Uniform License Renewal, Discontinuance of Operation, and Geographic Partitioning and Spectrum Disaggregation Rules and Policies for Certain Wireless Radio Services, 41530-41549 [2017-18501]
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Federal Register / Vol. 82, No. 169 / Friday, September 1, 2017 / Rules and Regulations
Title: First Amendment to Nationwide
Programmatic Agreement for the
Collocation of Wireless Antennas.
Form Number: N/A.
Respondents: Business or other forprofit entities, not-for-profit institutions,
and State, local, or Tribal governments.
Number of Respondents and
Responses: 71 respondents; 765
responses.
Estimated Time per Response: 1
hour–5 hours.
Frequency of Response: Third-party
disclosure reporting requirement.
Obligation to Respond: Required to
obtain or retain benefits. Statutory
authority for this information collection
is contained in sections 1, 2, 4(i), 7, 301,
303, 309, and 332 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i),
157, 301, 303, 309, 332, and section 106
of the National Historic Preservation Act
of 1966, 54 U.S.C. 306108.
Total Annual Burden: 2,869 hours.
Total Annual Cost: $82,285.
Nature and Extent of Confidentiality:
No known confidentiality between third
parties.
Privacy Act Impact Assessment: There
are no impacts under the Privacy Act.
Needs and Uses: The Commission
requested OMB approval for new
disclosure requirements pertaining to
the First Amendment to Nationwide
Programmatic Agreement for the
Collocation of Wireless Antennas (First
Amendment) to address the review of
deployments of small wireless antennas
and associated equipment under section
106 of the National Historic
Preservation Act (NHPA) (54 U.S.C.
306108 (formerly codified at 16 U.S.C.
470f). The FCC, the Advisory Council
on Historic Preservation (Council), and
the National Conference of State
Historic Preservation Officers
(NCSHPO) agreed to amend the
Nationwide Programmatic Agreement
for the Collocation of Wireless Antennas
(Collocation Agreement) to account for
the limited potential of small wireless
antennas and associated equipment,
including Distributed Antenna Systems
(DAS) and small cell facilities, to affect
historic properties. The Collocation
Agreement addresses historic
preservation review for collocations on
existing towers, buildings, and other
non-tower structures. Under the
Collocation Agreement, most antenna
collocations on existing structures are
excluded from section 106 historic
preservation review, with a few
exceptions defined to address
potentially problematic situations. On
August 3, 2016, the Commission’s
Wireless Telecommunications Bureau,
ACHP, and NCSHPO finalized and
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executed the First Amendment to the
Collocation Agreement, to tailor the
Section 106 process for small wireless
deployments by excluding deployments
that have minimal potential for adverse
effects on historic properties.
The following are the information
collection requirements in connection
with the amended provisions of
Appendix B of Part 1 of the
Commission’s rules (47 CFR pt.1, App.
B):
• Stipulation VII.C of the amended
Collocation Agreement provides that
proposals to mount a small antenna on
a traffic control structure (i.e., traffic
light) or on a light pole, lamp post or
other structure whose primary purpose
is to provide public lighting, where the
structure is located inside or within 250
feet of the boundary of a historic
district, are generally subject to review
through the section 106 process. These
proposed collocations will be excluded
from such review on a case-by-case
basis, if (1) the collocation licensee or
the owner of the structure has not
received written or electronic
notification that the FCC is in receipt of
a complaint from a member of the
public, an Indian Tribe, a SHPO or the
Council, that the collocation has an
adverse effect on one or more historic
properties; and (2) the structure is not
historic (not a designated National
Historic Landmark or a property listed
in or eligible for listing in the National
Register of Historic Places) or
considered a contributing or compatible
element within the historic district,
under certain procedures. These
procedures require that applicant must
request in writing that the SHPO concur
with the applicant’s determination that
the structure is not a contributing or
compatible element within the historic
district, and the applicant’s written
request must specify the traffic control
structure, light pole, or lamp post on
which the applicant proposes to
collocate and explain why the structure
is not a contributing element based on
the age and type of structure, as well as
other relevant factors. The SHPO has
thirty days from its receipt of such
written notice to inform the applicant
whether it disagrees with the applicant’s
determination that the structure is not a
contributing or compatible element
within the historic district. If within the
thirty-day period, the SHPO informs the
applicant that the structure is a
contributing element or compatible
element within the historic district or
that the applicant has not provided
sufficient information for a
determination, the applicant may not
deploy its facilities on that structure
without completing the Section 106
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review process. If, within the thirty-day
period, the SHPO either informs the
applicant that the structure is not a
contributing or compatible element
within the historic district, or the SHPO
fails to respond to the applicant within
the thirty-day period, the applicant has
no further Section 106 review
obligations, provided that the
collocation meets the certain volumetric
and ground disturbance provisions. The
First Amendment to the Collocation
Agreement establishes new exclusions
from the section 106 review process for
physically small deployments like DAS
and small cells, fulfilling a directive in
the Commission’s Infrastructure Report
and Order, 80 FR 1238, Jan. 8, 2015, to
further streamline review of these
installations. These new exclusions will
reduce the cost, time, and burden
associated with deploying small
facilities in many settings, and provide
opportunities to increase densification
at low cost and with very little impact
on historic properties. Facilitating these
deployments thus directly advances
efforts to roll out 5G service in
communities across the country.
Federal Communications Commission.
Amy Brett,
Associate Chief, Competition and
Infrastructure Policy Division, Wireless
Telecommunications Bureau.
[FR Doc. 2017–18565 Filed 8–31–17; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 1, 22, 24, 27, 30, 74, 80,
90, 95, and 101
[WT Docket No. 10–112; FCC 17–105]
Uniform License Renewal,
Discontinuance of Operation, and
Geographic Partitioning and Spectrum
Disaggregation Rules and Policies for
Certain Wireless Radio Services
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the Federal
Communications Commission adopts
rules to streamline and harmonize the
Commission’s license renewal and
service continuity rules for the Wireless
Radio Services (WRS). This unified
regulatory framework includes:
establishing a consistent standard for
renewing wireless licenses; setting forth
safe harbors providing expedited
renewal for licensees that meet their
initial term construction requirement
and generally remain operating at or
above that level; adopting consistent
SUMMARY:
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service continuity rules, which provide
for automatic termination of any license
on which a licensee permanently
discontinues service or operation;
eliminating unnecessary, legacy
‘‘comparative renewal rules’’; and
requiring that when portions of
geographic licenses are sold, both
parties to the transaction have a clear
construction obligation and penalty in
the event of failure, closing a loophole
used to avoid the Commission’s
construction requirements. This action
will enhance competition and facilitate
robust use of the nation’s scarce
spectrum resources.
DATES: Effective October 2, 2017, except
for the amendments to §§ 1.949, 1.950,
and 1.953, which contain information
collection requirements that require
approval by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act (PRA), and which the
Commission will announce by
publishing a document in the Federal
Register. The amendments to
paragraphs (e), (q)(7), (r)(6), (s)(6), and
(t)(6) of § 27.14 will become effective
after OMB review and approval of
§ 1.949, which the Commission will
announce by publishing a document in
the Federal Register; and the
amendments to §§ 22.317, 22.947, 27.17,
30.106, 74.632, 90.157, 90.631, and
101.65 will become effective after OMB
review and approval of § 1.953, and
which the Commission will announce
by publishing a document in the
Federal Register.
FOR FURTHER INFORMATION CONTACT:
Joyce Jones at joyce.jones@fcc.gov, of the
Wireless Telecommunications Bureau,
Mobility Division, (202) 418–1327. For
additional information concerning the
PRA information collection
requirements contained in this
document, contact Cathy Williams at
(202) 418–2918 or send an email to
PRA@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Second
Report and Order (Order) in WT Docket
No. 10–112, FCC 17–105, released on
August 3, 2017. The complete text of the
Order, including all Appendices, is
available for inspection and copying
during normal business hours in the
FCC Reference Center, 445 12th Street
SW., Room CY–A157, Washington, DC
20554, or by downloading the text from
the Commission’s Web site at https://
apps.fcc.gov/edocs_public/attachmatch/
FCC-17-105A1.pdf.
Alternative formats are available for
people with disabilities (Braille, large
print, electronic files, audio format), by
sending an email to FCC504@fcc.gov or
calling the Consumer and Government
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Affairs Bureau at (202) 418–0530
(voice), (202) 418–0432 (TTY).
The Commission will send a copy of
the Order in a report to be sent to
Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
I. Second Report and Order
A. Renewal Requirements for Wireless
Radio Services
1. Commission licensing records
reflect that, over the next 10 years, the
Commission can expect more than
50,000 renewal applications to be filed
by geographic-area licensees and more
than 625,000 by site-based licensees. By
its Order, the Commission implements
standardized renewal requirements and
expeditious renewal procedures, while
continuing to ensure that licenses are
renewed in the public interest as
required by the Communications Act of
1934, as amended (Act). The
Commission finds that adoption of
uniform renewal rules will promote the
efficient use of spectrum resources,
serve the public interest by providing
licensees certainty regarding their
license renewal requirements,
encourage licensees to invest in new
facilities and services, and facilitate
their business and network planning.
2. The Commission’s current renewal
requirements vary widely. Some service
rules include comprehensive filing and
processing procedures, while others
contain only minimal guidance. For
example, some radio services have
evaluation criteria for a renewal
applicant involved in a comparative
renewal proceeding but no procedures
for filing competing applications. Some
services require a detailed showing that
the licensee has provided substantial
service during the license term. The
renewal rules for some of the
Commission’s newer services generally
require the licensee to be providing
service or operating on an ongoing basis,
after construction, during the license
term.
3. In an NPRM released on May 25,
2010 (WT Docket No. 10–112) (WRS
Reform NPRM), the Commission
proposed to adopt renewal requirements
for numerous Wireless Radio Services
based on the Commission’s model for
the 700 MHz Commercial Services Band
licensees. Under this three-part
approach: (1) Renewal applicants would
file a detailed renewal showing,
demonstrating that they are providing
service to the public (or, when allowed
under the relevant service rules or
pursuant to waiver, using the spectrum
for private, internal communications)
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and substantially complying with the
Commission’s rules (including any
applicable performance requirements)
and policies and the Act; (2) competing
renewal applications would be
prohibited; and (3) if a license is not
renewed, the associated spectrum
would be returned to the Commission
for reassignment. For services licensed
by site, the Commission proposed to
modify the first part of this approach by
requiring affected licensees to certify
that they are continuing to operate
consistent with their applicable
construction notification(s) or
authorization(s) (where the filing of
construction notifications is not
required), rather than making a renewal
showing.
4. Renewal Standard. The
Commission adopts a unified renewal
standard for most Wireless Radio
Services licensees, both geographic and
site-based. A clear, consistent standard
will promote the efficient use of
spectrum resources and will serve the
public interest by providing licensees
certainty regarding their renewal
requirements. To qualify for renewal,
each WRS licensee must demonstrate
that over the course of its license term,
the licensee either: (1) Provided and
continues to provide service to the
public, taking into account the periods
of time the applicable service-specific
rules give licensees to construct
facilities and meet performance
benchmarks, or (2) operated and
continues to operate over the course of
the license term to address the
licensee’s private, internal
communications needs, again taking
into account the periods of time the
applicable service-specific rules give
licensees to construct facilities and meet
performance benchmarks.
