Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Rules and Regulations 21987

MOTOR CARRIER RADIO SERVICE

FREQUENCY TABLE—Continued

Frequency

or band

Class of

station(s) Limitations

* * * * *

44.16 ....... ...... do ............. 5, 23.

44.18 ....... ...... do ............. 5, 23.

44.20 ....... ...... do ............. 5, 20, 23.

* * * * *

44.32 ....... ...... do ............. 5, 23.

* * * * *

44.36 ....... ...... do ............. 5, 6, 23.

* * * * *

44.40 ....... ...... do ............. 5, 6, 23.

* * * * *

44.46 ....... ...... do ............. 1, 23.

44.48 ....... ...... do ............. 1, 23.

* * * * *

(c) * * *

(23) This frequency is also used on a

secondary basis for cordless telephones

under part 15 of this chapter.

* * * * *

[FR Doc. 95–11012 Filed 5–3–95; 8:45 am]

BILLING CODE 6712–01–M

47 CFR Part 90

[PR Docket No. 89–553, GN Docket No. 93–

252, PP Docket No. 93–253, FCC 95–159]

Service Rules for SMR Systems in the

900 MHz Frequency Band

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission adopted a

Second Report and Order,

implementing final service rules to

complete the licensing of the 900 MHz

Specialized Mobile Radio (SMR)

service. This Order implements the

Commission’s decision in the Third

Report & Order in GN Docket No. 93–

252, (CMRS Third Report & Order), to

license the 900 MHz band on a Major

Trading Area (MTA) basis. The Second

Report and Order also establishes

technical and operational rules for the

new MTA licensees, and defines the

rights of SMR licensees already

operating in the 900 MHz band. This

Second Report and Order also addresses

issues raised on reconsideration of the

CMRS Third Report & Order pertaining

specifically to the 900 MHz SMR

service.

EFFECTIVE DATE: June 5, 1995.

FOR FURTHER INFORMATION CONTACT:

Amy Zoslov, (202) 418–0620, Wireless

Telecommunications Bureau.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Second Report and

Order, adopted April 14, 1995, released

April 17, 1995. The complete text of this

Second Report and Order is available

for inspection and copying during

normal business hours in the FCC

Dockets Branch, Room 239, 1919 M

Street NW., Washington, D.C., and also

may be purchased from the

Commission’s copy contractor,

International Transcription Service, at

(202) 857–3800, 2100 M Street NW.,

Suite 140, Washington, D.C. 20037.

Synopsis of the Second Report and

Order

Adopted: April 14, 1995

Released: April 17, 1995

Comment Date: May 24, 1995

Reply Comment Date: June 1, 1995

I. Background

1. When the Commission established

the 900 MHz SMR service in 1986, it

elected to use a two-phase licensing

process. In Phase I, licenses were

assigned in 46 ‘‘Designated Filing

Areas’’ (DFAs) comprised of the top 50

markets. Phase II licensing, for facilities

outside the DFAs, was frozen after 1986,

when the Commission opened its filing

window for the DFAs. In 1989, the

Commission adopted a Notice of

Proposed Rule Making in PR Docket 89–

553, proposing to begin Phase II

licensing of SMR facilities nationwide.

In 1993, the Commission adopted a First

Report & Order & Further Notice of

Proposed Rule Making in PR Docket 89–

553 (Phase II First R&O & Further

Notice), 58 FR 12176 (March 3, 1993),

modifying its Phase II proposal and

seeking comment on whether to license

the 900 MHz SMR band to a

combination of nationwide, regional

and local systems. Shortly thereafter,

Congress amended the Communications

Act to reclassify most SMR licensees as

Commercial Mobile Radio Service

(CMRS) providers and establish the

authority to use competitive bidding to

select from among mutually exclusive

applicants for certain licensed services.

The Commission deferred further

consideration of Phase II and

incorporated the 900 MHz SMR docket

into its CMRS proceeding.

2. In the CMRS Third Report & Order,

59 FR 59,945 (Nov. 21, 1994), the

Commission further revised its Phase II

proposals and established the broad

outlines for the completion of licensing

in the 900 MHz SMR band. The

Commission left the specific service

rules for the Phase II Order, which the

Commission adopted herein. This Order

also considers petitions for

reconsideration of the CMRS Third

Report & Order, 59 FR 59,945 (Nov. 21,

1994) and ex parte presentations

concerning, inter alia, secondary sites,

loading requirements, treatment of

incumbents vis a vis the MTA licensees,

and coverage requirements. The

Commission also affirms its rules

governing channel blocks and MTA

service areas; addresses coverage

requirements for MTA licensees;

provides incumbent licensees protection

from interference by MTA licensees

through geographic separation and

short-spacing rules; provides for cochannel interference protection between

adjacent MTA licensees, including

signal level limitation, coordination of

frequency usage, and emission mask

rules; partially reconsiders its rules

governing primary site protection;

affirms its rules regarding loading

requirements; provides channel block

allocation for MTA licensees in Mexican

and Canadian border areas; and

modifies its rule regarding

discontinuance of operation. Finally,

the Commission applies the CMRS

spectrum cap to 900 MHz SMR

licensees, and establish rules

grandfathering incumbent PMRS

licensees and foreign-ownership of

private land mobile providers.

