issue-1996-02-16•Federal Register proposed rules — 1996-02-16
Federal Register proposed rules — 1996-02-16
issue-1996-02-16Federal Register proposed rules — 1996-02-16Proposed Regulation
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FR Doc. 96-3657 Future Development of Paging Systems and Implementation of Section 309(j) of the Communications ActCompetitive Bidding
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6199-6210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3657]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 22 and 90
[WT Docket No. 96-18; PP Docket No. 93-253; FCC 96-52]
Future Development of Paging Systems and Implementation of
Section 309(j) of the Communications Act--Competitive Bidding
AGENCY: Federal Communications Commission.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: In this Notice of Proposed Rule Making in WT Docket No. 96-18
and PP Docket No. 93-253 (Notice), the Commission proposes to implement
geographic licensing for paging services to streamline licensing
procedures for Common Carrier Paging (CCP) and Private Carrier Paging
(PCP). The Commission proposes to transition to a geographic licensing
approach, and issue licenses for geographic areas, rather than on a
transmitter-by-transmitter basis. The Commission also proposes to adopt
competitive bidding rules to select among mutually exclusive paging
applications.
The Commission also addresses how paging applications should be
treated during the pendency of this rulemaking. The Commission proposes
to hold in abeyance and not process applications for paging channels
received after the adoption date of this Notice, except during the
pendency of this proceeding incumbent licensees may add sites to
existing systems or modify existing sites, so long as such additions or
modifications do not expand the interference contour of the incumbent's
existing system. With respect to CCP and PCP licensees who have
obtained nationwide exclusivity, the Commission will allow applications
for additional sites, without restrictions.
With respect to paging applications that were filed prior to the
February 8, 1996 adoption date of this Notice and remain pending, the
Commission proposes to process such applications provided that they are
not mutually exclusive with other applications, and the relevant period
for filing competing applications has expired as of the adoption date
of this Notice. The processing of mutually exclusive pending
applications and applications for which the relevant period for filing
competing applications has not yet expired will be held in abeyance
until the conclusion of this proceeding. In the Notice, the Commission
examines ways to promote continued growth and preserve vigorous
competition in the paging industry through revisions to the common
carrier and private carrier paging regulations. The Commission seeks to
establish a comprehensive and consistent regulatory scheme that will
simplify and streamline licensing procedures. To reach this objective,
the Commission proposes to transition to geographic licensing and to
adopt competitive bidding rules for mutually exclusive paging
applications.
DATES: Comments are to be filed on or before March 18, 1996. Reply
Comments are to be filed on or before April 2, 1996. Comments on the
Interim Licensing Proposal are to be filed on or before March 1, 1996.
Reply Comments on the Interim Licensing Proposal are to be filed on or
before March 11, 1996.
ADDRESSES: Federal Communications Commission, 1919 M Street, N.W.,
Washington, D.C. 20554.
FOR FURTHER INFORMATION CONTACT: Mika Savir or Rhonda Lien, Commercial
Wireless Division, Wireless Telecommunications Bureau, at (202) 418-
0620.
SUPPLEMENTARY INFORMATION: This Notice of Proposed Rule Making in WT
Docket No. 96-18 and PP Docket No. 93-253, adopted February 8, 1996,
and released February 9, 1996, is available for inspection and copying
during normal business hours in the FCC Dockets Branch, Room 230, 1919
M Street, N.W., Washington, D.C. The complete text may be purchased
from the Commission's copy contractor, International Transcription
Service, Inc., 2100 M Street, N.E., Suite 140, Washington, D.C. 20037
(202) 857-3800).
Synopsis of Notice of Proposed Rule Making:
I. Background
1. The Commission first allocated spectrum for the CCP service in
1949. The Commission responded to the growth of the paging market in
1982 by allocating 40 new channels in the 931 MHz band exclusively for
use by CCP operators and dedicating three of these channels for use by
nationwide systems.
2. PCP was established by the Commission, and authorized on
specified channels within each private radio service category, with
licensees authorized either to operate systems for their own internal
use or to provide service to limited categories of eligible users. In
1982, the Commission allocated 40 channels in the 929 MHz band for PCP,
with some channels to be licensed for internal-use systems and others
for PCP systems that could provide commercial paging service to
eligible users under Part 90. In 1993, the Commission allowed PCP
operators to provide service to the public on virtually the same
unrestricted basis as CCP operators.
3. The Omnibus Budget Reconciliation Act of 1993 amended the
Communications Act of 1934, as amended (the Act) to divide all mobile
services into two categories: Commercial Mobile Radio Services (CMRS)
and private mobile radio service (PMRS), and mandated that
``substantially similar'' mobile services receive comparable regulatory
treatment. The Commission concluded in the CMRS Second Report and
Order, Implementation of Sections 3(n) and 332 of the Communications
Act, Second Report and Order, GN Docket No. 93-252, 59 Fed. Reg. 18493
(April 19, 1994) (CMRS Second Report and Order), that PCP services were
subject to reclassification as CMRS as of August 10, 1996. In the CMRS
Third Report and Order, Implementation of Sections 3(n) and 332 of the
Communications Act, Third Report and Order, GN Docket No. 93-252, 59
Fed. Reg. 59945 (Nov. 21, 1994) (CMRS Third Report and Order), the
Commission concluded that PCP and CCP are substantially similar
services that should be subject to comparable regulation to the extent
feasible, and that geographic licensing should be considered in both
services.
[[Page 6200]]
A. Common Carrier Paging
a. Current Licensing Procedures
4. Under current rules, a CCP channel is assigned to a single
licensee in each area on an exclusive basis. Licensees' protected
service areas are based upon predicted coverage of the transmitters in
their systems; licensees must apply for additional transmitter
locations when expanding their systems. On all CCP allocations other
than 931 MHz, known as lower band CCP channels, applicants specify
which channels they want. Applications filed within the designated
filing window for the same channel in the same area are, by definition,
mutually exclusive. The 931 MHz band applications are not channel-
specific. Therefore, when there are more available channels in an area
than there are applications for new channel assignments, 931 MHz
applications are not mutually exclusive. In most major markets, the
number of applications often exceeds the number of available channels,
resulting in all applications being treated as mutually exclusive.
b. Part 22 Rewrite Order
5. In the Part 22 Rewrite Order, Revision of Part 22 of the
Commission's Rules Governing the Public Mobile Services, Report and
Order, CC Docket No. 92-115, 59 Fed. Reg. 59502 (Nov. 17, 1994) (Part
22 Rewrite Order), the Commission revised its licensing rules for all
Part 22 services, including adoption of new licensing rules for 931 MHz
paging frequencies. The Part 22 Rewrite Order provided that, as of
January 1, 1995, all 931 MHz applicants, including those who had
applications pending under the old rules, would be required to specify
channels in their applications. After a 60-day filing window for such
channel-specific applications, the Commission would grant those
applications that were not mutually exclusive and use competitive
bidding to select among the mutually exclusive applications.
B. Private Carrier Paging
a. Current Licensing Procedures
6. Historically, PCP channels have been licensed on a shared basis,
such that licensees would not obtain exclusive rights to a particular
channel and may be required to share the channel with others in the
same area. Under the current rules, PCP applicants for all non-929 MHz
PCP channels and five of the forty 929 MHz channels must submit their
applications to a frequency coordinator who recommends a channel to be
assigned by the Commission. PCP applicants are not currently subject to
competing applications or mutual exclusivity selection procedures, such
as lotteries, comparative hearings, or auctions.
7. As a result of the Commission's adoption of the PCP Exclusivity
Order, Amendment of the Commission's Rules to Provide Channel
Exclusivity to Qualified Private Paging Systems at 929-930 MHz, Report
and Order, PR Docket No. 93-35, 58 Fed. Reg. 62289 (Nov. 26, 1993) (PCP
Exclusivity Order), thirty-five of the forty 929 MHz PCP channels may
be licensed on an exclusive basis. Licensees whose systems operate on
these channels were allowed to earn exclusivity on a local, regional,
or nationwide basis, by constructing multi-transmitter systems meeting
certain build out criteria. The remaining incumbent licensees are
allowed to continue operating without being forced to change channels
or location. Applicants for exclusive PCP channels continue to submit
their applications to a frequency coordinator, and applications are
processed on a first-come, first-served basis.
II. Discussion
A. Geographic Licensing Proposal
a. Overview
8. Paging operators currently choose the areas they seek to serve
by applying for licenses on a site-by-site basis. The boundary of the
licensee's service area is derived from the composite service areas of
existing base stations. Geographic licensing for paging channels would
enhance regulatory symmetry with other CMRS services. In this Notice,
the Commission considers geographic licensing in the context of all
paging channels, including 931 MHz, 929 MHz, and lower band CCP and PCP
channels.
9. The Commission tentatively concludes that the public interest
would be served by converting to geographic licensing for all paging
channels that are licensed on an exclusive, non-nationwide basis.
Licensing such systems by geographic areas for ten-year license terms,
rather than by individual sites, would simplify paging system expansion
and substantially reduce the administrative burden on both paging
licensees and the Commission.
10. The Commission proposes that all incumbent systems be entitled
to continue operating under existing authorizations with full
protection from interference. Geographic licensees and incumbents could
enter into voluntary negotiations with respect to the purchase or
relocation of the incumbents' facilities. Any request for transfer or
assignment of an incumbent authorization to the geographic licensee is
presumed to be in the public interest, although each request will be
reviewed as required by Section 310(d) of the Act. In addition, if an
incumbent fails to construct, discontinues operations, or otherwise has
its license terminated, the Commission proposes that the geographic
area covered by the incumbent's authorization revert automatically to
the geographic licensee. To the extent geographic licensing is adopted,
the Commission proposes to eliminate the finder's preference under Part
90 of the Commission's rules. The Commission seeks comment on the
geographic licensing proposal.
11. 931 MHz and 929 MHz Channels. Under the geographic licensing
proposal in this Notice, 931 and 929 MHz licensees would be extended
the same flexibility, to the extent feasible, as cellular and PCS
licensees in terms of the location, design, construction, and
modification of their facilities throughout their geographic areas. The
Commission tentatively concludes that geographic licensing would
decrease the filing burden on 931 and 929 MHz licensees and provide
additional operational flexibility. Such licensing also would expedite
the processing of applications by reducing the number of licenses to be
issued and simplifying the determinations of which license applications
are mutually exclusive. The Commission seeks comment on this tentative
conclusion.
12. Nationwide Channels. The Commission proposes to exclude from
geographic licensing the following channels that have been assigned to
single licensees on a nationwide basis under the existing rules: the
three CCP channels (931.8875, 931.9125, and 931.9375 MHz) dedicated for
nationwide use and all PCP channels for which licensees have met the
construction requirements for nationwide exclusivity as of the adoption
date of this Notice. The Commission will announce, by Public Notice,
the specific PCP channels excluded for nationwide use at a later time.
The Commission tentatively concludes that a licensee who has obtained
nationwide exclusivity on a paging channel should be given a single
nationwide license for use of the channel instead of continuing to
operate under site-specific authorizations. The Commission tentatively
concludes that if a licensee fails to comply with the construction and
service requirements for nationwide exclusivity, the channel should be
made available for geographic licensing, and such licensee would
receive protection as an incumbent only
[[Page 6201]]
for those areas where it has completed construction and commenced
service. The Commission seeks comment on whether MTel's second channel
(931.4375 MHz) used virtually on a nationwide basis, should be
designated a nationwide channel, and whether it should be excluded from
our geographic licensing proposal.
13. Lower Band CCP Channels. The Commission also tentatively
concludes that geographic licensing should be extended to CCP channels
in the 35, 43, 152, and 454 MHz bands. The Commission asks commenters
to address the relative costs and benefits of converting lower band
channels to geographic licensing. The Commission also seeks comment on
whether competitive bidding should be used to select among mutually
exclusive paging and BETRS applications, and whether to allow
geographic partitioning of licensing areas to make spectrum available
to BETRS operators in sparsely populated regions.
14. Shared PCP Channels. The Commission seeks comment on whether
and when to use geographic licensing for lower band PCP channels (i.e.,
those PCP frequencies in the 152/158 MHz, 462 MHz, 465 MHz bands),
which currently are licensed on a shared basis. The Commission also
seeks comment on whether to (1) convert lower band shared PCP channels
to exclusive use and implement geographic licensing; (2) issue only a
certain number of licenses per shared channel and use competitive
bidding to choose among mutually exclusive applications once the limit
is reached; or (3) retain the status quo. The Commission tentatively
concludes that if the shared paging channels were to convert to
exclusive licensing, a geographic licensing approach would be
appropriate.
15. The Commission requests comment on the costs and benefits of
continuing to license some channels on a shared basis versus licensing
all channels on an exclusive basis, how such licensing plans would
affect the rights of incumbent licensees, and whether a geographic plan
is the most practical way in which to begin licensing these channels on
an exclusive basis.
b. Defining the Service Areas
16. The Commission seeks comment on the use of Metropolitan
Statistical Areas (MTAs) and on other options for defining service
areas for all of the various paging services. The Commission
tentatively concludes that MTAs form the most appropriate geographic
area boundaries for paging systems, because they are economically-
defined regions that appear to best mirror the size and development of
existing paging systems. MTAs also offer advantages from an
administrative perspective, because they are more efficient for the
Commission to license than smaller areas that require issuance of more
licenses. Commenters should provide empirical data on the area covered
by existing paging systems and how such coverage areas compare to MTAs.
17. The Commission tentatively concludes that, if MTA service areas
are adopted, three licensing regions in addition to the 47 Rand McNally
MTAs would be used to cover United States territories: Guam and the
Northern Mariana Islands would be licensed as a single area, Puerto
Rico and the U.S. Virgin Islands as a single area, and American Samoa
as a single area. Alaska would be licensed as a single area separate
from the Seattle MTA.
18. Rand McNally is the copyright owner of the MTA/BTA Listings,
which list the counties contained in each BTA/MTA, as embodied in Rand
McNally's Trading Area System BTA/MTA Diskette and geographically
represented in the map contained in Rand McNally's Commercial Atlas &
Marketing Guide. Rand McNally has licensed the use of its copyrighted
MTA/BTA Listings and maps for certain services such as PCS, 800 MHz and
900 MHz SMR, and Local Multipoint Distribution Services. These blanket
licensing agreements authorize the conditional use of Rand McNally's
copyrighted material in connection with these particular services,
require interested persons using the material to include a legend on
reproductions (as specified in the license agreement) indicating Rand
McNally's ownership, and provide for a payment of a license fee to Rand
McNally. Currently, paging services are not covered by a blanket
copyright license agreement. A paging authorization grantee who does
not obtain a copyright license (either through a blanket license
agreement or some other arrangement) from Rand McNally for use of the
copyrighted material may not rely on grant of a Commission
authorization as a defense to any claim of copyright infringement
brought by Rand McNally against such grantee.
c. Treatment of Incumbents
19. The Commission tentatively concludes that there is no feasible
means to relocate incumbents to alternative channels. Therefore,
incumbent licensees would be allowed to continue to operate under their
existing site-specific authorizations or a single system-wide license,
and geographic licensees would be required to provide protection to all
co-channel systems that are constructed and operating within their
service areas. No incumbent licensee would be allowed to expand beyond
its existing interfering contour and into the geographic licensee's
territory without the consent of the geographic licensee unless the
incumbent in question is itself the geographic licensee for the
relevant channel.
20. The Commission proposes that incumbent licensees should be
permitted to modify or add transmitters in their existing service area
without prior notification to the Commission, as long as the
interfering contour of the pre-existing system is not expanded.
Incumbents would be free to negotiate voluntary arrangements with
geographic licensees to allow expansion within a geographic area. The
Commission seeks comment on whether this proposal strikes a proper
balance between the competing interests of geographic and incumbent
licensees and whether there are any circumstances under which
incumbents should be permitted to expand into unserved areas without
the geographic licensee's consent.
d. Coverage Requirements
21. The Commission seeks comment on whether geographic paging
licensees should be subject to minimum coverage requirements as a
condition of licensing. The Commission tentatively concludes that
geographic licensees should be required to provide coverage to one-
third of the population within their geographic areas within three
years of initial license grant and to two-thirds of the population by
the end of five years, or in the alternative, provide substantial
service to the geographic license area at five years. A geographic
licensee must, three years from license grant, either submit a showing
that the one-third population coverage standard has been met, or
provide written notification that it has elected to show substantial
service to the geographic license area five years from license grant.
Each geographic licensee must, three years from license grant, indicate
how it expects to demonstrate substantial service at five years. The
Commission tentatively concludes that population-based coverage
requirements are more appropriate than geographic-based coverage
requirements, because strictly geographic-based requirements may lead
to coverage in sparsely populated areas where service is not needed or
is economically unjustified. The Commission requests comment on the
costs and benefits of imposing coverage requirements on geographic
licensees,
[[Page 6202]]
the specific coverage criteria proposed, and any alternative criteria.
22. The Commission tentatively concludes that under this geographic
licensing scheme, ``slow growth'' extensions for paging systems in the
929-930 MHz spectrum are unnecessary and that such extensions could
hinder geographic licensing because an incumbent licensee obtaining a
construction extension could effectively occupy an entire market area.
Therefore, the Commission proposes to dismiss all ``slow growth''
applications pending at the time an order pursuant to this Notice is
adopted, without prejudice to refile under the new geographic licensing
scheme. The Commission seeks comment on its tentative conclusion and
proposal to dismiss pending ``slow-growth'' extensions.
23. The Commission also tentatively concludes that, regardless of
the extent to which their respective service areas are occupied by co-
channel incumbents, geographic licensees should be responsible for
meeting their coverage requirements. This rule will deter applicants
who have a limited ability to provide coverage in a geographic area
from seeking the geographic license for anti-competitive reasons, e.g.,
to block expansion by an incumbent who already provides substantial
coverage. The ``substantial service'' option will provide an incentive
for incumbents already providing substantial coverage to seek
geographic licenses in the areas they serve. The Commission proposes to
require the geographic licensee to meet its coverage requirement
directly (e.g., by utilizing vacant spectrum or acquiring such spectrum
through buy-outs of incumbent licensees). The Commission asks
commenters to address the advantages and disadvantages of these
proposals and any alternatives.
24. The Commission tentatively concludes that a geographic
licensee's failure to meet the coverage requirements should result in
automatic cancellation of the geographic license. The Commission also
tentatively concludes that if a licensee loses its geographic license
for failure to comply with coverage requirements authorizations that
the licensee held prior to the auction for sites constructed and
operating would be reinstated. The Commission requests comment on this
proposal and any alternatives.
e. Co-Channel Interference Protection
25. The Commission seeks comment on the appropriate interference
protection criteria for incumbent co-channel facilities and to co-
channel licensees in neighboring service areas.
a. Protection of Incumbent Systems
26. Paging systems are currently protected from co-channel
interference by a variety of rules that govern transmitter height and
power, distance between stations, the licensee's protected service
area, and/or the field strength of the licensee's service and
interfering signals. The Commission proposes to retain these criteria
to define the interference protection rights of incumbent licensees
under any geographic licensing scheme that may be adopted. There are
some variations in the specific methodologies used to measure
interference in the different paging services. Therefore, the
Commission seeks comment on whether to adopt a standard methodology for
measuring interference in all paging bands or to retain existing
criteria in our rules.
27. Lower Band CCP Channels. In the Part 22 Rewrite Order, the
Commission adopted a series of mathematical formulas to determine
service and interfering contours in each CCP frequency range, other
than 931 MHz. If lower band CCP channels are converted to geographic
licensing, the Commission proposes to retain the mathematical formulas
and contour overlap provisions adopted in the Part 22 Rewrite Order to
define the interference protection rights of incumbents. The Commission
seeks comment on this proposal, and asks commentators to provide
empirical evidence showing whether the current Part 22 formulas would
provide satisfactory co-channel protection to incumbents.
28. 931 MHz Channels. The Commission seeks comment on whether
incumbents licensed in the 931 MHz band should continue to be protected
based on our existing tables of standard radii if geographic licensing
is adopted for 931 MHz channels. The Commission tentatively concludes
that the eight-radial contour method and mathematical formulas used for
the lower band CCP channels may be preferable to a fixed table of
standard radii, because it will more reasonably predict potential
interference to incumbents and provide geographic licensees with
greater flexibility in placing their facilities. The Commission invites
comment on this tentative conclusion.
29. The Commission seeks comment on the appropriate mathematical
formula for determining service and interference contours if the eight-
radial contour method for 931 MHz channels is adopted. The Commission
proposes to use the following mathematical formula, which is similar to
the formulas used in the lower band CCP services:
d = k x hx x py
The proposed formula is derived from the form of equations commonly
used for propagation path loss. In this formula, ``d'' is the radial
distance to the contour, ``h'' is the antenna center of radiation
height above average terrain along the cardinal radial, ``p'' is the
radial effective radiated power. The remaining factor ``k'' and
exponents ``x'' and ``y'' are numerical figures that can be determined
experimentally by matching the resulting curve to that of an
established propagation model for a given signal field strength. The
Commission proposes to assume a median field strength of 47
dBV/m as the basis for the service contour to determine the
appropriate formula for the 931 MHz service and interference contour
calculations. Statistically, this equates to a reasonably strong field
strength (in the 32 to 40 dBV/m range) at more than 90% of
locations in a suburban environment. The Commission proposes to assume
a median field strength of 21 dBV/m as the basis for the
interfering contour. The Commission proposes to derive corresponding
distances from these field strengths by using the Okumura 900 MHz
propagation curves as the propagation model. The specific formulas
would be:
Service: dkm = 0.108 x hm0.61 x pw0.32
Interfering: dkm = 3.033 x hm0.38 x pw0.16
In these formulas, ``km'' represents kilometers, ``m'' represents
meters, and ``w'' represents watts. The Commission seeks comment on
these formulas and their suitability for calculating service and
interfering contours for 931 MHz paging systems. Applying the formula,
a paging station operating at 1000 watts effective radiated power with
an antenna height of 305 meters (1000 feet) above average terrain would
have a service contour of approximately 32.2 kilometers (20 miles),
which is consistent with the service radius afforded under the current
rules. The Commission seeks comment on whether any variations in the
formula are needed, and on the field strength proposed for service and
interfering contours.
30. 929 MHz Exclusive Channels. Interference protection for
exclusive 929 MHz licensees currently is provided by rules requiring
standard minimum geographic separations between stations, which are
based on station height and power. These separations are based on the
same height-power table that is used for 931 MHz paging. The PCP rules,
unlike the CCP rules, do not
[[Page 6203]]
formally define a protected service contour or interference contour for
each station. The Commission proposes to adopt service and interference
contour criteria for 929 MHz paging using the same methodology proposed
for 931 MHz paging.
31. Non-Exclusive PCP Channels. Rules for paging systems on non-
exclusive PCP channels prescribe operating requirements such as
monitoring prior to transmitting to determine if the channel already is
in use, minimizing the length of messages, and yielding to others
transmitting communications related to the immediate safety of life.
The Commission requests comment on whether incumbent licensees should
receive interference protection.
b. Maximum Power and Height-Power Limits
32. Maximum Power Limits. In the Part 22 Rewrite proceeding, the
Commission concluded that a maximum power limit of 3500 Watts ERP is
appropriate for paging facilities in the 931 MHz band, because it
allows for the use of high power facilities where needed, yet provides
sufficient protection from intermodulation interference and receiver
desensitization. The Commission tentatively concludes that the maximum
ERP limit for these facilities should be raised to a maximum of 3500
Watts in order to bring the rules governing non-nationwide 929 MHz
facilities into conformity with those already in effect for 931 MHz,
nationwide 929 MHz, and Narrowband PCS facilities. This would provide
929 MHz licensees with the benefits of higher power operation without
unduly increasing the risk of interference. The Commission proposes to
retain the current maximum ERP limits for the various lower band paging
channels and seeks comment on this proposal and any alternatives.
33. Maximum Height-Power Limits. Height-power limits serve to limit
the service and interfering range of a facility to a constant distance.
The Commission proposes to eliminate the height-power limit for 929 MHz
licensees. With respect to the lower band channels, most of which
continue to be occupied by smaller systems, the Commission proposes to
maintain the current height-power limits, to continue to limit the
range of each facility and promote spectrum efficiency.
c. Adjacent Geographic Licensees
34. The Commission tentatively concludes that geographic licensees
should provide interference protection either by (1) reducing the
signal level at their service area boundary (e.g., by positioning
directional antennas in such a way that the contour does not encroach
on a geographic licensee's adjacent territory), or (2) negotiating some
other mutually acceptable agreement with all potentially affected
geographic licensees in adjacent areas. The Commission seeks comment on
this proposal and any alternatives.
f. Licensing in Mexican and Canadian Border Areas
35. In the Mexican and Canadian border areas, paging channel
availability may be restricted by treaty and limitations on ERP and
antenna height may be placed on additional channels. The Commission
tentatively concludes that all geographic areas should be licensed on a
uniform basis without distinguishing border from non-border areas, even
if some spectrum is unusable, if paging services are converted to
geographic licensing. The Commission proposes that geographic licensees
be entitled to use any available border-area channels, subject to the
relevant rules regarding international assignment and coordination of
such channels.
g. Eligibility
36. The Commission tentatively concludes that both incumbents and
new entrants should be allowed to apply for geographic licenses without
restrictions on eligibility. In cases where there are multiple co-
channel incumbents in a geographic area, the Commission tentatively
concludes that incumbents can form consortia or joint ventures and
apply collectively for the geographic license, or enter into
partitioning agreements. The Commission seeks comment on these
proposals. In particular, commenters are requested to discuss the
relationship between the coverage already provided by an incumbent in a
geographic area and the perceived value of the geographic license to
that incumbent and other potential applicants.
h. Channel Aggregation Limit
37. The Commission proposes to assign geographic licenses on a
channel-by-channel basis. The Commission seeks comment on whether an
aggregation limit is appropriate for paging frequencies, and if so,
what that limit should be. The Commission seeks comment on whether it
would be more appropriate to cap the combined aggregation of paging and
narrowband PCS spectrum rather than imposing a limit on paging only.
B. Competitive Bidding Issues
a. Auctionability of Paging Services
38. The Commission proposes to adopt comparable competitive bidding
procedures for both exclusive PCP channels and CCP channels, and seeks
comment on this proposal. The Commission seeks comment on what
competitive bidding methods should be used to award licenses in
conjunction with the proposal to adopt geographic licensing for CCP
services. The Commission also seeks comment on whether to adopt
equivalent competitive bidding procedures for competing applications
for exclusive PCP channels.
b. Competitive Bidding Design
a. Bidding Methodology
39. In the Competitive Bidding Second Report and Order,
Implementation of Section 309(j) of the Communications Act--Competitive
Bidding, Second Report and Order, PP Docket No. 93-253, 59 Fed. Reg.
(May 4, 1994) (Competitive Bidding Second Report and Order), the
Commission established criteria to select which auction design method
to use for particular auctionable services. The two most important
design elements are the number of auction rounds (single or multiple),
and the order in which licenses are auctioned (sequentially or
simultaneously). These two elements can be combined to create four
basic auction designs: sequential single round, simultaneous single
round, sequential multiple round, and simultaneous multiple round. The
Commission seeks comment on which of the above auction methodologies
should be used for the auction of paging licenses.
40. In the Competitive Bidding Second Report and Order, the
Commission stated that simultaneous multiple round auctions would be
the preferred method where licenses have strong value
interdependencies. The Commission seeks comment on whether simultaneous
multiple round auctions would be too burdensome to implement from an
administrative perspective, given the large number of paging licenses,
and whether simultaneous multiple round auctions or another competitive
bidding methodology such as oral outcry is most appropriate for the
paging services.
b. License Grouping
41. Depending upon the auction methodology chosen, there are
several alternatives for grouping of paging licenses. The Commission
seeks comment on how paging licenses should be grouped for competitive
[[Page 6204]]
bidding purposes and on possible license groupings.
c. Bidding Procedures
42. In the Competitive Bidding Second Report and Order, the
Commission established general procedures for simultaneous multiple
round auctions, including bid increments, duration of bidding rounds,
stopping rules, and activity rules. The Commission seeks comment on the
bidding procedures that should be used for licensing of paging
services.
43. Bid Increments. If a multiple round auction is used, the
Commission proposes to establish minimum bid increments for bidding in
each round of the auction, based on the same considerations in prior
orders. The Commission proposes to adopt a minimum bid increment of
five percent of the high bid in the previous round or $0.01 per
activity unit, whichever is greater. The Commission proposes to retain
the discretion to vary the minimum bid increments for individual
licenses or groups of licenses at any time before or during the course
of the auction, based on the number of bidders, bidding activity, and
the aggregate high bid amounts. The Commission also proposes to retain
the discretion to keep an auction open if there is a round in which no
bids or proactive waivers are submitted.
44. Stopping Rules for Multiple Round Auctions. In a multiple round
auction, a stopping rule must be established for determining when the
auction is over. Markets may close individually, simultaneously, or a
hybrid approach may be used. The Commission seeks comment on whether a
stopping rule is needed and if so, which one should be used. A market-
by-market stopping rule would be the least complex approach from an
administrative perspective, if a multiple round auction is used. Under
a market-by-market approach, bidding closes on each license after one
round passes in which no new acceptable bids are submitted for that
particular license. With a simultaneous stopping rule, bidding remains
open on all licenses until there is no bidding on any license. Under a
hybrid approach, a simultaneous stopping rule, coupled with an activity
rule designed to bring the markets to close within a reasonable period
of time, could be used to close auctions with high value licenses. For
lower value licenses, the simpler market-by-market closing could be
employed.
45. Activity Rules. The Commission tentatively concludes that it is
unnecessary to implement an activity rule if a market-by-market
stopping rule is employed. An activity rule is less important when
markets close one by one, because failure to participate in any given
round may result in a lost opportunity to bid at all, if that round
turns out to be the last. The Commission seeks comment on this
tentative conclusion.
46. The Commission tentatively concludes that if an activity rule
is used, the Milgrom-Wilson approach should be used. The Commission
seeks comment on this tentative conclusion. Under the Milgrom-Wilson
approach, the minimum activity level, measured as a fraction of the
self-declared maximum eligibility, will increase during the course of
the auction. During the first stage of the auction, a bidder is
required to be active on licenses encompassing at least 60 percent of
the activity units for which it is eligible. The penalty for falling
below that activity level is a reduction in eligibility. During the
first stage, if activity is below the required minimum level,
eligibility in the next round will be calculated by multiplying the
current round activity by five-thirds (5/3). In the second stage, a
bidder who wishes to maintain its current eligibility is required to be
active on 80 percent of the activity units for which it is eligible in
the current round. During the second stage, if activity is below the
required minimum level, eligibility in the next round will be
calculated by multiplying the current round activity by five-fourths
(5/4). In the third stage, a bidder who wishes to maintain its current
eligibility is required to be active on licenses encompassing 95
percent of the activity units for which it is eligible in the current
round. In the final stage, if activity in the current round is below
the required activity level, eligibility in the next round will be
calculated by multiplying the current round activity by twenty-
nineteenths (20/19).
47. Duration of Bidding Rounds. The Commission proposes to retain
the discretion to vary the duration of bidding rounds or the interval
at which bids are accepted (e.g., run two or more rounds per day rather
than one), in order to move the auction toward closure more quickly. If
this mechanism is used, the Commission would most likely shorten the
duration and/or intervals between bidding rounds where there are
relatively few licenses to be auctioned, where the value of the
licenses is relatively low, or in early rounds to speed the auction
process. Where license values are expected to be high or where large
numbers of licenses are being auctioned, the Commission proposes to
increase the duration and/or intervals between bidding rounds. The
Commission proposes to announce by Public Notice the duration and
intervals between bidding rounds. The Commission also proposes to
announce by Public Notice, before each auction, the stopping rule to be
used. The Commission seeks comment on these proposals.
48. Anti-Collusion Rules. In the Competitive Bidding Second Report
and Order, the Commission adopted a special rule designed to prevent
collusive conduct in the context of competitive bidding. The Commission
tentatively concludes that the anti-collusion rules should be applied
to the auctions for paging services. The Commission proposes to apply
Section 1.2105(c) of the rules, which prohibits bidders that have
applied for any of the same geographic license areas from communicating
with one another regarding the substance of their bids or bidding
strategies after short-form applications (FCC Form 175) have been
filed. Additionally, applicants may not discuss the substance of their
bids or bidding strategies with bidders, other than those identified on
the short-form application, that are bidding in the same geographic
license areas. The post-filing deadline prohibition on discussions
extends to providing indirect information that affects bids or bidding
strategy. Communications among bidders concerning matters unrelated to
the license auction would be permitted. Even when an applicant has
withdrawn its application after the short-form filing deadline, the
applicant may not enter into a bidding agreement with another applicant
bidding on the geographic license areas from which the first applicant
withdrew. In addition, once the short-form application has been filed,
a party with an attributable interest in one bidder may not acquire a
controlling interest in another bidder bidding for licenses in any of
the same geographic license areas. Additionally, the Commission
proposes to amend Section 22.129 of the rules to prohibit settlements
between applicants after the short-form deadline has passed. The
Commission also proposes to require winning bidders to submit with
their long-form application a detailed explanation of the terms,
conditions, and parties involved in any auction-related consortium,
joint venture, partnership, or other agreement entered into prior to
the close of bidding.
49. There are three exceptions to the rule prohibiting discussions
with other applicants after the filing of the short-form application.
First, an applicant may modify its short-form application to reflect
formation of bidding agreements or changes in ownership at any time
before or during the auction, as long as
[[Page 6205]]
the changes do not result in change of control of the applicant, and
the parties forming the bidding agreement have not applied for licenses
in any of the same geographic license areas. Applicants may also make
agreements to bid jointly for licenses, so long as the applicants have
not applied for licenses in any of the same geographic license areas.
Finally, a holder of a non-controlling attributable interest in an
applicant may acquire an ownership interest in, or enter into a bidding
agreement with other applicants in the same geographic license area, if
the owner of the attributable interest certifies that it has not
communicated and will not communicate bids or bidding strategies of
more than one of the applicants in which it holds an attributable
interest or with which it has a bidding agreement, and the arrangements
do not result in any change of control of an applicant.
50. Bidders who are found to have violated the Commission's anti-
collusion rules or who are in violation of U.S. antitrust laws in
connection with participation in the auction process may, among other
sanctions, be subject to the loss of their down payment or their full
bid amount, cancellation of their licenses, and may be prohibited from
participating in future auctions. The Commission seeks comment on these
proposals.
c. Procedural and Payment Issues
a. Pre-Auction Application Procedures
51. As geographic licensees gain use of a large geographic area and
the freedom to locate base stations anywhere within that larger
geographic region, they differ from the existing paging service
licenses that are essentially confined to a smaller region.
Accordingly, the Commission proposes to treat all geographic applicants
as initial applicants for Public Notice, application processing, and
auction purposes, regardless of whether they are already incumbent
operators.
52. In the Competitive Bidding Second Report and Order, the
Commission determined that only a short-form application prior to
competitive bidding should be required, and that only winning bidders
should be required to submit a long-form license application after the
auction. The Commission proposes to extend the application of these
rules to the competitive bidding process for paging services.
53. Under this proposal, before a paging services auction, the
Wireless Telecommunications Bureau would release an initial Public
Notice announcing the auction. The initial Public Notice would specify
the licenses to be auctioned and the time and place of the auction in
the event that mutually exclusive applications are filed. The Public
Notice would specify the method of competitive bidding to be used,
applicable bid submission procedures, stopping rules, activity rules,
and the deadline by which short-form applications must be filed and the
amounts and deadlines for submitting the upfront payment. Applications
submitted before the release of the Public Notice would be returned as
premature. Likewise, applications submitted after the deadline
specified by Public Notice would be dismissed, with prejudice, as
untimely.
54. All bidders would be required to submit short-form applications
on FCC Form 175 (and FCC Form 175-S, if applicable), by the date
specified in the initial Public Notice. Applicants would be encouraged
to file FCC Form 175 electronically. Detailed instructions regarding
electronic filing would be contained in a bidder information package.
