Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets, 41935-41937 [E7-14768]
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Federal Register / Vol. 72, No. 147 / Wednesday, August 1, 2007 / Rules and Regulations
sroberts on PROD1PC70 with RULES
and in accordance with good
agricultural practices.
IX. Statutory and Executive Order
Reviews
This final rule establishes a tolerance
under section 408(d) of FFDCA in
response to a petition submitted to the
Agency. The Office of Management and
Budget (OMB) has exempted these types
of actions from review under Executive
Order 12866, entitled Regulatory
Planning and Review (58 FR 51735,
October 4, 1993). Because this rule has
been exempted from review under
Executive Order 12866, this rule is not
subject to Executive Order 13211,
Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355, May
22, 2001) or Executive Order 13045,
entitled Protection of Children from
Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997).
This final rule does not contain any
information collections subject to OMB
approval under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et
seq., nor does it require any special
considerations under Executive Order
12898, entitled Federal Actions to
Address Environmental Justice in
Minority Populations and Low-Income
Populations (59 FR 7629, February 16,
1994).
Since tolerances and exemptions that
are established on the basis of a petition
under section 408(d) of FFDCA, such as
the exemption from the requirement of
a tolerance in this final rule, do not
require the issuance of a proposed rule,
the requirements of the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601 et
seq.) do not apply.
This final rule directly regulates
growers, food processors, food handlers
and food retailers, not States or tribes,
nor does this action alter the
relationships or distribution of power
and responsibilities established by
Congress in the preemption provisions
of section 408(n)(4) of FFDCA. As such,
the Agency has determined that this
action will not have a substantial direct
effect on States or tribal governments,
on the relationship between the national
government and the States or tribal
governments, or on the distribution of
power and responsibilities among the
various levels of government or between
the Federal Government and Indian
tribes. Thus, the Agency has determined
that Executive Order 13132, entitled
Federalism (64 FR 43255, August 10,
1999) and Executive Order 13175,
entitled Consultation and Coordination
with Indian Tribal Governments (65 FR
67249, November 6, 2000) do not apply
to this rule. In addition, This rule does
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15:44 Jul 31, 2007
Jkt 211001
not impose any enforceable duty or
contain any unfunded mandate as
described under Title II of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(Public Law 104–4).
This action does not involve any
technical standards that would require
Agency consideration of voluntary
consensus standards pursuant to section
12(d) of the National Technology
Transfer and Advancement Act of 1995
(NTTAA), Public Law 104–113, section
12(d) (15 U.S.C. 272 note).
X. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report to each House of
the Congress and to the Comptroller
General of the United States. EPA will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of this final rule in the
Federal Register. This final rule is not
a ‘‘major rule’’ as defined by 5 U.S.C.
804(2).
List of Subjects in 40 CFR Part 180
Environmental protection,
Administrative practice and procedure,
Agricultural commodities, Pesticides
and pests, Reporting and recordkeeping
requirements.
Dated: July 15, 2007.
Debra Edwards,
Director, Office of Pesticide Programs.
Therefore, 40 CFR chapter I is
amended as follows:
I
PART 180—[AMENDED]
1. The authority citation for part 180
continues to read as follows:
I
Authority: 21 U.S.C. 321(q), 346a and 371.
2. Section 180.1278 is added to
subpart D to read as follows:
I
§ 180.1278 Quillaja saponaria extract
(saponins); exemption from the requirement
of a tolerance.
Residues of the biochemical pesticide
Quillaja saponaria extract (saponins)
are exempt from the requirement of a
tolerance in or on all food commodities.
[FR Doc. E7–14894 Filed 7–31–07; 8:45 am]
BILLING CODE 6560–50–S
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41935
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 1
[WT Docket No. 00–230; FCC 07–52]
Promoting Efficient Use of Spectrum
Through Elimination of Barriers to the
Development of Secondary Markets
Federal Communications
Commission.
AGENCY:
ACTION:
Final rule; clarification.
SUMMARY: In this document, the Federal
Communications Commission
(‘‘Commission’’) determines that, at this
time, no further revisions are necessary
with regard to the existing policies and
rules relating to secondary markets in
radio spectrum usage rights.
DATES:
Effective August 1, 2007.
Paul
Murray, Wireless Telecommunications
Bureau, at (202) 418–7240, or via the
Internet at Paul.Murray@fcc.gov.
FOR FURTHER INFORMATION CONTACT:
This is a
summary of the Commission’s Third
Report and Order (hereinafter Third
Report and Order) in WT Docket No.
00–230, adopted on April 6, 2007, and
released on April 11, 2007. This order
addresses comments filed in response to
the Commission’s Second Further
Notice of Proposed Rulemaking (Second
Further Notice) 69 FR 77560, December
27, 2004, in this docket. The full text of
this document is available for
inspection and copying during normal
business hours in the FCC Reference
Information Center, Portals II, 445 12th
Street, SW., Room CY–A257,
Washington, DC 20554. The complete
text may be purchased from the FCC’s
copy contractor, Best Copy & Printing,
Inc., 445 12th Street, SW., Room CY–
B402, Washington, DC 20554, telephone
(800) 378–3160 or 863–2893, facsimile
(202) 863–2898, or via e-mail at https://
www.bcpiweb.com. The full text is also
available on the Commission’s Web site
at https://www.fcc.gov.
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
This Third Report and Order does not
contain any new or modified
information collection requirements
subject to the Paperwork Reduction Act
of 1995 (PRA), Public Law 104–13.
Therefore, it does not contain any new
or modified ‘‘information collection
burden for small business concerns with
fewer than 25 employees,’’ pursuant to
the Small Business Paperwork Relief
Act of 2002, Public Law 107–198, see 44
U.S.C. 3506(c)(4).
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Federal Register / Vol. 72, No. 147 / Wednesday, August 1, 2007 / Rules and Regulations
Synopsis of the Third Report and Order
I. Introduction
1. In the Third Report and Order, the
Commission affirms the Commission’s
policies and rules regarding ‘‘private
commons’’ arrangements. We decline to
adopt additional technical requirements
regarding devices that might be used
within a private commons, finding that
such requirements are both premature
and unnecessary. In addition, we
determine that the proposal for
licensing underutilized spectrum to
equipment manufacturers for
development of private commons is
beyond the scope of this proceeding.
sroberts on PROD1PC70 with RULES
II. Background
2. In the Second Report and Order
portion of the Second Report and Order,
Order on Reconsideration, and Second
Further Notice of Proposed Rulemaking
in WT Docket No. 00–230, (Second
Report and Order, Order on Recon, and
Second Further Notice, respectively),
the Commission took additional steps to
facilitate the development of robust
secondary markets in spectrum usage
rights involving Wireless Radio
Services. In particular, in the Second
Report and Order, 69 FR 77521,
December 27, 2004, the Commission
established additional policies intended
to facilitate the use of advanced
technologies, including ‘‘smart’’ or
‘‘opportunistic’’ devices, which have the
potential to increase access and use of
unused licensed spectrum. First, the
Commission clarified that its spectrum
leasing rules permit ‘‘dynamic’’
spectrum leasing arrangements,
whereby licensees and spectrum lessees
may enter into more than one spectrum
leasing arrangement involving the
shared use of the same spectrum.
Second, the Commission expanded the
spectrum licensing framework to
include a new ‘‘private commons’’
option. The ‘‘private commons’’ was
intended as a means of allowing a
licensee or spectrum lessee to make
spectrum available to individual users
or groups of users that do not fit
squarely within the existing spectrum
leasing framework or within the
traditional end-user arrangements
associated with the licensee’s or lessee’s
network infrastructure. The Commission
stated that it sought to provide for
opportunistic uses of spectrum pursuant
to the terms and conditions that
licensees (and spectrum lessees) agree
upon so long as these terms and
conditions fall within the licensee’s
spectrum usage rights and are not
inconsistent with applicable technical
and other regulations imposed by the
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Commission to prevent harmful
interference to other licensees.
