61752 Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. This proposed rule also is not 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997), because it is not 

economically significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. As required by 

section 3 of Executive Order 12988 (61 

FR 4729, February 7, 1996), in issuing 

this proposed rule, EPA has taken the 

necessary steps to eliminate drafting 

errors and ambiguity, minimize 

potential litigation, and provide a clear 

legal standard for affected conduct. EPA 

has complied with Executive Order 

12630 (53 FR 8859, March 15, 1988) by 

examining the takings implications of 

the rule in accordance with the 

‘‘Attorney General’s Supplemental 

Guidelines for the Evaluation of Risk 

and Avoidance of Unanticipated 

Takings’ issued under the executive 

order. This proposed rule to approve 

source-specific RACT determinations 

established and imposed by the 

Commonwealth of Pennsylvania 

pursuant to its SIP-approved generic 

RACT regulations does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen dioxide, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: October 18, 2005. 

Donald S. Welsh, 

Regional Administrator, Region III. 

[FR Doc. 05–21372 Filed 10–25–05; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 2 

[ET Docket No. 00–258; FCC 05–172] 

Advanced Wireless Services 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: This document seek comment 

on the specific relocation procedures 

applicable to Broadband Radio Service 

(BRS) operations in the 2150–2160/62 

MHz band, which the Commission 

recently decided will be relocated to the 

newly restructured 2495–2690 MHz 

band. We also seek comment on the 

specific relocation procedures 

applicable to Fixed Microwave Service 

(FS) operations in the 2160–2175 MHz 

band. We propose to generally follow 

our relocation policies delineated in our 

Emerging Technologies proceeding and 

as modified by subsequent decisions. 

DATES: Comments must be filed on or 

before November 25, 2005, and reply 

comments must be filed on or before 

December 12, 2005. 

ADDRESSES: You may submit comments, 

identified by [ET Docket No. 00–258], 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• E-mail: [Optional: Include the Email address only if you plan to accept 

comments from the general public]. 

Include the docket number(s) in the 

subject line of the message. 

• Mail: [Optional: Include the mailing 

address for paper, disk or CD–ROM 

submissions needed/requested by your 

Bureau or Office. Do not include the 

Office of the Secretary’s mailing address 

here.] 

• People with Disabilities: Contact 

the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202–

418–0432. 

For detailed instructions for submitting 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: 

Priya Shrinivasan, Office of Engineering 

and Technology, (202) 418–7005. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s NPRM of 

Proposed Rule Making, 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 

FCC@BCPIWEB.COM. 

Pursuant to sections 1.415 and 1.419 

of the Commission’s rules, 47 CFR 

1.415, 1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated on the first 

page of this document. Comments may 

be filed using: (1) The Commission’s 

Electronic Comment Filing System 

(ECFS), (2) the Federal Government’s 

eRulemaking Portal, or (3) by filing 

paper copies. See Electronic Filing of 

Documents in Rulemaking Proceedings, 

63 FR 24121 (1998). 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the Web site for submitting 

comments. 

• For ECFS filers, if multiple docket 

or rulemaking numbers appear in the 

caption of this proceeding, filers must 

transmit one electronic copy of the 

comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Parties may also 

submit an electronic comment by 

Internet e-mail. To get filing 

instructions, filers should send an email to ecfs@fcc.gov, and include the 

following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 61753 

overnight U.S. Postal Service mail 

(although we continue to experience 

delays in receiving U.S. Postal Service 

mail). All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. 

• The Commission’s contractor will 

receive hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail should be 

addressed to 445 12th Street, SW., 

Washington DC 20554. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202–

418–0432 (tty). 

Summary of NPRM of Proposed 

Rulemaking 

1. In the Fifth NPRM of Proposed 

Rulemaking (Fifth NPRM), the 

Commission seeks to establish a new 

record, specifically with respect to 

relocation issues for the 2150–2160 

MHz and 2160–2175 MHz bands as 

proposed in the NPRM. The 

Commission notes that it has previously 

sought comment on the use of Emerging 

Technologies policies in this proceeding 

(ET Docket No. 00–258) in different 

contexts and asks that parties file new 

comments on the issues in this Fifth 

NPRM, rather than incorporate by 

reference previously filed comments in 

this proceeding. 

2. The Commission continues to 

believe that its relocation policy, with 

minor modifications to accommodate 

the type of incumbent operations that 

are the subject of relocation and to 

maintain consistency within the entire 

band at issue, is the best approach to 

meet its goal of providing an 

opportunity for early entry to the 2150–

2160 MHz and 2160–2175 MHz bands 

for new Advanced Wireless Service 

(AWS) licensees, while minimizing the 

disruption to incumbent Broadband 

Radio Service (BRS) and Fixed 

Microwave Service (FS) operations 

during the transition. The NPRM 

therefore proposes to generally apply 

the Commission’s relocation policy, as 

delineated in its Emerging Technologies 

proceeding and subsequent decisions, to 

the spectrum designated for AWS in this 

proceeding. 

A. Relocation of BRS in the 2150–2160/ 

62 MHz Band 

3. This portion of the NPRM seeks 

comment on the relocation procedures 

new AWS entrants should follow when 

relocating BRS incumbent licensees 

from the 2150–2160/62 MHz band. 

4. Background. In the AWS Second 

R&O in ET Docket No. 00–258, 68 FR 

3455, January 24, 2003, the Commission 

reallocated and designated a 5 

megahertz portion of the BRS band at 

2150–2155 MHz for AWS use. 

Subsequently, in the AWS Third NPRM, 

also in ET Docket No. 00–258, 68 FR 

12015, March 13, 2003, the Commission 

further explored the relocation needs for 

the BRS licensees in the 2150–2160/62 

MHz band. On July 29, 2004, the 

Commission released the BRS R&O and 

FNPRM in WT Docket No. 03–66, 69 FR 

72020 and 69 FR 72048, December 10, 

2004, respectively, that initiated a 

fundamental restructuring of the 2495–

2690 MHz band. This decision, which 

was intended to provide existing and 

new licensees with enhanced flexibility 

to provide high-value services, also 

included provisions by which existing 

BRS licensees in the 2150–2160/62 MHz 

band would be included in the newly 

established band plan, allowing these 

licensees to be integrated with similar 

operations. Specifically, the 

Commission adopted a band plan in 

which existing BRS channel 1 (2150–

2156 MHz) would transition to the new 

BRS channel 1 at 2496–2502 MHz and 

existing BRS channel 2/2A (2156–2162 

MHz) to the new BRS channel 2 at 

2618–2624 MHz. The Commission notes 

that new entrants for spectrum now 

occupied by part of BRS channel 1 will 

be licensed in an upcoming AWS 

auction of the 2110–2155 MHz band. 

With respect to the 2155–2160/62 MHz 

band, which consists of BRS channels 2 

and 2A and the upper one megahertz of 

BRS channel 1, the Commission has not 

yet established new service rules for this 

band. In the accompanying Eighth R&O 

in ET Docket No. 00–258, the 

Commission reallocated and designated 

the entire 2150–2160 MHz band for 

AWS use. 

5. BRS operations in the 2150–2160/ 

62 MHz band consist of two channels—

channel 1 (2150–2156 MHz) and 

channel 2A (2156–2160 MHz). 

Licensees may also use channel 2 

(2156–2162 MHz) on a limited basis in 

50 cities. BRS operations in the band are 

now regulated under part 27 of the 

Commission’s rules. In 1992, when the 

2160–2165 MHz band was reallocated to 

emerging technologies, the Commission 

implemented a policy by which 

incumbent BRS licensees that were 

using the 2160–2162 MHz band would 

continue such use on a primary basis. 

However, any BRS station that applied 

for use of this band after January 16, 

1992, would be granted a license only 

on a secondary basis to emerging 

technology use. In 1996, the 

Commission auctioned licenses for BRS 

channels on a Basic Trading Area (BTA) 

basis but noted that BRS channel 2 

licenses using the 2160–2162 MHz band 

were secondary to emerging technology 

licenses. BRS operators are providing 

four categories of service offerings 

today: (1) Downstream analog video; (2) 

downstream digital video; (3) 

downstream digital data; and (4) 

downstream/upstream digital data. 

Licensees and lessees have deployed or 

sought to deploy these services via three 

types of system configuration: highpower video stations, high-power fixed 

two-way systems, and low-power, 

cellularized two-way systems. 

