12752 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Rules and Regulations

2. Appendix A of Part 1611 is revised

to read as follows:

APPENDIX A OF PART 1611—LEGAL SERVICES CORPORATION 1997 POVERTY GUIDELINES*

Size of family unit

All states

but Alaska

and Hawaii 1

Alaska 2 Hawaii 3

1 ...................................................................................................................................................................... $9,863 $12,338 $11,338

2 ...................................................................................................................................................................... 13,263 16,588 15,250

3 ...................................................................................................................................................................... 16,663 20,838 19,163

4 ...................................................................................................................................................................... 20,063 25,088 23,075

5 ...................................................................................................................................................................... 23,463 29,338 26,988

6 ...................................................................................................................................................................... 26,863 33,588 30,900

7 ...................................................................................................................................................................... 30,263 37,838 34,813

8 ...................................................................................................................................................................... 33,663 42,088 38,725

* The figures in this table represent 125% of the poverty guidelines by family size as determined by the Department of Health and Human

Services. 1For family units with more than eight members, add $3,400 for each additional member in a family.

2For family units with more than eight members, add $4,250 for each additional member in a family.

3For family units with more than eight members, add $3,913 for each additional member in a family.

Dated: March 13, 1997.

Victor M. Fortuno,

General Counsel.

[FR Doc. 97–6830 Filed 3–17–97; 8:45 am]

BILLING CODE 7050–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 24 and 101

[WT Docket No. 95–157; FCC 97–48]

Plan for Sharing the Costs of

Microwave Relocation

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: By this Second Report and

Order, the Commission amends certain

aspects of the microwave relocation

rules, which were first established in

the Emerging Technologies proceeding

and were modified and clarified in the

First Report and Order and Further

Notice of Proposed Rule Making in this

docket. Specifically, the Commission

adjusts the relocation timetables for the

broadband PCS C, D, E, and F blocks by

shortening the voluntary negotiation

period applicable to each block for nonpublic safety incumbents by one year.

This change will facilitate the relocation

process for the most recently licensed

PCS blocks and will create incentives

for all parties to enter into early

negotiations. The Commission does not

alter the timetable for public safety

incumbents in the broadband PCS C, D,

E, and F blocks. In addition, the

Commission permits microwave

incumbents to participate in the costsharing program adopted in the First

Report and Order. The cost-sharing

program currently allows PCS licensees

who relocate microwave incumbents to

obtain reimbursement rights and collect

reimbursement under the cost-sharing

plan from later-entrant PCS licensees

that benefit from the relocation.

EFFECTIVE DATE: May 19, 1997.

FOR FURTHER INFORMATION CONTACT:

Michael Hamra, Wireless

Telecommunications Bureau, (202) 418–

0620.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Second Report and

Order, adopted February 13, 1997 and

released February 27, 1997. The

complete text of this Second Report and

Order is available for inspection and

copying during normal business hours

in the FCC Reference Center, Room 230,

1919 M Street, NW., Washington, DC,

and also may be purchased from the

Commission’s copy contractor,

International Transcription Service, at

(202) 857–3800, 2100 M Street, NW.,

Suite 140, Washington, DC 20037.

I. Background

1. In the Emerging Technologies

proceeding, ET Docket No. 92–9, 57 FR

49020 (October 29, 1992) the

Commission reallocated the 1850–1990,

2110–2150, and 2160–2200 MHz bands

from private and common carrier fixed

microwave services to emerging

technology services. In that proceeding

the Commission established the

procedures for relocating 2 GHz

microwave incumbents to available

frequencies in higher bands or to other

media. These procedures are intended

to encourage incumbents to negotiate

relocation agreements with emerging

technology licensees or manufacturers

of unlicensed devices to accelerate the

deployment of emerging technologies.

2. The relocation process established

in that proceeding provided two

negotiation periods that must expire

before an emerging technology licensee

may request involuntary relocation of

the incumbent. The first is a fixed twoyear period for voluntary negotiations—

three years for public safety incumbents,

e.g., police, fire, and emergency medical

licensees—commencing with the

Commission’s acceptance of long form

(Form 600) applications for emerging

technology services. During that time

period, the emerging technology

providers and microwave licensees may

negotiate any mutually acceptable

relocation agreement. Such negotiations

are strictly voluntary. At any time

following the conclusion of the

voluntary negotiation period, the

emerging technology licensee may

initiate a one-year mandatory

negotiation period—two years for public

safety licensees. During this period the

parties are required to negotiate in good

faith. If the parties fail to reach an

agreement during these periods, the

emerging technology provider may

request involuntary relocation of the

existing facility. As a condition of

relocation, however, the emerging

technology licensee is required to pay

the cost of relocating the incumbent to

a comparable facility.

3. In the Commission’s First Report

and Order in WT Docket 95–157, 61 FR

29679 (June 12, 1996) the Commission

adopted a cost-sharing formula that

allows a PCS licensee who relocates an

incumbent microwave system to obtain

reimbursement rights and collect

reimbursement from later-entrant PCS

licensees that benefit from the

relocation under a cost-sharing plan

administered by the industry. The

Commission also addressed concerns
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Rules and Regulations 12753

raised by PCS licensees that

negotiations during the voluntary period

for the A and B blocks were not

progressing as fast as they should and

were potentially delaying the

deployment of PCS service to the

public. The Commission decided that

altering the timetable for A and B block

negotiation periods at that time would

not be in the public interest because

ongoing negotiations were likely to be

interrupted, while parties re-assessed

their positions to the detriment of the

process and ultimately, the public

interest. In the Further Notice of

Proposed Rule Making (Further NPRM)

61 FR 24470 (May 15, 1996)

accompanying the First Report and

Order, however, the Commission sought

comment on a proposal to shorten the

voluntary negotiation period and

lengthen the mandatory negotiation

period for the D, E, and F blocks and on

whether these same changes should

apply to the C block.

4. In the Further NPRM, the

Commission also considered whether to

allow microwave incumbents who pay

their own relocation expenses to

participate in the cost-sharing plan

adopted in the First Report and Order

under certain conditions. To further

expedite clearing of the band, the

Commission tentatively concluded that

incumbents should be permitted to

relocate their own links and obtain

reimbursement rights pursuant to the

cost-sharing plan.

