection burden for small business 
concerns with fewer than 25 employees.
    OMB Control Number: 3060-xxxx.
    Title: Section 90.209(b)(7)--Bandwidth limitations.
    Form No.: N/A.
    Type of Review: New collection.
    Respondents: Business or other for-profit.
    Number of Respondents and Responses: 27 respondents, 27 responses.
    Estimated Time per Response: .50 up to 9 hours.
    Frequency of Response: On occasion, third party disclosure 
requirement.
    Obligation to Respond: Mandatory.
    Total Annual Burden: 232 hours.
    Total Annual Costs: $52,500.00.

[[Page 18992]]

    Privacy Act Impact Assessment: N/A.
    Nature and Extent of Confidentiality: None.
    Needs and Uses: This information will be used to ensure that 800 
MHz public safety licensees are not impacted by EA-based 800 MHz SMR 
licensees exceeding the channel spacing and bandwidth requirement in 
the Commission's rules.

Summary

I. Introduction and Background

    1. In an effort to reduce barriers to innovation and investment in 
new technologies and to promote greater spectrum efficiency, we propose 
to eliminate a legacy channel spacing and bandwidth limitation for 
Economic Area market (EA)-based 800 MHz Specialized Mobile Radio (SMR) 
licensees in the 813.5-824/858.5-869 MHz band. Subject to certain 
protections to safeguard 800 MHz public safety licensees, elimination 
of the legacy channel spacing and bandwidth limitation should provide 
greater flexibility to EA-based 800 MHz SMR licensees to deploy 
competitive wireless services over contiguous channels.
    2. In 1995, the Commission established a new licensing framework 
for 800 MHz SMR and designated 10 megahertz of contiguous spectrum in 
the 800 MHz band for EA-based licensing in the 800 MHz SMR First Report 
and Order, at 61 FR 6138, Feb. 16, 1996. In doing so, the Commission 
transitioned the 800 MHz SMR service from a site-by-site licensing 
process that required licensees to seek prior authorization to add or 
modify individual frequency channels and transmitter sites to a 
geographic-based licensing mechanism that provides licensees with the 
flexibility to add transmitters or modify operations within their 
licensed market and licensed spectrum as market conditions dictate.
    3. In the 800 MHz SMR First Report and Order the Commission 
determined that wide-area licensing would ``give licensees the 
flexibility to use technologies that can operate on either contiguous 
or non-contiguous spectrum'' and that large spectrum blocks were 
necessary for ``broadband technologies such as CDMA and GSM.'' With 
wide-area licenses, the Commission believed licensees would be able to 
``compete effectively with other CMRS providers, such as cellular and 
broadband PCS systems.'' Further, the Commission stated its intent in 
the Executive Summary of the 800 MHz SMR First Report and Order that 
EA-based licensees would have ``full discretion over channelization of 
available spectrum within the block.'' The Commission also adopted an 
out-of-band emission requirement that applies to the outer channels of 
the spectrum block and to spectrum adjacent to interior channels used 
by incumbents.
    4. While the Commission may have intended to provide EA-based 800 
MHz SMR licensees discretion over channelization within the channel 
block, it left unchanged an existing channelization scheme and 
bandwidth limitation in its rules for the relevant portion of the 800 
MHz band. Section 90.209 of the Commission's rules establishes channel 
spacing and authorized bandwidths for particular frequencies, unless 
specified elsewhere. Under Sec.  90.209, frequencies in 809-824/854-869 
MHz are limited to 25 kHz channels with an authorized bandwidth of 20 
kHz.
    5. In 2004, the Commission initiated a process to reconfigure the 
800 MHz band in the 800 MHz Reconfiguration Report and Order, at 69 FR 
67823, Nov. 22, 2004, to ``address the [then] ongoing and growing 
