Applications and Licensing of Low Power Operations in the Private Land Mobile Radio 450-470 MHz Band

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Federal Communications Commission (FCC) divides low power channels in the 450-470 MHz band into five groups. Each group of frequencies is intended for a different market. Collectively, they address the diversity of low power operations in the 450-470 MHz band. The FCC believes that the plan adopted will accommodate a broad range of potential low power users while maximizing efficient and flexible use of the band.

DATES:

Effective May 21, 2003.

FOR FURTHER INFORMATION CONTACT:

Brian Marenco, Electronics Engineer, bmarenco@fcc.gov, or Genevieve Augustin, Esquire, gaugusti@fcc.gov, Policy and Rules Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, (202) 418-0680.

SUPPLEMENTARY INFORMATION:

This is a summary of the FCC's Report and Order, FCC 03-35, adopted on February 14, 2003, and released on March 11, 2003. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the FCC's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365 or at bmillin@fcc.gov.

1. In this Report and Order, the FCC:

• Designates forty-nine 12.5 kHz 450-470 MHz Industrial/Business channel pairs and one unpaired frequency for low power coordinated use. Thirty-nine of the channel pairs and the unpaired frequency will be available for full power at least 50 miles outside of the top 100 urban areas. These channels will be referred to as “Group A.”
• Raises power limits for base/fixed operations on the Group A channels to 20 watts effective radiated power.
• Designates ten 12.5 kHz 450-470 MHz channel pairs for low power non-voice coordinated use nationwide, with voice operations allowed on a secondary basis. These channels will be referred to as “Group B.”
• Designates twenty-one 12.5 kHz 450-470 MHz channel pairs and four unpaired frequencies for low power non-coordinated use nationwide. These channels will be referred to as “Group C.” Although the majority of these channels are immediately available, ten Group C frequencies will become available only after completion of the medical telemetry migration deadline.
• Converts power limits for mobile operations on the Group A, B and C frequencies to 6 watts effective radiated power.
• Designates five 12.5 kHz 450-470 MHz channel pairs for low power coordinated use, reserved for central station alarm operations, as under current rules. These channels will be referred to as “Group D.”
• Designates fourteen 12.5 kHz channels pairs for low power use in the Public Safety Pool. These channels will be referred to as the “Public Safety Group.”
• “Grandfathers” high power operations currently licensed on the low power channels.

2. The FCC believes that the plan it adopts will accommodate a broad range of potential low power users while maximizing efficient and flexible use of the band.

Procedural Matters

A. Regulatory Flexibility Act Analyses

3. As required by Section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, the FCC has prepared a Final Regulatory Flexibility Analysis (FRFA) of the expected impact on small entities of the rule changes implemented in this document. The FRFA is set forth further.

B. Paperwork Reduction Act of 1995 Analysis

4. The actions taken in the Report and Order have been analyzed with respect to the Paperwork Reduction Act of 1995, Public Law Number 104-13, and found to impose no new or modified recordkeeping requirements or burdens on the public.

Final Regulatory Flexibility Analysis

5. As required by the Regulatory Flexibility Act (RFA) of 1980, as amended, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM. The FCC sought written public comment on the proposals in the Notice of Proposed Rule Making (NPRM), including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of the Final Rules

6. The rule changes implemented by this decision are needed in order to facilitate the viability of important low power operations in the 450-470 MHz band. Previously, low power operators were licensed on channels that were 12.5 kHz removed from regularly assignable channels in this band (“12.5 kHz offset channels”). These offset channels, however, were reclassified by the FCC for high power operation. Because of the continuing need for low power channels, the FCC believes that the rule changes contained in its decision are in the public interest.

7. The FCC's objective, the implementation of a low power plan that would suit the needs of low power users, was realized in the following manner. The FCC tasked the private land mobile radio (PLMR) frequency coordinators with developing a plan for low power operations, through industry consensus, on what was formerly known as the 450-470 MHz low power offset channels. On June 4, 1997, the Land Mobile Communications Council (LMCC) filed the requested plan (Consensus Plan).

Because the LMCC's Consensus Plan required changes to the FCC's Rules, on September 11, 2000, the LMCC filed with the FCC a Petition for Rule Making seeking the appropriate amendments. On July 24, 2001, the FCC released a Notice of Proposed Rule Making, proposing amendments to Part 90 of its rules in order to effectuate the changes suggested in the Consensus Plan. The resulting Report and Order implements many of the proposed changes. Among the major rules adopted are: designation of forty-nine 12.5 kHz 450-470 MHz Industrial/Business channel pairs and one unpaired frequency for low power coordinated use, of which 39 channel pairs and one unpaired frequency will be available for full power at least 50 miles outside of the top 100 urban areas; raising of power limits for base/fixed operations on the Group A channels to 20 watts effective radiated power; designation of ten 12.5 kHz 450-470 MHz channel pairs for low power non-voice coordinated use nationwide, with voice operations allowed on a secondary basis; designation of twenty-five 12.5 kHz 450-470 MHz channel pairs for low power non-coordinated use nationwide; conversion of power limits for mobile operations on frequencies in the Public Safety Group and Industrial/Business Groups A, B and C, to 6 watts effective radiated power; designation of five 12.5 kHz 450-470 MHz channel pairs for low power, coordinated use (primarily central station alarm); designation of fourteen 12.5 kHz channels pairs for low power use in the Public Safety Pool; and the grandfathering of high power operations currently licensed on the low power channels.

B. Legal Basis

8. Authority for the amendments included in the Report and Order is contained in Sections 4(i), 303(f), 303(r), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 4(i), 303(f), 303(r), and 332.

C. Description and Estimate of the Number of Small Entities to Which the Final Rules Will Apply

9. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

10. Governmental Entities. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, the FCC estimates that 81,600 (ninety-one percent) are small entities. Below, the FCC further describes and estimates the number of small entity licensees and regulatees that may be affected by the rule changes adopted herein.

11. Public Safety Radio Services. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. The SBA rules contain a definition for small radiotelephone (wireless) companies, which encompasses business entities engaged in radiotelephone communications employing no more that 1,500 persons. There are a total of approximately 127,540 licensees within these services. With respect to local governments, in particular, since many governmental entities as well as private businesses comprise the licensees for these services, the FCC includes under public safety services the number of government entities afflicted.

12. PLMR Licensees. Private land mobile radio systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the FCC has not developed a definition of small entities specifically applicable to PLMR users, nor has the SBA developed any such definition. The SBA rules do, however, contain a definition for small radiotelephone (wireless) companies. Included in this definition are business entities engaged in radiotelephone communications employing no more that 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms of a total of 1,178 such firms which operated during 1992 had 1,500 or more employees. For the purpose of determining whether a licensee is a small business as defined by the SBA, each licensee would need to be evaluated within its own business area. The FCC's fiscal year 1994 annual report indicates that, at the end of fiscal year 1994, there were 1,101,711 licensees operating 12,882,623 transmitters in the PLMR bands below 512 MHz.

13. Wireless Communications Equipment Manufacturers. The FCC anticipates that manufacturers of wireless radio equipment will be affected by our decisions in this proceeding. According to the SBA's regulations, radio and television broadcasting and communications equipment manufacturers must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would therefore be classified as small entities.

D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

14. No new reporting, recordkeeping, or other compliance requirements would be imposed on applicants or licensees as a result of the rules adopted in this proceeding.

E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

15. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule or any part thereof, for such small entities.

16. Regarding FCC rule changes increasing the power limits and antenna height for low power users operating on the 49 channel pairs and one unpaired frequency in Group A, although increasing the power and antenna height limits for low power users on these channels could decrease the number of operators possible in a given area, the FCC believes that the need, as demonstrated in the Low Power Plan, for higher power and greater antenna height on these channels, outweighs the potential for reduction of the number of licensees. An alternative to this amendment would have been to maintain the current power restriction of 2 watts output power and 7 meters antenna height, or impose power limitations less than 20 watts for base stations and 5 watts for mobile/portable stations and less than 23 meters antenna height above ground level. These alternatives, however, would not address the need, especially in hostile radio environments, for more than 2 watts output power and/or antenna heights of more than 7 meters. Moreover, since many operators in hostile radio environments are smaller entities, the rules adopted in the Report and Order are especially beneficial to those entities.

17. In addition, regarding the FCC's rule changes which designate 25 channels for low power, itinerant use in Group C, incumbent licensees, some of which may be small entities, could face interference from itinerant users that will not be required to coordinate their operations through a certified frequency coordinator. Despite the possibility of potential interference, the need for itinerant operations in the PLMR services is substantiated enough to justify the risk of some increase in interference. In this connection, the FCC notes that small businesses that require itinerant operations, whether new entrants or incumbents, will be eligible for these channels and may benefit from our proposal.

18. Regarding the FCC's rule change allowing 5 watts ERP for the fourteen channels in the Public Safety Pool, there will be no significant adverse impact on small entities. An alternative to this change would have been to maintain the current limitation of 2 watts output power or to have imposed a power limitation of less than 5 watts ERP. Neither of these alternatives, however, would be sufficient to promote flexibility for Public Safety Pool licensees that require more than 2 watts output power for their operations.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the Final Rules

19. None.

20. Report to Congress: The FCC will send a copy of this Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the FCC will send a copy of this Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of this Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register.

Ordering Clauses

21. Pursuant to Sections 4(i), 303(f), 303(r), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), 303(r) and 332, this Report and Order is adopted.

22. Part 90 of the FCC's Rules is amended as specified in rule changes, effective May 21, 2003.

23. The FCC's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 90

• FCC equipment
• Radio
• Reporting and Recordkeeping requirements

Rule Changes

For the reasons discussed in the preamble the FCC amends 47 CFR part 90 as follows:

PART 90—PRIVATE LAND MOBILE RADIO SERVICES

1. The authority citation for part 90 continues to read as follows:

Authority: Sections 4(i), 11, 303(g), 303(r) and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).

2. Section 90.20 is amended by adding limitations to the following frequencies to the table in paragraph (c)(3) and adding a new paragraph (d)(84) to read as follows:

3. Section 90.35 is amended by adding limitations to the following frequencies to the table in paragraph (b)(3), revising paragraph (c)(67) and adding new paragraphs (c)(83), (c)(84), (c)(85), (c)(86) and (c)(87) to read as follows:

4. Section 90.238 is amended by revising paragraphs (g) and (i) to read as follows:

5. Section 90.261 is amended by revising paragraph (f) introductory text to read as follows:

6. Section 90.267 is revised to read as follows: