Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations 29911

Non-radial Field Power Cables with

Extruded Solid Insulation for Rated

Voltages 1 kV and 3 kV, Second edition,

1995–01—111.60–1, 111.60–3

* * * * *

Underwriters Laboratories, Inc. (UL)

12 Laboratory Drive, Research Triangle

Park, NC 27709–3995.

* * * * *

UL 1309, Standard for Marine

Shipboard Cable, First edition, July 14,

1995—111.60–1, 111.60–3

* * * * *

PART 111—ELECTRIC SYSTEMS—

GENERAL REQUIREMENTS

3. The authority citation for part 111

continues to read as follows:

Authority: 46 U.S.C. 3306, 3703; 49 CFR

1.46.

4. In § 111.60–1, revise paragraphs (a)

and (b) and the introductory text of

paragraph (c) to read as follows:

§ 111.60–1 Cable construction and testing.

(a) Each marine shipboard cable must

meet all of the construction and

identification requirements of either

IEEE Std 45, IEC 92–3, IEC 92–350, IEC

92–353, UL 1309, MIL–C–24640A, or

MIL–C–24643A (incorporated by

reference, see § 110.10–1 of this

chapter), and the respective

flammability tests contained in them

and be of a copper stranded type.

Note to Paragraph (a): MIL–C–915 cable is

acceptable only for repairs and replacements

in kind. MIL–C–915 cable is no longer

acceptable for alterations, modifications,

conversions, or new construction. (See

§ 110.01–3 of this chapter).

(b) Each cable constructed to IEC 92–

3 or IEC 92–353 must meet the

flammability requirements of IEC 332–3,

Category A.

(c) Electrical cable that has a

polyvinyl chloride insulation with a

nylon jacket (Type T/N) must meet UL

1309 or must meet the requirements for

polyvinyl chloride insulated cable in

section 18 of IEEE Std 45. If meeting the

requirements for polyvinyl chloride

insulated cable in IEEE Std 45, section

18, the following exceptions apply—

* * * * *

5. In § 111.60–3, revise paragraphs (a)

and (c) to read as follows:

§ 111.60–3 Cable application.

(a) Cable constructed according to

IEEE Std 45 must meet the cable

application provisions of section 19 of

IEEE Std 45. Cable constructed

according to IEC 92–3, IEC 92–353, or

UL 1309 must meet the provisions of

section 19 of IEEE Std 45, except 19.6.1,

19.6.4, and 19.8. Cable constructed

according to IEC 92–3 and IEC 92–353

must comply with the ampacity values

of IEC 92–352, Table 1.

* * * * *

(c) Cable constructed according to

IEEE Std 45 must be derated according

to Table A6, Note 6, of IEEE Std 45.

Cable constructed according to IEC 92–

3 or IEC 92–353 must be derated

according to IEC 92–352, paragraph 8.

MIL–C–24640A and MIL–C–24643A

cable must be derated according to MIL–

HDBK–299(SH).

Dated: March 30, 2001.

R.C. North,

Rear Admiral, U.S. Coast Guard, Assistant

Commandant for Marine Safety and

Environmental Protection.

[FR Doc. 01–13706 Filed 6–1–01; 8:45 am]

BILLING CODE 4910–15–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 24

[GEN Docket No. 90–314, ET Docket No.

92–100 and PP Docket No. 93–253; FCC

01–135]

Amendment of the Commission’s

Rules To Establish New Personal

Communications Services,

Narrowband PCS; Implementation of

Section 309(j) of the Communications

Act—-Competitive Bidding,

Narrowband PCS

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: In this document, the Federal

Communications Commissions (FCC)

modifies existing narrowband Personal

Communications Services (PCS) rules in

three ways. With this document, the

FCC channelizes and licenses the one

megahertz of narrowband PCS spectrum

heretofore held in reserve, rechannelizes 712.5 kilohertz of

previously channelized spectrum for

which licenses have not been auctioned,

and adopts a narrowband PCS channel

band plan that includes both

nationwide and Major Trading Areas

(MTA) licenses. The document also

addresses the petitions for

reconsideration filed responding to the

Narrowband PCS Second Report and

Order/Second Further Notice. These

actions resolve remaining issues to

prepare for future license auctions, of

the remaining narrowband PCS

spectrum.

DATES: Effective August 3, 2001.

FOR FURTHER INFORMATION CONTACT:

Wilbert E. Nixon, Jr., Wireless

Telecommunications Bureau, at (202)

418–7240.

SUPPLEMENTARY INFORMATION: This is a

summary of the Federal

Communications Commission’s Third

Report and Order and Order On

Reconsideration, FCC 01–135, in GEN

Docket No. 90–314, ET Docket No. 92–

100 and PP Docket No. 93–253, adopted

on April 19, 2001 and released on May

3, 2001. The full text of this Third

Report and Order and Order On

Reconsideration is available for

inspection and copying during normal

business hours in the FCC Reference

Center, Room CY–A257, 445 12th Street,

SW., Washington, DC 20554. The

complete text may be purchased from

the Commission’s copy contractor,

International Transcription Service,

Inc., 1231 20th Street, NW.,

Washington, DC 20037. The full text

may also be downloaded at:

www.fcc.gov. Alternative formats are

available to persons with disabilities by

contacting Martha Contee at (202) 418–

0260 or TTY (202) 418–2555.

Synopsis of Third Report and Order on

Reconsideration

I. Introduction

1. In this order, we adopt further

modifications to our existing

narrowband Personal Communications

Services (PCS) rules, in three major

respects. First, we will channelize and

license the one megahertz of

narrowband PCS spectrum that has

heretofore been held in reserve. Second,

we will re-channelize 712.5 kilohertz of

previously channelized spectrum for

which licenses have not been auctioned.

Third, we adopt a narrowband PCS

channel band plan that includes both

nationwide and Major Trading Areas

(MTA) licenses. In adopting these new

rules, we also address the petitions for

reconsideration filed in response to the

Narrowband PCS Second R&O/Second

Further Notice, (65 FR 35843–35901,

June 6, 2000). The action we take today

resolves the remaining issues

concerning narrowband PCS in

preparation for auctioning licenses for

the remaining narrowband PCS

spectrum in the near future

II. Discussion

2. In this order, we address in turn (1)

the licensing of the reserve spectrum, (2)

the band plan for the reserve and other

remaining spectrum for which licenses

have not been auctioned, including

channel size and services area size for

all licenses and (3) eligibility

restrictions for response channels and

29912 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations

the PSMI petition. Because there is

some overlap of issues raised in the

petitions for reconsideration and the

responses to the Second Further Notice

of Proposed Rulemaking, we will

dispose of each petition as we address

the pertinent issue. For the reasons

explained below, we grant the PCIA

petition in part, deny the PSMI petition,

and adopt the proposals of the

Narrowband PCS Second R&O/Second

Further Notice, (65 FR 35875–35902,

June 6, 2000) with consideration given

to both the PCIA and WebLink band

plan proposals.

A. Licensing of the Reserve Spectrum

3. In the Narrowband PCS R&O/

Further Notice, the Commission

tentatively concluded that the one

megahertz of spectrum that it had

reserved in the PCS First Report and

Order should be channelized and

licensed. The Commission believed that

licensing this spectrum would serve the

public interest by facilitating

competition, opening the market to new

entrants, and allowing existing

narrowband PCS licensees to expand

their systems through access to

additional spectrum.

4. Despite opposition found in the

earlier record, the Commission

tentatively concluded, in the

Narrowband PCS Second R&O/Second

Further Notice, that it was in the public

interest to proceed with licensing the

one megahertz of narrowband PCS

spectrum that has been held in reserve.

The Commission believed that the

unencumbered spectrum should be

made available to those interested in

bringing new and innovative services to

the public, and that the Commission

should not limit service options by

limiting the spectrum available. In that

order, the Commission also tentatively

concluded that licenses for the reserve

spectrum should be auctioned along

with licenses for all of the other

remaining narrowband PCS spectrum.

5. All commenters now support

licensing the reserve spectrum. We

agree that licensing the reserve

spectrum will help narrowband PCS

licensees remain competitive with other

CMRS providers and will also help

promote new and innovative services

and the opening of the market to new

entrants. Consequently, we will proceed

with the licensing of the reserve

spectrum.

B. Band Plan for the Reserve Spectrum

and Other Remaining Unauctioned

Spectrum

6. In the Narrowband PCS Second

R&O/Second Further Notice, the

Commission sought comment on how to

channelize the reserve spectrum and

whether to rechannelize the narrowband

PCS spectrum that had been

channelized previously but not yet

licensed. The Commission was

primarily concerned with whether to

create larger spectrum blocks for

potential bidders and service providers.

We received comments from a variety of

service providers, large and small. The

views of the overwhelming majority of

commenters on this issue are

represented by the PCIA band plan and

WebLink’s proposed modification of the

PCIA band plan.

1. Channel Size

7. PCIA proposes a ‘‘consensus’’ band

plan that channelizes the reserve

spectrum, and re-channelizes the other

remaining spectrum for which licenses

have not been auctioned. This available

spectrum includes nine frequencies

currently available for assignment on an

MTA basis (two 50 kHz/50 kHz paired

channels, five 50 kHz/12.5 kHz paired

channels, and two 50 kHz unpaired

channels), paging response channels to

be licensed on an MTA basis (eight 12.5

kHz unpaired channels), the spectrum

of five regional licenses that were

auctioned but subsequently cancelled

(Channel 13, a 50 kHz/50 kHz paired

channel), the spectrum of one

nationwide license that was auctioned

but subsequently cancelled (a 50 kHz

unpaired channel), and the one

megahertz of reserve spectrum that the

Commission had proposed to divide

into three channels (two 300 kHz

unpaired channels and one 400 kHz

unpaired channel.) Specifically, PCIA

urges the Commission to rechannelize

the remaining spectrum for which

licenses have not been auctioned into

larger blocks that could be aggregated or

disaggregated to suit the carrier’s needs.

Its band plan, which proposes a 50 kHz

bandwidth as the standard building

block, accommodates ReFLEX, a new

protocol created by Motorola to enable

two-way paging and messaging. The

PCIA band plan proposes MTA-based

licenses for one 12.5 kHz unpaired

channel and one 50 kHz/50 kHz paired

channel. It proposes nationwide or

regional licenses for six 50 kHz

unpaired channels, five 100 kHz

unpaired channels, one 100 kHz/50 kHz

paired channel, and four 150 kHz/50

kHz paired channels.

8. PCIA asserts that its band plan

provides incumbent licensees and

potential market entrants—both small

and large businesses alike—with

maximum flexibility to construct

optimal licensed areas. Further, PCIA

states that for those entities that require

paired spectrum, there are several

paired licenses of varying sizes. PCIA

argues that there are a number of

unpaired licenses that can be

accumulated by auction participants

who might desire unpaired spectrum

and that the unpaired spectrum can also

be aggregated during an auction to

permit pairing by those applicants who

desire such pairing. PCIA argues that

the use of channel blocks larger than 50

kHz would limit participation by

smaller players that cannot rely on large

spectrum holders to partition or

disaggregate their spectrum. Companies

that require larger blocks of spectrum

may aggregate 50 kHz blocks to suit

their needs. PCIA claims that its

proposed band plan would allow for a

single auction of licenses for the reserve

and other remaining spectrum but that

this might not be true of a different plan.

9. We agree with PCIA that its

channelization plan will serve the

public interest in that new market

entrants and existing licensees may

utilize the additional spectrum offered

in the most efficient manner possible.

PCIA’s proposed bandplan is consistent

with our original bandplan in that both

plans rely on a 50 kHz bandwidth as the

standard building block. PCIA’s

consensus proposal, however, includes

wider bandwidth channels of 100 kHz

up to 300 kHz compared with the

current rules that vary from 12.5 kHz up

to 100 kHz. Most commenters support

the PCIA band plan or some variation

and there is no significant industry

dispute regarding the channel size and

pairings aspects of the PCIA band plan.

We agree with PCIA and Motorola that

the band plan using the 50 kHz REFLEX

technology represents a reasonable

compromise between large and small

carriers because (a) the channel size is

consistent with base station and end

user equipment already in use today; (b)

it takes advantage of the current large

installed base of equipment and

infrastructure; (c) it allows incumbents

to utilize existing advanced messaging

technologies or develop new ones; and

(d) it allows new entrants and/or small

businesses who don’t have research and

development capital or market share/

power to quickly get a competitive

system up and running. We conclude

that the PCIA channelization plan

represents a reasonable compromise

among its industry members that

optimizes existing technology and

telecommunications infrastructure to

enhance the competitiveness and

efficiency of current narrowband PCS

communications.

2. Service Area Size

10. In the Narrowband PCS Second

R&O/Second Further Notice, the

Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations 29913

Commission eliminated Basic Trading

Areas (BTAs) as a geographic licensing

unit for narrowband PCS. The

Commission found BTAs to be too small

to provide viable narrowband service.

Instead, the Commission adopted MTAs

as the appropriate service area size for

future licensing of narrowband PCS.

The Commission concluded that

narrowband PCS could be licensed

using MTAs without compromising the

goal of ensuring entry for small

businesses.

11. PCIA urges the Commission to

reconsider its decision to license all

remaining spectrum on the basis of

MTAs. PCIA proposes that the

Commission license the majority of the

remaining spectrum on a nationwide

basis, with the rest licensed based upon

regional and MTA service areas.

Although PCIA supported MTA-based

licensing in its comments filed in 1997,

it now contends that the paging/

messaging market has matured and

changed such that the ability to provide

coast-to-coast coverage is of paramount

importance to many, if not most,

licensees. PCIA argues that licensing of

all remaining spectrum on an MTA

basis will impede the ability of

narrowband PCS licensees to compete

with other CMRS providers, further that

the marketplace demands that wireless

Internet/data providers be capable of

providing nationwide service, and that

nationwide licenses would reduce the

cost of auction participation and would

minimize interference coordination

requirements.

12. WebLink opposes this aspect of

PCIA’s petition, arguing that the

Commission should license the

remaining spectrum on an MTA basis.

WebLink claims that MTA-based

licensing is superior to nationwide and

regional licensing because it can

promote viable, competitive

narrowband PCS businesses by serving

the needs of a wide range of carriers.

WebLink also claims that it and other

carriers have relied on the future

availability of licenses based on small,

manageable geographic areas, and that

granting the PCIA petition would thus

cause great harm to such carriers.

According to WebLink, on the issue of

service areas, the PCIA band plan does

not represent the consensus of the

paging industry and ‘‘merely represents

the views of the larger paging

companies and conglomerates that

voted for the plan.’’ WebLink argues

that the current Commission proposal to

implement an MTA-based licensing

scheme will promote viable,

competitive narrowband PCS businesses

by serving the needs of both large and

smaller carriers. WebLink also requests

that, if the Commission decides to create

additional regional or nationwide

licenses, it do so by using a small

portion of the one megahertz of reserve

narrowband PCS spectrum, instead of

revisiting its MTA licensing decision in

the Narrowband PCS Second R&O/

Second Further Notice.

13. Our primary concern in this

proceeding is to establish a channel

band plan that is likely to attract a wide

variety of service providers to

narrowband PCS spectrum so as to lead

to the rapid provision of services to the

public. In the Narrowband PCS Second

R&O/Second Further Notice, the

Commission noted that the record, at

that time, contained little support for,

and considerable opposition to, the

establishment of additional nationwide

licenses. Consequently, the Commission

concluded that MTA-based service

areas, coupled with the ability to

aggregate licenses, would offer licensees

substantial flexibility to provide widearea local service as well as service on

a larger scale. It is clear from the PCIA

petition, the WebLink opposition, and

the related comments filed by PCIA and

others that now, at least some form of

nationwide or regional licensing is

desirable or, at least, tolerable to all

parties, even apparently to WebLink.

Although the Commission’s initial

rationale for replacing BTAs with the

larger MTAs is still valid (i.e., that

MTAs represent a basic geographic

building block that can serve the needs

of small and large carriers alike,

especially coupled with the ability to

aggregate licenses), we are persuaded by

the comments of PCIA that some level

of licensing is warranted that includes

service areas larger than MTAs.

14. Further, we note the benefits to

the public of nationwide licenses.

Consumers of wireless services depend

upon the portability of their services

and many expect continuous coverage,

regardless of where they travel across

the country. Narrowband PCS providers

currently face competition from

nationwide, broadband wireless carriers

who are providing seamless, nationwide

service including short messaging. It

appears possible that many narrowband

PCS licensees will require similar

geographic coverage and scope in order

to be competitive in the wireless

marketplace. The question presented to

the Commission, therefore concerns the

proper balance of nationwide, regional,

and MTA licensing in the reserve and

other remaining spectrum. PCIA and a

majority of its members believe that

more nationwide licenses are desirable.

WebLink and possibly other smaller

carriers believe more MTA licenses are

necessary. We resolve this issue by

determining what combination of

national, regional, and MTA licenses

will ensure the rapid provision of

services to the public without

compromising the goal of ensuring entry

for small businesses.

3. Revised Band Plan

15. After careful consideration of all

pleadings in this proceeding, we have

developed a new channel band plan for

the narrowband PCS reserve spectrum

and the other remaining spectrum. The

new channel band plan includes

elements of the PCIA band plan, with its

emphasis on nationwide licensing, and

WebLink’s proposed modification, with

its emphasis on MTA licensing. We

conclude that this revised plan strikes a

proper balance between competing

interests in a manner that will promote

competition and stimulate development

of new and innovative narrowband

services. We will channelize the

remaining narrowband PCS spectrum

and will auction licenses as described in

the table below and the chart in

Appendix A–C. This 1.8625 megahertz

of spectrum includes: the 1 megahertz of

reserve spectrum, 712.5 kilohertz of

previously channelized spectrum, 100

kilohertz from the cancellation of five

regional licenses, and 50 kilohertz from

the cancellation of a nationwide license.

29914 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations

Channel number Channel description Frequency bands

Total

spectrum

(kHz)

18 .............................................................. One 100 kHz unpaired channel ................ 940.65–940.75 MHz ................................. 100

19–20 ........................................................ Two 50 kHz paired channels .................... 901.3–901.35, 930.5–930.55 MHz ...........

901.9–901.95, 930.75–930.8 MHz ...........

200

21–22 ........................................................ Two 50 kHz/150 kHz paired channels ..... 901.5–901.55, 930–930.15 MHz ..............

901.6–901.65, 930.15–930.3 MHz ...........

400

23–25 ........................................................ Three 50 kHz/100 kHz paired channels ... 901.45–901.5, 940.55–940.65 MHz .........

901.55–901.6, 940.3–940.4 MHz .............

901.85–901.9, 940.45–940.55 MHz

450

Nationwide Subtotal ........................... 1,150

MTA CHANNELS

26–27 ........................................................ Two 50 kHz unpaired channels ................ 901.35–901.4 MHz ...................................

901.4–901.45 MHz ...................................

100

28 .............................................................. One 50 kHz unpaired channel .................. 940.4–940.45 MHz ................................... 50

29 .............................................................. One 50 kHz/50 kHz paired channel ......... 901.95–902.0, 930.8–930.85 MHz ........... 100

30 .............................................................. One 50 kHz/100 kHz paired channel ....... 901.65–901.7, 930.3–930.4 MHz ............. 150

31 .............................................................. One 50 kHz/150 kHz paired channel ....... 901.7–901.75, 930.85–931 MHz .............. 200

32 .............................................................. One 12.5 kHz/100 kHz paired channel .... 901.8375–901.85, 940.9–941 MHz .......... 112.5

MTA Subtotal ..................................... 712.5

Grand Total ................................. 1,862.5

16. We have decided not to create

additional regional narrowband PCS

licenses because of the demonstrated

demand for nationwide and MTA

licenses. PCIA’s plan is composed of

mostly nationwide licenses, and as we

described above, WebLink has

emphasized the importance of providing

a sufficient amount of spectrum to be

licensed on an MTA basis. Further, in

reviewing the results of the first auction

of narrowband PCS regional licenses,

we find that four entities purchased

groups of co-channel regional licenses,

effectively creating four additional

nationwide licenses. These aggregated

licenses comprised two-thirds of the

available regional licenses. In fact, only

two of the thirty available regional

licenses were purchased as single

licenses. By licensing the remaining

narrowband PCS spectrum on a

nationwide and MTA basis, we respond

to the industry’s demonstrated demand

for nationwide licenses and MTA

licenses. Furthermore, we provide the

flexibility for licensees to aggregate

MTA licenses to create regional or

national service areas with boundaries

of their choosing, as dictated by market

forces and consumer demand, rather

than set by the Commission.

17. We find our new channel band

plan strikes a balance for the

narrowband PCS band as a whole (i.e.,

including channels we’ve already

licensed). Through this approach we

achieve parity between the spectrum in

MTA licenses and the spectrum in

regional licenses (i.e., approximately

equal) and we create twice as many

nationwide licenses. This should result

in an approximate distribution of

narrowband PCS spectrum of 66%

nationwide, 17% regional, and 17%

MTA. With respect to the number of

licenses issued, the revised channel

band plan will yield 18 nationwide

(5%), 25 regional (6%), and 357 MTA

(89%) licenses. We believe that the

revised channel plan represents an

appropriate compromise for all

narrowband PCS carriers, large and

small, and fairly balances their interests

by offering a range of bidding

opportunities that allow them to pursue

local, regional, or nationwide strategies.

C. Eligibility Restrictions

18. In 1993, in order to provide an

opportunity for incumbent paging

licensees to upgrade their operations,

the Commission set aside 100 kHz (8

unpaired 12.5 kHz frequencies) of the 3

MHz allocated for narrowband PCS to

be used for paging response channels,

i.e., channels used in paired

communications with existing one-way

paging frequencies to provide mobile-tobase station communications. The

Commission’s intent in establishing

these channels was to provide a means

for one-way (single frequency) paging

licensees to obtain a second frequency

for the purpose of delivering signals

back from their customers’ mobile

devices. Prior to the Narrowband PCS

Second R&O/Second Further Notice, the

Commission’s rules limited eligibility

for acquiring narrowband PCS response

channels to existing paging licensees,

i.e., those licensed to operate

conventional one-way paging base

stations under Part 22 or Part 90.

19. In the Narrowband PCS Second

R&O/Second Further Notice, the

Commission lifted all eligibility

restrictions on applying for paging

response channels, finding that the rules

unnecessarily excluded other potential

users of the response channels. The

Commission concluded that lifting the

eligibility restrictions would encourage

entry of new narrowband PCS providers

by providing greater flexibility to new

licensees to use the channels in

conjunction with other spectrum to

provide new services.

20. PSMI urges the Commission to

reconsider its decision and reinstate the

paging eligibility restriction for the eight

12.5 kHz paging response channels.

PSMI argues that the Commission’s

action to eliminate the paging eligibility

restriction is contrary to the public

interest because: (1) elimination of the

paging response channel set-aside

creates an impermissible retroactive

effect, (2) lifting the restriction exceeded

the Commission’s statutory authority,

and (3) the public interest would be

served by retention of the eligibility

restriction.

21. We decline to reinstate the

eligibility restrictions that originally

applied to the paging response

channels. The narrowband PCS industry

has changed dramatically since the

Commission set aside these channels for

the exclusive use of the paging carriers.

Other narrowband PCS entities and

even broadband carriers have expressed

interest in using the response channels

Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations 29915

1 5 U.S.C. 603. Congress amended the RFA, id.

§ 601 et seq., by the Contract with America

Advancement Act of 1996, Pub. L. No. 104–121, 110

Stat. 847 (1996) (CWAAA). Title II of the CWAAA

is the Small Business Regulatory Enforcement

Fairness Act of 1996.

2Amendment of the Commission’s Rules to

Establish New Personal Communications Services,

Narrowband PCS, GEN Docket No. 90–314, ET

Docket No. 92–100, Implementation of Section

309(j) of the Communications Act—Competitive

Bidding, Narrowband PCS, PP Docket No. 93–253,

Second Report and Order and Second Further

Notice of Proposed Rulemaking, 15 FCC Rcd 10456

(2000) (Narrowband PCS Second R&O/Second

Further Notice).

3See 5 U.S.C. 604.

4 5 U.S.C. 632.

