9636 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 1, 2, 27, and 97

[GN Docket No. 96–228; FCC 97–50]

The Wireless Communications Service

(‘‘WCS’’)

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: On February 19, 1997, the

Federal Communications Commission

(‘‘Commission’’) adopted a Report and

Order establishing rules and policies for

a new Wireless Communications

Service (‘‘WCS’’) in the 2305–2320 and

2345–2360 MHz bands. This action is

being taken pursuant to the Omnibus

Consolidated Appropriations Act, 1997.

The effect of this action is to make thirty

megahertz of spectrum available for the

provision of fixed, mobile, and

radiolocation services, and satellite

Digital Audio Radio Services.

EFFECTIVE DATE: March 3, 1997.

FOR FURTHER INFORMATION CONTACT:

Matthew Moses or Josh Roland,

Wireless Telecommunications Bureau,

(202) 418–0660.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order in GN Docket No. 96–228.

The complete Report and Order 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 Service,

(202) 857–3800, 2100 M Street, N.W.,

Washington, D.C. 20037. The complete

Report and Order is also available on

the Commission’s Internet home page

(http://www.fcc.gov).

Summary of the Report and Order

1. In this Report and Order, the

Commission fulfills the Congressional

mandate expressed in section 3001 of

the Omnibus Consolidated

Appropriations Act for 1997, Public

Law 104–208, 110 Stat. 3009 (1996)

(‘‘Appropriations Act’’), to reallocate

and assign the use of the frequencies at

2305–2320 and 2345–2360 MHz. The

Commission considers the proposals set

forth in the Notice of Proposed Rule

Making concerning amendment of the

Commission’s rules to establish the

WCS. See Amendment of the

Commission’s Rules To Establish Part

27, the Wireless Communications

Service, GN Docket No. 96–228, Notice

of Proposed Rule Making, FCC 96–441,

61 FR 59048 (November 20, 1996)

(‘‘NPRM’’).

A. Licensing Plan for WCS

i. Permitted Services

2. In the NPRM, the Commission

concluded that the Appropriations Act’s

reallocation directive means that the

Commission may allocate the 2305–

2320 and 2345–2360 MHz bands to any

or all radio services contained in the

International Table of Frequency

Allocations applicable to the United

States. The Commission proposed to

allocate this spectrum to the fixed,

mobile, and radiolocation services on a

primary basis, which are all the services

authorized on a primary basis for these

entire bands in the International Table.

The Commission also proposed to retain

the current primary audio broadcastingsatellite allocation that exists in 45 of

the 50 MHz of these bands (2310–2320

and 2345–2360 MHz). The Commission

did not propose to change the Amateur

Radio Service secondary allocation of

the 2300–2310 MHz band, nor the

authorization for the 2310–2360 MHz

band to be used on a secondary basis by

aeronautical telemetry operations.

3. The Commission noted that in its

Satellite DARS NPRM it had requested

comment on whether it should delay

issuing licenses for DARS in the 2310–

2320 MHz portion of the DARS

allocated spectrum due to the number

and type of Canadian fixed service

facilities in that band. See

Establishment of Rules and Policies for

the Digital Audio Radio Satellite Service

in the 2310–2360 MHz Frequency Band,

IB Docket No. 95–91, Notice of Proposed

Rule Making, 11 FCC Rcd 1, 60 FR

35166 (July 6, 1996) (‘‘Satellite DARS

NPRM’’). The Commission also noted

that in February 1996, it had informed

DARS applicants that previously

unknown additional Canadian

operations existed in the 2310–2360

MHz band that particularly impacted

potential use of the 2345–2360 MHz

portion of the band for DARS.

Accordingly, the Commission requested

comment on the feasibility of satellite

DARS in parts of the 2305–2320 and

2345–2360 MHz bands.

4. The Commission concludes that

under the totality of circumstances

presented, the 2310–2320 and 2345–

2360 MHz bands will be allocated on a

primary basis for fixed, mobile,

radiolocation, and broadcasting-satellite

(sound) services without further

designations. The 2305–2310 MHz band

will be allocated on a primary basis for

fixed, mobile except aeronautical

mobile, and radiolocation services. WCS

licensees themselves will determine the

specific services they will provide

within their assigned spectrum and

geographic areas. The services that can

be provided, however, will be subject to

specific technical rules we adopt infra

to prevent interference to other services.

The Commission emphasizes that with

the current state of technology there is

a substantial risk that these rules will

severely limit, if not preclude, most

mobile and mobile radiolocation uses.

Fixed uses will be less severely affected,

but still will require equipment that will

meet technical standards higher than

those used for similar purposes on

comparable bands, and therefore may be

more costly.

5. The Commission believes that in

this instance a flexible use allocation

serves the public interest. Permitting a

broad range of services to be provided

on this spectrum will permit the

development and deployment of new

telecommunications services and

products to consumers. Moreover, WCS

licensees will not be constrained to a

single use of this spectrum and,

therefore, may offer a mix of services

and technologies to their customers.

6. The Commission recognizes the

concerns raised by commenters about

the general application of flexible

allocations, and it is our intent to

address those concerns fully in future

proceedings. In this regard, the

Commission emphasizes that its

decision in this instance to adopt a

broadly defined service for this

spectrum should not be interpreted as a

finding on the merits of flexibility as

general allocation policy or prejudging

the merits of flexibility in any other

proceeding before us. Rather, the

Commission’s decision here is based on

the totality of the circumstances and

facts particular to this proceeding, not

the least of which is the short time

mandated by Congress to bring this

spectrum to auction. Importantly, in this

particular instance the record does not

convincingly demonstrate how this

spectrum should be distributed among

particular uses in a manner that would

provide maximum benefit to the public.

Specific services advocated by

commenters span a wide range of

potential uses, including interactive,

high-speed, broadband data services,

such as wireless Internet access; return

links for interactive cable and

broadcasting service; mobile data;

satellite DARS; fixed terrestrial use; new

and innovative services; radiolocation;

educational applications; and wireless

local loop. While individual

commenters advocate specific

allocations for one or more of these

uses, the Commission has no clear basis

in the current record to prefer some uses
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9637

over others. Thus, limiting the use as

some have suggested would risk

precluding potentially beneficial

services.

7. The Commission finds that

allocating this spectrum for fixed,

mobile, radiolocation, and audio

broadcasting-satellite services is

consistent with the international

agreements governing this spectrum, the

Appropriations Act, the

Communications Act, and Commission

precedent. The Commission notes that

the Appropriations Act specifically

directs the Commission to reallocate the

WCS frequencies to ‘‘wireless services

that are consistent with international

agreements concerning spectrum

allocations.’’ See Appropriations Act,

section 3001(a)(1). Nothing in this

provision or its legislative history

restricts the Commission’s authority to

assign or allocate this spectrum to more

than one permissible use. Additionally,

the Commission’s allocation to more

than one service is consistent with the

Commission’s obligations under the

Communications Act. Section 303 of the

Communications Act does not restrict

the Commission’s discretion to

prescribe the nature of the service to be

rendered over radio frequencies or its

authority to allocate frequencies to the

various classes of stations or assign

spectrum to stations for more than one

permissible use. With respect to

allocation decisions, the courts have

accorded ‘‘substantial deference’’ to

Commission determinations.

8. Commission precedent also

supports the permissibility of allocating

spectrum in a manner that allows for a

broad range of uses. The Commission

noted in the NPRM that the Commission

took this approach in establishing

GWCS in August of 1995, where it

concluded that authorizing a wide

variety of services bounded only by

international allocations comported

with its statutory authority and served

the public interest by fostering the

provision of a mix of services. Because

GWCS licenses have yet to be auctioned,

the evidence regarding the benefits of

having allocated that spectrum to all

uses permitted by the Commission’s

international obligations is

inconclusive.

9. The Commission continues to

believe that such broad allocations are

permitted under the Communications

Act, and the Commission notes that it

also recently permitted CMRS licensees

to provide fixed and mobile services.

See Amendment of the Commission’s

Rules to Permit Flexible Service

Offerings in the Commercial Mobile

Radio Services, WT Docket No. 96–6,

First Report and Order, 11 FCC Rcd

8965, 61 FR 43721 (August 26, 1996).

The action the Commission takes here is

consistent with this precedent. The

Commission notes also that its service

designation decision is not so broad as

to allow use of the WCS frequencies for

any purpose whatsoever. For example,

the international allocation for part of

this spectrum is for audio broadcast

satellite services, and therefore satellite

services will be limited to this type of

satellite services.

10. The Commission disagrees

specifically with those commenters who

assert that allocating these frequencies

for fixed, mobile, radiolocation and

audio broadcasting-satellite services is

an impermissible allocation by auction

or otherwise inconsistent with Section

309(j). The allocation decision the

Commission makes in this proceeding is

based on the Commission’s finding that

under the circumstances presented,

including the statutory deadline and the

lack of a record that supports a specific

allocation, this allocation to fixed,

mobile, radiolocation, and audio

broadcasting-satellite services comports

with the public interest and with the

Commission’s statutory authority. Thus,

the Commission’s decision to allocate

this spectrum in this manner is

unrelated to its decision to award WCS

licenses through competitive bidding.

11. In addition, the Commission

disagrees with those commenters’

arguments that by adopting its proposal

the Commission is impermissibly

delegating its authority to allocate

spectrum and set technical rules to

other parties. The allocation the

Commission makes here is not entirely

open-ended, and auction winners will

be subject to strict technical rules that

are necessary to prevent interference to

other services and which also will likely

limit the actual services they may be

able to offer. As discussed infra, these

technical rules are necessary to prevent

interference. Therefore, the Commission

has not delegated to private parties its

responsibility to allocate spectrum and

adopt appropriate technical standards.

12. The Commission also agrees with

commenters such as Lucent, Motorola,

Nortel and CTIA who argue that

economies of scale in equipment supply

are important and recognize that our

decision to adopt a flexible allocation

may make achieving those economies of

scale more difficult. However, the

Commission has taken several steps that

it hopes will assist licensees in

achieving economies of scale. For

example, the Commission has

established relatively large geographic

service areas and spectrum block sizes.

The Commission also is adopting

licensing and auction rules designed to

facilitate geographic area and spectrum

aggregations that may foster economies

of scale and, in developing their bidding

and aggregation strategies, bidders can

consider the benefits of such economies.

The Commission believes that the

allocation and service rules adopted

herein comply with all legal

requirements and, considering the

totality of the circumstances, serve the

public interest.

13. The Commission does not believe

that the public interest will be served by

prohibiting use of this spectrum for

CMRS. It has been the Commission’s

consistent policy to actively seek to

increase competition in

telecommunications markets, and its

decision here is consistent with that

policy. Indeed, in the Omnibus Budget

Reconciliation Act of 1993, Public Law

103–66, Congress ordered the transfer of

a large amount of government spectrum

to the Commission’s jurisdiction for

nongovernmental use. CMRS licensees

have no reasonable basis to expect that

the Commission would limit the

possibility of further entry by

withholding spectrum or by

unnecessarily restricting the permissible

uses of newly allocated spectrum.

However, the Commission notes that,

given the out-of-band emission limits it

adopt for WCS, technology will likely

severely limit, if not preclude, most

mobile services on this spectrum, at

least in the near term.

14. Some commenters express

concern with difficulties in controlling

interference. The Commission is

responding to this concern by setting

specific limits on field strength at the

geographic boundaries between

licensees and on emissions outside the

assigned spectrum blocks. While the

Commission recognizes that different

system designs have different

sensitivities to interference and cause

different types and degrees of

interference, the Commission believes

that these limits provide a reasonable

degree of predictability as to the

magnitude of interfering signals one can

expect from adjacent areas and

spectrum blocks. However, the

Commission recognizes that these outof-band and out-of-area power limits do

not by themselves ensure interferencefree operation. They control primary

factors that determine the amount of

interference a licensee can expect from

neighboring areas and blocks, but there

are many other factors that affect

interference that they do not control and

that are not under the receiver owner’s

direct control. For example, the level of

interference caused to a licensee’s

receivers from transmitters in an

adjacent spectrum block may also
9638 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

depend on the number of such

transmitters, their location relative to

the receivers, their antenna directivity

and polarization, their duty cycle, and

other factors. Since these factors are not

regulated by the Commission, they

create uncertainty about the amount of

interference a licensee may receive.

Licensees can reduce this uncertainty by

coordinating with their neighbors, and

the Commission encourages them to do

so. They also can reduce the risk of

interference by properly designing and

engineering their receiving systems and

by using technologies that reduce their

receivers’ susceptibility to unwanted

signals. Also, bidders can reduce their

exposure to interfering signals from

neighboring spectrum blocks or areas by

aggregating adjoining licenses in the

auction or through post-auction

transactions. But again the Commission

emphasizes that interference-free

operation is not assured by the

Commission’s limits. Each WCS

licensee must ultimately assume

responsibility for protecting its own

receiving system from interference from

transmitters in adjoining blocks and

areas that meet the Commission’s limits,

and applicants should understand this

before they bid for these licenses.

15. Finally, in the NPRM, the

Commission proposed to permit

amateurs to continue to use the 2305–

2310 MHz band on a secondary basis.

The Commission also proposed to

permit continued flight test and vehicle

launch use of the 2310–2320 and 2345–

2360 MHz bands on a secondary basis.

The Commission is adopting these

proposals. The effect of this action is

that amateurs and aeronautical

telemetry operations will be able to

continue to use these bands so long as

these operations do not interfere with

WCS service. In addition, the

Commission updates and clarifies the

frequency sharing requirements for

amateur use of the 2300–2310 MHz and

adjacent bands. The Commission also

clarifies that footnotes US276 and

US339 permit the use of various

frequencies for telemetering and

associated telecommand operations of

launch vehicles ‘‘on a co-equal basis by

Government and non-Government

stations.’’ With respect to Primosphere’s

request that all flight test operations be

precluded from the WCS bands, the

Commission finds no basis for

precluding such operations on a

secondary basis. The Commission

makes clear that if secondary flight test

operations cause harmful interference to

WCS operations, they must immediately

either correct the problem or cease

operations. If such operations prove to

be a problem, however, the Commission

may re-evaluate this issue in the future.

ii. Spectrum for Each License

16. In the NPRM, the Commission

requested comment on the appropriate

amount of spectrum to be provided for

each WCS license at 2.3 GHz. The

Commission specifically requested

comment on whether 5, 10, 15 or 30

MHz is the most suitable amount. The

Commission noted that 5 MHz

bandwidths would be sufficient for

paging, radiolocation, dispatch, or

point-to-point backbone operations. The

Commission also observed that larger

bandwidths, such as 10 to 15 MHz,

would allow more direct competition

with existing fixed and mobile service

providers and may also better support

some multi-channel satellite DARS. The

Commission also asked for comment on

whether a single 30 MHz license would

offer the most effective approach for

providing new two-way fixed or pointto-multipoint uses, such as

interconnection with the Internet and

other digital network services. Finally,

the Commission requested comment on

what size spectrum block could best

support, in part or fully, the provision

of fixed local loop services.

17. The Commission also sought

comment on whether the WCS spectrum

should be assigned on a paired or

unpaired basis. Alternatively, the

Commission requested comment on an

approach where spectrum bandwidths

or pairing of the spectrum are

determined through the competitive

bidding process. The Commission noted

that the 30 MHz of spectrum could be

divided into 5 MHz blocks and the

amount of spectrum and the location of

the spectrum (i.e., contiguous or paired)

for each WCS licensee could be

determined through the auction process.

The Commission further invited

commenting parties to suggest

additional alternatives for both the

amount of spectrum and the size of

service areas for WCS licensees. The

Commission noted that the

Appropriations Act requires that we

conclude initial licensing of this

spectrum and the collection of all

bidding proceeds no later than

September 30, 1997. The Commission

stated its belief that licensing the WCS

spectrum for service to large areas, with

relatively few licenses to be awarded,

would speed the WCS licensing process

and the collection of bidding proceeds,

consistent with the requirements of the

Appropriations Act. Whatever initial

licensing approach is chosen for WCS,

the Commission proposed to permit

spectrum and service area aggregation

through the auction process, e.g., the

Commission would permit parties to bid

for more than one license in each

geographic area and for multiple areas.

18. The Commission observes that the

commenting parties generally support

either 5 MHz unpaired channel blocks

or 10 MHz paired channel blocks, with

the vast majority finding that at least 10

MHz is needed to provide certain WCS

services in an efficient and competitive

manner. The Commission notes,

however, that the potential uses of the

WCS spectrum will be greatly affected

by the out-of-band emission limits,

discussed in Section III.D.7 infra,

needed to protect satellite DARS

reception in the 2320–2345 MHz band.

In particular, these limits will have the

greatest impact on the portion of the

WCS spectrum immediately adjacent to

the satellite DARS band, namely, the

WCS spectrum at 2315–2320 MHz and

2345–2350 MHz. In order to account for

this effect in light of the overall record

of this proceeding, and to minimize its

impact on WCS operations generally,

the Commission finds that WCS should

be licensed initially as two 10 MHz

channel blocks (with 5 MHz of this

spectrum from the lower band paired

with 5 MHz from the upper band) plus

two 5 MHz blocks (those immediately

adjacent to the satellite DARS

spectrum). The Commission believes

that this channelization will permit

WCS licensees to offer a wide variety of

services. For example, the record

suggests that the 10 MHz channel blocks

represent the minimum amount of

spectrum needed to support certain data

and wireless local loop services,

including wireless Internet access. In

addition, the Commission believes that

providing for 10 MHz of spectrum on a

paired basis would allow for the

introduction of both one-way and twoway services and would facilitate the

implementation of a variety of

technologies. In the spectrum adjacent

to the satellite DARS band, however, the

Commission believes that WCS mobile

operations may be prohibitively

expensive and technologically infeasible

for a substantial period of time. Also,

the narrow (i.e., 30 MHz) transmit and

receive separation between the 2315–

2320 MHz and 2345–2350 MHz bands

would substantially increase the cost of

equipment employing traditional

frequency division duplex technology if

pairing of these blocks were required.

By making this spectrum available

initially to WCS licensees as two 5 MHz

unpaired channel blocks, the spectrum

may have increased utility for satellite

DARS and a variety of WCS fixed

operations, especially those employing

time division duplex technology. Also,
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9639

the Commission will not preclude WCS

licensees from pairing this spectrum on

their own initiative, whether through

submission of winning bids for each

block at auction or through spectrum

aggregation in the aftermarket. Another

advantage of this overall initial

licensing approach is that the offering of

only four licenses in each service area

will allow the WCS auction to be

completed within the timetable

contemplated by the Appropriations

Act. In this respect, the Commission

believes that this licensing plan is

superior to other options suggested by

the commenters that would involve

greater licensing complexity and

probably greater delay. The initial

channel blocks the Commission has

selected are shown in the Table below.

Channel

block Frequency range

A ............ 2305–2310 and 2350–2355 MHz.

B ............ 2310–2315 and 2355–2360 MHz.

C ............ 2315–2320 MHz.

D ............ 2345–2350 MHz

19. As discussed, infra, the

Commission also is allowing for

spectrum aggregation and

disaggregation, without restriction, so

that parties, for example, desiring to

employ technology that requires

unpaired spectrum or asymmetrically

paired spectrum can either disaggregate

the channels initially offered or

purchase additional needed amounts of

spectrum in the after-market. In

addition, applicants may bid on all four

channel blocks in a service area and, if

successful, render the type of services

addressed by those commenters

supporting the licensing of WCS

spectrum in a single 30 MHz block.

Thus, the initial offering of WCS

spectrum in 5 MHz or 10 MHz blocks

does not preclude the offering of

services which might require a greater

amount of spectrum. Further, the

disaggregation flexibility afforded

licensees potentially allows provision of

WCS services which require less

spectrum than contained in the initial

blocks. In sum, initially licensing the

WCS spectrum according to the channel

block plan identified above and

allowing for spectrum aggregation and

disaggregation will permit a wide

variety of applicants to provide services

and satisfy the requirements of the

Appropriations Act. The Commission

also believes that providing for four

blocks, along with our spectrum

disaggregation rules, will promote the

objectives of Section 309(j)(4)(C) of the

Communications Act by providing for

distribution of licenses and services

among geographic areas and providing

greater opportunity for a wide variety of

applicants, including small businesses

and other designated entities, than

would be possible under a single 30

MHz block plan.

iii. Licensed Service Areas

20. In deciding on the appropriate

service areas size for WCS licenses, the

Commission must balance several

factors. The Commission wishes to

encourage the rapid deployment of new

telecommunications technologies and

services on WCS spectrum; thus, the

Commission must assess the use or uses

to which this spectrum is likely to be

put and determine the geographic scope

that would best facilitate rapid

deployment thereof. In addition, the

Commission believes that because this

spectrum has not heretofore been used

to provide commercial services and no

equipment has yet been developed for

use in this band, consumers would

benefit if the WCS band plan enables

equipment manufacturers to realize

economies of scale that will translate to

lower equipment costs to service

providers. The Commission also

recognizes that the Appropriations Act

directed it to ‘‘assign the use of (WCS)

frequencies by competitive bidding

pursuant to section 309(j).’’

Appropriations Act, section 3001(a)(2).

Section 309(j) of the Communications

Act includes as objectives for

competitive bidding the avoidance of

excessive concentration of licenses and

the dissemination of licenses among a

wide variety of applicants. See 47 U.S.C.

309(j)(3)(B). In addition, the

Commission is mindful of our statutory

obligation to conduct the auction for

WCS licenses to ensure that all proceeds

are deposited by September 30, 1997,

and of our experience in previous

auctions, which has shown that

simultaneous, multiple round auctions

for a larger number of licenses are more

complex and take longer to complete

than similar auctions involving fewer

licenses. Finally, the Commission notes

that aggregation of both spectrum and

service areas through the auction

process has proven to be an effective

method of allowing bidders to acquire

the right amount of spectrum for their

business needs.

21. Balancing the various factors

noted above, the Commission concludes

that WCS will be licensed in two ways.

First, with respect to the C and D blocks,

WCS will be licensed on the basis of

regional areas similar to those used in

our narrowband PCS rules. In WCS,

however, the Commission will define

the regions by aggregating EAs in the

continental United States into 6 larger

groupings. The Commission will refer to

these service areas as Regional

Economic Area Groupings (REAGs). In

addition, consistent with the

Commission’s approach in other

services, the Commission will create

separate REAGs covering the five U.S.

possessions, as follows: Guam and the

Northern Mariana Islands (REAG # 9),

Puerto Rico and the U.S. Virgin Islands

(REAG # 10) and American Samoa

(REAG # 11), as well as separate service

areas for Alaska (REAG # 7) and Hawaii

(REAG # 8). As discussed more fully

infra, the Commission also will create a

service area in the Gulf of Mexico

(REAG # 12). Second, the A and B blocks

will be licensed in smaller areas, by

aggregating EAs into 46 areas (to be

called Major Economic Areas, or MEAs)

in the continental United States and an

additional 6 areas covering Alaska

(MEA # 47); Hawaii (MEA # 48); Guam

and the Northern Mariana Islands (MEA

# 49); Puerto Rico and the U.S. Virgin

Islands (MEA # 50); American Samoa

(MEA # 51); and the Gulf of Mexico

(MEA # 52). The Commission believes

that this licensing scheme satisfies the

various and often conflicting positions

raised by the commenters and will best

accommodate our objectives under

309(j) of the Communications Act.

22. Specifically, the larger WCS

license areas that the Commission will

provide for in the C and D blocks will

accommodate those commenters who

argue that large areas will (1) encourage

the rapid development and deployment

of innovative service; (2) facilitate

interoperability and the setting of

standards; (3) allow for economies of

scale that will encourage the

development of low cost equipment;

and (4) facilitate provision of satellite

DARS services. Many commenters in

this proceeding point out that WCS

spectrum can be used effectively to

provide wireless local loop, broadband

data services and DARS services. At

least with respect to these services,

there may be significant economic

efficiencies that could be realized—to

the ultimate benefit of consumers—if

these services were to be provided with

nationwide scope. Licensing the C and

D blocks in WCS on a REAG basis may

facilitate aggregation of service areas

and speed implementation of these new

services.

23. In addition, a number of

commenters point out that ensuring

technical coordination and minimizing

interference across geographic areas is

very difficult when the exact nature of

the services to be provided is unknown

and the spectrum may be used to

provide a variety of service offerings.

The larger service areas in the C and D
9640 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

blocks will speed and simplify the

process of interference coordination

along geographic boundaries, as well as

minimize transaction costs and disputes

arising from interference, and facilitate

implementation of services that would

require roaming capabilities and easy

interoperability. In addition, because

equipment currently is not available for

use in this band, the larger service areas

in the C and D blocks also should enable

manufacturers to achieve greater

economies of scale in production of

equipment, thus reducing its per-unit

cost and allowing more rapid

deployment of services to the ultimate

benefit of consumers.

24. While the Commission is mindful

of the desire of some parties to have

large licenses, the Commission also

agrees with commenters that contend

that smaller businesses will have more

difficulty competing in the WCS auction

for licenses in the large regions. In this

regard, the Commission believes that the

creation of smaller MEAs in the A and

B blocks (along with the large bidding

credits provided for small businesses,

see infra), will provide greater

opportunities for smaller businesses to

compete in an auction and participate in

the provision of WCS services. The

Commission further notes that,

consistent with views of some

commenters, these smaller service areas

will: (1) Enable a larger number of

entities to participate in the provision of

services and result in increased

competition; (2) encourage a more

diverse group of service providers due

to the lower costs of participating in the

auction; and (3) result in broader

flexibility in service offerings by WCS

licensees. The Commission also believes

that these smaller service areas will

encourage efficiencies by making it easy

for a bidder to acquire licenses for only

as much area as required for its

prospective service.

25. The Commission notes that some

commenters support even smaller BTAs

and MSAs/RSAs to facilitate

participation in the WCS service by

small businesses. The Commission finds

that service areas based on such smaller

areas might compromise its ability to

complete the WCS auction within the

statutorily mandated time frame. In any

event, the Commission notes that in

addition to the large bidding credits

offered to small businesses, our

provisions for partitioning and

disaggregation (see infra) should work

to provide significant opportunities to

smaller businesses to participate in the

provision of WCS services.

26. As noted above, two commenters,

SOSCO and PetroCom, advocate

licensing the Gulf of Mexico as a

separate service area to help meet the

growing communications needs of

petroleum and natural gas providers in

the area. In light of those requests, the

Commission designates a separate REAG

and MEA covering the Gulf of Mexico.

The Commission determines that landbased license regions abutting the Gulf

of Mexico will extend to the limit of the

territorial waters of the United States in

the Gulf, which is the maritime zone

that extends approximately twelve

nautical miles from the U.S. baseline.

Beyond that line of demarcation, the

Commission will create the Gulf of

Mexico REAG and MEA, which will

extend from that line outward to the

broadest geographic limits consistent

with international agreements (see maps

at Appendices C and D of the Report

and Order). The limits and coordination

of signal strengths at the boundaries of

the service areas meeting in the Gulf

region will be the same as those that

will apply for all service areas.

27. Finally, the Commission notes

that several commenters argue that their

suggested WCS licensed service area

sizes will increase auction revenues.

The Commission wishes to make clear

that, consistent with section 309(j)(7)(A)

of the Communications Act, the

Commission has considered the

communications needs of potential

service providers and the American

public in developing these service areas.

The Commission has not considered

anticipated auction revenue.

