Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69451

Needs and Uses: During the

processing of an application for a

patent, the applicant/agent may be

required or desire to submit additional

information to the United States Patent

and Trademark Office concerning the

examination of a specific application.

The specific information required or

which may be submitted includes:

Information Disclosure Statements;

Terminal Disclaimers; Petitions to

Revive; Express Abandonments; Appeal

Notices; Petitions for Access; Powers to

Inspect; Certificates of Mailing or

Transmission; Statements under

§ 3.73(b); Amendments, Petitions and

their Transmittal Letters; and Deposit

Account Order Forms.

Comments are invited on: (1) Whether

the collection of information is

necessary for proper performance of the

functions of the agency; (2) the accuracy

of the agency’s estimate of the burden;

(3) ways to enhance the quality, utility,

and clarity of the information to be

collected; and (4) ways to minimize the

burden of the collection of information

to respondents.

Interested persons are requested to

send comments regarding these

information collections, including

suggestions for reducing this burden, to

Robert J. Spar, Director, Office of Patent

Legal Administration, United States

Patent and Trademark Office,

Washington, DC 20231, or to the Office

of Information and Regulatory Affairs,

OMB, 725 17th Street, NW.,

Washington, DC 20503 (Attn: Desk

Officer for the United States Patent and

Trademark Office).

Notwithstanding any other provision

of law, no person is required to respond

to nor shall a person be subject to a

penalty for failure to comply with a

collection of information subject to the

requirements of the Paperwork

Reduction Act unless that collection of

information displays a currently valid

OMB control number.

List of Subjects in 37 CFR Part 1

Administrative practice and

procedure, Courts, Freedom of

Information, Inventions and patents,

Reporting and record keeping

requirements, Small Businesses.

For the reasons set forth in the

preamble, 37 CFR Part 1 is amended as

follows:

PART 1—RULES OF PRACTICE IN

PATENT CASES

1. The authority citation for 37 CFR

Part 1 continues to read as follows:

Authority: 35 U.S.C. 2(b)(2).

2. Section 1.251 is added immediately

following § 1.248 to read as follows:

§ 1.251 Unlocatable file.

(a) In the event that the Office cannot

locate the file of an application, patent,

or other patent-related proceeding after

a reasonable search, the Office will

notify the applicant or patentee and set

a time period within which the

applicant or patentee must comply with

the notice in accordance with one of

paragraphs (a)(1), (a)(2), or (a)(3) of this

section.

(1) Applicant or patentee may comply

with a notice under this section by

providing:

(i) A copy of the applicant’s or

patentee’s record (if any) of all of the

correspondence between the Office and

the applicant or patentee for such

application, patent, or other proceeding

(except for U.S. patent documents);

(ii) A list of such correspondence; and

(iii) A statement that the copy is a

complete and accurate copy of the

applicant’s or patentee’s record of all of

the correspondence between the Office

and the applicant or patentee for such

application, patent, or other proceeding

(except for U.S. patent documents), and

whether applicant or patentee is aware

of any correspondence between the

Office and the applicant or patentee for

such application, patent, or other

proceeding that is not among applicant’s

or patentee’s records.

(2) Applicant or patentee may comply

with a notice under this section by:

(i) Producing the applicant’s or

patentee’s record (if any) of all of the

correspondence between the Office and

the applicant or patentee for such

application, patent, or other proceeding

for the Office to copy (except for U.S.

patent documents); and

(ii) Providing a statement that the

papers produced by applicant or

patentee are applicant’s or patentee’s

complete record of all of the

correspondence between the Office and

the applicant or patentee for such

application, patent, or other proceeding

(except for U.S. patent documents), and

whether applicant or patentee is aware

of any correspondence between the

Office and the applicant or patentee for

such application, patent, or other

proceeding that is not among applicant’s

or patentee’s records.

(3) If applicant or patentee does not

possess any record of the

correspondence between the Office and

the applicant or patentee for such

application, patent, or other proceeding,

applicant or patentee must comply with

a notice under this section by providing

a statement that applicant or patentee

does not possess any record of the

correspondence between the Office and

the applicant or patentee for such

application, patent, or other proceeding.

(b) With regard to a pending

application, failure to comply with one

of paragraphs (a)(1), (a)(2), or (a)(3) of

this section within the time period set

in the notice will result in abandonment

of the application.

Dated: October 31, 2000.

Q. Todd Dickinson,

Under Secretary of Commerce for Intellectual

Property and Director of the United States

Patent and Trademark Office.

