Maritime Communications, 33653-33656 [2011-14314]
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Federal Register / Vol. 76, No. 111 / Thursday, June 9, 2011 / Rules and Regulations
that it will not impose substantial direct
costs on Tribal governments or preempt
Tribal law.
The Congressional Review Act,
5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. The EPA will
submit a report containing this action
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 the rule in the Federal
Register. A major rule cannot take effect
until 60 days after it is published in the
Federal Register. This action is not a
‘‘major rule’’ as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by August 8, 2011. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
and Reporting and recordkeeping
requirements.
Dated: May, 25, 2011.
Dennis J. McLerran,
Regional Administrator, Region 10.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for Part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart N—Idaho
2. In § 52.670(c), the table in
paragraph (c) is amended:
■ a. By revising entries 006 and 007.
■ b. By revising entry 651.
■ c. By adding entries 665 through 668.
■
§ 52.670
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Identification of plan.
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(c) * * *
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EPA-APPROVED IDAHO REGULATIONS
State citation
Title/subject
State effective date
EPA approval date
Explanations
Idaho Administrative Procedures Act (IDAPA) 58.01.01—Rules for the Control of Air Pollution in Idaho
*
006 .....................
*
General Definitions
*
*
3/30/07 4/11/06, 7/1/02, 4/5/00,
3/20/97, 5/1/94.
*
6/9/11 [Insert page number
where the document begins].
007 .....................
Definitions for the
Purposes of Sections 200 through
225 and 400
through 461.
3/30/07, 4/11/06, 4/5/00, 6/30/
95, 5/1/95, 5/1/94.
6/9/11 [Insert page number
where the document begins].
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651 .....................
*
General Rules .......
*
*
3/30/07, 5/1/94 ...........................
665 .....................
Regional Haze
Rules.
Reasonable
Progress Goals.
Long-Term Strategy for Regional
Haze.
BART Requirement
for Regional
Haze.
3/30/07 .......................................
*
6/9/11 [Insert page
where the document
6/9/11 [Insert page
where the document
6/9/11 [Insert page
where the document
6/9/11 [Insert page
where the document
666 .....................
667 .....................
668 .....................
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3/30/07 .......................................
3/30/07 .......................................
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[FR Doc. 2011–14204 Filed 6–8–11; 8:45 am]
BILLING CODE 6560–50–P
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FEDERAL COMMUNICATIONS
COMMISSION
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Maritime Communications
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
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[WT Docket No. 04–344; FCC 11–80]
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47 CFR Parts 2, 80 and 90
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Except Section 006.55(b) (re:
state air toxics in definition of
‘‘modification’’).
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In this document, the Federal
Communications Commission
(Commission or FCC) denies a petition
for reconsideration of the period in
which inland VPCSA incumbents must
vacate Channel 87B, and declines to
extend this period generally to non-AIS
operations because such an extension
would undermine the primary goal of
this proceeding. Further, the
Commission determines that
rechannelizing the VPC frequency band
SUMMARY:
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Federal Register / Vol. 76, No. 111 / Thursday, June 9, 2011 / Rules and Regulations
in order to facilitate more efficient
spectrum usage is beyond the scope of
this rulemaking proceeding.
DATES:
Effective July 11, 2011.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Tobias, Jeff.Tobias@FCC.gov,
Wireless Telecommunications Bureau,
(202) 418–1617, or TTY (202) 418–7233.
This is a
summary of the Federal
Communications Commission’s
Memorandum Opinion and Order
(MO&O) in WT Docket No. 04–344, FCC
11–80, adopted on May 24, 2011, and
released on May 26, 2011. The full text
of this document is available for
inspection and copying during normal
business hours in the FCC Reference
Center, 445 12th Street, SW.,
Washington, DC 20554. The complete
text may be purchased from the
Commission’s copy contractor, Best
Copy and Printing, Inc., 445 12th Street,
SW., Room CY–B402, Washington, DC
20554. The full text may also be
downloaded at: https://www.fcc.gov.
Alternative formats are available to
persons with disabilities by sending an
e-mail to fcc504@fcc.gov or by calling
the Consumer & Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (tty).
1. AIS, which is used to monitor and
track maritime traffic for purposes of
both navigational safety and homeland
security, is a global maritime navigation
safety communications system through
which marine vessels automatically
transmit navigational data to
appropriately equipped shore stations,
other ships, and aircraft. The
International Telecommunication Union
has designated VHF maritime Channel
87B for AIS use in international waters.
In the Report and Order, published at 71
FR 60067, October 12, 2006, in this
proceeding, the Commission designated
Channel 87B for exclusive AIS use only
in the nine maritime VPCSAs. Because
the majority of the commenters favored
designating Channel 87B for exclusive
AIS use nationwide, the Commission
invited comment in the Further Notice
of Proposed Rule Making (Further
NPRM), published at 71 FR 60102,
October 12, 2006, on whether to extend
the AIS designation to the thirty-three
inland VPCSAs. In the Second Report
and Order, published at 74 FR 5117,
September 29, 2009, the Commission
concluded that it would serve the public
interest to designate Channel 87B for
exclusive AIS use on a nationwide
basis. The Commission required inland
VPCSA licensees to vacate Channel 87B
within two years after the effective date
of the redesignation of Channel 87B.
