The Operation of Wireless Communications Services in the 2.3 GHz Band; Establishment of Rules and Policies for the Digital Audio Radio Satellite Service in the 2310-2360 MHz Frequency Band, 2437-2440 [E8-598]
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Federal Register / Vol. 73, No. 10 / Tuesday, January 15, 2008 / Proposed Rules
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SUPPLEMENTARY INFORMATION:
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Dated: December 7, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E8–441 Filed 1–14–08; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 25 and 27
[WT Docket No. 07–293, IB Docket No. 95–
91; FCC 07–215]
The Operation of Wireless
Communications Services in the 2.3
GHz Band; Establishment of Rules and
Policies for the Digital Audio Radio
Satellite Service in the 2310–2360 MHz
Frequency Band
Federal Communications
Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:
SUMMARY: The Federal Communications
Commission (FCC) seeks comment on
service rules for the Wireless
Communications Service (WCS) and for
terrestrial repeaters used in conjunction
with the Satellite Digital Audio Radio
Service (SDARS). The intended purpose
of this proceeding is to determine
whether the Commission can develop
adequate limits on out-of-band
emissions for these two services that
would permit them coexist in adjacent
frequency bands.
DATES: Comments are due on or before
February 14, 2008 and reply comments
are due on or before March 17, 2008.
ADDRESSES: You may submit comment,
identified by WT Docket No. 07–293
and IB Docket No. 95–91, by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web Site: https:///
www.fcc.gov/cgb/ecfs. Follow the
instructions for submitting comments.
• People with Disabilities: Contact the
FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by e-mail: FCC504@fcc.gov
or phone 202–418–0530 or TTY: 202–
418–0432.
For detail instructions for submitting
comments and additional information
on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT:
Steven Spaeth (202) 418–1539, or
Stephen Duall, (202) 418–1103, Satellite
Division, International Bureau, Federal
PO 00000
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2437
Communications Commission,
Washington, DC 20554.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking (NPRM) in WT
Docket No. 07–293 and Second Further
Notice of Proposed Rulemaking in IB
Docket No. 95–91, adopted December
17, 2007 and released on December 18,
2007. The full text of the Notice of
Proposed Rulemaking is available for
public inspection and copying during
regular business hours at the FCC
Reference Information Center, Portals II,
445 12th Street, SW., Room CY–A257,
Washington, DC 20554. This document
may also be purchased from the
Commission’s duplicating contractor,
Best Copy and Printing, Inc., Portals II,
445 12th Street, SW., Room CY–B402,
Washington, DC 20554, telephone (202)
488–5300, facsimile (202) 488–5563, or
via e-mail FCC@BCPIWEB.com.
The NPRM does not contain any
proposed new or modified information
collection requirements subject to the
Paperwork Reduction Act of 1995,
Public Law 104–13. In addition, the
NPRM does not contain any proposed
new or modified ‘‘information
collection burden for small business
concerns with fewer than 25
employees’’ subject to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
Summary of Notice of Proposed
Rulemaking
SDARS licensees operate in the 2320–
2345 MHz band. This band is divided
evenly between the two SDARS
licensees, Sirius (2320–2332.5 MHz)
and XM (2332.5–2345 MHz). The WCS
service occupies frequencies on either
side of the SDARS allocation and
consists of six blocks of five megahertz
each in the 2305–2320 MHz and 2345–
2360 MHz bands.
The Commission has previously
invited comment on service rules for
SDARS terrestrial repeaters, used in
conjunction with the SDARS operators’
satellite systems in urban canyons and
other areas where satellite signal
reception is difficult. In this proceeding,
the Commission seeks to update that
record, and to invite comment on WCS
service rules, that would allow both
services to coexist in adjacent frequency
bands.
First, the Commission invites
comment on power limits for SDARS
terrestrial repeaters and WCS service
transmitters, to limit the potential for
harmful interference resulting from outof-band emissions. One proposal is an
average ‘‘ground-level emission limit’’
of -44 dBm, which would be applicable
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to both SDARS and WCS stations.
Another proposal is an EIRP limit of 2
kW, based on peak rather than average
power, and a 6 dB peak-to-average ratio.
The Commission invites parties to
suggest other proposals.
Second, the Commission seeks
comment on whether it is necessary to
restrict the collocation of SDARS and
WCS stations, either with stations
within the same service or with stations
of the other service.
