[Federal Register Volume 73, Number 171 (Wednesday, September 3, 2008)]
[Proposed Rules]
[Pages 51406-51415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20502]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 15, 27, and 74

[WT Docket Nos. 08-166, 08-167; FCC 08-188]


Revisions to Rules Authorizing the Operation of Low Power 
Auxiliary Stations in the 698-806 MHz Band; Public Interest Spectrum 
Coalition, Petition for Rulemaking Regarding Low Power Auxiliary 
Stations, Including Wireless Microphones, and the Digital Television 
Transition

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this Notice of Proposed Rulemaking and Order (NPRM), to 
facilitate the DTV transition the Commission tentatively concludes to 
amend its rules to make clear that the operation of low power auxiliary 
stations within the 700 MHz Band will no longer be permitted after the 
end of the DTV transition. The Commission also tentatively concludes to 
prohibit the manufacture, import, sale, offer for sale, or shipment of 
devices that operate as low power auxiliary stations in the 700 MHz 
Band. In addition, for those licensees that have obtained 
authorizations to operate low power auxiliary stations in spectrum that 
includes the 700 MHz Band beyond the end of the DTV transition, the 
Commission tentatively concludes that it will modify these licenses so 
as not to permit such operations in the 700 MHz Band after February 17, 
2009. The Commission also seeks comment on issues raised by the Public 
Interest Spectrum Coalition (PISC) in its informal complaint and 
petition for rulemaking (PISC petition or petition).

DATES: Interested parties may file comments on or before October 3, 
2008, and reply comments on or before October 20, 2008.

ADDRESSES: You may submit comments, identified by WT Docket No. 08-166 
and 08-167, 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> Mail: 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 the Commission continues 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> 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#65232626505551250306064b020a13"><span class="__cf_email__" data-cfemail="783e3b3b4d484c381e1b1b561f170e">[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: Bill Stafford, Spectrum and 
Competition Policy Division, Wireless Telecommunications Bureau at 
(202) 418-0563 or <a href="/cdn-cgi/l/email-protection#b5f7dcd9d99be6c1d4d3d3dac7d1f5d3d6d69bd2dac3"><span class="__cf_email__" data-cfemail="7f3d161313512c0b1e1919100d1b3f191c1c51181009">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking and Order in WT Docket Nos. 08-166 and 08-167, 
FCC 08-188, adopted August 15, 2008, and released on August 21, 2008. 
This summary should be read with its companion document, the final rule 
summary published elsewhere in this issue of the Federal Register. The 
full text of the public notice is available for public inspection and 
copying during business hours in the FCC Reference Information Center, 
Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. 
It also may be purchased from the Commission's duplicating contractor 
at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554; the contractor's Web site, http://www.bcpiweb.com; or by calling 
(800) 378-3160, facsimile (202) 488-5563, or e-mail <a href="/cdn-cgi/l/email-protection#7d3b3e3e3d3f3e2d342a383f531e1210"><span class="__cf_email__" data-cfemail="a3e5e0e0e3e1e0f3eaf4e6e18dc0ccce">[email protected]</span></a>. 
Copies of the public notice also may be obtained via the Commission's 
Electronic Comment Filing System (ECFS) by entering the docket numbers, 
WT Docket No. 08-166 and WT Docket No. 08-167. Additionally, the 
complete item is available on the Federal Communications Commission's 
Web site at http://www.fcc.gov.

Synopsis of the Notice of Proposed Rulemaking

Introduction

    The Digital Television Transition and Public Safety Act of 2005 
(DTV Act) set a firm deadline for the end of the digital television 
(DTV) transition of February 17, 2009, at which time the spectrum in 
the 698-806 MHz band (700 MHz Band), currently occupied by television 
broadcasters in TV Channels 52-69, will be fully available for public 
safety as well as commercial wireless services. As the Commission has 
recognized, it is incumbent on the Commission to take all steps 
necessary to make this spectrum effectively available both to public 
safety and commercial licensees at the end of the DTV transition.
    1. In this Notice of Proposed Rulemaking and Order (NPRM), the 
Commission considers broadcast low power auxiliary stations, which have 
been permitted to operate on TV Channels 52-69 in the 700 MHz Band, as 
well as in several other bands, on a secondary non-interference basis. 
The Commission tentatively concludes to amend its rules to make clear 
that the operation of low power auxiliary stations within the 700 MHz 
Band will

[[Page 51407]]

no longer be permitted after the end of the DTV transition because such 
operations could cause harmful interference to new public safety and 
commercial wireless services in the band. The Commission also 
tentatively concludes to prohibit the manufacture, import, sale, offer 
for sale, or shipment of devices that operate as low power auxiliary 
stations in the 700 MHz Band. In addition, for those licensees that 
have obtained authorizations to operate low power auxiliary stations in 
spectrum that includes the 700 MHz Band beyond the end of the DTV 
transition, the Commission tentatively concludes that it will modify 
these licenses so as not to permit such operations in the 700 MHz Band 
after February 17, 2009. The Commission also seeks comment on issues 
raised by the Public Interest Spectrum Coalition (PISC) in its informal 
complaint and petition for rulemaking (PISC petition or petition).