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2. Two duplex VPC channels had
been set aside for public safety
interoperability in each inland VPCSA.
Specifically, Channel 25 (157.250/
161.850 MHz) was set aside in each
inland VPCSA, and either Channel 84
(157.225/161.825 MHz) or Channel 85
(157.275/161.875 MHz) was also set
aside in each inland VPCSA. The
Commission determined in the Second
Report and Order that it was
appropriate to redesignate Channels 84
and 85 for use by inland VPC licensees.
PacifiCorp, among other commenters,
specifically requested this additional
VPC spectrum. The Commission
grandfathered the public safety
incumbents on Channels 84 and 85 for
fifteen years following the effective date
of the redesignation of Channel 87B.
The Commission recognized that, with
the inland VPCSA licensees having to
vacate Channel 87B within two years
while the public safety incumbents
could remain on Channels 84 and 85 for
fifteen years, there would be a period
during which some inland VPCSA
incumbents would have to protect
incumbent public safety operations on
Channel 84 or 85.
3. PacifiCorp argues that allowing
public safety incumbents to remain on
Channels 84 and 85 for up to fifteen
years while mandating that inland
VPCSA licensees migrate to those
channels within two years significantly
undermines the ability of certain
geographic area licensees on VPC
Channel 87, such as PacifiCorp, to make
a seamless transition to replacement
Channels 84 and 85. It requests that the
Commission extend the grandfathering
period for inland VPCSA licensees to
remain on Channel 87B to six months
after the public safety incumbent(s) in
that VPCSA vacate Channel 84 or 85. In
the alternative, PacifiCorp requests that
affected inland VPCSA licensees be
given the right to apply for an
unlicensed exclusive-use channel in the
VHF band, such as a part 22 VHF
channel, to use until six months after
Channel 84 or 85 is vacated.
4. The Commission declines to extend
the grandfathering period for inland
VPCSA licensees to remain on Channel
87B. The paramount goal of this
proceeding is to ensure that AIS is
deployed widely, quickly, reliably, and
cost-effectively, and in a manner that
will maximize its capabilities. In the
Second Report and Order, moreover, the
Commission concluded that there are
compelling safety and national security
reasons to designate Channel 87B for
AIS on a nationwide basis. Permitting
the continued use of Channel 87B for
non-AIS communications, the
Commission stated, would compromise
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the integrity of the domestic, and by
extension the global, AIS network. The
Commission continues to believe that
permitting inland VPCSA incumbents to
remain on Channel 87B for an extended
period would impede the rapid,
interference-free implementation of the
domestic AIS network, and thus
undermine the primary goal of this
proceeding. In addition, the
Commission does not believe that the
record substantiates the claim that
inland VPCSA licensees in general are
unduly burdened by the requirement to
migrate to Channel 84 or 85 within two
years while protecting any co-channel
public safety incumbents for up to
fifteen years. In most of the part of the
country that is divided into inland
VPCSAs, there are no public safety
incumbents on Channel 84 or 85. No
other inland VPCSA incumbent has
sought reconsideration of the
grandfathering provisions adopted in
the Second Report and Order, and even
PacifiCorp confines its discussion to the
situation in Wyoming. The
Commission’s rules permit PacifiCorp to
request a waiver, and argue why its
circumstances satisfy the applicable
waiver standard. The Commission
therefore finds that PacifiCorp has not
demonstrated a need to revisit the
grandfathering provisions adopted in
the Second Report and Order.
5. PacifiCorp also asserts that, even
where Channels 84 and 85 are not
encumbered by public safety
incumbents, the designation of those
channels as VPC spectrum does not
fully offset inland VPCSA licensees’ loss
of Channel 87B. VPC channels are 25
kilohertz wide, but, under
§ 80.371(c)(1)(iii) of the Commission’s
rules, VPC licensees may also operate
on 12.5 kHz offset frequencies in areas
where the licensee is authorized on both
frequencies adjacent to the offset
frequency, and in areas where the
licensee on the other side of the offset
frequency consents to the licensee’s use
of the adjacent offset frequency. Thus,
an inland VPCSA incumbent licensed
on Channels 27 (157.350/161.950 MHz),
87 (157.375/161.975 MHz), and 28
(157.400/162.000 MHz) can operate on
the interstitial channel between
Channels 27 and 87 and the interstitial
channel between Channels 87 and 28.
