29636 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 

impact on a substantial number of small 

entities. 

Unfunded Mandates Reform Act of 

1995 

This proposed rule would not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 109 Stat. 48, March 22, 

1995). This proposed action would not 

result in the expenditure by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector, of 

$128.1 million or more in any 1 year (2 

U.S.C. 1532) period to comply with 

these changes. 

Executive Order 13132 (Federalism) 

This action has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 dated August 4, 1999, and FHWA 

has determined that this action would 

not have sufficient federalism 

implications to warrant the preparation 

of a federalism assessment. The FHWA 

has also determined that this 

rulemaking will not preempt any State 

law or State regulation or affect the 

States’ ability to discharge traditional 

State governmental functions. 

Executive Order 13175 (Tribal 

Consultation) 

The FHWA has analyzed this action 

under Executive Order 13175, dated 

November 6, 2000, and believes that it 

would not have substantial direct effects 

on one or more Indian Tribes; would not 

impose substantial direct compliance 

costs on Indian Tribal governments; and 

would not preempt Tribal law. 

Therefore, a Tribal summary impact 

statement is not required. 

Executive Order 13211 (Energy Effects) 

The FHWA has analyzed this action 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. The FHWA has 

determined that it is not a significant 

energy action under that order because 

it is not likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy. Therefore, 

a Statement of Energy Effects under 

Executive Order 13211 is not required. 

Executive Order 12372 

(Intergovernmental Review) 

Catalog of Federal Domestic 

Assistance program Number 20.205, 

Highway Planning and Construction. 

The regulations implementing Executive 

Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities do 

apply to this program. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from the Office of Management and 

Budget (OMB) for each collection of 

information they conduct, sponsor, or 

require through regulations. Form 

FHWA–47 was previously approved 

under OMB Control Number 2125–0033 

in July 1998, and was associated with 5 

burden hours. We allowed this control 

number to expire because we no longer 

needed the information. Since this 

action eliminates a current reporting 

requirement and does not require any 

entity to write or submit new reports, 

the FHWA request for approval from 

OMB under the provisions of the PRA 

is not required. 

Executive Order 12988 (Civil Justice 

Reform) 

This action meets applicable 

standards in sections 3(a) and 3(b)(2) of 

Executive Order 12988, Civil Justice 

Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

Executive Order 13045 (Protection of 

Children) 

The FHWA has analyzed this action 

under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. The FHWA certifies that this 

action would not concern an 

environmental risk to health or safety 

that may disproportionately affect 

children. 

Executive Order 12630 (Taking of 

Private Property) 

The FHWA does not anticipate that 

this action would effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

National Environmental Policy Act 

The FHWA has analyzed this action 

for the purpose of the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4347) and has determined 

that it would not have any effect on the 

quality of the environment. 

Regulation Identification Number 

A regulation identification number 

(RIN) is assigned to each regulatory 

action listed in the Unified Agenda of 

Federal Regulations. The Regulatory 

Information Service Center publishes 

the Unified Agenda in April and 

October of each year. The RIN contained 

in the heading of this document can be 

used to cross reference this action with 

the Unified Agenda. 

List of Subjects in 23 CFR Part 635 

Contract Procedures, Force Account 

Construction, Physical Construction 

Authorization, General Material 

Requirements. 

Issued on: June 9, 2009. 

Jeffrey F. Paniati, 

Acting Deputy Administrator, Federal 

Highway Administration. 

In consideration of the foregoing, the 

FHWA proposes to amend chapter I of 

title 23, Code of Federal Regulations, as 

set forth below: 

PART 635—CONSTRUCTION AND 

MAINTENANCE 

1. The authority citation of part 635 

continues to read as follows: 

Authority: Sec. 1503 of Public Law 109–59, 

119 Stat. 1144; 23 U.S.C. 101 (note), 109, 112, 

113, 114, 116, 119, 128, and 315; 31 U.S.C. 

6505; 42 U.S.C. 3334, 4601 et seq.; Sec. 

1041(a), Public Law 102–240, 105 Stat. 1914; 

23 CFR 1.32; 49 CFR 1.48(b). 

§ 635.126 [Removed and Reserved] 

2. Remove and reserve § 635.126. 

[FR Doc. E9–14669 Filed 6–22–09; 8:45 am] 

BILLING CODE 4910–22–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 74 and 78 

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

258 and 95–18; FCC 09–49] 

Improving Public Safety 

Communications in the 800 MHz Band 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document the 

Commission proposes to modify our 

cost sharing requirements for the 2 GHz 

BAS band because the circumstances 

surrounding the BAS transition are very 

different than what was expected when 

the cost sharing requirements were 

adopted. The Commission believes that 

the best course of action is to propose 

new requirements that will address the 

ambiguity of applying the literal 

language of the current requirements to 

the changed circumstances, as well as 

balance the responsibilities for and 

benefits of relocating incumbent BAS 

operations among all new entrants in 

the band based on the Commission’s 

relocation policies set forth in the 

Emerging Technologies proceeding. 

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 29637 

DATES: Comments must be filed on or 

before July 14, 2009, and reply 

comments must be filed on or before 

July 24, 2009. 

ADDRESSES: You may submit comments, 

identified by ET Docket No. WT 02–55, 

ET Docket No. 00–258 and ET Docket 

No. 95–18, 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. 

• E-mail: [Optional: Include the Email address only if you plan to accept 

comments from the public]. Include the 

docket number(s) in the subject line of 

the message. 

• Mail: [Optional: Include the mailing 

address for paper, disk, or CD–ROM 

submissions needed/requested by your 

Bureau or Office. Do not include the 

Office of the Secretary’s mailing address 

here.] 

• 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: 

Nicholas Oros, Office of Engineering 

and Technology, (202) 418–0636, email: Nicholas.Oros@fcc.gov, TTY (202) 

418–2989. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Further 

NPRM of Proposed Rule Making, WT 

Docket No. 02–55, ET Docket No. 00– 

258 and ET Docket No. 95–18, FCC 09– 

49, adopted June 10, 2009, and released 

June 12, 2009. The full text of this 

document is available for public 

inspection and copying during regular 

business hours in the Commission’s 

Reference Information Center, Portals II, 

445 12th Street, SW., (Room CY–A257), 

Washington, DC 20554. The complete 

text of this document also may be 

purchased from the Commission’s copy 

contractor, Best Copy and Printing, Inc., 

Portals II, 445 12th Street, SW., Room, 

CY–B402, Washington, DC 20554, 

telephone (202) 488–5300, facsimile 

(202) 488–5563 or via e-mail 

FCC@BCPIWEB.com. The full text may 

also be downloaded at: http:// 

www.fcc.gov. 

Pursuant to §§ 1.415 and 1.419 of the 

Commission’s rules, 47 CFR 1.415, 

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 (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 we continue 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 should 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). Filings and comments 

are also available for public inspection 

and copying during regular business 

hours at the FCC Reference Information 

Center, Portals II, 445 12th Street, SW., 

room CY–A257, Washington, DC 20554. 

They may also be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., Portals II, 

445 12th Street, SW., Room CY–B402, 

Washington, DC 20554, telephone: (202) 

488–5300, fax: (202) 488–5563, or via email http://www.bcpiweb.com. 

Summary of Further NPRM of Proposed 

Rulemaking 

1. In this Further NPRM of Proposed 

Rulemaking (Further NPRM), the 

Commission proposes to modify our 

cost sharing requirements for the 2 GHz 

BAS band because the circumstances 

surrounding the BAS transition are very 

different than what was expected when 

the cost sharing requirements were 

adopted. Sprint Nextel has asked us to 

issue a declaratory ruling regarding the 

cost sharing obligations between itself 

and the MSS and AWS–2 entrants in the 

band, but we decline to do so at this 

time. The Commission believes that the 

best course of action is to propose new 

requirements that will address the 

ambiguity of applying the literal 

language of the current requirements to 

the changed circumstances, as well as 

balance the responsibilities for and 

benefits of relocating incumbent BAS 

operations among all new entrants in 

the band based on the Commission’s 

relocation policies set forth in the 

Emerging Technologies proceeding. 

2. In the Report and Order and Order, 

the Commission allowed MSS entrants 

to operate in markets where the BAS 

incumbents have not been relocated 

only if they successfully coordinate 

operations with the BAS incumbents. In 

this Further NPRM the Commission 

seeks comment on whether MSS can 

operate on an unrestricted and 

secondary basis in nonrelocated BAS 

markets. 

29638 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 

3. In this Further NPRM, the 

Commission also proposes to modify the 

current rules regarding the MSS 

entrants’ obligation to relocate the BAS 

incumbents to take into account our 

decision in the Report and Order and 

Order herein to eliminate the top 30 

market rule. Under the current rules, 

after the top 30 markets are relocated, 

the MSS entrants are required to 

complete relocation of the BAS 

incumbents in markets 31 and above 

within either three or five years of 

beginning operations, depending on the 

size of the BAS market. The 

Commission proposes to maintain this 

independent obligation on MSS entrants 

to relocate BAS incumbents in all 

markets. The Further NPRM also 

addresses the independent obligation of 

AWS entrants to relocate BAS 

incumbents in the band. 

4. Finally, the Commission also seeks 

comment on whether it should further 

modify the BAS relocation rules to 

allow new entrants to begin 

unencumbered operations in the band 

before all BAS operations are relocated. 

The BAS transition is taking longer than 

initially anticipated and delaying the 

introduction of new services in the 

band. The Commission seeks comment 

on incentives to encourage BAS 

licensees to complete the relocation 

process promptly and without 

unnecessary delay. 

A. Cost Sharing 

5. In 2003, when fifteen megahertz of 

spectrum in the 1990–2000 MHz and 

2020–2025 MHz bands was reallocated 

from MSS to Fixed and Mobile services 

to be used for new terrestrial services, 

i.e., AWS–2, the Commission decided 

that responsibility for BAS relocation 

would be shared between the MSS 

entrants and the other new entrants to 

the band. In 2004, Sprint Nextel was 

assigned five megahertz of this spectrum 

in the 1990–1995 MHz band (as well as 

the paired 1910–1915 MHz band) in 

exchange for giving up spectrum it held 

in the 800 MHz band. Sprint Nextel also 

was given the obligation to relocate the 

BAS incumbents from the entire 35 

megahertz of spectrum in the 1990–2025 

MHz band, as well as the realignment of 

the 800 MHz band to resolve ongoing 

interference between public safety and 

commercial operations in that band. To 

ensure that Sprint Nextel did not 

receive an undeserved windfall by 

receiving the 1.9 GHz spectrum, Sprint 

Nextel was required to make an ‘‘antiwindfall’’ payment to the U.S. Treasury 

if the fair value of the spectrum it 

received, as determined by the 

Commission ($4.86 billion), exceeded 

the total of (i) the value the Commission 

attributed to the 800 MHz spectrum 

Sprint Nextel was vacating ($2.059 

billion); (ii) the costs paid by Sprint 

Nextel to realign the 800 MHz band; and 

(iii) the costs paid by Sprint Nextel to 

clear incumbent users from the BAS 

spectrum (as well as the paired 1910– 

1915 MHz band). The Commission 

required Sprint Nextel to pay any 

monies owed to the U.S. Treasury under 

this calculation as part of a ‘‘true-up’’ 

that was originally scheduled to be 

accomplished within six months of the 

end of the 36 month 800 MHz transition 

period. The 36 month 800 MHz 

transition deadline was later established 

as June 26, 2008 with the true-up to 

occur by December 26, 2008. The 

Commission noted that Sprint Nextel 

was to complete the relocation of the 

BAS incumbents by September 7, 2007, 

prior to both the 800 MHz transition 

date and the subsequent true-up date. 

6. In the 2004 800 MHz R&O, 69 FR 

67823, November 22, 2005, the 

Commission provided that the earlier 

entrant to the band who relocated BAS, 

whether Sprint Nextel or MSS, could 

receive reimbursement from a later 

entrant for the band clearing costs 

consistent with the Emerging 

Technology relocation principles. 

However, the unique situation that led 

to the assignment of the 1.9 GHz 

spectrum to Sprint Nextel required the 

Commission to establish additional 

procedures for the band. Specifically, 

the Commission established in the 800 

MHz R&O that Sprint Nextel is ‘‘entitled 

to seek pro rata reimbursement * * * 

from MSS licensees that enter the band’’ 

prior to the end of the 800 MHz 36- 

month reconfiguration period, and it 

required Sprint Nextel to notify the MSS 

entrants of its intention to seek cost 

sharing. The Commission provided that 

if Sprint Nextel receives a cost sharing 

reimbursement from the MSS entrants, 

the amount is to be deducted from the 

costs it can claim credit for as BAS 

relocation expenses in the 800 MHz 

true-up. Sprint Nextel’s right to receive 

reimbursement from MSS was limited to 

the costs of clearing the top thirty 

markets and all fixed BAS facilities, 

regardless of market size, based on an 

MSS entrant’s pro rata share of the 

1990–2025 MHz spectrum involved. 

The Commission notes that when Sprint 

Nextel undertook its commitment to 

relocate the BAS licensees, the 

Commission did not, remove the 

obligation of the MSS entrants to 

relocate the BAS licensees, nor did it 

eliminate the procedures that had 

already been put in place for doing so. 

Indeed, the Commission provided an 

opportunity for the MSS entrants to 

relocate BAS incumbents, particularly 

in the top 30 markets, so that they 

would not be delayed in satisfying their 

entry requirements. Sprint Nextel, in 

turn, is required to reimburse MSS 

entrants for a pro rata share of any 

relocation costs MSS entrants incur if 

they participate in the relocation of BAS 

before Sprint Nextel has completed its 

clearing of the BAS band. When the 

decision was made to permit Sprint 

Nextel to use the 1990–1995 MHz band, 

no BAS licensees had been relocated by 

the MSS entrants, and there is no 

evidence that the MSS entrants 

exercised their right to relocate any BAS 

incumbents subsequent to the 

Commission’s decision. 

7. In the 800 MHz MO&O, 70 FR 

76704, December 28, 2005, adopted in 

October 2005, the Commission affirmed 

its decision regarding the obligations of 

the MSS entrants to reimburse Sprint 

Nextel. The Commission pointed out 

that ‘‘[Sprint] Nextel, as the first entrant, 

is entitled to seek pro rata 

reimbursement of eligible clearing costs 

from subsequent entrants, including 

MSS licensees.’’ The Commission 

explained that ‘‘it decided to end the 

reimbursement obligations of other 

entrants to [Sprint] Nextel, and any 

reimbursement by [Sprint] Nextel to 

other entrants, at the end of the 800 

MHz band true-up period for 

administrative efficiency in the 

accounting process and because of the 

unique circumstances in [Sprint] 

Nextel’s receipt of BAS spectrum.’’ 

Finally, the Commission rejected a 

request that it move up the date by 

which MSS entrants had to ‘‘enter the 

band’’ in order for Sprint Nextel to 

obtain cost sharing from them, and 

instead decided to ‘‘maintain the 

schedule previously established, i.e., the 

true-up period.’’ 

8. As noted, ten megahertz of the 2 

GHz BAS spectrum (1995–2000 MHz 

and 2020–2025 MHz) has been 

reallocated for use by future AWS–2 

licensees. In the AWS Sixth R&O, 69 FR 

62615, October 27, 2004, the 

Commission established obligations for 

the future AWS licensees to reimburse 

Sprint Nextel for the BAS transition 

costs. As with the MSS entrants, Sprint 

Nextel ‘‘is entitled to seek pro rata 

reimbursement of eligible clearing costs 

incurred during its 36-month 800 MHz 

reconfiguration period from AWS 

licensees that enter the band prior to the 

end of that period.’’ Sprint Nextel ‘‘is 

not entitled to reimbursement’’ from the 

AWS licensees ‘‘after receiving credit 

for its relocation cost at the 800 MHz 

true-up.’’ The AWS–2 NPRM of 

Proposed Rulemaking (AWS–2 NPRM), 

69 FR 63489, November 2, 2004, for 

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 29639 

service rules for the AWS–2 licensees 

was issued concurrently with the AWS 

Sixth R&O. The AWS–2 NPRM states 

that ‘‘we also note that if [Sprint] Nextel 

has received credit for BAS relocation 

costs in the 800 MHz true-up, lateentering AWS licensees will not have 

any reimbursement obligation to Nextel 

for such costs.’’ The AWS–2 NPRM 

sought comment on a number of issues 

regarding cost-sharing between the AWS 

entrants and other new entrants to the 

band. These issues include whether a 

timetable should be adopted for AWS 

entrants to relocate BAS; how the 

reimbursement rights and obligations of 

each AWS licensee could be most 

efficiently and equitably allocated, 

whether on the basis of the geographic 

area or population covered by each 

license, or the value of each license as 

indicated by the winning auction bid, or 

by some other means; how the 

relocation costs should be allocated if 

not all AWS licenses are issued; how 

later arriving AWS licensees should be 

treated; and how an accounting between 

MSS and AWS licensees should occur. 

9. Since the time the Commission 

adopted or proposed cost sharing 

procedures for Sprint Nextel, MSS, and 

AWS–2 in the 2 GHz BAS band, many 

of the assumptions underlying those 

procedures have not occurred. The 800 

MHz transition, which was to be 

completed within 36 months (June 26, 

2008) is not yet complete. The 

Commission has granted individual 800 

MHz licensees waivers of the rebanding 

deadline, but has not modified the 

completion date itself. The original 

‘‘true-up date’’ for calculating the antiwindfall payment, which was linked to 

the completion of 800 MHz rebanding 

and set to occur by December 26, 2008, 

was modified by the Commission in 

December 2008. The true-up is currently 

scheduled to occur by July 1, 2009, but 

it may be delayed further and could 

occur before 800 MHz rebanding is 

completed. Sprint Nextel has not 

completed the BAS relocation, and the 

BAS transition deadline has been 

modified several times, most recently to 

June 10, 2009. 

10. In a letter filed June 25, 2008, 

Sprint Nextel asks the Commission to 

make a number of adjustments in 

deadlines and procedures that are tied 

to the June 26, 2008 end date of the 36- 

month 800 MHz reconfiguration period. 

Sprint Nextel posits that these deadlines 

should be adjusted due to the extension 

of the BAS relocation deadline and the 

grant of a large number of waivers of the 

800 MHz rebanding deadline to public 

safety licensees. In particular, Sprint 

Nextel notes that the 800 MHz R&O 

contains references relating the June 26, 

2008 rebanding date to the MSS 

reimbursement obligation to Sprint 

Nextel for BAS relocation costs, and it 

requests that these references be 

harmonized with the postponed true-up 

date. On the same date, Sprint Nextel 

filed a lawsuit against ICO and TerreStar 

in the Eastern District of Virginia 

seeking pro rata reimbursement of its 

BAS relocation costs. On August 29, 

2008, the court referred the case to the 

Commission and stayed all proceedings 

pending further decision by the 

Commission. 

11. TerreStar responded to Sprint 

Nextel’s June 25, 2008 letter on 

September 8, 2008, and ICO responded 

on September 9, 2008. TerreStar and 

ICO both argue that the MSS entrants’ 

reimbursement obligation to Sprint 

Nextel terminated on June 26, 2008. 

TerreStar and ICO also argue that the 

Commission limited Sprint Nextel’s 

ability to recover costs from MSS as part 

of striking ‘‘an appropriate balance’’ 

between Sprint Nextel and the MSS 

entrants’ interests. ICO states that the 

Commission expected Sprint Nextel to 

complete the BAS relocation and MSS 

to begin operations long before 

reimbursement to Sprint Nextel was due 

on June 26, 2008. With the long delay 

in BAS relocation, ICO claims that MSS 

has no ability to earn revenue prior to 

the reimbursement due date or the 

certainty needed to plan to do so. 

TerreStar argues that, when the 800 

MHz R&O was adopted, Sprint Nextel 

could not have had a reasonable 

expectation of recouping expenses from 

TerreStar and TerreStar had a justifiable 

expectation that it would not have to 

pay these expenses because TerreStar’s 

satellite operational milestone was after 

June 26, 2008; thus, it did not ‘‘enter the 

band’’ before the cost sharing obligation 

terminated. TerreStar claims that 

establishing a new date to terminate the 

cost sharing obligation would upset its 

settled expectations, reward Sprint 

Nextel for not completing the 800 MHz 

reconfiguration on time, and jeopardize 

TerreStar’s initiation of service. ICO 

claims that because Sprint Nextel has 

delayed in completing the BAS 

relocation by the original date, the 

requirement that BAS in the top 30 

markets be relocated before MSS can 

begin operations has not been satisfied, 

and thus ICO can not ‘‘enter the band’’ 

and incur a cost sharing obligation even 

though its satellite was successfully 

launched and found operational in May 

2008. 

12. On October 8, 2008, Sprint Nextel 

filed a letter asking for a declaratory 

ruling affirming that TerreStar and ICO 

must reimburse Sprint Nextel for a pro 

rata share of the eligible BAS relocation 

costs. Sprint Nextel argues that the 

reimbursement obligation did not end or 

‘‘sunset’’ on June 26, 2008, as TerreStar 

and ICO claim, but extends at least 

through the end of the BAS and 800 

MHz relocation projects. Sprint Nextel 

claims that the cost sharing obligation 

was connected to the end of the 800 

MHz reconfiguration to avoid a windfall 

to Sprint Nextel and facilitate the 

accounting in the true-up, which has 

been extended, and the relevance of the 

June 26, 2008 date has been superseded 

by the extended BAS and 800 MHz 

deadlines. Sprint Nextel points out that 

TerreStar and ICO have been on NPRM 

of their obligations for years and cannot 

have reasonably expected that they 

would be able to circumvent the 

Commission’s long-standing cost 

sharing principles. Even if one assumed 

that the reimbursement obligation 

sunset on June 26, 2008, Sprint Nextel 

claims that both ICO and TerreStar have 

entered the band by that date: ICO by 

transmissions from its satellite and 

TerreStar through its licensing 

activities, system build out, testing, 

satellite construction, and ATC 

operations. Sprint Nextel also requests 

that if it does not owe any payment to 

the U.S. treasury for the spectrum it is 

receiving, the Commission should 

establish 2015 as the BAS relocation 

reimbursement sunset date. 

13. The requirements that the 

Commission adopted for cost sharing 

among Sprint Nextel, MSS and AWS–2 

entrants were based on a number of 

assumptions regarding the transition of 

the 2 GHz and 800 MHz bands, MSS 

and AWS–2 entry, and the true-up. As 

reflected in the current requirements, 

the BAS relocation was contemplated to 

be complete within thirty months, and 

thus the Commission expected the BAS 

relocation to be finished by September 

7, 2007, well before the end of the 800 

MHz 36-month reconfiguration period, 

which was ultimately slated to end on 

June 26, 2008. Because ICO’s satellite 

operational milestone was July 2007 and 

TerreStar’s was November 2008 when 

the requirements were adopted, the 

Commission also expected that one and 

possibly both MSS operators would 

participate in the BAS relocation 

process, especially in clearing the top 30 

markets, so that they would be able to 

commence service quickly once their 

satellites were successfully launched, 

possibly before the end of the 800 MHz 

reconfiguration period. Indeed, the 

Commission’s requirements provided an 

opportunity for the MSS entrants to 

relocate BAS incumbents even while 

ordering Sprint Nextel to undertake the 

same task, and required that Sprint 

29640 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 

Nextel reimburse the MSS entrants for 

any relocation expenses they incurred. 

For its band clearing efforts, Sprint 

Nextel would have been able to seek 

reimbursement for a portion of the 

relocation costs from the MSS and 

AWS–2 entrants who entered the band 

prior to the end of the 800 MHz thirtysix month reconfiguration period on 

June 26, 2008. The Commission also 

expected that the total cost of the BAS 

relocation, 1910–1915 MHz band 

clearing, and 800 MHz transition would 

be such that Sprint Nextel would have 

to make an anti-windfall payment to the 

United States Treasury even after 

receiving credit for all of its band 

clearing and transition costs. 

Consequently, even if the MSS entrants 

and AWS–2 licensees did not have to 

reimburse Sprint Nextel for BAS 

clearing costs because of delayed entry 

into the band, the Commission would 

have anticipated that Sprint Nextel 

would suffer no adverse financial 

consequence because the amount of the 

anti-windfall payment that Sprint 

Nextel would have to make would be 

reduced by the amount of any BAS 

relocation cost not reimbursed by the 

MSS entrants. 

14. The circumstances now 

surrounding the 2 GHz band BAS 

transition are very different than what 

the Commission expected when the cost 

sharing requirements were adopted and 

explained in the 800 MHz R&O. Neither 

the 800 MHz transition nor the BAS 

relocation has yet been completed. 

While the 800 MHz thirty-six month 

reconfiguration date of June 26, 2008 

has never officially been extended, 

Sprint Nextel and numerous 800 MHz 

licensees have received waivers of that 

date. Moreover, the 800 MHz true-up 

date, which was set to occur within six 

months after the 800 MHz 

reconfiguration date, has been extended 

to July 1, 2009 and may be delayed 

further. The expected relocation costs 

for the 800 MHz transition is so large 

that Sprint Nextel does not now expect 

to make an anti-windfall payment. 

15. In this context, the underlying 

assumptions of the approach taken by 

the Commission in the 800 MHz R&O 

did not occur, such that a narrow, literal 

interpretation of certain language in the 

Commission’s decision would not 

correspond to the stated purposes and 

structure of the cost sharing principles 

set forth in the 800 MHz R&O and other 

decisions regarding the shared 

responsibilities of new entrants for BAS 

relocation. Certain specific language 

cannot be reasonably applied to the 

current circumstances. 

16. On the one hand, a narrow literal 

interpretation of certain language in the 

800 MHz R&O could be argued as 

suggesting that Sprint Nextel may only 

be entitled to seek pro rata 

reimbursement to the extent that the 

MSS and AWS–2 licensees entered the 

2 GHz band before the thencontemplated 36-month 800 MHz 

rebanding period ended, a date later 

established to be June 26, 2008. 

Moreover, because the Commission has 

never defined what ‘‘entered the band’’ 

means, applying this interpretation is 

problematic. 

17. On the other hand, such an 

interpretation of the deadline would 

arguably undermine the stated purposes 

of the BAS cost-sharing regime set up by 

the Commission in the 800 MHz R&O, 

where it discussed its decision as 

generally consistent with the costsharing principle that the licensees that 

ultimately benefit from the spectrum 

cleared by the first entrant shall bear the 

cost of reimbursing the first entrant for 

that benefit, though modified to fit the 

particular concerns raised in the 800 

Rebanding proceeding. Specifically, as 

stated in the 2005 800 MHz MO&O, the 

Commission modified the traditional 

Emerging Technologies cost-sharing 

policy that new entrants who ultimately 

benefit from having the spectrum 

cleared should pay their share of bandclearing costs only to the extent 

necessary to provide ‘‘administrative 

efficiency in the accounting process’’ 

and to take into account ‘‘the unique 

circumstances in Nextel’s receipt of the 

BAS spectrum.’’ In other words, the 

Commission limited the time that Sprint 

Nextel could receive reimbursements 

from MSS entrants so that Sprint Nextel 

could not get a double benefit, i.e., 

receive reimbursements from MSS after 

it had received credit for these expenses 

in the true up. The Commission clearly 

allowed for the possibility that the MSS 

entrants would incur a cost-sharing 

obligation, and Sprint Nextel was 

explicitly allowed to pursue cost 

sharing from the MSS entrants by giving 

them NPRM within one year of adoption 

of the 800 MHz R&O. 

18. Nothing in the text of the relevant 

orders suggests that the Commission 

limited the time in which Sprint Nextel 

could seek reimbursements from MSS 

entrants to provide an independent 

benefit to MSS entrants, e.g., to 

subsidize them or provide them 

certainty about their business costs. 

Thus, the Commission finds that the 

MSS entrants’ cost sharing obligations 

must be interpreted in light of the 

unanticipated changed circumstances, 

and these obligations should not be tied 

to a deadline that is no longer relevant. 

In short, MSS entrants should pay a pro 

rata share of the BAS relocation costs 

unless doing so would allow Sprint 

Nextel to be reimbursed twice (by both 

the Treasury and the MSS and AWS–2 

licensees). Accordingly, the most logical 

and appropriate interpretation of the 

language in the 800 MHz orders is that 

the MSS entrants must pay their pro 

rata share of BAS relocation costs to the 

extent that they enter the band before 

the 800 MHz rebanding or true up is 

complete. The difficulty with applying 

this interpretation is that there is no 

future date certain for completing either 

the 800 MHz rebanding or the true up. 

19. The Commission thus declines to 

resolve the conflict between Sprint 

Nextel and the MSS entrants by issuing 

a declaratory ruling. It concludes that, 

given the changed circumstances 

surrounding the 2 GHz BAS relocation 

and the ambiguity between certain 

language in the 800 MHz R&O and the 

overall purposes and structure of the 

BAS cost-sharing regime caused by the 

changed circumstances, the best course 

of action is to propose clearly delineated 

cost sharing requirements reflecting 

these changed circumstances to balance 

the responsibilities for and benefits of 

relocating incumbent BAS operations 

among Sprint Nextel, MSS, and AWS– 

2 based on the Commission’s relocation 

policies set forth in the Emerging 

Technologies proceeding. 

20. This Further NPRM provides an 

opportunity for us to address issues that 

are ambiguous or not specifically 

addressed by the current requirements. 

In particular, we reach the following 

tentative conclusions: 

• Sprint Nextel may either obtain cost 

sharing for an eligible expense from 

MSS or AWS–2 entrants when those 

licensees ‘‘enter the band’’ or take credit 

for that expense against the antiwindfall payment to the Treasury (trueup) for the 5 megahertz of BAS 

spectrum (1990–1995 MHz) it obtained 

as part of the 800 MHz band 

realignment. 

• The attachment of the cost sharing 

obligation between Sprint Nextel and 

MSS and AWS–2 would follow 

traditional Emerging Technologies 

policies, i.e., the obligation to share 

costs among new entrants would 

continue to the BAS sunset date 

(December 9, 2013); any entity that 

‘‘enters the band’’ prior to that date 

would be obligated to reimburse the 

earlier entrant that incurred the 

relocation expense a proportional share 

of cost based on the amount of spectrum 

assigned to it. 

• As in the current requirements, the 

MSS cost sharing obligation to Sprint 

Nextel would be limited to the top 30 

markets by population and all fixed 

BAS links. 

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 29641 

• An MSS entrant would be deemed 

to have ‘‘entered the band’’ for incurring 

a cost sharing obligation when its 

satellite is found operational under its 

authorization milestone. 

• For cost sharing purposes, Sprint 

Nextel would be required to share with 

other new entrants information on the 

relocation costs it has incurred as 

documented in its annual external audit 

of 2 GHz band clearing expenses and as 

provided to the 800 MHz Transition 

Administrator, as required by the 800 

MHz R&O. 

21. The overall approach proposed 

seeks to balance the BAS relocation 

costs among all new entrants based on 

the benefit each receives of the total of 

35 megahertz of cleared spectrum, 

consistent with our Emerging 

Technologies policies. Following BAS 

relocation, MSS will have access to 20 

megahertz in the 2000–2020 MHz band 

(4⁄7), AWS–2 will have 10 megahertz in 

the 1995–2000 and 2020–2025 MHz 

bands (2⁄7), and Sprint Nextel will have 

5 megahertz in the 1990–1995 MHz 

band (1⁄7). These basic proportions 

inform our proposals. As the 

Commission decided in the 800 MHz 

R&O, this approach will follow the 

traditional relocation principle that the 

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. 

22. As is the case with our current 

requirements, the Commission 

tentatively concludes that Sprint Nextel 

may not both receive reimbursement 

from another new entrant and take 

credit for the same BAS relocation cost 

at the 800 MHz true-up. If another new 

entrant enters the band before the trueup and Sprint Nextel obtains 

reimbursement for relocation costs from 

the new entrant, Sprint Nextel may not 

obtain credit against the anti-windfall 

payment for the reimbursed costs. 

Further, the Commission tentatively 

concludes that any new entrant to the 

band who incurs relocation cost will be 

able to obtain pro rata reimbursement 

from other new entrants who enter the 

band prior to the BAS band sunset date 

of December 9, 2013. In other words, the 

cost-sharing obligation will no longer be 

linked to the 800 MHz thirty-six month 

reconfiguration period or the 800 MHz 

true-up date. Extending the relocation 

obligation to the BAS sunset date 

provides certainty to all new entrants, 

rather than linking the obligation to the 

800 MHz thirty-six month 

reconfiguration period or the 800 MHz 

true-up date, since the timing of both of 

these events is less certain. Thus, the 

Commission tentatively concludes that 

the attachment of the cost sharing 

obligation between Sprint Nextel and 

MSS and AWS–2 should follow the 

traditional Emerging Technologies 

policies in obligating new entrants to 

share the costs of relocating the BAS 

incumbents. A later entrant’s costsharing obligation to the earlier entrant 

who cleared the spectrum shall be in 

proportion to the spectrum assigned to 

the later entrant. For example, if a future 

AWS licensee is assigned 5 megahertz of 

spectrum in the band on a nationwide 

basis, the licensee will be responsible 

for 1⁄7 of the total spectrum clearing 

costs if it enters the band before the 

sunset date. 

23. In the 800 MHz R&O, the MSS 

entrants’ cost sharing obligation to 

Sprint Nextel was limited to the cost of 

clearing the thirty largest markets (by 

population) and all fixed BAS links. 

This was done because the MSS 

entrants were required to clear the thirty 

largest markets and all fixed BAS links 

before they could begin operations, but 

were not required to relocate BAS in the 

other markets until later. Because this 

exception to the general cost-sharing 

principle was clearly established in the 

800 MHz R&O in 2004, we propose to 

continue to limit the MSS entrants’ costsharing obligation in this way even 

though we are now eliminating the top 

30 market rule. 

24. Consequently, the Commission 

tentatively concludes that Sprint 

Nextel’s right to seek reimbursement 

from any MSS entrant entering before 

the sunset date will be limited to the 

costs Sprint Nextel incurred for clearing 

the top thirty markets and for relocating 

all fixed BAS facilities, regardless of 

market size, and to an MSS entrant’s pro 

rata share of the 1990–2025 MHz 

spectrum. Sprint Nextel claims that 

under this approach MSS would only be 

responsible for approximately 27 

percent of the total BAS relocation 

expenses, which is substantially less 

than the 57 percent of the cleared BAS 

spectrum assigned to the two MSS 

entrants. The Commission also seeks 

comment on whether it should require 

MSS entrants to pay a pro rata share of 

all BAS relocation costs, regardless of 

market size. 

25. In addition, regarding MSS-toMSS cost sharing, under the original 

requirements for MSS entrants to 

relocate the BAS incumbents, all MSS 

entrants share in the relocation costs on 

a pro rata basis depending on the 

amount of spectrum each is assigned. 

Later entering MSS operators are 

required to reimburse the earlier MSS 

entrants who clear the spectrum a pro 

rata share of the earlier MSS entrants’ 

band clearing costs. After the BAS 

transition is completed, all of the MSS 

entrants are to ‘‘true-up’’ their costs to 

ensure that each MSS entrant pays a pro 

rata share of the relocation costs based 

on the amount of spectrum assigned. 

The Commission proposes to retain 

these MSS-to-MSS cost sharing 

requirements. The Commission notes 

that these inter-service and intra-service 

cost sharing requirements can work in 

tandem. For example, if Sprint Nextel 

was reimbursed from only one MSS 

entrant, that entrant could in turn seek 

reimbursement of what it owed Sprint 

Nextel from another MSS entrant. It 

appears that Sprint Nextel has asked 

both ICO and TerreStar to pay equal 

amounts of relocation costs based on 

their equal amount of assigned spectrum 

(i.e., ten megahertz each), consistent 

with current requirements. The 

Commisssion seeks comment on 

whether Sprint Nextel should be 

allowed to request relocation costs for 

BAS operations in all of the 20 

megahertz of spectrum allocated for 

MSS from a single MSS entrant that 

may, in turn, seek reimbursement from 

another MSS entrant. 

26. The Commission also tentatively 

concludes that AWS–2 licensees will be 

responsible for reimbursing earlier 

entrants for relocating BAS operations 

in their assigned geographic areas, but 

determining how to apportion a 

licensee’s pro rata share will depend on 

future Commission action to adopt 

service rules for the AWS licensees in 

the 1995–2000 MHz and 2020–2025 

MHz band. These licenses may be 

issued either on a nationwide basis or 

for geographic areas, and could include 

all or only a portion of the allocated 

bandwidth. If licenses are issued for 

geographic areas, the geographic areas 

are not likely to coincide with the BAS 

market boundaries and licenses for 

geographic areas may be issued at 

different times. Another factor that our 

service rules will have to address is 

apportioning the reimbursement costs 

fairly among AWS licensees. For 

example, some licensees’ service areas 

cover cleared spectrum for which Sprint 

Nextel may claim a credit at the true-up, 

thus preventing Sprint from seeking cost 

sharing from those AWS licensees. 

Other AWS licensees’ service areas may 

cover cleared spectrum not claimed by 

Sprint for a true up credit and thus 

subject to cost sharing. These factors 

will complicate the calculation of cost 

sharing for the AWS entrants to the 

band. In the 2004 AWS–2 NPRM on 

service rules for the AWS entrants to the 

band, the Commission sought comment 

on a number of issues regarding the 

licensing scheme for the AWS entrants 

29642 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 

and the cost-sharing obligations 

between the AWS entrants and other 

new entrants to the band. Because the 

licensing scheme for the AWS entrants 

to the band has not yet been 

determined, we are not making 

proposals here for apportioning an AWS 

licensee’s pro rata share for cost-sharing 

with other new service entrants or 

between AWS–2 entrants beyond those 

made in the 2004 AWS–2 NPRM. The 

Commission intends to adopt specific 

cost-sharing procedures for the AWS 

entrants when service rules are adopted 

for the 1995–2000 MHz and 2020–2025 

MHz bands. 

27. The cost sharing scheme that the 

Commission adopted in 2004 required 

that MSS and AWS entrants reimburse 

Sprint Nextel for the BAS relocation 

costs after they ‘‘enter the band,’’ but 

did not define the term. For clearing 

other bands under our Emerging 

Technologies policies, the Commission’s 

rules usually make a distinction 

between determining when a new 

entrant must relocate an incumbent 

operation before it can operate and 

when a new entrant incurs a cost 

sharing obligation to an earlier entrant 

who relocated an incumbent. Generally, 

Commission rules rely on an 

interference analysis to determine when 

a new entrant must relocate an 

incumbent. On the other hand, a later 

entrant is generally required to share in 

the cost that an earlier entrant has 

incurred in relocating an incumbent if 

the subsequent entrant would have been 

in a position to have caused interference 

to the incumbent. Because the 

incumbent has already been relocated, 

the cost sharing determination is not 

usually based on a rigorous interference 

analysis but often on a simplified 

proximity test for ease in 

administration. The rules may vary from 

these general principles depending on 

the technical characteristics of the 

specific services involved in the 

relocation. 

28. Because the Commission has 

already determined that MSS and AWS– 

2 entry in the 2 GHz band requires that 

all BAS operations in the band be 

relocated to avoid interference between 

the new and incumbent services, we 

only need to determine here when a 

new entrant ‘‘enters the band’’ for 

purposes of the attachment of the cost 

sharing obligation. In this regard, we are 

mindful that in other bands a new 

entrant incurs a cost sharing obligation 

at the time the subsequent entrant 

would be in a position to have caused 

interference to the now relocated 

incumbent. 

29. With this principle in mind, the 

Commission tentatively concludes to 

adopt the following requirements for 

determining when the MSS entrants 

have ‘‘entered the band.’’ The 

Commission proposes that an MSS 

entrant will have entered the band and 

incurred a cost sharing obligation when 

it certifies that its satellite is operational 

for purposes of meeting its operational 

milestone. For the 2000–2020 MHz 

band, a satellite is considered 

operational based upon the occurrence 

of transmissions between the satellite 

and an authorized earth station using 

the 2000–2020 MHz and 2180–2200 

MHz bands. The satellite systems which 

the MSS entrants are deploying are 

capable of providing nationwide 

coverage. The customer equipment 

transmitting to the satellites in this band 

are therefore capable of causing 

interference to any of the BAS 

incumbents in the local area in which 

that equipment is used. The MSS 

entrants having an operational satellite 

is therefore analogous to the Personal 

Communications Service (PCS) or AWS 

entrants building a base station in 

proximity to the incumbent fixed 

microwave links in the prior spectrum 

clearings. Like the PCS and AWS 

entrants, an MSS entrant with an 

operational satellite is in a position to 

cause interference to the incumbents 

and therefore should incur a cost 

sharing obligation to an earlier entrant 

who has relocated the incumbents. 

Simplicity of administration is 

especially important in the case of BAS 

because there is no clearinghouse to 

determine when a party has ‘‘entered 

the band’’ or to parse out the relocation 

costs on a BAS receiver site-by-site 

basis. 

30. The AWS entrants will operate 

terrestrial networks and thus the 

definition of ‘‘enter the band’’ which the 

Commission proposes for the MSS 

entrants would not be appropriate for 

AWS. Although no service rules have 

been adopted for the AWS portions of 

the 1990–2025 MHz band, the 

Commission expects that the AWS 

entrants will deploy terrestrial networks 

wherein fixed base stations 

communicate with mobile radios. 

Because both the AWS entrants and 

BAS incumbents will employ mobile 

radios, the interference scenarios will be 

more complicated than with the fixed 

point-to-point microwave incumbents 

being relocated in the PCS, AWS, and 

MSS downlink bands addressed by 

other relocation rules. Furthermore, 

there is no clearinghouse for the BAS 

relocation that will be able to determine 

when interference between the AWS 

entrants and previously relocated BAS 

incumbents would likely occur. These 

two facts—the complicated interference 

scenarios and lack of clearinghouse— 

require that the test for determining 

when AWS entrants incur a cost sharing 

obligation be simple and easy to apply. 

31. As one option, the Commission 

proposes to specify that AWS entrants 

in the 1990–2025 MHz band be found to 

have ‘‘entered the band’’ and incur a 

cost sharing obligation upon grant of the 

long form applications for their licenses. 

This would provide a clear and easy-toadminister standard and provide 

certainty for all parties involved. While 

this proposed requirement does depart 

somewhat from other relocation rules, it 

is not entirely inconsistent. Because of 

the mobile nature of BAS, once the 

AWS entrant is licensed any 

deployment of its services could 

potentially have resulted in interference 

to mobile BAS incumbents. 

32. The Commission also seeks 

comment on an alternate approach for 

when AWS entrants should be found to 

‘‘enter the band.’’ An AWS entrant in 

the 1990–2025 MHz band could be 

found to ‘‘enter the band’’ and incur a 

cost sharing obligation when it activates 

a base station in an AWS–2 license area 

that overlaps a cleared DMA. The 

Commission notes that this alternate 

approach presents a number of issues 

that could make it difficult to 

implement. Because there is no 

clearinghouse for the 1990–2025 MHz 

band, there currently is no entity that is 

responsible for tracking when the AWS– 

2 licensee activates a base station and 

for determining which DMA’s are 

overlapped by the base station. Each 

DMA will potentially have a separate 

‘‘enter the band’’ date, and it is likely 

that, whatever service rules we 

ultimately adopt for this band, any 

given AWS–2 licensee would trigger 

numerous ‘‘enter the band’’ dates. 

Consequently, the Commission seeks 

comment on whether, under this 

approach, an AWS–2 licensee that 

activates a first base station should 

incur a cost sharing obligation only for 

relocating BAS in that DMA or should 

it incur its entire cost sharing obligation 

for all DMAs that overlap its service 

area. Also, under this approach AWS– 

2 licensees could potentially delay the 

initiation of service, and thus seek to 

avoid incurring a cost sharing 

obligation, until after the BAS sunset 

date of December 9, 2013, making it 

more difficult for Sprint Nextel to 

decide whether to take credit for BAS 

relocation cost in the 800 MHz true-up 

because of the uncertainty as to whether 

AWS–2 licensees will share in the cost 

of the BAS relocation. The Commission 

seeks comment on how, if we adopt this 

alternative approach, we could prevent 

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 29643 

AWS–2 licensees from avoiding their 

cost sharing obligation through delay. If 

AWS–2 licensee’s are able to avoid 

incurring a cost sharing obligation 

through delay, the Commission also 

seeks comment on how to make it easier 

for Sprint Nextel to determine whether 

to take credit for BAS relocation cost in 

the 800 MHz true-up despite the 

uncertainty as to whether the AWS–2 

will share in the BAS relocation cost. 

33. When the Commission adopted 

the requirements allowing Sprint Nextel 

to pursue reimbursement of BAS 

relocation costs from MSS and AWS 

entrants, it did not specify when the 

MSS and AWS entrants would owe 

reimbursement to Sprint Nextel. 

Generally, in other band clearings the 

later new entrant has to pay its 

reimbursement costs when beginning 

operations or shortly thereafter. For 

example, in the relocation of fixed 

microwave links by AWS entrants in the 

2110–2150 MHz band and by MSS 

entrants in the 2180–2200 MHz band 

(this is the paired downlink band for the 

MSS at issue in this proceeding), the 

AWS and MSS entrant must notify a 

clearinghouse prior to initiating 

operations. The clearinghouse 

determines if the AWS or MSS entrant 

must reimburse a prior new entrant for 

moving an incumbent licensee, and the 

AWS or MSS entrant has 30 days to pay 

the reimbursement costs. Similar rules 

are followed for the relocation of BRS 

incumbents in the 2150–2162 MHz band 

by AWS entrants. 

34. As the Commission discussed in 

the Further NPRM, there are unique 

circumstances in this case that require 

additional consideration. The 

Commission has already determined to 

permit MSS entrants to begin operations 

in the near term, even if this were to 

occur before they have actually satisfied 

the cost sharing reimbursement 

obligations that would attach under our 

proposals here. Here, we seek comment 

on various approaches that the 

Commission might take concerning 

when such reimbursements are owed. 

35. If the Commission were to apply 

a similar scheme as that followed by our 

relocation rules in other bands with the 

BAS transition in the 2 GHz band, once 

the later entrant has entered the band, 

it may not begin operations until it has 

reimbursed the earlier entrant that 

relocated BAS incumbents for the later 

entrant’s pro rata share of the relocation 

costs for all BAS markets that have been 

transitioned as of the date that the later 

entrant entered the band (or, in the case 

of MSS, the later of these two dates: the 

date MSS is determined to have entered 

the band or the earliest date MSS is 

permitted to begin operations under our 

rules). Thereafter, as the BAS relocation 

continues and each additional BAS 

market is transitioned to the new 

channel plan, the new entrant would 

have to pay its share of the cost of 

transitioning that market within thirty 

days of being notified of the market 

transitioning or cease operations in that 

band. Under this approach, it may be 

more reasonable to expect an MSS 

entrant to pay reimbursement costs only 

when a BAS market is cleared and it can 

operate on a primary basis, rather than 

to pay these costs on a per station basis 

in nonrelocated BAS markets where it 

may operate only on a secondary basis. 

The entrant who is relocating the BAS 

incumbents could have the 

responsibility of notifying the other new 

entrants and the Commission of the 

transition of each BAS market. The 

Commission seeks comment generally 

on this approach, or variations to it. 

36. The Commission also seeks 

comment, given the unique 

circumstances in this case, on 

alternative approaches for when MSS 

entrants should be required to 

reimburse Sprint Nextel for their pro 

rata share of the BAS relocation costs. 

Because the MSS entrants have not yet 

begun to provide commercial services, 

they do not have an established revenue 

stream. Consequently, it may be difficult 

for the MSS entrants to reimburse Sprint 

Nextel immediately for their pro rata 

share of costs for all of the markets that 

have transitioned when the MSS entrant 

enters the band or begins service, as 

proposed. Rather than require that, 

when an MSS entrant is ready to begin 

operations, it pay its reimbursement 

share for all markets cleared when it 

either entered the band or was 

permitted to begin operations under the 

rules, should MSS entrants only 

initially have to pay reimbursement 

costs for those markets in which they 

choose to operate? If so, what schedule 

should they follow for reimbursing costs 

associated with the remaining markets— 

when they start providing service in 

those markets, or under a different 

timetable? The Commission also seeks 

comment on establishing a 

reimbursement scheme that is not 

specifically tied to MSS entry in each 

market. For example, should MSS 

entrants be allowed to delay payment of 

some portion of their pro rata share of 

reimbursement costs until the BAS 

relocation is complete, or some other 

date? Would this provide some needed 

certainty to MSS entrants that they 

could begin operating? Should the MSS 

entrants’ payments be linked to the pace 

of the BAS transition—e.g., as 

additional BAS markets are 

transitioned, should MSS entrants be 

required to make additional payments? 

The Commission also seeks comment on 

how any of these approaches would 

affect the true-up, particularly if Sprint 

Nextel is owed monies that MSS 

entrants have not yet paid when the 

true-up occurs. More generally, the 

Commission also seeks comment on 

whether any of these approaches would 

undermine our goal of ensuring that 

later entrants reimburse, on a pro rata 

basis, the first entrant that paid for 

relocation, and on what actions we 

should take if MSS entrants fail to pay. 

37. Finally, the Commission 

tentatively concludes that, for cost 

sharing purposes, Sprint Nextel would 

be required to share with other new 

entrants information on the relocation 

costs it has incurred as documented in 

its annual external audit of 2 GHz band 

clearing expenses and as provided to the 

800 MHz Transition Administrator, as 

required by the 800 MHz R&O. As part 

of the financial reconciliation process in 

the 800 MHz true-up, Sprint Nextel is 

required to conduct an annual external 

audit of its 2 GHz band clearing 

expenses and to provide this audit to 

the Transition Administrator for the 800 

MHz rebanding and true-up. Sprint 

Nextel also is to report to the Transition 

Administrator the amount of 

reimbursement it receives from other 

entrants to the band. With this 

information, the Transition 

Administrator will be able to ensure that 

Sprint Nextel receives the proper 

amount of credit against the antiwindfall payment for BAS relocation. 

However, the annual external audit 

provides data on total expenses, rather 

than by market, and the Transition 

Administrator is under no obligation to 

analyze, audit or verify the data that 

Sprint Nextel supplies on the cost of 

clearing the 2 GHz spectrum. 

Furthermore, if an MSS or AWS 

licensee enters the band after the trueup occurs, the Transition Administrator 

will not be present to calculate the 

amount that Sprint Nextel claims the 

new entrant owes. To facilitate the cost 

sharing process, the Commission 

proposes to require that Sprint Nextel 

share with any other new entrant who 

owes it relocation reimbursement 

information about its relocation costs as 

documented in its annual external audit 

and as provided to the Transition 

Administrator. Similarly, if a new 

entrant other than Sprint Nextel 

relocates a BAS incumbent and seeks 

cost sharing from later entrants, the first 

entrant would be required to provide 

the later entrants with documented 

29644 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 

relocation costs. The Commission seeks 

comment. 

38. The Commission seeks comment 

on all of the proposed changes to the 

cost-sharing requirements for the 1990– 

2025 MHz BAS relocation. It seeks 

comment on this proposal as well as 

alternative proposals. 

B. BAS–MSS Spectrum Sharing 

39. In the accompanying Report and 

Order and Order, the Commission 

eliminated the top 30 market rule which 

prevented the MSS entrants from 

beginning operations before the BAS 

incumbents in the thirty largest markets 

by population and fixed BAS links in all 

markets had been relocated. The MSS 

entrants are now able to operate with 

primary status in those markets where 

the BAS incumbents have been 

relocated to the new channel plan and 

with secondary status in nonrelocated 

markets subject to coordination. 

40. The Commission concluded that 

coordination was necessary in 

nonrelocated markets because we were 

not persuaded by the record that MSS 

could conduct unrestricted operations 

in these markets without causing 

interference to the BAS incumbents. 

TerreStar asserts that, based on its 

probabilistic analysis, interference from 

MSS handsets to BAS operations is 

unlikely to occur, and thus suggests that 

coordination may not be necessary. 

Rather, it would cease operations if a 

BAS incumbent experiences 

interference. MSTV disputes these 

claims. The Commission is concerned 

that if interference occurs to BAS 

licensees in nonrelocated markets, that 

interference will harm BAS operations 

and could prove difficult to resolve 

because the location of the handset 

which is the source of the interference 

may not be easily determined. Such 

interference could have a significant 

impact given the number of major 

markets that will transition toward the 

end of Sprint Nextel’s relocation 

schedule. Nonetheless, the Commission 

invites additional analysis on whether 

MSS can operate on an unrestricted and 

secondary basis in nonrelocated BAS 

markets. Commenters should include 

evidence on the likelihood of harmful 

interference occurring to the 

nonrelocated BAS incumbents from 

MSS operations. 

41. In the Report and Order and Order 

the Commission also recognizes that 

interference could occur to BAS 

incumbents in a nonrelocated market 

from MSS operations in an adjacent 

market where BAS has been relocated. 

Consequently, it requires that MSS may 

not operate mobile terminals within 

line-of-sight of BAS receive sites in 

markets where the BAS transition has 

not been completed, absent 

coordination. The Commission seeks 

comment on whether this requirement 

continues to be necessary. 

C. MSS Relocation Obligations 

42. Our current rules provide that the 

MSS entrants may not begin operations 

until BAS in the top 30 markets and all 

fixed BAS links have been relocated. 

Once an MSS entrant begins operations, 

all of the MSS entrants jointly have the 

responsibility to relocate the BAS 

incumbents in markets 31–100 within 

three years and the remaining markets 

(i.e., 101 and above) within five years. 

The rule establishes a relocation 

obligation on MSS that is independent 

of other new entrants’ relocation activity 

in the band, and provides a market tier 

approach for completing the BAS 

relocation that is pegged to beginning 

operations when the top 30 markets and 

fixed links are relocated. 

43. The accompanying Report and 

Order and Order removes the 

requirement that BAS in the top 30 

markets and all fixed BAS links must be 

relocated before MSS can begin 

operations, but maintains the obligation 

for the MSS entrants to relocate the BAS 

incumbents once an MSS entrant begins 

operations. Thus, this rule needs further 

modification to specify when an MSS 

entrant ‘‘begins operations’’ for 

purposes of completing BAS relocation 

and to account for the relocation of 

markets 1–30 along with markets 31– 

100. 

44. The Commission proposes to 

trigger the obligation of an individual 

MSS operator to relocate BAS 

incumbents within three or five years, 

depending on market size—i.e., markets 

1–100 within three years, and the 

remaining markets within five years— 

on the later of these two dates: When 

the MSS operator certifies, prior to the 

BAS sunset date of December 9, 2013, 

that its satellite system is operational for 

purposes of meeting its operational 

milestone; or the date when the top 30 

market rule is eliminated. The 

Commission believes that this is 

appropriate because once the satellite 

system is certified operational and the 

top 30 market rule has been eliminated, 

an MSS entrant will be in the position 

to make use of the spectrum. 

Furthermore, the criteria will be easy to 

apply because the MSS entrant must 

notify the Commission when it 

accomplishes its operational milestone 

and the elimination of the top 30 market 

rule will be effective thirty days after 

publication of the Report and Order and 

Order in the Federal Register. The 

Commission notes that the obligation to 

relocate the BAS incumbents within 

three and five years, depending on 

market size, is a joint obligation of all 

the MSS entrants and not just the 

entrant who has begun operations. 

Consequently, both MSS entrants will 

have an obligation to relocate the BAS 

incumbents in markets 1–100 within 

three years and the remaining markets 

within five years. 

45. The Commission also proposes to 

specify that once the MSS entrants have 

incurred an obligation to relocate the 

BAS incumbents within the three and 

five year periods, the occurrence of the 

December 9, 2013 sunset date will not 

serve to terminate that obligation. The 

Commission views this approach as 

appropriate to ensure that all eligible 

BAS incumbents who are entitled to 

relocation are fairly compensated. 

46. Finally, the Commission notes 

that our rules currently are silent on 

what consequences the MSS entrants 

face for not meeting the three and five 

year relocation deadlines. The 

Commission seeks comment on what 

consequences, if any, should be applied 

for failure to meet these deadlines. 

D. BAS Relocation Process 

47. The bimonthly status reports 

which Sprint Nextel has filed on the 

progress of the BAS transition show that 

BAS relocation activity slows between 

the time when replacement equipment 

is ordered for installation by individual 

licensees, and when all licensees in a 

market retune to the new channel plan. 

The reports have cited a number of 

different reasons for the delays in 

completing relocation, such as weather 

conditions, the availability and 

scheduling of installers, and so on. 

However, some market delays are due to 

a single BAS licensee in a market that 

has lagged in cooperating with the BAS 

transition and a handful of BAS 

licensees that have failed to execute 

frequency relocation agreements. 

48. The Commission is concerned that 

some BAS licensees may not be making 

a good faith effort to complete the BAS 

transition in a timely manner. Because 

of the integrated nature of BAS, all BAS 

licensees in a market must transition as 

a group. Consequently, the failure of one 

BAS licensee to cooperate in the 

transition can delay many other BAS 

incumbents from completing the 

transition. Given that the BAS transition 

has taken far longer than anyone has 

expected, the Commission seeks 

comment on incentives it might apply to 

encourage all BAS incumbents to 

diligently work toward completing the 

BAS transition so as not to delay further 

the introduction of new services in the 

band. 

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 29645 

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. 

847 (1996). 

2See 5 U.S.C. 603(a). 

49. Under our current rules, the BAS 

incumbents are primary until they are 

relocated, they refuse relocation, or the 

BAS relocation rules sunset on 

December 9, 2013. Because individual 

BAS licensees may delay the transition, 

the Commission seeks comment on the 

following proposal. If a BAS licensee 

has not completed relocation by 

February 9, 2010, the Commission could 

change its status for interference 

purposes, but continue to require that 

new entrants who incur a relocation and 

cost sharing obligation fulfill this 

obligation. Thus, Sprint Nextel, MSS 

and AWS–2 entrants would continue to 

have an obligation to relocate those BAS 

incumbents whose initial applications 

were filed prior to June 27, 2000 and 

who have primary status in the band. 

50. The interference status between a 

nonrelocated BAS licensee and a new 

entrant, whether Sprint Nextel, MSS, or 

AWS–2, could be modified in one of 

several different ways. First, 

nonrelocated BAS incumbents could 

become secondary in the 1990–2025 

MHz band and Sprint Nextel, MSS and 

AWS entrants primary as of February 9, 

2010. This would allow Sprint Nextel, 

MSS and AWS–2 entrants to provide 

unimpeded commercial service. The 

nonrelocated BAS incumbent would be 

able to continue operations in the band 

if the new entrants are not ready to 

begin using the band or if the BAS 

incumbent can operate without causing 

harmful interference to the new 

entrants. Second, the Commission could 

require the nonrelocated BAS 

incumbent to cease operations in the 

1990–2025 MHz band as of February 9, 

2010. This proposal has similarities to 

the BAS relocation rules prior to 2004. 

Third, the Commission could make the 

nonrelocated BAS licensee and the new 

entrants co-primary in the 1990–2025 

MHz band as of February 9, 2010. 

Because a later arriving co-primary 

licensee must protect the operations of 

an existing co-primary licensee, the new 

entrants, whether Sprint Nextel, MSS, 

or AWS–2, would have to avoid causing 

interference to the existing BAS systems 

and accept interference from the BAS 

licensee. The Commission seeks 

comment on these approaches, or 

possible alternative approaches. 

51. If the Commission adopts either 

the first or second of the procedures 

described, it seeks comment on whether 

we should look favorably upon waiver 

request from individual nonrelocated 

BAS licensees to allow them to maintain 

their primary status and continue 

operations if enforcing the rule would 

cause hardship or otherwise not serve 

the public interest. The BAS licensee 

could, for example show that the BAS 

spectrum in its market is so heavily 

used that there is no other available 

channel or that circumstances beyond 

the incumbent’s control have prevented 

the incumbent from completing the 

transition by the deadline. 

Initial Regulatory Flexibility Analysis 

1. 52. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA),1 the Commission has prepared 

this present Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

a substantial number of small entities by 

the policies and rules proposed in this 

Further Notice of Proposed Rule Making 

(Further NPRM). 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 provided 

in the Further NPRM. The Commission 

will send a copy of this Further NPRM, 

including this IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration (SBA).2

A. Need for, and Objectives of, the 

Proposed Rules 

53. In this Further Notice of Proposed 

Rulemaking, the Commission seeks 

comment on tentative conclusions and 

proposals for modifying and clarifying 

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 are being 

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, is required 

to relocate the BAS incumbents from the 

band by February 8, 2010. The MSS 

entrants (ICO and TerreStar), who will 

occupy the 2000–2020 MHz spectrum, 

are also obligated to relocate the BAS 

incumbents before they may begin 

operations. The AWS licenses for the 

1995–2000 MHz and 2020–2025 MHz 

have not yet been issued. 

54. 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 have 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. 

55. The Further NPRM tentatively 

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–2 

entrants can incur a relocation 

obligation until the band relocation 

rules sunset on December 9, 2013. The 

Further NPRM tentatively 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 Further NPRM 

proposes that AWS entrants will incur 

a cost sharing obligation upon grant of 

their long form application for their 

licenses, but also seeks comment on 

whether the AWS licensees should 

incur a cost sharing obligation when 

they activate a base station in an area 

that overlaps a DMA where the BAS 

incumbents have been relocated. The 

Further NPRM also seeks comment on 

whether once the AWS and MSS 

entrants incur a cost sharing obligation, 

they may not begin operations until they 

have reimbursed the party who 

relocated the BAS incumbents for their 

pro rata share of relocation costs for 

BAS markets that have transitioned 

when they incur the cost sharing 

obligation. As the BAS relocation 

continues and each additional BAS 

market is transitioned, the new entrant 

must pay their share of relocation costs 

within 30 days of being notified of the 

market transitioning. The Further NPRM 

also seeks comment on alternative 

proposals on when AWS and MSS 

entrants should be required to 

reimburse earlier entrants for their share 

of the BAS relocation costs. 

56. In addition, the Further NPRM 

tentatively concludes that the MSS 

29646 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 

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

4 5 U.S.C. 601(6). 

5 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). 

6Small Business Act, 15 U.S.C. 632 (1996). 

7 5 U.S.C. 603(b)(3). 

8 5 U.S.C. 601(6). 

9 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). 

10Small Business Act, 15 U.S.C. 632 (1996). 

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 FNPRM seeks comment 

on whether this limitation on the MSS 

entrants’ liability should be removed. 

Furthermore, the Further NPRM 

proposes to retain the MSS-to-MSS cost 

sharing, under which the MSS entrants 

are to ‘‘true-up’’ their cost after the BAS 

transition is complete to ensure that that 

each MSS entrant pays a pro rata share 

of the relocation cost depending on the 

amount to spectrum assigned. The 

Further NPRM also seeks comment on 

allowing Sprint Nextel to recover BAS 

relocation costs from one of the MSS 

entrants for BAS operations on 20 MHz 

of spectrum (the entire MSS allocation 

in the band), after which that MSS 

entrants could seek reimbursement from 

the other MSS entrant. The Further 

NPRM tentatively concludes that Sprint 

Nextel be required 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. Furthermore, the Further 

NPRM proposes that if new entrants 

other than Sprint Nextel relocate BAS 

incumbents and seek reimbursement 

from other new entrants, the first 

entrant must provide the later entrants 

with documented relocation costs. 

57. The current relocation rules 

require that the MSS entrants relocate 

BAS incumbents in markets 31–100 

within three years of beginning 

operations and markets above 100 

within five years of beginning 

operations. The Further NPRM proposes 

that the MSS entrants be required to 

relocate BAS incumbents in markets 

1–30 within three years of beginning 

operations, as they are currently 

required to do for BAS incumbents in 

markets 31–100. For purposes of this 

rule, the FNPRM proposes that 

‘‘beginning operations’’ be defined as 

the later of two dates: when an MSS 

operator certifies that its satellite is 

operational for purposes of meeting its 

operational milestone; or the date when 

the top 30 market rule is eliminated. 

The Further NPRM also proposes that 

the December 9, 2013 sunset date for the 

band not serve to terminate this 

obligation once it has been incurred. In 

addition, the Further NPRM seeks 

comment on what consequences, if any, 

should be applied for the failure of MSS 

entrants to meet these deadlines. 

58. The Futher NPRM also seeks 

comment on incentives for all BAS 

incumbents to work diligently toward 

completing the BAS transition. The 

Further NPRM seeks comments on 

several approaches to changing the 

interference status of the BAS 

incumbents: Nonrelocated BAS could 

become secondary while Sprint Nextel, 

MSS, and AWS could become primary 

in the 1990–2025 MHz band on 

February 9, 2010; Nonrelocated BAS 

could be required to cease operation in 

the 1990–2025 MHz band on February 

9, 2010; Nonrelocated BAS could 

become co-primary with Sprint Nextel, 

MSS, and AWS in the 1990–2025 MHz 

band on February 9, 2010. If any of 

these approaches are adopted, the 

Further NPRM seeks comment on 

whether we should look favorably upon 

waiver request from nonrelocated BAS 

licensees to allow them to maintain 

primary status and continue operations 

if enforcing the rule would cause 

hardship or otherwise not serve the 

public interest. Furthermore, the 

Further NPRM invites additional 

analysis of whether MSS entrants 

should be able to operate on an 

unrestricted and secondary basis in 

nonrelocated BAS markets instead of 

just when MSS entrants can 

successfully coordinate with 

nonrelocated BAS incumbents. 

B. Legal Basis 

59. The proposed action is taken 

pursuant to Sections 4(i), 5(c), 303(f), 

332, 337 and 405 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 155(c), 

303(f), 332, 337 and 405. 

C. Description and Estimate of the 

Number of Small Entities To Which the 

Proposed Rules Will Apply 

60. 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.3 The 

RFA generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ 4 In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’ 

under the Small Business Act.5 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.6

61. 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.7 The 

RFA generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ 8 In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’ 

under the Small Business Act.9 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.10

62. The proposed rule modifications 

may affect the interest of BAS, LTTS, 

and CARS licensees (which we have 

been referring to throughout this 

document generically as ‘‘BAS’’) 

because these licensees are being 

relocated from the 1990–2025 MHz 

band by the new entrants. In addition, 

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. 

63. BAS. This service uses a variety of 

transmitters to relay broadcast 

programming to the public (through 

translator and booster stations) or 

within the program distribution chain 

(from a remote news gathering unit back 

to the stations). The BAS licensees in 

the 1990–2110 MHz band will 

ultimately be required to use only the 

2020–2110 MHz portion of that band. It 

is unclear how many of the BAS 

licensees will be affected by our new 

rules. 

64. The Commission has not 

developed a definition of small entities 

specific to BAS licensees. However, the 

U.S. Small Business Administration 

(SBA) has developed small business size 

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 29647 

11 13 CFR 121.201, NAICS code 515120. 

12Although we are using BIA’s estimate for 

purposes of this revenue comparison, the 

Commission has estimated the number of licensed 

commercial television stations to be 1374. See News 

Release, ‘‘Broadcast Station Totals as of December 

31, 2006’’ (dated Jan. 26, 2007); see http:// 

www.fcc.gov/mb/audio/totals/bt061231.html. 

13 47 CFR 78.13. 

14U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517110 Wired Telecommunications Carriers’’ 

(partial definition); http://www.census.gov/naics/ 

2007/def/ND517110.HTM#N517110. 

15 13 CFR 121.201, NAICS code 517110. 

16 13 CFR 121.201, NAICS code 517110. 

17U.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). 

18 Id. An additional 61 firms had annual receipts 

of $25 million or more. 

19 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). 

20These 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. 

21 47 CFR 76.901(c). 

22Warren 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. 

23 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 

1–3. 

24 47 CFR 76.901(f); see Public NPRM, FCC 

Announces New Subscriber Count for the Definition 

of Small Cable Operator, DA 01–158 (Cable 

Services Bureau, Jan. 24, 2001). 

25These 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. 

26The 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 76.901(f) of the Commission’s rules. See 

47 CFR 76.909(b). 

27 13 CFR 121.201, NAICS Code 517210. Standard 

for small business is 1500 employees or fewer. 

28 13 CFR 121.201, NAICS Code 517210. 

standards. For BAS, we use the size 

standard for Television Broadcasting.11

The SBA has developed a size standard 

for firms in this category, which is all 

firms having revenues less than $14 

million. The only data which we have 

available for this category are for when 

the SBA size standard was for firms 

having revenues of less than $13.5 

million. 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 12 (or 

approximately 72 percent) have 

revenues of $13.5 million or less and 

thus qualify as small entities under the 

SBA definition. Thus, under this 

standard, the majority of firms can be 

considered small. 

65. CARS. The CARS licensees in the 

1990–2110 MHz band will ultimately be 

required to use only the 2020–2110 

MHz portion of that band. CARS 

licenses are issued to the owners or 

operators of cable television systems, 

cable networks, licensees of the BRS/ 

EBS band, and private cable operators or 

other multichannel video programming 

distributors.13 It is unclear how many of 

these will be affected by our new rules. 

66. 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.’’ 14 The SBA has 

developed a small business size 

standard for this category, which is: all 

such firms having 1,500 or fewer 

employees.15 To gauge small business 

prevalence for these cable services we 

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.16 According to Census Bureau 

data for 2002, there were a total of 1,191 

firms in this previous category that 

operated for the entire year.17 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.18 Thus, the majority of 

these firms can be considered small. 

67. 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.19

Industry data indicate that, of 1,076 

cable operators nationwide, all but 

eleven are small under this size 

standard.20 In addition, under the 

Commission’s rules, a ‘‘small system’’ is 

a cable system serving 15,000 or fewer 

subscribers.21 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.22 Thus, 

under this second size standard, most 

cable systems are small. 

68. 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.’’ 23 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.24

Industry data indicate that, of 1,076 

cable operators nationwide, all but ten 

are small under this size standard.25 We 

note that the Commission neither 

requests nor collects information on 

whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250 million,26

and therefore we are unable to estimate 

more accurately the number of cable 

system operators that would qualify as 

small under this size standard. 

69. Wireless Telecommunications 

Carriers (except satellite). Wireless 

Telecommunications Carriers (except 

satellite) is an SBA standard which has 

a size standard of fewer than 1500 

employees.27 Wireless cable systems use 

2 GHz band frequencies of the 

Broadband Radio Service (‘‘BRS’’), 

formerly Multipoint Distribution 

Service (‘‘MDS’’), and the Educational 

Broadband Service (‘‘EBS’’), formerly 

Instructional Television Fixed Service 

(‘‘ITFS’’), to transmit video 

programming and provide broadband 

services to residential subscribers. 

These services were originally designed 

for the delivery of multichannel video 

programming, similar to that of 

traditional cable systems, but over the 

past several years licensees have 

focused their operations instead on 

providing two-way high-speed Internet 

access services. We estimate that the 

number of wireless cable subscribers is 

approximately 100,000, as of March 

2005. As noted, within the category of 

Wireless Telecommunications Carriers, 

except satellite, such firms with fewer 

than 1500 employees are considered to 

be small.28 The data presented were 

acquired when the applicable SBA 

small business size standard was called 

Cable and Other Program Distribution, 

29648 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 

29 13 CFR 121.201, NAICS Code 517110. 

30U.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). 

31 Id. An additional 61 firms had annual receipts 

of $25 million or more. 

32 13 CFR 121.201, NAICS Code 517210. 

33 13 CFR 121.201, NAICS Code 517210. 

34 13 CFR 121.201, NAICS Code 517110. 

35U.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). 36 Id. An additional 61 firms had annual receipts 

of $25 million or more. 37 47 CFR 101.803(b). 38 13 CFR 121.201, NAICS Code 517210. 39U.S. Census Bureau, 1997 Economic Census, 

Subject Series: Information, ‘‘Employment Size of 

Firms Subject to Federal Income Tax: 1997,’’ Table 

5, NAICS code 517212 (issued Oct. 2000). 

40 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 ‘‘Firms with 1,000 

employees or more.’’ 

41 13 CFR 121.201, NAICS Code 517410. 

42TerreStar Corp., SEC Form 10–K 2008 Annual 

Report, filed March 12, 2009 at F2; 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 has recently filed for 

bankruptcy. ICO Global Communications 

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

43 13 CFR 121.201, NAICS Code 517210. 

and which referred to all such firms 

having $13.5 million or less in annual 

receipts.29 According to Census Bureau 

data for 2002, there were a total of 1,191 

firms in this category that operated for 

the entire year.30 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.31 The SBA small business size 

standard for the broad census category 

of Wireless Telecommunications 

Carriers, which consists of such entities 

with fewer than 1,500 employees, 

appears applicable to MDS and ITFS. 

70. The Commission has defined 

small MDS (now BRS) entities in the 

context of Commission license auctions. 

In the 1996 MDS auction, the 

Commission defined a small business as 

an entity that had annual average gross 

revenues of less than $40 million in the 

previous three calendar years. This 

definition of a small entity in the 

context of MDS auctions has been 

approved by the SBA. In the MDS 

auction, 67 bidders won 493 licenses. Of 

the 67 auction winners, 61 claimed 

status as a small business. At this time, 

the Commission estimates that of the 61 

small business MDS auction winners, 48 

remain small business licensees. In 

addition to the 48 small businesses that 

hold BTA authorizations, there are 

approximately 392 incumbent MDS 

licensees that have gross revenues that 

are not more than $40 million and are 

thus considered small entities. MDS 

licensees and wireless cable operators 

that did not receive their licenses as a 

result of the MDS auction fall under the 

SBA small business size standard for 

Wireless Telecommunications Carriers 

(except satellite).32 As noted, within the 

category of Wireless 

Telecommunications Carriers, such 

firms with fewer than 1500 employees 

are considered to be small.33 The data 

presented were acquired when the 

applicable SBA small business size 

standard was called Cable and Other 

Program Distribution, and which 

referred to all such firms having $13.5 

million or less in annual receipts.34

According to Census Bureau data for 

2002, there were a total of 1,191 firms 

in this category that operated for the 

entire year.35 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.36 Information available to us 

indicates that there are approximately 

850 of these licensees and operators that 

do not generate revenue in excess of 

$13.5 million annually. Therefore, we 

estimate that there are approximately 

850 small entity MDS (or BRS) 

providers, as defined by the SBA and 

the Commission’s auction rules. 

71. Educational institutions are 

included in this analysis as small 

entities; however, the Commission has 

not created a specific small business 

size standard for ITFS (now EBS). We 

estimate that there are currently 2,032 

ITFS (or EBS) licensees, and all but 100 

of the licenses are held by educational 

institutions. Thus, we estimate that at 

least 1,932 ITFS licensees are small 

entities. 

72. LTTS. The Local Television 

Transmission Service (LTTS) in the 

1990–2110 MHz band is used by 

communications common carriers to 

provide service to television broadcast 

stations, television broadcast networks, 

cable system operations, and cable 

network entities.37 There are 45 LTTS 

licensees in the 1990–2110 MHz band, 

and these licensees will ultimately be 

required to use only the 2025–2110 

MHz portion of that band. It is unclear 

how many of these will be affected by 

our new rules. The Commission has not 

yet defined a small business with 

respect to local television transmission 

services. For purposes of this IRFA, we 

will use the SBA’s definition applicable 

to Wireless Telecommunications 

Carriers (except satellite). As noted, 

within the category of Wireless 

Telecommunications Carriers, except 

satellite, such firms with fewer than 

1500 employees are considered to be 

small.38 The data presented were 

acquired when the applicable SBA 

small business size standard was called 

Cellular and Other Wireless 

Telecommunications—which referred to 

all such firms having no more than 

1,500 persons. According to Census 

Bureau data for 1997, there were 977 

firms in this category, total, that 

operated for the entire year.39 Of this 

total, 965 firms had employment of 999 

or fewer employees, and an additional 

12 firms had employment of 1,000 

employees or more.40 Thus, under this 

size standard, the majority of firms can 

be considered small. 

73. 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.41 Neither of the 

two MSS operators currently has 

revenues because one has not launched 

a satellite yet and the other is unable to 

provide service with its satellite because 

of the delays in the BAS transition. 

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.42

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. 

74. AWS. The AWS licensees have not 

been issued and the Commission has no 

definite plans to issue these licensees. 

Presumably some of the businesses 

which will eventually obtain AWS 

licensees will be small businesses. 

However, we have no means to estimate 

how many of these licensees will be 

small businesses. 

75. Sprint Nextel. Sprint Nextel as a 

new entrant to the band will occupy 

spectrum from 1990–1995 MHz. The 

Report and Order 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).43 Businesses 

in this category are considered small if 

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 29649 

44 Id. 

45Sprint Nextel Corp., SEC Form 10–K 2008 

Annual Report, filed Feb. 27, 2009 at 14. 

they have fewer than 1500 employees.44

As of December 31, 2008 Sprint Nextel 

had about 56,000 employees.45

Consequently, we find that Sprint 

Nextel is not a small business. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

76. The FNPRM proposes that if a 

new entrant other than Sprint Nextel 

relocates BAS, CARS, or LTTS 

incumbents and seeks cost sharing from 

a new entrant who enters the band later, 

then the first new entrant must provide 

the later new entrant with 

documentation of the relocation costs. 

The new entrants to whom this 

requirement applies may be an MSS 

operator or a future AWS licensee. Some 

of the future AWS licensees may be 

small entities. 

E. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

77. Our primary concern in this 

FNPRM, which we release at the same 

time we release the Report and Order 

and Order, continues to be balancing the 

needs of incumbent BAS, CARS, and 

LTTS licensees to provide service 

without suffering harmful interference 

and the introduction of new MSS in a 

timely manner. The interest of the BAS, 

CARS, and LTTS licensees would be 

affected if one of the approaches for 

modifying the interference status of the 

nonrelocated BAS, CARS, and LTTS 

incumbents on February 9, 2010 is 

adopted: such as making the 

nonrelocated BAS, CARS, and LTTS 

incumbents secondary; requiring them 

to discontinue operations; or making 

them co-primary with the new entrants. 

The potential harm to BAS, CARS, and 

LTTS will depend on the particular 

changes made to the rules and the 

progress of Sprint Nextel in relocating 

the BAS, CARS, and LTTS incumbents. 

If Sprint Nextel is able to relocate all of 

the BAS, CARS, and LTTS incumbents 

by the February 8, 2010, then no BAS, 

CARS, and LTTS licensees will be 

harmed by the proposed changes. 

However, if not all of the BAS, CARS, 

and LTTS incumbents are relocated by 

February 8, 2010, the changes to the 

remaining incumbents’ interference 

status on February 9, 2010 may cause 

significant economic harm to these 

incumbents. 

78. The degree of harm suffered by 

nonrelocated BAS, CARS, and LTTS 

incumbents will depend on many 

factors. If the BAS, CARS, and LTTS 

incumbents’ interference status is 

changed to co-primary, they would 

suffer no economic harm because, as the 

first primary licensees to enter the band, 

they would enjoy interference 

protection from the new entrants and 

would not have to avoid interfering with 

new entrants. If the nonrelocated BAS, 

CARS, and LTTS incumbents’ status is 

changed to secondary, the BAS, CARS, 

and LTTS incumbents would still be 

able to operate their equipment as long 

as they do not cause interference to the 

primary users of the band. If the 

nonrelocated BAS, CARS, and LTTS 

incumbents are required to discontinue 

operations, they will suffer economic 

harm. BAS is used primarily for 

electronic newsgathering and fixed 

television relay links. If the BAS 

incumbents are not able to use their 

BAS equipment, the quality of their 

newscast may be affected and they 

would have to find alternate means of 

replacing the relay links. If CARS 

licensees are not able to use their 

equipment, they may have difficulty in 

delivering their cable television 

programming. 

79. The possible change in the 

incumbents’ interference status as of 

February 9, 2010 will affect any BAS, 

CARS, or LTTS incumbents who have 

not been relocated from the 1990–2025 

MHz band by that date. This status 

change will affect all incumbent 

licensees equally. Consequently, we do 

not believe that the proposed rule 

changes will have a disparate impact on 

small entities. 

80. Because of the integrated nature of 

BAS, CARS, and LTTS, all licensees in 

a market must transition to the new 

band plan at the same time. As a result, 

a single licensee who lags behind its 

peers in completing the transition could 

cause inconvenience and hardship to 

the new entrants as well as the other 

incumbent licensees in the market. 

Consequently, in the FNPRM the 

Commission seeks comment on 

changing the interference status of 

nonrelocated BAS, CARS, and LTTS 

incumbents despite the potential of 

these incumbents experiencing 

interference or having to discontinue 

use of part of their licensed spectrum. 

81. Nonetheless, however, we note 

that the number of BAS, CARS, and 

LTTS incumbents that will be affected 

by the change in interference status 

should be small because Sprint Nextel 

is required to complete the BAS 

transition by February 8, 2010. To 

minimize the potential hardship to BAS, 

CARS, and LTTS incumbents, we seek 

comment on whether we should look 

favorably on requests from individual 

incumbents for waiver of the change of 

the interference status in the event that 

it would cause hardship or not be in the 

public interest. In addition, the possible 

change in the interference status of the 

BAS, CARS, and LTTS incumbents 

would not change the obligation of the 

new entrants to relocate the remaining 

incumbents until the band sunset date 

of December 9, 2013. 

82. Most of the proposals in the 

FNPRM address the cost sharing 

obligations between the MSS entrants, 

AWS entrants, and Sprint Nextel. 

However, the interest of BAS, CARS, 

and LTTS licensees would be positively 

affected by making it more likely that 

these licensees in the thirty largest 

markets will be relocated to the new 

channel plan. The FNPRM proposes 

adding the requirement that MSS 

entrants relocate BAS, CARS, and LTTS 

in markets 1–30 within three years of 

beginning operations. Because BAS, 

CARS, and LTTS that are not relocated 

by the band sunset date of December 9, 

2013 become secondary, increasing the 

likelihood that BAS, CARS, and LTTS 

will be relocated by MSS is a potential 

benefit for the incumbents—especially 

since the MSS entrants will be required 

to provide the relocated incumbents 

with comparable facilities. Note that 

because Sprint Nextel has an obligation 

to relocate the BAS, CARS, and LTTS 

incumbents by February 8, 2010, the 

MSS entrants may not have to relocate 

the incumbents. 

83. The proposals made in the 

FNPRM may affect the interest of future 

AWS licensees in the band, some of 

whom may be small businesses. 

However, because these licenses have 

not been issued, we have no means to 

determine whether the proposals will 

have a disparate impact on these 

potentially small businesses. We also 

have no means to determine what steps 

would minimize the impact on any of 

these potentially small businesses. 

F. Federal Rules That May Duplicate, 

Overlap or Conflict With the Proposed 

Rules 

84. None. 

Ordering Clauses 

85. Pursuant to Sections 4(i), 5(c), 

303(f), 332, 337 and 405 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 155(c), 

303(f), 332, 337 and 405, this Further 

NPRM of Proposed Rulemaking is 

adopted. 

86. The Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Report and Order and Order and 

29650 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Proposed Rules 

Further NPRM of Proposed Rulemaking, 

including the Initial Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E9–14757 Filed 6–22–09; 8:45 am] 

BILLING CODE 6712–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

48 CFR Parts 1545 and 1552 

[EPA–HQ–OARM–2008–0817; FRL–8906–4] 

EPAAR Prescription and Clauses— 

Government Property—Contract 

Property Administration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) amends the EPA 

Acquisition Regulation (EPAAR) to 

update policy, procedures, and contract 

clauses. The proposed rule consolidates 

the EPAAR physical property clauses 

(Decontamination, Fabrication, and 

Government Property), re-designates the 

prescription number in the data clause, 

and updates the roles and 

responsibilities of the contractor, DCMA 

and CPC. 

DATES: Comments must be received on 

or before July 23, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OARM–2008–0817, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: docket.oei@epa.gov. 

• Fax: (202) 566–1753. 

• Mail: EPA–HQ–OARM–2008–0817, 

OEI Docket, Environmental Protection 

Agency, 2822T, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460. 

Please include a total of three (3) copies. 

• Hand Delivery: EPA Docket CenterAttention OEI Docket, EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC 20004. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OARM–2008– 

0817. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ’’anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket, and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment, and with 

any disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties, and cannot 

contact you for clarification, EPA may 

not be able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov, or in hard copy at 

the Government Property-Contract 

Property Administration Docket, EPA/ 

DC, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the EPA 

Docket Center is (202) 566–1752. This 

Docket Facility is open from 8:30 a.m. 

to 4:30 p.m. Monday through Friday, 

excluding legal holidays. 

FOR FURTHER INFORMATION CONTACT: Iris 

Redmon, Policy, Training and Oversight 

Division, Acquisition, Policy and 

Training Service Center (3802R), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460; telephone number: 202–564– 

2644; fax number: 202–565–2475; email address: redmon.iris@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI, and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR Part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

The Federal Acquisition Regulation 

(FAR) on Government Property was 

revised June 14, 2007. This revision 

removed the previous restriction on 

providing government property for 

contract performance, and gave