[FR Doc. 00–29411 Filed 11–16–00; 8:45 am]

BILLING CODE 3510–16–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 2 and 90

[ET Docket No. 98–237; FCC 00–363]

3650–3700 MHz Government Transfer

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document allocates 50

megahertz of spectrum in the 3650–3700

MHz band to the fixed and mobile (base

stations) terrestrial services on a

primary basis. We are ‘‘grandfathering’’

existing fixed satellite service (‘‘FSS’’)

earth station sites in this band and, for

a limited time, will accept new

applications for FSS earth stations in

the vicinity (i.e., within 10 miles) of

these grandfathered sites to operate on

a co-primary basis in the band. We will

also permit additional FSS earth station

operations on a secondary basis. This

will ensure the continuity of FSS

operations and permit new FSS

operations to help alleviate congestion

in the adjacent 3700–4200 MHz FSS

band. Finally, to provide for

compatibility with both terrestrial fixed

service and FSS operations in the band,

we are limiting the terrestrial mobile

service use of the band to base station

operations.

DATES: Effective February 15, 2001.

FOR FURTHER INFORMATION CONTACT:

Rodney Conway, Office of Engineering

and Technology, (202) 418–2904.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s First

Report and Order, ET Docket No. 98–

237, FCC 00–363 adopted October 12,

2000, and released October 23, 2000.

The full text of this Commission

decision is available for inspection and

copying during normal business hours

in the FCC Reference Information

Center, Room CY–A257, 445 12th Street,

SW., Washington, DC, and also may be

purchased from the Commission’s

duplication contractor, International

69452 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

Transcription Service, (202) 857–3800,

1231 20th Street, NW. Washington, DC

20036.

Summary of the Report and Order

1. Based on the record in this

proceeding and the need to balance

competing demands for this spectrum,

we are adopting our proposal to allocate

the 3650–3700 MHz band for terrestrial

fixed service operations on a primary

basis. As indicated by the commenting

parties, allocation of this band on a

primary basis for fixed service will

facilitate the operation of a broad range

of new advanced services. We believe

that the 3650–3700 MHz band is

situated low enough in the

radiofrequency spectrum so as to permit

favorable transmission characteristics

which will allow the establishment of

service links that can cover significant

distances. In addition, 50 megahertz

will provide enough bandwidth to allow

for high speed digital data and video

services. These characteristics should

prove useful in establishing basic and

advanced telecommunications services

within rural areas of the country.

The need for advanced services in

rural areas has been well documented in

recent studies. These studies conclude

that Americans living in rural areas and

inner cities do not have access to

advanced services that are comparable

to services available to people living in

other areas. A lack of broadband

infrastructure could limit the potential

of these communities to attract and

retain businesses and jobs, especially

businesses that are dependent on

electronic commerce. Lack of

infrastructure could also restrict

community access to education, health

care, and recreational services. We

conclude that allocation of the 3650–

3700 MHz band for the fixed service

will serve the public interest by

providing broadband data services to

residential and business consumers,

particularly in rural areas. Additionally,

this allocation will facilitate an

alternative means of providing basic

telephone service, thus fostering a

competitive market structure for direct

public switched telephone network

(‘‘PSTN’’) access for rural and

underserved areas of the U.S. For

example, it could be used to provide

unserved persons with a wireless

connection to the PSTN and to

economically serve high-cost wireline

service areas, including rural areas.

2. Given the challenging spectrum

sharing environment involving the

relatively weaker satellite receive

signals, we remain concerned about

mobile station (i.e., roving handset)

operations in the 3650–3700 MHz band.

However, while we note that mobile

station operations may raise interference

concerns, we find that land mobile base

stations should be allowed to operate

within the 3650–3700 MHz band.

Mobile base stations are fixed and thus

do not raise the same interference

concerns as mobile handset operations.

Mobile base stations in the 3650–3700

MHz band might operate with land

mobile services offered in the 4940–

4990 MHz band.

Specifically, the land mobile base

stations could transmit in the 3650–

3700 MHz band, and the land mobile

receivers could use the 4940–4990 MHz

band to transmit back to the land mobile

base station. We therefore allocate the

3650–3700 MHz band to the mobile

service on a nationwide co-primary

basis with the fixed service. However,

we limit this allocation to base station

operations only. Consistent with the

international allocation in this band, we

are not permitting aeronautical mobile

operations. Land mobile base stations in

the 3650–3700 MHz band will be

subject to the same coordination

procedures as FS stations concerning

grandfathered Government

radiolocation and grandfathered FSS

operations.

3. In the Notice of Proposed Rule

Making and Order (‘‘NPRM and

Order’’), 64 FR 2462, January 14, 1999,

we imposed a freeze on the acceptance

of applications for earth station

operations in the 3650–3700 MHz band.

We proposed to permanently implement

this action, but sought comment on

alternative methods to meet the

terrestrial fixed service needs while

minimizing the effect on FSS

operations. While some satellite

providers indicate that sharing on a coprimary basis is possible, we decline to

adopt such a proposal. We recognize

that fixed operations and FSS share

spectrum in some bands. We will permit

sharing to the extent it is technically

possible and promotes efficient use of

the spectrum.

However, in this band, allowing FSS

on an unrestrained co-primary basis

would impede any potential widespread

use of the band for terrestrial services.

Due to the weak signals that are

received in the FSS, coordination with

the higher-powered terrestrial

operations would result in potentially

large geographic areas where terrestrial

services could not operate to avoid

interference to FSS. The size and shape

of these ‘‘exclusion zones’’ may be

different for each FSS earth station site

because factors such as shielding,

antenna orientation and terrain

elevation will vary from site to site.

These coordination requirements and

the presence of exclusion zones would

significantly increase transaction costs

and create a disincentive for

deployment of new terrestrial

operations. Thus, we find that

unrestrained deployment of FSS earth

stations could hinder or greatly inhibit

the opportunities for terrestrial

operations in the band.

4. Pursuant to the Balanced Budget

Act of 1997, the National

Telecommunications and Information

Administration (‘‘NTIA’’), identified the

3650–3700 MHz band as a possible

substitute for 15 megahertz at 1990–

2110 MHz. A statutory condition of the

substitution requires that alternative

spectrum ‘‘better serve the public

interest, convenience, and necessity’’

and that ‘‘the alternative could

reasonably be expected to produce

comparable receipts.’’ The other bands

identified by NTIA as alternatives to the

15 megahertz at 1990–2110 MHz

include: 944–960 MHz, 1390–1400

MHz, 1427–1432 MHz, 1670–1675 MHz,

and 2500–2690 MHz. As noted in our

Spectrum Policy Statement, the 944–960

MHz and 2500–2690 MHz bands are

already used extensively for nonGovernment services. We also observe

that portions of the 1390–1400 MHz and

1427–1432 MHz have already been

allocated and assigned to nonGovernment use. The remaining

portions of these bands and the 1670–

1675 MHz band are small,

noncontiguous segments and thus we

believe are unlikely to raise comparable

receipts as required by the BBA. Thus,

with the exception of 3650–3700 MHz,

none of the bands identified by NTIA is

available to satisfy the requirements of

the BBA. Because this 50 megahertz is

at a higher frequency than 15 megahertz

of spectrum identified in the 1990–2110

MHz band, additional bandwidth is

required to compensate for increased

path losses that occur in the 3650–3700

MHz band. For these reasons, we find

that the 3650–3700 MHz band is an

equivalent and viable substitute for 15

megahertz of spectrum at 1990–2110

MHz, taking into account differences in

propagation characteristics between the

two bands.

5. Because we are substituting the

3650–3700 MHz band for 15 megahertz

of spectrum in the 1990–2110 MHz

band, we must assign licenses for this

spectrum by competitive bidding to

satisfy the requirements of the BBA. Our

allocation to the terrestrial services will

enable us to establish service rules

consistent with the statutory mandate to

auction licenses for this spectrum.

6. Recently enacted legislation states

that the Commission ‘‘shall not assign

spectrum used for international or

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69453

global satellite services by competitive

bidding.’’ FSS in this band has

historically been restricted to

international, intercontinental services.

Given that this band is allocated for

space-to-Earth or downlink services,

this footnote implies that data is being

transmitted from another country. Even

if this restriction were not in place, the

international inter-continental nature of

the satellite systems deployed in this

band results in a footprint that extends

well beyond the U.S. border into other

countries. Because FSS is, or may be,

used for the provision of international

satellite services in this band, we

believe that the assignment of FSS

licenses by competitive bidding would

be inconsistent with the ORBIT Act.

While we do not plan to assign FSS

licenses for the 3650–3700 MHz band by

competitive bidding, we are taking a

number of steps to continue to

accommodate FSS use of the band.

Specifically, we are: (1) Grandfathering

existing FSS earth station sites on a coprimary basis; (2) providing a limited

opportunity to request additional coprimary FSS earth station sites within

10 miles of existing grandfathered FSS

earth station sites; and (3) allowing

other new FSS earth station sites on a

secondary basis. In addition, we note

that the 3600–3650 MHz band remains

available for FSS earth station

operations on a primary basis.

7. While incumbent FSS operations

could relocate to other bands that are

available for FSS, relocation would

necessitate significant reconfiguration

costs and disrupt continuity of

operations. Recognizing the importance

of providing continuity of service to the

public, we will grandfather existing FSS

earth station sites indefinitely. We also

believe that the Commission should not

mandate relocation of FSS operations to

other bands because FSS and terrestrial

operations, as limited by this First

Report and Order, are not

fundamentally incompatible. We are

not, however, precluding voluntary

negotiations between existing FSS

licensees and new terrestrial licensees

for relocation where feasible.

8. We realize that grandfathering

existing FSS earth station sites will

impose constraints on new terrestrial

operations. However, in many cases

these new terrestrial fixed and mobile

operations should be able to co-exist

with existing FSS earth stations by

‘‘engineering in’’ facilities to avoid

interference. Furthermore, many rural,

remote and less densely populated areas

that could benefit significantly from

deployment of terrestrial fixed and

mobile services are not effected by

existing grandfathered FSS earth station

sites. Thus, we conclude that

grandfathering existing FSS earth

station sites will not unreasonably

constrain the new terrestrial services.

