Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules and Regulations 18981

found not to be deregulated. The oneyear limitation on refund liability will

not be applicable during that period to

ensure that the filing of an invalid small

operator certification does not reduce

any refund liability that the operator

would otherwise incur.

(3) Within 30 days of being served

with a local franchising authority’s

notice that the local franchising

authority intends to file a cable

programming services tier rate

complaint, an operator may certify to

the local franchising authority that it

meets the criteria for qualification as a

small cable operator. This certification

shall be filed in accordance with the

cable programming services rate

complaint procedure set forth in

§ 76.1402. Absent a cable programming

services rate complaint, the operator

need not file for small cable operator

certification in order to treat its cable

programming services tier as

deregulated.

(4) If a pending CPST rate complaint

was filed with the Commission before

April 30, 1996 the operator should file

its certification of small cable operator

status directly with the Commission

within 15 days of that date.

§ 76.1404 Use of cable facilities by local

exchange carriers.

For purposes of § 76.505(d)(2), the

Commission will determine whether use

of a cable operator’s facilities by a local

exchange carrier is reasonably limited in

scope and duration according to the

following procedures:

(a) Within 10 days of final execution

of a contract permitting a local exchange

carrier to use that part of the

transmission facilities of a cable system

extending from the last multi-user

terminal to the premises of the end use,

the parties shall submit a copy of such

contract, along with an explanation of

how such contract is reasonably limited

in scope and duration, to the

Commission for review. The parties

shall serve a copy of this submission on

the local franchising authority, along

with a notice of the local franchising

authority’s right to file comments with

the Commission consistent with § 76.7.

(b) Based on the record before it, the

Commission shall determine whether

the local exchange carrier’s use of that

part of the transmission facilities of a

cable system extending from the last

multi-use terminal to the premises of

the end user is reasonably limited in

scope and duration. In making this

determination, the Commission will

evaluate whether the proposed joint use

of cable facilities promotes competition

in both services and facilities, and

encourages long-term investment in

telecommunications infrastructure.

[FR Doc. 96–10173 Filed 4–26–96; 8:45 am]

BILLING CODE 6712–01–P

47 CFR Part 90

[PR Docket No. 93–61, FCC 96–115]

Automatic Vehicle Monitoring

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This Order on

Reconsideration resolves issues raised

by petitions for reconsideration of the

Commission’s Report and Order in PR

Docket No. 93–61, which established

rules governing the licensing of the

Location and Monitoring Service (LMS)

in the 902–928 MHz band. Specifically,

the Order on Reconsideration resolves

issues regarding existing LMS licensees

that are being afforded grandfathered

status. These issues involve interference

testing, accommodation of secondary

uses in the 902–928 MHz band,

emission masks, frequency tolerance,

type acceptance and site relocation, as

well as extension of the construction

deadline for grandfathered licensees to

September 1, 1996. The actions taken in

the Order on Reconsideration are

needed to provide such grandfathered

licensees with certainty as they

construct their systems.

EFFECTIVE DATES: This final rule is

effective May 30, 1996, except that

§§ 90.203(b)(7) and 90.363(d) became

effective March 18, 1996.

FOR FURTHER INFORMATION CONTACT: Jane

Hinckley Halprin, Wireless

Telecommunications Bureau,

Commercial Wireless Division, (202)

418–0620.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Order on

Reconsideration in PR Docket No. 93–

61, adopted March 18, 1996, and

released March 21, 1996. The complete

text of this Order on Reconsideration is

available for inspection and copying

during normal business hours in the

FCC Dockets Branch (Room 230), 1919

M Street, N.W., Washington, D.C., and

also may be purchased from the

Commission’s copy contractor, ITS, Inc.,

2100 M Street, N.W., Suite 140,

Washington, D.C., (202) 857–3800.

Synopsis of Order on Reconsideration

I. Introduction and Background

1. LMS encompasses both the

Automatic Vehicle Monitoring (AVM)

service established in 1974 and future

advanced transportation-related

services. Existing AVM systems were

authorized in the 903–912 and 918–927

MHz bands, as well as in several bands

below 512 MHz. Existing LMS systems

in these bands generally fall into one of

two broad technological categories:

multilateration systems and nonmultilateration systems. Multilateration

systems use spread-spectrum

technology to locate vehicles (and other

moving objects) with great accuracy

throughout a wide geographic area.

Non-multilateration systems typically

use narrowband technology to transmit

data to and from vehicles passing

through a particular location.

2. LMS systems, both multilateration

and non-multilateration, and Part 15

devices will play an important role in

providing many valuable services to the

public in the future. In Report and

Order, PR Docket No. 93–61, 10 FCC

Rcd 4695 (1995), 60 FR 15248 (March

23, 1995) (LMS Report and Order), the

Commission developed a spectrum plan

that is designed to accommodate these

service providers’ requirements to the

extent possible. Aspects of the spectrum

plan include: (1) continuing to permit

secondary operations by unlicensed Part

15 devices across the entire band; (2)

providing a ‘‘safe harbor’’ in which Part

15 devices may operate, along with a

testing requirement to determine

questions of interference from

multilateration systems; (3) authorizing

additional spectrum in the 902–928

MHz band in order to enable nonmultilateration LMS systems to operate

on spectrum separate from

multilateration systems; and (4)

permitting only one new multilateration

provider in each sub-band of spectrum

allocated for multilateration operations.

