Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 /Rules and Regulations 40059

* * * * *

Dated: July 14, 1998.

David J. Barram,

Administrator of General Services.

[FR Doc. 98–20010 Filed 7–24–98; 8:45 am]

BILLING CODE 6820–23–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 20, 80, and 90

[PR Docket No. 92–257; FCC 98–151]

Maritime Communications

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission has adopted

a Third Report and Order and

Memorandum Opinion and Order in PR

Docket No. 92–257 which simplifies the

licensing process and introduces

additional flexibility for public coast

stations. Specifically, the Commission

amends the maritime service rules to

designate geographic licensing regions

for very high frequency (VHF) public

coast stations, and assign all currently

unassigned VHF public correspondence

channels on a geographic basis by

competitive bidding. The uniform

competitive bidding rules will apply in

public coast station auctions. The

Commission also adopts small business

provisions for qualifying public coast

station applicants, and defines the

criteria used to determine eligibility for

these provisions. The effect will be to

promote and facilitate the participation

of small businesses in the Commission’s

auctions and in the provision of

spectrum-based services.

EFFECTIVE DATE: September 25, 1998.

FOR FURTHER INFORMATION CONTACT:

Non-auction information: Scot Stone of

the Wireless Telecommunications

Bureau, Public Safety and Private

Wireless Division, at (202) 418–0680 or

via E-mail to ‘‘sstone@fcc.gov’’. Auction

information: Anne Napoli of the

Wireless Telecommunications Bureau,

Auctions and Industry Analysis

Division, Legal Branch, at (202) 418–

0660. TTY: (202) 418–7233.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Third

Report and Order and Memorandum

Opinion and Order, PR Docket No. 92–

257, FCC 98–51, adopted , July 6, 1998,

and released, July 9, 1998. The full text

of this Third Report and Order and

Memorandum Opinion and Order is

available for inspection and copying

during normal business hours in the

FCC Reference Center (Room 239), 1919

M Street, NW, Washington, DC. The

complete text may be purchased from

the Commission’s copy contractor,

International Transcription Services,

1231 20th Street, NW, Washington, DC

20036, telephone (202) 857–3800,

facsimile (202) 857–3805. Alternative

formats (computer diskette, large print,

audio cassette, and Braille) are available

to persons with disabilities by

contacting Martha Contee at (202) 418–

0260, TTY (202) 418–2555, or at

mcontee@fcc.gov. The full text of the

Third Report and Order and

Memorandum Opinion and Order can

also be downloaded at: http://

www.fcc.gov/Bureaus/Wireless/Orders/

1998/fcc98151.txt or http://

www.fcc.gov/Bureaus/Wireless/Orders/

1998/fcc98151.wp, and the map set out

in the paper version may be

downloaded at http://www.fcc.gov/

Bureaus/Wireless/Orders/1998/

fc98151a.pdf.

Summary of the Third Report and

Order and Memorandum Opinion and

Order

1. The Commission initiated the

instant proceeding to update the

Maritime Service rules to promote the

use of new, spectrally efficient radio

communications techniques. In the

Second Further Notice of Proposed Rule

Making (62 FR 37533, July 14, 1997), the

Commission proposed rules to simplify

the license process for VHF public coast

stations.

2. The Commission amends the rules

to license VHF public correspondence

channel pairs on a geographic basis, in

lieu of the site-based approach presently

used. The Commission designates fortytwo licensing areas: nine maritime VHF

Public Coast areas (VPCs), each

consisting of one or more Economic

Areas (EAs) within one hundred miles

of major waterways and grouped

together in accordance with Coast Guard

Districts; and thirty-three inland VPCs,

each consisting of a single EA no part

of which is within one hundred miles

of a major waterway.

3. The Commission amends the rules

to authorize a single geographic area

licensee to operate on all currently

unassigned VHF public correspondence

frequencies within its licensing area for

a ten-year license term. Each geographic

area licensee may place stations

anywhere within its region to serve

vessels or units on land, so long as

marine-originating traffic is given

priority and incumbent operations are

protected. Base stations and land units

will be blanket licensed under the

geographic license, except that

individual licensing is required for base

stations that require submission of an

Environmental Assessment under 47

CFR 1.1307 or international

coordination, or will affect the radio

frequency quiet zones described in 47

CFR 80.21. The Commission amends the

rules to permit partitioning and

disaggregation of the geographic

licenses, with partitionees and

disaggregatees to hold their licenses for

the remainder of the original licensee’s

term and to have a renewal expectancy.

4. Incumbent VHF public coast station

licensees, and private land mobile radio

(PLMR) licensees sharing marine

spectrum in inland regions, may

continue operating indefinitely, and

incumbents and geographic area

licensees must afford interference

protection to one another. If an

incumbent fails to construct,

discontinues operations, or otherwise

has its license terminated, its

authorization automatically reverts to

the geographic licensee. Incumbent

licensees may renew, transfer, assign,

and modify their license in any manner

so long as such modifications do not

extend the incumbent’s service area;

proposed modifications that would

extend an incumbent’s service area or

request additional frequencies are

contingent upon an agreement with

each affected licensee.

5. Geographic licensees must provide

substantial service. Licensees’ showings

will be reviewed on a case-by-case basis,

but the Commission provides the

following safe-harbor examples: for

maritime VPC licensees, coverage to

one-third of the region’s major

waterways within five years, and

continuous to two-thirds of the region’s

major waterways within ten years; for

inland VPC licensees (and partitionees

of maritime VPC licensees where the

partitioned area is not contiguous with

a major waterway), coverage to onethird of the population of the region

within five years and two-thirds of the

region’s population within ten years.

Competitive Bidding Procedures

6. Background. In Implementation of

Sections 3(n) and 332 of the

Communications Act, Regulatory

Treatment of Mobile Services, Second

Report and Order, 59 FR 18493 (March

7, 1994), the Commission classified the

public coast station service as a

commercial mobile radio service

(CMRS). Subsequently, in

Implementation of Section 309(j) of the

Communications Act—Competitive

Bidding, Second Report and Order, 59

FR 22980 (May 4, 1994), the

Commission determined that as a CMRS

service, mutually exclusive applications

for public coast station licenses would

be resolved through competitive
40060 Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 /Rules and Regulations

bidding. The Commission proposed to

establish competitive bidding rules for

public coast station licenses in the

Second Further Notice. Following the

release of the Second Further Notice,

Congress passed the Balanced Budget

Act of 1997, Pub. L. 105–33, 111 Stat.

