19538 Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Proposed Rules

From a timing standpoint, the prices are

set quarterly and on a retroactive basis.

After the end of each quarter, companies

are given 4 weeks to send information

about the previous quarter. Within 2

weeks the Board gives its preliminary

evaluation in the form of a price band.

After the band is issued, companies

have 3 weeks to meet with the Board to

give their views, and the Board issues

its final norm price within 2 weeks

thereafter.

For Federal gas (and if appropriate for

other commodities), the Department of

the Interior would establish a Pricing

Board to determine prices similar to the

process used by Norway. However, we

would simplify the process wherever

possible, such as eliminating the aspect

of retroactive price adjustments.

Send comments on these two

alternative methods to the address

contained in the ADDRESSES section.

Dated: April 17, 1997.

Cynthia L. Quarterman,

Director, Minerals Management Service.

[FR Doc. 97–10386 Filed 4–21–97; 8:45 am]

BILLING CODE 4310–MR–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 2, 74, and 78

[ET Docket No. 95–18; FCC 97–93]

2 GHz for Use by the Mobile Satellite

Service

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: In the Further Notice of

Proposed Rule Making (Further NPRM),

we propose specific details of relocation

of affected Broadcast Auxiliary Service

(BAS), Cable Television Relay Service

(CARS), Local Television Transmission

Service (LTTS), and Fixed Satellite (FS)

licensees, and request comment on our

proposals. We propose to channelize the

new BAS band into seven channels of

15 megahertz bandwidth, with the new

channelization plan to become primary

on January 1, 2000, or the day after the

last Fixed Service (FS) licensee in the

2110–2130 MHz band has been

relocated in accordance with Sections

101.69–101.81 of the Commission’s

rules, whichever date is later. We

further propose to allow MSS operators

to negotiate with BAS licensees for

relocation. The new and enhanced

services and uses permitted by this

action will create new jobs, foster

economic growth, and improve access to

communications by industry and the

American public.

DATES: Comments must be submitted on

or before June 23, 1997 and reply

comments must be submitted on or

before July 21, 1997.

ADDRESSES: Office of the Secretary,

Federal Communications Commission,

Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Sean White, Office of Engineering and

Technology, 202–418–2453.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Further

Notice of Proposed Rule Making,

(Further NPRM), ET Docket 95–18, FCC

97–93, adopted March 13, 1997, and

released March 14, 1997. The full text

of this Commission decision 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 duplication contractor,

International Transcription Service,

(202) 857–3800, 2100 M Street, N.W.,

Suite 140, Washington, D.C. 20037.

Summary of the Further NPRM of

Proposed Rule Making

1. In the Further NPRM of Proposed

Rule Making (‘‘Further NPRM’’), the

Commission proposes to rechannelize

the new Broadcast Auxiliary Service

(BAS) spectrum from the current seven

channels (within the 1990–2110 MHz

band), each of 17 or 18 megahertz

bandwidth, to seven channels (at 2025–

2130 MHz band), each of 15 megahertz

bandwidth. The Further NPRM also

proposes to provide for the relocation

and rechannelization of incumbent

BAS, Cable Television Relay Service

(CARS), and Local Television

Transmission Service (LTTS) licensees

in accordance with the Commission’s

Emerging Technologies policies,

providing for voluntary and mandatory

negotiations between incumbent

licensees and new MSS operators, and

involuntary relocation of incumbents if

agreements cannot be reached. The

Further NPRM proposes that, in the case

of involuntary relocation, all costs of

relocation will be borne by the MSS

licensee. The Further NPRM also

proposes that the Emerging

Technologies policies for the relocation

of incumbent FS licensees (in the 2110–

2130 and 2165–2200 MHz bands) be

followed, including voluntary and

mandatory negotiation periods,

provision for involuntary relocation

with all costs borne by the MSS

operator, and a ‘‘sunset’’ date of ten

years after the beginning of the

voluntary negotiation period, after

which FS licensees will be required to

relocate at their own expense if MSS

needs the frequencies within which FS

licensees operate.

2. The Commission carefully

considered the balance of interests

between new technology providers and

incumbent service licensees, in the

Emerging Technologies proceeding, ET

Docket 92–9. Considering that the

emerging technology service provider

receives the benefits of operating in the

band, including anticipated substantial

profits, the Commission concluded that

it is fair to require the new technology

service to pay for the relocation of the

displaced incumbents. Though the

1990–2110 MHz BAS band was not part

of the Emerging Technologies

proceeding, the logic of the Emerging

Technologies proceeding applies

equally well to BAS, CARS, and LTTS.