problem of interference to public safety communications in the 800 MHz 
band.'' The interference problem was caused ``by a fundamentally 
incompatible mix of two types of communications systems: cellular-
architecture multi cell systems * * * and high-site non-cellular 
systems.'' In the short term, the Commission implemented technical 
standards that defined unacceptable interference in 800 MHz, while also 
reconfiguring the 800 MHz band to separate commercial wireless systems 
from public safety systems on a separate track. Under the 
reconfiguration plan, SMR and other cellular-system operators including 
Sprint Nextel Corp. (Sprint Nextel) were required to vacate the 806-
817/851-862 MHz band and relocate to the 817-824/862-869 MHz band.
    6. Sprint Nextel holds the majority of the EA-based 800 MHz SMR 
licenses (commonly referred to as Enhanced SMR or ESMR) and reported as 
of June 2011 that it held or will soon hold ``14 [megahertz] of 
geographically licensed contiguous 800 MHz channels across much of the 
nation.'' Sprint Nextel has used its licenses at 817-824/862-869 MHz 
primarily for its iDEN operations, which it describes as ``a 2G 
technology that uses non-contiguous channels to provide cellular, 
messaging and push-to-talk services.''
    7. In December 2010, Sprint Nextel announced that it was 
transitioning its existing operations off of some of its EA-based 800 
MHz licenses in order to incorporate the spectrum into its CDMA 
network, which it claims requires contiguous spectrum and ``occupies a 
1.25 [megahertz] bandwidth.'' However, under the channelization scheme 
and bandwidth limitation in Sec.  90.209 of the Commission's rules, 
Sprint Nextel is unable to aggregate the channels in its EA-based 800 
MHz SMR licenses to provide CDMA.
    8. In June 2011, Sprint Nextel filed a petition for declaratory 
ruling (WT Docket No. 11-110) asking the Commission to ``clarify and 
declare that its rules permit larger than 25 kHz bandwidth operations 
in the [ESMR] portion of the 800 MHz band.'' Sprint Nextel requested in 
the alternative that the Commission issue a notice of proposed 
rulemaking ``to revise Sec.  90.209 to the extent necessary to 
expressly authorize ESMR band EA licensees to deploy technologies using 
bandwidths greater than 25 kHz on their contiguous spectrum 
assignments.'' Sprint Nextel argues that the Commission never intended 
for the 25 kHz channel spacing and 20 kHz bandwidth limitation to apply 
to geographically licensed 800 MHz SMR spectrum and that such 
application will frustrate the Commission's intent of providing 
flexibility to EA-based 800 MHz SMR licensees. Sprint Nextel also 
contends that the bandwidth limitation in Sec.  90.209 and the out-of-
band emission requirement in Sec.  90.691 of the Commission's rules are 
apparently inconsistent and in conflict. The Wireless 
Telecommunications Bureau released a Public Notice seeking comment on 
Sprint Nextel's petition in June 2011.
    9. Several commenters in response to the Public Notice support 
Sprint Nextel's request. SouthernLINC Wireless and Southern Company 
urge the Commission to also eliminate the bandwidth limitation and 
channel spacing in Sec.  90.209 for the ``expanded'' SMR band in the 
southeastern United States, a request that Sprint Nextel supports. The 
Association of Public-Safety Communications Officials-International, 
Inc. (APCO) and the National Public Safety Telecommunications Council 
(NPSTC) do not object to Sprint Nextel's request on the condition that 
certain steps are taken to avoid interference with 800 MHz public 
safety licensees. While AT&T generally supports efforts to ``provide 
flexibility to exclusive geographic area licensees of commercial mobile 
services,'' it and Motorola Solutions Inc. urge the Commission to adopt 
a rulemaking to explore any possible technical issues that may arise 
from wider-bandwidth operations in EA-licensed 800 MHz SMR spectrum.

[[Page 18993]]

II. Notice of Proposed Rulemaking

    10. In this Notice of Proposed Rulemaking (Notice), we propose to 
grant EA-based 800 MHz SMR licensees the flexibility to deploy CDMA or 
other wireless technologies that operate on greater than 25 kHz 
channels with greater than 20 kHz bandwidth. We do not, however, find 
any controversy or uncertainty regarding Sec. Sec.  90.209 or 90.691 of 
the Commission's rules that can be resolved or clarified through a 
declaratory ruling. We therefore initiate this Notice and propose to 
allow EA-based 800 MHz SMR licensees to exceed the channel spacing and 
bandwidth limitation in Sec.  90.209, subject to two conditions we 
propose to protect against any potential for increased interference 
with 800 MHz public safety licensees.
    11. The Commission is authorized to issue declaratory rulings to 
terminate controversies or remove uncertainty. While it has broad 
discretion in deciding whether to exercise such authority, the 
Commission will generally decline to issue such a ruling when there 
appears to be no significant controversy or uncertainty. Here, the 
record does not demonstrate any such controversy or uncertainty 
regarding the application of Sec.  90.209 to EA-based 800 MHz SMR 
licensees or the relationship between Sec. Sec.  90.209 and 90.691. 
Section 90.209 is clear on its face that the channel spacings and 
authorized bandwidth for the listed frequencies, which include the 
frequencies assigned to EA-based 800 MHz SMR licenses, apply ``unless 
specified elsewhere.'' A different bandwidth authorization for this 
band is not listed elsewhere in the Commission's rules, including in 
Sec.  90.691. As some commenters point out, in instances when the 
Commission has established different bandwidth limitations for 
frequencies listed in Sec.  90.209, the Commission has done so 
explicitly. The out-of-band emission requirement in Sec.  90.691 is 
intended to protect against adjacent channel interference, which is 
unnecessary for sequential channels licensed as a block and has no 
bearing on whether a spectrum block can be channelized or have a 
bandwidth limitation.
    12. In lieu of a declaratory ruling, through the instant Notice, we 
propose to eliminate the channel spacing and bandwidth limitation in 
Sec.  90.209 of the Commission's rules for EA-based 800 MHz SMR 
licenses in the frequencies 813.5-824/858.5-869 MHz, subject to two 
proposed conditions outlined below. The record suggests that 
eliminating these limitations may serve the public interest by allowing 
licensees to deploy more advanced wireless technologies, to consumers' 
benefit, while continuing to ensure such operations do not increase 
interference to 800 MHz public safety licensees through the conditions 
proposed below. As set forth below, we seek comment on this proposal 
and on the type and magnitude of any accompanying costs or benefits.
    13. We recognize that protection of public safety licensees in the 
800 MHz band is essential and do not intend to take any actions that 
might negatively impact the progress made through the 800 MHz 
reconfiguration process. APCO and NPSTC assert that in order to protect 
against interference with 800 MHz public safety licensees, operations 
using greater than 25 kHz bandwidth should only be allowed in National 
Public Safety Planning Advisory Committee (NPSPAC) regions where public 
safety reconfiguration is complete. Accordingly, we propose to allow 
EA-based 800 MHz SMR licensees to exceed the channel spacing and 
bandwidth limitation in Sec.  90.209 in the 813.5-824/858.5-869 MHz 
band in NPSPAC regions where all 800 MHz public safety licensees in the 
region have completed band reconfiguration. Further, in NPSPAC regions 
where reconfiguration is incomplete, we propose to allow EA-based 800 
MHz SMR licensees to exceed the channel spacing and bandwidth 
limitation only in the 813.5-821/858.5-866 MHz band. Public safety 
users are being relocated from 821-824/866-869 MHz to the new band of 
806-809/851-854 MHz. Sprint Nextel asserts that it will not--and 
cannot--deploy CDMA in the ``old'' public safety band until the public 
safety users in the NPSPAC region have moved to the ``new'' band. Upon 
all 800 MHz public safety licensees in a region completing band 
reconfiguration, EA-based 800 MHz SMR licensees in the 821-824/866-869 
MHz band would then be allowed to exceed the channel spacing and 
bandwidth limitation.
    14. Additionally, we propose to require all EA-based 800 MHz SMR 
licensees to provide at least 30 days written notice to public safety 
licensees with base stations in the NPSPAC region where an EA-based 800 
MHz SMR licensee intends to exceed the channel spacing and bandwidth 
limitation and to public safety licensees with base stations within 113 
kilometers (70 miles) of the affected NPSPAC region border. These 
conditions appear to balance the need to protect 800 MHz public safety 
licensees from any possible increased interference, while enabling 800 
MHz SMR licensees to efficiently utilize their spectrum to provide more 
advanced wireless services. We seek comment on these proposed 
conditions, including with respect to any costs that these conditions 
might impose.
    15. We encourage commenters to explain any interference issues they 
claim may arise--even with conditions--with specificity, including any 
relevant data supporting such claims. We also encourage commenters to 
describe in detail and to justify fully any modification to these or 
additional conditions they argue may be necessary to protect 800 MHz 
public safety licensees from increased interference. For example, NPSTC 
suggests that the Commission should impose a one megahertz guard band 
at 820-821/865-866 MHz between EA-based 800 MHz SMR operations that 
exceed the channel spacing and bandwidth limitation and public safety 
operations where band reconfiguration is incomplete. Similarly, APCO 
suggests that EA-based 800 MHz SMR licensees that exceed the channel 
spacing and bandwidth limitation ``maintain a minimum of 1.0 MHz 
separation from any public safety operation in the upper portion of the 
interleaved band (i.e., above 860 MHz) in the service area of the * * * 
cellular site.'' APCO also suggests that EA-based 800 MHz SMR 
operations that exceed the channel spacing and bandwidth limitation and 
are near a public safety system in a NPSPAC region where 
reconfiguration is incomplete must protect public safety operations 
``both on-channel and on the 12.5 kHz offset to the 5 dBu.'' We seek 
comment on these suggested conditions, as well as any other proposals. 
Commenters should include technical justifications for why additional 
or alternative conditions may be necessary, and should identify any 
costs that additional or alternative conditions might impose.