Traditionally, BRS licensees were 

authorized to operate within a 35-mileradius protected service area (PSA) and 

winners of the 1996 MDS auction were 

authorized to serve Basic Trading Areas 

(BTAs) consisting of aggregations of 

counties. In the proceeding that 

restructured the BRS band at 2495–2690 

MHz, the Commission adopted a 

geographic service area (GSA) licensing 

scheme for existing BRS incumbents. 

Therefore, BRS relocation procedures 

must take into account the unique 

circumstances faced by the various 

incumbent operations and the new AWS 

licensees. 

1. Relocation Process 

6. Transition Plan. The NPRM 

proposes to require the AWS entrant to 

relocate BRS operations on a link-bylink basis, based on interference 

potential as discussed below. The 

NPRM further proposes to allow the 

AWS entrant to determine its own 

schedule for relocating incumbent BRS 

operations so long as it relocates 

incumbent BRS licensees before 

beginning operation in a particular 

geographic area and subject to any other 

build-out requirements that may be 

imposed by the Commission on the 

AWS entrant. The Commission 

recognizes that this build-out period 

may take time because of the large 

service areas to be built out for new 

AWS networks but expects that the 

AWS licensees and the incumbent BRS 

61754 Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 

licensees will work cooperatively to 

ensure a smooth transition for 

incumbent operations. 

7. In some instances relocation of BRS 

operations on a link-by-link basis may 

be infeasible (e.g., where a transmitter 

serves numerous receive sites, only 

some of which may pose an interference 

issue), and thus in order to meet the 

comparable facility requirement for 

relocating BRS operations, it may be 

necessary for the AWS licensee to 

relocate more BRS facilities than an 

interference analysis conducted on a 

link-by-link basis might indicate as 

technically necessary. The Commission 

also recognizes that the AWS licensee is 

likely to deploy its service in some 

locations in a manner that does not 

correspond to the geography of the BRS 

service areas. For example, a BRS 

licensee’s operations may extend 

beyond the AWS licensee’s service area 

(e.g., discrete transmit/receive 

combinations), and thus in order to 

meet the comparable facility 

requirement for relocating BRS 

operations, the AWS licensee may need 

to relocate BRS operations in the 

adjacent service area even though an 

AWS licensee does not have license 

coverage in that area. The NPRM 

therefore proposes to require that the 

AWS licensee relocate all incumbent 

BRS operations that would be affected 

by the new AWS operations, in order to 

provide BRS operators with comparable 

facilities. The Commission seeks 

comment on these transition plan 

proposals. 

8. Comparable Facilities. In the AWS 

Third NPRM, the Commission proposed 

that if relocation were deemed 

necessary, BRS incumbents would be 

entitled to comparable facilities. In the 

Emerging Technologies proceeding, the 

Commission allowed new entrants to 

provide incumbents with comparable 

facilities using any acceptable 

technology. Under this policy, 

incumbents must be provided with 

replacement facilities that allow them to 

maintain the same service in terms of: 

(1) Throughput—the amount of 

information transferred within the 

system in a given amount of time; (2) 

reliability—the degree to which 

information is transferred accurately 

and dependably within the system; and 

(3) operating costs—the cost to operate 

and maintain the system. Thus, the 

comparable facilities requirement does 

not guarantee incumbents superior 

systems at the expense of new entrants. 

The Commission continues to believe 

that, to minimize disruption to existing 

services and to minimize the economic 

impact on licensees of those services, a 

similar approach is warranted for BRS. 

We note that our relocation policies do 

not dictate that systems be relocated to 

spectrum-based facilities or even to the 

same amount of spectrum as they 

currently use, only that comparable 

facilities be provided. Comparable 

facilities can be provided by upgrading 

equipment to digital technology and 

making use of efficient modulation and 

coding techniques that use less 

spectrum to provide the same 

communications capabilities. Given 

advances in technology, e.g., changing 

from analog to digital modulation and 

the flexibility provided by our existing 

relocation procedures to make 

incumbents whole, we believe that these 

differences should be taken into account 

when providing comparable facilities. 

The NPRM therefore proposes to require 

that new AWS entrants provide 

comparable facilities to incumbents that 

are relocated, and seeks comment on 

this proposal. 

9. The Commission further notes that 

under its relocation policies only 

stations with primary status are entitled 

to relocation. Because secondary 

operations, by definition, cannot cause 

harmful interference to primary 

operations nor claim protection from 

harmful interference from primary 

operations at frequencies already 

assigned or assigned at a later date, new 

entrants are not required to relocate 

secondary operations. As stated above, 

BRS stations licensed after 1992 to use 

the 2160–2162 MHz band are on a 

secondary basis. Thus, in some cases, a 

portion of BRS channel 2 has secondary 

status, and this portion would not be 

entitled to relocation under existing 

Emerging Technologies policies. 

Stations licensed prior to 1992 for BRS 

channel 2 (2156–2162 MHz) operate on 

a primary basis over the entire channel 

and thus, would be entitled to 

relocation. The NPRM proposes to apply 

the current relocation policies regarding 

stations with primary and secondary 

status to the BRS and seeks comment on 

this proposal. 

10. The NPRM also seeks comment on 

how to apply the comparable facilities 

requirement to unique situations faced 

by BRS licensees. For example, the 

Commission recognizes that the 

incumbent BRS licensee may change the 

type of services it offers as it transitions 

to the new BRS band plan (e.g., from 1- 

way to 2-way service or from fixed to 

mobile service), and seeks comment on 

how the comparable facilities policy 

would be satisfied in such a situation. 

The NPRM also seeks comment on how 

the relocation obligation of comparable 

facilities should be applied to post-1992 

licensees operating on a combination of 

BRS channels 1 and 2/2A (e.g., 

integrated for downstream 2-way 

broadband operations), considering 

these channels will likely transition to 

new channels in the restructured band 

at different times. For example, the 

Commission seeks comment on what 

the respective relocation obligations 

should be for AWS licensees in the five 

megahertz block of BRS channel 1 

(2150–2155 MHz) who will be licensed 

as part of the upcoming AWS auction of 

the 2110–2155 MHz band and AWS 

licensees in the remaining one 

megahertz block (2155–2156 MHz) who 

will be licensed at a later date. In 

addition, we seek comment on whether 

replacement of customer premises 

equipment (CPE) in use at the time of 

relocation (e.g., customer equipment 

that is used and will continue to be used 

in the provision of 2-way broadband 

operations) should be part of the 

comparable facilities requirement. 

11. Because the Commission has 

already identified relocation spectrum 

in the 2495–2690 MHz band (2.5 GHz 

band) for BRS licensees currently in the 

2150–2160/62 MHz band (2.1 GHz 

band), we also seek comment on a 

proposal whereby the Commission 

would reassign 2.1 GHz BRS licensees, 

whose facilities have not been 

constructed or are not in use per 

§ 101.75 of the Commission’s rules, to 

their corresponding frequency 

assignments in the 2.5 GHz band as part 

of the overall BRS transition. 

Specifically, the NPRM proposes to 

modify the licenses of these 2.1 GHz 

BRS licensees to assign them 2.5 GHz 

spectrum in the same geographic areas 

covered by their licenses upon the 

effective date of the Report and Order in 

this proceeding. Under this proposal, no 

subscribers would be harmed by 

immediately reassigning these licensees 

to the 2.5 GHz band, consistent with our 

policy. Further, these BRS licensees 

could become proponents in the 

transition of the 2.5 GHz band and avoid 

delay in initiating new service (they 

would be limited in initiating or 

expanding service in the 2.1 GHz band 

under other proposals put forth in this 

Fifth NPRM), and new AWS entrants in 

the 2.1 GHz band could focus their 

efforts on relocating the remaining BRS 

operations and their subscribers, 

facilitating their ability to clear the band 

quickly and provide new service. The 

NPRM proposes to undertake these 

license modifications pursuant to our 

authority under Section 316 of the 

Communications Act. Specifically, 

Section 316(a)(1), provides that ‘‘[a]ny 

station license * * * may be modified 

by the Commission * * * if in the 

judgment of the Commission such 

Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 61755 

action will promote the public interest, 

convenience and necessity.’’ In 

addition, under the Commission’s 

proposal, these reassigned BRS 

licensees would not be entitled to 

‘‘comparable facilities’’ under the 

relocation policy since no facilities have 

been constructed or are in use. 

Accordingly, the Commission seeks 

comment on this proposal. We ask that 

commenters consider the impact of this 

proposal on the 2.5 GHz transition set 

forth in the BRS R&O and FNPRM, as 

well as the impact on the availability of 

the 2.1 GHz band for new AWS entrants. 

12. Leasing. Some BRS licensees of 

channels 1 and 2 currently lease their 

spectrum capacity to other commercial 

operators, and the Commission has 

determined that future leasing of BRS 

and EBS spectrum will be allowed 

under the Secondary Markets policy. 

Because leasing is prevalent in the BRS 

bands, the ‘‘comparable facilities’’

policy needs to address these 

arrangements. We recognize that leasing 

arrangements vary—some BRS licensees 

may continue to lease their spectrum to 

third parties when they relocate to the 

2.5 GHz band, but others BRS licensees 

may discontinue leasing arrangements 

prior to relocation. In all cases, the BRS 

licensee retains de jure control of the 

license and is the party entitled to 

negotiate for ‘‘comparable facilities’’ in 

the relocation band. The NPRM 

proposes to allow incumbent BRS 

licensees to rely on the throughput, 

reliability and operating costs of 

facilities operated by a lessee in 

negotiating ‘‘comparable facilities.’’ In 

cases where the BRS licensees continue 

to lease their spectrum to third parties 

when they relocate to the 2.5 GHz band, 

the NPRM proposes that the licensee 

may include the lessee in negotiations 

but that lessees would not have a 

separate right of recovery—i.e., the new 

entrant would not have to reimburse 

both the licensee and lessee for 

‘‘comparable facilities.’’ Further, in 

cases where the BRS licensee 

discontinues leasing arrangements prior 

to relocation, the NPRM proposes that 

the lessee is not entitled to recover lost 

investments from the new entrant. We 

believe that this approach is consistent 

with the purpose of the ‘‘comparable 

facilities’’ policy to provide new 

facilities in the relocation band so that 

the public continues to receive service. 

The Commission seeks comment on 

these leasing proposals. 

13. Licensee Eligibility. Consistent 

with the Commission’s findings in 

earlier proceedings, the Commission 

proposes to apply the relocation policies 

discussed in this NPRM to BRS 

incumbent primary licensees who seek 

comparable facilities at the time of 

relocation. Any incumbent licensee, 

whose license is to be renewed before 

relocation, would have the right to 

relocation only if its license is renewed. 

The Commission further proposes that 

an assignment or transfer of control 

would not disqualify a BRS incumbent 

in the 2150–2160 MHz band from 

relocation eligibility so long as the 

facility is not rendered, as a result, more 

expensive to relocate. In addition, the 

Commission proposes that if a 

grandfathered BRS license (i.e., 

authorized facilities operating with a 35- 

mile-radius PSA) is cancelled or 

forfeited, and the right to operate in that 

area has not automatically reverted to 

the BRS licensee that holds the 

corresponding BTA license, no new 

licenses would be issued for BTA 

service in the 2150–2160/62 MHz band. 

The Commission seeks comment on 

these eligibility proposals. 

14. Future Licensing in the 2150–2160 

MHz Band. In the Emerging 

Technologies proceeding, the 

Commission recognized two divergent 

objectives when considering the types of 

modifications and expansions existing 

licensees could make without affecting 

their status with respect to emerging 

technology licensees—on one hand, 

existing licensees must be allowed a 

certain amount of flexibility to operate 

without devaluing the usefulness of 

their facilities; on the other hand, the 

new entrants must be provided with a 

stable environment in which to plan 

and implement new services. The 

Commission decided that the best way 

to balance these divergent objectives 

was to establish procedures whereby 

existing licensees who chose to modify 

or expand their facilities after a 

particular date set by the Commission, 

would do so on a secondary basis to 

emerging technology licensees. 

Consistent with this current relocation 

policy and in order to provide some 

certainty to new AWS licensees on the 

scope of their relocation obligation, the 

NPRM proposes that major 

modifications to authorized facilities, as 

discussed in the next paragraph, made 

by BRS licensees after the effective date 

of a Report and Order in this proceeding 

will not be eligible for relocation. The 

NPRM further proposes that major 

modifications and extensions to existing 

BRS systems will be authorized on a 

secondary basis to emerging technology 

systems in the 2150–2160 MHz band 

after the effective date of the Report and 

Order in this proceeding. Moreover, all 

major modifications will render the 

modified BRS licensee secondary to 

emerging technology operations, unless 

the incumbent affirmatively justifies 

primary status and establishes that the 

modification would not add to the 

relocation costs of the emerging 

technology licensees. In addition, the 

NPRM proposes that BRS facilities 

newly authorized in the 2150–2160 

MHz band after the effective date of a 

Report and Order in this proceeding 

would not be eligible for relocation. The 

Commission seeks comment on these 

proposals. 

15. For purposes of relocation, the 

NPRM proposes to adopt criteria that 

would be the basis for determining what 

qualifies as a major modification for 

BRS licensees. Adopting major 

modification criteria for the purposes of 

relocation is necessary because BRS 

licensees are now licensed on a 

geographic area basis, and thus are 

allowed to place transmitters anywhere 

within their defined service area 

without prior authorization so long as 

the licensee’s operations comply with 

the applicable service rules, do not 

affect radio-frequency zones, or require 

environmental review or international 

coordination. Specifically, the NPRM 

proposes to adopt criteria that, for 

example, would classify the additions of 

new transmit sites or base stations and 

changes to existing facilities that would 

increase the size or coverage of the 

service area or interference potential as 

types of modifications that are major, 

and thus not eligible for relocation. 

Traditionally, these limits have been 

expressed by identifying the distance by 

which existing transmit sites can be 

relocated, limiting increases in 

emissions, and various other means. 

Accordingly, the Commission seeks 

comment on what the criteria should be 

for major modifications and, in 

particular, the criteria in the former 

major modification rule for BRS 

licensees, codified at 47 CFR 21.23; the 

former rule for EBS licensees codified at 

47 CFR 74.911(a)(2); or the current rule 

for wireless telecommunications 

services in § 1.929(d). 

2. Negotiation Periods/Relocation 

Schedule 

16. The NPRM generally proposes to 

require that negotiations for relocation 

of BRS operations be conducted in 

accordance with the Commission’s 

Emerging Technologies policies, except 

that we propose to forego a voluntary 

negotiation period and instead require 

only a mandatory negotiation period 

that must expire before an emerging 

technology licensee could proceed to 

request involuntary relocation. The BRS 

transition plan for the new band at 

2495–2690 MHz has five stages: (1) The 

initiation of the transition process—

61756 Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 

when a proponent files an initiation 

plan for a geographic area with the 

Commission; (2) the transition planning 

period—where parties can file 

counterproposals and any disputes 

would go to arbitration; (3) the 

reimbursement of costs; (4) the 

termination of incumbent operations; 

and (5) the filing of post-transition 

notification of completion with the 

Commission. The approximate time 

needed for the BRS re-banding process 

at 2495–2690 MHz includes 3–31⁄2 years 

for the initiation and planning stages 

and 11⁄2 years for the actual relocation, 

for a total of approximately five years. 

Thus, the Commission recognizes that 

the new band where the BRS 

incumbents are to be relocated is 

undergoing its own transition process 

that may not be completed until at least 

2008. In light of these considerations, 

the NPRM proposes to forego a 

voluntary negotiation period and 

institute ‘‘rolling’’ mandatory 

negotiation periods (i.e., separate, 

individually triggered negotiation 

periods for each BRS licensee) of three 

years followed by the involuntary 

relocation of BRS incumbents. The 

NPRM proposes that the mandatory 

negotiation period would be triggered 

for each BRS licensee when an AWS 

licensee informs the BRS licensee in 

writing of its desire to negotiate. 

Relocation of BRS operations by AWS 

licensees is more likely to take place in 

a relatively piecemeal fashion and over 

an extended period of time. 

Consequently, it is possible that a 

uniform mandatory negotiation period 

applicable to all BRS licensees would 

expire by the time that many BRS 

licensees were approached for 

relocation by an AWS entrant. The 

Commission seeks comment on this 

proposal. 

17. Under Emerging Technologies 

policies, the mandatory negotiation 

period is intended as a period of 

negotiation between the parties on 

relocation terms resulting in a 

contractual relocation agreement. The 

mandatory negotiation period ensures 

that an incumbent licensee will not be 

faced with a sudden or unexpected 

demand for involuntary relocation if an 

emerging technology provider initiates 

its relocation request, and provides 

adequate time to prepare for relocation. 

