[Federal Register Volume 72, Number 219 (Wednesday, November 14, 2007)]
[Proposed Rules]
[Pages 64013-64018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5632]



[[Page 64013]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 15, 27, 90, and 101

[WT Docket No. 07-195; FCC 07-164]


Service Rules for Advanced Wireless Services in the 2155-2175 MHz 
Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, we seek comment on service rules for 
licensed fixed and mobile services, including Advanced Wireless 
Services (AWS), in the 2155-2175 MHz band (AWS-3). We seek comment on 
rules for licensing this newly designated spectrum in a manner that 
will permit it to be fully and promptly utilized to bring advanced 
wireless services to American consumers. Our objective is to allow for 
the most effective and efficient use of the spectrum in this band, 
while also encouraging development of robust wireless broadband 
services. We propose to apply our flexible, market-oriented rules to 
the band in order to meet this objective.

DATES: Comments must be filed on or before December 14, 2007, and reply 
comments must be filed on or before January 14, 2008.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. You may submit comments, identified by WT Docket 
No. 07-195, by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#3c7a7f7f090c087c5a5f5f125b534a"><span class="__cf_email__" data-cfemail="13555050262327537570703d747c65">[email protected]</span></a> 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: Kevin Holmes, Esq., at 202-418-0564.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, released September 19, 2007. The complete text 
of this document, including attachments and related Commission 
documents, is available for inspection and copying during normal 
business hours in the FCC Reference Center (Room CY-A257), 445 12th 
Street, SW., Washington, DC 20554. The complete text of the Notice of 
Proposed Rulemaking and related Commission documents may be purchased 
from the Commission's copy contractor, Best Copy and Printing, Inc., 
445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 
202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its 
Web site http://www.BCPIWEB.com. When ordering documents from BCPI 
please provide the appropriate FCC document number, for example, FCC 
07-38. The Notice of Proposed Rulemaking is available on the 
Commission's Web site: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-164A1.doc.
    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).
    <bullet> 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.
    <bullet> 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 e-mail to <a href="/cdn-cgi/l/email-protection#197c7a7f6a597f7a7a377e766f"><span class="__cf_email__" data-cfemail="3451575247745257571a535b42">[email protected]</span></a>, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
    <bullet> 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 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.
    <bullet> The Commission's contractor will receive hand-delivered or 
messenger-delivered 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.
    <bullet> 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.
    <bullet> 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 <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="482e2b2b7d787c082e2b2b662f273e">[email protected]</a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

I. Summary of Notice of Proposed Rulemaking

    1. In this Notice of Proposed Rulemaking, we consider application, 
licensing, operating, and technical rules for Advanced Wireless 
Services (AWS) \1\ in the 2155-2175 MHz band (AWS-3). Moreover, because 
the available spectrum is one 20-megahertz segment as opposed to two 
separate bands, the symmetrical pairing approach previously used by the 
Commission for

[[Page 64014]]

