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[Federal Register Volume 70, Number 206 (Wednesday, October 26, 2005)]
[Rules and Regulations]
[Pages 61742-61747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21406]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 2

[ET Docket No. 00-258; FCC 05-172]

Advanced Wireless Services

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document reallocates the 2155-2160 MHz band for Fixed and 
Mobile services and designates the 2155-2175 MHz band for Advanced 
Wireless Service (AWS) use. We continue our ongoing efforts to promote 
spectrum utilization and efficiency with regard to the provision of new 
services, including Advanced Wireless Services (AWS).

DATES: Effective November 25, 2005.

FOR FURTHER INFORMATION CONTACT: Priya Shrinivasan, Office of 
Engineering & Technology, (202) 418-7005.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Eighth 
Report and Order, ET Docket No. 00-258, FCC 05-172, adopted September 
23, 2005, and released September 29, 2005. The full text of this 
document is available on the Commission's Internet site at http://www.fcc.gov. It is also available for inspection and copying during 
regular business hours in the FCC Reference Center (Room CY-A257), 445 
12th Street, SW., Washington, DC 20554. The full text of this document 
also may be purchased from the Commission's duplication contractor, 
Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-
B402, Washington, DC 20554; telephone (202) 488-5300; fax (202) 488-
5563; e-mail [email protected].

Summary of the Report and Order

    1. In the Eighth Report and Order (``Eighth R&O'') in ET Docket No. 
00-258, the Commission continues its ongoing efforts to promote 
spectrum utilization and efficiency with regard to the provision of new 
services, including Advanced Wireless Services (AWS). Advanced wireless 
systems could provide, for example, a wide range of voice, data and 
broadband services over a variety of mobile and fixed networks. 
Specifically, the Commission reallocates the 2155-2160 MHz band for 
Fixed and Mobile services and designates the 2155-2175 MHz band for AWS 
use.
    2. Based on the Commission's determination that additional spectrum 
is needed for AWS use, and because the characteristics of the 2155-2175 
MHz band make it well suited for such use, concludes that designating 
this band for AWS will promote efficient use of the spectrum and allow 
for the rapid introduction of high-value services in the band. Because 
the 2155-2175 MHz band is adjacent to the 2110-2155 MHz and 2175-2180 
MHz bands that have already been designated for AWS, an AWS designation 
for this band will create 70 MHz of contiguous spectrum that will 
promote the rapid introduction of new technologies and service 
offerings, and will foster the use of the highest potential spectrum. 
Furthermore, designation of the 2155-2175 MHz band for AWS use is 
consistent with the Commission's previous decisions to designate 
spectrum for AWS on a primary basis to support the types of high 
powered mobile applications associated with AWS and Broadband PCS 
expansion. In addition, as proposed, the Commission

[[Page 61743]]

allocates the 2155-2160 MHz band to Fixed and Mobile services in order 
to allow the provision of AWS in this band. Although commenters did not 
explicitly address the Commission's proposal to add a Mobile allocation 
to the 2155-2160 MHz band, such support is implicit in their support 
for redesignating the 2155-2175 MHz band for AWS use because a Mobile 
allocation is essential for the provision of AWS.
    3. The Commission notes that it does not decide here how to assign 
this new AWS spectrum at 2155-2175 MHz but will consider this issue in 
a separate service rules proceeding at a later date. It also notes that 
a current bilateral agreement in the 2155-2160/62 kHz band between the 
United States and Canada provides for coordinated use of Broadband 
Radio Service (BRS) and Educational Broadband Service (EBS) along the 
common border. The sharing of the 2160/62-2175 MHz band between the 
United States and Canada is covered by Arrangement A of the Agreement 
Concerning the Coordination and Use of Radio Frequencies Above Thirty 
Megacycles per Second, with Annex, as amended. There are no agreements 
with Mexico in the 2155-2175 MHz band. Accordingly, the Commission 
notes that there may be a need to negotiate new or modified agreements 
to provide for more flexible use of the spectrum with Canada and Mexico 
along the common borders.