9. In the Memorandum Opinion &

Order (MO&O), 65 FR 36900, June 12,

2000, the Commission did not establish

a time limit for the filing of FSS earth

station applications. However, because

the new FSS facilities permitted by the

MO&O could affect the use of the 3650–

3700 MHz band by the terrestrial

services, we now find it necessary to

establish a limit on the acceptance of

such applications and on the

construction of FSS facilities.

Accordingly, applications for FSS earth

stations in the 3650–3700 MHz band

within 10 miles of the authorized

coordinates of an existing grandfathered

earth station submitted prior to

December 1, 2000 and subsequently

authorized for service by the

Commission will be co-primary with the

terrestrial services. Such FSS earth

stations will be grandfathered as

described above. We consider the filing

of an FSS earth station application

before the cut-off date to be an

expression of immediate need

consistent with the intent of the MO&O.

However, applicants will be required to

complete construction and be

operational within one year from the

date of initial authorization. If a license

for an FSS earth station at a

grandfathered site is assigned or

transferred, the earth station will retain

its grandfathered status, provided there

is no change in the site coordinates. In

addition, certain modifications are

permitted to the extent there is no

change in the site coordinates. Such

modifications should be minor in nature

and can include changes in the

polarization and antenna orientation.

However, changes such as an increase in

the height of the center line of the dish

or a change in geographical coordinates

of greater than one second in either

latitude or longitude would not be

considered minor. Further, any change

in the earth station antenna dish size

that increases the likelihood of receiving

interference will not be considered a

minor change in facilities. If a license

for a grandfathered FSS station is

forfeited pursuant to section 25.161(c) of

the Commission’s rules, the site will no

longer be considered primary and will

lose its grandfathered status.

10. Subsequent to the end of the filing

window, we will continue to accept

applications for additional FSS earth

stations. These authorizations, however,

will be provided on a secondary basis

only in the 3650–3700 MHz band.

Secondary status will apply for new

earth station sites located both inside

and outside the coordination zones. We

note that FSS earth stations only receive

signals in this band, and thus cannot

cause interference. We also note that

secondary FSS earth stations are not

entitled to protection from primary

terrestrial operations. We find that

allowing additional FSS expansion on a

secondary basis will help alleviate

congestion in the adjacent C-band

(3700–4200 MHz) and allow FSS

providers to market available capacity,

while preserving opportunities for a

viable terrestrial services. In addition,

allowing additional FSS earth stations

on a secondary basis may enable FSS

providers licensed under Part 25 to

enter into private arrangements with

terrestrial service licensees in the

secondary market for access to this

spectrum. We note, however, that an

agreement between a terrestrial service

licensee and an FSS operator would not

elevate an FSS earth station in this band

to primary status relative to other FS

licensees.

11. Consistent with our regulatory

treatment of existing FSS earth stations,

we will grandfather the sites currently

used to provide TT&C operations. As a

result those sites will receive the same

protections as the other grandfathered

FSS earth stations in the 3650–3700

MHz band, except that they will be

protected only for the frequencies they

are authorized to use for TT&C

operations. Any other TT&C operations

site that receives grandfathering

protection in the 3650–3700 MHz band

will also be protected only for the

specific frequencies the site is

authorized to operate on pursuant to the

license it holds.

12. We deny the TT&C petition’s

request for a reservation of 10 MHz of

spectrum in the 3650–3700 MHz band

for TT&C operations, See Public Notice,

Report Number 2306, dated November

23, 1998. We find that reserving 10 MHz

of spectrum for TT&C operations for a

few earth station sites would be an

inefficient use of limited spectrum

resources. We have determined that the

public interest will be best served by

adopting a regulatory framework that

will foster the development and

deployment of terrestrial services in the

3650–3700 MHz band. Nothing in part

2 of the Commission’s rules prohibits

TT&C operations under the FSS

allocation in this band, or from

grandfathered FSS earth station

locations, provided the non-TT&C

operations of the satellite system

include operations in the fixed satellite

service.

13. In the NPRM and Order, the

Commission requested comment on a

proposal to delete the unused secondary

69454 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

1See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et

seq., has been amended by the Contract With

America Advancement Act of 1996, Public Law

104–121, 110 Stat. 847 (1996) (CWAAA). Title II of

the CWAAA is the Small Business Regulatory

Enforcement Fairness Act of 1996 (SBREFA).

2See 14 FCC Rcd 1295 (1999), 64 FR 2462,

January 14, 1999.

3See 5 U.S.C. 604.

non-Government radiolocation service

allocation in the 3650–3700 MHz band.

No comments were filed supporting the

continued secondary allocation for the

unused non-Government radiolocation

service and we find no sufficient reason

to maintain the secondary unused

allocation. Accordingly, we adopt the

proposal and delete the unused

secondary non-Government

radiolocation allocation to preserve the

availability of the spectrum for use by

the terrestrial services and FSS

operations. We note that sufficient

spectrum remains available within the

2900–3650 MHz band, on a secondary

basis, to accommodate non-Government

radiolocation service needs.