MSS commenters advocate requiring

BAS band licensees to finance their own

relocation as their equipment

depreciates and they purchase new

equipment, claiming that the total costs

of relocation, added to the high cost of

launching satellites, would cripple the

nascent MSS industry. This assertion,

however, contradicts the position of

MSS commenters that there is a huge,

underserved demand for MSS. We

believe that MSS licensees will build

the cost of relocating BAS band

licensees into their financial plans, and

still will be able to provide service at a

profit. We propose to rechannelize the

BAS band to seven channels of 15

megahertz width each, as opposed to the

current 17- and 18-megahertz channel

widths, in order to maintain seven

channels in the 2 GHz BAS band, but

we also request comment on whether

allowing flexibility in channelization

would better serve the needs of the BAS,

CARS, and LTTS industries. Because

the current and new BAS bands overlap,

BAS, CARS, and LTTS licensees are

likely to interfere with each other if both

the current and proposed new channel

plans are used simultaneously. To

address this problem, we propose to

make the new channel plan primary on

January 1, 2000, or after the 2110–2130

MHz band is cleared of incumbent FS

licensees, whichever is later. We also

inquire whether a later date would be

more appropriate, and whether we

should allow switchover on a marketby-market basis, rather than a

nationwide basis. We inquire whether

we should allow BAS, CARS, and LTTS

licensees to negotiate with MSS

individually, or whether we should

impose marketwide or nationwide

negotiators whose agreements would be

binding on all licensees. We also
Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Proposed Rules 19539

1Public safety FS licensees eligible for the threeyear voluntary negotiation period are defined in

Emerging Technologies, ET Docket 92–9,

Memorandum Opinion and Order, 9 FCC Rcd 1943

at ¶¶ 36–41, 59 FR 19642, April 25, 1994.

2See Emerging Technologies, ET Docket 92–9,

Third Report and Order and Memorandum Opinion

and Order, 8 FCC Rcd. 6589 at ¶ 15, 58 FR 46547,

September 2, 1993.

3See 47 CFR 21.50, 94.59.

propose the same negotiation periods as

those established in the Emerging

Technologies proceeding: a two-year

voluntary negotiation period, followed

by a one-year mandatory negotiation

period, followed by involuntary

relocation. In the case of involuntary

relocation, we propose to apply the

requirements of our Emerging

Technologies policies: (1) payment of all

relocation expenses by the MSS

operator, (2) full comparability of

replacement facilities, and (3) the right

of the incumbents to return to their

original spectrum at MSS expense,

should the replacement facilities prove

not to be fully comparable within one

year after relocation. Finally, we

propose to require subsequently

entering MSS operators to compensate

earlier operators for a portion of the

expenses incurred in clearing the BAS

band.

3. We also propose to follow our

Emerging Technologies policies in

providing for the relocation of FS

incumbents from the 2110–2130 MHz

and 2165–2200 MHz bands, as codified

at 47 CFR 101.69–101.81. Incumbents

will be relocated from the 2110–2130

MHz band to clear that band for

relocated BAS operations. In our

Emerging Technologies proceeding, we

established two periods for negotiation

between new emerging technology

licensees and incumbent FS licensees.

The first period is for voluntary

negotiations, in which the parties may

arrive at any mutually agreeable

solution. Negotiations during this

period are strictly voluntary, and we

established no parameters for these

negotiations. The voluntary period

begins with our acceptance of license

applications for the emerging

technology service, and lasts for two

years, or, in the case of public safety FS,

three years.1 The voluntary period is

followed by a mandatory negotiation

period, which begins at any time after

expiration of the voluntary period when

the emerging technologies licensee

informs the FS incumbent in writing of

the emerging technology licensee’s

desire to negotiate relocation. During

the mandatory period, the parties would

be required to negotiate in good faith,

but again the parameters of the

negotiation are left to the parties. The

mandatory period lasts for one year, or

two years for public safety FS

incumbents.2 Should the parties fail to

reach an agreement during the

mandatory negotiation period, the

emerging technology provider would be

able to request involuntary relocation of

the existing facility. Involuntary

relocation requires that the emerging

technology provider (1) guarantee

payment of all costs of relocating the

incumbent to a comparable facility; (2)

