Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 67227 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); is 

not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 3, 2011. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. Parties with 

objections to this direct final rule are 

encouraged to file a comment in 

response to the parallel notice of 

proposed rulemaking for this action 

published in the proposed rules section 

of today’s Federal Register, rather than 

file an immediate petition for judicial 

review of this direct final rule, so that 

EPA can withdraw this direct final rule 

and address the comment in the 

proposed rulemaking. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Particulate matter, Wilderness areas. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: October 25, 2010. 

Jared Blumenfeld, 

Regional Administrator, EPA Region IX. 

[FR Doc. 2010–27634 Filed 11–1–10; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 74 and 78 

[WT Docket No. 02–55, ET Docket No. 00– 

258 and 95–18; FCC 10–179] 

Relocation Cost Sharing in the 

Broadcast Auxiliary Service 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: This document concludes the 

Commission’s longstanding efforts to 

relocate the Broadcast Auxiliary Service 

(BAS) from the 1990–2110 MHz band to 

the 2025–2110 MHz band, freeing up 35 

megahertz of spectrum in order to foster 

the development of new and innovative 

services. This decision addresses the 

outstanding matter of Sprint Nextel 

Corporation’s (Sprint Nextel) inability to 

agree with Mobile Satellite Service 

(MSS) operators in the band on the 

sharing of the costs to relocate the BAS 

incumbents. To resolve this controversy, 

the Commission applies its timehonored relocation principles for 

emerging technologies previously 

adopted for the BAS band to the instant 

relocation process, where delays and 

unanticipated developments have left 

ambiguities and misconceptions among 

the relocating parties. In the process, the 

Commission balances the 

responsibilities for and benefits of 

relocating incumbent BAS operations 

among all the new entrants in the 

different services that will operate in the 

band. 

DATES: Effective December 2, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Nicholas Oros, (202) 418–0636, Policy 

and Rules Division, Office of 

Engineering and Technology, 

Nicholas.Oros@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Fifth 

Report and Order, Eleventh Report and 

Order, Sixth Report and Order, and 

Declaratory Ruling, WT Docket No. 02– 

55, ET Docket No. 00–258 and 95–18, 

adopted September 29, 2010, and 

released September 29, 2010. The full 

text of this document is available on the 

Commission’s Internet site at 

www.fcc.gov. It is also available for 

inspection and copying during regular 

business hours in the FCC Reference 

Center (Room CY–A257), 445 12th 

Street, SW., Washington, DC 20554. The 

full text of this document also may be 

purchased from the Commission’s 

duplication contractor, Best Copy and 

Printing Inc., Portals II, 445 12th St., 

SW., Room CY–B402, Washington, DC 

20554; telephone (202) 488–5300; fax 

(202) 488–5563; e-mail 

FCC@BCPIWEB.COM. 

Summary of the Fifth Report and 

Order, Eleventh Report and Order, 

Sixth Report and Order, and 

Declaratory Ruling 

1. This Report and Order and 

Declaratory Ruling concludes the 

Commission’s longstanding efforts to 

relocate the Broadcast Auxiliary Service 

(BAS) from the 1990–2110 MHz band to 

the 2025–2110 MHz band, freeing up 35 

megahertz of spectrum in order to foster 

the development of new and innovative 

services that can provide mobile 

broadband and nationwide 

communications capabilities. This 

decision in particular addresses the 

outstanding matter of Sprint Nextel 

Corporation’s (Sprint Nextel) inability to 

agree with Mobile Satellite Service 

(MSS) operators in the band on the 

sharing of the costs to relocate the BAS 

incumbents. To date, Sprint has 

shouldered the entire cost of this 

relocation, which was completed on 

July 15, 2010. 

2. To resolve this important issue, the 

Commission applied its time-honored 

relocation principles for emerging 

technologies previously adopted for the 

BAS band to the instant relocation 

process, where delays and 

unanticipated developments have left 

ambiguities and misconceptions among 

the relocating parties. These principles 

have been a fundamental part of the 

Commission’s past efforts to unlock 

value and promote investment through 

the relocation process. In the end, the 


hsrobinson on DSK69SOYB1PROD with RULES
67228 Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 

Commission balanced the 

responsibilities for and benefits of 

relocating incumbent BAS operations 

among all the new entrants in the 

different services that will operate in the 

band. 

3. The Commission has sought to 

relocate BAS licensees to a more 

spectrally efficient band plan and make 

spectrum available for other uses, while 

fairly distributing the relocation costs 

among the new users. Because the path 

leading to this Fifth Report and Order, 

Eleventh Report and Order, Sixth Report 

and Order, and Declaratory Ruling 

(Report and Order and Declaratory 

Ruling) has been especially complex, 

the Commission summarized the history 

of this proceeding to the extent relevant 

to the decisions it was making; see 

paragraphs 4 through 12 of the Report 

and Order and Declaratory Ruling. In 

the Declaratory Ruling the Commission 

addresses a number of disputes that 

have arisen in this proceeding involving 

requirements that were established 

when the current BAS relocation 

scheme was adopted in 2004; see 

paragraphs 15 through 44 of the Report 

and Order and Declaratory Ruling. 

Discussion 

4. The Report and Order and 

Declaratory Ruling addresses disputes 

regarding sharing the cost of relocating 

the 2 GHz BAS incumbents. The 

Commission concludes that the best 

course of action is to clarify and modify 

the cost sharing requirements to address 

the ambiguity or lack of definition in the 

current requirements to correspond to 

the stated purposes and structure of the 

cost sharing principles set forth in the 

Commission decision which established 

Sprint Nextel’s entry into the band, the 

800 MHz R&O (69 FR 67823), as well as 

to balance the responsibilities for and 

benefits of relocating incumbent BAS 

operations among all the new entrants 

in the band in a way that is consistent 

with the Commission’s relocation 

policies set forth in the Emerging 

Technologies proceeding. One of the 

important underlying principles of the 

relocation policy is that licensees that 

ultimately benefit from the spectrum 

cleared by the first entrant shall bear the 

cost of reimbursing the first entrant for 

the accrual of that benefit. The 

Commission noted its concern that were 

it to stray from the traditional 

application of the Emerging 

Technologies relocation policy, future 

licensees might be unwilling or unable 

to assume the burden and cost of 

clearing spectrum quickly if they were 

unsure of the likelihood that they will 

be reimbursed by other new entrants. 

Termination Date of the Cost Sharing 

Obligations 

5. As explained in the Declaratory 

Ruling adopted along with this Report 

and Order, the MSS and AWS entrants 

have an obligation to reimburse Sprint 

Nextel for a portion of the costs of 

relocating the BAS incumbents if they 

enter the band prior to either the end of 

two future events connected to adoption 

of the 800 MHz R&O: the 800 MHz 

reconfiguration or the 800 MHz true-up. 

Because the timing of either of these 

events is presently unknown, the new 

entrants are in a state of uncertainty as 

to their financial obligation. The 

Commission believes that all of the 

parties will be served by adopting a date 

certain for extinguishing cost-sharing 

obligations—the band sunset date of 

December 9, 2013. This will harmonize 

the relocation requirements for the BAS 

band with the relocation rules for other 

bands that were based on the Emerging 

Technologies principles. The MSS 

entrants argue that the cost sharing 

requirements for this band have 

departed from the Emerging 

Technologies principles in a number of 

ways and argue that the Commission 

should not follow the principles in 

regard to their cost sharing obligations. 

While the Commission has made 

departures from the Emerging 

Technologies procedures, those limited 

departures were made because of the 

unique features of the BAS transition. 

However, where circumstances do not 

require some deviation from Emerging 

Technologies, the Commission shall 

adhere closely to these time-tested 

principles to balance the interest of 

incumbent licensees, new entrants who 

relocate incumbents, and new entrants 

who benefit from the band clearing. In 

this case, because the main reason for 

allowing early termination of the new 

entrants’ cost-sharing obligation no 

longer applies—i.e. Sprint Nextel will 

probably not be taking credit for all of 

its BAS relocation costs against the antiwindfall payment that is described in 

the 800 MHz R&O—there is no 

compelling reason to end the cost 

sharing obligation of the new entrants 

any earlier than the band sunset date. 

Consequently, any new entrant that 

enters the band before December 9, 2013 

will be required to reimburse the entrant 

who relocated BAS incumbents a pro 

rata share of the relocation costs, subject 

to the limitations discussed in the 

Report and Order. 

6. The Commission left in place the 

current band sunset date of December 9, 

2013, despite the request by Sprint 

Nextel to adjust the date until 2015. The 

sunset date is a vital component of the 

Emerging Technologies policies 

because, among other things, it specifies 

the date upon which unrelocated 

incumbents become secondary and it 

provides a length of time for incumbent 

licensees to transition from the band. 

Because the BAS relocation has been 

completed, there is no need to change 

the sunset date to 2015. While Sprint 

Nextel is correct that AWS licensees 

may not enter the band by the current 

sunset date, the Commission’s goal in 

choosing the sunset date is not to 

provide the entrant who relocates 

incumbents with a greater likelihood of 

receiving cost sharing from later 

entrants. When Sprint Nextel undertook 

the responsibility to relocate the BAS 

incumbents as a result of the 800 MHz 

R&O, it knew the timing of the band 

sunset and the uncertainties of the 

entrance of AWS licensees. 

Definition of ‘‘Enter the Band’’ 

7. The ‘‘enter the band’’ terminology 

was used in the 800 MHz R&O and AWS 

Sixth R&O to denote when the new 

entrants would incur an obligation to 

reimburse Sprint Nextel for a pro rata 

share of the cost of relocating the BAS 

incumbents, but neither order defined 

the term. 

8. The Commission concludes that an 

MSS entrant will ‘‘enter the band’’ and 

therefore incur a cost sharing obligation 

when the MSS entrant certifies that its 

satellite is operational for purposes of 

meeting its operational milestone. In 

previous Emerging Technologies band 

clearings, the later entrant becomes 

responsible for reimbursing the earlier 

entrants’ relocation cost when the later 

entrant is in the position to cause 

interference to the incumbent licensees 

prior to their relocation. The 

Commission previously determined that 

it does not believe in general that the 

MSS entrants may operate without 

causing interference to the BAS 

incumbents. Consequently, once the 

MSS satellites are operational, they 

would have the potential for causing 

interference to the incumbent BAS 

operations. As with the tests used in 

previous band clearings, the definition 

adopted here is easy to apply and not 

subject to contention. Also, the test is in 

keeping with the nature of the BAS 

service. 

9. The AWS entrants require a 

different definition of ‘‘enter the band.’’ 

The Commission concludes that an 

AWS entrant will ‘‘enter the band’’ on a 

license-by-license basis on the date that 

the grant of each long-form application 

becomes a final action. This 

requirement has the advantage of ease of 

administration, and conforms to the 

overall Emerging Technologies policies. 


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Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 67229 

Once the AWS entrant’s long form 

application has been granted, signifying 

the issuance of a license, the AWS 

entrant will be in the position to roll out 

service and benefit from Sprint’s 

relocation of the BAS incumbents. 