AWS spectrum \2\ is not possible. Therefore, among other things, we:
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    \1\ Advanced Wireless Services is the collective term we use for 
new and innovative fixed and mobile terrestrial wireless 
applications using bandwidth that is sufficient for the provision of 
a variety of applications, including those using voice and data 
(such as Internet browsing, message services, and full-motion video) 
content. Although AWS is commonly associated with so-called third 
generation (3G) applications and has been predicted to build on the 
successes of such current-generation commercial wireless services as 
cellular and Broadband Personal Communications Services (PCS), the 
services ultimately provided by AWS licensees are limited only by 
the Fixed and Mobile designation of the spectrum we allocate for AWS 
and the service rules we ultimately adopt for the bands.
    \2\ See Service Rules for Advanced Wireless Services in the 1.7 
GHz and 2.1 GHz Bands, WT Docket No. 02-353, Report and Order, 18 
FCC Rcd 25162 (2003) (AWS-1 Service Rules Report and Order); 
modified by Service Rules for Advanced Wireless Services in the 1.7 
GHz and 2.1 GHz Bands, WT Docket No. 02.353, Order on 
Reconsideration, WT Docket No. 02-353, 20 FCC Rcd 14058 (2005); see 
also Service Rules for Advanced Wireless Services in the 1915-1920 
MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands; Service 
Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz 
Bands, WT Docket No. 04-356; WT Docket No. 02-353, Notice of 
Proposed Rulemaking, 19 FCC Rcd 19263 (2004) (AWS-2 Service Rules 
NPRM).
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    [rtrif] Seek comment on the use of an ``uplink/downlink approach'' 
to licensing the spectrum, which would permit the use of technologies 
that allow for both mobile and base transmissions in the band, such as 
technologies based on Time Division Duplexing (TDD) or Half-Duplex 
Frequency Division Duplexing (HFDD),\3\ and on methods to resolve any 
interference challenges that may be associated with such an approach.
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    \3\ TDD, for example, places base and mobiles transmissions on 
the same channel, but in different time slots, while HFDD uses 
separate, adjacent channels in different time slots for base and 
mobile transmissions. We note that several of the recently dismissed 
applications for licenses in this band, see infra note 5, proposed 
technologies that would allow the use of both mobile and base 
station transmissions. FDD, on the other hand, employs spectrally 
separated base and mobile transmit channels with base and mobile 
transmissions occurring at the same time. WiMax is a new 
application, which supports TDD, FDD, and HFDD access technologies.
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    [rtrif] Seek comment on a ``structured uplink/downlink approach,'' 
which would permit both mobile-plus-base transmit operations and base 
transmit operations, but only in particular parts of the band, as 
dictated by the band plan set by the Commission.
    [rtrif] Seek comment on a ``downlink approach'' for the AWS-3 
spectrum, which would limit use of the 2155-2175 MHz band to base 
transmissions only, but would enable licensees to use this spectrum in 
combination with other Frequency Division Duplexing (FDD) bands.\4\
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    \4\ For example, if the AWS-3 spectrum at 2155-2175 MHz is used 
for base-transmit, it could theoretically be paired with mobile-
transmit spectrum from the Personal Communications Services (PCS) at 
1850-1910 MHz, AWS-1 at 1710-1755 MHz, proposed AWS-2 spectrum at 
1915-1920 MHz or 2020-2025 MHz, or Nextel/1.9 GHz spectrum at 1910-
1915 MHz.
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    [rtrif] Seek comment on whether an auction of licenses in a 
simplified subset of alternative band plans might best further our 
overall goals in this proceeding.
    [rtrif] Seek comment on the appropriate license block size for the 
2155-2175 MHz band under each of the three technical approaches under 
consideration for this band.
    [rtrif] Seek comment on whether to license the band using a 
geographic area licensing scheme, under our flexible, market-oriented 
part 27 rules, as well as on the appropriate geographic license block 
size for the band.
    [rtrif] Seek comment on interference issues specific to the band 
under each of the three technical approaches under consideration for 
this band.
    [rtrif] Seek comment on whether to adopt a boundary limit approach 
to limit co-channel interference that could be caused by AWS licensees 
operating in the 2155-2175 MHz band.