B. Use of Competitive Bidding

28. The Commission will adopt rules

providing for the assignment of these

frequencies through the use of

competitive bidding pursuant to section

309(j). As the Commission noted in the

NPRM, the Appropriations Act directs

the Commission to assign licenses to use

the 2305–2320 and 2345–2360 MHz

bands through competitive bidding

pursuant to Section 309(j) of the

Communications Act. Section 309(j)

provides that auctions may be used to

award licenses among mutually

exclusive applicants where the

principal use of such spectrum will

involve, or is reasonably likely to

involve, a subscription-based service.

See 47 U.S.C. 309(j)(1), (2). The

Commission continues to believe that it

is reasonable to conclude that the

principal use of WCS spectrum will

involve, or is reasonably likely to

involve, the transmission or reception of

communications signals to subscribers

for compensation. While the

Commission has decided to permit WCS

licensees to provide a range of services,

the uses of this spectrum most

mentioned by commenters appear to

involve services that would be provided

on a subscription basis. Fixed (and

radiolocation) services that could be

provided include services similar to the

Multichannel Multipoint Distribution

Service (‘‘MMDS’’), the Location and

Monitoring Service (‘‘LMS’’), Digital

Termination Systems (‘‘DTS’’), Digital

Electronic Messaging Service (‘‘DEMS’’),

wireless local loop, and certain of the

services provided by Local Multipoint

Distribution Service (‘‘LMDS’’).

Although it may be technologically

infeasible to provide mobile services as

a WCS offering in the near future due to

the necessity for strict technical

standards (see infra), services that may

ultimately be provided include those

similar to PCS, cellular, Specialized

Mobile Radio (‘‘SMR’’) and paging. All

of these services currently are provided

to subscribers for compensation and the

Commission believes that it is

reasonable to expect that WCS offerings

will be provided on a similar basis. In

this regard, even if a WCS licensee

chooses to offer a satellite DARS service

on that portion of the spectrum

available for such use, the Commission

believes it is likely that such service

also will be offered on a subscription

basis.

29. The Commission’s decision today

also advances the objectives contained

in section 309(j) of the Communications

Act. Section 309(j)(3)(A) directs the

Commission to seek to promote the

development and rapid deployment of

new technologies, products, and

services for the benefit of the public,

including those residing in rural areas,

without administrative or judicial

delays. In this regard, the Commission

believes that its service and licensing

rules, in conjunction with its allocation

plan, will allow for and foster the

development of a range of new services

and technologies. These policies also

will advance the objective, expressed in

section 309(j)(3)(B), of promoting

economic opportunity and competition

and ensuring that new and innovative

technologies are readily accessible to

the American people by avoiding

excessive concentration of licenses and

by disseminating licenses among a wide

variety of applicants, including small

businesses, rural telcos, and businesses

owned by members of minority groups

and women.

30. The Appropriations Act states that

in making these frequencies available

for competitive bidding, the

Commission shall seek to promote the

most efficient use of the spectrum. See

Appropriations Act, section 3001(b)(1).

As the Commission stated in the NPRM,

the Commission believes that its

competitive bidding rules will ensure
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9641

that spectrum is made available to those

who value it most highly and therefore

are most likely to put it to its most

economically efficient use. This

outcome will be further assured by the

Commission’s use of a simultaneous,

multiple round auction that will allow

applicants to aggregate spectrum and

service areas into parcels of efficient

size and to realize economies of scale

and scope without the need for costly

and time consuming post-auction

transactions. In addition, as indicated

above, the Commission has decided to

permit the WCS licensee to provide

fixed, mobile, radiolocation or satellite

DARS services. The Commission

believes there are significant

competitive alternatives for each of

these types of services that will ensure

that WCS licensees have incentives to

operate in an efficient and effective

manner. The Commission therefore

believes that there will be sufficient

market incentives to promote the most

efficient use of the 2305–2320 and

2345–2360 MHz bands, as required by

the Appropriations Act and section

309(j)(3)(D) of the Communications Act.

C. Consideration of Public Safety Needs

31. As the Commission discussed in

the NPRM, the Appropriations Act

instructs it to take into account the

needs of public safety radio services in

making the WCS spectrum available

through competitive bidding.

Recognizing that the Appropriations Act

marks the first time that Congress has

specifically directed the Commission to

consider the needs of public safety radio

services in connection with licensing a

particular spectrum band, the

Commission sought comment generally

on how it can best effectuate

Congressional intent with regard to

public safety needs as related to this

spectrum. In addition, the Commission

noted that in a post-enactment letter, the

Chairman and Ranking Member of the

House Committee on Commerce suggest

that the Commission, consistent with its

obligation to promote the public

interest, pay particular attention to how

the needs of public safety as well as

commercial applicants may best be met

in determining how to design this

auction. The Commission referred to the

recommendations made by the Public

Safety Wireless Advisory Committee in

its final report, and asked interested

parties how our WCS rules should be

fashioned so as to benefit the public

safety community consistent with those

recommendations. Finally, the

Commission invited commenters to

address a broad array of options,

including making an allocation of some

portion of the WCS spectrum for public

safety entities, assigning the WCS

spectrum with an obligation to

contribute toward needs identified by

the public safety community, and taking

steps to encourage the use of WCS

spectrum for services useful to public

safety entities.

32. The Appropriations Act requires

that the Commission take into account

the needs of public safety radio services.

Therefore, the Commission must

consider the communications needs of

the public safety community in

assigning WCS frequencies. The record

compiled in this proceeding and in the

Commission’s public safety proceeding

demonstrates that spectrum currently

allocated to public safety spectrum is

inadequate to meet the public safety

community’s voice and data needs. In

addition, this record suggests that

currently allocated spectrum will not

permit deployment by public safety

agencies of needed advanced data and

video systems. The Appropriations Act

requires, however, that the use of 30

MHz of spectrum in the 2.3 GHz band

be assigned by competitive bidding

pursuant to section 309(j) of the

Communications Act. The Commission

therefore concludes that allocating a

portion of the 2.3 GHz spectrum for

public safety appears to be inconsistent

with the Appropriations Act because,

pursuant to the Commission’s auction

authority, the Commission is not

permitted to assign spectrum to public

safety applicants by competitive

bidding.

33. In any case, even if spectrum were

to be allocated for assignment only to

public safety entities, the Commission

does not believe that such an allocation

would be the best way to meet those

needs. The Commission notes that the

WCS spectrum was not identified in the

PSWAC Final Report as useful in

meeting the public safety community’s

spectrum requirements. In this regard,

the Commission believes that it is

significant that APCO, the only public

safety entity to comment in this

proceeding, noted in its recent ex parte

filing that facilitating possible public

safety use of a small portion of the 2.3

GHz band for non-mission critical

operations will have little or no impact

on the spectrum needs identified by

PSWAC. In addition, the Commission

believes that it is significant that public

safety entities do not currently have

operations in any spectrum in or near

the 2.3 GHz band. Thus, it may be more

difficult for public safety entities to

avail themselves of equipment

economies of scale or to integrate this

spectrum into their current

communications systems. In addition,

even if WCS spectrum were of some use

to the public safety community, costly

networks would still need to be

constructed in order for useful services

to be provided. In this regard, the

Commission finds it significant that, as

noted above, several commenters (both

public safety entities and others)

questioned whether a specific public

safety allocation at 2.3 GHz would

significantly assist public safety entities

given the technical configuration and

the financial resources that a 2.3 GHz

system would require.

34. The record in this proceeding also

demonstrates that public safety agencies

require additional funding to enable

them to migrate to new spectrum and to

upgrade and purchase new equipment.

In addition, the Commission notes that

the PSWAC Final Report found, the

radio systems used by the Public Safety

community are laboring under

increasing burdens. Equipment is old

and funding for new equipment is often

scarce. The PSWAC Final Report also

found that funding for acquisition of

new spectrum-efficient technologies

and/or relocation to different frequency

bands is likely to be a major

impediment to improving Public Safety

wireless systems. The PSWAC Final

Report includes recommendations

regarding the future operational

requirements of public safety agencies,

methods for achieving greater

interoperability among agencies, the

technologies that are and will be

available to meet public safety

requirements, and the amount of radio

spectrum that will be necessary to meet

these requirements. Many of these

requirements can be met by the

Commission’s allocation of additional

spectrum to public safety agencies, and

the report examined alternative

approaches for obtaining funding to

assist public agencies in an orderly

migration to new spectrum allocations

and advanced technologies.

35. The Commission believes that, in

order for the future needs of public

safety wireless communications to be

satisfied, new sources of funding will

have to be devised. This is true

regardless of the amount of spectrum

made available for public safety. In this

proceeding, the Commission has

considered whether funds from the

WCS auction could provide a source of

funding for public safety agencies. The

Commission notes, however, that

section 309(j)(8)(A) requires that ‘‘all

proceeds from the use of a competitive

bidding system under this subsection

shall be deposited in the Treasury

* * * .’’ 47 U.S.C. 309(j)(8)(A). The only

exceptions to this general rule are

contained in sections 309(j)(8)(B)

(providing for retention of revenues as
9642 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

an offsetting collection for developing

and implementing the auction program)

and 309(j)(8)(C) (providing for deposit of

upfront payments in an interest-bearing

account, with interest transferred to the

Telecommunications Development

Fund). Therefore, it appears that

legislative action is required before

auction revenues can be used to provide

a source of funding for public safety

agencies to acquire new

communications technologies. It is the

Commission’s belief that public safety

agencies would benefit greatly from

such action. The Commission notes that

legislation recently introduced by

Senator John McCain would provide for

a portion of the revenues raised from an

auction of spectrum currently used by

television broadcast stations operating

on channels 60–69 to be earmarked for

‘‘funding State and local law

enforcement and public safety agencies’

mission-related radio communications

capabilities.’’ See S. 255, The Law

Enforcement and Public Safety

Telecommunications Empowerment

Act, as introduced in the United States

Senate on February 4, 1997, section

5(b)(1). The Commission believes that

legislative approaches such as that taken

in the McCain bill would substantially

aid public safety agencies in their

communications needs and thereby

improve the safety of all Americans.

36. Though the Commission has

concluded that designating 2.3 GHz

spectrum for use exclusively by public

safety entities is not advisable, the

Commission emphasizes its continuing

commitment to address public safety

needs. Specifically, the Commission is

considering the operational, technical

and spectrum requirements of the

public safety community in our Public

Safety proceeding. See The

Development of Operational, Technical,

and Spectrum Requirements for Meeting

Federal, State and Local Public Safety

Agency Communication Requirements

Through the Year 2010, WT Docket No.

96–86, Notice of Proposed Rule Making,

11 FCC Rcd 12460, 61 FR 25185 (May

20, 1996). That proceeding examines

what spectrum bands could be useful

for meeting existing and future

communications requirements,

including voice, data (such as

transmission of fingerprints, building

floor plans and medical data), and video

for surveillance monitoring. The

Commission expects that additional

spectrum will be made available for

public safety use as a result of that

proceeding, and that its decision in that

proceeding will address the specific

communications requirements and

bands identified by PSWAC. In

addition, the Commission notes that

several commenters, including APCO

and Motorola, reiterated the public

safety community’s need for 24 MHz of

spectrum at UHF channels 60–69. The

Commission believes that their proposal

has merit and plan to give it serious

consideration in our Digital Television

proceeding. See Advanced Television

Systems and Their Impact Upon the

Existing Television Broadcast Service,

MM Docket No. 87–268, Sixth Further

Notice of Proposed Rule Making, 11 FCC

Rcd 10968, 61 FR 43209 (August 21,

1996). The Commission notes that

legislation recently introduced by

Senator McCain would direct the

Commission to allocate 24 MHz of the

channel 60–69 spectrum to public safety

use, See S. 255, The Law Enforcement

and Public Safety Telecommunications

Empowerment Act, as introduced in the

United States Senate on February 4,

1997, section 4(a), and that the

Administration’s 1998 budget also

supports such a reallocation. See

Testimony of Larry Irving, Assistant

Secretary for Communications and

Information, U.S. Department of

Commerce, before the Subcommittee on

Telecommunications, Trade and

Consumer Protection of the U.S. House

of Representatives Committee on

Commerce, February 12, 1997, at 24; see

also Statement by Attorney General

Janet Reno on Proposal to Set Aside

Communications Frequencies for Public

Safety Use, released February 6, 1997.

37. The Commission declines to adopt

special provisions to benefit petroleum

and natural gas providers, railway

operators and operators of water supply

systems. Though the Commission

recognizes that these entities perform

valuable public service functions, the

Commission does not believe that

Congress intended that they be included

in the class of ‘‘public safety radio

services’’ that the Appropriations Act

directs the Commission to take into

account in this proceeding. The

Commission’s Rules define that term to

include ‘‘Local Government, Police,

Fire, Highway Maintenance and

Forestry-Conservation Radio Services.’’

47 CFR 90.15. The Commission declines

to deviate from this established

definition.

D. Service and Technical Rules

i. Eligibility

38. The Commission concludes that,

with the exception of the foreign

ownership restrictions set forth in

section 310 of the Communications Act,

see 47 U.S.C. 310, there will be no

eligibility restrictions on participation

in WCS. As the Commission stated in

the NPRM, opening the WCS market to

a wide range of applicants will permit

and encourage entrepreneurial efforts to

develop new technologies and services.

The Commission also believes that,

given the relatively large amount of

spectrum that is available to provide

services similar to those that can be

operated on the WCS spectrum,

providing open eligibility in this

instance will not lead to excessive

concentration of market power. The

Commission agrees with CPI that

Section 27.302 should ensure that WCS

licensees are subject to all of the foreign

ownership restrictions set forth in

Section 310 of the Communications Act

to the extent the restrictions are

applicable to the particular service in

question. Thus, for example, common

carrier services would be subject to the

restrictions in section 310(b). See 47

U.S.C. 310.

ii. CMRS Spectrum Cap

39. The decisional factor in whether

to apply the CMRS spectrum cap to any

particular service is a balancing of the

potential benefits and costs. The

Commission believes that, in these

unique circumstances where the

Commission is allocating spectrum and

licensing a wholly new service pursuant

to congressional directive, the potential

benefits do not outweigh the potential

costs. Thus the Commission will not

count holdings of WCS spectrum at 2.3

GHz against the CMRS spectrum cap.

40. As the Commission noted in the

NPRM, the CMRS spectrum cap was

imposed out of concern that ‘‘excessive

aggregation [of spectrum] by any one of

several CMRS licensees could reduce

competition by precluding entry by

other service providers and might thus

confer excessive market power on

incumbents.’’ Implementation of

sections 3(n) and 332 of the

Communications Act, GN Docket No.

93–252, Third Report and Order, 9 FCC

Rcd 7988, 8101, 59 FR 59945 (November

21, 1994) (‘‘CMRS Third Report and

Order’’). The spectrum cap is intended

to promote a vigorous competitive

market for the provision of commercial

mobile radio services, and to ensure that

each mobile service provider (i.e.,

cellular, PCS or SMR licensee) has the

opportunity to obtain sufficient

spectrum to compete effectively and

that no single provider is able to

preclude the provision of service by

effective competitors or significantly

reduce the number of competitors by

aggregating spectrum.

41. As discussed more fully in Section

III.D.7, infra, because the spectrum

allocated for satellite DARS is situated

between the two WCS bands, limitations
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9643

on out-of-band emissions by equipment

operating on WCS spectrum are needed

to protect against interference with

sensitive satellite DARS reception. The

Commission believes that the out-ofband emission limits we are adopting

likely will, at least in the near term,

make mobile operations in the WCS

spectrum technologically infeasible.

Hence, there is little likelihood that

allowing an incumbent CMRS licensee

to acquire enough WCS spectrum that

its total CMRS and WCS spectrum

holdings exceed the 45 MHz cap would

have anticompetitive consequences for

mobile services. Application of the

CMRS spectrum cap to WCS spectrum

is not necessary to guard against

excessive concentration in the CMRS

market or the accumulation of undue

market power.

42. Conversely, even if it is

technically feasible to use this spectrum

for CMRS-type service, applying the cap

and excluding many existing CMRS

providers from acquiring WCS licenses

would, the Commission believes, carry

significant potential costs for

consumers. With their existing base

station infrastructures, CMRS licensees

may be the most efficient users of WCS

spectrum because economies of scope

may be large in the provision of new

services combined with the provision of

conventional mobile voice CMRS. For

example, it may be that a current CMRS

licensee would be able to use its

existing infrastructure to provide fixed

services in the most cost efficient

manner. Site acquisition and zoning

approval for new facilities is both a

major cost component and a major delay

factor in deploying wireless systems.

Facilities at existing cellular or PCS

sites might accommodate additional

equipment for new services or be

modified to do so at a significantly

lower cost than deploying a whole new

cell infrastructure for the new service in

a crowded environment. There may be

other economies of scope in the

provision of different services as well.

Applying the CMRS spectrum cap to the

WCS spectrum would interfere with the

realization of these savings by

preventing the direct participation by

those entities who own the existing

CMRS infrastructure, and consequently,

prevent consumers from benefiting from

these savings, with little off-setting

benefit in competition.

43. The Commission recognizes that

not applying the cap to WCS spectrum

may result in some CMRS licensees

acquiring spectrum and, provided that

the technical obstacles noted infra can

be overcome, that at some point these

licensees may use WCS spectrum to

compete against other CMRS licensees

that have not acquired WCS spectrum.

The Commission does not believe,

however, that such a circumstance

substantially risks impairing

competition in the CMRS marketplace.

When 30 MHz PCS systems are fully

deployed with the minimum number of

cells needed for competitive coverage,

they will provide a large increase in

capacity over what is currently

available. As for the argument that

regulatory parity compels application of

the CMRS spectrum cap to WCS

spectrum, the Commission disagrees.

Whether or not the cap is applied, all

CMRS providers stand on equal footing

with respect to the acquisition of WCS

licenses, and any entity using WCS

spectrum to provide CMRS services will

be regulated in the same manner as all

other CMRS providers.

iii. Disaggregation and Partitioning

44. Consistent with the weight of the

comments and with the Commission’s

recent decision to adopt the approach

proposed in WT Docket No. 96–148 for

broadband PCS, See Geographic

Partitioning and Spectrum

Disaggregation by Commercial Mobile

Radio Services Licensees;

Implementation of Section 257 of the

Communications Act—Elimination of

Market Entry Barriers, WT Docket No.

96–148, Report and Order and Further

Notice of Proposed Rule Making, FCC

96–474, 62 FR 696 (January 6, 1997)

(‘‘Partitioning and Disaggregation

R&O’’), the Commission adopts its

proposals for geographic partitioning

and spectrum disaggregation. We will

permit WCS licensees to partition their

service areas into smaller geographic

service areas and to disaggregate their

spectrum into smaller blocks. We also

conclude that the specific rules

pertaining to partitioning and

disaggregation in WT Docket No. 96–

148 shall apply to WCS licensees. In

addition, for the purposes of

partitioning and disaggregation, we will

require that WCS systems be designed

so as not to exceed a signal level of 47

dBuV/m at the licensee’s service area

boundary, unless the affected adjacent

service area licensees have agreed to a

different signal level.

45. In WT Docket No. 96–148, the

Commission decided to permit

geographic partitioning by broadband

PCS licensees along any service area

defined by the partitioner and

partitionee. See Partitioning and

Disaggregation R&O. In addition, the

Commission decided to permit

spectrum disaggregation by broadband

PCS licensees without restriction on the

amount of spectrum to be disaggregated.

The Commission concluded that

allowing parties to decide without

restriction the amount of spectrum to be

disaggregated will encourage more

efficient use of the spectrum and permit

the deployment of a broader mix of

service offerings, both of which will

lead to a more competitive wireless

marketplace. Id. We believe that this

reasoning applies with equal force to

WCS. Therefore, subject to the

provisions discussed below with respect

to licensees who take advantage of

bidding credits, once an initial WCS

license is granted, licensees will be free

to partition their service areas and

disaggregate their spectrum. Finally,

consistent with PCS and other CMRS

services, WCS licensees will be allowed

to use management and operational

arrangements to permit others to use

portions of their spectrum and

geographic service areas. The

Commission wishes to emphasize that

the WCS licensee must retain ultimate

control over and responsibility for all

operations under such arrangements.

46. The Commission concludes that

any licensee will be permitted to

partition its service area as long as it

submits sufficient information to the

Commission to maintain our licensing

records. Partitioning applicants will be

required to submit, as separate

attachments to the partial assignment

application, a description of the

partitioned service area and a

calculation of the population of the

partitioned service area and licensed

market. The partitioned service area

must be defined by coordinate points at

every 3 degrees along the partitioned

service area agreed to by both parties,

unless either (1) an FCC-recognized

service area is utilized (i.e., Major

Trading Area, Basic Trading Area,

Metropolitan Service Area, Rural

Service or Economic Area) or (2) county

lines are followed. These geographical

coordinates must be specified in

degrees, minutes and seconds to the

nearest second of latitude and

longitude, and must be based upon the

1927 North American Datum (NAD27).

Applicants also may supply

geographical coordinates based on 1983

North American Datum (NAD83) in

addition to those required based on

NAD27. This coordinate data should be

supplied as an attachment to the partial

assignment application, and maps need

not be supplied. In cases where an FCCrecognized service area or county lines

are being utilized, applicants need only

list the specific area(s) (through use of

FCC designations) or counties that make

up the newly partitioned area.

47. Similarly, where WCS licensees

seek to disaggregate their WCS

spectrum, the Commission will not
9644 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

require the disaggregating party to retain

a minimum amount of spectrum. The

Commission will allow disaggregating

parties to negotiate channelization plans

among themselves as part of their

disaggregation agreements, and the

Commission will continue to require

that such plans provide the necessary

out-of-band emission protections to

third party licensees as required by our

rules. The Commission is not adopting

a limit on the maximum amount of

spectrum that licensees may

disaggregate. The Commission finds no

evidence at this time that a maximum

limitation for disaggregation is

necessary. WCS licensees shall be

permitted to disaggregate spectrum

without limitation on the overall size of

the disaggregation as long as such

disaggregation is otherwise consistent

with our rules.

48. The Commission declines to adopt

RTG’s proposal to provide rural telcos

with a right of first refusal. Section 254

of the Telecommunications Act of 1996,

Pub. L. 104–104, section 101, 110 Stat.

56 (1996), states that, in seeking to

promote its goal of universal service, the

Commission should ensure that

consumers from all parts of the Nation,

including rural areas, have access to

telecommunications and information

services that is comparable to service in

other, more urban areas and at rates that

are comparable to the rates available in

urban areas. Granting rural telcos a right

of first refusal would be at odds with the

Commission’s goals of ensuring that the

largest number of entities participate in

the WCS marketplace and eliminating

barriers to entry for small businesses. As

the Commission concluded in WT

Docket No. 96–148, the Commission

also believes that a right of first refusal

would be difficult to administer and

could discourage partitioning.

Partitioning and Disaggregation R&O.

For example, an area proposed for

partitioning to a non-rural telco may

intersect with an area for which a rural

telco has a right of first refusal. A

further problem would be uncertainty as

to whether the rural telco’s right of first

refusal would continue after the auction

winner partitioned the license area to

another party. Additionally, a

partitioning agreement may be part of a

larger assignment transaction. If a rural

telco were able to exercise a right of first

refusal with respect to a partitioned

area, it may not be possible to separate

out the partitioning agreement to stand

on its own and the entire assignment

transaction could not be consummated.

49. If a WCS licensee that received a

bidding credit partitions a portion of its

license to an entity that would not meet

the eligibility standards for a similar

bidding credit, the Commission will

require that the licensee reimburse the

government for the amount of the

bidding credit calculated on a

proportional basis based upon the ratio

of population of the partitioned area to

the overall population of the licensed

area. See 47 CFR 1.2110(f) and

24.717(c)(1). If a licensee that received

a bidding credit partitions to an entity

that would qualify for a lesser bidding

credit, the Commission will require that

the licensee reimburse the government

for the difference between the amount of

the bidding credit obtained by the

licensee and the bidding credit for

which the partitionee is eligible,

calculated on a proportional basis based

upon the ratio of population of the

partitioned area. See 47 CFR 1.2110(f)

and 24.717(c)(2). Similar provisions

shall apply where a WCS licensee that

receives a bidding credit seeks to

disaggregate a portion of its spectrum to

an entity that would not have qualified

for such a bidding credit. All such

unjust enrichment payments will be

calculated based upon the ratio of the

amount of spectrum disaggregated to the

amount of spectrum retained by the

original licensee. With respect to

disaggregation from one licensee that

qualified for a bidding credit to another

licensee that would also qualify for a

bidding credit, the Commission will

adopt an approach similar to that

adopted for partitioning.

50. Finally, to allow WCS licensees

flexibility to design the types of

agreements they desire, the Commission

will follow its decision in WT Docket

No. 96–148 to permit combined

partitioning and disaggregation. For

example, a party may obtain a license

for a single county with only 5 MHz of

WCS block A spectrum. By allowing

such combined partitioning and

disaggregation, we believe that the goals

of providing competitive service

offerings, encouraging new market

entrants, and ensuring quality service to

the public will be advanced. The

Commission further concludes that in

the event that there is a conflict in the

application of the partitioning and

disaggregation rules, the partitioning

rules should prevail. For the purpose of

applying the Commission’s unjust

enrichment provisions relating to

bidding credits, when a combined

partitioning and disaggregation is

proposed, the Commission will use a

combination of both population of the

partitioned area and amount of

spectrum disaggregated to make these

pro rata calculations. For example, if a

WCS licensee that availed itself of a

bidding credit and a non-qualifying

partitionee/disaggregatee were to agree

on a 20 percent disaggregation of

spectrum over 30 percent of the

population of the licensed service area,

an unjust enrichment payment of 6

percent (.20 x .30) of the bidding credit

would be required.

51. The Commission also notes that

these geographic partitioning and

spectrum disaggregation rules, while not

a substitute for licensing directly from

the Commission, nevertheless will help

to eliminate market entry barriers,

consistent with section 257 of the

Communications Act, by providing

smaller, less capital-intensive areas and

spectrum blocks which are more

accessible by small business entities.

See 47 U.S.C. 257.

iv. License Term

52. The WCS license term will be 10

years, with a renewal expectancy

similar to that afforded PCS and cellular

licensees. The Commission believes that

this relatively long license term,

combined with a renewal expectancy,

will help to provide a stable regulatory

environment that will be attractive to

investors and, thereby, encourage

development of this new frequency

band. In the event that a WCS license

is partitioned or disaggregated, any

partitionee/disaggregatee will be

authorized to hold its license for the

remainder of the partitioner’s/

disaggregator’s original ten-year license

term, and the partitionee/disaggregatee

will be required to submit the showings

required at the five-year mark and with

its renewal application. The

Commission believes that this approach,

which is similar to the partitioning

provisions we recently adopted for the

MDS and for current broadband PCS

licensees is appropriate because a

licensee, through partitioning, should

not be able to confer greater rights than

it was awarded under the terms of its

license grant.

53. The Commission will require that

a WCS licensee’s renewal application

include at a minimum the following

showing to claim a renewal expectancy:

(1) A description of current service in

terms of geographic coverage and

population served or links installed; (2)

an explanation of the licensee’s record

of expansion, including a timetable for

the construction of new base sites or

links to meet changes in demand for

service; (3) a description of the

licensee’s investments in its system; and

(4) copies of any FCC orders finding the

licensee to have violated the

Communications Act or any FCC rule or

policy, and a list of any pending

proceedings that relate to any matter
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9645

described by the requirements for the

renewal expectancy.

v. Performance Requirements

54. The Commission has concluded

that, considering the unique

circumstances in which WCS licenses

are being awarded and the strict

technical requirements necessary to

prevent interference, it will adopt very

flexible construction (or ‘‘build-out’’)

requirements for WCS. Specifically, the

Commission will require licensees to

provide ‘‘substantial service’’ to their

service area within 10 years. Although

WCS licensees will have incentives to

construct facilities to meet the service

demands in their licensed service area,

the Commission believes that minimum

construction requirements can promote

efficient use of the spectrum, encourage

the provision of service to rural, remote

and insular areas and prevent the

warehousing of spectrum.