14. In the NPRM and Order, we noted

that, as a condition of the transfer of the

3650–3700 MHz band to a mixed-use

status, three Government radiolocation

sites would be allowed to operate

indefinitely in the band within an 80-

kilometer ‘‘radius of operation’’

surrounding each site. NTIA indicates

that a coordination distance of 80

kilometers around these three sites will

provide adequate identification of

spectrum conflicts, and that the

Commission should coordinate any nonGovernment terrestrial service or FSS

station within 80 kilometers of these

sites with NTIA’s Frequency

Assignment Committee on a case-bycase basis. In the NPRM and Order, we

requested comment on what actions

should be taken to achieve this

coordination in a manner to promote the

ability of new non-Government services

to co-exist with extremely high powered

Government mobile radar systems in the

adjacent 3300–3650 MHz band as well

as with occassional high powered inband use at three grandfathered

Government radiolocation sites.

15. Because the requirement to protect

the three grandfathered Government

radiolocation sites at an 80 kilometer

distance is a condition of the transfer of

this spectrum, we adopt NTIA’s

proposal for an 80 kilometer

coordination radius to ensure that these

sites will be protected from interference.

This requirement means that nonGovernment terrestrial service and FSS

stations located within 80 kilometers of

the three grandfathered Government

radiolocation stations may not cause

interference to the grandfathered

Government radiolocation operations,

that they must accept any interference

received from such operations, and that

they must be coordinated before

commencing operation. The

coordination requirement will apply to

all non-Government stations, not just

base station operations, because any

station within the coordination zone

could potentially cause interference to

the protected Government operations.

Given that coordination is required

only for areas within 80 kilometers of

three grandfathered Government

radiolocation sites, we find that this

should affect a limited number of nonGovernment stations. We adopt this

coordination requirement in a footnote

to the Table of Allocations contained in

Section 2.106 of the Commission’s rules.

The coordination procedures are

addressed as part of the service rules in

the Second NPRM, adopted

simultaneously with the First Report

and Order and published elsewhere in

this issue of the Federal Register.

16. In the NPRM and Order, the

Commission proposed to delete the

Government radiolocation service

allocation from the 3650–3700 MHz

band, except for grandfathering three

Government radio location sites that

would continue operations in the band.

The Commission also proposed to

permit Government radiolocation

operations in the 3650–3700 MHz band

on Naval vessels at an appropriate

distance from the shore. NTIA

recommends the inclusion of a footnote

to the Table of Frequency Allocations

indicating that off-shore Government

radiolocation operations may operate on

a noninterference basis with authorized

non-Government operations, and may

not hinder the implementation of any

non-Government operations. NTIA

recommends that a distance of 30

nautical miles (55.5 kilometers) from

shore be specified. It notes that this

recommended distance is based upon

limited information, and that a different

distance may later be found appropriate

after further measurements and

experience with non-Government use of

the 3650–3700 MHz band.

17. After carefully reviewing the

comments concerning this issue, we

find that NTIA’s recommended distance

of 30 nautical miles from the shore of

the U.S. or its territories may be

insufficient to protect non-Government

services that will operate in the band.

We note that NTIA has indicated

previously that the operational radius of

the three grandfathered Government

radiolocation operations is 80

kilometers. We note that 80 kilometers

is approximately equal to 44 nautical

miles. We are concerned that allowing

operation of Government radiolocation

stations any closer than 44 nautical

miles (80 kilometers) to the U.S. or its

territories will have the potential to

cause interference to non-Government

operations in the band. Therefore, we

specify a distance of 44 nautical miles,

which is equivalent to the 80 kilometers

grandfathered Government

radiolocation ‘‘radius of operation’’ as

described in the NPRM and Order.

NTIA’s request to include the

Government radiolocation allocation via

a footnote, as described, will not hinder

the introduction of non-Government

services in the band, given the 80-

kilometer protection limit.

Additionally, offshore Government

radiolocation stations will not be

allowed to cause interference to nonGovernment stations, irrespective of

their location. Further, if additional

technical information and analysis is

made available to us concerning any

change in the distance requirements, we

will consider altering the distance as

appropriate.

18. In the NPRM and Order, we

proposed to delete the unused

Government aeronautical

radionavigation service (ground based)

allocation in the 3650–3700 MHz band.

We see no useful purpose in continuing

this allocation. Therefore, for the

reasons set forth in the NPRM and

Order, we adopt our proposal to delete

the Government aeronautical

radionavigation service (ground based)

allocation from the 3650–3700 MHz

band to preserve the band for nonGovernment use.

