51406 Federal Register / Vol. 73, No. 171 / Wednesday, September 3, 2008 / Proposed Rules 

Flooding source(s) Location of referenced elevation ** 

* Elevation in feet (NGVD) 

+ Elevation in feet (NAVD) 

# Depth in feet above 

ground Communities affected 

Effective Modified 

Town of Hudson 

Maps are available for inspection at Hudson Town Hall, 550 Central Street, Hudson, NC. 

Unincorporated Areas of Caldwell County 

Maps are available for inspection at Caldwell County Courthouse, 1051 Harper Avenue, Lenoir, NC. 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: August 22, 2008. 

David I. Maurstad, 

Federal Insurance Administrator of the 

National Flood Insurance Program, 

Department of Homeland Security, Federal 

Emergency Management Agency. 

[FR Doc. E8–20304 Filed 9–2–08; 8:45 am] 

BILLING CODE 9110–12–P 

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. 

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: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

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

instructions for submitting comments. 

• 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. 

• People with Disabilities: Contact 

the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

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

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: Bill 

Stafford, Spectrum and Competition 

Policy Division, Wireless 

Telecommunications Bureau at (202) 

418–0563 or Bill.Stafford@fcc.gov. 

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 

FCC@BCPIWEB.com. 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 


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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 noninterference 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 


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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 


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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 


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1See 47 CFR 1.1200(a), 1.1206. 

2See Commission Emphasizes the Public’s 

Responsibilities in Permit-But-Disclose 

Proceedings, Public Notice, 15 FCC Rcd 19945 

(2000). 

3See 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). 

4See 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). 

5Revisions 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. 

6See 5 U.S.C. 603(a). 

7 Id. 

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 

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 §§ 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). 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

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

cgb/ecfs/ or the Federal eRulemaking 

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

Filers should follow the instructions 

provided on the Web site for submitting 

comments. 

• For ECFS filers, if multiple docket 

or rulemaking numbers appear in the 

caption of this proceeding, filers must 

transmit one electronic copy of the 

comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Parties may also 

submit an electronic comment by 

Internet e-mail. To get filing 

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

following words in the body of the 

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

directions will be sent in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

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. 

• The Commission’s contractor will 

receive hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

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

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail 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 fcc504@fcc.gov 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: 

FCC504@fcc.gov; 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 FCC@BCPIWEB.com. 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 FCC@BCPIWEB.com. 

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

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

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 


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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). 

9See NPRM at para. 2. 

10 Id. 

11 Id. 

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. 

16See 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). 

20U.S. Census Bureau, Statistical Abstract of the 

United States: 2006, Section 8, page 272, Table 415. 

21The 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. 

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). 

23See 47 CFR 74.832(a)(1)–(6). 

24See 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 

Continued 

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. 

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

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

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. 

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

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 


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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. 

25See PISC petition at 21–22. 

26See PISC petition at i–ii. 

27U.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. 

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). 

31U.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. 

33See 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. 

34The Commission recognizes that BIA’s estimate 

differs slightly from the FCC total given supra. 

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). 

36See 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. 

37See generally 5 U.S.C. 601(4), (6). 

38See 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. 

39U.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. 

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

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. 

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 overinclusive. 

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. 

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. 

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. 

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 


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41U.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. 

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). 

44These 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). 

46Warren 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. 

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). 

49These 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. 

50The 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). 

51U.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. 

53U.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. 

55Amendment 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). 

56See 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). 

58See 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). 

59 13 CFR 121.201, NAICS code 517510. 

60U.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. 

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. 

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. 

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. 

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. 

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

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. 

41. Low Power Auxiliary Device 

Manufacturers: Radio and Television 


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51414 Federal Register / Vol. 73, No. 171 / Wednesday, September 3, 2008 / Proposed Rules 

62U.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. 

64U.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. 

66U.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. 

68U.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. 

70U.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. 

72U.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. 

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. 

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. 

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. 

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. 


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Federal Register / Vol. 73, No. 171 / Wednesday, September 3, 2008 / Proposed Rules 51415 

74 5 U.S.C. 603(c)(1)–(c)(4). 

75See 47 CFR 74.802(a). 76See NPRM at para. 14. 

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

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

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. 

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 

DEPARTMENT OF INTERIOR 

United States Fish and Wildlife Service 

50 CFR Part 17 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 0808191116–81126–01] 

RIN 0648–XJ93 

Endangered and Threatened Species; 

Proposed Endangered Status for the 

Gulf of Maine Distinct Population 

Segment of Atlantic Salmon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce; United States Fish and 

Wildlife Service (USFWS), Interior. 

ACTION: Proposed rule; 12–month 

petition finding; request for comments. 

SUMMARY: We (NMFS and USFWS) have 

determined that naturally spawned and 

conservation hatchery populations of 

Atlantic salmon within the range of the 

Gulf of Maine (GOM) distinct 

population segment (DPS), including 

those that were already listed in 

November 2000, constitute a new GOM 

DPS and hence a ‘‘species’’ for listing as 

endangered or threatened consideration 

under the Endangered Species Act 

(ESA). This also constitutes a 12–month 

finding on a petition to list Atlantic 

salmon in the Kennebec River as 

endangered. We will propose to 

designate critical habitat for the GOM 

DPS in a subsequent Federal Register 

notice. 

DATES: Comments on this proposal must 

be received by December 2, 2008. Public 

hearing requests must be received by 

November 17, 2008. 


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