After the licensee replaces Channel 87B
with Channel 84 or 85, however, it loses
those two interstitial channels and gains
only one interstitial channel (i.e., either
the interstitial channel between
Channels 24 and 84 or the interstitial
channel between Channels 85 and 26),
because Channels 84 and 85 both are
adjacent to Channel 25, which remains
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designated for public safety
interoperability. Consequently,
PacifiCorp argues, requiring an inland
VPCSA incumbent to relocate from
Channel 87B to Channel 84 or 85 will
result in a net loss to the incumbent of
at least one 12.5 kHz interstitial
channel.
6. To address both this particular
issue and what PacifiCorp views more
broadly as the current inefficient use of
the VPC spectrum, PacifiCorp
recommends that the Commission revise
the channel plan for the inland VPCSAs.
Specifically, PacifiCorp proposes that
the Commission split the 25 kHz VPC
channels into adjacent 12.5 kHz
channels, and permit inland VPC
licensees to use two 12.5 kHz channels
with channel centers offset 6.25 kHz
from the center frequency of each
existing 25 kHz channel. In the
alternative, PacifiCorp suggests that the
Commission retain the existing VPC
band plan, but shift the twenty-five
kilohertz of spectrum that is designated
for public safety interoperability in
order to make an additional interstitial
channel available for VPC use. Such
action, PacifiCorp says, will allow for
more intensive use of VPC spectrum by
avoiding the stranding of spectrum
where a licensee chooses to deploy
more spectrally-efficient 12.5 kHz
equipment but does not control both of
the adjacent 25 kHz channels.
7. The Commission concludes that
PacifiCorp’s proposals to modify the
VPC channel plan are beyond the scope
of this rulemaking proceeding. The
Further NPRM did not seek comment on
them, and they are not a logical
outgrowth of any proposals that the
Further NPRM did make. In the Further
NPRM, the Commission did not invite
comment on modifying either the VPC
channel plan or the public safety
interoperability set-aside (except for
redesignating one channel for VPC use),
and did not suggest that it might change
the rules with respect to any channels
other than Channels 84, 85, and 87. Nor
did any commenter raise the possibility.
The Commission sees no reason to
depart here from its well-established
policy of not considering matters that
are first raised on reconsideration,
absent extenuating circumstances. This
policy serves the same goals of
procedural regularity, administrative
efficiency, and fundamental fairness
that underlie Section 405 of the
Communications Act of 1934, as
amended, and the notice-and-comment
rulemaking requirements of the
Administrative Procedure Act (APA).
8. PacifiCorp argues that its proposed
alternative channel plans are a natural
and logical outgrowth of actions already
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contemplated and taken by the
Commission, and would merely
complete the prior efforts by the
Commission to ‘restore the operating
capacity’ of inland VPCSA licensees.
The Commission disagrees. In
determining whether an agency’s
adopted rule can be deemed a logical
outgrowth of a proposed rule, the focus
of the inquiry is on whether the
purposes underlying the APA noticeand-comment requirements have been
served. In furtherance of this inquiry,
the agency should consider whether a
new round of notice and comment
would provide the first opportunity for
interested parties to offer comments that
could persuade the agency to modify its
rule, and whether the final rule could
have been anticipated by persons with
knowledge of the proposed rule. The
Commission concludes that interested
parties who potentially may have
objected to, or wished to comment on,
the rule changes now proposed by
PacifiCorp did not have meaningful
notice that such rule changes might be
adopted, and could not have anticipated
that, in this proceeding focused on
domestic implementation of AIS, the
Commission might broadly revise the
VPC channel plan. The primary
objective of the rulemaking proceeding
is to ensure that the United States can
take full advantage of the navigational
safety and homeland security benefits of
AIS, but PacifCorp’s proposals address
matters regarding the VPC frequency
band that are at best ancillary to this
objective. Nothing in the Further NPRM
suggested that the Commission might
consider such action. The Commission
therefore holds that it would not be
reasonable to construe the Further
NPRM as providing notice that the
Commission might adopt special
measures, which had not yet been
identified, if necessary to ensure that
inland VPCSA licensees could fully
duplicate their prior operations, and
that PacifCorp’s proposed alternative
channel plans are too remote from
anything discussed or suggested in
either the Further NPRM or the
comments to be deemed a ‘‘logical
outgrowth.’’ The Commission therefore
denies PacifCorp’s petition insofar as it
asks the Commission to adopt one of
PacifiCorp’s alternative VPC channel
plans.
9. Having determined to affirm its
decisions regarding the grandfathering
provisions adopted in the Second
Report and Order, the Commission
amends § 80.371(c)(1)(i) of its rules to
more precisely conform it to those
decisions. As noted above, the
Commission grandfathered two site-
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33655
based licensees operating on Channel
87B in inland VPCSAs for fifteen years.