During mandatory negotiations, the 

parties are afforded flexibility in the 

process except that an incumbent 

licensee may not refuse to negotiate and 

all parties are required to negotiate in 

good faith. If no agreement is reached 

during negotiations, an AWS licensee 

may proceed to involuntary relocation 

of the incumbent. In such a case, the 

new AWS licensee must guarantee 

payment of all relocation expenses, and 

must construct, test, and deliver to the 

incumbent comparable replacement 

facilities consistent with Emerging 

Technologies procedures. The 

Commission notes that under Emerging 

Technologies principles, an AWS 

licensee would not be required to pay 

incumbents for internal resources 

devoted to the relocation process or for 

fees that cannot be legitimately tied to 

the provision of comparable facilities, 

because such expenses are difficult to 

determine and verify. The NPRM 

proposes to apply these negotiation/ 

relocation principles to BRS licensees, 

and seeks comment on doing so. The 

NPRM also seeks comment on whether 

to apply a ‘‘right of return’’ policy to 

AWS/BRS relocation negotiations 

similar to rule 47 CFR 101.75(d) (i.e., if 

after a 12 month trial period, the new 

facilities prove not to be comparable to 

the old facilities, the BRS licensee could 

return to the old frequency band or 

otherwise be relocated or reimbursed). 

The Commission asks parties to take 

into account the time periods for the 

transition occurring in the restructured 

2495–2690 MHz band when providing 

comments on this issue. 

18. Sunset Date. The NPRM proposes 

to apply the sunset rule of 47 CFR 

101.79 to BRS relocation negotiations. 

This rule provides that new licensees 

are not required to pay relocation 

expenses after ten years following the 

start of the negotiation period for 

relocation. Consistent with the 

Commission’s proposal to establish 

rolling mandatory negotiation periods, 

the NPRM proposes that the ten year 

sunset date commence from the date the 

first AWS license is issued in the 2150– 

2160 MHz band. However, because we 

anticipate that portions of the spectrum 

in the 2150–2160 MHz band will be 

made available for AWS auction at 

different times, the first AWS license 

could be issued in one portion of the 

band earlier than the first AWS license 

is issued in another portion of the band. 

We therefore seek comment on whether 

we should establish different sunset 

dates that are based on when the first 

AWS license is issued for each portion 

of the spectrum. In this case, the 

commencement dates and subsequent 

sunset dates are likely to be different for 

BRS channels 1 and 2/2A. Alternately, 

should we establish a single sunset date 

for the entire band? If so, we seek 

comment as to whether that sunset date 

should be ten years from the date the 

first AWS license is issued in whatever 

portion of the 2150–2160 MHz band is 

the last to be licensed. Further, we seek 

comment on when the ten year sunset 

date should commence if we do not 

adopt our proposal for rolling 

mandatory negotiation periods. Finally, 

commenters should consider that the 

sunset date proposal we ultimately 

adopt would apply apart from the 

restructuring of the 2495–2690 MHz 

band. 

19. Good Faith Requirement. Finally, 

the Commission expects the parties 

involved in the replacement or retuning 

of BRS equipment to negotiate in good 

faith, that is, each party would be 

required to provide information to the 

other that is reasonably necessary to 

facilitate the relocation process. The 

NPRM therefore proposes to apply the 

good faith guidelines of 47 CFR 101.73 

to BRS negotiations, and seeks comment 

on this proposal. 

3. Interference Issues/Technical 

Standards 

20. The Commission currently 

provides for the protection of fixed 

microwave services operating in the 1.9 

GHz and 2.1 GHz bands through the 

provisions of 24.237 of our rules. Under 

24.237, PCS licensees operating in the 

1850–1990 MHz band and AWS 

licensees operating in the 2110–2155 

MHz band must, prior to commencing 

operations, perform certain engineering 

analyses to ensure that their proposed 

operations do not cause interference to 

incumbent fixed microwave services. 

Part of that analyses calls for the use of 

TIA Telecommunications Systems 

Bulletin (TSB) 10–F, or its successor 

standard, to determine when proposed 

PCS or AWS operations might cause 

interference to existing fixed microwave 

stations. 

21. The Commission seeks to develop 

rules that will enable AWS licensees to 

determine when their proposed 

operations would cause interference to 

incumbent BRS systems operating in the 

2150–2160 MHz band, such that the 

relocation of those systems would be 

necessary before AWS operations could 

begin. The NPRM therefore seeks 

comment on whether a rule comparable 

to § 24.237 should be developed for this 

purpose. If so, we seek comment as to 

what procedures and mechanisms 

should be contained in such a rule (e.g., 

a ‘‘distance’’ table, such as Table 2 in 

§ 24.237, which identifies the distance 

from an AWS station within which a 

BRS station must be protected; the use 

of TIA TSB 10–F, or some comparable 

document, to determine when 

interference is expected to occur to BRS 

stations, etc.). Commenters favoring this 

approach should provide information 

that would lead to the development of 

Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 61757 

a distance table applicable to BRS 

operations; and commenters should also 

indicate whether and how TIA TSB 10–

F could be used to determine the 

potential for interference to BRS 

systems. Commenters not favoring the 

use of a § 24.237 type rule should 

indicate what procedures the 

Commission should adopt to enable 

AWS licensees to determine when their 

operations will cause interference to 

incumbent BRS systems. 

B. Relocation of FS in the 2160–2175 

MHz Band 

22. In the Emerging Technologies 

proceeding, the Commission established 

procedures for the relocation of 

incumbent operations by new 

technology licensees in several 

frequency bands, including the paired 

bands at 2110–2150 MHz and 2160–

2200 MHz. Later, in the Microwave Cost 

Sharing proceeding, the Commission 

further addressed incumbent relocations 

by new technology licensees. Together, 

these proceedings provided for, among 

other matters, relocation procedures that 

included both voluntary and mandatory 

negotiations, as well as relocation 

sunset periods, as delineated in 47 CFR 

part 101. 

23. In 2000, in the MSS Second R&O 

in ET Docket No. 95–18, the 

Commission adopted ‘‘modified’’

Emerging Technologies relocation 

procedures for FS incumbents in the 

2165–2200 MHz band that would be 

relocated by new MSS licensees in that 

band. Under these ‘‘modified’’

procedures, the Commission eliminated 

the voluntary negotiation period for 

relocation of FS incumbents by MSS in 

the 2165–2200 MHz band and provided 

instead a single mandatory negotiation 

period applying to all FS incumbents. 

This single mandatory negotiation 

period would be triggered when the first 

MSS licensee informs, in writing, the 

first FS incumbent of its desire to 

negotiate. Furthermore, consistent with 

its findings in the earlier Microwave 

Cost Sharing proceeding, the 

Commission established that the FS 

relocation rules would sunset ten years 

after the negotiations begin for the first 

FS licensee. 

24. In the AWS Second R&O in ET 

Docket No. 00–258, the Commission 

addressed the relocation procedures that 

would apply to the relocation of 

incumbent FS licensees by new AWS 

entrants in the paired 2110–2150 MHz 

band. The Commission concluded that 

‘‘the modified [MSS] relocation 

procedures [for the 2165–2200 MHz 

band] * * * represent[ed] the best 

course.’’ The Commission reasoned, ‘‘[a] 

unified approach to our rules and 

procedures serves the public interest, 

and can promote the rapid development 

of AWS, which many commenters 

support.’’

25. In the AWS Third R&O, also in ET 

Docket No. 00–258, the Commission 

reallocated the 1990–2000/2020–2025 

MHz and 2165–2180 MHz bands for 

Fixed and Mobile services to support 

AWS. Subsequently in the AWS Sixth 

R&O in ET Docket No. 00–258, the 

Commission concluded that, given its 

earlier decision in the AWS Second 

R&O to apply the ‘‘modified’’ relocation 

procedures to AWS relocation of FS in 

the 2110–2150 MHz band, it would be 

appropriate to apply the same 

procedures to the relocation of FS by 

AWS licensees in the 2175–2180 MHz 

paired band. 

26. In proposing relocation 

procedures for incumbent FS operations 

in the 2160–2175 MHz band, the 

Commission continues to believe that it 

is desirable to harmonize the FS 

relocation procedures among the 

various AWS designated bands to the 

greatest extent feasible. As the 

Commission observed in the AWS Sixth 

R&O, 69 FR 62615, October 27, 2004, 

relocation procedures that are consistent 

can be expected to foster a more 

efficient rollout of AWS and minimize 

confusion among the parties, and 

thereby serve the public interest. 

27. Under the existing ‘‘modified’’

Emerging Technologies relocation 

procedures described, there is a single 

mandatory negotiation period that 

commences when the first new 

technology entrant informs the first FS 

licensee, in writing, of its desire to 

negotiate. A ten-year sunset period is 

triggered when the mandatory 

negotiation period begins. The NPRM 

seeks comment on whether the 

Commission should apply these same 

procedures to FS relocation by AWS in 

the 2160–2175 MHz band. As noted, 

this would be consistent with the 

procedures adopted in the AWS Second 

R&O, 68 FR 3455, January 24, 2003, and 

AWS Sixth R&O, 69 FR 62615, October 

27, 2004, for the paired bands 2110–

2150 MHz and 2175–2180 MHz, 

respectively. 

28. The NPRM also proposes to clarify 

that under the single mandatory 

negotiation periods approach the tenyear sunset would supersede, and 

thereby terminate, any remaining 

mandatory negotiation period that had 

not yet run its course. The NPRM 

proposes that this ten-year sunset period 

for the 2160–2175 MHz band should 

commence with the date the first AWS 

license is issued in that band. We seek 

comment on this proposal, particularly 

whether this trigger event represents the 

most appropriate date for starting the 

ten-year sunset period. Because we have 

not yet determined how we will make 

this spectrum available for assignment, 

it is possible that different portions of 

the band may be licensed at different 

times. We therefore seek comment as to 

whether we should establish different 

sunset periods for FS incumbents in 

different frequency blocks within the 

band, based on the date the first AWS 

license is issued for each subset of the 

band. We recognize that, in this case, 

the commencement date and subsequent 

sunset date may not be uniform across 

the whole band. We also seek comment 

on whether we should instead set a 

uniform sunset date for the entire band 

and, if so, what trigger date we would 

use to determine that sunset date. 

29. The Commission also seeks 

comment on an alternative approach. 

Relocation of FS operations by AWS 

licensees is more likely to take place in 

a relatively piecemeal fashion and over 

an extended period of time. 

Consequently, it is possible that a single 

mandatory negotiation period afforded 

under the existing relocation procedures 

would expire before the time that many 

FS licensees were approached for 

relocation by an AWS entrant. 

Therefore, we also seek comment on 

whether each FS incumbent in the 

2160–2175 MHz band should be 

afforded a separate, individually 

triggered, negotiation period—as 

contrasted with the across-the-board 

uniform period for all incumbents under 

the existing relocation rules. Under this 

alternative proposal, a mandatory 

negotiation period would be triggered 

by an event specific to each FS licensee, 

which we propose would be when an 

AWS licensee informs the FS licensee in 

writing of its desire to negotiate. This 

would result in a series of independent, 

or ‘‘rolling,’’ negotiation periods, each 

having its own time frame. One 

potential benefit of the rolling 

negotiation period approach is that it 

could afford a greater opportunity for FS 

incumbents and AWS licensees to 

engage in relocation negotiations and 

could foster a more equitable and 

expeditious transition to AWS in the 

band. On the other hand, this approach 

could result in more complex 

negotiation timetables. We seek 

comment on this alternative proposal. 

30. Other Bands. If we were to adopt 

the alternative rolling negotiation period 

approach described for the 2160–2175 

MHz band, the Commission seeks 

comment on whether the same approach 

should be adopted for corresponding 

paired segments of the 2110–2150 MHz 

band. In a similar fashion, if we were to 

adopt the rolling negotiation approach 

61758 Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 

for these two bands, we seek comment 

on whether the relocation procedures 

adopted for the 2175–2180 MHz band in 

the AWS Sixth R&O should also be 

changed to afford rolling FS negotiation 

periods, resulting in a unified rolling 

negotiation period approach across 

these bands. We also seek comment on 

whether the modified sunset rules 

discussed above should apply in these 

other bands as well. Finally, we seek 

comment on whether the relocation/ 

sunset procedures described here would 

harmonize well with the procedures for 

other Emerging Technologies bands that 

have been addressed elsewhere in this 

and other proceedings. 

31. Incumbent Part 22 Services. The 

Commission also seeks comment on 

whether and how to harmonize the 

Emerging Technologies relocation rules 

for part 22 point-to-point microwave 

links and part 101 fixed services. When 

the Emerging Technologies relocation 

rules were first adopted, fixed 

microwave services in the spectrum 

were regulated under parts 21, 22, and 

94, dealing with Common Carrier fixed 

point-to-point, fixed services supporting 

Paging and Radiotelephone, and Private 

Operational point-to-point, respectively. 

To address relocation of all of these 

fixed services, the Commission 

established separate but identical 

relocation rules in each Part. In 1996, 

the Commission merged the rules 

regulating Common Carrier and Private 

Operational services in part 101 but left 

fixed services supporting Paging and 

Radiotelephone, along with the rules for 

relocating these links, in part 22. 

32. Although initially identical, the 

Emerging Technologies relocation rules 

in part 22 and in part 101 subsequently 

diverged. When the Commission 

determined that FS incumbents in the 

2.1 GHz band would be subject to 

modified relocation procedures, these 

modifications were reflected in the part 

101 relocation rules but inadvertently 

not included in the part 22 rules, 

although part 22 point-to-point services 

also operated in the 2.1 GHz spectrum. 

Thus, at that point, AWS entrants in the 

2.1 GHz band would be required to 

follow the original Emerging 

Technologies rules to relocate part 22 

links, but would use the modified rules 

to relocate part 101 links. 

33. The rules applicable to part 22 

and part 101 links further diverged 

recently, when the Commission 

determined that it would not renew the 

part 22 point-to-point licenses in the 

2110–2130 and 2160–2180 MHz bands, 

but instead allow all current part 22 

fixed service licenses in these bands to 

expire at the end of their current term. 

Commission records indicate that there 

are 53 active part 22 fixed licenses in 

these two bands, and that all will have 

expired by January 3, 2010. Thus, all 

part 22 fixed services will cease 

operations in the 2.1 GHz band by 2010. 

In contrast, part 101 FS licensees in the 

Emerging Technologies spectrum are not 

currently prohibited from renewing 

their licenses. 

34. The NPRM does not propose to 

permit renewal of part 22 fixed service 

licenses in the 2.1 GHz band. The 

NPRM does seek comment, however, on 

whether the relocation rules that apply 

to AWS relocation of part 101 fixed 

services should otherwise apply to AWS 

relocation of part 22 services as well. 

C. Cost Sharing 

35. The Commission’s Emerging 

Technologies relocation policies require 

new licensees who benefit from the 

clearing of the spectrum of incumbent 

operations by an earlier entrant to 

reimburse that entrant for reasonable 

costs incurred in clearing the spectrum. 

The Commission has found that 

adopting cost sharing rules in these 

circumstances serves the public interest 

because it (1) distributes relocation costs 

more equitably among the beneficiaries 

of the relocation; (2) encourages the 

simultaneous relocation of multi-link 

communications systems; and (3) 

accelerates the relocation process, 

promoting more rapid deployment of 

new services. In this section, we discuss 

cost sharing among new licensees when 

they relocate incumbent FS operations 

in the 2110–2150 and 2160–2200 MHz 

bands and when they relocate BRS 

operations in the 2150–2160/62 MHz 

band. 

36. Relocation of Incumbent FS 

Licensees. The part 101 relocation rules 

address, inter alia, the cost sharing 

obligation imposed on new licensees 

when they relocate FS incumbents in 

the 2110–2150 MHz and 2160–2200 

MHz bands, which currently are used by 

FS licensees mostly as paired links in 

the lower and upper bands. Section 

101.82 provides that when a new 

licensee in either of these bands 

relocates an incumbent paired FS link 

with one path in one band and the 

paired path in the other band, the new 

licensee is entitled to reimbursement of 

fifty percent of its relocation costs from 

any subsequently entering new licensee 

which would have been required to 

relocate the same FS link, subject to a 

monetary ‘‘cap.’’ We also note that this 

rule applies to both new AWS licensees 

in the 2110–2150 MHz and 2160–2180 

MHz bands as well as to MSS licensees 

in the 2180–2200 MHz band, which are 

discussed separately below. 