II. Discussion

A. Voluntary and Mandatory

Negotiation Periods for D, E, and F

Blocks

5. The comments of both PCS

licensees and microwave incumbents

have confirmed that most incumbents

are willing to negotiate reasonable

relocation agreements during the

voluntary negotiation period. As many

PCS licensees argue, however, the

current length of the voluntary period

unnecessarily provides opportunities for

some incumbents to demand excessive

premiums from PCS licensees after they

have invested substantial amounts at

auction and face competitive pressure to

construct their systems and enter the

market, particularly on 10 MHz blocks

where PCS licensees have limited

flexibility to build around incumbents.

In addition, because of the staggered

timing of PCS licensing, D, E, and F

block licensees who are unable to

negotiate voluntary agreements cannot

initiate mandatory negotiations for more

than a year after their A and B block

competitors have begun such

negotiations. Thus, the current rules

give the A and B block licensees a

significant ‘‘head start’’ in the relocation

process.

6. The Commission agrees that

shortening the voluntary period for nonpublic safety incumbents in the D, E,

and F blocks by one year will spur

voluntary negotiations and speed the

deployment of PCS services to the

public. This modification will also

enhance competitive parity by reducing

the A and B block licensees’ head start

in the relocation process. The voluntary

period for the A and B block licensees

expires on April 5, 1997 (with respect

to non-public safety incumbents), at

which point A and B block licensees

may begin mandatory negotiations.

Shortening the voluntary period for D,

E, and F blocks will help licensees in

those blocks to initiate mandatory

negotiations a year earlier than under

the current rules, providing some

compensation for the fact that the D, E,

and F block voluntary negotiation

period commenced approximately

twenty-one months after the A and B

block voluntary negotiation period. The

A and B block voluntary negotiation

period commenced April 5, 1995. The

D, E, and F block voluntary negotiation

period will commence January 30, 1997,

when long forms are filed. The

Commission therefore amends the rules

and shortens the voluntary negotiation

period for the D, E, and F blocks by one

year for non-public safety incumbents.

7. The Commission concludes that

shortening the voluntary negotiation

period for non-public safety incumbents

in the D, E, and F blocks at this juncture

will not adversely affect such

incumbents. The Commission notes that

microwave incumbents have been on

notice since October 1992 that they will

be required to relocate to alternative

spectrum. Moreover, the Commission’s

experience with voluntary negotiations

in the A and B blocks indicates that

most incumbents who are motivated to

enter into voluntary agreements are

willing to do so early in the voluntary

period and do not require prolonged

negotiations to reach an agreement.

Under the timetables adopted here, D, E,

and F block incumbents will continue to

have a reasonable window for voluntary

negotiations and may continue to

negotiate in the mandatory negotiation

period. Moreover, if parties are

successfully negotiating an agreement

during the voluntary negotiation period

and believe that more time is needed,

they may agree to postpone

commencement of the mandatory

period. Finally, shortening of the

voluntary period does not alter the

Commission’s fundamental policy that

incumbents must be made whole for the

reasonable expense of being relocated to

comparable facilities, regardless of

whether relocation occurs in the

voluntary period, the mandatory period,

or as a result of involuntary relocation.

8. While the Commission adopts it’s

proposal to shorten the voluntary

negotiation period for non-public safety

incumbents in the D, E, and F blocks,

the Commission concludes it is

unnecessary to lengthen the one-year

mandatory negotiation period. Because

the D, E, and F blocks are 10 MHz

blocks, there are fewer links to relocate

than in the 30 MHz A, B, and C blocks.

In addition, no additional time should

be required for mandatory negotiation in

the D, E, and F blocks because many of

the links will have been relocated by A,

B, and C block licensees by the time the

D, E, and F block licensees commence

negotiations. The Commission is

encouraged, from our discussions with

industry, by the speed with which

relocation agreements are being

negotiated and believe that a total of two

years, (one year voluntary and one year

mandatory) is sufficient to

accommodate negotiations between

non-public safety incumbents and D, E,

and F block licensees. Lengthening the

mandatory negotiation period by one

year, on the other hand, will do little to

accomplish the Commission’s objective

of speeding the deployment of PCS

services to the public. The Commission

also do not believe that non-public

safety incumbents will be harmed by a

shorter combined negotiation period

because in conjunction with these

changes, the Commission is providing

microwave incumbents more flexibility

to self-relocate by permitting them to

participate in the Commission’s costsharing plan (see, infra, ¶ 22).

Consequently, the Commission declines

to increase the amount of time in the

mandatory period needed to complete

the relocation process for these blocks.

9. The Commission declines to alter

the voluntary or mandatory negotiation

periods for public safety incumbents in

the D, E, and F blocks. Under the

Commission’s current rules, public

safety incumbents in the 2 GHz band are

distinguished from non-public safety 2

GHz incumbents in that they have a

three-year voluntary and a two-year

mandatory negotiation period. The

Commission has given public safety

incumbents more time to negotiate and

relocate because of the importance of

ensuring a seamless transition for

facilities that support vital emergency

services such as police, fire, and

emergency medical treatment. In

addition, the longer negotiation

timetable reflects the fact that public

safety agencies typically operate under
12754 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Rules and Regulations

greater budgetary constraints and longer

planning cycles than non-public safety

entities. For example, the LA Sheriff’s

Department notes that replacing its 2

GHz simulcast mobile network entails a

lengthy review and approval process in

which numerous county personnel must

participate at all stages. APCO contends

that for public safety agencies, the

relocation process requires significant

commitment of scarce agency time and

resources to ensure that vital emergency

communications will not be

compromised or disrupted. The

Commission agrees that these continue

to be significant concerns that

distinguish public safety incumbents

from other incumbents. The

Commission further concludes that

there is insufficient support in the

record for modifying the negotiation

timetable for public safety incumbents

at this time. Even prior to the

commencement of negotiations, many

public safety agencies have begun to

plan for relocation in reliance on the

existing rules. Because changing the

rules could disrupt this process, and

because of the vital importance of

providing the public with reliable

emergency communications, the

Commission concludes that the current

relocation timetable for public safety

agencies in the D, E, and F blocks

should be retained.