5Amendment of the Commission’s Rules to

Establish New Personal Communications Services,

Narrowband PCS, GEN Docket No. 90–314, ET

Docket No. 92–100, Implementation of Section

309(j) of the Communications Act—Competitive

Bidding, Narrowband PCS, PP Docket No. 93–253,

Second Report and Order and Second Further

Notice of Proposed Rulemaking, 15 FCC Rcd 10456

(2000) (Narrowband PCS Second R&O/Second

Further Notice).

to provide new and innovative services

for their own customers and for

traditional paging customers as well.

The Commission disagrees with PSMI’s

assertion that retaining the restriction

represents a retroactive effect

precluding paging carriers from ever

using the response channels. There is no

retroactive effect in the Commission

eliminating the eligibility restrictions

because it has not prevented PSMI or

any such similarly situated carrier from

acquiring the response channels to

expand their one-way systems. Nor has

the Commission affected the status of

any pending application to use those

response channels. The Commission is

entitled to change its eligibility criteria

in rulemaking proceedings as long as we

provide an adequate explanation for the

change. With regard to PSMI’s statutory

authority and public interest claims, we

conclude the Commission acted well

within its statutory authority when it

lifted the restrictions because it did so

to increase competition for the response

channels, not to enrich the Federal

treasury, as is alleged by PSMI. PSMI

incorrectly concludes that the

Commission’s sole motivation to award

licenses is to maximize revenue to the

Federal treasury. On the contrary, the

removal of the eligibility restrictions

will increase competition for the

response channels and thereby increase

the likelihood that licenses for these

channels will be awarded to those,

including paging licensees, that value

them most highly and consequently may

provide service to the public most

rapidly. Further, lifting the eligibility

restrictions will encourage entry of new

narrowband PCS providers by providing

greater flexibility to licensees to use

these channels, either on a stand-alone

basis or in conjunction with other

spectrum, to provide new services.

Final Regulatory Flexibility Analysis

(Third Report and Order)

22. As required by the Regulatory

Flexibility Act (RFA),1 an Initial

Regulatory Flexibility Analysis (IRFA)

was incorporated in Appendix D of the

Narrowband PCS Second R&O/Second

Further Notice in this proceeding.2 The

Commission sought written public

comment on the proposals in the

Second Further Notice, including

comment on the IRFA. As described

below, no commenter raised an issue

concerning the IRFA. The Commission’s

Final Regulatory Flexibility Analysis

(FRFA) in this Third Report and Order

conforms to the RFA.3

A. Need for and Purpose of This Action

23. This Third Report and Order

amends the Commission’s rules for

narrowband PCS frequencies. The

amendments adopted promote efficient

licensing of narrowband PCS and

enhance the service’s competitive

potential in the Commercial Mobile

Radio Service marketplace. The Third

Report and Order also channelizes the

reserve narrowband PCS spectrum and

re-channelizes the other remaining

unauctioned spectrum, thus offering

more spectrum to incumbent and new

market entrants so that they may

provide new and innovative services.

B. Summary of Significance of Issues

Raised by Public Comments in Response

to the IRFA

24. No party filed comments

responding to the IRFA.

C. Description and Estimate of the

Number of Small Entities to Which the

Rules Will Apply

25. Under the RFA, small entities may

include small organizations, small

businesses, and small governmental

jurisdictions, or entities. 5 U.S.C. 601(6).

The RFA directs agencies to provide a

description of and, where feasible, an

estimate of the number of small entities

that may be affected by the proposed

rules, if adopted. The RFA generally

defines the term ‘‘small entity’’ as

having the same meaning as the terms

‘‘small business,’’ ‘‘small organization,’’

and ‘‘small governmental jurisdiction.’’

5 U.S.C. 601(3). In addition, the term

‘‘small business’’ has the same meaning

as the term ‘‘small business concern’’

under the Small Business Act. A small

business concern is one that: (1) Is

independently owned and operated; (2)

is not dominant in its field of operation;

and (3) satisfies any additional criteria

established by the Small Business

Administration (SBA).4 Pursuant to 5

U.S.C. 601(3), the statutory definition of

a small business applies ‘‘unless an

agency after consultation with the Office

of Advocacy of the SBA, and after

opportunity for public comment,

establishes one or more definitions of

such term which are appropriate to the

activities of the agency and publishes

such definition(s) in the Federal

Register.’’

26. The rules adopted in the Third

Report and Order will affect small

businesses that hold or seek to acquire

narrowband Personal Communications

Services (PCS) licenses. These entities

include small businesses that obtain

nationwide, regional or Major Trading

Areas (MTA) geographic area licenses

through auction, assignment, or transfer

and small businesses that acquire

partitioned and/or disaggregated MTA,

regional, or nationwide geographic area

licenses.

27. In the future, the Commission will

auction 1.8625 megahertz of spectrum

which includes the 1 megahertz of

reserve spectrum, 712.5 kilohertz of

previously channelized (but

unauctioned) spectrum, 100 kilohertz

from the cancellation of five regional

licenses, and 50 kilohertz from the

cancellation of a nationwide license.

