[Federal Register Volume 60, Number 47 (Friday, March 10, 1995)]
[Proposed Rules]
[Pages 13102-13105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5371]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[ET Docket No. 94-32; FCC No. 95-47]


Allocation of Spectrum Below 5 GHz Transferred From Federal 
Government Use

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This Second Notice of Proposed Rule Making, proposes rules to 
govern assignment and use of the 50 megahertz of spectrum transferred 
from Federal Government use to private use and allocated in the 
companion First Report and Order, published elsewhere in this issue. 
This action is necessary to comply with provisions of the Omnibus 
Budget Reconciliation Act of 1993 (Reconciliation Act), that require 
the Commission to allocate, and propose regulations to assign, this 
spectrum within 18 months of adoption of the Reconciliation Act. Our 
goal in taking this action is to provide for use of spectrum 
transferred from Federal Government to private sector use in a way that 
will benefit the public by providing for the introduction of new 
services and devices and enhance existing services and devices.

DATES: Comments must be filed on or before March 20, 1995, and reply 
comments must be filed on or before April 4, 1995.

ADDRESSES: Federal Communications Commission, 1919 M St., NW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:
Karen Rackley, Wireless Telecommunication Bureau, (202) 418-0620.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Notice of Proposed Rule Making, ET Docket No. 94-32, FCC No. 95-47, 
adopted February 7, 1995, and released February 17, 1995 (Notice). The 
full text of this Notice is available for inspection during normal 
business hours in the Records Room of the Federal Communications 
Commission, Room 239, 1919 M St., NW., Washington, DC. The complete 
text may be purchased from the Commission's copy contractor, ITS, Inc., 
2100 M St., NW., Suite 140, Washington, DC 20037, telephone (202) 857-
3800.

Summary of Second Notice of Proposed Rule Making

    1. By this action, the Commission proposes rules governing the use 
of 50 megahertz of spectrum, at 2390-2400 MHz, 2402-2417 MHz, and 4660-
4685 MHz, that has been transferred from Federal Government to private 
sector use. In the First Report and Order, the Commission allocated the 
2390-2400 MHz band for use by unlicensed Personal Communications 
Services (PCS) devices, provided for continued use of the 2402-2417 MHz 
band by devices operating in accordance with Part 15 of the 
Commission's Rules allocated both of these bands for use by the Amateur 
service on a primary basis, and allocated the 4660-4685 MHz band for 
use by Fixed and Mobile services.

2390-2400 MHz

    2. Because the Commission already has rules in place governing 
unlicensed PCS, the Notice does not seek additional comment on services 
rules. The Notice, however, seeks comment on whether some allowance 
should be made to accommodate operations that combine use of the 2390-
2400 MHz with the adjacent 2400-2483.5 MHz band for use as a single, 
large Part 15 band. The Notice proposes to specifically prohibit 
aeronautical use of unlicensed PCS devices operating at 2390-2400 MHz 
as requested by some commenters, but does not proposed to restrict use 
of unlicensed PCS devices in the vicinity of the National Astronomy and 
Ionospheric Center. Finally, the Notice requests comment on whether it 
is unnecessary to propose any formal standards for sharing between 
unlicensed PCS and Amateur service, whether there is a need to restrict 
certain uses by either the Amateur [[Page 13103]] service or unlicensed 
PCS devices that might be particularly disruptive, or whether the 
Commission should seek to implement rules for coordination of Amateur/
PCS use.

2402-2417 MHz

    3. Both the Amateur service and Part 15 devices operating at 2402-
2417 MHz continue to be governed in accordance with current applicable 
technical and operational rules. However, the Commission seeks comment 
on whether any changes should be made to the Commission's rules to 
facilitate use of this band by the Amateur service and Part 15 devices.

4660-4685 MHz

A. Service Rules

    4. The Notice proposes to create the General Wireless 
Communications Service (GWCS), a new service for licensing of the 4660-
4685 MHz band, which would allow a licensee to provide any Fixed or 
Mobile service, consistent with the allocation of this band and the 
Commission's proposed rules described below. The Notice also seeks 
comment on the possibility of better accommodating the needs of users 
by prescribing rules that provide for utilization of the 4660-4685 MHz 
frequency band only by specific services.