251 (Aug. 5, 1997) (Balanced Budget

Act), which expanded and extended the

Commission’s auction authority.

7. Decision. The Commission earlier

concluded that the public coast station

service is subject to competitive

bidding. This conclusion is unchanged

by the Balanced Budget Act, which

provides that all licenses and

construction permits for which

mutually exclusive applications are

accepted, with certain exceptions not

applicable here, shall be granted by

means of competitive bidding. The

Commission therefore believes that it

lacks discretion to resolve mutually

exclusive public coast license

applications by any means other than

competitive bidding. Since the Balanced

Budget Act expressly provides that

competitive bidding shall not be used

for public safety radio services, the

inland VPC channel pairs set aside for

public safety use shall be awarded by

other means, to be decided as part of the

Commission’s pending public safety

proceeding, see 62 FR 60199 (November

7, 1997).

Competitive Bidding Issues

8. Proposal. The Commission

proposed in the Second Further Notice

to adopt service specific rules to govern

public coast station auction(s), pending

the adoption of final uniform

competitive bidding rules, as proposed

in Amendment of Part 1 of the

Commission’s Rules—Competitive

Bidding Procedures, Second Report and

Order, Order on Reconsideration, and

Fifth Notice of Proposed Rule Making,

62 FR 13540 (March 21, 1997). In

accordance with the Commission’s

practice of establishing definitions for

‘‘small business’’ on a service-by-service

basis, the Commission also sought

comment on establishing a ‘‘small

business’’ definition for public coast

station auction(s). The Commission

tentatively concluded that, to determine

small business status, public coast

station applicants should attribute the

gross revenues of their controlling

principals and affiliates, and that the

definition of affiliate in the public coast

context should include an exception for

Indian tribes, Alaska Region and Village

Corporations. The Commission

tentatively decided not to provide

special consideration for incumbent

licensees in the competitive bidding

process.

9. Decision. The uniform competitive

bidding rules recently adopted in

Amendment of Part 1 of the

Commission’s Rules—Competitive

Bidding Procedures, Third Report and

Order, 63 FR 2315 (January 15, 1998)

(Part 1 Third Report and Order), and

found in Subpart Q of Part 1 of the

Commission’s rules, will apply in

public coast station auction(s). Thus, the

Part 1 definition of affiliate, which

includes an exemption for Indian Tribes

and Alaska Region and Village

Corporations, will apply in public coast

station auction(s), see 47 CFR

1.2110(b)(4). Consistent with this

approach, procedural matters such as

the general design and timing of the

auction(s); license grouping; bid

increments; activity and stopping rules;

and application and payment

requirements, including upfront

payments, will be determined by the

Wireless Telecommunications Bureau

pursuant to its delegated authority. See

47 CFR 0.131(c), 0.331, 0.332.

10. For purposes of public coast

auction(s), the Commission defines a

small business as an entity that, together

with controlling interests and affiliates,

has average gross revenues for the

preceding three years not to exceed

fifteen million dollars, and a ‘‘very

small’’ business as an entity that,

together with controlling interests and

affiliates, has average gross revenues for

the preceding three years not to exceed

three million dollars. A two-tiered

definition will allow very small

incumbents to compete favorably with

larger entities, and will provide entities

with relatively low gross revenues an

opportunity to participate meaningfully

in the auction(s).

11. The Commission also adopts its

tentative conclusion to attribute the

gross revenues of the applicant, its

controlling principals and their affiliates

in determining small business

eligibility. However, the adopted rule

refers to ‘‘controlling interests’’ rather

than ‘‘controlling principals,’’ and

provides a definition of this term for

further clarification. A ‘‘controlling

interest’’ includes individuals or entities

with de jure and de facto control of the

applicant. De jure control is 50.1% of

the voting stock of a corporation or, in

the case of a partnership, the general

partners. De facto control is determined

on a case-by-case basis. The controlling

interest definition also provides for

attribution of partnership and other

ownership interests, and offers guidance

on calculation of various types of

ownership interests. When an applicant

cannot identify controlling interests

under the definition, the revenues of all

interest holders in the applicant and

their affiliates are counted. This

approach is consistent with the

Commission’s proposal in Amendment

of Part 1 of the Commission’s Rules—

Competitive Bidding Procedures,

Second Further Notice of Proposed Rule

Making, 63 FR 770 (January 7, 1998),

and with the attribution rules applied in

recent Commission auctions. The effect

will be to ensure that only qualifying

entities receive small business benefits,

and to enable these entities to attract

passive financing in a highly

competitive and evolving market. The

Commission also emphasizes that all

bidders are subject to the ownership

disclosure requirements set forth in 47

CFR 1.2112.

12. The Commission adopts its

tentative decision not to provide special

consideration to incumbent public coast

service licensees that participate in the

auction(s), because the Commission

believes that new entrants and

incumbents should have an equal

opportunity to obtain spectrum.

Qualifying incumbents may benefit from

the adopted small business provisions.

13. The bidding credit levels for

public coast auction(s) will conform to

the schedule adopted in the Part 1 Third

Report and Order. The Part 1 Third

Report and Order adopted bidding

credits of thirty-five percent for entities

with annual gross revenues not to

exceed three million, and twenty-five

percent for entities with annual gross

revenues not to exceed fifteen million.

See 47 CFR 1.21110(e)(2)(i)–(ii). Thus,

public coast station applicants meeting

the definition of ‘‘very small’’ business

will receive a thirty-five percent bidding

credit, and applicants meeting the

definition of ‘‘small’’ business will

receive a twenty-five percent bidding

credit.