Third, the Commission invites
commenters to recommend coordination
and recordkeeping requirements.
Fourth, the NPRM notes that the
Commission has authorized several
SDARS terrestrial repeaters granted
pursuant to Special Temporary
Authority (STA). The SDARS licensees
support grandfathering those repeaters,
so that those existing repeaters will not
be required to comply with any rules
adopted in this proceeding. The WCS
licensees propose requiring existing
SDARS terrestrial repeaters to come into
compliance with any rules adopted in
this proceeding within a year. The
Commission asks commenters to discuss
whether we should adopt the one-year
transition advocated by the WCS
Coalition, apply a different transition
period, or permit SDARS repeaters to
continue existing operations until a
request is made by a WCS licensee for
the SDARS licensee to come into
compliance with final rules.
Fifth, the NPRM seeks comment on
several miscellaneous issues. For
example, parties are invited to discuss
whether SDARS operators should be
required to comply with international
agreements as a condition on any
SDARS terrestrial repeater license. The
NPRM also considers whether to adopt
revision to the radiation hazard rules for
SDARS terrestrial repeaters. The NPRM
further considers allowing blanket
licensing of SDARS terrestrial repeaters.
Finally, the NPRM solicits comments
on a number of possible restrictions on
the operation of SDARS terrestrial
repeaters. One such possible restriction
could be to prohibit operation of SDARS
terrestrial repeaters except in
conjunction with SDARS satellites, both
in the Continental United States, and in
Alaska and Hawaii. The NPRM also
seeks comment on requiring SDARS
terrestrial repeaters to use the same
spectrum as their associated satellites.
Finally, the NPRM invites comment on
prohibiting use of repeaters to
retransmit the regional spot beams of
SDARS satellites, and on prohibiting
use of repeaters to transmit original
programming.
Initial Regulatory Flexibility Analysis:
With respect to WCS licensees subject to
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part 27 of the Commission’s rules, 47
CFR part 27, as required by the
Regulatory Flexibility Act of 1980, as
amended (RFA),1 the Commission has
prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the
possible significant economic impact on
a substantial number of small entities by
the policies and rules proposed in the
NPRM. Written public comments are
requested on this IRFA. Comments must
be identified as responses to the IRFA
and must be filed by the deadlines for
comments on the NPRM provided
above. The Commission will send a
copy of the NPRM, including this IRFA,
to the Chief Counsel for Advocacy of the
Small Business Administration (SBA).2
In addition, the NPRM and IRFA (or
summaries thereof) will be published in
the Federal Register.3
A. Need for, and Objectives of, the
Proposed Rules
The primary objective of this
proceeding is to consider changes to the
rules governing Wireless
Communications Service (WCS) which
may be necessary to facilitate the
coexistence of those licensees with
licensees in the SDARS and satellite
digital audio radio service (SDARS).
Such rule changes are needed because
SDARS terrestrial repeaters and WCS
operate in adjacent frequency bands.
SDARS licensees rely on terrestrial
repeaters to provide a nationwide
service. Thus, without appropriate
service rules for WCS and SDARS
operations, the out-of-band emissions
caused by each service could cause
harmful interference into the other,
which in turn would limit the
development of these services and
thereby be detrimental to the public
interest.
The NPRM is intended to refresh the
record on any necessary regulatory
requirements that would allow SDARS
terrestrial repeaters and WCS operation
to coexist in adjacent bands.
Specifically, the NPRM specifically
invites comments on two options for
power and emission limits for WCS
operations and SDARS repeaters,
including a peak ground-level emission
limit of ¥44 dBm, or an average EIRP
limit of two kilowatts (kW) EIRP, with
a 6 dB peak-to-average ratio.4
1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601–
612, has been amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
(SBREFA), Pub. L. No. 104–121, Title II, 110 Stat.
857 (1996).
2 See 5 U.S.C. 603(a).
3 See 5 U.S.C. 603(a).
4 These proposals are discussed in more detail in
Section III.A. of the NPRM.
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In the NPRM, the Commission
discusses recordkeeping and
coordination proposals to ensure towers
are deployed in a fashion to avoid
interference. In particular, the
Commission is considering whether to
adopt a proposal to require licensees to
provide notice to all licensed radio
stations potentially affected by SDARS
repeater and WCS station deployments.
