Service Rules for the 746 Through 764 and 776 Through 794 MHz Bands

AGENCY:

Federal Communications Commission.

ACTION:

Final rule; petitions for reconsideration.

SUMMARY:

This document responds to petitions for reconsideration seeking changes in service rules adopted previously in this proceeding regarding commercial use of the 747-762 MHz and 777-792 MHz bands. The Commission generally affirms these service rules and provides additional guidance on the factors it will consider when reviewing applications that would accelerate the departure of incumbent analog television licensees. A separate document seeks comment on additional measures to facilitate the use of these bands for new commercial services.

DATES:

Effective July 12, 2000.

FOR FURTHER INFORMATION CONTACT:

 Legal Information: Stanley Wiggins or Jane Phillips, 202-418-1310.

Technical Information: Marty Liebman, 202-418-1310.

SUPPLEMENTARY INFORMATION:

This is a summary of the Memorandum Opinion and Order (MO&O) portion of the Commission's Memorandum Opinion and Order and Further Notice of Proposed Rulemaking in WT Docket No. 99-168 and CS Docket No. 98-120, FCC 00-00-224, adopted June 22,2000, and released June 30, 2000. The Notice of Proposed Rulemaking portion of this decision is summarized elsewhere in this Federal Register. The complete text of this MO&O is available for inspection and copying during normal business hours at the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW, Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS, Inc.), CY-B400, 445 12th Street, SW, Washington, DC.

Synopsis of the Memorandum Opinion and Order

1. In this Memorandum Opinion and Order (MO&O), the Commission responds to petitions for reconsideration of the First Report and Order (First R&O), 65 FR 3139, January 20, 2000, in this proceeding. The First R&O adopted service rules for the commercial use of the 747 through 762 MHz and 777 through 792 MHz bands that enable the broadest possible use of this spectrum, consistent with sound spectrum management. The MO&O generally affirms the service rules adopted in the First R&O, and provides additional guidance on the factors the Commission will consider when reviewing regulatory requests necessary to implement voluntary agreements that would accelerate the departure of incumbent analog television licensees and open these bands for new 700 MHz licensee use.

2. Specifically, the Commission removes the restrictions on the operation of base stations in the lower band, and on mobile, portable and control stations in the upper band, and revises its power limits for fixed and base stations to better enable Time Division Duplex (TDD) technologies to operate on these bands. In light of these changes, the Commission sees no need to revise the original, mandatory pairing of lower-band and upper-band spectrum blocks. Additionally, the Commission affirms its decision in the First R&O that this band's service rules should be oriented to intensive and efficient commercial wireless use, and also enable broadcast-type services that can satisfy the technical rules necessary for efficient overall use of spectrum.

3. First, as discussed in paragraphs 6 through 10 of the full text of the MO&O, the Commission allows base, fixed, portable, mobile, and control stations on both the upper and lower bands, subject to the consistent application of the power limits already adopted for the various types of stations. Specifically, the Commission revises Section 27.50 of its Rules to allow 1000 watt Effective Radiated Power (ERP) base and fixed stations in both the lower and upper bands, and to allow 30 watt ERP mobile and control stations, as well as 3 watt ERP portables, in both the upper and lower 700 MHz bands. The Commission indicates that these revisions will enable TDD-based technologies to use either the upper or lower bands, or both, as circumstances warrant. The Commission also decides not to alter its determination to establish spectrum blocks and assign licenses consisting of paired bands, in part, because the Commission finds that modifying the power limits is a better means for enabling TDD operations than eliminating frequency pairing. The Commission notes that the pairing of these bands has been favored by the majority of commenters in this proceeding.

4. The Commission further affirms the internal out-of-band emission (OOBE) limits established in the First R&O, finding that a modification of the internal, 43+10 log P out-of-band emission limit adopted in the First R&O to protect commercial service operators from one another is not demonstrated to be necessary to protect TDD-based technologies. However, the Commission believes that users of TDD technology are entitled to protection from interference from adjoining bands, and thus indicates that, in the event that sufficient, valid evidence is presented supporting instances of interference, it would take action to minimize such interference. This discussion may be found at paragraphs 14 through 17 of the full text of MO&O.

5. As discussed in paragraphs 21 through 27 in the full text of the MO&O, the Commission also declines to alter the OOBE standards adopted to protect public safety operations. Instead, the Commission finds that the existing OOBE standards reflect a carefully considered effort to protect public safety, while enabling the viability of the commercial 700 MHz band, which Congress also directed the Commission to establish. The Commission, as discussed in paragraphs 21 through 29 in the full text of the MO&O, reiterates its concern that operations in the 700 MHz bands not adversely affect Global Positioning System (GPS) operations, but finds that the OOBE limits adopted in the First R&O to protect such operations are sufficient. Further, at paragraph 31 of the full text of the MO&O, the Commission affirms the technical criteria adopted in the First R&O for the protection of digital television (DTV) stations from commercial stations that will operate in the 700 MHz band. However, the MO&O, at paragraph 32, clarifies a statement made in the First R&O to the effect that licenses issued for the 700 MHz bands within 120 km of the borders of Canada and Mexico would be subject to whatever future agreements the United States develops with those countries. The MO&O clarifies that all 700 MHz licensees will be subject to any future agreements the United States develops with Canada and Mexico.