Site-based Channel 87B licensees in the
maritime VPCSAs are grandfathered
only until their current license terms
expire. But note three to § 80.371(c)(1)(i)
of the Commission’s rules was not
amended to reflect the Commission’s
decision in the Second Report and
Order to provide a different
grandfathering period for the site-based
licensees operating on Channel 87B in
the inland VPCSAs, and thus incorrectly
provides, without qualification, that no
site-based authorization to use Channel
87B will be renewed. As the
Commission has explained, while
accurate prior to the adoption of the
Second Report and Order, that
statement is now accurate only with
regard to the Channel 87B site-based
incumbents in the maritime VPCSAs.
The Commission therefore amends note
three to reflect that Channel 87B sitebased incumbents in inland VPCSAs
have been grandfathered for fifteen
years, irrespective of their remaining
license term.
10. Finally, the Commission also
corrects a typographical error in § 2.106
of its rules, note US228, and
§ 90.20(g)(2)(ii) of its rules, which state
that incumbent site-based Channel 87B
licensees in the inland VPCSAs are
grandfathered until March 4, 2024,
rather than March 2, 2024 (fifteen years
after the effective date of the rule
amendments adopted in the Second
Report and Order. (Note US228 was
codified as note US399 in the Second
Report and Order, but was later
renumbered.)
I. Procedural Matters
A. Paperwork Reduction Act Analysis
11. This document does not contain
proposed information collection(s)
subject to the Paperwork Reduction Act
of 1995 (PRA), Public Law 104–13. In
addition, 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).
12. The Commission will send a copy
of this Memorandum Opinion and
Order to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
13. Accordingly, pursuant to section
405(a) of the Communications Act of
1934, as amended, 47 U.S.C. 405(a), and
§ 1.429 of the Commission’s rules, 47
CFR 1.429, that the petition for
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reconsideration filed by PacifiCorp on
March 2, 2009, is denied.
14. Pursuant to the authority of
sections 4(i), 303(r), and 403 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), 403,
that parts 2 and 80 of the Commission’s
rules are amended as set forth below,
effective July 11, 2011.
15. The proceeding WT Docket No.
04–344 is hereby terminated.
List of Subjects in 47 CFR Parts 2, 80
and 90
Communications equipment, Radio.
definitions of VPCSAs and geographic
license.
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PART 80—STATIONS IN THE
MARITIME SERVICES
3. The authority citation for part 80
continues to read as follows:
■
Authority: Secs. 4, 303, 307(e), 309, and
332, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303, 307(e), 309, and 332, unless
otherwise noted. Interpret or apply 48 Stat.
1064–1068, 1081–1105, as amended; 47
U.S.C. 151–155, 301–609; 3 UST 3450, 3 UST
4726, 12 UST 2377.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
■
Final Rules
§ 80.371 Public correspondence
frequencies.
4. Section 80.371 is amended by
revising footnote 3 to the table in
paragraph (c)(1)(i) to read as follows:
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR parts 2, 80
and 90 as follows:
PART 2—FREQUENCY ALLOCATIONS
AND RADIO TREATY MATTERS;
GENERAL RULES AND REGULATIONS
1. The authority citation for part 2
continues to read as follows:
■
Authority: 47 U.S.C. 154, 302a, 303, and
336, unless otherwise noted.
2. Section 2.106 is amended by
revising footnote US228 to the Table of
Frequency Allocations to read as
follows:
■
§ 2.106
Table of Frequency Allocations.
UNITED STATES (US) NOTES
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US228 The use of the bands
161.9625–161.9875 MHz (AIS 1 with
center frequency 161.975 MHz) and
162.0125–162.0375 MHz (AIS 2 with
center frequency 162.025 MHz) by the
maritime mobile service is restricted to
Automatic Identification Systems (AIS),
except that non-Federal stations in the
band 161.9625–161.9875 MHz may
continue to operate on a primary basis
according to the following schedule:
(a) In VHF Public Coast Service Areas
(VPCSAs) 1–9, site-based stations
licensed prior to November 13, 2006
may continue to operate until expiration
of the license term for licenses in active
status as of November 13, 2006;
(b) In VPCSAs 10–42, site-based
stations licensed prior to March 2, 2009
may continue to operate until March 2,
2024; and
(c) In VPCSAs 10–42, geographical
stations licensed prior to March 2, 2009
may continue to operate until March 2,
2011. See 47 CFR 80.371(c)(1)(ii) for the
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(c)(1)(i) * * *
3 The frequency 161.975 MHz is
available only for Automatic
Identification System communications.
No license authorizing a site-based VHF
Public Coast Station or a Private Land
Mobile Radio Station to operate on the
frequency 161.975 MHz in VHF Public
Coast Service Areas (VPCSAs) 1–9 will
be renewed unless the license is or has
been modified to remove frequency
161.975 MHz as an authorized
frequency. In VPCSAs 10–42, site-based
stations licensed to operate on
frequency 161.975 MHz prior to March
2, 2009 may continue to operate on a coprimary basis on that frequency until
March 2, 2024. Licenses authorizing
geographic stations to operate on
frequency 161.975 MHz will be
modified on March 2, 2011 to replace
the frequency with either frequency pair
157.225/161.825 MHz (VPCSAs 10–15,
23–30, 33–34, 36–39, and 41–42) or
frequency pair 157.275/161.875 MHz
(VPCSAs 16–22, 31–32, 35, and 40),
unless an application to so modify the
license is granted before that date.
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PART 90—PRIVATE LAND MOBILE
RADIO SERVICES
5. The authority citation for part 90
continues to read as follows:
■
Authority: Sections 4(i), 11, 303(g), 303(r),
and 332(c)(7) of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 161,
303(g), 303(r), 332(c)(7).
6. Section 90.20 is amended by
revising paragraph (g)(2)(ii) to read as
follows:
■
§ Public Safety Pool.
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(ii) The channel pairs 157.225 MHz/
161.825 MHz and 157.275 MHz/161.875
MHz were formerly allocated and
assigned under this section as public
safety interoperability channels but
were reallocated for assignment as VHF
public coast station channels under
§ 80.371(c) of this chapter. Public safety
operations licensed on these channels as
of March 2, 2009 or licensed pursuant
to an application filed prior to
September 19, 2008, may remain
authorized to operate on the channels
on a primary basis until March 2, 2024.
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[FR Doc. 2011–14314 Filed 6–8–11; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket No. 11–29; RM–11622,
DA 11–949]
Television Broadcasting Services;
Nashville, TN
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
The Commission grants a
petition for rulemaking filed by
NewsChannel 5 Network, LLC
(‘‘NewsChannel 5’’), the licensee of
WTVF(TV), requesting the substitution
of channel 25 for channel 5 at Nashville.
According to NewsChannel 5, after
WTVF(TV) transitioned from its pretransition digital channel 56 to its posttransition digital channel 5, thousands
of calls were received from viewers that
could no longer view the station’s
digital signal.
DATES: This rule is effective July 11,
2011.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Joyce L. Bernstein,
joyce.bernstein@fcc.gov, Media Bureau,
(202) 418–1600.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Report
and Order, MB Docket No. 11–29,
adopted May 23, 2011, and released
May 25, 2011. The full text of this
document is available for public
inspection and copying during normal
business hours in the FCC’s Reference
Information Center at Portals II, CY–
A257, 445 12th Street, SW.,
Washington, DC 20554. This document
will also be available via ECFS (https://
fjallfoss.fcc.gov/ecfs/). This document
may be purchased from the
Commission’s duplicating contractor,
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[Federal Register Volume 76, Number 111 (Thursday, June 9, 2011)]
[Rules and Regulations]
[Pages 33653-33656]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14314]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 2, 80 and 90
[WT Docket No. 04-344; FCC 11-80]
Maritime Communications
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) denies a petition for reconsideration of the period
in which inland VPCSA incumbents must vacate Channel 87B, and declines
to extend this period generally to non-AIS operations because such an
extension would undermine the primary goal of this proceeding. Further,
the Commission determines that rechannelizing the VPC frequency band
[[Page 33654]]
in order to facilitate more efficient spectrum usage is beyond the
scope of this rulemaking proceeding.
DATES: Effective July 11, 2011.
FOR FURTHER INFORMATION CONTACT: Jeffrey Tobias, Jeff.Tobias@FCC.gov,
Wireless Telecommunications Bureau, (202) 418-1617, or TTY (202) 418-
7233.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Memorandum Opinion and Order (MO&O) in WT
Docket No. 04-344, FCC 11-80, adopted on May 24, 2011, and released on
May 26, 2011. The full text of this document is available for
inspection and copying during normal business hours in the FCC
Reference Center, 445 12th Street, SW., Washington, DC 20554. The
complete text may be purchased from the Commission's copy contractor,
Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402,
Washington, DC 20554. The full text may also be downloaded at: https://www.fcc.gov. Alternative formats are available to persons with
disabilities by sending an e-mail to fcc504@fcc.gov or by calling the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
1. AIS, which is used to monitor and track maritime traffic for
purposes of both navigational safety and homeland security, is a global
maritime navigation safety communications system through which marine
vessels automatically transmit navigational data to appropriately
equipped shore stations, other ships, and aircraft. The International
Telecommunication Union has designated VHF maritime Channel 87B for AIS
use in international waters. In the Report and Order, published at 71
FR 60067, October 12, 2006, in this proceeding, the Commission
designated Channel 87B for exclusive AIS use only in the nine maritime
VPCSAs. Because the majority of the commenters favored designating
Channel 87B for exclusive AIS use nationwide, the Commission invited
comment in the Further Notice of Proposed Rule Making (Further NPRM),
published at 71 FR 60102, October 12, 2006, on whether to extend the
AIS designation to the thirty-three inland VPCSAs. In the Second Report
and Order, published at 74 FR 5117, September 29, 2009, the Commission
concluded that it would serve the public interest to designate Channel
87B for exclusive AIS use on a nationwide basis. The Commission
required inland VPCSA licensees to vacate Channel 87B within two years
after the effective date of the redesignation of Channel 87B.