37. In the AWS–2 Service Rules 

NPRM, the Commission recognized that 

a single FS path in these bands could 

cross multiple AWS license areas, and 

thus multiple AWS licensees could 

benefit by the relocation of a single FS 

link. The Commission thus sought 

comment on whether it should adopt 

formal procedures for apportioning 

relocation costs among multiple AWS 

licensees in the 2110–2150 MHz and 

2175–2180 MHz bands, and in 

particular, whether it should apply the 

cost sharing rules in part 24 that were 

used by new PCS licensees when they 

relocated incumbent FS links in the 

1850–1990 MHz band. In this NPRM, 

the Commission seeks comment on 

whether we should adopt formal 

procedures for apportioning relocation 

costs among multiple AWS licensees in 

the 2160–2175 MHz band and in 

particular, whether we should apply the 

cost sharing rules in part 24. We also 

seek comment on whether AWS 

licensees in the 2160–2175 MHz band 

should be subject to the same cost 

sharing regime that we adopt for 

relocation of FS incumbents in the 

2110–2150 MHz and 2175–2180 MHz 

bands. 

38. Under the part 24 cost sharing 

plan, new licensees that incur costs 

relocating an FS link are eligible to 

receive reimbursement from subsequent 

new entrants that also benefited from 

that relocation. Reimbursement claims 

are submitted to one of the private nonprofit clearinghouses designated by the 

Wireless Telecommunications Bureau to 

administer the plan. All new entrants 

are required to file a prior coordination 

NPRM with these clearinghouses before 

beginning operations. Upon receiving 

such a NPRM, a clearinghouse with a 

reimbursement claim on file identifies 

whether the new entrant has benefited 

from the relevant relocation using a 

Proximity Threshold Test. This test 

limits the beneficiaries to those entrants 

turning on a base station that both 

operates in the same spectrum that the 

incumbent link did prior to relocation 

and is within a specified geographic 

distance of the link. Having identified a 

new entrant as a beneficiary, the 

clearinghouse then determines the 

amount of the beneficiary’s repayment 

obligation using a rule-specified cost 

sharing formula. This amount is subject 

to a cap of $250,000 per relocated link, 

plus $150,000 if a new or modified 

tower is required. Once the beneficiary 

is notified of the amount, it is then 

responsible for paying reimbursement 

within 30 days, with an equal share of 

the total going to each entrant that has 

previously contributed to the relocation. 

Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 61759 

FS incumbents that self-relocate are also 

permitted to obtain reimbursement from 

benefiting AWS entrants under the plan, 

subject to the same cap described above. 

Any disputes over cost sharing 

obligations under the rules are 

addressed in the first instance by a 

clearinghouse, and if still unresolved, 

by alternatives such as binding 

arbitration. All of these payment 

obligations are imposed as a default, 

and new licensees are permitted to enter 

into private cost sharing arrangements 

with each other that supercede the cost 

sharing plan as it applies to 

reimbursement between those licensees. 

39. The Commission believes that 

adopting the part 24 cost sharing plan 

for new AWS licensees that relocate FS 

incumbents would have many benefits. 

First, the part 24 plan was devised to 

accommodate new cellular type systems 

licensed by geographic areas and 

incumbent FS point-to-point operations, 

which are essentially the same 

circumstances at issue here, and the part 

24 plan has a proven record of success. 

In 2000, the Commission reviewed the 

operation of the part 24 cost sharing 

rules and concluded that ‘‘[t]hey 

generally have served to promote an 

efficient and equitable relocation 

process * * *.’’ In addition, since the 

plan went into operation in 1996, the 

Commission has resolved numerous 

questions regarding the details of the 

plan’s operation and application. We 

therefore expect that there will be less 

need for clarification if we adopt this 

regime for AWS. For these reasons, we 

anticipate that adopting these rules will 

expedite the relocation of FS 

incumbents and the introduction of new 

services. The NPRM therefore proposes 

to adopt a cost sharing plan for 

relocation of FS incumbents in the 

2160–2175 MHz band based on the part 

24 plan and seek comment on this 

proposal. 

40. While the part 24 rules could be 

applied to the relocation of FS 

incumbents in the 2160–2175 MHz band 

without substantial changes, the 

Commission seeks comment on whether 

some modifications are nevertheless 

appropriate. For example, PCIA has 

suggested in response to the AWS–2 

Service Rules NPRM that, in 

establishing a cost sharing plan for AWS 

relocation of FS, we should modify the 

part 24 plan by (1) establishing a rule 

requiring licensing data to be filed by all 

entities; (2) mandating that parties are 

required to act in good faith in 

connection with their responsibilities 

under the cost sharing plan; (3) 

providing that reasonable interest 

charges can be applied to cost sharing 

obligations; (4) creating an explicit 

mechanism for expedited appeal to the 

Commission from a disputed 

clearinghouse determination; and (5) 

giving weight to the determinations of 

the clearinghouse in such an appeal. We 

seek comment on these suggested 

changes to the part 24 plan. 

41. The part 24 plan delegates 

authority to the Wireless 

Telecommunications Bureau to assign 

the administration of the cost sharing 

rules to one or more private non-profit 

clearinghouses. Management of the part 

24 cost sharing rules by third-party 

clearinghouses has been highly 

successful, and two entities have 

already expressed interest in accepting 

this responsibility for AWS relocation of 

FS in the 2110–2150 MHz and 2175–

2180 MHz bands. We seek comment on 

the rules that should govern such a 

clearinghouse and the procedures and 

quality criteria we should use to select 

a clearinghouse administrator. 

42. As noted, MSS is allocated to the 

2180–2200 MHz band. FS links in this 

band are paired with FS links in the 

2130–2150 MHz band which is 

designated for AWS. Cost sharing 

between MSS and AWS licensees in 

these paired bands is governed by 

§ 101.82, which provides that when a 

new licensee in either of these bands 

relocates an incumbent paired FS link 

with one path in one band and the 

paired path in the other band, the new 

licensee is entitled to reimbursement of 

fifty percent of its relocation costs (i.e., 

the total cost of relocating both paths) 

from any subsequently entering new 

licensee which would have been 

required to relocate the same FS link, 

subject to a monetary ‘‘cap.’’ The 

Commission adopted relocation rules 

for MSS that recognize the unique 

characteristics of a satellite service. For 

example, unlike a new terrestrial entrant 

such as AWS that can clear the band on 

a link-by-link basis, MSS must clear all 

incumbent FS operations in the 2180–

2200 MHz band within the satellite 

service area if interference will occur. 

Thus, the relocation obligations and cost 

sharing among MSS new entrants in the 

2180–2200 MHz is relatively 

straightforward and can function 

without a clearinghouse or formal cost 

sharing procedures. Section 101.82 

establishes a sharing obligation between 

MSS and AWS that is reasonable and 

relatively easy to implement, and 

because it does not depreciate cost 

sharing obligations, it provides MSS 

licensees with additional assurance of 

cost recovery. In addition to this 

consideration, we also do not wish to 

change the relocation and cost sharing 

rules applicable to MSS, because MSS 

licensees are currently in the midst of 

the implementation and relocation 

process. Subsequently, the AWS–2 

Service Rules NPRM has sought 

comment on how the AWS sharing 

obligation (i.e., fifty percent for 

relocating the link) should be 

apportioned among multiple AWS 

licensees. In this NPRM, the 

Commission seeks comment on whether 

MSS entrants entitled to reimbursement 

under § 101.82 should submit their 

reimbursement claims to an AWS 

clearinghouse, including any 

procedures we may adopt for filing such 

claims. The Commission believes that 

this approach would relieve MSS 

licensees of the burden of identifying 

the AWS licensees who would be 

obligated to pay relocation costs. We 

seek comment on this proposal. 

43. Relocation of Incumbent BRS 

Licensees. The NPRM proposes to 

require AWS entrants to relocate BRS 

operations in the 2150–2160/62 MHz 

band on a link-by-link basis, based on 

interference potential. We also note 

certain instances where it may be 

necessary for the AWS licensee to 

relocate more BRS facilities than an 

interference analysis conducted on a 

link-by-link basis might indicate as 

technically necessary, in order to 

provide relocating incumbents with 

comparable facilities—e.g., where an 

AWS licensee may be required to 

relocate BRS operations outside its own 

service area or where BRS incumbents 

operate on combinations of BRS 

channels 1 and 2/2A. Thus, a 

subsequent AWS licensee who operates 

co-channel in an adjacent geographic 

area or who operates on a different 

frequency than the relocator would 

benefit from the relocation of certain 

BRS operations. The relocation of a 

single BRS link could also have more 

than one AWS beneficiary if the BRS 

link uses spectrum that overlaps more 

than one AWS license block. 