5. More specifically, for renewal at the
end of an initial license term, the
licensee must demonstrate that it timely
constructed to any level(s) required by
the service-specific rules and, thereafter,
consistent with the Commission’s
permanent discontinuance rules,
continuously provided service or
operated at or above the required
level(s) for the remainder of the license
term. For subsequent renewals, the
licensee must demonstrate that, over the
license term at issue, it continuously
provided service to the public or
operated under the license to meet the
licensee’s private, internal
communications needs, at or above the
level required to meet the final
construction requirement during the
initial term of the license. In all events,
the licensee also must certify that its
service or operations are continuing.
This requirement is reflected in the new
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§ 1.949 the Commission adopts today,
which replaces separate renewal rules
for each service in various rule parts, as
reflected in the final rules.
6. The renewal standard the
Commission adopts today follows the
approach the Commission adopted in
many of its proceedings for new
wireless services over the past decade.
Beginning with the 700 MHz First
Report and Order in 2007 (WT Docket
No. 06–150), and continuing to the 2016
600 MHz Report and Order (GN Docket
No. 12–268), the Commission has
established that licensees ‘‘must
demonstrate that they are providing
adequate levels of service over the
course of their license terms.’’ Most
recently, the Commission applied the
same principles in the Spectrum
Frontiers Report and Order (GN Docket
No. 14–177), concluding that Upper
Microwave Flexible Use Service
(UMFUS) licensees would meet the
renewal standard in their initial license
terms if they met certain performance
benchmarks and were ‘‘using [their]
facilities to provide service.’’ For
subsequent license terms, the
Commission concluded that it would
‘‘award a renewal expectancy for
subsequent license terms if the licensee
continues to provide at least the
initially-required level of service
through the end of any subsequent
license terms.’’ Today, the Commission
applies that policy across the board to
most WRS licenses, finding that these
renewal requirements are in the public
interest and their benefits outweigh any
likely costs.
7. As the Commission has stated in a
number of decisions, a licensee’s
renewal obligations are distinct from its
performance (also known as
construction or buildout) requirements.
Many of the Commission’s specific
service rules require performance
showings to be made at the midpoint
and end of an initial license term
regarding population or area covered.
For some services, licensees must
demonstrate, or may elect to
demonstrate, substantial service as their
performance requirement during their
initial license term. Under the
Commission’s performance requirement
rules, a licensee generally provides a
snapshot in time (usually a date in close
proximity to, but no later than, the
construction deadline) of the level of
service that it is providing to the public
or its level of operation. By contrast, the
showing for renewal—also sometimes
referred to as a substantial service
showing—requires more detailed
information regarding a licensee’s
services or operations and related
matters for its entire license period.
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Thus, under the Commission’s current
rules, those licensees with a substantial
service performance requirement at the
end of their initial license term are
subject to two distinct substantial
service requirements, one to support
their renewal application and one for
performance purposes. The renewal
standard the Commission adopts today
and the accompanying discussion
should make it more readily apparent to
licensees that the showing required for
renewal is distinct from the showing
required to meet a performance
requirement.
8. As the Commission stated in the
WRS Reform NPRM, the Wireless Radio
Services that are licensed by rule or on
a ‘‘personal’’ basis or that have no
construction/performance obligation are
beyond the scope of this proceeding and
are not encompassed within the renewal
policies the Commission adopts today.
Similarly, these policies do not extend
to public safety licenses issued based on
the applicant demonstrating eligibility
under §§ 90.20 or 90.529, or public
safety licenses issued in conjunction
with a waiver pursuant to section 337 of
the Act. The Commission also excludes
the Educational Broadband Service
(EBS) from application of the renewal
requirements articulated in the Order
since this service presents unique issues
that are under consideration in a
separate, comprehensive EBS
rulemaking proceeding (See WT Docket
No. 03–66).
9. In contrast, the Commission finds
it is no longer necessary to provide any
sort of modified renewal requirements
for Broadband Radio Service (BRS)
licensees as the Commission had
proposed in the WRS Reform NPRM.
Given that the BRS transition, which
began in 2010, is now complete, the
Commission concludes that the BRS is
appropriately included within the
overall renewal framework now. The
Commission also rejects Motorola’s
request that the partitioned and/or
disaggregated Part 80 VHF Public Coast
(VPC) Service spectrum it acquired for
the purpose of promoting public safety
and private land mobile systems be
excluded from application of the
Commission’s generally applicable
renewal framework. The Commission is
not persuaded that the characteristics of
the Motorola-held VPC Service
spectrum and its planned usage warrant
different treatment from other WRS
licenses regarding the renewal rules,
and thus the Commission does not grant
the exception from the renewal policies
sought by Motorola.
10. Implementation of Renewal
Standard. Many commenters express
concern that the renewal framework
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proposed in the WRS Reform NPRM
would cause uncertainty in the renewal
process and create undue administrative
burdens for licensees and Commission
staff. Some commenters suggest that the
Commission apply a certification
process for all renewal applications.
Other commenters suggest that the
Commission should adopt some form of
a safe harbor.
11. The Commission agrees that
clearer and more certain renewal
processes will benefit both licensees
and the Commission and concludes that
adopting a set of safe harbors—based on
licensee certifications—will serve the
public interest by reducing filing
burdens on licensees and concentrating
scarce Commission resources on
reviewing renewal filings that warrant
close scrutiny. Accordingly, the
Commission adopts four safe harbors to
accommodate four license renewal
scenarios by which a renewal applicant
can meet the renewal standard adopted
in this Order. These license renewal safe
harbors are for (1) site-based licenses;
(2) wireless providers using geographic
licenses; (3) private systems using
geographic licenses; and (4) partitioned
or disaggregated licenses without a
performance requirement. In a future
proceeding, the Commission may
consider additional safe harbors as
necessary and warranted. If a licensee is
unable to meet the requirements of one
of the enumerated safe harbors, the
licensee must make a more detailed
‘‘renewal showing’’ as part of its
renewal application; the requirements
for a renewal showing are described
following the discussion of the renewal
safe harbors.
12. Each safe harbor scenario is based
on three certifications, which are subject
to the Form 601 condition that ‘‘[w]illful
false statements made on this form or
any attachments are punishable by fine
and/or imprisonment (18 U.S.C. 1001)
and/or revocation of any station license
or construction permit (47 U.S.C.
312(a)(1)), and/or forfeiture (47 U.S.C.
503).’’ If the renewal applicant, in good
faith, can make all three certifications,
its renewal application will be subject to
routine processing, and no further
detailed renewal showing will be
required as part of the renewal
application. The first certification in
each scenario addresses the renewal
applicant’s ongoing provision of service
and/or operations, and is tailored to the
particular nature of licenses covered
under a given safe harbor. The second
certification requires the licensee to
certify that no permanent
discontinuance of service or operation
(as defined below as an unbroken failure
to provide service or operate over a
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specified period of days) occurred
during the license term. The third
certification requires the licensee to
certify that it has substantially complied
with all applicable FCC rules, policies,
and the Act.
13. Site-based Licenses. Consistent
with the Commission’s certification
proposal in the WRS Reform NPRM for
the renewal of site-based licensees, the
Commission adopts a safe harbor for
site-based WRS licensees. With sitebased services, a licensee’s initial
application for authorization provides
the exact technical parameters of its
planned operations (such as transmitter
location, frequency, and power levels),
while the licensee’s subsequent
notification, that it has completed
construction, confirms that the facilities
have been constructed consistent with
its authorization (or with minor
modifications as may be permitted by
the applicable service rules). A licensee
also may file to modify its license,
which may lead to a modified
authorization and the submission of a
subsequent construction notification.
Consequently, at the time a site-based
service provider files a renewal
application, it should be operating as
licensed.
14. A site-based WRS licensee will
meet the Commission’s renewal
standard if it can certify that it is
continuing to operate consistent with
the licensee’s most recently filed
construction notification (or most recent
authorization, when no construction
notification is required), and make the
certifications regarding permanent
discontinuance and substantial
compliance with Commission rules and
policies that are applicable to all
renewal applicants seeking to avail
themselves of one of the renewal safe
harbors. Consistent with the
Commission’s treatment of wireless
providers using geographic licenses as
discussed below, licensees who
temporarily reduce their operations for
fewer than 180 days may avail
themselves of the safe harbor. The
Commission concludes that this safe
harbor for site-based WRS licensees is in
the public interest and will expedite the
renewal process for licensees, ensure
spectrum is being used efficiently to
provide service to the public or for
private internal needs, and allow
Commission staff to concentrate scarce
resources on renewal applications that
warrant heightened scrutiny. Moreover,
applying the safe harbor process to sitebased services will ensure that renewed
licenses in these services are being
operated, and if they are not, the
licensee must submit a renewal showing
as discussed below. This safe harbor
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may be used by any site-based WRS
license in the services listed in
Appendix G of the Order.
15. Wireless Providers Using
Geographic Licenses. The Commission
also finds that it would be in the public
interest to adopt a safe harbor for WRS
licensees that provide service to
customers using geographic licenses.
Many commenters urge the Commission
to adopt a streamlined certification
process for renewal of geographic
licenses like what the Commission
proposed for site-based licenses. Most
recently, Verizon argues that a
straightforward renewal certification
‘‘will obligate the licensee to verify that
it is complying with the terms of its
authorization and Commission rules,
including buildout, spectrum
utilization, or other performance
requirements.’’ Similarly, CTIA
maintains that a certification for
geographic license renewal ‘‘would
require that licensees verify that they
have complied with all buildout,
performance, and other rules—
demonstrating that they are providing
service—without imposing unjustified
burdens.’’ Both Verizon and CTIA argue
that a certification is consistent with the
renewal standard adopted in the
Spectrum Frontiers Order for the
millimeter wave spectrum bands at 28
GHz, 37 GHz, and 39 GHz. The
Commission agrees that a certification,
as part of a comprehensive safe harbor
for geographic licenses, will streamline
its renewal processes, ensure
compliance with its rules, and provide
clarity and certainty for WRS licensees.
16. Accordingly, the Commission
adopts a safe harbor for WRS providers
using geographic licenses consistent
with the approach taken in the
Spectrum Frontiers Order. A
geographically-licensed WRS licensee
providing service to customers will
meet the renewal standard if it can make
the following certifications. For a
licensee in its initial license term 1 with
an interim performance requirement,
the licensee must certify that (1) it has
met its interim performance
requirement and that over the portion of
1 For performance showing requirements at the
end of the initial license term, there are two filing
processes in ULS depending on the service of the
license. For some services, licensees file a
notification of construction (NT) and a separate
renewal application. For other services, licensees
include their performance showing as an exhibit to
the renewal application and do not file a separate
NT. Under either filing method, the licensee would
certify in its renewal application that it has
submitted a final performance showing in good
faith, but acceptance of its safe harbor renewal
certification is contingent on the Commission’s
review and acceptance of the performance showing.