2. Two duplex VPC channels had been set aside for public safety
interoperability in each inland VPCSA. Specifically, Channel 25
(157.250/161.850 MHz) was set aside in each inland VPCSA, and either
Channel 84 (157.225/161.825 MHz) or Channel 85 (157.275/161.875 MHz)
was also set aside in each inland VPCSA. The Commission determined in
the Second Report and Order that it was appropriate to redesignate
Channels 84 and 85 for use by inland VPC licensees. PacifiCorp, among
other commenters, specifically requested this additional VPC spectrum.
The Commission grandfathered the public safety incumbents on Channels
84 and 85 for fifteen years following the effective date of the
redesignation of Channel 87B. The Commission recognized that, with the
inland VPCSA licensees having to vacate Channel 87B within two years
while the public safety incumbents could remain on Channels 84 and 85
for fifteen years, there would be a period during which some inland
VPCSA incumbents would have to protect incumbent public safety
operations on Channel 84 or 85.
3. PacifiCorp argues that allowing public safety incumbents to
remain on Channels 84 and 85 for up to fifteen years while mandating
that inland VPCSA licensees migrate to those channels within two years
significantly undermines the ability of certain geographic area
licensees on VPC Channel 87, such as PacifiCorp, to make a seamless
transition to replacement Channels 84 and 85. It requests that the
Commission extend the grandfathering period for inland VPCSA licensees
to remain on Channel 87B to six months after the public safety
incumbent(s) in that VPCSA vacate Channel 84 or 85. In the alternative,
PacifiCorp requests that affected inland VPCSA licensees be given the
right to apply for an unlicensed exclusive-use channel in the VHF band,
such as a part 22 VHF channel, to use until six months after Channel 84
or 85 is vacated.
4. The Commission declines to extend the grandfathering period for
inland VPCSA licensees to remain on Channel 87B. The paramount goal of
this proceeding is to ensure that AIS is deployed widely, quickly,
reliably, and cost-effectively, and in a manner that will maximize its
capabilities. In the Second Report and Order, moreover, the Commission
concluded that there are compelling safety and national security
reasons to designate Channel 87B for AIS on a nationwide basis.
Permitting the continued use of Channel 87B for non-AIS communications,
the Commission stated, would compromise the integrity of the domestic,
and by extension the global, AIS network. The Commission continues to
believe that permitting inland VPCSA incumbents to remain on Channel
87B for an extended period would impede the rapid, interference-free
implementation of the domestic AIS network, and thus undermine the
primary goal of this proceeding. In addition, the Commission does not
believe that the record substantiates the claim that inland VPCSA
licensees in general are unduly burdened by the requirement to migrate
to Channel 84 or 85 within two years while protecting any co-channel
public safety incumbents for up to fifteen years. In most of the part
of the country that is divided into inland VPCSAs, there are no public
safety incumbents on Channel 84 or 85. No other inland VPCSA incumbent
has sought reconsideration of the grandfathering provisions adopted in
the Second Report and Order, and even PacifiCorp confines its
discussion to the situation in Wyoming. The Commission's rules permit
PacifiCorp to request a waiver, and argue why its circumstances satisfy
the applicable waiver standard. The Commission therefore finds that
PacifiCorp has not demonstrated a need to revisit the grandfathering
provisions adopted in the Second Report and Order.
5. PacifiCorp also asserts that, even where Channels 84 and 85 are
not encumbered by public safety incumbents, the designation of those
channels as VPC spectrum does not fully offset inland VPCSA licensees'
loss of Channel 87B. VPC channels are 25 kilohertz wide, but, under
Sec. 80.371(c)(1)(iii) of the Commission's rules, VPC licensees may
also operate on 12.5 kHz offset frequencies in areas where the licensee
is authorized on both frequencies adjacent to the offset frequency, and
in areas where the licensee on the other side of the offset frequency
consents to the licensee's use of the adjacent offset frequency. Thus,
an inland VPCSA incumbent licensed on Channels 27 (157.350/161.950
MHz), 87 (157.375/161.975 MHz), and 28 (157.400/162.000 MHz) can
operate on the interstitial channel between Channels 27 and 87 and the
interstitial channel between Channels 87 and 28. After the licensee
replaces Channel 87B with Channel 84 or 85, however, it loses those two
interstitial channels and gains only one interstitial channel (i.e.,
either the interstitial channel between Channels 24 and 84 or the
interstitial channel between Channels 85 and 26), because Channels 84
and 85 both are adjacent to Channel 25, which remains
[[Page 33655]]
designated for public safety interoperability. Consequently, PacifiCorp
argues, requiring an inland VPCSA incumbent to relocate from Channel
87B to Channel 84 or 85 will result in a net loss to the incumbent of
at least one 12.5 kHz interstitial channel.