3. In the LMS Report and Order, the

Commission decided to stop accepting

applications for the operation of

multilateration LMS systems in the 904–

912 and 918–926 MHz bands under our

current rules as of February 3, 1995. In

addition, the Commission adopted

certain grandfathering provisions that

allowed existing, operating

multilateration LMS systems until April

1, 1998, to complete the transition to the

rules adopted in the LMS Report and

Order. These grandfathering provisions

were adopted to prevent any undue

hardship on existing, operating

multilateration LMS systems. The

Commission also conferred

grandfathered status on multilateration

LMS licensees who had not constructed

their systems so that such licensees may

construct and operate their licensed

stations under the rules adopted in the

LMS Report and Order. The

Commission concluded, however, that

such systems must be constructed and
18982 Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules and Regulations

operational by April 1, 1996, and must

comply with the rules adopted in the

LMS Report and Order by that date. The

LMS Report and Order directed existing

licensees to file applications to modify

their licenses to reflect operations

consistent with the new band plan for

multilateration systems.

4. In addition to adopting a new

spectrum plan and grandfathering

provisions, the Commission resolved

other technical issues in the LMS Report

and Order. The Commission established

conditions under which Part 15

operations would not be considered to

cause interference to multilateration

licensees. It allowed multilateration

licensees to commence operations only

after demonstrating efforts to minimize

interference with Part 15 operations.

5. In the Order on Reconsideration,

the Commission clarifies its decision in

the LMS Report and Order regarding the

treatment of grandfathered LMS systems

with respect to Part 15 interference

testing. In addition, it clarifies that the

rule regarding non-interference by Part

15 devices set out in § 90.361 applies to

grandfathered LMS licensees that did

not construct as of February 3, 1995, as

well as future LMS licensees. It also

considers modification of various

technical rules, including emission

mask specification, frequency tolerance,

and site relocation, and we clarify our

rules regarding type acceptance of LMS

equipment. Any remaining issues raised

in the petitions for reconsideration will

be addressed in a later Memorandum

Opinion and Order.

6. The Order on Reconsideration also

extends the build-out deadline for

grandfathered LMS licensees by five

months, to September 1, 1996. It also

notes that because the 902–928 MHz

frequency band is shared with federal

government users, LMS operators are

required to coordinate with the

Interdepartmental Radio Advisory

Committee (IRAC) concerning any

proposed modifications to their systems.

The Commission expresses concern that

if existing licensees must await the

completion of such frequency

coordination process before

commencing modifications to their

systems, licensees may not have

sufficient time to complete their system

modifications by the build-out deadline.

As a result, the Commission concludes

that these licensees should be permitted

to begin modifications to their systems

provided they have initiated the

frequency coordination process with

IRAC and on the condition that the

Commission’s final approval of such

modifications will be contingent upon

the successful completion of such

frequency coordination.

7. In addition, On May 22, 1995,

Southwestern Bell Mobile Systems

(SBMS) filed a request for waiver of

Section 90.363 of the Commission’s

Rules to grandfather SBMS applications

that were pending as of the date the

LMS Report and Order was adopted.

The Commission concludes that

pending LMS applications should not

be eligible for grandfathering. The

Commission notes that its stated

purpose in adopting grandfathering

provisions was ‘‘[t]o ensure that our

new licensing scheme does not impose

undue hardship on existing, operating

multilateration [LMS] systems,’’ and to

allow already-licensed systems the

opportunity to construct and operate

pursuant to the LMS rules adopted in

the LMS Report and Order. LMS Report

and Order, 10 FCC Rcd at 4728. The

Commission concludes that if some

licensees are warehousing spectrum, as

alleged by SBMS, then they will likely

not construct in the time allotted so as

to attain grandfathered status. That

spectrum will then be available for

competitive bidding by all prospective

licensees, including SBMS if they so

choose.

8. Further, the Commission notes the

argument of SBMS that in the SMR

context, the Commission adopted a

grandfathering provision awarding

certain secondary sites in the 900 MHz

SMR service primary status so as to

entitle them to full interference

protection and decided to grandfather

pending applications for these

secondary sites, concluding that this

would promote service to the public,

that the additional amount of protected

spectrum would be de minimis and that

such action would be equitable in light

of processing delays. The Commission

distinguishes the SMR situation from

the case of pending LMS applications in

that the 900 MHz SMR secondary sites

were extensions of primary sites that

were already licensed and constructed,

while the LMS facilities at issue are

unbuilt. Thus, it is questionable how

service to the public would be

facilitated by extending grandfathered

status to sites that have not even been

licensed, much less constructed.

Moreover, grant of the pending

applications could materially alter the

LMS landscape by adding a number of

additional sites and would thus not be

a de minimis change. Accordingly, the

Commission declines SBMS’s request

and clarifies that LMS applications filed

prior to February 3, 1995, will not be

eligible for grandfathering. SBMS also

asks for an extension of the construction

deadline for its pending applications.

Because the Commission is not

affording SBMS grandfathered status

with respect to these applications, this

issue is moot. In addition, SBMS seeks

a waiver to permit relocation of

grandfathered sites by more than two

kilometers and to add sites within a 75-

mile radius. This same suggestion was

made by petitioners for reconsideration

and, for the reasons discussed infra, the

Commission denies SBMS’s request.