B. Legal Basis for Proposed Rules
The proposed action is authorized
under sections 4(i), 303(r), and 403 of
the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), and
403.
C. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply
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. The RFA generally defines the
term ‘‘small entity’’ as having the same
meaning as the terms ‘‘small business,’’
‘‘small organization,’’ and ‘‘small
governmental jurisdiction.’’ 5 In
addition, the term ‘‘small business’’ has
the same meaning as the term ‘‘small
business concern’’ under the Small
Business Act.6 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 Small Business
Administration (SBA).7 A small
organization is generally ‘‘any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.’’ 8 Below, we
further describe and estimate the
number of small entity licensees and
regulatees that may be affected by the
rules changes explored in the NPRM.
WCS Licensees. Wireless
Communication Services have flexible
rules that allow licensees to either
operate commercial fixed or mobile
radio services or use the spectrum for
private use. The SBA rules establish a
size standard for ‘‘Wireless
Telecommunications Carriers,’’ which
encompasses business entities engaged
5 See
5 U.S.C. 601(6).
5 U.S.C. 601(3) (incorporating by reference
the definition of ‘‘small business concern’’ in 15
U.S.C. 632). Pursuant to the RFA, the statutory
definition of a small business applies unless an
agency, after consultation with the Office of
Advocacy of the Small Business Administration
and after opportunity for public comment,
establishes one or more definitions which are
appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register.
7 See Small Business Act, 5 U.S.C. 632 (1996).
8 See 5 U.S.C. 601(4).
6 See
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in radiotelephone communications
employing no more that 1,500 persons.9
There are currently 158 active WCS
licenses held by 13 licensees. Of these,
6 licensees qualify as small entities and
hold a total of 32 licenses.
RF Equipment Manufacturers. The
Census Bureau defines this category as
follows: ‘‘This industry comprises
establishments primarily engaged in
manufacturing radio and television
broadcast and wireless communications
equipment. Examples of products made
by these establishments are:
transmitting and receiving antennas,
cable television equipment, GPS
equipment, pagers, cellular phones,
mobile communications equipment, and
radio and television studio and
broadcasting equipment.’’ 10 The SBA
has developed a small business size
standard for Radio and Television
Broadcasting and Wireless
Communications Equipment
Manufacturing, which is: all such firms
having 750 or fewer employees.11
According to Census Bureau data for
2002, there were a total of 1,041
establishments in this category that
operated for the entire year.12 Of this
total, 1,010 had employment of under
500, and an additional 13 had
employment of 500 to 999.13 Thus,
under this size standard, the majority of
firms can be considered small.
D. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
There are no specific reporting or
recordkeeping requirements proposed in
the NPRM, other than the recordkeeping
and coordination requirements
discussed in Section A, supra.
9 See
13 CFR 121.201, NAICS code 517110.
Census Bureau, 2002 NAICS Definitions,
‘‘334220 Radio and Television Broadcasting and
Wireless Communications Equipment
Manufacturing’’; https://www.census.gov/epcd/
naics02/def/NDEF334.HTM#N3342.
11 See 13 CFR 121.201, NAICS code 334220.
12 U.S. Census Bureau, American FactFinder,
2002 Economic Census, Industry Series, Industry
Statistics by Employment Size, NAICS code 334220
(released May 26, 2005); https://
factfinder.census.gov. The number of
‘‘establishments’’ is a less helpful indicator of small
business prevalence in this context than would be
the number of ‘‘firms’’ or ‘‘companies,’’ because the
latter take into account the concept of common
ownership or control. Any single physical location
for an entity is an establishment, even though that
location may be owned by a different establishment.
Thus, the numbers given may reflect inflated
numbers of businesses in this category, including
the numbers of small businesses. In this category,
the Census breaks out data for firms or companies
only to give the total number of such entities for
2002, which was 929.
13 Id. An additional 18 establishments had
employment of 1,000 or more.
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E. Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives: (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 or
reporting requirements under the rule
for 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 small entities.14
As stated in Section A, supra, the
NPRM specifically invites comments on
two options for power and emission
limits for WCS operations and SDARS
repeaters, including a peak ground-level
emission limit of ¥44 dBm, or an
average EIRP limit of two kilowatts (kW)
EIRP, with a 6 dB peak-to-average ratio.