This is true as well for private systems using
geographic licenses.
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the license term following the interim
performance requirement (up until the
deadline for meeting the final
performance requirement), the licensee
continues to use its facilities 2 to
provide at least the level of service or
operation required by its interim
performance requirement,3 and (2) it has
met its final performance requirement
and continues to use its facilities to
provide at least the level of service
required by its final performance
requirement through the end of the
license term. For a licensee in its initial
license term with no interim
performance requirement, the licensee
must certify that it has met its final
performance requirement and continues
to use its facilities to provide at least the
level of service required by its final
performance requirement through the
end of the license term.4 For a licensee
in any subsequent license term, the
licensee must certify that it continues to
use its facilities to provide at least the
level of service required by its last
performance requirement through the
end of any subsequent license terms.
Some commenters ask the Commission
to recognize that there are
circumstances (e.g., network upgrades,
natural disasters, power outages, routine
maintenance, temporary service
outages) during which a licensee may
need to ‘‘reduce overall coverage below
the level required by buildout
requirements, or briefly turn down
service . . . for a limited period.’’ CTIA
maintains that ‘‘these events should not
disqualify a licensee from using the safe
harbor.’’ Thus, the Commission clarifies
that licensees who temporarily drop
below their construction benchmark for
fewer than 180 days may avail
themselves of the safe harbor. In
addition, the licensee must make the
certifications regarding permanent
discontinuance and substantial
compliance with Commission rules and
policies that are applicable to all
renewal applicants seeking to avail
themselves of one of the renewal safe
harbors. This safe harbor may be used
2 The Commission determines that use of
facilities includes operations under any spectrum
leasing arrangement.
3 The Commission notes that any licensee that
fails to meet its interim performance requirement
will not be able to avail itself of this safe harbor
option at the end of the initial license term because
it will be unable to certify that it has met its interim
performance requirement.
4 The Commission recognizes that a licensee may
file a renewal application as early as 90 days prior
to license expiration. 47 CFR 1.949(a). The
Commission notes that a licensee with a
performance requirement deadline coincident with
its license expiration date must meet any applicable
performance requirement before it can certify
compliance with the safe harbor requirements and
file a renewal application.
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by geographic licensees in the Wireless
Radio Services listed in Appendix H of
the Order.
17. Private Systems Using Geographic
Licenses. The Commission finds that the
public interest will be served by
adopting a separate safe harbor for
private systems using geographic
licenses. In the WRS Reform NPRM, the
Commission queried what factors
should be considered during renewal of
licenses used for a licensee’s private,
internal communications needs.
Commenters generally object to
applying the WRS Reform NPRM’s
proposed renewal framework to
geographic licensees that deploy
private, internal communications
systems. Instead, numerous commenters
urge the Commission to adopt a
certification for such licensees. The
Commission agrees that a certification,
as part of a comprehensive safe harbor
for geographic licensees using their
licenses for private, internal purposes,
will streamline its renewal processes,
ensure compliance with its rules, and
provide clarity and certainty for such
licensees.
18. Accordingly, the Commission
adopts a safe harbor for WRS licensees
using their geographic licenses for
private, internal systems. A
geographically licensed WRS licensee
using its license for private, internal
purposes will meet the renewal
standard if it can make the following
certifications. For a licensee in its initial
license term with an interim
performance requirement, the licensee
must certify that (1) it has met its
interim performance requirement and
that over the portion of the license term
following the interim performance
requirement (up until the deadline for
meeting the final performance
requirement), the licensee continues to
use its facilities to further the licensee’s
private, internal business or public
interest/public safety needs at or above
the level required to meet its interim
performance requirement, and (2) it has
met its final performance requirement
and continues to use its facilities to
further the licensee’s private business or
public interest/public safety needs at or
above the level required by its final
performance requirement through the
end of the license term. For a licensee
in its initial license term with no
interim performance requirement, the
licensee must certify that it has met its
final performance requirement and
continues to use its facilities to further
the licensee’s private business or public
interest/public safety needs at or above
the level required by its final
performance requirement through the
end of the license term. For a licensee
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in any subsequent license term, the
licensee must certify that it continues to
use its facilities to further the licensee’s
private business or public interest/
public safety needs at or above the level
required to meet its last performance
requirement. Consistent with the
treatment of wireless providers using
geographic licenses as discussed above,
licensees who temporarily drop below
their construction benchmark for fewer
than 180 days may avail themselves of
the safe harbor. In addition, the licensee
must make the certifications regarding
permanent discontinuance and
substantial compliance with
Commission rules and policies that are
applicable to all renewal applicants
seeking to avail themselves of one of the
renewal safe harbors. This safe harbor
may be used by geographic area
licensees in the Wireless Radio Services
listed in Appendix H of the Order.
19. Partitioned or Disaggregated
Licenses. As discussed in more detail
below, the Commission’s rules permit
parties to partitioning or disaggregation
agreements to choose between two
options to determine how the parties
will satisfy any relevant pending
performance requirement for the license
after it has been divided by geographic
partitioning or spectrum disaggregation
arrangements. In cases where the
original licensee has satisfied the
applicable performance requirement
prior to partitioning or disaggregating
the license, however, the recipient of
the partitioned area or disaggregated
spectrum has no performance
requirement associated with the
partitioned or disaggregated portion.
This lack of a performance requirement
is relevant in the renewal context
because, while the partitioner or
disaggregator may be able to meet a safe
harbor (to demonstrate that over the
course of its license term, the licensee
provided and continues to provide
service to the public, or operated and
continues to operate the license to meet
the licensee’s private, internal
communications needs), the partitionee
or disaggregatee will not be able to avail
itself of the safe harbors as adopted
above because it cannot certify
continuing service or operation
consistent with its final performance
requirement because it has none.
Accordingly, the safe harbor approach
must be adjusted to provide the
partitionee or disagregatee with a
mechanism for demonstrating
compliance with the renewal standard.
20. To this end, the Commission
adopts an approach that applies to WRS
licensees with partitioned or
disaggregated licenses when there is no
performance requirement. Such a
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licensee will meet the renewal standard
if it can satisfy the following safe
harbor. The licensee must certify that it
uses and continues to use its facilities
either to provide service to the public or
to further the licensee’s private, internal
business or public interest/public safety
needs. Thus, although the Commission
does not impose a specific performance
requirement for such licensees at
renewal of the current license term, in
order to avail itself of the streamlined
safe harbor renewal process for any
subsequent license term, a licensee
without a performance requirement
must demonstrate some level of service
or operation over the subsequent license
term. In addition, the licensee must
make the certifications regarding
permanent discontinuance (as defined
below) and substantial compliance with
Commission rules and policies that are
applicable to all renewal applicants
seeking to avail themselves of one of the
renewal safe harbors. This safe harbor
may be used by any WRS licensee with
a partitioned or disaggregated license
without an associated performance
requirement. Any licensee that cannot
meet the requirements of the safe harbor
must submit a renewal showing as
discussed below.
21. The Commission recognizes that
this safe harbor, unlike the others, does
not prescribe a specific level of service
or operation required for renewal. As
the Commission has explained,
however, ‘‘[t]he goal of our construction
requirements in both the partitioning
and disaggregation contexts is to ensure
that the spectrum is used to the same
degree that would have been required
had the partitioning or disaggregation
transaction not taken place.’’ In the
scenario addressed here, the partitioner
or disaggregator has already met the
associated performance requirement for
the license; any additional construction
undertaken by the partitionee or
disaggregatee exceeds the relevant
performance benchmark for the original
license and thus does not contravene
the goal of the Commission’s
construction requirement in the
partitioning and disaggregation context.
However, the Commission contemplates
taking action if it appears that parties to
a partitioning or disaggregation are
attempting to abuse its rules.
22. Renewal Showing. The
Commission seeks to provide licensees
with certainty and clarity regarding the
renewal process, and thus have adopted
four safe harbors to provide licensees
with a streamlined mechanism for
meeting the renewal standard. The
Commission expects that most licensees
will be able to avail themselves of its
streamlined safe harbor process and
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receive timely renewal grants. In the
event a licensee is unable to meet the
requirements of any of the enumerated
safe harbors, however, it must file a
‘‘renewal showing’’ to demonstrate how
it meets the renewal standard the
Commission adopts in this Order.
Examples of licensees that will not be
able to meet a safe harbor, but for whom
there nonetheless may be legitimate
bases that warrant renewal, include a
licensee that no longer provides service
or no longer operates at the level
required to meet its final performance
requirement, or a licensee that has
modified its service or operations since
its final performance requirement to
offer novel services or employ a unique
system architecture. These scenarios
warrant additional scrutiny before the
Commission can determine whether
license renewal is in the public interest.
The Commission reiterates that it will
not require renewal applicants to file a
renewal showing if they can meet the
renewal standard via a safe harbor.
23. In the WRS Reform NPRM, the
Commission proposed to require all
renewal applicants to meet its renewal
standard by filing a detailed renewal
showing to demonstrate that they are
providing service to the public (or,
when allowed under the relevant
service rules or pursuant to waiver,
using the spectrum for private, internal
communication), and substantially
complying with the Commission’s rules
(including any applicable performance
requirements) and policies and the Act.
The Commission now turns toward a
consideration of this proposed standard
for cases in which a renewal applicant
does not meet one of the safe harbors
adopted herein.
24. The renewal showing proposed in
the WRS Reform NPRM followed the
paradigm adopted in the 700 MHz
Report and Order. After the release of
the WRS Reform NPRM, the
Commission has adopted the 700 MHz
Commercial Services renewal paradigm
in four additional services—AWS–4, H
Block, AWS–3, and 600 MHz.
Specifically, the Commission proposed
to consider the following factors when
evaluating whether a renewal showing
met the renewal standard: (1) The level
and quality of service provided by the
applicant (e.g., the population served,
the area served, the number of
subscribers, the services offered); (2) the
date service commenced, whether
service was ever interrupted, and the
duration of any interruption or outage;
(3) the extent to which service is
provided to rural areas; (4) the extent to
which service is provided to tribal
lands; and (5) any other factors
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associated with a licensee’s level of
service to the public.
25. Many commenters object to the
adoption of this renewal showing for all
WRS licensees. These commenters argue
that the proposed renewal showing is
complex and would impose substantial
costs and burdens on licensees. Other
commenters assert that the proposed
renewal process is unclear and creates
uncertainty for licensees. Still other
commenters maintain that the proposed
process requests information already in
the Commission’s possession, requests
detailed information that licensees do
not maintain, and may require
disclosure of competitively sensitive
information. The Commission
acknowledges commenters’ many
concerns regarding a general
requirement that all WRS licensees
submit detailed renewal showings and
have concluded that, in many cases,
streamlined applications containing the
required certifications for safe harbor
treatment will be sufficient to ensure
that the Commission renews licenses in
the public interest, consistent with the
Act. The Commission emphasizes that
licensees that can take advantage of one
of the ‘‘safe harbor’’ renewal
applications described above will not be
required to submit a renewal showing as
part of their renewal applications.
Rather, only licensees that cannot
satisfy one of the enumerated safe
harbors will be required to file a
detailed renewal showing. To fulfill the
Commission’s statutory mandate to
ensure efficient spectrum use consistent
with the public interest, where a
licensee does not satisfy one of the
streamlined processes, the Commission
must undertake a closer examination of
a licensee’s record of service or
operation over its license term.
Consistent with the Commission’s
conclusions in the AWS–4, H Block,
AWS–3, and 600 MHz proceedings, the
Commission finds that the renewal
showing it adopts today, applied in the
limited circumstances described herein,
is in the public interest and its benefits
outweigh any likely costs.
26. Accordingly, licensees that cannot
satisfy the renewal standard under one
of the enumerated safe harbors can
nonetheless meet the renewal standard
by demonstrating that they are
providing service to the public (or,
when allowed under the relevant
service rules or pursuant to waiver,
using the spectrum for private, internal
communication), using the following
renewal showing, as applicable:
(1) The level and quality of service/
operation provided by the applicant
(e.g., for service—the population served,
the area served, the number of
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subscribers, the services offered; for
operation—the number of users (if
applicable), the operating area, the type
of operation);
(2) the date service/operation
commenced, whether service/operation
was ever interrupted, and the duration
of any interruption or outage;
(3) the extent to which service/
operation is provided to/in rural areas;
(4) the extent to which service/
operation is provided to/in tribal lands;
and
(5) any other factors associated with a
licensee’s level of service to the public/
level of operation.
27. Each of the factors listed above to
be considered in a renewal showing
directly relates to the renewal standard
the Commission adopts today—service
or operation over the license term. The
Commission will consider the totality of
all the factors on a case-by-case basis to
determine if a licensee has
demonstrated over the course of its
license term that it has provided and
continues to provide service to the
public, or has operated and continues to
operate under the license to meet the
licensee’s private, internal
communications needs.
28. In the WRS Reform NPRM, the
Commission also asked whether a
variety of other factors should be
incorporated into the renewal rules.
Many commenters object to the
collection of additional data in support
of a renewal showing. On balance, the
Commission agrees that the costs of
requesting additional information
beyond the renewal showing as adopted
would outweigh the benefits of such
additional information. The
Commission thus decides not to add
further factors at this time to the
renewal showing requirements. The
Commission finds that its renewal
framework strikes an appropriate
balance between the need for
information to fully evaluate renewal
applications that cannot meet the safe
harbors and minimizing burdens on
licensees.
29. The Commission disagrees with
commenters that argue that the option of
filing a full renewal showing would be
contrary to the Commission’s original
proposal for site-based services. Under
the Commission’s prior proposal, if a
site-based licensee could not make the
requisite certification, the renewal
application could not be granted and the
spectrum would be returned to the
Commission. Under the renewal
framework the Commission adopts
today, if a site-based licensee cannot
meet the requirements of the safe
harbor, it may choose to file a renewal
showing to explain why it should
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nonetheless retain its license, thus
providing additional flexibility to such
a licensee.
30. Implementation Timeline. The
renewal framework represents, for some
WRS licenses, a significant change in
how the Commission will evaluate and
process renewal applications going
forward.5 For licensees that already
meet the renewal standard, the unified
renewal paradigm presents a
streamlined process using safe harbors
with minimal filing burdens and
certain, timely renewal processing. The
Commission recognizes, however, that
other licensees will need time to come
into compliance with the renewal
standard. Accordingly, the Commission
adopts an implementation schedule that
will make the benefits of the renewal
framework available immediately for
those licensees most likely able to avail
themselves of the streamlined processes,
but provide ample time for those
licensees that may need to come into
compliance with the new rules. In all
instances, compliance with the renewal
standard, via either a safe harbor or
renewal showing, will be assessed from
the effective date of the new rules. Thus,
for example, the requirement to provide
continuous service/operation does not
cover periods before the effective date of
those rules. Nor does a licensee seeking
safe harbor treatment need to certify that
it met the necessary criteria during time
periods prior to the effective date.
31. Site-based Licenses. For site-based
licensees, the new renewal paradigm is
akin to their existing renewal
requirements. As discussed above, at the
time a site-based service provider files
a renewal application, it should be
operating as licensed. Thus, current
renewal requirements for site-based
licensees are much like the safe harbor
the Commission adopts for such
licensees. The Commission finds that
the renewal standard and renewal
processes (whether streamlined or
entailing an evaluation of the licensee’s
full renewal showing) should be made
available to site-based licensees as soon
as possible and thus determines that
such rules will be applied to those
licensees without a transition period,
with one exception, effective upon their
applicable effective dates. For
microwave licenses in the Common
Carrier Fixed Point-to-Point Microwave
Service, licensees will not be required to
comply with the revised renewal rules
for site-based licenses until October 1,
2018, in order to provide sufficient time
5 Because substantial compliance with applicable
FCC rules and policies and the Act is an ongoing
obligation of licensees, this will be assessed over
the entire term of the license at renewal.
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for them to undertake a compliance
review necessary to make the required
certification regarding operation.
Existing service-specific renewal rules
will remain in effect until the renewal
rules adopted herein become effective.
Applications filed prior to the effective
date of the new rules will be processed
under the rules in effect when they are
filed.
32. Geographic-area Licenses. Given
the inconsistency of the Commission’s
renewal rules across wireless services,
the Commission has seen markedly
different renewal submissions by
licensees describing the level of service
or operation in the various specific
services within the WRS. Some
licensees have submitted renewal
applications clearly demonstrating
service or operation over the entire
license term, which would meet the
renewal standard the Commission
adopts today. Others have filed
applications that demonstrate service or
operation over significantly less than
the entire license term, which would
not meet the Commission’s new renewal
standard contemplating ongoing service
or operation during the license term.
The Commission seeks to provide
sufficient time to geographic-area
licensees that have yet to be subject to
the renewal standard so that they can
comply with the new standard (indeed,
some licensees are not yet required to
even demonstrate service over the
license term). The Commission
determines that the renewal standard
and the renewal framework will take
effect for such licensees on January 1,
2023, replacing the existing servicespecific renewal rules, giving licensees
at least five years to comply with the
new renewal rules (giving all licensees
sufficient time to show service over the
license term, starting from the effective
date of the new renewal rules). Existing
service-specific renewal rules will cease
to be effective as of January 1, 2023. The
Commission notes, however, that
licensees in the 700 MHz, AWS–4, H
Block, AWS–3, and 600 MHz services
already are subject to the renewal
standard that it adopts today for all
WRS geographic licenses. Accordingly,
the Commission concludes that these
licensees should be able to avail
themselves of the safe harbors and
associated streamlined procedures prior
to January 1, 2023. Thus, for licensees
in the 700 MHz, AWS–4, H Block,
AWS–3, and 600 MHz services, the safe
harbor rules will apply immediately
upon their effective dates. Existing
service-specific renewal rules will
remain in effect until the renewal rules
adopted herein become effective.
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Applications filed prior to the effective
date of the new rules will be processed
under the rules in effect when they are
filed.
33. Geographic and Site-based
Licensed Services—Other Requirements.
Consistent with the Commission’s
proposal in the WRS Reform NPRM, the
Commission applies a single regulatory
compliance demonstration requirement
to all renewal applicants, whether
licensed by geographic area or by site.
In addition, the Commission prohibits
the filing of competing applications
against such renewal applications.
Further, if a renewal application cannot
be granted, the associated spectrum
generally will be returned to the
Commission for re-licensing under the
applicable processes.
34. Regulatory Compliance
Demonstration. In the 700 MHz First
Report and Order, the Commission
stated that, as part of their renewal
filing, renewal applicants must
demonstrate ‘‘that they have
substantially complied with all
applicable Commission rules, policies,
and the Communications Act of 1934, as
amended, including any applicable
performance requirements.’’ As the
Commission stated in the WRS Reform
NPRM, such a regulatory compliance
demonstration serves the public interest
by facilitating the Commission’s
evaluation of the character and other
qualifications of a renewal applicant.
35. To aid in this evaluation, the
Commission proposed a detailed
submission of documents regarding
compliance by the licensee and certain
defined affiliates. Industry commenters
uniformly opposed adoption of the
proposed regulatory compliance
demonstration as a prerequisite to
renewal on the basis that it is onerous
and unduly burdensome and could
impose significant costs, particularly on
rural and regional carriers.
36. The Commission has a statutory
duty to ensure that licensees
substantially comply with all applicable
Commission rules and policies and the
Act. At the same time, where possible
and practicable, the Commission seeks
to streamline the existing renewal
application processes and minimize
filing burdens on licensees. In lieu of
the regulatory compliance
demonstration proposed in the WRS
Reform NPRM, the Commission
concludes that it can perform its duties
and further its public interest goals
effectively by requiring a renewal
applicant to certify that it has
substantially complied with all
applicable FCC rules, policies, and the
Act. If a particular renewal applicant is
unable to make the substantial
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compliance certification, it will need to
provide an explanation of the
circumstances preventing such a
certification and why renewal of the
subject license should still be granted.
37. Elimination of Comparative
Renewal Rules for WRS. As proposed in
the WRS Reform NPRM and consistent
with the action the Commission took in
the WRS Reform First Report and Order
in this proceeding adopted in tandem
with the Cellular Reform Second Report
and Order on March 23, 2017 (WT
Docket No. 12–40), and in several other
proceedings over the last decade, the
Commission prohibits the filing of
competing applications for all WRS and
eliminates the remaining comparative
renewal procedures and requirements
across various rule parts.
38. The WRS Reform NPRM proposed
to prohibit the filing of competing
renewal applications for all WRS as part
of its proposed uniform WRS renewal
process. The majority of commenters
support the Commission’s proposal to
eliminate service-specific rules
regarding the filing of competing
applications and the use of comparative
hearings to resolve them. A number of
commenters maintain that the
comparative renewal process is an
outdated vestige of licensing rules
predating the Commission’s current
reliance on auctions in many services.
39. The Commission deletes the
remaining service-specific comparative
renewal rules and prohibits the filing of
competing renewal applications for all
WRS. This approach is consistent with
the Commission’s determinations in
many other commercial wireless service
proceedings over the last ten years—
including those for the AWS–3 and
AWS–4 Bands, the H Block, the 600
MHz Band, and the 700 MHz
Commercial Services Band—and with
the elimination of comparative renewal
rules applicable to the Cellular Service.
The same logic that the Commission
used in exempting those bands from
comparative renewal applications
likewise applies to the remaining WRS
bands. The Commission previously
found, and commenters agree here, that
the public interest is not served by the
filing of time-consuming and costly
competing applications, and a
prohibition on competing applications
will ‘‘protect[] the public interest
without creating incentives for
speculators to file ‘strike’ applications.’’
40. The few commenters that support
retention of the comparative renewal
application rules argue that, without the
ability to file competing applications,
there is no way to discover disqualifying
facts about incumbent licensees. The
renewal requirements the Commission
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adopts today, however, will provide it
with ample information to determine
whether a particular license renewal is
in the public interest. Some commenters
also argue that competing applications
are rare, but this only strengthens the
rationale to eliminate the outdated
rules. The Commission finds that the
best course is to remove the comparative
renewal rules and harmonize the
approach across spectrum bands—many
of which, as discussed above, already
prohibit the filing of competing
applications. In the event that an entity
lacks standing to file a petition to deny
a WRS license renewal application, it
may still bring relevant facts to the
attention of the Commission by means
of an informal filing.
41. If a license is not renewed, the
associated spectrum will be returned to
the Commission as discussed below,
allowing parties that may have been
inclined to file a competing application
to participate in the auction of spectrum
recovered from geographic licensees or
apply for spectrum recovered from a
Cellular or site-based licensee.
42. Return of Spectrum to
Commission if Renewal Application Is
Denied. Consistent with the
Commission’s proposals in the WRS
Reform NPRM, the Commission
concludes that, if a WRS licensee cannot
meet the renewal standard and its
license cannot be renewed, its licensed
spectrum will be returned automatically
to the Commission. For site-based
licenses, the Commission will continue
to apply the policy of having spectrum
revert to a geographic area licensee, if
applicable, if an underlying site-based
authorization is not renewed.
43. One overarching goal in this
proceeding is to ensure that valued
spectrum resources are rapidly put to
their highest and best use. A second
goal in this proceeding is to provide
licensees with certainty and clarity
regarding the rules that apply to them
and the consequences for failing to meet
those rules. The Commission’s existing
spectrum reversion rule employed today
serves these dual goals. If a licensee
cannot meet the renewal standard (via
safe harbor or renewal showing) or it
has permanently discontinued service,
or its regulatory compliance
certification is insufficient, its renewal
application cannot be granted, and its
licensed spectrum will return
automatically to the Commission.
44. Wireless Radio Services Excluded
from Rulemaking. The Commission
concludes that certain Wireless Radio
Services should be excluded from the
new renewal requirements. Specifically,
the Commission will not apply the
revised renewal paradigm to Wireless
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Radio Services licenses that have no
construction obligations, including
services where operations are licensed
by rule (and thus there is no individual
‘‘license’’ to renew) or to Wireless Radio
Services that can be considered to
involve a ‘‘personal’’ license. These
services are listed in Appendix I of the
Order.
B. Permanent Discontinuance of
Operations for Wireless Radio Services
45. All WRS licensees are currently
subject to the Part 1 rule governing
permanent discontinuance, which
provides that an authorization
automatically terminates, without
specific Commission action, if service is
‘‘permanently discontinued.’’ To
promote service continuity, the
Commission replaces disparate servicespecific rules dealing with permanent
discontinuance with a standardized rule
for all WRS licensees. This rule will
work in concert with construction and
renewal obligations to ensure that
licensees provide service in a timely
manner, continue to provide service
over the term of the license, and do not
discontinue service for such an
extended period of time that it should
be deemed permanent.
46. Current service-specific rules do
not clearly and consistently define
permanent discontinuance resulting in
license termination, with a few services
defining the term and many services
completely lacking any definition. Thus,
after meeting any service-specific
construction and renewal requirements,
some licensees in a service whose rules
provide no definition of ‘‘permanent’’
discontinuance might conclude that
they are permitted to discontinue
service for long periods of time, and that
such suspension of service would not
trigger automatic license termination. In
contrast, other licensees/competitors in
a service whose rules define
‘‘permanent’’ discontinuance as specific
amount of time during which operations
were suspended (e.g., 90 days) would be
subject to automatic license termination
if they discontinued service to
subscribers for that specified length of
time. As the Commission noted in the
WRS Reform NPRM, the public interest
is not served by such marked regulatory
disparities. The Commission
accordingly proposed to adopt a
uniform discontinuance of service rule
for Parts 22, 24, 27, 80, 90, 95, and 101
Wireless Radio Services. The
Commission finds that the adoption of
a uniform regulatory framework
governing the permanent
discontinuance of operations for
Wireless Radio Services will serve the
public interest by: (1) Affording
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similarly situated licensees and like
services comparable regulatory
treatment; (2) providing licensees and
other interested parties clarity and
certainty to facilitate business and
network planning; and (3) ensuring that
valuable spectrum is not underutilized.
The rules the Commission adopts today
strike the appropriate balance between
providing licensees with operational
flexibility and ensuring spectrum is not
warehoused and does not lie fallow.
47. Most but not all commenters
support a uniform regulatory framework
governing permanent discontinuance.
Commenters disagree, however, on the
appropriate discontinuance period to be
applied to the various Wireless Radio
Services, with some commenters
supporting the Commission’s proposed
time periods while other commenters
seek a 365-day discontinuance period
for all WRS licensees.
48. Commenters are generally
supportive of the Commission’s
proposal to apply the permanent
discontinuance rule commencing on the
date a licensee makes its initial
construction showing or notification.
Some commenters, however, ask that
the Commission commence the
permanent discontinuance period on
the date of a licensee’s construction
deadline, while Sprint suggests that the
Commission use a licensee’s final
construction deadline date.
49. Section 101.305 of the rules states
that common carrier licensees in certain
services must notify the Commission of
involuntary discontinuance, reduction,
or impairment of service within 48
hours, and that voluntary
discontinuance by a common carrier
licensee in the identified services must
occur only with prior Commission
approval, under the procedures of part
63 of the Commission’s rules. AT&T
asks that the Commission take this
opportunity to delete § 101.305, arguing
that it is both obsolete and duplicative
of other rules, specifically § 101.65 and
that the rule’s concern for protecting
‘‘communities’’ is misplaced.
50. After reviewing the extensive
record in this proceeding, the
Commission finds that the public
interest will be best served by adopting
a uniform regulatory framework
governing service continuity. The
Commission therefore adopts new
§ 1.953 as it appears in Appendix A of
the Order and deletes multiple rule
sections governing permanent
discontinuance in specific Wireless
Radio Services. As recognized by the
Commission in four other proceedings
and by commenters in this proceeding,
the approach the Commission adopts
strikes an appropriate balance between
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affording licensees operational
flexibility and ensuring that licensed
spectrum is efficiently utilized. The
Commission disagrees with those
commenters that oppose the adoption of
any permanent discontinuance rules.
Allowing licensees unfettered discretion
to determine how long scarce spectrum
resources lie fallow after meeting
relevant construction requirements
would be inconsistent with the intent of
those requirements and would directly
contradict the Commission’s statutory
obligation to ‘‘prevent stockpiling or
warehousing of spectrum by licensees or
permittees.’’
51. The Commission replaces the
existing hodgepodge of discontinuance
rules with a unified regulatory
framework that ensures regulatory
parity across services and license types
and applies the rules on a per-license
basis. Under the new rules for all
geographically licensed radio services,
permanent discontinuance of service for
a given license will be defined as 180
consecutive days during which a
licensee does not operate or, in the case
of WRS licensees providing service to
customers, does not provide service to
at least one subscriber that is not
affiliated with, controlled by, or related
to the providing carrier. The
Commission adopted an identical
framework for AWS–4, H Block, AWS–
3, and 600 MHz, which are all licensed
on a geographic basis. In addition, for
all radio services licensed by site,
permanent discontinuance of service for
a given license will be defined as 365
consecutive days during which a
licensee does not operate or, in the case
of WRS licensees providing service to
customers, does not provide service to
at least one subscriber that is not
affiliated with, controlled by, or related
to the providing carrier. A licensee’s
authorization will automatically
terminate, without specific Commission
action, if it permanently discontinues
service.
52. The rules distinguish between
wireless providers providing service to
subscribers and private licensee
operation. In accordance with the
Commission’s proposal, for wireless
providers, the Commission defines
‘‘permanently discontinued’’ as a period
of 180 or 365 consecutive days (for
geographic and site-based licenses,
respectively) during which the licensee
does not provide service to at least one
subscriber that is not affiliated with,
controlled by, or related to, the
provider. The Commission adopts a
different approach for wireless licensees
that use their licenses for private,
internal communications, however,
because such licensees generally do not
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provide service to unaffiliated
subscribers. For such private, internal
communications, the Commission
defines ‘‘permanent discontinuance’’ as
a period of 180 or 365 consecutive days
(for geographic and site-based licenses
respectively) during which the licensee
does not operate.
53. The Commission concludes that
different rules for geographic versus
site-based licenses are warranted by
their differing operational
characteristics. Under a geographic
license, a licensee constructs and
operates its entire network in the market
under the umbrella of its geographic
license. As MetroPCS explains, wireless
carriers constantly discontinue
individual sites or channels as they
reconfigure their networks to increase
and adjust capacity. The Commission’s
goal in this proceeding is not to hamper
a licensee’s normal network design and
reconfiguration processes. Licensees
should continue to have the necessary
flexibility to add or remove network
facilities consistent with their business
strategies and network planning
processes. Thus, for geographic
licensees, the period of discontinuance
will not start for a given license until all
network facilities operated under that
license within the licensed area are
discontinued.
54. By contrast, site-based licensees
do not have the same flexibility as
geographic licensees to decommission
individual facilities. Site-based
licensees are authorized to transmit
from a particular location or over a
particular path and have little flexibility
to alter these parameters; ceasing
operation on a frequency or band
constitutes a total cessation of all
service or operation under the site-based
license and, unless otherwise provided,
would therefore start the clock for
measuring the length of discontinued
service/operations on that licensed
frequency/band at that location/path.
Thus, to provide site-based licensees
with the necessary flexibility to repair,
modify, or upgrade their sites without
fear of triggering a discontinuance
period that could lead to the automatic
termination of their license, the
Commission finds that site-based
licensees should be afforded a 365-day
discontinuance period.
55. The Commission does not find
that geographic licensees need a 365day discontinuance period to
adequately conduct technology
upgrades and to avoid unfairly
penalizing licensees that operate in
remote or highly seasonal areas of the
country that may be uninhabited for
more than half the year. Given the
flexibility geographic licensees have to
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turn off individual facilities in their
licensed area so long as at least one
facility continues to operate or
continues to serve at least one nonaffiliated subscriber, the Commission
finds that 180 days provides licensees
with ample time to effectuate network
modifications without triggering a
discontinuance period. Adoption of a
180-day discontinuance period
substantially increases the amount of
time licensees can discontinue
operations in some services. However,
the Commission decreases the
discontinuance period from one year to
180 days in certain services, for
example, certain Part 101 geographic
licenses and 220–222 MHz geographic
licenses (listed in Appendix F of the
Order). Given the operational flexibility
afforded geographic area licensees
discussed above, the Commission
concludes that this reduction will not
create undue burdens on such licensees.
Moreover, in the event additional time
is needed, as discussed below, the rules
will provide for an automatic 30-day
extension or licensees can file for a
waiver under § 1.925 of the
Commission’s rules if additional time is
warranted.
