Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Rules and Regulations 9773

Dated: February 5, 2001.

James Jones,

Director, Registration Division, Office of

Pesticides Programs.

Therefore, 40 CFR chapter I is

amended as follows:

PART 180—[AMENDED]

1. The authority citation for part 180

continues to read as follows:

Authority: 21 U.S.C. 321(q), 346(a) and

371.

§ 180.301 [Amended]

2. In § 180.301, amend paragraph (b)

by revising the date ‘‘6/30/00’’ to read

‘‘12/31/01.’’

[FR Doc. 01–3622 Filed 2–9–01; 8:45 am]

BILLING CODE 6560–50–S

CORPORATION FOR NATIONAL AND

COMMUNITY SERVICE

45 CFR Part 2525

RIN 3045–AA09

AmeriCorps Education Awards: Delay

of Effective Date

AGENCY: Corporation for National and

Community Service.

ACTION: Final rule; delay of effective

date.

SUMMARY: In accordance with the

memorandum of January 20, 2001, from

the Assistant to the President and Chief

of Staff, entitled ‘‘Regulatory Review

Plan,’’ published in the Federal Register

on January 24, 2001, this action

temporarily delays for 60 days the

effective date of an amendment to the

rule entitled ‘‘AmeriCorps Education

Awards,’’ published in the Federal

Register on December 13, 2000, at 65 FR

77820. This rule concerns an individual

who successfully completes a term of

service in a national service position

(referred to as an ‘‘AmeriCorps

member’’) is eligible for an education

award. An AmeriCorps Member may

use an education award to repay

qualified student loans or to pay for

approved educational expenses. To the

extent that 5 U.S.C. section 553 applies

to this action, it is exempt from notice

and comment because it constitutes a

rule of procedure under 5 U.S.C. section

553(b)(A). Alternatively, the

Corporation’s implementation of this

action without opportunity for public

comment, effective immediately upon

publication today in the Federal

Register, is based on the good cause

exceptions in 5 U.S.C. section 553(b)(B)

and 553(d)(3) seeking public comment

is impracticable, unnecessary and

contrary to the public interest. The

temporary 60-day delay in effective date

is necessary to allow further review and

consideration of new regulations,

consistent with the Assistant to the

President’s memorandum of January 20,

2001. Given the imminence of the

effective date, seeking prior public

comment on this temporary delay

would have been impractical, as well as

contrary to the public interest in the

orderly promulgation and

implementation of regulations. The

imminence of the effective date is also

good cause for making this rule effective

immediately upon publication.

EFFECTIVE DATES: The effective date of

the AmeriCorps Education Awards,

published in the Federal Register on

December 13, 2000, at 65 FR 77820, is

delayed for 60 days, from February 12,

2001, to a new effective date of April 13,

2001.

FOR FURTHER INFORMATION CONTACT: Gary

Kowalczyk, Coordination of National

Service Programs, Corporation for

National and Community Service, (202)

606–5000, ext. 340.

Dated: February 7, 2001.

Frank R. Trinity,

Acting General Counsel.

[FR Doc. 01–3559 Filed 2–9–01; 8:45 am]

BILLING CODE 6050–$$–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 24

[WT Docket No. 97–82; FCC 01–17]

Installment Payment Financing for

Personal Communications Services

(PCS) Licensees

AGENCY: Federal Communications

Commission.

ACTION: Final rule; denial.

SUMMARY: This document denies five

petitions for reconsideration

(‘‘Petitions’’) of the Commission’s Sixth

Report and Order and Order on

Reconsideration (‘‘C/F Block Sixth

Report and Order’’) challenging a

number of the modifications to the C

and F block service and auction rules.

The Commission declines to further

revise its rules and affirms its

modifications as adopted in the C/F

Block Sixth Report and Order.

FOR FURTHER INFORMATION CONTACT:

Regina Martin, Auctions and Industry

Analysis Division, Wireless

Telecommunications Bureau, at (202)

418–0660.

SUPPLEMENTARY INFORMATION: This is a

summary of an Order on

Reconsideration (Order) in WT Docket

No. 97–82, adopted on January 16, 2001,

and released on January 18, 2001. The

complete text of the Order is available

for inspection and copying during

normal business hours in the FCC

Reference Center (Room CY–A257), 445

12th Street, SW., Washington, DC. It

may also be purchased from the

Commission’s copy contractor,

International Transcription Services,

Inc. (ITS, Inc.), 445 12th Street, SW.,

Room CY–B400, Washington, DC 20554,

(202) 314–3070. The Order is also

available on the Internet at the

Commission’s web site: http://

www.fec.gov/wtb/documents.html.