Final Regulatory Flexibility Analysis

    4. As required by the Regulatory Flexibility Act (RFA) \1\ an 
Initial Regulatory Flexibility Analysis was incorporated in the Third 
Notice of Proposed Rule Making (Third NPRM) in ET Docket 00-258, 68 FR 
12015, March 13, 2003.\2\ The Commission sought written public comment 
on the proposals in the Third NPRM, including comment on the IRFA. This 
Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.\3\
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C 601 et seq., has been 
amended by the Contract With America Advancement Act of 1996, Pub. 
L. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA).
    \2\ Amendment of Part 2 of the Commission's Rules to Allocate 
Spectrum Below 3 GHz for Mobile and Fixed Services to Support the 
Introduction of New Advanced Wireless Services, including Third 
Generation Wireless Systems, ET Docket No. 00-258, IB Docket No. 99-
81, Third Report and Order, Third Notice of Proposed Rulemaking and 
Second Memorandum Opinion and Order, 18 FCC Rcd 2223 (2003).
    \3\ 5 U.S.C. 604.
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A. Need for, and Objectives of, the Eighth Report and Order

    5. The Eighth Report and Order (Eighth R&O) reallocates the 2155-
2160 MHz band for Fixed and Mobile services and designates the 2155-
2175 MHz band for the provision of advanced wireless services (AWS). 
The Eighth R&O is the latest in a series of decisions in ET Docket 00-
258 allocating spectrum that can be used for the provision of new and 
innovative wireless communications services that we have collectively 
referred to as ``AWS.'' The provision of this spectrum serves the 
public interest by promoting the rapid deployment of efficient radio 
communications facilities and supports the goals of Section 7 of the 
Communications Act,\4\ which sets forth a policy of encouraging the 
provision of new technologies and services to the public.
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    \4\ 47 U.S.C. 157.
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B. Summary of Significant Issues Raised by Public Comments in Response 
to the Supplemental IRFA

    6. There were no comments filed that specifically addressed the 
rules and policies proposed in the IRFA.

C. Description and Estimate of the Number of Small Entities To Which 
Rules Will Apply

    7. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of entities that will be affected 
by the rules.\5\ The RFA defines ``small entity'' as having the same 
meaning as the term ``small business,'' ``small organization,'' and 
``small governmental jurisdiction.'' \6\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act, unless the Commission has developed one 
or more definitions that are appropriate to its activities.\7\ 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) meets any additional criteria established by the 
Small Business Administration (SBA).\8\
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    \5\ 5 U.S.C. 603(b)(3), 604(a)(3).
    \6\ 5 U.S.C. 601(6).
    \7\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). 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 Small Business Administration and after opportunity for public 
comment, established one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition in the Federal Register.''
    \8\ 15 U.S.C. 632.
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    8. Multipoint Distribution Service, Multichannel Multipoint 
Distribution Service. Multichannel Multipoint Distribution Service 
(MMDS) systems, often referred to as ``wireless cable,'' transmit video 
programming to subscribers using the microwave frequencies of 
Multipoint Distribution Service (MDS) and Instructional Television 
Fixed Service (ITFS).\9\ In connection with the 1996 MDS auction, the 
Commission defined ``small business'' as an entity that, together with 
its affiliates, has average gross annual revenues that are not more 
than $40 million for the preceding three calendar years. The SBA has 
approved of this standard.\10\ The MDS auction resulted in 67 
successful bidders obtaining licensing opportunities for 493 Basic 
Trading Areas (BTAs).\11\ Of the 67 auction winners, 61 claimed status 
as a small business. At this time, we estimate that of the 61 small 
business MDS auction winners, 48 remain small business licensees. In 
addition to the 48 small businesses that hold BTA authorizations, there 
are approximately 392 incumbent MDS licensees that have gross revenues 
that are not more than $40 million and are thus considered small 
entities.\12\
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    \9\ Amendment of Parts 21 and 74 of the Commission's Rules with 
Regard to Filing Procedures in the Multipoint Distribution Service 
and in the Instructional Television Fixed Service and Implementation 
of Section 309(j) of the Communications Act--Competitive Bidding, 
Report and Order, 10 FCC Rcd 9589, 9593, paragraph 7 (1995) (``MDS 
Auction R&O''). The MDS and ITFS was renamed the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS), respectively. 
See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's 
Rules to Facilitate the Provision of Fixed and Mobile Broadband 
Access, Educational and Other Advanced Services in the 2150-2162 MHz 
Band, WT Docket No. 03-66, Report and Order and Further Notice of 
Proposed Rulemaking, 19 FCC Rcd 14165 (2004).
    \10\ See Letter to Margaret Wiener, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, FCC, from 
Gary Jackson, Assistant Administrator for Size Standards, Small 
Business Administration (dated Mar. 20, 2003) (noting approval of 
$40 million size standard for MDS auction).
    \11\ Basic Trading Areas (BTAs) were designed by Rand McNally 
and are the geographic areas by which MDS was auctioned and 
authorized. See MDS Auction R&O, 10 FCC Rcd at 9608, paragraph 34.
    \12\ 47 U.S.C. 309(j). Hundreds of stations were licensed to 
incumbent MDS licensees prior to implementation of section 309(j) of 
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-
auction licenses, the applicable standard is SBA's small business 
size standard for ``other telecommunications'' (annual receipts of 
$12.5 million or less). See 13 CFR 121.201, NAICS code 517910.
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    9. In addition, the SBA has developed a small business size 
standard for Cable and Other Program Distribution,\13\