56. The Commission agrees with
commenters who propose that the
discontinuance rule should begin to
apply on the date a licensee must meet
its first performance requirement
benchmark, i.e., the construction
deadline. Using the construction
deadline, versus the date a licensee
actually makes its construction
notification, will ‘‘avoid unduly
punishing early adopters who are
experimenting with certain business
models or technologies, and who later
deploy a different technology.’’ If a
licensee files its notification prior to the
required construction deadline, the
licensee should have the flexibility to
alter its network as it sees fit, including
turning down the entire system to
accommodate changes in business plans
or network design. If the Commission
were to apply the rule immediately
upon the filing of a licensee’s
construction showing or notification, it
would create a disincentive for licensees
to deploy their networks prior to their
construction deadline. Such a result
would be contrary to the Commission’s
goal of rapid spectrum deployment.
57. In most cases, the first
performance requirement benchmark is
the interim or final construction
deadline for geographic licenses, or the
12-month construction deadline for sitebased licenses. In a few cases, licensees
have partitioned and/or disaggregated
their licenses under current rules, and
one or more of the resulting licenses
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does not have a construction deadline.
Under the new renewal standard these
licenses must be operating by the end of
the next full renewal term after their
current license term to warrant renewal.
As such, the discontinuance rules will
apply to these partitioned/disaggregated
licenses at that date. This approach
provides consistent treatment in that
licensees need only be concerned about
permanent discontinuance after they are
required to be operating (whether at
their next construction deadline or
renewal). The Commission adopted the
same approach for AWS–4, H Block,
AWS–3, and 600 MHz.
58. In services where the
Commission’s rules currently contain no
definition of permanent discontinuance,
some licensees may have met their
interim construction deadline, but have
yet to reach their final construction
deadline and may have discontinued
operations as part of a business strategy
or network plan. Absent a definition of
permanent discontinuance, these
licensees might have concluded that
they could discontinue service for a
long period without fear of automatic
license termination. While all covered
WRS licensees must comply with the
permanent discontinuance rules going
forward, it is equitable to provide
certain existing licensees with
additional time to come into compliance
with the rules, if necessary. Thus, in all
services that do not currently have an
explicit definition of permanent
discontinuance, (e.g., Part 24 Personal
Communications Services, certain Part
27 Miscellaneous Wireless
Communications Services, Part 80
Safety and Special Radio Services, and
Part 95 218–219 MHz Service) licensees
will be given until January 1, 2019 to
come into compliance with the rules
adopted today regarding permanent
discontinuance. If a licensee in these
services is not providing service or is
not operational on January 1, 2019, the
discontinuance period would start on
that date. After that date, a WRS
licensee’s authorization will
automatically terminate, without
specific Commission action, if service is
permanently discontinued as defined
under the newly adopted rules.
59. The Commission declines to adopt
Sprint’s request to apply the permanent
discontinuance rules only after a
licensee’s final construction date. The
permanent discontinuance rules are
designed to ensure that once a licensee
is required to begin operations or
provide service to the public by, e.g., an
interim construction date, it continues
to do so thereafter without substantial
breaks in operation or service. If the
Commission generally does not apply
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41539
the permanent discontinuance rules
until after a licensee’s final construction
date, a licensee would be permitted to
initiate service at its interim date and
then shut down all operations until the
final construction deadline. This result
is contrary to the Commission’s goal of
promoting robust spectrum use.
However, for some services a failure to
meet an interim construction date
results in acceleration of the final
construction date and, in some cases,
the license expiration date. For these
services, if a licensee fails to meet the
interim construction date, the
discontinuance rule will apply after the
licensee’s accelerated final construction
date.
60. The Commission exclude EBS
from application of the new permanent
discontinuance rule because this service
presents unique issues that are under
consideration in a separate proceeding.
The Commission finds that it should
consider EBS permanent discontinuance
policies in the context of the
comprehensive EBS rulemaking. For the
reasons stated above in the discussion of
the renewal policy rules, the
Commission finds that BRS licenses and
the Motorola-held partitioned and/or
disaggregated Part 80 VHF Public Coast
licenses should be subject to the rules
and policies adopted herein regarding
permanent discontinuance.
61. Section 101.305 contains a
number of requirements related to
discontinuance, reduction, or
impairment of services for some or all
Part 101 services. The bulk of these
provisions relate to involuntary and
voluntary discontinuance, reduction, or
impairment of public communications
services and required filings to be made
with the Commission. In particular,
§ 101.305(b) requires that covered
licensees subject to Title II of the Act
must obtain prior approval from the
Commission pursuant to the procedures
set forth in part 63 of the Commission’s
rules before they may voluntarily
discontinue, reduce, or impair public
communications services to a
community or part of a community.
Because § 101.305 implicates the
provision of service pursuant to Title II
of the Act and given the limited record
addressing this rule, the Commission
makes no changes to this rule section at
this time.
62. Notification of permanent
discontinuance. The Commission
adopts the proposed filing requirement
that a licensee that permanently
discontinues service must notify the
Commission of the discontinuance
within 10 days by filing FCC Form 601
or 605 requesting license cancellation.
Such a self-reporting requirement will
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facilitate timely and accurate
recordkeeping of the Commission
license and spectrum inventory.
However, even if a licensee fails to file
the required form requesting license
cancellation, an authorization will
automatically terminate, without
specific Commission action, if service is
permanently discontinued as defined by
the new rules. The Commission
disagrees with the two commenters who
ask that the notification period be
extended to 30 days. Neither commenter
advances a compelling basis for
extending the notification period and
the proposed 10-day period will ensure
that the Commission’s records are
updated on a timely basis.
63. Extension requests. In addition,
the Commission adopts the proposed
extension request process under which
a request for a longer discontinuance
period may be filed for good cause,
subject to the requirement that it be
filed at least 30 days before the end of
the discontinuance period. Under this
process, the filing of a request would
automatically extend the
discontinuance period a minimum of
the later of an additional 30 days or the
date upon which the Wireless
Telecommunications Bureau (Bureau)
acts on the request. Commenters
support the proposed automatic process
for extension requests. Such an express
process provides licensees with the
flexibility to request a limited period of
additional time for discontinuance of
operations as necessitated by the
licensee’s business and operational
needs and the certainty that they will
receive a minimum of 30 additional
days to resume service.
64. The Commission declines,
however, to adopt CCA’s proposal for an
automatic six-month extension period
or case-by-case review. An automatic
extension of the permissible
discontinuance period of six months
runs contrary to the goals of timely and
efficient use of the nation’s scare
spectrum resources. Although unique
circumstances may arise that necessitate
a period of discontinuance beyond what
is automatically permitted under the
new rules, these circumstances can
adequately be addressed by the existing
waiver processes.
65. Roaming. Several commenters ask
that the Commission clarify how its
permanent discontinuance rules apply
to licensees that serve roamers. The
Commission concludes that, for
purposes of the permanent
discontinuance rule, the term ‘‘service’’
includes service provided exclusively or
incidentally to roamers even though
such roamers are not subscribers of the
licensee providing roaming service.
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Including roaming within the definition
of service serves the underlying goal of
the Commission’s rules to ensure that
licensees are actively using their
spectrum—be it to provide service to
subscribers or roamers—and not
allowing it to lie fallow. The
Commission clarifies, however, that a
WRS licensee must actually be
providing service to a roamer and not
merely have the ability to provide
service to roamers.
66. Channel keepers. The Commission
adopts its proposed rule that operation
of so-called channel keepers—devices
that transmit test signals, tones, and/or
color bars, for example—will not
constitute operation or service for the
purposes of the permanent
discontinuance rule. As the Commission
explained previously, ‘‘it was clearly
unreasonable . . . to believe that the
periodic broadcasting of signals that
nobody received constituted ‘service’
within the meaning of the rule. Such an
interpretation is unreasonable; in order
to provide a service a provider would,
at a minimum, need a customer or other
person to serve.’’ The Commission thus
adopts the rule regarding channel
keepers as proposed.
67. Verizon asks the Commission to
expand the definition of operation to
include facilities that are ‘‘available’’ to
carry customer traffic but are in
‘‘standby’’ mode and only used on an
‘‘as-needed basis depending on capacity
demands.’’ Verizon argues that these
systems are needed to allow licensees to
maximize efficiency of their spectrum
resources and network investment and
maintain optimal performance levels
while providing seamless service to
customers across multiple licenses in
the same market. The Commission
declines to expand its definition of
operation as requested by Verizon. As
the Commission explained previously,
at a minimum, provision of service
requires a customer or other person to
serve. That a network is capable of
service in ‘‘standby mode’’ or on an ‘‘asneeded basis’’ without providing actual
service to a customer or other person is
insufficient to constitute service for
purposes of the Commission’s
permanent discontinuance rules.
Moreover, the Commission does not
license spectrum on a network basis;
rather, it evaluates operational
obligations on a license-by-license basis,
and thus licensees must maintain
continuity of service or operations on a
license-by-license basis.
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C. Geographic Partitioning and
Spectrum Disaggregation Rules and
Policies
68. In the WRS Reform NPRM, the
Commission proposed a new rule,
§ 1.950, to standardize and clarify its
partitioning and disaggregation rules
across services in which such activities
are permitted. As part of this proposal,
the Commission contemplated
establishing consistent performance
obligations (i.e., construction and
operation) for spectrum licenses that
have been divided by geographic
partitioning or spectrum disaggregation
arrangements. Specifically, the
Commission proposed that each party to
such an arrangement would be
individually required to meet any
service-specific performance
requirements.
69. At present, there are a wide
variety of Wireless Radio Services under
the Commission’s authority that are
subject to equally varied construction
and performance obligations. The
Commission’s current partitioning rules
provide licensees several options to
meet their construction obligations: (1)
Independent Construction—the parties
may independently elect to satisfy the
construction requirements for their
respective partitioned license areas and
failure to perform subjects a licensee in
this context to forfeiture of its
partitioned license; (2) Collective
Construction—the parties may
collectively share responsibility for
meeting the construction requirement
for the entire geographic area and if the
parties collectively fail, then both will
be subject to a range of penalties,
including possible license forfeiture; or
(3) Partitioner-only Construction—the
partitioner may satisfy the construction
requirement for the entire prepartitioned geographic area. Many
services allow this third option, but the
repercussions for failure to perform vary
significantly. In some instances,
partitionees must still satisfy a
substantial service requirement for the
partitioned area at renewal. In others,
partitionees can argue that they are not
obligated to provide service to obtain
license renewal since only the nonperforming partitioner is subject to
forfeiture of its license at renewal.
70. Licensees also currently have
multiple options under the
Commission’s disaggregation rules to
meet applicable construction
obligations: (1) One-party
Construction—parties can assign
responsibility to either the disaggregator
or the disaggregatee, and construction
by that party is deemed sufficient for
both. Generally, if the designated party
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fails to perform, only its license is
subject to forfeiture at renewal. (2)
Shared Construction Responsibility—
parties may share responsibility for
meeting the construction requirements.
Depending on the service, failure to
perform by either party could result in
forfeiture of both licenses. By contrast,
some service rules allow parties to a
disaggregation to satisfy the
construction requirement in the
aggregate rather than individually.