II. Discussion

A. Multilateration System Operations

(Part 15 Testing)

9. In the LMS Report and Order, the

Commission adopted a spectrum band

plan and established technical criteria

for the operators of the various systems

designed to minimize the potential for

interference and provide a more

conducive environment for sharing of

the band by disparate services. In an

effort to ensure that the coexistence of

the various services in the band would

be as successful as possible, the

Commission decided to condition the

grant of each MTA multilateration

license on the licensee’s ability to

demonstrate through actual field tests

that their systems do not cause

unacceptable levels of interference to

Part 15 devices.

10. On reconsideration, Part 15 users

requested that grandfathered

multilateration LMS systems be

required to demonstrate through testing

that their systems will not cause

unacceptable interference to Part 15

devices. Further, some Part 15

petitioners suggested that the

Commission establish uniform

guidelines for the testing of LMS

systems and the demonstration of noninterference to Part 15 devices. Some

LMS providers, on the other hand,

argues that testing of LMS systems is not

necessary. Further, some parties

contended that the testing requirement

violated the Administrative Procedure

Act (APA) because testing procedures

were not contemplated in the Notice of

Proposed Rule Making in this

proceeding, Notice of Proposed Rule

Making, PR Docket No. 93–61, 8 FCC

Rcd 2502 (1993), 58 FR 21276 (April 20,

1993), and/or because testing

requirements materially alter the Part 15

rules, which was not previously

proposed.

11. In the Order on Reconsideration,

the Commission clarifies that as a

condition of grandfathering, it will

require all multilateration LMS

operators who did not construct stations

prior to February 3, 1995, to

demonstrate through testing that their

LMS systems will not cause

unacceptable interference to Part 15
Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules and Regulations 18983

devices. The Commission reiterates that

multilateration licensees may employ

any one of a number of technical

refinements, i.e., limiting duty cycle,

pulse duration power, etc., to facilitate

band sharing and minimize interference

to Part 15 operations. Further, the

Commission seeks to ensure not only

that Part 15 operators refrain from

causing harmful interference to LMS

systems, but also that LMS systems are

not operated in such a manner as to

degrade, obstruct or interrupt Part 15

devices to such an extent that Part 15

operations will be negatively affected.

12. The Order on Reconsideration

declines to establish specific guidelines

for Part 15 testing at this time. The

Commission states that it recognizes

that LMS systems employ different

methods to provide location and

monitoring that are constantly changing

to keep up with consumer demand.

Moreover, the Part 15 industry has an

even greater array of technologies that

fluctuate in response to the needs of the

public. It thus concludes that it would

be inappropriate to apply uniform

testing parameters to those varied

technologies, as no one testing method

would adequately address the needs of

either LMS or Part 15 operations.

Instead, the Commission believes that

the more prudent course of action

would be for LMS and Part 15 operators

to work closely together to reach

consensus on testing guidelines that

satisfy their respective requirements.

13. Further, the Commission does not

agree that its adoption of the testing

requirement violated the APA. The

Commission believes that the testing

requirement was a logical outgrowth of

the Notice of Proposed Rule Making in

this proceeding, which sought comment

on ways to accommodate the various

users of the 902–928 MHz band.

Moreover, it concludes that the rules

adopted in the LMS Report and Order

do not modify our Part 15 rules by

elevating the status of Part 15 providers,

as alleged by some petitioners. Part 15

operation remain secondary; the testing

requirement is merely an attempt to

achieve the most efficient coexistence

possible among the various users of the

band.

B. Accommodation of Secondary Users

in the 902–928 MHz Band

14. The LMS Report and Order

affirmed that unlicensed Part 15 devices

in the 902–928 MHz band are secondary

and, as in other bands, may not cause

harmful interference to and must accept

interference from all other operations in

the band. To accommodate the concerns

of Part 15 users about their secondary

status in light of multilateration LMS

and our authorizing LMS to use the

additional 8 MHz of the band (902–903,

912–918 and 927–928 MHz), however,

the Commission in the LMS Report and

Order adopted rules that describe a

‘‘safe harbor’’ within which a Part 15

operation would be deemed not to cause

interference to a multilateration LMS

system.

15. On reconsideration, many

petitioners agreed that a safe harbor

provision is necessary to provide Part 15

technologies protection against claims

of interference from existing LMS

licensees. On the other hand, most LMS

petitioners argued that they should be

able to rebut any presumption of noninterference by Part 15 operators. If not,

they argued, a large class of Part 15

devices will be immune from

complaints of interference to

multilateration licensees. They also

contended that such a result would be

contrary to the secondary status of Part

15 devices.

16. In the Order on Reconsideration,

the Commission clarifies that if Part 15

devices operate within the ‘‘safe harbor’’

provision they will be deemed not to

cause harmful interference to LMS

operators. In addition, this provision

applies to all LMS licensees, including

existing and grandfathered licensees.