II. Second Report and Order

A. Service Rules

3. Service Areas. In the CMRS Third

Report & Order, 59 FR 59,945 (Nov. 21,

1994), the Commission found that

MTAs are the preferable service area for

future 900 MHz SMR licensing. The

limited success of existing 900 MHz

SMR systems confined to providing

service in DFAs weighs against the use

of more numerous Basic Trading Areas

(BTAs) or similarly small service areas.

The Commission also found that MTA

licensing is more likely to create

opportunities for both existing licensees

and new entrants to meet customer

demands for wide-area service, and

unlike larger regional or nationwide

service areas, will not unnecessarily

restrict entry to a small number of

licensees. CMRS Third Report & Order,

59 FR 59,945 (Nov. 21, 1994). For those

reasons, the Commission affirms its

initial decision to license 900 MHz SMR

licenses on an MTA basis.

4. The Commission notes that Rand

McNally & Company is the copyright

owner of MTA listings, and an

agreement in principal for a blanket

copyright license has been reached

between Rand McNally and the

American Mobile Telecommunications

Association. MTA licensees would
21988 Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Rules and Regulations

obtain a license to use Rand McNally’s

copyrighted material pursuant to this

agreement upon payment to Rand

McNally of $125.00 per each tenchannel block MTA license a grantee

obtains. The agreement, along with the

MTA listings and map, are available for

public inspection at the Wireless

Telecommunications Bureau’s public

reference room, Room 628, 1919 M

Street NW., Washington, D.C. 20554.

Copies also can be obtained by

contacting Kim McLean, Marketing

Coordinator, Rand McNally & Company,

8255 North Central Park, Skokie, IL

60076 (tel. (800) 333–0134) or AMTA,

1150 18th Street N.W., Suite 250

Washington, D.C. 20036 (tel. (202) 331–

7773). Grantees are free to negotiate

their own licensing arrangement with

Rand McNally. Grantees may not,

however, rely on grant of an MTA–

based SMR license as a defense to any

claim of copyright infringement brought

by Rand McNally.

5. Channel Blocks. The 900 MHz SMR

band is comprised of 20 blocks of 10

contiguous channels each, interleaved

with channels assigned to other Part 90

services. The CMRS Third Report &

Order, 59 FR 59,945 (Nov. 21, 1994),

provides that each 10-channel block

would be separately licensed and that

applicants would be permitted to

aggregate blocks. Eligibility for any

channel block would not be restricted,

and both incumbents and new entrants

would be allowed to bid without

restriction for one or more 900 MHz

blocks. An MTA licensee will be

authorized to construct stations

anywhere in its MTA on unoccupied

channels that are available for

construction, and to expand or modify

facilities throughout its MTA provided

that the system remains in compliance

with the Commission’s technical and

operational rules, protects incumbents,

and the licensee notifies the

Commission of such changes. CMRS

Third Report & Order, 59 FR 59,945

(Nov. 21, 1994). These rules will afford

900 MHz SMR MTA licensees the same

flexibility afforded cellular and PCS

licensees.

6. Coverage Requirements. The CMRS

Third Report & Order, 59 FR 59,945

(Nov. 21, 1994), provides MTA licensees

five years to construct and operate their

systems, but deferred adoption of

interim requirements to this proceeding.

In this Second Report and Order, the

Commission will require that MTA

licensees provide coverage to one-third

of the population of their service area

within three years of initial license grant

and to two-thirds of the population of

their service area within five years.

Alternatively, at the five-year mark,

MTA licensees may submit a showing to

the Commission demonstrating that they

are providing substantial service. In

addition, licenses may resell party of

their geographic area to help them fulfill

coverage requirements. An MTA

licensee must satisfy its coverage

requirements regardless of the extent of

the presence of incumbents within its

MTA block, and failure to comply with

these requirements will result in

forfeiture of the entire MTA license.

These standards are similar to those

imposed on other wide-area CMRS

licensees such as cellular and

broadband PCS. The Commission states

that these standards will allow for

ubiquitous wide-area service to the

public and protect incumbents, while

deterring competitors from seeking

MTA licenses for anticompetitive

warehousing.