6. Finally, as discussed in paragraph 34 of the full text of the MO&O, the Commission declines to adopt various proposals for technical modifications of the Commission's Rules that deal with emission limits (i.e., Section 27.53 of the Commission's Rules).

7. The MO&O next considers conventional television broadcast issues. First, regarding inter-service flexibility, the Commission affirms its decision in the First R&O to preclude conventional broadcast service in the 700 MHz band. As discussed in more detail in paragraph 38 in the full text of the MO&O, the Commission decided to adopt technical and service rules that effectively preclude conventional television broadcast service on the 700 MHz band, based on Congressional intent that this spectrum be recovered from conventional broadcast use for the provision of commercial wireless services; the high potential for interference to lower-power services caused by the disparity in the two services' characteristic power levels and transmitter tower heights and the characteristic limits of receivers' ability to distinguish between desired and extraneous signals; and the predominant interest in the record in developing this spectrum for fixed and mobile wireless use. No material has been presented to change this finding.

8. The MO&O, at starting at paragraph 44, addresses issues relating to the transition to digital television (DTV) and the voluntary relocation of incumbent broadcast licensees currently operating in the 700 MHz band. In that regard, the Commission considers challenges to two aspects of the rules for the 700 MHz band, both keyed to the Commission's treatment of the transition to DTV. In response to these challenges, at paragraphs 44 and 45 of the full text of the MO&O, the Commission dismisses objections to its use of the statutory target date for the completion of the DTV transition—December 31, 2006—as the basis for setting certain regulatory dates for the new commercial licenses, and denies the request that it revise the text of the First R&O and the accompanying rules to identify “completion of DTV transition” as the triggering event for commencement of the eight-year license term for broadcast service, and the substantial performance period.

9. The Commission also affirms the decision in the First R&O that this band's service rules should be oriented to intensive and efficient commercial wireless use, and also enable broadcast-type services that can satisfy the technical rules necessary for efficient overall use of spectrum. The Commission thus declines to reconsider its willingness to consider voluntarily negotiated agreements that would expedite the departure of incumbent analog television licensees from these frequencies. The Commission finds that voluntary clearing agreements between 700 MHz licensees and TV incumbents would generally advance the public interest and further the statutory scheme. The MO&O therefore provides additional guidance regarding the Commission's treatment of such voluntary arrangements, in an effort to provide greater certainty to potential bidders and incumbent broadcasters and facilitate the early clearance of incumbent broadcast stations on channels 59-69. These agreements should facilitate both the provision of next generation and Internet wireless services, and the transition to DTV by these incumbent broadcast stations. This additional guidance establishes certain presumptions regarding the Commission's treatment of these voluntary arrangements, and recognizes the must-carry obligation of cable systems with regard to broadcasts of digital television programming. Paragraphs 46 through 50 in the full text of the MO&O provide more detailed discussion of these issues which are summarized in this Federal Register document.

10. Paragraphs 51 through 54 of the full text of the MO&O discuss and affirm the Commission's authority to review the voluntary agreements between incumbent broadcast licensees and new 700 MHz licensees. The Commission finds that such agreements, if properly structured, will further the broad public interest in intensive and new wireless services to all Americans, should help make available to the public safety community needed new spectrum that Congress has mandated be allocated for public safety use, and should help expedite a transition to DTV for broadcasters who might need assistance to implement such a transition.

11. The MO&O, at paragraphs 55 and 56, analyzes matters related to the possible loss of broadcast services resulting from voluntary agreements. The Commission affirms its finding in the First R&O that, in reviewing voluntary agreements, it must weigh the benefits associated with recovery of the spectrum for new wireless uses against any loss of service to the broadcast community of license. The fundamental importance of over-the-air broadcast service is recognized by legislative and judicial determinations, and the Commission's own practice in reviewing specific instances of loss of service. In the past, the Commission has required that stations withdrawing or downgrading existing service justify that action by establishing offsetting considerations that demonstrate the public generally will benefit.

12. The Commission carefully considers the weight to be accorded such losses, both from a broad policy view and in the review of specific regulatory requests. From the broader policy perspective, the Commission determines that several statutory purposes involved here are best served by enabling voluntary agreements that result in the expeditious and efficient recovery of these frequencies for the legislatively specified commercial and public safety purposes. The Commission also notes that the over-the-air service involved here is scheduled to terminate as part of the DTV transition, and that Congress has directed the Commission to auction and license these frequencies on an expedited schedule well in advance of December 31, 2006. Thus the Commission finds that temporary loss-of-service issues here do not raise concerns that generally prevent regulatory requests in connection with voluntary agreements.

13. The Commission implements these policy judgements by providing guidance on the review of regulatory requests arising from band clearance agreements between new licensees of this spectrum and incumbent broadcast licensees on channels 59-69, discussed in paragraphs 57 through 59 of the full text of the MO&O. First, the Commission believes that private parties generally are the best evaluators of their own economic circumstances and alternatives and the Commission will not look to second guess their business decisions. The Commission's underlying policy premise is that voluntary agreements can provide supplemental resources to broadcasters that will both expedite their transition to DTV and strengthen their economic viability, but the private parties should determine for themselves when the economic case is made. When the private parties are satisfied, therefore, the Commission will be inclined to grant regulatory requests arising from such commercial arrangements, provided the requests do not, on balance, have adverse public policy consequences. Second, the Commission notes that its role will be limited to weighing the effect on the public interest of regulatory requests in connection with such agreements. The Commission will not be reviewing the wisdom of the underlying private agreements, or the negotiation process leading to them, in the normal course.

14. The Commission also establishes a process and specific guidance for parties potentially interested in negotiating voluntary agreements. To ensure that all public interest issues are readily identified, the Commission will require broadcasters entering into voluntary agreements to provide the public in the principal area served by the licensee with the notice required by the Commission's Rules for filing of applications. (47 CFR 73.3580(d).) In addition, the Commission will issue public notice of the filing of all voluntary agreements requiring its approval. The Commission clarifies that its review of such requests generally will fall within Section 316 of the Act, and notes that it will consider showings of actual loss of service, rather than theoretical loss, resulting from a voluntary agreement.

15. The Commission, in paragraphs 60 through 62 of the MO&O, establishes a rebuttable presumption that, in certain circumstances, substantial overall public interest benefits will arise from a voluntary agreement between a 700 MHz licensee and an incumbent broadcast licensee that clears the 700 MHz band of incumbent television licensees. Specifically, the Commission will initially presume that the public interest is substantially furthered, so that routine approval is justified, when an applicant demonstrates that the request will both result in certain specific benefits and avoid specific detriments. The Commission will recognize such a presumption favoring the grant of any requests that: (1) Would result in new wireless services to consumers, in particular “next generation” or “3G” wireless services; (2) would clear commercial frequencies that enable provision of new public safety service; or (3) would result in the provision of new wireless service to rural or other underserved communities. The applicant would also need to show that a grant of the request would not: (1) Result in the loss of any of the four stations in the designated market area with the largest audience share; or (2) occasion the loss of the sole service licensed to the local community; or (3) result in the loss of a community's sole service on channels reserved for noncommercial educational broadcast stations.

16. This presumption is not conclusive or dispositive, however. In specific cases where the presumption applies, for instance, the Commission would consider whether special or unique factors raised by the resulting loss of broadcast service would be sufficient to rebut the presumption. The MO&O also finds, in paragraphs 63 through 66 that, where the presumption does not apply, the Commission will review regulatory requests by weighing the loss of broadcast service, acceleration of the DTV transition, and the advent of new wireless service on a case-by-case basis. In reviewing requests not subject to the presumption, the Commission also will consider as a relevant factor in its public interest determination the extent to which the station's programming will remain available, after implementation of the agreement, to a significant number of its viewers in the licensee's service area.

17. The MO&O points to the important role that cable carriage can play during the transition period by providing continued service to viewers that would otherwise be deprived of broadcast service, and addresses two cable issues in the context of voluntary relocation agreements. First, the MO&O clarifies that cable systems are ultimately subject to the must carry obligation with regard to broadcasters' digital signals. Second, to facilitate the continuing availability during the transition of the analog signal of a broadcaster who is party to a voluntary relocation agreement with new 700 MHz licensees, the MO&O states that such a broadcaster could, in this context and at its own expense, provide its broadcast digital signal in an analog format for carriage on cable systems, but only for a limited period. Until the transition to digital television is completed in a given market, nothing prohibits the cable system from providing such signals in analog format to subscribers.

18. Another factor the Commission will consider, when the favorable presumption does not apply, is whether the station's signal will remain available, after implementation of the agreement, to a significant number of its viewers in the licensee's service area. If that signal is effectively available to a significant number of current viewers through various distribution channels, and implementation of the voluntary agreement would not create additional TV white or gray area, the Commission would generally be inclined to approve the voluntary agreement.