14. In the Part 1 Third Report and

Order, the Commission held that

installment payments will not be used

in the immediate future as a means of

financing small business participation

in Commission auctions. Since the

Commission received no comment on

this issue in this proceeding,

installment payments will not be

available in public coast station

auctions for reasons discussed in the

Part 1 Third Report and Order.

15. The Commission also received no

comments or proposals regarding the

sufficiency of small business provisions

in promoting participation by minorityand women-owned businesses and rural

telephone companies. Therefore, the

Commission concludes that it lacks a

sufficient record to support such

provisions at this time.

16. The Commission may seek

comment in a future proceeding on
Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 /Rules and Regulations 40061

whether the adopted small business

provisions should be modified for

auctions of high seas and Automated

Maritime Telecommunications Service

public coast station spectrum.

Regulatory Flexibility Act

17. As required by the Regulatory

Flexibility Act (RFA), an Initial

Regulatory Flexibility Analysis (IRFA)

was incorporated into the Second

Further Notice of Proposed Rule Making

in this proceeding (Second Further

Notice). The Commission sought written

public comment on the proposals in the

Second Further Notice, including

comment on the IRFA. This present

Final Regulatory Flexibility Analysis

(FRFA) conforms to the RFA.

18. Need for, and Objectives of, the

Third Report and Order and

Memorandum Opinion and Order. Our

objective is to simplify our licensing

process for VHF public coast stations.

Specifically, this action will: (1) convert

licensing of VHF public coast station

spectrum from site-by-site licensing to

geographic area licensing, (2) simplify

and streamline the VHF public coast

spectrum licensing procedures and

rules, (3) increase licensee flexibility to

provide communication services that

are responsive to dynamic market

demands, and (4) introduce marketbased forces into the Maritime Services

by using competitive bidding

procedures (auctions) to resolve

mutually exclusive applications for

public coast spectrum. We find that

these actions will increase the number

and types of communications services

available to the maritime community

and improve the safety of life and

property at sea, and that the potential

benefits to the maritime community

exceed any negative effects that may

result form the promulgation of rules for

this purpose. Thus, we conclude that

the public interest is served by

amending our rules as described above.

19. Summary of Significant Issues

Raised by Public Comments in Response

to the IRFA. No comments were

submitted in response to the IRFA. In

general comments on the Second

Further Notice, however, some small

business commenters raised issues that

might affect small business entities. In

particular, some small business

commenters argued that geographic

licensing should be used only in certain

areas; or that incumbent licensees be

permitted to expand their systems

before any auctions are held; or that

license areas should be smaller than

Coast Guard Districts, to permit smaller

licensees to participate in auctions

without having to bid for territory far

exceeding their operating needs. The

Commission carefully considered each

of these comments in reaching the

decision set forth herein.

20. Description and Estimate of the

Number of Small Entities to Which

Rules Will Apply. The rules adopted

herein will apply to licensees using

public coast spectrum. The Commission

has not developed a definition of the

term ‘‘small entity’’ specifically

applicable to public coast station

licensees. Therefore, the applicable

definition of small entity is the

definition under the Small Business

Administration rules applicable to

radiotelephone service providers. This

definition provides that a small entity is

any entity employing less than 1,500

persons. See 13 CFR 121.201, Standard

Industrial Classification (SIC) Code

4812. Since the size data provided by

the Small Business Administration does

not enable us to make a meaningful

estimate of the number of current or

prospective public coast station

licensees which are small businesses, no

commenters responded to our request

for information regarding the number of

small entities that use or are likely to

use public coast spectrum, we used the

1992 Census of Transportation,

Communications, and Utilities,

conducted by the Bureau of Census,

which is the most recent information

available. This document shows that

only 12 radiotelephone firms out of a

total of 1,178 such firms which operated

during 1992 had 1,000 or more

employees. There are over 100 public

coast station licensees. Based on the

proposals contained herein, it is

unlikely that more than 50 licensees

will be authorized in the future.

Therefore, for purposes of our

evaluations and conclusions in this

FRFA, we estimate that there are

approximately 150 public coast station

licensees which are small businesses, as

that term is defined by the Small

Business Administration.

21. Description of Projected

Reporting, Recordkeeping, and Other

Compliance Requirements. All small

businesses that choose to participate in

the competitive bidding for these

services will be required to demonstrate

that they meet the criteria set forth to

qualify as small businesses, as required

under part 1, subpart Q of the

Commission’s Rules, 47 CFR part 1,

subpart Q. Any small business applicant

wishing to avail itself of small business

provisions will need to make the general

financial disclosures necessary to

establish that the small business is in

fact small. Prior to auction each small

business applicant will be required to

submit an FCC Form 175, OMB

Clearance Number 3060–0600. The

estimated time for filling out an FCC

Form 175 is 45 minutes. In addition to

filing an FCC Form 175, each applicant

will have to submit information

regarding the ownership of the

applicant, any joint venture

arrangements or bidding consortia that

the applicant has entered into, and

financial information demonstrating

that a business wishing to qualify for

bidding credits is a small business.

Applicants that do not have audited

financial statements available will be

permitted to certify to the validity of

their financial showings. While many

small businesses have chosen to employ

attorneys prior to filing an application

to participate in an auction, the rules are

intended to enable a small business

working with the information in a

bidder information package to file an

application on its own. When an

applicant wins a license, it will be

required to submit an FCC Form 494

(common carrier), which will require

technical information regarding the

applicant’s proposals for providing

service. This application will require

information provided by an engineer

who will have knowledge of the

system’s design.

22. Steps Taken to Minimize Burdens

of Small Entities, and Significant

Alternatives Considered. The

Commission in this proceeding has

considered comments on ways to

implement broad changes to the

Maritime Service rules. In doing so, the

Commission has adopted alternatives

which minimize burdens placed on

small entities. First, it has decided to

establish a presumption that geographic

area licensees are telecommunications

carriers, avoiding the need for small

telecommunications to provide detailed

information about their operations.

Also, it has exempted by rule from the

Channel 16 safety watch requirement

public coast stations eligible whose

areas are served by government stations,

replacing the prior requirement that

such coast stations individually request

an exemption. In addition, the

Commission has eased the construction

requirements for VHF public coast

stations.