Consequently, the Commission seeks 

comment on whether we should 

establish cost sharing obligations for 

AWS licensees who benefit from an 

earlier AWS licensee’s relocation of BRS 

incumbents in the 2150–2160/62 MHz 

band. For example, we seek comment 

on whether cost sharing obligations 

should be imposed on new licensees 

that receive interference but do not 

cause it, as is done with the PCS rules, 

or only on those licensees that cause 

interference, as is the case for both the 

current Emerging Technologies and 

MSS rules in part 101. 

44. The Commission also seeks 

comment on what, if any, specific cost 

sharing obligations are necessary or 

appropriate, including how costs should 

be apportioned among AWS licensees. 

61760 Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 

1See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601–

612, has been amended by the Small Business 

Regulatory Enforcement Fairness Act of 1996 

(SBREFA), Public Law 104–121, Title II, 110 Stat. 

857 (1996). 

2See 5 U.S.C. 603(a). 3 Id. 

4The Multipoint Distribution Service (MDS) was 

renamed the Broadband Radio Service (BRS). 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 NPRM of Proposed Rulemaking, 

19 FCC Rcd 14165 (2004), 69 FR 72020 and 69 FR 

72048, December 10, 2004. 5See Redevelopment of Spectrum to Encourage 

Innovation in the Use of New Telecommunications 

Technologies, ET Docket No. 92–9, First Report and 

Order and Third NPRM of Proposed Rule Making, 

7 FCC Rcd 6886 (1992); Second Report and Order, 

8 FCC Rcd 6495 (1993); Third Report and Order and 

Memorandum Opinion and Order, 8 FCC Rcd 6589 

(1993); Memorandum Opinion and Order, 9 FCC 

Rcd 1943 (1994); Second Memorandum Opinion 

and Order, 9 FCC Rcd 7797 (1994); aff’d 

Association of Public Safety Communications 

Officials-International, Inc. v. FCC, 76 F.3d 395 

(D.C. Cir. 1996) (collectively, ‘‘Emerging 

Technologies proceeding’’). See also Teledesic, LLC 

v. FCC, 275 F.3d 75 (D.C. Cir. 2001) (affirming 

modified relocation scheme for new satellite 

entrants to the 17.7–19.7 GHz band). See also 

Amendment to the Commission’s Rules Regarding 

a Plan for Sharing the Costs of Microwave 

Relocation, WT Docket No. 95–157, First Report 

and Order and Further NPRM of Proposed Rule 

Making, 11 FCC Rcd 8825 (1996); Second Report 

and Order, 12 FCC Rcd 2705 (1997) (collectively, 

Microwave Cost Sharing proceeding). 

Although we noted that the part 24 plan 

could be applied to FS relocation 

without substantial changes, we believe 

that this is not the case for BRS 

operations which are significantly 

different than point-to-point FS 

operations. BRS operations are 

primarily point-to-multipoint, based 

either on a contour around a fixed 

transmitter with protected receive sites 

within the contour or on a wide 

geographic area with multiple base and 

receive sites located anywhere within 

the licensed area. We thus seek 

comment on what criteria could be used 

to identify whether a subsequent AWS 

licensee has an obligation to share the 

cost of relocating a BRS incumbent and 

how the reimbursement obligation 

should be apportioned among AWS 

licensees. Commenters should consider, 

for example, whether we should require 

each AWS licensee to bear this financial 

responsibility in proportion to the 

amount of spectrum in the 2150–2160/ 

62 MHz band for which it is licensed, 

or in proportion to the amount of 

geographic area cleared within its 

licensed market, or some other metric, 

such as MHz/pops. We also seek 

comment on whether we should apply 

a ‘‘cap’’ or some other limit on the 

amount a relocator is entitled to receive 

as reimbursement in order to protect 

later entrants who did not participate in 

negotiations; we also seek comment on 

what the amount of the ‘‘cap’’ should 

be. Moreover, we seek comment on 

whether formal cost sharing procedures, 

such as those in the part 24 plan, are 

necessary or appropriate to implement 

any cost sharing obligations we may 

ultimately adopt, and if so, what 

procedures we should adopt. Finally, 

we seek comment on whether we 

should designate a clearinghouse party 

to administer any cost sharing rules we 

may adopt, the rules that should govern 

a clearinghouse and the procedure and 

quality criteria we should use to select 

a clearinghouse administrator. 

Initial Regulatory Flexibility Analysis 

45. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA),1 the Commission has prepared 

this present Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

a substantial number of small entities by 

the policies and rules proposed in this 

Fifth NPRM of Proposed Rule Making 

(Fifth NPRM). Written public comments 

are requested on this IRFA. Comments 

must be identified as responses to the 

IRFA and must be filed by the deadlines 

for comments on the Fifth NPRM. The 

Commission will send a copy of this 

Fifth NPRM, including this IRFA, to the 

Chief Counsel for Advocacy of the Small 

Business Administration (SBA).2 In 

addition, the Fifth NPRM and IRFA (or 

summaries thereof) will be published in 

the Federal Register.3

A. Need for, and Objectives of, the 

Proposed Rules 

46. The Fifth NPRM proposes 

relocation procedures to govern the 

relocation of: (1) Broadband Radio 

Service (BRS) 4 licensees in the 2150–

2160/62 MHz band; and (2) Fixed 

Microwave Service (FS) licensees in the 

2160–2175 MHz band. The proposed 

relocation procedures generally follow 

the Commission’s relocation policies 

delineated in the Emerging 

Technologies proceeding, and as 

modified by subsequent decisions.5

These relocation policies are designed 

to allow early entry for new technology 

providers by allowing providers of new 

services to negotiate financial 

arrangements for reaccommodation of 

incumbent licensees, and have been 

tailored to set forth specific relocation 

schemes appropriate for a variety of 

different new entrants, including 

Personal Communications Service (PCS) 

licensees, Mobile Satellite Service 

(MSS) licensees, 18 GHz Fixed Satellite 

Service (FSS) licensees, and Nextel. 

While these new entrants occupy 

different frequency bands, each entrant 

has had to relocate incumbent 

operations. The relocation procedures 

we propose in the Fifth NPRM are 

designed to ensure an orderly and 

expeditious transition of, with minimal 

disruption to, incumbent BRS and FS 

operations from the 2150–2160/62 MHz 

and 2160–2175 MHz bands, 

respectively, in order to allow early 

entry for new AWS licensees into these 

bands. 

47. The Fifth NPRM seeks comment 

on what specific relocation procedures 

are best suited for the incumbent BRS 

operators in the 2150–2160/62 MHz 

band. For example, we propose a 

mandatory negotiation period that must 

expire before an emerging technology 

licensee could proceed to request 

involuntary relocation and, due to the 

nature of BRS, ask whether we should 

establish separate, individually 

triggered negotiation periods for each 

BRS licensee. We also seek to develop 

rules that will enable AWS licensees to 

determine when their proposed 

operations would cause interference to 

incumbent BRS systems operating in the 

2150–2160 MHz band, such that the 

relocation of those systems would be 

necessary before AWS operations could 

begin. We identified a number of 

options for setting forth these technical 

requirements, including implementation 

of a ‘‘distance’’ table that identifies the 

distance from an AWS station within 

which a BRS station must be protected, 

and the use of the TIA TSB 10–F 

standard to determine when 

interference is expected to occur to BRS 

stations. The Fifth NPRM similarly seeks 

comment on specific relocation 

procedures for incumbent FS operations 

in the 2160–2175 MHz band, including 

options for modifying sunset periods to 

accommodate new AWS entrants in the 

band. The Fifth NPRM recognizes that 

we have traditionally provided for cost 

sharing among multiple new entrants 

that benefit from the relocation of 

incumbent licensees, and seeks 

comment on what cost sharing 

responsibilities should be implemented 

between the first AWS entrant and other 

subsequent AWS entrants in the 2150–

2160/62 MHz and the 2160–2175 MHz 

bands. We note that in the Emerging 

Technologies and Microwave Cost 

Sharing proceedings, the Commission 

established procedures for relocating 

incumbent operations by new 

technology licensees in the 2160–2200 

MHz band whereby the new licensees 

that relocate a paired microwave link 

with one path in the 2110–2150 MHz 

portion of the band and the other paired 

path in the 2160–2200 MHz portion of 

Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 61761 

6 5 U.S.C. 603(b)(3). 