71. A majority of the commenters that
addressed the partitioning and
disaggregation construction
requirements in the WRS Reform NPRM
disagree with the Commission’s
proposal to require that each party to
such arrangements independently
satisfy construction obligations. They
object largely on the basis that the
current rules already promote efficient
spectrum use and changing them is
unnecessary, or worse, harmful. They
contend, among other things, that the
new rules will curb interest in
secondary market opportunities,
particularly in rural areas, and will
disrupt existing private contractual
relationships.
72. The Commission’s experience
with partitioning and disaggregation
indicates that parties can, and
sometimes do, manipulate the current
requirements in ways that result in
spectrum in some services lying fallow
for long periods of time, contrary to the
Commission’s stated goal of maximizing
efficient spectrum use. For instance,
under the current rules, parties have
been free to disaggregate a small sliver
of a spectrum license over the entire
geographic licensed area and assign the
entire construction requirement to that
particular license. In that circumstance,
only that small sliver of spectrum has
been subject to license termination or
forfeiture, while the bulk of the license
has not been subject to any construction
requirement. The Commission finds that
none of the comments effectively
addresses the central rationale for
proposing to modify the partitioning
and disaggregation performance
requirements, i.e., preventing spectrum
warehousing. The Commission therefore
amends the partitioning and
disaggregation rules to prevent spectrum
warehousing.
73. In lieu of requiring each party to
a partitioning or disaggregation
arrangement to certify that it will
independently satisfy service-specific
construction and/or performance
requirements, the Commission will
afford such parties the additional option
of sharing service-specific performance
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requirements.6 Further, to ensure
uniformity and clarity, the Commission
adopts § 1.950, largely as proposed, and
§ 1.950(g), as revised, to replace separate
partitioning and disaggregation
construction and performance rules for
each service in various rule parts. The
Commission concludes that these
changes will provide WRS licensees
with greater flexibility to configure their
licenses according to their operational
needs, while still affording important
safeguards against spectrum
warehousing.
74. The Commission agrees with
Verizon that imposing an independent
construction requirement on both
parties to a partitioning or
disaggregation arrangement, as proposed
in draft § 1.950(g) in the WRS Reform
NPRM, might, under certain
circumstances, unnecessarily impose
additional construction requirements on
parties to partitioning and
disaggregation arrangements that would
not have existed had the license not
been partitioned or disaggregated. To
address this potential issue, the
Commission revises § 1.950(g) to allow
participants to share the construction
requirement, which ensures that no two
parties to a partitioning or
disaggregation arrangement will be
required to build out more than 100
percent of the requirement for any
particular geographic area or spectrum
block. In addition, parties to
partitioning and disaggregation
arrangements are not required to
continue construction in cases where
the original licensee has already
satisfied the requirement for the license
term. However, to the extent that
§ 1.950(g), as revised, requires that
partitionees and disaggregatees comply
with interim and final construction
benchmarks in addition to satisfying the
renewal requirements the Commission
adopts in this order, the Commission’s
interest in preventing spectrum
warehousing that is permitted under
current rules outweighs the potential
added burden, if any, on these thirdparty licensees.
75. The Commission finds that the
new rule adequately addresses
6 Specifically, in § 1.950(g), as revised herein, the
Commission provides the parties to a partitioning
and/or disaggregation arrangement with two
options for satisfying service-specific performance
requirements (i.e., construction and operation
requirements). Under the first option, each party
may individually satisfy any service-specific
requirements and, upon failure, must individually
face any service-specific performance penalties.
Under the second option, both parties may agree to
share responsibility for any service-specific
requirements. Upon failure to meet their shared
service-specific performance requirements, both
parties will be subject to any service-specific
penalties.
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41541
commenters’ arguments that proposed
§ 1.950(g) would deter secondary market
activity, especially with respect to
small, rural licensees for whom buildout
requirements may be prohibitively
costly. The Commission also finds that
its rule adequately addresses Blooston’s
arguments underlying its
recommendation that the Commission
exempt rural areas from the rule. The
revised rule allows parties to
partitioning and disaggregation
arrangements to share service-specific
construction requirements. The
Commission concludes that the
additional flexibility of the revised rule
will continue to enable service
providers to configure geographic area
and spectrum block licenses to suit their
unique operational needs, which
includes using partitioning and
disaggregation to open up licensing
opportunities to rural carriers.
76. The Commission declines to retain
‘‘partitioner only’’ construction rules
(wherein a partitioner can certify that it
has met or will meet the construction
requirement for the entire prepartitioned area) to encourage carriers to
take risks in rural markets. This
proposal would appear to allow a
partitionee in certain services to hold a
license for the partitioned area without
deploying facilities on the spectrum for
a significant period of time, even if the
licensee must be able to certify that it is
providing service at renewal, or
otherwise make a showing to justify
license renewal. The Commission
concludes that the better way to
promote service to rural markets is to
ensure that all license holders—at least
during the initial license term, and in
circumstances where the original
licensee has not previously satisfied the
construction requirement for the entire
geographic area or spectrum block—
have, directly or indirectly, an
obligation to construct and operate
facilities on the spectrum.
77. The Commission declines to adopt
CTIA’s proposal that the Commission
should exempt a licensee’s wholly
owned subsidiaries or commonly
controlled affiliates when they partner
with the licensee to divide the license.
The Commission’s experience has
shown that this type of intra-corporate
family partitioning and disaggregation
has proven particularly susceptible to
manipulation for spectrum warehousing
purposes simply because the parties to
the division are commonly controlled.
Adoption of CTIA’s proposal risks
undermining rather than advancing the
Commission’s objective of eliminating
spectrum warehousing. Moreover, the
addition of the new option to permit
shared construction responsibility by a
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partitioner/partitionee or a
disaggregator/disaggregatee should
largely address this concern.
78. The Commission does not adopt
the suggestions raised by MetroPCS and
Verizon that the Commission exempt
Broadband PCS from the proposed rule
based on the argument that the
substantial service requirement at
renewal discourages parties to a
partitioning arrangement from
warehousing spectrum in the manner
the Commission seeks to preclude. The
Commission concludes that these
licensees will be no worse off under a
regulatory framework that holds all
licensees to comparable requirements.
Many services still allow parties to a
partitioning or disaggregation
arrangement to assign the performance
requirement to one of the parties and
thereby allow the other to delay or avoid
construction in that party’s portion of
the license (whether geography or
spectrum) if they so choose. This
problem exists in numerous services,
even if some service rules may
discourage so-called free riders. By this
Order, the Commission seeks to
consolidate the services under a single
set of rules and proscribe spectrum
warehousing by all licensees in the
covered services, not just the few who
hold spectrum subject to service rules
that more effectively prevent such
warehousing.
79. The Commission also declines to
adopt CTIA’s proposal to prohibit
parties from assuming construction and
performance obligations for an entire
license area or spectrum block unless
they also hold spectrum covering a
majority of that same geographic area or
spectrum block. CTIA does not provide
evidence demonstrating why this
approach would be more effective at
preventing spectrum warehousing than
the consistent approach envisioned by
the partitioning and disaggregation rules
adopted today, nor does it acknowledge
or address the potential administrative
burdens that would be placed on
applicants and on Commission staff in
addressing such arrangements. The
Commission believes that adoption of
CTIA’s proposal would provide greater
uncertainty in the spectrum marketplace
and would not consistently and
successfully prevent spectrum
warehousing.
80. The Commission also declines to
exempt existing partitioning and
disaggregation arrangements from
application of the requirements of
§ 1.950(g) as adopted today, and apply
the rule only prospectively and only to
future partitioning and disaggregation
arrangements. By adopting § 1.950(g) as
revised, the Commission intends to
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prevent spectrum warehousing and
ensure that future transactions facilitate
the availability of spectrum in the
marketplace for licensees who are most
highly motivated to use it. By this
action, the Commission seeks to resolve
loopholes in the current partitioning
and disaggregation rules that could be
and have been manipulated to avoid the
very construction and substantial
service obligations that promote
efficient spectrum use. However, the
Commission agrees that its rules should
not be applied retroactively to disrupt
transactions that have already been
negotiated based on the pre-existing
rules and submitted to the Commission
for approval. Specifically, § 1.950(g) will
be applied to partitioning and
disaggregation arrangements reflected in
applications filed on or after the
effective date of the new rule, and not
to any arrangements reflected in an
already granted application or in an
application filed before the effective
date of new § 1.950(g).
81. The Commission makes no
changes in response to AT&T’s
argument that new entrants will be
discouraged from acquiring spectrum
through partitioning or disaggregation
when it is late in the original license
term, and there is little time to fulfill the
construction obligation. The
Commission concludes that this concern
is related not to partitioning and
disaggregation rules, but to the current
build out rules, which provide that the
performance requirements associated
with a license are not reduced or
extended as a result of any secondary
market transaction, including one near
the end of a license term. The rule
modifications do not alter those
obligations.
82. Finally, the Commission does not
address the suggestion by Sprint and
AT&T that licensees that have acquired
previously partitioned and/or
disaggregated licenses be allowed, as a
matter of processing, to consolidate the
subdivided parts into the original
license configuration. The Commission
finds this proposal to be beyond the
scope of this proceeding, which is
narrowly focused on standardizing and
clarifying the Commission’s partitioning
and disaggregation rules across services.
The question of whether, and how, a
partitioned or disaggregated license can
be reconstituted as a matter or
processing can be addressed by
Commission staff under current rules
and licensing systems.
83. Commenting parties in this
proceeding that addressed proposed
§ 1.950 focused solely on proposed
§ 1.950(g). Accordingly, based on the
record in this proceeding, the
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Commission adopt § 1.950 largely as
proposed in the WRS Reform NPRM,
with the exception of § 1.950(g). The
Commission further concludes that
adopting new § 1.950(g), as revised
herein, will most effectively balance its
competing obligations to: (1) remove
potential barriers to entry by returning
heretofore fallow spectrum to the
marketplace, and thereby increase
competition; (2) encourage parties to use
spectrum more efficiently; and (3) speed
service to unserved and underserved
areas.
D. Freeze on the Filing of Competing
Renewal Applications and Resolution of
Previously Pending Competing Renewal
Applications
84. In the WRS Reform Order, the
Commission imposed a freeze on the
filing of competing renewal applications
and held in abeyance the already-filed
competing renewal applications until
the conclusion of this proceeding. The
Commission stated that, if it were to
adopt the rules proposed in the WRS
Reform NPRM, it would ‘‘dismiss all
pending mutually exclusive
applications and related correspondence
filed with the Commission regarding
those applications.’’
85. At the time that the WRS Reform
Order was adopted, the Commission
had before it a total of 151 renewal
applications in three different service
bands, and 178 applications competing
with those renewal applications. Most
of those competing applications—175 of
178—were filed in the 2.3 GHz Band
against WCS licensees. These competing
applications were dismissed by the
Commission after the relevant parties
reached settlement agreements. Of the
remaining three competing applications,
two were against Cellular licensees’
renewal applications and one was
against a Broadband PCS licensee’s
renewal application. The two Cellular
competing applications have since been
dismissed or resolved. The PCS
competing application was withdrawn
after the applicant obtained the
underlying license at issue via the
license assignment process.