complete all activities necessary for

placing the new facilities into operation,

including engineering and frequency

coordination; and (3) build and test the

new FS or alternative system. Once

comparable facilities are made available

to the incumbent microwave operator,

the Commission will amend the 2 GHz

license of the incumbent to secondary

status. After relocation, the FS

incumbent is entitled to a one-year trial

period to determine whether the

facilities are indeed comparable, and if

they are not, the emerging technologies

licensee is required to remedy the

defects or pay to relocate the FS

incumbent back to its former or an

equivalent 2 GHz frequency.3

4. We propose to provide for FS

relocation in this case using the same

sunset period and good faith guidelines

as those established in the Microwave

Cost-Sharing proceeding, 11 FCC Rcd

8825 (1996), 61 FR 29679, June 12,

1996. Ten years after the beginning of

the voluntary negotiation period for the

first MSS licensees, MSS operators

would no longer be required to pay the

costs of relocating FS incumbents, and

would be able to require the incumbents

to cease operating or relocate at their

own expense upon six months written

notice. The MSS and FS industries are

currently developing interference

standards under the good offices of

Telecommunications Industry

Association (TIA). We propose to adopt

these standards, or their successors, in

determining whether our sunset rules

would apply to a given FS incumbent.

At the end of the six-month notice

period, the incumbent FS licensees

would be required to surrender their 2

GHz licenses to the Commission, unless

the incumbent FS licensees arrived at an

agreement with the MSS operators to

allow the incumbent FS licensee to

continue operations. During mandatory

negotiations, we propose to adhere to

the guidelines enumerated in the

Microwave Cost-Sharing proceeding.

We request comment on whether we

should apply the sunset rule of 47 CFR

101.81 and the good faith guidelines of

47 CFR 101.75 for the 2110–2130 MHz

and 2165–2200 MHz bands. If so, we

inquire whether the sunset date should

be ten years after the beginning of the

voluntary negotiation period for

relocation, as in 47 CFR 101.81, or some

other date.

5. In the Microwave Cost-Sharing

proceeding, we also proposed to adjust

the voluntary and mandatory

negotiation periods for FS relocation in

the case of the D, E, and F spectrum

blocks of PCS. Specifically, we

proposed to reduce the voluntary period

to one year, or two years in the case of

public safety FS incumbents. We

proposed to increase the mandatory

negotiation period to two years, or three

years in the case of public safety FS.

Thus, the total negotiation period would

remain the same, but the division into

voluntary and mandatory periods would

be altered. We request comment on

whether we should adjust the

negotiation periods for the MSS band. If

so, should we follow the proposal in our

Microwave Cost-Sharing proceeding, or

should we establish some other

negotiation periods? Also, should we

begin the voluntary negotiation period

when we accept applications for MSS

licensing, or at some later date?

6. In addition to addressing FS in the

2110–2130 MHz and 2165–2200 MHz

bands, we inquire into procedures for

relocation of FS licensees in the 2130–

2150 MHz band. This band is not

directly reallocated by this proceeding,

but FS links in the 2130–2150 MHz

band are paired with links in the 2180–

2200 MHz band, which is being

reallocated to MSS. We propose to allow

parties to negotiate the relocation of

links in the 2130–2150 MHz band

during negotiations for the relocation of

FS licensees in the 2180–2200 MHz

band. We inquire, however, whether we

should assume that the involuntary

relocation of FS links in the 2180–2200

MHz band necessitates relocation of the

paired links in the 2130–2150 MHz

band, or whether we should require

relocation only of links in the 2180–

2200 MHz band, leaving situate the

paired links in the 2130–2150 MHz

band, unless the FS licensees involved

demonstrate the need to have the paired

links in the 2130–2150 MHz band

included in involuntary relocation.

Commenters are urged to address the

feasibility of paired links in widely

separated frequency bands, as well as

any other aspects of this question.

7. Finally, we propose to require

subsequently entering MSS operators to

compensate earlier MSS operators for

the costs of relocating incumbent FS

licensees. We propose that the

subsequently entering MSS operators

will pay a proportionate share of the

costs of clearing the spectrum band that
19540 Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Proposed Rules

4 5 U.S.C. 603.

5 13 CFR 121.201 Standard Industrial

Classification (SIC) Code 4812.

6 13 CFR 121.201, Standard Industrial

Classification (SIC) Code 4899.

the subsequently entering MSS operator

is authorized to use. Further, in any case

where the earlier MSS operator was able

to share spectrum with FS incumbents,

but the entry of another MSS operator

necessitates relocation, we propose to

require the earlier MSS operator to

compensate the subsequently entering

MSS operator in the same manner. We

also inquire, whether we should

consider the age and value of FS

equipment in determining costs issues

in the case of involuntary relocation.

8. We request comment on all these

proposals. Commenters are encouraged

to present possible alternatives to any of

the proposals presented in the Further

NPRM. We also specifically inquire

whether there are sound reasons to

establish different relocation procedures

for the BAS band than those we

establish for FS relocation.

9. This action would make more

spectrum available to MSS providers

from the year 2000 forward. The staff

has concluded that there is a need for

more MSS spectrum, and the spectrum

at issue will allow both domestic and

global MSS systems to be established.

The reduction of the BAS band would

encourage more efficient use of the

spectrum, and would increase the

amount of remaining spectrum available

for emerging technologies. The

spectrum allocation would require

relocation of BAS and FS licensees, in

accordance with our Emerging

Technologies rules. Finally, the new

and enhanced services and uses

permitted by this action will create new

jobs, foster economic growth, and

improve access to communications by

industry and the American public.

Initial Regulatory Flexibility Analysis

10. As required by Section 603 of the

Regulatory Flexibility Act,4 the

Commission has prepared an IRFA of

the expected significant economic

impact on small entities by the policies

and rules proposed in this Further

Notice of Proposed Rule Making

(Further NPRM). Written public

comments are requested on the IRFA.

Comments must be identified as

responses to the IRFA and must be filed

by the deadlines for comments on the

Further NPRM provided above in

paragraph 83. The Secretary shall send

a copy of this NPRM, including the

IRFA, to the Chief Counsel for Advocacy

of the Small Business Administration in

accordance with paragraph 603(a) of the

Regulatory Flexibility Act.

A. Need for and Objectives of the

Proposed Rules

11. The Further NPRM proposes rules

to govern the relocation of Broadcast

Auxiliary Service (BAS), Local

Television Transmission Service

(LTTS), Cable Television Relay Service

(CARS), and Fixed Service (FS)

licensees from the 2 GHz spectrum

reallocated to the MSS. These rules are

designed to ensure an orderly transition

of these licensees from the spectrum so

that MSS operations may be conducted

in the spectrum. At the same time, the

rules are designed to ensure that

incumbent BAS, LTTS, CARS, and FS

licensees suffer no harm from

relocation.

B. Legal Basis

12. The Communications Act of 1934,

as amended, gives the Commission

authority to ‘‘make such regulations as

it may deem necessary to prevent

interference between stations and to

carry out the provisions of [the

Communications Act].’’ 47 U.S.C. 303(f).

C. Description and Estimate of the

Number of Small Entities to Which the

Proposed Rules Will Apply

13. BAS, LTTS, and CARS Licensees

This service involves a variety of

transmitters, generally used to relay

broadcast programming to the public

(through translator and booster stations)

or within the program distribution chain

(from a remote news gathering unit back

to the station). It also includes

Instructional Television Fixed Service

stations, which are used to relay

programming to the home or office,

similar to that provided by the cable

television systems. The Commission has

not developed a definition of small

entities applicable to Broadcast

Auxiliary Service, Local Television

Transmission Service or Cable

Television Relay Service. Therefore, the

applicable definition of small entity is

the definition under the Small Business

Administration (SBA) rules applicable

to radiotelephone companies. SBA has

defined a small business for Standard

Industrial Classification (SIC) category

4812 (Radiotelephone Communications)

to be small entities when they have

fewer than 1500 employees.5

(a) There are currently 2,663 FM

translators and boosters, 4, 926 TV

translators, and 1,921 Low Power TV

stations which will be affected by the

new requirements. The FCC does not

collect financial information on any

broadcast facility and the Department of

Commerce does not collect financial

information on these auxiliary broadcast

facilities. We believe that most, if not

all, of these auxiliary facilities could be

classified as small businesses by

themselves. We recognize that most

translators and boosters are owned by a

parent station which, in some cases,

would be covered by the revenue

definition of small business entity

discussed above. These stations would

likely have annual revenues that exceed

the SBA maximum to be designated as

a small business (either $5 million for

a radio station or $10.5 million for a TV

station). As we indicated earlier, 96% of

radio stations and 78% of TV stations

are designated as small businesses.

(b) There are currently 2,000 licensed

cable television relay stations, which

will probably be affected by the new

requirement. The Commission receives

approximately 1,000 CARS applications

on an annual basis. The FCC is not

required to collect financial information

on these facilities.

14. Fixed Service Licensees

The Further NPRM pertains to fixed

service microwave licensees. The

Commission has not developed a

definition of small entities applicable to

Fixed Service microwave licensees.

Therefore, the applicable definition of

small entity is the definition under the

Small Business Administration (SBA)

rules applicable to radiotelephone

companies. This definition provides

that a small entity is a radiotelephone

company employing fewer than 1,500

persons. Census Bureau data indicates

that there are 1,164 radiotelephone

companies with fewer than 1500

employees, that might qualify as small

entities if they are independently owned

and operated. Since the Regulatory

Flexibility Act amendments were not in

effect until the record in this proceeding

was closed, the Commission was unable

to request information regarding the

number of small businesses that would

be affected by this action.