    [rtrif] Propose that AWS licensees operating in the 2155-2175 MHz 
band should be required to coordinate with incumbent Fixed Service (FS) 
licensees operating on co-channel and adjacent channel spectrum in the 
band prior to initiating operations.
    [rtrif] Seek comment on our proposals on the power limits, out-of-
band emission restrictions, and other technical or operational 
requirements that might be needed to prevent harmful interference to 
operations in adjacent bands.
    [rtrif] Seek comment on whether any limit should be placed on the 
height-above-average-terrain (HAAT) of base or fixed station antennas 
operating in the 2155-2175 MHz band.
    [rtrif] Propose to permit any use of this spectrum that is 
consistent with the band's fixed and mobile allocations.
    [rtrif] Seek comment on whether we should adopt any of the various 
specific conditions proposed by parties that filed applications for 
operation in this band and other parties, including conditions to 
govern the provision of broadband services at particular data rates, 
with specific build out requirements, and pricing plans, with potential 
access requirements, content restrictions and free access to public 
safety entities.\5\ For example, M2Z Networks, Inc. (M2Z), has 
suggested that the licensees in this band should be subject to certain 
public interest requirements, including the provision of free broadband 
Internet service at certain data rates and certain population-based 
build out benchmarks. NextWave Broadband, Inc., suggested the 
Commission should consider licensing this spectrum in a manner that 
would avoid the filing of mutually exclusive applications, and 
accordingly allow licensing on a non-auctioned basis.
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    \5\ Seven parties filed applications for licenses to provide 
service in the 2155-2175 MHz band, which we recently dismissed 
without prejudice in an Order released August 31, 2007. See 
Applications for License and Authority to Operate in the 2155-2175 
MHz Band, WT Docket No. 07-16, Order; Petitions for Forbearance 
Under 47 U.S.C. 160, WT Docket No. 07-30, Order, FCC 07-161 (rel. 
Aug. 31, 2007) (AWS-3 Applications and Forbearance Petitions Order), 
Appeal and Petitions for Reconsideration pending. On May 5, 2006, 
M2Z filed an application seeking an exclusive, nationwide, 15-year 
license in the 2155-2175 MHz band to operate a wireless broadband 
network. Six additional applications for license and authority to 
operate in the band were filed in March 2007--by Commnet Wireless, 
LLC; McElroy Electronics Corp.; NetfreeUS, LLC; NextWave Broadband, 
Inc.; Open Range Communications, Inc.; and TowerStream Corporation.
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    [rtrif] Seek comment on the benefits and costs of establishing an 
unlicensed regime, either in lieu of a licensed regime or as a 
complement to the licensed regime (by permitting an unlicensed 
underlay).
    [rtrif] Seek comment on using a non-exclusive licensing approach 
for this band, similar to the rules adopted in the 3650-3700 MHz band.
    [rtrif] Propose that the foreign ownership provisions of Sec.  
27.12 should apply to applicants applying for licenses in the 2155-2175 
MHz band.
    [rtrif] Propose not to impose a spectrum aggregation limit or 
eligibility restrictions for the 2155-2175 MHz band.
    [rtrif] Note that, to the extent that a licensee in the 2155-2175 
MHz band provides a Commercial Mobile Radio Service, such service would 
be subject to the provisions of part 20 of the Commission's rules, 
including 911/E911 and hearing aid-compatibility (HAC) requirements, 
along with the provisions in the rule part under which the license was 
issued.
    [rtrif] Propose that the threshold for environmental review of 
fixed transmission facilities should be an effective radiated power 
(ERP) greater than 1000 Watts.
    [rtrif] Propose to employ our part 1 competitive bidding rules, if 
the Commission establishes a licensing regime that requires the use of 
competitive bidding to resolve mutually exclusive applications; seek 
comment on whether any of our part 1 rules would be inappropriate or 
should be modified for an auction of licenses in this band.
    [rtrif] Propose to define a small business as an entity with 
average annual gross revenues for the preceding 3 years not exceeding 
$40 million, and a very small business as an entity with average annual 
gross revenues for the preceding 3 years not exceeding $15 million.
    [rtrif] Propose to provide small businesses with a bidding credit 
of 15 percent and very small businesses with a bidding credit of 25 
percent if we establish non-nationwide service areas, and seek comment 
on whether, if we decide to license the 2155-2175 MHz

