16004 Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Proposed Rules

1The Commission refers to such licenses as

‘‘Covered Phase II licenses.’’

2Report and Order and Further Notice of

Proposed Rule Making in GN Docket No. 96–113,

62 FR 653 (January 6, 1997).

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 2 and 90

[PR Docket No. 89–552, GN Docket No. 93–

252, PP Docket No. 93–253; FCC 97–57]

Provision for the Use of the 220–222

MHz Band by the Private Land Mobile

Radio Service; Implementation of

Sections 3(n) and 332 of the

Communications Act Regulatory

Treatment of Mobile Services; and

Implementation of Section 309(j) of the

Communications Act—Competitive

Bidding

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Commission adopts a

Third Report and Order and Fifth

Notice of Proposed Rulemaking

regarding the use of the 220–222 MHz

Band (220 MHz service) by the Private

Land Mobile Radio Service. The Third

Report and Order portion of this

decision is summarized elsewhere in

this edition of the Federal Register. The

Fifth Notice of Proposed Rulemaking

(Fifth NPRM) seeks comment on various

issues related to the partitioning of 220

MHz licenses and whether to permit full

partitioning and disaggregation in the

220 MHz service. This action is taken to

establish a record from which to

consider the specific rules that should

govern partitioning and the benefits and

drawbacks of full partitioning and

disaggregation, and to reach an ultimate

decision.

DATES: Comments are due on or before

April 15, 1997, and reply comments are

due on or before April 30, 1997. Written

comments by the public on the

proposed and/or modified information

collections are due June 2, 1997.

ADDRESSES: Federal Communications

Commission, Washington, DC 20554. In

addition to filing comments with the

Secretary, a copy of any comments on

the information collections contained

herein should be submitted to Dorothy

Conway, Federal Communications

Commission, Room 234, 1919 M Street,

NW, Washington, DC 20554, or via the

Internet to dconway@fcc.gov.

FOR FURTHER INFORMATION CONTACT:

Mary Woytek, (202) 418–1310, or Frank

Stilwell, (202) 418–0660, Wireless

Telecommunications Bureau. For

additional information concerning the

information collections contained in

this Fifth NPRM, contact Dorothy

Conway at (202) 418–0217, or via the

Internet at dconway@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Fifth Notice of Proposed

Rulemaking segment of the Third Report

and Order and Fifth Notice of Proposed

Rulemaking in PR Docket No. 89–552,

FCC 97–57, adopted February 19, 1997,

and released March 12, 1997. The Third

Report and Order portion of this

decision is summarized elsewhere in

this edition of the Federal Register. The

complete text of this decision is

available for inspection and copying

during normal business hours in the

FCC Reference Center (Room 239), 1919

M Street, NW, Washington, DC 20554

and also may be purchased from the

Commission’s copy contractor,

International Transcription Service,

(202) 857–3800, 2100 M Street, NW,

Suite 140, Washington, DC 20037.

Paperwork Reduction Act

This Fifth NPRM contains either a

proposed or modified information

collection. The Commission, as part of

its continuing effort to reduce

paperwork burdens, invites the general

public to comment on the information

collections contained in this Fifth

NPRM, as required by the Paperwork

Reduction Act of 1995, Public Law 104–

13. Public comments are due June 2,

1997. Comments should address: (a)

Whether the proposed collection of

information is necessary for the proper

performance of the functions of the

Commission, including whether the

information shall have practical utility;

(b) the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility, and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

OMB Approval Number: New

Collection (which adds respondents to

three existing collections 3060–0105,

FCC 430; 3060–0319, FCC 490; 3060–

0623, FCC 600).

Title: Amendment of Part 90 of the

Commission’s Rules to Provide for the

Use of the 220–222 MHz Band by the

Private Land Mobile Radio Service.

Form No.: FCC Forms 430, 490, and

600.

Type of Review: New collection.

Respondents: 220 MHz applicants and

potential applicants and licensees.

Number of Respondents; Estimated

Time Per Response and Total Annual

Burden: If the proposed changes in the

Fifth NPRM are adopted the

respondents and burden for the FCC

Form’s 430, 490 and 600 as follows:

The FCC 430 has 1,900 respondents,

to be increased to 23,050; the estimated

time for completion is 2 hours per

respondent. The total annual burden for

the FCC 430 would increase to 46,100

hours. The Form 490 has 5,000

respondents, to be increased to 28,500;

the estimated time for completion is 3

hours per respondent. The total annual

burden for the FCC 490 would increase

to 85,500. The FCC 600 has 194,769

respondents, which may be increased by

the Third Report and Order to 197,777,

and further increased to 244,777 by the

Fifth NPRM. The estimated time for

completion is 4 hours per respondent.