Final Regulatory Flexibility Analysis

19. As required by the Regulatory

Flexibility Act (RFA),1 an Initial

Regulatory Flexibility Analysis (IRFA)

was incorporated into the Notice of

Proposed Rule Making and Order, in ET

Docket 98–237.2 The Commission

sought written public comments on the

proposals in the NPRM and Order,

including the IRFA. The Final

Regulatory Flexibility Analysis

(‘‘FRFA’’) in this First Report and Order,

conforms to the RFA.3

A. Need for and Objective of This Report

and Order

20. These rules allocate the 3650–

3700 MHz band to the fixed, mobile

(base stations only), and grandfathered

fixed satellite services on a co-primary

basis and for non-grandfathered fixed

satellite service earth station operations

on a secondary basis. These actions are

taken in order to make this transfer

spectrum available for commercial

services, including those of any small

businesses. The adoption of this First

Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations 69455

4See 5 U.S.C. 601(3) (incorporating by reference

the definition of ‘‘small business concern’’ in 5

U.S.C. 632).

5See 15 U.S.C. 632.

6 Id. Section 601(4).

7 Department of Commerce, U.S. Bureau of the

Census, 1992 Economic Census, Table 6 (special

tabulation of data under contract to Office of

Advocacy of the U.S. Small Business

Administration).

8 5 U.S.C. 601(5).

9 1992 Census of Governments, U.S. Bureau of the

Census, U.S. Department of Commerce.

10 Id.

11See 1992 Economic Census, U.S. Bureau of the

Census, Table 6 (special tabulation of data under

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

Business Administration).

12See 13 CFR 121.201, Standard Industrial

Classification (SIC) Code 4899.

13See 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 2D,

Employment Size of Firms, 1992, SIC Code 4899

(issued May 1995).

14See Implementation of Section 309(j) of the

Communications Act, Competitive Bidding, PP

Docket 93–253, Fifth Report and Order, 9 FCC Rcd

5532, 5581–82 (¶ 115) (1994), 59 FR 37566, July 22,

1994.

Report and Order will provide

additional spectrum to be used in

meeting the growing demand for fixed,

mobile (base station only) and fixed

satellite services among all sizes of

providers.

B. Legal Basis for Adopted Rules

21. The adopted rule changes are

authorized pursuant to Sections 4, 4(i),

157, 303, 303(g), 303(r), 307, and

332(c)(7) of the Communications Act of

1934, as amended, 47 U.S.C. 154, 154(i),

157, 303, 303(g), 303(r), 307, and

332(c)(7).

C. Summary of Significant Issues Raised

by Public Comments in Response to the

IRFA

22. No comments were filed in

response to the IRFA that was contained

in the NPRM and Order in this

proceeding.

D. Description and Estimate of the

Number of Small Entities to Which the

Rules Will Apply

23. For purposes of this First Report

and Order, the RFA defines a ‘‘small

business’’ to be the same as a ‘‘small

business concern’’ under the Small

Business Act, 15 U.S.C. 632, unless the

Commission has developed one or more

definitions that are appropriate to its

activities.4 Under the Small Business

Act, a ‘‘small business concern’’ is one

that: (1) Is independently owned and

operated; (2) is not dominant in its field

of operation; and (3) meets any

additional criteria established by the

Small Business Administration

(‘‘SBA’’).5

24. A small organization is generally

‘‘any not-for-profit enterprise which is

independently owned and operated and

is not dominant in its field.’’ 6

Nationwide, as of 1992, there were

approximately 275,801 small

organizations.7 The definition of ‘‘small

governmental jurisdiction’’ is one with

populations of fewer than 50,000.8

There are 85,006 governmental

jurisdictions in the nation.9 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 has populations of fewer than

50,000. However, this number includes

38,978 counties, cities and towns, and

of those, 37,556, or 96 percent, have

populations of fewer than 50,000.10 The

Census Bureau estimates that this ratio

is approximately accurate for all

government entities. Thus, of the 85,006

governmental entities, we estimate that

96 percent, or about 81,600, are small

entities that may be affected by our

rules. Nationwide, there are 4.44 million

small business firms, according to SBA

reporting data.11

25. The Commission has not

developed a definition of small entities

applicable to fixed satellite service

licensees. Therefore, the applicable

definition of small entity is the

definition under the SBA rules

applicable to Communications Services,

Not Elsewhere Classified. This

definition provides that a small entity is

one with no more than 11.0 million in

annual receipts.12 According to Census

Bureau data, there are 848 firms that fall

under the category of Communications

Services, Not Elsewhere Classified. Of

those, approximately 775 reported

annual receipts of 11 million or less and

qualify as small entities.13

26. As described, the designations we

hereby adopt will permit wireless

services, as broadly defined to include

fixed and mobile base station

operations. Neither the Commission nor

the SBA has developed a definition of

small entities applicable to wireless

services licensees. Therefore, the

applicable definition of small entity is

the definition under the SBA rules

applicable to radiotelephone (wireless)

companies.

27. The rules adopted by the First

Report and Order will affect applicants

who wish to provide fixed, mobile (base

stations only) and/or fixed satellite

services in the 3650–3700 MHz band.