23. The Commission considered and

rejected several significant alternatives.

It rejected the alternative of licensing all

VHF public coast spectrum by Coast

Guard District. Instead, it will license

such spectrum in areas removed from

major waterways by inland VHF Public

Coast Station Area (VPCs), identical to

Economic Areas (EAs), allowing small

entities there to participate in the

auction without bidding for territory far

exceeding their operating needs. The

Commission rejected the alternative of
40062 Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 /Rules and Regulations

delaying the auctions for the inland

VPCs by holding frequencies open for

public safety applications. Instead, the

Commission designated public safety

channels in advance. The Commission

rejected the alternative of requiring each

geographic area licensee to provide

detailed information about the services

it will offer, so the Commission could

determine whether the licensee is a

telecommunications carrier. Instead, the

Commission established a rebuttable

presumption that geographic area

licensees are telecommunications

carriers, so only those seeking to avoid

that classification need submit such

information.

24. The Commission will send a copy

of the Third Report and Order and

Memorandum Opinion and Order,

including this FRFA, in a report to be

sent to Congress pursuant to the Small

Business Regulatory Enforcement

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

801(a)(1)(A). In addition, the

Commission will send a copy of the

Third Report and Order and

Memorandum Opinion and Order,

including this FRFA, to the Chief

Counsel for Advocacy of the Small

Business.

Paperwork Reduction Act

25. This Third Report and Order and

Memorandum Opinion and Order

contains neither a modified nor a new

information collection.

List of Subjects

47 CFR Part 20

Communications common carriers,

Radio, Reporting and recordkeeping

requirements.

47 CFR Part 80

Communications equipment, Radio,

Vessels.

47 CFR Part 90

Communications equipment, Radio.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Accordingly, 47 CFR parts 20, 80, and

90 are amended as follows:

PART 20—COMMERCIAL MOBILE

RADIO SERVICES

1. The authority citation for part 20

continues to read as follows:

Authority: Secs. 4, 251–2, 303, and 332, 48

Stat. 1066, 1062, as amended; 47 U.S.C. 154,

251–4, 303, and 332 unless otherwise noted.

2. Amend § 20.9 by revising paragraph

(b) introductory text and paragraph

(b)(1) to read as follows:

§ 20.9 Commercial mobile radio service.

* * * * *

(b) Licensees of a Personal

Communications Service or applicants

for a Personal Communications Service

license, and Public Coast Station

licensees or applicants, proposing to use

any Personal Communications Service

or Public Coast Station spectrum to offer

service on a private mobile radio service

basis must overcome the presumption

that Personal Communications Service

and Public Coast Stations are

commercial mobile radio services.

(1) The applicant or licensee (who

must file an application to modify its

authorization) seeking authority to

dedicate a portion of the spectrum for

private mobile radio service, must

include a certification that it will offer

Personal Communications Service or

Public Coast Station service on a private

mobile radio service basis. The

certification must include a description

of the proposed service sufficient to

demonstrate that it is not within the

definition of commercial mobile radio

service in § 20.3 of this chapter. Any

application requesting to use any

Personal Communications Service or

Public Coast Station spectrum to offer

service on a private mobile radio service

basis will be placed on public notice by

the Commission.

* * * * *

PART 80—STATIONS IN THE

MARITIME SERVICES

3. The authority citation for part 80 is

revised to read as follows:

Authority: Secs. 4, 303, 307(e), 309, and

332, 48 Stat. 1066, 1082, as amended; 47

U.S.C. 154, 303, 307(e), 309, and 332, unless

otherwise noted. Interpret or apply 48 Stat.

1064–1068, 1081–1105, as amended; 47

U.S.C. 151–155, 301–609; 3 UST 3450, 3 UST

4726, 12 UST 2377.

4. Amend § 80.3 by revising paragraph

(b) to read as follows:

§ 80.3 Other applicable rule parts of this

chapter.

* * * * *

(b) Part 1. This part includes rules of

practice and procedure for license

applications, adjudicatory proceedings,

procedures for reconsideration and

review of Commission actions;

provisions concerning violation notices

and forfeiture proceedings; and the

environmental processing requirements

that, if applicable, must be complied

with prior to the initiation of

construction. Subpart Q of Part 1

contains rules governing competitive

bidding procedures for resolving

mutually exclusive applications for

certain initial licenses.

* * * * *

5. Amend § 80.25 by revising

paragraph (b) to read as follows:

§ 80.25 License term.

* * * * *

(b) Licenses other than ship stations

in the maritime services will normally

be issued for a term of five years from

the date of original issuance, major

modification, or renewal, except that

licenses for VHF public coast stations

will normally be issued for a term of ten

years from the date of original issuance,

major modification, or renewal.

Licenses, other than Public Coast and

Alaska Public Fixed stations, may be

renewed up to ninety (90) days after the

date the license expires.

* * * * *

6. Revise § 80.49 to read as follows:

§ 80.49 Construction and regional service

requirements.

(a) Public coast stations. (1) Each VHF

public coast station geographic area

licensee must make a showing of

substantial service within its region or

service area (subpart P) within five years

of the initial license grant, and again

within ten years of the initial license

grant, or the authorization becomes

invalid and must be returned to the

Commission for cancellation.

‘‘Substantial’’ service is defined as

service which is sound, favorable, and

substantially above a level of mediocre

service which just might minimally

warrant renewal. For site-based VHF

public coast station licensees, when a

new license has been issued or

additional operating frequencies have

been authorized, if the station or

frequencies authorized have not been

placed in operation within twelve

months from the date of the grant, the

authorization becomes invalid and must

be returned to the Commission for

cancellation.

(2) For LF, MF, HF, and AMTS band

public coast station licensees, when a

new license has been issued or

additional operating frequencies have

been authorized, if the station or

frequencies authorized have not been

placed in operation within eight months

from the date of the grant, the

authorization becomes invalid and must

be returned to the Commission for

cancellation.

(b) Public fixed stations. When a new

license has been issued or additional

operating frequencies have been

authorized, if the station or frequencies

authorized have not been placed in

operation within twelve months from

the date of the grant, the authorization
Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 /Rules and Regulations 40063

becomes invalid and must be returned

to the Commission for cancellation.

7. Add § 80.60 to subpart B to read as

follows:

§ 80.60 Partitioned licenses and

disaggregated spectrum.

(a) Eligibility. VHF Public Coast

Station Area (VPCSA) licensees, see

§ 80.371(c)(1)(ii) of this part, may

partition their geographic service area or

disaggregate their spectrum pursuant to

the procedures set forth in this section.

Parties seeking approval for partitioning

and disaggregation shall request an

authorization for partial assignment

pursuant to § 1.924 of this chapter.

(b) Technical standards. (1)

Partitioning. In the case of partitioning,

all requests for authorization for partial

assignment of a license must include, as

an attachment, a description of the

partitioned service area. The partitioned

service area shall be defined by

coordinate points at every 3 degrees

along the partitioned service area unless

an FCC-recognized service area is

utilized (e.g., Metropolitan Service Area,

Rural Service Area, or Economic Area)

or county lines are used. The geographic

coordinates must be specified in

degrees, minutes, and seconds to the

nearest second of latitude and

longitude, and must be based upon the

1983 North American Datum (NAD83).

In a case where an FCC-recognized

service area or county lines are utilized,

applicants need only list the specific

area(s) (through use of FCC designations

or county names) that constitute the

partitioned area.

(2) Disaggregation. Spectrum may be

disaggregated in any amount, provided

acquired spectrum is disaggregated

according to frequency pairs.

(3) Combined partitioning and

disaggregation. The Commission will

consider requests for partial assignment

of licenses that propose combinations of

partitioning and disaggregation.

(c) License term. The license term for

a partitioned license area and for

disaggregated spectrum shall be the

remainder of the original licensee’s term

as provided for in § 80.25 of this part.

(d) Construction Requirements. (1)

Partitioning. Partial assignors and

assignees for license partitioning have

two options to meet construction

requirements. Under the first option, the

partitionor and partitionee would each

certify that they will independently

satisfy the substantial service

requirement for their respective

partitioned areas. If either licensee

failed to meet its substantial service

showing requirement, only the nonperforming licensee’s renewal

application would be subject to

dismissal. Under the second option, the

partitioner certifies that it has met or

will meet the substantial service

requirement for the entire market. If the

partitioner fails to meet the substantial

service standard, however, only its

renewal application would be subject to

forfeiture at renewal.

(2) Disaggregation. Partial assignors

and assignees for license disaggregation

have two options to meet construction

requirements. Under the first option, the

disaggregator and disaggregatee would

certify that they each will share

responsibility for meeting the

substantial service requirement for the

geographic service area. If parties

choose this option and either party fails

to do so, both licenses would be subject

to forfeiture at renewal. The second

option would allow the parties to agree

that either the disaggregator or the

disaggregatee would be responsible for

meeting the substantial service

requirement for the geographic service

area. If parties choose this option, and

the party responsible for meeting the

construction requirement fails to do so,

only the license of the nonperforming

party would be subject to forfeiture at

renewal.

8. Amend § 80.70 by adding new

paragraph (c) to read as follows:

§ 80.70 Special provisions relative to coast

station VHF facilities.

* * * * *

(c) A VHF (156–162 MHz) public

coast station licensee initially

authorized on any of the channels listed

in the table in § 80.371(c)(1)(i) of this

part may transfer or assign its channel(s)

to another entity. If the proposed

transferee or assignee is the geographic

area licensee for the geographic area to

which the channel is allocated, such

transfer or assignment will be deemed to

be in the public interest. However, such

presumption will be rebuttable.

9. Revise § 80.105 to read as follows:

§ 80.105 General obligations of coast

stations.

Each coast station or marine-utility

station must acknowledge and receive

all calls directed to it by ship or aircraft

stations. Such stations are permitted to

transmit safety communication to any

ship or aircraft station. VHF (156–162

MHz) public coast stations may provide

fixed or hybrid services on a co-primary

basis with mobile operations.

10. Amend § 80.303 by revising

paragraph (b) to read as follows:

§ 80.303 Watch on 156.800 MHz (Channel

16).

* * * * *

(b) A coast station is exempt from

compliance with the watch requirement

when Federal, State, or Local

Government stations maintain a watch

on 156.800 MHz over 95% of the coast

station’s service area. Each licensee

exempted by rule must notify the

nearest district office of the U.S. Coast

Guard at least thirty days prior to

discontinuing the watch, or in the case

of new stations, at least thirty days prior

to commencing service. The Coast

Guard may require any coast station to

maintain the watch temporarily or

permanently. The Coast Guard may also

require any coast station to remain

capable of either immediately resuming

the watch or providing the Coast Guard

direct dial-up access to the necessary

156.800 MHz transceiver at no charge so

that the Coast Guard can maintain the

watch.

* * * * *

11. Amend § 80.371 by revising

paragraph (c) intoductory text, adding

paragraph (c)(1)(i) before the table, and

adding paragraphs (c)(1)(ii), (c)(1)(iii),

(c)(2), (c)(3), and (c)(4) to read as

follows:

§ 80.371 Public correspondence

frequencies.

* * * * *

(c) Working frequencies in the marine

VHF 156–162 MHz band. (1)(i) The

frequency pairs listed in the table in

paragraph (c)(1)(ii) are available for

assignment to public coast stations for

public correspondence communications

with ship stations and units on land.

* * * * *

(ii) Service areas in the marine VHF

156–162 MHz band are VHF Public

Coast Station Areas (VPCSAs). As listed

in the table in this paragraph, VPCSAs

are based on, and composed of one or

more of, the U.S Department of

Commerce’s 172 Economic Areas (EAs).