I. Introduction

1. In the Order, we address the five

petitions for reconsideration

(‘‘Petitions’’) of the Commission’s C/F

Block Sixth Report and Order, 65 FR

53624 (September 5, 2000). In that

document we modified the auction and

service rules for C and F block

broadband Personal Communications

Services (PCS) licenses. For the reasons

set forth, we deny these Petitions and

affirm our findings in the C/F Block

Sixth Report and Order.

II. Background

2. The Commission outlined the

original framework for C and F block

auctions in the 1994 Competitive

Bidding Fifth Report and Order,

establishing the C and F blocks as ‘‘setaside’’ licenses for ‘‘entrepreneurs’’ in

which eligibility would be restricted to

entities below a specified financial

threshold. See 59 FR 37566 (July 22,

1994). These provisions were consistent

with Congress’ mandate to promote

participation of small businesses, rural

telephone companies, and businesses

owned by members of minority groups

and women (collectively ‘‘designated

entities’’) in the provision of spectrumbased services. In addition, the

Commission adopted special provisions

for the C and F blocks to assist

designated entities.

3. Section 309(j)(4) of the

Communications Act directs the

Commission, in prescribing regulations

to implement the objectives of section

309(j)(3), to, inter alia: (i) Establish

performance requirements to ensure

prompt delivery of service to rural areas

and prevent warehousing of spectrum

by licensees; (ii) prescribe area

designations and bandwidth

assignments that promote an equitable

geographic distribution of licenses and

services, economic opportunity for a

wide variety of applicants, including

designated entities, and rapid

deployment of services; and (iii) ensure

9774 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Rules and Regulations

that designated entities are given the

opportunity to participate in the

provision of spectrum-based services,

and, for such purposes, consider using

bidding preferences and other

procedures.

4. The Commission has held four

entrepreneurs’ block broadband PCS

auctions to date. The initial C block

licenses were awarded through two

auctions, Auction No. 5, which ended

on May 6, 1996, and Auction No. 10,

which concluded on July 16, 1996.

Auction No. 11, the initial F block

auction, ended on January 14, 1997, and

also included D and E block licenses.

Auction No. 22, which concluded on

April 15, 1999, made available C and F

block licenses that had been returned to,

or reclaimed by, the Commission. The

inventory for Auction No. 35, which

began on December 12, 2000, includes

422 licenses covering 195 various Basic

Trading Areas (BTAs). The 422 licenses

include 312 C block 10 MHz licenses, 43

C block 15 MHz licenses, and 67 F block

10 MHz licenses.

5. On June 7, 2000, we released a

Further Notice of Proposed Rulemaking

(‘‘Further NPRM’’), 65 FR 37092 (June

13, 2000), which set forth tentative

conclusions and proposals concerning

the C and F block rules. On August 29,

2000, we released the C/F Block Sixth

Report and Order, which resolved the

issues raised in the Further NPRM and

revised the service and auction rules for

the auction of C and F block broadband

PCS licenses in furtherance of the

various goals of section 309(j) of the

Communications Act. The C/F Block

Sixth Report and Order, among a

number of other modifications to the

Commission’s rules, reconfigured the

size of C block spectrum license size;

removed the entrepreneur eligibility

restrictions (permitted ‘‘open’’ bidding)

for some, but not all, licenses available

in Auction No. 35 and in future C and

F block auctions; eliminated bidding

credits in closed bidding; and modified

the transfer restrictions for C and F

block licenses. As addressed more fully,

Petitioners challenge a number of the

modifications to the C and F block

service and auction rules adopted in the

C/F Block Sixth Report and Order.

III. Discussion

A. Reconfiguration of C Block Spectrum

License Size

6. Background. In the C/F Block Sixth

Report and Order, we reconfigured each

30 MHz C block license available in

Auction No. 35, or any subsequent

auction, into three 10 MHz C block

licenses.

7. Discussion. All five of the

Petitioners object to the Commission’s

decision to split the 30 MHz C block

licenses into three 10 MHz licenses.

Petitioners argue that a 10 MHz license

is insufficient to provide advanced

mobile services. We considered and

rejected similar arguments in the C/F

Block Sixth Report and Order. As

explained, we decline to further

reconfigure the available C block

licenses and we affirm our decision to

provide for three 10 MHz C block

licenses.

8. As the petitioners have not

provided any new rationale to justify

deviating from our conclusion in the C/

F Block Sixth Report and Order, we

decline to reconsider our decision to

divide each available 30 MHz C block

license into three 10 MHz licenses.

Historically 10 MHz has been one of the

principal license sizes used in

broadband PCS. In the C/F Block Sixth

Report and Order, we found that 10

MHz is a viable minimum license size.

Moreover, we note that our rules permit

aggregation, subject to the spectrum cap,

and a 10 MHz license allows bidders to

acquire additional spectrum in

particular markets. Further, we believe

dividing the spectrum into three 10

MHz C block licenses should promote a

wider dissemination of licenses, provide

bidders with more flexibility to adapt

their bidding strategies to meet their

business plans, and should make

licenses more affordable, especially for

entrepreneurs. As we noted in

establishing both 20 MHz and 10 MHz

licenses for wireless use in the 700 MHz

service, 10 MHz wireless licenses

‘‘should prove of interest to parties in

the record who desire spectrum to

deploy innovative wireless

technologies, including high-speed

Internet access, that do not require as

much spectrum.’’ Thus, we continue to

believe that this reconfiguration, along

with the other rule modifications

adopted in the C/F Block Sixth Report

and Order, meets the diverse needs of

both large and small carriers seeking to

participate in the next C and F block

auction. The reconfiguration ensures the

most efficient use of spectrum through

the competitive bidding process while

at the same time promoting wider

auction participation and license

distribution in accordance with the

goals of section 309(j) of the

Communications Act. Lastly, as

explained, we note that we have

retained entrepreneur eligibility

restrictions for some C block licenses to

ensure that entrepreneurs are provided

greater opportunities to acquire

spectrum to fulfill their business needs.

B. Eligibility Restrictions Under a Tiered

Approach

9. Background. In the C/F Block Sixth

Report and Order, we divided the BTAs

into two categories, ‘‘Tier 1’’ BTAs and

‘‘Tier 2’’ BTAs. Tier 1 comprises BTAs

with populations that, according to the

1990 census, are equal to or greater than

2.5 million; and Tier 2 comprises the

remaining BTAs. We decided to

establish open bidding (bidding without

entrepreneur eligibility restrictions) for

two of the three newly reconfigured 10

MHz C block licenses in Tier 1 and for

one of the three newly reconfigured 10

MHz C block licenses in Tier 2. We also

adopted open bidding for all F block

licenses available in Auction No. 35 and

in all future auctions.

10. Discussion. Tiers. Northcoast

urges the Commission to reconsider and

simplify its tiering and eligibility

restrictions by eliminating all tiering

and by allowing open bidding only for

a single 10 MHz C block license in all

markets. Northcoast asserts that, under

the new tiering rule, it will be unable to

meet its business plans because it will

not be able to competitively bid for

available C block spectrum in markets

with a population above 2.5 million. We

considered and rejected similar

arguments in the C/F Block Sixth Report

and Order. We continue to believe that

this approach is, in conjunction with

the other modifications to the

entrepreneur eligibility restrictions, the

most effective method of

accommodating the various business

plans of both small and larger carriers

and is fully consistent with the statutory

goals for competitive bidding. This

approach, in conjunction with the

changes in entrepreneur eligibility

restrictions, makes more spectrum

available for ‘‘open’’ bidding in the most

populous markets where the demand for

spectrum by existing CMRS carriers is

the greatest and the prospects of a

spectrum shortage for these carriers is

the most acute. At the same time, this

approach keeps most of the C block

spectrum (i.e. 20 MHz) closed in all but

the very largest markets, while also

retaining restricted eligibility for some

spectrum (i.e. 10 MHz) even in those

latter cases. Thus, under our new rules,

entrepreneurs will have an opportunity

to acquire additional spectrum on a setaside basis in all available C block

markets, which should assist them in

achieving their business goals and

objectives. At the same time, our new

rules also take into account the need of

many large carriers to acquire additional

spectrum. In adopting this approach, we

have also taken into account section

309(j)(3) of the Communications Act

Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Rules and Regulations 9775

which requires us to promote a variety

of objectives, including but not limited

to, the promotion of economic

opportunity and competition, and the

dissemination of licenses among a wide

variety of applicants, in order to serve

the needs of the public. We continue to

believe that ‘‘our decision to establish

two tiers with 2.5 million population

demarcation represents the most

reasonable balancing of the various

competing public interest factors that

bear on this issue.’’ For the foregoing

reasons, we affirm our decision in the C/

F Block Sixth Report and Order to

utilize a tiered approach, limiting nonentrepreneurs participation to certain

markets.

11. 30 MHz and 15 MHz C block

licenses. Alpine maintains that the

Commission, in eliminating some of the

entrepreneur eligibility restrictions,

failed to consider the 309(j)(3) statutory

objectives, particularly the objective to

avoid the excessive concentration of

licenses. Additionally, several

petitioners state that the record does not

support the Commission’s decision to

eliminate some of the entrepreneur

eligibility restrictions. These petitioners

assert that the majority of the

commenters favored maintaining the

entrepreneur eligibility restrictions. As

discussed, by eliminating some, but not

all, of the C block entrepreneur

eligibility restrictions, we give effect to,

and reasonably balance, as many of the

section 309(j) objectives as possible.

12. Section 309(j)(3) directs the

Commission to seek to promote a variety

of objectives, including economic

opportunity, competition, and the rapid

deployment of new technologies and

services by, inter alia, disseminating

licenses among a wide variety of

applicants. In certain instances, these

objectives conflict, thus requiring the

Commission to balance the competing

objectives. Section 309(j) does not

require the Commission to seek to

promote the participation of small

businesses in PCS auctions at the

expense of other enumerated 309(j)(3)

objectives nor does it give one objective

greater weight than another objective. In

balancing the 309(j)(3) objectives,

including the avoidance of the excessive

concentration of licenses, we reviewed

the record before us and have taken into

account the needs of both large and

small carriers to acquire additional

spectrum to provide services and/or to

satisfy their business plans. In the C/F

Block Sixth Report and Order, we

concluded that it was fair and

appropriate to apportion the spectrum

to accommodate the interests of large

carriers to obtain additional spectrum to

‘‘fill out’’ regional or national service

areas. At the same time, we decided to

maintain a significant set-aside of C

block spectrum for entrepreneurs. As

previously explained, section 309(j)

does not mandate the use of set-asides

or any other method to promote the

participation of small businesses in

spectrum auctions, particularly in light

of changed circumstances.

13. Three petitioners argue that the

record provides no justification for

providing large carriers with additional

spectrum. Specifically, they point to

recent general statements in news

articles where two large carriers asserted

that they have a sufficient amount of

spectrum. Therefore, petitioners argue

that the record provides no justification

for providing them with an opportunity

to acquire additional spectrum. As we

previously discussed, circumstances in

the industry have changed dramatically,

and continue to change, since the

implementation of our rules in 1994.

The introduction of wireless Internet,

advanced data, and 3G services, as well

as global competition within these

services, has created a shortage of

suitable available spectrum. The

statement of two large carriers, as

reported in two recent news articles,

does not undermine the record as a

whole, particularly where other large

carriers claim that they need additional

spectrum to provide advanced services

or to fulfill their business plans. We

believe that apportioning the spectrum

as described promotes the further

development of CMRS competition and

innovation, especially in large markets.

For these reasons, we affirm our

position in the C/F Block Sixth Report

and Order to remove the eligibility

restrictions for some, but not all, of the

available C block spectrum.

14. F block licenses. Four petitioners

requested that the Commission retain

entrepreneur eligibility requirements for

F block licenses. These petitioners argue

that the Commission failed to provide

support for eliminating the F block setaside, particularly in light of the success

of F block licensees. For instance,

Northcoast argues that since

entrepreneurs are in the process of

building out their systems and service

has not been delayed to the public, the

entrepreneur eligibility requirement

should be maintained. These petitioners

have not provided any new rationale to

justify the preservation of the F block

set-aside. We considered arguments

such as Northcoast’s when we reached

our decision in the C/F Block Sixth

Report and Order. As we stated there,

the need for additional open spectrum

that exists in the C block markets also

extends to the F block markets.

Additionally, open bidding for F block

licenses may lead to more expeditious

provision of wireless services to the

public. The C and F blocks have been

subject to different regulatory

requirements, reflecting the different

bidding and marketplace histories of the

two blocks as well as the corresponding

different equity and reliance concerns

applicable to bidders and licensees in

each of the blocks. Taking into account

the divergent history of F block, we

decided to remove the entrepreneur

eligibility restrictions and to allow open

bidding for all available F block licenses

in Auction No. 35 and in future

auctions. This determination was

informed by the fact that almost every

market with an available F block license

already has a significant 30 MHz C

block entrepreneur presence. Thus, we

found that we could modify the F block

eligibility rules while preserving the

diversity of opportunity and service that

are goals of section 309(j). For these

reasons, we affirm our position in the C/

F Block Sixth Report and Order to allow

open bidding and eliminate the F block

entrepreneur eligibility restrictions.

15. Unsold set-aside licenses. For

Auction No. 35, in the C/F Block Sixth

Report and Order, we eliminated

entrepreneur eligibility requirements for

all C block licenses that were available

but not sold in Auction No. 22. We also

decided to eliminate the set-aside for

any C and F block license that was

available, but not sold, in any

subsequent auction. RTG and OPASTCO

urge the Commission not to eliminate

entrepreneur eligibility requirements for

licenses unsold in Auction No. 22, but

rather provide entrepreneurs with one

more opportunity to bid on such

licenses on a closed basis as well as on

future unsold licenses under a set-aside

approach. We previously considered

RTG and OPASTCO’s position and

determined that closed bidding for this

spectrum will not result in the

acquisition and construction of these

licenses. The failure of certain 15 MHz

C block licenses to sell in Auction No.

22 indicates that closed bidding for

these licenses will not expeditiously

result in the acquisition and

construction of these licenses and in

service to the public. By lifting the

eligibility restrictions for these unsold

licenses, we seek to prevent additional

delays in their utilization. For these

reasons, we affirm our decision in the C/

F Block Sixth Report and Order and will

provide all bidders with an opportunity

to acquire previously unsold set-aside

licenses.

C. Competitive Bidding Design

16. Background. In the C/F Block

Sixth Report and Order, we rejected

9776 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Rules and Regulations

Nextel Communications, Inc.’s

(‘‘Nextel’’) bulk bid proposal. We

concluded that Nextel’s proposal would

exclude all but a very few competitors.

We also left to the Bureau, under its

existing delegated authority, the final

selection of a competitive bidding

design and methodology for Auction

No. 35, including the decision whether

to implement a combinatorial (package)

bidding design for the auction. On

September 6, 2000, the Bureau released

the Comment Public Notice, 65 FR

55243 (September 13, 2000), which

invited public comment on its auction

procedures for the C and F block

auction, including the proposal to adopt

a simultaneous multiple round bidding

methodology. On October 5, 2000, the

Bureau released the Procedures Public

Notice, 65 FR 75702 (December 4, 2000),

in which, inter alia, it determined to

utilize a simultaneous multiple round

bidding design for Auction No. 35.

Subsequently, on November 6, 2000,

Nextel filed a petition seeking to change

the Auction No. 35 design to allow

package bidding. The Bureau denied

Nextel’s Petition.

17. Discussion. As an alternative to

the Commission reserving at least 20

MHz of spectrum for entrepreneurs,

RTG and OPASTCO have requested that

the Commission provide entities with a

means of combinatorial bidding on the

disaggregated licenses. We reject this

alternative because, as the Bureau

previously explained in response to

Nextel’s request for combinatorial

bidding, the public interest would not

be served by implementing package

bidding for Auction No. 35.

Implementation of a package bidding

design would have necessitated a notice

and comment period due to the unique

auction and service rules applicable to

Auction No. 35. The public had ample

opportunity to request an alternative

bidding design prior to the start of

Auction No. 35. First, we sought

comment, in the Further NPRM, on

possible ways for bidders to efficiently

aggregate licenses in Auction No. 35.

The Bureau also invited public

comment on its proposal to adopt

simultaneous multiple round bidding.

No party filed comments contesting this

bidding methodology. In denying

Nextel’s Petition, the Bureau found that

establishing combinatorial bidding, after

the short-form application filing

deadline, would impose delay on

auction participants that would not be

in the public interest.

18. Moreover, the Commission has not

yet conducted an auction utilizing

combinatorial bidding due to the

complexity of implementing such a

bidding design. Although the Bureau

has adopted package bidding

procedures for the auction of the 747–

762 and 777–792 MHz bands (Auction

No. 31), the package bidding procedures

established for Auction No. 31 were not

designed with Auction No. 35 in mind.

Accordingly, absent significant

modification, such a design would have

been complex and impractical to

implement for Auction No. 35,

particularly in light of the large number

of licenses involved. Further, applicants

prepared business plans based on the

Bureau’s bidding methodology

announced in the Procedures Public

Notice. As noted, parties that need

additional spectrum have the ability to

aggregate licenses, subject to the CMRS

spectrum cap. For these reasons, we

affirm that the final selection of a

bidding design is within the Bureau’s

delegated authority and we will not

disturb the Bureau’s final selection of a

simultaneous multiple round bidding

design for Auction No. 35.

D. Bidding Credits

19. Background. In the C/F Block

Sixth Report and Order, we decided to

maintain existing small and very small

business bidding credits (15 percent and

25 percent, respectively) for licenses

won in open bidding and to eliminate

bidding credits for licenses won in

closed bidding. With respect to open

bidding, we concluded that bidding

credits of 15 and 25 percent will allow

effective competition by small

businesses. With respect to closed

bidding, we concluded that the

continued use of bidding credits in

restricted auctions would not serve its

intended purpose.

20. Discussion. Open Bidding. We

received petitions from Northcoast, RTG

and OPASTCO requesting an increase in

bidding credits in open auctions.

Northcoast argues that retaining the

existing levels of bidding credits (15 and

25 percent) in open bidding will not

permit effective competition by small

businesses. Similarly, RTG and

OPASTCO argue that the Commission

should increase bidding credits in open

auctions to ensure that entrepreneurs

have an opportunity to participate. We

considered and rejected these arguments

in the C/F Block Sixth Report and

Order. We noted that in our Specialized

Mobile Radio (SMR) 900 MHz auction—

using bidding credits of 10 percent and

15 percent—75 percent of the winning

bidders were small businesses, winning

26 percent of the licenses. Moreover, in

Auction No. 11, the auction of D, E, and

F block licenses, small and very small

business were the high bidders for 141

of the 986 D and E block licenses won

in that auction, even though bidding

credits were not available for D and E

block licenses. Thus, small businesses

have proven to be competitive in

auctions even where we have provided

for lower bidding credits than what we

have adopted for Auction No. 35.

Northcoast, RTG and OPASTCO have

not provided any new rationale to

justify increasing the level of bidding

credits for licenses subject to open

bidding. Therefore, for open licenses,

we will maintain the current level of

bidding credits for small and very small

businesses.

21. Closed Bidding. With respect to

closed bidding, four petitioners object to

the Commission’s decision to eliminate

bidding credits in closed auctions.

These petitioners argue that by

eliminating the bidding credits in closed

auctions, the Commission has violated

the congressional mandate pursuant to

section 309(j) to provide small and very

small businesses with a meaningful

opportunity to compete in spectrum

auctions. Specifically, Northcoast,

NTCA, and RTG and OPASTCO are

concerned that, without bidding credits,

small and very small businesses will be

unable to compete against

‘‘grandfathered’’ entities that are

generating millions of dollars in gross

revenues.

22. We considered and rejected this

argument in the C/F Block Sixth Report

and Order. We noted that two groups

are included among those entities

eligible to participate in the

entrepreneurs’ block auctions. One

group consists of well-capitalized new

entities with small gross revenues.

Another group consists of older

companies with small total assets and

net revenues, but high gross revenues.

As we explained, this situation creates

an anomaly because the first group, the

well-capitalized new entities, may

qualify for bidding credits, while the

second group, the older companies, may

not qualify for bidding credits. If we

were to retain bidding credits in closed

bidding, it may skew these auctions in

favor of well-capitalized new entities

that are uniquely structured to protect

large investors from attribution.

Moreover, although there may be a

number of ‘‘grandfathered’’ entities

participating in Auction No. 35, we

have found that small and very small

businesses have been previously

successful in open auctions without

bidding credits. As we are not

persuaded that small and very small

businesses will be unable to effectively

compete against ‘‘grandfathered’’

entities, and as we do not want to

undermine the ‘‘grandfather’’ exception,

we reject petitioners’ request to provide

bidding credits in closed auctions. We

Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Rules and Regulations 9777

continue to believe that small and very

small businesses will have a meaningful

opportunity to compete in Auction No.

35 and in future spectrum auctions. For

this reason, we affirm our decision in

the C/F Block Sixth Report and Order to

eliminate bidding credits in closed

auctions.

E. Transfer Requirements

23. Background. In the C/F Block

Sixth Report and Order, we modified

the transfer restrictions for C and F

block licenses. Specifically, we

concluded that C and F block spectrum

licenses won pursuant to open bidding

would not be subject to a five-year

holding and limited transfer rule. With

respect to closed bidding, we concluded

that a licensee would be allowed to

assign or transfer a license to a nonentrepreneur as soon as the licensee

completed its first construction

benchmark. Additionally, we eliminated

unjust enrichment payments for licenses

won in Auction No. 5 and Auction No.

10, but retained unjust enrichment

payments for licenses that were

acquired in Auction No. 11 and Auction

No. 22. Despite requests from

commenters, we decided not to allow a

carrier to exchange or transfer restricted

C or F block licenses during the holding

period where the carrier could

demonstrate ‘‘substantial service’’

throughout its system, but not in the

particular market that would be affected

by the transfer.

24. Discussion. On August 9, 2000,

fourteen days before adoption of the C/

F Block Sixth Report and Order,

Congress adopted legislation that grants

qualifying Alaska Native regional

corporations relief from the

entrepreneur transfer restrictions and

unjust enrichment payment

requirements. To qualify, the

corporation (or an affiliate thereof) must

be organized pursuant to the Alaska

Native Claims Settlement Act, hold a

PCS license as of the date of the

enactment of the legislation, and either

have paid for the license in full or have

complied with the payment schedules

for the license. Cook Inlet Region, Inc.

(‘‘CIRI’’) is an Alaska Native regional

corporation and meets the requirements

of the statute. Thus, this legislation

allows CIRI to transfer or assign a

license to a non-entrepreneur without

paying any unjust enrichment penalties.

Alpine requests that the Commission, in

light of this legislation, revise its

transfer rules so as to apply the same

relief afforded CIRI in a uniform manner

to all entrepreneurs. Alpine argues that

if relief from the unjust enrichment

penalty requirements is not applied to

all entrepreneurs, then this will result in

discriminatory application of the

Commission’s rule. In the alternative,

Alpine asks the Commission to amend

its rules to exclude CIRI from Auction

No. 35 if all entrepreneurs cannot be

afforded the same relief. CIRI and

VoiceStream Wireless Corporation

(‘‘VoiceStream’’) both oppose Alpine’s

request to exclude CIRI from Auction

No. 35. Although CIRI and VoiceStream

do not oppose the elimination of all

transfer restrictions for entrepreneurs,

both parties object to Alpine’s attempt

to utilize a rulemaking proceeding to

decide CIRI’s eligibility to participate in

Auction No. 35. Verizon opposes

Alpine’s request to remove all transfer

restrictions on licenses won in closed

bidding. Verizon states that, absent the

Commission’s transfer restrictions,

entrepreneurs could purchase licenses

and immediately sell the licenses to

non-entrepreneurs.

25. As stated, we have made several

modifications to the C and F block

transfer restrictions. In modifying the

transfer restrictions, we have attempted

to level the playing field for

entrepreneurs with respect to other

licensees, making it easier for

entrepreneurs to restructure their

spectrum holdings, provide additional

access to capital, and to increase

effective competition by entrepreneurs.

The relief accorded CIRI under the

statute was specifically authorized by

Congress and narrowly tailored. The

legislation, therefore, does not change

the Commission’s application of its

transfer requirements to all other

entrepreneurs. As a matter of legislative

initiative, Congress determined to

exempt companies like CIRI from the

economic consequences of the

application of the unjust enrichment

provisions. Congress could have

provided the same relief to all

applicants, but instead Congress chose

to narrowly tailor the specific relief.

Notably, Congress left intact the

statutory directive of section

309(j)(4)(E), which requires the

Commission to ‘‘require such transfer

disclosures and antitrafficking

restrictions and payment schedules as

may be necessary to prevent unjust

enrichment as a result of the methods

employed to issue licenses and

permits.’’ Therefore, Congress’

determination to create an exemption

that applies to CIRI does not show

legislative intent to exempt all

applicants from the antitrafficking and

unjust enrichment provisions. Nor does

Congress’ action negate the statutory

purpose served by the transfer

restrictions. Providing all applicants

with the specific relief provided to CIRI

would circumvent the underlying

purpose of retaining a set-aside in that

entrepreneurs could acquire a license in

a closed auction and immediately sell

the newly acquired license on the open

market at windfall prices without

paying any penalties. We think that

such a result is neither consistent with

making licenses available for closed

bidding by entrepreneurs, in furtherance

of section 309(j)(4)(D) (requiring the

Commission to ensure that small

businesses, inter alia, are given the

opportunity to participate in the

provision of spectrum-based services,

and, for such purposes, consider the use

of bidding preferences and other

procedures) nor, as indicated, with the

directives of section 309(j)(4)(E)

(requiring various measures to prevent

unjust enrichment).

26. Moreover, the legislation that

provides CIRI with this relief does not

at the same time, in and of itself, render

CIRI ineligible for entrepreneur status in

Auction No. 35, or in any future

auction. CIRI’s eligibility to participate

in Auction No. 35 as an entrepreneur is

dependent on CIRI satisfying our

entrepreneur eligibility restrictions. The

instant rulemaking proceeding is not the

proper forum to challenge congressional

legislation or to determine CIRI’s

entrepreneur status for Auction No. 35.

After the Commission by public notice

announces that long-form applications

have been accepted for filing, Alpine

and/or any other applicant, if they

choose to do so, will have an

opportunity to challenge CIRI’s

entrepreneurial status by way of a

petition to deny filed with the

Commission. For these reasons, we will

not further revise its transfer rules or

amend its rules to exclude CIRI from

Auction No. 35.

IV. Ordering Clause

27. Accordingly, it is ordered,

pursuant to sections 4(i), 5(b), 5(c)(1),

303(r), and 309(j) of the

Communications Act of 1934, as

amended, 47 U.S.C. sections 154(i),

155(b), 156(c)(1), 303(r), and 309(j), the

Petitions filed by Alpine PCS, Inc,

National Telephone Cooperative

Association, Northcoast

Communications, LLC, Office of

Advocacy of the United States Small

Business Administration, and The Rural

Telecommunications Group and the

Organization for the Promotion and

Advancement of Small

Telecommunications Companies filed in

response to the C/F Block Sixth Report

and Order are denied.

List of Subjects in 47 CFR Part 24

Personal communications services.

9778 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Rules and Regulations

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 01–3518 Filed 2–9–01; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 648

[Docket No. 980414095-8240-02; I.D.

121800D]

Fisheries of the Northeastern United

States; Dealer Reporting Requirements

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notification of termination of

the deferral of Interactive Voice

Response (IVR) System reporting

requirements for Atlantic cod and

haddock purchases; stay.

SUMMARY: In accordance with the

memorandum of January 20, 2001, from

the Assistant to the President and Chief

of Staff, entitled ‘‘Regulatory Review

Plan,’’ published in the Federal Register

on January 24, 2001, this action

temporarily stays for 60 days the

effectiveness of the notification

published in the Federal Register on

December 29, 2000, that terminated the

deferral of the IVR system reporting

requirements for Atlantic cod and

haddock purchases for dealers issued

Northeast Multispecies permits.

DATES: Effective February 12, 2001, the

rule document, Dealer Reporting

Requirements, published at 65 FR 82944

on December 29, 2000, is stayed from

January 28, 2001, until April 1, 2001.

FOR FURTHER INFORMATION CONTACT:

Kelley McGrath, (978) 281-9307 or

Gregory Power, (978) 281-9304.

SUPPLEMENTARY INFORMATION: To

effectively monitor landings of quotamanaged species on a timely basis,

NMFS issued a final rule (63 FR 52639,

October 1, 1998) requiring federally

permitted dealers to submit a weekly

summary of purchases of quotamanaged species through the IVR

system within 3 days of the end of the

reporting week. To minimize the burden

of dealer reporting requirements, the

regulations implementing the use of an

IVR system also include authorization

for the Regional Administrator,

Northeast Region, NMFS (Regional

Administrator) to defer the IVR

reporting requirements for any species if

landings are not expected to reach levels

that would cause the applicable target

exploitation rate specified in the

Fisheries Management Plan for that

species to be achieved, resulting in

specific management changes. In order

to minimize the burden of dealer

reporting requirements, the Regional

Administrator deferred IVR reporting

requirements for Atlantic mackerel,

butterfish and regulated Northeast

Multispecies, which included Atlantic

cod and haddock in a notification action

effective November 1, 1998 (63 FR

57931, October 29, 1998). The Regional

Administrator determined that in order

to collect accurate data on a real-time

basis, she needed to terminate the

deferral for Atlantic cod and haddock to

ensure that the Atlantic cod and

haddock species are maintained at

sustainable levels. Therefore, a

notification action was published on

December 29, 2000 (65 FR 82944),

terminating the deferral of the IVR

system reporting requirements for

Atlantic cod and haddock purchases.

This action is effective on January 28,

2001. However, consistent with the

guidance contained in the ‘‘Regulatory

Review Plan,’’ NMFS is staying the

effectiveness of the IVR system

reporting requirements deferral through

March 31, 2001. Therefore, the deferral

of the IVR reporting requirements for

Atlantic mackerel, butterfish and

regulated Northeast Multispecies

including Atlantic cod and haddock,

will remain in effect through March 31,

2001. The termination of the stay of the

IVR system reporting requirements for

Atlantic cod and haddock purchases is

effective April 1, 2001. All other

reporting requirements as discussed in

the December 29, 2000, notification

remain in effect.

Classification

This action is authorized by 50 CFR

part 648 and is exempt from review

under Executive Order 12866.

To the extent that 5 U.S.C. 553 applies

to this action, it is exempt from notice

and comment because it constitutes a

rule of procedure under 5 U.S.C.

553(b)(A). Alternatively, NMFS’

implementation of this rule without

opportunity for public comment is

based on the good cause exceptions in

5 U.S.C. 553(b)(B) and 553(d)(3), in that

seeking public comment is

impracticable, unnecessary and contrary

to the public interest. Given the

imminence of the effective date, seeking

prior public comment on this temporary

stay would have been impractical, as

well as contrary to the public interest in

the orderly promulgation and

implementation of regulations. Delays

in implementing the stay while seeking

public comment would have led to

confusion in the fishing industry

concerning which reporting

requirements would be required for

dealers during this interim period.

Authority: 16 U.S.C. 1801 et seq.

Dated: February 6, 2001.

Bruce Morehead,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 01–3547 Filed 2–9–01; 8:45 am]

BILLING CODE 3510–22–S