[[Page 64015]]

band on a nationwide basis, small business credits would be appropriate 
for this band.
    2. Since 2001, the Commission has designated 130 megahertz of 
spectrum for use by advanced wireless services.\6\ Corresponding 
service rules have been adopted for 90 megahertz of the spectrum in the 
1710-1755 MHz and 2110-2155 MHz bands (AWS-1).\7\ In addition, service 
rules have been proposed for another 20 megahertz in the 1915-1920 MHz, 
1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz bands (AWS-2).\8\ In 
this Notice of Proposed Rulemaking, the Commission proposes service 
rules for an additional 20 megahertz of spectrum for a third AWS block 
(AWS-3) at 2155-2175 MHz, adjacent to the 2110-2155 MHz band of AWS-1 
and the 2175-2180 MHz band of AWS-2.
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    \6\ In the November, 2002 AWS Allocation Second Report and 
Order, the Commission identified and reallocated 90 megahertz (1710-
1755 MHz and 2110-2155 MHz bands) to the fixed and mobile services 
for AWS. See 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, 
Second Report and Order, 17 FCC Rcd 23193 (2002) (AWS Allocation 
Second Report and Order). In the September, 2004 AWS Allocation 
Sixth Report and Order, the Commission designated 20 megahertz 
(1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz 
bands) for fixed and mobile services that include AWS. See 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, Sixth Report and Order, Third 
Memorandum Opinion and Order and Fifth Memorandum Opinion and Order, 
19 FCC Rcd 20720 (2004) (AWS Allocation Sixth Report and Order). 
With regard to the 20-megahertz block at 2155-2175 MHz, the 2160-
2165 MHz band was already allocated for non-Federal Government fixed 
services and mobile services. See 47 CFR 21, 22, and 101. In the AWS 
Allocation Third Report and Order, the 2165-2180 MHz band was 
reallocated for fixed and mobile services, including AWS. See 
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, Third Report and 
Order, Third Notice of Proposed Rulemaking and Second Memorandum 
Opinion and Order, 18 FCC Rcd. 2223, 2238 ] 28 (2002) (AWS 
Allocation Third Report and Order & NPRM). In 2005, the Commission 
allocated 2155-2160 MHz for fixed and mobile services, including 
AWS, and designated the entire 2155-2175 MHz band as AWS spectrum. 
See 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, Eighth Report and 
Order and Fifth Notice of Proposed Rulemaking and Order, 20 FCC Rcd 
15866, 15872 ] 9 (2005) (AWS Allocation Eighth Report and Order and 
Fifth NPRM).
    \7\ See AWS-1 Service Rules Report and Order, supra note 2.
    \8\ See AWS-2 Service Rules NPRM, supra note 2.
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    3. There are numerous incumbents in the 2155-2175 MHz band, which 
contains over 1,800 active licenses. These incumbents consist primarily 
of Fixed Microwave Service (FS) and Broadband Radio Service (BRS) 
licensees, who are subject to relocation by emerging technology (ET) 
licensees (including future AWS-3 licensees). The Commission has 
already addressed relocation and cost-sharing issues with respect to 
the 2155-2175 MHz band in a separate proceeding based on the assumption 
that the AWS-3 band would be exclusively licensed.\9\ Generally, 
incumbents retain primary status unless and until an ET licensee 
requires use of the spectrum. AWS-3 licensees will be required to 
relocate, or share in the cost of a relocation paid for by other AWS 
licensees (including, possibly, AWS-1 licensees), until the relocation 
and cost sharing rules ``sunset.'' For FS, the rules sunset ten years 
after the first ET license is issued in the 2160-2175 MHz band.\10\ For 
BRS, the rules sunset 15 years after the first AWS license is issued in 
the 2150-2160/62 MHz band.\11\ Although we do not anticipate having to 
adopt any further rules regarding these issues, we do seek comment on 
whether changes may be necessary in light of the service rules we 
adopt.
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    \9\ See 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, 
Ninth Report and Order and Order, FCC 06-45 (rel. April 21, 2006) 
(AWS Ninth R&O). See also AWS Allocation Eighth Report and Order and 
Fifth NPRM).
    \10\ See 47 CFR 101.79(a)(1) (10-year sunset date); 27 CFR 
27.1174 (Termination of Cost-Sharing Obligations).
    \11\ See 47 CFR 27.1253(a) (Sunset Provisions).
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Procedural Matters

Ex Parte Rules--Permit-But-Disclose

    4. This is a permit-but-disclose notice and comment rulemaking 
proceeding. Ex parte presentations are permitted, except during the 
Sunshine Agenda period, provided they are disclosed pursuant to the 
Commission's rules.\12\
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    \12\ See generally 47 CFR 1.1202, 1.1203, 1.1206.
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Initial Regulatory Flexibility Analysis

    5. As required by the Regulatory Flexibility Act of 1980 (RFA),\13\ 
the Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities of 
the policies and rules proposed in the NPRM. The analysis is found in 
the attached Appendix. We request written public comment on the 
analysis. Comments must be filed by the dates listed in this NPRM, and 
must have a separate and distinct heading designating them as responses 
to the IRFA. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, will send a copy of this NPRM, including 
the IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration.
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    \13\ 5 U.S.C. 603.
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Initial Paperwork Reduction Analysis

    6. This document contains proposed new or modified information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public and the 
Office of Management and Budget (OMB) to comment on the information 
collection requirements contained in this document, as required by the 
Paperwork Reduction Act of 1995, Pub. L. 104-13. Public and agency 
comments are due 60 days after date of publication in the Federal 
Register. Comments should address: (a) Whether the proposed collection 
of information is necessary for the proper performance of the functions 
of the Commission, including whether the information shall have 
practical utility; (b) the accuracy of the Commission's burden 
estimates; (c) ways to enhance the quality, utility, and clarity of the 
information collected; and (d) ways to minimize the burden of the 
collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology. In addition, pursuant to the Small Business Paperwork 
Relief Act of 2002,\14\ we seek specific comment on how we might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''
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    \14\ Pub. L. 107-198, see 44 U.S.C. 3506(c)(4).
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A. Need for, and Objectives of, the Proposed Rules
    7. The NPRM contemplates service rules for licensed fixed and 
mobile services, including advanced wireless services (AWS), in the 
2155-2175 MHz band. These service rules include application, licensing, 
operating and technical rules and competitive bidding provisions for 
the AWS-3 spectrum band.\15\ Consistent with the Commission's policy 
objective of affording licensees the flexibility to deploy new 
technologies, to implement service innovations, and to respond to 
market forces, the NPRM proposes service rules that provide AWS-3 
licensees with the flexibility to provide

[[Page 64016]]

any fixed or mobile service, including advanced wireless services, that 
is consistent with the allocations \16\ for this spectrum. To promote 
flexibility, the NPRM also proposes to license this spectrum under the 
Commission's market-oriented part 27 rules. The substantial flexibility 
provided by the part 27 rules would encourage the deployment of a wide 
variety of fixed and mobile services. The market-oriented licensing 
framework for these bands would ensure that this spectrum is 
efficiently utilized and will foster the development of new and 
innovative technologies and services, as well as encourage the growth 
and development of broadband services, ultimately leading to greater 
benefits to consumers.
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    \15\ See NPRM, para. 1, supra.
    \16\ Id.
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    8. The NPRM seeks to adopt rules that will reduce regulatory 
burdens, promote innovative services, and encourage flexible use of 
this spectrum. Such an approach opens up economic opportunities to a 
variety of spectrum users, which could include small businesses. The 
NPRM considers various proposals and alternatives partly because the 
Commission seeks to minimize, to the extent possible, the economic 
impact on small businesses.
    9. The NPRM contemplates three different technological approaches. 
First, the NPRM contemplates an approach that would allow uplink/
downlink in the band, possibly resulting in an unpaired 20-megahertz 
spectrum band that could be used for Time Division Duplexing (TDD) or 
Half-Duplex Frequency Division Duplexing (HFDD) based technology. 
Second, the Commission could also adopt a structured uplink/downlink 
approach where a mix of both base-transmit and mobile-and-base transmit 
services would be utilized in the band. Under this approach, some or 
portions of the 2155-2175 MHz band could be asymmetrically paired with 
other base- and mobile-transmit spectrum blocks with pairings composed 
of different bandwidths. Alternatively, the NPRM seeks comment on an 
approach that would permit only base transmissions in the band. Under 
this approach, some or portions of the 2155-2175 MHz band could be 
asymmetrically paired with other base- and mobile-transmit spectrum 
blocks with pairings composed of different bandwidths. The Commission 
contemplates rules which will determine the appropriate approach to 
utilize.
    10. Prior to the adoption of the NPRM, the Commission adopted an 
Eighth Report and Order, in ET Docket No. 00-258, allocating 2155-2160 
MHz for fixed and mobile services, including AWS, and designated the 
entire 2155-2175 MHz band as AWS spectrum.\17\ The Commission's goal is 
to enable service providers to maximize the use of this spectrum with 
minimal transaction costs. Within the limits of the licensed fixed and 
mobile allocation, the marketplace and not the Commission will 
determine how this spectrum is used. Thus, the NPRM's proposals allow 
flexibility for licensees to provide third generation (3G) and other 
advanced wireless services in the near term, while fostering innovation 
and agility so they can quickly adapt to changes in technological 
capabilities and marketplace conditions into the future. It is the 
Commission's belief that the licensing and service rules proposed in 
the NPRM will benefit consumers by giving them the services and value 
that they demand, and thereby provide the new business opportunities 
necessary to support continued service enhancements by licensees.
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    \17\ See AWS Allocation Eighth Report and Order and Fifth NPRM.
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    11. The Commission also contemplates rules which will have the 
effect of setting performance requirements. An issue we frame is 
whether licensees in the 2155-2175 MHz band should be subject to any 
performance requirements in addition to a substantial service 
requirement at license renewal. The NPRM notes that in some services 
the Commission has imposed minimum coverage requirements on licensees 
to ensure that spectrum is used effectively and service is implemented 
promptly. A related issue is whether the Commission should establish 
any specific coverage requirements in the 2155-2175 MHz band, or 
whether coverage criteria should be adopted as one means, but not the 
exclusive means, of meeting a substantial service requirement. We 
propose for consideration the issue of whether licensees should be 
subject to interim performance requirements prior to the end of the 
license term.
    12. The NPRM also contemplates rules that will allow licensees in 
the 2155-2175 MHz band to partition their service areas and to 
disaggregate their spectrum. If the Commission permits partitioning, 
then the partitioning licensee would have to include with its request a 
description of the partitioned service area, a calculation of the 
population of the partitioned service area, and the licensed geographic 
service area.
    13. The NPRM also contemplates rules on a number of technical 
issues and licensing obligations. A major concern in this context is 
about how best to control in-band and out-of-band interference, 
appropriate power limits, RF safety limits, and Canadian and Mexican 
coordination.\18\ The NPRM also proposes to permit applicants to 
request common carrier status as well as non-common carrier status for 
authorization in a single license, rather than to require the applicant 
to choose between common carrier and non-common services.\19\
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    \18\ See NPRM, para. 1, supra.
    \19\ Id.
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    14. In addition, the NPRM contemplates operations for licensing the 
new services. For example, the FCC is considering whether to license 
the AWS-3 spectrum using geographic licensing, as opposed to site-by-
site licensing.
    15. The Commission contemplates the appropriate size(s) of the 
geographic service area or areas on which licenses should be based. The 
Commission also contemplates the benefits and costs of establishing an 
unlicensed regime, either in lieu of a licensed regime or as a 
complement to a licensed regime, and/or non-exclusive licensing 
approach.\20\
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    \20\ Id.
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    16. Although the Commission does not know precisely what types of 
services may be developed in the 2155-2175 MHz band, the Commission 
anticipates that the services that will be deployed in the band may 
have capital requirements comparable to those in the broadband PCS 
service and AWS-1 in the 1710-1755 MHz and 2110-2155 MHz bands because 
of their adjacency, or close proximity, to the AWS-3 spectrum band and 
the record in related proceedings suggest similar services are being 
contemplated for all these bands. In particular, the Commission 
anticipates that licensees in the 2155-2175 MHz band will be presented 
with issues and capital and other cost requirements similar to those 
presented to broadband PCS licensees and licensees in the 1710-1755 MHz 
and 2110-2155 MHz bands, including issues and costs involved in 
relocating incumbents, and developing markets, technologies, and 
services. Because of those anticipated similarities and other technical 
and spectral benefits, the Commission is considering the possibility of 
uplink/downlink use, or structured uplink/downlink and or downlink use, 
involving asymmetrically pairing AWS-3 spectrum with adjacent AWS or 
PCS spectrum bands.
    17. In light of these similarities, the NPRM concurrently 
contemplates the adoption of the same small business size standards for 
the 2155-2175 MHz band

[[Page 64017]]

as the Commission adopted for broadband PCS and AWS-1 in the 1710-1755 
MHz and 2110-2155 MHz bands. Accordingly, if the Commission adopts 
bidding credits, the NPRM proposes to define a small business as an 
entity with average annual gross revenues for the preceding three years 
not exceeding $40 million, and a very small business as an entity with 
average annual gross revenues for the preceding three years not 
exceeding $15 million. \21\
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    \21\ We are coordinating these proposed small business size 
standards with the U.S. Small Business Administration.
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    18. The Commission also proposes, in the event that it establishes 
non-nationwide service areas, to provide small businesses with a 
bidding credit of 15 percent and very small businesses with a bidding 
credit of 25 percent, as set forth in the standardized schedule in part 
1 of the Commission's rules. Accordingly, we frame the issue of the use 
of these standards and associated bidding credits for applicants to be 
licensed in the 2155-2175 MHz band, with particular focus on the 
appropriate definitions of small and very small businesses as they may 
relate to the size of the geographic area to be covered and the 
spectrum allocated to each license. In discussing these issues, 
commenters are requested to address the expected capital requirements 
for services in these bands and other characteristics of the service. 
Commenters are also invited to use comparisons with other services for 
which the Commission has already established auction procedures as a 
basis for their comments regarding the appropriate small business size 
standards.
    19. The FCC seeks comment on all the rules contemplated above and 
on optional ways of implementing such contemplated rules, and on any 
other possible rules which commenters wish to suggest and discuss 
relative to the Regulatory Flexibility Act.
B. Legal Basis
    20. The proposed action is authorized pursuant to Sec. Sec.  1, 2, 
4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 
and 333 of the Communications Act of 1934, 47 U.S.C. Sec. Sec.  151, 
152, 154(i), 157, 160, 201, 214, 301, 302, 307, 308, 309, 310, 319, 
324, 332, 333.
C. Description and Estimate of the Number of Small Entities To Which 
the Proposed Rules Will Apply
    21. 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. \22\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
government jurisdiction.'' \23\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act. \24\ A small business 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. \25\
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    \22\ 5 U.S.C. 603(b)(3).
    \23\ 5 U.S.C. 601(6).
    \24\ 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).
    \25\ Small Business Act, 15 U.S.C. 632 (1996).
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    22. The Commission has not yet determined how many licenses will be 
awarded in the 2155-2175 MHz bands. Moreover, the Commission does not 
yet know how many applicants or licensees in these bands will be small 
entities. Thus, the Commission assumes, for purposes of this IRFA, that 
all prospective licensees are small entities as that term is defined by 
the SBA or by our proposed small business definitions for these bands. 
Though the Commission does not know for certain which entities are 
likely to apply for these frequencies, we note that the 2155-2175 MHz 
bands are comparable to cellular service and personal communications 
service. \26\
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    \26\ See IRFA at para. 19, supra.
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    Accordingly, we believe the following regulated entities will be 
directly affected by our contemplated rules.
    23. Wireless Service Providers. The SBA has developed a small 
business size standard for wireless firms within the two broad 
economics census categories of ``Paging'' \27\ and ``Cellular and Other 
Wireless Telecommunications.'' \28\ Under both categories, the SBA 
deems a wireless business to be small if it has 1,500 or fewer 
employees.
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    \27\ 13 CFR 121.201, NAICS code 517211.
    \28\ 13 CFR 121.201, NAICS code 517212.
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    Paging. For the census category of Paging, Census Bureau data for 
2002 show that there were 807 firms in this category that operated for 
the entire year.\29\ Of this total, 804 firms had employment of 999 or 
fewer employees, and three firms had employment of 1,000 employees or 
more.\30\ Thus, under this category and associated small business size 
standard, the majority of firms can be considered small.
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    \29\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517211 (issued Nov. 2005).
    \30\ 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 for firms with ``1000 
employees or more.''
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    Cellular and Other Wireless Telecommunications. For the census 
category of Cellular and Other Wireless Telecommunications, Census 
Bureau data for 2002 show that there were 1,397 firms in this category 
that operated for the entire year.\31\ Of this total, 1,378 firms had 
employment of 999 or fewer employees, and 19 firms had employment of 
1,000 employees or more.\32\ Thus, under this second category and size 
standard, the majority of firms can, again, be considered small.
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    \31\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
    \32\ 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 for firms with ``1000 
employees or more.''
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D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    24. New recordkeeping or reporting requirements are contemplated in 
the NPRM. However, until the FCC resolves how to assign license(s) for 
the band, e.g., unlicensed vs. licensed approach, these requirements 
are difficult to describe with great specificity because the Commission 
does not know precisely what types of services may be developed in the 
2155-2175 MHz band.
    25. Nonetheless, the following recordkeeping or reporting 
requirements seem applicable under a licensed approach. Entities 
interested in acquiring an initial license to use the spectrum in the 
2155-2175 MHz band will be required to file license applications using 
the Commission's automated Universal Licensing System (ULS). ULS is an 
online electronic filing system that also serves as a powerful 
information tool that enables potential licensees to research 
applications, licenses, and antenna structures. It also keeps the 
public informed with weekly public notices, FCC rulemakings, processing 
utilities, and a telecommunications glossary. ULS also features a 
Geographic Information System (GIS), a digital mapping technology that 
identifies spectrum use in relation to geographic areas. As in other 
services, licensees in these bands

[[Page 64018]]

would be allowed to provide all allowable services anywhere within 
their licensed area. The Commission's current mobile service license 
application requires an applicant for mobile services to identify the 
regulatory status of the service(s) they intend to provide, since 
service offerings may bear on eligibility and other statutory and 
regulatory requirements.
E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    26. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its adopted 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.\33\
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    \33\ See U.S.C. 603(c)(1)-(4).
---------------------------------------------------------------------------