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

addition, the Commission shall treat

Guam and the Northern Mariana

Islands, Puerto Rico and the United

States Virgin Islands, American Samoa,

and the Gulf of Mexico as EA-like areas,

and has assigned them EA numbers

173–176, respectively. Maps of the EAs

and VPCSAs are available for public

inspection and copying at the Public

Safety and Private Wireless Division,

room 8010, 2025 M Street, NW,

Washington, DC. Except as shown in the

table, the frequency pairs listed in

paragraph (c)(1)(i) of this section are

available for assignment to a single

licensee in each of the VPCSAs listed in

the table in this paragraph. In addition

to the listed EAs listed in the table in

this paragraph, each VPCSA also

includes the adjacent waters under the

jurisdiction of the United States.
40064 Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 /Rules and Regulations

VHF Public coast station areas (VPCSAs)

VPCSAs EAs

Frequency

pairs not

available for

assignment

1 (Northern Atlantic) ..................................................................... 1–5, 10 ........................................................................................

2 (Mid-Atlantic) ............................................................................. 9, 11–23, 25, 42, 46 ...................................................................

3 (Southern Atlantic) .................................................................... 24, 26–34, 37, 38, 40, 41, 174 ...................................................

4 (Mississippi River) ..................................................................... 34, 36, 39, 43–45, 47–53, 67–107, 113, 116–120, 122–125,

127, 130–134, 176.

5 (Great Lakes) ............................................................................ 6–8, 54–66, 108, 109 .................................................................

6 (Southern Pacific) ..................................................................... 160–165 ......................................................................................

7 (Northern Pacific) ...................................................................... 147, 166–170 ..............................................................................

8 (Hawaii) ..................................................................................... 172, 173, 175 ..............................................................................

9 (Alaska) ..................................................................................... 171 ..............................................................................................

10 (Grand Forks) ......................................................................... 110 .............................................................................................. 84, 25.

11 (Minot) ..................................................................................... 111 .............................................................................................. 84, 25.

12 (Bismarck) ............................................................................... 112 .............................................................................................. 84, 25.

13 (Aberdeen) .............................................................................. 114 .............................................................................................. 84, 25.

14 (Rapid City) ............................................................................. 115 .............................................................................................. 84, 25.

15 (North Platte) .......................................................................... 121 .............................................................................................. 84, 25.

16 (Western Oklahoma) ............................................................... 126 .............................................................................................. 25, 85.

17 (Abilene) .................................................................................. 128 .............................................................................................. 25, 85.

18 (San Angelo) ........................................................................... 129 .............................................................................................. 25, 85.

19 (Odessa-Midland) ................................................................... 135 .............................................................................................. 25, 85.

20 (Hobbs) ................................................................................... 136 .............................................................................................. 25, 85.

21 (Lubbock) ................................................................................ 137 .............................................................................................. 25, 85.

22 (Amarillo) ................................................................................. 138 .............................................................................................. 25, 85.

23 (Santa Fe) ............................................................................... 139 .............................................................................................. 84, 25.

24 (Pueblo) .................................................................................. 140 .............................................................................................. 84, 25.

25 (Denver-Boulder-Greeley) ....................................................... 141 .............................................................................................. 84, 25.

26 (Scottsbluff) ............................................................................. 142 .............................................................................................. 84, 25.

27 (Casper) .................................................................................. 143 .............................................................................................. 84, 25.

28 (Billings) .................................................................................. 144 .............................................................................................. 84, 25.

29 (Great Falls) ............................................................................ 145 .............................................................................................. 84, 25.

30 (Missoula) ............................................................................... 146 .............................................................................................. 84, 25.

31 (Idaho Falls) ............................................................................ 148 .............................................................................................. 25, 85.

32 (Twin Falls) ............................................................................. 149 .............................................................................................. 25, 85.

33 (Boise City) ............................................................................. 150 .............................................................................................. 84, 25.

34 (Reno) ..................................................................................... 151 .............................................................................................. 84, 25.

35 (Salt Lake City-Ogden) ........................................................... 152 .............................................................................................. 25, 85.

36 (Las Vegas) ............................................................................ 153 .............................................................................................. 84, 25.

37 (Flagstaff) ................................................................................ 154 .............................................................................................. 84, 25.

38 (Farmington) ........................................................................... 155 .............................................................................................. 84, 25.

39 (Albuquerque) ......................................................................... 156 .............................................................................................. 84, 25.

40 (El Paso) ................................................................................. 157 .............................................................................................. 25, 85.

41 (Phoenix-Mesa) ....................................................................... 158 .............................................................................................. 84, 25.

42 (Tucson) .................................................................................. 159 .............................................................................................. 84, 25.

(iii) Subject to paragraph (c)(3) of this

section, each licensee may also operate

on 12.5 kHz offset frequencies in areas

where the licensee is authorized on both

frequencies adjacent to the offset

frequency, and in areas where the

licensee on the other side of the offset

frequency consents to the licensee’s use

of the adjacent offset frequency.

(2) Any recovered channel pairs will

revert automatically to the holder of the

VPCSA license within which such

channels are included, except the

channel pairs listed in the table in

paragraph (c)(1)(ii) of this section. Those

channel pairs, and any channel pairs

recovered where there is no VPCSA

licensee, will be retained by the

Commission for future licensing.

(3) VPCSA licensees may not operate

on Channel 228B (162.0125 MHz),

which is available for use in the Coast

Guard’s Ports and Waterways Safety

System (PAWSS)). In addition, within

six months of the conclusion of the

competitive bidding procedures to

determine the licensees in each VPCSA,

the U.S. Coast Guard shall submit to

each licensee of VPCSAs 1–9 a plan

specifying up to two narrowband

channel pairs offset 12.5 kHz from the

channels set forth in the table in

paragraph (c)(1)(i) of this section, for use

in the PAWSS. The final selection of the

PAWSS channel pairs can be negotiated

(if the VPCSA licensee objects to the

Coast Guard proposal, it shall make a

counterproposal within three months)

and established by an agreement

between the parties. All parties are

required to negotiate in good faith. If no

agreement is reached within one year of

the date the Coast Guard submitted its

plan, the Coast Guard may petition the

Commission to select the channel pairs.