Background

    2. Broadcast Low Power Auxiliary Service. The Commission licenses 
broadcast low power auxiliary stations on various different spectrum 
bands. Devices that may be authorized as low power auxiliary stations 
are intended for such uses as wireless microphones, cue and control 
communications, and synchronization of TV camera signals. Where 
authorized, these devices currently may operate on a secondary basis in 
spectrum that, all totaled, comprises more than 400 megahertz. 
Specifically, devices may be permitted in twelve frequency bands. Seven 
of these frequency bands encompass all of the VHF and UHF broadcast 
television spectrum (except for Channel 37). Those bands are: 54-72 
MHz; 76-88 MHz; 174-216 MHz; 470-488 MHz; 488-494 MHz (except in 
Hawaii); 494-608 MHz; and 614-806 MHz. The five other frequency bands 
are: (1) 26.100-26.480 MHz (spectrum for land mobile, broadcast, 
maritime, and remote pickup broadcast); (2) 161.625-161.775 MHz (except 
in Puerto Rico or the Virgin Islands) (spectrum for land mobile and 
remote pickup broadcast); (3 & 4) 450-451 MHz and 455-456 MHz (spectrum 
for land mobile and remote pickup broadcast); and (5) 944-952 MHz 
(spectrum for aural broadcast auxiliary stations, public mobile, and 
fixed microwave). The 700 MHz Band falls within the 698-806 MHz portion 
of one these bands, the 614-806 MHz band (Channels 38-69).
    3. Rules relating to operation. Subpart H of part 74 of the 
Commission's rules govern ``low power auxiliary stations'' generally. 
As set forth in section 74.801 of the Commission's rules, devices 
authorized as low power auxiliary stations are ``intended to transmit 
over distances of approximately 100 meters.'' Section 74.803 states 
that low power auxiliary station usage in the UHF-TV spectrum--which 
comprises Channels 14-69, including spectrum in the 700 MHz Band 
(Channels 52-69)--is ``secondary to TV broadcasting and land mobile 
stations * * * and must not cause harmful interference'' to such 
operations. Section 74.861, which relates to the technical requirements 
for low power auxiliary stations, provides that the maximum permitted 
output power for low power auxiliary stations in the 614-806 MHz band 
is 250 milliwatts. That rule also states that such stations ``shall be 
operated so that no harmful interference is caused to any other class 
of station operating in accordance with the Commission's rules and 
regulations and with the Table of Frequency Allocations.'' In addition, 
section 2.106, Footnote NG115 of the Table of Frequency Allocations 
provides that these frequencies may be used for wireless microphones 
and wireless assist video devices on a non-interference basis, subject 
to the terms and conditions set forth in part 74.
    4. Entities eligible for licenses. Under section 74.832, only 
certain entities may be issued licenses authorizing the use of low 
power auxiliary stations. In particular, these entities fall within the 
following categories:
    (1) Licensees of AM, FM, TV, or International broadcast stations or 
low power TV stations;
    (2) broadcast network entities;
    (3) certain cable television system operators;
    (4) motion picture and television program producers as defined in 
the rules; and
    (5) certain entities with specified interests in Broadband Radio 
Service (BRS) Educational Broadcast Service (EBS) licenses, i.e., BRS 
licensees (formerly licensees and conditional licensees of stations in 
the Multipoint Distribution Service and Multi-channel Multipoint 
Distribution Service), or entities that hold an executed lease 
agreement with a BRS licensee or conditional licensee or entities that 
hold an executed lease agreement with an Educational Broadcast Service 
(formerly Instructional Television Fixed Service) licensee or 
permittee.
    5. Current licensees authorized to operate in the 700 MHz Band. 
Commission records reflect that there are currently 943 active low 
power auxiliary station licenses. The authorizations for 156 of these 
licenses include the authority to operate in the 700 MHz Band. While 
most of these licenses are authorized to operate in bands in addition 
to the 614-806 MHz band (Channels 38-69), thirty (30) of these 156 
licenses are authorized to operate only in that particular band, of 
which the 700 MHz Band (Channels 52-69) is a part. Of these 30 
licenses, 28 are authorized to operate in the entire 614-806 MHz band, 
and two are authorized to operate only at certain frequencies in the 
700 MHz Band. These 30 licenses vary in geographic scope. Two licenses 
are authorized on a nationwide basis; and one operates on a statewide 
basis in Illinois. The geographic scopes of two other licenses are not 
mappable. For the remaining 25 licenses, geographic scope is determined 
based on specific geographic coordinates using a ``radius around 
centerpoint'' definition which ranges from 1 kilometer to 322 
kilometers.
    6. PISC's Petition. On July 16, 2008, PISC filed its petition 
requesting that the Commission address unauthorized use of wireless 
microphones in the 700 MHz Band. PISC's allegations include that 
certain manufacturers of wireless microphones authorized for use under 
part 74, subpart H have violated the Commission's rules by marketing 
and selling equipment limited by Commission rule to certain classes of 
users to the general public; marketing and selling equipment for 
purposes that violate the Commission's rules; and deceiving the public 
as to the requirement for a Commission license and the limitations 
imposed by the Commission on the use of the devices. PISC argues that a 
number of steps, which are outlined in its petition, should be taken to 
prevent interference to public safety and commercial systems that will 
operate in the bands currently occupied by television channels 52-69, 
including the creation of a new ``General Wireless Microphone Service'' 
(GWMS).
    7. DTV Transition. In connection with the Congressionally mandated 
transition from analog television to DTV, the 700 MHz Band is being 
made available on a primary basis for new public safety and other 
wireless services once it is relinquished by broadcasters on TV 
Channels 52-69. As the Commission has noted, because DTV transmissions 
are more spectrally efficient than analog transmissions, only spectrum 
occupied currently by Channels 2-51 (i.e., the ``core'' TV broadcast 
spectrum) will be needed for broadcast television service after the DTV 
transition is complete on February 17, 2009. The Commission has stated 
that ``[i]t is incumbent on the Commission to take all the steps 
necessary to make this [relinquished] spectrum effectively available to 
both

[[Page 51408]]

public safety as well as commercial licensees as of the end of the DTV 
transition.'' Accordingly, on February 17, 2009, all analog television 
service by full power TV stations will terminate and temporary DTV 
assignments on Channels 52-69 will be relocated into the core TV 
channels so that new wireless licensees will be able to provide 
unencumbered services in the 698-806 MHz Band.
    8. Prior to the 2005 DTV Act, the Commission reallocated the 700 
MHz Band in separate proceedings, one involving the 48 megahertz 
covering TV Channels 52-59 (Lower 700 MHz Band) and the other governing 
the 60 megahertz covering TV Channels 60-69 (Upper 700 MHz Band). In 
the last several years, the Commission has also issued several orders 
addressing both the lower and upper portions of the 700 MHz Band, and 
has issued licenses for the provision of commercial and public safety 
services in the 700 MHz Band. Recently, the Commission auctioned 
additional licenses for commercial services in the 700 MHz Band, and 
issued a nationwide license for the broadband portion of the public 
safety spectrum in this band. In addition, a number of public safety 
entities already have authority to operate in the narrowband public 
safety spectrum.
    9. The Commission and various affected parties have contemplated 
that low power broadcast auxiliary devices would lose their secondary 
status, and would need to vacate the band, upon completion of the DTV 
transition. For instance, when the Commission adopted service rules in 
2001 for the Lower 700 MHz Band (698-746 MHz), it declined to grant a 
request filed by the Society of Broadcast Engineers, Inc. (SBE) that 
the Commission ``afford continued secondary status to part 74 low power 
broadcast auxiliary devices (such as wireless microphones) operating in 
the Lower 700 MHz Band, and to establish a new service in part 95 of 
the Commission's Rules to accommodate their use.'' In its comments 
filed in that proceeding, SBE claimed that the loss of ``many UHF TV 
channels to DTV stations and the anticipated transfer of Channels 60 
through 69 to the Land Mobile services will push the majority of the 
installed base of wireless microphones, IFB [Interrupted Fold Back], 
and cues and control signal uses of vacant UHF TV channels right off 
the bus.'' The Commission stated that SBE's request was outside the 
scope of that proceeding, but noted that ``insofar that the Lower 700 
MHz Band will host extensive broadcast use throughout the DTV 
transition, it is unlikely that new licensees will rapidly occupy the 
band to the extent that users of the low power broadcast auxiliary 
devices of the type SBE discusses will have to immediately cease all 
operation.'' Thus, both SBE and the Commission contemplated that low 
power broadcast auxiliary devices would be losing their secondary 
status and would have to vacate the band upon completion of the DTV 
transition in a particular local market. In addition, the Commission 
notes that some manufacturers of wireless microphones, including Shure 
Incorporated (Shure), have indicated on their Web sites that after the 
end of the DTV transition, frequencies in the 700 MHz Band will no 
longer be available for wireless microphone use.
    10. In 2002, in another proceeding touching on the DTV transition, 
the Commission adopted an order expressly excluding from the 700 MHz 
Band another type of part 74 subpart H low power auxiliary station 
device--wireless assist video devices (WAVDs)--in recognition of 
reallocation of TV Channels 52-69 to wireless services, including 
public safety services. In that order, the Commission stated that 
``WAVDs will not be allowed to use * * * [Channels 52-69] in the UHF-TV 
band due to a recent spectrum reallocation of those channels to uses 
other than broadcasting.'' In addition, the Commission notes that in 
the TV ``White Spaces'' proceeding, where the Commission is considering 
allowing the introduction of new low power, unlicensed devices in the 
broadcast television spectrum, the Commission in 2006 determined that 
such low power devices will not be permitted to operate on TV Channels 
52-69. In making this determination, the Commission stated that this 
spectrum ``ha[s] been reallocated for services other than broadcast 
television and will no longer be part of the TV bands after the 
transition.'' Despite its intent to make the 700 MHz Band spectrum 
fully available for public safety and commercial wireless services at 
the end of the DTV transition, the Commission has not revisited its low 
power auxiliary stations rules expressly to revise the part 2 and part 
74 rules for low power auxiliary stations to prohibit their operation 
in the 700 MHz Band after the end of the DTV transition.

Notice of Proposed Rulemaking

    11. In this NPRM, the Commission tentatively concludes to revise 
its rules to prevent operation of low power auxiliary stations in the 
700 MHz Band, and thus avoid potential disruption to new public safety 
and other services in that Band after the DTV transition. The 
Commission also tentatively concludes to prohibit the manufacture, 
import, sale, offer for sale, or shipment of devices that operate as 
low power auxiliary stations in the 700 MHz Band. In addition, the 
Commission seeks comment on the PISC petition.

A. Facilitating the DTV Transition

    12. As discussed above, the Commission and various affected 
parties, such as SBE and Shure, have contemplated that low power 
broadcast auxiliary devices would lose their secondary status, and 
would need to vacate the band, upon completion of the DTV transition. 
The Commission therefore tentatively concludes to revise its rules to 
make clear that low power auxiliary stations authorized under part 74 
of its rules--including wireless microphones--will not be permitted to 
operate in the 700 MHz Band after the DTV transition. With these 
revisions, the Commission would be conforming its rules to the 
Commission's expressed intent to ensure that this spectrum, currently 
occupied by TV Channels 52-69, will be fully available for public 
safety as well as commercial wireless services at the end of the DTV 
transition on February 17, 2009. The Commission is concerned about the 
potential for harmful interference from low power auxiliary devices to 
700 MHz Band public safety and commercial wireless operations.
    13. The Commission also notes that its tentative conclusion to 
amend its rules so as not to permit low power auxiliary devices in the 
700 MHz Band after the end of the DTV transition is consistent with the 
rules adopted in 2002 to authorize WAVDs, which prohibited their use of 
the 700 MHz Band because of the DTV transition. As described above, the 
Commission determined that WAVDs were not permitted to operate in the 
700 MHz Band, recognizing that this spectrum has been allocated to 
public safety and commercial operations. The Commission's tentative 
conclusion is also consistent with its decision to exclude the 
operation of unlicensed devices from the 700 MHz Band in the TV white 
spaces proceeding.
    14. To the extent existing licensees have obtained authorizations 
to operate low power auxiliary stations in spectrum that includes the 
700 MHz Band beyond the end of the DTV transition, the Commission 
tentatively concludes that it should use its statutory authority under 
section 316 of the Act to modify their licenses so as not to permit 
operations on the 700 MHz Band past February 17, 2009. Under this 
proposal, individual licenses will continue to include authorization to 
use

[[Page 51409]]

all frequencies currently included in those licenses other than the 700 
MHz Band through the end of their existing term, and licensees can seek 
to amend their licenses to include additional frequencies permitted 
under subpart H if they wish. The Commission makes this tentative 
conclusion because the Commission is concerned that continued use of 
this spectrum by existing licensees of low power auxiliary stations may 
be disruptive to new public safety and other wireless operations in the 
700 MHz Band, and because of the ready availability of other means that 
those licensees have under its rules for obtaining access to various 
other spectrum frequencies in which to operate low power auxiliary 
stations. The Commission seeks comment on this tentative conclusion. 
Commenters advocating that these license terms should be reduced so as 
to terminate at some other date, e.g., one year after February 17, 
2009, or not reduced at all, should fully support how operations that 
would continue beyond February 17, 2009 would be in the public interest 
and not harmful to public safety and commercial users.
    15. The Commission also tentatively concludes to prohibit the 
manufacture, import, sale, offer for sale, or shipment of devices that 
operate as low power auxiliary stations in the 700 MHz Band. Further, 
the Commission tentatively concludes that this prohibition, if adopted 
in this proceeding, will take effect on the date that the revised rules 
take effect. The Commission notes that the Communications Act of 1934, 
as amended, authorizes the Commission ``consistent with the public 
interest, convenience, and necessity, [to] make reasonable regulations 
* * * governing the interference potential of devices which in their 
operation are capable of emitting radio frequency energy by radiation, 
conduction, or other means in sufficient degree to cause harmful 
interference to radio communications'' and these regulations ``shall be 
applicable to the manufacture, import, sale, offer for sale, or 
shipment of such devices * * *, and to the use of such devices.'' The 
Act further provides that ``[n]o person shall manufacture, import, 
sell, offer for sale, or ship devices * * *, or use devices, which fail 
to comply with regulations promulgated pursuant to this section.'' The 
Commission believes that this proposed prohibition will help facilitate 
the DTV transition by helping address possible concerns about 
significant unauthorized operation of wireless microphones in the 700 
MHz Band, and therefore help minimize the likelihood that additional 
unauthorized use would occur after the end of the DTV transition. The 
Commission seeks comment on its tentative conclusions to prohibit the 
manufacture, import, sale, offer for sale, or shipment of low power 
auxiliary station devices that operate in the 700 MHz Band, and to have 
the prohibition take effect on the effective date of the revised rules.
    16. In reaching this tentative conclusion, the Commission notes 
that even if low power auxiliary stations are no longer authorized to 
operate in the 700 MHz Band at the end of the DTV transition, such 
stations will continue to be permitted access to more than 300 
megahertz of spectrum in which low power auxiliary stations may operate 
under the Commission's rules. The Commission tentatively concludes 
that, given the amount of spectrum available in these other bands, 
prohibiting the use of low power auxiliary stations from the 700 MHz 
band will have minimal impact on such operations. The Commission seeks 
comment on this conclusion.
    17. Finally, the Commission seeks comment on any steps that the 
Commission should take--if it does not adopt a version of its proposals 
set out above--to ensure that low power auxiliary stations do not 
interfere with public safety and commercial operations in the 700 MHz 
Band after the end of the DTV transition.

B. PISC's Informal Complaint and Petition for Rulemaking

    18. In its petition, PISC addresses a number of issues concerning 
the operation of low power auxiliary stations, and wireless microphones 
in particular, in the context of the 700 MHz Band. PISC alleges that 
certain manufacturers of wireless microphones authorized for use under 
part 74, subpart H have violated the Commission's rules by marketing 
and selling equipment limited by Commission rule to certain classes of 
users to the general public; marketing and selling equipment for 
purposes that violate the Commission's rules; and deceiving the public 
as to the requirement for a Commission license and the limitations 
imposed by the Commission on the use of the devices. PISC also claims 
that unauthorized use by ineligible users of wireless microphones with 
respect to Channels 52-69 has become widespread and that because of the 
risk to new wireless services from unauthorized wireless microphone 
use, and because manufacturers have demonstrated an intent to market 
equipment authorized for limited use to the general public, the 
Commission should move expeditiously to prohibit the manufacture and 
sale of wireless microphones that operate on Channels 52-69.
    19. Specifically, PISC requests that the Commission: (1) ``[b]egin 
an investigation against Shure, Inc., and the other manufacturers'' 
listed in its informal complaint, ``for willfully and knowingly 
marketing and selling wireless microphones to unauthorized users for 
ineligible purposes in violation of part 74, subpart H, and for 
engaging in deceptive advertising practices designed to persuade 
ineligible users such as houses of worship, theaters, corporate event 
venues, and members of the general public'' that they could ``legally 
purchase and operate wireless microphones operating on vacant broadcast 
UHF Channels without a license and for purposes prohibited by the 
Commission;'' (2) ``[g]rant a general amnesty to all unauthorized users 
of wireless microphones deceived by the illegal and deceptive marketing 
of manufacturers, permit use of the illegal equipment on a going 
forward basis until the Commission authorizes'' the new GWMS proposed 
by PISC, and require those manufacturers that ``engaged in illegal 
marketing to migrate the unauthorized users of part 74, subpart H 
equipment to the new GWMS [proposed by PISC] by replacing equipment 
authorized for part 74, subpart H; (3) ``[i]mmediately reclassify all 
licensed wireless microphone systems operating pursuant to part 74, 
subpart H as secondary'' to all commercial and public safety wireless 
systems ``authorized to operate on television Channels 52-69 following 
the shut off of analog television transmission;'' (4) ``[o]rder that 
manufacture, sale, and advertisement for sale of wireless microphone 
systems operating on channels 52-69 cease immediately;'' and (5) 
``[c]reate a new `General Wireless Microphone Service' (GWMS) licensed 
by rule pursuant to section 307(e) to operate on vacant broadcast UHF 
channels below Channel 52 on a secondary basis to broadcast licensees 
and individually licensed wireless microphone systems,'' and authorized 
``on a primary basis to operate on the 2020-[20]25 Band currently 
authorized for broadcast auxiliary service (BAS) and under 
consideration * * * in Docket Nos. WT 07-195, WT 04-356 (AWS-2/AWS-3 
Proceeding).''
    20. The Commission seeks comment on the various elements found in 
PISC's petition, particularly to the extent that the Commission is not 
addressing those elements elsewhere in this NPRM. The Commission notes 
that the

[[Page 51410]]

Commission's Enforcement Bureau has initiated an investigation relating 
to the marketing practices of various manufacturers of wireless 
microphones.