3. By establishing a private commons
a licensee (or spectrum lessee) may
permit peer-to-peer communications by
other users employing devices in a nonhierarchical network arrangement that
does not utilize the licensee’s (or
spectrum lessee’s) network
infrastructure. The licensee (or lessee)
authorizes other users to operate on the
licensed frequencies employing
particular devices that meet technical
parameters specified by the licensee (or
lessee). The technical parameters for
these devices, in turn, enable users to
operate in a manner designed to
minimize interference concerns relating
to other users in the licensed band. The
Commission stated that the licensee (or
lessee) must retain both de facto control
of the use of the spectrum within the
private commons and ‘‘direct
responsibility’’ for the users’
compliance with the Commission’s
rules. Further, as manager of the private
commons, the licensee (or lessee) is
required to notify the Commission about
the private commons, and particular
features associated with it, prior to
permitting users to operate.
Requirements pertaining to private
commons arrangements are set forth in
§ 1.9080 of the Commission’s rules.
4. In the Second Further Notice, the
Commission sought comment on
additional policies that could facilitate
the development of advanced
technologies, including whether
additional revisions should be made to
the private commons regulatory model.
The Commission also sought comment
on whether the private commons option
established in the Second Report and
Order sufficiently accommodates the
wide variety of ways in which licensees
(and spectrum lessees) and other users
may wish to enter cooperative
arrangements that employ ‘‘smart’’ or
‘‘opportunistic’’ devices. For example,
the Commission asked whether it
should adopt an approach to private
commons that would allow
intermediaries to facilitate transactions
with users, design and set up
communications networks for users or
provide value-added services or
applications. In addition, the
Commission sought comment on the
appropriate notification process for
licensees or de facto transfer lessees that
choose to offer a private commons to
comply with the requirement that a
licensee or spectrum lessee managing
the private commons must notify the
Commission prior to permitting users to
begin operating within the private
commons.
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5. In response to the Second Further
Notice, the Commission received
comments from Cingular Wireless LLC
(Cingular Wireless), CTIA—The
Wireless Association (CTIA), and
Gateway Communications, Inc.
(Gateway). Cingular Wireless and CTIA
sought clarification of certain aspects of
the requirements pertaining to the
licensee’s or spectrum lessee’s
responsibility, as manager of the private
commons, to ensure that users and
devices used in a private commons
arrangement comply with applicable
Commission rules. Gateway proposed a
new scheme for managing a private
commons in cases of ‘‘market failure.’’
6. Cingular Wireless specifically
asked for additional clarification
regarding the circumstances under
which the Commission would hold, and
would not hold, the licensee (or lessee)
‘‘directly responsible’’ for users’
interference in geographic areas outside
of the private commons, in which they
were not authorized to operate. For
example, in the case of mobile
opportunistic devices, Cingular Wireless
argued that the Commission should
evaluate a licensee’s (or lessee’s)
compliance with its responsibilities
based on the terms and conditions it
establishes for operation within the
private commons, and that noncompliance with these provisions
should not result in liability to the
licensee (or lessee). In addition, while
agreeing that it may be ‘‘beneficial or
even necessary’’ to require that smart
devices used in the private commons
include technologies enabling the
private commons managers to shut
down the devices if they were causing
harmful interference, Cingular Wireless
argued that imposing such a
requirement at this time would be
premature.
7. CTIA urged the Commission to
adopt more detailed technical standards
concerning private commons
arrangements. Specifically, to ensure
that a private commons device cannot
be used outside of the licensed
spectrum and geographic area of the
licensee (or lessee) authorizing the use
of its spectrum, CTIA recommended
adoption of strict rules and suggested
that any private commons device should
contain an element of positive control,
in the form of technical intelligence,
that prevents it from operating in
unauthorized spectrum or areas.
8. In response to the Second Further
Notice, Gateway proposed that the
Commission go beyond its secondary
markets mechanisms and allow
equipment manufacturers to file
applications for authority to manage
private commons using licensed
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Federal Register / Vol. 72, No. 147 / Wednesday, August 1, 2007 / Rules and Regulations
sroberts on PROD1PC70 with RULES
spectrum in geographic areas where
there has been a ‘‘market failure’’ and
spectrum is ‘‘unwanted’’ or
‘‘underutilized.’’ Gateway suggested that
the Commission could issue licenses to
equipment manufacturers in exchange
for a reasonable one-time payment to
the United States treasury, or for a
modest spectrum use fee payable on an
annual basis to the Commission, or even
at no charge, but did not suggest how
the Commission would decide among
competing parties who might seek to
obtain any such license. Gateway
asserted that this new licensing
mechanism of offering spectrum to
equipment manufacturers would create
new opportunities for small businesses
and others to obtain access to spectrum
for a variety of niche uses and services.