28. The new channel band plan

strikes a balance for the narrowband

PCS band as a whole (i.e., including

channels the Commission has already

auctioned). Through this approach the

Commission will achieve parity

between the spectrum in MTA licenses

and the spectrum in regional licenses

(i.e., approximately equal) and will

create twice as many nationwide

licenses. This should result in an

approximate distribution of narrowband

PCS spectrum of 66% nationwide, 17%

regional, and 17% MTA. With respect to

the number of licenses issued, the

revised channel band plan will yield 18

nationwide (5%), 25 regional (6%), and

357 MTA (89%) licenses.

29. To ensure meaningful

participation of small business entities

in the auctions, the Commission

adopted a two-tiered definition of small

businesses in the Narrowband PCS

Second R&O/Second Further Notice.5 A

small business is an entity that, together

with affiliates and controlling interests,

has average gross revenues for the three

preceding years of not more than $40

million. A very small business is an

entity that, together with affiliates and

controlling interests, has average gross

revenues for the three preceding years of

29916 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations

6 5 U.S.C. 603.

not more than $15 million. The SBA has

approved these definitions.

30. The Commission cannot predict

accurately the number of licenses that

will be awarded to small entities in

future auctions. However, 4 of the 16

winning bidders in the two previous

narrowband PCS auctions were small

businesses, as that term was defined

under the Commission’s rules. The

Commission assumes, for purposes of

the evaluations and conclusions in this

FRFA that a large portion of the

remaining narrowband PCS licenses

will be awarded to small entities. The

Commission also assumes that at least

some small businesses will acquire

narrowband PCS licenses by means of

the Commission’s partitioning and

disaggregation rules.

D. Summary of Projected Reporting,

Recordkeeping, and Other Compliance

Requirements

31. The rules adopted in the Third

Report and Order impose no additional

reporting and recordkeeping

requirements on large or small

businesses.

E. Steps Taken To Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

32. The RFA requires an agency to

describe any significant alternatives that

it has considered in reaching its

proposed approach, which may include

the following four alternatives: (1) the

establishment of differing compliance or

reporting requirements or timetables

that take into account the resources

available to small entities; (2) the

clarification, consolidation, or

simplification of compliance or

reporting requirements under the rule

for small entities; (3) the use of

performance, rather than design

standards; and (4) an exemption from

coverage of the rule, or any part thereof,

for small entities.6

33. The rules adopted in this Third

Report and Order are designed to

implement Congress’ goal of giving

small businesses, as well as other

entities, the opportunity to participate

in the provision of spectrum-based

services. The rules are also consistent

with the Communications Act’s

mandate to identify and eliminate

market entry barriers for entrepreneurs

and small businesses in the provision

and ownership of telecommunications

services. See generally 47 U.S.C. 257,

309(j).

34. The Commission finds that

establishing a reasonable balance of

MTA and nationwide licensing will

serve the needs of a wide range of

entities, including both large and small

service providers. The commenting

parties support this conclusion. The

Commission finds that consumers of

wireless services depend upon the

portability of their services and expect

continuous coverage, regardless of

where they travel across the country.

Narrowband PCS providers currently

compete with nationwide, broadband

wireless carriers who are providing

seamless, nationwide service. The

Commission concludes that all

narrowband PCS licensees, especially

small entities, must have similar

geographic coverage and scope in order

to be competitive in the wireless

marketplace.

35. The Commission considered and

adopted a compromise proposal

between PCIA and WebLink. PCIA and

a majority of its members believe that

more nationwide licenses are desirable.

WebLink and possibly other smaller

carriers believe more MTA licenses are

necessary. The question presented to the

Commission, therefore concerns the

proper balance of nationwide, regional,

and MTA licensing in the reserve and

remaining unauctioned spectrum. The

Commission resolves the issue by

determining a proper combination of

national, regional, and MTA licenses

overall that will ensure the rapid

provision of services to the public

without compromising the goal of

ensuring entry for small businesses.

F. Report to Congress

The Commission will send a copy of

this Third Report and Order and Order

on Reconsideration, 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 this Third Report and Order and

Order on Reconsideration, including

FRFA, to the Chief Counsel for

Advocacy of the Small Business

Administration. A copy of the Third

Report and Order and Order on

Reconsideration and FRFA (or

summaries thereof) will also be

published in the Federal Register. See

5 U.S.C. 604(b).

III. Conclusion

36. The action we take today resolves

the remaining issues in preparation for

a narrowband PCS spectrum auction.

We believe that the new channel band

plan we adopt today represents a proper

balance of the interests and concerns of

industry, both large and small carriers,

and will provide the public with the

greatest variety of service choices at

competitive rates.

IV. Procedural Matters

37. A Final Regulatory Flexibility

Analysis, pursuant to the Regulatory

Flexibility Act, 5 U.S.C. 604, is

contained in Paragraph 22.

V. Ordering Clauses

38. Authority for issuance of this

Third Report and Order and Order on

Reconsideration is contained in sections

4(i), 257, 303(r), and 309(j) of the

Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 257, 303(r),

and 309(j).

39. Part 24 of the Commission’s Rules

IS AMENDED as specified in Rule

Changes effective August 3, 2001.

40. The Commission’s Consumer

Information Bureau, Reference

Information Center, SHALL SEND a

copy of this Third Report and Order and

Order on Reconsideration, including the

Final Regulatory Flexibility Analysis, to

the Chief Counsel for Advocacy of the

Small Business Administration.

List of Subjects in 47 CFR Part 24

Administrative practice and

procedure, Communications common

carriers, Communications equipment,

Radio, Reporting and recordkeeping

requirements, Telecommunications.

Federal Communications Commission.

William F. Caton,

Deputy Secretary.

Appendixes to Preamble

Note: The following Appendixes A, B, and

C will not appear in the Code of Federal

Regulations.

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Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations 29917

29918 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations 29919

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29920 Federal Register / Vol. 66, No. 107 / Monday, June 4, 2001 / Rules and Regulations

Rule Changes

For the reasons discussed in the

preamble, the Federal Communication

Commisssion amends 47 CFR Part 24 as

follows:

PART 24—PERSONAL

COMMUNICATIONS SERVICES

1. The authority citation for part 24

continues to read as follows:

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

309 and 332.

2. Section 24.129 is revised to read as

follows:

§ 24.129 Frequencies.

The following frequencies are

available for narrowband PCS:

(a) Eighteen frequencies are available

for assignment on a nationwide basis as

follows:

(1) Seven 50 kHz channels paired

with 50 kHz channels:

Channel 1: 940.00–940.05 and 901.00–901.05

MHz;

Channel 2: 940.05–940.10 and 901.05–901.10

MHz;

Channel 3: 940.10–940.15 and 901.10–901.15

MHz;

Channel 4: 940.15–940.20 and 901.15–901.20

MHz;

Channel 5: 940.20–940.25 and 901.20–901.25

MHz;

Channel 19: 930.50–930.55 and 901.30–

901.35 MHz; and

Channel 20: 930.75–930.80 and 901.90–

901.95 MHz.

(2) Three 50 kHz channels paired with

12.5 kHz channels:

Channel 6: 930.40–930.45 and 901.7500–

901.7625 MHz;

Channel 7: 930.45–930.50 and 901.7625–

901.7750 MHz; and

Channel 8: 940.75–940.80 and 901.7750–

901.7875 MHz;

(3) Two 50 kHz unpaired channels:

Channel 9: RESERVED;

Channel 10: 940.80–940.85 MHz; and

Channel 11: 940.85–940.90 MHz.

(4) One 100 kHz unpaired channel:

Channel 18: 940.65–940.75 MHz.

(5) Two 150 kHz channels paired with

50 kHz channels:

Channel 21: 930.00–930.15 and 901.50–

901.55 MHz; and

Channel 22: 930.15–930.30 and 901.60–

901.65 MHz.

(6) Three 100 kHz channels paired

with 50 kHz channels:

Channel 23: 940.55–940.65 and 901.45–

901.50 MHz;

Channel 24: 940.30–940.40 and 901.55–

901.60 MHz; and

Channel 25: 940.45–940.55 and 901.85–

901.90 MHz.

(b) Five frequencies are available for

assignment on a regional basis as

follows:

(1) One 50 kHz channel paired with

50 kHz channel:

Channel 12: 940.25–940.30 and 901.25–

901.30 MHz.

Channel 13: RESERVED.

(2) Four 50 kHz channels paired with

12.5 kHz channels:

Channel 14: 930.55–930.60 and 901.7875–

901.8000 MHz;

Channel 15: 930.60–930.65 and 901.8000–

901.8125 MHz;

Channel 16: 930.65–930.70 and 901.8125–

901.8250 MHz; and

Channel 17: 930.70–930.75 and 901.8250–

901.8375 MHz.

(c) Seven frequencies are available for

assignment on an MTA basis as follows:

(1) Three 50 kHz unpaired channels:

Channel 26: 901.35–901.40 MHz;

Channel 27: 901.40–901.45 MHz; and

Channel 28: 940.40–940.45 MHz.

(2) One 50 kHz channel paired with

50 kHz channel:

Channel 29: 930.80–930.85 and 901.95–

902.00 MHz.

(3) One 100 kHz channel paired with

50 kHz channel:

Channel 30: 930.30–930.40 and 901.65–

901.70 MHz.

(4) One 150 kHz channel paired with

50 kHz channel:

Channel 31: 930.85–931.00 and 901.7–901.75

MHz.

(5) One 100 kHz channel paired with

12.5 kHz channel:

Channel 32: 940.90–941 and 901.8375–

901.85 MHz.

Note to § 24.129: Operations in markets or

portions of markets which border other

countries, such as Canada and Mexico, will

be subject to on-going coordination

arrangements with neighboring countries.

§ 24.130 [Removed and Reserved]

3. Section 24.130 is removed and

reserved.

[FR Doc. 01–13618 Filed 6–1–01; 8:45 am]

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