B. Use of Spectrum

    5. The Notice tentatively concludes that the principal use of this 
spectrum under the proposed General Wireless Communications Service 
will involve or is reasonably likely to involve the receipt by the 
licensee of compensation from subscribers in return for enabling those 
subscribers to receive or transmit communications signals, thus 
enabling the Commission to propose competitive bidding as the 
assignment method for this spectrum. To help the Commission make an 
accurate determination regarding the extent to which this spectrum will 
be used for subscriber-based services, the Notice requests that 
commenters describe their spectrum needs and provide an indication of 
the degree of competition expected within a particular geographic 
service area, because the likelihood of subscriber use may vary among 
geographic areas.

C. Assignment Methods

    6. Sections 309(j)(1) and 309(j)(2) of the Communications Act 
permit auctions where mutually exclusive applications for initial 
licenses or construction permits are accepted for filing by the 
Commission and where the principal use of the spectrum will involve or 
is reasonably likely to involve the receipt by the licensee of 
compensation from subscribers in return for enabling those subscribers 
to receive or transmit communications signals. As described in the 
preceding section, the Commission believes that the principal use of 
this spectrum will meet these requirements. In order to comply with 
Section 309(j)(2)(b) of the Communications Act, the Notice also 
tentatively concludes that the use of competitive bidding to assign 
licenses in the 4660-4685 MHz band bill promote the objectives 
described in Sections 1 and 309(j)(3) of the Communications Act. Thus, 
the Commission tentatively concludes that competitive bidding should be 
used to award licenses in the 4660-4685 MHz band in the new General 
Wireless Communications Service if mutually exclusive applications are 
filed.
    7. Although the Notice proposes the use of a system of competitive 
bidding to assign licenses for the General Wireless Communications 
Service in the 4660-4685 MHz band, the Commission also seeks comment 
regarding whether the Commission should utilize a different assignment 
method.
    8. One important aspect of any assignment method is determining 
whether applications are mutually exclusive. The Notice proposes to use 
a 30-day filing window or other application cut-off method to allow for 
competing initial applications. The Notice seeks comment on this 
proposal, particularly whether some other type of filing group would be 
more appropriate for determining whether initial applications are 
mutually exclusive.

D. Channelization; Aggregation

    9. The Notice proposes that the 4660-4685 MHz band be licensed in 
five blocks, each of which would be 5 megahertz wide. Based on 
available information about the likely services to be provided in this 
band, the Commission tentatively concludes that no licensee would need 
more than 15 megahertz in a single market area. Therefore, the Notice 
proposes to limit a single entity from obtaining more than three of 
these blocks in a single geographic licensing area. The Commission also 
proposes that, regardless of the specific service to be provided, this 
spectrum will not count against the 45 MHz spectrum cap that applies to 
certain commercial mobile radio service (CMRS) licensees.

E. License Area

    10. The Notice proposes that all licenses issued in the GWCS be 
based on Major Trading Areas (MTA). The Commission does not propose to 
restrict the number of MTAs in which a party may obtain a license. 
Because an MTA may be too large for some licensees, the Notice proposes 
to permit licensees to lease the rights to operate a general wireless 
communication system within portions of their authorized geographic 
service area or transfer a portion of their license to geographically 
partition their service area, allowing another party to be licensed in 
the partitioned area.
    11. If the Commission determines that a mix of subscriber, non-
subscriber, and private-based services is likely in the 4660-4685 MHz 
band, the Commission may issue licenses based on different geographic 
regions for different portions of the bands or for different areas of 
the Nation. Commenters that seek spectrum for non-subscriber based 
services should address the issue of whether the Commission should 
allow licensees to sell or lease their excess capacity and specify 
under what circumstances such transfer or lease would be allowed.

F. Eligibility

    12. If the Commission determines that it is reasonably likely that 
the services to be provided will be commercial services, the Notice 
proposes no restrictions on eligibility to apply for licenses in this 
band other than those foreign ownership restrictions that apply to CMRS 
and common carrier fixed system licensees, and the restriction on 
foreign governments or their representatives related to the holding of 
private service licenses.