6. To address both this particular issue and what PacifiCorp views
more broadly as the current inefficient use of the VPC spectrum,
PacifiCorp recommends that the Commission revise the channel plan for
the inland VPCSAs. Specifically, PacifiCorp proposes that the
Commission split the 25 kHz VPC channels into adjacent 12.5 kHz
channels, and permit inland VPC licensees to use two 12.5 kHz channels
with channel centers offset 6.25 kHz from the center frequency of each
existing 25 kHz channel. In the alternative, PacifiCorp suggests that
the Commission retain the existing VPC band plan, but shift the twenty-
five kilohertz of spectrum that is designated for public safety
interoperability in order to make an additional interstitial channel
available for VPC use. Such action, PacifiCorp says, will allow for
more intensive use of VPC spectrum by avoiding the stranding of
spectrum where a licensee chooses to deploy more spectrally-efficient
12.5 kHz equipment but does not control both of the adjacent 25 kHz
channels.
7. The Commission concludes that PacifiCorp's proposals to modify
the VPC channel plan are beyond the scope of this rulemaking
proceeding. The Further NPRM did not seek comment on them, and they are
not a logical outgrowth of any proposals that the Further NPRM did
make. In the Further NPRM, the Commission did not invite comment on
modifying either the VPC channel plan or the public safety
interoperability set-aside (except for redesignating one channel for
VPC use), and did not suggest that it might change the rules with
respect to any channels other than Channels 84, 85, and 87. Nor did any
commenter raise the possibility. The Commission sees no reason to
depart here from its well-established policy of not considering matters
that are first raised on reconsideration, absent extenuating
circumstances. This policy serves the same goals of procedural
regularity, administrative efficiency, and fundamental fairness that
underlie Section 405 of the Communications Act of 1934, as amended, and
the notice-and-comment rulemaking requirements of the Administrative
Procedure Act (APA).
8. PacifiCorp argues that its proposed alternative channel plans
are a natural and logical outgrowth of actions already contemplated and
taken by the Commission, and would merely complete the prior efforts by
the Commission to `restore the operating capacity' of inland VPCSA
licensees. The Commission disagrees. In determining whether an agency's
adopted rule can be deemed a logical outgrowth of a proposed rule, the
focus of the inquiry is on whether the purposes underlying the APA
notice-and-comment requirements have been served. In furtherance of
this inquiry, the agency should consider whether a new round of notice
and comment would provide the first opportunity for interested parties
to offer comments that could persuade the agency to modify its rule,
and whether the final rule could have been anticipated by persons with
knowledge of the proposed rule. The Commission concludes that
interested parties who potentially may have objected to, or wished to
comment on, the rule changes now proposed by PacifiCorp did not have
meaningful notice that such rule changes might be adopted, and could
not have anticipated that, in this proceeding focused on domestic
implementation of AIS, the Commission might broadly revise the VPC
channel plan. The primary objective of the rulemaking proceeding is to
ensure that the United States can take full advantage of the
navigational safety and homeland security benefits of AIS, but
PacifCorp's proposals address matters regarding the VPC frequency band
that are at best ancillary to this objective. Nothing in the Further
NPRM suggested that the Commission might consider such action. The
Commission therefore holds that it would not be reasonable to construe
the Further NPRM as providing notice that the Commission might adopt
special measures, which had not yet been identified, if necessary to
ensure that inland VPCSA licensees could fully duplicate their prior
operations, and that PacifCorp's proposed alternative channel plans are
too remote from anything discussed or suggested in either the Further
NPRM or the comments to be deemed a ``logical outgrowth.'' The
Commission therefore denies PacifCorp's petition insofar as it asks the
Commission to adopt one of PacifiCorp's alternative VPC channel plans.
9. Having determined to affirm its decisions regarding the
grandfathering provisions adopted in the Second Report and Order, the
Commission amends Sec. 80.371(c)(1)(i) of its rules to more precisely
conform it to those decisions. As noted above, the Commission
grandfathered two site-based licensees operating on Channel 87B in
inland VPCSAs for fifteen years. Site-based Channel 87B licensees in
the maritime VPCSAs are grandfathered only until their current license
terms expire. But note three to Sec. 80.371(c)(1)(i) of the
Commission's rules was not amended to reflect the Commission's decision
in the Second Report and Order to provide a different grandfathering
period for the site-based licensees operating on Channel 87B in the
inland VPCSAs, and thus incorrectly provides, without qualification,
that no site-based authorization to use Channel 87B will be renewed. As
the Commission has explained, while accurate prior to the adoption of
the Second Report and Order, that statement is now accurate only with
regard to the Channel 87B site-based incumbents in the maritime VPCSAs.
The Commission therefore amends note three to reflect that Channel 87B
site-based incumbents in inland VPCSAs have been grandfathered for
fifteen years, irrespective of their remaining license term.
