9798 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules

TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued

Facility Address Waste description

(5) Data Submittals: Data obtained in accordance with Condition (2)(A) must be submitted to Jewell Grubbs, Chief, RCRA Enforcement and Compliance Branch, Mail

Code: 4WD–RCRA, U.S. EPA, Region 4, Sam Nunn Atlanta Federal Center, 61

Forsyth Street, Atlanta, Georgia 30303. This submission is due no later than 60

days after filling the first roll-off box of BMW Sludge to be disposed in accordance

with delisting Conditions (1) through (7) for both the test runs and again for the

commencement of production. Records of analytical data from Condition (2) must

be compiled, summarized, and maintained by BMW for a minimum of three years,

and must be furnished upon request by EPA or the State of South Carolina, and

made available for inspection. Failure to submit the required data within the specified time period or maintain the required records for the specified time will be considered by EPA, at its discretion, sufficient basis to revoke the exclusion to the extent directed by EPA. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12).

(6) Reopener Language: (A) If, at any time after disposal of the delisted waste,

BMW possesses or is otherwise made aware of any environmental data (including

but not limited to leachate data or groundwater monitoring data) or any other data

relevant to the delisted waste indicating that any constituent identified in the

delisting verification testing is at a level higher than the delisting level allowed by

EPA in granting the petition, BMW must report the data, in writing, to EPA within

10 days of first possessing or being made aware of that data. (B) If the testing of

the waste, as required by Condition (2)(B), does not meet the delisting requirements of Condition (1), BMW must report the data, in writing, to EPA within 10

days of first possessing or being made aware of that data. (C) Based on the information described in paragraphs (6)(A) or (6)(B) and any other information received from any source, EPA will make a preliminary determination as to whether

the reported information requires that EPA take action to protect human health or

the environment. Further action may include suspending or revoking the exclusion, or other appropriate response necessary to protect human health and the

environment. (D) If EPA determines that the reported information does require

Agency action, EPA will notify the facility in writing of the action believed necessary to protect human health and the environment. The notice shall include a

statement of the proposed action and a statement providing BMW with an opportunity to present information as to why the proposed action is not necessary.

BMW shall have 10 days from the date of EPA’s notice to present such information.

(E) Following the receipt of information from BMW, as described in paragraph

(6)(D), or if no such information is received within 10 days, EPA will issue a final

written determination describing the Agency actions that are necessary to protect

human health or the environment, given the information received in accordance

with paragraphs (6)(A) or (6)(B). Any required action described in EPA’s determination shall become effective immediately, unless EPA provides otherwise.

(7) Notification Requirements: BMW must provide a one-time written notification to

any State Regulatory Agency in a State to which or through which the delisted

waste described above will be transported, at least 60 days prior to the commencement of such activities. Failure to provide such a notification will result in a

violation of the delisting conditions and a possible revocation of the decision to

delist.

*******

[FR Doc. 01–1049 Filed 2–9–01; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 20 and 22

[WT Docket No. 01–14; FCC 01–28]

2000 Biennial Regulatory Review—

Spectrum Aggregation Limits for

Commercial Mobile Radio Services

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: In this document, we open a

proceeding to reexamine the need for

Commercial Mobile Radio Services

(CMRS) spectrum aggregation limits.

Specifically, we seek comment on

whether the CMRS spectrum cap and

the cellular cross-interest rule should be

eliminated, modified, or retained, based

on the public interest standard set forth

under section 11 of the Communications

Act.

DATES: Comments are due on or before

April 13, 2001 and reply comments are

due on or before March 14, 2001.

ADDRESSES: Federal Communications

Commission, 445 12th Street, SW.,

Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Michael Rowan, Wireless

Telecommunications Bureau, at (202)

418–7240.

SUPPLEMENTARY INFORMATION: This is a

summary of the Federal

Communications Commission’s Notice

of Proposed Rulemaking (NPRM), FCC

01–28, in WT Docket No. 01–14,

adopted on January 19, 2001 and

released on January 23, 2001. The full

text of this NPRM is available for

inspection and copying during normal

Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules 9799

business hours in the FCC Reference

Center, Room CY–A257, 445 12th Street,

SW., Washington, DC 20554. The

complete text may be purchased from

the Commission’s copy contractor,

International Transcription Service,

Inc., 1231 20th Street, NW.,

Washington, DC 20037. The full text

may also be downloaded at: http://

www.fcc.gov. Alternative formats are

available to persons with disabilities by

contacting Martha Contee at (202) 418–

0260 or TTY (202) 418–2555.

Synopsis of Notice of Proposed

Rulemaking

I. Introduction

1. In this Notice of Proposed

Rulemaking (NPRM), we begin our

reexamination of the need for

Commercial Mobile Radio Services

(CMRS) spectrum aggregation limits as

part of our 2000 biennial regulatory

review of the Commission’s

telecommunications regulations.

Specifically, we are initiating our

second comprehensive review of the

two regulations that currently limit the

aggregation of broadband CMRS

spectrum: The CMRS spectrum cap and

the cellular cross-interest rule. Pursuant

to the mandate of section 11 of the

Communications Act of 1934, as

amended (Communications Act), 47

U.S.C. 161, we seek comment on

whether competitive or other

developments in CMRS markets warrant

elimination or modification of one or

both of these regulations.

II. Background

A. CMRS Spectrum Cap

2. The CMRS spectrum cap rule reads:

‘‘No licensee in the broadband PCS,

cellular, or SMR services (including all

parties under common control)

regulated as CMRS * * * shall have an

attributable interest in a total of more

than 45 MHz of licensed broadband

PCS, cellular and SMR spectrum

regulated as CMRS with significant

overlap in any geographic area, except

that in Rural Service Areas (RSAs),

* * * no licensee shall have an

attributable interest in a total of more

than 55 MHz of licensed broadband

PCS, cellular, and SMR spectrum

regulated as CMRS with significant

overlap in any RSA.’’ 47 CFR 20.6(a). No

more than 10 MHz is attributed to an

entity when calculating Specialized

Mobile Radio (SMR) spectrum under the

cap.

3. Section 20.6(d) of the Commission’s

rules provides generally that ownership

interests of 20 percent or more are

deemed attributable. Once all the

applicable CMRS spectrum attributable

to a given entity is identified, one then

determines whether the attributable

CMRS spectrum serves markets having

a ‘‘significant overlap.’’ 47 CFR 20.6(a),

(c). When a situation involves both a

PCS license and a cellular or SMR

license, a significant overlap exists

when 10 percent or more of the

population of the designated PCS

licensed service area is within the

cellular geographic service area (CGSA)

or SMR service area(s) in question.