7. Treatment of Incumbents. In the

CMRS Third Report & Order, 59 FR

59,945, (Nov. 21, 1994), the Commission

determined that incumbent SMR

systems in the 900 MHz MTA blocks are

entitled to co-channel protection by

MTA licensees, and that mandatory

relocation of incumbents was not

feasible in the 900 MHz band because

no alternative 900 MHz SMR channels

were available for relocation. The

Commission instead stated that MTA

licensees could negotiate mergers,

buyouts, frequency swaps, or similar

arrangements with incumbent systems

on a voluntary basis. In furtherance of

that policy, this Second Report & Order

requires that MTA licensees afford

protection to incumbent SMR systems

pursuant to 47 C.F.R. § 90.621(b), by

locating their stations at least 113 km

(70 mi.) from the facilities of any

incumbent, by complying with the cochannel separation standards set forth

in our ‘‘short-spacing’’ rule, or by

negotiating an even shorter distance

with the incumbent licensee. See 47

C.F.R. § 90.621(b)(4). This will

adequately protect incumbent

operations without hampering the

ability of MTA licensees to construct

stations throughout their authorized

service area.

8. While the CMRS Third Report &

Order, 59 FR 59,945 (Nov. 21, 1994),

provides full co-channel interference

protection for existing facilities,

incumbent systems may not expand

beyond existing service areas unless

they obtain the MTA license for the

relevant channels; the Commission did

not, however, specifically define an

incumbent’s ‘‘existing service area.’’ To

provide incumbent licensees with

additional flexibility, the Commission is

defining an incumbent licensee’s

existing service area by its originallylicensed 40 dBu signal strength contour.

9. Thus, incumbent licensees may add

new transmitters in their existing

service area without prior notification to

the Commission, so long as their

original 40 dBu signal strength contour

is not expanded. Incumbent licensees

will be required to notify the

Commission of any changes in technical

parameters or additional stations

constructed through a minor

modification of their license, including

agreements with an MTA licensee to

expand beyond their signal strength

contour. These minor modification

applications, however, will not be

subject to public notice and petition to

deny requirements or mutually

exclusive applications. These rules will

allow incumbents to continue existing

operations without harmful interference

and give them flexibility to modify or

augment their systems so long as they

do not encroach on the MTA licensee’s

operations.

10. Interference Between Adjacent

MTA Licensees. In the CMRS Third

Report & Order, 59 FR 59,945 (Nov. 21,

1994), the Commission concluded that

co-channel interference criteria for

adjacent MTA licensees would be

similar to those imposed on the cellular

and PCS services in that they would

only apply to transmitting locations

near the boundaries of each licensee’s

MTA. Consistent with that objective,

this Second Report and Order prohibits

MTA licensees from exceeding a signal

level of 40 dBuV/M at their service area

boundaries, unless all affected parties

agree to a higher level. Co-channel

adjacent MTA licensees and other

affected parties must coordinate

frequency usage. To the extent that a

single licensee obtains licenses for

adjacent MTAs on the same channel

block, it will not be required to

coordinate its operations in this manner.

This approach provides MTA licensees

a signal strength level sufficient to

operate their systems up to the borders

of their MTA licenses while protecting

adjacent operations.

11. Secondary Sites. In the CMRS

Third Report & Order, 59 FR 59,945

(Nov. 21, 1994), the Commission

determined that incumbent systems are

entitled to full co-channel interference

protection for existing facilities, but are

not allowed to expand beyond existing

service areas unless they obtain the

MTA license for the relevant channels.

Several incumbent 900 MHz licensees

have been granted authorizations to

construct facilities outside of their DFAs

on a secondary (i.e., unprotected) basis

to link their facilities in different

markets. As a practical matter, these
Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Rules and Regulations 21989

sites developed on an interference-free

basis due to the freeze on primary

licensing outside the DFAs. To prevent

unnecessary disruption of existing

operations, the Commission concluded

that 900 MHz secondary sites licensed

on or before August 9, 1994, would be

afforded primary status, thus requiring

new MTA licensees to afford them full

co-channel interference protection.

12. On reconsideration, the

Commission amends its rules to extend

protected status to all secondary sites

filed on or before August 9, 1994, even

if they were not granted until after

August 9. Granting primary site

protection for these sites will promote

uninterrupted service, and protect only

a de minimis amount of new spectrum.

Moreover, the Commission’s delays in

processing secondary site applications

in the 900 MHz SMR service appear to

have produced an inequitable result for

applicants who otherwise would have

been entitled to protection under the

CMRS Third Report & Order, 59 FR

59,945 (Nov. 21, 1994). Therefore, this

Second Report and Order provides that

all MTA licensees provide complete cochannel protection to all sites for which

applications were filed on or before

August 9, 1994. Secondary sites based

on applications filed after August 9,

1994, however, will not be afforded

such protection.

