ACTION:
Final rule.
SUMMARY:
In this document, the Commission resolves five petitions for reconsideration of the Report and Order adopting service rules for Advanced Wireless Services (AWS) in the 1710-1755 and 2110-2155 MHz bands. In this Order, the Commission modifies the band plan and makes minor revisions to the service rules to provide additional opportunities for smaller and rural wireless carriers and to enhance flexibility for potential licensees. In all other respects, the Commission denies the petitions for reconsideration. The Commission takes this action to facilitate the provision of new services to the public, and to encourage the optimum use of these frequencies.
DATES:
Effective November 4, 2005.
ADDRESSES:
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT:
Peter Corea of the Broadband Division, Wireless Telecommunications Bureau, at 202-418-BITS (2487) (voice) or 202-418-1169 (TTY).
SUPPLEMENTARY INFORMATION:
This is a summary of the Commission's Order on Reconsideration in WT Docket No. 02-353, FCC 05-149, adopted on August 5, 2005, and released on August 15, 2005. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (tty).
Overview
1. On November 25, 2003, the Commission adopted licensing, technical, and competitive bidding rules to govern the use of the Advanced Wireless Services spectrum in the 1710-1755 and 2110-2155 MHz bands. This Order on Reconsideration resolves petitions for reconsideration of the service rules Report and Order. (Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, Report and Order, WT Docket No. 02-353, 69 FR 5711-01 (Feb. 6, 2004)). Specifically, this Order decides the following issues.
2. The AWS band plan for the 1710-1755 and 2110-2155 MHz bands is modified as follows. Twenty megahertz of spectrum at 1710-1720, paired with 2110-2120 will be licensed on a Rural Service Area/Metropolitan Statistical Area (RSA/MSA) basis. Thirty megahertz of spectrum in this band will be licensed on an Economic Area (EA) basis: 20 megahertz at 1720-1730 paired with 2120-2130, and 10 megahertz at 1730-1735 paired with 2130-2135. Forty megahertz of spectrum will be licensed on a Regional Economic Area Grouping (REAG) basis and these blocks will be contiguous in a manner that is convenient for aggregation. The Commission breaks up the original 2x15 MHz REAG block into a 2x5 MHz E block located at 1740-1745 and 2140-2145 MHz and a new 20 megahertz F block located at 1745-1755 MHz paired with 2145-2155 MHz.
3. The Commission denies a petition filed by Council Tree Communications, Inc. that seeks a set-aside of spectrum in the 1710-1755 MHz and 2110-2155 MHz bands for entities that meet the small business size standards used to determine eligibility for bidding credits. In addition, the Commission rejects Council Tree's proposals to amend the designated entity rules in this proceeding, but it stated it would examine, in a separate action, Council Tree's proposal to restrict large incumbent wireless service providers from having any material investment, financial, or operating relationship with a designated entity, if they have licenses with material geographic overlap.
4. The Order grants a petition filed by Powerwave Technologies, Inc. and removes the restriction on transmitter output power levels on AWS licensees as was recently done for PCS licensees in the Biennial Regulatory Review—Amendment of parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services, WT Docket No. 03-264, FCC 05-144 (rel. Aug. 9, 2005).
5. American Petroleum Institute and United Telecom Council (API/UTC) filed a joint petition in ET Dockets 95-18 and 00-258, as well as WT Docket 02-353, seeking clarification and reconsideration of the Fixed Microwave Service relocation procedures adopted for the 2110-2150 MHz band. The Commission addressed API/UTC's petition in the MSS Fifth Memorandum Opinion and Order, granting the petition in part and denying the petition otherwise. (Amendment of part 2 of the Commission's Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation Wireless Systems, Petition for Rule Making of the Wireless Information Networks Forum Concerning the Unlicensed Personal Communications Service, Petition for Rule Making of UTStarcom, Inc., Concerning the Unlicensed Personal Communications Service, Amendment of Section 2.106 of the Commission's Rules to Allocate Spectrum at 2 GHz for use by the Mobile-Satellite Service, ET Docket No. 00-258, RM-9498, RM-10024, ET Docket No. 95-18, Sixth Report and Order, Third Memorandum Opinion and Order, and Fifth Memorandum Opinion and Order, 69 FR 62615-01 (Oct. 27, 2004)). Because the Commission had previously addressed the petition in a prior proceeding, the Commission denies the petition relative to this proceeding.
II. Procedural Matters
A. Paperwork Reduction Act Analysis
6. This Order does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1996 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
B. Supplemental Final Regulatory Flexibility Analysis
7. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking in WT Docket No. 02-353 (NPRM). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. In addition, a Final Regulatory Flexibility Analysis (FRFA) was incorporated in the Report and Order in WT Docket No. 02-353. This present Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) for the Order on Reconsideration conforms to the RFA.
Need for, and Objectives of, the Amended Rules
8. The Order on Reconsideration responds to petitions for reconsideration of the Report and Order adopting service rules for Advanced Wireless Services in the 1710-1755 and 2110-2155 MHz bands (AWS-1). The need for and objectives of the rules adopted in this Order on Reconsideration are the same as those discussed in the FRFA for the Report and Order. In the Report and Order, the Commission adopted provisions for application, licensing, operating and technical rules, and for competitive bidding for AWS-1. As adopted, the rules provide flexibility to licensees to provide any fixed or mobile service that is consistent with the allocations for this spectrum and, in order to accommodate differing needs, the band plan includes both localized and regional geographic service areas and symmetrically paired spectrum blocks with pairings composed of different bandwidths. The market-oriented licensing framework for these bands will ensure that this spectrum is efficiently utilized and will foster the development of new and innovative technologies and services, as well as encourage the growth and development of broadband services, ultimately leading to greater benefits to consumers.
9. On reconsideration, we take the following actions: (i) Modify the band plan to increase the amount of spectrum available to smaller and rural wireless carriers; (ii) break a 30 MHz block into smaller components that can be aggregated; (iii) offer an additional block licensed on an Economic Area (EA) basis to help enhance the mixture of large and small geographic area licenses available to applicants; and (iv) eliminate the transmitter output power limits for AWS base and fixed stations to make the rule consistent with the rule governing PCS stations. The Commission affirmed its decision in the AWS-1 service rules Report and Order not to set aside spectrum for designated entities in the 1710-1755 and 2110-2155 MHz bands and also affirmed its decision to provide two levels of bidding credits.
Summary of Significant Issues Raised by Public
10. We received no comments directly in response to the IRFA or FRFA in this proceeding. We did, however, consider the potential impact of our rules on smaller entities. For example, in the present Order on Reconsideration, we have adopted certain changes in the band plan requested by the Rural Cellular Association (RCA) and the Rural Telecommunications Group (RTG), in conjunction with other commenting parties, which increase the amount of spectrum and number of spectrum blocks licensed on a smaller geographic basis. These changes are expected to increase opportunities for local, largely rural carriers, to be able to afford adequate spectrum and to utilize a building block approach to suit their particular needs.
11. We also note that in the Report and Order, the Commission decided to encourage participation by smaller and rural entities by adopting smaller geographic licensing areas such as MSAs and RSAs, as well as smaller spectrum block sizes, rather than adopting set-asides or eligibility restrictions. The Commission reasoned that opening the bands to as wide a range of applicants as possible would encourage entrepreneurial efforts to develop new technologies and services, while helping ensure the spectrum is used efficiently.
12. In a petition for reconsideration, Council Tree urged the Commission to reconsider its decision not to adopt a set aside of spectrum for designated entities in the 1710-1755 and 2110-2155 MHz bands or, in the alternative, to adopt a third level of bidding credit. In a separate ex parte filing, Council Tree also made certain proposals relating to designated entity status and benefits, such as bidding credits. As noted above, while we affirm the Commission's decision in the AWS-1 service rules Report and Order and decline to amend the designated entity rules in this proceeding, we will examine, in a separate action, Council Tree's proposal to restrict large incumbent wireless service providers from having any material investment, financial, or operating relationship with a designated entity, if they have licenses with material geographic overlap.
Description and Estimate of the Number of Small Entities to Which the Rules Will Apply
13. 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 government 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 is one which: (i) Is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the SBA. Nationwide, there are approximately 22.4 million small businesses, total, according to the SBA data.
14. 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 2002, there were approximately 1.6 million small organizations. Last, the definition of “small governmental jurisdiction” is one with populations of fewer than 50,000. The term “small governmental jurisdiction” is defined as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” As of 1997, there were about 87,453 governmental jurisdictions in the United States. This number includes 39,044 county governments, municipalities, and townships, of which 37,546 (approximately 96.2%) have populations of fewer than 50,000, and of which 1,498 have populations of 50,000 or more. Thus we estimate the number of small governmental jurisdictions overall to be 84,098 or fewer.
15. The rules amended in the Order on Reconsideration affect applicants who wish to provide service in the 1710-1755 MHz and 2110-2155 MHz bands. As discussed in the Report and Order, we do not know precisely the type of service that a licensee in these bands might seek to provide. Nonetheless, we anticipate that the services that will be deployed in these bands may have capital requirements comparable to those in the broadband Personal Communications Service (PCS), and that the licensees in these bands will be presented with issues and costs similar to those presented to broadband PCS licensees. Further, at the time the broadband PCS service was established, it was similarly anticipated that it would facilitate the introduction of a new generation of service. Therefore, the Report and Order adopted the same small business size standards here that the Commission adopted for the broadband PCS service. In particular, the Report and Order defined a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. The Report and Order also provided small businesses with a bidding credit of 15 percent and very small businesses with a bidding credit of 25 percent.
16. We do not yet know how many applicants or licensees in these bands will be small entities. Thus, the Commission assumes, for purposes of this Supplemental FRFA, that all prospective licensees are small entities as that term is defined by the SBA or by our three special small business size standards for these bands. Although we do not know for certain which entities are likely to apply for these frequencies, we note that the 1710-1755 MHz and 2110-2155 MHz bands are comparable to those used for cellular service and personal communications service.
Wireless Telephony Including Cellular, Personal Communications Service (PCS) and SMR Telephony Carriers
17. The SBA has developed a small business size standard for wireless small businesses within the two separate categories of Paging and Cellular and Other Wireless Telecommunications. Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. We can assess small business prevalence by using data provided annually to the Commission by Telecommunications Relay Service (TRS) carriers. The TRS data compilation, published in the Commission's Trends in Telephone Service , groups together cellular, personal communications services, and specialized mobile radio telephony carriers into a single category called “Wireless Telephony.” (FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, “Trends in Telephone Service” at Table 5.3, page 5-5 (May 2004).) As noted above, under the pertinent SBA small business size standard, a wireless business is small if it has 1,500 or fewer employees. According to Trends in Telephone Service data, 447 carriers have reported that they provide Wireless Telephony. Of that total, an estimated 245 are small providers, under the SBA size standard. Thus, we can estimate that the majority of such businesses are small. In addition, the TRS data include a larger reporting category, “Wireless Service Providers,” that includes the above entities plus paging, data, and other mobile providers. According to the Trends in Telephone Service data, 975 carriers have reported that they are Wireless Service Providers. Of that total, an estimated 767 are small providers, under the SBA size standard. Thus, we can again estimate that the majority of such businesses are small. Consequently, the Commission estimates that most wireless service providers, as defined herein, are small.
Description of Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities
18. Applicants for AWS licenses in the 1710-1755 MHz and the 2110-2155 MHz bands will be required to submit short-form auction applications using FCC Form 175. In addition, winning bidders must submit long-form license applications through the Universal Licensing System using Form 601, FCC Ownership Disclosure Information for the Wireless Telecommunications Services using FCC Form 602, and other appropriate forms. These requirements were established in the Report and Order and are not modified by the Order on Reconsideration .
Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered
19. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its adopted approach, which may include the following four alternatives (among others): (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (iii) the use of performance, rather than design, standards; and (iv) an exemption from coverage of the rule, or any part thereof, for small entities.
20. We have taken significant steps to reduce burdens on small entities wherever possible, and considered various alternatives in this regard. To provide opportunities for small entities to participate in any auction that is held, we provide bidding credits for small businesses and very small businesses. The bidding credits adopted are 15 percent for small businesses and 25 percent for very small businesses. Although petitioner Council Tree requested set asides for designated entities in the 1710-1755 MHz and 2110-2155 MHz bands, we have found that the use of tiered or graduated small business size standards and bidding credits is useful in furthering our mandate under section 309(j) of the Communications Act to promote opportunities for, and disseminate licenses to, a wide variety of applicants. As discussed above in the Summary of Significant Issues Raised by Public, we decline to supplement the incentives for small business participation that the Commission has already adopted by foreclosing any of the licenses to other bidders.
21. Regarding our decisions to modify slightly the licensing approach to provide additional spectrum licensed on an RSA/MSA basis and to add an additional block offered on an EA basis, we anticipate that on balance small entities will benefit from this licensing approach. Geographic licensing in these bands supports the Commission's overall spectrum management goals in that it allows licensees to quickly respond to market demand. Small entities that acquire spectrum that is licensed on a geographic area basis will benefit from such flexibility. Moreover, we have attempted to strike a balance by using varying sizes of geographic areas. For example, small entities may be more interested in spectrum licensed using smaller geographic areas rather than in spectrum licensed on a nationwide or large regional basis. Consequently, we have decided to include licensing areas based on MSAs and RSAs, which permit entities who are only interested in serving rural areas to acquire spectrum licenses for these areas alone, and avoid acquiring spectrum licenses with high population densities that make purchase of license rights too expensive for these types of entities. MSAs and RSAs allow entities to mix and match rural and urban areas according to their business plans. These types of smaller geographic service areas provide entry opportunities for smaller carriers, new entrants, and rural telephone companies. Their inclusion in our band plan will foster service to rural areas and tribal lands and thereby bring the benefits of advanced services to these areas. Smaller service providers could acquire an RSA and create a new service area or they could expand an existing service territory or supplement the spectrum they are licensed to operate in by adding an RSA. They could also combine a few MSAs and RSAs to create a larger but localized service territory. An alternative to our decision to use geographic areas for licensing would have been to employ a site-by-site licensing approach. Site-by-site licensing, however, would be an inefficient licensing method due to a greater strain on Commission resources and less flexibility afforded to licensees.
22. We have also made adjustments to the band plan to license the spectrum in different bandwidths. We do not believe this will disadvantage small entities. In fact, we have decided that the RSA/MSA license areas will be licensed as paired spectrum at 1710-1720 and 2110-2120 for a total of 734 licenses, and we have decided that the B and C blocks will be licensed as paired 10- and 5-MHz blocks, respectively, on an EA basis. These block sizes should provide flexibility to licensees in constructing their systems. Our approach provides maximum flexibility for both small and large entities to offer a wide range of communications services.
Report to Congress
23. The Commission will send a copy of the Order on Reconsideration , including this Supplemental FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Order on Reconsideration , including the Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Order on Reconsideration and Supplemental FRFA (or summaries thereof) will also be published in the Federal Register .
Ordering Clauses
C. Authority
24. This action is taken pursuant to sections 1, 2, 4(i), 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, and 333 of the Communications Act of 1934, as amended 47 U.S.C. 151, 152, 154(i), 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, and 333.
25. Accordingly, it is ordered that the Petition for Reconsideration filed by Rural Communications Association is granted to the extent indicated herein, and is otherwise denied.
26. It is further ordered that the Petition for Reconsideration filed by T-Mobile, USA, Inc. is granted to the extent indicated herein, and is otherwise denied.
27. It is further ordered that the Petition for Reconsideration filed by Council Tree Communications, Inc. is denied.
28. It is further ordered that the Petition for Reconsideration filed by Powerwave Technologies, Inc. is granted to the extent indicated herein.
29. It is further ordered that part 27 of the Commission's Rules is amended as set forth in the final rule changes.
30. It is further ordered that the Petition for Reconsideration filed by American Petroleum Institute and United Telecom Council is denied to the extent indicated herein.
31. It is further ordered that the rule amendments made by this Order and specified in the final rule changes shall become effective November 4, 2005.
32. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 27
Communications common carriers, Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 27 as follows:
PART 27—MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES
1. The authority citation for part 27 continues to read as follows:
Authority:
47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337 unless otherwise noted.
2. Section 27.5 is amended by revising paragraph (h) to read as follows:
§ 27.5
(h) 1710-1755 MHz and 2110-2155 MHz bands. The following frequencies are available for licensing pursuant to this part in the 1710-1755 MHz and 2110-2155 MHz bands:
(1) Three paired channel blocks of 10 megahertz each are available for assignment as follows:
Block A: 1710-1720 MHz and 2110-2120 MHz;
Block B: 1720-1730 MHz and 2120-2130 MHz; and
Block F: 1745-1755 MHz and 2145-2155 MHz.
(2) Three paired channel blocks of 5 megahertz each are available for assignment as follows:
Block C: 1730-1735 MHz and 2130-2135 MHz;
Block D: 1735-1740 MHz and 2135-2140 MHz; and
Block E: 1740-1745 MHz and 2140-2145 MHz.
3. Section 27.6 is amended by revising paragraph (h) to read as follows:
§ 27.6
(h) 1710-1755 and 2110-2155 MHz bands. AWS service areas for the 1710-1755 MHz and 2110-2155 MHz bands are as follows:
(1) Service areas for Block A (1710-1720 MHz and 2110-2120 MHz) are based on cellular markets comprising Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs) as defined by Public Notice Report No. CL-92-40 “Common Carrier Public Mobile Services Information, Cellular MSA/RSA Markets and Counties,” dated January 24, 1992, DA 92-109, 7 FCC Rcd 742 (1992), with the following modifications:
(i) The service areas of cellular markets that border the U.S. coastline of the Gulf of Mexico extend 12 nautical miles from the U.S. Gulf coastline.
(ii) The service area of cellular market 306 that comprises the water area of the Gulf of Mexico extends from 12 nautical miles off the U.S. Gulf coast outward into the Gulf.
(2) Service areas for Blocks B (1720-1730 MHz and 2120-2130 MHz) and C (1730-1735 MHz and 2130-2135 MHz) are based on Economic Areas (EAs) as defined in paragraph (a) of this section.
(3) Service areas for blocks D (1735-1740 MHz and 2135-2140 MHz), E (1740-1745 MHz and 2140-2145 MHz) and F (1745-1755 MHz and 2145-2155 MHz) are based on Regional Economic Area Groupings (REAGs) as defined by paragraph (a) of this section.
4. Section 27.11 is amended by revising section (i) to read as follows:
§ 27.11
(i) 1710-1755 MHz and 2110-2155 MHz bands. Initial authorizations for the 1710-1755 MHz and 2110-2155 MHz bands shall be for 5 or 10 megahertz of spectrum in each band in accordance with § 27.5(h) of this part.
(1) Authorizations for Block A, consisting of two paired channels of 10 megahertz each, will be based on those geographic areas specified in § 27.6(h)(1).
(2) Authorizations for Block B, consisting of two paired channels of 10 megahertz each, will be based on those geographic areas specified in § 27.6(h)(2).
(3) Authorizations for Block C, consisting of two paired channels of 5 megahertz each, will be based on those geographic areas specified in § 27.6(h)(2).
(4) Authorizations for Blocks D, consisting of two paired channels of 5 megahertz each, will be based on those geographic areas specified in § 27.6(h)(3).
(5) Authorizations for Blocks E, consisting of two paired channels of 5 megahertz each, will be based on those geographic areas specified in § 27.6(h)(3).
(6) Authorizations for Block F, consisting of two paired channels of 10 megahertz each, will be based on those geographic areas specified in § 27.6(h)(3).
5. Section 27.50 is amended by revising paragraphs (d) introductory text and (d)(1) to read as follows:
§ 27.50
(d) The following power and antenna height requirements apply to stations transmitting in the 1710-1755 MHz and 2110-2155 MHz bands:
(1) The power of each fixed or base station transmitting in the 2110-2155 MHz band and located in any county with population density of 100 or fewer persons per square mile, based upon the most recently available population statistics from the Bureau of the Census, is limited to a peak equivalent isotropically radiated power (EIRP) of 3280 watts. The power of each fixed or base station transmitting in the 2110-2155 MHz band from any other location is limited to a peak EIRP of 1640 watts. A licensee operating a base or fixed station utilizing a power of more than 1640 watts EIRP must coordinate such operations in advance with all Government and non-Government satellite entities in the 2025-2110 MHz band. Operations above 1640 watts EIRP must also be coordinated in advance with the following licensees within 120 kilometers (75 miles) of the base or fixed station: all Broadband Radio Service (BRS) licensees authorized under part 27 in the 2155-2160 MHz band and all AWS licensees in the 2110-2155 MHz band.
[FR Doc. 05-19761 Filed 10-4-05; 8:45 am]
BILLING CODE 6712-01-P