    27. Specifically to assist small businesses, the NPRM proposes to 
establish small business size standards and associated small business 
bidding credits for the 2155-2175 MHz band in the event that licenses 
are assigned by competitive bidding and licensing is based on non-
nationwide geographic areas.\34\ The NPRM proposes a bidding credit of 
15 percent for small businesses and a bidding credit of 25 percent for 
very small businesses. The NPRM seeks comment on whether small business 
bidding credits would be appropriate if a nationwide licensing scheme 
is adopted for the 2155-2175 MHz band. The NPRM notes that the 
implementation costs associated with a nationwide license in these 
bands is presumed to be very high, and it is not clear whether small 
businesses could attract the capital necessary to implement and provide 
nationwide service. Accordingly, we ask commenters to address the 
expected capital requirements for services in these bands and other 
characteristics of the service. The Commission invites commenters to 
use comparisons with other services for which the Commission has 
already established auction procedures as a basis for their comments 
regarding the appropriate small business size standards and associated 
small business bidding credits. The Commission requests comment on any 
other alternatives to minimize significant economic impact on small 
entities.
---------------------------------------------------------------------------

    \34\ See IRFA para. 19, supra.
---------------------------------------------------------------------------

    28. The NPRM solicits comment on various alternatives regarding the 
service rules for the 2155-2175 MHz band.\35\ The NPRM seeks to adopt 
rules that will reduce regulatory burdens, promote innovative services 
and encourage flexible use of this spectrum. The NPRM also seeks to 
open up economic opportunities to a variety of spectrum users, which 
could include small businesses. The NPRM considers various proposals 
and alternatives partly because the Commission seeks to minimize, to 
the extent possible, the economic impact on small businesses.\36\ The 
Commission requests comment on any other alternatives to minimize 
significant economic impact on small entities.
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    \35\ See, e.g., NPRM, para. 1, supra.
    \36\ See, e.g., NPRM, para. 1 (competitive bidding provisions 
for designated entities), supra.
---------------------------------------------------------------------------

    29. The NPRM invites comment on various alternative licensing and 
service rules and on a number of issues relating to how the Commission 
should craft service rules for the AWS-3 spectrum that could have an 
impact on small entities. For example, the Commission seeks comment on 
the size of spectrum blocks for these frequencies and how the size of 
spectrum blocks would impact small entities. The NPRM proposes a 
geographic area approach to service areas, as opposed to a station-
defined licensing approach, and seeks comment on the appropriate size 
of service areas. Specifically, the NPRM asks for comment on whether 
smaller geographic areas would better serve the needs of small 
entities. The NPRM explains that the Commission's approach to 
determining optimum geographic area license size(s) attempts to 
accommodate the likely range of applicant desires by balancing 
efficiency with the policy goal of disseminating licenses among a wide 
variety of applicants. The NPRM notes that the Commission wishes to 
foster service to rural areas and tribal lands, and to promote 
investment in and rapid deployment of new technologies and services. 
The NPRM also notes that small license areas may favor smaller entities 
and regional business plans and no interest in providing large-area 
service. In summary, the NPRM seeks comment on the advantages and 
disadvantages to small entities of a large geographic licensing scheme 
over a small one in terms of impact on rural and small entities. The 
Commission requests comment on any other alternatives to minimize 
significant economic impact on small entities.
    30. As noted earlier, the NPRM seeks comment on permitting 
geographic partitioning and spectrum disaggregation. The NPRM notes 
that geographic partitioning and spectrum disaggregation is a tool 
utilized by the Commission to promote efficient spectrum use and 
economic opportunity for a wide variety of applicants, including small 
business, rural telephone, minority-owned, and women-owned applicants. 
The NPRM seeks comment on the benefits and costs of partitioning and 
disaggregation, and whether it promotes the public interest. Finally, 
the NPRM, seeks comment on whether any band-specific limits on spectrum 
aggregation are necessary or appropriate in this case, and how this 
would impact the marketplace, including small entities. The Commission 
requests comments on any other alternatives to minimize significant 
economic impact on small entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    31. None.

Ordering Clauses

    32. Pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 
303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Commissions Act 
of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 
307, 308, 309, 310, 319, 324, 332, 333, that this Notice of Proposed 
Rulemaking is hereby adopted.
    33. Notice is given of the proposed regulatory changes described in 
this Notice of Proposed Rulemaking, and that comment is sought on these 
proposals.
    34. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Notice of 
Proposed Rulemaking, including 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. 07-5632 Filed 11-13-07; 8:45 am]
BILLING CODE 6712-01-M


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