Those applicants filing manually would be required to submit one paper
original and one diskette original of their application, as well as two
diskette copies. The short-form applications would require applicants
to provide the information required by Section 1.2105(a)(2) of the
Commission's rules. Specifically, each applicant would be required to
specify on its FCC Form 175 application certain identifying
information, including its status as a designated entity (if
applicable), its classification (i.e., individual, corporation,
partnership, trust, or other), the geographic areas and channel(s) or
channel blocks(s) for which it is applying, and assuming that the
licenses will be auctioned, the names of persons authorized to place or
withdraw a bid on its behalf. The Commission seeks comment on this
proposal and specifically on whether further ownership disclosure
should be required.
55. The Commission proposes that if only one application that is
acceptable for filing for a particular license is received, and thus
there is no mutual exclusivity, a Public Notice would be issued
cancelling the auction for that license and establishing a date for the
filing of a long-form application (FCC Form 600), the acceptance of
which would trigger the procedures permitting petitions to deny. If no
petitions to deny are filed, the application would be grantable after
30 days. The Commission would require that bidders' applications
contain all information and documentation sufficient to demonstrate
that the application is not in violation of Commission rules, and may
dismiss applications not meeting those requirements prior to the
competitive bidding.
b. Amendments and Modifications
56. To encourage maximum bidder participation, the Commission
proposes to provide applicants with an opportunity to correct minor
defects in their short-form applications prior to the auction. On the
date set for submission of corrected applications, applicants that on
their own discover minor errors in their applications (e.g.,
typographical errors, incorrect license designations, etc.) would be
permitted to file corrected applications. Applicants would not be
permitted to make any major modifications to their applications until
after the auction. Applicants could modify their short-form
applications to reflect formation of consortia or changes in ownership
at any time before or during an auction, provided such changes would
not result in a change in control of the applicant, and provided that
the parties forming consortia or entering into ownership agreements
have not applied for licenses in any of the same geographic license
areas. In addition, applications that are not signed would be dismissed
as unacceptable.
57. Upon reviewing the short-form applications, the Commission
would release a Public Notice listing all accepted, rejected, and
incomplete applications. Applicants would be given an opportunity to
cure incomplete applications. An applicant who fails to submit a
sufficient upfront payment to qualify it to bid on any license being
auctioned would not be identified on this Public Notice as a qualified
bidder. Each applicant listed on the Public Notice would be issued a
bidder identification number and further information and instructions
regarding auction procedures.
c. Upfront Payments
58. The Commission proposes to require paging auction participants
to tender a substantial upfront payment as a condition of bidding, in
order to ensure that only serious, qualified bidders participate in
auctions and to ensure payment of the penalty in the event of bid
withdrawal or default. For services that are licensed by simultaneous
multiple round auction, the Commission proposes a standard upfront
payment formula of $0.02 per activity unit for the largest combination
of MHz-pops a bidder anticipates bidding on in any single round of
bidding. The Commission proposes a minimum upfront payment of $0.02 per
[[Page 6206]]
activity unit or $2,500, whichever is greater. The Commission
tentatively concludes that a minimum $2,500 upfront payment should be
required regardless of the bidding methodology.
59. Upfront payments would be due approximately fourteen days
before a scheduled auction. This period should be sufficient to allow
the Commission time to process upfront payment data and release a
Public Notice listing all qualified bidders. The specific procedures to
be followed in the tendering and processing of upfront payments are set
forth in Section 1.2106 of the Commission's rules.
d. Down Payment and Full Payment
60. The Commission proposes to apply the 20 percent down payment
requirement set forth in the Competitive Bidding Second Report and
Order to winning bidders for paging licenses. Such a down payment would
be due within five business days following the Public Notice announcing
the winning bidders. The Commission proposes to require paging auction
winners to pay the full balance of their winning bids within five
business days following Public Notice that the Commission is about to
award the license.
e. Bid Withdrawal, Default, and Disqualification
61. The Commission proposes to adopt bid withdrawal, default, and
disqualification rules for the paging services based on the procedures
in the general competitive bidding rules. Under these procedures, any
bidder who withdraws a high bid during an auction before the Commission
declares bidding closed, or defaults by failing to remit the required
down payment within the prescribed time, would be required to reimburse
the Commission. The bidder would be required to pay the difference
between its high bid and the amount of the winning bid the next time
the license is offered by the Commission, if the subsequent winning bid
is lower. A defaulting auction winner would be assessed an additional
payment of three percent of the subsequent winning bid or three percent
of the amount of the defaulting bid, whichever is less. The additional
payment would be satisfied first from the upfront payment, and
additional funds would be required if necessary. In the event that an
auction winner defaults or is otherwise disqualified, the Commission
proposes to re-auction the license either to existing or new
applicants. The Commission would retain discretion, however, to offer
the license to the next highest bidder at its final bid level if the
default occurs within five business days of the close of bidding.
f. Long-Form Applications
62. If the winning bidder makes the down payment in a timely
manner, the Commission proposes the following procedures: A long-form
application would be filed by a date specified by Public Notice,
generally within ten business days after the close of bidding. After
the winning bidder's down payment and long-form application is
received, the Commission will review the application to determine if it
is acceptable for filing. In addition to the information required in
the FCC Form 600, designated entities will be required to submit
evidence to support their claim to any special provision available for
designated entities ultimately adopted by an Order as a result of this
Notice. This information may be included in an exhibit to FCC Form 600.
This information will enable the Commission, and other interested
parties, to ensure the validity of the applicant's certification of
eligibility for bidding credits, installment payment options, and any
other special provisions. Upon acceptance for filing of the long-form
application, the Commission will issue a Public Notice announcing this
fact, triggering the filing window for petitions to deny. If the
Commission denies all petitions to deny, and is otherwise satisfied
that the applicant is qualified, the license(s) will be granted to the
auction winner.
g. Petitions to Deny and Limitations on Settlements
63. The petition to deny procedures in Sections 22.130 and 90.163
of the Commission's rules will apply to the processing of applications
for the paging services. Thus, a party filing a petition to deny
against a paging application will be required to demonstrate standing
and meet all other applicable filing requirements. The Commission will
limit the consideration that an applicant or petitioner is permitted to
receive for agreeing to withdraw an application or a petition to deny
to the legitimate and prudent expenses of the withdrawing applicant or
petitioner.
h. Transfer Disclosure Requirements
64. The Commission tentatively concludes that the transfer
disclosure requirements of Section 1.2111(a) of the Commission's rules
should apply to all paging services licenses obtained through the
competitive bidding process. Generally, licensees transferring their
licenses within three years after the initial license grant would be
required to file, together with their transfer applications, the
associated contracts for sale, option agreements, management
agreements, and all other documents disclosing the total consideration
received in return for the transfer of its license.
i. Performance Requirements
65. Section 309(j)(4)(B) of the Act requires the Commission to
establish rules for auctionable services that ``include performance
requirements, such as appropriate deadlines and penalties for
performance failures, to ensure prompt delivery of service to rural
areas, to prevent stockpiling or warehousing of spectrum by licensees
or permittee, and to promote investment in and rapid deployment of new
technologies and services.'' The Commission decided, in the Competitive
Bidding Second Report and Order, that in most auctionable services,
existing construction and coverage requirements provided in the service
rules would be sufficient to meet this standard, and that it was
unnecessary to impose additional performance requirements. In this
Notice the Commission proposed service rules for paging that would
require geographic licensees either to meet minimum population coverage
requirements or demonstrate substantial service in their licensing
areas. The Commission tentatively concludes that these proposed
coverage requirements are sufficient to meet the requirements of
Section 309(j)(4)(B) of the Act. The Commission proposes that failure
to meet these requirements would result in automatic license
cancellation, and does not propose to adopt additional performance
requirements for paging services.
d. Treatment of Designated Entities
a. Overview and Objectives
66. Section 309(j)(3)(B) of the Act provides that in establishing
auction eligibility criteria and bidding methodologies, the Commission
shall ``promot[e] economic opportunity and competition and ensur[e]
that new and innovative technologies are readily accessible to the
American people by avoiding excessive concentration of licenses and by
disseminating licenses among a wide variety of applicants, including
small businesses, rural telephone companies, and businesses owned by
members of minority groups and women.'' The Commission seeks comment on
various proposals and tentative decisions regarding designated entity
provisions that should be incorporated into the competitive bidding
procedures for paging services.
[[Page 6207]]
b. Eligibility for Designated Entity Provisions
67. Small Businesses. The Commission tentatively concludes that it
is appropriate to establish special provisions in the paging rules for
competitive bidding by small businesses. The Commission believes that
small businesses applying for paging licenses should be entitled to
some form of bidding credit and should be allowed to pay their bids in
installments, and seeks comment on this tentative conclusion.
68. Minority and Women-Owned Businesses. Prior to the Supreme
Court's decision in Adarand Contractors, Inc. v. Pena, 115 S.Ct. 2097
(1995) (Adarand), the Commission concluded that in licensing of
broadband and narrowband PCS, minority and women-owned businesses might
have difficulty accessing sufficient capital to be viable auction
participants or service providers in the absence of special provisions
in our auction rules. In Adarand, however, the Supreme Court ruled that
racial classifications imposed by the federal government are subject to
strict scrutiny. At this time, the Commission does not have a
sufficient factual record with respect to spectrum-based services
generally or paging services specifically to sustain such measures
under strict scrutiny.
69. The Commission proposes to limit special provisions in the
paging auction rules to small businesses. The Commission seeks comment
on this proposal. The Commission seeks comment on the possibility that
in addition to small business provisions, separate provisions for women
and minority-owned entities should be adopted for paging services. To
comply with the Supreme Court's ruling in Adarand, any race-based
classification must be a narrowly tailored measure that furthers a
compelling governmental interest. The Commission seeks comment on
whether the capital requirements of paging pose a barrier to entry by
minorities and women, and whether assisting women and minorities to
overcome such a barrier, if it exists, would constitute a compelling
governmental interest. The Commission seeks comment on whether separate
provisions for women and minorities are necessary to further such an
interest and whether such provisions can be narrowly tailored to
satisfy the strict scrutiny standard.
c. Set-Aside Spectrum
70. The Commission tentatively concluded that it is not necessary
to adopt an entrepreneurs' block for paging. The Commission tentatively
concludes that the capital requirements of the paging service are not
so substantial that certain blocks of spectrum should be insulated from
very large bidders in order to provide meaningful opportunities for
designated entities.
d. Bidding Credits
71. Bidding credits allow eligible designated entities to receive a
payment discount (or credit) on their winning bid in an auction. In the
Competitive Bidding Second Report and Order, the Commission determined
that competitive bidding rules applicable to individual services would
specify the entities eligible for bidding credits and the bidding
credit amounts for each particular service. As a result, the Commission
has adopted a variety of bidding credit provisions for small businesses
and other designated entities in auctionable services. The Commission
seeks comment on the appropriate level of bidding credit for paging in
comparison to other auctionable services.
72. The Commission also seeks comment on the possibility of
offering tiered bidding credits for different sizes of small
businesses. The Commission proposes to establish two levels of bidding
credits: a 10 percent bidding credit for all small businesses and a 15
percent credit for small businesses that meet a more restrictive gross
revenue threshold. These two levels of bidding credits would not be
cumulative.
73. The Commission also seeks comment on the appropriate definition
of small business to be applied for purposes of the bidding credits
proposed above. In conjunction with the proposal to provide two levels
of bidding credits, the Commission proposes to establish two small
business definitions: to obtain the 10 percent bidding credit, an
applicant would be limited to $15 million in average gross revenues for
the previous three years; to obtain a 15 percent credit, the applicant
would be limited to $3 million in gross revenues for the previous three
years. In both cases, the applicant would be required to aggregate the
gross revenues of its affiliates and attributable investors for
purposes of determining eligibility. If a control group is formed, the
applicant must aggregate the gross revenues of its affiliates and
attributable investors for purposes of determining eligibility. The
Commission seeks comment on whether these thresholds, and the proposed
bidding credit amounts associated with them, are sufficient for paging
in light of the build-out costs associated with constructing a paging
system throughout a market area, or whether alternative definitions
would be more suitable. Comment is also sought on whether the proposed
small business definitions are sufficiently restrictive to protect
against businesses receiving bidding credits when in fact they do not
need them.
74. The Commission seeks comment on the degree to which the
revenues of affiliates and major investors should be considered in
determining small business eligibility. The Commission also seeks
comment on which attribution threshold should be applied to paging
applicants seeking to qualify as small businesses.
75. The Commission proposes to make the small business bidding
credit available on all paging channels that are licensed on a
geographic basis, rather than limiting its availability to certain
channels. The Commission seeks comment on this proposal, and on whether
there is a reasonable basis for providing credits on some channels and
not others.
e. Installment Payments
76. The Commission proposes to adopt an installment payment option
for small businesses that successfully bid for paging licenses. Under
this proposal, licensees who qualify for installment payments would be
entitled to pay their winning bid amount in quarterly installments over
the ten-year license term, with interest charges to be fixed at the
time of licensing at a rate equal to the rate for ten-year U.S.
Treasury obligations plus 2.5 percent. In addition, the Commission
proposes to tailor installment payments to the needs of different size
entities. Small businesses with $3 million or less in gross revenues
for the preceding three years would make interest-only payments for the
first five years of the license term, while small businesses with $15
million or less in gross revenues for the preceding three years would
make interest-only payments during the first two years.
77. The Commission tentatively concludes that small businesses
eligible for installment payments may pay a reduced down payment. Five
percent of the winning bid would be due five days after the auction
closes, with the remaining five percent down payment due five days
after Public Notice that the license is ready for grant. Under this
proposal, the license would be granted within ten business days after
receiving such down payment. The Commission seeks comment on this
proposal, and the need, if any, for a reduced upfront payment for
entities qualifying as a small business.
[[Page 6208]]
f. Unjust Enrichment Provisions
78. The Commission seeks comment on whether, in services such as
paging, where there is no entrepreneurs' block to further restrict the
class of entities eligible for substantial governmental benefits, the
public interest would be served by adopting an approach similar to that
used in the narrowband PCS context, in which bidding credits and
installment payments immediately become due upon transfer to an
ineligible entity. The Commission also seeks comment on whether an
approach to unjust enrichment similar to that adopted for the 900 MHz
SMR service, in which a holding period was imposed, would be optimal
for the paging services.
g. Rural Telephone Company Partitioning
79. The Act directs the Commission to ensure that rural telephone
companies have the opportunity to participate in the provision of
spectrum-based services. Rural areas, because of their more dispersed
populations, tend to be less profitable to serve than more densely
populated urban areas. Rural telephone companies, however, are well
positioned because of their existing infrastructure to serve these
areas. The Commission seeks comment on whether similar provisions
should be incorporated into the paging rules. Commenters are
specifically encouraged to provide information on the extent to which
paging service is available in rural areas.
80. The Commission believes that geographic partitioning should be
made available to rural telephone companies on the same basis as in
PCS. Such a partitioning scheme would provide rural telephone companies
with the flexibility to serve areas in which they already provide
service, while the remainder of the service area could be served by
other providers. Under this proposal, rural telephone companies would
be permitted to acquire partitioned paging licenses in one of two ways:
(1) by forming bidding consortia consisting entirely of rural telephone
companies to participate in auctions, and then partitioning the
licenses won among consortia participants, or (2) by acquiring
partitioned paging licenses from other licensees through private
negotiation and agreement either before or after the auction.
Partitioned areas would be required to conform to established
geopolitical boundaries (such as county lines) and that each area
include all portions of the wireline service area of the rural
telephone company applicant that lies within each PCS area. In
addition, if a rural telephone company receives a partitioned license
post-auction from another PCS licensee, the partitioned area must be
reasonably related to the rural telephone company's wireline service
area. The Commission also proposes to use the definition for rural
telephone companies implemented in the Competitive Bidding Fifth Report
and Order for broadband PCS. Rural telephone companies would be defined
as local exchange carriers having 100,000 or fewer access lines,
including all affiliates. The Commission seeks comment on whether CCP
and PCP paging applicants would benefit from expanding this concept to
other designated entities or to all paging licensees in general, and
whether partitioning should be extended to small businesses that may be
able to provide niche services in a specific geographic area.
C. Interim Licensing
a. Freeze on New Applications
81. Because of the fundamental changes proposed in the paging
licensing rules, the Commission is suspending the acceptance of new
applications for paging channels as of the adoption date of this
Notice, except as provided below. This interim policy will not apply to
assignment or transfer of control applications, which will continue to
be processed under existing procedures.
82. Incumbent licensees will be allowed to add sites to existing
systems or modify existing sites, provided that such additions or
modifications do not expand the interference contour of the incumbent's
existing system. Under the current Part 22 rules, such additions or
modifications are allowed by CCP licensees without prior Commission
approval if the added site is within both existing service and
interference contours. The Commission finds that the public interest is
served by continuing to allow such modifications because they will give
incumbents the flexibility to make internal site modifications without
affecting spectrum availability to others. The Commission also believes
that it serves the public interest to exempt incumbents from the
requirement that the service area not be modified so long as the
licensee's interference contour is maintained. Using the interference
contour as the sole basis for modification provides the same protection
to other licensees as the current rules but provides a simpler analysis
of determining permissible modifications.
83. The Commission also finds that it is in the public interest to
allow 929 MHz licensees on exclusive channels the same flexibility as
Part 22 licensees to make similar changes within their interference
contours. Such modifications afford incumbents flexibility and will not
prejudice other licensees, as no expansion is allowed beyond the
incumbent's interference contour. The Commission believes that such
modifications will not affect any auction for geographic area licenses,
as the size of an incumbent's protected interference contour will not
change.
84. CCP and PCP licensees with nationwide exclusivity on a paging
channel will be allowed to apply for additional sites without
restrictions. The addition of such sites by the nationwide licensee
will not affect the spectrum availability to others.
85. The Commission seeks comment on an expedited basis on whether
during the pendency of this proceeding, incumbents should be allowed to
file new applications that would expand or modify their existing
systems beyond their existing interference contours with such
modifications receiving only secondary site authorization. Secondary
operations may not cause interference to operations authorized on a
primary basis, and they are not protected from interference from
primary operations. Thus, under this alternative, applications to
expand an incumbent's existing interference contour would receive no
interference protection in the event that the Commission ultimately
adopts the geographic licensing proposals in this Notice. Such an
approach would be similar to the interim licensing policy in the 900
MHz SMR service. The Commission seeks comment on this alternative and
on whether any limitations on secondary licensing are needed.
b. Processing of Pending Applications
86. With respect to paging applications that were filed prior to
the adoption of this Notice and that remain pending, the Commission
will process such applications provided that (1) they are not mutually
exclusive with other applications as of the adoption date of this
Notice, and (2) the relevant period for filing competing applications
has expired as of the adoption date of this Notice. The Commission
believes that this approach gives the appropriate consideration to
those applicants who filed applications prior to our proposed changes
and whose applications are not subject to competing applications.
Processing of mutually exclusive pending applications and applications
for which the relevant period for filing
[[Page 6209]]
competing applications has not expired will be held in abeyance until
the conclusion of this proceeding. Upon the adoption of an order in
this proceeding, the Commission will process or dismiss all remaining
pending applications in accordance with such new rules as are adopted.
a. Licensing of 931 MHz CCP Frequencies
87. The Commission adopted new processing rules for 931 MHz CCP
licenses in the Part 22 Rewrite Order based on channel-specific
applications and use of competitive bidding to select licensees in the
event of mutually exclusive applications. The Commission issued a
temporary stay of the new Part 22 licensing rules for 931 MHz until it
resolved certain pending applications. The Commission retains the
existing stay of the new Part 22 licensing rules until competitive
bidding procedures are established in this proceeding. The Commission
will therefore continue processing 931 MHz CCP applications which were
pending prior to the adoption date of this Notice, and for which the 60
day window for filing competing applications has expired, under the
application procedures in effect prior to January 1, 1995.
Consequently, pending 931 MHz CCP applications that are not mutually
exclusive with other applications will be processed, while mutually
exclusive 931 MHz applications will be held pending the outcome of this
proceeding. Upon the adoption of an order in this proceeding, the
Commission will process or dismiss all remaining pending applications
in accordance with such new rules as are adopted.
b. Licensing of Lower Band CCP Channels
88. The Commission will process non-mutually exclusive lower band
CCP applications under the existing rules, provided that the window for
filing competing applications has closed as of the adoption date of
this Notice. The Commission will continue to hold all mutually
exclusive lower band CCP applications until competitive bidding rules
are established.
c. Licensing of 929 MHz PCP Exclusive Channels
89. The Commission will continue to process non-mutually exclusive
PCP applications that were filed before the adoption date of this
Notice, pending the outcome of this proceeding. Because these
applications are subject to coordination, they are generally not
subject to mutually exclusive applications. Nonetheless, to the extent
that pending mutually exclusive applications may exist, processing of
such applications will be held in abeyance until the conclusion of the
rulemaking.
90. Under the current PCP exclusivity rules, applicants are granted
conditional exclusivity when they are licensed, and permanent
exclusivity is awarded when the licensee demonstrates that it has
constructed and is operating a qualified system. As a result, numerous
requests for conditional and permanent exclusivity are pending before
the Commission. Because of the proposed changes to the PCP rules in
this proceeding, the Commission believes that consideration of such
requests should be postponed while this proceeding is pending. In the
event that the geographic area licensing proposals are adopted, all
existing PCP facilities would receive full protection as incumbents,
and such pending exclusivity requests would be moot. The Commission
will therefore suspend action on all pending exclusivity requests until
the conclusion of this rulemaking.
d. Licensing of Non-Exclusive PCP Channels
91. The Commission will continue to process pending applications
for non-exclusive PCP channels pending the outcome of this proceeding.
Applications will be processed through the frequency coordinator under
existing procedures.
IV. Procedural Matters and Ordering Clauses
Final Regulatory Flexibility Analysis
Summary: This Notice contains proposed or modified information
collections subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law No. 104-13. It has been submitted to the Office of
Management and Budget (OMB) for review under Section 3507(d) of the
PRA. OMB, the general public, and other Federal agencies are invited to
comment on the proposed or modified information collections contained
in this proceeding.
Dates: Written comments by the public on the proposed and/or
modified information collections are due March 18, 1996. Written
comments must be submitted by the Office of Management and Budget (OMB)
on the proposed and/or modified information collections on or before 60
days after date of publication in the Federal Register.
Address: In addition to filing comments with the Secretary, a copy
of any comments on the information collections contained herein should
be submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, N.W., Washington D.C., 20554, or via the Internet
to [email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB,
725 17th Street, N.W., Washington D.C. 20503, or via the Internet to
[email protected].
Further Information: For additional information concerning the
information collections contained in this Notice, contact Dorothy
Conway at (202) 418-0217 or via the Internet at [email protected].
Supplementary Information:
Paperwork Reduction Act: This Notice contains either a proposed or
modified information collection. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the general
public and the Office of Management and Budget (OMB) to comment on the
information collections contained in this Notice, as required by the
Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Public and agency
comments are due on March 18, 1996, at the same time as the other
comments in the Notice. OMB comments are due 60 days from the date of
publication of this Notice in the Federal Register. Comments should
address: (a) whether the proposed collection of information is
necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
Title Revision of Part 22 and Part 90 of the Commission's Rules to
Facilitate Future Development of Paging Systems and Implementation of
Section 309(j) of the Communications Act--Competitive Bidding.
Form No.: N/A.
Type of Review: New Collection.
Respondendents: Existing and prospective private paging and common
carrier paging licensees.
Number of Respondents: Approximately 750 existing licensees;
approximately 525 auction winners.
Estimated Time Per Response: Approximately 845 hours for list of
existing transmitter sites; 1,221 hours for request for single
authorization for multiple site licenses; 262.5 hours for demonstration
of compliance with relocation notification requirements; 721 hours for
ownership and gross
[[Page 6210]]
revenue information for small businesses; 262.5 hours for disclosure of
terms of joint bidding agreements; 787.5 hours for transfer disclosure
information.
Total Annual Burden: A one-time burden of approximately 4,099.5
hours.
Total Respondents Costs: $1,008,036.
Needs and Uses: On February 8, 1996, the Commission adopted a
Notice of Proposed Rule Making that examines ways to establish a
comprehensive and consistent regulatory scheme that will simplify and
streamline licensing procedures and provide a flexible operating
environment for both common carrier and private paging services. To
this end, the Notice proposes to establish a geographic, rather than a
site-based, licensing approach. The Notice also proposes to adopt
auction rules for mutually exclusive paging applications so that
available channels may be assigned rapidly to applicants, who will, in
turn, expedite service to the public.
To ensure that the process of streamlining our paging regulations
correctly gauges current usage of the applicable spectrum, it may be
necessary for us to request that existing paging licensees notify the
Commission of the location of their various transmitter sites. The
Notice also proposes to require that licensees submit information that
they meet applicable coverage requirements. Further, the Notice
proposes that incumbent licensees operating at multiple sites may
exchange their multiple site license for a single license after the
completion of the auction for the spectrum blocks within which their
frequencies are included provided they submit a showing that their
authorized facilities have been constructed and placed in operation and
the contours associated with these facilities are contiguous and
overlapping. The Notice also proposes that auction winners submit proof
of their notification to incumbents operating on frequencies included
within the auction winners' spectrum blocks of their intention to
relocate such incumbent.
In addition, the proposed auction procedures include (1) a
requirement that auction winners claiming status as a small business
submit detailed ownership and gross revenue information necessary to
determine whether they qualify as a small business pursuant to
Commission rules; (2) a requirement that auction winners disclose the
terms of joint bidding agreements, if any, with other auction
participants in order to ensure the integrity of the market structure;
and (3) a requirement that licensees who transfer licenses within three
years maintain a file of all documents and contracts pertaining to the
transfer.
Ex Parte Rules--Non-Restricted Proceeding
This is a non-restricted notice and comment rulemaking proceeding.
Ex parte presentations are permitted except during the Sunshine Agenda
period, provided they are disclosed as provided in the Commission's
rules, 47 CFR Secs. 1.1202, 1.1203, 1.1206(a).
Ordering Clauses
It is ordered that the pending applications for paging licenses
that are not mutually exclusive with other paging applications will be
processed to the extent possible under our existing licensing rules.
It is further ordered that applications for PCP exclusivity and
waiver requests received after the adoption date of this Notice of
Proposed Rulemaking will be held in abeyance and not processed until
further notice, except as otherwise indicated above with respect to
Interim Licensing.
List of Subjects
47 CFR Part 22
Communications common carriers, Recordkeeping requirements.
47 CFR Part 90
Common carriers, Recordkeeping requirements.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-3657 Filed 2-15-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-3602 Security Safety Zone Regulations Savannah, GA
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Page 6178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3602]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD07-95-062]
RIN 2115-AA97
Security Safety Zone Regulations Savannah, GA
AGENCY: Coast Guard, DOT.
ACTION: Notice of public hearing; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard will hold a public hearing to receive comments
on proposals to establish security and safety zones during the 1996
Centennial Olympic Games to be held in the Savannah, Georgia area. The
Coast Guard believes these security and safety zones are necessary to
protect both Olympic athletes and the maritime public during a variety
of activities associated with the Olympic sailing competitions. The
proposed regulations are to establish the security and safety zones as
early as July 2, 1996 and disestablish them as late as August 5, 1996.
DATES: The public hearing will be held on February 29, 1996, from 7
p.m. to 9 p.m. at the Juliette Low Federal Building, 100 West
Oglethorpe Avenue, Room 1015, Savannah, Georgia 31402.
ADDRESSES: The public hearing will be held at the Juliette Low Federal
Building, 100 West Oglethorpe Avenue, Room 1015, Savannah, Georgia
31402. Those wishing to make presentations at this public meeting
should contact LT L. Fagan or CPO P. Webber at (912) 652-4353. Written
comments may be mailed to CPO P. Webber at 222 West Oglethorpe Avenue,
Suite 402, Savannah, Georgia 31401. Comments will become part of this
docket and will be available for inspection or copying at 222 West
Oglethorpe Avenue, Suite 402, Savannah, Georgia 31401, between 8 a.m.
and 4 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
LT L. Fagan, Coast Guard Marine Safety Office Savannah at (912) 652-
4353.
SUPPLEMENTARY INFORMATION: .
The Coast Guard is proposing to establish security and safety zones
to protect both the Olympic athletes and the maritime community from
the potential hazards associated with the large influx of boaters
anticipated during the festivities and sailing venue competitions of
the Olympic Games. (January 3, 1996; 61 FR 136) These security and
safety zones will affect the following waterways: Bull River; Savannah
River; Wassaw Sound; Wilmington River; Tybee Cut; Turners Creek; and
Half Moon River, as early as July 2, 1996 and as late as August 5,
1996.
The Coast Guard will hold a public hearing on February 29, 1996 at
7 p.m. at the Juliette Low Federal Building, 100 West Oglethorpe
Avenue, Room 1015, Savannah, Georgia 31402, to receive comments/
presentations regarding whether the Coast Guard should establish all or
amend some of the proposed security and safety zones.
Attendance is open to the public. With advance notice, and as time
permits, members of the public may make oral presentations during the
meeting. Persons wishing to make oral presentations should notify the
person listed above under the FOR FURTHER INFORMATION CONTACT no later
than the day before the meeting. Written material may be submitted
prior to, during, or after the meeting until March 4, 1996.
Dated: February 12, 1996.
Roger T. Rufe, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard
District.
[FR Doc. 96-3602 Filed 2-15-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-3584 Request for Approval of Section 112(l) Delegated Authority; Washington
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6184-6189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3584]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 61 and 63
[FRL-5423-8]
Request for Approval of Section 112(l) Delegated Authority;
Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval and delegation.
-----------------------------------------------------------------------
SUMMARY: EPA invites public comment on today's proposal to approve the
state of Washington Department of Ecology (Ecology) request for
delegation of authority to implement and enforce state-adopted
hazardous air pollutant regulations which adopt by reference the
federal National Emission Standards for Hazardous Air Pollutants
(NESHAP) contained within 40 CFR Parts 61 and 63. EPA as well invites
public comment on its proposal to approve specific rules submitted to
EPA by Ecology in order to recognize conditions and limitations
established pursuant to these rules as federally enforceable. These
adopted regulations would be implemented and enforced by both Ecology
and the seven local air authorities (The Benton County Clean Air
Authority (BCCAA), the Northwest Air Pollution Authority (NWAPA), the
Olympic Air Pollution Control Authority (OAPCA), the Puget Sound Air
Pollution Control Agency (PSAPCA), the Southwest Air Pollution Control
Authority (SWAPCA), the Spokane County Air Pollution Control Authority
(SCAPCA), and the Yakima County Clean Air Authority (YCCAA);
collectively referred to as ``the Washington permitting authorities'')
within the state of Washington.
DATES: All comments on this submittal must be received by the close of
business on March 18, 1996.
ADDRESSES: Copies of this submittal are available for inspection and
copying during normal business hours at the following addresses: U.S.
EPA Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101, and the
State of Washington Department of Ecology, 300 Desmond Drive, Lacey,
Washington, 98504. Written comments should be addressed to: Chris Hall,
U.S. EPA Region 10, 1200 Sixth Avenue (AT-082), Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Chris Hall at 206-553-1949.
[[Page 6185]]
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Section 112(l) of the amended Clean Air Act of 1990 (``the Act'')
established new, more stringent requirements upon a state or local
agency who wish to implement and enforce an air toxics program pursuant
to section 112 of the Act. Prior to November 15, 1990, delegation of
the federal NESHAP regulations to the State and Local agencies occurred
without formal rulemaking by EPA. The new section 112(l) of the Act
requires EPA to approve state and local toxics rules and programs under
this authority, through formal notice and comment rulemaking. Now,
State and Local air agencies who wish to implement and enforce a
federally-approved air toxic program must make a showing to EPA that
they have adequate legal authorities and adequate resources to
implement and enforce the delegated NESHAP regulations. Approval is
granted by the EPA through the authority contained in section 112(l),
and implemented through the federal rule found at 40 CFR Part 63,
subpart E, if the Agency finds that: (1) The State program or rule is
``no less stringent'' than the corresponding federal rule or program,
(2) adequate authority and resources exist to implement the State or
Local program, (3) the schedule for implementation and compliance is
sufficiently expeditious, and (4) the State or Local program is
otherwise in compliance with federal guidance.
II. Discussion of the Washington 112(l) Submittal
On January 5, 1995 (as supplemented on May 8, 1995, October 18,
1995, and January 9, 1996), the Washington permitting authorities
submitted to EPA an application requesting delegation of authority to
implement and enforce specific 40 CFR Part 61 and Part 63 NESHAP
regulations adopted into Washington state and local law [Washington
Administrative Codes (WAC) Chapter 173, Division 400, Section 075, as
in effect on February 16, 1993; NWAPA Regulation 104.2 as in effect
December 8, 1993; PSAPCA Regulation III, Section 2.02 as in effect on
October 19, 1995; SWAPCA Regulation 400-075 as in effect on February 1,
1995; and YCCAA Section 12.02 of the Restated Regulation I, as in
effect on September 14, 1994].
Contained within the Washington permitting authorities' section
112(l) application are the following documents: a written finding by
the State Attorney General and the independent legal counsel for the
seven local air authorities stating that the Washington permitting
authorities have the legal authority to implement and enforce their
state and locally-adopted regulations as well as assure compliance by
all sources within their respective jurisdiction; a copy of the
relevant state and local regulations, which contain the fully-adopted
NESHAP regulations which are to be substituted for the federal NESHAP
regulations upon approval, and which contain the permitting
requirements for each source subject to them, including the State
regulatory order regulations and the State new source review
regulations; and complete program descriptions for both Ecology and the
seven local air authorities. The full program submittal is available
for review for more detailed information.
A. Emission Standards for Hazardous Air Pollutants
Pursuant to 40 CFR 63.91, the Washington permitting authorities are
seeking delegated federal authority to implement and enforce 40 CFR
Part 61; subparts A, C through F, J, L through P, V, Y, BB, and FF, as
adopted into state and local law. EPA has previously delegated
authority for 40 CFR Part 61 subparts H and I to the state of
Washington Department of Health (see 60 FR 39263, August 2, 1995,
``Interim approval of Delegation Authority; National Emission Standards
for Hazardous Air Pollutants; Radionuclides; Washington'').
Three local air agencies, NWAPA, PSAPCA, and SWAPCA are also
requesting delegated authority to implement and enforce specific 40 CFR
Part 63 NESHAP regulations adopted into local law (see section IV.A
which lists the specific 40 CFR Part 63 regulations adopted by these
agencies).
B. Voluntary Limits on Emissions
The Washington permitting authorities are also requesting federal
approval of specific regulations adopted into state and local law (WAC
173-400-091, 110, 112, 113, and 114, WAC 173-460; NWAPA sections 300
through 303; OAPCA Regulation 1, Article 7; PSAPCA Regulation I,
Article 6, and Regulation III, Appendix A; SCAPCA Regulation I, Article
II and V; SWAPCA 400-090, -110, -112, -113, and -114; and, YCCAA
Restated Regulation I, Sections 4.02 and 12.01) which would allow the
Washington permitting authorities to establish federally-enforceable
emission limitations by permit for the purpose of limiting a source's
potential to emit hazardous air pollutants (HAP) below major source
thresholds. On May 8, 1995, the Washington permitting authorities
withdrew their request for EPA approval of WAC 173-460 as a federally-
enforceable regulation for limiting a source's potential to emit HAP,
therefore EPA will not be proposing to take any action in regard to
this rule. Additionally, since EPA has previously approved the
provisions of WAC 173-400-091 as a mechanism for limiting a sources
potential to emit HAP under the authority of section 112(l), it is not
necessary to take any further action in regard to this rule (see 60 FR
28726, June 2, 1995, ``Approval and Promulgation of State
Implementation Plans: Washington Approval of Section 112(l) Authority;
Operating Permits; Washington'').