[[Page 61744]]

which includes all such companies generating $12.5 million or less in 
annual receipts.\14\ According to Census Bureau data for 1997, there 
were a total of 1,311 firms in this category that had operated for the 
entire year.\15\ Of this total, 1,180 firms had annual receipts of 
under $10 million, and an additional 52 firms had receipts of $10 
million or more but less than $25 million.\16\ Consequently, we 
estimate that the majority of providers in this service category are 
small businesses that may be affected by the proposed rules and 
policies. Because the Commission's action only affects MDS operations 
in the 2155-2160/62 MHz band, the actual number of MDS providers who 
will be affected by the proposed reallocation will only represent a 
small fraction of these small businesses.
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    \13\ 13 CFR 121.201, NAICS code 517510.
    \14\ Id.
    \15\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 4 (issued October 2000).
    \16\ Id.
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    10. Fixed Microwave Services. Microwave services include common 
carrier,\17\ private-operational fixed,\18\ and broadcast auxiliary 
radio services.\19\ At present, there are approximately 36,708 common 
carrier fixed licensees and 59,291 private operational-fixed licensees 
and broadcast auxiliary radio licensees in the microwave services. The 
Commission has not yet defined a small business with respect to 
microwave services. For purposes of the FRFA, we will use the SBA's 
definition applicable to Cellular and other Wireless Telecommunications 
companies--i.e., an entity with no more than 1,500 persons.\20\ 
According to Census Bureau data for 1997, there were 977 firms in this 
category, total, that operated for the entire year.\21\ Of this total, 
965 firms had employment of 999 or fewer employees, and an additional 
twelve firms had employment of 1,000 employees or more.\22\ Thus, under 
this size standard, majority of firms can be considered small. We note 
that the number of firms does not necessarily track the number of 
licensees. We estimate that all of the Fixed Microwave licensees 
(excluding broadcast auxiliary licensees) would qualify as small 
entities under the SBA definition.
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    \17\ 47 CFR part 101 et seq. (formerly, part 21 of the 
Commission's rules) for common carrier fixed microwave services 
(except MDS).
    \18\ Persons eligible under parts 80 and 90 of the Commission's 
rules can use Private-Operational Fixed Microwave services. See 47 
CFR Parts 80 and 90. Stations in this service are called 
operational-fixed to distinguish them from common carrier and public 
fixed stations. Only the licensee may use the operational-fixed 
station, and only for communications related to the licensee's 
commercial, industrial, or safety operations.
    \19\ Auxiliary Microwave Service is governed by Part 74 of Title 
47 of the Commission's rules. See 47 CFR, part 74 et seq. Available 
to licensees of broadcast stations and to broadcast and cable 
network entities, broadcast auxiliary microwave stations are used 
for relaying broadcast television signals from the studio to the 
transmitter, or between two points such as a main studio and an 
auxiliary studio. The service also includes mobile TV pickups, which 
relay signals from a remote location back to the studio.
    \20\ 13 CFR 121.201, NAICS code 517212.
    \21\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Employment Size of Firms Subject to Federal Income 
Tax: 1997,'' Table 5 (issued Oct. 2000).
    \22\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is ``Firms with 1,000 
employees or more.''
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D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    11. The Eighth R&O reallocates the 2155-2160 MHz band and 
designates the 2155-2175 MHz band to support the introduction of new 
AWS applications. The item does not propose service rules. The ultimate 
use of the band will be determined by future proceedings that adopt 
specific service rules and, more generally, by market forces operating 
within the framework of such rules. Accordingly, the item contains no 
new reporting, recordkeeping, or other compliance requirements.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    12. 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 (among others): (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.\23\
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    \23\ 5 U.S.C. 603(c).
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    13. In the Eighth R&O, we decided to provide additional spectrum to 
support the introduction of AWS because doing so will promote the rapid 
deployment of efficient radio communications. Another option would have 
been to not reallocate or designate the 2155-2160 MHz band. We rejected 
this alternative because doing so would have limited our ability to 
provide additional spectrum and done little to minimize the potential 
economic impact on small entities. Specifically, because incumbent 
users in the 2155-2160 MHz band are subject to a transition plan 
adopted in a separate proceeding and would ultimately be required to 
cease use of spectrum in this band, a decision to not reallocate the 
spectrum would only have a minimal, short-term effect on incumbent 
users yet make it much more likely that valuable spectrum resources 
would lie fallow. Additionally, the provision of additional spectrum 
that can be used to support AWS can directly benefit small business 
entities by providing new opportunities for the provision of innovative 
new fixed and mobile wireless services by such entities.