55. The build-out requirement that the

Commission adopts today is the most

liberal construction requirement

adopted by the Commission to date. The

Commission believes that this liberal

build-out requirement is appropriate in

the case of WCS for a number of

reasons. First, the Commission is

providing WCS licensees with the

flexibility to offer a range of services

using the WCS spectrum. Given the

broad range of new and innovative

services that the comments lead the

Commission to believe might be

provided over WCS spectrum, imposing

strict construction requirements that

would apply over the license term

would be neither practical nor desirable

as a means of meeting Section 309(j)’s

objectives regarding warehousing and

rapid deployment. Without knowing the

specific type of service or services to be

provided, it would be difficult to devise

specific construction benchmarks.

Further, given the undeveloped nature

of equipment for use in this band and

the technical requirements the

Commission is adopting to prevent

interference, the Commission is

concerned that strict construction

requirements might have the effect of

discouraging participation in the

provision of services over the WCS

spectrum. It may be that a potential

licensee could efficiently conduct

certain operations on WCS spectrum,

but must await further technological

developments to do so affordably.

Adopting strict construction

requirements here could effectively

preclude efficient uses of the spectrum.

Particularly in light of the technological

uncertainties associated with use of

WCS spectrum to provide certain

services consistent with the interference

levels the Commission adopts today, the

Commission believes that stringent

build-out requirements are not

warranted.

56. At the ten year period, the

Commission will require all licensees to

submit an acceptable showing to the

Commission demonstrating that they are

providing substantial service. Licensees

failing to demonstrate that they are

providing substantial service will be

subject to forfeiture of their licenses.

The Commission notes that in the past

it has defined substantial service as

‘‘service which is sound, favorable, and

substantially above a level of mediocre

service which just might minimally

warrant renewal.’’ See, e.g., 47 CFR

22.940(a)(1)(i). For WCS, however, the

Commission believes that further

elaboration on this standard in the form

of examples of what might constitute

substantial service is useful. Thus, for a

WCS licensee that chooses to offer fixed,

point-to-point services, the construction

of four permanent links per one million

people in its licensed service area at the

ten-year renewal mark would constitute

substantial service. In the alternative,

for a WCS licensee that chooses to offer

mobile services, a demonstration of

coverage to 20 percent of the population

of its licensed service area at the tenyear mark would constitute substantial

service. In addition, the Commission

may consider such factors as whether

the licensee is offering a specialized or

technologically sophisticated service

that does not require a high level of

coverage to be of benefit to customers,

and whether the licensee’s operations

serve niche markets or focus on serving

populations outside of areas served by

other licensees. These safe-harbor

examples are intended to provide WCS

licensees a degree of certainty as to how

to comply with the substantial service

requirement by the end of the initial

license term. This requirement can be

met in other ways, and the Commission

will review licensees’ showing on a

case-by-case basis.

57. The Commission believes that

these build-out provisions fulfill its

obligations under section 309(j)(4)(B).

The Commission also believes that the

auction and service rules which it is

adopting for WCS, together with its

overall competition and universal

service policies, constitute effective

safeguards and performance

requirements for WCS licensing.

Because a license will be assigned in the

first instance through competitive

bidding, it will be assigned efficiently to

a firm that has shown by its willingness

to pay market value its willingness to

put the license to its best use. The

Commission also believes that service to

rural areas will be promoted by its

decision to allow partitioning and

disaggregation of WCS spectrum.

58. Finally, the Commission reserves

the right to review this liberal

construction requirements in the future

if we receive complaints related to

section 309(j)(4)(B), or if the

Commission’s own monitoring

initiatives or investigations indicate that

a reassessment is warranted. The

Commission also reserves the right to

impose additional, more stringent

construction requirements on WCS

licenses in the future in the event of

actual anticompetitive or rural service

problems and if more stringent

construction requirements can

effectively ameliorate those problems.

vi. Regulatory Status

59. The Commission concludes that it

will rely on each WCS applicant to

identify in its long-form application the

type of WCS service or services it will

provide. Although the Commission will

not presume at the outset that a WCS

applicant will provide CMRS service,

the Commission continues to believe, as

it stated in the NPRM, that this

approach will allow the Commission to

carry out its responsibilities while

imposing the least regulatory burden on

the licensee. The Commission also

delegates to the Wireless

Telecommunications Bureau and to the

International Bureau authority to

develop forms appropriate to collect this

data, and to monitor changes in licensee

status. The predominant uses of WCS

spectrum mentioned by commenters

involved personal communications such

as broadband voice and data

transmission, including wireless local

loop and wireless Internet access. If

WCS spectrum is used for satellite

DARS services, those services will be

governed by the satellite DARS

regulations currently under

development in IB Docket No. 95–91.

60. The Commission’s decision to

permit WCS licensees to provide a

variety or combination of services

requires that the Commission adopt a

licensing framework that authorizes

WCS licensees to provide non-common

carrier services as well as common

carrier services. The Commission has

recently increased the flexibility of

licensees in other wireless services to

provide both common carrier and noncommon carrier services. In adopting a

new application form for MDS, for

example, the Commission provided

applicants with the option on the new

form to indicate their choice for

common carrier or non-common carrier

regulatory status. Amendment of Parts

21 and 74 of the Commission’s Rules
9646 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

with Regard to Filing Procedures in the

Multipoint Distribution Service and in

the Instructional Television Fixed

Service, MM Docket No. 94–131, and

Implementation of Section 309(j) of the

Communications Act—Competitive

Bidding, PP Docket No. 93–253, Report

and Order, 10 FCC Rcd 9589, 9619, 60

FR 36524 (July 17, 1995) (‘‘MDS and

ITFS Competitive Bidding Report and

Order’’). For satellite services, the

Commission has decided to provide all

U.S.-licensed fixed satellite service

systems with a choice between offering

common carrier and non-common

carrier services and also the opportunity

to elect their regulatory classification in

their applications. Amendment to the

Commission’s Regulatory Policies

Governing Domestic Fixed Satellites and

Separate International Systems, IB

Docket No. 95–41, Notice of Proposed

Rule Making, 10 FCC Rcd 7789, 7795–

7796, 60 FR 24817 (May 10, 1995);

Report and Order, 11 FCC Rcd 2429,

2436, 61 FR 9946 (March 12, 1996)

(‘‘DISCO I Report and Order’’). In

another proceeding, the Commission

has adopted streamlined rules in part 25

for satellite services to use a simplified

procedure to change licenses from noncommon carrier status to common

carrier status. Streamlining the

Commission’s Rules and Regulations for

Satellite Application and Licensing

Procedures, IB Docket No. 95–117,

Notice of Proposed Rule Making, 10 FCC

Rcd 10624, 60 FR 46252 (September 6,

1995); Report and Order, FCC 96–425,

62 FR 5924 (February 10, 1997)

(‘‘Satellite Rules Report and Order’’).

Finally, when the Commission

implemented DBS systems under

interim rules it adopted a policy to

permit the dual provision of common

and non-common carrier services which

continues under the permanent rules.

The flexible licensing framework the

Commission adopts for WCS is

consistent with the treatment accorded

these services.

61. The Commission therefore will

allow the service offering selected by a

WCS licensee to determine its

regulatory status. If a service offering

falls within the statutory definition of

common carrier, see 47 U.S.C. 153, the

licensee will be subject to Title II and

the licensing requirements of Title III of

the Communications Act and the

Commission’s Rules. Otherwise,

services provided on a non-common

carriage basis will be subject to Title III

and certain other statutory and

regulatory requirements, depending on

the specific characteristics of the

service. The Telecommunications Act of

1996 provides that a

telecommunications carrier will ‘‘be

treated as a common carrier under this

Act only to the extent that it is engaged

in providing telecommunications

services.’’ 47 U.S.C. 153(44). A

telecommunications service is the

‘‘offering of telecommunications for a

fee directly to the public, or to such

classes of users as to be effectively

available directly to the public,

regardless of the facilities used.’’ 47

U.S.C. 153(46). Telecommunications

means ‘‘the transmission, between or

among points specified by the user, of

information of the user’s choosing,

without change in the form or content

of the information as sent and

received.’’ 47 U.S.C. 153(43). The

Commission adopted these definitions

in new part 51, which provides the rules

governing interconnection of such

carriers. Implementation of the Local

Competition Provisions in the

Telecommunications Act of 1996—CC

Docket No. 96–98, Interconnection

between Local Exchange Carriers and

Commercial Mobile Radio Service

Providers, CC Docket No. 95–185, First

Report and Order, 11 FCC Rcd 15499,

61 FR 45476 (August 29, 1996),

adopting new Rule 51.5. The U.S. Court

of Appeals for the Eighth Circuit has

stayed the pricing rules in the Order,

pending review on the merits. See Iowa

Utilities Board v. FCC, No. 96–3321 (8th

Cir., Oct. 15, 1996). Thus, to the extent

a WCS licensee is providing a service

that fits within these definitions, that

licensee will be subject to Title II and

governed by the common carrier

requirements pertinent to its services.

Those requirements are set out in Part

1 and other parts of the Commission’s

Rules. In addition, the regulatory

treatment of WCS licensees who choose

to offer fixed or mobile

telecommunications services will be

addressed by the Commission in WT

Docket No. 96–6. See Amendment of the

Commission’s Rules to Permit Flexible

Service Offerings in the Commercial

Mobile Radio Services, WT Docket No.

96–6, First Report and Order, 11 FCC

Rcd 8965, 61 FR 43721 (August 26,

1996).

62. Apart from this designation of

regulatory status, the Commission will

not require WCS applicants to describe

the services they seek to provide. It is

sufficient that an applicant indicate its

choice for regulatory status in a

streamlined application process. In

providing guidance on this issue to

MDS applicants, for example, the

Commission pointed out that an

election to provide service on a common

carrier basis requires that the elements

of common carriage be present;

otherwise, the applicant must choose

non-common carrier status. Of course, if

an applicant is unsure of the nature of

its services and their classification as

common carrier services, it may submit

a petition with its application or at any

time request clarification and include

service descriptions for that purpose.

63. The Commission also declines to

require an applicant to choose between

either common carrier or non-common

carrier status in providing services in

instances where it proposes to provide

services that include elements of both

common carrier and non-common

carrier services. Instead, the

Commission will permit both common

carrier and non-common carrier services

in a single license. An applicant may

request both common carrier and noncommon carrier status in the same

application, which will result in the

issuance of both authorizations in a

single license. The licensee will be able

to provide all WCS services anywhere

within its licensed area at any time.

This approach achieves efficiencies in

the licensing and administrative

process. The Commission notes that it

has allowed certain mobile services in

part 24 and part 90 to be authorized in

a single license on both a common

carrier and private carrier basis in order

to provide services in both categories of

service. Implementation of Sections 3(n)

and 332 of the Communications Act:

Regulatory Treatment of Mobile

Services, GN Docket No. 93–252,

Second Report and Order, 9 FCC Rcd

1411, 1459, 59 FR 18493 (April 19,

1994); 47 CFR § 20.9(b).

vii. Out-of-Band Emission Limits

64. In the NPRM, the Commission

stated that, because WCS will operate in

the 2305–2320 and 2345–2360 MHz

bands, interference protection is

required for the following adjacent

operations: (1) Satellite DARS at 2320–

2345 MHz, (2) Government Deep Space

Network receivers at 2290–2300 MHz,

and (3) Government and commercial

telemetry above 2360 MHz.

65. In order to provide protection to

these adjacent operations, the

Commission proposed that all emissions

outside of the WCS bands of operation

be attenuated below the maximum

spectral power density (p) within the

band of operation, as follows:

(1) For fixed operations, including

radiolocation: By a factor not less than 43 +

10 log (p) decibels (‘‘dB’’) on all frequencies

between 2300 and 2305 MHz and above 2360

MHz; and not less than 70 + 10 log (p) dB

on all frequencies below 2300 MHz and

between 2320–2345 MHz band.

(2) For mobile operations, including

radiolocation: By a factor not less than 43 +
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9647

10 log (p) dB on all frequencies between 2300

and 2305 MHz, between 2320 and 2345 MHz,

and above 2360 MHz; and not less than 70

+ 10 log (p) dB on all frequencies below 2300

MHz.

(3) For WCS satellite DARS operations: The

limits set forth in § 25.202(f) of the

Commission’s rules. See 47 CFR 25.202(f).

For fixed and mobile operations,

including radiolocation, the

Commission stated that the above

requirements are based on peak power

measurements (watts) using a resolution

bandwidth of at least 1 MHz. In

addition, to further protect operations in

adjacent bands, the Commission

proposed to require that the frequency

stability of transmission within the

2305–2320 and 2345–2360 MHz bands

be sufficient to ensure that the

fundamental emissions remain within

the authorized frequency bands.

66. Finally, in order to protect

Government Deep Space Network

receivers at 2290–2300 MHz, the

Commission proposed to prohibit use of

the 2305–2310 MHz band for airborne or

space-to-Earth links. Further, the

Commission proposed that WCS

operations within 50 kilometers (31

miles) of 35°20′ North Latitude and

116°53′ West Longitude (coordinates of

the Deep Space Network receive site) be

subject to coordination. Alternatively,

we requested comment on whether it

would be more appropriate to require

less out-of-band attenuation in the case

of mobile transmitters (i.e., such

transmitters would be subject to only

the 43 + 10 log (p) dB requirement) but

require that the coordination zone be

extended to 120 kilometers (75 miles).

The Commission specifically requested

that parties address the trade-offs with

regard to lower mobile equipment costs

and the additional coordination

constraints imposed by this alternative.

67. Based on the record before it, the

Commission finds that the WCS out-ofband limits proposed in the NPRM

would be insufficient to protect certain

sensitive operations on adjacent

frequencies. While it is the Commission

desire to provide WCS licensees with

the maximum flexibility to provide a

wide range of services, the Commission

also must ensure that WCS operations

do not cause harmful interference or

disruption to adjacent satellite DARS

reception or the operations of the

Arecibo Observatory. With regard to

satellite DARS reception in the 2320–

2345 MHz band, the Commission

concurs with those commenting parties

that suggest that additional attenuation

of WCS out-of-band emissions is needed

to protect such operations. The

Commission is therefore modifying its

original proposal and will require that

all emissions from WCS fixed

transmitters be attenuated below the

transmitter power (p) by at least 80 + 10

log (p) dB and that all emissions from

WCS mobile transmitters be attenuated

at least 110 + 10 log (p) dB within the

2320–2345 MHz band. In complying

with these requirements, WCS

equipment that uses circular

polarization will be permitted to assume

an allowance of 10 dB where such WCS

equipment operates with opposite sense

circular polarization from that used by

DARS operators in the 2320–2345 MHz

band.

68. In addition, the Commission

clarifies that (p) is the output power of

the transmitter, in watts. The

Commission further clarifies that out-ofband emissions in any 1 MHz

bandwidth must be attenuated by X + 10

log (p) dB below the output power of the

transmitter, where X is the attenuation

required for a one watt transmitter. In

addition, the Commission believes that

requiring the out-of-band emissions

measurement to be made by setting the

measurement instrument resolution

bandwidth to 1 MHz would unfairly

penalize WCS equipment due to the

difficulty of eliminating energy outside

of the 1 MHz resolution bandwidth.

Therefore, for out-of-band emissions

measurements the Commission believes

it is appropriate to permit use of a

measurement instrument resolution

bandwidth of less than the reference

bandwidth of 1 MHz, provided that the

energy is integrated over a 1 MHz

bandwidth.

69. The Commission believes that

these changes will provide significantly

improved interference protection to

DARS from WCS operations. The

Commission is aware that these out-ofband emission limits may have

significant cost or service implications

for WCS, especially for operations on

the channels immediately adjacent to

the 2320–2345 MHz band. In particular,

the Commission understands that there

is a substantial risk that the out-of-band

emission limits it is adopting will, at

least in the foreseeable future, make

mobile operations in the WCS spectrum

technologically infeasible. Nonetheless,

the Commission finds that this level of

attenuation is required in order to

adequately protect satellite DARS

reception from WCS transmissions. The

Commission believes that WCS

transmitters can meet these limits

through a variety of measures, including

the use of linear amplifiers, filters

distributed throughout the transmitter,

and spectrum shaping signal processing.

In this regard, the Commission

encourages potential WCS bidders and

WCS equipment manufacturers to

consult with one another prior to the

commencement of the auction to

determine what services and equipment

can be economically provided on these

frequencies. The Commission believes

that the limits it is adopting will allow

both WCS and DARS to successfully

operate. The Commission also

encourages and will allow WCS and

DARS licensees to coordinate their

operations to provide for greater or

lesser protection on a mutually agreed

basis. The Commission expects WCS

and DARS licensees to cooperate fully

to minimize the possibility of harmful

interference from one service to the

other.

70. With regard to satellite DARS

operations in WCS spectrum and the

Arecibo Observatory, the Commission

finds Cornell’s comments persuasive.

Accordingly, satellite DARS operations

will be limited to a maximum power

flux density of ¥197 dBW/m 2/4 kHz in

the 2370–2390 MHz band at Arecibo,

Puerto Rico. The adoption of a power

flux density limit has the advantages of

being readily measurable and of not

needing to be adjusted if spectrum

outside the 2320–2345 MHz band is

employed for satellite DARS operations.

Thus, the Commission does not believe

that Cornell’s alternative out-of-band

emission limit is necessary. Instead,

since the location of the satellite will be

known, it is a relatively simple matter

for a satellite DARS licensee to meet this

requirement.

71. With regard to fixed and mobile

operations, the Commission is adopting

Cornell’s proposed out-of-band emission

limit of 70 + 10 log (p) dB for all

frequencies above 2370 MHz. The

Commission also believes that this outof-band emission limit will help to

protect aeronautical telemetry and

associated telecommand operations in

the 2360–2390 MHz band and the

launch vehicle frequencies at 2370.5

and 2382.5 MHz.

72. In order to protect the Deep Space

receiver site located on Fort Irwin at

Goldstone, California, the Commission

is prohibiting use of the 2305–2310

MHz band for airborne or space-to-Earth

links. Additionally, in the 2305–2320

MHz band, the Commission is requiring

that all WCS equipment meet an out-ofband emission limit of 70 + 10 log (p)

on all frequencies below 2300 MHz.

Finally, all WCS operations within 50

kilometers of 35°20′ North Latitude and

116°53′ West Longitude must be

coordinated with the National

Telecommunications and Information

Administration (‘‘NTIA’’).

73. In summary, the revised WCS outof-band emission limits require that all

emissions outside of WCS Blocks A, B,
9648 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

C and D (‘‘the licensed bands of

operation’’) be attenuated below the

output power (p) of each transmitter,

measured in watts, as follows:

(1) For fixed operations, including

radiolocation: By a factor not less than 80 +

10 log (p) dB on all frequencies between 2320

and 2345 MHz.

For mobile operations, including

radiolocation: By a factor not less than 110

+ 10 log (p) dB on all frequencies between

2320 and 2345 MHz.

For fixed and mobile operations, including

radiolocation: By a factor not less than 70 +

10 log (p) dB on all frequencies below 2300

MHz and on all frequencies above 2370 MHz;

and not less than 43 + 10 log (p) dB on all

frequencies between 2300 and 2320 MHz and

on all frequencies between 2345 and 2370

MHz that are outside the licensed bands of

operation. In addition, WCS operations

within 50 kilometers of Goldstone, California

must be coordinated with NTIA.

(2) For WCS satellite DARS operations: The

limits set forth in Section 25.202(f) of the

Commission’s Rules apply, except that

satellite DARS operations are limited to a

maximum power flux density of ¥197 dB(W/

m2/4 kHz) in the 2370–2390 MHz band at

Arecibo, Puerto Rico.

74. In addition, the Commission

believes it desirable to permit WCS and

satellite DARS licensees to voluntarily

negotiate different limits if they so

choose. For example, a WCS licensee

could negotiate an agreement with a

satellite DARS licensee that would

permit the former greater out-of-band

emissions in exchange for monetary

compensation, or vice versa. If WCS and

satellite DARS licensees negotiate

different limits, then the Commission

will require that the parties to the

agreement maintain this information as

part of their station files and disclose it

to prospective assignees or transferees.

75. The Commission also agrees with

the commenting parties that some inband technical limits are needed

between adjacent WCS channel block

operations in order to facilitate

spectrum sharing. Accordingly, the

Commission is adopting an in-band

emission limit that will require WCS

licensees to attenuate their signals by at

least 43 + 10 log (p) at the edge of their

block, except between commonly held

channel blocks (which require no

attenuation). The Commission notes that

an attenuation of 43 dB is commonly

employed in other services and that it

has been found there to adequately

prevent adjacent channel interference.

See 47 CFR 22.359(iii), 22.917(e), and

24.238. Furthermore, the Commission

believes that the adoption of a minimum

adjacent block attenuation value of 43

dB—coupled with the median field

strength of 47 dBuV/m at any location

on the border of a WCS service area—

is the least intrusive regulation possible

that will minimize harmful interference.

viii. International Coordination

76. In the NPRM the Commission

stated that until international

agreements are completed WCS

operations will be required to protect

existing non-U.S. operations in the

2305–2320 and 2345–2360 MHz bands

and WCS operations in the border areas

would be subject to coordination with

those countries, as appropriate. In

addition, the Commission noted that

satellite DARS operations on WCS

spectrum would be subject to

international satellite coordination

procedures. The Commission stated that

parties should be aware that

international coordination could be a

complex and lengthy process and could

vary significantly depending upon the

types of WCS services that are to be

provided. The Commission stressed

therefore that international coordination

requirements should be taken into

account in developing business plans

for the provision of WCS and that

international coordination would be

particularly important for parties

contemplating the provision of WCS in

border areas or the provision of satellite

DARS operations.

77. The Commission reiterates that

international coordination will be

required for WCS operations near the

United States’ borders and, depending

on the service and its interference

potential, may also be required for nonborder areas. This coordination

requirement particularly may affect the

implementation of satellite DARS

operations in the 25 MHz of WCS

spectrum being allocated to DARS on a

co-primary basis with other services.

Potential satellite DARS applicants

should consult the February 16, 1996

letter from the FCC Satellite Engineering

Branch to representatives of the current

four satellite DARS applicants and

responses thereto that address

coordination in these bands for satellite

DARS. These documents are filed in IB

Docket No. 95–91, GN Docket 90–357,

RM No. 8610, PP–24, PP–86, and PP–87.

Use of the WCS spectrum for DARS

services will be governed by the rules

and regulations that will apply to the

exclusive DARS spectrum between

2320–2345 MHz. These rules are

expected to be adopted shortly in a

Report and Order to be issued in IB

Docket No. 95–91. See Establishment of

Rules and Policies for the Digital Audio

Radio Satellite Service in the 2310–2360

MHz Frequency Band, IB Docket No.

95–91, GEN Docket No. 90–357, Notice

of Proposed Rule Making, 11 FCC Rcd

1, 60 FR 35166 (July 6, 1995).

ix. RF Safety

78. With regard to RF safety

requirements, the Commission proposed

in the NPRM to treat WCS services and

devices, operating within the 2305–2320

MHz and 2345–2360 MHz bands, in a

comparable manner to other services

and devices that have similar operating

characteristics. The Commission noted

that §§ 1.1307(b), 2.1091 and 2.1093 of

our Rules list the services and devices

for which an environmental evaluation

must routinely be performed. See 47

CFR 1.1301, 1.1307(b), 2.1091, and

2.1093. The RF radiation exposure

limits are set forth in 47 CFR 1.1310,

2.1091, and 2.1093, as applicable.

Accordingly, the Commission proposed

that an environmental evaluation for RF

exposure would be required for the

following WCS operations: (1)

Transmitting terrestrial stations in the

satellite DARS service, e.g., ‘‘gap

fillers’’; (2) fixed operations, including

base stations and radiolocation, that

have an effective radiated power

(‘‘ERP’’) greater than 2000 watts; and (3)

mobile and portable devices. The

Commission invited comment on this

proposal and requested suggestions for

alternatives that would ensure public

health with respect to exposure to RF

radiation.

79. In the NPRM, the Commission

proposed not to limit the output power

of any WCS transmitter, but to require

that WCS transmitters comply with our

RF exposure limits. The Commission

recognizes Omnipoint’s concerns;

however, the Commission notes that it

recently adopted new, more stringent

exposure limits in ET Docket No. 93–62

which apply to all frequencies between

300 kHz and 100 GHz. See Guidelines

for Evaluating the Environmental Effects

of Radiofrequency Radiation, ET Docket

No. 93–62, Report and Order, 11 FCC

Rcd 15123, 61 FR 41006 (August 7,

1996). See also First Memorandum

Opinion and Order, ET Docket No. 93–

62, 11 FCC Rcd 17512, 62 FR 3232

(January 22, 1997). When adopting these

new exposure limits, the Commission

considered recommendations from,

inter alia, the Environmental Protection

Agency, the Food and Drug

Administration, and other federal health

and safety agencies. Although

Omnipoint has raised questions about

the power threshold below which WCS

facilities would be excluded from

routinely determining compliance with

the new exposure limits, the

Commission has not received

information in this proceeding

indicating that the new exposure limits

would not adequately protect public

health at WCS operating frequencies.
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9649

Because all fixed, mobile, and portable

transmitters are required to comply with

our RF safety rules, as more specifically

discussed below, the Commission

believes that this decision will

satisfactorily protect public health and

should allay Omnipoint’s concerns.

80. Specific to this proceeding, the

Commission is requiring applicants

desiring to use the following types of

transmitters to perform routine

environmental evaluations: (1)

Transmitting terrestrial stations in the

satellite DARS service and fixed

operations, including base stations and

radiolocation transmitters, when the

ERP is greater than 1000 watts; (2) all

portable devices; and (3) mobile

devices, if the EIRP of the station, in its

normal configuration, will be 1.5 watts

or greater. The Commission has chosen

the 1000 W ERP threshold, instead of

the proposed 2000 watts, because of the

flexibility in this service with respect to

use, power, location, and other factors,

and we believe that this power limit is

appropriate for most exposure

situations. This approach is consistent

with the Commission’s existing rules for

transmitters and devices of comparable

use and similar operating frequencies.

The Commission will be providing

guidance on acceptable methods of

evaluating compliance with the

Commission’s exposure limits in OET

Bulletin 65.

x. WCS Interference to MDS/ITFS

81. The Multipoint Distribution

Service (‘‘MDS’’) and the Instructional

Television Fixed Service (‘‘ITFS’’)

operate in the 2150–2162 and 2500–

2690 MHz bands. See 47 CFR part 21,

subpart K and part 74, subpart I. After

the comment period for this proceeding

had closed, several parties filed ex parte

statements expressing their concern that

WCS transmissions would interfere with

MDS/ITFS receiving installations.

Specifically, BellSouth states that the

receiver/downconverter

(‘‘downconverter’’) located at each

MDS/ITFS customer’s home is an

inexpensive broadband device that

receives all frequencies between 2.1

GHz and 2.7 GHz. Thus, BellSouth

states that a MDS/ITFS downconverter

located sufficiently close to a WCS

transmitter would directly receive WCS

signals that would prevent clear

reception of MDS/ITFS signals.