The Commission notes that in the LMS

Report and Order, it stated that a

definition of what shall constitute

harmful interference from amateur

operations or unlicensed Part 15 devices

to multilateration LMS systems would

promote the cooperative use of the 902–

928 MHz band. It also noted that this

‘‘safe harbor’’ approach would promote

effective use of the 902–928 MHz band

by the various services through

establishing the parameters under

which such devices may operate

without risk of receiving complaints of

interference from service providers with

a higher allocation status. Based on the

technical diversity of the numerous

existing LMS systems and the

multiplicity of Part 15 devices that

eventually will be placed in operation,

the Commission concluded in the LMS

Report and Order that some interference

problems would remain unresolved. As

a result, the Commission determined

that by providing multilateration LMS

system operators a means of recourse by

way of complaint to the Commission

only when a Part 15 device is not

operating in the ‘‘safe harbor,’’ the vast

majority of equipment and services

would be able to operate successfully in

this band. The Commission concludes

in the Order on Reconsideration that

although the multilateration LMS

system operators will not be able to file

a complaint with the Commission where

the Part 15 user has satisfied the ‘‘safe

harbor’’ provisions, the Commission

encourages LMS operators to resolve the

interference by modifying their systems

or by obtaining the voluntary

cooperation of the Part 15 user. The

Commission disagrees that such a result

is inconsistent with the secondary status

of Part 15 devices under our Rules and

believes that its approach will assure

the efficient and equitable use of the

902–928 MHz band.

C. Technical Issues

1. Emission Mask Specification

In the LMS Report and Order, the

Commission required that licensees’

emissions be attenuated by at least 55 +

10 log(P) dB at the edges of the specified

LMS subbands. The band edges for

multilateration systems where

emissions must be attenuated are 904,

909.75, 919.75, 921.75, 927.50, 927.75

and 928 MHz. If the 919.75–921.75 and

921.75–927.25 MHz subbands were

aggregated by a single licensee, the

emission mask limitations at the band

edges at 921.75 and 927.50 MHz may be

ignored. The band edges for nonmultilateration systems where

emissions must be attenuated are 902,

904, 909.75 and 921.75 MHz.

18. On reconsideration, a group of

LMS providers contended that the

emission mask adopted in the LMS

Report and Order is flawed. They

propose a modification of the emission

mask specification that they believe

should not inhibit the operation of nonmultilateration systems, and the

emission levels outside of the

multilateration LMS sub-bands would

be below the field strength levels

permitted under Part 15 of the

Commission’s Rules for operation

within the 902–928 MHz band. The

proposed emission mask specification is

as follows:

For LMS wideband emissions, operating in

the 902–928 MHz band, in any 100 kHz band,

the center frequency of which is removed

from the center of authorized sub-band(s) by

more than 50 percent up to and including

250 percent of the authorized bandwidth:

The mean power of emissions shall be

attenuated below the maximum permitted

output power, as specified by the following

equation but in no case less than 31dB:

A=16+0.4 (P–50)+10logB (attenuation greater

than 66dB is not required)

Where:

A=attenuation (in decibels) below the

maximum permitted output power level

P=percent removed from the center of the

authorized sub-band(s)

B=authorized bandwidth in megahertz

19. On the other hand, CellNet, a Part

15 operator, objected to the relaxation of

the emission mask specification,
18984 Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules and Regulations

contending that the potential for

interference to Part 15 devices will be

increased if the emission mask

requirements are relaxed. Hughes

contended that the attenuation used in

the formula proposed by the LMS

Providers would be insufficient to

protect adequately against interference

in the portion of the spectrum band set

aside for non-multilateration systems.

Thus, Hughes proposed a variation of

the LMS multilateration parties’ formula

that requires greater attenuation. The

Part 15 Coalition contended that there is

no justification for relaxing the emission

mask standard. TIA opposed the

justification used by the LMS Providers

to modify the emission mask

specification. TIA pointed out that the

LMS Providers’ proposal is very similar

to Sections 21.106(a)(2) and 94.71(c)(2)

of our rules, which specify emission

limits for the Domestic Public Fixed

Radio Services and Private Operational

Fixed Microwave Service, respectively.

Further, TIA contended that in fixed

services, the emission is but one of

several ways to prevent interference,

while in mobile services emission

masks and power limits are the primary

forms of interference control. It

contended that while it may be

appropriate to base the limits of LMS

wideband emissions on the limits that

apply to high-speed digital microwave

transmissions, it is not reasonable that

the LMS specification should be less

strict than the fixed microwave

specification.

20. In the Order on Reconsideration,

the Commission finds that the LMS

providers have shown that the single

emission mask adopted in the LMS

Report and Order to cover all LMS

operations in the 902–928 MHz band is

not appropriate for multilateration LMS

systems. It notes that the LMS providers

stated that none of their various

multilateration systems, either existing

or proposed, can comply with the

existing mask and still achieve a

commercially marketable level of

locating accuracy. Additionally, the

Commission states that it is persuaded

by the LMS providers that an emission

mask similar to the one applicable to

narrowband PCS channels is more

appropriate for narrowband forward

link equipment operating in the

spectrum between 927.250 MHz and

928 MHz.

21. Therefore, the Commission states

that it will not apply the existing mask

to equipment used for wideband

multilateration links, either forward or

reverse, in the three subbands 904–

909.75 MHz, 921.75–927.25 MHz and

919.75–921.75 MHz, or to equipment

used for narrowband forward links in

the spectrum between 927.25 and 928

MHz. Instead, it will adopt two

additional emission masks, both

essentially the same as proposed by the

LMS providers, that will apply to this

equipment. All other equipment to

operate in the LMS will remain subject

to the emission mask adopted in the

Report and Order.

