Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Rules and Regulations 29607 

TABLE 2A TO SUBPART E OF PART 59—REACTIVITY FACTORS—Continued 

Compound CAS No. Reactivity 

factor 

2-tert-Butoxy-1-Propanol ............................................................................................................................................ 94023–15–1 1.81 

Oxo-Octyl Acetate ...................................................................................................................................................... 108419–32–5 0.96 

[FR Doc. E9–14580 Filed 6–22–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 74 and 78 

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

258, 95–18; FCC 09–49] 

Relocation of 2 GHz Broadcast 

Auxiliary Service 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document the 

Commission waives the deadline by 

which Sprint Nextel must complete 

relocation of the broadcast auxiliary 

service (BAS) to frequencies above 2025 

MHz until February 8, 2010. The 

Commission also eliminates the 

requirement that MSS entrants to the 

2000–2020 MHz band may not begin 

operations until the BAS incumbents in 

the top 30 markets by population and all 

fixed BAS links in the 1990–2025 MHz 

band have been relocated. MSS entrants 

will be allowed to conduct operations in 

markets where the BAS incumbents 

have not been relocated only if they 

successfully coordinate with the BAS 

incumbents. In addition, the 

Commission waives the requirement 

that New ICO Satellite Services G.P. 

must first make available to the public 

commercial satellite service throughout 

its satellite’s coverage area before it may 

commercially operate Ancillary 

Terrestrial Service (ATC) in conjunction 

with it satellite system. 

DATES: Effective July 23, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Nicholas Oros, (202) 418–0636, e-mail 

Nicholas.Oros@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order and Order, WT Docket No. 

02–55, ET Docket Nos. 00–258 and 95– 

18, FCC 09–49, adopted June 10, 2009, 

and released June 12, 2009. The full text 

of the document is available on the 

Commission’s Internet site at http:// 

www.fcc.gov. It is also available for 

inspection and copying during regular 

business hours in the FCC Reference 

Center (Room CY–A257), 445 12th St., 

SW., Washington, DC 20554. The full 

text may also be purchased from the 

Commission’s duplication contractor, 

Best Copy and Printing Inc., Portals II, 

445 12th St., SW., Room CY–B402, 

Washington, DC 20554, telephone (202) 

488–5300; fax (202) 488–5563; e-mail 

FCC@BCPIWEB.com. 

Summary of the Report and Order and 

Order 

1. In this Report and Order and Order, 

the Commission waives the deadline by 

which Sprint Nextel must complete 

relocation of the broadcast auxiliary 

service (BAS) to frequencies above 2025 

MHz until February 8, 2010. The BAS 

incumbents are being relocated so that 

new entrants such as the Mobile 

Satellite Service (MSS), Advanced 

Wireless Service (AWS), and Sprint 

Nextel can provide new and innovative 

services. In 2004, Sprint Nextel 

undertook the obligation to relocate the 

BAS incumbents within 30 months—i.e. 

by September 7, 2007. In March 2008 

the Commission waived the BAS 

transition deadline until March 5, 2009. 

On February 12, 2009, Sprint Nextel, the 

Association for Maximum Service 

Television (MSTV), the National 

Association of Broadcasters (NAB), and 

the Society of Broadcast Engineers (SBE) 

filed a supplemental request that the 

BAS transition deadline be waived until 

February 7, 2010. 

2. The Commission concludes that 

waiver of the BAS relocation deadline 

until February 8, 2010 is in the public 

interest for a number of reasons. The 

timely relocation of BAS licensees 

remains a necessary step for the full 

introduction of new services in the 

1990–2025 MHz band, and Sprint 

Nextel remains the sole entity actively 

undertaking such relocations. No 

commenter has suggested an alternate 

plan by which BAS licensees can be 

relocated quicker in order to give new 

entrants full and complete access to the 

band. The pace of the BAS transition is 

constrained by the small number of 

manufacturers who make the BAS 

equipment, a shortage of qualified 

equipment installers and tower 

climbers, and coordination problems 

between the new radio equipment and 

preexisting controllers. The Commission 

concludes that a fair reading of the 

overall record indicates that Sprint 

Nextel has made considerable progress 

in the BAS relocation process that has 

proven to be a more complex 

undertaking than any party may have 

initially anticipated. 