Specifically, BellSouth calculates that a

WCS transmitter that radiates more than

80 watts EIRP and that is located within

300 feet (91.44 meters) of a MDS/ITFS

downconverter would overload the

downconverter and thus prevent the

reception of MDS/ITFS programming

and information services. In order to

counteract this problem, BellSouth

requests that the Commission limit WCS

radiated power to 20 watts EIRP, unless

the WCS licensee obtains an

interference consent agreement from the

existing MDS and ITFS licensees.

BellSouth states that its proposed limit

on WCS power would limit the

maximum input to MDS/ITFS receivers

to 12 decibels below one milliwatt (or

¥12 dBm), thus providing protection

against receiver overload.

82. The Wireless Cable Association

asserts that there currently are one

million analog MDS/ITFS installations

and that interference from WCS

operations could cost $125,000,000 or

more to cure. The National ITFS

Association notes that the Commission

has a long standing policy of protecting

existing operations from interference

caused by newly authorized services

and requests that the Commission

address this issue in a manner that

would allow existing ITFS licensees to

use the frequencies licensed to them as

intended by the Commission.

83. At this time the Commission will

not impose any technical restrictions on

WCS licensees aimed at protecting the

MDS/ITFS services. The Commission

understands the concerns expressed by

the MDS/ITFS licensees, and

appreciates the value of the educational,

entertainment and other programming

provided by these services, including

competition in the MVPD market. As it

has repeatedly stated, it is the

Commission’s desire that these services

continue to flourish. However, based on

the record before us, the Commission is

not persuaded that the operation of

WCS facilities would irreparably harm

the MDS and ITFS services. Without a

clear sense of what particular services

WCS licensees will provide, and how

soon these will be operational, the

interference impact of WCS operations

on MDS/ITFS is unclear. Therefore the

Commission believes it would be

premature at this time to consider

specific interference protection for

MDS/ITFS. The Commission also

observes that the record on this issue is

incomplete in that concerns of the MDS/

ITFS community were first raised in late

filed ex parte comments and thus no

potential WCS applicants have had an

opportunity to respond to those

comments. The Commission also notes

that traditional, analog MDS/ITFS

downconverters have employed an

inexpensive design that has minimal

frequency selectivity. Thus, even though

MDS/ITFS is licensed in the 2150–2162

MHz and 2500–2690 MHz bands only,

their downconverters receive all signals

throughout the entire 2.1–2.7 GHz band.

The Commission is aware that the MDS/

ITFS industry is converting to newer,

more robustly designed downconverters

that have vastly improved frequency

selectivity and would not receive WCS

signals. Also, the digital

downconverters to which the MDS/ITFS

industry is expected to convert over the

next several years are expected to be

better designed and not subject to

overloading from WCS signals. The

Commission applauds these

developments and does not wish to

impede them. The public is served

through the efficient use of available

spectrum which, in turn, is facilitated

by the use of receiving technology

designed to provide protection from

other spectrum users in the market.

Thus, to the extent that the Commission

may in the future, based on actual WCS

operations, find it necessary to adopt an

interference rule for WCS, it would

protect only those MDS/ITFS

downconverters installed within a year

from the adoption date of this Report

and Order. After that time, the

Commission would expect that only

more spectrally efficient

downconverters would be installed by

MDS/ITFS licensees. In sum, the

Commission concludes that it would be

improvident to adopt a requirement for

WCS licensees to protect MDS/ITFS

operations unless and until it has a

more precise understanding about the

nature and extent of problems that may

actually arise.

xi. Field Strength Between Service

Areas

84. In order for licensees to share

spectrum along a common border, each

licensee must decrease its signal level at

the border so that, while it can provide

acceptable communications within its

licensed service area, its signal level

across the border is sufficiently reduced

to avoid causing interference to the

neighboring system. In broadband PCS,

the Commission adopted a predicted or

measured median field strength of 47

dBμV/m at any location on the border of

the PCS service area unless the parties

agree to a higher field strength. In

drafting the proposed rules in the

NPRM, we had to assume one of the

service area options that were proposed

in text. We assumed a nationwide

license and thus did not specifically

address the issue of median field

strength between initial service areas.

Nevertheless, we did specifically

propose requiring a maximum median

field strength of 47 dBμV/m between

those service areas which would be

formed through geographic partitioning.

The Commission shall adopt this same

47 dBμV/m maximum median field

strength requirement between all service
9650 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

areas, unless the parties agree to a

different field strength.

xii. Additional Technical Issues

85. In addition, Sun Microsystems

requests that a minimum data rate of 5

bits per hertz be required for the WCS

bands. Sun Microsystems argues that

setting the minimum data rate at this

high level would stimulate new

technologies. Sun Microsystems

proposes that analog transmission on

the WCS spectrum be prohibited. Sun

Microsystems states that each service

offering should be tiered in order to

allow the largest possible number of

people to afford its benefits. Sun

Microsystems requests that high gain

directional antenna systems (with

beamwidths no greater than 2° to 3°) be

required for high power use and that

any omnidirectional antenna be

required to use low power and 18 to 25

dB gain antennas. Finally, Sun

Microsystems suggests that orthogonal

coding and modulation schemes be

permitted in order to allow more than

one licensee to use the same spectrum

simultaneously. No party commented

on Sun Microsystems’ proposals.

86. The Commission believes that the

licensees will have a strong incentive to

put the spectrum to its best use. There

is nothing in the record of this

proceeding that suggests that

prohibiting certain technologies or

requiring specific technologies is

appropriate for the WCS. Accordingly,

the Commission declines to adopt the

technical regulations proposed by Sun

Microsystems.

E. Auction Procedures

87. In the NPRM, the Commission

proposed an auction design and preauction procedures for the WCS service

in accordance with the Appropriations

Act and the expedited schedule which

it imposes. Specifically, the

Commission proposed to award the

WCS licenses through competitive

bidding and by means of a simultaneous

multiple round electronic auction. The

Commission based this proposal on the

need to auction the WCS licenses

quickly and to promote the efficient use

of the spectrum. As the Commission

noted, the Appropriations Act requires

it to commence the WCS auction no

later than April 15, 1997 and to conduct

the auction in a manner that ensures

that all proceeds are deposited into the

United States Treasury no later than

September 30, 1997.

i. Competitive Bidding Design

88. In the NPRM, the Commission

proposed to auction licenses to offer

WCS service in conformity with the

general competitive bidding rules in

part 1, subpart Q of the Commission’s

Rules and substantially consistent with

the auctions that have been employed in

other wireless services. 47 CFR part 1,

subpart Q. In addition, the Commission

proposed certain modifications,

addressed infra, to help speed the

auction process given the deadlines

imposed by the Appropriations Act.

89. The Commission adopts its

proposal to employ a single

simultaneous multiple round auction

design for the WCS auction similar to

that used in the PCS auctions. As the

Commission explained in the NPRM,

multiple round bidding will provide

more information to bidders about the

values of the licenses during the auction

than single round bidding. With better

information, bidders will have less

incentive to shade their bids downward

in order to avoid the ‘‘winner’s curse’’,

that is the tendency for the winner to be

the bidder who most overestimates the

value of the item being auctioned. The

Commission also believes that multiple

round bidding is likely to be fairer than

single round bidding as every bidder

will have the opportunity to win a

license if it is willing to pay the most

for it. Finally, as the Commission stated

in the NPRM, a single simultaneous

auction will facilitate any aggregation

strategies that bidders may have and

will provide the most information to

bidders about license values at a time

that they can best put that information

to use.

90. In addition, the Commission

adopts its proposal to require bidding

for WCS licenses by electronic means

only. As the Commission indicated in

the NPRM, this decision is based on the

belief that while oral outcry auctions

can be simple and rapid, it is not

possible to auction multiple licenses

simultaneously in an oral auction. The

Commission also notes that because of

the potentially large value of the WCS

licenses, an electronic multiple round

auction will be preferable because it

will permit bidders time between

rounds to confer with principals and

reassess their valuation models and

bidding strategies. The Commission also

adopts its proposal to require that

bidders submit their bids electronically,

rather than by telephone. Given the time

constraints imposed by the

Appropriations Act, as well as the

recent improvements in our electronic

bidding software, the Commission

believes that telephonic bidding should

be permitted only under exceptional

circumstances, to be determined by the

Wireless Telecommunications Bureau.

Finally, the Commission delegates to the

Wireless Telecommunications Bureau

the discretion to determine whether

bidding for the WCS auction will be

remote or on-site.

ii. Bidding Procedures

91. In the NPRM, the Commission

tentatively concluded that the WCS

auction should follow the general

competitive bidding procedures of part

1, subpart Q of the Commission’s rules.

See 47 CFR part 1, subpart Q. In

addition, the Commission proposed to

adopt specific provisions regarding

certain bidding-related issues. Finally,

the Commission asked interested parties

to suggest the appropriate level of a

minimum opening bid for the WCS

license or licenses.

92. The Commission adopts the

bidding procedures proposed in the

NPRM. The WCS auction will be

conducted using the general bidding

procedures set forth in part 1, subpart Q

of the Commission’s rules, with some

minor modifications designed to speed

the auction in order to comply with the

time constraints imposed by the

Appropriations Act. Specifically, the

Commission delegates to the Wireless

Telecommunications Bureau the

discretion to establish a minimum

opening bid for the WCS licenses and to

announce the minimum opening bid by

public notice. As the Commission stated

in the NPRM, a minimum opening bid

will cause bidders to start bidding at a

substantial fraction of the final price of

the license or licenses, thus ensuring

that the auction proceeds quickly and

increasing the likelihood that the public

receives fair market value for the license

or licenses. In keeping with its

obligation under the Appropriations Act

to ensure that the auction proceed

rapidly, the Commission also delegates

to the Wireless Telecommunications

Bureau the discretion to establish, raise

and lower minimum bid increments in

the course of the auction. See 47 CFR

1.2104(d). Finally, the Commission

concludes that where a tie bid occurs,

the high bidder will be determined by

the order in which the bids were

received by the Commission.

iii. Procedural and Payment Issues

93. In the NPRM, the Commission

tentatively concluded that, with certain

proposed modifications, subpart Q of

part 1 of the Commission’s rules

establishing procedural and payment

rules for FCC auctions generally should

apply to the WCS auction. Only one

commenter addressed these issues.

DigiVox contends that to effectively

compete in the auctions, many parties

(especially small businesses) will need

90 days from the release of the final

rules before FCC Forms 175 are due in
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9651

order to finalize their business plans.

DigiVox proposes a schedule that

includes commencing the auction on

May 2, 1997. As the Commission

recognized in the NPRM, the

Appropriations Act requires that the

Commission ‘‘shall commence the

competitive bidding’’ for WCS licenses

no later than April 15, 1997. Although

DigiVox urges an interpretation of this

requirement that would allow

applicants to submit their short-form

applications on that date, the

Commission concludes that the statute

clearly requires that ‘‘bidding’’

commence on April 15, 1997. The

Commission therefore will commence

the WCS auction on April 15, 1997, and

the auction will be conducted in

substantial conformity with subpart Q of

part 1 of the Commission’s Rules. The

Commission also adopts general rules

regarding application and licensing

procedures. See subpart E of new part

27.

94. Pre-Auction Application

Procedures. In the NPRM, the

Commission proposed that WCS

applicants be required to file a shortform application (FCC Form 175) prior

to the auction. See 47 CFR 1.2105(a). In

addition, the Commission tentatively

concluded that the Commission should

require electronic filing of all

applications for this auction. The

Commission received no comments

addressing this issue, and will

implement this proposal. Each bidder in

the WCS auction must submit a shortform application (FCC Form 175) by

means of electronic filing. As the

Commission stated in the NPRM, the

Commission believes that electronic

filing of applications will serve the best

interests of auction participants as well

as ensure that the WCS auction will be

completed within the time frame

mandated under the Appropriations

Act. The Commission has developed

user-friendly electronic filing software

and Internet World Wide Web forms to

give applicants the ability to easily and

inexpensively file and review

applications. In addition, the

Commission believes that in light of the

legislative deadline of April 15, 1997 for

commencement of this auction,

requiring electronic filing will be

helpful to applicants as well as the

Commission. By shortening the time

required for the Commission to process

applications before the auction,

electronic filing will increase the lead

time available to applicants to finalize

their business plans and arrange

necessary financing before the shortform filing deadline.

95. The Commission also proposed in

the NPRM that an applicant’s electronic

submission of FCC Form 175 include a

certification that the applicant is not in

default on any Commission licenses and

that it is not delinquent on any

extension of credit from any federal

agency. No commenters addressed this

issue. The Commission therefore adopts

this certification requirement for the

WCS auction. As the Commission stated

in the NPRM, a certification regarding

defaulted licenses and delinquent

payments to federal agencies will enable

us to better evaluate the financial

qualifications of potential bidders,

because it will allow us to determine

whether any bidder may later be subject

to a monetary judgment or collection

procedures that may impair its financial

ability to provide service. In the Second

Report and Order, we decided that we

should require sufficient information on

the short-form application to make a

determination that ‘‘the application is

not in violation of Commission Rules

and that applications not meeting those

requirements may be dismissed prior to

the competitive bidding.’’

Implementation of Section 309(i) of the

Communications Act—Competitive

Bidding, PP Docket No. 93–253, Second

Report and Order, 59 FR 22980 (May 4,

1994) (‘‘Second Report and Order’’).

Part of this documentation necessarily

includes certification that the bidder has

the legal, technical, financial, and other

qualifications to bid in the auction.

96. Upfront Payment Amount. The

Commission’s Part 1 Rules require the

submission of an upfront payment as a

prerequisite to participation in spectrum

auctions. See 47 CFR 1.2106. In the

NPRM, the Commission proposed to set

the amount of the WCS upfront payment

based on the general formula the

Commission adopted in the Second

Report and Order of $.02 per megahertz

per population. In addition to seeking

comment on this proposal, the

Commission asked commenters to

suggest alternative methods of

establishing an upfront payment, and in

particular, how the Commission may

estimate the value of the spectrum to be

auctioned. The Commission received no

comments or alternative suggestions on

this issue, and will therefore adopt the

proposed upfront payment for the WCS

auction. Given that a range of services

may be provided on WCS spectrum, it

is difficult to estimate the value of this

spectrum. The Commission believes,

however, that a $.02 per megahertz per

population upfront payment will serve

the twin purposes of upfront

payments—to deter insincere bidding

and to provide the Commission with a

source of funds to satisfy any bid

withdrawal or default payments—

without being so high as to discourage

participation in the WCS auction.

97. Procedure For Upfront Payment.

The Commission also proposed to

require bidders to deposit their upfront

payments in the Commission’s lock-box

bank by wire transfer only by a date to

be announced by public notice. No

commenters addressed this issue. The

Commission therefore adopts the

requirement that bidders in the WCS

auction deposit their upfront payment

by wire transfer only. Although in the

past the Commission has permitted

payment by cashier’s check, the

Commission believes that requiring

payment by wire transfer will benefit

bidders by streamlining and expediting

the administration of the auction. As the

Commission noted in the NPRM, the

Commission’s experience has shown

that verification of payments remitted

by cashier’s check is time-consuming

and cumbersome, and requires the

allotment of extra processing time prior

to the start of the auction. Permitting

payment by cashier’s check would

require that upfront payments be made

at an earlier point, which would

decrease applicants’ lead time to pursue

business plans and arrange necessary

financing before the start of the auction.

In addition, given the large number of

financial institutions offering wire

transfer services, a requirement that

bidders remit their upfront payments by

wire transfer will result in minimal, if

any, extra cost to auction applicants.

Such a cost is far outweighed by the

benefit of speeding the auction process

through quicker verification of

payments.

98. Down Payment and Full Payment.

In the NPRM, the Commission

tentatively concluded that to help

ensure that auction winners are able to

pay the full amount of their bids, every

winning bidder in the WCS auction

would be required to tender a down

payment sufficient to bring its total

amount on deposit with the

Commission up to 20 percent of its

winning bid. See 47 CFR 1.2107(b). No

commenters addressed this issue. The

Commission therefore concludes that a

down payment equal to 20 percent of

each high bidder’s total winning bids

will be due within 10 business days

after the issuance of a public notice

announcing the winning bidder for each

WCS license.

99. The Commission also proposed

that a winning bidder that makes its

down payment in a timely manner be

required to file an FCC Form 600 longform application and follow the longform application procedures in § 1.2107.

See 47 CFR 1.2107. The Commission

proposed that after reviewing the
9652 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

winning bidder’s long-form application,

and after verifying receipt of the

winning bidder’s 20 percent down

payment, the Commission would

announce the application’s acceptance

for filing, thus triggering the filing

window for petitions to deny. The

Commission also noted that given the

abbreviated auction schedule

contemplated by the Appropriations

Act, a condensed schedule for the filing

of petitions to deny would apply for the

WCS auction. No commenters addressed

this issue. The Commission therefore

adopts these proposals governing longform application procedures. Winning

bidders that have made the necessary

down payment will be required to file

a modified FCC Form 600 that has been

updated to provide for the

Commission’s decision to permit

flexibility in terms of permissible uses.

Finally, the Appropriations Act

provides that no application for a WCS

authorization may be granted earlier

than seven (7) days following public

notice of the acceptance for filing of

such an application, and that parties

will have no less than five (5) days

following such public notice to file a

petition to deny. See Appropriations

Act, section 3001(c). The Commission

will therefore afford parties five (5) days

to file a response to any petition to

deny. If, pursuant to Section 309(d) of

the Communications Act, the

Commission dismisses or denies any

and all petitions to deny, the

Commission will announce by public

notice that it is prepared to award a

license and the winning bidder will

then have ten (10) business days to

submit the balance of its winning bid.

If the bidder does so, the license will be

granted. If the bidder fails to submit the

required down payment or the balance

of the winning bid or the license is

otherwise denied, the Commission will

assess a default payment as discussed

infra.

100. Amendments and Modifications

of Applications. In the NPRM, the

Commission stated that to encourage

maximum bidder participation,

applicants should be permitted to

amend or modify their short-form

applications as provided in § 1.2105. 47

CFR 1.2105. The Commission also noted

that in the broadband PCS context, the

Commission modified its rules to permit

ownership changes that result when

consortium investors drop out of

bidding consortia, even if control of the

consortium changes due to this

restructuring. No commenters addressed

this issue. The Commission therefore

adopts the same exception to its rules

prohibiting major amendments in the

WCS auction.

101. Bid Withdrawal, Default and

Disqualification. In the NPRM, the

Commission tentatively concluded that

the withdrawal, default, and

disqualification rules for the WCS

auction would be based upon the

procedures established in the

Commission’s general competitive

bidding rules. With regard to bids which

are submitted in error, the Commission

proposed to apply the guidelines which

it recently fashioned to provide for relief

from the bid withdrawal payment

requirements under certain

circumstances. See Atlanta Trunking

Associates, Inc. and MAP Wireless

L.L.C. Requests to Waive Bid

Withdrawal Payment Provisions, Order

11 FCC Rcd 17189, 61 FR 25807 (May

23, 1996), recon. pending. See also

Georgia Independent PCS Corporation

Request to Waive Bid Withdrawal

Payment Provision, Order, 11 FCC Rcd

13728, 61 FR 25810 (May 23, 1996),

app. rev. pending. No commenters

addressed this issue. We therefore adopt

these provisions governing bid

withdrawal, default and disqualification

for the WCS auction.

iv. Anti-Collusion Rules

102. In the NPRM, the Commission

tentatively concluded that the anticollusion rules which the Commission

adopted in the Second Report and

Order, and which are codified at 47 CFR

1.2105, should apply to the WCS

auction. The Commission received no

comments addressing the issue of

collusion. The Commission has

therefore determined that these rules

prohibiting collusive conduct will apply

to the WCS auction.

v. Treatment of Designated Entities

103. Race- and gender-based

classifications must meet exacting

standards of judicial review. In Adarand

Constructors v. Pen ̃ a, 115 S.Ct. 2097

(1995) (‘‘Adarand’’) the Supreme Court

held that all racial classifications,

whether imposed at the federal, state or

local government level, must be

analyzed by a reviewing court under a

strict scrutiny standard of review. This

standard requires such classifications to

be narrowly tailored to further a

compelling governmental interest.

Adarand, 115 S. Ct. at 2113. In United

States v. Virginia, 116 S.Ct. 2264 (June

26, 1996) (‘‘VMI’’) the Supreme Court

reviewed a state program containing

gender classification and held it was

unconstitutional under an intermediate

scrutiny standard of review. This

standard requires that ‘‘[p]arties who

seek to defend gender-based government

action must demonstrate an

‘exceedingly persuasive justification’ for

that action.’’ VMI, 116 S. Ct. at 2274

(citing J.E.B. v. Alabama ex rel. T. B.,

511 U.S. 127, 136–37 and n. 6 (1994)

and Mississippi Univ. for Women v.

Hogan, 458 U.S. 718, 724 (1982)). Under

this test, the government must show ‘‘at

least that the (challenged) classification

serves ‘important governmental

objectives and that the discriminatory

means employed’ are ‘substantially

related to the achievement of those

objectives.’ ’’ Id. at 2275 (quoting

Mississippi Univ. for Women v. Hogan,

458 U.S. at 724 (quoting Wengler v.

Druggists Mutual Ins. Co., 446 U.S. 142,

150 (1980))). While the Supreme Court

has not directly addressed

constitutional challenges to federal

gender-based programs since Adarand

and VMI, the Commission’s review of

the relevant broad language in VMI

indicates that the Court does not

differentiate between federal and state

official actions in its equal protection

analysis. Similarly, the Adarand

decision definitively eliminated any

distinction between federal and state

race-based programs in setting its strict

scrutiny standard of judicial review.

Adarand, 115 S. Ct. at 2113. Therefore,

the Commission concludes that any

gender-based preference maintained in

the WCS auction rules would need to

meet the VMI intermediate scrutiny

standard of review.

104. The Commission believes that

the record in this proceeding is

insufficient to support race- and genderbased provisions that would survive

judicial scrutiny. Moreover, adopting

race- and gender-based provisions

unsupported by a substantial record

would disserve the public interest

because it might result in litigation that

could further delay the conduct of the

auction and the award of WCS licenses,

and postpone the introduction of new

competition to the marketplace. The

Commission therefore concludes that it

should not adopt special auction

provisions that are race- and genderbased.

105. While the Commission declines

to establish race- and gender-based

provisions for the WCS auction rules,

the Commission will adopt provisions

for small businesses, as suggested by

several commenters. The Commission

notes that nothing in the Adarand or

VMI decisions calls the Commission’s

small business provisions into question.

Moreover, by retaining small business

preferences, the Commission believes

that it fulfill its mandate under section

309(j) to provide increased

opportunities for minority- and womenowned businesses, 47 U.S.C. 309(j)(3),
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9653

because many minority- and womenowned entities are small businesses who

therefore will qualify for the same

special provisions that would have

applied to them under the previous

rules.

106. The Commission also has

initiated a comprehensive rule making

proceeding to gather evidence regarding

market barriers to entry faced by small

businesses as well as minority- and

women-owned firms. See Section 257

Proceeding to Identify and Eliminate

Market Entry Barriers for Small

Businesses, GN Docket No. 96–113,

Notice of Inquiry, 11 FCC Rcd 6280, 61

FR 33066 (June 26, 1996). If a sufficient

record is adduced that will support

race- and gender-based provisions that

will satisfy judicial scrutiny, the

Commission will consider race- and

gender-based provisions for future

auctions. Toward this end, the

Commission will continue to request

bidder information on the WCS shortform filings as to minority- or womenowned status. In its analysis of the

applicant pool and the auction results,

the Commission will monitor whether it

has accomplished substantial

participation by minorities and women

through the broad provisions available

to small businesses. This will also assist

the Commission in preparing its report

to Congress on the success of designated

entities in auctions. See 47 U.S.C.

309(j)(12)(D).

i. Special Provisions for Designated

Entities

A. Bidding Credits

107. The Commission will adopt

bidding credits for small businesses and

will adopt a tiered bidding credit

approach, as supported by several

commenters. The Commission agrees

with commenters that the availability of

bidding credits is consistent with the

Commission’s obligations under section

309(j) to promote economic opportunity

for a wide variety of applicants,

including small businesses and

businesses owned by minorities and

women. The Commission believes that a

tiered approach, which enhances the

discounting effect of bidding credits

because not all entities receive the same

benefit, will encourage smaller

businesses to participate in the

provision of WCS services. As for the

level of the credits, the Commission

believes that bidding credits of 25

percent for small businesses and 35

percent for very small businesses are

appropriate. These levels reflect the

thresholds used in the broadband PCS

auctions with a reasonable adjustment

for the unavailability of installment

payment plans for WCS licensees. It is

difficult to accurately calculate the net

present value of an installment program

(which would depend on several

variables including future commercial

interest rates), and the Commission

therefore is adjusting the broadband

PCS bidding credit levels upward by ten

percentage points. The Commission

believes that this tiered bidding credit

approach and 10 percent adjustment are

reasonable and consistent with the

comments. These credits are narrowly

tailored to the varying abilities of

businesses to access capital and also

take into account that different small

businesses will pursue different

strategies.

B. Definition of Small Business

108. Consistent with the suggestions

of many of the commenters, the

Commission will generally employ the

small business definitions and

standards used in broadband PCS,

which the Commission believes have

the advantages of ready availability and

familiarity to many small businesses

that might be interested in this

spectrum. The Commission will

therefore define a ‘‘small business’’ as

an entity with average gross revenues

not exceeding $40 million for each of

the preceding three years, and a ‘‘very

small business’’ as an entity with

average gross revenues not exceeding

$15 million in each of the preceding

three years. The Commission declines to

adopt the higher revenue standard

suggested by Vanguard because it does

not believe that Congress, in enacting

section 309(j), intended for firms with

$500 million in revenue to be regarded

as ‘‘small’’. Furthermore, adopting

Vanguard’s suggested standard would

create severe disparities between ‘‘small

businesses’’ in terms of capitalization

and access to financing.

109. In determining whether an entity

qualifies as a small business at either

threshold, the Commission will

consider the gross revenues of the

applicant, its affiliates, and certain

investors in the applicant. Specifically,

the Commission will attribute the gross

revenues of all controlling principals in

the applicant as well as the gross

revenues of affiliates of the applicant.

Consistent with broadband PCS rules,

the Commission will apply two notable

exceptions to these attribution rules.

First, the Commission determines that

personal net worth is not included in

the determination of eligibility for

bidding as a small business. Second, the

Commission agrees with CIRI that

entities owned by Alaska Native

Corporations and Indian Tribes are

exempt from affiliation for purposes of

determining eligibility of applicants for

bidding credits, because of the general

lack of availability of revenues from

such entities for purposes of

participation in WCS. This exception is

consistent with treatment afforded such

entities by the Small Business

Administration’s 8(a) program, See 13

CFR 124.112(c)(2)(iii), and as the

Commission previously has determined,

it does not believe such a provision to

be affected by Adarand.

110. The Commission declines,

however, to employ the specific control

group equity requirements that the

Commission adopted for broadband

PCS, because the time frame for the

conduct of the WCS auction is likely to

be too short to allow for the creation of

the type of complex financial

relationships as arose in the broadband

PCS context. Instead, the Commission

will simply define the term ‘‘control’’ to

include both de jure and de facto

control of the applicant. However, the

Commission will still require that, in

order for an applicant to qualify as a

small business, qualifying small

business principals must maintain

‘‘control’’ of the applicant. The

Commission also notes that while it is

not imposing specific equity

requirements on the small business

principals, the absence of significant

equity could raise questions about

whether the applicant qualifies as a

bona fide small business.