9. In reply comments, CTIA asserted
that the Commission should reject
Gateway’s proposal as outside of the
scope of the Commission’s Second
Further Notice, which sought comment
only on the use of opportunistic devices
in licensed spectrum, not comment on
new ways to give an interested party an
initial spectrum license for a private
commons. Accordingly, the Commission
cannot consider Gateway’s proposal in
this proceeding because doing so would
violate the requirement for adequate
notice under the Administrative
Procedures Act (APA). CTIA further
asserted that the proposal would create
a new licensing scheme in violation of
the requirements under section 309(j) of
the Communications Act, as amended,
which requires that the spectrum be
subject to competitive bidding.
III. Third Report and Order
10. We determine that the
requirements set forth in the Second
Report and Order and codified in our
rules, 47 CFR 1.9080, provide the right
balance in encouraging the development
of devices for operation within a private
commons arrangement while at the
same time placing the appropriate
degree of responsibility on licensees (or
spectrum lessees) to ensure that the
users and devices do not cause harmful
interference in areas outside of the
private commons and the license
authorization. Accordingly, we affirm
the general policies and rules the
Commission adopted for private
commons, including the requirement
that licensees (or spectrum lessees)
retain both de facto control over use of
the spectrum and direct responsibility
for ensuring that users and the devices
used within the private commons
comply with the Commission technical
and services rules under the license
authorization, including those relating
to interference. Because the licensees (or
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Jkt 211001
lessees) themselves, in their capacity as
managers of private commons, exercise
control under the license authorization
and are responsible for establishing the
technical parameters of the devices that
would be used within the private
commons, they must exercise their
responsibilities so as to ensure
compliance with the rules, including
bearing direct responsibility for
establishing parameters of use that
prevent harmful interference beyond the
private commons areas and the
boundaries of their licenses.
11. Based on the scant record before
us and the wide variety of ways in
which a private commons could be
implemented, we decline to modify our
rules at this time to further detail the
responsibilities placed on the managers
of private commons. We are in no
position, based on what is before us, to
make any determination by rule, as
Cingular Wireless requests, as to
whether a particular mechanism may or
may not be sufficient for a licensee (or
spectrum lessee) to exercise its
responsibilities in a given instance. Nor
do we conclude that establishing strict
technical rules or requirements, as
requested by CTIA, is appropriate. We
do not want to limit at this time the
various means by which a licensee (or
lessee) might fulfill its obligations as
manager of a private commons. While a
‘‘shut down’’ mechanism may be
effective, it is not the only conceivable
means to ensure that a licensee (or
lessee) exercises de facto control over
the use of the spectrum and complies
with the Commission’s rules under the
license authorization. We see no need at
this time to limit other possible means
that might be consistent with the
Commission’s private commons
framework.
12. Finally, because Gateway’s
proposal is outside the scope of the
Second Further Notice, and not a logical
outgrowth of it, we will not address it
in this proceeding. The Second Further
Notice sought comment on ways to
increase spectrum access through
opportunistic uses of spectrum
specifically within the context of the
Commission’s spectrum leasing policies
and rules set forth in the proceeding
addressing the development of
secondary markets. The Second Further
Notice did not contemplate revising the
Commission’s initial licensing rules. We
note that the opportunities that Gateway
sees for new uses of spectrum also exist
within the private commons framework
that the Commission has established in
the Second Report and Order.
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41937
IV. Ordering Clauses
13. Pursuant to sections 1, 4(i), 301,
303(r), and 503 of the Communications
Act, as amended, 47 U.S.C. 151, 154(i),
301, 303(r), and 503, it is ordered that
this Third Report and Order is adopted.