10. The Commission does not believe

that retaining the current relocation

rules for public safety incumbents will

adversely affect PCS licensees in the D,

E, and F blocks. Because public safety

incumbents account for fewer than 20

percent of the microwave facilities in all

PCS blocks, PCS licensees will be able

to clear most of their spectrum under

the shorter timetable applicable to nonpublic safety licensees. In addition, the

Commission’s experience after twentyone months of voluntary negotiations in

the A and B blocks indicates that most

public safety incumbents in those

blocks have entered into voluntary

negotiations with PCS licensees and are

cooperating in the relocation process.

Based on this experience, the

Commission anticipates that public

safety agencies in the D, E, and F blocks

will not wait until the conclusion of the

voluntary period to begin negotiations

requested by D, E, and F block licensees

and will make good-faith efforts to

complete the relocation process in a

reasonable time. Because the

Commission believes that the current

rules fairly balance the interests of PCS

licensees and public safety incumbents,

the Commission concludes that further

alteration to the voluntary or mandatory

negotiation periods for public safety

incumbents is unnecessary.

B. Voluntary and Mandatory

Negotiation Periods for C Block

11. The C block winners are

potentially at a greater disadvantage

compared to A and B block winners

under the current voluntary negotiation

timetable. Currently the voluntary

negotiation period for non-public safety

incumbents and A and B block licensees

will expire April 5, 1997, whereas the

equivalent voluntary negotiation period

for C block will expire May 22, 1998.

The C block winners are small

businesses that do not have financial

resources similar to their A and B block

competitors. The C block is an

entrepreneurs block that restricted

eligibility to applicants with gross

revenues of less than $125 million in

each of the last two years and total

assets of less than $500 million at the

time the applicants’ short-form

application (Form 175) was filed. It is

not as feasible for a small business to

pay premiums to accelerate

negotiations. The purpose of the special

C block bidding rules is to encourage

small business participation in PCS. The

Commission believes an extended

voluntary negotiation period could

hinder or deter small businesses from

effectively participating in the PCS

business because it increases the

likelihood that they will incur start-up

business expenses such as relocation

premiums and related costs due to

extended negotiations. The

Communications Act requires the

Commission to eliminate market entry

barriers for entrepreneurs and small

businesses. The Commission believes

that modifying the negotiation periods

will eliminate market entry barriers

pursuant to Section 257 of the

Communications Act and will assist

small businesses in C block to deploy

service to the consumer faster. The

Commission concludes that these

factors are sufficiently compelling to

justify modification of the voluntary

negotiation period for non-public safety

incumbents, even though negotiations

have commenced. The Commission

therefore shortens the voluntary

negotiation period for C block to one

year for non-public safety incumbents,

which will cause it to terminate on May

22, 1997.

12. Similar to the Commission’s

decision not to extend the mandatory

negotiation period in the D, E, and F

blocks, the Commission also conclude

that it is unnecessary to extend the

mandatory negotiation period for nonpublic safety incumbents in the C block.

As in the case of the D, E, and F blocks,

the Commission believe that no

additional time is required for

mandatory negotiations in the C block

because many C block links will have

been relocated by A and B block

licensees by the time C block licensees

commence mandatory negotiations. The

Commission also believes that a

combined two-year negotiation period

will be sufficient for negotiations

between C block licensees and nonpublic safety incumbents, whereas

lengthening the mandatory period by

one year could delay the deployment of

PCS services to the public. Also,

microwave incumbents will have greater

flexibility in the relocation process

because the Commission is permitting

them to participate in the Commission’s

cost-sharing plan (see, infra, ¶ 22). In

addition, by retaining the one-year

mandatory negotiation period for C

block, the Commission achieves greater

symmetry with the negotiations period

for A and B blocks: the earliest that the

mandatory negotiation period for C

block will expire is now May 22, 1998

for non-public safety incumbents—

approximately the same time as the A

and B block mandatory negotiation

periods, which in most cases should

expire April 5, 1998. This will create

greater parity between C block

entrepreneurs and their A and B block

competitors in terms of clearing the

band and offering service to the public.

13. The Commission declines to alter

the voluntary or mandatory negotiation

periods for public safety incumbents in

the C block for the same reasons the

Commission has articulated for the D, E,

and F blocks. As modified, the

voluntary negotiation period for the C

block will expire on May 22, 1997 for

non-public safety incumbents—

approximately the same time as the A

and B block voluntary negotiation

periods, which end April 5, 1997. The

voluntary negotiation period for public

safety incumbents in the C block will

remain unchanged and will end May 22,

1999—approximately one year after the

voluntary negotiation period for public

safety incumbents in the A and B block

voluntary negotiation periods end,

which is April 5, 1998.

C. Microwave Incumbent Participation

in Cost-Sharing Plan

14. The Commission adopts it’s

tentative conclusion from the Further

Notice of Proposed Rule Making, to

permit microwave incumbents that

relocate themselves to obtain

reimbursement rights and collect

reimbursement under the Commission’s

cost-sharing plan from subsequent PCS

licensees that would have interfered

with the relocated link had it not been
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Rules and Regulations 12755

moved. The Commission agrees with

PCS licensees and microwave

incumbents who argue that incumbent

participation will accelerate the

relocation process by promoting systemwide relocations. Incumbent

participation will also give microwave

incumbents the option of avoiding timeconsuming negotiations, allowing for

faster clearing of the 2 GHz band in

some instances. The Commission

believes that promoting system-wide

relocation in this way may even reduce

the overall cost of clearing the 2 GHz

band.

15. In concluding that microwave

incumbents should be allowed to

participate in cost-sharing, the

Commission agrees with commenters

that some safeguards are needed to

ensure that voluntarily relocating

microwave incumbents do not seek

reimbursement for unreasonable

expenses. The Commission therefore

will impose the same restrictions on

reimbursement of incumbents that

apply to PCS licensees. These include

the limitations under the cost-sharing

plan on links for which reimbursement

may be sought, and the monetary cap on

the amount a relocator may be

reimbursed for the relocation of each

individual microwave link.