C. Unjust Enrichment

111. The Commission agrees with

CIRI on the employment of an unjust

enrichment restriction on the transfer of

licenses acquired by small businesses,

similar to that set forth in 47 CFR

24.839(d), which the Commission

believes is necessary to ensure that

meaningful small business participation

is not thwarted by transfers of licenses

to non-designated entities. To permit

otherwise would severely impede the

meaningful participation of designated

entities because bidders could

participate as small businesses with the

intention not of providing service but

only of profiting from the difference in

the discounted auction price and the

worth of the license on the resale

market. To prevent unjust enrichment

by small businesses transferring licenses

acquired through the use of bidding

credits, the Commission imposes a

payment requirement on transfers of

such licenses to entities that are not

owned by small businesses. The

Commission believes it is appropriate to

conform our unjust enrichment rules for

WCS to the broadband PCS unjust

enrichment rules as they relate to

bidding credits. These rules provide
9654 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

that, during the initial license term,

licensees utilizing bidding credits and

seeking to assign or transfer control of

a license to an entity that does not meet

the eligibility criteria for bidding credits

will be required to reimburse the

government for the amount of the

bidding credit before the transfer will be

permitted. 47 CFR 24.716(d)(1).

Additionally, the rules which the

Commission now adopts provide that if,

within the original term, a licensee

applies to assign or transfer control of a

license to an entity that is eligible for a

lower bidding credit, the difference

between the bidding credit obtained by

the assigning party and the bidding

credit for which the acquiring party

would qualify must be paid to the

United States Treasury as a condition of

approval of the assignment or transfer.

47 CFR 24.716(d)(2). See also 47 CFR

1.2111. These provisions also will apply

to WCS licensees who partition or

disaggregate their licenses.

112. If a licensee that utilizes bidding

credits seeks to make any change in

ownership structure that would render

the licensee ineligible for bidding

credits, or eligible only for a lower

bidding credit, the licensee must first

seek Commission approval and

reimburse the government for the

amount of the bidding credit, or the

difference between its original bidding

credit and the bidding credit for which

it is eligible after the ownership change,

plus interest based on the rate for ten

year U.S. Treasury obligations

applicable on the date the license is

granted. Additionally, if an investor

subsequently purchases an interest in

the business and, as a result, the gross

revenues of the business exceed the

applicable financial caps, this unjust

enrichment provision will apply.

113. The amount of this payment will

be reduced over time as follows: (1) A

transfer in the first five years of the

license term will result in a forfeiture of

100 percent of the value of the bidding

credit (or, in the case of very small

businesses transferring to small

businesses, 100 percent of the difference

between the bidding credit received by

the former and the bidding credit for

which the latter is eligible); (2) in year

six of the license term the payment will

be 80 percent; (3) in year seven the

payment will be 60 percent; in year

eight the payment will be 40 percent;

and in year nine the payment will be 20

percent, after which there will be no

required payment. These assessments

will have to be paid to the U.S. Treasury

as a condition of approval of the

assignment, transfer, or ownership

change.

D. Other Matters

114. Based upon the record in this

proceeding, the Commission has

determined that special provisions for

rural telcos are not warranted. However,

rural telcos can take advantage of the

geographic partitioning and spectrum

disaggregation provisions which the

Commission adopts, and those rural

telcos that qualify as small or very small

businesses may take advantage of the

Commission’s tiered bidding credits. In

addition, the Commission declines to

afford an additional bidding credit, as

suggested by DigiVox, to small

businesses bidding in areas in which

they hold no CMRS licenses. The

Commission believes that such

preferences might discourage small

businesses from acquiring WCS

spectrum as supplemental for CMRS

services already offered in that

geographic license area, which would

run counter to our goal of flexible use.

The Commission also declines to adopt

any limit on the total number of WCS

licenses for which an entity may take

advantage of small business bidding

credits. The Commission does not

regard such limitation as necessary and

generally believes that, absent a strong

justification to do otherwise, the auction

process should be permitted to work

without constraint to allow all bidders

to express their valuations of the

licenses up for bid. Finally, the

Commission also declines to set aside a

block of licenses for auction only to

designated entities because the

Commission does not believe such setasides to be necessary to ensure

opportunities for participation by

designated entities in light of the

substantial bidding credits, as well as

the partitioning and disaggregation rules

the Commission is adopting.

115. The Commission also notes that

its decision both to license WCS in two

10 MHz blocks and two 5 MHz blocks,

and to designate MEA and REAG service

areas should increase the opportunities

for participation in WCS by small

businesses and other designated

entities. These decisions will help to

ensure that the cost of obtaining WCS

spectrum remains within reach of a

larger number of prospective applicants

than would be the case were we to offer

only one or two licenses in each area.

In addition, by offering licenses for

smaller blocks of spectrum, the

Commission will enable WCS

applicants to acquire only the amount of

spectrum necessary to implement their

particular service plans. Such

efficiencies directly benefit small

businesses who may not be able to

afford to acquire larger blocks of

spectrum. For example, permitting

bidders to acquire smaller blocks of

spectrum will enable small businesses

that have identified niche markets to

focus their bidding and avoid paying for

more spectrum than they actually need.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Parts 1, 2, 27, and 97 of title 47 of the

Code of Federal Regulations are

amended as follows:

PART 1—PRACTICE AND

PROCEDURE

1. The authority citation for part 1

continues to read as follows:

Authority: 47 U.S.C. 151, 154, 303, and

309(j) unless otherwise noted.

2. Section 1.1307 is amended by

revising paragraphs (b)(1) and the first

sentence of paragraph (b)(2) and Table

1 in paragraph (b)(1) is amended by

adding the entry for the Wireless

Communications Service to read as

follows:

§ 1.1307 Actions that may have a

significant environmental effect, for which

Environmental Assessments (EAs) must be

prepared.

* * * * *

(b) * * *

(1) The exposure limits in § 1.1310 are

generally applicable to all facilities,

operations and transmitters regulated by

the Commission. However, a

determination of compliance with the

exposure limits in § 1.1310 (routine

environmental evaluation), and

preparation of an EA if the limits are

exceeded, is necessary only for

facilities, operations and transmitters

that fall into the categories listed in

Table 1, or those specified in paragraph

(b)(2) of this section. All other facilities,

operations and transmitters are

categorically excluded from making

such studies or preparing an EA, except

as indicated in paragraphs (c) and (d) of

this section. For purposes of Table 1,

‘‘rooftop’’ means the roof or otherwise

outside, topmost level or levels of a

building structure that is occupied as a

workplace or residence and where

either workers or the general public may

have access. The term ‘‘power’’ in

column 2 of Table 1 refers to total

operating power of the transmitting

operation in question in terms of

effective radiated power (ERP),

equivalent isotropically radiated power

(EIRP), or peak envelope power (PEP),

as defined in § 2.1 of this chapter. For

the case of the Cellular Radiotelephone

Service, subpart H of part 22 of this
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9655

chapter; the Personal Communications

Service, part 24 of this chapter; the

Wireless Communications Service, part

27 of this chapter; and covered

Specialized Mobile Radio Service

operations, part 90 of this chapter; the

phrase ‘‘total power of all channels’’ in

column 2 of Table 1 means the sum of

the ERP or EIRP of all co-located

simultaneously operating transmitters of

the facility. When applying the criteria

of Table 1, radiation in all directions

should be considered. For the case of

transmitting facilities using sectorized

transmitting antennas, applicants and

licensees should apply the criteria to all

transmitting channels in a given sector,

noting that for a highly directional

antenna there is relatively little

contribution to ERP or EIRP summation

for other directions.

TABLE 1.—TRANSMITTERS, FACILITIES

AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTAL EVALUATION

Service (Title 47 CFR

rule part) Evaluation required if:

* * * * * ...... * * * * *

Wireless Communications Service (Part

27).

Total power of all

channels > 1000 W

ERP (1640 W

EIRP)

TABLE 1.—TRANSMITTERS, FACILITIES

AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTAL EVALUATION—

Continued

Service (Title 47 CFR

rule part) Evaluation required if:

* * * * * ...... * * * * *

(2) Mobile and portable transmitting

devices that operate in the Cellular

Radiotelephone Service, the Personal

Communications Services, the Satellite

Communications Services, the Wireless

Communications Service, the Maritime

Services (ship earth stations only), and

covered Specialized Mobile Radio

Service providers authorized under

subpart H of part 22, part 24, part 25,

part 27, part 80, and part 90 of this

chapter are subject to routine

environmental evaluation for RF

exposure prior to equipment

authorization or use, as specified in

§§ 2.1091 and 2.1093 of this chapter.

* * *

* * * * *

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: Secs. 4, 302, 303, and 307 of the

Communications Act of 1934, as amended,

47 U.S.C. 154, 302, 303 and 307, unless

otherwise noted.

2. Section 2.106, the Table of

Frequency Allocations, is amended as

follows:

a. Remove the existing entries for

2300–2450 MHz.

b. Add entries in numerical order for

2300–2450 MHz.

c. In the International Footnotes

under heading I., add footnotes S5.150,

S5.282 , S5.393, S5.394, S5.395, and

S5.396 in numerical order.

d. In the International Footnotes

under heading II., remove footnotes

750B, 751, 751A, and 751B.

e. Remove United States footnote

US253.

f. Add United States footnotes US338

and US339 in numerical order.

g. Revise United States footnotes

US276 and US328.

h. Revise Government footnote G2.

i. Add Government footnotes G120,

G123 and G124 in numerical order.

The revisions and additions read as

follows:

§ 2.106 Table of Frequency Allocations.

* * * * *

International table United States table FCC use designators

Region 1—allocation MHzRegion 2—allocation MHzRegion 3—allocation MHz

Government Non-Government

Rule part(s) Special-use frequencies Allocation MHz Allocation MHz

(1) (2) (3) (4) (5) (6) (7)

* * * * * * *

2300–2305 2300–2305 2300–2305 2300–2305 2300–2305

FIXED FIXED FIXED Amateur Amateur (97)

MOBILE MOBILE MOBILE

Amateur RADIOLOCATION RADIOLOCATION

Radiolocation Amateur Amateur

S5.394 G123

2305–2310 2305–2310 2305–2310 2305–2310 2305–2310

FIXED FIXED FIXED FIXED WIRELESS COMMUNICATIONS

(27)

MOBILE MOBILE MOBILE MOBILE except

aeronautical

mobile

Amateur RADIOLOCATION RADIOLOCATION RADIOLOCATION Amateur (97)

Radiolocation Amateur Amateur Amateur

S5.394 US338 G123 US338

2310–2320 2310–2320 2310–2320 2310–2320 2310–2320

FIXED FIXED FIXED FIXED BROADCASTING—SATELLITE US327WIRELESS COMMUNICATIONS

(27)

Digital Audio

Radio Services

MOBILE MOBILE MOBILE Mobile US339 MOBILE US339

Amateur RADIOLOCATION RADIOLOCATION Radiolocation G2 RADIOLOCATION

Radiolocation Amateur Amateur
9656 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

International table United States table FCC use designators

Region 1—allocation MHzRegion 2—allocation MHzRegion 3—allocation MHz

Government Non-Government

Rule part(s) Special-use frequencies Allocation MHz Allocation MHz

(1) (2) (3) (4) (5) (6) (7)

S5.395 S5.393 S5.394

S5.396

S5.393 S5.396 S5.396 US327

US338 G120

S5.396 US338

2320–2345 2320–2345 2320–2345 2320–2345 2320–2345

BROADCASTING—SATELLITE US327

FIXED FIXED FIXED Fixed Digital Audio

Radio Services

MOBILE MOBILE MOBILE Mobile US 276 Mobile US 276

US328

Amateur RADIOLOCATION RADIOLOCATION Radiolocation G2

Radiolocation Amateur Amateur

S5.395 S5.393 S5.394

S5.396

S5.393 S5.396 S5.396 US327

US328 G120

S5.396

2345–2360 2345–2360 2345–2360 2345–2360 2345–2360

BROADCASTING—SATELLITE US327

Digital Audio

Radio Services

FIXED FIXED FIXED Fixed FIXED WIRELESS COMMUNICATIONS

(27)

MOBILE MOBILE MOBILE Mobile US339 MOBILE US339

Amateur RADIOLOCATION RADIOLOCATION Radiolocation G2 RADIOLOCATION

Radiolocation Amateur Amateur

S5.395 S5.393 S5.394

S5.396

S5.393 S5.396 S5.396 US327

G120

S5.396

2360–2390 2360–2390 2360–2390 2360–2390 2360–2390

FIXED FIXED FIXED MOBILE US276 MOBILE US276

MOBILE MOBILE MOBILE RADIOLOCATION

G2

Amateur RADIOLOCATION RADIOLOCATION Fixed

Radiolocation Amateur Amateur

S5.394 G120

2390–2400 2390–2400 2390–2400 2390–2400 2390–2400

FIXED FIXED FIXED AMATEUR AMATEUR (97)

MOBILE MOBILE MOBILE Radio Frequency

Devices (15)

Amateur RADIOLOCATION RADIOLOCATION

Radiolocation Amateur Amateur

S5.394 G122

2400–2402 2400–2402 2400–2402 2400–2402 2400–2402

FIXED FIXED FIXED Amateur Amateur (97)

MOBILE MOBILE MOBILE

Amateur RADIOLOCATION RADIOLOCATION

Radiolocation Amateur Amateur

S5.150 S5.282 S5.150 S5.282

S5.394

S5.150 S5.282 S5.150 G123 S5.150 S5.282

2402–2417 2402–2417 2402–2417 2402–2417 2402–2417

FIXED FIXED FIXED AMATEUR AMATEUR (97)

MOBILE MOBILE MOBILE Radio Frequency

Devices (15)

Amateur RADIOLOCATION RADIOLOCATION

Radiolocation Amateur Amateur

S5.150 S5.282 S5.150 S5.282

S5.394

S5.150 S5.282 S5.150 G122 S5.150 S5.282

2417–2450 2417–2450 2417–2450 2417–2450 2417–2450

FIXED FIXED FIXED Radiolocation G2 Amateur Amateur (97)

MOBILE MOBILE MOBILE

Amateur RADIOLOCATION RADIOLOCATION

Radiolocation Amateur Amateur
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9657

International table United States table FCC use designators

Region 1—allocation MHzRegion 2—allocation MHzRegion 3—allocation MHz

Government Non-Government

Rule part(s) Special-use frequencies Allocation MHz Allocation MHz

(1) (2) (3) (4) (5) (6) (7)

S5.150 S5.282 S5.150 S5.282

S5.394

S5.150 S5.282 S5.150 S5.282

G124

S5.150 S5.282

* * * * * * *

International Footnotes

* * * * *

I. New ‘‘S’’ Numbering Scheme.

* * * * *

S5.150 The following bands:

13533–13567 kHz (centre frequency

13560 kHz),

26957–27283 kHz (centre frequency

27120 kHz),

40.66–40.70 MHz (centre frequency

40.68 MHz),

902–928 MHz in Region 2 (centre

frequency 915 MHz),

2400–2500 MHz (centre frequency

2450 MHz),

5725–5875 MHz (centre frequency

5800 MHz), and

24–24.25 GHz (centre frequency

24.125 GHz)

are also designated for industrial,

scientific and medical (ISM)

applications. Radiocommunication

services operating within these bands

must accept harmful interference which

may be caused by these applications.

ISM equipment operating in these bands

is subject to the provisions of No. 1815/

S15.13.

S5.282 In the bands 435–438 MHz,

1260–1270 MHz, 2400–2450 MHz,

3400–3410 MHz (in Regions 2 and 3

only) and 5650–5670 MHz, the amateursatellite service may operate subject to

not causing harmful interference to

other services operating in accordance

with the Table (see No. S5.43).

Administrations authorizing such use

shall ensure that any harmful

interference caused by emissions from a

station in the amateur-satellite service is

immediately eliminated in accordance

with the provisions of No. 2741/S25.11.

The use of the bands 1260–1270 MHz

and 5650–5670 MHz by the amateursatellite service is limited to the Earthto-space direction.

* * * * *

S5.393 Additional allocation: in the

United States and India, the band 2310–

2360 MHz is also allocated to the

broadcasting-satellite service (sound)

and complementary terrestrial sound

broadcasting service on a primary basis.

Such use is limited to digital audio

broadcasting and is subject to the

provisions of Resolution 528 (WARC–

92).

S5.394 In the United States, the use

of the band 2300–2390 MHz by the

aeronautical mobile service for

telemetry has priority over other uses by

the mobile services. In Canada, the use

of the band 2300–2483.5 MHz by the

aeronautical mobile service for

telemetry has priority over other uses by

the mobile services.

S5.395 In France, the use of the

band 2310–2360 MHz by the

aeronautical mobile service for

telemetry has priority over other uses by

the mobile service.

S5.396 Space stations of the

broadcasting-satellite service in the

band 2310–2360 MHz operating in

accordance with No. S5.393 that may

affect the services to which this band is

allocated in other countries shall be

coordinated and notified in accordance

with Resolution 33. Complementary

terrestrial broadcasting stations shall be

subject to bilateral coordination with

neighboring countries prior to their

bringing into use.

* * * * *

United States (US) Footnotes

* * * * *

US276 Except as otherwise provided

for herein, use of the bands 2320–2345

and 2360–2390 MHz by the mobile

service is limited to aeronautical

telemetering and associated

telecommand operations for flight

testing of manned or unmanned aircraft,

missiles or major components thereof.

The following four frequencies are

shared on a co-equal basis by

Government and non-Government

stations for telemetering and associated

telecommand operations of expendable

and reusable launch vehicles whether or

not such operations involve flight

testing: 2332.5, 2364.5, 2370.5, and

2382.5 MHz. All other mobile

telemetering uses shall be secondary to

the above uses.

* * * * *

US328 In the band 2320–2345 MHz,

the mobile and radiolocation services

are allocated on a primary basis until a

broadcasting-satellite (sound) service

has been brought into use in such a

manner as to affect or be affected by the

mobile and radiolocation services in

those service areas. The broadcastingsatellite (sound) service during

implementation should also take

cognizance of the expendable and

reusable launch vehicle frequency

2332.5 MHz, to minimize the impact on

this mobile service use to the extent

possible.

* * * * *

US338 In the 2305–2310 MHz band,

space-to-Earth operations are

prohibited. Additionally, in the 2305–

2320 MHz band, all Wireless

Communications Service (WCS)

operations within 50 kilometers of 35°

20′′ North Latitude and 116° 53′′ West

Longitude shall be coordinated through

the Frequency Assignment

Subcommittee of the Interdepartment

Radio Advisory Committee in order to

minimize harmful interference to

NASA’s Goldstone Deep Space facility.

US339 The bands 2310–2320 and

2345–2360 MHz are also available for

aeronautical telemetering and associated

telecommand operations for flight

testing of manned or unmanned aircraft,

missiles or major components thereof on

a secondary basis to the Wireless

Communications Service. The following

two frequencies are shared on a co-equal

basis by Government and nonGovernment stations for telemetering

and associated telecommand operations

of expendable and re-usable launch

vehicles whether or not such operations

involve flight testing: 2312.5 and 2352.5

MHz. Other mobile telemetering uses

may be provided on a non-interference

basis to the above uses. The

broadcasting-satellite (sound) service

during implementation should also take

cognizance of the expendable and

reusable launch vehicle frequencies

2312.5 and 2352.5 MHz, to minimize

the impact on this mobile service use to

the extent possible.

* * * * *

Government Footnotes

* * * * *
9658 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

G2 In the bands 216–225, 420–450

(except as provided by US217), 890–

902, 928–942, 1300–1400, 2310–2390,

2417–2450, 2700–2900, 5650–5925, and

9000–9200 MHz, the Government

radiolocation is limited to the military

services.

* * * * *

G120 Development of airborne

primary radars in the band 2310–2390

MHz with peak transmitter power in

excess of 250 watts for use in the United

States is not permitted.

* * * * *

G123 The bands 2300–2310 and

2400–2402 MHz were identified for

reallocation, effective August 10, 1995,

for exclusive non-Government use

under Title VI of the Omnibus Budget

Reconciliation Act of 1993. Effective

August 10, 1995, any Government

operations in these bands are on a noninterference basis to authorized nonGovernment operations and shall not

hinder the implementation of any nonGovernment operations.

G124 The band 2417–2450 MHz was

identified for reallocation, effective

August 10, 1995, for mixed Government

and non-Government use under Title VI

of the Omnibus Budget Reconciliation

Act of 1993.

3. Section 2.1091 is amended by

revising the first sentence in paragraph

(c) to read as follows:

§ 2.1091 Radiofrequency radiation

exposure evaluation: mobile and

unlicensed devices.

* * * * *

(c) Mobile devices that operate in the

Cellular Radiotelephone Service, the

Personal Communications Services, the

Satellite Communications Services, the

Wireless Communications Service, the

Maritime Services and the Specialized

Mobile Radio Service authorized under

subpart H of part 22 of this chapter, part

24 of this chapter, part 25 of this

chapter, part 27 of this chapter, part 80

of this chapter (ship earth station

devices only) and part 90 of this chapter

(‘‘covered’’ SMR devices only, as

defined in the note to Table 1 of

§ 1.1307(b)(1) of this chapter), are

subject to routine environmental

evaluation for RF exposure prior to

equipment authorization or use if their

effective radiated power (ERP) is 1.5

watts or more. * * *

* * * * *

4. Section 2.1093 is amended by

revising the first sentence of paragraph

(c) to read as follows:

§ 2.1093 Radiofrequency radiation

exposure evaluation: portable devices.

* * * * *

(c) Portable devices that operate in the

Cellular Radiotelephone Service, the

Personal Communications Services, the

Satellite Communications Services, the

Wireless Communications Service, the

Maritime Services and the Specialized

Mobile Radio Service authorized under

subpart H of part 22 of this chapter, part

24 of this chapter, part 25 of this

chapter, part 27 of this chapter, part 80

of this chapter (ship earth station

devices only), part 90 of this chapter

(‘‘covered’’ SMR devices only, as

defined in the note to Table 1 of section

1.1307(b)(1) of this chapter), and

portable unlicensed personal

communication service and millimeter

wave devices authorized under § 15.253,

§ 15.255 or subpart D of part 15 of this

chapter are subject to routine

environmental evaluation for RF

exposure prior to equipment

authorization or use. * * *

* * * * *

5. A new part 27 is added to read as

follows:

PART 27—WIRELESS

COMMUNICATIONS SERVICE

Subpart A—General Information

Sec.

27.1 Basis and purpose.

27.2 Permissible communications.

27.3 Other applicable rule parts.

27.4 Terms and definitions.

27.5 Frequencies.

27.6 Service areas.

Subpart B—Applications and Licenses

27.11 Initial authorization.

27.12 Eligibility.

27.13 License period.

27.14 Construction requirements; Criteria

for comparative renewal proceedings.

27.15 Geographic partitioning and spectrum

disaggregation.

Subpart C—Technical Standards

27.51 Equipment authorization.

27.52 RF safety.

27.53 Emission limits.

27.54 Frequency stability.

27.55 Field strength limits.

27.56 Antenna structures; air navigation

safety.

27.57 International coordination.

27.59 Environmental requirements.

27.61 Quiet zones.

27.63 Disturbance of AM broadcast station

antenna patterns.

27.64 Protection from interference.

Subpart D—Competitive Bidding

Procedures for WCS

27.201 WCS subject to competitive bidding.

27.202 Competitive bidding mechanisms.

27.203 Withdrawal, default and

disqualification payments.

27.204 Bidding application and

certification procedures; prohibition of

collusion.

27.205 Submission of upfront payments.

27.206 Submission of down payment and

filing of long-form applications.

27.207 Procedures for filing petitions to

deny against WCS long-form

applications.

27.208 License grant, denial, default, and

disqualification.

27.209 Designated entities; bidding credits;

unjust enrichment.

27.210 Definitions.

Subpart E—Application, Licensing, and

Processing Rules for WCS

27.301 Authorization required.

27.302 Eligibility.

27.303 Formal and informal applications.

27.304 Filing of WCS applications, fees,

and numbers of copies.

27.305 [Reserved].

27.306 Miscellaneous forms.

27.307 General application requirements.

27.308 Technical content of applications.

27.310 Waiver of rules.

27.311 Defective applications.

27.312 Inconsistent or conflicting

applications.

27.313 Amendment of applications for

Wireless Communications Service (other

than applications filed on FCC Form

175).

27.314 Application for temporary

authorizations.

27.315 Receipt of application; applications

in the Wireless Communications Service

filed on FCC Form 175 and other

applications in the WCS Service.

27.316 Public notice period.

27.317 Dismissal and return of applications.

27.319 Ownership changes and agreements

to amend or to dismiss applications or

pleadings.

27.320 Opposition to applications.

27.321 Mutually exclusive applications.

27.322 Consideration of applications.

27.323 [Reserved].

27.324 Transfer of control or assignment of

station authorization.

27.325 Termination of authorization.

Authority: 47 U.S.C. 154, 301, 302, 303,

307, 309 and 332, unless otherwise noted.

Subpart A—General Information

§ 27.1 Basis and purpose.

This section contains the statutory

basis for this part of the rules and

provides the purpose for which this part

is issued.

(a) Basis. The rules for the Wireless

Communications Service (WCS) in this

part are promulgated under the

provisions of the Communications Act

of 1934, as amended, that vest authority

in the Federal Communications

Commission to regulate radio

transmission and to issue licenses for

radio stations.

(b) Purpose. This part states the

conditions under which the 2305–2320

MHz and 2345–2360 MHz bands are

made available and licensed for the

provision of WCS.
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9659

(c) Scope. The rules in this part apply

only to stations authorized under this

part.

§ 27.2 Permissible communications.

Subject to the rules contained herein,

fixed, mobile and radiolocation services

may be provided using the 2305–2320

and 2345–2360 MHz bands. In addition,

satellite digital audio radio service

(DARS) may be provided using the

2310–2320 and 2345–2360 MHz bands.

Satellite DARS service shall be provided

in manner consistent with part 25 of

this chapter.

§ 27.3 Other applicable rule parts.

Other FCC rule parts applicable to the

Wireless Communications Service

include the following:

(a) Part 0. This part describes the

Commission’s organization and

delegations of authority. Part 0 of this

chapter also lists available Commission

publications, standards and procedures

for access to Commission records, and

location of Commission Field Offices.

(b) Part 1. This part includes rules of

practice and procedure for license

applications, adjudicatory proceedings,

procedures for reconsideration and

review of the Commission’s actions;

provisions concerning violation notices

and forfeiture proceedings; competitive

bidding procedures; and the

environmental requirements that, if

applicable, must be complied with prior

to the initiation of construction.

(c) Part 2. This part contains the Table

of Frequency Allocations and special

requirements in international

regulations, recommendations,

agreements, and treaties. This part also

contains standards and procedures

concerning the marketing and

importation of radio frequency devices,

and for obtaining equipment

authorization.

(d) Part 5. This part contains rules

prescribing the manner in which parts

of the radio frequency spectrum may be

made available for experimentation.

(e) Part 17. This part contains

requirements for construction, marking

and lighting of antenna towers.

(f) Part 25. This part contains the

requirements for satellite

communications, including satellite

DARS.

(g) Part 51. This part contains general

duties of telecommunications carriers to

provide for interconnection with other

telecommunications carriers.

(h) Part 68. This part contains

technical standards for connection of

terminal equipment to the telephone

network.

§ 27.4 Terms and definitions.

Assigned frequency. The center of the

frequency band assigned to a station.

Authorized bandwidth. The

maximum width of the band of

frequencies permitted to be used by a

station. This is normally considered to

be the necessary or occupied

bandwidth, whichever is greater.

Average terrain. The average elevation

of terrain between 3 and 16 kilometers

from the antenna site.

Effective Radiated Power (ERP) (in a

given direction). The product of the

power supplied to the antenna and its

gain relative to a half-wave dipole in a

given direction.

Equivalent Isotropically Radiated

Power (EIRP). The product of the power

supplied to the antenna and the antenna

gain in a given direction relative to an

isotropic antenna.

Fixed service. A radio communication

service between specified fixed points.

Fixed station. A station in the fixed

service.

Land mobile service. A mobile service

between base stations and land mobile

stations, or between land mobile

stations.

Land mobile station. A mobile station

in the land mobile service capable of

surface movement within the

geographic limits of a country or

continent.

Land station. A station in the mobile

service not intended to be used while in

motion.

Mobile service. A radio

communication service between mobile

and land stations, or between mobile

stations.

Mobile station. A station in the mobile

service intended to be used while in

motion or during halts at unspecified

points.

National Geodetic Reference System

(NGRS). The name given to all geodetic

control data contained in the National

Geodetic Survey (NGS) data base.

(Source: National Geodetic Survey, U.S.

Department of Commerce)

Radiodetermination. The

determination of the position, velocity

and/or other characteristics of an object,

or the obtaining of information relating

to these parameters, by means of the

propagation properties of radio waves.

Radiolocation. Radiodetermination

used for purposes other than those of

radionavigation.

Radionavigation. Radiodetermination

used for the purpose of navigation,

including obstruction warning.

Satellite Digital Audio Radio Service

(satellite DARS). A radiocommunication

service in which compact disc quality

programming is digitally transmitted by

one or more space stations.

Wireless communications service. A

radiocommunication service that

encompasses fixed, mobile, satellite

DARS, and radiolocation services.

§ 27.5 Frequencies.

The following frequencies are

available for WCS.

(a) Two paired channel blocks are

available for assignment on a Major

Economic Area basis as follows:

Block A: 2305–2310 and 2350–2355 MHz;

and

Block B: 2310–2315 and 2355–2360 MHz.

(b) Two unpaired channel blocks are

available for assignment on a Regional

Economic Area Grouping basis as

follows:

Block C: 2315–2320 MHz; and

Block D: 2345–2350 MHz.

§ 27.6 Service areas.

WCS service areas are Major

Economic Areas (MEAs) and Regional

Economic Area Groupings (REAGs) as

defined below. Both MEAs and REAGs

are based on the U.S. Department of

Commerce’s 172 Economic Areas (EAs).

See 60 FR 13114 (March 10, 1995). In

addition, the Commission shall

separately license Guam and the

Northern Mariana Islands, Puerto Rico

and the United States Virgin Islands,

American Samoa, and the Gulf of

Mexico, which have been assigned

Commission-created EA numbers 173–

176, respectively. Maps of the EAs,

MEAs, and REAGs and the Federal

Register Notice that established the 172

EAs are available for public inspection

and copying at the Commercial Wireless

Division Public Reference Room, room

5608, 2025 M Street, NW, Washington,

DC.

(a) The 52 MEAs are composed of one

or more EAs and the 12 REAGs are

composed of one or more MEAs, as

defined in the table below:

REAGs MEAs EAs

1 (Northeast) ..................................................... 1 (Boston) ......................................................... 1–3.

2 (New York City) ............................................. 4–7, 10.

3 (Buffalo) ......................................................... 8.

4 (Philadelphia) ................................................. 11–12.
9660 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

REAGs MEAs EAs

2 (Southeast) .................................................... 5 (Washington) ................................................. 13–14.

6 (Richmond) .................................................... 15–17, 20.

7 (Charlotte-Greensboro-Greenville-Raleigh) ... 18–19, 21–26, 41–42, 46.

8 (Atlanta) ......................................................... 27–28, 37–40, 43.

9 (Jacksonville) ................................................. 29, 35.

10 (Tampa-St. Petersburg-Orlando) ................. 30, 33–34.

11 (Miami) ......................................................... 31–32.

3 (Great Lakes) ................................................. 12 (Pittsburgh) .................................................. 9, 52–53.

13 (Cincinnati-Dayton) ...................................... 48–50.

14 (Columbus) .................................................. 51.

15 (Cleveland) .................................................. 54–55.

16 (Detroit) ........................................................ 56–58, 61–62.

17 (Milwaukee) ................................................. 59–60, 63, 104–105, 108.

18 (Chicago) ..................................................... 64–66, 68, 97, 101.

19 (Indianapolis) ............................................... 67.

20 (Minneapolis-St. Paul) ................................. 106–107, 109–114, 116.

21 (Des Moines-Quad Cities) ........................... 100, 102–103, 117.

4 (Mississippi Valley) ........................................ 22 (Knoxville) .................................................... 44–45.

23 (Louisville-Lexington-Evansville) ................. 47, 69–70, 72.

24 (Birmingham) ............................................... 36, 74, 78–79.

25 (Nashville) .................................................... 71.

26 (Memphis-Jackson) ..................................... 73, 75–77.

27 (New Orleans-Baton Rouge) ....................... 80–85.

28 (Little Rock) ................................................. 90–92, 95.

29 (Kansas City) ............................................... 93, 99, 123.

30 (St. Louis) .................................................... 94, 96, 98.

5 (Central) ......................................................... 31 (Houston) ..................................................... 86–87, 131.

32 (Dallas-Fort Worth) ...................................... 88–89, 127–130, 135, 137–138.

33 (Denver) ....................................................... 115, 140–143.

34 (Omaha) ...................................................... 118–121.

35 (Wichita) ...................................................... 122.

36 (Tulsa) ......................................................... 124.

37 (Oklahoma City) .......................................... 125–126.

38 (San Antonio) .............................................. 132–134.

39 (El Paso-Albuquerque) ................................ 136, 139, 155–157.

40 (Phoenix) ..................................................... 154, 158–159.

6 (West) ............................................................ 41 (Spokane-Billings) ....................................... 144–147, 168.

42 (Salt Lake City) ............................................ 148–150, 152.

43 (San Francisco-Oakland-San Jose) ............ 151, 162–165.

44 (Los Angeles-San Diego) ............................ 153, 160–161.

45 (Portland) ..................................................... 166–167.

46 (Seattle) ....................................................... 169–170.

7 (Alaska) .......................................................... 47 (Alaska) ....................................................... 171.

8 (Hawaii) .......................................................... 48 (Hawaii) ....................................................... 172.

9 (Guam and the Northern Mariana Islands) ... 49 (Guam and the Northern Mariana Islands) 173.

10 (Puerto Rico and U.S. Virgin Islands) ......... 50 (Puerto Rico and U.S. Virgin Islands) ......... 174.

11 (American Samoa) ....................................... 51 (American Samoa) ...................................... 175.

12 (Gulf of Mexico) ........................................... 52 (Gulf of Mexico) ........................................... 176.

(b) The Gulf of Mexico EA extends

from 12 nautical miles off the U.S. Gulf

coast outward into the Gulf.

Subpart B—Applications and Licenses

§ 27.11 Initial authorization.

(a) An applicant must file an

application for an initial WCS

authorization in each market and

channel block desired. Applicants are

permitted to list all markets and channel

blocks in a single application where all

requisite exhibits and justifications are

identical.

(b) The initial WCS authorizations

shall be granted for 10 megahertz of

spectrum in accordance with § 27.5.

Authorizations for Blocks A and B will

be based on Major Economic Areas

(MEAs), as shown in § 27.6.

Authorizations for Blocks C and D will

be based on Regional Economic Area

Groupings (REAGs), as shown in § 27.6.

Applications for individual sites are not

required and will not be accepted,

except where required for

environmental assessments, in

accordance with § 27.63.

§ 27.12 Eligibility.

Any entity, other than those

precluded by section 310 of the

Communications Act of 1934, as

amended, 47 U.S.C. section 310, is

eligible to hold a license under this part.

§ 27.13 License period.

Initial WCS authorizations will have a

term not to exceed ten years from the

date of original issuance or renewal.

§ 27.14 Construction requirements;

Criteria for comparative renewal

proceedings.

(a) WCS licensees must make a

showing of ‘‘substantial service’’ in their

license area within ten years of being

licensed. ‘‘Substantial’’ service is

defined as service which is sound,

favorable, and substantially above a

level of mediocre service which just

might minimally warrant renewal.

Failure by any licensee to meet this

requirement will result in forfeiture of

the license and the licensee will be

ineligible to regain it.

(b) A renewal applicant involved in a

comparative renewal proceeding shall

receive a preference, commonly referred

to as a renewal expectancy, which is the

most important comparative factor to be

considered in the proceeding, if its past
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9661

record for the relevant license period

demonstrates that:

(1) The renewal applicant has

provided ‘‘substantial’’ service during

its past license term; and

(2) The renewal applicant has

substantially complied with applicable

FCC rules, policies and the

Communications Act of 1934, as

amended.

(c) In order to establish its right to a

renewal expectancy, a WCS renewal

applicant involved in a comparative

renewal proceeding must submit a

showing explaining why it should

receive a renewal expectancy. At a

minimum, this showing must include:

(1) A description of its current service

in terms of geographic coverage and

population served;

(2) An explanation of its record of

expansion, including a timetable of new

construction to meet changes in demand

for service;

(3) A description of its investments in

its WCS system; and

(4) Copies of all FCC orders finding

the licensee to have violated the

Communications Act or any FCC rule or

policy; and a list of any pending

proceedings that relate to any matter

described in this paragraph.

(d) In making its showing of

entitlement to a renewal expectancy, a

renewal applicant may claim credit for

any system modification applications

that were pending on the date it filed its

renewal application. Such credit will

not be allowed if the modification

application is dismissed or denied.

§ 27.15 Geographic partitioning and

spectrum disaggregation.

(a) Eligibility. (1) Parties seeking

approval for partitioning and

disaggregation shall request from the

Commission an authorization for partial

assignment of a license pursuant to

section 27.324.

(2) WCS licensees may apply to

partition their licensed geographic

service area or disaggregate their

licensed spectrum at any time following

the grant of their licenses.

(b) Technical Standards—(1)

Partitioning. In the case of partitioning,

requests for authorization for partial

assignment of a license must include, as

attachments, a description of the

partitioned service area and a

calculation of the population of the

partitioned service area and the licensed

geographic service area. The partitioned

service area shall be defined by

coordinate points at every 3 degrees

along the partitioned service area unless

an FCC recognized service area is

utilized (i.e., Major Trading Area, Basic

Trading Area, Metropolitan Service

Area, Rural Service Area, Economic

Area, or Major Economic Area) or

county lines are followed. The

geographic coordinates must be

specified in degrees, minutes, and

seconds to the nearest second of latitude

and longitude and must be based upon

the 1927 North American Datum

(NAD27). Applicants may supply

geographical coordinates based on 1983

North American Datum (NAD83) in

addition to those required (NAD27). In

the case where an FCC recognized

service area or county lines are utilized,

applicants need only list the specific

area(s) (through use of FCC designations

or county names) that constitute the

partitioned area.

(2) Disaggregation. Spectrum may be

disaggregated in any amount.

(3) Combined partitioning and

disaggregation. The Commission will

consider requests for partial assignment

of licenses that propose combinations of

partitioning and disaggregation.

(4) Signal levels. For purposes of

partitioning and disaggregation, WCS

systems must be designed so as not to

exceed a signal level of 47 dByV/m at

the licensee’s service area boundary,

unless the affected adjacent service area

licensees have agreed to a different

signal level. See section 27.55.

(c) Unjust Enrichment.—(1) Bidding

credits. Licensees that received a

bidding credit and partition their

licenses or disaggregate their spectrum

to entities not meeting the eligibility

standards for such a bidding credit, will

be subject to the provisions concerning

unjust enrichment as set forth in section

27.209(c).

(2) Apportioning unjust enrichment

payments. Unjust enrichment payments

for partitioned license areas shall be

calculated based upon the ratio of the

population of the partitioned license

area to the overall population of the

license area and by utilizing the most

recent census data. Unjust enrichment

payments for disaggregated spectrum

shall be calculated based upon the ratio

of the amount of spectrum disaggregated

to the amount of spectrum held by the

licensee.

(d) License term. The license term for

a partitioned license area and for

disaggregated spectrum shall be the

remainder of the original licensee’s

license term as provided for in § 27.13.

Subpart C—Technical Standards

§ 27.51 Equipment authorization.

(a) Each transmitter utilized for

operation under this part and each

transmitter marketed, as set forth in

§ 2.803 of this chapter, must be of a type

that has been authorized by the

Commission under its type acceptance

procedure.

(b) The Commission periodically

publishes a list of type accepted

equipment, entitled ‘‘Radio Equipment

List, Equipment Accepted for

Licensing.’’ Copies of this list are

available for public reference at the

Commission’s offices in Washington,

DC, at each of its field offices, and may

be ordered from its copy contractor.

(c) Any manufacturer of radio

transmitting equipment to be used in

these services may request equipment

authorization following the procedures

set forth in subpart J of part 2 of this

chapter. Equipment authorization for an

individual transmitter may be requested

by an applicant for a station

authorization by following the

procedures set forth in part 2 of this

chapter. Such equipment if approved or

accepted will not normally be included

in the Commission’s Radio Equipment

List but will be individually enumerated

on the station authorization.

§ 27.52 RF safety.

Licensees and manufacturers are

subject to the radio frequency radiation

exposure requirements specified in

sections 1.1307(b), 2.1091, and 2.1093 of

this chapter, as appropriate.

Applications for equipment

authorization of mobile or portable

devices operating under this section

must contain a statement confirming

compliance with these requirements for

both fundamental emissions and

unwanted emissions. Technical

information showing the basis for this

statement must be submitted to the

Commission upon request.

§ 27.53 Emission limits.

(a) The power of any emission outside

the licensee’s bands of operation shall

be attenuated below the transmitter

power (p) within the licensed bands of

operation by the following amounts:

(1) For fixed operations, including

radiolocation: By a factor not less than

80 + 10 log (p) dB on all frequencies

between 2320 and 2345 MHz.

(2) For mobile operations, including

radiolocation: By a factor not less than

110 + 10 log (p) dB on all frequencies

between 2320 and 2345 MHz.

(3) For fixed and mobile operations,

including radiolocation: By a factor not

less than 70 + 10 log (p) dB on all

frequencies below 2300 MHz and on all

frequencies above 2370 MHz; and not

less than 43 + 10 log (p) dB on all

frequencies between 2300 and 2320

MHz and on all frequencies between

2345 and 2370 MHz that are outside the

licensed bands of operation.
9662 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

(4) For the purposes of this section,

radiolocation shall be classified as

either a fixed or mobile service,

depending upon the application.

(5) Compliance with these provisions

is based on the use of measurement

instrumentation employing a resolution

bandwidth of 1 MHz or less, but at least

one percent of the emission bandwidth

of the fundamental emission of the

transmitter, provided the measured

energy is integrated over a 1 MHz

bandwidth.

(6) In complying with the

requirements in §§ 27.53(a)(1) and

27.53(a)(2), WCS equipment that uses

opposite sense circular polarization

from that used by satellite DARS

systems in the 2320–2345 MHz band

shall be permitted an allowance of 10

dB.

(7) When measuring the emission

limits, the nominal carrier frequency

shall be adjusted as close to the edges,

both upper and lower, of the licensee’s

bands of operation as the design

permits.

(8) The measurements of emission

power can be expressed in peak or

average values, provided they are

expressed in the same parameters as the

transmitter power.

(9) The above out-of-band emissions

limits may be modified by the private

contractual agreement of the affected

licensees, who shall maintain a copy of

the agreement in their station files and

disclose it to prospective assignees or

transferees or, upon request, to the

Commission.

(b) For WCS satellite DARS

operations: The limits set forth in

section 25.202(f) of this chapter apply,

except that satellite DARS operations

are limited to a maximum power flux

density of ¥197 dBW/m2/4 kHz in the

2370–2390 MHz band at Arecibo, Puerto

Rico.

(c) When an emission outside of the

authorized bandwidth causes harmful

interference, the Commission may, at its

discretion, require greater attenuation

than specified in this section.

§ 27.54 Frequency stability.

The frequency stability shall be

sufficient to ensure that the

fundamental emissions stay within the

authorized bands of operation.

§ 27.55 Field strength limits.

The predicted or measured median

field strength at any location on the

border of a WCS service area shall not

exceed 47 dBμV/m unless the parties

agree to a different field strength. This

value applies to both the initially

offered MEA and REAG service areas

and to partitioned service areas.

§ 27.56 Antenna structures; air navigation

safety.

A licensee that owns its antenna

structure(s) must not allow such

antenna structure(s) to become a hazard

to air navigation. In general, antenna

structure owners are responsible for

registering antenna structures with the

FCC if required by part 17 of this

chapter, and for installing and

maintaining any required marking and

lighting. However, in the event of

default of this responsibility by an

antenna structure owner, the FCC

permittee or licensee authorized to use

an affected antenna structure will be

held responsible by the FCC for

ensuring that the antenna structure

continues to meet the requirements of

part 17 of this chapter. See § 17.6 of this

chapter.

(a) Marking and lighting. Antenna

structures must be marked, lighted and

maintained in accordance with part 17

of this chapter and all applicable rules

and requirements of the Federal

Aviation Administration. For any

construction or alteration that would

exceed the requirements of section 17.7

of this chapter, licensees must notify the

appropriate Regional Office of the

Federal Aviation Administration (FAA

Form 7460–1) and file a request for

antenna height clearance and

obstruction marking and lighting

specifications (FCC Form 854) with the

FCC, WTB, 1270 Fairfield Road,

Gettysburg, PA 17325.

(b) Maintenance contracts. Antenna

structure owners (or licensees and

permittees, in the event of default by an

antenna structure owner) may enter into

contracts with other entities to monitor

and carry out necessary maintenance of

antenna structures. Antenna structure

owners (or licensees and permittees, in

the event of default by an antenna

structure owner) that make such

contractual arrangements continue to be

responsible for the maintenance of

antenna structures in regard to air

navigation safety.

§ 27.57 International coordination.

WCS operations in the border areas

shall be subject to coordination with

those countries and provide protection

to non-U.S. operations in the 2305–2320

and 2345–2360 MHz bands as

appropriate. In addition, satellite DARS

operations in WCS spectrum shall be

subject to international satellite

coordination procedures.

§ 27.59 Environmental requirements.

WCS operations that may have a

significant environmental impact as

defined by §§ 1.1301 through 1.1319 of

this chapter, must file an FCC Form 600

and supply specific technical

information about their proposed site

prior to construction of such site as well

as an environmental assessment (EA) in

accordance with §§ 1.1301 through

1.1319 of this chapter. Such application

will be placed on public notice in

accordance with § 27.316 and may not

be constructed or operated prior to a

finding of no significant impact (FONSI)

being issued and placed on public

notice by the FCC.

§ 27.61 Quiet zones.

Quiet zones are those areas where it

is necessary to restrict radiation so as to

minimize possible impact on the

operations of radio astronomy or other

facilities that are highly sensitive to

interference. The areas involved and

procedures required are as follows:

(a) NRAO, NRRO. The requirements

of this paragraph are intended to

minimize possible interference at the

National Radio Astronomy Observatory

site located at Green Bank, Pocahontas

County, West Virginia, and at the Naval

Radio Research Observatory site at

Sugar Grove, Pendleton County, West

Virginia. WCS licensees planning to

construct and operate a new or modified

WCS station at a permanent fixed

location within the area bounded by

N.39°15′ on the north, W.78°30′ on the

east, N.37°30′ on the south, and

W.80°30′ on the west must notify the

Director, National Radio Astronomy

Observatory, Post Office Box No. 2,

Green Bank, WV 24944, in writing, of

the technical details of the proposed

operation. The notification must include

the geographical coordinates of the

antenna location, the antenna height,

antenna directivity (if any), the channel,

the emission type and power.

(b) Table Mountain. The requirements

of this paragraph are intended to

minimize possible interference at the

Table Mountain Radio Receiving Zone

of the Research Laboratories of the U.S.

Department of Commerce located in

Boulder County, Colorado.

(1) WCS licensees planning to

construct and operate a new or modified

WCS station at a permanent fixed

location in the vicinity of Boulder

County, Colorado are advised to give

consideration, prior to filing

applications, to the need to protect the

Table Mountain Radio Receiving Zone

from interference. To prevent

degradation of the present ambient radio

signal level at the site, the U.S.

Department of Commerce seeks to

ensure that the field strengths of any

radiated signals (excluding reflected

signals) received on this 1800 acre site

(in the vicinity of coordinates 40°07′50′′

North Latitude, 105°14′40′′ West
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9663

Longitude) resulting from new

assignments (other than mobile stations)

or from the modification or relocation of

existing facilities do not exceed the

values given in Table C–3.

TABLE C–3—FIELD STRENGTH LIMITS

FOR TABLE MOUNTAIN

Frequency

range Field strength Power fluxdensity

890 to 3000

MHz.

1 mV/m ......... -85.8 dBW/

m 2

Note: Equivalent values of power flux density are calculated assuming free space characteristic impedance of 376.7Ω (120πΩ).

(120).

(2) Advance consultation is

recommended, particularly for WCS

licensees that have no reliable data to

indicate whether the field strength or

power flux density figures in the above

table would be exceeded by their

proposed radio facilities. In general,

coordination is recommended for:

(i) Stations located within 2.4

kilometers (1.5 miles);

(ii) Stations located within 4.8

kilometers (3 miles) transmitting with

50 watts or more effective radiated

power (ERP) in the primary plane of

polarization in the azimuthal direction

of the Table Mountain Radio Receiving

Zone;

(iii) Stations located within 16

kilometers (10 miles) transmitting with

1 kW or more ERP in the primary plane

of polarization in the azimuthal

direction of Table Mountain Radio

Receiving Zone;

(iv) Stations located within 80

kilometers (50 miles) transmitting with

25 kW or more ERP in the primary plane

of polarization in the azimuthal

direction of Table Mountain Receiving

Zone.

(3) WCS licensees are urged to

communicate with the Radio Frequency

Management Coordinator, U.S.

Department of Commerce, Research

Support Services NOAAR/E5X2,

Boulder Laboratories, Boulder, CO

80303; telephone (303) 497–6548, in

advance of construction and operation

of such facilities.

(c) Federal Communications

Commission protected field offices. The

requirements of this paragraph are

intended to minimize possible

interference to FCC monitoring

activities.

(1) WCS licensees planning to

construct and operate a new or modified

WCS station at a permanent fixed

location in the vicinity of an FCC

protected field office are advised to give

consideration to the need to avoid

interfering with the monitoring

activities of that office. FCC protected

field offices are listed in § 0.121 of this

chapter.

(2) Applications for stations (except

mobile stations) that could produce on

any channel a direct wave fundamental

field strength of greater than 10 mV/m

(¥65.8 dBW/m 2 power flux density

assuming a free space characteristic

impedance of 120πΩ) in the authorized

bandwidth at the protected field office

must be examined by WCS licensees to

determine the potential for interference

with monitoring activities.

(3) In the event that the calculated

field strength exceeds 10 mV/m at the

protected field office site, or if there is

any question whether field strength

levels might exceed that level, advance

consultation with the FCC to discuss

possible measures to avoid interference

to monitoring activities should be

considered. WCS licensees may

communicate with: Chief, Compliance

and Information Bureau, Federal

Communications Commission,

Washington, DC 20554.

(4) Advance consultation is

recommended for WCS licensees that

have no reliable data to indicate

whether the field strength or power flux

density figure indicated would be

exceeded by their proposed radio

facilities. In general, coordination is

recommended for:

(i) Stations located within 2.4

kilometers (1.5 miles);

(ii) Stations located within 4.8

kilometers (3 miles) with 50 watts or

more average effective radiated power

(ERP) in the primary plane of

polarization in the azimuthal direction

of the protected field offices.

(iii) Stations located within 16

kilometers (10 miles) with 1 kW or more

average ERP in the primary plane of

polarization in the azimuthal direction

of the protected field office;

(iv) Stations located within 80

kilometers (50 miles) with 25 kW or

more average ERP in the primary plane

of polarization in the azimuthal

direction of the protected field office;

(5) Advance coordination for stations

transmitting on channels above 1000

MHz is recommended only if the

proposed station is in the vicinity of a

protected field office designated as a

satellite monitoring facility in § 0.121 of

this chapter.

(6) The FCC will not screen

applications to determine whether

advance consultation has taken place.

However, such consultation may serve

to avoid the need for later modification

of the authorizations of stations that

interfere with monitoring activities at

protected field offices.

§ 27.63 Disturbance of AM broadcast

station antenna patterns.

WCS licensees that construct or

modify towers in the immediate vicinity

of AM broadcast stations are responsible

for measures necessary to correct

disturbance of the AM station antenna

pattern which causes operation outside

of the radiation parameters specified by

the FCC for the AM station, if the

disturbance occurred as a result of such

construction or modification.

(a) Non-directional AM stations. If

tower construction or modification is

planned within 1 kilometer (0.6 mile) of

a non-directional AM broadcast station

tower, the WCS licensee must notify the

licensee of the AM broadcast station in

advance of the planned construction or

modification. Measurements must be

made to determine whether the

construction or modification would

affect the AM station antenna pattern.

The WCS licensee is responsible for the

installation and continued maintenance

of any detuning apparatus necessary to

restore proper non-directional

performance of the AM station tower.

(b) Directional AM stations. If tower

construction or modification is planned

within 3 kilometers (1.9 miles) of a

directional AM broadcast station array,

the WCS licensee must notify the

licensee of the AM broadcast station in

advance of the planned construction or

modification. Measurements must be

made to determine whether the

construction or modification would

affect the AM station antenna pattern.

The WCS licensee is responsible for the

installation and continued maintenance

of any detuning apparatus necessary to

restore proper performance of the AM

station array.

§ 27.64 Protection from interference.

Wireless Communications Service

(WCS) stations operating in full

accordance with applicable FCC rules

and the terms and conditions of their

authorizations are normally considered

to be non-interfering. If the FCC

determines, however, that interference

which significantly interrupts or

degrades a radio service is being caused,

it may, after notice and an opportunity

for a hearing, require modifications to

any WCS station as necessary to

eliminate such interference.

(a) Failure to operate as authorized.

Any licensee causing interference to the

service of other stations by failing to

operate its station in full accordance

with its authorization and applicable

FCC rules shall discontinue all

transmissions, except those necessary

for the immediate safety of life or

property, until it can bring its station
9664 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

into full compliance with the

authorization and rules.

(b) Intermodulation interference.

Licensees should attempt to resolve

such interference by technical means.

(c) Situations in which no protection

is afforded. Except as provided

elsewhere in this part, no protection

from interference is afforded in the

following situations:

(1) Interference to base receivers from

base or fixed transmitters. Licensees

should attempt to resolve such

interference by technical means or

operating arrangements.

(2) Interference to mobile receivers

from mobile transmitters. No protection

is provided against mobile-to-mobile

interference.

(3) Interference to base receivers from

mobile transmitters. No protection is

provided against mobile-to-base

interference.

(4) Interference to fixed stations.

Licensees should attempt to resolve

such interference by technical means or

operating arrangements.

(5) Anomalous or infrequent

propagation modes. No protection is

provided against interference caused by

tropospheric and ionospheric

propagation of signals.

Subpart D—Competitive Bidding

Procedures for WCS

§ 27.201 WCS subject to competitive

bidding.

Mutually exclusive initial

applications to provide WCS service are

subject to competitive bidding

procedures. The procedures set forth in

part 1, subpart Q of this chapter will

apply unless otherwise specified in this

part.

§ 27.202 Competitive bidding mechanisms.