Where only PCS licenses are involved,

however, this analysis does not apply,

and any overlap between BTA-licensed

and MTA-licensed spectrum is

considered significant.

4. In our First Biennial Review Order,

issued in September 1999 as part of the

1998 biennial review, we decided

substantially to retain the CMRS

spectrum cap (and the cellular crossinterest rule), with targeted

modifications to reflect circumstances

in rural areas and to permit passive

institutional investors to acquire greater

non-attributable interests in CMRS

carriers. See 1998 Biennial Regulatory

Review, Spectrum Aggregation Limits

for Wireless Telecommunications

Carriers, WT Docket No. 98–205, Report

and Order, 15 FCC Rcd 9219, 9249

paragraph 66 (1999) (First Biennial

Review Order). We reaffirmed the 45

MHz limit as striking the proper balance

(in non-rural areas) in providing carriers

with sufficient spectrum until we could

allocate additional amounts suitable for

the provision of CMRS, while helping

assuage the competitive consequences

of the spectrum-related barriers to entry

in today’s CMRS markets. We

concluded that a 55 MHz spectrum

ceiling in RSAs recognizes the reality

that higher concentration through

efficiency-enhancing partnering and

other arrangements is likely or

inevitable in rural areas.

B. Cellular Cross-Interest Rule

5. To the extent licensees on different

channel blocks have any degree of

overlap between their respective

CGSAs, § 22.942 of the Commission’s

rules prohibits any entity from having a

direct or indirect ownership interest of

more than 5 percent in one such

licensee when it has an attributable

interest in the other licensee. An

attributable interest is defined generally

to include an ownership interest of 20

percent or more, as well as any

controlling interest. Under the rule,

however, an entity may have noncontrolling and otherwise nonattributable direct or indirect ownership

interests of less than 20 percent in

licensees for different channel blocks in

overlapping CGSAs.

6. As part of our 1998 biennial review

of the cellular cross-interest rule, we

determined that the restriction

continued to be necessary to protect

against substantial anticompetitive

threats from common ownership

between the two cellular carriers in any

given geographic area. However,

because competition from other services

had increased on the whole since the

rule’s inception in 1991, we altered

what had been a near absolute bar

against cross-ownership by relaxing

application of the rule’s attribution

standards to the current limits under

§ 22.942.

III. Discussion

A. Section 11 Review of CMRS Spectrum

Aggregation Limits

7. In passing the Telecommunications

Act of 1996 to significantly amend the

Communications Act, Congress

anticipated that, as competition

developed, market forces would reduce

the need for regulation. Specifically, in

adopting section 11 of the

Communications Act, Congress required

the Commission, every two years, to

review all regulations that apply to ‘‘the

operations or activities of any provider

of telecommunications service’’ and to

‘‘determine whether any such regulation

is no longer necessary in the public

interest as the result of meaningful

economic competition between

providers of such service.’’ 47 U.S.C.

161(a)(1), (2). If we determine that, as

the result of competition in CMRS

markets, certain regulations applicable

to CMRS providers are no longer

necessary in the public interest, then we

‘‘shall repeal or modify’’ those

regulations per Congress’’ mandate. 47

U.S.C. 161(b).

8. To determine whether the CMRS

spectrum cap and the cellular crossinterest rule are no longer necessary in

the public interest as the result of

meaningful economic competition, we

are here soliciting detailed comments

from wireless telecommunications

carriers, consumers of their services,

and other interested parties on whether

we should retain, repeal or modify these

limits under the standards of section 11

of the Communications Act. Under

section 11, our fundamental inquiry is

whether, as a result of meaningful

economic competition among providers

of telecommunications services,

spectrum aggregation limits are no

longer necessary in the public interest,

e.g., to prevent harmful concentration of

spectrum ownership or to ensure

meaningful opportunities for broadband

CMRS market entry. In order to make

this determination, we seek comment

9800 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules

regarding what providers of

‘‘telecommunications service’’ fall

within the purview of our section 11

analysis of our spectrum aggregation

policies. What constitutes ‘‘meaningful

economic competition’’ under section

11, and to what degree have the relevant

competitive conditions changed since

our 1998 biennial review of these rules?

If meaningful competition between

providers of telecommunications

services now exists, have spectrum

aggregation limits served their purpose

and are they no longer in the public

interest? Or, are there public interest

reasons to retain spectrum aggregation

limits notwithstanding the development

of meaningful economic competition?

We ask commenters to consider

generally the relation between ‘‘public

interest’’ and ‘‘meaningful economic

competition’’ under section 11’s terms.

We note that we are incorporating by

reference all comments on the spectrum

cap that we received in our 2000 Staff

Report proceeding. See In the Matter of

the 2000 Biennial Regulatory Review,

CC Docket No. 00–175, Report, FCC 00–

456 (rel. Jan. 17, 2001) (2000 Staff

Report).

B. Reexamination and Public Interest

Determination

9. In this review under section 11, we

seek public comment and input,

including the submission of specific

market data and studies, to assist our

public interest determination of whether

the CMRS spectrum aggregation rules

are no longer necessary in the public

interest and, if they are necessary,

whether our existing spectrum limits

should be modified.

1. Development of Meaningful

Economic Competition

10. Since we last reviewed spectrum

aggregation limits in September 1999,

CMRS markets have continued to grow

in size, range of service offerings, and

the pace of technological advances. In

our Fifth Annual CMRS Competition

Report, released in August 2000, we

described considerable evidence that

the mobile telephony market has

experienced strong growth and

competitive development. See

Implementation of Section 6002(b) of

the Omnibus Budget Reconciliation Act

of 1993; Annual Report and Analysis of

Competitive Market Conditions With

Respect to Commercial Mobile Services,

Fifth Report, FCC 00–289 (rel. Aug. 18,

2000) (Fifth Annual CMRS Competition

Report). For example, we reported that

non-cellular carriers had for the first

time attracted a majority of the

industry’s total new subscribers. As a

result, cellular licensees’ market share

of mobile telephone subscribers

nationwide had dropped from 86

percent at the end of 1998 to

approximately 75 percent at the end of

1999. Concurrent with, and we believe

largely as the result of, the continued

growth of competition in the mobile

telephony market, consumers have

benefited from declining prices, rapidly

expanding coverage areas, new service

packages, and technological innovation.

11. In light of these developments in

competition, we now seek comment on

whether these regulations continue to

serve the public interest by promoting

or protecting competition in CMRS

services. Will our spectrum aggregation

limits continue to contribute to the rise

of competition and resulting benefits to

consumers, as we have found in the

past, or are they no longer necessary?

We seek comment regarding the

correlation between the number of

competitors maintained by current

spectrum aggregation limits and the

growth and maintenance of competition

that has produced the benefits to

consumers that we have observed.

12. We seek comment on whether

competitive developments since 1999

have obviated the need for limits such

as the spectrum cap to prevent

potentially harmful reconsolidation.

How valuable a role do spectrum limits

play in preventing potentially harmful

concentration versus allowing

consolidations that benefit the public

interest? In this regard, we note that

spectrum aggregation limits do not

appear to have prevented the

consolidation of carriers into

nationwide networks with the resulting

beneficial service options for

consumers.

13. We ask for comment on the

various economic relationships on

which our spectrum cap policy is based.

How do recent developments affect our

concern that limits were necessary in

order to ensure a minimum number of

competitors in any given geographic

area? Should the relevant measures of

market capacity (e.g., assigned

spectrum, subscriber shares, etc.) be

weighted differently than in the past?

What role should we continue to afford

HHI calculations or similar measures of

concentration of ownership or control,

and what inputs should we use in

calculating HHI? Should we continue to

apply the cap to all broadband PCS,

cellular, and SMR spectrum regulated as

CMRS, regardless of the use to which

the spectrum currently is dedicated; or,

should we limit application of the cap

to CMRS spectrum used for mobile

voice service? If we were to limit the

cap to mobile voice services only, how

would we further and clearly define the

included and excluded product

markets? Also in the increasingly

converging marketplace, are these

product markets truly segregable?

Moreover, how would such a policy

affect the spectrum cap’s goal to guard

against excessive accumulation of

CMRS spectrum? Also, how should we

define the relevant geographic market,

especially in light of the trend toward

nationwide footprints and affiliations?

Commenters should specifically address

whether today’s CMRS markets will

enable new entrants—both existing

carriers seeking to expand their

footprints and firms, including small

businesses, seeking to enter the market

ab initio—to have access to the limited

spectrum that is practically available

today for mobile telephone services.

14. We also seek comment on the

implications for our spectrum

aggregation limits of our authority under

section 310(d) of the Communications

Act to determine that a particular

consolidation is not in the public

interest. If we were to eliminate or relax

the spectrum cap, could we, or should

we, adopt new standards or

methodologies such as a processing

threshold that if a proposed transaction

would cause an applicant to exceed 45

MHz of covered spectrum (or some

other threshold amount), it must

provide an additional public interest

showing meeting certain criteria (e.g.,

HHI and/or other economic data

demonstrating concentration of market)?

Alternatively, would it be preferable to

establish a threshold based on the

number of competitors providing CMRS

(or CMRS mobile voice telephony) in a

geographic market? Commenters should

consider the impact of any standards

that will increase time and expense for

small businesses, which often may not

have the requisite resources for case-bycase reviews. To the extent that we

decide to eliminate the spectrum cap

and rely on the section 310(d) review

process, we note that attribution and

ownership issues could also arise

outside that process if licensees are

permitted to lease spectrum usage rights

without prior section 310(d) approval.

15. We seek comment on the

implications of other agencies’

enforcement of antitrust laws for our

spectrum aggregation limits and our

public interest review required by

section 310(d). Can we, and should we,

defer to the Department of Justice (DOJ)

in cases where it has entered into

consent decrees with merging CMRS

carriers to prevent competitive harm,

and if so, what form should such

deference take? For example, can we,

and should we, adopt an approach such

that all transfers resulting in

Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules 9801

consolidation of spectrum below a

spectrum threshold should be exempt

from section 310(d) competitive

analysis? Can we, and should we,

eschew an independent review of the

competitive implications of license

transfers that are part of mergers that are

subject to some specified level of DOJ

review, and, if so, how should we define

that level? What would be the legal and

policy implications of adopting these or

any alternative approaches? Do

spectrum aggregation limits continue to

promote other public interest goals that

stress policies such as the beneficial role

of market entry?

16. If we conclude that spectrum

aggregation limits remain necessary at

this time, we ask commenters to address

whether subsequent competitive

developments could obviate the need

for such limits and thereby enable us to

sunset these regulations. If commenters

believe that a sunset provision is

appropriate, we seek further comment

on whether it should be tied to a

specific date in the future, and how best

to predict the timing of the competitive

developments on which it would be

based. Alternatively, we seek comment

on whether a sunset should be based on

the development of specified

competitive conditions or other criteria,

in some or all markets, regardless of

when they occur.

17. We ask for comment on the

potential harms or benefits of adopting

limits other than the current 45/55 MHz

spectrum cap thresholds. For example,

assuming consolidation between

broadband PCS and cellular operators, a

55 MHz cap would still ensure at least

four broadband competitors under the

180 MHz of covered spectrum.

However, under such a limit, it is

possible that one competitor could have

significantly less spectrum than the

other three under current allocations.

Under increased thresholds, which

combinations would harm or benefit

consumers?

18. We also seek comment on whether

we should repeal the cellular crossinterest rule. The distinctions between

cellular and PCS services appear to have

decreased since our 1998 biennial

review. On the other hand, most

broadband PCS operators are still

deploying their networks and do not yet

provide facilities-based coverage

comparable to the current combined

nationwide cellular footprint. We

therefore seek comment on whether the

need for a separate cellular crossinterest rule has lessened, or whether

the cellular sector may still have the

potential to undermine the level of

CMRS competition we have seen so far.

Can we continue to make distinctions

and compare competitive differences

between ‘‘cellular carriers’’ and their

competitors, e.g., ‘‘PCS carriers’’? We

ask commenters to provide empirical

evidence and/or studies on the relative

competitive and buildout status of

cellular, SMR, and broadband PCS

carriers on a market-by-market as well

as comprehensive basis.

19. We also seek comment on whether

the cellular cross-interest rule may still

be necessary to prevent cellular carriers

from merging in rural and/or certain

other markets where there is limited or

no competition from other CMRS

providers. Could the purpose of the

cross-interest rule still be served by its

application in these circumstances?

20. Finally, we seek comment on

whether and, if so, how our spectrum

aggregation limits affect CMRS

providers’ ability to enter into and

compete in local telecommunications

markets. Since September 1999, has the

spectrum cap enhanced or impeded the

provision of wireless services as a

competitive alternative to wireline

services? How significant are the

opportunity costs of dedicating

broadband CMRS spectrum to mobile

services when other spectrum bands are

available for fixed wireless services? To

the extent that incumbent licensees

build networks using CMRS spectrum

that are targeted mainly to particular

services, are opportunities for entry and

development of competition in other

services limited in the short to medium

term?

2. Spectrum Management and Other

Regulatory Considerations

21. We must also review the CMRS

spectrum aggregation rules in light of

our spectrum management

responsibilities, pursuant to which we

issue the licenses for spectrum

necessary to provide CMRS, as well as

other regulatory considerations. We

begin by acknowledging that, relative to

demand, there is a limited amount of

spectrum available that, as a practical

matter, is suitable for the provision of

broadband CMRS within the foreseeable

future. For example, the propagation

characteristics of spectrum above

approximately 3 GHz make it generally

unsuitable for mobile use using current

technology. In addition, many bands

below 3 GHz are allocated for multiple

uses other than CMRS, including

broadcast operations, private mobile

and fixed services, and various types of

satellite operations. Moreover,

significant amounts of spectrum below

3 GHz are allocated for important

federal government uses, such as

defense, national security, law

enforcement, and air traffic control.

Because scarcity issues to some degree

affect all users of spectrum (and, indeed,

all users of any finite natural resource)

and all spectrum bands, scarcity in and

of itself is not sufficient to justify a limit

on the aggregation of spectrum.

However, significant shortages of

spectrum relative to demand raise

concerns, especially in service markets

where there are few close non-spectrum

substitutes. The scarcity of this

spectrum relative to demand is

evidenced by the increasing market

value of broadband CMRS licenses. The

Commission has found that the

particular conditions that apply to

broadband CMRS spectrum support the

use of aggregation limits in the bands

currently used for these services. In

other bands, where different conditions

prevail, we have taken a different

approach. For instance, there are several

substantial, technologically suitable

bands allocated for fixed wireless

services, and we do not impose any

aggregation limits on such spectrum.

Moreover, wireline services are for

many customers close substitutes for

such wireless services and so

aggregation of such spectrum in a small

number of licensees would not

necessarily raise competitive concerns.

22. There have been a number of

regulatory actions since the last biennial

review that may affect our decisions

here regarding CMRS spectrum

aggregation limits. For example, we

recently reconfigured the licenses

available in the broadband PCS C and F

block auction—Auction No. 35—to

better enable all carriers to acquire

additional CMRS spectrum in most

markets without triggering any CMRS

spectrum cap concerns. In addition, we

decided to exclude from spectrum

aggregation limits the 700 MHz bands

that will be auctioned early this year.

We also eliminated the separate

narrowband PCS spectrum aggregation

limit earlier last year.

23. Another significant regulatory

consideration is spectrum efficiency.

Increases in the number of competitors

and the associated demand for CMRS

spectrum are leading to increases in

spectrum efficiency. As operators seek

to increase mobile voice capacity and

deploy spectrum-intensive, advanced

wireless services such as high-speed

Internet access and mobile video

conferencing, we see the marketplace

responding with technological solutions

that are increasing the technical

capacity of wireless networks.

24. In addition, we found in the First

Biennial Review Order that bright-line

rules like the spectrum cap and cellular

cross-interest rules hold many benefits

over alternative regulatory tools. In

9802 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules

particular, we reconfirmed that the

spectrum cap would allow review of

CMRS acquisitions in an

administratively simple manner and

lend certainty to the marketplace. We

determined that bright-line rules reduce

burdens placed on both the Commission

and industry, especially small

businesses, as well as give industry

advance notice of which types of crossownership situations the Commission

would find anticompetitive. In

recognition that any bright-line test may

be over-inclusive or under-inclusive in

individual cases, we specifically

provided that parties who believed that

individualized analysis is appropriate

could always request a waiver of the

spectrum cap and/or cross-interest rule. 25. Choices about CMRS spectrum

aggregation limits appear to involve

market structure and fundamental

spectrum management issues regarding

this limited amount of spectrum. For

example, the Commission is exploring

the possible use of several frequency

bands below 3 GHz to support the

introduction of new advanced wireless

services, including third-generation (3G)

wireless systems. Accordingly, we seek

comment on our above analysis of

CMRS spectrum scarcity issues and its

implications for our decisions on CMRS

spectrum aggregation limits. 26. We seek comment on the potential

efficiency benefits or costs of our

spectrum aggregation limits. Have such

limits provided incentives to the

development and deployment of

spectrum-efficient technologies that will

better serve the public interest in the

middle and long term? Or, would such

innovation have occurred independent

of our spectrum aggregation limits? In

addition, do spectrum limits do more to

impede the efficient development of

new 3G technologies that may be

spectrum-intensive in the short term? 27. We seek comment on the extent,

if any, to which our regulations impede

beneficial economies of scale and the

introduction of innovative new

technologies and services. We seek

specific comment on how the decision

to limit carriers’ access to CMRS

spectrum affects the deployment of

next-generation services and the

migration of 2G service providers to

those services. How do aggregation

limits impact the emergence of mobile

Internet access and other data services?

We seek comment on how to promote

advanced wireless services while

simultaneously ensuring that

meaningful economic competition

continues to develop. 28. We also seek comment on how our

spectrum aggregation limits may impair

potential efficiencies for all CMRS

markets, including those within urban

areas. We noted in 1999 that up to a

point, horizontal concentration in

CMRS markets may be in the public

interest because it could allow

efficiencies and economies that would

otherwise not be achievable. In today’s

CMRS markets, would achieving such

economies be in the public interest

despite any potential increased risk of

anticompetitive consolidation? 29. In discussing the availability of

spectrum for advanced wireless

services, commenters should address

the extent to which companies’ ability

to use alternative spectrum—i.e.,

spectrum outside of the broadband PCS,

cellular and SMR bands subject to the

cap—should affect our analysis here. To

the extent that future spectrum bands

like 700 MHz are not subject to the cap,

does this lessen the need to increase the

spectrum cap by creating opportunities

for CMRS incumbents to obtain

spectrum in these bands? Or, will new

spectrum eliminate the access-tospectrum barrier to entry faced by

potential competitors, and thus lessen

the need to maintain a spectrum cap at

all?

30. Similarly, we seek comment on

how to assess the treatment of newly

allocated spectrum for spectrum cap

purposes. As a general matter, we

believe that newly available CMRSsuitable spectrum either should be

excluded from the spectrum cap or, if it

is included, that the cap should be

adjusted accordingly. We seek comment

on the factors to consider in deciding

between these two options. While we

will not be making specific decisions in

this proceeding on what, if any,

constraints ought to apply to

concentration of ownership in newly

available spectrum bands, we plan to

consider an analytical framework to

apply to such bands. 31. We also seek comment on whether

the impact of the spectrum cap on

development of advanced services could

be adequately addressed by

continuation of the waiver policy that

we adopted in the First Biennial Review

Order. Does our specific waiver process

enable carriers with a demonstrable

need for additional spectrum, especially

for advanced wireless services, to obtain

such spectrum? We request parties to

provide specific evidence and concrete

examples of the extent to which carriers’

holdings in markets approach or are at

the 45/55 MHz cap. 32. Commenters are also asked to

address whether any developments in

the last year should lead us to alter our

determination that a bright-line

approach remains preferable to

exclusive reliance on case-by-case

review under section 310(d). We seek

comment on the extent to which our

approach has benefited licensees,

including licensees that are small

businesses. Commenters are encouraged

to provide specific examples where our

aggregation limits either did or did not

provide the certainty or efficiency that

a particular marketplace transaction

required.

33. Finally, we seek specific comment

on whether we should make any

fundamental changes in rural and highcost markets, which appear not to have

seen the development of competition in

mobile wireless services to the degree

that is evident in urban areas. We seek

comment on whether increasing the

existing spectrum cap last year in rural

areas has had any impact on the

delivery of service to rural customers in

terms of prices, availability of digital

services, or other factors. Should we, at

a minimum, continue to retain the

cellular cross-interest rule until

increased PCS and other service

deployments become more firmly

established?

3. International Developments

34. We also wish to examine the

significance for our reexamination of

spectrum aggregation limits of foreign

mobile licensing policies, and

particularly the 3G licensing process

now taking place in Europe and Asia. A

recent study issued by the Organization

for Economic Cooperation and

Development has documented a global

trend in mobile licensing policy towards

increasing numbers of operators in a

given market, a trend that predates the

3G licensing process. Moreover, many

Western European countries are using

the 3G licensing process as an

opportunity to promote the

development of competitive market

structures.

35. European countries are able both

to ensure a minimum number of

competitors and to permit each provider

access to more spectrum because

substantially more suitable spectrum

has been allocated for commercial

mobile telecommunications services in

Europe than in the United States. With

the additional 140 to 145 MHz of

spectrum that most Western European

countries have allocated to licensed 3G

use, the total amount of spectrum

available for mobile telephony services

in these countries now exceeds 180

MHz, in most cases by a wide margin.

In particular, we estimate that the total

amount of spectrum available for

first-, second- and third-generation

mobile communications services in

most Western European countries is

generally about 250–300 MHz, and

ranges from a

Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules 9803

high of almost 365 MHz in the United

Kingdom to a low of about 187 MHz in

Norway. Thus, because most European

countries have allocated more total

spectrum for mobile

telecommunications services, they are

able to allow individual carriers to

acquire larger total spectrum holdings

than would be permitted under our

spectrum cap policy, while at the same

time ensuring that there are at least four,

and often more, competitors in their

markets.

36. We also note that other countries

limit the amount of spectrum operators

can acquire in the secondary market. In

the vast majority of countries, including

European Union (EU) Member States,

strict limits on trading of wireless

licenses and/or spectrum rights render a

spectrum cap largely superfluous. Apart

from the United States, only a relative

few countries, including Canada,

Australia and New Zealand, allow

spectrum licenses to be traded both in

whole and in part.

37. We generally seek comment on the

lessons to be learned from experience

internationally. In addressing these

issues, commenters should consider the

significance of the differences

summarized above, as well as the fact

that unlike our ‘‘flexible use’’ approach

in the United States, spectrum

management policies abroad generally

do not afford wireless operators the

flexibility to deploy 3G technologies on

spectrum currently licensed for 2G

services.

38. We also seek comment generally

on how international developments

relate to the question of whether to

eliminate spectrum limits to direct the

course of development in U.S. CMRS

markets. We note that most EU Member

States have already licensed 3G

spectrum or are planning to do so by the

first half of 2001 to give operators

sufficient lead time to plan for 3G

deployment. Spectrum aggregation

limits may affect U.S. development of

advanced wireless services over the

short term. We ask parties to comment

on the trade-offs that we will face in the

United States during this time. We also

seek comment on whether U.S. carriers

may require smaller amounts of total

spectrum for 2G and 3G services than

their counterparts in Europe and Asia

because our policies afford U.S. carriers

more flexibility with respect to

spectrum use and alternative means of

acquiring access to spectrum. Finally,

we seek comment on whether any of the

mechanisms other countries use to

ensure they have an adequate number of

competitors in their markets might be

adapted to the U.S. market, as an

alternative to our spectrum cap

approach.

C. Possible Modifications to the CMRS

Spectrum Cap and Cellular CrossInterest Rule

39. In the event that we do not

eliminate our spectrum aggregation

limits, we also request comment on

whether specific attributes of the CMRS

spectrum cap and cellular cross-interest

rule should be modified to allow some

of the benefits that may arise from

additional cross-ownership interests.

Commenters should also address any

possible interim modifications that

would benefit the public interest in the

event that we decide to sunset our

spectrum aggregation limits in the

future.

1. Possible Modifications to the CMRS

Spectrum Cap

40. We seek comment on aspects of

the CMRS spectrum cap that could be

modified to increase carriers’ flexibility

and promote our various public policy

objectives. To begin, we seek comment

on the effect of recent changes in CMRS

markets, particularly the emergence of

broadband PCS licensees as competitors

to cellular licensees, on the rationale for

a 10 percent population overlap

threshold. What are the public interest

benefits of increasing the threshold and

do those benefits outweigh any potential

for reduced consumer benefits from the

concentration of ownership or control of

CMRS licenses?

41. We solicit comment on whether

there is a mechanism for triggering the

application of a spectrum cap in given

geographic areas that might be superior

to our current overlap standard. We ask

for comment on the pros and cons of

adopting a simplified overlap standard

that turns on a certain allowable

percentage of overlap between licensed

service areas. For example, assuming a

10 percent threshold, one possible

approach would be a standard where a

PCS BTA-based license’s overlap with a

partitioned MTA-based license would

not come under the cap if the

population covered by the overlap were

less than 10 percent of the total

population of the PCS BTA and less

than 10 percent of the total population

of the partitioned PCS MTA. Similarly,

if we were to eliminate the cellular

cross-interest rule under such a

standard, an A-Block cellular license’s

overlap in CGSA with the CGSA of a BBlock cellular license would not trigger

the cap if the population covered by the

overlap were less than 10 percent of the

total population of the A-Block CGSA

and less than 10 percent of the total

population of the B-Block CGSA. A

variation of this standard would be to

exempt overlaps from the cap if the

population in the overlap area were less

than 10 percent of the total population

of the more populous licensed service

area. In addition, the threshold could be

set at some level other than 10 percent.

We seek comment on these and any

other possible approaches.

42. We seek comment here on

whether recent developments in the

SMR industry warrant any modification

of the special provisions for SMR

overlap analysis and calculation of

attributable spectrum. The original

justification for the maximum

attribution of 10 MHz was based on the

conclusion that SMR spectrum is not

equivalent to cellular or broadband PCS.

We seek comment on whether the

rationale for this 10 MHz limit

continues in today’s marketplace for

broadband CMRS. For example, how

have our recent auctions of SMR

spectrum affected the rationale to limit

the amount of SMR spectrum attributed

to a carrier? Do we need to clarify our

spectrum cap analysis to account for

application of the cap when these

auctioned geographic-based SMR

licenses overlap with PCS licensed

service areas? In addition, should

significant recent acquisition and

merger activity lead us to question the

assumption that SMR spectrum is

difficult to reconfigure? If we were to

revise our approach to station-defined

SMR spectrum, should we increase the

maximum attributable amount from 10

MHz to a higher figure (e.g., 15 or 20

MHz), or should we simply attribute to

each carrier the actual spectrum it has

in each market? If we were to adopt the

latter approach, how would we

determine the amount of spectrum and

define the geographic area for our

overlap analysis?

43. We also seek comment on whether

we should modify our ownership

attribution standards. Should the 20

percent general attribution standard be

modified? We seek comment on the

effect that a 40 percent attribution

standard has had on the ability of CMRS

providers to obtain capital. Have small

businesses benefited from their general

40 percent attribution standard? We also

seek comment on whether any of our

other ownership attribution criteria

should be modified. For example, are

there situations proscribed by our

attribution rules that do not pose a

threat to competition? Should we

attribute spectrum used pursuant to

potential spectrum leasing

arrangements, or to management and

joint marketing agreements?

9804 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules

2. Possible Modifications to the Cellular

Cross-Interest Rule

44. If we decide not to repeal the

cellular cross-interest rule, we seek

comment on whether we should modify

the rule so that it does not apply in

certain circumstances where other

regulations will provide adequate

safeguards. We seek comment on

whether there is a need to maintain any

cellular-specific restrictions in more

urban areas, where there is generally a

larger number of competitive choices for

consumers. Although cellular providers

still maintain large market shares in

MSAs, would cellular/cellular

combinations be more anticompetitive

than cellular/PCS or PCS/PCS

combinations if the cellular crossinterest rule is repealed in MSAs?

Commenters should focus on whether

cellular combinations would be able to

sustain prices above the competitive

level without reduction in market shares

and explain their conclusions with

specific data such as customer churn

percentages and whether these are price

driven, quality/coverage driven, or both.

45. Another possibility, given that

cellular licensees can now disaggregate

their spectrum, would be to replace the

current rule with a separate cellular

spectrum cap of 35 MHz (or some other

amount). Under the current crossinterest rule, an entity with an

attributable interest in a cellular license

cannot hold a 5 percent interest in a

disaggregated license for even 1 MHz of

spectrum on the other channel block in

an overlapping CGSA. Such a rule

change would allow increased

opportunities for partnering while

maintaining protection against the

complete consolidation of two 25 MHz

cellular carriers. We ask parties to

comment on any modifications

necessary to permit parties to

disaggregate spectrum.

46. In addition, we seek comment on

the public interest benefits and/or

harms of increasing the 5 percent

ownership interest limit in a cellular

licensee when one has a controlling or

otherwise attributable interest in the

other licensee in an overlapping CGSA.

Although the cross-interest rule

prohibits interests greater than 5

percent, our ownership disclosure

standards for wireless

telecommunications services only

require licensees to report interests

greater than 10 percent. We therefore

seek comment on whether conformity

between these two provisions would

permit the Commission more accurately

to regulate compliance with the cellular

cross-interest rule.

47. We also seek comment on whether

we should modify the divestiture

provisions related to the cellular crossinterest rule. For example, should we

revise the rule to operate similar to the

spectrum cap? In contrast to the crossinterest rule, we consider parties to have

come into compliance with the

spectrum cap once they have submitted

an application for assignment or transfer

of control of sufficient spectrum to

comply with the cap. Commenters are

asked to address the competitive and

public interest implications of

harmonizing these and any other

provisions of the two rules.

IV. Procedural Matters

A. Regulatory Flexibility Act

48. As required by the Regulatory

Flexibility Act, see 5 U.S.C. 603, the

Commission has prepared an Initial

Regulatory Flexibility Analysis (IRFA)

of the possible impact on small entities

of the proposals in the Notice of

Proposed Rulemaking. The IRFA is set

forth. Written public comments are

requested on the IRFA. These comments

must be filed in accordance with the

same filing deadlines for comments on

the NPRM, and they must have a

separate and distinct heading

designating them as responses to the

IRFA. The Commission’s Consumer

Information Bureau, Reference

Information Center, will send a copy of

this NPRM, including the IRFA, to the

Chief Counsel for Advocacy of the Small

Business Administration, in accordance

with the Regulatory Flexibility Act.

B. Ex Parte Rules

49. This is a permit-but-disclose

notice and comment rule making

proceeding. Ex parte presentations are

permitted, except during the Sunshine

Agenda period, provided they are

disclosed as provided in Commission

rules. See generally 47 CFR 1.1202,

1.1203, 1.1206.

C. Filing Procedures

50. Pursuant to applicable procedures

set forth in §§ 1.415 and 1.419 of the

Commission’s rules, interested parties

may file comments on or before April

13, 2001 and reply comments on or

before March 14, 2001. Comments and

reply comments should be filed in WT

Docket No. 01–14. All relevant and

timely filings will be considered by the

Commission before final action is taken

in this proceeding. To file formally in

this proceeding, interested parties must

file an original and four copies of each

filing. All filings must be sent to the

Commission’s Secretary, Magalie Roman

Salas, Office of the Secretary, Federal

Communications Commission, 445 12th

St., SW., Rm. TW–A325, Washington,

DC 20554, with a copy to Michael J.

Rowan, Commercial Wireless Division,

Wireless Telecommunications Bureau,

Federal Communications Commission,

445 12th St., SW., Rm. 4A–131,

Washington, DC 20554. One copy of all

filings should also be sent to the

Commission’s copy contractor.

51. Comments may also be filed using

the Commission’s Electronic Comment

Filing System (ECFS). Comments filed

through the ECFS can be sent as an

electronic file via the Internet to http:/

/www.fcc.gov/e-file/ecfs.html.

Generally, only one copy of an

electronic submission must be filed.

Parties may also submit an electronic

comment by Internet E-Mail. To obtain

filing instructions for E-Mail comments,

commenters should send an E-mail to

ecfs@fcc.gov, and should include the

following words in the body of the

message: ‘‘get form (your E-Mail

address).’’ A sample form and directions

will be sent in reply. Or you may obtain

a copy of the ASCII Electronic

Transmittal Form (FORM–ET) at http://

www.fcc.gov/e-file/email.html.

52. Comments and reply comments

will be available for public inspection

during regular business hours at the

FCC Reference Information Center, Rm.

CY–A257, at the Federal

Communications Commission, 445 12th

St., SW., Washington, DC 20554. Copies

of comments and reply comments are

available through the Commission’s

duplicating contractor: International

Transcription Service, Inc. (ITS, Inc.),

1231 20th Street, NW., Washington, DC

20037, (202) 857–3800.

V. Initial Regulatory Flexibility

Analysis

53. As required by the Regulatory

Flexibility Act (RFA), 5 U.S.C. 601 et.

seq., the Commission has prepared this

Initial Regulatory Flexibility Analysis

(IRFA) of the possible significant

economic impact on small entities of the

policies and proposals in this Notice of

Proposed Rulemaking (NPRM), WT

Docket No. 01–14. Written public

comments are requested on this IRFA.

These comments must be filed in

accordance with the same filing

deadlines for comments on the rest of

this NPRM, as set forth above, and they

must have a separate and distinct

heading designating them as responses

to the IRFA.

A. Need for, and Objectives of, the

Proposed Rules

54. As part of our biennial regulatory

review, pursuant to section 11 of the

Communications Act, we solicit

Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules 9805

comment on whether we should retain,

modify, or eliminate the commercial

mobile radio services (CMRS) spectrum

cap. We also seek comment on whether

we should retain, modify, or repeal the

cellular cross-interest rule. In asking

these questions, the NPRM looks at

recent competitive changes in CMRS

markets, reexamines the public interest

objectives that the spectrum limits are

designed to achieve, and asks whether

there are alternatives to the existing

rules that avoid any potential public

interest costs. It seeks comment on how

international trends and developments

in the marketplace since the completion

of our last biennial review in September

1999 may affect our analysis. The NPRM

discusses reliance on case-by-case

analysis of the potential competitive

effects of a proposed spectrum holding

pursuant to section 310(d) of the

Communications Act as one potential

alternative to the current rules, and it

discusses possible modifications to the

spectrum cap and cross-interest rules.

These include, among other things: (1)

increasing the amount of spectrum that

a single entity may hold in a given

geographic area beyond 45/55 MHz; (2)

modifying the spectrum cap’s 10

percent population overlap threshold

and/or attribution rules; (3) eliminating

or modifying the rule that limits

attributable Specialized Mobile Radio

(SMR) spectrum to 10 MHz; (4) altering

the cellular cross-interest rule’s

provisions as they relate to

disaggregation of spectrum and/or postlicensing divestiture; and (5) modifying

the ownership attribution standards

under both rules. Through the process

of seeking public comment and

collecting data, we hope to assess the

impact of recent competitive trends,

international developments, and

spectrum management and other

regulatory considerations.

B. Legal Basis

55. The potential actions on which

comment is sought in this NPRM would

be authorized under sections 1, 4(i), 11,

303(g), and 303(r) of the

Communications Act of 1934, as

amended, 47 U.S.C. 151, 154(i), 161,

303(g), and 303(r).

C. Description and Estimate of the Small

Entities Subject to the Rules

56. The RFA requires that an initial

regulatory flexibility analysis be

prepared for notice-and-comment

rulemaking proceedings, unless the

Agency certifies that ‘‘the rule will not,

if promulgated, have a significant

impact on a substantial number of small

entities.’’ See 5 U.S.C. 603(b)(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.’’ In addition, the term

‘‘small business’’ has the same meaning

as the term ‘‘small business concern’’

under the Small Business Act. 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. This IRFA

describes and estimates the number of

small-entity licensees that may be

affected if the proposals in this NPRM

are adopted.

57. This NPRM could result in rule

changes that, if adopted, would affect

small businesses that currently are or

may become licensees in the cellular,

broadband Personal Communications

Services (PCS) and/or SMR services.

58. Cellular Radiotelephone Service.

Neither the Commission nor the SBA

has developed a definition of small

entities applicable to cellular licensees.

Therefore, the applicable definition of

small entity is the definition under the

SBA rules applicable to radiotelephone

(wireless) companies. This provides that

a small entity is a radiotelephone

company employing no more than 1,500

persons. According to the Bureau of the

Census, only twelve radiotelephone

firms from a total of 1,178 such firms,

which operated during 1992, had 1,000

or more employees. Therefore, even if

all twelve of these firms were cellular

telephone companies, nearly all cellular

carriers were small businesses under the

SBA’s definition. In addition, we note

that there are 1,758 cellular licenses;

however, a cellular licensee may own

several licenses. In addition, according

to the most recent Telecommunications

Industry Revenue data, 808 carriers

reported that they were engaged in the

provision of either cellular service or

PCS, which are placed together in the

data. We do not have data specifying the

number of these carriers that are not

independently owned and operated or

have more than 1,500 employees, and

thus are unable at this time to estimate

with greater precision the number of

cellular service carriers that would

qualify as small business concerns

under the SBA’s definition.

Consequently, we estimate that there are

fewer than 808 small cellular service

carriers that may be affected by these

proposals, if adopted.

59. Broadband Personal

Communications Service (PCS). The

broadband PCS spectrum is divided into

six frequency blocks designated A

through F, and the Commission has held

auctions for each block. The

Commission defined ‘‘small entity’’ for

Blocks C and F as an entity that has

average gross revenues of less than $40

million in the three previous calendar

years. For Block F, an additional

classification for ‘‘very small business’’

was added and is defined as an entity

that, together with its affiliates, has

average gross revenues of not more than

$15 million for the preceding three

calendar years. These regulations

defining ‘‘small entity’’ in the context of

broadband PCS auctions have been

approved by the SBA. No small

businesses within the SBA-approved

definition bid successfully for licenses

in Blocks A and B. There were 90

winning bidders that qualified as small

entities in the Block C auctions. A total

of 93 small and very small business

bidders initially won approximately 40

percent of the 1,479 licenses for Blocks

D, E, and F. On March 23, 1999, the

Commission reauctioned 347 C, D, E,

and F Block licenses; there were 48

small business winning bidders. Based

on this information, we conclude that

the number of small broadband PCS

licensees will include the 90 winning C

Block bidders and the 93 qualifying

bidders in the D, E, and F blocks plus

the 48 winning bidders in the reauction, for a total of approximately 231

small entity PCS providers as defined by

the SBA and the Commission’s auction

rules. In addition, the Commission

anticipates that a total of 422 licenses

will be auctioned in the broadband PCS

reauction of the C & F Blocks that began

December 12, 2000. Therefore, we

conclude that the number of additional

C & F Block broadband PCS licensees

that may ultimately be affected by these

proposals could be as many as 422.

60. Specialized Mobile Radio (SMR).

Pursuant to 47 CFR 90.814(b)(1), the

Commission has defined ‘‘small

business’’ for purposes of auctioning

900 MHz SMR licenses, 800 MHz SMR

licenses for the upper 200 channels, and

800 MHz SMR licenses for the lower

230 channels on the 800 MHz band as

a firm that has had average annual gross

revenues of $15 million or less in the

three preceding calendar years. The

SBA has approved this small business

size standard for the 800 MHz and 900

MHz auctions. The auction of the 1,020

900 MHz SMR geographic area licenses

for the 900 MHz SMR band began on

December 5, 1995, and was completed

on April 15, 1996. Sixty (60) winning

bidders for geographic area licenses in

the 900 MHz SMR band qualified as

small businesses under the $15 million

size standard. The auction of the 525

800 MHz SMR geographic area licenses

for the upper 200 channels began on

October 28, 1997, and was completed on

9806 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules

December 8, 1997. Ten (10) winning

bidders for geographic area licenses for

the upper 200 channels in the 800 MHz

SMR band qualified as small businesses

under the $15 million size standard.

61. The lower 230 channels in the 800

MHz SMR band are divided between

General Category channels (the upper

150 channels) and the lower 80

channels. The auction of the 1,053 800

MHz SMR geographic area licenses

(1,050—800 MHz licenses for the

General Category channels, and 3—800

MHz licenses for the upper 200

channels from a previous auction) for

the General Category channels began on

August 16, 2000, and was completed on

September 1, 2000. At the close of the

auction, 1,030 licenses were won by

bidders. Eleven (11) winning bidders for

geographic area licenses for the General

Category channels in the 800 MHz SMR

band qualified as small businesses

under the $15 million size standard.

The auction of the 2,800 800 MHz SMR

geographic area licenses for the lower 80

channels of the 800 MHz SMR service

began on November 1, 2000, and was

completed on December 5, 2000.

Nineteen (19) winning bidders for

geographic area licenses for the lower 80

channels in the 800 MHz SMR band

qualified as small businesses under the

$15 million size standard. In addition,

there are numerous incumbent site-bysite SMR licensees on the 800 and 900

MHz bands. The Commission awards

bidding credits in auctions for

geographic area 800 MHz and 900 MHz

SMR licenses to firms that had revenues

of no more than $15 million in each of

the three previous calendar years.

D. Description of Projected Reporting,

Recordkeeping and Other Compliance

Requirements

62. This NPRM neither proposes nor

anticipates any additional reporting,

recordkeeping or other compliance

measures.

E. Steps Taken to Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

63. The RFA requires an agency to

describe any significant alternatives that

it has considered in reaching its

proposed approach, which may include

the following four alternatives (among

others): (1) The establishment of

differing compliance or reporting

requirements or timetables that take into

account the resources available to small

entities; (2) the clarification,

consolidation, or simplification of

compliance or reporting requirements

under the rule for small entities; (3) the

use of performance, rather than design,

standards; and (4) an exemption from

coverage of the rule, or any part thereof,

for small entities.

64. In our September 1999 First

Biennial Review Order, we concluded

that retention of the CMRS spectrum

cap and cellular cross-interest rule

serves the public interest. We found that

the benefits of these bright-line rules in

addressing concerns about increased

spectrum aggregation continued to make

these approaches preferable to exclusive

reliance on case-by-case review under

section 310(d). By setting bright lines for

permissible ownership interests, we

found that the rules continued to benefit

both the telecommunications industry

and subscribers, including small

businesses, by providing regulatory

certainty and facilitating more rapid

processing of transactions. Specifically,

we noted that case-by-case review is

especially expensive and timeconsuming for small businesses, which

often do not have the requisite

resources.

65. In our 2000 biennial regulatory

review pursuant to section 11, we here

reexamine our findings and

determinations in September 1999.

Since that time, there have been

international and economic

developments that have significantly

affected CMRS markets. For example,

consolidation within the CMRS industry

in an effort to create national service

footprints has tended to reduce the

number of smaller entities providing

broadband CMRS on a purely local

level. As part of this 2000 biennial

review, we seek to develop a record

regarding whether the CMRS spectrum

cap and cellular cross-interest rule

continue to make regulatory and

economic sense in CMRS markets in the

current-, mid-, and long-term. In doing

so, we generally request comment on

whether retention, modification, or

elimination of the CMRS spectrum cap

and/or cellular cross-interest rule is

appropriate with respect to small

businesses that are licensees in the

cellular, broadband PCS and/or SMR

services. We seek comment on whether

there continues to be a need for these

rules to ensure that new entrants,

including small businesses, have access

to spectrum licenses both at auction and

in the secondary market. We inquire

whether these bright-line rules continue

to create efficiencies and reduce

transaction costs for small business. We

consider the impact on small businesses

if we were to adopt alternative

approaches that rely more heavily on

case-by-case review. We also seek

specific comment on various aspects of

these rules that particularly affect small

business, such as the whether our

September 1999 decision to increase

attribution standards to 40 percent has

benefited small businesses.

F. Federal Rules That May Duplicate,

Overlap or Conflict With the Proposed

Rules

66. None.

VI. Ordering Clauses

67. Accordingly, It Is Ordered,

pursuant to the authority of sections 1,

4(i), 11, 303(g), and 303(r) of the

Communications Act of 1934, as

amended, 47 U.S.C. 151, 154(i), 161,

303(g), and 303(r), that this Notice of

Proposed Rulemaking is Adopted.

68. It Is Further Ordered that the

Commission’s Consumer Information

Bureau, Reference Information Center,

Shall Send a copy of the Notice of

Proposed Rulemaking, including the

Initial Regulatory Flexibility Analysis,

to the Chief Counsel for Advocacy of the

Small Business Administration.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 01–3521 Filed 2–9–01; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG38

Endangered and Threatened Wildlife

and Plants; Reopening of Public

Comment Period and Notice of

Availability of Draft Economic Analysis

for Proposed Critical Habitat

Determination for the Spruce-Fir Moss

Spider

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule; notice of

reopening of public comment period

and availability of draft economic

analysis.

SUMMARY: We, the U.S. Fish and

Wildlife Service, announce the

availability of the draft economic

analysis for the proposed designation of

critical habitat for the spruce-fir moss

spider (Microhexura montivaga). We

also provide notice that the public

comment period for the proposal is

reopened to allow all interested parties

to submit written comments on the

proposal and the draft economic

analysis. Comments previously

submitted during the comment period

need not be resubmitted as they will be

incorporated into the public record and