The NPRM also invites interested
parties to suggest alternative proposals.
At this time, the Commission has not
excluded any alternative proposal
concerning ground-level emission limits
and average EIRP limits from its
consideration, but it would do so in this
proceeding if the record indicates that a
particular proposal would have a
significant and unjustifiable adverse
economic impact on small entities.
However, the Commission has also
invited interested parties to propose any
other alternative form of coordination if
it would be more efficient or effective.
However, the Commission will not
consider any alternative proposal that
would have a significant and
unjustifiable adverse economic impact
on small entities.
In the NPRM, the Commission
discusses recordkeeping and
coordination proposals to ensure towers
are deployed in a fashion to avoid
interference. In particular, the
Commission is considering a proposal to
require licensees to provide notice to all
licensed radio stations potentially
affected by SDARS repeater and WCS
station deployments. However, as noted
supra in Section A, the Commission has
also invited interested parties to
propose any other alternative form of
coordination if it would be more
efficient or effective. However, the
Commission will not consider any
alternative that would have a significant
14 See
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2439
and unjustifiable adverse economic
impact on small entities.
In the NPRM, the Commission seeks
comment on grandfathering and
transition proposals for existing SDARS
repeaters. One proposal is to grandfather
all existing SDARS terrestrial repeaters,
thereby exempting those repeaters from
any out-of-band power limits adopted in
this rulemaking proceeding. Another is
to require the operators of those
repeaters to come into compliance with
any such limits within a year from the
adoption of such rules. The Commission
invites comments on both of these
grandfathering-related and transitionrelated proposals, and invites
commenters to recommend other
transition periods. The Commission
solicits any alternative proposals that
would not incur significant and
unjustifiable adverse impact on small
entities.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
None.
Initial Regulatory Flexibility
Certification: With respect to SDARS
licensees subject to part 25 of the
Commission’s rules, 47 CFR part 25, the
Regulatory Flexibility Act (RFA) 15
requires that an agency prepare a
regulatory flexibility analysis for noticeand-comment rulemaking proceedings,
unless the agency certifies that ‘‘the rule
will not, if promulgated, have a
significant economic impact on a
substantial number of small entities.’’ 16
The RFA generally defines ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ 17 In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act.18 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
15 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601–
612, has been amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
(SBREFA), Pub. L. No. 104–121, 110 Stat. 857
(1996).
16 See 5 U.S.C. 605(b).
17 5 U.S.C. 601(6).
18 5 U.S.C. 601(3) (incorporating by reference the
definition of ‘‘ small business concern’’ in Small
Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C.
601(3), the statutory definition of a small business
applies ‘‘unless an agency, after consultation with
the Office of Advocacy of the Small Business
Administration and after opportunity for public
comment, establishes one or more definitions of
such term which are appropriate to the activities of
the agency and publishes such definition(s) in the
Federal Register.’’
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Federal Register / Vol. 73, No. 10 / Tuesday, January 15, 2008 / Proposed Rules
additional criteria established by the
Small Business Administration (SBA).19
With respect to the DARS licensees,
only two operators hold licenses to
provide SDARS service, XM and Sirius.
Both of these licensees are dominant in
their field and neither qualify as small
entities. SDARS provides nationally
distributed subscription radio service,
which requires a great investment of
capital for operation. Because SDARS
service requires significant capital, we
believe it is unlikely that a small entity
as defined by the Small Business
Administration would have the
financial wherewithal to become an
SDARS licensee.20
The Commission therefore certifies,
pursuant to the RFA, that the proposals
in the Second Further Notice in IB
Docket No. 95–91, if adopted, will not
U.S.C. 632.
20 The small business size standard for the census
category, ‘‘Radio Networks,’’ which includes radio
satellite broadcasting is $6.5 million or less in
receipts, per year. See 13 CFR 121.201, NAICS code
515111.