In addition to the provisions of

§ 1.2104(a) through (f), (h) and (i) of this

chapter, the following provision will

apply to WCS: Where a tie bid occurs,

the high bidder will be determined by

the order in which the bids were

received by the Commission.

§ 27.203 Withdrawal, default and

disqualification payments.

When the Commission conducts a

simultaneous multiple round auction

pursuant to § 27.202, the Commission

will impose payments on bidders who

withdraw high bids during the course of

an auction, or who default on payments

due after an auction closes or who are

disqualified. When the amount of such

a payment cannot be determined, a

deposit of up to 20 percent of the

amount bid on the license will be

required.

(a) Bid withdrawal prior to close of

auction. A bidder who withdraws a high

bid during the course of an auction will

be subject to a payment equal to the

difference between the amount bid and

the amount of the winning bid the next

time the license is offered by the

Commission. No withdrawal payment

would be assessed if the subsequent

winning bid exceeds the withdrawn bid.

This payment amount will be deducted

from any upfront payments or down

payments that the withdrawing bidder

has deposited with the Commission.

(b) Default or disqualification after

close of auction. If a high bidder

defaults or is disqualified after the close

of such an auction, the defaulting bidder

will be subject to the payment in

paragraph (a) of this section plus an

additional payment equal to 3 percent of

the subsequent winning bid. If the

subsequent winning bid exceeds the

defaulting bidder’s bid amount, the 3

percent payment will be calculated

based on the defaulting bidder’s bid

amount. These amounts will be

deducted from any upfront payments or

down payments that the defaulting or

disqualified bidder has deposited with

the Commission.

§ 27.204 Bidding application and

certification procedures; prohibition of

collusion.

(a) Submission of Short-Form

Application (FCC Form 175). In order to

be eligible to bid, an applicant must

timely submit, by means of electronic

filing, a short-form application (FCC

Form 175). Unless otherwise provided

by public notice, the Form 175 need not

be accompanied by an upfront payment

(see § 27.205).

(1) All Form 175s will be due on the

date specified by public notice.

(2) The Form 175 must contain the

following information:

(i) Identification of each license on

which the applicant wishes to bid;

(ii) The applicant’s name, if the

applicant is an individual. If the

applicant is a corporation, then the

short-form application will require the

name and address of the corporate office

and the name and title of an officer or

director. If the applicant is a

partnership, then the application will

require the names, citizenship and

addresses of all partners, and, if a

partner is not a natural person, then the

name and title of a responsible person

should be included as well. If the

applicant is a trust, then the name and

address of the trustee will be required.

If the applicant is none of the above,

then it must identify and describe itself

and its principals or other responsible

persons;

(iii) The identity of the person(s)

authorized to make or withdraw a bid;

(iv) If the applicant applies as a

designated entity pursuant to section

27.210(b), a statement to that effect and

a declaration, under penalty of perjury,

that the applicant is qualified as a

designated entity under § 27.210(b).

(v) Certification that the applicant is

legally, technically, financially and

otherwise qualified pursuant to section

308(b) of the Communications Act of

1934, as amended. The Commission will

accept applications certifying that a

request for waiver or other relief from

the requirements of section 310 is

pending;

(vi) Certification that the applicant is

in compliance with the foreign

ownership provisions of section 310 of

the Communications Act of 1934, as

amended;

(vii) Certification that the applicant is

and will, during the pendency of its

application(s), remain in compliance

with any service-specific qualifications

applicable to the licenses on which the

applicant intends to bid including, but

not limited to, financial qualifications.

The Commission may require

certification in certain services that the

applicant will, following grant of a

license, come into compliance with

certain service-specific rules, including,

but not limited to, ownership eligibility

limitations;

(viii) An exhibit, certified as truthful

under penalty of perjury, identifying all

parties with whom the applicant has

entered into partnerships, joint

ventures, consortia or other agreements,

arrangements or understandings of any

kind relating to the licenses being

auctioned, including any such

agreements relating to the post-auction

market structure;

(ix) Certification under penalty of

perjury that it has not entered and will

not enter into any explicit or implicit

agreements, arrangements or

understandings of any kind with any

parties other than those identified

pursuant to paragraph (a)(2)(viii) of this

section regarding the amount of their

bids, bidding strategies or the particular

licenses on which they will or will not

bid; and

(x) Certification under penalty of

perjury that it is not in default on any

Commission licenses and that it is not

delinquent on any extension of credit

from any federal agency.

Note to paragraph (a): The Commission

may also request applicants to submit

additional information for informational

purposes to aid in its preparation of required

reports to Congress.

(b) Modification and Amendment of

Application. Applicants will be
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9665

permitted to amend their Form 175

applications to make minor

amendments to correct minor errors or

defects such as typographical errors.

Applicants will also be permitted to

amend FCC Form 175 to make changes

to the information required by

§ 27.204(a) (such as ownership changes

or changes in the identification of

parties to bidding consortia), provided

such changes do not result in a change

in control of the applicant and do not

involve another applicant (or parties in

interest to an applicant) who has

applied for licenses in any of the same

geographic license areas as the

applicant. Amendments which change

control of the applicant will be

considered major amendments. An FCC

Form 175 which is amended by a major

amendment will be considered to be

newly filed and cannot be resubmitted

after applicable filing deadlines. See

also § 1.2105 of this chapter.

(c) Prohibition of collusion. (1) Except

as provided in paragraphs (c)(2), (c)(3)

and (c)(4) of this section, after the filing

of short-form applications, all

applicants are prohibited from

cooperating, collaborating, discussing or

disclosing in any manner the substance

of their bids or bidding strategies, or

discussing or negotiating settlement

agreements, with other applicants until

after the high bidder makes the required

down payment, unless such applicants

are members of a bidding consortium or

other joint bidding arrangement

identified on the bidder’s short-form

application pursuant to

§ 27.204(a)(2)(viii).

(2) Applicants may modify their

short-form applications to reflect

formation of consortia or changes in

ownership at any time before or during

an auction, provided such changes do

not result in a change in control of the

applicant, and provided that the parties

forming consortia or entering into

ownership agreements have not applied

for licenses in any of the same

geographic license areas. Such changes

will not be considered major

modifications of the application.

(3) After the filing of short-form

applications, applicants may make

agreements to bid jointly for licenses,

provided the parties to the agreement

have not applied for licenses in any of

the same geographic license areas.

(4) After the filing of short-form

applications, a holder of a noncontrolling attributable interest in an

entity submitting a short-form

application may acquire an ownership

interest in, form a consortium with, or

enter into a joint bidding arrangement

with, other applicants for licenses in the

same geographic license area, provided

that:

(i) The attributable interest holder

certifies to the Commission that it has

not communicated and will not

communicate with any party concerning

the bids or bidding strategies of more

than one of the applicants in which it

holds an attributable interest, or with

which it has a consortium or joint

bidding arrangement, and which have

applied for licenses in the same

geographic license area(s); and

(ii) The arrangements do not result in

any change in control of an applicant.

(5) Applicants must modify their

short-form applications to reflect any

changes in ownership or in the

membership of consortia or joint

bidding arrangements.

(6) For purposes of this paragraph:

(i) The term ‘‘applicant’’ shall include

the entity submitting a short-form

application to participate in an auction

(FCC Form 175), as well as all holders

of partnership and other ownership

interests and any stock interest

amounting to 5 percent or more of the

entity, or outstanding stock, or

outstanding voting stock of the entity

submitting a short-form application, and

all officers and directors of that entity;

and

(ii) The term ‘‘bids or bidding

strategies’’ shall include capital calls or

requests for additional funds in support

of bids or bidding strategies.

§ 27.205 Submission of upfront payments.

(a) Each eligible bidder for WCS

licenses subject to auction shall pay an

upfront payment pursuant to this

chapter and procedures specified by

public notice. No interest will be paid

on upfront payments.

(b) Upfront payments must be made

by wire transfer.

(c) If the applicant does not submit at

least the minimum upfront payment, it

will be ineligible to bid, its application

will be dismissed and any upfront

payment it has made will be returned.

(d) The upfront payment(s) of a bidder

will be credited toward any down

payment required for licenses on which

the bidder is the high bidder. Where the

upfront payment amount exceeds the

required deposit of a winning bidder,

the Commission will refund the excess

amount after determining that no bid

withdrawal payments are owed by that

bidder.

(e) In accordance with the provisions

of paragraph (d) of this section, in the

event a payment is assessed pursuant to

§ 27.203 for bid withdrawal or default,

upfront payments or down payments on

deposit with the Commission will be

used to satisfy the bid withdrawal or

default payment before being applied

toward any additional payment

obligations that the high bidder may

have.

§ 27.206 Submission of down payment and

filing of long-form applications.

(a) After bidding has ended, the

Commission will identify and notify the

high bidder and declare the bidding

closed.

(b) Within ten (10) business days after

being notified that it is a high bidder on

a particular license(s), a high bidder

must submit to the Commission’s

lockbox bank such additional funds (the

‘‘down payment’’) as are necessary to

bring its total deposits (not including

upfront payments applied to satisfy bid

withdrawal or default payments) up to

twenty (20) percent of its high bid(s).

This down payment must be made by

wire transfer or cashier’s check drawn

in U.S. dollars from a financial

institution whose deposits are insured

by the Federal Deposit Insurance

Corporation and must be made payable

to the Federal Communications

Commission. Down payments will be

held by the Commission until the high

bidder has been awarded the license

and has paid the remaining balance due

on the license, in which case it will not

be returned, or until the winning bidder

is found unqualified to be a licensee or

has defaulted, in which case it will be

returned, less applicable payments. No

interest will be paid on any down

payment.

(c) A high bidder that meets its down

payment obligations in a timely manner

must, within ten (10) business days after

being notified that it is a high bidder,

submit an additional application (the

‘‘long-form application’’) pursuant to

the rules governing the service in which

the applicant is the high bidder.

Notwithstanding any other provision in

title 47 of the Code of Federal

Regulations to the contrary, high

bidders need not submit an additional

application filing fee with their longform applications. Notwithstanding any

other provision in Title 47 of the Code

of Federal Regulations to the contrary,

the high bidder’s long-form application

must be mailed or otherwise delivered

to: Office of the Secretary, Federal

Communications Commission,

Attention: Auction Application

Processing Section, 1919 M Street, NW,

Room 222, Washington, DC 20554. An

applicant that fails to submit the

required long-form application as

required under this section, and fails to

establish good cause for any late-filed

submission, shall be deemed to have

defaulted and will be subject to the

payments set forth in section 27.203.
9666 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

(d) As an exhibit to its long-form

application, the applicant must provide

a detailed explanation of the terms and

conditions and parties involved in any

bidding consortia, joint venture,

partnership or other agreement or

arrangement it had entered into relating

to the competitive bidding process prior

to the time bidding was completed.

Such agreements must have been

entered into prior to the filing of shortform applications pursuant to § 27.204.

§ 27.207 Procedures for filing petitions to

deny against WCS long-form applications.

(a) Within five (5) days after the

Commission gives public notice that a

long-form application has been accepted

for filing, petitions to deny that

application may be filed. Any such

petitions must contain allegations of fact

supported by affidavit of a person or

persons with personal knowledge

thereof, and be served by hand upon the

applicant or its representative.

(b) An applicant may file an

opposition to any petition to deny

within five (5) days after the deadline

for filing petitions to deny. Allegations

of fact or denials thereof must be

supported by affidavit of a person or

persons with personal knowledge

thereof, and such opposition must be

served by hand upon the petitioner.

(c) If the Commission determines that:

(1) An applicant is qualified and there

is no substantial and material issue of

fact concerning that determination, it

will grant the application;

(2) An applicant is not qualified and

that there is no substantial issue of fact

concerning that determination, the

Commission need not hold a evidentiary

hearing and will deny the application;

and

(3) Substantial and material issues of

fact require a hearing, it will conduct a

hearing. The Commission may permit

all or part of the evidence to be

submitted in written form and may

permit employees other than

administrative law judges to preside at

the taking of written evidence. Such

hearing will be conducted on an

expedited basis.

§ 27.208 License grant, denial, default, and

disqualification.

(a) Unless otherwise specified in these

rules, auction winners are required to

pay the balance of their winning bids in

a lump sum within ten (10) business

days following award of the license.

Grant of the license will be conditioned

on full and timely payment of the

winning bid.

(b) If a winning bidder withdraws its

bid after the Commission has declared

competitive bidding closed or fails to

remit the required down payment

within ten (10) business days after the

Commission has declared competitive

bidding closed, the bidder will be

deemed to have defaulted, its

application will be dismissed, and it

will be liable for the default penalty

specified in § 27.203. In such event, the

Commission may either re-auction the

license to existing or new applicants or

offer it to the other highest bidders (in

descending order) at their final bids.

The down payment obligations set forth

in § 27.206(b) will apply.

(c) A winning bidder who is found

unqualified to be a licensee, fails to

remit the balance of its winning bid in

a timely manner, or defaults or is

disqualified for any reason after having

made the required down payment, will

be deemed to have defaulted and will be

liable for the payment set forth in

§ 27.203. In such event, the Commission

will conduct another auction for the

license, affording new parties an

opportunity to file applications for the

license.

(d) Bidders who are found to have

violated the antitrust laws or the

Commission’s rules in connection with

their participation in the competitive

bidding process may be subject, in

addition to any other applicable

sanctions, to forfeiture of their upfront

payment, down payment or full bid

amount, and may be prohibited from

participating in future auctions.

§ 27.209 Designated entities; bidding

credits; unjust enrichment.

(a) Designated entities entitled to

preferences in the WCS auction are

small businesses and very small

businesses as defined in § 27.110(b).

Designated entities will be eligible for

bidding credits, as defined in

paragraphs (b) and (c) of this section.

(b) A winning bidder that qualifies as

a small business may use a bidding

credit of 25 percent to lower the cost of

its winning bid.

(c) A winning bidder that qualifies as

a very small business may use a bidding

credit of 35 percent to lower the cost of

its winning bid.

(d) Unjust Enrichment:

(1) If a small business or very small

business (as defined in § 27.210(b)) that

utilizes a bidding credit under this

section seeks to transfer control or

assign an authorization to an entity that

is not a small business or a very small

business, or seeks to make any other

change in ownership that would result

in the licensee losing eligibility as a

small business or very small business,

the small business or very small

business must seek Commission

approval and reimburse the U.S.

Government for the amount of the

bidding credit, plus interest based on

the rate for ten year U.S. Treasury

obligations applicable on the date the

license is granted, as a condition of

approval of the assignment or transfer of

control.

(2) If a very small business (as defined

in § 27.210(b)) that utilizes a bidding

credit under this section seeks to

transfer control or assign an

authorization to a small business

meeting the eligibility standards for a

lower bidding credit, or seeks to make

any other change in ownership that

would result in the licensee qualifying

for a lower bidding credit under this

section, the licensee must seek

Commission approval and reimburse the

U.S. Government for the difference

between the amount of the bidding

credit obtained by the licensee and the

bidding credit for which the assignee,

transferee, or licensee is eligible under

this section, plus interest based on the

rate for ten year U.S. Treasury

obligations applicable on the date the

license is granted, as a condition of the

approval of such assignment, transfer, or

other ownership change.

(3) The amount of payments made

pursuant to paragraphs (d)(1) and (d)(2)

of this section will be reduced over time

as follows: A transfer in the first five

years of the license term will result in

a forfeiture of 100 percent of the value

of the bidding credit (or the difference

between the bidding credit obtained by

the original licensee and the bidding

credit for which the post-transfer

licensee is eligible); in year 6 of the

license term the payment will be 80

percent; in year 7 the payment will be

60 percent; in year 8 the payment will

be 40 percent; and in year 9 the

payment will be 20 percent. For a

transfer occurring in year 10 and

thereafter, there will be no assessment.

§ 27.210 Definitions.

(a) Scope. The definitions in this

section apply to § 27.209, unless

otherwise specified in those sections.

(b) Small Business; Very Small

Business; Consortia.

(1) A small business is an entity that,

together with its affiliates and

controlling principals, has average

annual gross revenues that are not more

than $40 million for the preceding three

years.

(2) A very small business is an entity

that, together with its affiliates and

controlling principals, has average

annual gross revenues that are not more

than $15 million for the preceding three

years.

(3) For purposes of determining

whether an entity meets the $40 million
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9667

average annual gross revenues size

standard set forth in paragraph (b)(1) of

this section or the $15 million average

annual gross revenues size standard set

forth in paragraph (b)(2) of this section,

the gross revenues of the applicant and

its affiliates shall be considered on a

cumulative basis and aggregated subject

to the following exceptions:

(i) For purposes of paragraphs (b)(1)

and (b)(2) of this section, the personal

net worth of an applicant and its

affiliates is not included in the

applicant’s gross revenues; and

(ii) For purposes of paragraphs (b)(1)

and (b)(2) of this section, Indian tribes

or Alaska Regional or Village

Corporations organized pursuant to the

Alaska Native Claims Settlement Act (43

U.S.C. 1601 et seq.), or entities owned

and controlled by such tribes or

corporations, are not considered

affiliates of an applicant (or licensee)

that is owned and controlled by such

tribes, corporations or entities, and that

otherwise complies with the

requirements of paragraphs (b)(1) and

(b)(2) of this section, except that gross

revenues derived from gaming activities

conducted by affiliated entities pursuant

to the Indian Gaming Regulatory Act (25

U.S.C. 2701 et seq.) will be counted in

determining such applicant’s (or

licensee’s) compliance with the

financial requirements of paragraphs

(b)(1) and (b)(2) of this section, unless

such applicant establishes that it will

not receive a substantial unfair

competitive advantage because

significant legal constraints restrict the

applicant’s ability to access such gross

revenues.

(4) A consortium of small businesses

(or a consortium of very small

businesses) is a conglomerate

organization formed as a joint venture

between or among mutually

independent business firms, each of

which individually satisfies the

definition in paragraph (b)(1) of this

section or each of which satisfies the

definition in paragraph (b)(2) of this

section. Where an applicant (or

licensee) is a consortium of small

businesses, the gross revenues of each

small business shall not be aggregated.

(c) Gross Revenues. Gross revenues

shall mean all income received by an

entity, whether earned or passive, before

any deductions are made for costs of

doing business (e.g., cost of goods sold),

as evidenced by audited financial

statements for the relevant number of

most recently completed calendar years,

or, if audited financial statements were

not prepared on a calendar-year basis,

for the most recently completed fiscal

years preceding the filing of the

applicant’s short-form application

(Form 175). If an entity was not in

existence for all or part of the relevant

period, gross revenues shall be

evidenced by the audited financial

statements of the entity’s predecessorin-interest or, if there is no identifiable

predecessor-in-interest, unaudited

financial statements certified by the

applicant as accurate. When an

applicant does not otherwise use

audited financial statements, its gross

revenues may be certified by its chief

financial officer or its equivalent.

(d) Affiliate.—(1) Basis for affiliation.

An individual or entity is an affiliate of

an applicant if such individual or entity:

(i) Directly or indirectly controls or

has the power to control the applicant;

(ii) Is directly or indirectly controlled

by the applicant;

(iii) Is directly or indirectly controlled

by a third party or parties who also

control or have the power to control the

applicant; or

(iv) Has an ‘‘identity of interest’’ with

the applicant.

(2) Nature of control in determining

affiliation. (i) Every business concern is

considered to have one or more parties

who directly or indirectly control or

have the power to control it. Control

may be affirmative or negative and it is

immaterial whether it is exercised so

long as the power to control exists.

Example for paragraph (d)(2)(i). An

applicant owning 50 percent of the voting

stock of another concern would have

negative power to control such concern since

such party can block any action of the other

stockholders. Also, the bylaws of a

corporation may permit a stockholder with

less than 50 percent of the voting stock to

block any actions taken by the other

stockholders in the other entity. Affiliation

exists when the applicant has the power to

control a concern while at the same time

another person, or persons, are in control of

the concern at the will of the party or parties

with the power of control.

(ii) Control can arise through stock

ownership; occupancy of director,

officer, or key employee positions;

contractual or other business relations;

or combinations of these and other

factors. A key employee is an employee

who, because of his/her position in the

concern, has a critical influence in or

substantive control over the operations

or management of the concern.

(iii) Control can arise through

management positions if the voting

stock is so widely distributed that no

effective control can be established.

Example for paragraph (d)(2)(iii). In a

corporation where the officers and directors

own various size blocks of stock totaling 40

percent of the corporation’s voting stock, but

no officer or director has a block sufficient

to give him/her control or the power to

control and the remaining 60 percent is

widely distributed with no individual

stockholder having a stock interest greater

than 10 percent, management has the power

to control. If persons with such management

control of the other entity are controlling

principals of the applicant, the other entity

will be deemed an affiliate of the applicant.

(3) Identity of interest between and

among persons. Affiliation can arise

between or among two or more persons

with an identity of interest, such as

members of the same family or persons

with common investments. In

determining if the applicant controls or

is controlled by a concern, persons with

an identity of interest will be treated as

though they were one person.

(i) Spousal affiliation. Both spouses

are deemed to own or control or have

the power to control interests owned or

controlled by either of them, unless they

are subject to a legal separation

recognized by a court of competent

jurisdiction in the United States.

(ii) Kinship affiliation. Immediate

family members will be presumed to

own or control or have the power to

control interests owned or controlled by

other immediate family members. In

this context ‘‘immediate family

member’’ means father, mother,

husband, wife, son, daughter, brother,

sister, father- or mother-in-law, son- or

daughter-in-law, brother- or sister-inlaw, step-father or -mother, step-brother

or -sister, step-son or -daughter, halfbrother or -sister. This presumption may

be rebutted by showing that:

(A) The family members are

estranged;

(B) The family ties are remote;

(C) The family members are not

closely involved with each other in

business matters.

Example for paragraph (d)(3)(ii). A owns a

controlling interest in Corporation X. A’s

sister-in-law, B, has a controlling interest in

a WCS geographic area license application.

Because A and B have a presumptive kinship

affiliation, A’s interest in Corporation X is

attributable to B, and thus to the applicant,

unless B rebuts the presumption with the

necessary showing.

(4) Affiliation through stock

ownership. (i) An applicant is presumed

to control or have the power to control

a concern if he/she owns or controls or

has the power to control 50 percent or

more of its voting stock.

(ii) An applicant is presumed to

control or have the power to control a

concern even though he/she owns,

controls, or has the power to control less

than 50 percent of the concern’s voting

stock, if the block of stock he/she owns,

controls, or has the power to control is

large as compared with any other

outstanding block of stock.

(iii) If two or more persons each owns,

controls or has the power to control less
9668 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

than 50 percent of the voting stock of a

concern, such minority holdings are

equal or approximately equal in size,

and the aggregate of these minority

holdings is large as compared with any

other stock holding, the presumption

arises that each one of these persons

individually controls or has the power

to control the concern; however, such

presumption may be rebutted by a

showing that such control or power to

control, in fact, does not exist.

(5) Affiliation arising under stock

options, convertible debentures, and

agreements to merge. Stock options,

convertible debentures, and agreements

to merge (including agreements in

principle) are generally considered to

have a present effect on the power to

control the concern. Therefore, in

making a size determination, such

options, debentures, and agreements

will generally be treated as though the

rights held thereunder had been

exercised. However, neither an affiliate

nor an applicant can use such options

and debentures to appear to terminate

its control over another concern before

it actually does so.

Example 1 for paragraph (d)(5). If company

B holds an option to purchase a controlling

interest in company A, who holds a

controlling interest in a WCS geographic area

license application, the situation is treated as

though company B had exercised its rights

and had become owner of a controlling

interest in company A. The gross revenues of

company B must be taken into account in

determining the size of the applicant.

Example 2 for paragraph (d)(5). If a large

company, BigCo, holds 70% (70 of 100

outstanding shares) of the voting stock of

company A, who holds a controlling interest

in a WCS geographic area license application,

and gives a third party, SmallCo, an option

to purchase 50 of the 70 shares owned by

BigCo, BigCo will be deemed to be an affiliate

of company A, and thus the applicant, until

SmallCo actually exercises its options to

purchase such shares. In order to prevent

BigCo from circumventing the intent of the

rule, which requires such options to be

considered on a fully diluted basis, the

option is not considered to have present

effect in this case.

Example 3 for paragraph (d)(5). If company

A has entered into an agreement to merge

with company B in the future, the situation

is treated as though the merger has taken

place.

(6) Affiliation under voting trusts. (i)

Stock interests held in trust shall be

deemed controlled by any person who

holds or shares the power to vote such

stock, to any person who has the sole

power to sell such stock, and to any

person who has the right to revoke the

trust at will or to replace the trustee at

will.

(ii) If a trustee has a familial, personal

or extra-trust business relationship to

the grantor or the beneficiary, the stock

interests held in trust will be deemed

controlled by the grantor or beneficiary,

as appropriate.

(iii) If the primary purpose of a voting

trust, or similar agreement, is to separate

voting power from beneficial ownership

of voting stock for the purpose of

shifting control of or the power to

control a concern in order that such

concern or another concern may meet

the Commission’s size standards, such

voting trust shall not be considered

valid for this purpose regardless of

whether it is or is not recognized within

the appropriate jurisdiction.

(7) Affiliation through common

management. Affiliation generally arises

where officers, directors, or key

employees serve as the majority or

otherwise as the controlling element of

the board of directors and/or the

management of another entity.

(8) Affiliation through common

facilities. Affiliation generally arises

where one concern shares office space

and/or employees and/or other facilities

with another concern, particularly

where such concerns are in the same or

related industry or field of operations,

or where such concerns were formerly

affiliated, and through these sharing

arrangements one concern has control,

or potential control, of the other

concern.

(9) Affiliation through contractual

relationships. Affiliation generally

arises where one concern is dependent

upon another concern for contracts and

business to such a degree that one

concern has control, or potential

control, of the other concern.

(10) Affiliation under joint venture

arrangements. (i) A joint venture for size

determination purposes is an

association of concerns and/or

individuals, with interests in any degree

or proportion, formed by contract,

express or implied, to engage in and

carry out a single, specific business

venture for joint profit for which

purpose they combine their efforts,

property, money, skill and knowledge,

but not on a continuing or permanent

basis for conducting business generally.

The determination whether an entity is

a joint venture is based upon the facts

of the business operation, regardless of

how the business operation may be

designated by the parties involved. An

agreement to share profits/losses

proportionate to each party’s

contribution to the business operation is

a significant factor in determining

whether the business operation is a joint

venture.

(ii) The parties to a joint venture are

considered to be affiliated with each

other.

Subpart E—Application, Licensing,

and Processing Rules for WCS

§ 27.301 Authorization required.

No person shall use or operate any

device for the transmission of energy or

communications by radio in the services

authorized by this part except as

provided in this part.

§ 27.302 Eligibility.

(a) General. Authorizations will be

granted upon proper application if:

(1) The applicant is qualified under

the applicable laws and the regulations,

policies and decisions issued under

those laws, including § 27.12;

(2) There are frequencies available to

provide satisfactory service; and

(3) The public interest, convenience

or necessity would be served by a grant.

(b) Alien Ownership. A WCS

authorization may not be granted to or

held by an entity not meeting the

requirements of section 310 of the

Communications Act of 1934, as

amended, 47 U.S.C. section 310 insofar

as applicable to the particular service in

question.

§ 27.303 Formal and informal applications.

(a) Except for an authorization under

any of the conditions stated in section

308(a) of the Communications Act of

1934 (47 U.S.C. 308(a)), the Commission

may grant only upon written application

received by it, the following

authorization: station licenses;

modifications of licenses; renewals of

licenses; transfers and assignments of

station licenses, or any right thereunder.