III. Procedural Matters

A. Ex Parte Rules-Permit-But-Disclose Proceeding

    16. The proceeding this Notice initiates shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. Persons making ex parte presentations must file a copy 
of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte

[[Page 18994]]

presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Sec.  1.1206(b) of the Commission's rules. In 
proceedings governed by Sec.  1.49(f), for which the Commission has 
made available a method of electronic filing, written ex parte 
presentations and memoranda summarizing oral ex parte presentations, 
and all attachments thereto, must be filed through the electronic 
comment filing system available for that proceeding, and must be filed 
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). 
Participants in this proceeding should familiarize themselves with the 
Commission's ex parte rules.

B. Comment Dates

    17. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, and 1.419, interested parties may file comments 
and reply comments on or before the dates indicated on the first page 
of this document. Comments may be filed using the Commission's 
Electronic Comment Filing System (ECFS). See Electronic Filing of 
Documents in Rulemaking Proceedings, at 63 FR 24121 (1998).
    [ssquf] Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
    [ssquf] Paper Filers: Parties that choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
    [ssquf] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to FCC Headquarters at 445 
12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 
8 a.m. to 7 p.m. All hand deliveries must be held together with rubber 
bands or fasteners. Any envelopes and boxes must be disposed of before 
entering the building.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive 
Capitol Heights, MD 20743.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="63050000565357230500004d040c15">[email protected]</a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

C. Initial Paperwork Reduction Act Analysis

    18. This document contains a proposed new information collection 
requirement. 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 collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we seek specific comment on how we might further 
reduce the information collection burden for small business concerns 
with fewer than 25 employees.

IV. Initial Regulatory Flexibility Analysis

    19. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in this Notice. Written 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 Notice. The Commission will send a 
copy of the Notice, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). In addition, the 
Notice and IRFA (or summaries thereof) will be published in the Federal 
Register.

A. Need for, and Objectives of, the Proposed Rules

    20. The proposed rule eliminates legacy channel spacing and 
bandwidth limitation governing Economic Area (EA)-based 800 MHz 
specialized mobile radio (SMR) licensees. Further, the proposed rule 
provides licensees the flexibility to deploy competitive wireless 
services, while also continuing to protect 800 MHz public safety 
licensees from any potential interference.
    21. The proposed rule allow EA-based 800 MHz SMR licensees in the 
813.5-824/858.5-869 MHz band to exceed the channel spacing and 
bandwidth limits in Sec.  90.209 of the Commission's rules, subject to 
two conditions. We propose to allow EA-based 800 MHz SMR licensees to 
exceed the channel spacing and bandwidth limitation in the 813.5-824/
858.5-869 MHz band in National Public Safety Planning Advisory 
Committee (NPSPAC) regions where 800 MHz reconfiguration is complete. 
In NPSPAC regions where 800 MHz reconfiguration is incomplete, we 
propose to allow EA-based 800 MHz licensees to exceed the channel 
spacing and bandwidth limitation only in the 813.5-821/858.5-866 MHz 
band. Upon all 800 MHz public safety licensees in a region completing 
band reconfiguration, EA-based 800 MHz SMR licensees in the 821-824/
866-869 MHz band would also be allowed to exceed the channel spacing 
and bandwidth limitation. We also propose to require EA-based 800 MHz 
SMR licensees to provide 30 days written notice to 800 MHz public 
safety licensees with base stations in the NPSPAC region where an EA-
based 800 MHz SMR licensee intends to exceed the channel spacing and 
bandwidth limitation, and to public safety licensees with base stations 
within 113 kilometers (70 miles) of the affected NPSPAC region border.
    22. We believe the proposed rule will reduce barriers to innovation 
and investment and allow EA-based 800 MHz SMR licensees to deploy 
competitive wireless services, to consumers' benefit.