(4) Subject to the requirements of

§ 80.21, each VPCSA licensee may place

stations anywhere within its region

without obtaining prior Commission

approval provided:

(i) It provides to co-channel coast

station incumbent licensees, and

incumbent Private Land Mobile Radio

licensees authorized under part 90 of

this chapter on a primary basis,

protection as defined in subpart P of

this part. VPCSA licensees that share a

common border may either distribute

the available frequencies upon mutual

agreement or request that the

Commission assign frequencies along

the common border.
Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 /Rules and Regulations 40065

(ii) The locations and/or technical

parameters of the transmitters are such

that individual coordination of the

channel assignment(s) with a foreign

administration, under applicable

international agreements and rules in

this part, is not required.

(iii) For any construction or alteration

that would exceed the requirements of

§ 17.7 of this chapter, licensees must

notify the appropriate Regional Office of

the Federal Aviation Administration

(FAA Form 7460–1) and file a request

for antenna height clearance and

obstruction marking and lighting

specifications (FCC Form 854) with the

FCC, Attn: Information Processing

Branch, 1270 Fairfield Rd., Gettysburg,

PA 17325–7245.

(iv) The transmitters must not have a

significant environmental effect as

defined by §§ 1.1301 through 1.1319 of

this chapter.

* * * * *

12. Revise § 80.751 to read as follows:

§ 80.751 Scope.

This subpart specifies receiver

antenna terminal requirements in terms

of power, and relates the power

available at the receiver antenna

terminals to transmitter power and

antenna height and gain. It also sets

forth the co-channel interference

protection that VHF public coast station

geographic area licensees must provide

to incumbents.

13. Revise § 80.773 to read as follows:

§ 80.773 Co-channel interference

protection.

(a) Where a VHF public coast station

geographic area licensee shares a

frequency with an incumbent VHF

public coast station licensee, the ratio of

desired to undesired signal strengths

must be at least 12 dB within the service

area of the station.

(b) Where a VHF public coast station

geographic area licensee shares a

frequency with an incumbent private

land mobile radio licensee, the VHF

public coast station geographic area

licensee must provide at least 10 dB

protection to the PLMR incumbent’s

predicted 38 dBu signal level contour.

The PLMR incumbent’s predicted 38

dBu signal level contour is calculated

using the F(50, 50) field strength chart

for Channels 7–13 in § 73.699 (Fig. 10a)

of this chapter, with a 9 dB correction

factor for antenna height differential,

and is based on the licensee’s

authorized effective radiated power and

antenna height-above-average-terrain.

14. Add new subpart Y to read as

follows:

Subpart Y—Competitive Bidding

Procedures

Sec.

80.1251 Maritime communications services

subject to competitive bidding.

80.1252 Designated entities.

§ 80.1251 Maritime communications

services subject to competitive bidding.

Mutually exclusive initial

applications for VPCSA licenses, high

seas public coast station licenses, and

AMTS coast station licenses are subject

to competitive bidding procedures. The

procedures set forth in part 1, subpart Q

of this chapter will apply unless

otherwise provided in this part.

§ 80.1252 Designated entities.

(a) This section addresses certain

issues concerning designated entities in

maritime communications services

subject to competitive bidding. Issues

that are not addressed in this section are

governed by the designated entity

provisions in part 1, subpart Q of this

chapter.

(b) Eligibility for small business

provisions. (1) A small business is an

entity that, together with its affiliates

and controlling interests, has average

gross revenues not to exceed $15

million for the preceding three years.

(2) A very small business is an entity

that, together with its affiliates and

controlling interests, has average gross

revenues not to exceed $3 million for

the preceding three years.

(3) For purposes of determining

whether an entity meets either of the

definitions set forth in paragraph (b)(1)

or (b)(2) of this section, the gross

revenues of the entity, its affiliates, and

controlling interests shall be considered

on a cumulative basis and aggregated.

(4) Where an applicant or licensee

cannot identify controlling interests

under the standards set forth in this

section, the gross revenues of all interest

holders in the applicant, and their

affiliates, will be attributable.

(5) A consortium of small businesses

(or a consortium of very small

businesses) is a conglomerate

organization formed as a joint venture

between or among mutually

independent business firms, each of

which individually satisfies the

definition in paragraph (b)(1) of this

section (or each of which individually

satisfies the definition in paragraph

(b)(2) of this section). Where an

applicant or licensee is a consortium of

small businesses (or very small

businesses), the gross revenues of each

small business (or very small business)

shall not be aggregated.

(c) Controlling interest. (1) For

purposes of this section, controlling

interest includes individuals or entities

with de jure and de facto control of the

applicant. De jure control is greater than

50 percent of the voting stock of a

corporation, or in the case of a

partnership, the general partner. De

facto control is determined on a case-bycase basis. An entity must disclose its

equity interest and demonstrate at least

the following indicia of control to

establish that it retains de facto control

of the applicant:

(i) The entity constitutes or appoints

more than 50 percent of the board of

directors or management committee;

(ii) The entity has authority to

appoint, promote, demote, and fire

senior executives that control the dayto-day activities of the licensee; and

(iii) The entity plays an integral role

in management decisions.

(2) Calculation of certain interests. (i)

Ownership interests shall be calculated

on a fully diluted basis; all agreements

such as warrants, stock options and

convertible debentures will generally be

treated as if the rights thereunder

already have been fully exercised.

(ii) Partnership and other ownership

interests and any stock interest equity,

or outstanding stock, or outstanding

voting stock shall be attributed as

specified in paragraphs (c)(2)(iii)

through (c)(2)(ix) of this section.

(iii) Stock interests held in trust shall

be attributed to any person who holds

or shares the power to vote such stock,

to any person who has the sole power

to sell such stock, and, to any person

who has the right to revoke the trust at

will or to replace the trustee at will. If

the trustee has a familial, personal, or

extra-trust business relationship to the

grantor or the beneficiary, the grantor or

beneficiary, as appropriate, will be

attributed with the stock interests held

in trust.

(iv) Non-voting stock shall be

attributed as an interest in the issuing

entity.

(v) Limited partnership interests shall

be attributed to limited partners and

shall be calculated according to both the

percentage of equity paid in and the

percentage of distribution of profits and

losses.

(vi) Officers and directors of an entity

shall be considered to have an

attributable interest in the entity. The

officers and directors of an entity that

controls a licensee or applicant shall be

considered to have an attributable

interest in the licensee or applicant.