22. Although these new emission

masks are less stringent than the one

adopted in the Report and Order, they

do require a greater attenuation of outof-band emissions than was considered

to be required for multilateration

systems operating under the interim

rules. The Commission states its belief

that these masks are adequate to prevent

interference to non-multilateration

systems. The Commission indicates that

while TIA is correct that these new

masks are less stringent than those for

fixed microwave links, it does not agree

with TIA that the masks for LMS

multilateration systems must

necessarily be more strict than for fixed

microwave links. These two services are

very different and the expectations of

potential interference must also be

considerably different—one is a highly

coordinated fixed microwave service in

exclusively allocated spectrum and the

other is a mobile multilateration system

operating in spectrum shared with a

multitude of other users. Also, the

Commission states that it is not

persuaded that the refinement suggested

by Hughes (increasing the slope of the

wideband mask) is necessary to prevent

interference, and that adopting it might

unnecessarily preclude the use of some

technologies or favor one type of system

over another.

2. Frequency Tolerance

23. In the LMS Report and Order, the

Commission adopted a frequency

tolerance of 0.00025 percent (2.5 parts

per million (ppm)) for both

multilateration and non-multilateration

systems. It noted that tighter frequency

tolerances were justified to help reduce

the potential for interference to systems

operating on adjacent frequencies.

24. On reconsideration, Hughes, TI/

MFS, and AMTECH requested that the

Commission relax the frequency

tolerance. Hughes argued that the

0.00025 percent frequency tolerance is

overly restrictive for non-multilateration

systems. It contended that a frequency

tolerance of 2.5 ppm does not add

significantly to existing means of

avoiding interference between nonmultilateration systems within

designated subbands. Hughes submitted

that since non-multilateration systems

operate over relatively short ranges, the

instances of coverage overlap between

facilities on adjacent channels will be

rare.

25. Hughes further alleged that the

present frequency tolerance level would

necessitate a significant and expensive

design modification for their Vehicle to

Roadside Communications (VRC)

system readers. In addition, they

contended that equipment changes

required to conform their VRC mobile

transponders to the present frequency

tolerance level would be economically

prohibitive. If the Commission decides

to maintain the present frequency

tolerance level for non-multilateration

systems, Hughes requested that the

Commission apply the frequency

tolerance level only to the reader

transmitters and not to the mobile

transponders, which are designed to

transmit with extremely low power and

only while passing in close proximity to

a reader.

26. According to TI/MFS there are no

current LMS non-multilateration

systems in operation that conform to the

2.5 ppm frequency tolerance. They

noted that most of the nonmultilateration technology operates at

frequency tolerance levels no greater

than 50 ppm. TI/MFS stated its belief

that the imposition of the present

frequency tolerance level will have the

negative effect of decreasing both

available technology and potential

players in the market.

27. In response to the concerns raised

by the non-multilateration system

operators, the Commission in the Order

on Reconsideration imposes the present

frequency tolerance level of 2.5 ppm on

high power fixed reader transmitters

operating near the band edges, but not

on mobile transponders or hand-held

portable readers. The Commission is

persuaded that the significant cost of

tightening the frequency tolerance for

mobile transponders and hand-held

readers could severely raise the cost of

the devices beyond the realm of

economic feasibility. The Commission is

not changing the tolerance requirement

for other non-multilateration LMS

systems or for multilateration LMS

systems.

3. Type Acceptance

28. In the LMS Report and Order, the

Commission determined that the mobile

nature of most LMS transmitters and the

new advanced technology that will be

employed by this equipment justified

strict regulatory oversight of having

equipment type accepted rather than

continuing to use the notification

procedure. Therefore, it decided that all

LMS equipment imported or marketed

after April 1, 1996, including the

‘‘transmitting tags’’ used in certain non-
Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules and Regulations 18985

1Sections 90.203(b)(7) and 90.363(d) extend the

type acceptance and construction deadlines,

respectively, from April 1, 1996, to September 1,

1996. As such, these rules relieve a restriction and

are not subject to the 30 days’ notice requirement

of the Administrative Procedure Act (APA). See 5

U.S.C. 553(d)(1). Moreover, the Commission finds

good cause to make these rules effective on less

than 30 days’ notice to prevent the former type

acceptance and construction deadline of April 1,

1996, from taking effect. See 5 U.S.C. 553(d)(3).

multilateration systems, must be type

accepted for use under Part 90. If,

however, these units met the

requirements under Part 15, they may

have been authorized under that part

and do not need to be type accepted.

29. On reconsideration, the LMS

providers requested that for systems

constructed after February 3, 1995, that

the type acceptance requirement for

multilateration LMS be extended from

the current date of April 1, 1996, until

12 months after any rule on

reconsideration concerning the emission

mask (the ‘‘1996 Effective Date’’). They

also requested that all LMS transmitters

imported or manufactured domestically

prior to the 1996 Effective Date be

exempt from type acceptance regardless

of whether they are used before or after

the 1996 Effective Date. In addition,

they asked the Commission to clarify

that LMS providers may indefinitely

continue to use equipment deployed

prior to the 1996 Effective Date

provided that it is not marketed after

that date (whether the deadline is April

1, 1996 or a later date), unless the

equipment is first type accepted.