Procedural Matters

A. Comment Filing Procedures

    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415 and 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 (May 1, 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#ef8a8c899caf898c8cc1888099"><span class="__cf_email__" data-cfemail="d5b0b6b3a695b3b6b6fbb2baa3">[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 the Commission continues 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 must 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="55333636606561153336367b323a23">[email protected]</a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY). To request reasonable accommodations for filing 
comments (accessible format documents, sign language interpreters, 
CARTS, etc.) contact the FCC by e-mail: <a href="/cdn-cgi/l/email-protection#377174740207037751545419505841"><span class="__cf_email__" data-cfemail="10565353252024507673733e777f66">[email protected]</span></a>; phone: 202-418-
0530 (voice), 202-418-0432 (TTY).
    Parties shall send one copy of their comments and reply comments to 
Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room 
CY-B402, Washington, DC 20554, (800) 378-3160, e-mail <a href="/cdn-cgi/l/email-protection#e5a3a6a6a5a7a6b5acb2a0a7cb868a88"><span class="__cf_email__" data-cfemail="80c6c3c3c0c2c3d0c9d7c5c2aee3efed">[email protected]</span></a>. 
Comments filed in response to this notice of proposed rulemaking will 
be available for public inspection and copying during business hours in 
the FCC Reference Information Center, Portals II, 445 12th Street, SW., 
Room CY-A257, Washington, DC 20554, and via the Commission's Electronic 
Comment Filing System (ECFS) by entering the docket numbers WT Docket 
No. 08-166 and WT Docket No. 08-167. The comments may also be purchased 
from Best Copy and Printing, Inc., telephone (800) 378-3160, facsimile 
(202) 488-5563, or e-mail <a href="/cdn-cgi/l/email-protection#d7919494979594879e809295f9b4b8ba"><span class="__cf_email__" data-cfemail="06404545464445564f5143442865696b">[email protected]</span></a>.

B. Other Procedural Matters

1. Ex Parte Requirements
    This proceeding has been designated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules.\1\ 
Parties making oral ex parte presentations in this proceeding are 
reminded that memoranda summarizing the presentation must contain the 
presentation's substance and not merely list the subjects discussed.\2\ 
More than a one- or two-sentence description of the views and arguments 
presented is generally required.\3\
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    \1\ See 47 CFR 1.1200(a), 1.1206.
    \2\ See Commission Emphasizes the Public's Responsibilities in 
Permit-But-Disclose Proceedings, Public Notice, 15 FCC Rcd 19945 
(2000).
    \3\ See 47 CFR 1.1206(b)(2). Other rules pertaining to oral and 
written presentations are also set forth in section 1.1206(b). See 
47 CFR 1.1206(b).\
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2. Initial Paperwork Reduction Act of 1995 Analysis
    21. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).
3. Initial Regulatory Flexibility Analysis
    22. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\4\ the Federal Communications Commission (Commission) 
has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the 
possible significant economic impact on a substantial number of small 
entities by the policies and rules considered in this Notice of 
Proposed Rulemaking (NPRM), WT Docket No. 08-166 and WT Docket No. 08-
167.\5\ Written public comments are requested on this IRFA. Comments 
must be identified as responses to the IRFA and must be filed by the 
deadlines for comments on the NPRM provided on page one of this NPRM. 
The Commission will send a copy of this NPRM, including this IRFA, to 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA).\6\ In addition, this NPRM and IRFA (or summaries thereof) will 
be published in the Federal Register.\7\
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    \4\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996).
    \5\ Revisions to Rules Authorizing the Operation of Low Power 
Auxiliary Stations in the 698-806 MHz Band, WT Docket No. 08-166, 
Public Interest Spectrum Coalition, Petition for Rulemaking 
Regarding Low Power Auxiliary Stations, Including Wireless 
Microphones, and the Digital Television Transition, WT Docket No. 
08-167.
    \6\ See 5 U.S.C. 603(a).
    \7\ Id.
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    23. Although section 213 of the Consolidated Appropriations Act 
2000 provides that the RFA shall not apply to the rules and competitive 
bidding procedures for frequencies in the 746-806 MHz Band,\8\ the 
Commission

[[Page 51411]]

believes that it would serve the public interest to analyze the 
possible significant economic impact of the proposed policy and rule 
changes in this band on small entities. Accordingly, this IRFA contains 
an analysis of this impact in connection with all spectrum that falls 
within the scope of this NPRM, including spectrum in the 746-806 MHz 
Band.
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    \8\ In particular, this exemption extends to the requirements 
imposed by Chapter 6 of Title 5, United States Code, Section 3 of 
the Small Business Act (15 U.S.C. 632) and Section 3507 and 3512 of 
Title 44, United States Code. Consolidated Appropriations Act 2000, 
Pub. L. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A)-(B); 
see 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note 
at section 213(a)(4)(A)-(B).
---------------------------------------------------------------------------

A. Need for, and Objectives of, the Proposed Rules

    24. As noted above, the DTV Act set a firm date by which the 
spectrum in the 700 MHz Band (698-806 MHz), currently occupied by 
television broadcasters in TV Channels 52-69, must be vacated to allow 
for use by public safety and commercial wireless services. This NPRM 
proposes rules intended to ease the DTV transition by ensuring that the 
700 MHz Band is fully available for public safety and commercial 
wireless services as of February 17, 2009, by limiting potential 
interference in the band. In this NPRM, the Commission seeks comment on 
its tentative conclusion to amend its rules to make clear that the 
operation of low power auxiliary stations within the 700 MHz Band will 
no longer be permitted after the end of the DTV transition because such 
operations could cause harmful interference to new wireless services in 
the band, particularly public safety operations.\9\ The Commission also 
tentatively concludes to prohibit the manufacture, import, sale, offer 
for sale, or shipment of devices that operate as low power auxiliary 
stations in the 700 MHz Band after the end of the DTV transition.\10\ 
In addition, for those licensees that have obtained authorizations to 
operate low power auxiliary stations in spectrum that includes the 700 
MHz Band beyond the end of the DTV transition, the Commission 
tentatively concludes that it will modify these licenses so as not to 
permit such operations in the 700 MHz Band after February 17, 2009.\11\
---------------------------------------------------------------------------

    \9\ See NPRM at para. 2.
    \10\ Id.
    \11\ Id.
---------------------------------------------------------------------------

B. Legal Basis

    25. The potential actions about which comment is sought in this 
NPRM would be authorized pursuant to the authority contained in 
sections 1, 2, 4(i), 4(j), 301, 302, 303, 304, 307, 308, 309, 316, 332, 
336, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 152, 154(i), 154(j), 301, 302a, 303, 304, 307, 308, 309, 316, 332, 
336, and 337.