The Commission’s Consumer
Information Bureau, Reference
Information Center, shall send a copy of
the Third Report and Order, including
the Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy of the
Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E7–14768 Filed 7–31–07; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 2 and 15
[ET Docket No. 03–201; FCC 07–117]
Unlicensed Devices and Equipment
Approval
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
SUMMARY: This document dismisses two
petitions for reconsideration of the rules
adopted in this proceeding. It dismisses
a petition filed by Warren C. Havens
and Telesaurus Holdings GB LLC
(‘‘Havens’’) requesting that the
Commission suspend the rule changes
adopted for unlicensed devices in the
902–928 MHz (915 MHz) band until
such time as it completes a formal
inquiry with regard to the potential
effect of such changes to Location and
Monitoring Service (LMS) licensees in
the band. This document also dismisses
a petition for reconsideration filed by
Cellnet Technology (‘‘Cellnet’’)
requesting that the Commission adopt
spectrum sharing requirements in the
unlicensed bands, e.g., a ‘‘spectrum
etiquette,’’ particularly in the 915 MHz
band.
DATES: Effective August 31, 2007.
FOR FURTHER INFORMATION CONTACT:
Hugh L. Van Tuyl, (202) 418–7506, email: Hugh.VanTuyl@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s
Memorandum Opinion and Order, ET
Docket No. 03–201, FCC 07–117,
adopted June 19, 2007 and released June
22, 2007. The full text of this document
is available on the Commission’s
Internet site at https://www.fcc.gov. It is
also available for inspection and
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]]>Agencies
[Federal Register Volume 72, Number 147 (Wednesday, August 1, 2007)]
[Rules and Regulations]
[Pages 41935-41937]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-14768]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WT Docket No. 00-230; FCC 07-52]
Promoting Efficient Use of Spectrum Through Elimination of
Barriers to the Development of Secondary Markets
AGENCY: Federal Communications Commission.
ACTION: Final rule; clarification.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(``Commission'') determines that, at this time, no further revisions
are necessary with regard to the existing policies and rules relating
to secondary markets in radio spectrum usage rights.
DATES: Effective August 1, 2007.
FOR FURTHER INFORMATION CONTACT: Paul Murray, Wireless
Telecommunications Bureau, at (202) 418-7240, or via the Internet at
Paul.Murray@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order (hereinafter Third Report and Order) in WT Docket No.
00-230, adopted on April 6, 2007, and released on April 11, 2007. This
order addresses comments filed in response to the Commission's Second
Further Notice of Proposed Rulemaking (Second Further Notice) 69 FR
77560, December 27, 2004, in this docket. The full text of this
document is available for inspection and copying during normal business
hours in the FCC Reference Information Center, Portals II, 445 12th
Street, SW., Room CY-A257, Washington, DC 20554. The complete text may
be purchased from the FCC's copy contractor, Best Copy & Printing,
Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
telephone (800) 378-3160 or 863-2893, facsimile (202) 863-2898, or via
e-mail at https://www.bcpiweb.com. The full text is also available on
the Commission's Web site at https://www.fcc.gov.
Paperwork Reduction Act
This Third Report and Order does not contain any new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain
any new or modified ``information collection burden for small business
concerns with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
[[Page 41936]]
Synopsis of the Third Report and Order
I. Introduction
1. In the Third Report and Order, the Commission affirms the
Commission's policies and rules regarding ``private commons''
arrangements. We decline to adopt additional technical requirements
regarding devices that might be used within a private commons, finding
that such requirements are both premature and unnecessary. In addition,
we determine that the proposal for licensing underutilized spectrum to
equipment manufacturers for development of private commons is beyond
the scope of this proceeding.
II. Background
2. In the Second Report and Order portion of the Second Report and
Order, Order on Reconsideration, and Second Further Notice of Proposed
Rulemaking in WT Docket No. 00-230, (Second Report and Order, Order on
Recon, and Second Further Notice, respectively), the Commission took
additional steps to facilitate the development of robust secondary
markets in spectrum usage rights involving Wireless Radio Services. In
particular, in the Second Report and Order, 69 FR 77521, December 27,
2004, the Commission established additional policies intended to
facilitate the use of advanced technologies, including ``smart'' or
``opportunistic'' devices, which have the potential to increase access
and use of unused licensed spectrum. First, the Commission clarified
that its spectrum leasing rules permit ``dynamic'' spectrum leasing
arrangements, whereby licensees and spectrum lessees may enter into
more than one spectrum leasing arrangement involving the shared use of
the same spectrum. Second, the Commission expanded the spectrum
licensing framework to include a new ``private commons'' option. The
``private commons'' was intended as a means of allowing a licensee or
spectrum lessee to make spectrum available to individual users or
groups of users that do not fit squarely within the existing spectrum
leasing framework or within the traditional end-user arrangements
associated with the licensee's or lessee's network infrastructure. The
Commission stated that it sought to provide for opportunistic uses of
spectrum pursuant to the terms and conditions that licensees (and
spectrum lessees) agree upon so long as these terms and conditions fall
within the licensee's spectrum usage rights and are not inconsistent
with applicable technical and other regulations imposed by the
Commission to prevent harmful interference to other licensees.
