ACTION:
Final rule.
SUMMARY:
In this document the Federal Communications Commission's Public Safety and Homeland Security Bureau (PSHSB or Bureau), on delegated authority, addresses a petition for reconsideration of the reconfigured 800 MHz band plan established for the U.S.-Canada border in the Second Report and Order and, on its own motion, clarifies and corrects certain rules established in the Second Report and Order.
DATES:
Effective July 6, 2009.
ADDRESSES:
Federal Communications Commission, 445-12th Street, SW., Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT:
Brian Marenco, Policy Division, Public Safety and Homeland Security Bureau, (202) 418-0838.
SUPPLEMENTARY INFORMATION:
This is a summary of the Fourth Memorandum Opinion and Order, DA 09-442, released on February 25, 2009. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via e-mail at http://www.bcpiweb.com. It is also available on the Commission's Web site at http://www.fcc.gov.
1. In a July 2004 Report and Order, the Commission reconfigured the 800 MHz band to eliminate interference to public safety and other land mobile communication systems operating in the band, 69 FR 67823, November 22, 2004. However, the Commission deferred consideration of band reconfiguration plans for the border areas, noting that “implementing the band plan in areas of the United States bordering Mexico and Canada will require modifications to international agreements for use of the 800 MHz band in the border areas.” The Commission stated that “the details of the border plans will be determined in our ongoing discussions with the Mexican and Canadian governments.”
2. In a Second Memorandum Opinion and Order, adopted in May 2007, the Commission delegated authority to PSHSB to propose and adopt border area band plans once agreements are reached with Canada and Mexico, 72 FR 39756, July 20, 2007.
3. In July 2007, the U.S. and Canada reached an agreement on a process that will enable the U.S. to proceed with band reconfiguration in the border region. Consequently, on November 1, 2007, PSHSB issued a Further Notice of Proposed Rulemaking (FNPRM) seeking comment on specific proposals for reconfiguring the eight U.S.-Canada border regions, 72 FR 63869, November 13, 2007. The Commission received ten comments and eight reply comments in response to the FNPRM.
4. On May 9, 2008, PSHSB issued a Second Report and Order (Second RO) establishing reconfigured band plans in the U.S.-Canada border regions, 73 FR 33728, June 13, 2008. The band plans adopted in the Second RO are designed to separate—to the greatest extent possible—public safety and other non-cellular licensees from licensees that employ cellular technology in the band.
5. On July 14, 2008, Sprint filed a Petition for Clarification seeking reconsideration of certain portions of the 800 MHz Second RO.
6. Consequently, on February 25, 2009, PSHSB issued a Fourth Memorandum Opinion and Order (Fourth MOO) addressing Sprint's petition. In this Fourth MOO, PSHSB also clarifies and corrects certain rules established in the 800 MHz Second RO.
Procedural Matters
A. Final Regulatory Flexibility Certification
7. A Final Regulatory Flexibility Certification required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in Appendix A of the Fourth MOO.
B. Final Paperwork Reduction Act of 1995 Analysis
8. The Fourth MOO does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore it does not contain any new or modified “information burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198.
Final Regulatory Flexibility Certification
9. The Regulatory Flexibility Act of 1980, as amended (RFA) requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” The RFA generally defines “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 Small Business Administration (SBA). In sum, we certify that the rule changes and actions in the Fourth MOO will have no significant economic impact on a substantial number of small entities.
10. As required by the RFA, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the FNPRM in WT Docket 02-55, 72 FR 63869, November 13, 2007. In the FNPRM, the PSHSB sought written public comment on proposals to reconfigure the 800 MHz band along the U.S.-Canada border, including comment on the IRFA. Based upon the comments in response to the FNPRM, PSHSB established a new band plan for the 800 MHz band along the U.S.-Canada border in the Second RO and included a Final Regulatory Flexibility Analysis (“FRFA”) in that order, 73 FR 33728, June 13, 2008.
11. The Fourth MOO clarifies portions of the Second RO and addresses a petition for reconsideration of the Second RO filed by Sprint Nextel Corporation (Sprint). Interested parties were afforded notice and opportunity to comment on the petition for reconsideration. See 73 FR 43753 and 73 FR 45103.
12. Border Area Region 3 Band Plan. In its petition, Sprint states that the “allocation” of eight public safety pool channels above 815.75/860.75 MHz in Region 3 (Ohio/Michigan) along the U.S.-Canada border is both unnecessary and needlessly complicating for rebanding. In this proceeding, the Bureau had adopted a band plan for Region 3 which included over 300 channels for public safety in the lower portion of the band and an additional eight channels for public safety in the upper portion of the band immediately above 815.75/860.75 MHz. Sprint avers that the Bureau created enough spectrum “slots” to accommodate all existing public safety entities in the bottom of the band in this region. Consequently, Sprint seeks clarification that the Bureau intended to assign the eight channels above 815.75/860.75 MHz to the public safety pool, if, and only if, those channels are necessary for retuning public safety licensees that cannot be accommodated at the lowermost portion of the band. The State of Michigan (Michigan) opposes Sprint's proposal to modify the Region 3 band plan. Michigan notes that the Bureau's decision to provide a small allocation of non-NPSAC public safety channels above 815.75/860.75 MHz was in direct response to comments from public safety entities who advised the Bureau that these additional channels were needed to maintain post-rebanding spectrum comparability. For instance, Michigan notes that any attempt to accommodate non-NPSAC licensees in the 806-809 MHz/851-854 MHz portion of the band could seriously jeopardize the “smooth” migration of the NPSPAC licensees to this portion of the band.
13. The Bureau agrees with Michigan on this issue and, in the Fourth MOO, declines to make the change to the Region 3 band plan proposed by Sprint. The Bureau indicates that the eight 25 kHz spaced channels above 815.75/860.75 MHz will be needed to accommodate non-NPSPAC public safety licensees relocating from the new NPSPAC band (806-809/851-854 MHz). Without these channels, the Bureau is concerned that additional non-NPSPAC public safety licensees will be forced to remain in the new NPSPAC band further complicating the relocation of NPSPAC licensees to this portion of the band. Since the Bureau is electing to make no change to the Region 3 band plan, we certify that our decision here will have no significant economic impact on a substantial number of small entities.
14. Requests for Planning Funding. In its petition, Sprint seeks clarification that the Bureau did not intend to change the existing process for the submitting and handling of Requests for Planning Funding (RFPF) when the Bureau created its timeline for planning, negotiation and mediation for licensees along the U.S.-Canada border to complete planning. Sprint notes that pursuant to the current policies established by the 800 MHz Transition Administrator (TA), licensees are to submit RFPFs first to the TA and then, once they are deemed acceptable for processing, to Sprint. Consequently, in the Fourth MOO, the Bureau clarifies that it had no intention of modifying the TA's policy for submission and handling of RFPFs and specifies that border area licensees who intend to seek planning funding should first submit RFPFs to the TA for approval before submitting them to Sprint in accordance with the TA policy. Because the Bureau is making no change to the TA's existing policy, we certify that this clarification will have no significant impact on a substantial number of small entities.
15. Clarifications and Corrections to Section 90.619(c). In the Second RO, the Bureau updated Section 90.619(c) to reflect the new 800 MHz band plan along the U.S.-Canada border. In the Fourth MOO, the Bureau makes certain clarifications and corrections to Section 90.619(c). Specifically, in Table C3 of Section 90.619(c), the Bureau corrects the range for certain assumed average terrain elevation levels along the U.S.-Canada border. The Bureau also modifies Table C5 of Section 90.619(c) to clarify that licensees operating within 30 kilometers of certain cities along the U.S.-Canada border are exempt from sharing primary spectrum with Canada but subject to the power and antenna height limits which apply to all licensees operating along the border. Furthermore, the Bureau corrects a typo in Table C7 of Section 90.619(c) which lists channels available for licensing in the General Category along the U.S.-Canada border. We certify that none of these clarifications or corrections will have a significant impact on a substantial number of small entities.
C. Report to Congress
16. The Commission will send a copy of the Fourth MOO, including the Final Regulatory Flexibility Certification, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
Ordering Clauses
17. Accordingly, it is ordered, pursuant to sections 4(i) and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 332, this Fourth Memorandum Opinion and Order is adopted.
18. It is further ordered that the amendments of the Commission's rules set forth in the rule changes are adopted, effective July 6, 2009.
19. It is further ordered that the Final Regulatory Flexibility Certification required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, and as set forth in Appendix A herein is
adopted.
20. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Fourth Memorandum Opinion and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 90
Radio.
Federal Communications Commission.
David Furth,
Acting Chief, Public Safety and Homeland Security Bureau.
Rule Changes
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:
PART 90—PRIVATE LAND MOBILE RADIO SERVICES
1. The authority citation for part 90 continues to read as follows:
Authority:
Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).
2. In Section 90.619, Table C3 in paragraph (c)(2), Table C5 of paragraph (c)(5) and the introductory text, Table C7 of paragraph (c)(7), and paragraph (c)(11) introductory text are revised to read as follows:
§ 90.619
(c) * * *
(2) * * *
Table C3—Assumed Average Terrain Elevation (AATE) Along the U.S.-Canada Border
Longitude (Φ) (° West)
Latitude (Ω) (° North)
Assumed average terrain elevation
United States
Feet
Metres
Canada
Feet
Metres
65 ≤ Φ 69
Ω 45
0
0
0
0
”
45 ≤ Ω 46
300
91
300
91
”
Ω ≥ 46
1000
305
1000
305
69 ≤ Φ 73
All
2000
609
1000
305
73 ≤ Φ 74
”
500
152
500
152
74 ≤ Φ 78
”
250
76
250
76
78 ≤ Φ 80
Ω 43
250
76
250
76
”
Ω ≥ 43
500
152
500
152
80 ≤ Φ 90
All
600
183
600
183
90 ≤ Φ 98
”
1000
305
1000
305
98 ≤ Φ 102
”
1500
457
1500
457
102 ≤ Φ 108
”
2500
762
2500
762
108 ≤ Φ 111
”
3500
1066
3500
1066
111 ≤ Φ 113
”
4000
1219
3500
1066
113 ≤ Φ 114
”
5000
1524
4000
1219
114 ≤ Φ 121.5
”
3000
914
3000
914
121.5 ≤ Φ 127
”
0
0
0
0
Φ ≥ 127
54 ≤ Ω 56
0
0
0
0
”
56 ≤ Ω 58
500
152
1500
457
”
58 ≤ Ω 60
0
0
2000
609
”
60 ≤ Ω 62
4000
1219
2500
762
”
62 ≤ Ω 64
1600
488
1600
488
”
64 ≤ Ω 66
1000
305
2000
609
”
66 ≤ Ω 68
750
228
750
228
”
68 ≤ Ω 69.5
1500
457
500
152
”
Ω ≥ 69.5
0
0
0
0
(5) Stations authorized to operate within 30 kilometers of the center city coordinates listed in Table C5 may operate according to the band plan for Canadian Border Regions 7A and 7B as indicated below.
Table C5—Cities That Are Considered To Fall Within Candian Border Region 7
Location
Coordinates
Latitude
Longitude
Canadian border region
Akron, Ohio
41°05′00.2″ N
81°30′39.4″ W
7A
Youngstown, Ohio
41°05′57.2″ N
80°39′01.3″ W
7A
Syracuse, New York
43°03′04.2″ N
76°09′12.7″ W
7B
(7) * * *
Table C7—General Category 806-821/851-866 MHz Band Channels in the Canada Border Regions
Canada border region
General category channels where 800 MHz high density cellular systems
are prohibited
General category channels where 800 MHz high density cellular systems
are permitted
Regions 1, 4, 5 and 6
261-560
561-710
Region 2
231-620
621-710
Region 3
321-500
509-710
Regions 7A and 8
231-260, 511-550
None
Region 7B
511-550
None
(11) In Canada Border Regions 1, 2, 3, 4, 5 and 6, the following General Category channels are available for licensing to all entities except as described below in paragraphs (c)(11)(i) and (c)(11)(ii): in Regions 1, 4, 5 and 6, channels 261-560; in Region 2, channels 231-620 and in Region 3, channels 321-500.
[FR Doc. E9-10324 Filed 5-4-09; 8:45 am]
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