F. Report to Congress

    14. The Commission will send a copy of the Eighth R&O, including 
this FRFA, in a report to be sent to Congress pursuant to the 
SBREFA.\24\ In addition, the Commission will send a copy of the Eighth 
R&O, including the FRFA, to the Chief Counsel for Advocacy of the SBA. 
A copy of the Eighth R&O and the FRFA (or summaries thereof) will also 
be published in the Federal Register.\25\
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    \24\ See 5 U.S.C. 801(a)(1)(A).
    \25\ See 5 U.S.C. 604(b).
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Ordering Clauses

    15. Pursuant to Sections 1, 4(i), 7(a), 301, 303(f), 303(g), 
303(r), 307, 316, 332 of the Communications Act of 1934, as amended, 47 
U.S.C. Sections 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r), 307, 
316, and 332, this Eighth Report and Order is Adopted and that part 2 
of the Commission's rules is amended, as specified in the regulatory 
text, effective November 25, 2005.
    16. Pursuant to Section 5(c) of the Communications Act, as amended, 
47 U.S.C. 155(c), the Office of Engineering and Technology and the 
Wireless Telecommunications Bureau Are Granted Delegated Authority to 
implement the requirement set forth in this Order.
    17. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Eighth Report 
and Order, including the Final Regulatory Flexibility Analysis to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 2

    Communications equipment, Reporting and recordkeeping requirements.

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Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rule

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 2 as follows:

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

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1. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise 
noted.

0
2. Section 2.106, the Table of Frequency Allocations, is amended by 
revising page 34.
    The revisions read as follows:

Sec.  2.106  Table of Frequency Allocations.

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[FR Doc. 05-21406 Filed 10-25-05; 8:45 am]
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