If approved, these state and local potential-to-emit (PTE)
regulations (including WAC 173-400-091 which has already been approved
under section 112(l)) would provide the mechanism for the owner or
operator of a source to apply for and obtain federally-enforceable
conditions that would limit their potential to emit HAP. Such
limitations would be contained in a permit issued by Ecology or one of
the seven local air authorities, after public notice and an opportunity
for comment, and would include monitoring, recordkeeping and reporting
requirements sufficient to ensure that the source complies with these
limitations. As mentioned previously, if approved, limits established
pursuant to these regulations would be considered federally-
enforceable, providing the Washington permitting authorities with the
ability to set limits which would be sufficient to exempt a source from
the requirement to obtain a WAC 173-401 issued operating permit and/or
comply with federal, state or local hazardous air pollutant
regulations. Approval under section 112(l) is necessary because the
Washington SIP-approved rules extends solely to the control of criteria
pollutants. Federally-enforceable limits on criteria pollutants (i.e.,
volatile organic compounds or particulate matter) may have the
incidental effect of limiting emissions for the majority of the HAPs
listed pursuant to section 112(b), however, section 112 of the Act
provides the underlying authority for establishing federally-
enforceable limits for all HAP emissions.
C. Section 112(g)
As part of their original delegation request the Washington
permitting authorities requested approval for specific state and
locally-adopted regulations for the purpose of implementing section
112(g) of the Act (WAC 173-400-110, -112, -113, and
[[Page 6186]]
-114, and WAC 173-460; NWAPA Regulations sections 300 through 303;
OAPCA Regulation 1, Article 7; and PSAPCA Regulation I, Article 6, and
Regulation III, Appendix A). On May 8, 1995, the Washington permitting
authorities officially withdrew their request for approval of these
rules for the purposes of implementing section 112(g); therefore EPA
will not be taking any action in regard to section 112(g).
III. Authority and Commitments for Section 112 Implementation
Under 40 CFR 63.91 the minimum documentation needed to be provided
to EPA for a straight delegation request are: (1) A written finding by
the State attorney general (and the independent legal counsel for the
Local air authorities) confirming that the State (Local) has adequate
legal authorities to implement and enforce the State (Local) rule(s) or
program(s); (2) copies of the State and/or Local statutes, regulations
and other documents which contain the appropriate provisions for which
the State and/or Local are requesting delegation; (3) a demonstration
of adequate resources to implement and enforce all aspects of the
delegated rules or program; (4) a schedule demonstrating expeditious
implementation of the delegated rules or program; (5) a plan that
assures expeditious compliance by all sources; and, (6) a demonstration
of adequate legal authority to implement and enforce all delegated
rules or program and to assure compliance by all sources upon approval.
A. Written Findings by Legal Counsel
40 CFR 63.91 (b)(1) and (b)(6) requires that at a minimum a state
and/or local agency requesting section 112(l) delegation have the
following authorities: (1) Enforcement authorities that meet the
requirements of 40 CFR 70.11 of this chapter; (2) authority to request
information from regulated sources regarding their compliance status;
(3) authority to inspect sources and any records required to determine
a source's compliance status; and (4) if the State delegates
authorities to a Local agency, the state must retain enforcement
authority unless the Local agency's authorities meet the requirements
of 40 CFR 70.11 of this chapter.
The Washington permitting authorities have provided to EPA legal
opinions from both the Washington state Attorney General's office and
the independent legal counsel for the seven local air authorities which
clearly outline their enforcement authorities as they pertain to the
requirements of 40 CFR 63.91(b)(1) and (b)(6). EPA has previously
reviewed Washington's civil and criminal enforcement authorities
contained in the Revised Code of Washington (RCW) where EPA determined
that the authorities in RCW 70.94.430 do not fully meet the
requirements of 40 CFR 70.11 and therefore 40 CFR 63.91 (see 59 FR
42552, August 18, 1994, for a detailed explanation of this issue).
However, although EPA believes that Washington's criminal authorities
do not fully meet 40 CFR 70.11 requirements, EPA has granted a two-year
interim approval of the Washington permitting authorities 40 CFR Part
70 operating permit programs, effective December 9, 1994, thereby
allowing the state of Washington until December 9, 1996, to correct
their statutory deficiencies.
The Washington permitting authorities would implement and enforce
the delegated federal regulations throughout the State of Washington
under the authority of RCW 70.94. RCW 70.94.331(3) gives the seven
local air authorities authority to implement and enforce WAC 173-400
and -401, or adopt their own more stringent rules.
B. Copies of State Statutes and Regulations
Complete copies of WAC 173-400, WAC 173-401, and RCW 70.94; BCCAA
regulation 1, NWAPA sections 104, 200, 300-303, 320-324, and 326; OAPCA
regulation 1, article 7; PSAPCA regulation I-III; SCAPCA regulation I,
article II and V; SWAPCA 400 and 401; and YCCAA regulation I sections
4.02, 12.01 and 12.02; have been provided to EPA as required by 40 CFR
63.91(b)(2). In addition, OAPCA Regulation I, Article 5 was provided to
EPA with the Washington permitting authorities Title V application
submittal.
C. Demonstration of Adequate Resources
40 CFR 63.91(b)(3) requires the State and Local to provide for
adequate resources to implement and enforce all aspects of the
delegated program or rule. Specifically, 40 CFR 63.91(b)(3) requires a
State to provide: (1) A description in narrative form of the scope,
structure, coverage, and processes of the State program; (2) a
description of the organization and structure of the agency or agencies
that will have responsibility for administering the program; and (3) a
description of the agency staff who will carry out the State program,
including the number, occupation, and general duties of the employees.
EPA believes the Washington permitting authorities have taken the
necessary steps to provide for adequate resources to support
implementation and enforcement of the respective HAP programs which are
at least as stringent as the 40 CFR 63.91(b)(3) requirements. The
recently adopted regulations cited in section III.B. provide the
regulatory framework for administering the respective HAP programs. The
stringency requirement of 40 CFR 63.91(b)(1) is met because the
relevant Washington state and local regulations adopt by reference all
the 40 CFR Part 61 and Part 63 NESHAP regulations being requested for
delegation. Therefore, if approved, the Washington permitting
authorities' air toxics programs would cover the same sources and the
same pollutants which are presently being covered under the federal
Part 61 NESHAP regulations.
Further, on November 9, 1994, EPA granted interim approval to the
Washington permitting authorities operating permit programs, where EPA
found that Washington substantially possesses adequate resources to
implement and enforce their statewide operating permit program (see 59
FR 42552, August 18, 1994, and 59 FR 55813, November 9, 1994, for
further discussion regarding the interim approval of state of
Washington Part 70 operating permit programs, which includes discussion
of adequate resources).
Program costs for major sources subject to the state-adopted NESHAP
regulation would be funded through four separate fee programs: annual
operating permit fees; new source review fees; source registration
fees; and RACT determination fees. EPA believes that these four program
fee collection mechanisms will be adequate to cover the costs of
implementing and enforcing the federal NESHAP regulations proposed for
delegation. The EPA plans to continually monitor the implementation of
the respective HAP programs for each of the Washington permitting
authorities to ensure that adequate resources are in fact available.
D. Demonstration of Expeditious Implementation of 40 CFR Part 61
Requirements
40 CFR 63.91(b)(4) requires the state or local authority to
demonstrate that they can expeditiously implement each delegated NESHAP
regulation or program upon approval. EPA believes that the Washington
permitting authorities' statutory and regulatory authorities are more
than adequate to expeditiously implement these 40 CFR Parts 61 and 63
regulations which they have adopted into state and local law to date.
RCW 70.94 provides the
[[Page 6187]]
Washington permitting authorities with the broad legal authority to
implement and enforce all federal NESHAP regulations adopted into state
or local law or included in a state or locally-issued operating permit
issued pursuant to WAC 173-401. The Washington permitting authorities
would adopt, implement and enforce all new and amended NESHAP
regulations through their respective HAP programs. Operating permits
will be issued to all major NESHAP sources, where each permit will
contain all federal, state, and local air pollution control
requirements applicable to that source, including all NESHAP
requirements. By law, the Washington permitting authorities are to have
issued operating permits to all existing major sources by December 9,
1997, three years from the date of EPA approval of the WAC 173-401
operating permit program. New major sources will be issued an operating
permit at startup.
E. Demonstration of Expeditious Compliance by Sources Subject to 40 CFR
Part 61 Requirements
The EPA believes that the HAP program regulations for each of the
Washington permitting authorities provide for an expeditious schedule
for assuring that sources are in compliance with the NESHAP regulations
as required by 40 CFR 63.91(b)(5). The Washington permitting
authorities have demonstrated to EPA that they indeed have the
resources and authority to assure compliance for all major sources
covered under WAC 173-400 and WAC 173-401 (or equivalent local
regulation), which includes those sources that are subject to the
federal NESHAP regulations. Nothing in Washington state or local
regulations would allow a source to avoid or delay compliance with any
CAA requirement beyond the date required by the federal NESHAP
regulations.
The framework for the Washington permitting authorities compliance
and enforcement programs are outlined in the State/EPA ``Compliance
Assurance Agreement'' (included in Washington's Title V program
submittal). The Washington permitting authorities' compliance programs
will be run through the WAC 173-401 operating permit program (or
equivalent local program), in which sources are required by federal,
state, and local law to comply with all conditions and requirements of
the operating permit upon issuance.
IV. Programs for Proposed Approval and Disapproval
A. 40 CFR Part 61 and Part 63 NESHAP Regulations
With this notice EPA proposes to grant interim approval to the
state of Washington Department of Ecology's January 5, 1995, request
for delegated authority to implement and enforce 40 CFR Part 61,
subparts A, C through F, J, L through P, V, Y, BB, and FF, as adopted
into WAC 173-400, NWAPA Section 104.2, PSAPCA Regulation III Section
2.02, SWAPCA 400 Section 075, and YCCAA Regulation I Section 12.02, as
these rules apply to Part 70 sources (i.e., those major sources which
will be issued a Title V operating permit). EPA is also proposing to
grant interim approval to the NWAPA, PSAPCA, and SWAPCA request for
delegated authority to implement and enforce the locally-adopted 40 CFR
Part 63 NESHAP regulation as these rules apply to Part 70 sources only
(NWAPA regulation 104.2 which adopts by reference 40 CFR Part 63
subparts A through D, F through I, L, M, and Q, as amended on October
19, 1994; PSAPCA Regulation III, Section 2.02 as in effect on October
19, 1995, which adopts by reference all 40 CFR Part 63 NESHAP
regulations in effect as of July 1, 1995; and, SWAPCA regulation 400-
075 as in effect on February 1, 1995, which adopts by reference 40 CFR
Part 63 subparts A, B, D, F-I, L-O, R, Q, T, and EE).
It is EPA's belief that the Washington permitting authorities'
request for delegation substantially meets the requirements of 40 CFR
63.91. However, since EPA has determined that Washington's criminal
authorities under RCW 70.94.430 do not meet the stringency requirement
of 40 CFR 70.11, EPA is therefore only proposing to grant interim
approval to the Washington permitting authorities' request for
delegated authority. This interim delegation of authority would apply
to all of the state-adopted NESHAP regulations being requested for
delegation by the Washington permitting authorities, but only as these
regulations apply to Part 70 sources. EPA will retain implementation
and enforcement authority for these rules as they apply to non-Part 70
sources during the interim period until such time as the Washington
permitting authorities demonstrate that their criminal authorities meet
EPA requirements.
Interim delegation has been deemed by EPA to be an acceptable
delegation option for states who substantially, but do not fully meet
the stringency requirements of 40 CFR 63.91 (see December 10, 1993,
John Seitz memo ``Straight Delegation Issues Concerning Sections 111
and 112 Requirements and Title V''). In this respect EPA is allowing
the Washington permitting authorities the opportunity to amend their
state regulations within a specified timeframe while at the same time
delegating federal authority to allow them to implement and enforce the
federal NESHAP regulations as adopted into state law.
Finally, this delegation of authority to implement and enforce the
federal NESHAP regulations would only extend until December 9, 1996,
which coincides with the end of the interim delegation period for the
Washington permitting authorities Part 70 operating permit program. EPA
will not extend this interim delegation past December 9, 1996.
B. Voluntary Limits on HAP Emissions
EPA is also proposing to approve WAC 173-400-091, 110, 112, 113,
and 114; NWAPA sections 300 through 303; OAPCA Regulation 1, Article 7;
PSAPCA Regulation I, Article 6, and Regulation III, Appendix A; SCAPCA
Regulation I, Article II and V; SWAPCA 400-090, -110, -112, -113, and -
114; and, YCCAA Restated Regulation I, Sections 4.02 and 12.01, under
the authority of section 112(l) of the Act in order to recognize these
regulations as federally-enforceable for purposes of establishing PTE
limitations. Approval of these regulations would provide the Washington
permitting authorities the ability to create federally-enforceable
emission limits by order for those sources which have the potential to
emit HAPs above major threshold levels but have actual HAP emissions
which are below major source levels (thereby becoming a ``synthetic
area source'').
The EPA plans to codify the approval criteria for synthetic area
source programs through amendments to subpart E of 40 CFR Part 63, the
regulations promulgated to implement section 112(l) of the Act. The EPA
believes it has authority under section 112(l) to approve programs
which limit potential to emit HAP prior to this revision to subpart E.
The EPA is proposing approval of the Washington permitting authorities'
synthetic area source program regulations now so that they may begin to
issue federally-enforceable permits as soon as possible. EPA believes
it is consistent with the intent of section 112 and the Act for states
to provide a mechanism through which sources may avoid classification
as a major source by obtaining a
[[Page 6188]]
federally-enforceable limit on their potential to emit HAP.
EPA, as well, believes that the five approval criteria for
approving state operating permit programs into the SIP, as specified in
the June 28, 1989 Federal Register notice, are also appropriate for
evaluating and approving state synthetic area source programs under
section 112(l) of the Act. The June 28, 1989 notice does not address
HAP because it was written prior to the 1990 amendments to section 112,
not because it establishes requirements unique to criteria pollutants.
The EPA currently anticipates that the regulatory criteria to be set
forth in the revisions to 40 CFR part 63, subpart E rule, as they apply
to state synthetic area source permit programs, will mirror those set
forth in the June 28, 1989 Federal Register notice.
Therefore, EPA proposes to approve the Washington permitting
authorities' state and locally-adopted PTE regulations under the
authority of section 112(l) of the Act. Furthermore, EPA proposes that
after final approval of this section, synthetic area source permits
issued pursuant to these regulations (including terms and conditions
for HAPs contained therein) would be enforceable by EPA and by citizens
under section 304 of the Act regardless of whether such permits were
issued prior to EPA approval of these regulations. However, such
permits would have to have been issued after the effective date of the
applicable state or local regulation and in accordance with the
provisions set forth within such regulation. Additionally, the EPA
believes that since state new source review permit programs approved
pursuant to section 112(l) prior to the planned subpart E revisions
will have been approved as meeting these criteria, further approval
actions for those programs will also not be necessary.
C. Requirements for ``Full'' Approval
It is EPA's position that the state of Washington criminal
enforcement authorities do not meet the requirements of 40 CFR
63.91(b)(1) and (b)(6). In order for the Washington permitting
authorities to receive full delegation of authority for the NESHAP
regulations requested they need to demonstrate to EPA that their
criminal enforcement authorities are consistent with the enforcement
requirements of 40 CFR 70.11(a), and therefore 40 CFR 63.91(b)(1) and
(b)(6). Specifically the state of Washington will need to:
(1) Revise RCW 70.94.430 to provide for maximum criminal
penalties of not less than $10,000 per day per violation, as
required by 40 CFR 70.11(a)(3)(ii),
(2) Revise RCW 70.94.430 to allow the imposition of criminal
penalties against any person who knowingly makes any false material
statement, representation or certification in any form, in any
notice or report required by a permit, as required by 40 CFR
70.11(a)(3)(iii). This provision must include maximum penalties of
not less than $10,000 per day per violation, and
(3) Revise RCW 70.94.430 to allow the imposition of criminal
penalties against any person who knowingly renders inaccurate any
required monitoring device or method, as required by 40 CFR
70.11(a)(3)(iii). This provision must include maximum penalties of
not less than $10,000 per day per violation, or
(4) Demonstrate to the satisfaction of EPA that these
authorities are consistent with 40 CFR 70.11, and therefore 40 CFR
61.91.
Though EPA is proposing interim delegation of authority to enforce
the NESHAP regulations to the Washington permitting authorities, it is
important to note that EPA retains oversight authority for sources
subject to these federal CAA requirements. EPA has the authority and
responsibility to enforce the federal regulations in those situations
where the State or Local does not have sufficient authority to file
criminal charges against a facility. Therefore, even though EPA
believes that the Washington permitting authorities' criminal
authorities are not fully adequate, EPA believes that Ecology and the
seven local air authorities, in conjunction with EPA, can provide for
adequate enforcement of the federal NESHAP regulations.
D. Typographical Error
EPA has noted an error in a cross-reference to a regulation in
support of the Washington permitting authorities' request for approval
of their PTE regulations. EPA is assuming that the reference in WAC
173-400-171(i) to WAC 173-400-090 meant to reference WAC 173-400-091.
V. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of today's proposed
interim approval. Copies of the state of Washington submittal and other
information relied upon for this action are contained in a docket
maintained at the EPA Regional Office. The docket is a file of
information submitted to, or otherwise considered by, EPA in the
development of this proposed rulemaking. The principal purposes of the
docket are: (1) To allow interested parties a means to identify and
locate documents so that they can effectively participate in the
rulemaking process, and (2) to serve as the record in case of judicial
review. The EPA will consider any comments received by March 18, 1996.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
NESHAP rule or program delegations approved under the authority of
section 112(l) of the Act do not create any new requirements, but
simply confer federal authority for those requirements that the state
of Washington is already imposing. Therefore, because section 112
delegation approvals do not impose any new requirements, I certify that
it would not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of the State action.
The Act forbids EPA to base its actions concerning State programs on
such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66
(S. Ct 1976); 42 U.S.C. 7410(a)(2).
If EPA's final action is a disapproval, it will not affect any
existing State requirements applicable to small entities. Federal
disapproval of the state of Washington submittal does not affect its
State-enforceability. Moreover, EPA's disapproval of the submittal does
not impose a new federal requirement. Therefore, EPA certifies that any
final disapproval action would not have a significant impact on a
substantial number of small entities because it does not remove
existing State requirements nor does it substitute a new federal
requirement.
D. Unfunded Mandates Reform Act
EPA has determined that the proposed approval action promulgated
today does not include a federal mandate that may result in estimated
costs of $100 million or more to either State, local, or tribal
governments in the aggregate, or to the private sector. This federal
action approves pre-existing requirements under State or local law,
[[Page 6189]]
and imposes no new federal requirements. Accordingly, no additional
costs to State, local, or tribal governments, or to the private sector,
result from this action.
VI. Summary of Action
Pursuant to the authority of section 112(l) of the Act EPA is
soliciting public comment on today's proposal to delegate in the
interim the authority to implement and enforce specific federal NESHAP
regulations which have been adopted into Washington state law.
Additionally, EPA is proposing to approve specific state and local air
regulations for the purpose of conferring federal enforceability to PTE
permits or orders issued pursuant to these regulations.
Interested parties are invited to comment on all aspects of this
proposed rule. Comments should be submitted in triplicate, to the
address listed in the front of this Notice. Public comments postmarked
by March 18, 1996, will be considered in the final rulemaking action
taken by EPA. Issues raised by those comments will be carefully
reviewed and considered in the decision to approve or disapprove the
submittal. The EPA expects to make a final decision on whether or not
to approve the Washington submittal within 30 days after the close of
the public comment period. EPA will give notice of this decision in a
final Federal Register rulemaking. The notice will include a summary of
the reasons for the final determination and a response to all major
comments.
Authority: 42 U.S.C. 7401-7671q.
Dated: February 6, 1996.
Chuck Clarke,
Regional Administrator.
[FR Doc. 96-3584 Filed 2-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-3583 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of New Mexico; Albuquerque/Bernalillo County; Approval of the Vehicle Inspection and Maintenance Program, Emissions Inventory, and Maintenance Plan; Redesignation of the Nonattainment Area to Attainment; and Carbon Monoxide Plan
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6179-6184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3583]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[NM28-1-7087; FRL-5423-3]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of New Mexico;
Albuquerque/Bernalillo County; Approval of the Vehicle Inspection and
Maintenance Program, Emissions Inventory, and Maintenance Plan;
Redesignation of the Nonattainment Area to Attainment; and Carbon
Monoxide Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On April 14, 1995, the Governor of New Mexico submitted a
request for redesignation to attainment for the Albuquerque/Bernalillo
County carbon monoxide (CO) nonattainment area. This request included a
revision to the State Implementation Plan (SIP) for the administration
of a vehicle inspection and maintenance (I/M) program, a 1993 emissions
inventory for Albuquerque/Bernalillo County, and an attainment
maintenance plan. The submission of the revised I/M program was
intended to fulfill previously unfulfilled requirements for an I/M
program. In this action, the EPA is proposing approval of the
Albuquerque/Bernalillo County I/M program, 1993 periodic emissions
inventory, and the request for redesignation, because all meet the
requirements set forth in the Clean Air Act (Act).
DATES: All written comments must be received by March 18, 1996.
ADDRESSES: Written comments on this action should be addressed to Mr.
Thomas H. Diggs, Chief, Air Planning Section, at the EPA Regional
Office listed below. Copies of the documents relevant to this action
are available for public inspection during normal business hours at the
addresses listed below. The interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least twenty-four hours before the visiting day.
U.S. Environmental Protection Agency, Region 6, Air Planning Section
(6PD-L), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
Albuquerque Environmental Health Department, Air Pollution Control
Division, One Civic Plaza Room 3023, Albuquerque, New Mexico 87102
FOR FURTHER INFORMATION CONTACT: Mr. Matthew Witosky, Air Planning
Section (6PD-L), Multimedia Planning and Permitting Division, USEPA
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214)
665-7214.
SUPPLEMENTARY INFORMATION:
I. Background
Albuquerque/Bernalillo County, New Mexico, was designated
nonattainment for CO and classified as moderate with a design value
below 12.7 parts per million (ppm) (specifically 11.1 ppm), under
sections 107(d)(4)(A) and 186(a) of the Act, upon enactment of the
Clean Air Act Amendments (CAAA) of 1990 (the Act).1 Please
reference 56 FR 56694 (November 6, 1991) and 57 FR 13498 and 13529
(April 16, 1992). On November 5, 1992, the Governor of New Mexico
submitted to the EPA a SIP revision for CO concerning Albuquerque/
Bernalillo County that was intended to satisfy the Act's requirements
due on November 15, 1992. The Act outlines certain required items to be
included in CO SIPs. The required items for the Albuquerque/Bernalillo
County CO SIP, due November 15, 1992, included: (1) a comprehensive,
accurate, and current inventory of actual emissions from all sources of
CO in the nonattainment area (sections 172(c)(3) and 187(a)(1) of the
Act); (2) no later than September 30, 1995, and no later than the end
of each three year period thereafter, until the area is redesignated to
attainment, a revised inventory meeting the requirements of sections
187(a)(1) and 187(a)(5) of the Act; (3) a permit program to be
submitted by November 15, 1993, which meets the requirements of section
173 for the construction and operation of new and modified major
stationary sources of CO (section 172(c)(5)); (4) contingency measures
due November 15, 1993, that are to be implemented if the EPA determines
that the area has failed to attain the primary standards by the
applicable date (section 172(c)(9)); (5) a commitment to upgrade and
submit a SIP revision for the I/M program by November 15, 1993,
(section 187(a)(4)); and (6) an oxygenated fuels program (section
211(m)).
\1\ The Clean Air Act as amended (1990 Amendments) made
significant changes to the air quality planning requirements for
areas that do not meet (or that significantly contribute to ambient
air quality in a nearby area that does not meet) the CO NAAQS (see
Pub. L. No. 101-549, 104 Stat. 2399). References herein are to the
CAAA, 42 U.S.C. sections 7401 et seq.
---------------------------------------------------------------------------
The Albuquerque/Bernalillo County Air Quality Control Board has
ambient monitoring data showing attainment of the CO National Ambient
Air Quality Standards (NAAQS) during the period from 1992 through
September of 1995. Therefore, in an effort to comply with
[[Page 6180]]
the Act and to ensure continued attainment of the CO NAAQS, on April
14, 1995, the Governor of New Mexico submitted a CO redesignation
request and a maintenance plan for the Albuquerque/Bernalillo County
area. The redesignation request and maintenance plan were both approved
by the Albuquerque/Bernalillo County Air Quality Control Board
(hereafter referred to as City/County) after a public hearing held on
April 13, 1995.
II. Evaluation Criteria
The Act revised section 107(d)(3)(E) to provide five specific
requirements that an area must meet in order to be redesignated from
nonattainment to attainment. These five requirements follow below:
1. The area must have attained the applicable NAAQS;
2. The area must have a fully approved SIP under section 110(k) of
the Act;
3. The air quality improvement must be permanent and enforceable;
and
4. The area must have a fully approved maintenance plan pursuant to
section 175A of the Act.
5. The area must have met all applicable requirements under section
110 and Part D of the Act.
III. Review of City/County Submittal
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
the EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing.2 See also section 110(l) of the Act. Also, the EPA
must determine whether a submittal is complete and therefore warrants
further EPA review and action (see section 110(k)(1) and 57 FR 13565 of
April 16, 1992). The EPA's completeness criteria for SIP submittals are
set out at 40 CFR 51, appendix V (1991), as amended by 56 FR 42216
(August 26, 1991). The EPA attempts to make completeness determinations
within 60 days of receiving a submission. However, a submittal is
deemed complete by operation of law if a completeness determination is
not made by the EPA six months after receipt of the submission.
\2\ Section 172(c)(7) of the Act requires that plan provisions
for nonattainment areas meet the applicable provisions of section
110(a)(2).
---------------------------------------------------------------------------
After providing adequate notice, City/County held a public hearing
on April 13, 1995, to entertain public comment on the CO redesignation
request and maintenance plan. Following the public hearing, these
elements were adopted by the City/County, signed by the Governor on
April 14, 1995, and submitted to the EPA as a proposed revision to the
SIP.
The SIP revision was reviewed by the EPA shortly after its
submittal to determine if it was administratively complete in
accordance with the criteria referenced above. A letter dated June 2,
1995, was forwarded to the Governor indicating the completeness of the
submittal and the next steps to be taken in the review process.
The information contained in the City/County redesignation request
demonstrates that the area has met the five requirements of section
107(d)(3)(E) of the Act as noted above. The following is a brief
description of how the City/County fulfilled each of these
requirements. For a more detailed analysis of the submittal, refer to
the Technical Support Document. In addition, because the maintenance
plan is a critical element of the redesignation request, the EPA will
discuss its evaluation of the maintenance plan under its analysis of
the redesignation request.
1. Attainment of the CO NAAQS
The City/County request contains an analysis of quality- assured CO
air monitoring data which is relevant to the maintenance plan and to
the redesignation request. The ambient air CO monitoring data for
calendar years 1992 through September of 1995 show no violations of the
CO NAAQS in the City of Albuquerque and Bernalillo County area. Since
the area has complete quality- assured data showing no violations of
the CO NAAQS over at least two consecutive years, the area has met the
first statutory criterion of attainment of the CO NAAQS (40 CFR 50.9
and 40 CFR 50 appendix C).
2. Fully Approved SIP Under Section 110(k) of the CAA
The City/County CO SIP is made up of a number of elements which
were approved at different times prior to this action. The 1990 base
year inventory, the oxygenated fuels program, and the winter wood
burning program were approved on November 29, 1993, at 58 FR 62535. The
nonattainment New Source Review program was approved on December 21,
1994, at 58 FR 67326. Required contingency measures were approved on
May 5, 1995, at 59 FR 23167. In addition, a Clean Fuel Fleet
demonstration project was approved with the contingency measures.
Though not a requirement and not a contingency measure, it was approved
because it could provide some emission reductions. Transportation
conformity rules were approved on November 8, 1995, at 60 FR 56238.
This action proposes to approve the 1993 emissions inventory, the
vehicle inspection and maintenance program, maintenance plan, and
maintenance contingency provisions.3 If approved, the City/County
will have a completely approved SIP for the purposes of redesignation.
Although the EPA has not approved City/County's general conformity SIP
provision, the EPA believes it is reasonable to proceed with
redesignation, and approve the state's general conformity provisions in
a subsequent notice. See section C titled Conformity of this notice for
the EPA's rationale for proceeding with the redesignation.
\3\ The attainment contingency measure approved on May 5, 1995
at 59 FR 23167 would become one of two maintenance contingency
measures through final action on this petition.
---------------------------------------------------------------------------
A. Emission Inventory
Under cover dated November 5, 1992, the State of New Mexico
submitted a comprehensive inventory of CO emissions from the
Albuquerque/Bernalillo County area. The inventory included emissions
from area, stationary, and mobile sources using 1990 as the base year
for calculations. The 1990 inventory was approved after the EPA
performed the Level I, II, and III reviews required to determine that
the submission positively fulfilled the evaluation criteria. The
comprehensive base year emissions inventory was submitted in the
National Emission Data System format.
Section 187(a)(5) of the Act requires that nonattainment plan
provisions include a periodic comprehensive, accurate, and current
inventory of actual emissions from all sources of relevant pollutants
in the nonattainment area after the 1990 base year inventory has been
prepared. Albuquerque/Bernalillo County included the requisite periodic
inventory in the CO Redesignation SIP. The periodic inventory was for
1993, using a three month CO season of November 1993 through January
1994. Stationary point, stationary area, on-road mobile, and non-road
mobile sources of CO were included in the inventory. Stationary sources
with emissions greater than 100 tons per year within a 25-mile buffer
of the designated area were also included in the inventory. The
periodic inventories are to be prepared with the same guidance used in
preparing the 1990 base year inventory. The available guidance for
preparing emission inventories is provided in the General Preamble (57
FR 13498, April 16, 1992).
[[Page 6181]]
Section 110(k) of the Act sets out provisions governing EPA's
review of base year emission inventory submittals in order to determine
approval or disapproval under section 187(a)(5) (see 57 FR 13565-66,
April 16, 1992). The EPA is granting approval of the Albuquerque/
Bernalillo County 1993 periodic CO emissions inventory submitted on May
11, 1995, based on the EPA review guidance. Please refer to the
technical support document for a description of the EPA review process.
The following list presents a summary of the CO peak season daily
emissions estimates in tons per day by source category: point sources,
3.18 tons per day; Area sources, 111.60 tons per day; Mobile Onroad
sources, 274.16 tons per day; Mobile Nonroad sources, 45.74 tons per
day; Total sources, 434.69 tons per day.
The EPA is approving this emission inventory as having met the
requirements of Section 187(a)(5) of the Act as well as approving the
inventory for redesignation purposes. Please reference appendix A of
the Albuquerque/Bernalillo County CO Redesignation SIP for specific
details on the inventory.
B. Vehicle Inspection and Maintenance
(1) Background. In a letter dated April 14, 1995, the State of New
Mexico submitted to the EPA rules for an Albuquerque SIP revision to
implement an I/M program in the Albuquerque/Bernalillo County carbon
monoxide (CO) nonattainment area. These rules were submitted as part of
the SIP revision regarding requirements pursuant to Section 182 of the
Act and 40 CFR Part 51, Subpart S of the Federal I/M rule. The SIP was
submitted in conjunction with a redesignation request and maintenance
plan since the area has the air quality data to support such a request.
In addition to the State regulations (Air Quality Control Board
Regulation 28, Motor Vehicle Inspection), Albuquerque has submitted its
I/M ``Procedures Manual'' narrative describing the I/M program,
Analyzer Specification Manual, the legal authority for the program (NM
Air Quality Control Act 74-2, NM Statutes Chapter 66, Motor Vehicles)
and other supporting documents relating to the I/M program.
As a moderate CO nonattainment area, the City of Albuquerque was
required to submit an I/M SIP by November 15, 1993, which met all the
requirements of the Federal I/M Rule for a basic I/M program. Since a
SIP was not received by EPA, on January 14, 1994, EPA issued a finding
of nonsubmittal which initiated an 18 month sanction clock. EPA stopped
the sanction clock on June 2, 1995, upon the determination that the SIP
submitted by the State on April 14, 1995, was complete.
On January 5, 1995, EPA issued rules providing basic I/M areas such
as Albuquerque that were redesignating to attainment significant
amounts of flexibility determining which features in the I/M program
the State would implement (See 60 FR 1735-38). Essentially, the rule
allows that areas having an ultimately approvable redesignation request
could keep their current I/M program without upgrades, if upgrades were
not needed to maintain the standard in the ten year maintenance plan.
For this reason EPA is publishing the approval of the I/M SIP at the
same time as the redesignation to attainment. Since such a program
would not be fully upgraded to meet the requirements of a basic program
as contained in 40 CFR Part 51, Subpart S of the Federal I/M rule, the
program implemented would have to assume an 80% rule effectiveness for
the purposes of modeling in the ten year maintenance plan.
(2) Review Criteria and Determination. The criteria used to review
the submitted SIP revision is based on the requirements contained in
the I/M redesignation rule published January 5, 1995. This notice lists
four criteria that are needed for the Agency to approve the
redesignation request and the I/M program if the program is not fully
upgraded to meet all the requirements in the Federal I/M rule. These
criteria are: (1) legal authority for a basic I/M program, meeting all
the requirements of Subpart S such that implementing regulations can be
adopted without further legislation; (2) a request to place the I/M
plan or upgrades, as defined in the I/M redesignation rule, (as
applicable) in the contingency measures portion of the maintenance plan
upon redesignation as described in the fourth element below; (3) a
contingency measure to go into effect as soon as a triggering event
occurs, consisting of a commitment by the Governor or the designee to
adopt regulations to implement the I/M program in response to the
specified triggering event; and (4) a commitment that includes an
enforceable schedule for adopting and implementing the I/M program,
including appropriate milestones, in the event the contingency measure
is triggered (milestones shall be defined by states in terms of months
since the triggering event).
Legal Authority
Legal authority for the current I/M program along with a potential
future upgrade is contained in the New Mexico Air Quality Control Act
as well as the New Mexico Motor Vehicle Code. Specifically, authority
for the implementation of the I/M program is contained in Article 2 of
the Air Quality Control Act, section 74-2-4. This section gives the
local authority the ability to adopt rules, regulations and guidelines,
set fees, and operate alternate program types in case of a federally
required contingency. Authority for enforcement of the program by
requiring a valid emission inspection certificate before a registration
is granted is found in the New Mexico Motor Vehicle Code 66-3-7.1. No
other legal authority is needed to fully upgrade the program to meet
the basic I/M requirements of 40 CFR Part 51.
I/M Program Upgrades In Contingency Measure
Air Quality Control Board Regulation 28.23, Motor Vehicle
Inspection contains the provision for program automatic upgrades as a
contingency measure if the area experiences a violation of the ambient
carbon monoxide standard. By regulation the program will convert to an
annual testing program and will be upgraded to meet the performance
standards as outlined in 40 CFR Part 51.
I/M Contingency Effective Upon Triggering Mechanism
By Regulation 28.23, the triggering mechanism is effective upon an
EPA confirmed violation of the federal ambient carbon monoxide
standard. The effective date of Regulation 28.23 is July 1, 1995.
Schedule for Implementing Triggered I/M Upgrade
Regulation 28.23 sets forth the schedule for implementing program
upgrades, a major feature of which would be to increase the testing
frequency from biennial to annual. The regulation calls for I/M program
upgrades 120 days after the EPA confirmed violation of the carbon
monoxide standard.
In addition to these four criteria being met, the redesignation
portion of the SIP has incorporated the 80% rule effectiveness in its
calculations demonstrating that the area can
[[Page 6182]]
maintain the standard for ten years. See pages 30 and Appendix Ba of
the redesignation SIP for these calculations.
(3) Current I/M Program Parameters
------------------------------------------------------------------------
Parameter Albuquerque I/M program
------------------------------------------------------------------------
Network Type........................... Decentralized, Test and Repair.
Emission Test.......................... Two Speed idle test with BAR90
as of 1/1/96. BAR84 analyzers
allowed prior to that date.
Visual check includes
catalytic converter, air
injection system, and oxygen
sensor.
Vehicle Coverage....................... 1975 and later spark ignition
motor vehicles between 1,000
and 26,000 pounds, including
fleets operating within
Bernalillo County and vehicles
operating on Federal
installations in the county.
Test Frequency......................... Biennial.
Extensions............................. Excludes an emission-related
tune-up. Motorists have 12
months to perform repairs up
to $300 and 24 months for
repairs over $300.
Waivers................................ None.
Enforcement Penalties against Test Monetary penalties and/or
Stations or Inspectors. denial, suspension or
revocation of certification.
Enforcement Penalty against Motorists.. Registration Denial.
Contingency Measure.................... Annual testing and upgrades to
meet the performance standards
in 40 CFR Part 51.
Upgrade Triggering Mechanism........... An EPA-confirmed violation of
the carbon monoxide standard.
------------------------------------------------------------------------
(4) Finding of the EPA Review. EPA has reviewed the Albuquerque I/M
SIP submittal SIP revision submitted to the EPA, using the criteria
stated above. Albuquerque's regulations and accompanying materials
contained in the SIP represent an acceptable approach to the I/M
requirements in view of the approvable redesignation request.
C. Conformity
Section 176(c) of the Act requires States to revise their SIPs to
establish criteria and procedures to ensure that Federal actions,
before they are taken, conform to the air quality planning goals in the
applicable SIP. The requirement to determine conformity applies to
transportation plans, programs and projects developed, funded or
approved under Title 23 U.S.C. or the Federal Transit Act
(transportation conformity). Section 176 further provides that the
conformity revisions to be submitted by States must be consistent with
Federal conformity regulations that the Act required the EPA to
promulgate. Congress provided for the State revisions to be submitted
one year after the date for promulgation of final EPA conformity
regulations. When that date passed without such promulgation, the EPA's
General Preamble for the Implementation of Title I informed States that
its conformity regulations would establish a submittal date (see 57 FR
13498, 13557 (April 16, 1992)).
The EPA promulgated final conformity regulations on November 24,
1993, (58 FR 62188) and November 30, 1993, (58 FR 63214). These
conformity rules require that the States adopt both transportation and
general conformity provisions in the SIP for areas designated
nonattainment or subject to a maintenance plan approved under the Act's
section 175A. The City/County submitted both transportation and general
conformity rules to the EPA for approval. The transportation conformity
rule was approved at 60 FR 56280 on November 8, 1995.
Although this redesignation request was submitted to EPA after the
due dates for the SIP revisions for transportation conformity (58 FR
62188) and general conformity (58 FR 63214) rules, the EPA believes it
is reasonable to proceed with a redesignation while approval of general
conformity rules is under consideration by the EPA. The rationale for
this is based on a combination of two factors. First, the requirement
to submit SIP revisions to comply with the conformity provisions of the
Act continues to apply to areas after redesignation to attainment.
Therefore, the State remains obligated to enforce the transportation
and general conformity rules even after redesignation and would risk
sanctions for failure to do so. While redesignation of an area to
attainment enables the area to avoid further compliance with most
requirements of section 110 and part D, since those requirements are
linked to the nonattainment status of an area, the conformity
requirements apply to both nonattainment and maintenance areas. Second,
EPA's federal conformity rules require the performance of conformity
analyses in the absence of state-adopted rules. Therefore, a delay in
approving State general conformity rules does not relieve an area from
the obligation to implement such requirements. Hence, EPA believes the
area has met these requirements for the purpose of a redesignation
request.
3. Improvement in Air Quality Due to Permanent and Enforceable Measures
The control measures producing emission reductions are comprised of
the following: (1) the Federal Motor Vehicle Control Program; (2) the
oxyfuels program; (3) the winter wood burning program; and (4) the I/M
program. The EPA finds that these control measures contribute to the
permanence and enforceability of reductions in ambient CO levels that
have allowed the area to attain the NAAQS.
4. Fully Approved Maintenance Plan Under Section 175A
Section 175A of the Act sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
The plan must demonstrate continued attainment of the applicable NAAQS
for at least ten years after the Administrator approves a redesignation
to attainment. Eight years after the redesignation, the state must
submit a revised maintenance plan which demonstrates attainment for the
ten years following the initial ten year period. To provide for the
possibility of future NAAQS violations, the maintenance plan must
contain contingency measures, with a schedule for implementation that
is adequate to assure prompt correction of any air quality problems. In
this action, the EPA is proposing to approve the City/County's
maintenance plan because the EPA finds that the plan meets the
requirements of section 175A.
A. Demonstration of Maintenance--Projected Inventories
Total CO emissions were projected from a 1990 base year out to
2006. These projected inventories were prepared in
[[Page 6183]]
accordance with EPA guidance. The redesignation request contains the
detailed inventory data and summaries by source category. Like the base
year inventory, the inventory projections were prepared in accordance
with EPA guidance. The following table summarizes the 1990 base year
inventory and inventory projections to the year 2006.
CO Emissions Inventory Summary
[Tons per day]
----------------------------------------------------------------------------------------------------------------
Year Area Non-road Mobile Point Total
----------------------------------------------------------------------------------------------------------------
1993........................................... 111.60 45.75 274.16 3.18 434.69
1996........................................... 116.28 48.12 235.50 0.00 399.90
1999........................................... 120.98 50.48 207.95 0.00 379.41
2002........................................... 125.71 52.86 197.13 0.00 375.70
2005........................................... 130.42 55.22 199.12 0.00 384.76
2006........................................... 131.98 55.98 202.95 0.00 390.91
----------------------------------------------------------------------------------------------------------------
Please reference appendix B for specific details of the projected
inventories. The projections show that calculated CO emissions are not
expected to exceed the level of the base year inventory during this
time period. Therefore, it is anticipated that the City/County area
will maintain the CO standard.
B. Verification of Continued Attainment
Continued attainment of the CO NAAQS in the Albuquerque/ Bernalillo
County area depends, in part, on the City/County's efforts in tracking
the indicators of continued attainment during the maintenance period.
The City/County has also committed to submit periodic inventories of CO
emissions every three years to fulfill the requirements of sections
187(a)(1) and 187(a)(5).
C. Contingency Plan
In accordance with section 175A(d) of the Act, the City/County has
submitted contingency measures designed to ``assure that the state will
promptly correct any violation of the standard which occurs after the
redesignation.'' The City/County submitted one contingency measure to
correct a violation of the CO standard, and another contingency measure
designed to forestall such a violation. The EPA appreciates the quality
of both contingency measures for several reasons.
The City/County submitted a ``primary'' contingency measure that
will take effect without further action by the City/County or the State
of New Mexico. If EPA confirms that two exceedences have occurred in
the maintenance area, and issues a notice of violation, two automatic
policy changes will occur. One, the vehicle inspection and maintenance
program will become annual rather than biannual. Two, the oxygenated
fuel regulation will require that all fuel sold in the nonattainment
area contain no less than 3.0 percent oxygenate by weight. The change
in the I/M program will take place within 120 days after the violation
is confirmed by EPA. The requirement to increase the oxygenate content
will be effective at the beginning of the next CO season. For this
area, the CO season begins on November 1 and concludes the last day of
February. The EPA favors the contingency measures as corrective actions
because they produce real and quantifiable reductions of CO, that are
readily enforceable.
The City/County submitted a ``secondary'' contingency measure that
can take effect if the periodic emissions inventory exceeds the
baseline inventory used in this request for redesignation. In this
contingency measure, the City/County authority will consider
implementing the primary contingency measures if the periodic emissions
inventory surpasses the amount of emissions quantified in the baseline
inventory.
It is important to note that a CO inventory every three years after
redesignation is not a requirement of the Act. The City/County has
volunteered to perform such an inventory in addition to the
requirements to submit a ten year maintenance plan, and revise the SIP
eight years after the designation to attainment, to assure maintenance
of the standard for an additional 10 years.
This contingency measure is particularly advantageous to the City/
County because the consideration of contingency measures is required
through the use of a forecasting model. By properly using the periodic
emissions inventory as a forecasting tool, the City/County should be
able to act to prevent any exceedences. This secondary measure is
therefore protective of air quality and the status of attainment.
D. Subsequent Maintenance Plan Revisions
In accordance with section 175A(b) of the Act, the City/County has
agreed to submit a revised maintenance SIP eight years after the area
is redesignated to attainment. This SIP revision must provide for the
maintenance of the CO standard for an additional ten years.
5. Applicable Requirements of Section 110 and Part D
The 1990 Amendments modified section 110(a)(2) and revised section
172 of part D, by adding new requirements for all nonattainment areas.
The EPA has reviewed the SIP to ensure that it contains all measures
that were due under the Act prior to or at the time the City/County
submitted its redesignation request.
Under section 187(a), areas designated nonattainment for CO under
the Act and classified as moderate were required to meet several
requirements by November 15, 1992. The City/County was required to
submit a 1990 Emission Inventory. The EPA has reviewed and approved the
1990 base year emission inventory (see 58 FR 62535-62539, November 29,
1993). Section 211(m) further required the City/County to submit an
oxygenated fuels regulation. This rule was submitted to the EPA and
approved on November 29, 1993, in the FR. Finally, the I/M program
requirement has been met by the City/County's submittal to the EPA on
May 8, 1995.
Section 172(c) sets forth general requirements applicable to all
nonattainment areas. Two requirements under section 172(c) for
Albuquerque/Bernalillo County were: (1) to submit a preconstruction
permit program for new or modified major stationary sources that wish
to locate in a nonattainment area (section 172(c)(5)); and (2) to
submit contingency measures to be implemented if the area failed to
make reasonable further progress (RFP) or to attain the applicable
NAAQS by the
[[Page 6184]]
applicable date (section 172(c)(9)). The City/County submitted both of
the above programs, which were fully approved in the FR (Please
reference 58 FR 67326-67330, December 21, 1993, for the nonattainment
New Source Review (NSR) program approval, and 59 FR 23167-23169, May 6,
1994, for the contingency measures approval). Upon redesignation to
attainment, the Prevention of Significant Deterioration (PSD)
permitting program will be applicable. City/County's PSD program was
approved in the FR on December 21, 1993, at 58 FR 67330-67334. In
addition, City/County's preconstruction permit program was approved in
the FR on March 15, 1994, at 59 FR 12170-12172, and the winter wood
burning program was approved on November 29, 1993, at 58 FR 62535-
62539.
IV. Proposed Action
The EPA is proposing to approve the request of the State of New
Mexico to redesignate to attainment the Albuquerque CO nonattainment
area to attainment status. The EPA is also proposing approval of the
vehicle inspection and maintenance program, the 1993 periodic emissions
inventory, and the attainment maintenance plan. The EPA will take final
action on this notice following analysis of public comments on this
proposal.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the FR
on January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995,
memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation. The Office of Management and Budget has exempted this
regulatory action from Executive Order 12866 review.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Miscellaneous
Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 600 et seq.,
the EPA must prepare a regulatory flexibility analysis assessing the
impact of any proposed or final rule on small entities (5 U.S.C.
Secs. 603 and 604). Alternatively, the EPA may certify that the rule
will not have a significant impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, part D, of the
Act do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Act forbids the EPA to base its actions concerning SIPs on such grounds
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42
U.S.C. Sec. 7410(a)(2)).
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under section 110 of the Act.
These rules may bind State, local and tribal governments to perform
certain actions and also require the private sector to perform certain
duties. To the extent that the rules being approved by this action will
impose no new requirements; such sources are already subject to these
regulations under State law. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action. The EPA has also determined that this action does not
include a mandate that may result in estimated costs of $100 million or
more to State, local, or tribal governments in the aggregate or to the
private sector.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: January 30, 1996.
Jane N. Saginaw,
Regional Administrator.
[FR Doc. 96-3583 Filed 2-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-3557 Flexible Service Offerings in the Commercial Mobile Radio Services
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6189-6199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3557]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 2
[WT Docket No. 96-6; FCC 96-17]
Flexible Service Offerings in the Commercial Mobile Radio
Services
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this Notice of Proposed Rule Making (``Notice''), we
propose that broadband Commercial Mobile Radio Service (``CMRS'')
(``broadband CMRS'') providers be authorized to offer fixed wireless
local loop service. We also solicit comment on whether other or all
fixed services should be permitted in addition to the mobile and
related fixed services now permitted. We initiate this proceeding on
our own motion to address the uncertainty in our existing rules on the
extent to which fixed services may be provided by broadband Personal
Communications Service (``PCS''), Cellular Radiotelephone Service
(``cellular''), and Special Mobile Radio (``SMR'') providers. The
measures we propose should increase competition within wireless
services and promote competition between wireless and wireline
services.
DATES: Comments are to be filed on or before February 26, 1996. Reply
Comments are to be filed on or before March 18, 1996.
ADDRESSES: Federal Communications Commission, 1919 M Street, N.W.,
Washington, D.C. 20554.
FOR FURTHER INFORMATION CONTACT: Sandra Danner, Legal Branch,
Commercial Wireless Division, Wireless Telecommunications Bureau at
(202) 418-0620.
SUPPLEMENTARY INFORMATION:
This Notice of Proposed Rule Making in WT Docket No. 96-6, adopted
January 24, 1996, and released January 25, 1996, is available for
inspection and copying during normal business hours in the FCC Dockets
Branch, Room 230, 1919 M Street, N.W., Washington, D.C. The complete
text may be purchased from the Commission's copy contractor,
International Transcription Service, Inc., 2100 M Street, N.E., Suite
1400, Washington, D.C. 20037 (telephone (202) 857-3800).
I. Introduction
1. In this Notice of Proposed Rule Making (``Notice'') in WT Docket
No. 96-6, we propose that broadband Commercial Mobile Radio Service
(``CMRS'') (``broadband CMRS'')1 providers be authorized to offer
fixed wireless local loop service. We also solicit comment on whether
other or all fixed services should be permitted in addition to the
mobile and related fixed services now permitted. We initiate this
proceeding on our own motion to address the uncertainty in our existing
rules on the extent to which fixed services may be provided by
broadband Personal Communications Service (``PCS''), Cellular
Radiotelephone Service (``cellular''), and Special Mobile Radio
(``SMR'') providers. The measures we propose should increase
competition within wireless services and promote competition between
wireless and wireline services.
\1\ The services under ``broadband CMRS'' includes Broadband
Personal Communications Service, Cellular Radiotelephone Service and
Specialized Mobile Radio. See in the Matter of Implementation of
Sections 3(n) and 332 of the Communications Act, Regulatory
Treatment of Mobile Services, GN Docket No. 93-252, 59 FR 59945
(November 12 1994), Third Report and Order, 9 FCC Rcd 7988, 8105-
8110, Paras. 252-265 (1994).
---------------------------------------------------------------------------
II. Background
2. The Communications Act 2 defines ``mobile service'' as a
``radio communication service carried on between mobile stations or
receivers and land stations, and by mobile stations communicating among
themselves and includes (1) both one-way and two-way radio
communication services, (2) a mobile service which provides a regularly
interacting group of base, mobile, portable, and associated control and
relay stations (whether licensed on an individual, cooperative, or
multiple basis) for private one-way or two-way land mobile radio
communications by eligible users over designated areas of operation,
and (3) any service for which a license is required in a personal
communications service established pursuant to the proceeding entitled
`Amendment to the Commission's Rules to Establish New Personal
Communications Services' (GEN Docket No. 90-314; ET Docket No. 92-100),
or any successor proceeding.'' 47 U.S.C. 153(n).
\2\ Communications Act of 1934, as amended, 47 U.S.C. 332
(``Communications Act'').
---------------------------------------------------------------------------
3. In the Second Report and Order in GN Docket No. 93-252, 59 FR
18493 (April 19, 1994) (``CMRS Second Report & Order''), the Commission
interpreted the statutory definition of mobile service to include ``all
auxiliary services provided by mobile services licensees,'' but then
distinguished between fixed point-to-point services and those services
capable of being provided in a ``mobile mode.'' The CMRS Second Report
and Order excludes from the mobile definition those services which are
solely fixed in nature (e.g., Basic Exchange Telephone Radio Service
(BETRS)), but categorizes other services that have some fixed uses as
mobile by virtue of having a mobile component or mobile capabilities.
For example, we determined that services provided through dual-use
equipment, such as Inmarsat-M terminals that can be moved while
transmitting, are mobile.
4. Our current rules for broadband CMRS services allow licensees to
provide all forms of mobile services, including local loop services
that are mobile in nature. In addition, broadband CMRS providers may
[[Page 6190]]
provide some forms of fixed service subject to certain limitations. Our
PCS rules, for instance, permit PCS licensees to provide any fixed
service that is ancillary to their mobile operations. Likewise, SMR
providers may use licensed spectrum for certain fixed uses on a
secondary, non-interference basis to the primary mobile operations of
any other licensee. Cellular carriers may provide auxiliary common
carrier services and services premised on the use of alternative
cellular technologies, so long as such services do not interfere with
the authorized cellular service. Fixed services also may be provided by
cellular licensees as incidental communication services under our
incidental service rules.
5. Local exchange service delivered by radio link may be provided
using architectures consisting of mobile, fixed, or a combination of
those components. For example, one possible architecture would be
radio-based telephone instruments that are mobile, whether in the home,
office, or any other fixed location. Another example would combine
wired telephone instruments with a fixed wireless link from the street
to a demarcation box on the side of a house, building, or other
premises to which wiring connects. Our current rules are unclear,
however, on the scope of fixed ancillary services that may be provided
by PCS carriers, and as to the types of secondary, auxiliary or
incidental services that may be provided by other CMRS providers.
Although we previously held that all auxiliary services provided by
mobile service licensees would be considered in the definition of
``mobile'' service by such carriers, we are finding that carriers are
hesitant to take advantage of that flexibility without further guidance
from the Commission. We note our original purpose in limiting this
spectrum to mobile and related services was to ensure that adequate
spectrum was available for these services, which cannot feasibly be
provided at higher frequencies. However, it appears that the
characterization of permissible use in our rules may be inhibiting
carriers intending to use radio links to replace existing wireline
service or to bring service to rural or less attractive areas otherwise
not being adequately served by wireline providers.
6. We propose to define ``wireless local loop'' as the path between
the subscriber and the first point of switching or aggregation of
traffic. We seek comment on whether this definition will encompass the
anticipated service needs of consumers and whether such a definition
gives certainty to CMRS providers that are planning and marketing
competitive wireless telecommunications networks. We propose a
definition for wireless local loop that is sufficiently broad that it
is unnecessary to examine the mobile or fixed nature of each particular
application.
7. The Commission has discretion under Section 303 of the
Communications Act to prescribe the nature of the service to be
rendered over radio frequencies and to assign or allocate frequencies
to various classes of stations. Nothing in the language of Section 303
(or its legislative history) suggests that the Commission is prohibited
from assigning spectrum to stations for more than one permissible use.
Furthermore, the Commission is guided by the policies set forth in the
Communications Act to encourage the provision of new technologies and
services to the public.
8. The federal government as well as state governments are
interested in removing barriers to competitive provision of local
exchange service throughout the United States. Over the last several
years, the Commission and various state governments have taken a number
of actions that increased opportunities for competitive provision of
local telecommunications services. A number of states have already
enacted legislation or completed other measures to introduce new local
exchange service providers. In a series of decisions from 1992 to 1994,
the Commission implemented expanded interconnection and collocation
policies that created new opportunities for competitive provision of
access services that have been traditionally offered by only the local
telephone companies. These decisions were fundamental to opening the
interstate special access and switched transport markets to
competition.
9. More recently, in a Third Notice of Proposed Rule Making and
Supplemental Tentative Decision in CC Docket No. 92-297, 60 FR 43740
(August 23, 1995), the Commission noted that the Local Multipoint
Distribution Service--a wireless technology operating in the 28 GHz
band--``may provide services that compete with local exchange carriers
in the provision of local exchange service * * *'' By the instant
Notice, the Commission takes additional steps to foster competitive
local exchange service by proposing that broadband CMRS providers also
be able to offer the equivalent of local exchange service using
existing allocations for PCS, cellular and SMR. The flexible regulatory
scheme proposed in this Notice will help eliminate the need for the
Commission to initiate a rule making or grant multiple waivers each
time a broadband CMRS provider or new entrant to a market wishes to
adjust its operational mode to respond to consumers' changing
communications requirements. Our proposed approach here is consistent
with prior decisions and current proposals.
III. Discussion
A. Expanded Service Options on PCS Channels
10. In the Notice of Proposed Rule Making in GEN Docket No. 90-314
and ET Docket No. 92-100, 57 FR 40672 (September 4, 1992) (``PCS
NPRM''), we observed that personal communications requirements are
changing rapidly as our society becomes more mobile and the demand for
nearly instantaneous communications and universal access increases. We
proposed to define PCS as a family of services that could provide
communications to individuals and business, and be integrated with a
variety of competing networks. Most of the commenters in the PCS
proceeding agreed that PCS should be flexible enough to provide a wide
range and variety of services, envisioned generally as mobile or
portable radio communications. The PCS NPRM further proposed that fixed
services generally be allowed only as ancillary to mobile PCS services.
Some parties in the PCS proceeding argued, however, that restrictions
on use of PCS spectrum for fixed services on PCS channels are
inadequate to define an emerging technology and implementation of a new
service.
11. A number of early trials under PCS experimental licenses
included a variety of technologies and service concepts, including
personal communications networks (PCN), private branch exchange (PBX),
and wireless local loop. We indicated that wireless local loop service
is a type of PCS in the PCS NPRM. Based upon concepts expressed in
comments, the experimental applications granted, and the pioneer
preference requests, we concluded in the PCS Second Report and Order
that proposed services and devices would likely range from advanced
wireless replacements for ordinary telephones to radio communications
devices capable of sending and receiving voice and data to and from
virtually anywhere. Specific kinds of PCS services and devices cited in
the Second Report and Order in GEN Docket No. 90-314, 8 FCC Rcd 7700,
7712, 58 FR 59174 (Nov. 8, 1993) (``PCS Second Report and Order'') were
expected to include advanced forms of
[[Page 6191]]
cellular telephone service, advanced digital cordless telephone
service, portable facsimile services, wireless PBX services, and
wireless local area network (LAN) services, among others. We predicted
that these new services and devices would operate through existing
public switched networks, or through alternative local networks such as
cable television systems. We also indicated, however, that PCS also
would exist independent of local wired networks, ``filling gaps in
existing communications services and creating new markets.'' See ``PCS
Second Report and Order''.
12. Accordingly, our current PCS rules permit licensees to provide
any mobile communications service on their assigned frequencies to
satisfy mobile communications needs. The rules also provide that
``fixed services (except for broadcast services) may be provided if
ancillary to mobile operations.'' 47 C.F.R. Sec. 24.3. Otherwise, a
carrier must seek a waiver to offer primarily fixed service,
demonstrating that such service best meets the demands of an area. The
rationale for prohibiting broadcast and non-ancillary fixed services in
PCS spectrum was the limited amount of spectrum available to provide
mobile service and the availability of other frequency bands or other
media to provide broadcast and fixed services. The ancillary fixed use
language was not intended, however, to exclude fixed services totally,
but to preserve the anticipated mobile operations attributable to PCS
technologies as understood in the earlier stages of PCS development.
13. The current restriction on fixed use of the channels in our PCS
rules may not reflect current stages of the developing PCS market and
could hinder carriers from quickly and economically using channel
capacity to meet changing market demand. As indicated in the earlier
PCS proceedings, we always have intended wireless local loop to be a
part of the family of services that meet our definition of PCS, whether
implemented as a mobile or fixed service. We therefore propose to amend
our existing broadband PCS rules to clarify that broadband PCS
providers may provide wireless local loop services, as defined above,
along with mobile service as principal uses of spectrum allocated to
broadband PCS. Under this proposal, the permissible communications
language in the existing broadband PCS rules would be amended to
explicitly encompass fixed wireless local loop.
14. While broadband PCS systems will use digital or other highly
efficient technology to achieve tremendous system capacity, current
technology supports economical mobile services only up to approximately
3 GHz. Given this technological constraint, we seek comment on whether
the currently allocated broadband PCS spectrum will provide sufficient
capacity for mobile uses if fixed wireless local loop services are
provided on broadband PCS spectrum. Alternatively, should the
Commission allow the operation of the market to determine the most
efficient use of the broadband PCS spectrum?
15. Finally, we seek comment on whether additional interference or
other operational rules are needed to accommodate fixed wireless local
loop uses of the broadband PCS channels. What changes are needed to our
existing technical rules? Are additional technical rules required to
govern fixed wireless local loop uses in the broadband PCS bands? Our
intent is to have the necessary technical rules to minimize
interference without unduly hindering a carrier's ability to offer a
variety of services.
B. Expanded Service Options on Other CMRS Channels
16. The proposed changes in the broadband PCS rules to expand the
service offerings permissible on broadband PCS channels to include
fixed wireless local loop services would suggest that similar treatment
be afforded to other categories of CMRS that have the potential to
directly compete with PCS. The Commission previously has held that all
commercial mobile radio services are ``substantially similar'' by
virtue of existing competition or the potential for competition among
the CMRS categories. In our recent report to Congress on CMRS
competition, we reiterated our previous findings in the CMRS proceeding
that cellular and SMR services in the short term are most likely to
directly compete with each other and with broadband PCS, because each
service consists largely of two-way, mobile telephony. Broadening the
permissible service options for cellular and SMR results in those CMRS
providers having more flexibility to meet market demand, including
meeting demand that traditionally has been serviced by wireline common
carriers. We therefore propose to permit licensees to provide fixed
wireless local loop services on their licensed cellular and SMR
spectrum.
17. As with PCS, we seek comment regarding (1) whether and to what
extent cellular and SMR service rules should be changed to permit
flexibility in the provision of fixed wireless local loop as well as
mobile services; (2) implications on the availability of spectrum for
mobile services (see para. 14, supra); and (3) specific operational,
interference or technical rules to permit fixed wireless local loop
uses of the cellular and SMR channels.
18. In recognition that CMRS consists of ``substantially similar''
services by virtue of potential competition among and between all of
those services, we also request comment on whether the public interest
would be served by also permitting ``narrowband'' CMRS providers the
operational flexibility to offer fixed wireless local loop services as
proposed for broadband CMRS. These other ``narrowband'' CMRS offerings
include paging, narrowband PCS, commercial 220 MHz service, and
interconnected business radio service (collectively, ``narrowband
CMRS'').
C. Regulatory Treatment When Fixed Wireless Local Loop
Services Are Provided On CMRS Systems.
19. If we ultimately decide to allow fixed wireless local loop
services by CMRS providers, we also must decide how such services are
to be regulated. It is clear that PCS providers intend to integrate
mobile, wireless fixed, wireline networks, and cable facilities into
seamless packaged offerings that could span several states. Some of
these networks will go beyond regional coverage to achieve seamless
nationwide coverage. The Omnibus Reconciliation Act of 1993 (``Budget
Act''), which amended the Communications Act to create the CMRS
regulatory classification, reflects Congress' intent to establish
regulatory symmetry among mobile services. The broad goal of this
legislation was to ensure that economic forces--not disparate
regulatory requirements--shape the development of the CMRS marketplace.
In addition, we established in the CMRS Second Report and Order that
all auxiliary services provided by mobile services licensees would be
included within the definition of mobile services, including ancillary
fixed communications offered by PCS providers, to preserve the
flexibility necessary to meet growing consumer demand for a broad range
of mobile services.
20. The ability of a carrier to offer consumers a ``menu'' of
services, which could include fixed wireless local loop services, adds
value to the carrier's mobile services because it gives the mobile
customer the option of using the fixed and mobile applications offered
by a single provider. Presumably, to achieve economies of scale with
such integrated networks, those carriers
[[Page 6192]]
would use the same facilities, regardless of whether the services are
provided intrastate or interstate. Consequently, we do not want to
discourage the development of such integrated networks by subjecting
carriers to multiple layers of regulation. We, therefore, propose to
treat fixed wireless local loop services as an integral part of the
CMRS services offered by a CMRS provider, so long as the carrier
otherwise offers interconnected, for-profit mobile service to the
public on licensed CMRS spectrum as provided by the Communications Act.
We seek comment on this proposal and invite commenters to offer
alternate proposals. We note that in the CMRS Second Report and Order
we presumptively classified PCS as CMRS, allowing each PCS provider to
make a showing that one or more of its services are private by
demonstrating that the service is not within the CMRS definition. We
will continue to allow PCS licensees to overcome the CMRS presumption
upon the proper demonstration that such services do not qualify as
CMRS.
D. Universal Service Obligations
21. The Commission has a number of universal service programs in
place that seek to promote the availability of telephone service. Our
Lifeline and Link Up programs provide assistance to low income and
elderly residential subscribers, and the Universal Service Fund program
provides assistance to telephone companies operating in high cost
areas. These programs are administered by the National Exchange Carrier
Association in cooperation with the states pursuant to Commission
requirements. Should we ultimately adopt the rules we propose herein,
CMRS licensees would be permitted to provide fixed wireless local loop
services that in some respects could be similar to wireline telephone
local exchange service. We seek comment on the extent to which any of
our universal service programs should be modified to encompass, or
impose obligations on, CMRS providers that offer the equivalent of
local exchange service. We currently are examining universal service
issues more broadly in separate proceedings, including the extent to
which competitive local exchange service providers should be eligible
for high cost support. As stated in those proceedings, competition in
local exchange service can be provided by different kinds of service
providers, including cellular carriers, and our universal service
programs should not favor a particular technology. It is the
Commission's preference, if feasible, to treat the universal service
obligation issues raised in this proceeding in our decisions in the
universal service proceedings.
E. Other Possible Fixed Services for CMRS
22. In addition to proposing that CMRS providers be allowed to
offer fixed as well as mobile wireless local loop, we seek comment on
whether certain other fixed services should be allowed as well, or
alternatively, whether CMRS providers should be allowed to provide any
form of fixed service without restriction. We note that wireless local
telephone service may not be the only technically and economically
viable fixed service that could be accommodated on spectrum allocated
to CMRS providers. Other potential wireless fixed services may include
wireless Internet access, electronic funds transfers, point-of-purchase
credit card verification, and remote monitoring. We seek comment on
whether these potential uses are included or excluded in our proposed
definition of wireless local loop. If excluded, should CMRS providers
be allowed to provide these services in addition to wireless local
loop? Are there other potential fixed services for which demand may
exist? We seek comment on whether allowing CMRS providers to offer
fixed wireless local loop but not other fixed services may unduly
restrict the ability of carriers to develop wireless networks that
otherwise would meet various needs of the consuming public.
23. Assuming that we allow CMRS providers to offer fixed services
other than fixed wireless local loop, we also seek comment on whether
there should be any restrictions on fixed use of this spectrum.
Allowing CMRS spectrum to be used for certain fixed applications does
not necessarily mean that all fixed services should be permitted. On
the other hand, imposing restrictions on fixed use of this spectrum
could impose a regulatory burden on carriers, increase the need for
oversight of CMRS operations by the Commission to verify compliance,
and might inhibit development of beneficial uses of the spectrum that
we cannot anticipate. We note that, as a practical matter, technical
factors may limit CMRS providers' ability to offer some fixed services
on channels allocated for mobile telecommunications. There are many
point-to-point operations which may not be feasible on a system
designed for mobile use. Under what circumstances should we limit fixed
services by CMRS providers in order to ensure technical compatibility?
24. We believe that our regulatory approach should allow licensees
to adapt quickly to technological innovation and changing consumer
demands. We also seek to ensure, however, that our approach to fixed
use of this spectrum does not restrict the potential future growth of
mobile services, particularly in light of the relatively limited
portion of the spectrum in which mobile use is feasible as compared to
the much larger amount compatible with fixed use. Recently, the
National Telecommunications and Information Administration concluded
that demand for mobile spectrum will substantially increase over the
next decade, while demand for fixed use will decrease. We solicit
comment on these conclusions, including ways to ensure that spectrum is
available to meet future mobile needs, and on the implications for our
proposals herein. Parties identifying a potential deficiency for mobile
services should also address whether that deficiency could be remedied
by authorizing mobile services in spectrum currently designated for
fixed services. Would the public benefit more from continuing to
provide CMRS spectrum for principally mobile uses, from broadening our
definition of permissible fixed services to include specific additional
applications, or from permitting all fixed and mobile uses in the same
spectrum?
25. To the extent that we permit CMRS providers to offer fixed
services other than fixed wireless local loop, the issues raised in
previous sections may also apply. We seek comment on those issues
applicable to other fixed services. In particular, if we permit CMRS
providers to offer fixed services in addition to fixed wireless local
loop, we must determine how those services are to be regulated. We
therefore ask for comment on the issues raised in Paras. 19-20, supra.
F. Proposed Changes to Table of Frequency Allocations
26. In accordance with our proposals listed above, we propose to
amend the domestic Table of Frequency Allocations as set forth below.
See 47 CFR Sec. 2.105. Currently, wide-area SMR and cellular bands are
allocated internationally to fixed and mobile services on a co-primary
basis, but within the United States they are allocated only to land
mobile services. Therefore, we propose to amend the domestic Table of
Frequency Allocations for the 806-821, 851-866, 896-901, and 935-940
MHz bands to permit them to make use of the allocations for both fixed
and mobile
[[Page 6193]]
services on a co-primary basis. The extent to which such allocations
may be used will be determined by final decisions resulting from the
service rules proposals in this proceeding. We request comment on this
proposal.
IV. Conclusion
27. The proposals set forth in this Notice expand the services
available to consumers and the service options available to broadband
CMRS providers developing competitive wireless offerings. The Notice
proposes to allow all broadband CMRS providers the regulatory
flexibility to offer fixed wireless local loop services, and seeks
comment on whether the public interest is served by further expansion
to include some or all other fixed services. Where fixed wireless local
loop services are offered, we propose that CMRS regulation continue to
apply if a carrier offers interconnected, for-profit mobile service to
subscribers. Comment is sought on similar treatment for other
categories of fixed services. Our purpose is to reduce any undue
regulatory burdens on CMRS providers, as contemplated by the
Communications Act, and to enhance competition. Our efforts should
promote the development and deployment of new and innovative wireless
telecommunications networks.
V. Procedural Matters
A. Regulatory Flexibility Act
28. As required by Section 603 of the Regulatory Flexibility Act,
the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small entities of the proposals
suggested in this document. The IRFA is set forth in Appendix A of the
proposed rule. Written public comments are requested on the IRFA. These
comments must be filed in accordance with the same filing deadlines as
comments on the rest of the Notice of Proposed Rule Making, but they
must have a separate and distinct heading designating them as responses
to the IRFA. The Secretary shall send a copy of this Notice of Proposed
Rule Making, including the IRFA, to the Chief Counsel for Advocacy of
the Small Business Administration in accordance with paragraph 603(a)
of the Regulatory Flexibility Act. Pub. L. No. 96-354, 94 Stat. 1164, 5
U.S.C. 601 et seq. (1981).
B. Paperwork Reduction Act
The Federal Communications Commission, as part of its continuing
effort to reduce paperwork burden, invites the general public and other
Federal agencies to take this opportunity to comment on the following
proposed and/or continuing information collections, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. Comments are
requested concerning (a) whether the proposed collection of information
is necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
Written comments should be submitted on or before April 16, 1996.
If you anticipate that you will be submitting comments but find it
difficult to do so within the period of time allowed by this notice,
you should advise the contact listed below as soon as possible.
Direct all comments to Dorothy Conway, Federal Communications
Commission, Room 234, 1919 M St., N.W., Washington, DC 20554, or via
Internet to [email protected]; and Timothy Fain, OMB Desk Officer, 10236
NEOB, 725 17th St., N.W., Washington, DC 20503, or via Internet to
[email protected].
For further information contact: Dorothy Conway, (202) 418-0217, or
via Internet at [email protected].
Title: Amendment of the Commission's Rules to Permit Flexible
Service Offerings in the Commercial Mobile Radio Services.
Type of Review: New collection.
Respondents: Individuals or households; Business or other for-
profit; Not-for-profit institutions; State, Local or Tribal Government.
Number of Respondents: 2,500.
Estimated Time Per Response: Approximately 1-2 hours.
Total Annual Burden: Approximately 1,875 hours.
Total Annual Cost: $337,688; this includes the costs for filing the
information electronically or mailing submissions and hiring
consultants that may be necessary to respond to the requests.
Needs and Uses: The information will be used by the Commission to
determine if the service provider is technically qualified to offer
fixed wireless local services and as part of the Commission's
management of spectrum for commercial uses. Without such information,
the Commission could not determine whether the provider is operating in
compliance with the Commission's Rules.
C. Ex Parte Rules--Non-Restricted Proceeding
29. This is a non-restricted notice and comment rule making
proceeding. Ex parte presentations are permitted except during the
Sunshine Agenda period, provided they are disclosed as provided in
Commission rules. See generally 47 CFR Secs. 1.1202, 1.1203, and
1.1206(a).
D. Comment Dates
30. Pursuant to applicable procedures set forth in Sections 1.415
and 1.419 of the Commission's Rules, 47 CFR Secs. 1.415 and 1.419,
interested parties may file comments by February 26, 1996; reply
comments are due on or before March 18, 1996. To file formally in this
proceeding you must file an original and four copies of all comments
and supporting comments. If you want each Commissioner to receive a
personal copy of your comments, you must file an original plus nine
copies. You should send your comments to Office of the Secretary,
Federal Communications Commission, 1919 M Street, N.W., Washington,
D.C. 20554. A copy of all comments should also be filed with the
Commission's copy contractor, ITS, Inc., 2100 M Street, N.W., Suite
140, (202) 857-3800. Comments will be available for public inspection
during regular business hours in the Reference Center of the Federal
Communications Commission, 2025 M Street, N.W., Room 5608, Washington,
D.C. 20554.
E. Ordering Clause
31. Authority for issuance of this Notice of Proposed Rule Making
is contained in Sections 4(i), 4(j), 7(a), 303(b), 303(f), 303(g),
303(r), 309(j), and 332(c) of the Communications Act of 1934, as
amended, 47 U.S.C. Secs. 154(i), 154(j), 157(a), 303(b), 303(f),
303(g), 303(r), 309(j) and 332(c).
F. Contact Person
32. For further information concerning this proceeding, contact
Sandra K. Danner (Acting Chief, Legal Branch, Commercial Wireless
Division, Wireless Telecommunications Bureau) at (202) 418-0620.
List of Subjects in 47 CFR Part 2
Common carriers, Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Proposed Rules
Part 2 of title 47 of the Code of Federal Regulations is proposed
to be amended as follows:
[[Page 6194]]
PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS
1. The authority citation for Part 2 continues to read as follows:
Authority: Sec. 4, 302, 303, and 307 of the Communications Act
of 1934, as amended, 47 U.S.C. Sections 154, 302, 303 and 307,
unless otherwise noted.
2. Section 2.106, the Table of Frequency Allocations, is amended as
follows:
a. The entries for the 470-790 through 942-960 MHz frequency bands
are removed.
b. New entries for 470-512 through 944-960 MHz are added.
c. International Footnote Nos. 675, 676, 678, 697, and 703 in the
listing of International Footnotes are revised.
d. International Footnote Nos. 682 and 708 are removed and
reserved.
The additions and revisions read as follows:
Sec. 2.106 Table of Frequency Allocations.
* * * * *
International table United States table FCC use designators
----------------------------------------------------------------------------------------------------------------
Government Non-
Region 2-- Region 3-- --------------- Government
Region 1-- allocation MHz allocation MHz --------------- Rule Special-use
allocation MHz Allocation Allocation part(s) frequencies
MHz MHz
(1) (2) (3) (4) (5) (6) (7)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
470-512 470-512 470-512 470-512 470-512 ........... ..............
BROADCASTING BROADCASTING FIXED MOBILE ............. BROADCASTING RADIO ..............
Fixed Mobile BROADCASTING LAND MOBILE BROADCAST
(TV) (73)
PRIVATE
LAND
MOBILE
(90)
PUBLIC
MOBILE
(22)
Auxiliary
Broadcasti
ng (74)
676 677A 683 684 674 675 673 677 679 ............. NG66 NG114
685 686 686A 687 NG127 NG149
689 693 694
----------------------------------------------------------------------------------------------------------------
512-585 512-585 512-585 512-585 512-585 ........... ..............
BROADCASTING BROADCASTING FIXED MOBILE ............. BROADCASTING RADIO
BROADCASTING BROADCAST
(TV) (73)
Auxiliary
Broadcasti
ng (74)
676 677A 683 684 678 673 677 679 ............. NG149
685 686 686A 687
689 693 694
----------------------------------------------------------------------------------------------------------------
585-608 585-608 585-608 585-608 585-608 ........... ..............
BROADCASTING BROADCASTING FIXED MOBILE ............. BROADCASTING RADIO
BROADCASTING BROADCAST
RADIONAVIGATION (TV) (73)
Auxiliary
Broadcasti
ng (74)
676 677A 683 684 678 688 689 690 ............. NG149
685 686 686A 687
689 693 694
----------------------------------------------------------------------------------------------------------------
608-610 608-610 608-610 608-610 608-610 ........... ..............
BROADCASTING RADIO ASTRONOMY FIXED MOBILE RADIO RADIO ........... ..............
Mobile-Satellite BROADCASTING ASTRONOMY ASTRONOMY
except RADIONAVIGATION
aeronautical
mobile-
satellite
(Earth-to-
space)
676 677A 683 684 688 689 690 US74 US246 US74 US246
685 686 686A 687
689 693 694
----------------------------------------------------------------------------------------------------------------
610-614 610-614 610-614 610-614 610-614 ........... ..............
[[Page 6195]]
BROADCASTING RADIO ASTRONOMY FIXED MOBILE RADIO RADIO ........... ..............
Mobile-Satellite BROADCASTING ASTRONOMY ASTRONOMY
except RADIONAVIGATION
aeronautical
mobile-
satellite
(Earth-to-
space)
676 677A 683 684 ................ 677 688 689 690 US74 US246 US74 US246
685 686 686A 687 691 693 701
689 693 694
----------------------------------------------------------------------------------------------------------------
614-790 614-790 614-790 614-790 614-790
BROADCASTING BROADCASTING FIXED MOBILE ............. BROADCASTING RADIO
Fixed BROADCASTING BROADCAST
Mobile (TV) (73)
Auxiliary
Broadcasti
ng (74)
676 677A 683 684 675 692 692A 693 677 688 689 690 ............. NG30 NG128
685 686 686A 687 691 693 701 NG149
689 693 694
----------------------------------------------------------------------------------------------------------------
790-806 790-806 790-806 790-806 790-806
FIXED BROADCASTING FIXED MOBILE ............. BROADCASTING RADIO
BROADCASTING Fixed BROADCASTING BROADCAST
Mobile (TV) (73)
Auxiliary
Broadcasti
ng (74)
694 695 695A 696 675 692 692A 693 677 688 689 690 ............. NG30 NG43
697 700B 702 691 693 701 NG128 NG149
----------------------------------------------------------------------------------------------------------------
806-821 806-821 806-821 806-821 806-821
FIXED FIXED MOBILE FIXED MOBILE ............. FIXED LAND PRIVATE
BROADCASTING BROADCASTING BROADCASTING MOBILE LAND
MOBILE
(90)
PUBLIC
MOBILE
(22)
694 695 695A 696 692A 700 700A 677 688 689 690 ............. NG30 NG31
697 700B 702 691 693 701 NG43 NG63
NG128
----------------------------------------------------------------------------------------------------------------
821-824 821-824 821-824 821-824 821-824
FIXED FIXED MOBILE FIXED MOBILE ............. LAND MOBILE PRIVATE
BROADCASTING BROADCASTING BROADCASTING LAND
MOBILE
(90)
694 695 695A 696 692A 700 700A 677 688 689 690 ............. NG30 NG43
697 700B 702 691 693 701 NG63 NG128
----------------------------------------------------------------------------------------------------------------
824-849 824-849 824-849 824-849 824-849
FIXED FIXED MOBILE FIXED MOBILE ............. LAND MOBILE PUBLIC
BROADCASTING BROADCASTING BROADCASTING MOBILE
(22)
694 695 695A 696 692A 700 700A 677 688 689 690 ............. NG30 NG43
697 700B 702 691 693 701 NG63 NG128
NG151
----------------------------------------------------------------------------------------------------------------
849-851 849-851 849-851 849-851 849-851
FIXED FIXED MOBILE FIXED MOBILE ............. AERONAUTICAL PUBLIC
BROADCASTING BROADCASTING BROADCASTING MOBILE MOBILE
(22)
694 695 695A 696 692A 700 700A 677 688 689 690 ............. NG30 NG63
697 700B 702 691 693 701 NG128
----------------------------------------------------------------------------------------------------------------
851-862 851-862 851-862 851-862 851-862
FIXED FIXED MOBILE FIXED MOBILE ............. FIXED LAND PRIVATE
BROADCASTING BROADCASTING BROADCASTING MOBILE LAND
MOBILE
(90)
PUBLIC
MOBILE
(22)
[[Page 6196]]
694 695 695A 696 692A 700 700A 677 688 689 690 ............. NG30 NG31
697 700B 702 691 693 701 NG63 NG128
----------------------------------------------------------------------------------------------------------------
862-866 862-866 862-866 862-866 862-866
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. FIXED LAND PRIVATE
except BROADCASTING BROADCASTING MOBILE LAND
aeronautical MOBILE
mobile (90)
BROADCASTING 703 PUBLIC
MOBILE
(22)
866-869 866-869 866-869 866-869 866-869
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. LAND MOBILE PRIVATE
except BROADCASTING BROADCASTING LAND
aeronautical MOBILE
mobile (90)
BROADCASTING 703
700b 704 692a 700 700a 677 688 689 690 ............. NG30 NG63
691 693 701 NG128
----------------------------------------------------------------------------------------------------------------
869-890 869-890 869-890 869-890 869-890 ........... ..............
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. LAND MOBILE PUBLIC ..............
except BROADCASTING BROADCASTING MOBILE
aeronautical (22)
mobile
BROADCASTING 703
700B 704 692A 700 700A 677 688 689 691 ............. NG30 NG63 ........... ..............
693 701 NG128 NG151
----------------------------------------------------------------------------------------------------------------
890-894 890-894 890-894 890-894 890-894 ........... ..............
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. LAND MOBILE PUBLIC ..............
except except BROADCASTING MOBILE
aeronautical aeronautical Radiolocation (22)
mobile mobile
BROADCASTING 703 Radiolocation
Radiolocation
704 700A 704A 705 706 US116 US268 US116 US268 ........... ..............
G2 NG151
----------------------------------------------------------------------------------------------------------------
894-896 894-896 894-896 894-896 894-896 ........... ..............
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. AERONAUTICAL PUBLIC ..............
except except BROADCASTING MOBILE MOBILE
aeronautical aeronautical Radiolocation (22)
mobile mobile
BROADCASTING 703 Radiolocation
Radiolocation
704 700A 704A 705 706 US116 US268 US116 US268 ........... ..............
G2
----------------------------------------------------------------------------------------------------------------
896-901 896-901 896-901 896-901 896-901 ........... ..............
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. FIXED LAND PRIVATE ..............
except except BROADCASTING MOBILE LAND
aeronautical aeronautical Radiolocation MOBILE
mobile mobile (90)
BROADCASTING 703 Radiolocation PUBLIC
Radiolocation MOBILE
(22)
704 700A 704A 705 706 US116 US268 US116 US268 ........... ..............
G2
----------------------------------------------------------------------------------------------------------------
901-902 901-902 901-902 901-902 901-902 ........... ..............
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. FIXED MOBILE PERSONAL ..............
except except BROADCASTING COMMUNICAT
aeronautical aeronautical Radiolocation IONS (24)
mobile mobile
BROADCASTING 703 Radiolocation
Radiolocation
704 700A 704A 705 706 US116 US268 US116 US268 ........... ..............
G2 US330
----------------------------------------------------------------------------------------------------------------
902-928 902-928 902-928 902-928 902-928 ........... ..............
[[Page 6197]]
FIXED MOBILE FIXED Amateur FIXED MOBILE RADIOLOCATION ............. Amateur 915 13
aeronautical aeronautical Radiolocation MHz:
mobile mobile Industrial,
BROADCASTING 703 Radiolocation scientific
Radiolocation and medical
frequency
704 705 707 707A 706 707 US215 707 US215 ........... ..............
US218 US267 US218 US267
US275 G11 US275
G59
----------------------------------------------------------------------------------------------------------------
928-929 928-929 928-929 928-929 928-929 ........... ..............
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. FIXED PRIVATE ..............
except except BROADCASTING LAND
aeronautical aeronautical Radiolocation MOBILE
mobile mobile (90)
BROADCASTING 703 Radiolocation PRIVATE
Radiolocation OPERATIONA
L FIXED
MICROWAVE
(94)
PUBLIC
MOBILE
(22)
704 705 706 US116 US215 US116 US215 ........... ..............
US268 G2 US268 NG120
----------------------------------------------------------------------------------------------------------------
929-930 929-930 929-930 929-930 929-930 ........... ..............
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. LAND MOBILE PRIVATE ..............
except except BROADCASTING LAND
aeronautical aeronautical Radiolocation MOBILE
mobile mobile (90)
BROADCASTING 703 Radiolocation PUBLIC
Radiolocation MOBILE
(22)
704 705 706 US116 US215 US116 US215 ........... ..............
US268 G2 US268 NG120
----------------------------------------------------------------------------------------------------------------
930-931 930-931 930-931 930-931 930-931
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. FIXED MOBILE PERSONAL
except except BROADCASTING COMMUNICAT
aeronautical aeronautical Radiolocation IONS (24)
mobile mobile
BROADCASTING 703 Radiolocation
Radiolocation
704 705 706 US116 US215 US116 US215
US268 G2 US268 US330
NG120
----------------------------------------------------------------------------------------------------------------
931-932 931-932 931-932 931-932 931-932
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. LAND MOBILE PRIVATE
except except BROADCASTING LAND
aeronautical aeronautical Radiolocation MOBILE
mobile mobile (90)
BROADCASTING 703 Radiolocation PUBLIC
Radiolocation MOBILE
(22)
704 705 706 US116 US215 US116 US215
US268 G2 US268 NG120
----------------------------------------------------------------------------------------------------------------
932-935 932-935 932-935 932-935 932-935
FIXED MOBILE FIXED MOBILE FIXED MOBILE FIXED FIXED DOMESTIC
except except BROADCASTING FIXED (21)
aeronautical aeronautical Radiolocation PUBLIC
mobile mobile MOBILE
BROADCASTING 703 Radiolocation (22)
Radiolocation
704 705 706 US215 US268 US215 US268
G2 NG120
----------------------------------------------------------------------------------------------------------------
935-940 935-940 935-940 935-940 935-940
[[Page 6198]]
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. FIXED LAND PRIVATE
except except BROADCASTING MOBILE LAND
aeronautical aeronautical Radiolocation MOBILE
mobile mobile (90)
BROADCASTING 703 Radiolocation PUBLIC
Radiolocation MOBILE
(22)
704 705 706 US116 US215 US116 US215
US268 G2 US268 NG120
----------------------------------------------------------------------------------------------------------------
940-941 940-941 940-941 940-941 940-941
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. FIXED MOBILE PERSONAL
except except BROADCASTING COMMUNICAT
aeronautical aeronautical Radiolocation IONS (24)
mobile mobile
BROADCASTING 703 Radiolocation
Radiolocation
704 705 706 US116 US268 US116 US268
G2 US330 NG120
----------------------------------------------------------------------------------------------------------------
941-942 941-942 941-942 941-942 941-942
FIXED MOBILE FIXED MOBILE FIXED MOBILE FIXED FIXED DOMESTIC
except except BROADCASTING PUBLIC
aeronautical aeronautical Radiolocation FIXED (21)
mobile mobile PUBLIC
BROADCASTING 703 Radiolocation MOBILE
Radiolocation (22)
704 705 706 US268 62 US268 NG120
----------------------------------------------------------------------------------------------------------------
942-944 942-944 942-944 942-944 942-944
FIXED MOBILE FIXED MOBILE FIXED MOBILE FIXED FIXED DOMESTIC
except BROADCASTING PUBLIC
aeronautical FIXED (21)
mobile
BROADCASTING 703
704 ................ 701 US301 US302 US301 US302
NG120
----------------------------------------------------------------------------------------------------------------
944-960 944-960 944-960 944-960 944-960
FIXED MOBILE FIXED MOBILE FIXED MOBILE ............. FIXED AUXILIARY
except BROADCASTING BROADCASTI
aeronautical NG 74
mobile PUBLIC
BROADCASTING 703 MOBILE
(22)
INTERNATION
AL PUBLIC
FIXED (23)
PRIVATE
OPERATIONA
L FIXED
(94)
704 ................ 701 ............. NG120
----------------------------------------------------------------------------------------------------------------
* * * * * * *
International Footnotes
* * * *
675 Additional allocation: in Chile, Colombia, Cuba, Ecuador, the
United States, Guyana, Honduras, Jamaica, Mexico and Panama, the
allocation of the bands 470-512 MHz and 614-806 MHz to the fixed and
mobile services is on a primary basis (see No. 425), subject to
agreement obtained under the procedure set forth in Article 14.
676 Additional allocation: in Burundi, Cameroon, the Congo,
Ethiopia, Israel, Kenya, Lebanon, Libya, Malawi, Senegal, Sudan, Syria,
and Yemen, the band 470-582 MHz is also allocated to the fixed service
on a secondary basis.
* * * * *
678 Additional allocation: in Costa Rica, Cuba, El Salvador,
Ecuador, the United States, Guatemala, Guyana, Honduras, Jamaica,
Mexico and Venezuela, the band 512-608 MHz is also allocated to the
fixed and mobile services on a primary basis, subject to agreement
obtained under the procedures set forth in Article 14.
* * * * *
682 [Reserved]
* * * * *
697 Additional allocation: in the Federal Republic of Germany,
Burkina
[[Page 6199]]
Faso, Cameroon, Cote d'Ivoire, Denmark, Egypt, Finland, Israel, Kenya,
Libya, Liechtenstein, Monaco, Norway, the Netherlands, Portugal,
Sweden, Switzerland and Yugoslavia, the band 790-830 MHz, and in these
same countries and in Spain, France, Malta, the Gabonese Republic and
Syria, the band 830-862 MHz, are also allocated to the mobile, except
aeronautical mobile, service on a primary basis. However, stations of
the mobile service in the countries mentioned in connection with each
band referred to in this footnote shall not cause harmful interference
to, or claim protection from, stations of services operating in
accordance with the Table in countries other than those mentioned in
connection with this band.
* * * * *
703 In Region 1, in the band 862-960 MHz, stations of the
broadcasting service shall be operated only in the African Broadcasting
Area (see Nos. 400 to 403) excluding Algeria, Egypt, Spain, Libya and
Morocco, subject to agreement obtained under the procedure set forth in
Article 14.
* * * * *
708 [Reserved]
* * * * *
[FR Doc. 96-3557 Filed 2-15-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-3552 Northeast Multispecies Fishery; Notice of Availability of Amendment 7
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6230-6231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3552]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 651
[I.D. 021296E]
Northeast Multispecies Fishery; Notice of Availability of
Amendment 7
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of availability of an amendment to a fishery management
plan and request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this notice that the New England Fishery
Management Council (Council) has submitted Amendment 7 to the Fishery
Management Plan for the Northeast Multispecies Fishery (FMP) for
Secretarial review and is requesting comments from the public. This
amendment contains a series of management measures designed to rebuild
overfished stocks of groundfish, especially cod, haddock and yellowtail
flounder. Copies of the amendment may be obtained from the Council (see
ADDRESSES).
DATES: Comments must be received on or before April 11, 1996.
ADDRESSES: Send comments to Dr. Andrew A. Rosenberg, Regional Director,
National Marine Fisheries Service, Northeast Regional Office, 1
Blackburn Drive, Gloucester, MA 01930-3799. Mark the outside of the
envelope ``Comments on Amendment 7 to the Northeast Multispecies
Plan.''
Copies of proposed Amendment 7, its Regulatory Impact Review (RIR)
and the Initial Regulatory Flexibility Analysis contained within the
RIR, and the Final Supplemental Environmental Impact Statement are
available from Douglas Marshall, Executive Director, New England
Fishery Management Council, Suntaug Office Park, 5 Broadway (U.S. Rte.
1), Saugus, MA 01906-1097.
FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy
Analyst, 508-281-9252.
SUPPLEMENTARY INFORMATION: The Magnuson Fishery Conservation and
Management Act (Magnuson Act) (16 U.S.C 1801 et seq.) requires each
regional fishery management council to submit any fishery management
plan or plan amendment it prepares to the Secretary of Commerce
(Secretary) for review and approval or disapproval. The Magnuson Act
also requires the Secretary, upon receiving the plan or amendment, to
immediately publish a notice that the plan or amendment is available
for public review and comment. The Secretary will consider the public
comments in determining whether to approve the plan or amendment.
Proposed measures in the amendment include: (1) A procedure for
setting annual target total allowable catch levels for regulated
species; (2) an acceleration of the current days-at-sea effort
reduction program; (3) elimination of current exemptions to the effort
control program; (4) new closed areas; (5) a restriction on large mesh
fisheries with more than a minimal bycatch of regulated species in the
Gulf of Maine/Georges Bank and Southern New England regulated mesh
areas; (6) a cod, haddock and yellowtail flounder possession limit
restriction for vessels less than 30 ft (9.14 m); (7) establishment of
the current experimental Nantucket Shoals dogfish fishery on a
permanent basis; (8) modification to permit categories and qualifying
criteria; (9) restrictions on charter/party and recreational vessels;
and (10) revision and expansion of the existing framework provisions.
Many of the current provisions to the FMP will be retained as the basic
structure for the regulatory program.
NMFS, on behalf of the Secretary, disapproved three measures in
[[Page 6231]]
Amendment 7 before publishing the notice of availability as authorized
under section 304(a)(1)(A) of the Magnuson Act. These measures include:
(1) The additional allowance of days-at-sea (DAS) for trawl vessels
enrolled in the Individual DAS category that use 8-inch (20-cm) mesh,
(2) the 300-lb (136-kg) possession allowance of regulated species for
trawl vessels that use an 8-inch (20-cm) mesh in an exempted fishery,
and (3) the establishment of a limited access category for vessels that
fished in the Possession Limit Open Access category under Amendment 5.
Day 1 of this amendment is February 12, 1996. Proposed regulations
to implement this amendment are scheduled to be published within 15
days of this date.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 12, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-3552 Filed 2-13-96; 1:09 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-3511 Future Development of SMR Systems in the 800 MHz Frequency Band
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6212-6230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3511]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[PR Docket No. 93-144; PP Docket No. 93-253; FCC 95-501]
Future Development of SMR Systems in the 800 MHz Frequency Band
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this Second Further Notice of Proposed Rule Making (Second
Further Notice) in PR Docket No. 93-144, the Commission seeks comment
on disaggregation of channel blocks and partitioning on the upper 200
channels of 800 MHz Specialized Mobile Radio (SMR) spectrum, certain
aspects of mandatory relocation as adopted in the First Report and
Order (First R&O) in PR Docket No. 93-144, and eligibility of Basic
Exchange Telecommunications Radio Service (BETRS) operators for certain
upper 200 channels. In addition, we propose to adopt service and
competitive bidding rules for the lower 80 SMR channels and the General
Category channels in the 800 MHz band. Further, we have redesignated
the General Category channels for exclusive SMR use. The intended
effect of this action is to facilitate future development of SMR
systems in the 800 MHz band through implementation of streamlined
licensing procedures and the use of competitive bidding.
DATES: Comments are to be filed on or before February 15, 1996, and
Reply Comments are to be filed on or before March 1, 1996.
ADDRESSES: Federal Communications Commission, 1919 M Street NW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: David Furth, or David Kirschner at
(202) 418-0620.
SUPPLEMENTARY INFORMATION: This Second Further Notice, adopted December
15, 1995, and released December 15, 1995, is available for inspection
and copying during normal business hours in the FCC Dockets Branch,
Room 230, 1919 M Street N.W., Washington, D.C. 20037 (telephone: (202)
857-3800).
I. Disaggregation of Channel Blocks on the Upper 200 Channels of 800
MHz SMR Spectrum
1. Background. In the Further Notice of Proposed Rule Making in PR
Docket No. 93-144, 59 FR 60111 (November 22, 1994) (Further Notice), we
asked commenters to address whether licensees should be allowed to
sublicense portions of larger blocks instead of aggregating smaller
blocks.
2. Comments. Total Com, AMTA, AMI and Motorola contend that
licensees with service areas based on Economic Areas (EAs) established
by the United States Department of Commerce, Bureau of Economic
Analysis should be permitted to sublicense portions of their spectrum
blocks. Motorola argues that allowing sublicensing on a spectrum basis
would allow excess spectrum capacity to be made available for
alternative uses and provide small SMR licensees with the opportunity
to participate in the provision of wide-area service at levels
commensurate with their business and customer interests and their
financial resources. AMTA argues that such sublicensing should be
permitted as long as construction and coverage requirements are
satisfied, because such an approach would encourage development of
bidding consortia of smaller operators, which otherwise might be
incapable of participating in the competitive bidding process.
Parkinson, et al. express concern that, by allowing sublicensing, an
incumbent's operations unfairly and unreasonably would be restricted by
the EA licensee.
3. Discussion. Given the extensive incumbent presence in the upper
10 MHz block of the 800 MHz SMR spectrum, we tentatively conclude that
EA licensees should be permitted to disaggregate their spectrum blocks.
We believe that this additional tool will enable EA licensees to manage
their spectrum blocks more effectively and efficiently. We further
believe that disaggregation not only will facilitate the coexistence of
EA licensees and incumbents in the upper 200 channels, but also will
result in the most efficient use of the 800 MHz SMR spectrum. We seek
comment on this tentative conclusion.
4. As a general matter, we believe that any disaggregation
agreements must comply with the Commission's pro-competitive policies.
We propose that spectrum covered by an EA license may be sublicensed in
either of two ways: (1) a group of licensees or entities may form
bidding consortia to participate in auctions, and then disaggregate or
partition the EA license(s) won among consortia participants; and (2)
an EA licensee, through private negotiation and agreement before or
after the auction, may elect to disaggregate or partition its spectrum
block. We seek comment on this proposal.
5. Although we are interested in affording EA licensees optimal
flexibility for spectrum management, we nonetheless do not want to
undermine our goal to facilitate an effective and efficient wide-area
licensing scheme. We ask commenters to discuss the conditions under
which EA licensees should be permitted to disaggregate their spectrum
blocks. Should EA licensees be required to retain a specified portion
of their spectrum block, and if so, what is an appropriate amount? In
addition, should there be a minimum amount of spectrum that EA
licensees must disaggregate in order to utilize this spectrum
management tool? Should geographic area licensees be permitted to
disaggregate only after they have satisfied applicable construction and
coverage requirements? We also ask commenters to discuss any other type
of considerations applicable to disaggregation.
II. Partitioning on the Upper 200 Channels of 800 MHz SMR Spectrum
6. Background. In the Eighth Report and Order (Competitive Bidding
Eighth R&O) in PP Docket No. 93-253 we adopted a partitioning option
for rural telephone companies.
7. Comments. Nextel contends that smaller, local operators wishing
to participate in wide-area service could become involved through
arrangements with the EA licensee to partition its service area.
[[Page 6213]]
8. Proposal. We tentatively conclude that partitioning should be an
option not only for rural telephone companies but also for incumbents
and eligible SMR licensees generally. We tentatively conclude that
extending the partitioning option will further the goal of Section
309(j) in the dissemination of licenses to a variety of licensees
because small businesses will have additional flexibility and
opportunities to serve areas in which they already provide service,
while the remainder of the service area could be served by other
providers.
9. We propose that SMR licensees be permitted to acquire
partitioned EA licenses in either of two ways: (1) they may form
bidding consortia to participate in auctions, and then partition the
licenses won among consortia participants; or (2) they may acquire
partitioned 800 MHz SMR licenses from other licensees through private
negotiation and agreement either before or after the auction. Each
member of a consortium would be required to file a long-form
application, following the auction, for its respective mutually agreed-
upon geographic area. We propose that partitioned areas be required to
conform to established geo-political boundaries (such as county lines).
We further propose that these entities be subject to the same interim
coverage and channel use requirements as EA licensees with respect to
the geographic areas covered by their partitioned authorizations. We
seek comment on our proposals and tentative conclusions and any
alternatives.
10. As a general matter, we believe that any partitioning agreement
must comply with the Commission's pro-competitive policies. We ask
commenters to discuss the conditions under which EA licensees should be
permitted to partition their service areas to other SMR licensees.
Should EA licensees be required to retain a specified portion of their
service area, and if so, what is an appropriate amount? Should
geographic area licensees be permitted to partition only after they
have satisfied applicable construction and coverage requirements? We
also ask commenters to discuss any other type of considerations
applicable to partitioning.
III. Mandatory Relocation in the Upper 200 Channels
A. Distributing Relocation Costs Among EA Licensees
11. In the First R&O, we determined that EA licensees must notify
incumbents operating on the upper 200 channels of their intention to
relocate such incumbents within 90 days of the release of the Public
Notice commencing the voluntary negotiation period. We also determined
that any incumbent licensee who has been so notified may require all EA
licensees in whose spectrum blocks it operates to negotiate
collectively with the incumbent. Because an incumbent licensee can
compel simultaneous negotiations with all affected EA licensees, we
tentatively conclude that the elaborate cost-sharing plan proposed for
broadband PCS is unnecessary for the 800 MHz SMR service. Therefore, we
propose to require EA licensees to share the relocation costs on a pro
rata basis (based on the actual number of the incumbent's channels
located in the EA licensees' respective spectrum blocks), unless all
such licensees agree to a different cost-sharing arrangement. We
believe that this approach would enhance significantly the speed of
relocation given that incumbent licensees most likely will elect to
negotiate with EA licensees collectively rather than individually to
accommodate system-wide relocation agreements. This would in turn
result in faster delivery of wide-area SMR service to the public. We
seek comment on our tentative conclusions and on the advantages and
disadvantages of our cost-sharing proposal.
B. Relocation Costs
12. Compensable Costs. When relocation will benefit multiple
licensees, the issue arises as to what relocation costs should be
shared by the benefitting licensees. Relocation costs can be divided
roughly into two categories: (1) the actual cost of relocating an
incumbent licensee to comparable facilities, and (2) payments above the
cost of providing comparable facilities, also referred to as ``premium
payments.''
13. Comments. Louisville believes that relocation costs should
include expenses for: engineering, equipment, labor, construction,
testing, FCC application fees, local fees, additional recurring
operating costs, pay for lost time, cost analysis, frequency
coordination, and any other expenses incurred by the incumbent as long
as the expenses were caused by the new facilities not being comparable
with the old facilities and they occurred within one year after the
incumbent took control of the new facilities. Clarus argues that
expenses paid by the EA licensee should include administrative costs
and any loss of goodwill that the incumbent might suffer. Nextel
believes that all out-of-pocket costs associated with retuning should
be borne by the auction winner, such costs include those covered by the
Commission's Emerging Technologies relocation plan.
14. Proposal. We tentatively conclude that premium payments should
not be reimbursable, because such payments are likely to be paid by EA
licensees to accelerate relocation so that they can be the first
licensee in the market area to implement wide-area SMR service. Because
other EA licensees have not received the corresponding advantage of
being first to market and did not actively participate in the
relocation negotiations, we do not believe that such licensees should
be required to contribute to premium payments. We therefore propose to
limit the calculation of reimbursable costs for the 800 MHz SMR service
to actual relocation costs, unless the EA licensees involved mutually
and expressly agree to share any premium payments. We tentatively
conclude that ``actual relocation costs'' would include, but not be
limited to: SMR equipment; towers and/or modifications; back-up power
equipment; engineering costs; installation; system testing; FCC filing
costs; site acquisition and civil works; zoning costs; training;
disposal of old equipment; test equipment; spare equipment; project
management; and site lease negotiation. We request comment on this
proposal. We also ask commenters to address any additional costs they
believe should be reimbursable and a supporting rationale for such
treatment.
15. Creation of Reimbursement Rights. We tentatively conclude that
an EA licensee who negotiates a relocation agreement that benefits one
or more other EA licensees should obtain a right to reimbursement of a
share of the relocation costs. We seek comment on how such rights
should be created procedurally. We believe that some form of
reimbursement rights should be conferred on EA licensees so that it
will be possible to enforce the right to reimbursement and collect
reimbursement from other EA licensees. We seek comment on these
tentative conclusions and any alternatives.
16. Payment. We seek comment on when reimbursement payments should
be due. Specifically, we ask commenters to address whether such
payments should be due when the benefitting EA licensee begins to use
the particular frequency or when the EA licensee commences testing of
its wide-area system in the EA.
17. Dispute Resolution Issues. Comments. PCIA, AMI, and Motorola
all argue that the Commission should establish a mediation mechanism to
[[Page 6214]]
resolve disputes. PCIA believes that the EA winner should pay for the
mediation unless the mediator finds that the incumbent is not acting in
good faith. If mediation is not successful, Motorola and PCIA believe
that the Commission should resolve the dispute.
18. Proposal. We tentatively conclude that incumbents and EA
licensees should attempt to resolve disputes arising over the amount of
reimbursement required, in the first instance, amongst themselves. We
encourage parties to use expedited alternative dispute resolution
(``ADR'') procedures, such as binding arbitration or mediation. We seek
comment on this proposal and on any other mechanisms that would
expedite resolution of these disputes should they arise.
19. Similarly, to the extent that disputes arise between incumbents
and EA licensees over relocation negotiations (including disputes over
the comparability of facilities and the requirement to negotiate in
good faith), we also encourage parties to use alternative dispute
resolution techniques. We believe such techniques are an appropriate
first step during both the voluntary and mandatory negotiation periods.
We emphasize again that resolution of such disputes entirely by our
adjudication processes would be time consuming and costly to all
parties.
20. We also seek comment on whether either the industry trade
associations or the FCC's Compliance and Information Bureau should be
designated as arbiters for such disputes. We ask commenters to discuss
the advantages and disadvantages of such designations as well as
suggested dispute resolution procedures in the event that they were so
designated. In addition, we seek comment on whether failure to comply
with the relocation obligations or requirements should be taken into
consideration by the Commission when deciding on renewal or transfer of
control or assignment applications.
C. Comparable Facilities
21. Background. Under the mandatory relocation scheme we adopt in
the First R&O, we require EA licensees to provide incumbents with
``comparable facilities'' as a condition for involuntary relocation. In
the broadband PCS context, we also adopted a mandatory relocation
scheme in which PCS licensees are required to provide microwave
incumbents with comparable facilities as a condition for involuntary
relocation. Although we have not adopted a definition of comparable
facilities in the broadband PCS context, we have indicated that we
generally require that comparable facilities be equal to or superior to
existing facilities. We also indicated that we would consider, inter
alia, system reliability, speed, bandwidth, throughput, overall
efficiency, bands authorized for such services, and interference
protection in making a determination regarding comparability. In the
Further Notice, we asked commenters to discuss the meaning of
comparable facilities in the 800 MHz SMR context.
22. Comments. Some commenters suggest, as a general matter, that a
comparable system is one that is as good as or superior to the
incumbent's existing system. The majority of commenters attempt to
define comparable facilities by specifying what would need to be
provided to the incumbent being relocated. These commenters argue that
comparable facilities would include: (1) the same number of channels as
are currently held by the incumbent; (2) the retuned frequencies being
compatible in a multi-channel system at the incumbent's current
location; (3) the retuned frequencies not having any co-channel
licensees within the EA; (4) incumbents having 70-mile co-channel
interference protection; (5) base station equipment being modified to
operate on the retuned frequencies; (6) all user units and user control
units being reprogrammed or recrystallized to the retuned frequencies
(or, if modification of the incumbent's equipment is not possible, the
EA licensee would be required to provide new equipment); (7) the
incumbent's ``retuned'' system providing the same, if not superior,
performance as the incumbent's existing system operating at the same
antenna height, and with the same power and interference protection;
and, (8) the same channel separation for the retuned frequencies.
23. Some commenters define ``comparable facilities'' on the basis
of operational characteristics. For example, commenters contend that
comparable facilities mean that the incumbent's retuned system should
have the same or superior coverage as its existing system. Nextel
argues that comparable facilities means having the same 40 dBu contour
as the incumbent's current system. Several commenters argue that only
other 800 MHz SMR channels could constitute comparable frequencies. In
this connection, Spectrum believes that incumbents should be relocated
elsewhere on the 800 MHz spectrum or to the 900 MHz spectrum, or the
auction winner should buy-out the incumbent's system.
24. PCIA, supported by other commenters, proposes that retuned
incumbents receive the following rights and privileges associated with
mandatory relocation: (1) The ability to obtain geographic area
licenses on retuned channels; (2) protection against being relocated
more than once; (3) the right to demand one unified retuning plan from
all EA license holders in whose spectrum blocks their frequencies are
located; (4) a requirement of ``seamless'' transition, such that the EA
holder would complete retuning before the incumbent moves; (5) no
obligation to cease operations on the original channels unless
alternative frequencies are identified and accepted; and, (6) the right
to timely notification by the EA licensee that incumbents will be
moved. PCIA also suggests that EA licensees be given one year in which
to complete retuning, so that incumbents can make future business
plans. Several commenters argue that there should be no selective
retuning of incumbent channels; rather, all of an incumbent's channels
within an EA spectrum block should be retuned. Moreover, several
commenters argue that in terms of an EA licensee's relocation
obligations, an incumbent system should be defined as all licenses
issued to an entity or multiple entities participating in an integrated
network. Nextel, on the other hand, contends that selective retuning
should be allowed, so long as the channels are ``comparable.''
25. Proposal. Although we wish to provide parties with sufficient
flexibility to negotiate mutually agreeable terms for determining
comparability, based on our experience in the broadband PCS context, we
tentatively conclude that comparable facilities, at a minimum, should
provide the same level of service as the incumbents' existing
facilities. We propose that by ``comparable facilities,'' a relocated
incumbent would: (a) Receive the same number of channels with the same
bandwidth; (b) have its entire system relocated, not just those
frequencies desired by a particular EA licensee; and, (c) once
relocated, have a 40 dBu service contour that encompasses all of the
territory covered by the 40 dBu contour of its original system. We
believe that this definition will ensure that incumbents' operations
will not be adversely affected. We further believe that such definition
would not preclude incumbents and EA licensees from negotiating to
trade-off any of these system parameters for premium payments or other
operational rights which are consistent with our rules. We believe that
this flexibility in
[[Page 6215]]
designing replacement facilities will expedite relocation, given the
many variables involved with the system design of each individual
system. We seek comment on our proposed definition of and tentative
conclusions regarding ``comparable facilities.'' We ask commenters to
discuss whether the ``comparable facilities'' definition should include
additional operational characteristics, if so, what characteristics
should be specified.
26. With respect to old and new SMR equipment, we tentatively
conclude that an EA licensee's relocation obligations to an incumbent
will not require the EA licensee to replace existing analog equipment
with digital equipment when there is an acceptable analog alternative
that satisfies the comparable facilities definition. In the event that
an incumbent still wishes to obtain digital equipment under these
circumstances, we believe that the incumbent should be required to bear
the additional costs associated with such an upgrade of its system.
Consequently, we propose that under these circumstances, the cost
obligation of the EA licensee would be the minimum cost the incumbent
would incur if it sought to replace, but not upgrade, its system.
However, if an analog alternative fails to meet any of the criteria
included in the comparable facilities definition, the incumbent would
not be required to accept such an alternative. In those instances in
which an incumbent licensee is operating with digital equipment prior
to relocation, we tentatively conclude that the incumbent's new system
also must be digital, unless the EA licensee and incumbent mutually
agree to different terms. We believe that the proposed definition of
comparability would facilitate negotiations between incumbents and EA
licensees during the voluntary period, because both parties would be
better informed about the EA licensees' minimum obligation under our
rules. We seek comment on our proposals and tentative conclusions and
any alternatives.
D. Relocation Guidelines--Good Faith Requirement During Mandatory
Negotiations
27. In the First R&O, we establish a mandatory relocation mechanism
for the upper 10 MHz block. Under this mechanism, incumbents and EA
licensees have a one-year voluntary negotiation period during which EA
licensees are free to offer incumbents a variety of incentives to
expedite relocation. If a relocation agreement is not reached during
this period, the EA licensee may initiate a mandatory negotiation
period during which the parties are required to negotiate in ``good
faith.''
28. We believe that additional clarification of the term ``good
faith'' will facilitate negotiations and help reduce the number of
disputes that may arise over varying interpretations of what
constitutes good faith. We tentatively conclude that, for purposes of
the mandatory negotiation period, an offer by an EA licensee to replace
an incumbent's system with comparable facilities constitutes a good
faith offer. Likewise, an incumbent that accepts such an offer
presumably would be acting in good faith; whereas, failure to accept an
offer of comparable facilities would create a rebuttable presumption
that the incumbent is not acting in good faith. Comparable facilities
would be limited to actual costs associated with providing a
replacement system and would exclude any expenses incurred by the
incumbent without securing the approval, in advance, of the EA
licensee. We believe that the time for expansive negotiation is during
the voluntary negotiation period and that, by the time the parties have
reached the mandatory negotiation period, only the bare essentials of
comparability should be required. We seek comment on our proposal. We
also seek comment on the appropriate penalty to impose on a licensee
that fails to act in good faith.
IV. BETRS Eligibility on the Upper 200 Channels of 800 MHz SMR Spectrum
29. Background. Under Section 90.621(h) of the Commission's rules,
Channel Numbers 401-410, 441-450, 481-490, 521-530, and 561-570 are
available on co-primary basis to stations in Basic Exchange
Telecommunications Radio Service (BETRS) as described in Part 22 of the
Commission's rules.
30. Proposal. According to our licensing records, there are few
BETRS facilities currently licensed on these frequencies. Based on the
limited BETRS licensing on these frequencies and the goals of the wide-
area licensing plan adopted in the First R&O (in which these channels
are included), we propose that BETRS stations no longer be authorized
on these frequencies. In addition, as of the adoption of this Second
Further Notice, we will no longer accept applications for BETRS
facilities on these channels.
V. Licensing of Lower 80 and General Category Channels
A. Geographic Area Licensing
31. Background. Under our current rules the lower 80 and General
Category channels are licensed on a site-specific basis. In the Further
Notice, we sought comment on whether to continue site-specific
licensing or to adopt a form of geographic area licensing on these
channels.
32. Comments. Several commenters advocate that we continue
licensing channels designated for local SMR use based on the geographic
separation and channelization criteria in our current SMR rules. These
commenters argue that continued site-specific licensing would: (1)
Allow local operators to define their own markets; (2) permit
construction of niche systems designed to meet unique and customized
needs; and, (3) minimize disruption to operations of existing
licensees.
33. Other commenters advocate discontinuing site-specific licensing
of the lower 80 and General Category channels and instead offering
licenses for individual channels or small channel blocks covering
defined geographic areas. Cumulous argues that market-area licensing
would allow local SMR operators to grow and develop into geographic
area licensees in the future. Dru Jenkinson, et al. contend that
market-area licensing would permit more efficient service area coverage
than site-specific authorizations. Total Com believes that market-area
licensing will be advantageous to market development, with minimal
regulation.
Some commenters expressly oppose market-area licensing on the basis
that: (1) There is no reason to license these channels on a market-
defined area basis given the scarcity of vacant channels; and, (2) it
could create an artificial shortage of local channels simply because a
licensee secures an authorization covering a particular geographic
area. Pittencrief contends that such an approach, if adopted, should be
used only in those areas where the spectrum currently is not being
used.
35. Although AMTA does not expressly support this licensing
approach, it notes that there are certain advantages associated with
geographic area licensing, including facilitation of future integration
of local systems into wide-area operations should additional spectrum
be desired. Pittencrief contends that even if site-specific licensing
is retained, geographic area licensing would not necessarily be
foreclosed in the future. In this regard, Pittencrief recommends that
in order to secure a market-based license, a local licensee would be
required to demonstrate either that: (a) No other co-channel systems
serve the geographic area; or, (b) it has secured the consent of all
affected co-channel licensees. In either case, Pittencrief suggests
that the local licensee should be required to
[[Page 6216]]
serve a certain percentage of the Commission-defined service area or
face loss of the wide-area authorization.
36. Proposal. We tentatively conclude that the lower 80 and General
Category channels should be converted to geographic area licensing. We
believe that this new licensing approach will afford smaller SMR
operators the flexibility to provide service to a defined geographic
area on the same basis as licensees in the upper 10 MHz block. We
further believe that geographic licensing would simplify system
expansion and substantially reduce the administrative burden on both
lower 80 and General Category licensees and the Commission. In fact, we
expect that in many instances, existing licensees will seek to obtain
market-area licenses for those areas in which they already operate,
which would enable them to consolidate and expand their operations
under a more flexible regulatory regime. We seek comment on our
tentative conclusion.
B. Service Areas
37. Background. In the Further Notice, we indicated our belief that
the Basic Trading Areas (BTAs), established by Rand McNally, could be
an appropriate service area for geographic area licensing on the lower
80 channels. In the First R&O, we adopt EAs as the service area for
licenses in the upper 10 MHz block.
38. Comments. AMTA recommends using EAs rather than BTAs, partly
because EAs appear to approximate more closely the coverage range of
existing systems. Pittencrief also supports use of EAs. DCL Associates
and Telecellular support use of BTA service areas, because they believe
that such licensing would permit substantially more operational
flexibility than the traditional 35-mile radius licensing areas. E.F.
Johnson believes use of BTAs is contrary to the public interest because
it potentially would require operators to construct facilities where
they did not anticipate providing service; and, it would limit the
possibility that a co-channel licensee legitimately could reuse those
channels to serve an adjacent area. CellCall favors licensing the lower
80 channels based on Rand McNally's Major Trading Areas (MTAs). Dru
Jenkinson, et al. believe that uniformity and efficiency of
administration suggest that the lower 80 channels be licensed on the
same geographic area as the upper 200 channels. Similarly, AMTA
contends that such uniformity will preserve the value of lower 80
channels.
39. Proposal. We tentatively conclude that EAs would be the most
appropriate service areas for a geographic area licensing approach on
the lower 80 and General Category channels. As discussed in the First
R&O, EAs are based on urban, suburban, and rural traffic patterns that
accurately reflect the coverage provided by most 800 MHz SMR operators
other than the largest wide-area systems. We therefore believe that
this is an appropriate service area definition for the smaller systems
that we anticipate will occupy the lower 80 and General Category
channels. We also believe that using the same service area definition
for licenses on these channels as for licenses on the upper 200
channels will result in greater administrative efficiency. We seek
comment on this tentative conclusion and on alternative area
definitions.
C. Channel Assignments
40. Background. In the Further Notice, we indicated that by
continuing to license the lower channels in five-channel blocks, as we
do currently, we would enable existing licensees to expand local
systems on the same channels they are using presently. We also
indicated that licensing fewer channels in each block might be an
option that would give SMR operators more flexibility in channel
configuration.
41. Comments. CellCall, Telecellular, AMI, Dru Jenkinson, et al.,
and Palmer support licensing the lower 80 channels in five-channel
blocks. Palmer believes that such an approach would limit spectrum
warehousing severely because channels would not be sitting idle while
reserved for future service areas within a larger defined geographic
region. Dru Jenkinson, et al. believes that a five-channel block is an
appropriate grouping which would permit limited service application on
a local basis, yet provide flexibility for system modification within
the designated area.
42. Proposal. The five-channel blocks, which proved to be
administratively convenient under a site-by-site licensing scheme, may
also continue to be feasible under a geographic area licensing approach
since incumbent licensees have established their systems based on such
channelization. We anticipate that licensees operating on the lower 80
channels increasingly may become more interested in expanding the
geographic areas served by their systems and preoccupied less with the
number of frequencies utilized by such systems. We tentatively conclude
that the lower 80 channels should be licensed in the same five-channel
blocks under a geographic licensing approach in order to allow SMR
operators to build upon the systems they have already established.
Thus, we propose to license the lower 80 channels in five-channel
blocks. We seek comment on this tentative conclusion and any
alternatives.
43. For the General Category channels, we are not convinced that
five-channel blocks would be the best licensing alternative. Unlike the
lower 80 channels, the General Category channels are contiguous. As a
result, licensees may be interested in establishing multiple-channel
system networks. In addition, we are concerned that the competitive
bidding process for these frequencies may be administratively
unmanageable if they are licensed on a channel-by-channel basis, given
the large number of channels involved. Thus, we tentatively conclude
that the General Category channels should be licensed in channel
blocks. We seek comment on our tentative conclusion. We also ask
commenters to discuss what specific channel block size would be
appropriate. One alternative is to license channel blocks of different
sizes, e.g., a 120-channel block, a 20-channel block, and a 10-channel
block. Another alternative is to license channel blocks of the same
size, e.g., 25-channel or 10-channel blocks. We seek comment on these,
as well as other, alternatives.
D. Operational and Eligibility Restrictions
Background. In the Further Notice, we proposed to allow licensees
to use the lower 80 channels for any purpose that is technically
consistent with our rules. We also did not propose to restrict the
ability of licensees on the lower 80 channels to aggregate channels or
integrate local systems to provide service over a larger area.
45. Comments. The majority of commenters addressing this issue
endorse the Commission's proposal to allow licensees to use the lower
80 channels for any purpose that is technically consistent with our
rules. Cumulous believes that the Commission should pursue licensing
policies that allow the same use to be made of both the upper 10 MHz
block of 800 MHz SMR spectrum and the lower 80 channels. OneComm
believes that such a regime would make local channels more fungible in
relocation negotiations and preserve the value of the lower 80
channels.
46. Some commenters, on the other hand, oppose allowing EA
licensees to be able to obtain lower 80 channels. Ericsson believes
that such channels should be reserved as a safe haven for any local
licensees who currently operate in the upper 10 MHz block and
[[Page 6217]]
do not obtain the EA license if a mandatory relocation plan is adopted.
UTC believes that, in order to ensure the benefits of competition
within all geographic markets, an entity should be restricted from
holding EA licenses and authorizations for the lower 80 channels in the
same geographic area. Fisher urges the Commission to clarify that if an
EA licensee also holds licenses for systems made up of frequencies from
the lower 80 channels, it would be allowed to incorporate such
frequencies into its wide-area system. Fisher believes that such use
would further the Commission's goal of efficient and full utilization
of spectrum.
47. Proposal. We tentatively conclude that lower 80 and General
Category SMR licensees should be permitted to use these channels for
any purpose which is technically consistent with our rules. In light of
our designation of 10 MHz of 800 MHz spectrum for wide-area licensing,
however, we wish to ensure that our rules do not inadvertently allow
licensees in the upper 10 MHz to acquire large numbers of additional
SMR channels primarily intended for other use. As discussed infra, 2we
propose to adopt size restrictions on eligibility for the lower 80 and
General Category channels by designating these channels as an
entrepreneurs' block. As a result of the economic size limitations
associated with such designation, the largest licensees in the upper 10
MHz block would likely be ineligible for the lower 80 and General
Category channels. Aside from this proposed restriction, however, we
tentatively conclude that limiting the potential uses of lower 80 and
General Category licenses would not serve the public interest. We
believe that operational restrictions ultimately may restrict the
ability of smaller SMR operators to expand their service area and
service offerings by such means as integrating their frequencies into a
wide-area system or establishing a multiple-channel network. Thus, we
do not propose any additional restrictions for these channels.
E. Channel Aggregation Limit
48. Background. In the Further Notice, we tentatively concluded
that a limit should be placed on the number of lower 80 channels that
an applicant may obtain at one time in an area without constructing and
commencing operations on previously licensed channels in the same area.
We proposed to limit grants of the lower 80 channels to no more than
five channels at one time, which is the applicable limit under our
current rules.
49. Comments. All commenters addressing this issue agree that a
limit should be placed on the number of lower 80 channels that an
applicant may obtain at one time in an area without constructing and
commencing operations on previously licensed channels in the same area.
CellCall proposes a five-channel limit in a particular area for the
lower 80 frequencies. Russ Miller believes, however, that a five-
channel limit is too restrictive over a geographic area as large as a
BTA service area. It proposes a five-channel limit, per location, not
per area, for requested frequencies not licensed to the applicant
within its existing footprint. Russ Miller suggests that the limit
apply to any of the 800 MHz frequencies, not just SMR channels.
Telecellular believes that lower 80 licensees should be permitted to
apply for additional channels only after construction has been
completed for any frequencies covered by previously issued
authorizations in a given area, with ``area'' defined as any location
within 40 miles of the unbuilt site. Total Com suggests that any
licensee must have 90 percent of its channels constructed in each
market before additional channels are authorized.
50. Proposal. We propose not to limit the number of frequencies a
single applicant can request at one time. Under our site-specific 800
MHz SMR licensing rules, we generally have restricted the number of
channels for which an entity could apply in a particular area at one
time, to deter spectrum warehousing. We believe that the risk of
channel warehousing would be limited because these licenses will be
subject to competitive bidding and we anticipate that licensees will
not bid for more channels than they actually need or can use. We also
believe that lower 80 and General Category licensees should have the
flexibility to pursue plans to establish wide-area systems by
aggregating the lower 80 and General Category frequencies. We note,
however, that Commercial Mobile Radio Services (CMRS) spectrum holdings
by these licensees still would be subject to the CMRS spectrum
aggregation limit provided in Section 20.6 of our Rules. We seek
comment on these proposals and any alternatives.
F. Construction Requirements
1. Construction Period
51. Background. In the Third Report and Order in GN Docket No. 93-
252, 59 FR 59945 (November 21, 1994) (CMRS Third R&O), we established a
uniform 12-month period for constructing a standard base station in all
CMRS services that are licensed on a site specific basis. In the
Further Notice, we indicated that licensees of SMR systems
presumptively are subject to this 12-month construction period. In the
CMRS Third R&O, we also indicated that CMRS providers would be required
to commence service to subscribers by the end of their construction
period, with ``service to subscribers'' defined to mean the provision
of service to at least one party not affiliated with, controlled by, or
related to the CMRS provider.
52. Comments. All commenters addressing this issue endorse the
Commission's proposal of a 12-month construction period, coupled with a
commencement of service to subscribers requirement.
53. Proposal. Consistent with our conclusions in the CMRS Third
R&O, we propose that lower 80 and General Category licensees be subject
to a 12-month construction period. We further propose that these
licensees be required to construct their facilities and commence
``service to subscribers'' within twelve months from the grant of their
licenses. We seek comment on this proposal and any alternatives.
2. Coverage Requirements
54. We seek comment on whether geographic area SMR licensees
operating on the lower 80 and General Category frequencies should be
subject to minimum coverage requirements as a condition of licensing.
In the First R&O, we require EA licensees operating in the upper 200
channels to provide coverage to one-third of the population within
their EA within three years of initial license grant and to two-thirds
of the population by the end of their five-year construction period. We
propose to apply these same requirements to lower 80 and General
Category geographic area licensees. We believe that these coverage
requirements serve the public interest by deterring spectrum
warehousing and ensuring the speedy delivery of SMR service to the
public. We also propose that lower 80 and General Category licensees be
able to satisfy their coverage requirements by meeting a ``substantial
service'' standard, like that adopted in the broadband PCS 10 MHz
blocks and 900 MHz SMR services. We ask commenters to address the
advantages and disadvantages of imposing coverage requirements on lower
80 and General Category licensees, the specific coverage criteria
proposed, and any alternative criteria that could be used.
55. We also tentatively conclude that the geographic area lower 80
and General Category licensees should be
[[Page 6218]]
responsible for meeting their coverage requirements, regardless of the
extent to which their service areas are occupied by co-channel
incumbents. We believe that incumbents that already provide substantial
coverage in certain areas will have sufficient incentive to seek
geographic area licenses for these areas. Thus, we propose to require
the geographic area licensees for the lower 80 and General Category
channels to satisfy their coverage requirements directly. This proposal
is consistent with our approach for EA licensees on the upper 200
channels. We seek comment on these proposals and any alternatives,
including the impact, if any, on the construction period for the lower
80 and General Category channels. Assuming a twelve-month construction
period, we ask commenters to address whether the coverage requirements
should be imposed earlier in the license term. If so, we ask commenters
to discuss what would be the appropriate time frame.
56. If we adopt coverage requirements, we also must determine what
penalty should be imposed if the geographic area licensee fails to
comply with such requirements. We tentatively conclude that a
geographic area licensee's failure to meet the coverage requirements
should result in forfeiture of the market-area license. We also
tentatively conclude that in the event that a licensee loses its
geographic area license for failure to comply with coverage
requirements, any authorizations that such licensee held in that area
prior to the auction for facilities that are constructed and operating
would be reinstated. This approach is consistent with the sanctions
provided for in our rules for the upper 10 MHz block of 800 MHz SMR
spectrum, 900 MHz SMR, and broadband PCS. We seek comment on our
proposal and any alternatives.
G. Treatment of Incumbents
57. Given the extensive licensing of the 800 MHz SMR service, we
remain concerned about the ramifications of implementing a market-area
licensing approach where systems have been licensed already on a site-
specific basis. In the First R&O, we adopt a mandatory relocation
mechanism for the upper 10 MHz block. With respect to the lower 80 and
General Category channels, however, we believe that there are no
equitable means of relocating incumbents to alternative channels, and
that there are no identifiable alternative channels to accommodate all
such incumbents. We also believe that incumbent licensees relocated
from the upper 200 channels should not be subject to relocation a
second time. We therefore tentatively conclude that there should be no
mandatory relocation mechanism for SMR operators operating on the lower
80 and General Category channels. We propose that incumbent SMR
licensees on these frequencies be allowed to continue to operate under
their existing site-specific authorizations, and geographic area
licensees would be required to provide protection to all co-channel
systems that are constructed and operating within their service areas.
We further propose that no incumbent SMR licensee be allowed to expand
beyond its existing service area (as discussed in further detail,
infra) and into the geographic area licensee's territory without
obtaining the prior consent of the geographic area licensee (unless, of
course, the incumbent in question is itself the market-area licensee
for the relevant channel). We seek comment on this proposal. In
addition, we ask commenters to address how non-SMR licensees operating
on the lower 80 and General Category channels should be treated. Should
these licensees be relocated to non-SMR channels, and if so, under what
circumstances and pursuant to what type of relocation plan?
58. Because incumbent licensees' ability to expand their service
areas would be restricted as a result of our proposal, we believe that
it is imperative that they be given the optimum amount of operational
flexibility possible, without encroaching upon market-area licensees'
operations. Consistent with our approach on the upper 200 channels, we
propose that incumbent licensees on lower 80 and General Category
channels be able to modify or add transmitters in their existing
service area without prior notification to the Commission, so long as
their 22 dBu interference contour is not expanded. As we note in the
First R&O, we believe that by using the 22 dBu interference contour as
the benchmark for defining an incumbent's service area, incumbents will
be afforded significant operational flexibility without detracting from
the market-area licensee' operational capabilities. We seek comment on
this proposal. We ask commenters to address whether our proposal
strikes the appropriate balance between the competing interests of
market-area and incumbent licensees. We also ask commenters to discuss
whether a basis other than the 22 dBu interference contour should be
used to determine an incumbent's service area.
59. In addition, similar to our approach in the upper 200 channels
and the 900 MHz SMR service, we propose to allow SMR incumbents
operating on the lower 80 and General Category channels to have their
licenses reissued if they are not the successful bidder for the
geographic area license which includes the area in which they are
currently operating. Under this procedure, which will be granted post-
auction upon the request of the incumbent, an incumbent may convert its
current multiple site licenses to a single license, authorizing
operations throughout the contiguous and overlapping 22 dBu contours of
the incumbent's previously authorized sites. We propose that incumbents
seeking such reissued licenses be required to make a one-time filing
identifying each of their external base station sites to assist the
staff in updating the Commission's database after the close of the
auction for the lower 80 and General Category channels. We also propose
to require evidence that such facilities are constructed and placed in
operation and that, by operation of our rules, no other licensee would
be able to use these channels within this geographic area. We believe
that facilities added or modified within the 22 dBu contour without
prior approval or subsequent notification under this procedure will not
receive interference, because they will be protected by the presence of
surrounding stations of the same licensee on the same channel or
channel block. We seek comment on this proposal.
H. Co-Channel Interference Protection
60. Under our market-area licensing proposal for the lower 80 and
General Category channels, market-area licensees will be required to
provide interference protection both to incumbent co-channel facilities
and to co-channel licensees in neighboring market areas. With respect
to incumbent co-channel facilities, we propose to retain the level of
protection afforded under our existing rules. Thus, a market-area
licensee would be required either to locate its stations at least 113
km (70 mi) from the facilities of any incumbent or to comply with the
co-channel separation standards set forth in our short-spacing rule if
it seeks to operate stations located less than 113 km (70 mi) from an
incumbent licensee's facilities. With respect to adjacent market-area
licensees, we propose that market-area licensees provide interference
protection either by reducing the signal level at their service area
boundary, or negotiating some other mutually acceptable agreement with
all potentially affected adjacent licensees. We seek comment on these
[[Page 6219]]
proposals and we invite commenters to provide alternatives.
I. Licensing in Mexican and Canadian Border Areas
61. We recognize that a limited number of lower 80 channels are
available for SMR licensing in the Mexican and Canadian border areas.
In the First R&O, we have decided not to distinguish between border
areas and non-border areas for licensing purposes. We propose the same
approach for the lower 80 channels in the border areas, i.e., all
market areas should be licensed on a uniform basis without
distinguishing border from non-border areas, even if some spectrum is
unusable. We believe that lower 80 and General Category applicants,
like those in the upper 10 MHz block and other services, will be able
to assess the impact of more limited spectrum availability when valuing
those market areas for competitive bidding purposes. Moreover, we
believe that altering the size of particular market areas because they
are located near an international border is likely to be
administratively unworkable. Thus, we propose that market-area
licensees be entitled to use any available border-area channels,
subject to the relevant rules regarding international assignment and
coordination of such channels. We seek comment on this proposal.
VI. Regulatory Classification of Lower 80 and General Category Channels
62. Background. In the CMRS Third R&O, we determined that SMR
licensees would be classified as CMRS if they offered interconnected
service and as Private Mobile Radio Service (PMRS) if they did not
offer such service. In the Further Notice, we sought comment on whether
the presumption of CMRS status should apply to licensees authorized for
the lower 80 channels.
63. Comments. All of the commenters addressing this issue believe
that there should not be a CMRS presumption for the lower 80 channels
or any other channels designated primarily for local service. E.F.
Johnson and Genesee opine that there is a significant difference
between the type of services provided by local SMR systems and wide-
area systems. AMTA opines that it is not persuaded that Congress
intended to adopt a definition of CMRS so sweeping as to encompass even
the smallest, most rural SMR system, irrespective of its practical
ability to provide a service substantially similar to cellular or other
CMRS systems.
64. Proposal. Based on our geographic area licensing proposal for
the lower 80 and General Category channels, we believe that it is not
evident that the operations of the licensees on these frequencies will
be local in nature. In fact, some licensees may desire to establish
regional networks on these frequencies. Furthermore, contrary to the
suggestion by some commenters, the CMRS definition provided in the
Communications Act does not distinguish mobile service providers based
on their economic size. Instead, a service provider's regulatory
classification is determined based on factors associated with the
nature of its operations. In this connection, we believe that the
operational opportunities for the lower 80 and General Category
channels are not significantly different. Thus, we tentatively conclude
that most if not all geographic area licensees on these channels will
be classified as CMRS, because they are likely to provide
interconnected service as part of their service offering. We therefore
propose to classify all geographic area licensees on the lower 80 and
General Category channels presumptively as CMRS. We also propose that
market-area applicants or licensees who do not intend to provide CMRS
service may overcome this presumption by demonstrating that their
service does not fall within the CMRS definition. We also propose not
to apply this presumption prior to August 10, 1996 in the case of any
geographic area licensee who previously was licensed in the SMR service
as of August 10, 1993. We seek comment on our tentative conclusion and
proposals.
VII. Competitive Bidding Issues for Lower 80 and General Category
Channels
A. Auctionability of Lower 80 and General Category Channels
65. In the Competitive Bidding Eighth R&O, we affirmed our previous
determination that the 800 MHz SMR service is auctionable. In addition,
we concluded that use of competitive bidding in the upper 200 channels
of 800 MHz SMR spectrum is fully consistent with Section 309(j) of the
Communications Act. Because the lower 80 frequencies are SMR channels,
and thus a subset of the 800 MHz SMR service, we believe that they also
are auctionable. Consistent with our approach regarding the upper 200
channels, we propose to employ competitive bidding as a licensing tool
to select among mutually exclusive applicants on the lower 80 channels.
We seek comment on this proposal.
66. We also seek comment on whether to adopt equivalent auction
procedures for competing applications for General Category channels. In
the Competitive Bidding Eighth R&O, we determine that in the future the
General Category Channels will be licensed exclusively for SMR use.
Consistent with our approach for other 800 MHz SMR spectrum, we
tentatively conclude that if two or more entities file mutually
exclusive initial applications, we intend to use competitive bidding to
select from among competing applications.
67. We anticipate that a large number of applicants will file
mutually exclusive geographic area applications for SMR operations on
General Category frequencies. Competitive bidding will ensure that the
qualified applicants who place the highest value on the available
spectrum, and who will provide valuable services rapidly to the public,
will prevail in the selection process. Thus, we tentatively conclude
that all potential conflicts among General Category applicants will not
be eliminated by our proposed geographic area licensing scheme.
Competitive bidding procedures will be necessary to select from among
competing applicants for these channels. We seek comment on this
tentative conclusion.
B. Competitive Bidding Design
1. Bidding Methodology
68. Background. In the Second Report and Order in PP Docket No. 93-
253, 59 FR 22980 (May 4, 1994) (Competitive Bidding Second R&O) we
established criteria to be used in selecting which auction design to
use for particular auctionable services. Generally, we concluded that
awarding licenses to parties who value them most highly will foster
Congress's policy objectives of stimulating economic growth and
enhancing access to telecommunications services. We further noted that,
because a bidder's ability to introduce valuable new services and to
deploy them quickly, intensively, and efficiently increases the value
of a license to that bidder, an auction design that awards licenses to
those bidders with the highest willingness to pay tends to promote the
development and rapid deployment of new services and the efficient and
intensive use of the spectrum. In determining how best to promote this
objective, we identified several auction design elements which, in
combination, produce many different auction types. The two most
important design elements are: (1) the number of auction rounds (single
or multiple), and (2) the order in which licenses are auctioned
(sequentially or simultaneously). These two elements can be combined to
create four basic auction designs: sequential
[[Page 6220]]
single round, simultaneous single round, sequential multiple round, and
simultaneous multiple round.
69. In the Further Notice, we noted that because of the non-
contiguous nature of the lower 80 channels, there did not appear to be
a high degree of interdependency among them. We further noted that the
limited geographic scope of the licenses is likely to make them less
valuable than the licenses for the spectrum blocks for the upper 200
channels.
70. Comments. SBA supports use of single round sealed bidding.
Genesee disagrees that one single round of auctions in sealed bidding
would be fair, and suggests that at least two rounds be done with 30
day intervals. AMTA does not dispute the Commission's tentative
conclusion regarding the appropriate competitive bidding methodology
for local licenses. AMTA notes that it is reluctant to suggest an
approach that might further complicate what would be an unjustifiably
costly and complex process for those entities. AMTA contends that some
grouping of frequency blocks and geographic areas might be necessary
for this purpose, if the Commission determines to issue local licenses
on a geographic, rather than site-specific basis. Morris proposes the
use of multiple round auctions for local area licenses, limited to five
rounds. Nextel proposes that after relocation is completed, the lower
80 channels and any other spectrum reallocated to exclusive SMR use, be
auctioned on a single channel basis.
71. Proposal. We seek comment on which of the above auction
methodologies should be used for the auction of the lower 80 and
General Category licenses. In the Competitive Bidding Second R&O, we
stated that simultaneous multiple round auctions would be the preferred
method where licenses have strong value interdependencies. Accordingly,
we have used this method in broadband and narrowband PCS services and
the 900 MHz SMR service, and we will use the same methodology for the
upper 200 channels in the 800 MHz SMR service.
72. Given our successful experience in conducting simultaneous
multiple round auctions, we propose to use this competitive bidding
methodology for the lower 80 and General Category channels as well. We
seek comment on this proposal. We also note, however, that there is
less interdependency between licenses for the lower 80 and General
Category channels, both because channel aggregation is not required to
provide SMR service and because channel selection may be largely
dictated by which channels currently are licensed to incumbents in each
license area. We therefore seek comment on alternatives to simultaneous
multiple round bidding for these channels. One alternative would be to
use the oral outcry method, i.e., sequential multiple round bidding.
This method may allow us to conduct auctions expeditiously and in a
manner that is not burdensome to applicants.
2. License Grouping
73. Background. Depending upon the auction methodology chosen,
several alternatives exist for grouping the lower 80 and General
Category licenses. For example, the Commission determined in the
Competitive Bidding Second R&O that in a multiple round auction, highly
interdependent licenses should be grouped together and put up for bid
at the same time, because such grouping provides bidders with the most
information about the prices of complementary and substitutable
licenses during the course of an auction. We also determined that the
greater the degree of interdependence among the licenses, the greater
the benefit of auctioning a group of licenses together in a
simultaneous multiple round auction.
74. Proposal. We seek comment on how lower 80 and General Category
licenses should be grouped for competitive bidding purposes. As noted
above, it does not appear that licenses on these channels are likely to
be highly interdependent. We therefore propose that lower 80 licenses
be grouped in 16 five-channel blocks for each license area. We seek
comment on this proposal. We also ask commenters to indicate if there
are instances in which licenses on multiple channels should be grouped
together for competitive bidding purposes.
75. Assuming that we group lower 80 licenses by 16 five-channel
blocks, the issue remains whether all geographic area licenses for
specific channel blocks should be grouped together for competitive
bidding purposes. Given the large number of licenses, we believe that
it would be administratively feasible to employ an additional means of
grouping the five-channel blocks. We believe that some licensees may
elect to pursue regional service plans. Thus, we propose to group the
five-channel blocks on a regional basis. We seek comment on this
proposal. We recognize that there are other sets of interdependencies
which could form a basis for license grouping. In a simultaneous
multiple round auction, for example, we could auction all of the market
areas for a five-channel block simultaneously. Alternatively, we could
begin with the largest (i.e., most populated) markets and then move to
smaller markets. We seek comment on these alternatives as well.
Assuming that we group, the licenses on a regional basis, we ask
commenters to discuss how the regions should be defined. For example,
should the regions be defined by sequential groupings of EAs or some
other basis? We also ask commenters to address whether there is a
particular order in which the regions should be auctioned.
76. With respect to the General Category channels, which we propose
to license in a 120-channel block, 20-channel block and 10-channel
block, we believe that these licenses will be significantly
interdependent, primarily due to their contiguity. Thus, we propose to
auction the General Category geographic area licenses simultaneously.
We seek comment on this proposal and any alternatives.
3. Bidding Procedures
77. Background. In the Competitive Bidding Second R&O, the
Commission established general procedures for simultaneous multiple
round auctions, including bid increments, duration of bidding rounds,
stopping rules, and activity rules. We further noted that these
procedures could be modified on a service-specific basis. We seek
comment on the bidding procedures that should be used for licensing of
the lower 80 and General Category channels.