16. The Commission also concludes

that the cost-sharing formula, when

applied to microwave incumbents,

should include depreciation. First, a

microwave incumbent who voluntarily

relocates itself may obtain benefits it

would not realize if it waited to be

relocated by a PCS licensee. Early

relocation by the incumbent on a

voluntary basis provides more options

for obtaining alternative spectrum, more

control over the relocation process, and

reduces uncertainty about further

operations. Depreciation ensures that

the self-relocation pays for these

benefits rather than passing them on to

a PCS licensee who otherwise would

not have relocated the incumbent until

later. Second, the Commission observed

in the First Report and Order that

depreciation creates an incentive for the

relocator to minimize costs because its

own share of the cost is not depreciated.

The Commission concludes that this

element of the cost-sharing plan applies

equally to microwave incumbents who

relocate themselves. Therefore, the

Commission retains depreciation as an

incentive for microwave incumbents

who relocate themselves to minimize

their relocation costs.

17. Finally, the Commission

concludes that microwave incumbents

who self-relocate should be required to

provide independent verification of

their relocation costs. Although the costsharing plan already requires all

relocators to keep documents of all

expenses, the Commission believe this

additional safeguard is appropriate in

the case of incumbents seeking

reimbursement. In the case of an

incumbent who self-relocates, it may be

difficult for subsequent PCS licensees to

verify the incumbent’s costs to

determine whether they are

compensable under the cost-sharing

plan. Therefore, any incumbent seeking

reimbursement under the cost-sharing

plan must submit to the clearinghouse

an independent third party appraisal of

its compensable relocation costs. The

appraisal should be based on the actual

cost of replacing the incumbent’s system

with comparable facilities, and should

exclude the cost of any equipment

upgrades that would not be

reimbursable under the cost-sharing

plan.

III. Conclusion

18.The changes the Commission

makes to the timetables for the

voluntary and mandatory negotiation

periods for the broadband PCS C, D, E,

and F blocks will facilitate negotiations

between microwave incumbents and

PCS licensees. Allowing microwave

incumbents to participate in the costsharing plan will also encourage more

rapid system relocation and will reduce

relocation costs. As a result of these

changes, PCS licensees will be able to

speed their deployment of service to the

public.

IV. Procedural Matters

A. Regulatory Flexibility Act

As required by Section 603 of the

Regulatory Flexibility Act, 5 U.S.C. 603

(RFA), an Initial Regulatory Flexibility

Analysis (IRFA) was incorporated in the

Notice of Proposed Rule Making in WT

Docket No. 95–157. The Commission

sought written comments on the

proposals in the NPRM, including the

IRFA. The Commission’s Final

Regulatory Flexibility Analysis (FRFA)

in this Order conforms to the RFA, as

amended by the Contract With America

Advancement Act of 1996.

Need for and Purpose of the Action:

This Second Report and Order (i)

shortens the voluntary negotiation

period for all non-public safety

microwave incumbents in the C, D, E,

and F blocks by one year, (ii) allows the

microwave incumbents who selfrelocate to obtain reimbursement rights

and collect reimbursement under the

cost-sharing formula. The changes

adopted herein will facilitate the rapid

relocation of microwave facilities in the

2 GHz band and will accelerate the

deployment of PCS services to the

public.

Summary of Significant Issues Raised

by the Public Comments in Response to

the Initial Regulatory Flexibility

Analysis: No comments were submitted

in response to the IRFA. However, two

commenters to the Further Notice of

Proposed Rule Making, raised an issue

that might affect small business entities.

The commenters, American Petroleum

Institute (API) and the American Public

Power Association (APPA) argued that

shortening the voluntary negotiation

periods would disrupt and impose a

significant burden on microwave

incumbent businesses by forcing them

to negotiate an agreement during a

shorter voluntary negotiation period.

Both commenters believe that without a

two-year voluntary negotiation period,

incumbents will be forced to negotiate

during the mandatory negotiation

period. The Commission does not

believe that successful negotiations will

be forced into the mandatory

negotiation period. If successful

negotiations are occurring, parties may

agree not to commence with the

mandatory negotiation period and may

continue to negotiate successfully

throughout a voluntary negotiation

period.

Description and Estimate of the

Number of Small Entities To Which

Rule Will Apply: For purposes of this

Order, the Small Business

Administration (SBA) has defined a

small business for Standard Industrial

Classification (SIC) category 4813

(Telephone Communications Except

Radiotelephone) to be a small entity

when it has fewer than 1,500

employees.

Estimates for Broadband PCS

Services: The broadband PCS spectrum

is divided into six frequency blocks

designated A through F. As set forth in

47 CFR 24.720(b), the Commission has

defined small businesses in the C and F

block auctions to mean a firm that had

average gross revenues of less than $40

million in the three previous calendar

years. The Commission’s definition of a

small business has been approved by

the SBA.

The Commission has auctioned

broadband PCS licenses in the A, B, C,

D, E, and F blocks. The Commission

does not have sufficient data to

determine how many small businesses

bid successfully for licenses in the A

and B blocks. There are 81 nondefaulting winning bidders that qualify

as small entities in the C block PCS

auctions. Based on this information, the

Commission conclude that the number

of broadband PCS licensees affected by

the decisions in this Order includes, at
12756 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Rules and Regulations

a minimum, the 81 non-defaulting

winning bidders that qualified as small

entities in the C block broadband PCS

auction.

The D, E, and F block auction closed

January 14, 1997, but presently there

have been no licenses awarded for the

D, E, and F block auctions. Therefore,

there are no small businesses providing

these services. However, there were 125

winning bidders and the Commission

anticipates a total of 1,479 licenses will

be awarded in the D, E, and F blocks.

Participation in the F block was limited

to entrepreneurs with under $125

million in average gross revenues over

the past three years. More than 40

percent of the licenses in the D, E, and

F blocks were won by 93 small

businesses. The Commission estimate

that most, if not all, of the small

businesses will be awarded licenses.

Estimates for Microwave Services: Due

to the nature of this private service, the

Commission does not have a definition

for small business with respect to

microwave services. Therefore, the

Commission will utilize the SBA’s

definition applicable to radiotelephone

companies—i.e. an entity with less than

1,500 persons. The Census Bureau

reports that there were 1,176 such

companies in operation for at least one

year at the end of 1992. Also, the

Federal Communication Commission’s

Office of Engineering and Technology

developed a study in 1992 that provides

statistical data for all microwave

incumbents in 1850 MHz to 1990 MHz

bands. Specifically, the study finds that

in the 1850 MHz to 1990 MHz, local

governments, including public safety

entities have 168 licensees; petroleum

companies have 67 licenses; power

companies have 164 licenses; railroad

companies have 18 licenses; and all

other microwave incumbents in this

band have 143 licenses. However, the

Commission does not have specific

statistics that determine how many of

these companies are small businesses.

In addition, this Second Report and

Order only affects microwave

incumbents in PCS blocks C, D, E, and

F. Therefore, this Second Report and

Order does not affect all microwave

incumbents in the 1850 MHz to 1990

MHz band.

However, the Commission recognizes

that a number of microwave incumbents

have already relocated due to the

current negotiations of A, B, and C block

PCS licensees. The Commission cannot

determine at this time how many

licensees have moved. The Commission

therefore is unable to estimate the

number of microwave service providers

that qualify under the SBA’s definition.

Description, Projected Reporting,

Record keeping and Other Compliance

Requirements: In this Second Report

and Order the Commission allows

microwave incumbents who voluntarily

relocate their links to obtain

reimbursement from subsequent PCS

licensees under the cost-sharing plan.

Microwave incumbents that participate

in the cost-sharing plan will be required

to submit documentation itemizing the

amount spent for the actual cost of

relocating the links. The voluntarily

relocating microwave incumbent will

also be required to submit an

independent third party appraisal of its

compensable costs. See, supra, IV., C,

paragraph 27.

Significant Alternatives and Steps

Taken By Agency to Minimize

Significant Economic Impact on a

Substantial Number of Small Entities

Consistent with Stated Objectives: In the

Further Notice of Proposed Rule Making

the Commission sought comment on

adjusting the negotiation periods for the

D, E, and F blocks by shortening the

voluntary negotiation period and

lengthening the mandatory negotiation

period by the corresponding amount.

The Commission also sought comment

on whether the same adjustments

should be made in the C block. This

Second Report and Order shortens the

voluntary negotiation period for the C,

D, E, and F blocks by one year and

lengthens the mandatory negotiation

period for C block by one year. The

Commission did not lengthen the

mandatory negotiation period for the D,

E, and F blocks because these are 10

MHz blocks and have fewer links to

relocate than in the 30 MHz blocks that

C block has. These alterations were

made to diminish the opportunity of a

few incumbents that were delaying

negotiations by demanding excessive

premiums from PCS licensees during

the voluntary negotiation periods.

Commenters to the Further NPRM

generally indicated that microwave

incumbents were negotiating

successfully during the voluntary

negotiation period and did not require

prolonged negotiations to reach

agreement. The Commission believes

that these changes do not affect an

incumbent’s ability to negotiate an

agreement during the voluntary

negotiation period. If parties are

successfully negotiating an agreement

during the voluntary negotiation period,

they may agree that more time is

needed, thereby agreeing to postpone

the commencement of the mandatory

negotiation period. See, supra, IV., A,

paragraph 13.

These alterations will accelerate the

deployment of PCS services to the

consumer and still guarantee microwave

incumbents full compensation for

relocating.

Report to Congress: The Commission

shall send a copy of this Final

Regulatory Flexibility Analysis with this

Second Report and Order in a report to

Congress pursuant to Section 251 of the

Small Business Regulatory Enforcement

Fairness Act of 1996, 5 U.S.C.

801(a)(1)(A). A copy of this Regulatory

Flexibility Analysis will also be

published in the Federal Register.

B. Authority

Authority for issuance of this Second

Report and Order is contained in the

Communications Act, Sections 4(i), 7,

303(c), 303(f), 303(g), 303(r), and 332, 47

U.S.C. 154(i), 157, 303(c), 303(f), 303(g),

303(r), 332, as amended.

C. Ordering Clauses

Accordingly, it is ordered That Parts

24 and 101 of the Commission’s rules

are amended as set forth below and will

become effective May 19, 1997.

It is further ordered That the

Regulatory Flexibility Analysis, as

required by Section 604 of the

Regulatory Flexibility Act, and as set

forth herein is Adopted.

It is further ordered That the Secretary

shall send a copy of this Second Report

and Order to the Chief Counsel for

Advocacy of the Small Business

Administration.

D. Further Information

For further information concerning

this proceeding, contact Michael Hamra,

Wireless Telecommunications Bureau,

Commercial Wireless Division at (202)

418–0620.

List of Subjects

47 CFR Part 24

Personal communications services,

Radio.

47 CFR Part 101

Fixed microwave services, Radio.

Federal Communications Commission

William F. Caton,

Acting Secretary.

Rule Changes

Parts 24 and 101 of Chapter I of Title

47 of the Code of Federal Regulations

are amended as follows:

Part 24 of Chapter 1 of Title 47 of the

Code of Federal Regulations is amended

as follows:

PART 24—PERSONAL

COMMUNICATIONS SERVICES

1. The authority citation for Part 24

continues to read as follows:
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Rules and Regulations 12757

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

309 and 332, unless otherwise noted.

2. Section 24.5 is amended by adding

the definition for ‘‘Voluntarily

Relocating Microwave Incumbent’’ in

alphabetical order to read as follows:

§ 24.5 Terms and definitions.

* * * * *

Voluntarily Relocating Microwave

Incumbent. A microwave incumbent

that voluntarily relocates its licensed

facilities to other media or fixed

channels.

3. Section 24.239 is revised to read as

follows:

§ 24.239 Cost-sharing requirements for

broadband PCS.