G. Competitive Bidding Issues

    13. The Notice proposed that, to the extent that the Commission 
determines that it is reasonably likely that some or all of the 4660-
4685 MHz band will be used for services that meet the criteria for 
issuing licenses pursuant to auctions, the Commission will use auctions 
to issue licenses. The Commission believes that simultaneous multiple 
round bidding should be the preferred method for licensing of the 
proposed 5 MHz-wide MTA spectrum blocks. The Notice tentatively 
concludes that simultaneous multiple round bidding is most likely to 
award MTA licenses to bidders who value them the most highly and who 
are most likely to deploy new technologies and services rapidly. The 
Notice asks commenters to address this tentative conclusion and whether 
any other competitive bidding designs might be more appropriate for the 
licensing of this spectrum.
    14. In addition, the Notice also seeks comments on which blocks 
should be auctioned together, the intervals between rounds in each 
auction, and the sequencing of each auction. The 
[[Page 13104]] Commission's tentative view is that all 255 licenses (51 
MTA licenses on each of 5 spectrum blocks) should be auctioned 
simultaneously because of the relatively high value and significant 
interdependence of the licenses.
    15. The Commission also seeks comment on bidding procedures to be 
used in the 4660-4685 MHz auctions, including bid increments, duration 
of bidding rounds, stopping rules, and activity rules. The Notice 
generally proposes to follow the procedural, payment, and penalty rules 
established in Subpart Q of Part I of the Commission's Rules, but seeks 
comment on whether any service-specific modifications of these rules 
are needed based on the particular characteristics of the 4660-4685 MHz 
band licenses.
    16. In keeping with the general parameters set forth in the 
Competitive Bidding docket, PP Docket No. 93-253, the Notice proposes 
specific measures and eligibility criteria for small businesses, rural 
telephone companies, and minority- and women-owned businesses 
(collectively, ``designated entities'') in the 4660-4685 MHz band 
designed to ensure that such entities are given the opportunity to 
participate both in the competitive bidding process and in the 
provision of service in the 4660-4685 MHz band.

H. Technical Rules

    17. The fact that the Commission is proposing a new radio service 
for this band that can be used to provide any mobile or fixed 
communications service, regardless of whether that service is 
subscriber based or not, argues for general minimal technical 
restrictions. Specifically, the Notice proposes to limit the field 
strength at licensees' service area boundaries to 55 dBu unless 
licensees operating in adjacent areas agree to higher field strengths 
along their mutual border. The Notice does not propose to establish 
adjacent-channel interference limits at the frequency boundaries 
between licensees in this band, but the Commission would encourage 
licensees to resolve adjacent channel interference problems. The 
Commission, however, proposes to require licensees to attenuate the 
power below the transmitter power (P) by at least 43 plus 
101og<INF>10(P) or 80 decibels, whichever is less, for any emission at 
the edges of the 4660-4685 MHz band. The Notice also requests comment 
on whether a maximum transmitter power or maximum effective radiated 
power is necessary or whether licensees should be permitted to use any 
power that they believe is appropriate, provided that they do not 
exceed the maximum permissible field strength at the border of their 
licensed area. Commenters should also specifically address the need for 
out of band emission at the edges of the entire 4660-4685 MHz.

I. License Term

    18. For services in the 4660-4685 MHz band, the Notice proposes to 
establish a term of 10 years for licenses in this band, with a renewal 
expectancy based on that of PCS and cellular telephone licensees. The 
Commission notes, however, the commenters have proposed using this band 
for auxiliary broadcast service and the statute requires that the term 
of any license for the operation of any auxiliary broadcast station or 
equipment must be concurrent with the term of the license for such 
primary television station. Therefore, commenters should address 
whether the Commission should allow differing license terms in this 
band.

J. Construction Requirements

    19. The Notice proposes to require build-out rules modeled on those 
adopted for broadband PCS. Specifically, the Commission proposes that 
within five years, licensees in this band offer service to one-third of 
the population in the area in which they are licensed. Further, 
licensee would have to serve two-thirds of the population in the area 
in which they are licensed within ten years of being licensed. Failure 
by any licensee to meet these construction requirements will result in 
forfeiture of the license and the licensee will be ineligible to regain 
it.