19. The MO&O next denies a proposal that the Commission adopt an “equivalent regulatory regime” for new services on these bands that is similar to that for broadcast television. The MO&O also denies the request that, to the extent the Commission applies a less regulated structure to new broadcast-type services on these channels, it should accord similarly relaxed treatment to stations operating on channels 2-59. The Commission recognizes that specific statutory provisions govern broadcast services, but it will not, at this juncture, attempt to anticipate the form or forms that the next generation of “broadcast-type” services on these bands may take, or to configure a regulatory structure on the basis of speculation, but will determine the applicable regulatory framework in the context of the offering of specific, actual services. This issue is discussed in paragraph 68 of the full text of the MO&O.

20. The MO&O, in paragraph 70 of the full text, denies a request that the Commission review its decision in the First R&O establishing Guard Bands to protect the immediately adjoining public safety licensees on channels 63, 64, 68, and 69 from harmful interference from operations on the 30 megahertz segment, and consider instead enforcing emission limits.

21. The MO&O, in paragraph 73 of the full text, considers issues pertaining to licensing rules. Regarding the Commission's decision in the First R&O that licenses in the 747 through 762 MHz and 777 through 792 MHz bands should not count against the 45/55 MHz spectrum cap if used to provide CMRS, the Commission dismisses a proposal to extend the CMRS spectrum cap to include 700 MHz spectrum.

22. Finally, the MO&O, in paragraphs 76 through 77 of the full text, considers competitive bidding issues. The Commission affirms its decision to limit its nationwide bid withdrawal procedure to those bidders seeking a 30 megahertz nationwide license. The MO&O also declines to modify the service rules adopted in the First R&O by redrawing the geographic territories, reducing the size of the spectrum blocks, and/or setting aside a portion of the 700 MHz spectrum for exclusive bidding by smaller business.

Administrative Matters

23. The actions contained in this MO&O are exempt from the provisions of the Paperwork Reduction Act of 1995, under the Consolidated Appropriations statute, See Consolidated Appropriations, Appendix E, Sec. 213. See also 145 Cong. Rec. at H12493-94 (November 1, 1999). Implementation of the revisions to part 27 required to assign licenses in these commercial spectrum bands, including revisions to information collections, are therefore not subject to approval by the Office of Management and Budget, and became effective upon adoption. Similarly, the Consolidated Appropriations statute exempts this decision from the Regulatory Flexibility Act provisions and from the Contract With America Advancement Act provisions.

24. Authority. This action is taken pursuant to Sections 1, 4(i), 7, 10, 201, 202, 208, 214, 301, 303, 307, 308, 309(j), 309(k), 310, 311, 315, 316, 317, 324, 331, 332, 336, 337, and 614 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157, 160, 201, 202, 208, 214, 301, 303, 307, 308, 309(j), 309(k), 310, 311, 315, 316, 317, 324, 331, 332, 336, 337, and 534, and the Consolidated Appropriations Act, 2000, Public Law 106-113, 113 Stat. 1501, Section 213.

Ordering Clauses

25. Part 27 of the Commission's Rules is revised on reconsideration to modify service rules for the 747 through 762 MHz and 777 through 792 MHz bands, as set forth in this synopsis, and, in accordance with Section 213 of the Consolidated Appropriations Act, 2000, Public Law 106 through 113, 113 Stat. 1501 (1999), these rules shall be effective July 12, 2000.

26. The Petitions for Reconsideration filed by ArrayComm, Inc., the Association of Local Television Stations, Inc., the Association for Maximum Service Television, Inc., the Association of Public-Safety Communications Officials-International, Inc., the Federal Law Enforcement Wireless Users Group, the National Association of Broadcasters, Nelson Repeater Services, Inc., Northcoast Communications, LLC, and the U.S. GPS Industry Council are denied; the Petitions for Reconsideration filed by Adaptive Broadband Corporation, TRW, Inc., and US WEST Wireless, LLC are granted, to the extent indicated in the MO&O, and are otherwise denied; the request by Rand McNally & Company to withdraw its Petition for Reconsideration is granted.

List of Subjects in 47 CFR Part 27

• Telecommunications

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 27 to read as follows:

PART 27—WIRELESS COMMUNICATIONS SERVICE

1. The authority citation for part 27 continues to read:

Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309 and 332.

2. Section 27.50(b) is revised, and in paragraph (c) the heading of Table 1 is revised to read as follows:

3. Section 27.53 is amended by revising paragraph (c), by removing paragraph (d), and redesignating paragraphs (e), (f), and (g) as paragraphs (d), (e), and (f), to read as follows:

4. Section 27.60(b)(2)(i) is amended by removing the word “746-764 MHz band” and adding, in their place, “746-764 MHz and 777-792 MHz bands” in its place, and paragraph (b)(2)(ii) is amended by removing the words “776-794 MHz band” and adding, in their place, “776-777 MHz and 792-794 MHz bands and control and mobile stations (including portables) that operate in the 747-762 MHz and 777-792 MHz bands.”