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have a significant economic impact on
a substantial number of small entities. If
commenters believe that the proposals
discussed in the NPRM require
additional RFA analysis, they should
include a discussion of these issues in
their comments and additionally label
them as RFA comments. The
Commission will send a copy of the
NPRM, including a copy of this initial
certification, to the Chief Counsel for
Advocacy of the SBA. In addition, a
copy of the NPRM and this initial
certification will be published in the
Federal Register.21
Ordering Clauses
Accordingly, it is ordered that,
pursuant to the authority contained in
sections 1, 4(i), 4(j), 7(a), 301, 303(c),
303(f), 303(g), 303(r), 303(y), and 308 of
the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j),
157(a), 301, 303(c), 303(f), 303(g), 303(r),
303(y), 308, the Second Further Notice
21 See
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Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8–598 Filed 1–14–08; 8:45 am]
BILLING CODE 6712–01–P
5 U.S.C. 605(b).
Frm 00006
of Proposed Rulemaking in IB Docket
No. 95–91 and Notice of Proposed
Rulemaking in WT Docket No. 07–293
is adopted.
It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center shall send a copy of
the Second Further Notice of Proposed
Rulemaking in IB Docket No. 95–91 and
Notice of Proposed Rulemaking in WT
Docket No. 07–293, including the Initial
Regulatory Flexibility Certification and
Initial Regulatory Flexibility Analysis,
to the Chief Counsel for Advocacy of the
Small Business Administration, in
accordance with section 603(a) of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. (1981).
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Agencies
[Federal Register Volume 73, Number 10 (Tuesday, January 15, 2008)]
[Proposed Rules]
[Pages 2437-2440]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-598]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 25 and 27
[WT Docket No. 07-293, IB Docket No. 95-91; FCC 07-215]
The Operation of Wireless Communications Services in the 2.3 GHz
Band; Establishment of Rules and Policies for the Digital Audio Radio
Satellite Service in the 2310-2360 MHz Frequency Band
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Communications Commission (FCC) seeks comment on
service rules for the Wireless Communications Service (WCS) and for
terrestrial repeaters used in conjunction with the Satellite Digital
Audio Radio Service (SDARS). The intended purpose of this proceeding is
to determine whether the Commission can develop adequate limits on out-
of-band emissions for these two services that would permit them coexist
in adjacent frequency bands.
DATES: Comments are due on or before February 14, 2008 and reply
comments are due on or before March 17, 2008.
ADDRESSES: You may submit comment, identified by WT Docket No. 07-293
and IB Docket No. 95-91, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: https:///
www.fcc.gov/cgb/ecfs. Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone 202-418-
0530 or TTY: 202-418-0432.
For detail instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Steven Spaeth (202) 418-1539, or
Stephen Duall, (202) 418-1103, Satellite Division, International
Bureau, Federal Communications Commission, Washington, DC 20554.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM) in WT Docket No. 07-293 and Second
Further Notice of Proposed Rulemaking in IB Docket No. 95-91, adopted
December 17, 2007 and released on December 18, 2007. The full text of
the Notice of Proposed Rulemaking is available for public inspection
and copying during regular business hours at the FCC Reference
Information Center, Portals II, 445 12th Street, SW., Room CY-A257,
Washington, DC 20554. This document may also be purchased from the
Commission's duplicating contractor, Best Copy and Printing, Inc.,
Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
telephone (202) 488-5300, facsimile (202) 488-5563, or via e-mail
FCC@BCPIWEB.com.
The NPRM does not contain any proposed new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995,
Public Law 104-13. In addition, the NPRM does not contain any proposed
new or modified ``information collection burden for small business
concerns with fewer than 25 employees'' subject to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
Summary of Notice of Proposed Rulemaking
SDARS licensees operate in the 2320-2345 MHz band. This band is
divided evenly between the two SDARS licensees, Sirius (2320-2332.5
MHz) and XM (2332.5-2345 MHz). The WCS service occupies frequencies on
either side of the SDARS allocation and consists of six blocks of five
megahertz each in the 2305-2320 MHz and 2345-2360 MHz bands.
The Commission has previously invited comment on service rules for
SDARS terrestrial repeaters, used in conjunction with the SDARS
operators' satellite systems in urban canyons and other areas where
satellite signal reception is difficult. In this proceeding, the
Commission seeks to update that record, and to invite comment on WCS
service rules, that would allow both services to coexist in adjacent
frequency bands.
First, the Commission invites comment on power limits for SDARS
terrestrial repeaters and WCS service transmitters, to limit the
potential for harmful interference resulting from out-of-band
emissions. One proposal is an average ``ground-level emission limit''
of -44 dBm, which would be applicable
[[Page 2438]]
to both SDARS and WCS stations. Another proposal is an EIRP limit of 2
kW, based on peak rather than average power, and a 6 dB peak-to-average
ratio. The Commission invites parties to suggest other proposals.
Second, the Commission seeks comment on whether it is necessary to
restrict the collocation of SDARS and WCS stations, either with
stations within the same service or with stations of the other service.
Third, the Commission invites commenters to recommend coordination
and recordkeeping requirements.
Fourth, the NPRM notes that the Commission has authorized several
SDARS terrestrial repeaters granted pursuant to Special Temporary
Authority (STA). The SDARS licensees support grandfathering those
repeaters, so that those existing repeaters will not be required to
comply with any rules adopted in this proceeding. The WCS licensees
propose requiring existing SDARS terrestrial repeaters to come into
compliance with any rules adopted in this proceeding within a year. The
Commission asks commenters to discuss whether we should adopt the one-
year transition advocated by the WCS Coalition, apply a different
transition period, or permit SDARS repeaters to continue existing
operations until a request is made by a WCS licensee for the SDARS
licensee to come into compliance with final rules.
Fifth, the NPRM seeks comment on several miscellaneous issues. For
example, parties are invited to discuss whether SDARS operators should
be required to comply with international agreements as a condition on
any SDARS terrestrial repeater license. The NPRM also considers whether
to adopt revision to the radiation hazard rules for SDARS terrestrial
repeaters. The NPRM further considers allowing blanket licensing of
SDARS terrestrial repeaters.
Finally, the NPRM solicits comments on a number of possible
restrictions on the operation of SDARS terrestrial repeaters. One such
possible restriction could be to prohibit operation of SDARS
terrestrial repeaters except in conjunction with SDARS satellites, both
in the Continental United States, and in Alaska and Hawaii. The NPRM
also seeks comment on requiring SDARS terrestrial repeaters to use the
same spectrum as their associated satellites. Finally, the NPRM invites
comment on prohibiting use of repeaters to retransmit the regional spot
beams of SDARS satellites, and on prohibiting use of repeaters to
transmit original programming.
Initial Regulatory Flexibility Analysis: With respect to WCS
licensees subject to part 27 of the Commission's rules, 47 CFR part 27,
as required by the Regulatory Flexibility Act of 1980, as amended
(RFA),\1\ the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in the NPRM. Written public comments are requested on this
IRFA. Comments must be identified as responses to the IRFA and must be
filed by the deadlines for comments on the NPRM provided above. The
Commission will send a copy of the NPRM, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration
(SBA).\2\ In addition, the NPRM and IRFA (or summaries thereof) will be
published in the Federal Register.\3\
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\1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
\2\ See 5 U.S.C. 603(a).
\3\ See 5 U.S.C. 603(a).
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A. Need for, and Objectives of, the Proposed Rules
The primary objective of this proceeding is to consider changes to
the rules governing Wireless Communications Service (WCS) which may be
necessary to facilitate the coexistence of those licensees with
licensees in the SDARS and satellite digital audio radio service
(SDARS). Such rule changes are needed because SDARS terrestrial
repeaters and WCS operate in adjacent frequency bands. SDARS licensees
rely on terrestrial repeaters to provide a nationwide service. Thus,
without appropriate service rules for WCS and SDARS operations, the
out-of-band emissions caused by each service could cause harmful
interference into the other, which in turn would limit the development
of these services and thereby be detrimental to the public interest.
The NPRM is intended to refresh the record on any necessary
regulatory requirements that would allow SDARS terrestrial repeaters
and WCS operation to coexist in adjacent bands. Specifically, the NPRM
specifically invites comments on two options for power and emission
limits for WCS operations and SDARS repeaters, including a peak ground-
level emission limit of -44 dBm, or an average EIRP limit of two
kilowatts (kW) EIRP, with a 6 dB peak-to-average ratio.\4\
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\4\ These proposals are discussed in more detail in Section
III.A. of the NPRM.
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In the NPRM, the Commission discusses recordkeeping and
coordination proposals to ensure towers are deployed in a fashion to
avoid interference. In particular, the Commission is considering
whether to adopt a proposal to require licensees to provide notice to
all licensed radio stations potentially affected by SDARS repeater and
WCS station deployments.
