        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R6-ES-2010-0058]
        [MO 92210-0-0008]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List Brian Head Mountainsnail as Endangered or Threatened with Critical Habitat

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Brian Head mountainsnail (Oreohelix parawanensis) as endangered or threatened under the Endangered Species Act of 1973 (Act), as amended.  Based on our review, we find that the petition does not present substantial information indicating that listing the species may be warranted.  However, we ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the mountainsnail or its habitat at any time.  This information will help us monitor and encourage the conservation of this species.

          DATES:
          The finding announced in this document was made on August 17, 2010.  You may submit new information concerning this species for our consideration at any time.

          ADDRESSES:
          This finding is available on the Internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2010-0058.  Supporting information we used in preparing this finding is available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Mountain-Prairie Regional Ecological Services Office, P.O. Box 25486, Denver Federal Center, Denver, CO 80255.  Please submit any new information, materials, comments, or questions concerning this species or this finding to the above postal address.

          FOR FURTHER INFORMATION CONTACT:

          Ann Carlson, Mountain-Prairie Regional Ecological Services Office (see ADDRESSES); telephone 303-236-4264.  If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Background
        Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that a petitioned action may be warranted.  We are to base this finding on information provided in the petition and any information we may have in our files.  To the maximum extent practicable, we are to make the finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in the Federal Register.
        Our standard for “substantial information,” as defined in the Code of Federal Regulations at 50 CFR 424.14(b), with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.”  If we find that substantial information was presented, we are required to promptly commence a status review of the species, which we subsequently summarize in our 12-month finding.
        In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species.  If there is exposure to a factor and the species responds negatively, the factor may be a threat and, during the subsequent status review, we attempt to determine how significant a threat it is.  The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species may warrant listing as endangered or threatened as those terms are defined in the Act.  However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the information in the petition and our files is substantial.  The information must include evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the Act.
        Petition History

        On July 30, 2007, we received a petition dated July 24, 2007, from Forest Guardians (now WildEarth Guardians) requesting that the Service:  (1) Consider for listing all full species in our Mountain Prairie Region ranked as G1 or G1G2 by the organization NatureServe, except those that are currently listed, proposed for listing, or candidates for listing (a total of 206 species); and (2) list each species we considered as either endangered or threatened.  The petition incorporated all analysis, references, and documentation provided by NatureServe in its online database at http://www.natureserve.org/ into the petition.  However, it should be noted that no other documentation on species was provided in the petition, and the information on most species in the NatureServe database is not extensive, because the focus is on rare species.  Subsequent to the petition, NatureServe included a disclaimer on its database indicating that:  “The purpose of the conservation status ranks developed by NatureServe is to assess the relative risk facing a species and does not imply that any specific action or legal status is needed to assure its survival...Assessment by NatureServe of any species...does not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act...”.
        The petition clearly identified itself as a petition and included the identification information required at 50 CFR 424.14(a).  We sent a letter to the petitioners dated August 24, 2007, acknowledging receipt of the petition and stating that, based on preliminary review, we found no compelling evidence to support an emergency listing for any of the species covered by the petition.
        On June 18, 2008, we received a petition from WildEarth Guardians dated June 12, 2008, to emergency list 32 species including the Brian Head mountainsnail under the Administrative Procedure Act (APA) (5 U.S.C. Subchapter II) and the Act.  However, emergency listing a species is not a petitionable action under the APA or the Act, and is treated solely as a petition to list a species under the Act.  Of those 32 species, 11 had been included in the July 24, 2007, petition for listing on a non-emergency basis.  In a letter dated July 25, 2008, we stated that the information provided in both the 2007 and 2008 petitions and in our files did not indicate that any of the 11 species were at significant risk of well-being, and in need of temporary protections under section 4(b)(7) of the Act (i.e. emergency listing).

        We subsequently published an initial 90-day finding for 165 of the 206 petitioned species on February 5, 2009, concluding that the petition did not present substantial information indicating that listing of those species may be warranted (74 FR 6122).  That finding included the Brian Head mountainsnail in a table of species by category, and mistakenly cited it as fitting into “Category A,” meaning that no information was provided.  The Brian Head mountainsnail should have been in “Category C,” meaning that some information on the species was provided, but that information was not substantial.
        In response to a January 7, 2010, complaint from WildEarth Guardians, we agreed, under a June 28, 2010, stipulated settlement agreement, to reassess the petition with respect to the Brian Head mountainsnail, to specifically explain a review of any literature readily available from NatureServe and in our files at the time the petition was submitted, and to issue a new 90-day finding.  This finding meets the terms included in the settlement agreement and addresses the petition.
        Species Information

        The Brian Head mountainsnail is reported from Iron County, Utah.  The species exists as a localized population at a rock slide on the southwest slope of Brian Head Peak, above timberline at approximately 3,350 meters (11,000 feet) (Oliver and Bosworth 2002, p. 451).  The rock slide is located within a mountain shrub habitat type that is the focus of conservation by the State of Utah (Gorrell et al. 2005, p. K-11).
        Prior to 2002, one empty shell had been found by Clarke (1993).  In 2002, the first living examples (18 individuals) of the species were documented at 4 of 14 small survey stations within an area of about 11 hectares (27 acres), and the species was noted as the most common gastropod at the stations where it was detected (Oliver and Bosworth 2002, p. 452).  The researchers also collected 49 empty shells and 5 embryos at 7 of the 14 survey sites (Oliver and Bosworth 2002, p. 452).  This data appears to represent the best and only information on Brian Head mountainsnail abundance.  Based on the information presented above, it appears that the information presented in NatureServe concerning occurrence records may be erroneous in stating that the first live specimens were found in 1998, and that Oliver and Bosworth (2002) found 37 specimens.
        Brian Head mountainsnail population trends are unknown.  Information in NatureServe indicated that the species is stable in the short term, that few immediate threats exist, and that the long-term trend may be stable.  The high-elevation (at or above timberline) and barren nature (rock slides) of the species' habitat tend to provide it with relatively good protection from potential threats such as timber harvest, development, and other anthropogenic activities (Oliver and Bosworth 2002, p. 453).
        Evaluation of Information for this Finding
        Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants.  A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
        (A) The present or threatened destruction, modification, or curtailment of its habitat or range;
        (B) Overutilization for commercial, recreational, scientific, or educational purposes;
        (C) Disease or predation;
        (D) The inadequacy of existing regulatory mechanisms; or
        (E) Other natural or manmade factors affecting its continued existence.
        In making this 90-day finding, we evaluated whether information regarding the factors affecting the Brian Head mountainsnail, as presented in the petition, may reasonably constitute threats that may be negatively impacting the species, thereby indicating that the petitioned action may be warranted.  We had no information in our files on the species.  Our evaluation of the information from the petition is presented below.

        The petitioners presented two tables that collectively presented 206 species for consideration for listing under the Act, including the Brian Head mountainsnail, and requested that the Service incorporate analyses, references, and documentation provided by NatureServe in its online database (http://www.natureserve.org/) into the petition.  We accessed the NatureServe database on August 10, 2007, saved a hardcopy of the Brian Head mountainsnail file, and fully evaluated this information, including references cited, during our review.
        For the Brian Head mountainsnail, the NatureServe database had a “Local Programs” link to the website of the Utah Department of Natural Resources (UDNR), Division of Wildlife Resources.  We reviewed the information, assertions, and opinions of the State program provided on that site because that program has primary management responsibility for non-federally listed species.
        We followed regulations at 50 CFR 424.14(b) in evaluating the information presented in the petition.  Paragraph (b)(1) of that section provides that the Service must consider whether the petition has presented substantial information indicating to a reasonable person that the petitioned action may be warranted.  Paragraph (b)(2) requires us to consider whether the petition provides a detailed narrative justification describing past and present numbers and distribution of the species, and any threats faced by the species.  We must also consider whether the petition provides appropriate supporting documentation—references, publications, reports, or letters from authorities, and maps.
        A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range.
        Ski resort operations exist to the west and northwest of Brian Head mountainsnail habitat. However, according to Oliver and Bosworth (2002, p. 453), the operation of the ski resort does not appear to provide a threat to the species or its habitat.  No information was presented in the petition to indicate that expansions of the ski resort are planned.
        An unpaved road exists on the south side of Brian Head Peak that extends to the summit (Oliver and Bosworth 2002, p. 453), but no information was presented in the petition to indicate that this road affects the Brian Head mountainsnail or its habitat.  NatureServe states that hikers and mountain bikers utilize the area and, therefore, are a potential threat, but NatureServe provides no indication of whether Brian Head mountainsnail sites are being impacted; it is unlikely that these activities are occurring on rock slides, which constitute habitat for the snail.

        Grazing is listed as a general threat to mountain shrub habitat by the State of Utah (Gorrell et al. 2005, pp. 6-67 and K-11), and domestic sheep have been noted 10 kilometers (6 miles) away (Oliver and Bosworth 2002, p. 453).  No information was presented in the petition indicating that grazing may be negatively affecting the rock habitat inhabited by the Brian Head mountainsnail.

        On the basis of a review of the information referenced by the petition related to the specific potential threats it identifies, we find that there is not substantial information to reasonably suggest that these factors may be threats to the species such that listing may be warranted.  Consequently, we have determined that the petition, including references cited in NatureServe that were readily available, does not contain substantial information to indicate that the present or threatened destruction, modification, or curtailment of the species' habitat or range is a threat to the Brian Head mountainsnail.
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes.
        Rock collectors, who gain access via the unpaved road on the south side of Brian Head Peak, have been encountered near Brian Head mountainsnail habitat (Oliver and Bosworth 2002, p. 453); however, no information was presented in the petition indicating that this activity may be affecting the species or its habitat.
        On a basis of a review of the information referenced by the petition related to the specific potential threats identified in the petition, we find that there is not substantial information to reasonably suggest that these factors may be threats to the species such that listing may be warranted.  Consequently, we have determined that the petition, including references cited in NatureServe that were readily available, does not contain substantial information to indicate that overutilization for commercial, recreational, scientific, or educational purposes is a threat to the Brian Head mountainsnail.
        C. Disease or Predation.
        We have determined that the petition, including references cited in NatureServe that were readily available, does not contain any information concerning threats to the Brian Head mountainsnail from disease or predation.  Therefore, we find that the petition does not present substantial information that either disease or predation is a threat to the species.
        D. Inadequacy of Existing Regulatory Mechanisms.
        The petition discusses the lack of protection under the Act for the species, stating that unless a species is listed as endangered or threatened under the Act, it receives no protections from the statute.  The petition provides no information addressing any other State or Federal regulations, and no information about the inadequacy of existing regulatory mechanisms.
        The petitioner's claim that we could afford more protection to the species if it was listed under the Act does not provide substantial information that the existing regulatory mechanisms are inadequate.  As the petitioner acknowledges, under 16 U.S.C. 1533(b)(1)(A), we must reach our determination solely on the basis of the best scientific and commercial data available.  The petition presents no specific information related to other Federal, State, or local government regulatory mechanisms that may exist to provide regulatory protections for the species or its habitat, other than the State of Utah Comprehensive Wildlife Conservation Strategy.  Further, the petition provides no information to suggest that regulatory mechanisms may be inadequate.

        Brian Head mountainsnail habitat is within the Dixie National Forest, and, therefore, is afforded Federal environmental and conservation considerations required by the National Forest Management Act (16 U.S.C. 1600 et seq.) and the National Environmental Policy Act (42 U.S.C. 4321 et seq.).  The State of Utah lists it as a Species of Concern (Utah Department of Natural Resources (UDNR) 2007, p. 7), and follows its Comprehensive Wildlife Conservation Strategy (Gorrell et al. 2005, pp. 6-67, K-11) in implementing management and conservation actions specifically for the Brian Head mountainsnail.  Further, the high-elevation and barren nature of the species' habitat tends to provide it with relatively good protection from otherwise potential threats such as timber harvest, development, and other anthropogenic activities (Oliver and Bosworth 2002, p. 453).
        We have determined that the petition, including references cited in NatureServe that were readily available, does not contain substantial information to indicate that the inadequacy of existing regulatory mechanisms is a threat to the Brian Head mountainsnail.
        E. Other Natural or Manmade Factors Affecting the Species' Continued Existence.
        The UDNR website page for the Brian Head mountainsnail indicated that because the species occurs as a single, localized population, it is susceptible to catastrophic events (UDNR website, p. 1).  However, in order to determine that substantial information exists to indicate that a species may be endangered or threatened, we must determine that the species may be subject to threats (such as drought, flood, habitat destruction, pollution, or exotic species).  Threats may be based on environmental, biological, or anthropogenic factors.  The petition does not present any substantial information on threats to the Brian Head mountainsnail.
        When determining whether a species may warrant listing under the Act, it is important to distinguish between the presence of threats, either now or in the foreseeable future, and the susceptibility of a species to those threats, in order to determine whether those threats may likely impact the species and potentially cause it to be in danger of extinction now or in the foreseeable future.  The Brian Head mountainsnail may be a naturally rare species.  Although rare species may be vulnerable to single event occurrences, it is important to have information on how likely the occurrence of such an event may be, whether the specific event might impact the species, what form that impact would take and by what mechanism (i.e., what specific life-history function, habitat requirement, or other need of the species might be impacted and how), and whether the possible impact would likely result in a significant threat to the species (i.e., to what extent might the event have a negative impact).  Available information should be specific to the species and should reasonably suggest that operative threats will act on the species to the point that the species may warrant protection under the Act.  Statements about a generalized threat (especially within a general area and not within the species' habitat) do not constitute substantial information that listing may be warranted.  General stochastic events such as natural catastrophes do not necessarily threaten a species simply because that species is rare.
        Information on a species' rarity is relevant to the conservation status of a species.  Generally, a species that has a geographically restricted range is likely to be more susceptible to environmental threats (e.g., fire, flood, drought, human land use), if they occur, than a species that is more widespread.  A single event could affect a larger total percentage of the range of a rare species than of a widespread species.  However, for the Brian Head mountainsnail, we do not have substantial information regarding whether any environmental or anthropogenic threats are negatively affecting the species or are likely to do so in the foreseeable future.  Stochastic events (e.g., catastrophic fire and flood) are unpredictable by nature, but can be indicated by historic records or climate predictions.  The fact that a rare species is potentially vulnerable to stochastic processes does not necessarily mean that it is reasonably likely to experience, or have its status affected by, a given event within the timescales that are meaningful under the Act.

        The petition provides no information to indicate that the range or abundance of the Brian Head mountainsnail has been significantly curtailed.  Therefore, we do not know if the species has always been rare, or if it was once more widespread.  Many features of a species' biology, ecology, and habitat, such as its life history, population structure, geographic location, or characteristics of its local landscape, will modify its vulnerability to any potential threat.  Whether a rare species is affected by environmental or biological factors, and the magnitude of the effect of these factors on the species' ability to persist into the foreseeable future, is species- and context-specific.  The petition does not contain information about the biology and ecology of the species that would indicate that there may be any substantial genetic or demographic impacts to the Brian Head mountainsnail based on other natural or manmade factors affecting the species' continued existence.
        We recognize that many of the species contained within the NatureServe database have limited distribution or small population size, but these two factors alone (i.e., rarity), without additional information regarding threats, do not meet the substantial information threshold indicating that the species may warrant listing.  In the absence of information identifying threats to the species, and linking those threats to the rarity of the species, we do not consider rarity to be a threat.
        We have determined that the petition, including references cited in NatureServe that were readily available, does not present substantial information that rarity, or any other natural or manmade factors are a threat to the Brian Head mountainsnail.
        Finding
        We reviewed and evaluated information cited in the petition that was readily available.  We had no information available in our files on the species.  On the basis of our review under section 4(b)(3)(A) of the Act, we have determined that the petition does not present substantial scientific or commercial information indicating that listing may be warranted for the Brian Head mountainsnail.

        Although we will not commence a status review in response to the petition, we will continue to accept information and materials regarding the Brian Head mountainsnail at our Mountain-Prairie Region Ecological Services Office (see ADDRESSES).
        References Cited

        A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Mountain-Prairie Region Ecological Services Office (see ADDRESSES).
        Authors

        The primary authors of this document are the staff members of the Mountain-Prairie Region Ecological Services Office (see ADDRESSES).
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: August 4, 2010.
          Wendi Weber,
          Acting Director, Fish and Wildlife Service.

      [FR Doc.  2010-20099 Filed 8-16-10; 8:45 am]
      BILLING CODE 4310-55-S


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 30
        [GN Docket No. 14-177; FCC 18-110]
        Use of Spectrum Bands Above 24 GHz for Mobile Radio Services

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:

          In this document, a Fourth Notice of Proposed Rulemaking (4th FNPRM) invites members of the public to comment on how best to transition existing spectrum holdings in the 39 GHz band to the new flexible-use band plan, and on using an incentive auction mechanism. The Federal Communications Commission (Commission or FCC) proposes to modify the 39 GHz, Upper 37 GHz, and 47 GHz band plans from 200 megahertz to 100 megahertz channels to facilitate the auctioning of all three bands at the same time. The Commission also proposes an incentive auction to reduce encumbrances and create contiguous blocks of spectrum through the 39 GHz and Upper 37 GHz bands. These proposals will promote the efficient use of this spectrum by incumbents and new licensees.

          DATES:
          Comments are due on or before September 17, 2018, and reply comments are due on or before October 8, 2018.

          ADDRESSES:
          You may submit comments, identified by GN Docket No. 14-177, by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Federal Communications Commission's website: https://www.fcc.gov/ecfs/. Follow the instructions for submitting comments.
          • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov, phone: 202-418-0530 or TTY: 202-418-0432.

          For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:

          Erik Salovaara, Wireless Telecommunications Bureau, Auctions and Spectrum Access Division, (202) 418-0660, Erik.Salovaara@fcc.gov or Simon Banyai, Wireless Telecommunications Bureau, Broadband Division, (202) 418-1443, Simon.Banyai@fcc.gov.

        SUPPLEMENTARY INFORMATION:

        This is a summary of the Commission's 4th Further Notice of Proposed Rulemaking (4th FNPRM), GN Docket No. 14-177, FCC 18-110, adopted on August 2, 2018, and released on August 3, 2018. The complete text of this document is available for public inspection and copying from 8 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text is also available on the Commission's website at http://wireless.fcc.gov, or by using the search function on the ECFS web page at http://www.fcc.gov/cgb/ecfs/. Alternative formats are available to persons with disabilities by sending an email to fcc504@fcc.gov or by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).
        Comment Filing Procedures
        Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
        • Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https://www.fcc.gov/ecfs/filings. Filers should follow the instructions provided on the website for submitting comments. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket number, GN Docket No. 14-177.
        • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
        Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
        • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
        • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Dr., Annapolis Junction, Annapolis, MD 20701.
        • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

          People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 888-835-5322 (tty).
        Ex Parte Rules—Permit-But-Disclose
        Pursuant to § 1.1200(a) of the Commission's rules, this 4th FNPRM shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
        Initial Regulatory Flexibility Analysis

        As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the attached 4th FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments as specified in the 4th FNPRM. The Commission will send a copy of this 4th FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the 4th FNPRM and IRFA (or summaries thereof) will be published in the Federal Register.
        Paperwork Reduction Act
        The 4th FNPRM seeks comment on potential new or revised information collection requirements. If the Commission adopts any new or revised information collection requirements, the Commission will publish a notice in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
        Synopsis
        I. Band Plan
        1. We propose to modify the 39 GHz band plan from seven 200 megahertz channels to fourteen 100 megahertz channels. This change should better accommodate the repacking of incumbents, which in the vast majority of cases, hold two non-contiguous 50 megahertz license blocks for each original paired license (now unpaired). Given the natural fit between incumbents' existing 100 megahertz holdings and the proposed 100 megahertz channels, the resulting realignment process for incumbents would be less complex than using 200 megahertz channels, because it would result in far fewer partially-filled channels. This change therefore would further our goals of maximizing efficient use of this band and allowing this spectrum to be put to use as soon as possible.
        2. Further, changing the band plan from 200 megahertz channels to 100 megahertz channels should not limit this spectrum's potential use for 5G services. The 100 megahertz channels are consistent with 3GPP standards, and licensees can aggregate to larger channel sizes (such as 200 megahertz, 300 megahertz, etc.), should they prefer to do so. Given that 100 megahertz is the baseline to provide 5G services, the Commission has adopted 100 megahertz channels for other UMFUS bands, including the 24 GHz band and Lower 37 GHz (37.0-37.6) band, and we have proposed to adopt 100 megahertz channels for the 42 GHz band. Adopting 100 megahertz channels in the 39 GHz band is consistent with our approach in other mmW spectrum bands to support 5G services.
        3. We similarly propose to modify the band plan in the Upper 37 GHz band (37.6-38.6 GHz) from 200 megahertz to 100 megahertz channels. The Upper 37 GHz band is adjacent to the 39 GHz band, and both bands are under the same licensing framework. In aligning the regulatory regimes of these bands—including implementing the same service rules and an operability requirement—the Commission has effectively treated the two bands as one contiguous 2,400 megahertz band of spectrum. We further note that a difference in channel size between the two bands could create strategic challenges and impede bidding flexibility should the Commission auction the two bands together.1

            1 With respect to auctioning the Upper 37 GHz band, we note that the Spectrum Frontiers 3rd FNPRM is seeking comment on how best to accommodate coordination zones in the 37 GHz band for future Federal operations at a limited number of additional sites, and whether the coordination zones previously established in Section 30.205 might be reduced to better accommodate nearby non-Federal operations without adversely impacting Federal operations at those sites. See Spectrum Frontiers 3rd FNPRM at 30, para. 74; Spectrum Frontiers R&O, 31 FCC Rcd at 8070-71, para. 149.

        4. We also propose to modify the band plan for the portion of the 47 GHz band licensed under the UMFUS rules, 47.2-48.2 GHz (47 GHz band), from 200 to 100 megahertz channels. Modifying the band plan for the 47 GHz band to 100 megahertz blocks would provide consistency across the remaining UMFUS bands not yet designated for auction, and licensees can aggregate spectrum licenses, should they desire larger bandwidth. If we auction the 47 GHz band at the same time as we auction the 39 GHz and Upper 37 GHz bands, should all band plans be consistent 100 megahertz blocks?
        5. We seek comment on these proposals. Commenters proposing alternative band plans, including retaining the current 200 megahertz channels, should specify the benefits of such a plan, particularly with respect to how it would further our goal of making contiguous spectrum blocks available for both incumbents and new entrants.
        II. Reducing Encumbrances in the 39 GHz Band
        A. An Incentive Auction
        6. We propose to reconfigure and auction together licenses for all the available spectrum in the Upper 37 GHz and 39 GHz bands using an incentive auction. We propose to run a clock auction, in which incumbents and others may participate, to set both the price of new licenses and the amounts for which incumbents will relinquish their spectrum usage rights. This clock auction would simultaneously serve as the reverse and forward components of the incentive auction. At the end of the auction, participating incumbent licensees would receive an incentive payment based on their cancelled incumbent licenses. The amount of the incentive payment could be used as a credit toward the licensees' winning bids for any new licenses in any of the bands offered in the auction. Because the Commission has not previously conducted an incentive auction in this way, we walk through each step in turn.
        7. As an initial matter, we propose to use a two-phase auction procedure. In the first phase, participants would bid to win generic spectrum blocks using an ascending clock auction that would determine a uniform price in each PEA—this encompasses the simultaneous forward-and-reverse auction. The second phase would assign specific-frequency licenses by PEA that would aim to ensure contiguity within each PEA. Because unencumbered spectrum blocks in the Upper 37 GHz and 39 GHz bands can be treated as largely interchangeable within a PEA, we propose to offer these blocks as one category of generic blocks in a clock auction. We expect that using a clock auction format with bidding for generic blocks followed by an assignment phase will speed up the auction considerably relative to a typical FCC simultaneous multiple-round auction.
        8. Specifically, we propose to use a clock auction design with rules similar to those used for the forward auction in the broadcast incentive auction and the planned 24 GHz auction. Our proposed clock auction format would proceed in a series of rounds, with bidding being conducted simultaneously for all generic spectrum blocks available in the auction. During the clock phase, the auction would announce prices for generic blocks in each PEA, and qualified bidders would submit quantity bids for the number of blocks they seek in the PEA at that clock price. Bidding rounds would be open for predetermined periods of time, during which bidders would indicate their demands for blocks at the clock prices associated with the current round. Bidders would be subject to activity and eligibility rules that govern the pace at which they participate in the auction. In each PEA, the clock price for licenses would increase from round to round if bidders indicate total demand that exceeds the number of blocks available in the category. Bidders would be held to their bids, as in the forward phase of the broadcast incentive auction, with the system only allowing a bidder to reduce demand if aggregate demand would not fall below the available supply of blocks in that PEA. The clock rounds would continue until, for all generic blocks in all geographic areas, the number of blocks demanded does not exceed the supply of available blocks. At that point, those bidders indicating demand for a block in a category at the final clock phase price would be deemed winning bidders.
        9. Next, winning bidders from the clock phase would have an opportunity to submit sealed bids by PEA for particular frequency blocks in a separate assignment phase. We propose that this assignment phase be voluntary: Winning bidders need not bid in the assignment phase. Regardless of its participation in the assignment phase, the assignment phase would aim to assign contiguous frequency blocks within a PEA to a bidder that wins multiple blocks.
        10. To encourage participation in the reverse auction, we propose to offer incumbents an incentive payment—using what we term here a “voucher”—in exchange for the cancellation of certain incumbent licenses at the end of the auction. Each voucher would have a dollar value equal to the final clock phase price (for a single generic block under the new band plan) in the PEA times the ratio of the incumbent's MHz-pops to the MHz-pops in a full generic block. We note that, by this definition, a participating incumbent licensee with a license for 100 megahertz of unencumbered spectrum in a PEA could receive a voucher precisely equal to the cost of paying a winning bid for a license for the same spectrum in the forward auction. Accordingly, participation in the clock auction by incumbent licensees will simultaneously be participation in the forward and reverse auction: The bids for new blocks in the forward auction automatically set the price of vouchers that participating incumbent licensees may receive as vouchers in the reverse auction. As the auction proceeds, the incumbent licensee can elect whether to pursue new licenses by placing new bids in the forward auction or to accept the voucher by requesting a reduction in its demand. Thus, the auction to determine the amount of the winning bid for the new blocks also serves as the reverse auction that determines the incentive payment a licensee would receive for voluntarily relinquishing spectrum usage rights.

        11. Although incumbent licensees bidding in the auction would be free to request a reduction in their demand at any time during the auction based on their expectations regarding the value of their vouchers, the Commission itself would not process vouchers until after the clock auction is over. Provided that the total auction proceeds exceed the total incentive payments to be shared with licensees relinquishing spectrum usage rights, we can close the incentive auction regardless of the proceeds or relinquishments in a particular PEA. Then, the Commission would process vouchers for each incumbent licensee in each PEA in two steps, depending on whether all the spectrum made available in the reverse auction was needed for the forward auction. First, the Commission would determine whether demand at the end of the forward auction equaled supply in any given PEA; in those PEAs, the Commission would cancel the participating incumbents' licenses and make payments based on the vouchers.2

            2 For example, if an incumbent licensee had 150 megahertz of pre-auction spectrum throughout a PEA before the clock auction and won bids for two 100-megahertz blocks at $10,000 a block in a PEA where demand equaled supply at the end of the clock auction, that licensee's pre-auction spectrum licenses would be cancelled, it would receive a voucher of $15,000 (1.5 × $10,000) and it would owe $20,000 for the two winning bids (i.e., it would be required to pay $5,000 net).

        12. In the event that demand by bidders in the forward auction in a PEA is less than the total supply of blocks offered, we need to address how to prioritize the blocks supplied by incumbent licensees relative to the supply of blocks that are held by the FCC in order to determine whether all incumbent-supplied blocks can be relinquished. That is, if bidders are interested in obtaining fewer new licenses than the total number of available blocks, which block or blocks will remain unsold—those partial or full blocks that an incumbent wishes to relinquish or those held by the FCC? For example, we could attempt to minimize payments to incumbent licensees by first satisfying demand with FCC-held blocks, and then, to the extent possible, with incumbent-offered blocks. If only some incumbent-held blocks can be used to satisfy demand, how should we prioritize among incumbent-held blocks? Should we use a pseudo-random number to break such ties, or should we prioritize blocks offered by incumbents in a different manner, such as allowing any incumbents with partial-PEA spectrum usage rights to relinquish before holders of full-PEA rights, so as to result in a repacked spectrum blocks that are more consistent with the new band plan? Alternatively, if we prioritized the reconfiguration of the band by first satisfying demand with incumbent-held supply, how should we prioritize which incumbent-held blocks to supply first? We note that, in situations where the demand for blocks does not exceed the total supply of blocks, the final clock phase price, at which incentive payments will be calculated, is likely to be equal to the minimum opening bid.
        13. As a further encouragement for participation in the auction, we propose to condition bidding for new licenses in the auction on incumbents' offering their existing spectrum usage rights in the auction. In other words, an incumbent licensee seeking new licenses in the forward auction must be a participant in the simultaneous reverse auction. Such a requirement would ensure that incumbent licensees are not given a one-way option—purchasing new unencumbered spectrum at auction while keeping a different set of blocks encumbered and thus unavailable for an efficient auction.
        14. One advantage of this approach is it maximizes the ability of incumbent licensees to maintain and consolidate their holdings (or to rationalize their holdings by relinquishing spectrum usage rights in some areas to acquire rights in other areas) while jointly maximizing the amount of clear, unencumbered spectrum for auction. Such an incentive auction appears to be the most efficient path forward to rationalize the Upper 37 GHz and 39 GHz bands for mobile 5G and high-speed fixed wireless service. It promotes a rapid transition of the currently fragmented band while at the same time respecting incumbent spectrum rights and providing opportunities for entry into the band by other wireless providers. We seek comment on these proposals and on alternative approaches to conducting, in a timely manner, an auction of licenses in the Upper 37 GHz and 39 GHz bands. We also seek comment on additional incentives we could provide for incumbent licensees to participate in the reverse auction.
        15. A potential concern with the proposed auction is that incumbents with vouchers may have an incentive to engage in insincere bidding in markets where they want to be net suppliers of spectrum to inflate the value of their voucher payments. We seek comment on the validity of such concerns. We also note that these concerns should be mitigated by our no withdrawal rule, which we used in the forward phase of the broadcast incentive auction. We seek comment on any other potential safeguards that could be implemented against insincere bidding incentives or other strategic behavior in the proposed incentive auction.
        16. Another potential concern is the interaction of vouchers and bidding credits. For example, given existing rural and small business bidding credits, bidders for new licenses may be eligible to receive up to a 25 percent credit toward their winning bid if they qualify. If that bidding credit were applied across their gross winning bids, an incumbent licensee could feasibly retain its existing holdings in the auction while simultaneously receiving an incentive payment.3
           To avoid that result, we propose to limit the application of bidding credits to cash payments for winning bids in the auction, after the winning bidder has used any vouchers it has to satisfy winning bids. We seek comment on this proposal and any other scenarios where the use of an incentive auction with vouchers may create arbitrage opportunities given our normal bidding rules. For example, should we address winning bidders that default on their payments differently here?

            3 For example, if a small business incumbent with one 100 megahertz PEA license before the auction won a single license in that same PEA for $10,000, its voucher would be $10,000 while its required payment on the one purchased license would be $7,500 ($10,000 times 75 percent).

        17. Given that non-incumbent licensees also may qualify for bidding credits, how should we address the theoretical possibility that auction proceeds could total less than the incentive payments owed to incumbents? Should we adopt a rule that would preclude the auction from closing in the event proceeds from winning bids will be insufficient, analogous to the final stage rule we adopted in the broadcast television spectrum incentive auction? Alternatively, should we adopt a rule to recalculate the amount of incentive payments, so that the payments do not exceed the available auction proceeds? We seek comment on these potential possibilities and how to address them. Are there other particular scenarios in which the auction proceeds might fall short of the amount needed to pay the face value of vouchers? Or other methods of addressing such possibilities?
        18. We also seek comment on two alternative proposals. First, incumbents would receive license(s) for all vouchers that are equivalent to a whole number of new license(s) without bidding at all in the clock phase. The specific frequencies for these licenses would be assigned in the assignment round. Under this alternative, incumbent licenses that are not encumbered would not be able to relinquish spectrum, and in those PEAs, the total number of blocks offered in the clock phase would be reduced by the number of 100 megahertz licenses held by incumbents. In the assignment phase, all blocks won by winning bidders and all incumbent licenses would be assigned (or in the case of incumbent licenses, reassigned) frequencies.

        19. A second, more narrowly tailored alternative would be to exchange automatically for vouchers only encumbered PEA and RSA licenses. Unencumbered PEA licenses would have the option of converting their unencumbered generic PEA blocks to vouchers if they so choose. All encumbered licenses would still be required to be converted to vouchers, since, were these licensees to hold out, this would leave spectrum that could not fit into the new band plan and thereby reduce the efficiency of the auction.
        20. Under all these approaches, unencumbered PEA licensees can obtain new licenses without additional license payments. Under our proposed approach, however, licensees would have to bid to obtain a new license, making more licenses available for bidding and increasing the number of bidders. Making unencumbered PEA licensees bid may increase the efficiency of the assignment of licenses by having incumbents face the market price of holding onto their licenses. At a high enough price, some may relinquish their spectrum to other bidders who value it more highly. We seek comment on these proposals, particularly from any current licensee that would choose not to participate in the incentive auction using one of these three approaches described above or any other similar approach.
        B. A Pre-Auction Voucher Exchange
        21. To address concerns raised with respect to incumbent licensees whose licenses involve RSAs or encumbered PEAs, and thus do not cover the entire population of a PEA, we propose a pre-auction voucher exchange.4
           Much as vouchers in the incentive auction allow incumbent licensees to consolidate and rationalize their holdings during the auction, a voucher exchange could allow incumbents to consolidate and rationalize their holdings before the auction—although in a somewhat more limited manner. Specifically, it could aid incumbent licensees in minimizing the number of PEAs going into the auction in which they would have only fractional vouchers—and thus no ability to assure themselves that they could exit the auction with a whole number of new licenses without making net payments to secure their spectrum holdings.

            4 For encumbered PEA licenses (i.e., licenses that are co-channel with an RSA license), the licensee's voucher would cover only the population where it is authorized to operate prior to the start of the exchange—that is, the area outside of the overlapping RSA license.

        22. The design of the voucher exchange should allow incumbents to exchange their fractional vouchers in one or more PEAs, caused by holding an RSA or encumbered PEA license, to create full vouchers in another PEA subject to certain restrictions. The first step in a voucher exchange is to aggregate the vouchers for all encumbered blocks within a PEA, which is likely to leave a fractional voucher in each PEA.
        23. Next, the Commission would specify exchange rates (expressed on a per MHz-pop basis) that would allow incumbent licensees to exchange these fractional vouchers with the Commission. We seek comment on how to establish the relative exchange rates needed for a voucher exchange. Should we calculate those exchange rates based on the relative value of PEA licenses estimated from previous auctions? If so, which prior FCC auctions should be used to calculate the exchange rates between PEAs?

        24. Incumbents would then be allowed to exchange their vouchers subject to the condition that net trades for each incumbent over all PEAs be revenue neutral, i.e., aggregate trades up and down will balance given the FCC-specified exchange rates.5
           Vouchers could only be exchanged up or down to no more than the nearest integer above or no less than the nearest integer below their current fractional voucher holdings.6
           If there exists a PEA in which it is not feasible for all incumbent licensees to “trade up” within the 39 GHz band, we propose that incumbent licensees would only be permitted to “trade down.” All voucher trades with the Commission would be completed prior to the clock auction phase of the incentive auction. We propose that, before initiating the voucher exchange, we would educate all potential participants so that they can understand the process and consequences of participating in the exchange. We find that this should promote an efficient process for both the Commission and participants.

            5 If all of an incumbent's licenses within PEA #1 in the aggregate cover 20% of the MHz-pops of an unencumbered 100 megahertz block in PEA #1, the license(s) are represented by a voucher denominated as 0.2. If all of an incumbent's licenses within a PEA #2 in the aggregate cover 40 percent of the MHz-pops of an unencumbered 100 megahertz block in PEA #2, that incumbent's voucher in PEA #2 would be 0.4. Note that the incumbent's license(s) in PEA #2 might cover 80 percent of the population in the PEA with only 50 megahertz of bandwidth, or 40 percent of the population with 100 megahertz, or 20 percent of the population with 200 megahertz. A voucher representing any of these combinations in PEA #2 would be denominated 0.4. If the exchange rate between PEA #1 and #2 was such that a voucher in PEA #2 can be exchanged for a voucher of two times its amount in PEA #1, then the incumbent could exchange its 0.4 voucher in PEA #2 for a PEA #1 voucher for 0.8 (0.4 times two). The incumbent would then combine its original 0.2 voucher in PEA #1 with the 0.8 voucher received in the exchange and have a 1.0 voucher in PEA #1. The incumbent's voucher in PEA #2 would then be 0.0.

            6 Using our prior example, the limitation that incumbents cannot increase vouchers to more than the nearest integer above its initial holdings means that an incumbent with 0.2 in PEA #1 and 0.9 in PEA #2 cannot exchange its PEA #2 voucher for a PEA #1 voucher of 1.8 (0.9 times the exchange rate of two) because the result would increase the incumbent's holdings in PEA #1 from 0.2 to 2.0, which is more than the nearest integer above, or 1.0.

        25. We seek comment on this framework for implementing a pre-auction voucher exchange to serve the public interest, including how best to address concerns raised in the record with respect to prior proposals. To establish the framework, we seek comment on the best methods for achieving our goals. How could a voucher exchange best facilitate a low cost rapid rationalization of spectrum holdings by allowing incumbent licensees to aggregate fractional holdings across PEAs and to retain all their equivalent spectrum usage rights in PEAs of their choosing to the extent permitted by their fractional holdings and the exchange rates? Are there any other limits or restrictions that should be imposed on exchanges that incumbents can make? Separate from the voucher exchange and building on the Voluntary Rebanding PN, should we expand the process by which incumbent licensees can modify their licenses prior to the auction, for example, by allowing for inter-market swaps using the same exchange rates as the voucher exchange?
        26. One restriction we may impose on any exchange that will result in modified licenses (rather than cancelled licenses and vouchers for the auction) is to require that any such exchange result in less geographically encumbered spectrum. Would that serve the public interest? How should encumbrances be measured? Furthermore, after exchanging across a number of markets, it is likely that a licensee will not be able to have full PEA licenses in all markets. One approach to this remainder would be to set it to zero in that market. Would this be appropriate, given the opportunity afforded by the exchanges to minimize such holdings? What other approaches could be taken regarding such remainders? For example, should an incumbent be permitted to maintain one fractional license in one PEA?

        27. We also seek comment on how the voucher exchange should interact with existing licenses and the incentive auction. For example, should we cancel or modify the affected licenses of exchange participants before the auction in exchange for vouchers? Should we leave such licenses untouched until after the auction? Should only incentive auction participants be allowed to participate in the voucher exchange? Further, should we consider holding this type of voucher exchange independent of whether we hold an incentive auction to allow incumbent licensees to combine their fractional licenses into whole licenses under the new band plan?

        C. Mandatory Repacking
        28. We propose to repack incumbent licensees that choose not to participate in the incentive auction. Just as the Commission repacked television broadcasters that chose not to participate in the broadcast incentive auction, the Commission has the authority to modify the holdings of existing licensees “if in the judgment of the Commission such action will promote the public interest, convenience, and necessity.” Repacking the holdings of non-participating incumbent licensees will ensure that we can minimize encumbrances in the band and maximize the amount of clean spectrum available for auction, while preserving existing usage rights for incumbents.
        29. We seek comment on all aspects of this proposal. We also seek comment on what criteria to apply when repacking encumbered licenses. How can the Commission best make modified frequency assignments to maximize the contiguous spectrum for auction participants while preserving to the greatest extent possible each incumbent license's bandwidth, previous geography, and existing contiguity?
        30. For example, must or should we maintain frequency contiguity for RSA licenses that overlap PEAs? Given the requirement of operability throughout the band, how significant is such contiguity? We note that partitioning RSAs that overlap multiple PEAs into their respective PEAs might make it possible to repack more efficiently and even enable repacked frequencies to be assigned in the auction's assignment phase.

        31. One approach to repacking non-participating incumbents would involve a two-step calculation. The first step would entail reconfiguring those incumbent licenses that do not align with PEA boundaries (e.g., RSA licenses or partial PEA licenses) into full PEA licenses with an equivalent amount of spectrum in each PEA, as measured in MHz-pop. The second step would be to restate the incumbent's fractional holdings of 100 MHz PEA blocks as mostly integer numbers of 100 MHz PEA blocks, in a way that the repacked spectrum maintains the same value as evaluated with respect to FCC-specified exchange rates (i.e., those set for the voucher exchange). In all but one of their PEAs, the fractional holdings of a repacked incumbent would be replaced by either the nearest integer above or the nearest integer below the fractional holdings. The one PEA left with fractional holdings would be the PEA with the smallest possible value. We note that an incumbent could avoid the effects of such repacking by entering into the incentive auction.

        32. Other efficiencies might be realized by other means. For example, converting MHz-pops in a geographic area that is less than a full PEA (i.e., an RSA license or an encumbered PEA license) into the same MHz-pops in a portion of a 100 megahertz block across the whole PEA could facilitate more efficient repacking. We note that, depending on how many and which current licensees choose not to participate in the incentive auction, there may be some left-over segments, i.e., when less than a whole 100 megahertz PEA block remains. We seek comment on whether we should attempt to consolidate such holdout segments in this manner, and if so whether to auction overlay licenses on them or otherwise maximize their value for the American public.

        33. We seek comment on the options presented above, including possible variations, and on the costs and benefits of mandatory repacking for non-participants. Should there be a de minimis spectrum holdings threshold to qualify for repacking and how should this level be set? How and when should the frequency reassignment be done in order to minimize the spectrum required to repack holdout licenses? How should the adjacent spectrum blocks to the holdout segment be auctioned, given that they may be less than 100 megahertz?
        D. Incentive Auction Legal Authority
        34. Congress expressly authorized the Commission to conduct incentive auctions beyond the broadcast television spectrum incentive auction. Using this authority, the Commission can offer incentive payments to licensees that choose to relinquish existing spectrum usage rights provided by incumbent licenses instead of retaining such rights pursuant to new licenses. More specifically, the “Commission may encourage a licensee to relinquish voluntarily some or all of its licensed spectrum usage rights in order to permit the assignment of new initial licenses subject to flexible-use service rules by sharing with such licensee a portion . . . of the proceeds (including deposits and upfront payments from successful bidders) from the use of a competitive bidding system under this subsection.” To do so, the Commission must determine “the value of the relinquished rights . . . in the reverse auction” and that reverse auction must have “at least two competing licensees participate.”
        35. As explained above, we propose to use the clock phase winning bids for new licenses to determine the incentive payment that participating incumbent licensees may receive. A participating incumbent licensee will have a choice between competing in bidding for new licenses and offering spectrum usage rights or relinquishing spectrum usage rights under existing licenses in exchange for an incentive payment.
        36. Under the auction design proposed above, any relinquishment of spectrum usage rights for an incentive payment would be “voluntary” within the meaning of the statute. All incumbent licensees may decline to participate in the incentive auction and instead receive new licenses that provide spectrum usage rights equivalent to their existing licenses. Modifying existing licenses in this way does not, however, require the use of our incentive auction authority. Rather, we rely on our clear authority to modify license frequencies pursuant to the public interest. Given that incumbent licensees will participate in the incentive auction by choice, we conclude that any subsequent decision an incumbent doing so makes to relinquish spectrum usage rights should be considered voluntary. We seek comment on our conclusion.
        37. We propose above that incumbent licensees that choose not to participate in the reverse auction may not participate in the auction of new licenses. Could that additional consequence of choosing not to participate affect whether a subsequent relinquishment is voluntary? An incumbent licensee that chooses between relinquishing spectrum usage rights for an incentive payment or instead receiving new licenses for equivalent spectrum usage rights at no additional cost presumably does so voluntarily, regardless of whether it chose to participate because of some collateral consequence of non-participation. Nothing compels such a licensee to make the relinquishment instead of retaining its spectrum usage rights under new licenses.

        38. We also conclude that our proposal that incumbent licensees that choose not to participate in the reverse auction may not participate in the forward auction of new licenses is consistent with our authority to determine qualifications that auction participants must satisfy. More specifically, we conclude that the proposed consequence of an incumbent's choice would constitute a rule of general applicability regarding auction participation. We seek comment on these conclusions.

        39. Our proposal satisfies additional statutory requirements for our incentive auction authority. The “reverse” nature of the auction required by the statute is one in which those rights are relinquished by licensees to the Commission, reversing the typical flow of rights assigned based on spectrum license auctions. Although auctions in other contexts—such as the Connect America Fund Phase II Auction to distribute universal service support for high-speed broadband deployment in rural America—are sometimes called reverse auctions because the price declines over the course of bidding, nothing in the statute requires that a reverse auction to relinquish spectrum usage rights use descending bidding. We note that in the broadcast television spectrum incentive auction, the Commission chose to use a descending clock price auction for the reverse auction component because a descending clock auction design involved several features that were particularly helpful in that context, not because it was statutorily required.
        40. We also conclude that, so long as at least two incumbent licensees with licenses in the same PEA choose to participate in the incentive auction, the reverse auction will meet the statutory requirement to have at least “two competing licensees participat[ing]” in the reverse auction.7
           In the broadcast television spectrum incentive auction, the Commission concluded that at least two licensees participate in the reverse auction so long as more than one non-commonly controlled party qualifies as an applicant to participate in the auction. This is so because any qualified applicant that bids in the auction must take into account the presence of another qualified applicant that has the opportunity to bid, regardless of whether the second applicant in fact bids. We find that same conclusion should apply here, too. Incumbents seeking to relinquish spectrum usage rights in the proposed auction must take into account the demand for new licenses by other qualified applicants, as they only will be able to relinquish rights so long as demand for new licenses exceeds supply. We seek comment on this analysis.

            7 See Incentive Auction Report and Order, 29 FCC Rcd at 6742, para. 413. The Commission took care to note that it might “apply [the two competing participants] requirement differently in other reverse auctions, depending upon the particular eligibility criteria, auction design and other circumstances.” Id. at 6743, para. 414 n.1224. Accordingly, while we find the discussion regarding this requirement helpful, it is not controlling.

        41. Further, we seek comment generally on whether our proposal to conduct an auction with the elements described above or any of our alternative scenarios for conducting an incentive auction would be consistent with our statutory authority to conduct an incentive auction. To the extent that commenters assert that these scenarios are not consistent with our incentive auction authority, commenters should discuss any changes that could more fully satisfy that authority.
        42. As noted above in our proposal, we have authority to modify the holdings of existing licensees based on our judgment of the public interest. We conclude that the potential modifications considered above are within our authority. We ask that commenters proposing further modifications to address whether their proposals are within our authority.
        43. Legal Authority for Alternative Auction Mechanisms. We seek comment on alternative legal authority should we decide not to conduct an incentive auction. For example, we seek comment on whether we might conduct an auction as described above while providing current licensees with bidding offset credits in place of vouchers and incentive payments. We seek comment on whether issuing bidding offset credits in order to protect existing spectrum uses—and past Commission public interest judgments reflected in prior licensing decisions—while clearing existing spectrum assignments is necessary to the management of spectrum in the public interest and not inconsistent with the Communications Act. Effectively clearing prior spectrum assignments so that new licenses for this spectrum may be assigned by competitive bidding will promote statutory objectives. Issuing bidding offset credits is within the Commission's statutory authority regarding the design of competitive bidding systems. Section 309(j)(4) of the Communications Act grants the Commission authority to consider a variety of methods of helping entities pay for licenses that are offered at auction, including alternative payment schedules, tax credits, and bidding preferences.
        44. We ask commenters to address the differences, if any, in incentives provided to current licensees by providing them with a bidding offset credit without an opportunity to receive an incentive payment. Commenters should address the likely differences in the outcome of the auction resulting from such different incentives, and whether providing incentive payments would better serve the public interest, notwithstanding the need to share a portion of the auction proceeds. Would the amount of repurposed spectrum be affected? We also seek comment on any other approaches that might achieve the purposes of the proposal without sharing proceeds from the auction of new licenses with existing licensees.
        III. Initial Regulatory Flexibility Analysis

        45. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the attached 4th FNPRM . Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments as specified in the 4th FNPRM. The Commission will send a copy of this 4th FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the 4th FNPRM and IRFA (or summaries thereof) will be published in the Federal Register.
        A. Need for, and Objectives of, the Proposed Rules
        46. In the 4th FNPRM, we propose to modify the band plan for the 38.6-40 GHz (39 GHz) band to 100 megahertz channels for the Part 30 Upper Microwave Flexible Use Service (UMFUS), and propose to similarly modify the 37.6-38.6 GHz (Upper 37 GHz) and 47.2-48.2 GHz (47 GHz) bands to 100 megahertz channels if we adopt the 100 megahertz channel plan for the 39 GHz band. The 4th FNPRM also seeks comment on which auction mechanism to use to realign existing 39 GHz licenses.

        47. First, we propose to modify the 39 GHz band plan from seven 200 megahertz to fourteen 100 megahertz channels to allow for better consolidation of existing license holdings. We propose modifying the Upper 37 GHz band plan from 200 megahertz to 100 megahertz channels, given that the two bands are adjacent and have the same service rules and an operability requirement. Further, in the 4th FNPRM we propose to auction the 39 GHz and Upper 37 bands together. In addition we propose to modify the 47 GHz band plan from 200 to 100 megahertz channels if we auction all three bands at the same time and seek comment on that proposal.

        48. Second, we propose to use a two-phase incentive auction. In the first phase, participants would bid to win generic spectrum blocks using an ascending clock auction that would determine a uniform price in each PEA—this encompasses the simultaneous forward-and-reverse auction. The second phase would assign specific-frequency licenses by PEA that would aim to ensure contiguity within each PEA. Because the spectrum blocks in the Upper 37 GHz and 39 GHz bands can be treated as largely interchangeable within a PEA, we propose to offer unencumbered blocks as one category of generic blocks in a clock auction. Specifically, we propose to use a clock auction design with rules similar to those used for the forward auction in the broadcast incentive auction and the planned 24 GHz auction. Next, winning bidders from the clock phase would have an opportunity to submit sealed bids by PEA for particular frequency blocks in a separate assignment phase. We propose that this assignment phase be voluntary: Winning bidders need not bid in the assignment phase. Regardless of its participation in the assignment phase, the assignment phase would aim to assign contiguous frequency blocks within a PEA to a bidder that wins multiple blocks.
        49. We propose to encourage incumbent licensees to participate in the reverse auction by offering them an incentive payment—using what we term here a “voucher”—in exchange for the cancellation of certain incumbent licenses at the end of the auction. Each voucher would have a dollar value equal to the final clock phase price (for a single generic block under the new band plan) in the PEA in which the incumbent license is located times the ratio of bandwidth provided by the incumbent's license and the population that can be reached using that license within a given PEA (expressed in MHz-pops) divided by the bandwidth and population reached by a generic block (expressed in MHz-pops). We propose to further encourage incumbent licensees to participate in the reverse auction by requiring such participation if the incumbent licensee seeks to participate in the accompanying forward auction. In addition, we seek comment on two alternative auction proposals. First, incumbents would receive license(s) for all vouchers that are equivalent to a whole number of new license(s) without bidding at all in the clock phase. In the assignment phase, all blocks won by winning bidders and all incumbent licenses would be assigned (or in the case of incumbent licenses, reassigned) frequencies. We seek comment on a second alternative in which we would exchange automatically for vouchers only encumbered PEA and RSA licenses.
        50. Third, we propose a pre-auction voucher exchange process in which incumbents can trade fractional license holdings for full license holdings—including across markets in some circumstances—under the new band plan, with these trades reflected as full vouchers in the auction. The exchange would allow incumbents to aggregate fractional holdings across PEAs and to retain all their equivalent spectrum usage rights in PEAs of their choosing to the extent permitted by their fractional holdings and the exchange rates. We seek comment on establishing the relative exchange rates needed for a voucher exchange. We seek comment on a framework for implementing a pre-auction voucher exchange to serve the public interest, including how best to address concerns raised in the record with respect to prior proposals.
        51. Fourth, we propose to repack incumbent licensees that choose not to participate in reverse auction portion of the incentive auction. Repacking the holdings of non-participating incumbent licensees will ensure that we can minimize encumbrances in the band, maximizing the amount of clean spectrum available for auction, while preserving existing usage rights for incumbents. We propose that licensees that choose to repack encumbered licenses in lieu of exchanging for vouchers should not be allowed to bid on new licenses in either the clock phase of the auction or be allowed to bid on frequency assignments during the assignment round. Prohibiting auction participation for such licensees would create a strong incentive for incumbents to choose to exchange all of their licenses for vouchers.
        52. Lastly, we propose to auction together all licenses in the Upper 37 GHz and 39 GHz, using the Commission's incentive auction authority, where existing 39 GHz license holders could relinquish their spectrum usage rights in return for an incentive payment, and/or acquire new rights. We conclude that the auction design we propose would satisfy the requirement to conduct a reverse auction to determine the amount of compensation licensees would accept for voluntarily relinquishing spectrum usage rights. All incumbent licensees may decline to participate in the incentive auction and instead receive new licenses that provide spectrum usage rights equivalent to their existing licenses. We seek comment on our proposal to condition bidding for new licenses in the auction on incumbents' offering their existing spectrum usage rights in the auction. Such a requirement would ensure that incumbent licensees are not given a one-way option—purchasing new unencumbered spectrum at auction while keeping a different set of blocks encumbered and thus unavailable for an efficient auction. Furthermore, in case we were to conclude that the auction design proposed above would not satisfy the statutory requirements for an incentive auction, we seek comment on alternatives in which auction proceeds are not shared with incumbents, such as providing current licensees with bidding offset credits in place of vouchers
        53. Overall, the proposals in the 4th FNPRM are designed to facilitate broadband deployment, including 5G services, by providing opportunities to make it easier for licensees in the band to rationalize their existing holdings into contiguous swathes of spectrum, and by offering new licenses of contiguous spectrum at auction while protecting incumbents' existing spectrum usage rights. This will ensure that this spectrum is efficiently used and will foster the development of new and innovative technologies and services, as well as encourage the growth and development of a wide variety of services, ultimately leading to greater benefits to consumers.
        B. Legal Basis
        54. The proposed action is authorized pursuant to Sections 1, 2, 3, 4, 5, 7, 301, 302, 302a, 303, 304, 307, 309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 153, 154, 155, 157, 301, 302, 302a, 303, 304, 307, 309, and 310, Section 706 of the Telecommunications Act of 1996, as amended, 47 U.S.C. 1302.
        C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

        55. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 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.

        56. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses.
        57. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).
        58. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicate that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category show that the majority of these governments have populations of less than 50,000. Based on this data we estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”
        59. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.
        60. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Upper Microwave Flexible Use Service, the Millimeter Wave Service, Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), and the 24 GHz Service, where licensees can choose between common carrier and non-common carrier status. At present, there are approximately 66,680 common carrier fixed licensees, 69,360 private and public safety operational-fixed licensees, 20,150 broadcast auxiliary radio licensees, 411 LMDS licenses, 33 24 GHz DEMS licenses, 777 39 GHz licenses, and five 24 GHz licensees, and 467 Millimeter Wave licenses in the microwave services. The Commission has not yet defined a small business with respect to microwave services. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) and the appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 shows that there were 967 firms that operated for the entire year. Of this total, 955 had employment of 999 or fewer, and 12 firms had employment of 1,000 employees or more. Thus under this SBA category and the associated standard, the Commission estimates that the majority of fixed microwave service licensees can be considered small.
        61. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 36,708 common carrier fixed licensees and up to 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies proposed herein. We note, however, that both the common carrier microwave fixed and the private operational microwave fixed licensee categories includes some large entities.
        62. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.” The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census Bureau data for 2012 shows that there were a total of 1,442 firms that operated for the entire year. Of these firms, a total of 1400 firms had gross annual receipts of under $25 million and 42 firms had gross annual receipts of $25 million to $49,999,999. Thus, the Commission estimates that a majority of “All Other Telecommunications” firms potentially affected by our actions can be considered small.
        63. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has established a size standard for this industry of 1,250 employees or less. U.S. Census Bureau data for 2012 shows that 841 establishments operated in this industry in that year. Of that number, 828 establishments operated with fewer than 1,000 employees, 7 establishments operated with between 1,000 and 2,499 employees and 6 establishments operated with 2,500 or more employees. Based on this data, we conclude that a majority of manufacturers in this industry is small.
        D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements
        64. We expect the rules and procedures proposed in the 4th FNPRM will impose new or additional reporting or recordkeeping and/or other compliance obligations on small entities as well as other licensees with licenses in the 39 GHz band issued prior to the auction of new licenses proposed in the 4th FNPRM. The proposed rules and procedures would require parties with licenses in the 39 GHz band issued prior to the auction of new licenses proposed in the 4th FNPRM to provide certain information following the auction of the new licenses. Depending upon the licensee's individual circumstances, the information required may include directions regarding the cancellation of pre-existing licenses, directions regarding a choice between satisfying winning bids for new licenses and receiving incentive payments, and directions regarding how any incentive payments are to be made.
        65. The projected reporting, recordkeeping, and other compliance requirements resulting from this proceeding would apply to all such licensees in the same manner. The Commission believes that applying the same rules equally to all entities in this context would promote fairness. We note that eight of the existing fourteen such licensees may be considered small entities. The Commission does not believe that the costs and/or administrative burdens associated with the rules would unduly burden small entities. Moreover, the proposed reverse auction would benefit any affected small entities by providing an opportunity to receive an incentive payment in exchange for spectrum usage rights.
        E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered
        66. The RFA requires an agency to describe any significant alternatives for small businesses 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 and reporting requirements under the rule for such 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 such small entities.

        67. The Commission does not believe that its proposed changes will have a significant economic impact on small entities. We believe that modifying the band plan from 200 megahertz to 100 megahertz channels in the 39 GHz, Upper 37 GHz, and 47 GHz bands will help small entities by making spectrum available in smaller license sizes that may be more attractive to small entities. We also believe the proposed mechanism for auctioning the 39 GHz and Upper 37 GHz bands would facilitate access to spectrum by small businesses and a wide variety of other entities, while preserving incumbent licensees' spectrum rights. However, to get a better understanding of costs and any burdens, we seek comment on whether any of the burdens associated with the proposed rules and policies can be minimized for small businesses. The Commission expects to more fully consider the economic impact and alternatives for small entities following the review of comments filed in response to the 4th FNPRM.

        F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules
        68. None.
        IV. Ordering Clauses
        69. It is ordered, pursuant to the authority found in Sections 1, 2, 3, 4, 5, 7, 301, 302, 303, 304, 307, 309, 310, and 316 of the Communications Act of 1934, 47 U.S.C. 151, 152, 153, 154, 155, 157, 301, 302, 303, 304, 307, 309, 310, and 316, and § 1.411 of the Commission's Rules, 47 CFR 1.411, that this 4th FNPRM
          is hereby adopted.
        70. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this 4th FNPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

          List of Subjects in 47 CFR Part 30
          Communications common carriers, Reporting and recordkeeping requirements, Communications equipment.

          Federal Communications Commission.
          Katura Jackson,
          Federal Register Liaison Officer, Office of the Secretary.

        Proposed Rules
        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 30 as follows:

          PART 30—UPPER MICROWAVE FLEXIBLE USE SERVICE

        1. The authority citation for part 30 continues to read as follows:

          Authority:
           47 U.S.C. 151, 152, 153, 154, 301, 303, 304, 307, 309, 310, 316, 332, 1302.

        2. Amend § 30.4 by:
        a. Redesignating paragraphs (b) through (e) as paragraphs (c), (d), (f), and (g);
        b. Adding and reserving new paragraphs (b) and (e); and
        c. Revising redesignated paragraphs (d)(1), (f), and (g).
        The revisions and addition read as follows:

          § 30.4
          Frequencies.

          (b) [Reserved]

          (d) * * *
          (1) New channel plan:

              Channel No.
              Frequencyband limits
                (MHz)

              1
              38,600-38,700

              2
              38,700-38,800

              3
              38,800-38,900

              4
              38,900-39,000

              5
              39,000-39,100

              6
              39,100-39,200

              7
              39,200-39,300

              8
              39,300-39,400

              9
              39,400-39,500

              10
              39,500-39,600

              11
              39,600-39,700

              12
              39,700-39,800

              13
              39,800-39,900

              14
              39,900-40,000

          (e) [Reserved]
          (f) 37-38.6 GHz band: 37,600-37,700; 37,700-37,800 MHz; 37,800-37,900 MHz; 37,900-38,000 MHz; 38,000-38,100 MHz; 38,100-38,200 MHz; 38,200-38,300 MHz; 38,300-38,400 MHz; 38,400-38,500 MHz, and 38,500-38,600 MHz. The 37,000-37,600 MHz band segment shall be available on a site-specific, coordinated shared basis with eligible Federal entities.
          (g) 47.2-48.2 GHz band—47.2-47.3 GHz; 47.3-47.4 GHz; 47.4-47.5 GHz; 47.5-47.6 GHz; 47.6-47.7 GHz; 47.7-47.8 GHz; 47.8-47.9 GHz; 47.9-48.0 GHz; 48.0-48.1 GHz; and 48.1-48.2 GHz.

      [FR Doc. 2018-17820 Filed 8-17-18; 8:45 am]
       BILLING CODE 6712-01-P