3. Further delays in BAS transition 

will frustrate our goal of providing 

opportunity for new entrants to begin 

offering service in the band and the 

Commission fully intends to take all 

necessary steps to ensure that the BAS 

licensees, Sprint Nextel, and the MSS 

operators act to complete the BAS 

relocation process in a timely manner. 

While the Commission intends to 

exercise appropriate enforcement action 

if Sprint Nextel is not able to complete 

the BAS transition by February 8, 2010 

for reasons it could have reasonably 

avoided, we also believe that there 

should be appropriate consequences for 

BAS licensees for failure to complete 

the relocation by the new deadline. In 

the accompanying Further Notice, the 

Commission considers further 

modifying the BAS relocation rules to 

allow new entrants to begin 

unencumbered operations in the band 

before all BAS operations are relocated. 

The Commission also emphasize that, 

under existing relocation rules, MSS 

operators have an absolute 

responsibility to protect incumbent BAS 

licensees, and that it will consider 

taking vigorous enforcement action 

against any violations of this rule. 

Furthermore, the Commission reminds 

BAS licensees that under the 

Commission’s rules they have an 

obligation to negotiate in good faith 

with Sprint Nextel and the other new 

entrants relocation agreements for the 

1990–2025 MHz band. If a party 

believes that another party, whether a 

BAS licensee or a new entrant, is not 

negotiating in good faith, it may petition 

the Commission for a declaratory ruling. 

4. As proposed in a March 2008 

Further Notice of Proposed Rulemaking 

in this docket, in this Report and Order 

and Order the Commission also 

eliminates the requirements in 

§§ 74.690(e)(1)(i) and 78.40(f)(1)(i) of the 

Commission’s Rules that MSS entrants 

relocate all BAS licensees in Nielsen 

Designated Market areas 1–30, as they 

existed on September 6, 2000, and all 

fixed BAS stations operating in the band 

on a primary basis prior to beginning 

29608 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Rules and Regulations 

1See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– 

612, has been amended by the Small Business 

Regulatory Enforcement Fairness Act of 1996 

(SBREFA), Public Law 104–121, Title II, 110 Stat. 

857 (1996). 

operations. Eliminating these 

requirements will allow the benefits of 

MSS—such as public safety service 

during disasters when terrestrial 

communications networks may be 

compromised and increased 

competition in wireless 

communications through the provision 

of new and unique mobile services—to 

be provided to the public sooner than 

what the rules currently allow. The 

delays in the relocation of BAS have 

increased the importance of finding 

opportunities that can allow MSS 

operators to begin to deploy robust 

commercial services. 

5. The Commission recognizes that 

allowing the MSS entrants to operate on 

cleared spectrum before they have 

satisfied their cost sharing obligations to 

Sprint Nextel is a departure from prior 

Commission decisions on this issue. 

Nonetheless, the Commission concludes 

that, given the unique circumstances in 

this case, our decision to allow the MSS 

entrants to begin operations in the near 

term, before they may have satisfied 

their cost sharing reimbursement 

obligations, best serves the public 

interest. The Commission want to be 

clear, though, that our decision to allow 

the MSS entrants to begin operations 

before they may have satisfied their cost 

sharing obligations to Sprint Nextel in 

no way relieves them of these 

obligations. A guiding principle for 

relocation is that those entrants that 

benefit from cleared spectrum have an 

obligation to shoulder their portion of 

the costs to relocate incumbent 

operations. The Commission fully 

intends to apply that principle here, as 

set forth in the accompanying Further 

Notice. 

6. The Commission also retains the 

rule that BAS licensees maintain 

primary status until they are relocated, 

decline relocation, or the BAS 

relocation rules sunset on December 13, 

2013. The Commission also has not 

modified the requirement for MSS 

entrants to relocate the incumbent BAS 

licensees in markets 31–100 within 

three years of beginning operations and 

the remaining BAS licensees within five 

years. 

7. The Commission’s decision to 

modify §§ 74.690(e)(1)(i) and 

78.40(f)(1)(i) makes it vital for us to 

effectively manage the interference 

environment during the period in which 

both MSS entrants and incumbent BAS 

licensees occupy the band. During the 

pendency of the BAS transition, BAS 

incumbents are primary in the band 

until they are relocated, they refuse 

relocation, or the relocation rules sunset 

on December 9, 2013. The Commission 

imposes the following requirements to 

protect the primary BAS operations: 

First, MSS entrants will be required to 

successfully coordinate any operations 

in nonrelocated markets with BAS 

incumbents in those markets prior to 

beginning service. Second, MSS 

entrants are prohibited from marketing 

their services to customers in markets 

where the BAS transition has not been 

completed. Third, the Commission 

prohibits MSS entrants from operating 

ATC networks in markets where the 

BAS transition is not complete. 

8. Interference may also occur to BAS 

incumbents from MSS mobile terminals 

operating adjacent to markets where the 

BAS transition has not been completed. 

To address this possibility, the 

Commission has determined that MSS 

mobile terminals may not operate 

within line-of-sight of BAS receiver sites 

in markets where the BAS transition has 

not been completed, unless such use has 

been coordinated between the MSS 

operator and BAS licensee. In addition, 

the Commission will not allow the MSS 

entrants to operate ATC equipment 

within line-of-sight of a BAS receiver 

site for a market which has not been 

transitioned. MSS transponders must 

also accept any interference caused by 

BAS operations in uncleared markets. 

9. The Commission expects BAS 

incumbents to act cooperatively to 

accommodate good faith proposals for 

MSS operation in markets where the 

BAS incumbents have not been 

relocated. Because not all BAS receive 

site information is available in the 

Commission’s licensing databases, it 

expects BAS licensees to disclose to 

MSS the locations of these sites upon 

request in order to facilitate 

coordination. While the Commission 

believes that there may be instances 

where individual BAS licensees may be 

able to adjust the channels or 

bandwidth on which they operate or 

make other adjustments to 

accommodate MSS operations, the 

Commission emphasizes that BAS 

incumbents are not expected to agree to 

coordination proposals that would 

impair their ability to meet the 

electronic newsgathering needs of a 

particular market at a particular time or 

that would delay the scheduled 

relocation of BAS. To a certain extent, 

the Commission disagrees with MSTV 

and NAB that BAS operations should 

never reduce bandwidth or cease 

channel operation, if doing so is agreed 

to as part of coordination. However, the 

Commission does not expect 

broadcasters to retune or modify 

equipment to accommodate MSS when 

that equipment is already scheduled to 

be replaced, unless it will not divert 

resources from the BAS transition. The 

Commission will not permit an MSS 

entrant to approach the BAS 

incumbents in a particular market to 

coordinate operations until sixty days 

before the MSS entrant expects to 

provide commercial service in that 

market. 

10. The Commission also determined 

that an MSS entrant will be required to 

coordinate with fixed BAS links that 

overlap the spectrum it will be using. 

Where the MSS entrant and BAS 

licensee determine by mutual agreement 

that harmful interference to the BAS 

fixed link will not occur, the MSS 

entrant will be able to operate in that 

market. It may not be possible in some 

cases for the MSS entrant to operate 

without causing interference to the fixed 

BAS link. In these situations, the MSS 

entrant will have to relocate the fixed 

BAS link before it may operate in that 

market. 

11. New ICO Satellite Services G.P. 

(ICO), which has recently changed its 

name to New DBSD Satellite Services 

G.P., has been granted authority to 

operate ATC in conjunction with its 

satellite system conditioned on its 

commercial satellite service being 

available to the public throughout its 

satellite’s coverage area, as required by 

§ 25.149(b)(3). However, ICO can not 

satisfy this requirement until the BAS 

transition is complete because it may 

not market MSS where the BAS 

incumbents have not been relocated. 

ICO has requested a waiver of this 

requirement to allow it to begin ATC 

operations prior to the end of the BAS 

transition. The Commission grants ICO 

a limited waiver of this requirement, 

pending completion of the BAS 

transition. Once ICO begins to 

commercially offer satellite service in a 

market in which the BAS transition has 

been completed, ICO will be permitted 

to operate ATC in that market. Once the 

BAS transition has been completed, ICO 

may operate ATC service throughout its 

coverage area, provided that it is also 

offering commercial satellite service 

throughout its coverage area. The 

Commission also delegated authority to 

the Commission’s International Bureau 

to grant a similar waiver to MSS 

operator TerreStar Networks Inc., if 

such a waiver is necessary. 

Final Regulatory Flexibility Analysis 

12. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA),1 an Initial Regulatory Flexibility 

Analysis (IRFA) was incorporated in the 

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Rules and Regulations 29609 

2See Improving Public Safety Communications in 

the 800 MHz Band; Consolidating the 900 MHz 

Industrial/Land Transportation and Business Pool 

Channels, WT Docket No. 02–55, Notice of 

Proposed Rulemaking, 17 FCC Rcd 4873, 4927 

(2002) (NPRM). 

3See id. at 4920 ¶ 93. 

4Business Autophones, Inc., Comments on IRFA 

(May 6, 2002) Skitronics, LLC, Comments on IRFA 

(May 6, 2002); Small Business in 

Telecommunications, Comments on IRFA (May 6, 

2002). 

5See 5 U.S.C. 604. 

6The Report and Order and Order also waive the 

deadline by which Sprint Nextel must relocate the 

BAS incumbents until February 8, 2010. 

7The Report and Order and Order does waive the 

commercial availability ATC gating requirement for 

ICO. This will allow ICO to operate ATC systems 

in transitioned BAS markets prior to its satellite 

service being available throughout its coverage area. 

8 5 U.S.C. 603(b)(3). 

9 5 U.S.C. 601(6). 

10 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). 

11Small Business Act, 15 U.S.C. 632 (1996). 

12 13 CFR 121.201, NAICS code 515120. 

13Although 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 1,374. 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. 

14 47 CFR 78.13. 

Further Notice of Proposed Rule Making 

(FNPRM).2 The Commission sought 

written public comment on the 

proposals in the FNPRM, including 

comment on the IRFA.3 No commenting 

parties specifically addressed the IRFA.4

This present Final Regulatory Flexibility 

Analysis (FRFA) conforms to the RFA.5

A. Need for, and Objectives of, the 

Proposed Rules 

13. In this Report and Order and 

Order, we eliminate the rule requiring 

that BAS in the top 30 markets by 

population and all fixed BAS links be 

transitioned before 2 GHz MSS 

operators may begin operations.6 This 

rule change is necessary because of the 

changed circumstances since the rule 

was first adopted. When the rule was 

adopted the MSS entrants were the only 

new entrants to the band and were 

expected to relocate BAS in the top 30 

markets before they could begin 

operations. Sprint Nextel and future 

AWS licensees have subsequently been 

allocated spectrum in the band. Sprint 

Nextel was expected to relocate the BAS 

incumbents by September 7, 2007. 

However, the BAS transition has been 

delayed and Sprint Nextel is now 

required to relocate BAS by February 8, 

2010. Despite the fact that BAS 

incumbents have been relocated in 

many markets, the top 30 market rule 

continues to prevent the MSS entrants 

from beginning operations anywhere— 

even in markets where the spectrum is 

currently not being used. Elimination of 

the top 30 market rule will allow the 

benefits from MSS—such as public 

safety service during disasters when 

terrestrial networks may be 

compromised and increased 

competition wireless services—to be 

provided sooner. 

14. Because BAS is a critical part of 

the broadcasting system by which 

information and entertainment is 

provided to the American public, the 

Report and Order and Order implements 

a number of requirements to help 

prevent interference to nonrelocated 

BAS incumbents from MSS until the 

transition is complete. The MSS 

entrants will only be permitted to 

operate in markets where the BAS 

incumbents have not been relocated if 

the MSS entrants successfully 

coordinate with the BAS incumbents. 

This coordination requirement also 

applies to MSS operations in a market 

where BAS has been relocated that are 

within line-of-sight of BAS receiver sites 

in adjacent markets that have not yet 

been transitioned. Furthermore, to 

simplify the coordination process, MSS 

will not be able to operate ATC systems 

or market services to customers in 

markets where the BAS incumbents 

have not been relocated.7

B. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

15. There were no comments filed 

that specifically addressed the rules and 

policies proposed in the IRFA. 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules Will Apply 

16. 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.8 The 

RFA generally defines the term ‘‘small 

entity’’ as having the same meaning as 

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

organization,’’ and ‘‘small governmental 

jurisdiction.’’ 9 In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’ 

under the Small Business Act.10 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.11

17. 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. 

18. 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. 

19. 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 

standards. For BAS, we use the size 

standard for Television Broadcasting.12

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 13 (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. 

20. 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.14 It is unclear how many of 

these will be affected by our new rules. 

21. Cable Television Distribution 

Services. Since 2007, these services 

have been defined within the broad 

economic census category of Wired 

29610 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Rules and Regulations 

15U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517110 Wired Telecommunications Carriers’’ 

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

2007/def/ND517110.HTM#N517110. 

16 13 CFR 121.201, NAICS code 517110. 

17 13 CFR 121.201, NAICS code 517110. 

18U.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). 

19 Id. An additional 61 firms had annual receipts 

of $25 million or more. 

20 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). 

21These 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. 

22 47 CFR 76.901(c). 

23Warren 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. 

24 47 U.S.C. 543(m)(2) see 47 CFR § 76.901(f) & 

nn. 1–3. 

25 47 CFR 76.901(f); see Public Notice, FCC 

Announces New Subscriber Count for the Definition 

of Small Cable Operator, DA 01–158 (Cable 

Services Bureau, Jan. 24, 2001). 

26These 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. 

27The 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). 

28 13 CFR 121.201, NAICS Code 517210. Standard 

for small business is 1,500 employees or fewer. 

29 13 CFR 121.201, NAICS Code 517210. 

30 13 CFR 121.201, NAICS Code 517110. 

31U.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). 

32 Id. An additional 61 firms had annual receipts 

of $25 million or more. 

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.’’ 15 The SBA has 

developed a small business size 

standard for this category, which is: all 

such firms having 1,500 or fewer 

employees.16 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.17 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.18 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.19 Thus, the majority of 

these firms can be considered small. 

22. 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.20

Industry data indicate that, of 1,076 

cable operators nationwide, all but 

eleven are small under this size 

standard.21 In addition, under the 

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

a cable system serving 15,000 or fewer 

subscribers.22 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.23 Thus, 

under this second size standard, most 

cable systems are small. 

23. 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.’’ 24 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.25

Industry data indicate that, of 1,076 

cable operators nationwide, all but ten 

are small under this size standard.26 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,27

and therefore we are unable to estimate 

more accurately the number of cable 

system operators that would qualify as 

small under this size standard. 

24. Wireless Telecommunications 

Carriers (except satellite). Wireless 

Telecommunications Carriers (except 

satellite), is a SBA standard which has 

a size standard of fewer than 1,500 

employees.28 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 1,500 employees are considered to 

be small.29 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.30 According to Census Bureau 

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

firms in this category that operated for 

the entire year.31 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.32 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. 

25. 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 

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Rules and Regulations 29611 

33 13 CFR 121.201, NAICS Code 517210. 

34 13 CFR 121.201, NAICS Code 517210. 

35 13 CFR 121.201, NAICS Code 517110. 

36U.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). 

37 Id. An additional 61 firms had annual receipts 

of $25 million or more. 

38 47 CFR 101.803(b). 

39 13 CFR 121.201, NAICS Code 517210. 

40U.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). 

41 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.’’ 

42 13 CFR 121.201, NAICS Code 517410. 

43TerreStar 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, SEC Form 8–K, filed May 15, 

2009. 

44 13 CFR 121.201, NAICS Code 517210. 

45 Id. 

46Sprint Nextel Corp., SEC Form 10–K 2008 

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

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).33 As noted, within the 

category of Wireless 

Telecommunications Carriers, such 

firms with fewer than 1,500 employees 

are considered to be small.34 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.35

According to Census Bureau data for 

2002, there were a total of 1,191 firms 

in this category that operated for the 

entire year.36 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.37 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. 

26. 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. 

27. 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.38 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 

1,500 employees are considered to be 

small.39 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.40 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.41 Thus, under this 

size standard, the majority of firms can 

be considered small. 

28. 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.42 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.43

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. 

29. 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. 

30. 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).44 Businesses 

in this category are considered small if 

they have fewer than 1,500 

employees.45 As of December 31, 2008 

Sprint Nextel had about 56,000 

employees.46 Consequently, we find 

that Sprint Nextel is not a small 

business. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

31. MSS entrants are required to 

coordinate their operations within lineof-sight of BAS receiver sites for those 

BAS licensees who have not yet been 

relocated. In addition, the MSS entrants 

may not operate ATC networks within 

line-of-sight of BAS receiver sites which 

have not yet been relocated. Because the 

locations of the BAS receiver sites are 

not in the Commission’s databases, the 

BAS licensees are required to notify the 

MSS entrants of the location of the 

receiver sites upon request. 

E. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

32. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

29612 Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Rules and Regulations 

47See 5 U.S.C. 603(c)(1–4). 

48We do not believe that the BAS, CARS, and 

LTTS licensee will suffer a disparate impact from 

the two waivers we grant in the Report and Order 

and Order. The waiver of the deadline by which 

Sprint Nextel must relocate the BAS incumbents 

will benefit the BAS, CARS and LTTS licensees by 

making it more likely they will be relocated above 

2025 MHz. If they are not relocated, the BAS, 

CARS, and LTTS will become secondary after the 

December 2013 sunset date. The waiver of the 

commercial availability ATC requirement for ICO 

will not affect the interest of BAS, CARS, and LTTS 

licensees because ICO is prohibited from operation 

ATC in markets where the incumbents have not 

been relocated and must avoid operating ATC 

networks within line-of-sight of BAS receiver sites 

that have not been relocated. 

49We do not believe the interest of future AWS 

licensees will be negatively affected by the actions 

of the Report and Order and Order. However, 

because there are no definite plans to issue the 

AWS licenses, any consideration of the effects of 

the Report and Order and Order on the AWS 

licensees is necessarily speculative. 

50 ICO Global Communications (Holdings) 

Limited, SEC Form 10–K 2008 Annual Report, filed 

March 3, 2009 at 3; Grant of FCC Application for 

Space and Earth Station: Mod or AMD, File No. 

Sat–Mod–20080718–00143, granted Nov. 12, 2008. 

under the rule for small entities; (3) the 

use of performance, rather than design 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities.47

33. No parties have submitted 

comments indicating that there will be 

a disparate impact on small entities 

because of these rule changes. Because 

we have no evidence that small 

businesses will suffer disparate harm 

based on the rules we adopt today, 

based on the record now before us, we 

do not perceive a need for the 

Commission to take steps to minimize 

the adverse economic impact on small 

entities or consider alternatives to the 

rule amendments in the Report and 

Order and Order. In general, the BAS, 

CARS, and LTTS licensees may suffer 

harm in two ways from our amended 

rules: By suffering harmful interference 

to their transmissions from MSS 

entrants to the band or by having to 

expend resources to coordinate 

operations with the MSS entrants prior 

to completion of the BAS transition.48

34. The interest of BAS, CARS, and 

LTTS licensees would be affected by the 

proposed rule changes by either 

subjecting them to the threat of 

increased interference from MSS or by 

requiring MSS entrants to coordinate 

with the incumbents in order the 

operate in markets where the BAS 

incumbents have not yet been relocated 

to the new channel plan.49 After the 

elimination of the top 30 market rule the 

nonrelocated BAS, CARS, and LTTS 

incumbents have primary status in the 

band until the band sunset date of 

December 9, 2013, while the new 

entrants will be secondary. As such, the 

new entrants will be required to avoid 

causing harmful interference to the 

nonrelocated BAS, CARS, and LTTS 

incumbents and will have to accept 

interference from the incumbents. 

Despite this requirement, there may be 

instances where the BAS, CARS, LTTS 

incumbents will experience harmful 

interference. Furthermore, the 

Commission expects the BAS, CARS, 

LTTS incumbents to act cooperatively to 

accommodate the MSS operators in 

nonrelocated markets to the greatest 

extent possible while not impairing 

their ability to make use of the 

spectrum. 

35. The Commission notes that 

because the time period for exposure to 

potential interference is very short in 

duration, the potential of harmful 

interference actually occurring to BAS, 

CARS, and LTTS incumbents is small. 

All BAS, CARS, and LTTS incumbents 

are expected to be relocated by Sprint 

Nextel before the February 8, 2010 

transition deadline. ICO has stated that 

they do not intend to offer commercial 

services during 2009.50 TerreStar’s 

operational milestone is not until 

August 30, 2009. The Commission 

expects that TerreStar will need a 

significant amount of time after its 

satellite is operational to begin 

providing commercial service. As a 

result, the amount of time that MSS will 

share spectrum with nonrelocated 

incumbents should be brief. As the 

transition progresses, fewer and fewer 

incumbents will remain unrelocated. 

Those BAS, CARS, and LTTS 

incumbents who have not been 

relocated are unlikely to receive harmful 

interference from MSS because of the 

coordination and non-interference 

requirements. Furthermore, any 

interference that does occur to 

incumbents will affect small entities in 

the same way that it affects large 

entities. 

36. As for the coexistence of 

unrelocated BAS, CARS, and LTTS 

incumbents with MSS entrants until the 

incumbents are relocated, the 

unrelcoated BAS, CARS, and LTTS 

incumbents may have to expend some 

resources to coordinate operations with 

the MSS entrants. However, we do not 

expect that this coordination will be any 

more burdensome than the coordination 

that BAS licensees commonly do with 

other BAS incumbents. The requirement 

to coordinate with MSS entrants will 

affect all the BAS, CARS, and LTTS 

licensees equally, regardless of the size 

of these entities. We do not expect that 

BAS, CARS, and LTTS incumbents to 

suffer significant harm because they will 

not have to impair their use of the 

spectrum as a result of the coordination 

with the MSS entrants. Furthermore, if 

the MSS entrants can not successfully 

coordinate their use of the spectrum 

with the urnelocated incumbents, they 

will have to avoid use of the spectrum 

in markets where the incumbents have 

not been relocated. 

37. Our primary concern in this 

proceeding continues to be balancing 

the needs of incumbent BAS licensees 

to provide service without suffering 

harmful interference and the 

introduction of new MSS in a timely 

manner. The Commission believes the 

slight hardship that may occur to BAS 

entities is justified by the benefit to the 

public of receiving MSS services earlier 

than they might have without the 

changes we are making to our rules. 

38. However, because of our ongoing 

concern with avoiding arbitrary and 

unfair burdens on small entities, we 

considered a number of alternatives to 

the rules we are adopting. The 

Commission considered not eliminating 

the top 30 market rule. Because Sprint 

Nextel is not expected to relocate the 

last of the top 30 markets until the end 

of the BAS transition, this would have 

likely required MSS to wait until the 

BAS transition is complete before 

offering service to the public. In the 

meantime, a large amount of spectrum 

would have remained unused in the 

markets where the BAS incumbents 

have been relocated. The Commission 

believes it would not be in the public 

interest to allow this valuable spectrum 

to lie fallow. It also considered allowing 

BAS to operate only in those markets 

where the BAS incumbents had been 

relocated. The Commission concluded 

that allowing MSS operations in 

unrelocated markets with successful 

coordination was preferable to this 

approach because there will be 

instances in which coordination will 

permit sharing of the spectrum in 

markets where the BAS transition has 

not been completed. 

F. Federal Rules That May Duplicate, 

Overlap or Conflict With the Proposed 

Rules 

39. None. 

Ordering Clauses 

40. 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 Report and 

Order and Order is adopted. Parts 74 

and 78 of the Commission’s Rules are 

amended as specified in the Final Rules, 

effective July 23, 2009. 

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

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

Federal Register / Vol. 74, No. 119 / Tuesday, June 23, 2009 / Rules and Regulations 29613 

Communications Act of 1934, as 

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

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

Notice of Proposed Rulemaking is 

adopted. 

42. Pursuant to Sections 4(i) and (j) of 

the Communications Act of 1934, as 

amended, 47 CFR 154(i) and (j), and 

§ 1.3 of the Commission’s Rules, 47 CFR 

1.3, that the waiver of the deadline by 

which Sprint Nextel must complete 

relocation of the broadcast auxiliary 

service to frequencies above 2025 MHz 

adopted in FCC 08–73, is extended until 

February 8, 2010. 

43. The Supplemental Request is 

granted. 

44. Pursuant to Sections 4(i) and (j) of 

the Communications Act of 1934, as 

amended, 47 CFR 154(i) and (j), and 

§ 1.3 of the Commission’s Rules, 47 CFR 

1.3, that the waiver of the requirement 

under 47 CFR 25.149(b)(3) that New ICO 

Satellite Services G.P. (New DBSD 

Satellite Services G.P.) have 

commercially available satellite service 

in accordance with its coverage 

requirements as a prerequisite to 

offering ATC services is granted 

consistent with the terms of this order. 

45. Pursuant to §§ 0.201, 0.203, 0.204, 

and 0.261 of the Commission’s Rules, 47 

CFR 0.201, 0.203, 0.204, 0.261, that 

authority to waive Section 25.149(b)(3) 

of the Commission rules, 47 CFR 

25.149(b)(3) for TerreStar Networks Inc. 

is hereby delegated to the Commission’s 

International Bureau. 

46. Pursuant to Sections 4(i) and (j) of 

the Communications Act of 1934, as 

amended, 47 CFR 154(i) and (j), and 

Section 1.3 of the Commission’s Rules, 

47 CFR 1.3, that the Application for 

Review filed by Sprint Nextel of the 

grant of ATC authority to New ICO 

Satellite Services G.P. (New DBSD 

Satellite Services G.P.) is dismissed. 

47. New ICO Satellite Services G.P.’s 

(New DBSD Satellite Services G.P.’s) 

request that we waive 47 CFR 

74.690(e)(1)(i) of the Commission’s rules 

is dismissed. 

48. The Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Report and Order and Order and 

Further Notice of Proposed Rulemaking, 

including the Final Regulatory 

Flexibility Analysis and Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

49. The Commission shall send a copy 

of this Report and Order and Order and 

Further Notice of Proposed Rulemaking 

in a report to be sent to Congress and 

the General Accounting Office pursuant 

to the Congressional Review Act, see 5 

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

List of Subjects 

47 CFR Part 74 

Communications equipment, 

Reporting and recordkeeping 

requirements, and Television. 

47 CFR Part 78 

Cable television, Communications 

equipment, and Reporting and 

recordkeeping requirements. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Final Rules 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR parts 74 

and 78 to read as follows: 

PART 74—EXPERIMENTAL RADIO, 

AUXILIARY, SPECIAL BROADCAST 

AND OTHER PROGRAM 

DISTRIBUTION SERVICES 

■ 1. The authority citation for part 74 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 307, 336(f), 

336(h) and 554. 

■ 2. Section 74.690 is amended by 

revising paragraph (e)(1)(i) to read as 

follows: 

§ 74.690 Transition of the 1990–2025 MHz 

band from the Broadcast Auxiliary Service 

to emerging technologies. 

* * * * * 

(e) * * * 

(1) * * * 

(i) MSS licensees may relocate all 

Existing Licensees in Nielsen 

Designated Market Areas (DMAs) 1–30, 

as such DMAs existed on September 6, 

2000, and all fixed stations operating in 

the 1990–2025 MHz band on a primary 

basis, except those Existing Licensees 

that decline relocation. Such relocation 

negotiations shall be conducted as 

‘‘mandatory negotiations,’’ as that term 

is used in § 101.73 of this chapter. If 

these parties are unable to reach a 

negotiated agreement, MSS Licensees 

may involuntarily relocate such Existing 

Licensees and fixed stations after 

December 8, 2004. 

* * * * * 

PART 78—CABLE TELEVISION RELAY 

SERVICE 

■ 3. The authority citation for part 78 

continues to read as follows: 

Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 

309, 48 Stat., as amended, 1064, 1065, 1066, 

1081, 1082, 1083, 1084, 1085; 47 U.S.C. 152, 

153, 154, 301, 303, 307, 308, 309. 

■ 4. Section 78.40 is amended by 

revising paragraph (f)(1)(i) to read as 

follows: 

§ 78.40 Transition of the 1990–2025 MHz 

band from the Cable Television Relay 

Service to emerging technologies. 

* * * * * 

(f) * * * 

(1) * * * 

(i) MSS licensees may relocate all 

Existing Licensees in Nielsen 

Designated Market Areas (DMAs) 1–30, 

as such DMAs existed on September 6, 

2000, except those Existing Licensees 

that decline relocation. Such relocation 

negotiations shall be conducted as 

‘‘mandatory negotiations,’’ as that term 

is used in § 101.73 of this chapter. If 

these parties are unable to reach a 

negotiated agreement, MSS Licensees 

may involuntarily relocate such Existing 

Licensees after December 8, 2004. 

* * * * * 

[FR Doc. E9–14760 Filed 6–22–09; 8:45 am] 

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