30. The LMS providers further

requested that for systems constructed

before February 3, 1995, the installation

of non-type accepted multilateration

LMS transmitters imported or

manufactured domestically on or before

the 1996 Effective Date should be

permitted through April 1, 1998. They

urged that such equipment need not be

type-accepted at any time unless such a

step is necessary in order to resolve

interference problems that cannot

otherwise be accommodated, but that

such equipment must comply with the

emission mask requirements by April 1,

1998. In addition, for systems

constructed and placed into operation

before February 3, 1995, the LMS

providers would mandate that

transmitters imported or manufactured

after the 1996 Effective Date must be

type accepted. Similarly, AMTECH

requests that the Commission delay the

type-acceptance date at least until 12

months after final technical

requirements have been adopted.

31. In the Order on Reconsideration,

the Commission states its belief that the

type acceptance requirements it adopted

in the LMS Report and Order are

necessary to ensure efficient

deployment of LMS to the public

without causing significant interference.

The Commission provides that it

recognizes the concern of

multilateration LMS operators that they

may experience difficulty in meeting the

construction deadline if they must

comply with type acceptance

requirements. To alleviate this concern,

the Commission’s Office of Engineering

and Technology has committed to

process type acceptance applications

within 40 days of receipt. Further, the

Commission notes that it has extended

the construction deadline. The

Commission therefore concludes that

compliance with these type acceptance

requirements should not impede a

licensee’s efforts to meet the build-out

deadline. It also notes that constructed

multilateration LMS systems must also

meet type acceptance requirements after

September 1, 1996.

32. The Commission further notes that

non-multilateration systems contain a

substantial amount of embedded

equipment with numerous users,

particularly state and local

governments. Thus, non-multilateration

system operators will be able to

continue operation of current

equipment until replacement is needed.

However, if non-multilateration system

operators decide either to build new

systems or replace existing equipment

on or after September 1, 1996, the

Commission states, the new equipment

must comply with type acceptance by

April 1, 1998.

4. Site Relocation

33. In the LMS Report and Order, the

Commission allowed LMS licensees to

modify their applications to comply

with the new band plan, and stated that

an alternate site must be within two

kilometers (km) of the site specified in

the original license. On reconsideration,

the LMS providers contended that the

two kilometer restriction is unworkable

due to the upcoming April 1, 1996,

deadline for preserving grandfathered

status. They argued that competition for

wireless facilities has caused many sites

to become unavailable or unsuitable for

LMS use. They also noted that site

surveys and negotiations are timeconsuming and in many cases

replacements within the 2 km radius

either do not exist or are unavailable.

Thus, the LMS providers proposed that

the Commission instead allow

replacement sites within a ten-mile

radius.

34. The Commission declines to

modify the site relocation restriction in

the Order on Reconsideration. It notes

that the Third Report and Order in GN

Docket No. 93–252 utilized two

kilometers as the benchmark for

determining whether an application for

a site change of a CMRS facility is to be

treated as a modification application or

an ‘‘initial’’ application for the purpose

of determining eligibility for

competitive bidding procedures.

Implementation of Sections 3(n) and

332 of the Communications Act—

Regulatory Treatment of Mobile

Services, Third Report and Order, GN

Docket No. 93–252, 9 FCC Rcd 7988, 59

FR 59945 (Nov. 21, 1994) (CMRS Third

Report and Order). The Commission

concludes that the LMS providers have

failed to demonstrate adequately that a

different benchmark should apply in the

LMS context and that it will continue to

place a 2 km restriction on replacement

sites for LMS systems.

III. Procedural Matters and Ordering

Clauses

35. The Final Regulatory Flexibility

Analysis, as required by Section 604 of

the Regulatory Flexibility Act of 1980, 5

U.S.C. § 604 is as follows:

36. Need and Purpose of this Action:

The rules adopted herein will enhance

use of the 902–928 MHz band for

location and monitoring systems. The

new rules create a more stable

environment for LMS system licensees

and provides much needed flexibility

for operators of such systems.

37. Issues Raised in Response to the

Initial Regulatory Flexibility Analysis:

There were no comments submitted in

response to the Initial Regulatory

Flexibility Analysis.

38. Significant Alternatives

Considered and Rejected: All significant

alternatives regarding grandfathering

issues are discussed in this Order on

Reconsideration. Other issues raised on

reconsideration will be addressed in a

forthcoming Memorandum Opinion and

Order.

39. It is ordered that, pursuant to the

authority of Sections 4(i), 302, 303(r),

and 332(a)(2) of the Communications

Act of 1934, as amended, 47 U.S.C.

§§ 154(i), 302, 303(r), and 332(a), the

rule changes specified below are

adopted.

40. It is further ordered that the rule

changes set forth below will become

effective May 30, 1996, except for

§§ 90.203(b)(7) and 90.363(d). Sections

90.203(b)(7) and 90.363(d) were

effective March 18, 1996.1

41. It is further ordered that the

petitions for reconsideration filed by the

parties listed in the attachment below

are granted to the extent discussed

herein, and denied to the extent

discussed herein. Those issues not

resolved by this Order on
18986 Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules and Regulations

Reconsideration will addressed in a

future Memorandum Opinion and

Order.

List of Subjects in 47 CFR Part 90

Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Part 90 of Chapter I of Title 47 of the

Code of Federal Regulations is amended

as follows:

PART 90—PRIVATE LAND MOBILE

RADIO SERVICES

1. The authority citation for Part 90

continues to read as follows:

Authority: Secs. 4, 303, 48 Stat. 1066,

1082, as amended; 47 U.S.C. 154, 303, and

332, unless otherwise noted.