(vii) Ownership interests that are held

indirectly by any party through one or

more intervening corporations will be

determined by successive multiplication

of the ownership percentages for each

link in the vertical ownership chain and
40066 Federal Register / Vol. 63, No. 143 / Monday, July 27, 1998 /Rules and Regulations

application of the relevant attribution

benchmark to the resulting product,

except that if the ownership percentage

for an interest in any link in the chain

exceeds 50 percent or represents actual

control, it shall be treated as if it were

a 100 percent interest.

(viii) Any person who manages the

operations of an applicant or licensee

pursuant to a management agreement

shall be considered to have an

attributable interest in such applicant or

licensee if such person, or its affiliate

pursuant to § 1.2110(b)(4) of this

chapter, has authority to make decisions

or otherwise engage in practices or

activities that determine, or significantly

influence:

(A) The nature or types of services

offered by such an applicant or licensee;

(B) The terms upon which such

services are offered; or

(C) The prices charged for such

services.

(ix) Any licensee or its affiliate who

enters into a joint marketing

arrangement with an applicant or

licensee, or its affiliate, shall be

considered to have an attributable

interest, if such applicant or licensee, or

its affiliate, has authority to make

decisions or otherwise engage in

practices or activities that determine, or

significantly influence,

(A) The nature or types of services

offered by such an applicant or licensee;

(B) The terms upon which such

services are offered; or

(C) The prices charged for such

services.

(d) A winning bidder that qualifies as

a small business or a consortium of

small businesses as defined in

§ 80.1252(b)(1) or § 80.1252(b)(5) of this

subpart may use the bidding credit

specified in § 1.2110(e)(2)(ii) of this

chapter. A winning bidder that qualifies

as a very small business or a consortium

of very small businesses as defined in

§ 80.1252(b)(2) or § 80.1252(b)(5) of this

subpart may use the bidding credit

specified in § 1.2110(e)(2)(i) of this

chapter.

PART 90—PRIVATE LAND MOBILE

RADIO SERVICES

15. The authority citation for part 90

continues to read as follows:

Authority: Secs. 4, 251–2, 303, 309, and

332, 48 Stat. 1066, 1082, as amended; 47

U.S.C. 154, 251–2, 303, 309 and 332, unless

otherwise noted.

§ 90.283 [Removed and Reserved]

16. Removed and reserve § 90.283.

[FR Doc. 98–19943 Filed 7–24–98; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 648

[Docket No. 971015246–7293–02; I.D.

072098D]

Fisheries of the Northeastern United

States; Summer Flounder Fishery;

Commercial Quota Harvested for

Massachusetts

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Commercial quota harvest.

SUMMARY: NMFS announces that the

summer flounder commercial quota

available to the Commonwealth of

Massachusetts has been harvested.

Vessels issued a commercial Federal

fisheries permit for the summer

flounder fishery may not land summer

flounder in Massachusetts for the

remainder of calendar year 1998, unless

additional quota becomes available

through a transfer. Regulations

governing the summer flounder fishery

require publication of this document to

advise the Commonwealth of

Massachusetts that the quota has been

harvested and to advise vessel permit

holders and dealer permit holders that

no commercial quota is available for

landing summer flounder in

Massachusetts.

DATES: Effective 0001 hours, July 23,

1998, through December 31, 1998.

FOR FURTHER INFORMATION CONTACT: Tom

Warren, Fishery Management Specialist,

(978) 281–9347.

SUPPLEMENTARY INFORMATION:

Regulations governing the summer

flounder fishery are found at 50 CFR

part 648. The regulations require annual

specification of a commercial quota that

is apportioned among the coastal states

from North Carolina through Maine. The

process to set the annual commercial

quota and the percent allocated to each

state are described in § 648.100.

The initial total commercial quota for

summer flounder for the 1998 calendar

year was set equal to 11,105,636 lb

(5,037,432 kg) (62 FR 66304, December

18, 1997). The percent allocated to

vessels landing summer flounder in

Massachusetts is 6.82046 percent, or

757,841 lb (343,751 kg).

Section 648.100(e)(4) stipulates that

any overages of commercial quota

landed in any state be deducted from

that state’s annual quota for the

following year. In the calendar year

1997, a total of 745,171 lb (338,004 kg)

were landed in Massachusetts, creating

a 35,942 lb (16,303 kg) overage that was

deducted from the amount allocated for

landings in the Commonwealth during

1998 (63 FR 23227, April 28, 1998). The

resulting quota for Massachusetts is

721,899 lb (327,488 kg).

Section 648.101(b) requires the

Administrator, Northeast Region, NMFS

(Regional Administrator), to monitor

state commercial quotas and to

determine when a state’s commercial

quota is harvested. The Regional

Administrator is further required to

publish a document in the Federal

Register advising a state and notifying

Federal vessel and dealer permit holders

that, effective upon a specific date, the

state’s commercial quota has been

harvested and no commercial quota is

available for landing summer flounder

in that state. The Regional

Administrator has determined, based

upon dealer reports and other available

information, that the Commonwealth of

Massachusetts has attained its quota for

1998.

The regulations at § 648.4(b) provide

that Federal permit holders agree as a

condition of the permit not to land

summer flounder in any state that the

Regional Administrator has determined

no longer has commercial quota

available. Therefore, effective 0001

hours July 23, 1998, further landings of

summer flounder in Massachusetts by

vessels holding commercial Federal

fisheries permits are prohibited for the

remainder of the 1998 calendar year,

unless additional quota becomes

available through a transfer and is

announced in the Federal Register.

Effective July 23, 1998, federally

permitted dealers are also advised that

they may not purchase summer flounder

from federally permitted vessels that

land in Massachusetts for the remainder

of the calendar year, or until additional

quota becomes available through a

transfer.

Classification

This action is required by 50 CFR part

648 and is exempt from review under

E.O. 12866.

Authority: 16 U.S.C. 1801 et seq.

Dated: July 21, 1998.

Bruce C. Morehead,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 98–19975 Filed 7–22–98; 2:35 pm]

BILLING CODE 3510–22–F