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

    26. 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.\12\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \13\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\14\ A ``small business concern'' is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria 
established by the Small Business Administration (SBA).\15\
---------------------------------------------------------------------------

    \12\ 5 U.S.C. 603(b)(3).
    \13\ 5 U.S.C. 601(6).
    \14\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, 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.''
    \15\ 15 U.S.C. 632.
---------------------------------------------------------------------------

    27. Nationwide, there are a total of approximately 22.4 million 
small businesses, according to SBA data.\16\ A ``small organization'' 
is generally ``any not-for-profit enterprise which is independently 
owned and operated and is not dominant in its field.'' \17\ Nationwide, 
as of 2002, there were approximately 1.6 million small 
organizations.\18\ The term ``small governmental jurisdiction'' is 
defined generally as ``governments of cities, towns, townships, 
villages, school districts, or special districts, with a population of 
less than fifty thousand.'' \19\ Census Bureau data for 2002 indicate 
that there were 87,525 local governmental jurisdictions in the United 
States.\20\ The Commission estimates that, of this total, 84,377 
entities were ``small governmental jurisdictions.'' \21\ Thus, the 
Commission estimates that most governmental jurisdictions are small.
---------------------------------------------------------------------------

    \16\ See SBA, Programs and Services, SBA Pamphlet No. CO-0028, 
at page 40 (July 2002).
    \17\ 5 U.S.C. 601(4).
    \18\ Independent Sector, The New Nonprofit Almanac & Desk 
Reference (2002).
    \19\ 5 U.S.C. 601(5).
    \20\ U.S. Census Bureau, Statistical Abstract of the United 
States: 2006, Section 8, page 272, Table 415.
    \21\ The Commission assumes that the villages, school districts, 
and special districts are small, and total 48,558. See U.S. Census 
Bureau, Statistical Abstract of the United States: 2006, section 8, 
page 273, Table 417. For 2002, Census Bureau data indicate that the 
total number of county, municipal, and township governments 
nationwide was 38,967, of which 35,819 were small. Id.
---------------------------------------------------------------------------

    28. In the NPRM, the Commission seeks comment on the tentative 
conclusion that low power auxiliary stations authorized under part 74 
of the Commission's rules--including wireless microphones--will not be 
permitted to operate in the 700 MHz Band after the DTV transition. The 
NPRM then seeks comment on whether to prohibit the manufacture, import, 
sale, offer for sale, or shipment of devices that operate as low power 
auxiliary stations in the 700 MHz Band after the end of the DTV 
transition. Under section 74.832, only certain entities may be issued 
licenses authorizing the use of low power auxiliary stations. In 
particular, these entities fall within the following categories: (1) 
Licensees of AM, FM, TV, or International broadcast stations or low 
power TV stations; (2) broadcast network entities; (3) certain cable 
television system operators; (4) motion picture and television program 
producers as defined in the rules; and (5) certain entities with 
specified interests in Broadband Radio Service (BRS) Educational 
Broadcast Service (EBS) licenses, i.e., BRS licensees (formerly 
licensees and conditional licensees of stations in the Multipoint 
Distribution Service and Multi-channel Multipoint Distribution 
Service), or entities that hold an executed lease agreement with a BRS 
licensee or conditional licensee or entities that hold an executed 
lease agreement with an Educational Broadcast Service (formerly 
Instructional Television Fixed Service) \22\ licensee or permittee.\23\
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    \22\ In July 2004, the Commission renamed Multipoint 
Distribution Service as the Broadband Radio Service and renamed 
Instructional Television Fixed Service as the Educational Broadcast 
Service. See Amendment of parts 1, 21, 73, 74 and 101 of the 
Commission's Rules to Facilitate the Provision of Fixed and Mobile 
Broadband Access, Educational and Other Advanced Services in the 
2150-2162 and 2500-2690 MHz Bands, Report and Order and Further 
Notice of Proposed Rulemaking, 19 FCC Rcd 14165, 14169 para. 6 
(2004).
    \23\ See 47 CFR 74.832(a)(1)-(6).
---------------------------------------------------------------------------

    29. In the NPRM, the Commission also seeks comment on issues raised 
by the Public Interest Spectrum Coalition (PISC) in an informal 
complaint and petition for rulemaking (PISC petition or petition).\24\ 
PISC's allegations include

[[Page 51412]]

that certain manufacturers of wireless microphones authorized for use 
under part 74, subpart H have violated the Commission's rules by 
marketing and selling equipment limited by Commission rule to certain 
classes of users to the general public; marketing and selling equipment 
for purposes that violate the Commission's rules; and deceiving the 
public as to the requirement for a Commission license and the 
limitations imposed by the Commission on the use of the devices.\25\ 
PISC argues that a number of steps should be taken to prevent 
interference to public safety and commercial systems that will operate 
in the bands currently occupied by television channels 52-69, including 
the creation of a new ``General Wireless Microphone Service'' (GWMS). 
\26\
---------------------------------------------------------------------------

    \24\ See Complaint of Public Interest Spectrum Coalition (PISC) 
Against Shure, Inc., Nady Systems, Inc., VocoPro, Audio2000, 
Sennheiser Electronic Corporation, Audix Microphones, Electro Voice, 
Hisonic International, Inc., Pyle Audio, et al.; Petition To Create 
a General Wireless Microphone Service (GWMS), Informal Complaint and 
Petition for Rulemaking, (filed July 16, 2008) (PISC Petition). The 
Public Interest Spectrum Coalition Consists of: The CUWiN Foundation 
(CUWIN), Consumer Federation of America (CFA), Consumers Union (CU), 
EDUCAUSE, Free Press (FP), Media Access Project (MAP), the National 
Hispanic Media Coalition (NHMC), the New America Foundation (NAF), 
the Open Source Wireless Coalition (OSWC), Public Knowledge (PK), 
and U.S. PIRG.
    \25\ See PISC petition at 21-22.
    \26\ See PISC petition at i-ii.
---------------------------------------------------------------------------

    30. Radio Stations. This Economic Census category ``comprises 
establishments primarily engaged in broadcasting aural programs by 
radio to the public. Programming may originate in their own studio, 
from an affiliated network, or from external sources.'' \27\ The SBA 
has established a small business size standard for this category, which 
is: Such firms having $6.5 million or less in annual receipts.\28\ 
According to Commission staff review of BIA Publications, Inc.'s Master 
Access Radio Analyzer Database on March 31, 2005, about 10,840 (95%) of 
11,410 commercial radio stations had revenues of $6 million or less. 
Therefore, the majority of such entities are small entities.
---------------------------------------------------------------------------

    \27\ U.S. Census Bureau, 2002 NAICS Definitions, ``515112 Radio 
Stations''; http://www.census.gov/epcd/naics02/def/NDEF515.HTM. A 
separate census category for ``Radio Networks'' ``comprises 
establishments primarily engaged in assembling and transmitting 
aural programming to their affiliates or subscribers via over-the-
air broadcasts, cable, or satellite. The programming covers a wide 
variety of material, such as news services, religious programming, 
weather, sports, or music.'' Id. (NAICS code 5155111).
    \28\ 13 CFR 121.201, NAICS code 515112.
---------------------------------------------------------------------------

    31. The Commission notes, however, that in assessing whether a 
business concern qualifies as small under the above size standard, 
business affiliations must be included. \29\ In addition, to be 
determined to be a ``small business,'' the entity may not be dominant 
in its field of operation.\30\ The Commission notes that it is 
difficult at times to assess these criteria in the context of media 
entities, and the Commission's estimate of small businesses may 
therefore be over-inclusive.
---------------------------------------------------------------------------

    \29\ ``Concerns and entities are affiliates of each other when 
one controls or has the power to control the other, or a third party 
or parties controls or has the power to control both. It does not 
matter whether control is exercised, so long as the power to control 
exists.'' 13 CFR 121.103(a)(1) (an SBA regulation).
    \30\ 13 CFR 121.102(b) (an SBA regulation).
---------------------------------------------------------------------------

    32. Television Broadcasting. The Census Bureau defines this 
category as follows: ``This industry comprises establishments primarily 
engaged in broadcasting images together with sound. These 
establishments operate television broadcasting studios and facilities 
for the programming and transmission of programs to the public.'' \31\ 
The SBA has created a small business size standard for Television 
Broadcasting entities, which is: Such firms having $13 million or less 
in annual receipts.\32\ The Commission has estimated the number of 
licensed commercial television stations to be 1,379.\33\ In addition, 
according to Commission staff review of the BIA Publications, Inc., 
Master Access Television Analyzer Database (BIA) on March 30, 2007, 
about 986 of an estimated 1,374 commercial television stations (or 
approximately 72 percent) had revenues of $13 million or less.\34\ The 
Commission therefore estimates that the majority of commercial 
television broadcasters are small entities.
---------------------------------------------------------------------------

    \31\ U.S. Census Bureau, 2002 NAICS Definitions, ``515120 
Television Broadcasting'' (partial definition); http://www.census.gov/epcd/naics02/def/NDEF515.HTM.
    \32\ 13 CFR 121.201, NAICS code 515120.
    \33\ See FCC News Release, ``Broadcast Station Totals as of 
December 31, 2007,'' dated March 18, 2008; http://www.fcc.gov/Daily_Releases/Daily_Business/2008/db0318/DOC-280836A1.pdf.
    \34\ The Commission recognizes that BIA's estimate differs 
slightly from the FCC total given supra.
---------------------------------------------------------------------------

    33. The Commission notes, however, that in assessing whether a 
business concern qualifies as small under the above definition, 
business (control) affiliations \35\ must be included. The Commission's 
estimate, therefore, likely overstates the number of small entities 
that might be affected by the Commission's action, because the revenue 
figure on which it is based does not include or aggregate revenues from 
affiliated companies. In addition, an element of the definition of 
``small business'' is that the entity not be dominant in its field of 
operation. The Commission is unable at this time to define or quantify 
the criteria that would establish whether a specific television station 
is dominant in its field of operation. Accordingly, the estimate of 
small businesses to which rules may apply does not exclude any 
television station from the definition of a small business on this 
basis and is therefore possibly over-inclusive to that extent.
---------------------------------------------------------------------------

    \35\ ``[Business concerns] are affiliates of each other when one 
concern controls or has the power to control the other or a third 
party or parties controls or has to power to control both.'' 13 CFR 
21.103(a)(1).
---------------------------------------------------------------------------

    34. In addition, the Commission has estimated the number of 
licensed noncommercial educational (NCE) television stations to be 
380.\36\ These stations are non-profit, and therefore considered to be 
small entities.\37\ There are also 2,295 low power television stations 
(LPTV).\38\ Given the nature of this service, the Commission will 
presume that all LPTV licensees qualify as small entities under the 
above SBA small business size standard.
---------------------------------------------------------------------------

    \36\ See FCC News Release, ``Broadcast Station Totals as of 
December 31, 2007,'' dated March 18, 2008; http://www.fcc.gov/Daily_Releases/Daily_Business/2008/db0318/DOC-280836A1.pdf.
    \37\ See generally 5 U.S.C. 601(4), (6).
    \38\ See FCC News Release, ``Broadcast Station Totals as of 
December 31, 2007,'' dated March 18, 2008; http://www.fcc.gov/Daily_Releases/Daily_Business/2008/db0318/DOC-280836A1.pdf.
---------------------------------------------------------------------------

    35. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' \39\ The SBA has developed a small business size 
standard for this category, which is: All such firms having 1,500 or 
fewer employees. To gauge small business prevalence for these cable 
services the Commission must, however, use current census data that are 
based on the previous category of Cable and Other Program Distribution 
and its associated size standard; that size standard was: All such 
firms having $13.5 million or less in annual receipts.\40\ According to 
Census Bureau data for 2002, there were a total of 1,191 firms in this 
previous category that operated for the entire

[[Page 51413]]

year. \41\ Of this total, 1,087 firms had annual receipts of under $10 
million, and 43 firms had receipts of $10 million or more but less than 
$25 million.\42\ Thus, the majority of these firms can be considered 
small.
---------------------------------------------------------------------------

    \39\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers'' (partial definition); http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \40\ 13 CFR 121.201, NAICS code 517110.
    \41\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, Table 4, Receipts Size of Firms for the United States: 
2002, NAICS code 517510 (issued November 2005).
    \42\ Id. An additional 61 firms had annual receipts of $25 
million or more.
---------------------------------------------------------------------------

    36. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers, nationwide.\43\ Industry data 
indicate that, of 1,076 cable operators nationwide, all but eleven are 
small under this size standard.\44\ In addition, under the Commission's 
rules, a ``small system'' is a cable system serving 15,000 or fewer 
subscribers.\45\ Industry data indicate that, of 7,208 systems 
nationwide, 6,139 systems have under 10,000 subscribers, and an 
additional 379 systems have 10,000-19,999 subscribers.\46\ Thus, under 
this second size standard, most cable systems are small.
---------------------------------------------------------------------------

    \43\ 47 CFR 76.901(e). The Commission determined that this size 
standard equates approximately to a size standard of $100 million or 
less in annual revenues. Implementation of Sections of the 1992 
Cable Act: Rate Regulation, Sixth Report and Order and Eleventh 
Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).
    \44\ These data are derived from: R.R. Bowker, Broadcasting & 
Cable Yearbook 2006, ``Top 25 Cable/Satellite Operators,'' pages A-8 
& C-2 (data current as of June 30, 2005); Warren Communications 
News, Television & Cable Factbook 2006, ``Ownership of Cable Systems 
in the United States,'' pages D-1805 to D-1857.
    \45\ 47 CFR 76.901(c).
    \46\ Warren Communications News, Television & Cable Factbook 
2006, ``U.S. Cable Systems by Subscriber Size,'' page F-2 (data 
current as of Oct. 2005). The data do not include 718 systems for 
which classifying data were not available.
---------------------------------------------------------------------------

    37. Cable System Operators. The Communications Act of 1934, as 
amended, also contains a size standard for small cable system 
operators, which is ``a cable operator that, directly or through an 
affiliate, serves in the aggregate fewer than 1 percent of all 
subscribers in the United States and is not affiliated with any entity 
or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' \47\ The Commission has determined that an operator 
serving fewer than 677,000 subscribers shall be deemed a small 
operator, if its annual revenues, when combined with the total annual 
revenues of all its affiliates, do not exceed $250 million in the 
aggregate.\48\ Industry data indicate that, of 1,076 cable operators 
nationwide, all but ten are small under this size standard.\49\ The 
Commission notes that the Commission neither requests nor collects 
information on whether cable system operators are affiliated with 
entities whose gross annual revenues exceed $250 million,\50\ and 
therefore the Commission is unable to estimate more accurately the 
number of cable system operators that would qualify as small under this 
size standard.
---------------------------------------------------------------------------

    \47\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3.
    \48\ 47 CFR 76.901(f); see Public Notice, FCC Announces New 
Subscriber Count for the Definition of Small Cable Operator, DA 01-
158 (Cable Services Bureau, Jan. 24, 2001).
    \49\ These data are derived from: R.R. Bowker, Broadcasting & 
Cable Yearbook 2006, ``Top 25 Cable/Satellite Operators,'' pages A-8 
& C-2 (data current as of June 30, 2005); Warren Communications 
News, Television & Cable Factbook 2006, ``Ownership of Cable Systems 
in the United States,'' pages D-1805 to D-1857.
    \50\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's 
finding that the operator does not qualify as a small cable operator 
pursuant to section 76.901(f) of the Commission's rules. See 47 CFR 
76.909(b).
---------------------------------------------------------------------------

    38. Motion Picture and Video Producers. This economic census 
category comprises ``establishments primarily engaged in producing, or 
producing and distributing motion pictures, videos, television 
programs, or television commercials.'' \51\ The SBA has developed a 
small business size standard for firms within this category, which is: 
Firms with $27 million or less in annual receipts.\52\ According to 
Census Bureau data for 2002, there were 7,772 firms in this category 
that operated for the entire year.\53\ Of this total, 7,685 firms had 
annual receipts of under $25 million and 45 firms had annual receipts 
of $25 million to $49,999,999.\54\ Thus, under this category and 
associated small business size standard, the majority of firms can be 
considered small.
---------------------------------------------------------------------------

    \51\ U.S. Census Bureau, 2007 NAICS Definitions, ``512110 Motion 
Picture and Video Production''; http://www.census.gov/naics/2007/def/ND512110.HTM#N512110 (this definition is unchanged from the 2002 
NAICS definition).
    \52\ 13 CFR 121.201, NAICS code 512110.
    \53\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 4, NAICS code 512110 (issued Nov. 2005).
    \54\ Id. An additional 42 firms had annual receipts of $50 
million or more.
---------------------------------------------------------------------------

    39. Broadband Radio Service (formerly Multipoint Distribution 
Service) and Educational Broadband Service (formerly Instructional 
Television Fixed Service). Multichannel Multipoint Distribution Service 
(MMDS) systems, often referred to as ``wireless cable,'' transmit video 
programming to subscribers using the microwave frequencies of the 
Multipoint Distribution Service (MDS) and Instructional Television 
Fixed Service (ITFS).\55\ In its BRS/EBS Report and Order in WT Docket 
No. 03-66, the Commission comprehensively reviewed its policies and 
rules relating to the ITFS and MDS services, and replaced the MDS with 
the Broadband Radio Service and ITFS with the Educational Broadband 
Service in a new band plan at 2495-2690 MHz.\56\ In connection with the 
1996 MDS auction, the Commission defined ``small business'' as an 
entity that, together with its affiliates, has average gross annual 
revenues that are not more than $40 million for the preceding three 
calendar years.\57\ The SBA has approved of this standard.\58\
---------------------------------------------------------------------------

    \55\ Amendment of parts 21 and 74 of the Commission's Rules with 
Regard to Filing Procedures in the Multipoint Distribution Service 
and in the Instructional Television Fixed Service and Implementation 
of Section 309(j) of the Communications Act--Competitive Bidding, MM 
Docket No. 94-131 and PP Docket No. 93-253, Report and Order, 10 FCC 
Rcd 9589, 9593 para. 7 (1995) (MDS Auction R&O).
    \56\ See Amendment of parts 1, 21, 73, 74 and 101 of the 
Commission's Rules to Facilitate the Provision of Fixed and Mobile 
Broadband Access, Educational and Other Advanced Services in the 
2150-2162 and 2500-2690 MHz Bands, Report and Order and Further 
Notice of Proposed Rulemaking, FCC 03-145 (rel. July 29, 2004) (BRS/
EBS Report and Order). As the Commission noted in the Further 
Notice, there are unique policies associated with ITFS licensees' 
educational purposes, and the services have already developed their 
own approach to excess capacity leasing. See Further Notice at 
paras. 307-08.
    \57\ 47 CFR 21.961(b)(1).
    \58\ See Letter to Margaret Wiener, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, Federal 
Communications Bureau, from Gary Jackson, Assistant Administrator 
for Size Standards, Small Business Administration, dated March 20, 
2003 (noting approval of $40 million size standard for MDS auction).
---------------------------------------------------------------------------

    40. In addition, the SBA has developed a small business size 
standard for Cable and Other Program Distribution, which is: All such 
firms having $13.5 million or less in annual receipts.\59\ According to 
Census Bureau data for 2002, there were a total of 1,191 firms in this 
category that operated for the entire year.\60\ Of this total, 1,087 
firms had annual receipts of under $10 million, and 43 firms had 
receipts of $10 million or more but less than $25 million.\61\ Thus, 
under this size standard, the majority of firms can be considered 
small.
---------------------------------------------------------------------------

    \59\ 13 CFR 121.201, NAICS code 517510.
    \60\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, Table 4, Receipts Size of Firms for the United States: 
2002, NAICS code 517510 (issued November 2005).
    \61\ Id. An additional 61 firms had annual receipts of $25 
million or more.
---------------------------------------------------------------------------

    41. Low Power Auxiliary Device Manufacturers: Radio and Television

[[Page 51414]]

Broadcasting and Wireless Communications Equipment Manufacturing. The 
Census Bureau defines this category as follows: ``This industry 
comprises establishments primarily engaged in manufacturing radio and 
television broadcast and wireless communications equipment. Examples of 
products made by these establishments are: Transmitting and receiving 
antennas, cable television equipment, GPS equipment, pagers, cellular 
phones, mobile communications equipment, and radio and television 
studio and broadcasting equipment.'' \62\ The SBA has developed a small 
business size standard for Radio and Television Broadcasting and 
Wireless Communications Equipment Manufacturing, which is: All such 
firms having 750 or fewer employees.\63\ According to Census Bureau 
data for 2002, there were a total of 1,041 establishments in this 
category that operated for the entire year.\64\ Of this total, 1,010 
had employment of less than 500, and an additional 13 had employment of 
500 to 999.\65\ Thus, under this size standard, the majority of firms 
can be considered small.
---------------------------------------------------------------------------