The total annual burden is 779,076. This

figure will be increased to 791,108 by an

information collection adopted in the

Third Report and Order portion of this

decision and to 979,108 hours if the

changes proposed in the Fifth NPRM are

adopted.

Needs and Uses: The information will

be used by Commission personnel to

determine if the licensee is a qualifying

entity to obtain a partitioned license or

disaggregated spectrum. Additionally,

the information will be used by

Commission personnel to determine

who is using spectrum and thus

maintain the integrity of the spectrum.

Synopsis of the Fifth Notice of

Proposed Rulemaking

1. The Commission has concluded in

the Third Report and Order that it will

permit any holder of a Phase II

Economic Area (EA), nationwide, or

Regional 220 MHz license to partition

portions of its authorization.1 In this

Fifth NPRM, the Commission considers

the issue of full partitioning for Phase I

nationwide 220 MHz licensees and the

establishment of disaggregation rules for

the 220 MHz service. As we indicated

in the recent Partitioning Report and

Order (which expanded the

Commission’s rules to permit

geographic partitioning and

disaggregation for all broadband PCS

licensees), the Commission believes that

partitioning and disaggregation are an

effective means of providing broadband

PCS licensees with the flexibility they

need to tailor their service offerings to

meet market demands.2 The Partitioning

Report and Order further concluded that

partitioning and disaggregation may be

used to overcome entry barriers through

the creation of smaller licenses that

require less capital, thereby facilitating

greater participation by small

businesses, rural telephone companies,

and minority- and female-owned
Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Proposed Rules 16005

3 Id.

businesses.3 The Commission seeks

comment on whether these benefits

similarly justify the extension of

partitioning rules to Phase I nationwide

licensees and the establishment of

disaggregation rules for the 220 MHz

service.

2. The Commission seeks comment as

to how various requirements imposed

on covered Phase II licensees may be

modified if such licensees partition

their authorization. The Commission

also invites comment as to whether

partitioning of 220 MHz Phase I

nationwide licenses should be

permitted in a manner similar to the

rules for partitioning that have been

adopted for broadband PCS licensees.

The Commission tentatively concludes

that it should not adopt partitioning for

those Phase II licensees that are not

covered Phase II licensees and nonnationwide Phase I licensees because

such licenses are awarded on a sitespecific rather than for a geographic area

basis. In addition, the Commission seeks

comment as to whether all Phase I and

Phase II 220 MHz licensees should be

permitted to disaggregate their licensed

spectrum. Since the 220 MHz service

includes non-commercial uses by Public

Safety and EMRS entities, the

Commission seeks comment as to

whether additional rules for partitioning

and disaggregation should be adopted to

address the use of the 220 MHz service

for possible commercial and noncommercial services.

3. The full text of this Fifth NPRM

solicits comment on specific aspects of

partitioning and disaggregation, which

will need to be addressed if the

Commission decides to adopt

partitioning for Phase I nationwide

licensees and disaggregation for all 220

MHz licensees. For example, Phase I

nationwide licensees are not currently

permitted to assign or transfer a license

before the licensee has constructed at

least 40 percent of the proposed system.

The Commission therefore seeks

comment as to whether a Phase I

nationwide licensee should be

permitted to partition or disaggregate

prior to constructing at least 40 percent

of its proposed system. The Commission

also seeks comment as to whether there

are technical or regulatory constraints

unique to the 220 MHz service that

would render partitioning or

disaggregation impractical or

administratively burdensome.

4. Covered Phase II 220 MHz service

areas are based on nationwide,

Economic Areas or Regional Areas. In

addition, there are Phase I nationwide

licenses in the 220 MHz service. The

Commission tentatively concludes that a

flexible approach to partitioned areas,

similar to the one adopted for

broadband PCS, is appropriate for the

220 MHz service. The Commission

therefore proposes to permit

partitioning of Phase I nationwide and

covered Phase II 220 MHz licenses

based on any license area defined by the

parties. Comment is invited on this

proposal, and in particular on whether

this proposal is consistent with the

Commission’s licensing of the 220 MHz

service, and whether there are any

technical or other issues unique to the

220 MHz service that might impede the

adoption of a flexible approach to

defining the partitioned license area.

5. The Commission next seeks

comment as to whether, if

disaggregation in the 220 MHz service is

permitted, minimum disaggregation

standards are necessary. The

Commission seeks to determine

whether, given the unique

characteristics of the 220 MHz service,

technological and administrative

considerations warrant the adoption of

such standards. The Commission seeks

comment as to whether to adopt

standards which would be flexible

enough to encourage disaggregation

while providing a standard which is

consistent with its technical rules and

by which it would be able to track

disaggregated spectrum and review

disaggregation proposals in an

expeditious fashion.

6. The Commission further seeks

comment regarding whether combined

partitioning and disaggregation should

be permitted for the 220 MHz service.