3. By establishing a private commons a licensee (or spectrum
lessee) may permit peer-to-peer communications by other users employing
devices in a non-hierarchical network arrangement that does not utilize
the licensee's (or spectrum lessee's) network infrastructure. The
licensee (or lessee) authorizes other users to operate on the licensed
frequencies employing particular devices that meet technical parameters
specified by the licensee (or lessee). The technical parameters for
these devices, in turn, enable users to operate in a manner designed to
minimize interference concerns relating to other users in the licensed
band. The Commission stated that the licensee (or lessee) must retain
both de facto control of the use of the spectrum within the private
commons and ``direct responsibility'' for the users' compliance with
the Commission's rules. Further, as manager of the private commons, the
licensee (or lessee) is required to notify the Commission about the
private commons, and particular features associated with it, prior to
permitting users to operate. Requirements pertaining to private commons
arrangements are set forth in Sec. 1.9080 of the Commission's rules.
4. In the Second Further Notice, the Commission sought comment on
additional policies that could facilitate the development of advanced
technologies, including whether additional revisions should be made to
the private commons regulatory model. The Commission also sought
comment on whether the private commons option established in the Second
Report and Order sufficiently accommodates the wide variety of ways in
which licensees (and spectrum lessees) and other users may wish to
enter cooperative arrangements that employ ``smart'' or
``opportunistic'' devices. For example, the Commission asked whether it
should adopt an approach to private commons that would allow
intermediaries to facilitate transactions with users, design and set up
communications networks for users or provide value-added services or
applications. In addition, the Commission sought comment on the
appropriate notification process for licensees or de facto transfer
lessees that choose to offer a private commons to comply with the
requirement that a licensee or spectrum lessee managing the private
commons must notify the Commission prior to permitting users to begin
operating within the private commons.
5. In response to the Second Further Notice, the Commission
received comments from Cingular Wireless LLC (Cingular Wireless),
CTIA--The Wireless Association (CTIA), and Gateway Communications, Inc.
(Gateway). Cingular Wireless and CTIA sought clarification of certain
aspects of the requirements pertaining to the licensee's or spectrum
lessee's responsibility, as manager of the private commons, to ensure
that users and devices used in a private commons arrangement comply
with applicable Commission rules. Gateway proposed a new scheme for
managing a private commons in cases of ``market failure.''
6. Cingular Wireless specifically asked for additional
clarification regarding the circumstances under which the Commission
would hold, and would not hold, the licensee (or lessee) ``directly
responsible'' for users' interference in geographic areas outside of
the private commons, in which they were not authorized to operate. For
example, in the case of mobile opportunistic devices, Cingular Wireless
argued that the Commission should evaluate a licensee's (or lessee's)
compliance with its responsibilities based on the terms and conditions
it establishes for operation within the private commons, and that non-
compliance with these provisions should not result in liability to the
licensee (or lessee). In addition, while agreeing that it may be
``beneficial or even necessary'' to require that smart devices used in
the private commons include technologies enabling the private commons
managers to shut down the devices if they were causing harmful
interference, Cingular Wireless argued that imposing such a requirement
at this time would be premature.
7. CTIA urged the Commission to adopt more detailed technical
standards concerning private commons arrangements. Specifically, to
ensure that a private commons device cannot be used outside of the
licensed spectrum and geographic area of the licensee (or lessee)
authorizing the use of its spectrum, CTIA recommended adoption of
strict rules and suggested that any private commons device should
contain an element of positive control, in the form of technical
intelligence, that prevents it from operating in unauthorized spectrum
or areas.