Pursuant to 47 CFR 24.702(b) the

Commission has defined ‘‘small entity’’

for Blocks C and F broadband licensees

as firms that had average gross revenues

of less than $40 million dollars in the

three previous calendar years. This

Commission regulation defining ‘‘small

entity’’ in the context of broadband PCS

auctions has been approved by the

SBA.14 With respect to the 3650–3700

MHz license applicants, we propose to

use the small entity definition adopted

in the Broadband PCS proceeding.

28. The Commission has not yet

determined how many licenses will be

awarded, nor will it know how many

licensees will be small businesses until

the auction is held. Even after that, the

Commission will not know how many

licensees will partition their license

areas or disaggregate their spectrum

blocks, if partitioning and

disaggregation are allowed which may

result in additional small entities. In

view of our lack of knowledge of the

entities which will seek licenses in the

3650–3700 MHz band, we will assume

that, for the purposes of our evaluations

and conclusions in the FRFA, all of the

prospective licensees are small entities,

as that term is defined by the SBA or

our definitions for the 3650–3700 MHz

band. We invite comment on this

analysis.

E. Description of Projected Reporting,

Recordkeeping and Other Compliance

Requirements

29. The rules adopted in the First

Report and Order allocate the 3650–

3700 MHz band to the fixed, mobile

(base station operation, and

grandfathered fixed satellite services on

a co-primary basis and for nongrandfathered fixed satellite service

earth station operations on a secondary

basis. These adopted rules do not

require any additional reporting,

recordkeeping or other compliance

requirements. Rules that may apply to

the auctioning and licensing of these

operations or other operating

requirements will be addressed in the

Second Notice of Proposed Rule Making

in this proceeding and any reporting,

recordkeeping and other compliance

requirements will be addressed then.

F. Steps Taken To Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

30. No petition for rule making was

filed to initiate this proceeding and

there are no comments in this

proceeding that suggest alternatives to

the adopted allocation. We requested

comment on alternatives that might

minimize the amount of economic

impact on small entities and no

alternatives were offered. The allocation

adopted in this First Report and Order

represents the most efficient and least

69456 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

restrictive method to accomplish the

Commission’s policies and objectives.

G. Federal Rules That May Duplicate,

Overlap, or Conflict With the Rules

31. None.

H. Report to Congress

32. The Commission will send a copy

of the First Report and Order, including

this FRFA, in a report to be sent to

Congress pursuant to the Small Business

Regulatory Enforcement Fairness Act of

1996, see 5 U.S.C. 801(a)(1)(A). In

addition, the Commission will send a

copy of the First Report and Order,

including FRFA, to the Chief Counsel

for Advocacy of the Small Business

Administration. See 5 U.S.C. 604(b).

List of Subjects in 47 CFR Parts 2 and

90

Communications equipment, Radio,

Reporting and recordkeeping

requirements.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons discussed in the

preamble, the Federal Communications

Commission amends 47 CFR parts 2 and

90 as follows:

PART 2—FREQUENCY ALLOCATIONS

AND RADIO TREATY MATTERS;

GENERAL RULES AND REGULATIONS

1. The authority citation for part 2

continues to read as follows:

Authority: 47 U.S.C. 154, 302a, 303, and

336, unless otherwise noted.

2. Section 2.106, the Table of

Frequency Allocations, is amended as

follows:

a. Page 54 is revised.

b. In the list of United States (US)

Footnotes, footnote US110 is revised

and footnotes US348 and US349 are

added.

c. In the list of Non-Federal

Government (NG) Footnotes, footnotes

NG169 and NG170 are added.

d. In the list of Federal Government

(G) Footnotes, footnotes G59 and G110

are revised.

The revisions and additions read as

follows:

§ 2.106 Table of Frequency Allocations.

* * * * *

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69458 Federal Register / Vol. 65, No. 223 / Friday, November 17, 2000 / Rules and Regulations

* * * * *

United States (US) Footnotes

* * * * *

US110 In the bands 3100–3300 MHz,

3500–3650 MHz, 5250–5350 MHz, 8500–

9000 MHz, 9200–9300 MHz, 9500–10000

MHz, 13.4–14.0 GHz, 15.7–17.3 GHz, 24.05–

24.25 GHz and 33.4–36.0 GHz, the nonGovernment radiolocation service shall be

secondary to the Government radiolocation

service and to airborne doppler radars at

8800 MHz, and shall provide protection to

airport surface detection equipment (ASDE)

operating between 15.7–16.2 GHz.

* * * * *

US348 The band 3650–3700 MHz is also

allocated to the Government radiolocation

service on a primary basis at the following

sites: St. Inigoes, MD (38° 10′ N., 76° 23′ W.);

Pascagoula, MS (30° 22′ N., 88° 29′ W.); and

Pensacola, FL (30° 21′ 28′′ N., 87° 16′ 26′′ W.).