78. Bid Increments. If we use a multiple round auction, we propose
to establish minimum bid increments for bidding in each round of the
auction, based on the same considerations in the Competitive Bidding
Eighth R&O. The bid increment is the amount or percentage by which the
bid must be raised above the previous round's high bid in order to be
accepted as a valid bid in the current bidding round. The application
of a minimum bid increment speeds the progress of the auction and,
along with activity and stopping rules, helps to ensure that the
auction closes within a reasonable period of time. Establishing an
appropriate minimum bid increment is especially important in a
simultaneous auction with a simultaneous closing rule, because all
markets remain open until there is no bidding on any license and a
delay in closing one market will delay the closing of all markets. We
seek comment on the appropriate minimum bid increments for the lower 80
and General Category channels.
79. For example, if simultaneous multiple round auctions are
employed
[[Page 6221]]
for the lower 80 and General Category licenses, we believe that we
should start such auctions with relatively large bid increments, and
reduce the increments as the number of active bidders declines. We also
propose to adopt a minimum bid increment of five percent of the high
bid in the previous round or $0.01 per activity unit, whichever is
greater. We believe that applying a $0.01 per activity unit minimum bid
increment in addition to the percentage calculation is appropriate to
provide flexibility for a wide range of different license values, and
to ensure timely closure of auctions. In addition, we propose to retain
the discretion to vary the minimum bid increments for individual
licenses or groups of licenses at any time before or during the course
of the auction, based on the number of bidders, bidding activity, and
the aggregate high bid amounts. We also propose to retain the
discretion to keep an auction open if there is a round in which no bids
or proactive waivers are submitted. We seek comment on these proposals.
80. Stopping Rules. If multiple round auctions are used, a stopping
rule must be established for determining when the auction is over.
Three types of stopping rules exist that could be employed in
simultaneous multiple round auctions: markets may close individually,
simultaneously, or a hybrid approach may be used. We believe a market-
by-market stopping rule is most appropriate for the lower 80 channels
given the lack of strong interdependencies among these licenses. We
also believe that a market-by-market stopping rule would be the least
complex approach from an administrative perspective. Under a market-by-
market approach, bidding closes on each license after three rounds pass
in which no new acceptable bids are submitted for that particular
license. We tentatively conclude that a simultaneous stopping rule is
not appropriate for these licenses, because market-by-market closure
will provide bidders with sufficient flexibility to bid on the license
of their choice. In addition, the complexity of implementation and the
vulnerability to strategic delay by bidders seeking to impede closure
of the auction outweigh the benefits of a simultaneous stopping rule
given the nature of these SMR licenses. With a simultaneous stopping
rule, bidding remains open on all licenses until there is no bidding on
any license. Under this approach, all markets will close if three
rounds pass in which no new acceptable bids are submitted for any
license. We seek comment on our tentative conclusions. We also ask
commenters to address the advantages and disadvantages of using a
hybrid stopping rule. Under a hybrid approach, a simultaneous stopping
rule, coupled with an activity rule designed to bring the markets to
close within a reasonable period of time, could be used to close
auctions with high value licenses. For lower value licenses, the
simpler market-by-market closing could be employed. For the General
Category licenses, we tentatively conclude that a simultaneous stopping
rule is most appropriate, given the significant interdependencies
between these licenses. We seek comment on this tentative conclusion.
Regardless of which stopping rule we ultimately apply, we further
propose to retain the discretion to declare when the auction will end,
whether it be after one additional round or some other specified number
of rounds. This proposal will ensure ultimate Commission control over
the duration of the auction. We seek comment on this proposal.
81. Activity Rules. Based on our proposal to employ a market-by-
market stopping rule for the lower 80 licenses, we tentatively conclude
that it is unnecessary to implement an activity rule. We believe that
an activity rule is less important when markets close one-by-one,
because failure to participate in any given round may result in losing
the opportunity to bid at all, if that round turns out to be the last.
We seek comment on this tentative conclusion. We also ask commenters to
address what activity rules, if any, would be appropriate if an
alternative stopping rule is adopted. For example, in order to ensure
that simultaneous auctions with simultaneous stopping rules close
within a reasonable period, we believe that it may be necessary to
impose an activity rule to prevent bidders from waiting until the end
of the auction before participating. Because simultaneous stopping
rules generally keep all markets open as long as anyone wishes to bid,
they also create incentives for bidders to hold back, until prices
approach equilibrium, before making a bid and risking payment of a
monetary assessment for withdrawing. We believe that this could lead to
very long auctions.
82. Thus, in the Competitive Bidding Second R&O, we adopted the
Milgrom-Wilson activity rule as our preferred activity rule where a
simultaneous stopping rule is used. We subsequently have adopted or
proposed the Milgrom-Wilson rule in each of our simultaneous multiple
round auctions. The Milgrom-Wilson approach encourages bidders to
participate in early rounds by limiting their maximum participation to
some multiple of their minimum participation level. Bidders are
required to declare their maximum eligibility in terms of activity
units, and make the required upfront payment. That is, bidders will be
limited to bidding on licenses encompassing no more than the number of
activity units covered by their upfront payment. Licenses on which a
bidder is the high bidder from the previous round, as well as licenses
on which a new valid bid is placed, count toward this activity unit
limit. Under this approach, bidders have the flexibility to shift their
bids among any licenses for which they have applied, so long as the
total activity units encompassed by those licenses does not exceed the
number for which they made an upfront payment. Moreover, bidders have
the freedom to participate at whatever level they deem appropriate by
making a sufficient upfront payment. To preserve their maximum
eligibility, however, bidders are required to maintain some minimum
activity level during each round of the auction. Accordingly, we
propose to employ the Milgrom-Wilson activity rule for the General
Category licenses. We seek comment on this proposal and any
alternatives.
83. Under the Milgrom-Wilson approach, the minimum activity level,
measured as a fraction of the self-declared maximum eligibility, will
increase during the course of the auction. For this purpose, Milgrom
and Wilson divide the auction into three stages. During the first stage
of the auction, a bidder is required to be active on licenses
encompassing one-third of the activity units for which it is eligible.
The penalty for falling below that activity level is a reduction in
eligibility. At this stage, bidder would lose three activity units in
maximum eligibility for each activity unit below the minimum required
activity level. In other words, each bidder would retain eligibility
for three times the activity units for which it is an active bidder, up
to the activity units covered by the bidder's upfront payment. In the
second stage, bidders are required to be active on two-thirds of the
activity units for which they are eligible. The penalty for falling
below that activity level would be a loss of 1.5 activity units in
eligibility for each activity unit below the minimum required activity
level. In the third stage, bidders are required to be active on
licenses encompassing all of the activity units for which they are
eligible. The penalty for falling below that activity level is a loss
of one activity unit in eligibility for each
[[Page 6222]]
activity unit below the minimum required activity. Each bidder thus
retains eligibility equal to its current activity level (1 times the
activity units for which it is an active bidder). We seek comment on
this alternative.
84. Duration of Bidding Rounds. We propose to retain the discretion
to vary the duration of bidding rounds or the interval at which bids
are accepted (e.g., run two or more rounds per day rather than one), in
order to close the auction more quickly. If this mechanism is used, we
most likely would shorten the duration and/or intervals between bidding
rounds where there are relatively few licenses to be auctioned, where
the value of the licenses is relatively low, or in early rounds to
speed the auction process. Where license values are expected to be high
or where large numbers of licenses are being auctioned, we propose to
increase the duration and/or intervals between bidding rounds. We would
announce by Public Notice, and may vary by announcement during an
auction, the duration and intervals between bidd
FR Doc. 96-3511 Future Development of SMR Systems in the 800 MHz Frequency Band
ing rounds. We also
propose to announce by Public Notice, before each auction, the stopping
rule we adopt. We seek comment on these proposals.
4. Rules Prohibiting Collusion
85. Background. In the Competitive Bidding Second R&O, as modified
on reconsideration, we adopted special rules prohibiting collusive
conduct in the context of competitive bidding. In the Further Notice,
we proposed to apply these rules prohibiting collusion to the 800 MHz
SMR service. We want to prevent parties, especially large entities,
from agreeing in advance to bidding strategies that divide the market
according to their strategic interests and/or disadvantage other
bidders. Bidders will be required to (i) reveal all parties with whom
they have entered into any agreement that relates to the competitive
bidding process, and (ii) certify they have not entered into any
explicit or implicit agreements, arrangements, or understandings with
any parties, other than those identified, regarding the amount of their
bid, bidding strategies, particular properties on which they will or
will not bid or any similar agreement.
86. Proposals. We tentatively conclude that we should subject the
lower 80 and General Category licenses to the reporting requirements
and rules prohibiting collusion embodied in Sections 1.2105 and 1.2107
of the Commission's rules. Specifically, we propose to implement
Section 1.2105(a) to require bidders to identify on their short-form
applications all parties with whom they have entered into any
consortium arrangements, joint ventures, partnerships or other
agreements or understandings which relate to the competitive bidding
process. We propose to apply Section 1.2105(c) of our rules, which
prohibits bidders from communicating with one another (if they have
applied for any of the same markets) regarding the substance of their
bids or bidding strategies after short-form applications (FCC Form 175)
have been filed. Section 1.2105(c) also prohibits bidders from entering
into consortium arrangements or joint bidding agreements after the
deadline for short-form applications has passed. Prohibited
communications between such bidders cannot take place directly or
indirectly.
87. Further, in the Fourth Memorandum Opinion and Order in PP
Docket No. 93-253, 59 FR 53364 (October 24, 1994), we noted that
communications among bidders concerning matters unrelated to the
license auction would be permitted. In making this proposal, it is not
our intent to discourage potential applicants from entering into
consortia, joint ventures, or similar joint bidding arrangements for
geographic area licenses prior to the short form filing deadline. To
the contrary, we intend to provide parties with time to negotiate such
arrangements before the start of the application process. To avoid
compromising the auction process, however, such negotiations must end
at the point that short forms are filed. As in other services, we also
propose to require winning bidders to submit with their long-form
application a detailed explanation of the terms, conditions and parties
involved in any auction-related consortium, joint venture, partnership,
or other agreement entered into prior to the close of bidding. We seek
comment on these proposals.
C. Procedural and Payment Issues
1. Pre-Auction Application Procedures
88. Background. In the Competitive Bidding Second R&O, the
Commission established general competitive bidding rules and
procedures, which we noted may be modified on a service-specific basis.
We also determined that we should require only a short-form application
(FCC Form 175) prior to auction, and that only winning bidders should
be required to submit a long-form license application (FCC Form 600)
after the auction. In this connection, we determined that such a
procedure would fulfill the statutory requirements and objectives and
adequately protect the public interest.
89. As discussed below, we propose to follow generally the
processing and procedural rules established in the Competitive Bidding
Second R&O, with certain modifications designed to address the
particular characteristics of the lower 80 and General Category
licenses. These proposed rules are structured to ensure that bidders
and licensees are qualified and will be able to construct systems
quickly and offer service to the public. By ensuring that bidders and
license winners are serious, qualified applicants, these proposed rules
will minimize the need to re-auction licenses and prevent delays in the
provision of SMR services to the public.
90. Section 309(j)(5) of the Communications Act provides that no
party may participate in an auction ``unless such bidder submits such
information and assurances as the Commission may require to demonstrate
that such bidder's application is acceptable for filing.'' Moreover,
``[n]o license shall be granted to an applicant selected pursuant to
this subsection unless the Commission determines that the applicant is
qualified pursuant to Section 309(a) and Section 308(b) and 310'' of
the Communications Act. As the legislative history of Section 309(j)
makes clear, the Commission may require that bidders' applications
contain all information and documentation sufficient to demonstrate
that the application is not in violation of Commission rules, and we
propose to dismiss applications not meeting those requirements prior to
the competitive bidding.
91. Under this proposal, before the auction for the lower 80 and
General Category channels, the Bureau would release an initial Public
Notice announcing the auction. The initial Public Notice would specify
the licenses to be auctioned and the time and place of the auction in
the event that mutually exclusive applications are filed. The Public
Notice would specify the method of competitive bidding to be used,
applicable bid submission procedures, stopping rules, activity rules,
and the deadline by which short-form applications must be filed and the
amounts and deadlines for submitting the upfront payment. We would not
accept applications filed before or after the dates specified in the
Public Notice. Applications submitted before the release of the Public
Notice would be returned as premature. Likewise, applications submitted
after the deadline specified by the Public Notice would be dismissed,
with prejudice, as untimely. We seek comment on these proposals.
[[Page 6223]]
92. Soon after the release of the initial Public Notice, a Bidder's
Information Package will be made available to prospective bidders. The
Bidder's Information Package will contain information on the incumbents
occupying blocks on which bidding will be available. Incumbents will be
expected to update information on file with the Commission, such as
current address and phone number, so that such information will be of
use to prospective bidders.
93. Under this proposal, all bidders would be required to submit
short-form applications on FCC Form 175 (and FCC Form 175-S, if
applicable), by the date specified in the initial Public Notice.
Applicants would be encouraged to file Form 175 electronically.
Detailed instructions regarding electronic filing would be contained in
the Bidder Information Package. Those applicants filing manually would
be required to submit one paper original and one microfiche original of
their application, as well as two microfiche copies. The short form
applications would require applicants to provide the information
required by Section 1.2105(a)(2) of the Commission's rules.
Specifically, each applicant would be required to specify on its Form
175 application certain identifying information, including its status
as a designated entity (if applicable), its classification (i.e.,
individual, corporation, partnership, trust, or other), the license
areas and frequency blocks for which it is applying, and assuming that
the licenses will be auctioned, the names of persons authorized to
place or withdraw a bid on its behalf.
94. As we indicated in the Competitive Bidding Second R&O, if we
receive only one application that is acceptable for filing for a
particular license, and thus there is no mutual exclusivity, we propose
to issue a Public Notice cancelling the auction for this license and
establishing a date for the filing of a long-form application, the
acceptance of which would trigger the procedures permitting petitions
to deny. If no petitions to deny are filed, the application would be
grantable after 30 days. We seek comment on the proposals discussed
above.
2. Amendments and Modifications
95. Background. To encourage maximum bidder participation, we
proposed in the Competitive Bidding Second R&O to provide applicants
with an opportunity to correct minor defects in their short-form
applications prior to the auction. We stated that applicants whose
short-form applications are substantially complete, but contain minor
errors or defects, would be provided an opportunity to correct their
applications prior to the auction. In the broadband PCS context, we
modified our rules to permit ownership changes that result when
consortium investors drop out of bidding consortia, even if control of
the consortium changes due to this restructuring. In the CMRS Third
R&O, we decided to adopt the same or similar definitions for initial
applications and major and minor amendments and modifications for all
CMRS in Part 22 and Part 90, in order to facilitate similar system
proposals and modifications for equal treatment of substantially
similar services.
96. On the date set for submission of corrected applications,
applicants that discover minor errors in their own applications (e.g.,
typographical errors, incorrect license designations, etc.) also would
be permitted to file corrected applications. Recently, the Commission
waived the ex parte rules as they applied to the submission of amended
short-form applications for the A and B blocks of the broadband PCS
auctions, to maximize applicants' opportunities to seek Commission
staff advice on making such amendments. We propose to apply the same
principles to the SMR auctions. Under this proposal, applicants would
not be permitted to make any major modifications to their applications,
including changes in license areas and changes in control of the
applicant, or additions of other bidders into the bidding consortia,
until after the auction. Applicants could modify their short-form
applications to reflect formation of consortia or changes in ownership
at any time before or during an auction, provided such changes would
not result in a change in control of the applicant, and provided that
the parties forming consortia or entering into ownership agreements
have not applied for licenses in any of the same geographic license
areas. In addition, applications that are not signed would be dismissed
as unacceptable.
97. Upon our review of the short-form applications, we propose to
issue a Public Notice listing all defective applications, and
applicants with minor defects would be given an opportunity to cure
errors and resubmit a corrected version. After reviewing the corrected
applications, the Commission would release a second Public Notice
announcing the names of all applicants whose applications have been
accepted for filing. These applicants would be required to submit an
upfront payment to the Commission, as discussed below, to the
Commission's lock-box by the date specified in the Public Notice, which
generally would be no later than 14 days before the scheduled auction.
After the Commission receives from its lock-box bank the names of all
applicants who have submitted timely upfront payments, the Commission
would issue a third Public Notice announcing the names of all
applicants that are determined qualified to bid. An applicant who fails
to submit a sufficient upfront payment to qualify it to bid on any
license being auctioned would not be identified on this Public Notice
as a qualified bidder. Each applicant listed on this Public Notice
would be issued a bidder identification number and further information
and instructions regarding auction procedures. We seek comment on the
proposals discussed above.
3. Upfront Payments
98. Background. In the Competitive Bidding Second R&O, we
established a minimum upfront payment of $2,500 and stated that this
amount could be modified on a service-specific basis. In the Further
Notice, we proposed to require 800 MHz SMR auction participants to
tender in advance to the Commission a substantial upfront payment,
$0.02 per activity unit for the largest combination of activity units a
bidder anticipates bidding on in any round, as a condition of bidding
in order to ensure that only serious, qualified bidders participate in
auctions and to ensure payment of the penalty (discussed infra) in the
event of bid withdrawal or default. We also sought comment on the
upfront payment formula and minimum upfront payment most appropriate
for the 800 MHz SMR service.
99. Proposals. As in the case of other auctionable services, we
propose to require participants for the lower 80 and General Category
auction to tender in advance to the Commission a substantial upfront
payment as a condition of bidding, in order to ensure that only
serious, qualified bidders participate in auctions and to ensure
payment of the additional monetary assessments in the event of bid
withdrawal or default. For services that are licensed by simultaneous
multiple round auction, we have established a standard upfront payment
formula of $0.02 per activity unit for the largest combination of
activity units a bidder anticipates bidding on in any single round of
bidding. We tentatively conclude that a minimum $2,500 upfront payment
should be required, regardless of the bidding methodology we employ. We
seek comment on our proposal regarding the appropriate minimum upfront
payment for
[[Page 6224]]
applications for the lower 80 or General Category channels. In
particular, we seek comment on whether a minimum upfront payment of
$2,500 is sufficient to discourage frivolous or speculative bidders in
the auction process.
100. We tentatively conclude that upfront payments should be due no
later than 14 days before a scheduled auction. This period should be
sufficient to allow the Commission to process upfront payment data and
release a Public Notice listing all qualified bidders. The specific
procedures to be followed in the tendering and processing of upfront
payments are set forth in Section 1.2106 of the Commission's rules.
4. Down Payment and Full Payment
101. Background. In the Competitive Bidding Second R&O, we
generally required successful bidders to tender a 20 percent down
payment on their bids to discourage default between the auction and
licensing and to ensure payment of the penalty if such default occurs.
We concluded that this requirement was appropriate to ensure that
auction winners have the necessary financial capabilities to complete
payment for the license and to pay for the costs of constructing a
system, while not being so onerous as to hinder growth or diminish
access. In the Further Notice, we proposed to require the winning
bidders for 800 MHz SMR licenses to supplement their upfront payments
with down payments sufficient to bring their total deposits up to 20
percent of their winning bid(s).
102. Proposals. We propose to apply the 20 percent down payment
requirement to winning bidders for lower 80 and General Category
licenses. Such a down payment would be due within five business days
following the Public Notice announcing the winning bidders. We further
propose that auction winners be required to pay the full balance of
their winning bids within five business days following Public Notice
that the Commission is prepared to award the license. We seek comment
on this proposal.
103. To the extent that an auction winner is eligible to make
payments through an installment plan (small businesses, as proposed
infra), we propose to apply different down payment requirements. Such
an entity would be required to bring its deposit with the Commission up
to five percent of its winning bid after the bidding closes (this
amount would include the upfront payment), and would have to pay an
additional five percent of its winning bid to the Commission within
five business days following Public Notice that the Commission is
prepared to award the license. We seek comment on this proposal.
5. Bid Withdrawal, Default, and Disqualification
104. Background. In the Further Notice, we proposed to adopt bid
withdrawal, default, and disqualification rules for the 800 MHz SMR
service based on the procedures established in our general competitive
bidding rules. In the Competitive Bidding Second R&O, we noted that it
is critically important to the success of our competitive bidding
process that potential bidders understand that there will be a
substantial penalty assessed if they withdraw a high bid, are found not
to be qualified to hold licenses, or default on payment of a balance
due. If a bidder withdraws a high bid before the Commission closes
bidding or defaults by failing to timely remit the required down
payment, it would be required to reimburse the Commission for any
differences between its high bid and the amount of the winning bid, if
the winning bid is lower. A defaulting auction winner also would be
assessed three percent of either the subsequent winning bid or the
amount of the defaulting bid, whichever is less.
105. Proposal. We propose to adopt bid withdrawal, default, and
disqualification rules for the lower 80 and General Category licenses
based on the procedures in our general competitive bidding rules. Under
these procedures, any bidder who withdraws a high bid during an auction
before the Commission declares bidding closed, or defaults by failing
to remit the required down payment within the prescribed time, would be
required to reimburse the Commission. The bidder would be required to
pay the difference between its high bid and the amount of the winning
bid the next time the license is offered by the Commission, if the
subsequent winning bid is lower. A defaulting auction winner would be
assessed an additional payment of three percent of the subsequent
winning bid or three percent of the amount of the defaulting bid,
whichever is less. The monetary assessment would be offset by the
upfront payment. In the event that an auction winner defaults or is
otherwise disqualified, we propose to re-auction the license either to
existing or new applicants. The Commission would retain discretion,
however, to offer the license to the next highest bidder at its final
bid level if the default occurs within five business days of the close
of bidding. We seek comment on these proposed procedures.
6. Long-Form Applications
106. Background. In the Competitive Bidding Second R&O, we
established rules that require a winning bidder to submit a long-form
application. The long-form application is required to be filed by a
specific date, generally within ten business days after the close of
the auction. We stated that after we received the high bidder's down
payment and the long-form application, we would review the long-form
application to determine if it is acceptable for filing. Once the long-
form application is accepted for filing, we stated that we would
release a Public Notice announcing this fact, triggering the filing
window for petitions to deny. We also stated that if, pursuant to
Section 309(d), we deny or dismiss all petitions to deny, if any are
filed, and we otherwise are satisfied that the applicant is qualified,
we would grant the license(s) to the auction winner. In the Further
Notice, we proposed to use application procedures similar to those used
for licensing PCS. Consistent with our approach in PCS, we proposed to
require only the winning bidder to file a long-form application (FCC
Form 600).
107. Proposal. If the winning bidder makes the down payment in a
timely manner, we propose the following procedures: A long-form
application filed on FCC Form 600 must be filed by a date specified by
Public Notice, generally within ten (10) business days after the close
of bidding. After the Commission receives the winning bidder's down
payment and long-form application, we will review the long-form
application to determine if it is acceptable for filing. In addition to
the information required in the Form 600, designated entities will be
required to submit evidence to support their claim to any special
provision available for designated entities described in this Order.
This information may be included in an exhibit to FCC Form 600. This
information will enable the Commission, and other interested parties,
to ensure the validity of the applicant's certification of eligibility
for bidding credits, installment payment options, and other special
provisions. Upon acceptance for filing of the long-form application,
the Commission will issue a Public Notice announcing this fact,
triggering the filing window for petitions to deny. If the Commission
denies all petitions to deny, and is otherwise satisfied that the
applicant is qualified, the license(s) will be granted to the auction
winner. We seek comment on this proposal.
[[Page 6225]]
7. Petitions to Deny and Limitations on Settlements
108. Background. We determined in the Competitive Bidding Second
R&O that the procedures concerning petitions to deny found in Section
309(j)(2) of the Communications Act, should apply to competitive
bidding. We determined that we would adopt expedited procedures to
resolve substantial and material issues of fact concerning
qualifications. We stated that we would entertain petitions to deny the
application of the auction winner if the petitions to deny otherwise
are provided for under the Communications Act or our rules. We then
determined that we would not conduct a hearing before denial if we
determined that an applicant is not qualified and no substantial and
material issue of fact exists concerning that determination. We also
stated that if we identified substantial and material issues of fact in
need of resolution, Sections 309(j)(5) and 309(j)(2) of the
Communications Act permit submission of all or part of evidence in
written form, and also allow employees other than administrative law
judges to preside at the taking of written evidence. Additionally, we
previously have stated that our anti-collusion and settlement
procedures were designed to avoid the problem of entities filing
applications solely for the purpose of demanding payment from other
bidders in exchange for settlement or withdrawal.
109. As we have determined, the petition to deny procedures in
Section 90.163 of the Commission's rules, adopted in the CMRS Third
R&O, will apply to the processing of applications for the 800 MHz SMR
service. Thus, a party filing a petition to deny against an application
for the lower 80 and General Category channels will be required to
demonstrate standing and meet all other applicable filing requirements.
We also have adopted restrictions in Section 90.162 to prevent the
filing of applications and pleading (or threats of the same) designed
to extract money from SMR applicants. Thus, we will limit the
consideration that an applicant or petitioner is permitted to receive
for agreeing to withdraw an application or a petition to deny to the
legitimate and prudent expenses of the withdrawing applicant or
petitioner.
110. With respect to petitions to deny, the Commission need not
conduct a hearing before denying an application, if it determines that
an applicant is not qualified and no substantial issue of fact exists
concerning that determination. In the event the Commission identifies
substantial and material issues of fact, Section 309(i)(2) of the
Communications Act permits the submission of all or part of evidence in
written form in any hearing and allows employees other than
administrative law judges to preside over the taking of written
evidence. We seek comment on these proposals.
8. Transfer Disclosure Requirements
111. In Section 309(j) of the Communications Act, Congress directed
the Commission to ``require such transfer disclosures and anti-
trafficking restrictions and payment schedules as may be necessary to
prevent unjust enrichment as a result of the methods employed to issue
licenses and permits.'' In the Competitive Bidding Second R&O, the
Commission adopted safeguards designed to ensure that the requirements
of Section 309(j)(4)(E) are satisfied. We decided that it was important
to monitor transfers of licenses awarded by competitive bidding to
accumulate the necessary data to evaluate our auction designs and to
judge whether ``licenses [have been] issued for bids that fall short of
the true market value of the license.'' Therefore, we imposed a
transfer disclosure requirement on licenses obtained through the
competitive bidding process, whether by a designated entity or not.
112. We tentatively conclude that the transfer disclosure
requirements of Section 1.2111(a) should apply to all lower 80 and
General Category licenses obtained through the competitive bidding
process. Generally, licensees transferring their licenses within three
years after the initial license grant would be required to file,
together with their transfer applications, the associated contracts for
sale, option agreements, management agreements, and all other documents
disclosing the total consideration received in return for the transfer
of their license. As we indicated in the Competitive Bidding Second
R&O, we would give particular scrutiny to auction winners who have not
yet begun commercial service and who seek approval for a transfer of
control or assignment of their licenses within three years after the
initial license grant, so that we may determine if any unforeseen
problems relating to unjust enrichment have arisen outside the
designated entity context. We seek comment on these proposals.
9. Performance Requirements
113. Section 309(j)(4)(B) of the Communications Act requires the
Commission to establish rules for auctionable services that ``include
performance requirements, such as appropriate deadlines and penalties
for performance failures, to ensure prompt delivery of service to rural
areas, to prevent stockpiling or warehousing of spectrum by licensees
or permittees, and to promote investment in and rapid deployment of new
technologies and services.'' In the Competitive Bidding Second R&O, we
decided that in most auctionable services, existing construction and
coverage requirements provided in our service rules would be sufficient
to meet this standard, and that it was unnecessary to impose additional
performance requirements. We have proposed service rules for SMR that
would require market-area licensees to meet minimum population coverage
requirements in their licensing areas. We tentatively conclude that
these proposed coverage requirements are sufficient to meet the
requirements of Section 309(j)(4)(B). As discussed supra, we propose
that failure to meet these requirements would result in automatic
license cancellation. Accordingly, we do not propose to adopt
additional performance requirements for the lower 80 and General
Category licenses. We seek comment on this proposal.
D. Treatment of Designated Entities
1. Overview and Objectives
114. Section 309(j)(3)(B) of the Communications Act provides that
in establishing auction eligibility criteria and bidding methodologies,
the Commission shall ``promot[e] economic opportunity and competition
and ensur[e] that new and innovative technologies are readily
accessible to the American people by avoiding excessive concentration
of licenses and by disseminating licenses among a wide variety of
applicants, including small businesses, rural telephone companies, and
businesses owned by members of minority groups and women.'' Section
309(j)(4)(A) provides that to promote the statute's objectives the
Commission shall ``consider alternative payment schedules and methods
of calculation, including lump sums or guaranteed installment payments,
with or without royalty payments, or other schedules or methods * * *
and combinations of such schedules and methods.''
115. In the Competitive Bidding Second R&O, we established
eligibility criteria and general rules regarding special measures for
small businesses, rural telephone companies, and businesses owned by
women and minorities (sometimes referred to collectively as
``designated entities''). We also identified several measures,
including installment payments, spectrum set-asides, and bidding
[[Page 6226]]
credits, from which we could choose when establishing rules for
auctionable services. We stated that we would decide whether and how to
use these special provisions, or others, when we developed specific
competitive bidding rules for particular services. In addition, we set
forth rules designed to prevent unjust enrichment by designated
entities who transfer ownership in licenses obtained through the use of
these special measures or who otherwise lose their designated entity
status.
116. When deciding which provisions to adopt to encourage
designated entity participation in particular services, we have closely
examined the specific characteristics of the service and determined
whether any particular barriers to accessing capital have stood in the
way of designated entity opportunities. In accordance with our
statutory directive, we have adopted measures designed both to enhance
the ability of designated entities to acquire licenses and to increase
the likelihood that designated entity licensees will become strong
competitors in the provision of wireless services. In narrowband PCS,
for instance, we provided installment payments for small businesses and
bidding credits for minority-owned and women-owned businesses. In
broadband PCS, we designated certain spectrum blocks as entrepreneurs'
blocks, allowed entrepreneurs' block licensees to make installment
payments, and provided bidding credits for designated entities. In 900
MHz SMR, we adopted bidding credits and installment payments for small
businesses. In the 800 MHz SMR service, we did not adopt special
provisions for designated entities, with respect to the upper 200
channels. We nonetheless indicated that such approach would meet the
statutory objectives of promoting economic opportunity and competition,
avoiding excessive concentration of licenses, and ensuring access to
new and innovative technologies by designated entities. As discussed in
greater detail below, we seek comment on the type of designated entity
provisions that should be incorporated into our competitive bidding
procedures for the lower 80 and General Category channels.
2. Eligibility for Designated Entity Provisions
a. Small Businesses. i. Special Provisions. 117. Proposal. We
tentatively conclude that it is appropriate to establish special
provisions for small businesses in our competitive bidding rules for
the lower 80 and General Category channels. We note that Congress
specifically cited the needs of small businesses in enacting auction
legislation. The House Report states that the statutory provisions
related to installment payments were enacted to ``ensure that all small
businesses will be covered by the Commission's regulations, including
those owned by members of minority groups and women.'' It also states
that the provisions in Section 309(j)(4)(A) relating to installment
payments were intended to promote economic opportunity by ensuring that
competitive bidding inadvertently does not favor incumbents with ``deep
pockets'' over new companies or start-ups.
118. In addition, Congress made specific findings with regard to
access to capital in the Small Business Credit and Business Opportunity
Enhancement Act of 1992: that ``small business concerns, which
represent higher degrees of risk in financial markets than do large
businesses, are experiencing increased difficulties in obtaining
credit.'' As a result of these difficulties, Congress resolved to
consider carefully legislation and regulations ``to ensure that small
business concerns are not negatively impacted'' and to give priority to
passage of ``legislation and regulations that enhance the viability of
small business concerns.'' For these reasons, and as discussed in
greater detail below, we tentatively conclude that small businesses
applying for these licenses should be entitled to some form of bidding
credit and should be allowed to pay their bids in installments. This is
consistent with our approach in the 900 MHz SMR service. We seek
comment on this tentative conclusion.
ii. Definition. 119. Comments. DCL Associates and Dru Jenkinson, et
al. suggest that we adopt the SBA definition of small business
initially adopted in the Competitive Bidding Second Report and Order.
Under that definition, a ``small business'' is one which has a net
worth not in excess of $6 million with average net income for the two
preceding years not in excess of $2 million. Morris recommends using
the small business definition utilized by the Internal Revenue Service.
The SBA opines that a revenue test remains the best and least
problematic guideline for determining whether a business is small. AMTA
suggests that the better approach for the 800 MHz SMR service would be
to incorporate preferential provisions for existing operators.
120. Several commenters offer other small business definitions. AMI
suggests that small businesses be defined to have 30 channels licensed
or managed and/or less than $540,000 in current system revenues.
Genesee suggests using the U.S. Chamber of Commerce standard for
retail/service companies of less than $5.5 million annually. Genesee
and the SBA believe that the PCS small business definition, with a $40
million maximum would be inappropriate for the 800 MHz SMR service. The
SBA believes that a smaller revenue figure, such as $15 million, would
be more appropriate.
121. Proposal. We seek comment on the appropriate definition of
``small business'' to be applied for purposes of the bidding credits
proposed above. We have stated previously that we would define
eligibility requirements for small businesses on a service-specific
basis, taking into account the capital requirements and other
characteristics of each particular service in establishing the
appropriate threshold. In broadband PCS and regional narrowband PCS, we
defined small businesses based on a $40 million annual revenue
threshold. In the 220 MHz service, we have proposed two small business
definitions: (1) for purposes of bidding on a nationwide or regional
license, small businesses would be defined as entities with $15 million
in average gross revenues for the preceding three years; and (2) for
purposes of bidding on EA licenses, small businesses be would be
defined as entities with $6 million in average gross revenues for the
preceding three years. After considering the record in the 900 MHz
proceeding, we concluded that both $15 million and $3 million small
business definitions were warranted, which would entitle applicants for
MTA licenses to 10 percent and 15 percent bidding credits respectively.
122. In conjunction with our proposal to provide two levels of
bidding credits, we propose to establish two small business
definitions: to obtain the 10 percent bidding credit, an applicant
would be limited to $15 million in average gross revenues for the
previous three years; to obtain the 15 percent credit, the applicant
would be limited to $3 million in gross revenues for the previous three
years. In both cases, we would require the applicant to aggregate the
gross and revenues of its affiliates and investors for the preceding
three years for purposes of determining eligibility. These proposed
thresholds are comparable to what we have adopted in 900 MHz SMR, and
they reflect our tentative view of the capital requirements and
potential barriers to entry in the 800 MHz SMR service. We seek comment
on whether these thresholds, and the proposed bidding credit amounts
associated with them, are sufficient for the lower 80 and General
Category Channels in light of the build-out costs associated with
[[Page 6227]]
constructing an SMR system throughout a market area, or whether
alternative definitions would be more suitable. We also seek comment on
whether our proposed small business definitions are sufficiently
restrictive to protect against businesses receiving bidding credits
which in fact do not need them.
b. Minority- and Women-Owned Businesses. 123. Background. Prior to
the Supreme Court's decision in Adarand Constructors, Inc. v. Pena, we
concluded that in the licensing of broadband and narrowband PCS,
minority and women-owned businesses might have difficulty accessing
sufficient capital to be viable auction participants or service
providers, in the absence of special provisions in our auction rules.
We therefore adopted special provisions for minorities and women in
these services. We further determined that such provisions were
constitutional under the ``intermediate scrutiny'' standard used in
Metro Broadcasting, Inc. v. FCC.
124. In Adarand, however, the Supreme Court ruled that racial
classifications imposed by the federal government are subject to strict
scrutiny. This holding will apply to any proposal to incorporate race-
based measures into our rules; thus, it introduces an additional level
of complexity to implementing Congress' mandate to ensure that
businesses owned by minorities and women are provided ``the opportunity
to participate in the provisions of spectrum-based services.'' We
emphasize that we have not concluded that race or gender-based measures
are unconstitutional or otherwise inappropriate for spectrum auctions
we will hold in the future. At a minimum, however, we believe that
Adarand requires us to build a thorough factual record concerning the
participation of minorities and women in spectrum-based services to
support race- and gender-based measures.