2. Section 90.203 is amended by

revising paragraph (b)(7) to read as

follows:

§ 90.203 Type acceptance required.

* * * * *

(b) * * *

(7) Transmitters imported and

marketed prior to September 1, 1996 for

use by LMS systems.

* * * * *

3. Section 90.210 is amended by

revising paragraph (k) to read as follows:

§ 90.210 Emission masks.

* * * * *

(k) Emission Mask K. (1) Wideband

multilateration transmitters. For

transmitters authorized under Subpart

M to provide forward or reverse links in

a multilateration system in the subbands

904–909.75 MHz, 921.75–927.25 MHz

and 919.75–921.75 MHz, and which

transmit an emission occupying more

than 50 kHz bandwidth: in any 100 kHz

band, the center frequency of which is

removed from the center of authorized

sub-band(s) by more than 50 percent of

the authorized bandwidth, the power of

emissions shall be attenuated below the

transmitter output power, as specified

by the following equation, but in no

case less than 31 dB:

A=16+0.4 (D¥50)+10 log B (attenuation

greater than 66 dB is not required)

Where:

A=attenuation (in decibels) below the

maximum permitted output power

level

D=displacement of the center frequency

of the measurement bandwidth

from the center frequency of the

authorized sub-band, expressed as a

percentage of the authorized

bandwidth B

B=authorized bandwidth in megahertz.

(2) Narrowband forward link

transmitters. For LMS multilateration

narrowband forward link transmitters

operating in the 927.25–928 MHz

frequency band the power of any

emission shall be attenuated below the

transmitter output power (P) in

accordance with following schedule:

On any frequency outside the

authorized sub-band and removed from

the edge of the authorized sub-band by

a displacement frequency (fd in kHz): at

least 116 log ((fd+10)/6.1) dB or 50 + 10

log (P) dB or 70 dB, whichever is the

lesser attenuation.

(3) Other transmitters. For all other

transmitters authorized under Subpart

M, the peak power of any emission shall

be attenuated below the power of the

highest emission contained within the

authorized channel bandwidth in

accordance with the following schedule:

(i) On any frequency within the

authorized bandwidth: Zero dB;

(ii) On any frequency outside of the

authorized bandwidth: 55+10log(P) dB

where (P) is the highest emission (watts)

of the transmitter inside the authorized

bandwidth.

(4) The resolution bandwidth of the

instrumentation used to measure the

emission power shall be 100 kHz,

except that, in regard to paragraph (2) of

this section, a minimum spectrum

analyzer resolution bandwidth of 300

Hz shall be used for measurement center

frequencies within 1 MHz of the edge of

the authorized subband. If a video filter

is used, its bandwidth shall not be less

than the resolution bandwidth.

(5) Emission power shall be measured

in peak values.

4. Section 90.213 is amended by

revising the entry for the 902–928 MHz

band and adding footnote 13 to the table

in paragraph (a) to read as follows:

§ 90.213 Frequency stability.

(a) * * *

MINIMUM FREQUENCY STABILITY

[Parts per million (ppm)]

Frequency range (MHz)

Fixed and

base stations

Mobile stations

Over 2W

output

power

2W or less

output

power

* * * * * * *

902–928 13 ................................................................................................................................................ 2.5 2.5 2.5

* * * * * * *

13Fixed non-multilateration transmitters operating within 40 kHz from the band edge, intermittently operated hand-held readers, and mobile

transponders are not subject to frequency tolerance restrictions.

* * * * *

5. Section 90.363 is amended by

revising paragraph (d) to read as

follows:

§ 90.363 Grandfathering provisions for

existing AVM Licensees.

* * * * *

(d) Multilateration AVM licensees for

stations that were not constructed and

placed in operation on or before

February 3, 1995 must construct their

LMS systems and place them in

operation on the spectrum identified in

their LMS system license on or before

September 1, 1996, or their licenses will

cancel automatically (see Section 90.155

(e)). Also, these licenses will cancel

automatically on July 1, 1996 unless

timely modification applications are

filed on or before this date (see

paragraph (a) of this section).

* * * * *

Attachment—Petitions for Reconsideration

Note: This attachment will not be

published in the Code of Federal Regulations.

1. Ad Hoc Gas Distribution Utilities Coalition

(Ad Hoc Gas)

2. AirTouch Teletrac (Teletrac)
Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules and Regulations 18987

3. The American Radio Relay League, Inc.

(ARRL)

4. AMTECH Corporation (AMTECH)

5. CellNet Data Systems, Inc. (CellNet)

6. Connectivity for Learning Coalition

7. Hughes Transportation Management

Systems (Hughes)

8. Intelligent Transportation Society of

America (ITSA)

9. Metricom, Inc. and Southern California

Edison Company (Metricom/SCE)

10. MobileVision, L.P. (MobileVision)

11. The New Jersey Highway Authority, the

New Jersey Turnpike Authority, the New

York State Thruway Authority, the

Pennsylvania Turnpike Commission, the

Metropolitan Transportation Authority

Bridges and Tunnels, the Port Authority

of New York and New Jersey, the South

Jersey Transportation Authority and the

Delaware River Port Authority (‘‘the

Interagency Group’’).