Sprint Nextel’s right to seek 

reimbursement from an AWS licensee 

that enters the band prior to the sunset 

date is limited to an AWS licensee’s 

proportional share of the costs incurred 

in the BAS clearance, on a pro rata basis 

according to the amount of spectrum 

that each licensee is assigned in the 

1990–2025 MHz band. The Commission 

intends to adopt specific cost sharing 

rules for AWS in the 1995–2000 MHz 

and 2020–2025 MHz bands when it 

adopts service rules which define the 

licensing scheme for these bands. 

Limitations on MSS Cost Sharing 

Obligations 

10. In the 800 MHz R&O, the costs for 

which the MSS entrants had to 

reimburse Sprint Nextel were limited to 

a pro rata share of relocating the top 30 

markets and fixed BAS links because 

these were the BAS incumbents that the 

MSS entrants had to relocate before they 

could begin operations. The 

Commission concludes that even with 

the changed circumstances surrounding 

the BAS relocation, the most 

appropriate course is to retain the 

current cost sharing obligations for MSS 

entrants. Although the Commission 

recognizes that the parties have 

conflicting interests at stake, this 

requirement was clearly established 

from the outset and the Commission 

declines to reverse it now, where all 

parties involved have been aware of 

their respective rights and obligations 

and presumably structured their 

activities accordingly. 

11. TerreStar, one of the MSS 

entrants, claims that equitable factors 

argue for limiting the MSS entrants’ 

reimbursement obligation to the 

expenses Sprint Nextel incurred before 

September 7, 2007 because if Sprint 

Nextel had completed the BAS 

relocation by the end of the BAS 30- 

month relocation period there would 

have been no relocation expenses 

incurred after this date. The 

Commission is not persuaded that 

equitable factors support allowing 

TerreStar or DBSD (the other MSS 

entrant) to escape paying a pro rata 

share of the BAS relocation costs. The 

MSS entrants have suffered little harm 

from the delays in the BAS relocation, 

and the Commission has taken steps to 

minimize the impact that delays in the 

transition would have on DBSD and 

TerreStar’s plans to begin operations. It 

concludes that there is no reason to 

reduce their cost sharing obligations 

further. 

12. The Commission rejects DBSD’s 

suggestion that the amount that the MSS 

entrants owe for BAS relocation be 

depreciated from when Sprint Nextel 

signed frequency relocation agreements 

with the BAS incumbents. The 

Commission also rejects DBSD’s 

suggestion that cost caps be applied to 

the BAS relocation costs. Finally, the 

Commission will not limit Sprint 

Nextel’s ability to seek reimbursement 

from MSS entrants to only those 

expenses it cannot receive credit against 

the 800 MHz anti-windfall payment, as 

suggested by TerreStar. 

Payment Issues 

13. In the Report and Order the 

Commission adopts a policy affirming 

the tentative conclusion made in the 

June 2009 Further Notice that Sprint 

Nextel may not both receive credit in 

the 800 MHz true-up and receive 

reimbursement from the MSS and AWS 

entrants for the same costs. This has 

been the rule since the cost sharing 

requirements were adopted in the 800 

MHz R&O, and is necessary to prevent 

Sprint Nextel from receiving the 

unjustified windfall of a double 

recovery, and no party has objected to 

this conclusion. If the true-up occurs 

prior to Sprint Nextel receiving 

reimbursement from another entrant, 

the Commission will require Sprint 

Nextel to inform the other entrant of the 

expenses for which it has received 

credit in the 800 MHz true-up prior to 

receiving reimbursement. The other 

entrant will not be obligated to 

reimburse Sprint Nextel for what would 

otherwise be its share of those particular 

expenses. 

14. The principle that Sprint Nextel is 

not entitled to make a double recovery 

also applies to reimbursements it 

receives from among the new entrants. 

Multiple new entrants may have an 

interest in the same portion of the 

relocated BAS spectrum because, for 

example, entrants change business 

structure or assign their licenses. 

Accordingly, the Commission specifies 

that Sprint Nextel is not entitled to 

obtain reimbursement from a new 

entrant for relocation costs that Sprint 

Nextel has already received from 

another new entrant. Thus, if a new 

entrant assigns its license to a third 

party after the new entrant has 

reimbursed Sprint Nextel, the 

Commission would reject a claim that 

the assignee is responsible for 

reimbursing Sprint Nextel for that same 

relocation expense. The converse also 

holds: An assignee would be considered 

a new entrant and is responsible for 

unpaid cost sharing associated with a 

particular portion of the spectrum. 

However, to the extent that a new 

entrant seeks to assign its license to a 

third party prior to satisfying its 

reimbursement obligation, the assignor 

and assignee would be jointly and 

severally liable for the reimbursement 

costs until paid. 

15. As for when Sprint Nextel should 

be reimbursed by the other new entrants 

for its BAS relocation cost, the 

Commission does not adopt either of the 

proposals on which it sought comment 

on the June 2009 Further Notice. The 

Commission concludes that the 

reimbursement deadline for a new MSS 

or AWS entrant will be based on when 

the new entrant has ‘‘entered the band.’’ 

Once the new entrant has entered the 

band, but no later than the sunset date, 

Sprint Nextel may provide the new 

entrant with the required 

documentation and request payment. 

The new entrant will then have thirty 

days to submit its reimbursement to 

Sprint Nextel, unless, the parties agree 

to different terms (such as an 

installment plan). This approach avoids 

complexities of administering separate 

deadlines for each market and provides 

certainty to the parties. 

16. The Commission will not require, 

nor will it object if parties agree to, an 

installment payment plan for BAS 

relocation reimbursement. The 

Commission encourages the parties 

interested in making installment 

payments to use the 30-day payment 

window to negotiate an appropriate 

installment payment plan. If no 

installment plan is agreed upon, a new 

entrant must pay the full cost sharing 

amount in one payment at the 

reimbursement deadline. 