15. Satellite Communications Services

The Commission has not developed a

definition of small entities applicable to

satellite communications licensees.

Therefore, the applicable definition of

small entity is the definition under the

Small Business Administration (SBA)

rules applicable to Communications

Services ‘‘Not Elsewhere Classified.’’

This definition provides that a small

entity is one with $11.0 million or less

in annual receipts.6 According to

Census Bureau data, there are 848 firms
Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Proposed Rules 19541

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

Commerce, 1992 Census of Transportation,

Communications, and Utilities, UC92–S–1, Subject

Series, Establishment and Firm Size, Table 2D,

Employment Size of Firms: 1992, SIC Code 4899

(issued May 1995).

that fall under the category of

Communications Services, Not

Elsewhere Classified. Of those,

approximately 775 reported annual

receipts of $11 million or less and

qualify as small entities.7

16. Satellite systems authorized by the

Commission can be divided into the

following categories: Mobile-Satellite

Service (MSS) non-geostationary

satellite orbit (LEO) (low or medium

orbit satellites); MSS geostationary; MSS

stations; and Fixed-Satellite Service.

D. Description of Projected Reporting,

Recordkeeping and Other Compliance

Requirements

17. The proposed rules would require

all BAS, LTTS, CARS, and FS licensees,

as well as MSS operators, to negotiate

for relocation or rechannelization or

both, including negotiating timetables

and costs. These negotiations are likely

to require the skills of accountants and

engineers to evaluate the economic and

technical requirements of relocation.

E. Significant Alternatives to Proposed

Rules Which Minimize Significant

Economic Impact on Small Entities and

Accomplish Stated Objectives

18. The Commission considered the

alternative of requiring current BAS,

LTTS, CARS, and FS licensees in the 2

GHz band to relocate or rechannelize or

both at their own expense. The

Commission rejected this alternative as

excessively burdensome on these

incumbent licensees, and not in the

public interest.

19. MSS commenters advocate

requiring BAS band licensees to finance

their own relocation as their equipment

depreciates and they purchase new

equipment, claiming that the total costs

of relocation, added to the high cost of

launching satellites, would cripple the

nascent MSS industry. This assertion,

however, contradicts the position of

MSS commenters that there is a huge,

underserved demand for MSS. We

believe that MSS licensees will build

the cost of relocating BAS band

licensees into their financial plans, and

still will be able to provide service at a

profit. We propose to rechannelize the

BAS band to seven channels of 15

megahertz width each, as opposed to the

current 17- and 18-megahertz channel

widths, in order to maintain seven

channels in the 2 GHz BAS band, but

we also request comment on whether

allowing flexibility in channelization

would better serve the needs of the BAS,

CARS, and LTTS industries. Because

the current and new BAS bands overlap,

BAS, CARS, and LTTS licensees are

likely to interfere with each other if both

the current and proposed new channel

plans are used simultaneously. To

address this problem, we would propose

to make the new channel plan primary

on January 1, 2000, or after the 2110–

2130 MHz band is cleared of incumbent

FS licensees, whichever is later. We

would also inquire whether a later date

would be more appropriate, and

whether we may allow switchover on a

market-by-market basis, rather than a

nationwide basis. We inquire whether

we should allow BAS, CARS, and LTTS

licensees to negotiate with MSS

individually, or whether we should

impose marketwide or nationwide

negotiators whose agreements would be

binding on all licensees. We propose the

same negotiation periods as those

established in the Emerging

Technologies proceeding: a two-year

voluntary negotiation period, followed

by a one-year mandatory negotiation

period, followed by involuntary

relocation. In the case of involuntary

relocation, we propose to apply the

requirements of our Emerging

Technologies policies: (1) payment of all

relocation expenses by the MSS

operator, (2) full comparability of

replacement facilities, and (3) the right

of the incumbents to return to their

original spectrum at MSS expense,

should the replacement facilities prove

not to be fully comparable within one

year after relocation. Finally, we would

propose to require subsequently

entering MSS operators to compensate

earlier operators for a portion of the

expenses incurred in clearing the BAS

band.

F. Federal Rules That May Duplicate,

Overlap, or Conflict With the Proposed

Rules

20. None.

List of Subjects

47 CFR Part 2

Communications equipment, Radio.

47 CFR Part 74

Television broadcasting.

47 CFR Part 78

Cable television, Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–9828 Filed 4–21–97; 8:45 am]

BILLING CODE 6712–01–P