12. The Part 15 Coalition (Part 15 Coalition)

13. Pinpoint Communications (Pinpoint)

14. Rand McNally & Company (Rand

McNally)

15. Safetran Systems Corporation (Safetran)

16. Southwestern Bell Mobile Systems, Inc.

(SBMS)

17. Texas Instruments, Inc. and MFS

Network Technologies, Inc. (TI/MFS)

18. Uniplex Corporation (Uniplex)

19. UTC

20. Wireless Transactions Corporation

(Wireless Transactions)

[FR Doc. 96–10498 Filed 4–29–96; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF DEFENSE

48 CFR Part 225

[DFARS Case 96–D309]

Defense Federal Acquisition

Regulation Supplement; Pricing for

Sales of Defense Articles

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for

comment.

SUMMARY: The Director of Defense

Procurement is amending the Defense

Federal Acquisition Regulation

Supplement (DFARS) to implement

statutory provisions which require that

foreign military sales wholly paid for

from funds made available on a

nonrepayable basis shall be priced on

the same costing basis as is applicable

to acquisitions of like items purchased

by DoD for its own use.

DATES: Effective date: April 30, 1996.

Comment date: Comments on the

interim rule should be submitted in

writing to the address shown below on

or before July 1, 1996, to be considered

in the formulation of the final rule.

ADDRESSES: Interested parties should

submit written comments to: Defense

Acquisition Regulations Council, Attn:

Ms. Amy Williams, PDUSD (A&T) DP

(DAR), IMD 3D139, 3062 Defense

Pentagon, Washington, DC 20301–3062.

Telefax (703) 602–0350. Please cite

DFARS Case 96–D309 in all

correspondence related to this issue.

FOR FURTHER INFORMATION CONTACT:

Ms. Amy Williams, (703) 602–0131.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule amends DFARS

Subpart 225.73 to implement Section

531A of the Fiscal Year 1996 Foreign

Operations, Export Financing, and

Related Programs Appropriations Act

(Pub. L. 104–107), which amends

Section 22 of the Arms Export Control

Act (22 U.S.C. 2762) to require that

foreign military sales of defense articles

and defense services wholly paid for

from funds made available on a

nonrepayable basis shall be priced on

the same costing basis as is applicable

to like items purchased by DoD for its

own use.

B. Regulatory Flexibility Act

This rule is not expected to have a

significant economic impact on a

substantial number of small entities

within the meaning of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq.,

because DFARS Subpart 225.73 already

requires pricing of foreign military sales

contracts using the same general

principles as are used in pricing other

defense contracts. The only significant

change in this rule relates to the

allowability of independent research

and development and bid and proposal

costs in accordance with the cost

principle at FAR 31.205–18. This

change is not expected to significantly

impact small entities, as most contracts

awarded to small entities are awarded

on a competitive, fixed-price basis and

do not require application of the FAR

cost principles. An initial regulatory

flexibility analysis has therefore not

been performed. Comments are invited

from small businesses and other

interested parties. Comments from small

entities concerning the affected DFARS

subpart will be considered in

accordance with 5 U.S.C. 610. Such

comments must be submitted separately

and cite DFARS Case 96–D309 in

correspondence.

C. Paperwork Reduction Act

This rule does not impose any new

information collection requirements

which require the approval of the Office

of Management and Budget under 44

U.S.C. 3501, et seq.

D. Determination to Issue an Interim

Rule

A determination has been made under

the authority of the Secretary of Defense

that compelling reasons exist to

promulgate this interim rule without

prior opportunity for public comment.

This action is necessary to implement

Section 531A of the Fiscal Year 1996

Foreign Operations, Export Financing,

and Related Programs Appropriations

Act (Pub. L. 104–107), which became

effective on April 12, 1996. Comments

received in response to the publication

of this interim rule will be considered

in formulating the final rule.

List of Subjects in 48 CFR Part 225

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition

Regulations Council.

Therefore, 48 CFR Part 225 is

amended as follows:

PART 225—FOREIGN ACQUISITION

1. The authority citation for 48 CFR

Part 225 continues to read as follows:

Authority: 41 U.S.C. 421 and 48 CFR

Chapter 1.

2. Section 225.7303 is amended by

revising the title to read as follows:

225.7303 Pricing acquisitions for foreign

military sales (FMS).

3. Section 225.7303–2 is amended by

revising the introductory text of

paragraphs (a) and (c) to read as follows:

225.7303–2 Cost of doing business with a

foreign government or an international

organization.

(a) In pricing FMS contracts where

non-U.S. Government prices as

described in 225.7303–1 do not exist,

except as provided in 225.7303–5,

recognize the reasonable and allocable

costs of doing business with a foreign

government or international

organization, even though such costs

might not be recognized in the same

amounts in pricing other defense

contracts. Examples of such costs

include, but are not limited to—

* * * * *

(c) The provisions of 10 U.S.C. 2372

do not apply to contracts for foreign

military sales. Therefore, the cost

limitations on independent research and

development and bid and proposal

(IR&D/B&P) costs in FAR 31.205–18 do

not apply to such contracts, except as

provided in 225.7303–5. The

allowability of IR&D/B&P costs on

contracts for foreign military sales not

wholly paid for from funds made

available on a nonrepayable basis shall