Frequencies in the 1850–1990 MHz

band listed in § 101.147(c) of this

chapter have been allocated for use by

PCS. In accordance with procedures

specified in §§ 101.69 through 101.81 of

this chapter, PCS entities (both licensed

and unlicensed) are required to relocate

the existing Fixed Microwave Services

(FMS) licensees in these bands if

interference to the existing FMS

operations would occur. All PCS

entities who benefit from spectrum

clearance by other PCS entities or a

voluntarily relocating microwave

incumbent, must contribute to such

relocation costs. PCS entities may

satisfy this requirement by entering into

private cost-sharing agreements or

agreeing to terms other than those

specified in § 24.243. However, PCS

entities are required to reimburse other

PCS entities or voluntarily relocating

microwave incumbents that incur

relocation costs and are not parties to

the alternative agreement. In addition,

parties to a private cost-sharing

agreement may seek reimbursement

through the clearinghouse (as discussed

in § 24.241) from PCS entities that are

not parties to the agreement. The costsharing plan is in effect during all

phases of microwave relocation

specified in § 101.69 of this chapter.

4. Section 24.243 is revised to read as

follows:

§ 24.243 The cost-sharing formula.

A PCS relocator who relocates an

interfering microwave link, i.e. one that

is in all or part of its market area and

in all or part of its frequency band or a

voluntarily relocating microwave

incumbent, is entitled to pro rata

reimbursement based on the following

formula:

RN = ×

C [ ] − ( )

N

120 Tm

120

(a) RN equals the amount of

reimbursement.

(b) C equals the actual cost of

relocating the link. Actual relocation

costs include, but are not limited to,

such items as: Radio terminal

equipment (TX and/or RX—antenna,

necessary feed lines, MUX/Modems);

towers and/or modifications; back-up

power equipment; monitoring or control

equipment; engineering costs (design/

path survey); installation; systems

testing; FCC filing costs; site acquisition

and civil works; zoning costs; training;

disposal of old equipment; test

equipment (vendor required); spare

equipment; project management; prior

coordination notification under

§ 101.103(d) of this chapter; site lease

renegotiation; required antenna

upgrades for interference control; power

plant upgrade (if required); electrical

grounding systems; Heating Ventilation

and Air Conditioning (HVAC) (if

required); alternate transport

equipment; and leased facilities. C also

includes voluntarily relocating

microwave incumbent’s independent

third party appraisal of its compensable

relocation costs and incumbent

transaction expenses that are directly

attributable to the relocation, subject to

a cap of two percent of the ‘‘hard’’ costs

involved. C may not exceed $250,000

per link, with an additional $150,000

permitted if a new or modified tower is

required.

(c) N equals the number of PCS

entities that would have interfered with

the link. For the PCS relocator, N = 1.

For the next PCS entity that would have

interfered with the link, N=2, and so on.

(d) Tm equals the number of months

that have elapsed between the month

the PCS relocator obtains

reimbursement rights and the month

that the clearinghouse notifies a laterentrant of its reimbursement obligation.

A PCS relocator obtains reimbursement

rights on the date that it signs a

relocation agreement with a microwave

incumbent.

5. Section 24.245 is amended by

revising paragraphs (a) and (b) to read

as follows:

§ 24.245 Reimbursement under the costsharing plan.

(a) Registration of reimbursement

rights. (1) To obtain reimbursement, a

PCS relocator must submit

documentation of the relocation

agreement to the clearinghouse within

ten business days of the date a

relocation agreement is signed with an

incumbent.

(2) To obtain reimbursement, a

voluntarily relocating microwave

incumbent must submit documentation

of the relocation to the clearinghouse

within ten business days of the date that

relocation occurs.

(b) Documentation of expenses. Once

relocation occurs, the PCS relocator or

the voluntarily relocating microwave

incumbent, must submit documentation

itemizing the amount spent for items

listed in § 24.243(b). The voluntarily

relocating microwave incumbent, must

also submit an independent third party

appraisal of its compensable relocation

costs. The appraisal should be based on

the actual cost of replacing the

incumbent’s system with comparable

facilities and should exclude the cost of

any equipment upgrades or items

outside the scope of § 24.243(b). The

PCS relocator or the voluntarily

relocating microwave incumbent, must

identify the particular link associated

with appropriate expenses (i.e., costs

may not be averaged over numerous

links). If a PCS relocator pays a

microwave incumbent a monetary sum

to relocate its own facilities, the PCS

relocator must estimate the costs

associated with relocating the

incumbent by itemizing the anticipated

cost for items listed in § 24.243(b). If the

sum paid to the incumbent cannot be

accounted for, the remaining amount is

not eligible for reimbursement. A PCS

relocator may submit receipts or other

documentation to the clearinghouse for

all relocation expenses incurred since

April 5, 1995.

* * * * *

6. Section 24.247 is amended by

revising the introductory text of

paragraph (a) to read as follow:

§ 24.247 Triggering a reimbursement

obligation.

(a) Licensed PCS. The clearinghouse

will apply the following test to

determine if a PCS entity preparing to

initiate operations must pay a PCS

relocator or a voluntarily relocating

microwave incumbent in accordance

with the formula detailed in § 24.243:

* * * * *

7. Section 24.249 is amended by

revising paragraph (a) to read as follows:

§ 24.249 Payment issues.

(a) Timing. On the day that a PCS

entity files its prior coordination notice

(PCN) in accordance with § 101.103(d)

of this chapter, it must file a copy of the

PCN with the clearinghouse. The

clearinghouse will determine if any

reimbursement obligation exists and

notify the PCS entity in writing of its

repayment obligation, if any. When the

PCS entity receives a written copy of

such obligation, it must pay directly to

the PCS relocator or the voluntarily

relocating microwave incumbent the
12758 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Rules and Regulations

amount owed within thirty days, with

the exception of those businesses that

qualify for installment payments. A

business that qualifies for an installment

payment plan must make its first

installment payment within thirty days

of notice from the clearinghouse.

UTAM’s first payment will be due thirty

days after its reimbursement obligation

is triggered as described in § 24.247(b).

* * * * *

PART 101—FIXED MICROWAVE

SERVICES

8. The authority citation for Part 101

continues to read as follows:

Authority: 47 U.S.C. §§ 154, 303, unless

otherwise noted.