B. Legal Basis for Proposed Rules
The proposed action is authorized under sections 4(i), 303(r), and
403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
303(r), and 403.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
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. The RFA generally defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' \5\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\6\ 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
Small Business Administration (SBA).\7\ A small organization is
generally ``any not-for-profit enterprise which is independently owned
and operated and is not dominant in its field.'' \8\ Below, we further
describe and estimate the number of small entity licensees and
regulatees that may be affected by the rules changes explored in the
NPRM.
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\5\ See 5 U.S.C. 601(6).
\6\ See 5 U.S.C. 601(3) (incorporating by reference the
definition of ``small business concern'' in 15 U.S.C. 632). Pursuant
to the RFA, the statutory definition of a small business applies
unless an agency, after consultation with the Office of Advocacy of
the Small Business Administration and after opportunity for public
comment, establishes one or more definitions which are appropriate
to the activities of the agency and publishes such definition(s) in
the Federal Register.
\7\ See Small Business Act, 5 U.S.C. 632 (1996).
\8\ See 5 U.S.C. 601(4).
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WCS Licensees. Wireless Communication Services have flexible rules
that allow licensees to either operate commercial fixed or mobile radio
services or use the spectrum for private use. The SBA rules establish a
size standard for ``Wireless Telecommunications Carriers,'' which
encompasses business entities engaged
[[Page 2439]]
in radiotelephone communications employing no more that 1,500
persons.\9\ There are currently 158 active WCS licenses held by 13
licensees. Of these, 6 licensees qualify as small entities and hold a
total of 32 licenses.
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\9\ See 13 CFR 121.201, NAICS code 517110.
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RF Equipment Manufacturers. The Census Bureau defines this category
as follows: ``This industry comprises establishments primarily engaged
in manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' \10\ The SBA has developed a small business
size standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: all such firms having
750 or fewer employees.\11\ According to Census Bureau data for 2002,
there were a total of 1,041 establishments in this category that
operated for the entire year.\12\ Of this total, 1,010 had employment
of under 500, and an additional 13 had employment of 500 to 999.\13\
Thus, under this size standard, the majority of firms can be considered
small.
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\10\ U.S. Census Bureau, 2002 NAICS Definitions, ``334220 Radio
and Television Broadcasting and Wireless Communications Equipment
Manufacturing''; https://www.census.gov/epcd/naics02/def/
NDEF334.HTM#N3342.
\11\ See 13 CFR 121.201, NAICS code 334220.
\12\ U.S. Census Bureau, American FactFinder, 2002 Economic
Census, Industry Series, Industry Statistics by Employment Size,
NAICS code 334220 (released May 26, 2005); https://
factfinder.census.gov. The number of ``establishments'' is a less
helpful indicator of small business prevalence in this context than
would be the number of ``firms'' or ``companies,'' because the
latter take into account the concept of common ownership or control.
Any single physical location for an entity is an establishment, even
though that location may be owned by a different establishment.
Thus, the numbers given may reflect inflated numbers of businesses
in this category, including the numbers of small businesses. In this
category, the Census breaks out data for firms or companies only to
give the total number of such entities for 2002, which was 929.
\13\ Id. An additional 18 establishments had employment of 1,000
or more.
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
There are no specific reporting or recordkeeping requirements
proposed in the NPRM, other than the recordkeeping and coordination
requirements discussed in Section A, supra.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
The RFA requires an agency to describe any significant alternatives
that it has considered in reaching its proposed approach, which may
include the following four alternatives: (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 or
reporting requirements under the rule for 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 small entities.\14\
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\14\ See 5 U.S.C. 603(c).
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As stated in Section A, supra, the NPRM specifically invites
comments on two options for power and emission limits for WCS
operations and SDARS repeaters, including a peak ground-level emission
limit of -44 dBm, or an average EIRP limit of two kilowatts (kW) EIRP,
with a 6 dB peak-to-average ratio. The NPRM also invites interested
parties to suggest alternative proposals.
At this time, the Commission has not excluded any alternative
proposal concerning ground-level emission limits and average EIRP
limits from its consideration, but it would do so in this proceeding if
the record indicates that a particular proposal would have a
significant and unjustifiable adverse economic impact on small
entities.
However, the Commission has also invited interested parties to
propose any other alternative form of coordination if it would be more
efficient or effective. However, the Commission will not consider any
alternative proposal that would have a significant and unjustifiable
adverse economic impact on small entities.