8. In response to the Second Further Notice, Gateway proposed that
the Commission go beyond its secondary markets mechanisms and allow
equipment manufacturers to file applications for authority to manage
private commons using licensed
[[Page 41937]]
spectrum in geographic areas where there has been a ``market failure''
and spectrum is ``unwanted'' or ``underutilized.'' Gateway suggested
that the Commission could issue licenses to equipment manufacturers in
exchange for a reasonable one-time payment to the United States
treasury, or for a modest spectrum use fee payable on an annual basis
to the Commission, or even at no charge, but did not suggest how the
Commission would decide among competing parties who might seek to
obtain any such license. Gateway asserted that this new licensing
mechanism of offering spectrum to equipment manufacturers would create
new opportunities for small businesses and others to obtain access to
spectrum for a variety of niche uses and services.
9. In reply comments, CTIA asserted that the Commission should
reject Gateway's proposal as outside of the scope of the Commission's
Second Further Notice, which sought comment only on the use of
opportunistic devices in licensed spectrum, not comment on new ways to
give an interested party an initial spectrum license for a private
commons. Accordingly, the Commission cannot consider Gateway's proposal
in this proceeding because doing so would violate the requirement for
adequate notice under the Administrative Procedures Act (APA). CTIA
further asserted that the proposal would create a new licensing scheme
in violation of the requirements under section 309(j) of the
Communications Act, as amended, which requires that the spectrum be
subject to competitive bidding.
III. Third Report and Order
10. We determine that the requirements set forth in the Second
Report and Order and codified in our rules, 47 CFR 1.9080, provide the
right balance in encouraging the development of devices for operation
within a private commons arrangement while at the same time placing the
appropriate degree of responsibility on licensees (or spectrum lessees)
to ensure that the users and devices do not cause harmful interference
in areas outside of the private commons and the license authorization.
Accordingly, we affirm the general policies and rules the Commission
adopted for private commons, including the requirement that licensees
(or spectrum lessees) retain both de facto control over use of the
spectrum and direct responsibility for ensuring that users and the
devices used within the private commons comply with the Commission
technical and services rules under the license authorization, including
those relating to interference. Because the licensees (or lessees)
themselves, in their capacity as managers of private commons, exercise
control under the license authorization and are responsible for
establishing the technical parameters of the devices that would be used
within the private commons, they must exercise their responsibilities
so as to ensure compliance with the rules, including bearing direct
responsibility for establishing parameters of use that prevent harmful
interference beyond the private commons areas and the boundaries of
their licenses.
11. Based on the scant record before us and the wide variety of
ways in which a private commons could be implemented, we decline to
modify our rules at this time to further detail the responsibilities
placed on the managers of private commons. We are in no position, based
on what is before us, to make any determination by rule, as Cingular
Wireless requests, as to whether a particular mechanism may or may not
be sufficient for a licensee (or spectrum lessee) to exercise its
responsibilities in a given instance. Nor do we conclude that
establishing strict technical rules or requirements, as requested by
CTIA, is appropriate. We do not want to limit at this time the various
means by which a licensee (or lessee) might fulfill its obligations as
manager of a private commons. While a ``shut down'' mechanism may be
effective, it is not the only conceivable means to ensure that a
licensee (or lessee) exercises de facto control over the use of the
spectrum and complies with the Commission's rules under the license
authorization. We see no need at this time to limit other possible
means that might be consistent with the Commission's private commons
framework.
12. Finally, because Gateway's proposal is outside the scope of the
Second Further Notice, and not a logical outgrowth of it, we will not
address it in this proceeding. The Second Further Notice sought comment
on ways to increase spectrum access through opportunistic uses of
spectrum specifically within the context of the Commission's spectrum
leasing policies and rules set forth in the proceeding addressing the
development of secondary markets. The Second Further Notice did not
contemplate revising the Commission's initial licensing rules. We note
that the opportunities that Gateway sees for new uses of spectrum also
exist within the private commons framework that the Commission has
established in the Second Report and Order.
IV. Ordering Clauses
13. Pursuant to sections 1, 4(i), 301, 303(r), and 503 of the
Communications Act, as amended, 47 U.S.C. 151, 154(i), 301, 303(r), and
503, it is ordered that this Third Report and Order is adopted. The
Commission's Consumer Information Bureau, Reference Information Center,
shall send a copy of the Third Report and Order, including the
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E7-14768 Filed 7-31-07; 8:45 am]
BILLING CODE 6712-01-P