7 5 U.S.C. 601(6). 

8 5 U.S.C. 601(3) (incorporating by reference the 

definition of ‘‘small business concern’’ in 15 U.S.C. 

632). Pursuant to the RFA, 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, 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.’’ 5 U.S.C. 601(3). 

9Small Business Act, 15 U.S.C. 632 (1996). 

10Amendment 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’’). 

11See 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). 

12Basic 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. 

13 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. 

14 13 CFR 121.201, NAICS code 517510. 

15 Id. 

16U.S. Census Bureau, 1997 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

Firm Size (Including Legal Form of Organization),’’

Table 4 (issued October 2000). 

17 Id. 

18 47 CFR part 101 et seq. (formerly, part 21 of 

the Commission’s Rules) for common carrier fixed 

microwave services (except MDS). 

19Persons 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 operationalfixed 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. 

20Auxiliary 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. 

21 13 CFR 121.201, NAICS code 517212. 

22U.S. Census Bureau, 1997 Economic Census, 

Subject Series: Information, ‘‘Employment Size of 

Firms Subject to Federal Income Tax: 1997,’’ Table 

5 (issued Oct. 2000). 

23 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.’’

the band are entitled to reimbursement 

for a portion of their relocation 

expenses. Because these procedures 

encompass the 2160–2175 MHz band 

discussed in the Fifth NPRM, we seek 

comment on the appropriate application 

of cost sharing requirements. One 

option is to establish new cost sharing 

procedures for the band that are based 

on our existing part 24 cost sharing 

rules that were used for PCS relocation, 

while at the same time retaining and 

integrating the existing cost sharing 

requirement in part 101. 

48. After evaluating comments filed in 

response to the Fifth NPRM, the 

Commission will examine further the 

impact of all rule changes on small 

entities and set forth its findings in the 

Final Regulatory Flexibility Analysis. 

B. Legal Basis 

49. The proposed action is authorized 

under sections 1, 4(i), 7(a), 301, 303(f), 

303(g), 303(r), 307, 316, and 332 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151, 154(i), 157(a), 

301, 303(f), 303(g), 303(r), 307, 316, and 

332. 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules Will Apply 

50. 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.6 The 

RFA generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ 7 In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’

under the Small Business Act.8 A small 

business concern is one which: (1) Is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the SBA.9

51. Broadband Radio Service. The 

Broadband Radio Service (BRS) consists 

of Multichannel Multipoint Distribution 

Service (MMDS) systems, which were 

originally licensed to transmit video 

programming to subscribers using the 

microwave frequencies of Multipoint 

Distribution Service (MDS) and 

Instructional Television Fixed Service 

(ITFS).10 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.11 The MDS auction 

resulted in 67 successful bidders 

obtaining licensing opportunities for 

493 Basic Trading Areas (BTAs).12 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.13

52. In addition, the SBA has 

developed a small business size 

standard for Cable and Other Program 

Distribution,14 which includes all such 

companies generating $12.5 million or 

less in annual receipts.15 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.16

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.17 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 proposals only affect BRS 

operations in the 2155–2160/62 MHz 

band, the actual number of BRS 

providers who will be affected by the 

proposed relocation procedures will 

only represent a small fraction of these 

small businesses. 

53. Fixed Microwave Services. 

Microwave services include common 

carrier,18 private-operational fixed,19

and broadcast auxiliary radio services.20

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.21 According to 

Census Bureau data for 1997, there were 

977 firms in this category, total, that 

operated for the entire year.22 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.23 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 

61762 Federal Register / Vol. 70, No. 206 / Wednesday, October 26, 2005 / Proposed Rules 

24See 5 U.S.C. 603(c). 

estimate that all of the Fixed Microwave 

licensees (excluding broadcast auxiliary 

licensees) would qualify as small 

entities under the SBA definition. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

54. The Fifth NPRM seeks comment 

on proposals for relocation procedures 

applicable to BRS licensees in the 2150–

2160/62 MHz band FS licensees in the 

2160–2175 MHz band, but does not 

propose service rules. Thus, 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 

55. 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.24

56. The proposals contained in the 

Fifth NPRM are designed to provide 

spectrum to support the introduction of 

new advanced mobile and fixed 

terrestrial wireless services. This action 

is critical to the continuation of 

technological advancement, furthers the 

goals of the Telecommunications Act of 

1996, and serves the public interest. We 

are likewise committed to ensuring that 

the disruption to incumbent operations 

and the economic impact of this 

proceeding on incumbent licensees is 

minimal. As discussed in Section A, 

supra, we have proposed to establish 

rules based on our existing Emerging 

Technologies relocation procedures to 

govern the entry of new licensees into 

the 2150–2160/62 MHz and 2160–2175 

MHz bands. An alternative option 

would be to offer no relocation process, 

and instead require incumbent licensees 

to cease use of the band by a date 

certain and prohibit new licensees from 

entering the band until that date. We 

believe that an Emerging Technologiesbased relocation procedure is preferable, 

as it draws on established and well 

known principles (such as time-based 

negotiation periods and the requirement 

of negotiating in good faith), benefits 

small BRS and FS licensees because the 

proposals would require new AWS 

licensees to pay for the costs to relocate 

their incumbent operations to 

comparable facilities, and—for small 

AWS licensees—offers a process by 

which new services can be brought to 

the market expeditiously. Moreover, we 

believe that the provision of additional 

spectrum that can be used to support 

AWS will directly benefit small 

business entities by providing new 

opportunities for the provision of 

innovative new fixed and mobile 

wireless services. 

F. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rule 

57. None. 

Ordering Clauses 

58. Pursuant to Sections 1, 4(i), 7(a), 

301, 303(f), 303(g), 303(r), 307, 316, and 

332 of the Communications Act of 1934, 

as amended, 47 U.S.C. 151, 154(i), 

157(a), 301, 303(f), 303(g), 303(r), 307, 

316, and 332, this Fifth NPRM of 

proposed rule making is adopted. 

59. Notice is hereby given of the 

proposed regulatory changes described 

in this Fifth NPRM of proposed rule 

making, and that comment is sought on 

these proposals. 

60. The Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Eighth Report and Order and Fifth 

NPRM of proposed rule making, 

including the Final Regulatory 

Flexibility Analysis and the Initial 

Regulatory Flexibility Analysis to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Marlene H. Dortch. 

Secretary. 

[FR Doc. 05–21407 Filed 10–25–05; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Parts 173 and 180 

[Docket No. PHMSA–03–14405 (HM–220F)] 

RIN 2137–AD78 

Hazardous Materials Regulations: 

Aluminum Cylinders Manufactured of 

Aluminum Alloy 6351–T6 Used in 

SCUBA, SCBA, Carbon Dioxide, and 

Oxygen Service—Revised 

Requalification and Use Criteria 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Supplemental notice of 

proposed rulemaking. 

SUMMARY: On September 10, 2003, the 

Research and Special Programs 

Administration—the predecessor agency 

to the Pipeline and Hazardous Materials 

Safety Administration published a 

notice of proposed rulemaking (NPRM) 

to propose an inspection and testing 

program for early detection of sustained 

load cracking in certain cylinders 

manufactured with aluminum alloy 

6351–T6. Based on comments received 

in response to that NPRM, we are 

proposing to adopt a maximum service 

life for cylinders manufactured with 

aluminum alloy 6351–T6 and to 

prohibit the use of these cylinders after 

the expiration of their maximum service 

life. 

DATES: Comments must be received by 

December 27, 2005. 

ADDRESSES: You may submit comments 

to Docket No. PHMSA–03–14405 (HM–

220F) by any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• DOT Web site: http://dms.dot.gov. 

To submit comments on the DOT 

electronic docket site, click ‘‘Comment/ 

Submissions,’’ click ‘‘Continue,’’ fill in 

the requested information, click 

‘‘Continue,’’ enter your comment, then 

click ‘‘Submit.’’

• Fax: 202–493–2251. 

• Mail: Docket Management System; 

U. S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

0001. 

• Hand Delivery: Docket Management 

System; Room PL–401 on the plaza level 

of the Nassif Building, 400 Seventh 

Street, SW., Washington, DC, between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays.