2 GHz Suspension

AGENCY:

Federal Communications Commission.

ACTION:

Final rule; suspension order.

SUMMARY:

This document suspends for one year until September 6, 2003, the expiration date for the initial two-year mandatory negotiation period for Phase I of the 2 GHz band relocation plan between Mobile-Satellite Service and Broadcast Auxiliary Service. The provisions of this initial Phase 1 mandatory negotiation period will remain in effect for the duration of this suspension. The suspension period may be subsequently lengthened or shortened by the Commission as circumstances warrant.

DATES:

Effective August 2, 2002.

FOR FURTHER INFORMATION CONTACT:

Gary Thayer, Office of Engineering and Technology, (202) 418-2290.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Order, ET Docket No. 95-18, FCC 02-221, adopted July 31, 2002, and released August 2, 2002. The full text of this document is available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW, Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

Summary of the Order

1. This Order immediately suspends for one year, until September 6, 2003, the expiration date for the initial two-year mandatory negotiation period for Phase 1 of the 2 GHz band relocation plan between Mobile-Satellite Service (MSS) and Broadcast Auxiliary Service (BAS), adopted in the Second Report and Order and Second Memorandum Opinion and Order (Second Report and Order), 65 FR 48174, August 7, 2000. The provisions of the initial Phase 1 mandatory negotiation period will remain in effect for the duration of this suspension. We retain the option to shorten or lengthen this suspension as circumstances warrant.

2. In the Memorandum Opinion and Order and Third Notice of Proposed Rule Making and Order, 63 FR 69606, December 17, 1998, we allocated 70 megahertz of spectrum for MSS in the 2 GHz band. In the Second Report and Order, we adopted relocation procedures for incumbent BAS facilities at 1990-2025 MHz and incumbent Fixed Service (FS) facilities at 2165-2200 MHz. This relocation plan was modeled after the Commission's earlier Emerging Technologies policies in ET Docket No. 92-9, and requires MSS entrants to provide comparable facilities to BAS and FS incumbents that are relocated prior to the sunset dates specified in the Second Report and Order. The BAS relocation plan calls for a two-phase relocation, each phase beginning with a two-year mandatory negotiation period that will clear the lowest BAS channel then in use in the top 30 Nielsen Designated Market Areas. In the event that an agreement for relocation is not reached by the end of a particular negotiation period, the MSS licensee(s) have the option of relocating BAS incumbents involuntarily. The initial, two-year mandatory negotiation period for Phase 1 commenced upon Federal Register publication of the Second Report and Order on September 6, 2000, and is due to expire on September 6, 2002. As stated in the Second Report and Order, it remains a primary goal to ensure that the transition causes the minimum possible disruption to BAS operations.

3. Subsequent to adoption of the Second Report and Order, we initiated several major rule makings that propose, or seek comment on, alternative uses and new allocations in portions of the 2 GHz band now allocated for MSS. For example, in IB Docket No. 01-185, 66 FR 47621, September 13, 2001, we are seeking comment on proposals that would allow MSS licensees to provide ancillary terrestrial component (“ATC”) operations in the 2 GHz MSS band. In ET Docket No. 00-258, 66 FR 47618, September 13, 2001, we are seeking comment on proposals to support the introduction of new advanced wireless services, including Third Generation (“3-G”) wireless systems in spectrum below 3 GHz, including some of the MSS spectrum in the 2 GHz band. In WT Docket No. 02-55, 67 FR 16351, April 5, 2002, we are exploring various options to improve public safety communications in the 800 MHz band that could include relocating incumbent 800 MHz services to the current MSS allocation in the 2 GHz band. In each of these dockets, we have sought comment on what changes might be needed to the BAS relocation procedures adopted in the Second Report and Order should the proposals affecting the 2 GHz MSS bands be adopted.

4. In the Second Report and Order, we concluded that the adopted negotiation period structure would serve our twin goals of maintaining the integrity of the BAS system operation while providing for early access to the spectrum for MSS providers. We found that the BAS and MSS industries had been aware of this proceeding and closely followed its progress since 1995. In addition, we noted that the spectrum became available for MSS on January 1, 2000, and that ICO had represented that it expected to be ready to begin providing service in 2002. Based upon these factors, among others, we decided that the initial BAS negotiation period should commence immediately upon Federal Register publication of the Second Report and Order, and that a two-year duration for the initial mandatory negotiation period was appropriate.