In the NPRM, the Commission discusses recordkeeping and
coordination proposals to ensure towers are deployed in a fashion to
avoid interference. In particular, the Commission is considering a
proposal to require licensees to provide notice to all licensed radio
stations potentially affected by SDARS repeater and WCS station
deployments. However, as noted supra in Section A, the Commission has
also invited interested parties to propose any other alternative form
of coordination if it would be more efficient or effective. However,
the Commission will not consider any alternative that would have a
significant and unjustifiable adverse economic impact on small
entities.
In the NPRM, the Commission seeks comment on grandfathering and
transition proposals for existing SDARS repeaters. One proposal is to
grandfather all existing SDARS terrestrial repeaters, thereby exempting
those repeaters from any out-of-band power limits adopted in this
rulemaking proceeding. Another is to require the operators of those
repeaters to come into compliance with any such limits within a year
from the adoption of such rules. The Commission invites comments on
both of these grandfathering-related and transition-related proposals,
and invites commenters to recommend other transition periods. The
Commission solicits any alternative proposals that would not incur
significant and unjustifiable adverse impact on small entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
Initial Regulatory Flexibility Certification: With respect to SDARS
licensees subject to part 25 of the Commission's rules, 47 CFR part 25,
the Regulatory Flexibility Act (RFA) \15\ requires that an agency
prepare a regulatory flexibility analysis for notice-and-comment
rulemaking proceedings, unless the agency certifies that ``the rule
will not, if promulgated, have a significant economic impact on a
substantial number of small entities.'' \16\ The RFA generally defines
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' \17\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\18\ 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
[[Page 2440]]
additional criteria established by the Small Business Administration
(SBA).\19\
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\15\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Pub. L. No. 104-121, 110 Stat. 857 (1996).
\16\ See 5 U.S.C. 605(b).
\17\ 5 U.S.C. 601(6).
\18\ 5 U.S.C. 601(3) (incorporating by reference the definition
of `` small business concern'' in Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\19\ 15 U.S.C. 632.
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With respect to the DARS licensees, only two operators hold
licenses to provide SDARS service, XM and Sirius. Both of these
licensees are dominant in their field and neither qualify as small
entities. SDARS provides nationally distributed subscription radio
service, which requires a great investment of capital for operation.
Because SDARS service requires significant capital, we believe it is
unlikely that a small entity as defined by the Small Business
Administration would have the financial wherewithal to become an SDARS
licensee.\20\
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\20\ The small business size standard for the census category,
``Radio Networks,'' which includes radio satellite broadcasting is
$6.5 million or less in receipts, per year. See 13 CFR 121.201,
NAICS code 515111.
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The Commission therefore certifies, pursuant to the RFA, that the
proposals in the Second Further Notice in IB Docket No. 95-91, if
adopted, will not have a significant economic impact on a substantial
number of small entities. If commenters believe that the proposals
discussed in the NPRM require additional RFA analysis, they should
include a discussion of these issues in their comments and additionally
label them as RFA comments. The Commission will send a copy of the
NPRM, including a copy of this initial certification, to the Chief
Counsel for Advocacy of the SBA. In addition, a copy of the NPRM and
this initial certification will be published in the Federal
Register.\21\
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\21\ See 5 U.S.C. 605(b).
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Ordering Clauses
Accordingly, it is ordered that, pursuant to the authority
contained in sections 1, 4(i), 4(j), 7(a), 301, 303(c), 303(f), 303(g),
303(r), 303(y), and 308 of the Communications Act of 1934, as amended,
47 U.S.C. 151, 154(i), 154(j), 157(a), 301, 303(c), 303(f), 303(g),
303(r), 303(y), 308, the Second Further Notice of Proposed Rulemaking
in IB Docket No. 95-91 and Notice of Proposed Rulemaking in WT Docket
No. 07-293 is adopted.
It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center shall send a
copy of the Second Further Notice of Proposed Rulemaking in IB Docket
No. 95-91 and Notice of Proposed Rulemaking in WT Docket No. 07-293,
including the Initial Regulatory Flexibility Certification and Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration, in accordance with section 603(a) of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. (1981).
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-598 Filed 1-14-08; 8:45 am]
BILLING CODE 6712-01-P