B. Legal Basis

    23. The legal basis for any action that may be taken pursuant to 
the Notice is contained in sections 1, 2, 4(i), 4(j), 301, 302, 303, 
307, and 308 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 152, 154(i), 154(j), 301, 302, 303, 307, and 308.

[[Page 18995]]

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    24. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. A small-business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    25. Small Businesses. Nationwide, there are a total of 
approximately 27.5 million small businesses, according to the SBA.
    26. Wireless Telecommunications Carriers (except Satellite). Since 
2007, the SBA has recognized wireless firms within this new, broad, 
economic census category. Prior to that time, such firms were within 
the now-superseded categories of Paging and Cellular and Other Wireless 
Telecommunications. Under the present and prior categories, the SBA has 
deemed a wireless business to be small if it has 1,500 or fewer 
employees. For this category, census data for 2007 show that there were 
1,383 firms that operated for the entire year. Of this total, 1,368 
firms had 999 or fewer employees, and 15 had 1,000 employees or more. 
Similarly, according to Commission data, 413 carriers reported that 
they were engaged in the provision of wireless telephony, including 
cellular service, Personal Communications Service (PCS), and 
Specialized Mobile Radio (SMR) Telephony services. Of these, an 
estimated 261 have 1,500 or fewer employees, and 152 have more than 
1,500 employees. Consequently, the Commission estimates that 
approximately half or more of these firms can be considered small. 
Thus, using available data, we estimate that the majority of wireless 
firms can be considered small.
    27. Specialized Mobile Radio. The Commission awards small business 
bidding credits in auctions for Specialized Mobile Radio (``SMR'') 
geographic area licenses in the 800 MHz and 900 MHz bands to entities 
that had revenues of no more than $15 million in each of the three 
previous calendar years. The Commission awards very small business 
bidding credits to entities that had revenues of no more than $3 
million in each of the three previous calendar years. The SBA has 
approved these small business size standards for the 800 MHz and 900 
MHz SMR Services. The Commission has held auctions for geographic area 
licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction was 
completed in 1996. Sixty bidders claiming that they qualified as small 
businesses under the $15 million size standard won 263 geographic area 
licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 
200 channels was conducted in 1997. Ten bidders claiming that they 
qualified as small businesses under the $15 million size standard won 
38 geographic area licenses for the upper 200 channels in the 800 MHz 
SMR band. A second auction for the 800 MHz band was conducted in 2002 
and included 23 BEA licenses. One bidder claiming small business status 
won five licenses.
    28. The auction of the 1,053 800 MHz SMR geographic area licenses 
for the General Category channels was conducted in 2000. Eleven bidders 
that won 108 geographic area licenses for the General Category channels 
in the 800 MHz SMR band qualified as small businesses under the $15 
million size standard. In an auction completed in 2000, a total of 
2,800 Economic Area licenses in the lower 80 channels of the 800 MHz 
SMR service were awarded. Of the 22 winning bidders, 19 claimed small 
business status and won 129 licenses. Thus, combining all three 
auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR 
band claimed status as small business.
    29. In addition, there are numerous incumbent site-by-site SMR 
licensees and licensees with extended implementation authorizations in 
the 800 and 900 MHz bands. We do not know how many firms provide 800 
MHz or 900 MHz geographic area SMR pursuant to extended implementation 
authorizations, nor how many of these providers have annual revenues of 
no more than $15 million. One firm has over $15 million in revenues. In 
addition, we do not know how many of these firms have 1,500 or fewer 
employees. We assume, for purposes of this analysis, that all of the 
remaining existing extended implementation authorizations are held by 
small entities, as that small business size standard is approved by the 
SBA.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    30. The proposed rule provides regulatory flexibility to all EA-
based 800 MHz SMR licensees. The proposed rule would impose limited 
reporting or recordkeeping requirements to the extent an EA-based 800 
MHz SMR licensee seeks to exceed the channel spacing and bandwidth 
limitation in Sec.  90.209 of the Commission's rules. In such cases, 
the licensee must provide 30 days advanced written notice to all public 
safety licensees with a base station in the affected NPSPAC region and 
within 113 kilometers (70 miles) of the border of the affected NPSPAC 
region. Otherwise, the proposed rule would impose only a small 
compliance burden.

E. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    31. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    32. The Notice is deregulatory in nature and imposes only a minor 
compliance requirement on all affected entities, including small 
entities. In recognition of the resources available to small entities, 
and in the interest of simplified compliance obligations, the Notice 
does not mandate any specific form or manner in which entities must 
comply with the reporting requirement. Specifically, the Notice 
proposes to require EA-based 800 MHz SMR licensees to provide written 
notice to all public safety licensees with a base station in the 
affected NPSPAC region and within 113 kilometers (70 miles) of the 
border of the affected NPSPAC region if the licensee intends to exceed 
the channel spacing and bandwidth limitation. Licensees have the 
flexibility to provide written notice through whatever means the 
licensee chooses. We believe this notice is necessary to ensure that 
public safety licensees are aware of the operation and can actively

[[Page 18996]]

monitor for any interference issues that may arise. While we strive to 
provide flexibility to small entities, because we believe that 
protection of public safety licensees is essential and in the public 
interest, we do not propose any exemption for small entities.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    33. None.

V. Ordering Clauses

    34. Pursuant to the authority contained in sections 1, 2, 4(i), 
4(j), 301, 302, 303, 307, and 308 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 302, 303, 307, and 
308, this Notice of Proposed Rulemaking is adopted.
    35. Pursuant to sections 1, 2, 4(i), 4(j), 301, and 303 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 
154(j), 301, 303 and Sec.  1.2 of the Commission's rules, 47 CFR 1.2, 
the Petition for Declaratory Ruling filed on June 3, 2011 by Sprint 
Nextel Corp. is denied.
    36. Pursuant to sections 1, 2, 4(i), 4(j), 301, and 303 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 
154(j), 301, 303, and Sec.  1.407 of the Commission's rules, 47 CFR 
1.407, the Petition for Rulemaking in the alternative filed on June 3, 
2011 by Sprint Nextel Corp. is granted.
    37. The Commission's Consumer & Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Notice of 
Proposed Rulemaking, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Part 90

    Communications equipment, Common carriers, Business and industry, 
Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
    For the reasons set forth in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 90 as follows:

PART 90--PRIVATE LAND MOBILE RADIO SERVICE

    1. The authority citation for part 90 continues to read as follows:

    Authority:  Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), 332(c)(7).

    2. Section 90.209 is amended by adding paragraph (b)(7) to read as 
follows:


Sec.  90.209  Bandwidth limitations.

* * * * *
    (b) * * *
    (7) Economic Area (EA)-based licensees in frequencies 813.5-824/
858.5-869 may exceed the standard channel spacing and authorized 
bandwidth listed in paragraph (b)(5) of this section in any National 
Public Safety Planning Advisory Committee Region when all 800 MHz 
public safety licensees in the Region have completed band 
reconfiguration. In any National Public Safety Planning Advisory 
Committee Region where the band reconfiguration is incomplete, EA-based 
licensees in frequencies 813.5-821/858.5-866 MHz may exceed the 
standard channel spacing and authorized bandwidth listed in paragraph 
(b)(5) of this section. Upon all 800 MHz public safety licensees in a 
region completing band reconfiguration, EA-based 800 MHz SMR licensees 
in the 821-824/866-869 MHz band would also be allowed to exceed the 
channel spacing and authorized bandwidth. Licensees authorized to 
exceed the standard channel spacing and authorized bandwidth under this 
paragraph must provide at least 30 days written notice prior to 
initiating service in the bands listed herein to every 800 MHz public 
safety licensee with a base station in the affected National Public 
Safety Planning Advisory Committee Region, and every 800 MHz public 
safety licensee within 113 kilometers (70 miles) of the affected 
Region.

[FR Doc. 2012-7588 Filed 3-28-12; 8:45 am]
BILLING CODE 6712-01-P


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