All fixed and fixed satellite operations within

80 kilometers of these sites shall be

coordinated through the Frequency

Assignment Subcommittee of the

Interdepartmental Radio Advisory Committee

on a case-by-case basis.

US349 The band 3650–3700 MHz is also

allocated to the Government radiolocation

service on a non-interference basis for use by

ship stations located at least 44 nautical

miles in off-shore ocean areas on the

condition that harmful interference is not

caused to non-Government operations.

* * * * *

Non-Federal Government (NG) Footnotes

* * * * *

NG169 After December 1, 2000,

operations on a primary basis by the fixedsatellite service (space-to-Earth) in the band

3650–3700 MHz shall be limited to

grandfathered earth stations. All other fixedsatellite service earth station operations in

the band 3650–3700 MHz shall be on a

secondary basis. Grandfathered earth stations

are those authorized prior to December 1,

2000, or granted as a result of an application

filed prior to December 1, 2000, and

constructed within 12 months of initial

authorization. license applications for

primary operations for new earth stations,

major amendments to pending earth station

applications, or applications for major

modifications to earth station facilities filed

on or after December 18, 1998, and prior to

December 1, 2000, shall not be accepted

unless the proposed facilities are in the

vicinity (i.e., within 10 miles) of an

authorized primary earth station operating in

the band 3650–3700 MHz. License

applications for primary operations by new

earth stations, major amendments to pending

earth station applications, and applications

for major modifications to earth station

facilities, filed after December 1, 2000, shall

not be accepted, except for changes in

polarization, antenna orientation or

ownership of a grandfathered earth station.

NG170 In the band 3650–3700 MHz, the

mobile except aeronautical mobile service is

limited to base station operations. These base

stations are subject to the same coordination

procedures as fixed service operations in the

band 3650–3700 MHz.

Federal Government (G) Footnotes

* * * * *

G59 In the bands 902–928 MHz, 3100–

3300 MHz, 3500–3650 MHz, 5250–5350

MHz, 8500–9000 MHz, 9200–9300 MHz,

13.4–14.0 GHz, 15.7–17.7 GHz and 24.05–

24.25 GHz, all Government non-military

radiolocation shall be secondary to military

radiolocation, except in the sub-band 15.7–

16.2 GHz airport surface detection equipment

(ASDE) is permitted on a co-equal basis

subject to coordination with the military

departments.

* * * * *

G110 Government ground-based stations

in the aeronautical radionavigation service

may be authorized between 3500–3650 MHz

when accommodation in the band 2700–2900

MHz is not technically and/or economically

feasible.

* * * * *

PART 90—PRIVATE LAND MOBILE

RADIO SERVICES

3. 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).

4. Section 90.103(b) is amended by

removing the entry 3500 to 3700 under

the heading ‘‘megahertz’’ in the

frequency table and adding in numerical

order the entry 3500 to 3650 to read as

follows:

§ 90.103 Radiolocation Service.

* * * * *

(b) * * *

RADIOLOCATION SERVICE FREQUENCY

TABLE

Frequency of band Class of

station(s)

Limitation

*****

Megahertz

*****

3500 to 3650 ................ do ............. 12

*****

* * * * *

[FR Doc. 00–28819 Filed 11–16–00; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 73 and 74

[MM Docket No. 99–25; FCC 00–349]

Creation of Low Power Radio Service

AGENCY: Federal Communications

Commission.

ACTION: Final rule, correction.

SUMMARY: This document corrects errors

in the final rule portion regarding low

power radio service published in the

Federal Register of November 9, 2000.

DATE: Effective December 11, 2000.

FOR FURTHER INFORMATION CONTACT: Julie

Barrie, (202) 418–2130, Policy and Rules

Division, Mass Media Bureau.

SUPPLEMENTARY INFORMATION: This

contains corrections to the rule portion

of the Commission’s Memorandum

Opinion and Order on Reconsideration

(‘‘MO&O’’), MM 99–25; FCC 00–349, 65

FR 67289 (November 9, 2000). The full

text of the Commission’s MO&O is

available for inspection and copying

during normal business hours in the

FCC Dockets Branch (Room TW–A306),

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

complete text of this MO&O may also be

purchased from the Commission’s copy

contractor, International Transcription

Services, (202) 857–3800, 1231 20th St.,

NW., Washington, DC 20036.

Correction

§ 73.810 [Corrected]

1. In § 73.810, on page 67302, in the

second column, paragraphs (b)(i), (b)(ii),

(b)(iii), and (b)(iv) are corrected to read

(b)(1), (b)(2), (b)(3), and (b)(4).

§ 73.860 [Corrected]

2. In § 73.860, on page 67304, in the

first column, paragraphs (b)(i), (b)(ii),

(b)(iii), and (b)(iv) are corrected to read

(b)(1), (b)(2), (b)(3), and (b)(4).

William F. Caton,

Deputy Secretary.

[FR Doc. 00–29492 Filed 11–16–00; 8:45 am]

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