    \62\ U.S. Census Bureau, 2002 NAICS Definitions, ``334220 Radio 
and Television Broadcasting and Wireless Communications Equipment 
Manufacturing''; http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342.
    \63\ 13 CFR 121.201, NAICS code 334220.
    \64\ U.S. Census Bureau, American FactFinder, 2002 Economic 
Census, Industry Series, Industry Statistics by Employment Size, 
NAICS code 334220 (released May 26, 2005); http://factfinder.census.gov. The number of ``establishments'' is a less 
helpful indicator of small business prevalence in this context than 
would be the number of ``firms'' or ``companies,'' because the 
latter takes into account the concept of common ownership or 
control. Any single physical location for an entity is an 
establishment, even though that location may be owned by a different 
establishment. Thus, the numbers given may reflect inflated numbers 
of businesses in this category, including the numbers of small 
businesses. In this category, the Census breaks out data for firms 
or companies only to give the total number of such entities for 
2002, which was 929.
    \65\ Id. An additional 18 establishments had employment of 1,000 
or more.
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    42. Low Power Auxiliary Device Manufacturers: Other Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing communications equipment (except telephone apparatus, and 
radio and television broadcast, and wireless communications 
equipment).'' \66\ The SBA has developed a small business size standard 
for Other Communications Equipment Manufacturing, which is: All such 
firms having 750 or fewer employees.\67\ According to Census Bureau 
data for 2002, there were a total of 503 establishments in this 
category that operated for the entire year.\68\ Of this total, 493 had 
employment below 500, and an additional 7 had employment of 500 to 
999.\69\ Thus, under this size standard, the majority of firms can be 
considered small.
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    \66\ U.S. Census Bureau, 2002 NAICS Definitions, ``334290 Other 
Communications Equipment Manufacturing''; http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342.
    \67\ 13 CFR 121.201, NAICS code 334290.
    \68\ U.S. Census Bureau, American FactFinder, 2002 Economic 
Census, Industry Series, Industry Statistics by Employment Size, 
NAICS code 334290 (released May 26, 2005); http://factfinder.census.gov. The number of ``establishments'' is a less 
helpful indicator of small business prevalence in this context than 
would be the number of ``firms'' or ``companies,'' because the 
latter takes into account the concept of common ownership or 
control. Any single physical location for an entity is an 
establishment, even though that location may be owned by a different 
establishment. Thus, the numbers given may reflect inflated numbers 
of businesses in this category, including the numbers of small 
businesses. In this category, the Census breaks out data for firms 
or companies only to give the total number of such entities for 
2002, which was 471.
    \69\ Id. An additional 3 establishments had employment of 1,000 
or more.
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    43. Radio, Television, and Other Electronics Stores. The Census 
Bureau defines this economic census category as follows: ``This U.S. 
industry comprises: (1) Establishments known as consumer electronics 
stores primarily engaged in retailing a general line of new consumer-
type electronic products; (2) establishments specializing in retailing 
a single line of consumer-type electronic products (except computers); 
or (3) establishments primarily engaged in retailing these new 
electronic products in combination with repair services.'' \70\ The SBA 
has developed a small business size standard for Radio, Television, and 
Other Electronics Stores, which is: All such firms having $8 million or 
less in annual receipts.\71\ According to Census Bureau data for 2002, 
there were 10,380 firms in this category that operated for the entire 
year.\72\ Of this total, 10,080 firms had annual sales of under $5 
million, and 177 firms had sales of $5 million or more but less than 
$10 million.\73\ Thus, the majority of firms in this category can be 
considered small.
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    \70\ U.S. Census Bureau, 2002 NAICS Definitions, ``443112 Radio, 
Television, and Other Electronics Stores''; http://www.census.gov/epcd/naics02/def/NDEF443.HTM.
    \71\ 13 CFR 121.201, NAICS code 443112.
    \72\ U.S. Census Bureau, 2002 Economic Census, Industry Series: 
Retail Trade, Table 4, Sales Size of Firms for the United States: 
2002, NAICS code 443112 (issued November 2005).
    \73\ Id. An additional 123 firms had annual sales of $10 million 
or more. As a measure of small business prevalence, the data on 
annual sales are roughly equivalent to what one would expect from 
data on annual receipts.
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    44. When identifying small entities that could be affected by the 
Commission's new rules, this IRFA provides information describing the 
number of small entities that currently hold low power auxiliary 
station licenses, as well as estimates of the number of small entities 
that currently manufacture low power auxiliary devices. In order to 
assist the Commission in analyzing the total number of potentially 
affected small entities, the Commission requests commenters to estimate 
the number of small entities that may be affected by any rule changes 
that might result from this NPRM.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    45. Under the proposals contained in this NPRM there would be no 
new reporting or recordkeeping requirements placed on small entities. 
The Commission tentatively concludes to amend its rules to make clear 
that the operation of low power auxiliary stations within the 700 MHz 
Band will no longer be permitted after the end of the DTV transition 
because such operations could cause harmful interference to new 
wireless services in the band, particularly public safety operations. 
To the extent there are licensees that have obtained authorizations to 
operate low power auxiliary stations in spectrum that includes the 700 
MHz Band beyond the end of the DTV transition, the Commission 
tentatively concludes that it will modify these licenses so as not to 
permit such operations in the 700 MHz Band after February 17, 2009.
    46. The NPRM also seeks comment on whether to prohibit the 
manufacture, import, sale, offer for sale, or shipment of devices that 
operate as low power auxiliary stations in the 700 MHz Band after the 
end of the DTV transition. If this proposal is adopted, manufacturers 
producing low power auxiliary devices would be required to ensure that 
such devices would be unable to operate within the 700 MHz band.
    47. To the extent the Commission's proposed revisions to its rules 
do not reflect the best approach to limit interference within the 700 
MHz Band, the NPRM seeks comment on the possibility of making 
appropriate adjustments to various prohibitions that will better serve 
the public interest.

[[Page 51415]]

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

    48. The RFA requires an agency to describe any significant, 
specifically small business alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) and exemption 
from coverage of the rule, or any part thereof, for small entities.'' 
\74\
---------------------------------------------------------------------------

    \74\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------

    49. The NPRM tentatively concludes to amend the Commission's rules 
to make clear that the operation of low power auxiliary stations within 
the 700 MHz Band will no longer be permitted after the end of the DTV 
transition because such operations could cause harmful interference to 
new wireless services in the band, particularly public safety 
operations. Although the NPRM tentatively concludes that the Commission 
will modify licenses so as not to permit operations past February 17, 
2009, it makes this tentative conclusion because the Commission is 
concerned that continued use of this spectrum by existing licensees of 
low power auxiliary stations may be disruptive to new public safety and 
other wireless operations in the 700 MHz Band, and because of the ready 
availability of other means that those licensees have under the 
Commission's rules for obtaining access to various other spectrum 
frequencies in which to operate low power auxiliary stations. Moreover, 
such stations will continue to be permitted access to more than 300 
megahertz of spectrum.\75\
---------------------------------------------------------------------------

    \75\ See 47 CFR 74.802(a).
---------------------------------------------------------------------------

    50. The Commission also seeks comment on alternatives to modifying 
current licenses so as not to permit such operations in the 700 MHz 
Band after February 17, 2009. The Commission seeks comment on whether 
license terms should be reduced so as to terminate at some other date, 
e.g., one year after February 17, 2009, or not reduced at all.
    51. Along with prohibiting low power auxiliary devices within the 
700 MHz Band after the end of the DTV transition, the Commission also 
proposes to prohibit the manufacture, import, sale, offer for sale, or 
shipment of devices that operate as low power auxiliary stations in the 
700 MHz Band after the end of the DTV transition. The Commission 
tentatively concludes that this proposed prohibition will help 
facilitate the DTV transition by helping to address possible concerns 
about significant unauthorized operation of wireless microphones in the 
700 MHz Band, and therefore help minimize the likelihood that 
additional unauthorized use would occur after the end of the DTV 
transition.\76\ The Commission seeks comment on its tentative 
conclusions to prohibit the manufacture, import, sale, offer for sale, 
or shipment of low power auxiliary station devices that operate in the 
700 MHz Band, and to have the prohibition take effect on the effective 
date of the revised rules.
---------------------------------------------------------------------------

    \76\ See NPRM at para. 14.\
---------------------------------------------------------------------------

    52. To minimize significant economic impact to the firms, including 
small entities, that are or will become low power auxiliary station 
licensees or that manufacture, import, sell, or ship devices that 
operate as low power auxiliary stations in the 700 MHz Band, the NPRM 
seeks comment on the impact that such changes would have on small 
entities. The Commission will continue to examine alternatives in the 
future with the objective of eliminating unnecessary regulations and 
minimizing significant impact on small entities. Toward that end, the 
Commission seeks comment on alternatives commenters believe the 
Commission should adopt.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    53. None.

Ordering Clauses

    54. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 
4(j), 301, 302, 303, 304, 307, 308, 309, 316, 332, 336, and 337 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 
154(j), 301, 302a, 303, 304, 307, 308, 309, 316, 332, 336, and 337 that 
this Notice of Proposed Rulemaking and Order in WT Docket No. 08-166 
and WT Docket No. 08-167 is hereby adopted.
    55. It is further ordered that pursuant to applicable procedures 
set forth in sections 1.415 and 1.419 of the Commission's Rules, 47 CFR 
1.415, 1.419, interested parties may file comments on the Notice of 
Proposed Rulemaking on or before October 3, 2008, and reply comments on 
or before October 20, 2008.
    56. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking and Order, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. E8-20502 Filed 9-2-08; 8:45 am]
BILLING CODE 6712-01-P


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