The Commission tentatively concludes

that it should permit such combinations

in order to provide parties the flexibility

they need to respond to market forces

and demands for service relevant to

their particular locations and service

offerings.

7. The Commission seeks comment as

to whether it should adopt rules for

covered Phase II licensees to establish

dual construction options and attendant

requirements for 220 MHz service

partitioners and partitionees, similar to

those adopted for broadband PCS.

Under the first option, the partitionee

certifies that it will satisfy the same

construction requirements as the

original licensee. The partitionee then

must meet the prescribed service

requirements in its partitioned area

while the partitioner is responsible for

meeting those requirements in the area

it has retained. Under the second

option, the original licensee certifies

that it has already met or will meet its

5-year construction requirement and

that it will meet the 10-year requirement

for the entire market involved. Because

the original licensee retains the

responsibility for meeting the

construction requirements for the entire

market, the partitionee is permitted to

comply with a less rigorous

construction requirement—the

partitionee must only meet a substantial

service requirement for its partitioned

license area at the end of the 10-year

license term. The Commission

particularly seeks comment as to the

appropriateness of the lesser

construction requirement for the second

option.

8. The Commission invites comment

as to whether to adopt rules for covered

Phase II licensees similar to the

disaggregation rules adopted for

broadband PCS. Under this certification

approach, the disaggregating parties

would be required to submit a

certification, signed by both the

disaggregator and disaggregatee, stating

whether one or both of the parties will

retain responsibility for meeting the 5-

and 10-year construction requirements

for the 220 MHz market involved. If one

party takes responsibility for meeting

the construction requirements, then that

party would be subject to license

forfeiture for failing to meet the

construction requirements, but such a

failure would not affect the status of the

other party’s license. If both parties

agree to share the responsibility for

meeting the construction requirements,

then both parties’ licenses would be

subject to forfeiture if either party fails

to meet the construction requirements.

9. The Commission proposes rules for

licensees other than covered Phase II

licensees that differ from the approach

taken in the Partitioning Report and

Order. Phase I non-nationwide licensees

and Phase II licensees authorized on

Public Safety or EMRS channels are not

authorized to operate within a particular

geographic area, but instead are

authorized to construct a single land

mobile base station for base and mobile

operations. Phase I non-nationwide

licensees must construct their systems,

having all specified base stations

constructed with all channels, and place

their systems in operation within eight

months of the initial license grant.

10. The Commission proposes that

Phase I non-nationwide licensees be

permitted to disaggregate their licensed

spectrum only after they have met the

applicable construction deadline. The

Commission also proposes that Phase II

licensees operating on Public Safety or

EMRS channels should be permitted to

disaggregate their licensed spectrum

only after they have met the applicable

construction deadline. Since the

construction deadline would therefore
16006 Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Proposed Rules

be met before any disaggregation is

allowed, no construction requirement

would be imposed on a disaggregatee.

Comment is solicited on these

proposals.

11. The Commission next tentatively

concludes that a disaggregatee obtaining

spectrum from a Phase I nationwide

licensee should be required to meet the

same two-, four-, six-, and 10-year

construction requirements as the

original licensee. The disaggregatee

would be required to meet the same

two-, four-, six-, and 10-year

requirements as the original licensee for

the spectrum it obtains. The

Commission seeks comment on this

tentative conclusion.

12. Because the construction

requirements for Phase I nationwide

licensees differ so markedly from those

pertaining to Phase II nationwide

licensees or licensees in other services

such as broadband PCS or GWCS, it

does not appear, as a practical matter, to

be possible to have similar construction

options for Phase I nationwide

partitionees. Given the difficulties

created by these construction

requirements, the Commission seeks

comment on whether partitioning of

Phase I nationwide licenses should be

permitted. If such partitioning is

allowed, the Commission seeks

comment on what construction

requirements could be imposed on the

original licensee and any partitionees.

In light of the unique construction

requirements imposed on Phase I

nationwide licensees, the Commission

also seeks comment on what type of

construction requirements should be

imposed on Phase I licensees and their

partitionees and disaggregatees if a

Phase I nationwide license is both

partitioned and disaggregated.

13. Regarding the license term, the

Commission seeks comment as to

whether its 220 MHz rules should

provide that parties obtaining

partitioned 220 MHz licenses or

disaggregated spectrum hold their

license for the remainder of the original

licensee’s five- or 10-year license term.

In addition, the Commission seeks

comment as to whether 220 MHz

partitionees and disaggregatees should

be afforded the same renewal

expectancy as other 220 MHz licensees.

The Commission tentatively concludes

that limiting the license term of the

partitionee or disaggregatee is necessary

to ensure that there is maximum

incentive for parties to pursue available

spectrum as quickly as practicable.