13. Loading Requirements. In the

CMRS Third Report & Order, 59 FR

59,945 (Nov. 21, 1994), the Commission

determined that loading requirements,

which were adopted in the SMR

services to protect against spectrum

warehousing, are not necessary for

MTA-based licensing of 900 MHz SMR,

provided that licensees are subject to

strict construction and coverage

requirements. However, the

Commission retained the loading/

automatic cancellation requirement for

900 MHz SMR incumbent licensees. See

47 C.F.R. § 90.631(i). Because the 900

MHz SMR market is less mature than

the 800 MHz SMR market, and because

incumbent licensees are not required to

achieve significant coverage of their

service areas, the Commission found

that loading requirements continue to

serve a public interest purpose in the

former.

14. Based on the unique history and

nature of the 900 MHz service as it has

developed to date, the Commission

affirms its decision in the CMRS Third

Report & Order to retain loading

requirements for incumbent 900 MHz

SMR licensees. The 900 MHz service is

not a mature service, both because it

was licensed more recently than 800

MHz and because Phase I licensing has

been confined to limited service areas.

Based on these factors, the Commission

has already granted special relief to 900

MHz licensees by providing them an

additional two years to load their

systems, on top of the five years

originally granted. Report & Order, PR

Docket No. 92–17, 57 FR 37731 (August

20, 1992). Having granted this relief,

eliminating loading requirements for

incumbent licensees who have failed to

fully load their systems would not be in

the public interest. Incumbents may

overcome this obstacle by obtaining an

MTA license, which exempts them from

all previously applicable loading

requirements. Moreover our policy of

retaining loading requirements for

incumbents will prevent the

warehousing of spectrum, as once the

Commission takes back channels from

an incumbent who has not met loading

requirements, the spectrum covered by

the incumbent’s authorization will

automatically revert to the MTA

licensee who has obtained the

contingent rights to that spectrum. See,

e.g., Further Notice of Proposed Rule

Making, PR Docket No. 83–144, 59 FR

60111 (November 22, 1994).

15. Emission Masks. The Commission

generally subjects mobile radio services

to emission mask rules to restrict

transmitter emissions on spectrum

adjacent to the licensee’s adjacent

channel. In the CMRS Third Report &

Order, 59 FR 59,945 (November 21,

1994), the Commission affirmed that the

out-of-band emission rules should apply

only where emissions have the potential

to affect other licensees’ operations.

Consistent with the CMRS Third Report

& Order, 59 FR 59,945 (Nov. 21, 1994),

the Commission will only apply

emission mask rules to ‘‘outer’’ MTA

channels in each block (i.e., channels on

the outer edges of an MTA licensee’s

channel block that may present adjacent

channel interference to other MTA

licensees) and to ‘‘interior’’ MTA

channels (i.e. channels inside of the

MTA licensee’s channel block

assignment that are adjacent only to the

licensee’s channels and not to other

licensees) where there are incumbent

SMR licensees who will be affected by

the MTA licensee’s operations.

16. These channels alone have the

potential to affect operations outside of

the MTA licensee’s authorized

bandwidth, and that the emission mask

established in this Order will

adequately protect other MTA licensees.

Specifically, for wide-area licensees in

the 900 MHz SMR band on any

frequency outside the MTA licensee’s

frequency block, the peak power of any

emission shall be attenuated below the

transmitter power (P) by at least 43 plus

10 log10(P) decibels or 80 decibels,

whichever is the lesser attenuation. As

an exception to this requirement, if a

single entity aggregates adjacent channel

blocks, it will not be required to mask

its emissions at the band edge of each

ten-channel block.

17. Mexican/Canadian Border Areas.

In the CMRS Third Report & Order, 59

FR 59,945 (Nov. 21, 1994), the

Commission noted that 900 MHz

channel availability is limited in the

Mexican and Canadian border areas and

that limitations on ERP and antenna

height have been placed on a number of

the channels. See 47 C.F.R.

§§ 90.619(b)(2), 90.619(d).

Consequently, some channels may not

be available to MTA licensees operating

in border areas, and restrictions on ERP

or antenna height will make them less

attractive for MTA licensees. The

creation of different channel allocations

in border areas is administratively

unworkable. Because applicants can

assess the impact of border

requirements in their valuation of these

blocks for competitive bidding

purposes, the Commission will use the

same allocation of MTA channel blocks

in border areas as in non-border areas.

Therefore, use of channels in MTAs that

encompass border areas will be subject

to the relevant rules regarding

international assignments and

coordination of such channels.

18. Discontinuance of Operation.

Section 90.631(f) of the Commission’s

rules, 47 CFR § 90.631(f), provides that

SMR licenses cancel automatically if a

licensee discontinues station operations

for more than 60 consecutive days,

unless the Commission authorizes

additional time for station operations to

remain discontinued. If additional time

is not authorized, the license cancels

automatically unless the station resumes

operations within five days after the

licensee receives the Commission’s

letter declining to authorize additional

time. The Omnibus Budget

Reconciliation Act of 1993, however,

requires the Commission to modify its

rules, to the extent ‘‘necessary and

practical,’’ to ensure that substantially

similar services are subject to

‘‘comparable technical requirements.’’

47 U.S.C. § 332(d)(3). Because the

Commission concluded in the CMRS

Third Report & Order, 59 FR 59,945

(Nov. 21, 1994), that 900 MHz SMR

services compete or have the potential

to compete with existing wide-area

CMRS service providers, the rules

governing MTA licensees must be

substantially similar to the rules

governing cellular and PCS providers.

Therefore, the Commission modifies

Section 90.631(f) to include provisions

comparable to those contained in
21990 Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Rules and Regulations

Section 22.317 for cellular operations.

This will permit licensees to

discontinue operations for 90

continuous days and removes any

provisions for licensees to request an

additional extension of this period.

B. Miscellaneous Matters

19. Spectrum Cap and Attribution. An

entity may hold up to 45 MHz of

spectrum in the three radio services

(broadband PCS, cellular, and SMR) in

any geographic area. CMRS Third

Report & Order, 59 FR 59,945 (Nov. 21,

1994). The Commission will also apply

a 20 percent cross-ownership attribution

rule for purposes of the spectrum

aggregation limit. For example, an entity

with 20 percent or greater ownership of

a 900 MHz SMR license who has 40

MHz of broadband PCS spectrum in a

geographic market would reach the

spectrum cap with 5 MHz of SMR

spectrum in an MTA within that

geographic market. Where cellular,

broadband PCS and SMR licensees are

held indirectly through intervening

corporate entities, attribution will be

determined through a multiplier.

Memorandum Opinion & Order, GEN

Docket No. 90–314, 60 FR 13915 (March

15, 1995). Finally, 900 MHz SMR

channels count toward the 10 percent

population overlap threshold adopted in

the CMRS Third Report & Order, 59 FR

59,945 (Nov. 21, 1994). Thus, a 900

MHz SMR provider’s spectrum counts

toward the spectrum cap if the carrier is

licensed to serve ten percent or more of

the population of the MTA.

20. Grandfathering—Regulatory

Classification. In the CMRS Second

Report & Order, 59 FR 59,945 (Nov. 21,

1994), the Commission stated that SMR

licensees are classified as CMRS if they

offer interconnected service, and are

otherwise classified as PMRS. All 900

MHz MTA licensees presumptively will

be classified as CMRS providers. An

MTA licensee, however, who was an

incumbent in the 900 MHz service

before August 10, 1993, is not subject to

CMRS regulation until August 10, 1996.

47 U.S.C. § 332(c)(2)(B)).

21. Foreign Ownership Waivers. The

Budget Act amendments to the

Communications Act permit the

Commission to waive the application of

Section 310(b) to any foreign ownership

that lawfully existed before May 24,

1993, of any provider of a private land

mobile service that will be treated as a

common carrier, as a result of the

Budget Act amendments, on the

condition that the extent of foreign

ownership not increase above the preMay 24, 1993, level, and that no

subsequent transfer of ownership is

made to anyone in violation of Section

310(b). 47 U.S.C. § 332(b)(6). The

Commission’s decision to treat

incumbent licensees as new applicants

raise the question as to whether a

waiver filed by an incumbent licensee

will cover the MTA license, in the event

that the incumbent wins the MTA

license. The Commission will

grandfather any timely filed waiver

petitions with respect to the MTA

license. Although the MTA license is

considered a ‘‘new’’ license, the

provider’s existing facilities will be

entirely subsumed in the new license.

Thus, the Commission believes it is

unnecessary to require an additional

filing by an incumbent who wins the

MTA license.

III. Procedural Matters

22. Final Regulatory Flexibility

Analysis. Pursuant to the Regulatory

Flexibility Act of 1980, an Initial

Regulatory Flexibility Analysis (IRFA)

was incorporated in the Notice of

Proposed Rule Making in GN Docket

No. 93–252. Written comments on the

IRFA were requested. The Commission’s

final analysis is as follows:

A. Need for and purpose of the action.

This rulemaking proceeding was

initiated to implement Sections 332 and

3(n), respectively, of the

Communications Act, as amended. The

rules adopted herein will carry out

Congress’s intent to establish a

consistent regulatory framework for all

commercial mobile radio service

(CMRS).

B. Issues raised in response to the

IRFA. No comments were submitted in

response to the IRFA in GN Docket No.

93–252.

C. Significant alternatives considered

and rejected. All significant alternatives

have been addressed in the Second

Report & Order, and the CMRS Third

Report & Order, 59 FR 59,945 (Nov. 21,

1994).

23. Ordering Clauses. Accordingly, IT

IS ORDERED, That the petitions for

reconsideration ARE GRANTED to the

extent described above and DENIED in

all other respects.

24. It is further ordered that Part 90

of the Commission’s rules, 47 C.F.R.

Part 90, IS AMENDED, as indicated

below. It is ordered that the rule

changes herein will become effective 30

days after publication in the Federal

Register.

List of Subjects in 47 CFR Part 90

Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Amendatory Text

Part 90 of Chapter I of Title 47 of the

Code of Federal Regulations is amended

as follows:

PART 90—PRIVATE LAND MOBILE

RADIO SERVICES

1. The authority citation for Part 90 is

revised to read as follows:

Authority: 47 U.S.C. 154, 303, 309 and 332.

2. Section 90.7 is amended by adding

the definition for ‘‘MTA license’’

following the definition for ‘‘Mobile

station’’ to read as follows:

§ 90.7 Definitions.

* * * * *

MTA-based license or MTA license. A

license authorizing the right to use a

specified block of SMR spectrum within

one of the 51 Major Trading Areas

(‘‘MTAs’’), as embodied in Rand

McNally’s Trading Area System MTA

Diskette and geographically represented

in the map contained in Rand McNally’s

Commercial Atlas & Marketing Guide

(the ‘‘MTA Map.’’) The MTA Listings,

the MTA Map and the Rand McNally/

AMTA license agreement are available

for public inspection at the Wireless

Telecommunications Bureau’s public

reference room, Room 628, 1919 M

Street NW., Washington, DC 20554.

* * * * *

3. Section 90.617 is amended by

revising paragraph (d) introductory text,

to read as follows:

§ 90.617 Frequencies in the 809.750–824/

854.750–869 MHz, and 896–901/935–940

MHz bands available for trunked or

conventional system use in non-border

areas.

* * * * *

(d) The channels listed in Tables 4A

and 4B are available only to eligibles in

the SMR category, which consists of

Specialized Mobile Radio (SMR)

stations and eligible end users. The

frequencies listed in Table 4B are

available to SMR eligibles desiring to be

authorized on MTA service areas in

accordance with Section 90.661. SMR

licensees licensed on the channels listed

in Table 4B on or before August 9, 1994

may continue to utilize these

frequencies within their existing service

areas, as provided in Section 90.661.

This paragraph deals with the

assignment of frequencies only in areas

farther than 110 km (68.4 miles) from

the U.S./Mexico border and farther than

140 km (87 miles) from the U.S./Canada

border. See § 90.619 for the assignment
Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Rules and Regulations 21991

of SMR frequencies in these border

areas. For stations located within 113

km (70 miles) of Chicago, channels 401–

600 will be assigned in groups as

outlined in Table 4C.

* * * * *

4. Section 90.631 is amended by

revising paragraphs (f) and (i) to read as

follows:

§ 90.631 Trunked systems loading,

construction and authorization

requirements.

* * * * *

(f) If a station is not placed in

permanent operation, in accordance

with the technical parameters of the

station authorization, within one year,

except as provided in § 90.629, its

license cancels automatically and must

be returned to the Commission. For

purposes of this section, a base station

is not considered to be placed in

operation unless at least two associated

mobile stations, or one control station

and one mobile station, are also placed

in operation. An SMR licensee with

facilities that have discontinued

operations for 90 continuous days is

presumed to have permanently

discontinued operations, unless the

licensee notifies the FCC otherwise

prior to the end of the 90 day period and

provides a date on which operation will

resume, which date must not be in

excess of 30 additional days.

* * * * *

(i) For SMRS category trunked

systems licensed in the 896–901/935–

940 MHz band (other than MTAlicensed systems), if at the end of the

initial five-year license term the licensee

of such a trunked system has not

satisfied the loading requirements of

paragraph (b) of this section, the

licensee requesting renewal of its

license will be granted a renewal for

only a two-year period. Regardless of

the date of grant of the two-year

renewal, the licensee will be required to

comply fully with the minimum

requirements set forth in paragraph (b)

of this section at the end of the two-year

renewal term. As an exception to this

requirement, if the licensee obtains the

MTA license covering its assigned

spectrum in accordance with Sections

90.661 through 90.671, these loading

requirements will no longer be

applicable and the coverage

requirements of Section 90.665 will

govern.

5. Subpart S is amended by adding a

new heading following § 90.659 to read

as follows:

Policies Governing the Licensing and

Use of MTA-Based SMR Systems in the

896–901/935–940 MHZ Band

6. A new § 90.661 is added to Subpart

S to read as follows:

§ 90.661 MTA-based SMR service areas.

MTA licenses for SMR spectrum

blocks in the 896–901/935–940 MHz

band listed in Table 4B of Section

90.617(d) are available in 51 Major

Trading Areas (MTAs) as defined in

Section 90.7. Within these MTAs,

licenses will be authorized in ten

channel blocks as specified in Table 4B

of Section 90.617(d) through the

competitive bidding procedures

described in Subpart U of this Part.

7. A new § 90.663 is added to Subpart

S to read as follows:

§ 90.663 MTA-based SMR system

operations.

(a) MTA-based licensees authorized in

the 896–901/935–940 MHz band

pursuant to Section 90.661 may

construct and operate base stations

using any frequency identified in their

spectrum block anywhere within their

authorized MTA, provided that:

(1) The MTA licensee affords

protection, in accordance with Section

90.621(b), to all sites for which

applications were filed on or prior to

August 9, 1994.

(2) The MTA licensee complies with

any rules and international agreements

that restrict use of frequencies identified

in their spectrum block, including the

provisions of Section 90.619 relating to

U.S./Canadian and U.S./Mexican border

areas.

(3) The MTA licensee limits its field

strength at any location on the border of

the MTA service area in accordance

with Section 90.671 and masks its

emissions in accordance with Section

90.669.

(b) In the event that the authorization

for a previously authorized co-channel

station within the MTA licensee’s

authorized spectrum block is terminated

or revoked, the MTA licensee’s cochannel obligations to such station will

cease upon deletion of the facility from

the Commission’s licensing record. The

MTA licensee then will be able to

construct and operate base stations

using such frequency.

8. A new § 90.665 is added to Subpart

S to read as follows:

§ 90.665 Authorization, construction and

implementation of MTA licenses.

(a) MTA licenses in the 896–901/935–

940 MHz band will be issued for a term

not to exceed ten years.

(b) MTA licensees in the 896–901/

935–940 MHz band will be permitted

five years to construct their stations.

This five-year period will commence

with the issuance of the MTA-wide

authorization and will apply to all of the

licensee’s stations within the MTA

spectrum block, including any stations

that may have been subject to an earlier

construction deadline arising from a

pre-existing authorization.

(c) MTA licensees in the 896–901/

935–940 MHz band must, within three

years, construct and place into

operation a sufficient number of base

stations to provide coverage to at least

one-third of the population of the MTA.

Further, each MTA licensee must

provide coverage to at least two-thirds

of the population of the MTA within

five years or, alternatively, submit a

showing to the Commission

demonstrating that they are providing

substantial service.

(d) MTA licensees who fail to meet

the coverage requirements imposed at

either the third or fifth years of their

construction period, or to make a

convincing showing of substantial

service, will forfeit their entire MTA

license.

9. A new § 90.667 is added to Subpart

S to read as follows:

§ 90.667 Grandfathering provisions for

incumbent licensees.

(a) These provisions apply to all 900

MHz SMR licensees who obtained

licenses or filed applications on or

before August 9, 1994 (‘‘incumbent

licensees’’). An incumbent licensee’s

service area shall be defined by its

originally-licensed 40 dBu signal

strength contour. Incumbent licensees

are permitted to add new transmit sites

in this existing service area without

prior notification to the Commission so

long as their original 40 dBu signal

strength contour is not expanded.

Incumbents will be required to notify

the Commission of any changes in

technical parameters or additional

stations constructed with a minor

modification application. These minor

modification applications will not be

subject to public notice and petition to

deny requirements or mutually

exclusive applications.

(b) Applications in the 900 MHz SMR

service for secondary sites filed after

August 9, 1994 shall be authorized on

a secondary, non-interference basis to

MTA licensee operations. No secondary

sites shall be granted on this basis in an

MTA once the MTA licensee has been

selected.

10. A new § 90.669 is added to

Subpart S to read as follows:
21992 Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Rules and Regulations

§ 90.669 Emission limits.

(a) On any frequency in an MTA

licensee’s spectrum block that is

adjacent to a non-MTA frequency, the

power of any emission shall be

attenuated below the transmitter power

(P) by at least 43 plus 10 log10(P)

decibels or 80 decibels, whichever is the

lesser attenuation.

Note: The measurements of emission

power can be expressed in peak or average

values, provided they are expressed in the

same parameters as the transmitter power.

(b) When an emission outside of the

authorized bandwidth causes harmful

interference, the Commission may, at its

discretion, require greater attenuation

than specified in this section.

11. A new § 90.671 is added to

Subpart S to read as follows:

§ 90.671 Field strength limits.

The predicted or measured field

strength at any location on the border of

the MTA service area for MTA licensees

shall not exceed 40 dBuV/m unless all

bordering MTA licensees agree to a

higher field strength. MTA licensees are

also required to coordinate their

frequency usage with so-channel

adjacent MTA licensees and all other

affected parties. To the extent that a

single entity obtains licenses for

adjacent MTAs on the same channel

block, it will not be required to

coordinate its operations in this manner.

In the event that this standard conflicts

with the MTA licensee’s obligation to

provide co-channel protection to

incumbent licensees under Section

90.621(b), the requirements of Section

90.621(b) shall prevail.

[FR Doc. 95–11009 Filed 5–2–95; 12:52 pm]

BILLING CODE 6712–01–M

DEPARTMENT OF DEFENSE

Defense Logistics Agency

48 CFR Part 5452

DLA Acquisition Regulation; Fuel

Allocation Procedures

AGENCY: Defense Logistics Agency, DoD.

ACTION: Final rule.

SUMMARY: The Defense Logistics Agency

establishes a new 48 CFR Chapter 54 to

contain Defense Logistics Agency

acquisition regulations. New part 5452

is added to supplement Federal

Acquisition Regulation 49.504(a)(1) and

its requirement to use FAR Default

clause 52.249–8. The Defense Fuel

Supply Center (DFSC) proposed three

nonstandard clauses for bulk, bunkers,

into-plane, and posts, camps, and

stations petroleum solicitations and

contracts concerning fuel allocation

procedures. The three clauses have been

incorporated into one clause for use by

DFSC. This allocation clause permits

DFSC contractors to supply less than the

full amount of fuel contracted by the

government, without being terminated

for default, during periods of

exceptional fuel shortages, provided

that the shortage is beyond the control

and without the fault or negligence of

the contractor.

EFFECTIVE DATE: May 4, 1995.

FOR FURTHER INFORMATION CONTACT: Ms.

Melody Reardon, (703) 274–6431.

SUPPLEMENTARY INFORMATION:

A. Background

On April 28, 1994, DFSC published a

proposed rule in the Federal Register to

incorporate three nonstandard clauses

into the DLAR. Public comments were

requested, received, addressed, and

resolved by DFSC. As a result, the three

nonstandard clauses were consolidated

into one clause by DFSC, to be used in

domestic and overseas petroleum

solicitations and contracts. DFSC has

historically utilized deviations to FAR

termination for default clauses in order

to provide for contingencies in the case

of fuel allocations by contractors. These

deviations have been approved on an

annual basis since 1974. DFSC

incorporates the nonstandard fuel

allocation clause in DLAR in order to

eliminate the need for annual review

and approval. The clause is necessary to

protect potential contractors from

default proceedings and ensure the

continuance of a competitive

procurement environment for

government petroleum requirements.

Allocation of fuel to customers on a pro

rata basis during periods of extreme

shortage is a standard practice in the

petroleum industry.

B. Regulatory Flexibility Act

The final clause is not expected to

have significant economic impact on a

substantial number of small entities

within the meaning of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq.

since the previous clauses have been

utilized for many years by Defense Fuel

Supply Center as deviations to FAR. An

initial regulatory flexibility analysis has,

therefore, not been performed.

C. Paperwork Reduction Act

The final rule does not impose any

reporting or record keeping

requirements which require the

approval of OMB under 44 U.S.C. 3501,

et seq.

List of Subjects in 48 CFR Part 5452

Government procurement.

Accordingly, 48 CFR Chapter 54 is

added to read:

CHAPTER 54—DEFENSE LOGISTICS

AGENCY, DEPARTMENT OF DEFENSE

PART 5452—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

Subpart 5452.2—Texts of Provisions

and Clauses

5452.249 Allocation

Authority: 5 U.S.C. 301, 10 U.S.C. 2202, 48

CFR part 1, subpart 1.3 and 48 CFR part 201,

subpart 201.3

5452.249 Allocation

The Defense Fuel Supply Center is

authorized to use the following clause

in domestic and overseas petroleum

solicitations/contracts, including those

for Canal Zone and Puerto Rico, when

a fixed-price contract is contemplated

and the contract amount is expected to

exceed the small purchase limitation.

Allocation (DFSC 1995) (Deviation) (9F01)

(a) Reduced Supplies.

If, for any cause beyond the control and

without the fault or negligence of the

Contractor, the total supply of crude oil and/

or refined petroleum product is reduced

below the level that would have otherwise

been available to the Contractor, the

Contractor allocates to its regular customers

its remaining available supplies of crude oil

or product, then the Contractor may also

allocate to the U.S. Government supplies to

be delivered under this contract, provided—

(1) Prompt notice of and evidence

substantiating the necessity to allocate and

describing the allocation rate for all the

Contractor’s customers are submitted to the

Contracting Officer;

(2) Allocation among the Contractor’s

regular customers is made on a fair and

reasonable basis (except where allocation on

a different basis is required by a

governmental authority, agency or

instrumentality); and

(3) Reduction of the quantity of product

due the Government under this contract shall

not exceed the pro rata amount by which the

Contractor reduces delivery to its other

contractual customers.

(b) Additional Supplies.

If, after the event causing the shortage of

crude oil and/or refined petroleum product

as described in (a) above, additional supply

becomes available to the Contractor, the

Contracting Officer may choose any one of

the following three possible courses of

action:

(1) Accept an updated pro rata reduction

as outlined in (a);

(2) Determine that continuance of the

contract with the quantities as originally

stated in the Schedule is in the best interests

of the Government; or

(3) Terminate the contract as permitted in

(d) below.