(b) Except as may be otherwise

permitted by this part, a separate

written application shall be filed for

each instrument of authorization

requested. Applications may be:

(1) ‘‘Formal applications’’ where the

Commission has prescribed in this part

a standard form; or

(2) ‘‘Informal applications’’ (normally

in letter form) where the Commission

has not prescribed a standard form.

(c) An informal application will be

accepted for filing only if:

(1) A standard form is not prescribed

or clearly applicable to the

authorization requested;

(2) It is a document submitted, in

duplicate, with a caption which

indicates clearly the nature of the

request, radio service involved, location

of the station, and the application file

number (if known); and

(3) It contains all the technical details

and informational showings required by

the rules and states clearly and

completely the facts involved and

authorization desired.
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9669

§ 27.304 Filing of WCS applications, fees,

and numbers of copies.

(a) As prescribed by § 27.307,

standard formal application forms

applicable to the WCS may be obtained

from either:

(1) Federal Communications

Commission, Washington, DC 20554; or

(2) By calling the Commission’s

Forms Distribution Center, (202) 418–

3676.

(b) Applications for the initial

provision of WCS service must be filed

on FCC Form 175 in accordance with

the rules in § 27.204 and part 1, subpart

Q of this chapter. In the event of mutual

exclusivity between applicants filing

FCC Form 175, only auction winners

will be eligible to file subsequent long

form applications on FCC Form 600 for

initial WCS licenses. Mutually exclusive

applications filed on Form 175 are

subject to competitive bidding under

those rules.

(c) All applications for WCS radio

station authorizations (other than

applications for initial provision of WCS

service filed on FCC Form 175) shall be

submitted for filing to: Federal

Communications Commission, Wireless

Telecommunications Bureau, 1270

Fairfield Road, Gettysburg, PA 17325,

Attention: WCS Processing Section.

(d) All correspondence or

amendments concerning a submitted

application shall clearly identify the

name of the applicant, FCC Account

Number or Commission file number (if

known) or station call sign of the

application involved, and may be sent

directly to the Wireless

Telecommunications Bureau, 1270

Fairfield Road, Gettysburg, PA 17325,

Attention: WCS Processing Section.

(e) Except as otherwise specified, all

applications, amendments,

correspondence, pleadings and forms

(with the exception of FCC Form 175,

which is to be filed electronically

pursuant to § 27.204) shall be submitted

on one original paper copy and with a

3.5-inch floppy disk containing all

attachments, and any other supporting

documentation in separate ASCII text

(.TXT) file formats. Those filing any

amendments, correspondence,

pleadings, and forms must

simultaneously submit the original hard

copy which must be stamped ‘‘original’’.

In addition to the original hard copy,

those filing pleadings, including

pleadings under § 1.2108 of this chapter

shall also submit 2 paper copies as

provided in § 1.51 of this chapter.

Applicants who file electronically will

not be required to follow these

procedures, but instead are required to

follow all instructions for electronic

filing detailed by the FCC in any

subsequent public notices.

(f) Subsequent application by auction

winners or non-mutually exclusive

applicants for WCS radio station(s)

under this part 27. FCC Form 600 shall

be submitted by each auction winner for

each WCS license applied for on FCC

Form 175. In the event that mutual

exclusivity does not exist between

applicants filing FCC Form 175, the

Commission will so inform the

applicant and the applicant will also file

FCC Form 600. Blanket licenses are

granted for each market frequency

block. Applications for individual sites

are not needed and will not be accepted.

See § 27.11.

§ 27.305 [Reserved].

§ 27.306 Miscellaneous forms.

(a) Renewal of station licenses. Except

for renewal of special temporary

authorizations, FCC Form 405

(‘‘Application for Renewal of Station

License’’) must be filed in duplicate by

the licensee between thirty (30) and

sixty (60) days prior to the expiration

date of the license sought to be renewed.

(b) Assignment of authorization or

transfer of control. Assignments of

authorization or transfers of control

applications are to be filed on the FCC

Form 490, ‘‘Application for Assignment

of Authorization or Consent to Transfer

of Control of License’’.

§ 27.307 General application requirements.

(a) Each application (including

applications filed on Forms 175 and

600) for a radio station authorization or

for consent to assignment or transfer of

control in the WCS shall disclose fully

the real party or parties in interest and

must include the following information:

(1) A list of its subsidiaries, if any.

Subsidiary means any business five per

cent or more whose stock, warrants,

options or debt securities are owned by

the applicant or an officer, director,

stockholder or key management

personnel of the applicant. This list

must include a description of each

subsidiary’s principal business and a

description of each subsidiary’s

relationship to the applicant;

(2) A list of its affiliates, if any.

Affiliate is defined in § 27.210(d);

(3) A list of the names, addresses,

citizenship and principal business of

any person holding five percent or more

of each class of stock, warrants, options

or debt securities together with the

amount and percentage held, and the

name, address, citizenship and

principal place of business of any

person on whose account, if other than

the holder, such interest is held. If any

of these persons are related by blood or

marriage, include such relationship in

the statement;

(4) In the case of partnerships, the

name and address of each partner, each

partner’s citizenship and the share or

interest participation in the partnership.

This information must be provided for

all partners, regardless of their

respective ownership interests in the

partnership. This information must be

included an exhibit to the application;

and

(b) Each application for a radio station

authorization in the WCS must:

(1) Submit the information required

by the Commission’s rules, requests,

and application forms;

(2) Be maintained by the applicant

substantially accurate and complete in

all significant respects in accordance

with the provisions of § 1.65 of this

chapter; and

(3) Show compliance with and make

all special showings that may be

applicable.

(c) Where documents, exhibits, or

other lengthy showings already on file

with the Commission contain

information which is required by an

application form, the application may

specifically refer to such information, if:

(1) The information previously filed is

over one A4 (21 cm x 29.7 cm) or 8.5

x 11 inch (21.6 cm x 27.9 cm) page in

length, and all information referenced

therein is current and accurate in all

significant respects under § 1.65 of this

chapter; and

(2) The reference states specifically

where the previously filed information

can actually be found, including

mention of:

(i) The station call sign or application

file number whenever the reference is to

station files or previously filed

applications; and

(ii) The title of the proceeding, the

docket number, and any legal citations,

whenever the reference is to a docketed

proceeding. However, questions on an

application form which call for specific

technical data, or which can be

answered by a ‘‘yes’’ or ‘‘no’’ or other

short answer shall be answered as

appropriate and shall not be crossreferenced to a previous filing.

(d) In addition to the general

application requirements of subpart F of

this part and § 27.204, applicants shall

submit any additional documents,

exhibits, or signed written statements of

fact:

(1) As may be required by these rules;

and

(2) As the Commission, at any time

after the filing of an application and

during the term of any authorization,

may require from any applicant,
9670 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

permittee, or licensee to enable it to

determine whether a radio authorization

should be granted, denied, or revoked.

(e) Except when the Commission has

declared explicitly to the contrary, an

informational requirement does not in

itself imply the processing treatment of

decisional weight to be accorded the

response.

§ 27.308 Technical content of applications.

All applications required by this part

shall contain all technical information

required by the application forms or

associated public notice(s). Applications

other than initial applications for a WCS

license must also comply with all

technical requirements of the rules

governing the WCS (see subparts C and

D of this part as appropriate).

§ 27.310 Waiver of rules.

(a) Request for waivers. (1) Waivers of

these rules may be granted upon

application or by the Commission on its

own motion. Requests for waivers shall

contain a statement of reasons sufficient

to justify a waiver. Waivers will not be

granted except upon an affirmative

showing:

(i) That the underlying purpose of the

rule will not be served, or would be

frustrated, by its application in a

particular case, and that grant of the

waiver is otherwise in the public

interest; or

(ii) That the unique facts and

circumstances of a particular case

render application of the rule

inequitable, unduly burdensome or

otherwise contrary to the public

interest. Applicants must also show the

lack of a reasonable alternative.

(2) If the information necessary to

support a waiver request is already on

file, the applicant may cross-reference to

the specific filing where it may be

found.

(b) Denial of waiver, alternate

showing required. If a waiver is not

granted, the application will be

dismissed as defective unless the

applicant has also provided an

alternative proposal which complies

with the Commission’s rules (including

any required showings).

§ 27.311 Defective applications.

(a) Unless the Commission shall

otherwise permit, an application will be

unacceptable for filing and will be

returned to the applicant with a brief

statement as to the omissions or

discrepancies if:

(1) The application is defective with

respect to completeness of answers to

questions, informational showings,

execution, or other matters of a formal

character; or

(2) The application does not comply

with the Commission’s rules,

regulations, specific requirements for

additional information or other

requirements. See also § 27.204.

(b) Some examples of common

deficiencies which result in defective

applications under paragraph (a) of this

section are:

(1) The application is not filled out

completely and signed; or

(2) The application (other than an

application filed on FCC Form 175) does

not include an environmental

assessment as required for an action that

may have a significant impact upon the

environment, as defined in § 1.1307 of

this chapter.

(3) The application is filed prior to the

public notice issued under § 27.316

announcing the application filing date

for the relevant auction or after the

cutoff date prescribed in that public

notice;

(c) If an applicant is requested by the

Commission to file any documents or

any supplementary or explanatory

information not specifically required in

the prescribed application form, a

failure to comply with such request

within a specified time period will be

deemed to render the application

defective and will subject it to

dismissal.

§ 27.312 Inconsistent or conflicting

applications.

While an application is pending and

undecided under this part 27, no

subsequent inconsistent or conflicting

application may be filed by the same

applicant, his successor or assignee, or

on behalf or for the benefit of the same

applicant, his successor or assignee.

§ 27.313 Amendment of applications for

Wireless Communications Service (other

than applications filed on FCC Form 175).

This section applies to all

applications for Wireless

Communications Service other than

applications filed on FCC Form 175.

(a) Amendments as of right. A

pending application may be amended as

a matter of right if the application has

not been designated for hearing.

(1) Amendments shall comply with

§ 27.319, as applicable; and

(2) Amendments which resolve

interference conflicts or amendments

under § 27.319 may be filed at any time.

(b) The Commission or the presiding

officer may grant requests to amend an

application designated for hearing only

if a written petition demonstrating good

cause is submitted and properly served

upon the parties of record.

(c) Major amendments, minor

amendments. The Commission will

classify all amendments as minor,

unless there is a substantial change in

ownership or control. Such an

amendment shall be deemed to be a

major amendment subject to § 27.316.

(d) If a petition to deny (or other

formal objection) has been filed, any

amendment, requests for waiver, (or

other written communications) shall be

served on the petitioner by hand, unless

waiver of this requirement is granted

pursuant to paragraph (e) of this section.

See also § 1.2108 of this chapter.

(e) The Commission may waive the

service requirements of paragraph (d) of

this section and prescribe such

alternative procedures as may be

appropriate under the circumstances to

protect petitioners’ interests and to

avoid undue delay in a proceeding, if an

applicant submits a request for waiver

which demonstrates that the service

requirement is unreasonably

burdensome.

(f) Any amendment to an application

shall be signed and shall be submitted

in the same manner, and with the same

number of copies, as was the original

application. Amendments may be made

in letter form if they comply in all other

respects with the requirements of this

chapter.

(g) An application will be considered

to be a newly filed application if it is

amended by a major amendment (as

defined in this section), except in the

following circumstances:

(1) The amendment reflects only a

change in ownership or control found

by the Commission to be in the public

interest; or

(2) The amendment corrects

typographical transcription, or similar

clerical errors which are clearly

demonstrated to be mistakes by

reference to other parts of the

application, and whose discovery does

not create new or increased frequency

conflicts.

§ 27.314 Application for temporary

authorizations.

In circumstances requiring immediate

or temporary use of facilities, request

may be made for special temporary

authority (STA) to operate new or

modified equipment. Such requests may

be submitted as informal applications

(see § 22.105 of this chapter) and must

contain complete details about the

proposed operation and the

circumstances that fully justify and

necessitate the grant of STA. Such

requests should be filed in time to be

received by the FCC at least 10 days

prior to the date of proposed operation

or, where an extension is sought, 10

days prior to the expiration date of the

existing STA. Requests received less
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than 10 days prior to the desired date of

operation may be given expedited

consideration only if compelling

reasons are given, in writing, for the

delay in submitting the request.

Otherwise, such late-filed requests are

considered in turn, but action might not

be taken prior to the desired date of

operation. Requests for STAs must be

accompanied by the proper filing fee.

(a) Grant without Public Notice. STAs

may be granted without being listed in

a Public Notice, or prior to 30 days after

such listing, if:

(1) The STA is to be valid for 30 days

or less and the applicant does not plan

to file an application for regular

authorization of the subject operation;

(2) The STA is to be valid for 60 days

or less, pending the filing of an

application for regular authorization of

the subject operation;

(3) The STA is to allow interim

operation to facilitate completion of

authorized construction or to provide

substantially the same service as

previously authorized; or

(4) The STA is made upon a finding

that there are extraordinary

circumstances requiring operation in the

public interest and that delay in the

institution of such service would

seriously prejudice the public interest.

(b) Limit on STA term. The FCC may

grant STAs valid for a period not to

exceed 180 days under the provisions of

section 309(f) of the Communications

Act of 1934, as amended, (47 U.S.C.

section 309(f)) if extraordinary

circumstances so require, and pending

the filing of an application for regular

operation. The FCC may grant

extensions of STAs for a period of 180

days, but the applicant must show that

extraordinary circumstances warrant

such an extension.

§ 27.315 Receipt of application;

applications in the Wireless

Communications Service filed on FCC Form

175 and other applications in the WCS

Service.

(a) All applications for WCS filed

pursuant to § 27.304 are given a file

number. The assignment of a file

number to an application is merely for

administrative convenience and does

not indicate the acceptance of the

application for filing and processing.

Such assignment of a file number will

not preclude the subsequent return or

dismissal of the application if it is found

to be defective or not in accordance

with the Commission’s rules.

(b) Acceptance of an application for

filing merely means that it has been the

subject of a preliminary review as to

completeness. Such acceptance will not

preclude the subsequent return or

dismissal of the application if it is found

to be defective or not in accordance

with the Commission’s rules.

§ 27.316 Public notice period.

(a) At regular intervals, the

Commission may issue a public notice

listing:

(1) The acceptance for filing of all

applications and major amendments

thereto;

(2) Significant Commission actions

concerning applications listed as

acceptable for filing;

(3) Information which the

Commission in its discretion believes of

public significance. Such notices are

solely for the purpose of informing the

public and do not create any rights in

an applicant or any other person; or

(4) Special environmental

considerations as required by part 1 of

this chapter.

(b) The Commission will not grant

any application until expiration of a

period of seven (7) days following the

issuance date of a public notice listing

the application, or any major

amendments thereto, as acceptable for

filing. Provided, that the Commission

will not grant an application filed on

Form 600 filed either by a winning

bidder or by an applicant whose Form

175 application is not mutually

exclusive with other applicants, until

the expiration of a period of forty (40)

days following the issuance of a public

notice listing the application, or any

major amendments thereto, as

acceptable for filing. See also § 27.207.

(c) As an exception to paragraphs

(a)(1), (a)(2) and (b) of this section, the

public notice provisions are not

applicable to applications:

(1) For authorization of a minor

technical change in the facilities of an

authorized station where such a change

would not be classified as a major

amendment (as defined by § 27.313)

were such a change to be submitted as

an amendment to a pending application;

(2) For issuance of a license

subsequent to a radio station

authorization or, pending application

for a grant of such license, any special

or temporary authorization to permit

interim operation to facilitate

completion of authorized construction

or to provide substantially the same

service as would be authorized by such

license;

(3) For temporary authorization

pursuant to § 27.314;

(4) For an authorization under any of

the proviso clauses of section 308(a) of

the Communications Act of 1934 (47

U.S.C. section 308(a));

(5) For consent to an involuntary

assignment or transfer of control of a

radio authorization; or

(6) For consent to a voluntary

assignment or transfer of control of a

radio authorization, where the

assignment or transfer does not involve

a substantial change in ownership or

control.

§ 27.317 Dismissal and return of

applications.

(a) Any application may be dismissed

without prejudice as a matter of right if

the applicant requests its dismissal prior

to designation for hearing or, in the case

of applications filed on Forms 175 and

175–S, prior to auction. An applicant’s

request for the return of his application

after it has been accepted for filing will

be considered to be a request for

dismissal without prejudice. Applicants

requesting dismissal of their

applications are also subject to § 27.203.

(b) A request to dismiss an

application without prejudice will be

considered after designation for hearing

only if:

(1) A written petition is submitted to

the Commission and is properly served

upon all parties of record; and

(2) The petition complies with the

provisions of this section and

demonstrates good cause.

(c) The Commission will dismiss an

application for failure to prosecute or

for failure to respond substantially

within a specified time period to official

correspondence or requests for

additional information. Dismissal shall

be without prejudice if made prior to

designation for hearing or prior to

auction, but dismissal may be made

with prejudice for unsatisfactory

compliance or after designation for

hearing or after the applicant is notified

that it is the winning bidder under the

auction process.

§ 27.319 Ownership changes and

agreements to amend or to dismiss

applications or pleadings.

(a) Applicability. Subject to the

provisions of § 27.204 (Bidding

Application and Certification

Procedures; Prohibition of Collusion),

this section applies to applicants and all

other parties interested in pending

applications who wish to resolve

contested matters among themselves

with a formal or an informal agreement

or understanding. This section applies

only when the agreement or

understanding will result in:

(1) A major change in the ownership

of an applicant to which §§ 27.313(c)

and 27.313(g) apply or which would

cause the applicant to lose its status as

a designated entity under § 27.210(b), or
9672 Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations

(2) The individual or mutual

withdrawal, amendment or dismissal of

any pending application, amendment,

petition or other pleading.

(b) The provisions of § 27.207 will

apply in the event of the filing of

petitions to deny or other pleadings or

informal objections filed against WCS

applications. The provisions of § 27.317

will apply in the event of dismissal of

WCS applications.

§ 27.320 Opposition to applications.

(a) Petitions to deny (including

petitions for other forms of relief) and

responsive pleadings for Commission

consideration must comply with

§ 27.207 and must:

(1) Identify the application or

applications (including applicant’s

name, station location, Commission file

numbers and radio service involved)

with which it is concerned;

(2) Be filed in accordance with the

pleading limitations, filing periods, and

other applicable provisions of §§ 1.41

through 1.52 of this chapter except

where otherwise provided in § 27.207;

(3) Contain specific allegations of fact

which, except for facts of which official

notice may be taken, shall be supported

by affidavit of a person or persons with

personal knowledge thereof, and which

shall be sufficient to demonstrate that

the petitioner (or respondent) is a party

in interest and that a grant of, or other

Commission action regarding, the

application would be prima facie

inconsistent with the public interest;

(4) Be filed within five (5) days after

the date of public notice announcing the

acceptance for filing of any such

application or major amendment thereto

(unless the Commission otherwise

extends the filing deadline); and

(5) Contain a certificate of service

showing that it has been hand delivered

to the applicant no later than the date

of filing thereof with the Commission.

(b) A petition to deny a major

amendment to a previously filed

application may only raise matters

directly related to the amendment

which could not have been raised in

connection with the underlying,

previously filed application. This does

not apply to petitioners who gain

standing because of the major

amendment.

(c) Parties who file frivolous petitions

to deny may be subject to sanctions

including monetary forfeitures, license

revocation, if they are FCC licensees,

and may be prohibited from

participating in future auctions.

§ 27.321 Mutually exclusive applications.

(a) Two or more pending applications

are mutually exclusive if the grant of

one application would effectively

preclude the grant of one or more of the

others under the Commission’s rules

governing the Wireless Communications

Services involved. The Commission

uses the general procedures in this

section for processing mutually

exclusive applications in the Wireless

Communications Services.

(b) An application will be entitled to

comparative consideration with one or

more conflicting applications only if the

Commission determines that such

comparative consideration will serve

the public interest.

§ 27.322 Consideration of applications.

(a) Applications for an instrument of

authorization will be granted if, upon

examination of the application and

upon consideration of such other

matters as it may officially notice, the

Commission finds that the grant will

serve the public interest, convenience,

and necessity. See also § 1.2108 of this

chapter.

(b) The grant shall be without a formal

hearing if, upon consideration of the

application, any pleadings or objections

filed, or other matters which may be

officially noticed, the Commission finds

that:

(1) The application is acceptable for

filing, and is in accordance with the

Commission’s rules, regulations, and

other requirements;

(2) The application is not subject to a

post-auction hearing or to comparative

consideration pursuant to § 27.322 with

another application(s);

(3) The applicant certifies that the

operation of the proposed facility would

not cause harmful electromagnetic

interference to another authorized

station;

(4) There are no substantial and

material questions of fact presented; and

(5) The applicant is qualified under

current FCC regulations and policies.

(c) If the Commission should grant

without a formal hearing an application

for an instrument of authorization

which is subject to a petition to deny

filed in accordance with § 27.319, the

Commission will deny the petition by

the issuance of a concise statement for

the reason(s) for the denial and dispose

of all substantial issues raised by the

petition.

(d) Whenever the Commission,

without a formal hearing, grants any

application in part, or subject to any

terms or conditions other than those

normally applied to applications of the

same type, it shall inform the applicant

of the reasons therefor, and the grant

shall be considered final unless the

Commission should revise its action

(either by granting the application as

originally requested, or by designating

the application for a formal evidentiary

hearing) in response to a petition for

reconsideration which:

(1) Is filed by the applicant within

thirty (30) days from the date of the

letter or order giving the reasons for the

partial or conditioned grant;

(2) Rejects the grant as made and

explains the reasons why the

application should be granted as

originally requested; and,

(3) Returns the instrument of

authorization.

(e) The Commission will designate an

application for a formal hearing,

specifying with particularity the matters

and things in issue, if, upon

consideration of the application, any

pleadings or objections filed, or other

matters which may be officially noticed,

the Commission determines that:

(1) A substantial and material

question of fact is presented (see also

section 1.2108 of this chapter);

(2) The Commission is unable for any

reason to make the findings specified in

paragraph (a) of this section and the

application is acceptable for filing,

complete, and in accordance with the

Commission’s rules, regulations, and

other requirements; or

(3) The application is entitled to

concurrent consideration (under section

27.321) with another application (or

applications).

(f) The Commission may grant, deny

or take other action with respect to an

application designated for a formal

hearing pursuant to paragraph (e) of this

section or part 1 of this chapter.

(g) Reconsideration or review of any

final action taken by the Commission

will be in accordance with part 1,

subpart A of this chapter.

§ 27.323 [Reserved]

§ 27.324 Transfer of control or assignment

of station authorization.

(a) Authorizations shall be transferred

or assigned to another party, voluntarily

(for example, by contract) or

involuntarily (for example, by death,

bankruptcy, or legal disability), directly

or indirectly or by transfer of control of

any corporation holding such

authorization, only upon application

and approval by the Commission. A

transfer of control or assignment of

station authorization in the Wireless

Communications Service is also subject

to section 27.209.

(1) A change from less than 50%

ownership to 50% or more ownership

shall always be considered a transfer of

control.

(2) In other situations a controlling

interest shall be determined on a case-
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules and Regulations 9673

by-case basis considering the

distribution of ownership, and the

relationships of the owners, including

family relationships.

(b) Form required:

(1) Assignment.

(i) FCC Form 490 shall be filed to

assign a license or permit.

(ii) In the case of involuntary

assignment, FCC Form 490 shall be filed

within 30 days of the event causing the

assignment.

(2) Transfer of control.

(i) FCC Form 490 shall be submitted

in order to transfer control of a

corporation holding a license or permit.

(ii) In the case of involuntary transfer

of control, FCC Form 490 shall be filed

within 30 days of the event causing the

transfer.

(3) Notification of completion. The

Commission shall be notified by letter of

the date of completion of the assignment

or transfer of control.

(4) If the transfer of control of a

license is approved, the new licensee is

held to the original renewal requirement

of § 27.14.

(c) In acting upon applications for

transfer of control or assignment, the

Commission will not consider whether

the public interest, convenience, and

necessity might be served by the transfer

or assignment of the authorization to a

person other than the proposed

transferee or assignee.

(d) Applicants seeking to transfer

their licenses within three years after

the initial license grant date are required

to file, together with their transfer

application, the associated contracts for

sale, option agreements, management

agreements, and all other documents

disclosing the total consideration to be

received in return for the transfer of the

license.

(e) Partial assignment of

authorization. If the authorization for

some, but not all, of the facilities of a

Wireless Communications Service

station is assigned to another party,

voluntarily or involuntarily, such action

is a partial assignment of authorization.

(f) To request FCC approval of a

partial assignment of authorization, the

following must be filed in addition to

the forms required by paragraph (b) of

this section:

(g) The assignee must apply for

authority (FCC Form 600) to operate a

new station including the facilities for

which authorization is assigned, or to

modify the assignee’s existing station to

include the facilities for which

authorization was assigned.

§ 27.325 Termination of authorization.

(a) All authorizations shall terminate

on the date specified on the

authorization, unless a timely

application for renewal has been filed.

(b) If no application for renewal has

been made before the authorization’s

expiration date, a late application for

renewal will only be considered if it is

filed within 30 days of the expiration

date and shows that the failure to file a

timely application was due to causes

beyond the applicant’s control. Service

to subscribers need not be suspended

while a late filed renewal application is

pending, but such service shall be

without prejudice to Commission action

on the renewal application and any

related sanctions. See also § 27.14

(Criteria for Comparative Renewal

Proceedings).

(c) Special Temporary Authority. A

special temporary authorization shall

automatically terminate upon failure to

comply with the conditions in the

authorization.

PART 97—AMATEUR RADIO SERVICE

1. The authority citation for part 97

continues to read as follows:

Authority: 48 Stat. 1066, 1082, as

amended; 47 U.S.C. 154, 303. Interpret or

apply 48 Stat. 1064–1068, 1081–1105, as

amended; 47 U.S.C. 151–155, 301–609,

unless otherwise noted.

2. Section 97.303(j) is revised to read

as follows:

§ 97.303 Frequency sharing requirements.

* * * * *

(j) In the 13 cm band:

(1) The amateur service is allocated

on a secondary basis in all ITU Regions.

In ITU Region 1, no amateur station

shall cause harmful interference to, and

shall be not protected from interference

due to the operation of, stations

authorized by other nations in the fixed

and mobile services. In ITU Regions 2

and 3, no amateur station shall cause

harmful interference to, and shall not be

protected from interference due to the

operation of, stations authorized by

other nations in the fixed, mobile and

radiolocation services.

(2) In the United States:

(i) The 2300–2305 MHz segment is

allocated to the amateur service on a

secondary basis. (Currently the 2300–

2305 MHz segment is not allocated to

any service on a primary basis.);

(ii) The 2305–2310 MHz segment is

allocated to the amateur service on a

secondary basis to the fixed, mobile,

and radiolocation services;

(iii) The 2390–2400 MHz segment is

allocated to the amateur service on a

primary basis; and

(iv) The 2400–2402 MHz segment is

allocated to the amateur service on a

secondary basis. (Currently the 2400–

2402 MHz segment is not allocated to

any service on a primary basis.) The

2402–2417 MHz segment is allocated to

the amateur service on a primary basis.

The 2417–2450 MHz segment is

allocated to the amateur service on a cosecondary basis with the Government

radiolocation service. Amateur stations

operating within the 2400–2450 MHz

segment must accept harmful

interference that may be caused by the

proper operation of industrial,

scientific, and medical devices

operating within the band.

[FR Doc. 97–5128 Filed 2–28–97; 8:45 am]

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