10. Finally, the Commission also corrects a typographical error in
Sec. 2.106 of its rules, note US228, and Sec. 90.20(g)(2)(ii) of its
rules, which state that incumbent site-based Channel 87B licensees in
the inland VPCSAs are grandfathered until March 4, 2024, rather than
March 2, 2024 (fifteen years after the effective date of the rule
amendments adopted in the Second Report and Order. (Note US228 was
codified as note US399 in the Second Report and Order, but was later
renumbered.)
I. Procedural Matters
A. Paperwork Reduction Act Analysis
11. This document does not contain proposed information
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, 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).
12. The Commission will send a copy of this Memorandum Opinion and
Order to Congress and the Government Accountability Office pursuant to
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
13. Accordingly, pursuant to section 405(a) of the Communications
Act of 1934, as amended, 47 U.S.C. 405(a), and Sec. 1.429 of the
Commission's rules, 47 CFR 1.429, that the petition for
[[Page 33656]]
reconsideration filed by PacifiCorp on March 2, 2009, is denied.
14. Pursuant to the authority of sections 4(i), 303(r), and 403 of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r),
403, that parts 2 and 80 of the Commission's rules are amended as set
forth below, effective July 11, 2011.
15. The proceeding WT Docket No. 04-344 is hereby terminated.
List of Subjects in 47 CFR Parts 2, 80 and 90
Communications equipment, Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 2, 80 and 90 as follows:
PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS
0
1. The authority citation for part 2 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise
noted.
0
2. Section 2.106 is amended by revising footnote US228 to the Table of
Frequency Allocations to read as follows:
Sec. 2.106 Table of Frequency Allocations.
UNITED STATES (US) NOTES
* * * * *
US228 The use of the bands 161.9625-161.9875 MHz (AIS 1 with center
frequency 161.975 MHz) and 162.0125-162.0375 MHz (AIS 2 with center
frequency 162.025 MHz) by the maritime mobile service is restricted to
Automatic Identification Systems (AIS), except that non-Federal
stations in the band 161.9625-161.9875 MHz may continue to operate on a
primary basis according to the following schedule:
(a) In VHF Public Coast Service Areas (VPCSAs) 1-9, site-based
stations licensed prior to November 13, 2006 may continue to operate
until expiration of the license term for licenses in active status as
of November 13, 2006;
(b) In VPCSAs 10-42, site-based stations licensed prior to March 2,
2009 may continue to operate until March 2, 2024; and
(c) In VPCSAs 10-42, geographical stations licensed prior to March
2, 2009 may continue to operate until March 2, 2011. See 47 CFR
80.371(c)(1)(ii) for the definitions of VPCSAs and geographic license.
* * * * *
PART 80--STATIONS IN THE MARITIME SERVICES
0
3. The authority citation for part 80 continues to read as follows:
Authority: Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066,
1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless
otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105,
as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12
UST 2377.
0
4. Section 80.371 is amended by revising footnote 3 to the table in
paragraph (c)(1)(i) to read as follows:
Sec. 80.371 Public correspondence frequencies.
* * * * *
(c)(1)(i) * * *
\3\ The frequency 161.975 MHz is available only for Automatic
Identification System communications. No license authorizing a site-
based VHF Public Coast Station or a Private Land Mobile Radio Station
to operate on the frequency 161.975 MHz in VHF Public Coast Service
Areas (VPCSAs) 1-9 will be renewed unless the license is or has been
modified to remove frequency 161.975 MHz as an authorized frequency. In
VPCSAs 10-42, site-based stations licensed to operate on frequency
161.975 MHz prior to March 2, 2009 may continue to operate on a co-
primary basis on that frequency until March 2, 2024. Licenses
authorizing geographic stations to operate on frequency 161.975 MHz
will be modified on March 2, 2011 to replace the frequency with either
frequency pair 157.225/161.825 MHz (VPCSAs 10-15, 23-30, 33-34, 36-39,
and 41-42) or frequency pair 157.275/161.875 MHz (VPCSAs 16-22, 31-32,
35, and 40), unless an application to so modify the license is granted
before that date.
* * * * *
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
0
5. The authority citation for part 90 continues to read as follows:
Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161,
303(g), 303(r), 332(c)(7).
0
6. Section 90.20 is amended by revising paragraph (g)(2)(ii) to read as
follows:
Sec. Public Safety Pool.
* * * * *
(g) * * *
(2) * * *
(ii) The channel pairs 157.225 MHz/161.825 MHz and 157.275 MHz/
161.875 MHz were formerly allocated and assigned under this section as
public safety interoperability channels but were reallocated for
assignment as VHF public coast station channels under Sec. 80.371(c)
of this chapter. Public safety operations licensed on these channels as
of March 2, 2009 or licensed pursuant to an application filed prior to
September 19, 2008, may remain authorized to operate on the channels on
a primary basis until March 2, 2024.
* * * * *
[FR Doc. 2011-14314 Filed 6-8-11; 8:45 am]
BILLING CODE 6712-01-P