K. Regulatory Status

    20. The Communications Act and Commission regulation often apply 
differing requirements based on the type of service and the regulatory 
status of licensees. In addition recent changes to the Communications 
Act have created different standards for Fixed and Mobile services for 
determining the regulatory status of a licensee.
    21. The Commission has decided to propose a new GWCS for the 4660-
4685 band that would allow licensees to provide a variety or 
combination of Fixed and Mobile services. Under this service, both 
Fixed and Mobile applications would be permitted and an individual 
licensee could provide a number of Fixed and Mobile services. The 
commission notes that, under the proposed approach, it may be difficult 
to determine the regulatory status of each licensee. The Notice 
proposes to rely on applicants to specifically identify the type of 
service or services they intend to provide, and that they include 
sufficient detail to enable the Commission to determine if the service 
will be Fixed or Mobile, and whether it will be offered as a commercial 
mobile radio service, a private mobile radio service, a common carrier 
Fixed service, or a private Fixed service. The Notice requests comment 
on the most efficient manner in which to administer the requirements of 
the Communications Act and the Commission's rules, and grant licensees 
as much operational flexibility as possible.
    22. The Notice requests comment on whether the Commission should 
develop a new application long form for this GWCS or require an 
applicant to be responsible for filing the appropriate license 
application based upon the nature of the service designated by the 
applicant. Based on the showing made in the application form and actual 
service provided, the licensee would be subject to those rules and 
statutory requirements that apply to such service.

L. Licensing Issues

    23. The Notice requests comment on whether the Commission is 
required or should find it is in the public interest to adopt 
additional licensing rules in order to comply with the statutory 
requirement that the Commission adopt assignment rules before August 
10, 1995. For example, because some licensees may provide common 
carrier service, the Notice seeks comment on whether the Commission 
should adopt public notice and petition to deny procedures for some or 
all applicants in the 4660-4685 MHz band. The Notice requests comment 
on whether any existing application or regulatory fees would apply if 
the Commission develops a new service. In addition, the Notice requests 
comment on specific rules the Commission should adopt in order to 
implement Section 310(d) of the Communications Act for purposes of 
licensing services in the 4660-4685 MHz frequency

Initial Regulatory Flexibility Analysis

    1. Reason for Action: The proposals for technical rules, service 
rules, and licensing mechanisms proposed in the Notice are for use of 
spectrum that has been transferred from Federal Government to private 
sector use. The Commission adopted allocations for this spectrum on 
February 7, 1995. Accordingly, these proposals are necessary to provide 
a structure for non-Government entities to use the spectrum.
    2. Objectives: The Commission seeks to provide service rules, 
technical rules, and to issue licenses, for use of this spectrum in a 
manner that provides the greatest potential benefit to the public 
[[Page 13105]] by providing for the introduction of new services and 
the enhancement of existing services. These new and enhanced services 
will create new jobs, foster economic growth, and improve access to 
communications by industry and the American public.
    3. Legal Basis: The legal basis for these rule changes is found in 
Section 4(i), 303(g), 303(r), 309(j), 322(a), and 403 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(g), 
303(r), 309(j) (332)(a), and 403 and Section 115(a) of the National 
Telecommunications and Information Administration Organization Act, 47 
U.S.C. 925(a).
    4. Reporting, Recordkeeping, and Other Compliance Requirements: The 
proposals under consideration in this Notice of Proposed Rulemaking may 
impose certain reporting and recordkeeping requirements on licensees 
and others utilizing this spectrum.
    5. Federal Rules Which Overlap, Duplicate or Conflict With these 
Rules: None.
    6. Description, Potential Impact, and Number of Small Entities 
Involved: Many small entities could be positively affected by this 
proposal because the proposal will provide for the introduction of new, 
competitive communications and will foster new technologies resulting 
in new jobs, economic growth, and improved access to communications by 
industry, including small entities. The full extent of the impact on 
small entities cannot be predicted until various issues raised in the 
proceeding have been resolved. After evaluating the comments filed in 
response to the Notice, the Commission will examine further the impact 
of all final rules in this proceeding on small entities and set forth 
its findings in the final Regulatory Flexibility Analysis.
    7. Any Significant Alternatives Minimizing the Impact on Small 
Entities Consistent with the Stated Objectives: This Second Notice of 
Proposed Rule Making solicits comments on a variety of alternatives, 
including as to how our licensing mechanism, service rules, and 
technical rules can be structured to serve a variety of needs.
    8. IRFA Comments: The Commission requests written public comment on 
the foregoing Initial Regulatory Flexibility Analysis. Comments must 
have a separate and distinct heading designating them as responses to 
the IRFA and must be filed by the deadlines specified in the summary 
above.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 95-5371 Filed 3-9-95; 8:45 am]
BILLING CODE 6712-01-M