17. The Commission sees no reason to 

link the payment of new entrants’ cost 

sharing obligations to the true-up as the 

MSS entrants have suggested. The 

Commission does not think it would be 

prudent to introduce the uncertainty 

associated with the true-up date to the 

payment date of the BAS cost sharing, 

especially given that it has prohibited 

Sprint Nextel from both claiming credit 

for BAS relocation costs against the antiwindfall payment and receiving cost 

sharing payments from new entrants for 

the same costs. 

18. As the Commission proposed in 

the June 2009 Further Notice, it will 

require that Sprint Nextel share with 

any other entrant from whom it seeks 

reimbursement its relocation cost as 

documented in its annual audit as 

provided to the transition administrator, 

copies of third-party audited statements 

of expenses associated with the BAS 

relocation, and copies of the relevant 


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67230 Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 

frequency relocation agreements. As 

discussed, the new entrant will have 30 

days, unless other terms are agreed 

upon, to make its reimbursement 

payment after Sprint Nextel has 

provided this documentation. 

19. The MSS entrants have requested 

the ability to examine and contest 

individual expenses while Sprint Nextel 

has expressed concern that the MSS 

entrants are merely trying to delay or 

limit their cost sharing obligations. With 

regard to disputes that may arise with 

either MSS entrants or future AWS 

entrants, we note that parties have 

several options to resolve disputes that 

may arise including mediation, 

arbitration, or pursuing civil remedies 

in the court system. Parties contesting a 

specific cost sharing obligation shall 

provide evidentiary support to 

demonstrate that their calculation is 

reasonable and made in good faith; 

specifically, they are expected to 

exercise due diligence to obtain the 

information necessary to prepare an 

independent estimate of the relocation 

costs in question. 

20. The Commission did not adopt the 

proposal in the June 2009 Further 

Notice to allow Sprint Nextel to recover 

relocation costs associated with all 20 

megahertz of MSS spectrum from a 

single MSS entrant. In reaching the 

decision, we observe that under the 

Commission’s Emerging Technologies 

policies the amount that the earlier 

entrant could recover has always been 

based on the amount of the later 

entrant’s spectrum that the earlier 

entrant has cleared. The Commission 

concludes that it should not depart from 

these traditional Emerging Technologies 

policies. 

21. As to future AWS entrants, the 

Commission adopted rules consistent 

with the tentative conclusion the 

Commission made in the June 2009 

Further Notice that the future AWS 

licensees that enter the band prior to the 

sunset date will be responsible for 

reimbursing Sprint Nextel for relocating 

the BAS incumbents, less any BAS 

relocation costs for which Sprint Nextel 

had received credit against the antiwindfall payment. This conclusion is 

consistent with past actions in this 

proceeding and with the traditional 

Emerging Technologies policies. 

However, as the Commission noted in 

the June 2009 Further Notice, 

determining how to apportion the 

relocation cost among the future AWS 

licensees will have to wait until the 

licensing scheme for the AWS licensees 

is adopted. The Commission intends to 

adopt specific cost sharing rules, 

consistent with this Order, to govern the 

cost-sharing process between Sprint 

Nextel and AWS entrants in the 1995– 

2000 MHz and the 2020–2025 MHz 

bands, when the Commission adopted 

service rules which defined the 

licensing scheme for these bands. 

22. The Commission will adopt no 

specific policies or procedures as to 

how it should proceed if later new 

entrants fail to reimburse an earlier 

entrant for the cost of relocating BAS 

incumbents as required. Instead, it will 

address complaints regarding failure to 

make required payments that are filed 

before the Commission through our 

existing enforcement mechanisms. 

The Automatic Stay of Section 362 of 

the Bankruptcy Code 

23. DBSD filed a petition to stay the 

rulemaking proposed in the June 2009 

Further Notice on the grounds that the 

rulemaking must be automatically 

stayed under section 362(a) of the 

Bankruptcy Code, 11 U.S.C. 362(a). The 

Commission finds DBSD’s arguments 

misplaced, and denies its petition for 

stay. 

24. The automatic stay of the 

Bankruptcy Code, 11 U.S.C. 362(a), 

essentially bars actions against the 

debtor to recover a pre-petition claim 

against the bankruptcy estate or to 

obtain possession or exercise control 

over property of the estate. The 

regulatory exception to the automatic 

stay, 11 U.S.C. 362(b)(4), excepts from 

the automatic stay actions taken 

pursuant to a government unit’s or 

organization’s police or regulatory 

powers, including enforcement of a 

judgment other than a money judgment. 

25. The June 2009 Further Notice, 

which focused on clarifying the costsharing and reimbursement obligations 

set forth in prior Commission orders, 

was designed to further the 

Commission’s long stated public policy 

goals of efficient management of the 

radio spectrum. The June 2009 Further 

Notice, therefore, falls squarely within 

the regulatory exception to the 

automatic stay. DBSD’s arguments to the 

contrary are without merit. The 

declaratory ruling, which includes 

matters of Commission policy related to 

but not subject to the June 2009 Further 

Notice, likewise fits the regulatory 

exception: the Commission has no 

pecuniary interest in the outcome and is 

acting in the public interest for a public 

purpose. 

26. Based on the legal standards, the 

Commission agrees with Sprint Nextel 

that the general rulemaking proceeding 

is not subject to the automatic stay 

merely because one of the parties to the 

rulemaking is a debtor in a bankruptcy 

case. 

27. Nor is there any basis to exclude 

the DBSD debtors from the effects of this 

Report and Order and accompanying 

Declaratory Ruling merely because it 

may result in a financial impact on one 

or more of those parties. Moreover, 

under the well-established principles of 

the regulatory exception to the 

automatic stay, a regulatory body can 

implement its public policies, and even 

adopt orders directed at particular 

industry participants, without violating 

the automatic stay so long as the 

regulatory body does not seek to enforce 

a money judgment outside of the 

bankruptcy claims process. 

28. The Commission rejects DBSD’s 

contention that the regulatory exception 

does not apply because, according to 

DBSD, the June 2009 Further Notice will 

effectively adjudicate or resolve the 

reimbursement dispute between Sprint 

Nextel and DBSD. The express purpose 

of this Report and Order and 

accompanying Declaratory Ruling is to 

further the policy goals of promoting 

more efficient use of spectrum and 

permitting the introduction of new 

services. This Report and Order and 

accompanying Declaratory Ruling 

promotes the general regulatory policies 

of the Commission, but does not seek to 

determine the pecuniary interest of any 

individual debtor or creditor. The 

rulemaking and declaratory ruling apply 

to a variety of industry participants, not 

just to DBSD, and are applicable to all 

similarly situated entities. Moreover, the 

final result of this Report and Order and 

accompanying Declaratory Ruling is not 

a judgment for or against Sprint Nextel 

on its particular reimbursement claims. 

Now that the obligations are clarified, it 

is up to Sprint Nextel to pursue its 

claims. With respect to the DBSD 

bankruptcy, any proceedings by Sprint 

Nextel on a claim for monetary recovery 

against a debtor in the DBSD bankruptcy 

case is a matter for the Bankruptcy 

Court and is not addressed in this 

Report and Order and accompanying 

Declaratory Ruling. Thus, the 

Commission’s rulemaking and issuance 

of a declaratory ruling have remained 

within the limits of the regulatory 

exception to the automatic stay. 

29. In addition, the results of this 

Report and Order and Declaratory 

Ruling meet both the pecuniary purpose 

and public policy tests limiting the 

regulatory exception. With respect to 

the pecuniary purpose test, the 

Commission is acting solely in its 

regulatory capacity and has no creditor 

interest in the DBSD bankruptcy case or 

in the outcome of the Sprint NextelDBSD dispute. The Commission’s 

actions here also meet the ‘‘public 

policy’’ test. The Commission’s actions 


hsrobinson on DSK69SOYB1PROD with RULES
Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 67231 

1See 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), Public Law 104–121, Title II, 110 Stat. 

857 (1996). 

2See Improving Public Safety Communications in 

the 800 MHz Band, WT Docket No. 02–55, ET 

Docket No. 00–258 and ET Docket No. 95–18, 

Report and Order and Order and Further Notice of 

Proposed Rulemaking, 24 FCC Rcd 7904 Appendix 

C (2009). 

3See Id. at ¶ 1. 

4See 5 U.S.C. 604. 

are not designed to protect the claim of 

Sprint Nextel or any other creditor 

against the DBSD bankruptcy estates. 

30. Although the Eastern District of 

Virginia has referred claims to the 

Commission for ‘‘resolution,’’ the actions 

the Commission takes here are not an 

adjudication of the claims that Sprint 

Nextel, DBSD, and TerreStar have raised 

in that court proceeding. Instead, the 

Commission clarifies its relocation rules 

to assist the parties, as well as the court, 

in determining the responsibilities of 

each party in the ongoing BAS 

relocation. 

Retroactivity 

31. The question about cost sharing 

requirements in the Report and Order 

involves when the MSS entrants’ 

obligation to share the costs of BAS 

relocation ends, not whether they are 

under such an obligation. In the 

Declaratory Ruling, the Commission 

explained that under the requirements 

set out in the 800 MHz Order, the MSS 

operators incur a cost sharing obligation 

if they enter the band before the 800 

MHz band reconfiguration or true-up 

process is complete. Once incurred, the 

operator’s reimbursement obligation 

continues until discharged by payment 

or cut off by intervening events. Because 

the 800 MHz rebanding process has 

unfolded in unexpected ways, the 

precise timing and nature of the 

triggering events that would cut off 

these obligations was unspecified, and, 

under these circumstances, the exact 

dates that the MSS operators’ ongoing 

payment obligations would terminate 

were not set. 

32. To the extent the Commission’s 

clarification of the triggering events for 

termination of the payment obligations 

constitutes a new or modified rule, it 

would be considered primarily 

retroactive only if it changed the past 

legal consequences of past actions. This 

clarification, however, has worked no 

change in the legal consequences (i.e., 

incurrence of the reimbursement 

obligation) of the MSS operators’ past 

actions (i.e., entering the band). 

Moreover, the clarification does not 

change how the MSS operators would 

have been treated if the band 

reconfiguration had proceeded 

according to plan. Since it did not, 

however, the circumstances that would 

have relieved the MSS operators of their 

payment obligations did not come 

about, leaving them with these 

obligations intact and the manner of 

their termination (other than for 

payment) unspecified. In taking action 

now to establish a firm date in the 

future (December 9, 2013) that will cut 

off the MSS operators’ cost sharing 

obligations, the Commission acts 

prospectively. 

Paperwork Reduction Analysis 

33. This document does not contain 

new or modified information collection 

requirements 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). 

Congressional Review Act 

34. The Commission SHALL SEND a 

copy of this Fifth Report and Order, 

Eleventh Report and Order, Sixth Report 

and Order, and Declaratory Ruling in a 

report to be sent to Congress and the 

General Accounting Office pursuant to 

the Congressional Review Act, see 5 

U.S.C. 801(a)(1)(A). In addition, the 

Commission’s Consumer and 

Governmental Affairs Bureau will send 

a copy of the Fifth Report and Order, 

Eleventh Report and Order, Sixth Report 

and Order, and Declaratory Ruling, 

including the FRFA, to the Chief 

Counsel for Advocacy of the SBA. 

Final Regulatory Flexibility Analysis 

35. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA),1 an Initial Regulatory Flexibility 

Analysis (IRFA) was incorporated in the 

Further Notice of Proposed Rule Making 

(FNPRM).2 The Commission sought 

written public comment on the 

proposals in the FNPRM, including 

comment on the IRFA.3 No commenting 

parties specifically addressed the IRFA. 

This present Final Regulatory Flexibility 

Analysis (FRFA) conforms to the RFA.4

A. Need for, and Objectives of, the Rules 

36. In this Fifth Report and Order, 

Eleventh Report and Order, and Sixth 

Report and Order and Declaratory 

Ruling (collectively, Report and Order), 

we modify and clarify the Commission’s 

requirements for the new entrants to the 

1990–2025 MHz band to share the cost 

of relocating the incumbent BAS 

licensees from that band. The BAS 

incumbents have been removed from 

the 1990–2025 MHz band to make way 

for Sprint Nextel, MSS entrants, and 

future AWS licensees. Sprint Nextel, 

who will occupy the 1990–1995 MHz 

spectrum, completed relocation of the 

BAS incumbents from the band on July 

15, 2010. The MSS entrants (DBSD and 

TerreStar), who will occupy the 2000– 

2020 MHz spectrum, have both 

launched satellites. The AWS licenses 

for the 1995–2000 MHz and 2020–2025 

MHz bands have not yet been issued. 

37. The cost sharing requirements for 

the BAS relocation must be modified 

because circumstances surrounding the 

relocation have significantly changed 

since the requirements were adopted. 

When the current cost sharing 

requirements were adopted in 2004, 

Sprint Nextel was expected to have 

completed the BAS transition by 

September 7, 2007; one or both of the 

MSS entrants was expected to have 

entered the band and incurred a cost 

sharing obligation to Sprint; the 

reconfiguration of the 800 MHz band, 

which Sprint Nextel was also 

undertaking, would have been 

completed by June 26, 2008; and Sprint 

Nextel was expected to be able to 

receive credit for the BAS relocation 

costs not reimbursed by MSS and AWS 

licenses toward the value of spectrum it 

was receiving. None of these 

assumptions has in fact been correct. 

Furthermore, the current requirements 

have a number of ambiguities, such as 

not specifying a standard for 

determining how MSS and AWS 

licenses incur a cost sharing obligation 

to Sprint Nextel and not specifying 

when reimbursement of BAS relocation 

expenses is to occur. 

38. The Report and Order concludes 

that Sprint Nextel may not both receive 

reimbursement for cost sharing from 

other new entrants and receive credit for 

the same relocation costs against the 

value of the spectrum it is receiving. 

The MSS and AWS entrants can incur 

a relocation obligation until the band 

relocation rules sunset on December 9, 

2013. The Report and Order further 

concludes that an MSS entrant will 

incur an obligation to reimburse Sprint 

for BAS relocation costs when it 

certifies that its satellite is operational 

for purposes of meeting its operational 

milestone. As for AWS licensees, the 

Report and Order concludes that AWS 

entrants will incur a cost sharing 

obligation upon grant of their long form 

application for their licenses. The 

Report and Order decrees that Sprint 

Nextel may provide a new entrant with 

documentation of the relocation 

expenses for which reimbursement is 


hsrobinson on DSK69SOYB1PROD with RULES
67232 Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 

5 5 U.S.C. 603(b)(3). 

6 5 U.S.C. 601(6). 

7 5 U.S.C. 601(3) (incorporating by reference the 

definition of ‘‘small business concern’’ in 15 U.S.C. 

632). Pursuant to the RFA, the statutory definition 

of a small business applies ‘‘unless an agency, after 

consultation with the Office of Advocacy of the 

Small Business Administration and after 

opportunity for public comment, establishes one or 

more definitions of such term which are 

appropriate to the activities of the agency and 

publishes such definition(s) in the Federal 

Register.’’ 5 U.S.C. 601(3). 

8Small Business Act, 15 U.S.C. 632 (1996). 

9 13 CFR 121.201, NAICS Code 517410. 

10TerreStar Corp., SEC Form 10–K 2008 Annual 

Report, filed March 12, 2009 at F–2; ICO Global 

Communications (Holdings) Limited, SEC Form 10– 

K 2008 Annual Report, filed March 31, 2009 at 52. 

ICO’s subsidiary which controls its satellite 

covering the United States is currently in 

bankruptcy. ICO Global Communications 

(Holdings) Limited, Form 8–K, filed May 15, 2009. 

11U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517210 Wireless Telecommunications Categories 

(Except Satellite)’’; http://www.census.gov/naics/ 

2007/def/ND517210.HTM#N517210. 

12U.S. Census Bureau, 2002 NAICS Definitions, 

‘‘517211 Paging’’; http://www.census.gov/epcd/ 

naics02/def/NDEF517.HTM.; U.S. Census Bureau, 

2002 NAICS Definitions, ‘‘517212 Cellular and 

Other Wireless Telecommunications’’; http:// 

www.census.gov/epcd/naics02/def/NDEF517.HTM. 

13 13 CFR 121.201, NAICS code 517210 (2007 

NAICS). The now-superseded, pre-2007 CFR 

citations were 13 CFR 121.201, NAICS codes 

517211 and 517212 (referring to the 2002 NAICS). 

14U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

Firm Size (Including Legal Form of Organization,’’ 

Table 5, NAICS code 517211 (issued Nov. 2005)). 

15 Id. The census data do not provide a more 

precise estimate of the number of firms that have 

employment of 1,500 or fewer employees; the 

largest category provided is for firms with ‘‘1,000 

employees or more.’’ 

16U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

Firm Size (Including Legal Form of Organization,’’ 

Table 5, NAICS code 517212 (issued Nov. 2005)). 

17 Id. The census data do not provide a more 

precise estimate of the number of firms that have 

employment of 1,500 or fewer employees; the 

largest category provided is for firms with ‘‘1,000 

employees or more.’’ 

18 13 CFR 121.201, NAICS Code 517210. 

19 Id. 

20Sprint Nextel Corp., SEC Form 10–K 2009 

Annual Report, filed Feb. 26, 2010 at 12. 

owed only after the new entrant has 

‘‘entered the band’’ and therefore 

incurred a cost sharing obligation. The 

new entrant will then have thirty days 

to pay the amount owed Sprint Nextel, 

unless the parties agree to a different 

schedule. 

39. In addition, the Report and Order 

concludes that the MSS entrants’ 

reimbursement obligation to Sprint 

Nextel should continue to be limited to 

a pro rata share of the costs of relocating 

BAS in the thirty largest markets (by 

population) and all fixed BAS links. The 

Report and Order requires Sprint Nextel 

to share with other new entrants from 

whom it is seeking reimbursement, 

information about its relocation cost as 

documented in its annual external audit 

and as Sprint Nextel provides to the 

Transition Administrator of the 800 

MHz transition, copies of frequency 

relocation agreements that it has with 

any BAS incumbent for which it is 

seeking cost sharing, and third-party 

audited statements of expenses 

associated with the BAS relocation. 

B. Legal Basis 

40. The action is taken pursuant to 

sections 4(i), 301, 303(c), 303(f), 303(g), 

303(r), 303(y), and 332 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 301, 303(c), 

303(f), 303(g), 303(r), 303(y), and 332. 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Rules Will Apply 

41. 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 rules, if adopted.5 The RFA 

generally defines the term ‘‘small entity’’ 

as having the same meaning as the terms 

‘‘small business,’’ ‘‘small organization,’’ 

and ‘‘small governmental jurisdiction.’’ 6

In addition, the term ‘‘small business’’ 

has the same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act.7 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 SBA.8

42. The rule modifications will affect 

the interest of the new entrants to the 

1990–2025 MHz band: MSS, Sprint 

Nextel, and future AWS entrants to the 

band. 

43. MSS. There are two MSS operators 

in the 1990–2110 MHz band. These 

operators will provide services using the 

2000–2020 MHz portion of the band. 

The SBA has developed a small 

business size for Satellite 

Telecommunications, which consist of 

all companies having annual revenues 

of less than $15 million.9 Neither of the 

two MSS operators currently has 

revenues because, while they both have 

operational satellites, they are not 

providing commercial service. However, 

given that as of December 31, 2008, 

these MSS operators had assets of 

$1.341 billion and $664 million, 

respectively, we expect that both of 

these companies will have annual 

revenue of over $15 million once they 

are able to offer commercial services.10

Consequently, we find that neither MSS 

operator is a small business. Small 

businesses often do not have the 

financial ability to become MSS system 

operators due to high implementation 

costs associated with launching and 

operating satellite systems and services. 

44. Wireless Telecommunications 

Carriers (except Satellite). Since 2007, 

the Census Bureau has placed wireless 

firms within this new, broad, economic 

census category.11 Prior to that time, 

such firms were within the nowsuperseded categories of ‘‘Paging’’ and 

‘‘Cellular and Other Wireless 

Telecommunications.’’ 12 Under the 

present and prior categories, the SBA 

has deemed a wireless business to be 

small if it has 1,500 or fewer 

employees.13 Because Census Bureau 

data are not yet available for the new 

category, we will estimate small 

business prevalence using the prior 

categories and associated data. For the 

category of Paging, data for 2002 show 

that there were 807 firms that operated 

for the entire year.14 Of this total, 804 

firms had employment of 999 or fewer 

employees, and three firms had 

employment of 1,000 employees or 

more.15 For the category of Cellular and 

Other Wireless Telecommunications, 

data for 2002 show that there were 1,397 

firms that operated for the entire year.16

Of this total, 1,378 firms had 

employment of 999 or fewer employees, 

and 19 firms had employment of 1,000 

employees or more.17 Thus, we estimate 

that the majority of wireless firms are 

small. 

45. AWS. The AWS licenses have not 

been issued and the Commission has no 

definite plans to issue these licenses. 

Presumably some of the businesses 

which will eventually obtain AWS 

licenses will be small businesses. 

However, we have no means to estimate 

how many of these licenses will be 

small businesses. 

46. Sprint Nextel. Sprint Nextel as a 

new entrant to the band will occupy 

spectrum from 1990–1995 MHz. The 

Third Report and Order grants Sprint 

Nextel a waiver of the deadline by 

which it must relocate the BAS, CARS, 

and LTTS incumbents from the 1990– 

2025 MHz portion of the band. Sprint 

Nextel belongs to the SBA category, 

Wireless Telecommunications Carriers 

(except satellite).18 Businesses in this 

category are considered small if they 

have fewer than 1,500 employees.19 As 

of December 31, 2009 Sprint Nextel had 

about 40,000 employees.20

Consequently, we find that Sprint 

Nextel is not a small business. 


hsrobinson on DSK69SOYB1PROD with RULES
Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 67233 

21See 5 U.S.C. 603(c). 

22We rejected requiring the MSS entrants to pay 

their obligation under an installment plan. See 

paragraph 16, supra. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

47. The Report and Order clarifies the 

existing obligation of new entrants to 

reimburse the party who relocates BAS 

incumbents for a portion of the 

relocation costs. It specifies that an 

AWS entrant incurs a cost sharing 

obligation upon grant of the long-form 

application for its license, and an MSS 

entrant incurs an obligation when it 

certifies that its satellite is operational 

for purposes of meeting its operational 

milestone. The reimbursement 

obligation continues until the December 

9, 2013 band sunset date. The Report 

and Order also specifies when payment 

of relocation cost is due. 

E. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

48. The RFA requires an agency to 

describe any significant 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) an exemption from 

coverage of the rule, or any part thereof, 

for small entities.21

49. Most of the decisions in the 

Report and Order address cost sharing 

obligations between the MSS entrants, 

future AWS entrants, and Sprint Nextel 

for relocating the BAS incumbents. Of 

these new entrants only the future AWS 

entrants may be small entities. Because 

no licensing scheme for the AWS 

spectrum has been determined, we are 

unable to determine how many (if any) 

of these future licensees may be small 

entities. It is also difficult to determine 

how the impact of the cost sharing rules 

on them may be reduced. 

50. All of the new entrants benefit 

from the clarity that the Report and 

Order brings to the cost sharing rules. 

The new entrants can now be certain 

how they incur a cost sharing 

obligation, what expenses are eligible 

for cost sharing, when they must make 

payment, and when the obligation will 

end if they do not incur a cost sharing 

obligation (i.e. they do not enter the 

band by the sunset date). In this way the 

cost sharing requirements adopted in 

the Report and Order benefit those 

future AWS entrants who may be small 

entities. 

51. Under the cost sharing rules, 

Sprint Nextel may receive cost sharing 

from the other new entrants to the band. 

One possible alternative to lessen the 

impact on new entrants who are small 

entities would be to reduce the amount 

that small entities are required to 

reimburse other entrants for the BAS 

relocation. This would in effect require 

Sprint Nextel to subsidize the small 

entities. This would be unfair because 

Sprint Nextel did not volunteer to 

subsidize the small entities, the small 

entities would likely be direct 

competitors of Sprint Nextel, and Sprint 

Nextel has spent a large sum of money 

on the BAS transition. Sprint Nextel is 

only receiving 5 megahertz of the 35 

megahertz of spectrum and up to this 

point has shouldered the entire cost of 

the BAS transition. Not requiring the 

future AWS entrants who are small 

entities to pay their share of the 

relocation cost would also harm the 

Commission’s future relocation policies. 

In the future licensees are not likely to 

volunteer to relocate incumbents if they 

are forced to subsidize other licensees. 

52. Another alternative would be to 

let the small entities pay their cost 

sharing obligation on the installment 

plan.22 Allowing use of installment 

payments would in effect make the 

party who relocated the incumbents a 

creditor of the small entity. This would 

be more costly for the party who 

relocated the incumbents because they 

will receive payment later. It would also 

subject the relocating party to increased 

risk of non-payment. There is also no 

record as to what specific installment 

plan could be adopted. 

53. Because of these drawbacks, we 

do not believe either of these 

alternatives is appropriate. Furthermore, 

because no AWS licenses have been 

issued, no small entities currently have 

a cost sharing obligation for the BAS 

transition. When AWS licenses are 

issued at some future date, the potential 

licensees will know for certain that they 

face a cost sharing liability because of 

the refinement of the cost sharing rules 

adopted in this Report and Order. 

F. Federal Rules That May Duplicate, 

Overlap or Conflict With the Rules 

54. None. 

Ordering Clauses 

55. Pursuant to sections 4(i), 301, 

303(c), 303(f), 303(g), 303(r), 303(y), and 

332 of the Communications Act of 1934, 

as amended, 47 U.S.C. 154(i), 301, 

303(c), 303(f), 303(g), 303(r), 303(y), and 

332, this Fifth Report and Order, 

Eleventh Report and Order, Sixth Report 

and Order is adopted and will become 

effective 30 days after publication in the 

Federal Register. 

56. Pursuant to sections 4(i), 301, 

303(c), 303(f), 303(g), 303(r), 303(y), and 

332 of the Communications Act of 1934, 

as amended, 47 U.S.C. 154(i), 301, 

303(c), 303(f), 303(g), 303(r), 303(y), and 

332, this Declaratory Ruling is adopted 

and was effective September 29, 2010. 

57. The Petition for Stay filed by New 

DBSD Satellite Services G.P. is denied. 

58. The Commission shall send a copy 

of this Fifth Report and Order, Eleventh 

Report and Order, Sixth Report and 

Order, and Declaratory Ruling in a 

report to be sent to Congress and the 

General Accounting Office pursuant to 

the Congressional Review Act, see 5 

U.S.C. 801(a)(1)(A). 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. 2010–27577 Filed 11–1–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2010–0148] 

RIN 2127–AK39 

Federal Motor Vehicle Safety 

Standards; Head Restraints 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT. 

ACTION: Final rule; technical 

amendments; response to petitions for 

reconsideration and petitions for 

rulemaking. 

SUMMARY: This document responds to 

petitions for reconsideration of the 

agency’s May 2007 final rule amending 

our head restraint standard, and to 

related petitions for rulemaking. This 

document also makes technical 

corrections. The May 2007 final rule 

was issued in response to petitions for 

reconsideration of our December 2004 

final rule upgrading our head restraint 

standard. We are partially granting and 

partially denying the petitions for 

reconsideration. 


hsrobinson on DSK69SOYB1PROD with RULES