5. As noted above, subsequent to our establishing the 2 GHz MSS band relocation plans, we specifically sought comment in the MSS Flexibility, Advanced Wireless/3-G, and 800 MHz Public Safety rule making notices on whether to revise the Second Report and Order relocation plan based on the outcome of the proposals in those rulemakings. Because it does not appear that we will be able to act on the respective issues prior to the Phase 1 BAS mandatory negotiation deadline of September 6, 2002, we find it to be in the public interest to continue the negotiating period until we are able to fully address these relocation issues based on the extensive record that these other proceedings have generated. We further find that it is prudent and in the public interest to suspend the expiration of the initial negotiation period under the present circumstances, rather than prejudice our consideration of the relocation issues presented in the pending proceedings. Therefore, we find that the expiration date for the initial Phase 1, two-year mandatory BAS negotiation period should be suspended, effective immediately upon release of this order, for one year until September 6, 2003. We retain the option, however, to shorten or lengthen this suspension as circumstances warrant while we consider further action on this matter in pending proceedings. We also emphasize that the action taken herein is an interim measure and does not prejudice further action in other proceedings. For the duration of this suspension, all other aspects of the initial mandatory BAS negotiation period will continue in force and, as a consequence, BAS incumbents will not be subject to involuntary relocation by MSS licensees in the interim. We will require MSS and BAS licensees to comply with all negotiation requirements and procedures adopted in the Second Report and Order that are applicable to the initial BAS mandatory negotiation period. Because we are not suspending or modifying any other aspect of the BAS or FS relocation plan, MSS and FS licensees in the 2165-2200 MHz band remain free to enter into relocation negotiations under the provisions adopted in the Second Report and Order.

6. On October 22, 2001, the National Association of Broadcasters (NAB) and the Association for Maximum Service Television, Inc. (MSTV) filed a pleading styled “Motion for Stay of Mandatory Negotiation Period.” The Motion was supported in separate pleadings by the Society of Broadcast Engineers and by Cox Broadcasting, Inc. (jointly with Cosmos Broadcasting Corporation and Media General, Inc.), and was opposed by New ICO Global Communications Ltd., and the Boeing Company.

While NAB's pleading appears to seek a stay of the entire negotiation process delineated in the Second Report and Order, a subsequent ex parte submission by NAB appears to indicate that NAB is not opposed to the requirement for negotiation. Rather, NAB effectively requests an indefinite suspension of the timetables in the negotiation/relocation process. To the extent that NAB's motion would challenge the imposition of the negotiation/relocation process delineated in the Second Report and Order, it must be dismissed as a late-filed Petition for Reconsideration. To the extent that it requests a suspension of the timetables in the negotiation/relocation process, we dismiss it as moot in light of our action. We note that opponents' substantive arguments in opposing NAB's Motion are considered and disposed of in our determination.

Ordering Clauses

7. Authority for issuance of this Order is contained in sections 4(i), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), and 303(r), and section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d).

8. Pursuant to sections 4(i), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), and 303(r), and section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d), the expiration date of September 6, 2002, for the initial two-year mandatory BAS negotiation period for Phase 1 set forth in the Second Report and Order in ET Docket No. 95-18 is hereby suspended, effective August 2, 2002, for one year until September 6, 2003.

9. Pursuant to sections 4(i), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), and 303(r), the Motion for Stay of Mandatory Negotiation Period filed by the National Association of Broadcasters (NAB) and the Association for Maximum Service Television, Inc. (MSTV), is hereby dismissed.

List of Subjects in 47 CFR Parts 74 and 78

• Communications equipment
• Radio

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 74 and 78 to read as follows:

PART 74—[AMENDED]

1. The authority citation for part 74 continues to read as follows:

Authority: 47 U.S.C. 154, 303, 307, and 554.

2. Section 74.690 is amended by adding the following note to paragraph (e):

PART 78—[AMENDED]

3. The authority citation for part 78 continues to read as follows:

Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085, 47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309.

4. Section 78.40 is amended by adding the following note to paragraph (f):