14. The Commission’s competitive

bidding rules for the covered Phase II

220 MHz service include provisions for

installment payments and bidding

credits for small businesses and very

small businesses. The Commission has

also adopted rules to prevent unjust

enrichment by such entities that seek to

transfer licenses obtained through use of

one of these special benefits. The

Commission tentatively concludes that

the Phase II 220 MHz service

partitionees and disaggregatees that

would qualify as small businesses or

very small businesses should be

permitted to pay their pro rata share of

the remaining government obligation

through installment payments. The

Commission seeks comment on this

tentative conclusion. The Commission

also invites comment as to the exact

mechanisms for apportioning the

remaining government obligation

between the parties and whether there

are any unique circumstances that

would make devising such a scheme for

the Phase II 220 MHz service more

difficult than for broadband PCS. Since

Phase II 220 MHz service areas are

allotted on a geographic basis, in a

manner similar to broadband PCS, the

Commission proposes using population

as the objective measure to calculate the

relative value of the partitioned area and

amount of spectrum disaggregated as the

objective measure for disaggregation,

and seeks comment on this proposal.

15. The Commission invites comment

on whether to apply unjust enrichment

rules to small or very small business

Phase II 220 MHz licensees that

partition or disaggregate to non-small

businesses. Commenters should address

how to calculate unjust enrichment

payments for designated entity Phase II

220 MHz service licensees paying

through installment payments and those

that were awarded bidding credits that

partition or disaggregate to non-small

businesses. The Commission asks that

commenters also address how it should

calculate unjust enrichment payments

in situations where a very small

business partitions or disaggregates to a

small business that qualifies for a lower

bidding credit. Commenters should also

address whether the unjust enrichment

payments should be calculated on a

proportional basis, using population of

the partitioned area and amount of

spectrum disaggregated as the objective

measures. The Commission proposes

using methods similar to those adopted

for broadband PCS for calculating the

amount of the unjust enrichment

payments that must be paid in such

circumstances, and seeks comment on

this proposal.

16. Section 90.709(d) of the

Commission’s rules currently forbids

partial assignment of Phase I 220 MHz

licenses. However, since there are

existing partial assignment rules for

commercial mobile radio stations in part

90, the Commission proposes utilizing

partial assignment procedures, similar

to those adopted for broadband PCS, to

review 220 MHz partitioning and

disaggregation transactions. Partial

assignment applications would be

placed on public notice and subject to

petitions to deny. The parties would be

required to submit an FCC Form 490, an

FCC Form 600 and, if necessary, an FCC

Form 430, together as one package

under cover of the FCC Form 490. The

Commission invites comment on

whether any additional procedures are

necessary for reviewing these

applications. We also seek comment on

how licensing issues should be

addressed for non-commercial mobile

radio stations in the 220 MHz service

with respect to partial assignments.

Administrative Matters

17. Pursuant to applicable procedures

set forth in §§ 1.415 and 1.419 of the

Commission’s rules, 47 CFR 1.415 and

1.419, interested parties may file

comments on or before April 15, 1997,

and reply comments on or before April

30, 1997. To file formally in this

proceeding, you must file an original

plus four copies of all comments, reply

comments, and supporting comments. If

you want each Commissioner to receive

a personal copy of your comments, you

must file an original plus nine copies.

You should send comments and reply

comments to Office of the Secretary,

Federal Communications Commission,

Washington, DC 20554. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

Center (Room 239), 1919 M Street, NW.,

Washington, DC 20554.

18. This is a non-restricted notice and

comment rulemaking proceeding. Ex

parte presentations are permitted,

except during the Sunshine Agenda

period, provided they are disclosed as

provided in the Commission rules. See

generally 47 CFR 1.1202, 1.1203, and

1.1206(a).

Initial Regulatory Flexibility Act

Statement

19. As required by section 603 of the

Regulatory Flexibility Act, the

Commission has prepared an Initial

Regulatory Flexibility Analysis (IRFA)

of the expected impact on small entities

of the proposals suggested in this

document. Written public comments are

requested on the IRFA. These comments

must be filed in accordance with the

same filing deadlines as comments on

the rest of this Fifth Notice of Proposed

Rulemaking, but they must have a

separate and distinct heading
Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Proposed Rules 16007

designating them as responses to the

Initial Regulatory Flexibility Analysis.

The Secretary shall send a copy of this

Fifth Notice of Proposed Rulemaking,

including the Initial Regulatory

Flexibility Analysis, to the Chief

Counsel for Advocacy of the Small

Business Administration in accordance

with paragraph 603(a) of the Regulatory

Flexibility Act. Public Law 96–354, 94

Stat. 1164, 5 U.S.C. 601 et seq. (1981).

List of Subjects in 47 CFR Part 90

Business and industry, Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–8013 Filed 4–2–97; 8:45 am]

BILLING CODE 6712–01–P