125. Comments. DCL Associates and Dru Jenkinson, et al., the only
commenters addressing this specific issue, propose that the PCS
definitions of minority- and/or female-controlled firms should be
utilized in the 800 MHz SMR service. Dru Jenkinson, et al. further
suggest that there should be no difference in eligibility requirements
for the wide-area and local licenses.
126. Proposal. We propose to adopt special provisions in the lower
80 and General Category competitive bidding rules for small businesses.
We believe that such provisions can be structured in a way that would
increase the likelihood of participation by women- and minority-owned
businesses. In adopting designated entity measures for PCS, for
example, we noted that such targeted provisions might not be necessary
in services that are less capital intensive. We consider 800 MHz SMR to
be significantly less capital-intensive than PCS and some other
wireless services. In addition, we anticipate that our proposal to
license each channel separately on an EA basis will mean lower entry
costs for applicants. We also expect that the vast majority of minority
and women-owned businesses will be able to qualify as small businesses
under any definition we adopt. For example, U.S. Census Data shows that
approximately 99 percent of all women-owned businesses and 99 percent
of all minority-owned businesses generated net receipts of $1 million
or less. Finally, in light of the statute's instruction to ``design and
test multiple alternative methodologies'' we believe that it would be
suitable to use more uniform measures for the lower 80 and General
Category channels, because capital entry requirements are expected to
be comparatively lower than other CMRS services. We seek comment on
this proposal.
127. We also request comment on the possibility that in addition to
small business provisions, separate provisions for women- and minority-
owned entities should be adopted for the lower 80 and General Category
channels. To comply with the Supreme Court's ruling in Adarand, any
race-based classification must be a narrowly tailored measure that
furthers a compelling governmental interest. We also believe that
gender-based provisions, although not addressed in Adarand, should be
subject to the broadest possible comment. We therefore ask that
commenters discuss whether the capital requirements of the 800 MHz SMR
service pose a barrier to entry by minorities and women, and whether
assisting women and minorities to overcome such a barrier, if it
exists, would constitute a compelling government interest. In
particular, we seek comment on the actual costs associated with
acquisition, construction, and operation of an 800 MHz SMR system with
a service area based on a pre-defined geographic area and the
proportion of existing 800 MHz SMR businesses that are owned by women
and minorities. We also seek comment on the analytical framework for
establishing a history of past discrimination in the 800 MHz SMR
industry and urge parties to submit evidence (statistical, documentary,
anecdotal or otherwise) about patterns or actual cases of
discrimination in this and related communications services. Assuming
that a compelling government interest is established, we seek comment
on whether separate provisions for women and minorities are necessary
to further this interest, and whether such provisions can be narrowly
tailored to satisfy the strict scrutiny standard.
c. Reduced Down Payment. 128. Background. In the Competitive
Bidding Second R&O, we noted that reduced upfront payments particularly
may be appropriate for auctions of spectrum specifically set aside for
designated entities as a means of encouraging participation in the
auction, particularly by all eligible designated entities. For
broadband PCS, we reduced the upfront payment requirement for
designated entities in the entrepreneurs--blocks, observing that
requiring full compliance with the upfront payment could discourage
auction participation by designated entities.
129. Comments. Several commenters support offering a reduced
upfront payment option to designated entities. DCL Associates strongly
supports availability of reduced upfront payments for minority- and/or
women-owned businesses. Dru Jenkinson, Inc., et al., on the other hand,
support offering the reduced upfront payment option to all designated
entities. To encourage the participation of designated entities in an
auction for a geographic area licenses, Pittencrief does not oppose a
reduced upfront payment. Southern opines, however, that if the
Commission imposes a higher than usual upfront payment, as other
commenters suggest, then a reduced upfront payment option will not do
much to facilitate participation by designated entities in the auctions
for wide-area licenses.
130. Proposal. We propose to adopt reduced upfront payments for
small businesses for geographic licenses on the lower 80 and General
Category channels. We believe that this special provision will
encourage participation in the auction by eligible designated entities.
We seek comment on this proposal and tentative conclusion.
3. Bidding Credits
131. Background. Bidding credits allow eligible designated entities
to receive a payment discount (or credit) for their winning bid in an
auction. In the Competitive Bidding Second R&O, we determined that
competitive bidding rules applicable to individual services would
specify the entities eligible for bidding credits and the bidding
credit amounts for each particular service. As a result, we have
adopted a variety of bidding credit provisions for small businesses and
other designated entities
[[Page 6228]]
in auctionable services. In the nationwide narrowband PCS auction, for
example, we established a 25 percent bidding credit for minority and
women-controlled businesses, while a 40 percent credit was used in the
regional narrowband PCS auction. In broadband PCS, our pre-Adarand
entrepreneurs' block rules included a 10 percent bidding credit for
small businesses, a 15 percent credit for businesses owned by
minorities or women, and an aggregated 25 percent credit for small
businesses owned by women and/or minorities. In the Multipoint
Distribution Service (MDS), we allowed small businesses a 15 percent
bidding credit. In the 900 MHz SMR service, we adopted a 15 percent
bidding credit for small businesses with gross revenues that are not
more than $3 million for the preceding three years and a 10 percent
bidding credit for small businesses with gross revenues that are more
than $3 million but not more than $15 million for the preceding three
years. Finally, in the 220 MHz service, we proposed a 40 percent small
business bidding credit for nationwide and regional licenses and a 10
percent bidding credit for smaller EA licenses.
132. Comments. Few commenters addressed whether special provisions
should be provided for businesses owned by minorities and/or women in
the 800 MHz SMR auctions. With respect to bidding credits, Morris,
Pittencrief, DCL Associates, Dru Jenkinson, et al. and the SBA support
the Commission's proposal to provide bidding credits for such entities.
DCL Associates, Dru Jenkinson, et al., and the SBA support a forty
percent bidding credit for minority-and women-owned entities for wide-
area licenses. The SBA further supports affording minority- and women-
owned entities a twenty-five percent bidding credit for local SMR
licenses. Other commenters, however, oppose giving such entities any
type of bidding credit. AMI opines that a bidding credit would be
inappropriate, based on the uncertainty of the value of wide-area
licenses at auction. Dial Call opposes bidding credits, contending the
questionable constitutionality of such provisions only would serve to
delay the ultimate resolution of the proceeding.
133. Proposal. We seek comment on the appropriate level of bidding
credit for the lower 80 and General Category channels, in comparison to
the services discussed above. We also seek comment on the possibility
of offering ``tiered'' bidding credits for different classes of small
businesses. We note that small businesses may vary in their ability to
raise capital, depending on their size and gross revenues. By offering
levels of bidding credits which depend on the size of the small
business, we could increase the likelihood that the full range of small
businesses would be able to participate in an auction and potentially
provide service. We therefore propose to establish two levels of
bidding credits: a 10 percent bidding credit for all small businesses,
and a 15 percent credit for small businesses that meet a more
restrictive gross revenue threshold. We believe that tiered bidding
credits can help achieve our statutory objective under Section
309(j)(3)(B), by providing varying sizes of small businesses with a
meaningful opportunity to obtain SMR licenses. We seek comment on this
proposal.
134. We also seek comment on the degree to which the revenues of
affiliates and major investors should be considered in determining
small business eligibility. For example, in determining whether a PCS
applicant qualifies as a small business, we include the gross revenues
of the applicant's affiliates and investors with ownership interests of
twenty-five percent or more in the applicant, but we do not attribute
the gross revenues of investors who hold less than a twenty-five
percent interest in the applicant unless they are members of the
applicant's control group. We seek comment on what attribution standard
should be applied to 800 MHz SMR applicants seeking to qualify as small
businesses. Would a smaller attribution standard be more appropriate?
135. We propose to make the small business bidding credit available
on all lower 80 and General Category Channels that are licensed on a
market-area basis. We recognize that this would be a departure from our
900 MHz SMR rules, in which we offered bidding credits to small
businesses on any available channel block. Our proposal is consistent,
however, with our PCS rules in which bidding credits are available only
on designated channels. We seek comment on this proposal. We also seek
comment on whether there is a reasonable basis for providing credits on
some channels and not others.
4. Installment Payments
136. Background. We previously have indicated that in the future we
would not necessarily limit the availability of installment payments to
small businesses, but would consider offering the installment option
(with varying rates and payment schedules) to other classes of
designated entities.
137. Comments. AMI, CellCall, DCL Associates, Genesee, Pittencrief,
and the SBA support the proposal that small businesses be eligible for
installment payments. AMI opines that the availability of installment
payments may prove useful in facilitating the participation of small
operators in the 800 MHz SMR auctions. In addition, CellCall, DCL
Associates, and Morris advocate that the Commission afford small
businesses reduced upfront payments. Telecellular believes that the
Commission should maximize the opportunities for small businesses by
granting them bidding credits. Telecellular suggests adoption of the
bidding credits provided under the Commission's broadband PCS
designated entity provisions.
138. DCL Associates strongly supports the availability of
installment payments for minority and/or women-owned businesses.
Pittencrief does not object to offering installment payments as a means
to encourage participation of designated entities in the auctions for
wide-area licenses.
139. Proposal. We propose to adopt an installment payment option
for small businesses that successfully bid for lower 80 and General
Category licenses. As we noted in the Competitive Bidding Second R&O,
allowing installment payments reduces the amount of private financing
needed by prospective small business licensees and therefore mitigates
the effect of limited access to capital by small businesses. Under this
proposal, licensees who qualify for installment payments would be
entitled to pay their winning bid amount in quarterly installments over
the ten-year license term, with interest charges to be fixed at the
time of licensing at a rate equal to the rate for ten-year U.S.
Treasury obligations plus 2.5 percent. In addition, we propose to
tailor installment payments to reflect the needs of different size
entities. Under our proposal, small businesses with $3 million or less
in gross revenues would make interest-only payments for the first five
years of the license term, while small businesses with $15 million or
less in gross revenues would make interest-only payments during the
first two years. We believe that this installment payment structure,
which is consistent with our approach in 900 MHz SMR and the upper 200
channels, will enable entities with less immediate access to capital to
increase their chances of obtaining licenses. Timely payment of all
installments would be a condition of the license grant and failure to
make timely payment would be grounds for revocation of the license. We
seek comment on this proposal.
[[Page 6229]]
5. Set-Aside Spectrum
140. Background. In the Competitive Bidding Eighth R&O, we
determined that designation of an entrepreneur's block for the upper
200 channels was not feasible. In the Further Notice, we indicated that
an entrepreneurs' block could be feasible for the lower 80 channels
which we contemplated would be used primarily by smaller SMR operators.
141. Proposal. We tentatively conclude that the lower 80 and the
General Category Channels should be designated as an entrepreneurs'
block. Such a designation would ensure that smaller SMR operators would
have opportunities to maintain competitive and viable systems and also
to pursue wide-area licensing strategies should they desire to do so.
In our broadband PCS rules where we have authorized entrepreneurs'
block licenses, we have required entrepreneurs to comply with financial
caps based on gross revenues and total assets over a certain period of
time. Because the 800 MHz SMR service is less capital-intensive than
PCS, we believe that the entrepreneurs' block financial caps in the 800
MHz SMR service should be set at a lower level than those in broadband
PCS. We seek comment on the feasibility of designating the lower 80 and
General Category channels as an entrepreneurs' block. We also ask
commenters to discuss what would be appropriate financial caps for such
entrepreneurs' block.
6. Unjust Enrichment Provisions
142. Background. In the Competitive Bidding Second R&O, we
indicated that licensees that received bidding credits and installment
payments and also chose to transfer their licenses to entities not
eligible for these benefit, were required to repay the amount of the
bidding credit on a graduated basis. No repayment would be required six
years after the license grant. In addition, the ineligible transferee
would not have the benefit of installment payments, and principal and
accrued interest would come due. For the 900 MHz SMR service, we
adopted unjust enrichment provisions which required reimbursement of
the benefit received by a small business through bidding credits and
installment payments in the event that such small business transferred
its license to an entity not qualifying as a small business. We
previously adopted restrictions on the transfer or assignment of
broadband PCS entrepreneurs' block licenses to ensure that designated
entities do not take advantage of special provisions by immediately
assigning or transferring control of their licenses.
143. Proposal. Permitting an immediate transfer of a discounted
license to an entity that is not a small business could undermine our
basis for offering special provisions to small businesses, but we note
that in services with no entrepreneurs' block, we have limited unjust
enrichment to repayment of bidding credits or installment payments. We
therefore seek comment on whether we should use an approach similar to
that adopted for the 900 MHz SMR service or that adopted for broadband
PCS entrepreneurs' block licenses.
7. Partitioning
144. The Communications Act directs the Commission to ensure that
rural telephone companies have the opportunity to participate in the
provision of spectrum-based services. Rural areas, because of their
more dispersed populations, tend to be less profitable to serve than
more densely populated urban areas. Rural telephone companies, however,
are well positioned because of their existing infrastructure to serve
these areas. In other services, such as broadband PCS and 900 MHz SMR,
we have acknowledged this fact by allowing rural telephone companies to
partition their licenses on a geographic basis, thereby increasing the
likelihood of rapid introduction of service into rural areas. We also
afforded rural telephone companies this opportunity under our rules for
the upper 200 channels of 800 MHz SMR spectrum. We seek comment on
whether we should incorporate similar provisions into our rules for the
lower 80 and General Category channels.
145. If we adopt geographic partitioning for rural telephone
companies, geographic partitioning should be made available to them on
the same basis as in PCS and the upper 200 channels. Such a
partitioning scheme would provide rural telephone companies with the
flexibility to serve areas in which they already provide service, while
the remainder of the service area could be served by other providers.
Under this proposal, rural telephone companies would be permitted to
acquire partitioned SMR licenses in one of two ways: (1) By forming
bidding consortia consisting entirely of rural telephone companies to
participate in auctions, and then partitioning the licenses won among
consortia participants, or (2) by acquiring partitioned paging licenses
from other licensees through private negotiation and agreement either
before or after the auction. We also would require that partitioned
areas conform to established geo-political boundaries, include all
portions of the wireline service area of the rural telephone company
applicant, and be reasonably related to the rural telephone company's
wireline service area. We also propose to use the definition for rural
telephone companies implemented in broadband PCS. Rural telephone
companies would be defined as local exchange carriers having 100,000 or
fewer access lines, including all affiliates. We seek comment on this
proposal. We also seek comment on whether we should extend partitioning
options to entities other than rural telephone companies, as we did in
MDS and as we proposed for the upper 200 channels in this service.
VIII. Procedural Matters
A. Regulatory Flexibility Analysis
With respect to this Second Further Notice, pursuant to the
Regulatory Flexibility Act of 1980, an Initial Regulatory Flexibility
Analysis (IRFA) was incorporated in the Further Notice of Proposed Rule
Making in PR Docket No. 93-144. Written comments on the IRFA were
requested. The Commission's final analysis is as follows
147. Need for and purpose of the action. The rule making proceeding
has implemented Sections 332 and 3(n), respectively, of the
Communications Act of 1934, as amended. The rules adopted herein will
carry out Congress's intent to establish a consistent framework for all
commercial mobile radio services (CMRS).
148. Issues raised in response to the IRFA. No comments were
submitted in response to the IRFA.
149. Significant alternatives considered and rejected. All
significant alternatives have been addressed in the First Report and
Order in PR Docket No 93-144, the Third Report and Order in GN Docket
No. 93-252, and the Eighth Report and Order in PP Docket No. 93-253.
B. Paperwork Reduction Act
150. Summary: The Federal Communications Commission, as part of its
continuing effort to reduce paperwork burden, invites the general
public and other Federal agencies to take this opportunity to comment
on the following proposed and/or continuing information collections, as
required by the Paperwork Reduction Act of 1995, Public Law 104-13.
Comments are requested concerning (a) Whether the proposed collection
of information is necessary for the proper performance of the functions
of the Commission,
[[Page 6230]]
including whether the information shall have practical utility; (b) the
accuracy of the Commission's burden estimates; (c) ways to enhance the
quality, utility, and clarity of the information collected; and (d)
ways to minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
DATES: Written comments should be submitted on or before April 16,
1996. If you anticipate that you will be submitting comments but find
it difficult to do so within the period of time allowed by this notice,
you should advise the contact listed below as soon as possible.
ADDRESSES: Direct all comments to Dorothy Conway, Federal
Communications Commission, Room 234, 1919 M St., NW., Washington, DC
20554, or via Internet to [email protected]; and Timothy Fain, OMB Desk
Officer, 10236 NEOB, 725 17th St., NW., Washington, DC 20503, or via
Internet to [email protected].
FOR FURTHER INFORMATION CONTACT: Dorothy Conway, (202) 418-0217, or via
Internet at [email protected].
SUPPLEMENTARY INFORMATION:
Title: Amendment to the Commission's Rules to Facilitate Future
Development of SMR Systems in the 800 MHz Frequency Band.
Type of Review: Revised collection.
Respondents: Individuals or households; Business or other for-
profit; Not-for-profit institutions; State, Local or Tribal Government.
Number of Respondents: 12,195.
Estimated Time Per Response: Approximately 1 to 5 hours.
Total Annual Burden: Approximately 17,254 hours.
Total Annual Cost: $6,468,260 this includes the costs for filing
the information electronically or mailing submissions and hiring
consultants that may be necessary to respond the requests.
Needs and Uses: The information will be used by the Commission for
the following purposes: (a) To determine if the grant or retention of
an extended implementation schedule is warranted; (b) to update the
Commission's licensing database and thereby facilitate the successful
coexistence of EA licensees and incumbents in the upper 10 MHz block of
800 MHz SMR spectrum; (c) to ensure that incumbents are timely notified
of possible relocation thus allowing relocation to occur in an orderly,
efficient, and expedient manner; and (d) to determine whether an
applicant is eligible for special provisions for small businesses
provided for applicants in the 800 MHz SMR service.
C. Ex Parte Rules--Non-Restricted Proceeding.
151. This is a non-restricted notice and comment rulemaking
proceeding. Ex parte presentations are permitted except during the
Sunshine Agenda period, provided they are disclosed as provided in the
Commission's rules, 47 CFR Secs. 1.1202, 1.1203, 1.1206(a).
D. Authority.
152. The legal authority for this proposed information collection
includes 47 U.S.C. Sections 154(i), 303(c), 303(f), 303(g), 303(r),
309(j), and 332, as amended. The information collection would not
affect any FCC forms. The proposed collection would increase minimally
the burden on 800 MHz SMR service applicants.
List of Subjects in 47 CFR Part 90
Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-3511 Filed 2-13-96; 5:07 pm]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-3384 Disqualification of a Clinical Investigator
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6177-6178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3384]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 61, No. 33 / Friday, February 16, 1996 /
Proposed Rules
[[Page 6177]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 312
[Docket No. 95N-0138]
Disqualification of a Clinical Investigator
AGENCY: Food and Drug Administration, HHS.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is proposing to amend
the investigational new drug regulation that provides for
disqualification of clinical investigators for submitting false
information. It has come to the agency's attention that, as written,
the regulation may be unclear. The proposed amendment would clarify the
agency's authority to reach sponsor-investigators under the existing
regulation.
DATES: Written comments by May 16, 1996. FDA proposes that any final
rule based on this proposal become effective 60 days after its date of
publication in the Federal Register.
ADDRESSES: Submit written comments to the Dockets Management Branch
(HFA-305), Food and Drug Administration, rm. 1-23, 12420 Parklawn Dr.,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Howard P. Muller, Center for Drug
Evaluation and Research (HFD-7), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-594-1046.
SUPPLEMENTARY INFORMATION:
I. Introduction
FDA is proposing to amend the regulations governing
disqualification of clinical investigators to clarify that existing
Sec. 312.70 (21 CFR 312.70) reaches sponsor-investigators. Although the
proposed amendment would not signify a change in policy, it has come to
the agency's attention that, as written, the regulation may be unclear.
Generally, clinical investigators who conduct clinical trials to
investigate new drugs submit their data to individual or corporate
sponsors. Part 312 (21 CFR part 312) requires sponsors to monitor the
progress of clinical investigations and to submit clinical
investigation reports to the agency. Thus, data generated by the
clinical investigator become the subject of reports that are submitted
to the agency.
Sponsor-investigators both directly conduct investigations and
report data to the agency. Section 312.3(b) defines ``sponsor-
investigator'' as ``an individual who both initiates and conducts an
investigation, and under whose immediate direction the investigational
drug is administered or dispensed.'' The definition specifically states
that ``[t]he requirements applicable to a sponsor-investigator under
this part include both those applicable to an investigator and a
sponsor.'' Therefore, existing Sec. 312.70 covers the disqualification
of sponsor-investigators. However, the language of Sec. 312.70, as it
applies to sponsor-investigators, may be confusing.
Under existing Sec. 312.70(b), the agency may disqualify an
investigator who has ``deliberately or repeatedly submitted false
information to the sponsor in any required report.'' However, unlike
investigators, sponsor-investigators submit information directly to FDA
and not to a separate sponsor. Although FDA believes that Sec. 312.70
encompasses the disqualification of sponsor-investigators, because a
sponsor-investigator does not submit information to a sponsor, the
existing regulatory language may be ambiguous. Therefore, the agency is
proposing to amend Sec. 312.70 for clarity.
The proposed rule, if finalized, would clarify that the agency can
disqualify clinical investigators and sponsor-investigators for
submitting to sponsors, or to FDA, false information in any required
report.
II. Environmental Impact
The agency has determined under 21 CFR 25.24(a)(8) that this action
is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
III. Analysis of Impacts
FDA has examined the impacts of the proposed rule under Executive
Order 12866 and the Regulatory Flexibility Act (Pub. L. 96-354).
Executive Order 12866 directs agencies to assess all costs and benefits
of available regulatory alternatives and, when regulation is necessary,
to select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity). The agency believes that
this proposed rule is consistent with the regulatory philosophy and
principles identified in the Executive Order. In addition, the proposed
rule is not a significant regulatory action as defined by the Executive
Order and so is not subject to review under the Executive Order.
The Regulatory Flexibility Act requires agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. Because this proposed regulation does not impose
paperwork or recordkeeping burdens, the agency certifies that the
proposed rule will not have a significant economic impact on a
substantial number of small entities. Therefore, under the Regulatory
Flexibility Act, no further analysis is required.
IV. Effective Date
FDA proposes that any final rule based on this proposal become
effective 60 days after its date of publication in the Federal
Register.
V. Request for Comments
Interested persons may, on or before May 16, 1996, submit to the
Dockets Management Branch (address above) written comments regarding
this proposal. Two copies of any comments are to be submitted, except
that individuals may submit one copy. Comments are to be identified
with the docket number found in brackets in the heading of this
document. Received comments may be seen in the office above between 9
a.m. and 4 p.m., Monday through Friday.
List of Subjects in 21 CFR Part 312
Drugs, Exports, Imports, Investigations, Labeling, Medical
research, Reporting and recordkeeping requirements, Safety.
[[Page 6178]]
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
the authority delegated to the Commissioner of Food and Drugs, it is
proposed that 21 CFR part 312 be amended as follows:
PART 312--INVESTIGATIONAL NEW DRUG APPLICATION
1. The authority citation for 21 CFR part 312 continues to read as
follows:
Authority: Secs. 201, 301, 501, 502, 503, 505, 506, 507, 701 of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 331, 351,
352, 353, 355, 356, 357, 371); sec. 351 of the Public Health Service
Act (42 U.S.C. 262).
2. Section 312.70 is amended by revising the first sentences of
paragraphs (a) and (b) to read as follows:
Sec. 312.70 Disqualification of a clinical investigator.
(a) If FDA has information indicating that an investigator
(including a sponsor-investigator) has repeatedly or deliberately
failed to comply with the requirements of this part, part 50, or part
56 of this chapter, or has submitted to FDA or to the sponsor false
information in any required report, the Center for Drug Evaluation and
Research or the Center for Biologics Evaluation and Research will
furnish the investigator written notice of the matter complained of and
offer the investigator an opportunity to explain the matter in writing,
or, at the option of the investigator, in an informal conference. * * *
(b) After evaluating all available information, including any
explanation presented by the investigator, if the Commissioner
determines that the investigator has repeatedly or deliberately failed
to comply with the requirements of this part, part 50, or part 56 of
this chapter, or has deliberately or repeatedly submitted false
information to FDA or to the sponsor in any required report, the
Commissioner will notify the investigator and the sponsor of any
investigation in which the investigator has been named as a participant
that the investigator is not entitled to receive investigational drugs.
* * *
* * * * *
Dated: February 9, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-3384 Filed 2-15-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-3127 Cable Home Wiring
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6210-6212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3127]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MM Docket No. 92-260; FCC 95-503]
Cable Home Wiring
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Further Notice of Proposed Rulemaking (``FNPRM'') requests
comment on wiring issues concerning loop-through wiring and the right
of persons other than the subscriber to purchase cable home wiring. The
FNPRM will assist the Commission in devising additional regulations in
this area.
DATES: Written comments by the public on the proposed and/or modified
information collections are due March 18, 1996. Interested parties may
file comments on or before March 18, 1996 and reply comments on or
before April 17, 1996. Written comments must be submitted by OMB on the
proposed and/or modified information collections on or before April 16,
1996.
ADDRESSES: In addition to filing comments with the Secretary, a copy of
any comments on the information collections contained herein should be
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, N.W., Washington, DC 20554, or via the Internet to
[email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB,
725--17th Street, N.W., Washington, D.C. 20503 or via the Internet to
[email protected].
FOR FURTHER INFORMATION CONTACT: Lynn Crakes or Rick Chessen, Cable
Services Bureau, (202) 416-0800. For additional information concerning
the information collections contained in this Order and FNPRM contact
Dorothy Conway at 202-418-0217, or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION:
This is a synopsis of the Commission's Further Notice of Proposed
Rulemaking in MM Docket No. 92-260, FCC No. 95-503, adopted December
15, 1995 and released January 26, 1996.
I. Further Notice of Proposed Rulemaking
A. Multiple Dwelling Unit Buildings with Loop-Through Wiring
1. We solicit comment on Liberty's request that the Commission
require cable operators to allow a building owner to purchase loop-
through wiring in the limited situation where all subscribers in a
multiple dwelling unit building want to switch to a new service
provider. We ask whether we should apply the same rules regarding
compensation (i.e., wiring may be purchased at the per-foot replacement
cost) and technical standards to loop-through wiring that we now apply
to non-loop-through wiring. We solicit comment on the appropriate
demarcation point for this limited application of the home wiring
rules. We note, however, that we are concerned with allowing the
multiple dwelling unit building owner to control the wiring since such
control could arguably supersede subsequent subscribers' wishes. We
therefore solicit comment on how to apportion control of a loop-through
wiring system, including how to assure that subscribers have a choice
of multichannel video programming service providers. We
[[Page 6211]]
further solicit comment on whether we should prohibit future
installations of loop-through wiring configurations, and whether we
have the statutory authority to do so.
B. Others' Rights to Cable Home Wiring
2. We solicit comment on several issues raised in this proceeding
regarding the rights of persons other than the subscriber or the cable
operator to cable home wiring. For instance, it has been asserted that
the Commission's cable home wiring rules do not apply when the owner of
a multiple dwelling unit building terminates cable service for the
entire building in favor of an alternative multichannel video
programming service provider. According to the record, at least one
cable operator has contended that no ``voluntary termination by the
subscriber,'' as provided in Section 76.802 of our rules, has occurred
when it is the building owner or condominium association that
terminates the service, or at least that the subscriber has not
voluntarily terminated the cable service. In order to promote the goals
of Section 16(d) and our rules thereunder, it may be appropriate for
the subscriber (where there is a non-loop-through wire configuration)
or the building owner (where there is a loop-through wire
configuration) to be given the opportunity to purchase the cable home
wiring under these circumstances. We request comment on this matter. In
addition, we seek comment on whether this right of a building owner
with a loop-through system should only apply if all of the individual
subscribers want to terminate service and switch to a new video service
provider, as described in Section III.A. above.
3. In addition, we ask for comment on the disposition of the cable
home wiring in the event that a subscriber terminates cable service,
elects not to purchase the wire and vacates the premises within the
time period the operator has to remove the home wiring. Apparently some
cable operators believe that our rule providing that the cable operator
must remove the wire within 30 days (now seven business days) or make
no subsequent attempt to remove it or to restrict its use does not
apply if the subscriber vacates the premises before the 30-day (now
seven-business-day) period elapses. We believe that, as long as the
cable operator has been allowed access to the premises to remove its
wiring if it so wishes, whether the subscriber vacates the premises has
no bearing on the application of our rules, and that the cable operator
must therefore remove the wire within seven business days of the
subscriber's termination of service, or make no subsequent attempt to
remove it or to restrict its use, regardless of who subsequently
resides in the premises. We request comment on this matter.
Furthermore, we seek comment on whether, when the subscriber
voluntarily terminating cable service does not own the premises, the
premises owner should have the right to purchase the cable home wiring
if and only if the subscriber elects not to purchase the wire.
II. Initial Regulatory Flexibility Act Analysis for the Further
Notice of Proposed Rulemaking
4. Pursuant to Section 603 of the Regulatory Flexibility Act, the
Commission has prepared the following initial regulatory flexibility
analysis (``IRFA'') of the expected impact of these proposed policies
and rules on small entities. Written public comments are requested on
the IRFA. These comments must be filed in accordance with the same
filing deadlines as comments on the rest of the FNPRM, but they must
have a separate and distinct heading designating them as responses to
the regulatory flexibility analysis. The Secretary shall cause a copy
of the FNPRM, including the IRFA, to be sent to the Chief Counsel for
Advocacy of the Small Business Administration in accordance with
Section 603(a) of the Regulatory Flexibility Act, Pub. L. No. 96-354,
94 Stat. 1164, 5 U.S.C. Sec. 601 et seq. (1981).
5. Reason for Action. Section 16(d) of the Cable Television
Consumer Protection and Competition Act of 1992 requires the Commission
to prescribe rules and regulations regarding the disposition of cable
wiring within the subscriber's premises after the subscriber terminates
service. This FNPRM proposes to allow the multiple dwelling unit
building owner to purchase the loop-through cable wiring in the
situation where all subscribers on a loop in a multiple dwelling unit
building want to simultaneously switch to the same alternative
multichannel video programming service provider. This FNPRM also
proposes: (a) to require that the subscriber (where there is a non-
loop-through wire configuration) or the building owner (where there is
a loop-through wire configuration) be provided with the opportunity to
purchase the cable home wiring when the owner of a multiple dwelling
unit building terminates cable service for the entire building in favor
of an alternative multichannel video programming service provider; (b)
to clarify that, as long as the cable operator has been allowed access
to the premises to remove its wiring if it so wishes, the cable
operator must remove the wire within seven business days of the
subscriber's termination of service, or make no subsequent attempt to
remove it or to restrict its use, regardless of when the subscriber
vacates the premises and who subsequently resides in the premises; and
(c) when the subscriber voluntarily terminating cable service does not
own the premises, to give the premises owner the right to purchase the
cable home wiring, if and only if the subscriber elects not to purchase
the wire.
6. Objectives. To propose rules which implement Section 16(d) of
the 1992 Cable Act and promote its goals of protecting subscribers from
unnecessary disruption and expense caused by the removal of home wiring
and to allow subscribers to use the wiring for an alternative
multichannel video programming service provider.
7. Legal Basis. Action as proposed for this rulemaking is contained
in Sections 1, 4(i), 4(j) and 624(i) of the Communications Act of 1934,
as amended, 47 U.S.C. Sec. 151, 154(i), 154(j) and 544(i).
8. Description, Potential Impact and Number of Small Entities
Affected. The proposals, if adopted, will not have a significant effect
on a substantial number of small entities.
9. Reporting, Recordkeeping and Other Compliance Requirements.
None.
10. Federal Rules which Overlap, Duplicate or Conflict with these
Rules. None.
11. Any Significant Alternatives Minimizing Impact on Small
Entities and Consistent with Stated Objectives. None.
III. Ordering Clauses
12. It is ordered that, pursuant to Sections 4(i), 4(j) and 624(i)
of the Communications Act of 1934, as amended, 47 U.S.C. Secs. 154(i),
154(j) and 544(i), notice is hereby given of proposed amendments to
Part 76, in accordance with the proposals, discussions, and statement
of issues in this Further Notice of Proposed Rulemaking, and that
comment is sought regarding such proposals, discussion, and statement
of issues. Pursuant to applicable procedures set forth in Sections
1.415 and 1.419 of the Commission's Rules, 47 C.F.R. Secs. 1.415 and
1.419, interested parties may file comments on or before March 18, 1996
and reply comments on or before April 17, 1996. To file formally in
this proceeding, you must file an original plus four copies of all
comments, reply comments, and supporting comments. If
[[Page 6212]]
you want each Commissioner to receive a personal copy of your comments
and reply comments, you must file an original plus nine copies. You
should send comments and reply comments to Office of the Secretary,
Federal Communications Commission, 1919 M Street, N.W. Washington, D.C.
20554. Comments and reply comments will be available for public
inspection during regular business hours in the FCC Reference Center,
Room 239, Federal Communications Commission, 1919 M Street N.W.,
Washington D.C. 20554.
13. It is further ordered that the Secretary shall send a copy of
this Further Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration in accordance with paragraph 603(a)
of the Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5
U.S.C. 601 et seq. (1981).
List of Subjects in 47 CFR Part 76
Cable television.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-3127 Filed 2-15-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-2584 Approval and Promulgation of Implementation Plans; South Carolina: Approval of Revisions to the South Carolina State Implementation Plan
[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6178-6179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2584]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[SC-28-1-7164b; FRL-5316-8]
Approval and Promulgation of Implementation Plans; South
Carolina: Approval of Revisions to the South Carolina State
Implementation Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On March 3, 1995, the State of South Carolina, through the
South Carolina Department of Environment, Health and Natural Resources,
submitted revisions to the South Carolina State Implementation Plan
(SIP). These revisions involve R.61-62.5 Standard Number 7. Prevention
of Significant Deterioration. In the final rules section of this
Federal Register, the EPA is approving the State's SIP revision as a
direct final rule without prior proposal because the EPA views this as
a noncontroversial revision amendment and anticipates no adverse
comments. A detailed rationale for the approval is set forth in the
direct final rule. If no adverse comments are received in response to
that direct final
[[Page 6179]]
rule, no further activity is contemplated in relation to this proposed
rule. If EPA receives adverse comments, the direct final rule will be
withdrawn and all public comments received will be addressed in a
subsequent final based on this proposed rule. The EPA will not
institute a second comment period on this document. Any parties
interested in commenting on this document should do so at this time.
DATES: To be considered, comments must be received by March 18, 1996.
ADDRESSES: Written comments on this action should be addressed to Mr.
Randy Terry at the EPA Regional Office listed below.
Copies of the documents relative to this action are available for
public inspection during normal business hours at the following
locations. The interested persons wanting to examine these documents
should make an appointment with the appropriate office at least 24
hours before the visiting day.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 443, 401 M Street SW., Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street NE., Atlanta, Georgia 30365.
South Carolina Department of Environment, Health and Natural Resources,
2600 Bull Street, Columbia, South Carolina 29201.
FOR FURTHER INFORMATION CONTACT: Mr. Randy Terry, Regulatory Planning
and Development Section, Air Programs Branch, Air, Pesticides, and
Toxics Management Division, Region 4 Environmental Protection Agency,
345 Courtland Street, Atlanta, Georgia 30365. The telephone number is
404/347-3555, ext. 4212.
SUPPLEMENTARY INFORMATION: For additional information see the direct
final rule which is published in the rules section of this Federal
Register.
Dated: September 19, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 96-2584 Filed 2-15-96; 8:45 am]
BILLING CODE 6560-50-P
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