9. Section 101.69 is revised to read as

follows:

§ 101.69 Transition of the 1850–1990 MHz,

2110–2150 MHz, and 2160–2200 MHz bands

from the fixed microwave services to

personal communications services and

emerging technologies.

Fixed Microwave Services (FMS)

frequencies in the 1850–1990 MHz,

2110–2150 MHz, and 2160–2200 MHz

bands listed in §§ 101.147(c), (d) and (e)

have been allocated for use by emerging

technology (ET) services, including

Personal Communications Services

(PCS). The rules in this section provide

for a transition period during which ET

licensees may relocate existing FMS

licensees using these frequencies to

other media or other fixed channels,

including those in other microwave

bands.

(a) ET licensees may negotiate with

FMS licensees authorized to use

frequencies in the 1850–1990 MHz,

2110–2150 MHz, and 2160–2200 MHz

bands, for the purpose of agreeing to

terms under which the FMS licensees

would:

(1) Relocate their operations to other

fixed microwave bands or other media;

or alternatively

(2) Accept a sharing arrangement with

the ET licensee that may result in an

otherwise impermissible level of

interference to the FMS operations.

(b) Except as provided in paragraph

(c) of this section, FMS operations in the

1850–1990 MHz, 2110–2150 MHz, and

2160–2200 MHz bands, with the

exception of public safety facilities

defined in § 101.77, will continue to be

co-primary with other users of this

spectrum until two years after the FCC

commences acceptance of applications

for ET services (voluntary negotiation

period), and until one year after an ET

licensee initiates negotiations for

relocation of the fixed microwave

licensee’s operations (mandatory

negotiation period). In the 1910–1930

MHz band allocated for unlicensed PCS,

FMS operations will continue to be coprimary until one year after UTAM, Inc.

initiates negotiations for relocation of

the fixed microwave licensee’s

operations. Except as provided in

paragraph (c) of this section, public

safety facilities defined in § 101.77 will

continue to be co-primary in these

bands until three years after the

Commission commences acceptance of

applications for an emerging technology

service (voluntary negotiation period),

and until two years after an emerging

technology service licensee or an

emerging technology unlicensed

equipment supplier or representative

initiates negotiations for relocation of

the fixed microwave licensee’s

operations (mandatory negotiation

period). If no agreement is reached

during either the voluntary or

mandatory negotiation periods, an ET

licensee may initiate involuntary

relocation procedures. Under

involuntary relocation, the incumbent is

required to relocate, provided that the

ET licensee meets the conditions of

§ 101.75.

(c) Voluntary and mandatory

negotiation periods for PCS C, D, E, and

F blocks are defined as follows:

(1) Non-public safety incumbents will

have a one-year voluntary negotiation

period and a one-year mandatory

negotiation period; and

(2) Public safety incumbents will have

a three-year voluntary negotiation

period and a two-year mandatory

negotiation period.

10. Section 101.71 is revised to read

as follows:

§ 101.71 Voluntary negotiations.

During the voluntary negotiation

period, negotiations are strictly

voluntary and are not defined by any

parameters. However, if the parties have

not reached an agreement within one

year after the commencement of the

voluntary period for non-public safety

entities, or within three years after the

commencement of the voluntary period

for public safety entities, the FMS

licensee must allow the ET licensee if it

so chooses to gain access to the existing

facilities to be relocated so that an

independent third party can examine

the FMS licensee’s 2 GHz system and

prepare an estimate of the cost and the

time needed to relocate the FMS

licensee to comparable facilities. The ET

licensee must pay for any such estimate.

11. Section 101.73 is amended by

revising paragraph (a) to read as follows:

§ 101.73 Mandatory negotiations.

(a) If a relocation agreement is not

reached during the voluntary period, the

ET licensee may initiate a mandatory

negotiation period. This mandatory

period is triggered at the option of the

ET licensee, but ET licensees may not

invoke their right to mandatory

negotiation until the voluntary

negotiation period has expired.

* * * * *

12. Section 101.77 is amended by

revising the section heading and

paragraph (a) to read as follows:

§ 101.77 Public safety licensees in the

1850–1990 MHz, 2110–2150 MHz, and 2160–

2200 MHz bands.

(a) Public safety facilities are subject

to the three-year voluntary and two-year

mandatory negotiation period, except as

otherwise defined in paragraph

101.69(c). In order for public safety

licensees to qualify for extended

negotiation periods, the department

head responsible for system oversight

must certify to the ET licensee

requesting relocation that:

(1) The agency is a licensee in the

Police Radio, Fire Radio, Emergency

Medical, Special Emergency Radio

Services, or that it is a licensee of other

part 101 facilities licensed on a primary

basis under the eligibility requirements

of part 90, subparts B and C; and

(2) The majority of communications

carried on the facilities at issue involve

safety of life and property.

* * * * *

13. Section 101.79 is amended by

revising the section heading and

paragraph (a) to read as follows:

§ 101.79 Sunset provisions for licensees in

the 1850–1990 MHz, 2110–2150 MHz, and

2150–2160 MHz bands.

(a) FMS licensees will maintain

primary status in the 1850–1990 MHz,

2110–2150 MHz, and 2160–2200 MHz

bands unless and until an ET licensee

requires use of the spectrum. ET

licensees are not required to pay

relocation costs after the relocation rules

sunset (i.e. ten years after the voluntary

period begins for the first ET licensees

in the service). Once the relocation rules

sunset, an ET licensee may require the

incumbent to cease operations, provided

that the ET licensee intends to turn on

a system within interference range of

the incumbent, as determined by TIA

Bulletin 10-F of any standard successor.

ET licensee notification to the affected

FMS licensee must be in writing and

must provide the incumbent with no

less than six months to vacate the

spectrum. After the six-month notice

period has expired, the FMS licensee

must turn its license back into the
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Rules and Regulations 12759

Commission, unless the parties have

entered into an agreement which allows

the FMS licensee to continue to operate

on a mutually agreed upon basis.

* * * * *

14. Section 101.81 is amended by

revising the section heading and the

introductory paragraph to read as

follows:

§ 101.81 Future licensing in the 1850–1990

MHz, 2110–2150 MHz, and 2160–2200 MHz

bands.

After April 25, 1996, all major

modifications and extensions to existing

FMS systems in the 1850–1990 MHz,

2110–2150 MHz, and 2160–2200 MHz

bands will be authorized on a secondary

basis to ET systems. All other

modifications will render the modified

FMS license secondary to ET

operations, unless the incumbent

affirmatively justifies primary status and

the incumbent FMS licensee establishes

that the modification would add to the

relocation costs of ET licensees.

Incumbent FMS licensees will maintain

primary status for the following

technical changes:

* * * * *

[FR Doc. 97–6751 Filed 3–17–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 300

[Docket No. 961217359–7050–02; I.D.

121196B]

RIN 0648–AJ11

Pacific Halibut Fisheries; Catch

Sharing Plans

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Annual management measures

and approval of catch sharing plans.

SUMMARY: The Assistant Administrator

for Fisheries, NOAA (AA), on behalf of

the International Pacific Halibut

Commission (IPHC), publishes annual

management measures promulgated as

regulations by the IPHC and approved

by the Secretary of State governing the

Pacific halibut fishery. The AA also

announces the approval of

modifications to the Catch Sharing Plan

for Area 2A, and implementing

regulations for 1997. These actions are

intended to enhance the conservation of

Pacific halibut stocks in order to help

rebuild and sustain them at an adequate

level in the northern Pacific Ocean and

Bering Sea.

EFFECTIVE DATE: March 15, 1997.

ADDRESSES: NMFS Alaska Region, 709

W. 9th St., P.O. Box 21668, Juneau, AK

99802–1668; or NMFS Northwest

Region, 7600 Sand Point Way NE,

Seattle, WA 98115–0070.

FOR FURTHER INFORMATION CONTACT: Joe

Scordino, 206–526–6143 or Jay Ginter,

907–586–7228.

SUPPLEMENTARY INFORMATION: The IPHC

has promulgated regulations governing

the Pacific halibut fishery in 1997,

under the Convention between the

United States and Canada for the

Preservation of the Halibut Fishery of

the North Pacific Ocean and Bering Sea

(Convention), signed at Ottawa, Ontario,

on March 2, 1953, as amended by a

Protocol Amending the Convention

(signed at Washington, D.C., on March

29, 1979). The IPHC regulations have

been approved by the Secretary of State

of the United States under section 4 of

the Northern Pacific Halibut Act

(Halibut Act, 16 U.S.C. 773–773k).

Pursuant to regulations at 50 CFR

section 300.62, the approved IPHC

regulations setting forth the 1997 IPHC

annual management measures are

published in the Federal Register to

provide notice of their effectiveness,

and to inform persons subject to the

regulations of the restrictions and

requirements.

The IPHC held its annual meeting on

January 27–30, 1997, in Victoria, British

Columbia, and adopted regulations for

1997. The substantive changes to the

previous IPHC regulations (61 FR 11337,

March 20, 1996) include: (1) New catch

limits for all areas; (2) elimination of the

commercial IPHC license requirement

for U.S. vessels fishing in Alaska; (3)

allowance for possessing halibut from

multiple fishing areas onboard the

vessel under specified conditions; (4)

elimination of the requirement to

maintain halibut log information

separate from other records onboard the

vessel; and (5) opening dates for the

Area 2A commercial directed fishery.

In addition, this action implements

Catch Sharing Plans (Plans) for

regulatory Areas 2A and 4. These Plans

were developed respectively by the

Pacific Fishery Management Council

(PFMC) and the North Pacific Fishery

Management Council (NPFMC) under

authority of the Halibut Act. Section 5

of the Halibut Act (16 U.S.C. 773c)

provides that the Secretary of Commerce

(Secretary) shall have general

responsibility to carry out the Halibut

Convention (Convention) between the

United States and Canada, and that the

Secretary shall adopt such regulations

as may be necessary to carry out the

purposes and objectives of the

Convention and the Halibut Act. The

Secretary’s authority has been delegated

to the AA. Section 5 of the Halibut Act

(16 U.S.C. 773c(c)) also authorizes the

Regional Fishery Management Council

having authority for the geographic area

concerned to develop regulations

governing the Pacific halibut catch in

U.S. Convention waters that are in

addition to, but not in conflict with,

regulations of the IPHC. Pursuant to this

authority, NMFS requested the PFMC

and NPFMC to allocate halibut catches

should such allocation be necessary.

Catch Sharing Plan for Area 2A

The PFMC has prepared annual Plans

since 1988 to allocate the halibut catch

limit for Area 2A among treaty Indian,

non-Indian commercial, and non-Indian

sport fisheries in and off Washington,

Oregon, and California. In 1995, NMFS

implemented a Council-recommended

long-term Plan (60 FR 14651, March 20,

1995), which was revised in 1996 (61 FR

11337, March 20, 1996). The Plan

allocates 35 percent of the Area 2A total

allowable catch (TAC) to Washington

treaty Indian tribes in Subarea 2A–1,

and 65 percent to non-Indian fisheries

in Area 2A. The allocation to nonIndian fisheries is divided into 3 shares,

with the Washington sport fishery

(north of the Columbia River) receiving

36.6 percent, the Oregon/California

sport fishery receiving 31.7 percent, and

the commercial fishery receiving 31.7

percent. The commercial fishery is

further divided into 2 sectors; a directed

(traditional longline) commercial fishery

that is allocated 85 percent of the nonIndian commercial harvest, and 15

percent for harvests of halibut caught

incidental to the salmon troll fishery.

The directed commercial fishery in Area

2A is confined to southern Washington

(south of 46°5′18′′ N. lat.), Oregon and

California. The Plan also divides the

sport fisheries into seven geographic

areas each with separate allocations,

seasons, and bag limits.

For 1997, PFMC recommended

changes to the Plan to restructure the

May and August seasons in the Oregon

Central Coast subarea sport fishery

(Cape Falcon to Florence north jetty)

from a quota managed to a fixed-length

season fishery. A complete description

of the PFMC recommended changes to

the Plan and implementing regulations

was published in the Federal Register

on January 3, 1997 (62 FR 382) with a

request for public comments. No

comments were received on the

proposed changes to the Plan, and