86. Because there are no remaining
pending competing renewal
applications, there is no further action
needed on the Commission’s part to
dismiss such applications.
E. Transition From Interim Renewal
Application Procedures
87. The Commission directed
incumbent licensees to continue to file
timely renewal applications as required
by applicable Commission rules during
the pendency of this rulemaking. The
Commission further directed that
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renewal applications routinely should
continue to be placed on a Bureau
accepted for filing public notice, and
that interested parties could continue to
file petitions to deny consistent with the
rules. In order to reduce uncertainty that
might be caused by long-pending
renewal applications, the Commission
directed the Bureau to routinely grant
renewal applications during the
pendency of this proceeding,
conditioned on the outcome of this
rulemaking.
88. Notwithstanding the
Commission’s statement in the WRS
Reform Order that interested parties
may file petitions to deny consistent
with the requirements of its rules,
NTCH, Inc., now asks that the
Commission provide an opportunity for
a potential applicant to challenge a
renewal applicant’s basic qualifications
at the close of this docket. NTCH asserts
that providing this opportunity to file
petitions to deny against conditionally
granted renewal applications is
necessary to avoid ‘‘permanently
abrogat[ing] the legal rights of parties
interested in challenging the grant of a
renewal application.’’ The Commission
denies NTCH’s request that it open a
window for the filing of petitions to
deny against licensees whose renewal
applications have been conditionally
granted. The opportunity to file
petitions to deny against renewal
applications has been present
throughout the pendency of this
proceeding, and NTCH has not offered
a persuasive legal or equitable argument
in support of having a second shot at
these renewal applications. The
Commission accordingly declines to
open a window for the filing of petitions
to deny against renewal applications
that have been conditionally granted.
89. Petitions for reconsideration of the
actions taken by the WRS Reform Order
were filed by: (1) Atlantic Tele-Network,
Inc., in connection with its wholly
owned indirect subsidiary’s, Tisdale
Telephone Company, LLC, competing
Cellular application with the Cellular
renewal application filed by Kankakee
Cellular L.L.C.; (2) CTIA, AT&T, Cricket,
Rural Cellular Association, Sprint, TMobile, US Cellular, and Verizon
Wireless; (3) Green Flag Wireless, LLC,
CWC Licensing Holding, Inc., James
McCotter, and NTCH–CA, Inc.; and (4)
Wireless Communications Association
International, Inc. (WCAI).
90. The Atlantic Tele-Network, Inc.
petition has been mooted by the fact
that Kankakee withdrew its renewal
application for a Cellular license
authorization in the Kankakee, Illinois
market, and Tisdale was granted a
Cellular license for that market. The
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Commission previously approved the
withdrawal of the petition for
reconsideration filed by Green Flag
Wireless, LLC, CWC License Holding,
Inc., James McCotter, and NTCH–CA,
Inc., along with another petition for
reconsideration filed by the same parties
on October 22, 2010, pursuant to a
settlement agreement. The WCAI
petition for partial reconsideration was
addressed by the WRS Reform
Clarification Public Notice, (WT Docket
No. 10–112) on March 18, 2011, issued
by the Bureau to clarify the conditional
grant of applications for renewal of
license in the WRS Reform Order.
Subsequent to the release of the WRS
Reform Clarification Public Notice,
CTIA, AT&T, Cricket, Rural Cellular
Association, Sprint, T-Mobile, US
Cellular, and Verizon Wireless filed a
motion to withdraw their petition for
reconsideration. The Commission finds
no reason to address the arguments in
the CTIA Petition and accordingly will
grant the request to withdraw the CTIA
Petition.
91. The Commission directs the
Bureau to take the necessary steps to
cease conditioning the grant of renewal
applications on the outcome of this
proceeding. In addition, the
Commission directs the Bureau to take
the necessary steps to remove the
condition from already granted renewal
applications or otherwise make clear on
the face of such licenses that such
condition is no longer valid.
II. Procedural Matters
A. Paperwork Reduction Act Analysis
92. The Order contains modified
information collection requirements
subject to the Paperwork Reduction Act
of 1995 (PRA), Public Law 104–13. It
will be submitted to the Office of
Management and Budget (OMB) for
review under § 3507(d) of the PRA.
OMB, the general public, and other
Federal agencies will be invited to
comment on the modified information
collection requirements contained in
this proceeding. In addition, the
Commission notes that pursuant to the
Small Business Paperwork Relief Act of
2002, Public Law 107–198, see 44 U.S.C.
3506(c)(4), it previously sought specific
comment on how it might further
reduce the information collection
burden for small business concerns with
fewer than 25 employees.
93. The Commission assessed the
effects of the policies adopted in the
Order with regard to information
collection burdens on small business
concerns, and found that these policies
will benefit many companies with fewer
than 25 employees because the revisions
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41543
the Commission adopts should reduce
filing burdens for all WRS licensees,
whether large or small. Also, by
ensuring, pursuant to the partitioning
and disaggregation rules and the
permanent discontinuance rules the
Commission adopts today, that valuable
spectrum will not lie fallow, these
policies will provide small entities with
more opportunities to gain access to
valuable spectrum. In addition, the
Commission has described impacts that
might affect small businesses, which
includes most businesses with fewer
than 25 employees, in the Final
Regulatory Flexibility Analysis (FRFA)
in Appendix B of the Order.
B. Congressional Review Act
94. The Commission will send a copy
of this Order to Congress and the
Government Accountability Office
pursuant to the Congressional Review
Act. In addition, the Commission will
send a copy of the Order, including the
FRFA, to the Chief Counsel for
Advocacy of the SBA (5 U.S.C. 603(a)).
C. Final Regulatory Flexibility Analysis
95. The Regulatory Flexibility Act of
1980 (RFA) requires that an agency
prepare a regulatory flexibility analysis
for notice and comment rulemakings,
unless the agency certifies that ‘‘the rule
will not, if promulgated, have a
significant economic impact on a
substantial number of small entities.’’
Accordingly, the Commission has
prepared a FRFA, set forth in Appendix
B of the Order, concerning the possible
impact of the rule changes.
D. Ex Parte Presentations
96. This proceeding shall continue to
be treated as ‘‘permit-but-disclose’’
proceeding in accordance with the
Commission’s ex parte rules. Persons
making ex parte presentations must file
a copy of any written presentation or a
memorandum summarizing any oral
presentation within two business days
after the presentation (unless a different
deadline applicable to the Sunshine
period applies). Persons making oral ex
parte presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda or other
filings in the proceeding, the presenter
may provide citations to such data or
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arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
them in the memorandum. Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with rule
1.1206(b). In proceedings governed by
rule 1.49(f) or for which the
Commission has made available a
method of electronic filing, written ex
parte presentations and memoranda
summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
Commission’s Electronic Comment
Filing System (ECFS) available for that
proceeding, and must be filed in their
native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Participants in this
proceeding should familiarize
themselves with the Commission’s ex
parte rules.
97. People with Disabilities. To
request materials in accessible formats
for people with disabilities (braille,
large print, electronic files, audio
format), send an email to fcc504@fcc.gov
or call the Consumer & Governmental
Affairs Bureau at 202–418–0530 (voice),
202–418–0432 (tty).
III. Ordering Clauses
98. Accordingly, it is ordered,
pursuant to sections 1, 2, 4(i), 4(j), 7,
301, 303, 307, 308, 309, 310, and 332 of
the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i),
154(j), 157, 301, 303, 307, 308, 309, 310,
332, that this second report and order in
WT Docket No. 10–112 is adopted.
99. It is further ordered that parts 1,
22, 24, 27, 30, 74, 80, 90, 95, and 101
of the Commission’s rules, 47 CFR parts
1, 22, 24, 27, 30, 74, 80, 90, 95, and 101,
are amended, effective October 2, 2017
except as otherwise provided herein.
100. It is further ordered that the
amendments adopted in this second
report and order, and to §§ 1.949, 1.950,
and 1.953, which contain new or
modified information collection
requirements that require review by the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, will become effective after OMB
review and approval, on the effective
date specified in a notice that the
Commission will have published in the
Federal Register announcing such
approval and effective date.
101. It is further ordered that the
amendments adopted in this second
report and order, and to paragraphs (e),
(q)(7), (r)(6), (s)(6), and (t)(6) of § 27.14,
will become effective after OMB review
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and approval of § 1.949, on the effective
date specified in a notice that the
Commission will have published in the
Federal Register announcing such
approval and effective date.
102. It is further ordered that the
amendments adopted in this second
report and order, and to §§ 22.317,
22.947, 27.17, 30.106, 74.632, 90.157,
90.631, and 101.65, will become
effective after OMB review and approval
of § 1.953, on the effective date specified
in a notice that the Commission will
have published in the Federal Register
announcing such approval and effective
date.
103. It is further ordered that,
pursuant to sections 4(i) and 405 of the
Communications Act of 1934, 47 U.S.C.
154(i), 405, and § 1.106 of the
Commission’s rules, 47 CFR 1.106, the
Motion of CTIA—The Wireless
Association®, AT&T Services, Inc.,
Cricket Communications, Inc., Rural
Cellular Association, Sprint Nextel
Corporation, T-Mobile USA, United
States Cellular Corporation and Verizon
Wireless To Withdraw Petition for
Reconsideration, filed May 31, 2011, to
withdraw their Petition for
Reconsideration, filed Aug. 6, 2010, is
granted.
104. It is further ordered that,
pursuant to section 801(a)(1)(A) of the
Congressional Review Act, 5 U.S.C.
801(a)(1)(A), the Commission shall send
a copy of the second report and order
to Congress and to the Government
Accountability Office.
105. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
the second report and order, including
the Initial Regulatory Flexibility
Analysis and the Final Regulatory
Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Parts 1, 22,
24, 27, 30, 74, 80, 90, 95, and 101
Communications common carriers,
Radio, Reporting and recordkeeping
requirements.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the
Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR parts 1, 22,
24, 27, 30, 74, 80, 90, 95, and 101 as
follows:
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PART 1—PRACTICE AND
PROCEDURE
1. The authority citation for part 1 is
revised to read as follows:
■
Authority: 47 U.S.C. 151, 154(i), 154(j),
155, 157, 160, 201, 225, 227, 303, 309, 310,
332, 1403, 1404, 1451, 1452, and 1455.
2. Amend § 1.907 by adding the
definitions of ‘‘Covered Geographic
Licenses’’ and ‘‘Covered Site-based
Licenses’’ in alphabetical order to read
as follows:
■
§ 1.907
Definitions.
*
*
*
*
*
Covered Geographic Licenses.
Covered geographic licenses consist of
the following services: 1.4 GHz Service
(part 27, subpart I of this chapter); 1.6
GHz Service (part 27, subpart J); 24 GHz
Service and Digital Electronic Message
Services (part 101, subpart G); 218–219
MHz Service (part 95, subpart F); 220–
222 MHz Service, excluding public
safety licenses (part 90, subpart T); 600
MHz Service (part 27, subpart N); 700
MHz Commercial Services (part 27,
subparts F and H); 700 MHz Guard Band
Service (part 27, subpart G); 800 MHz
Specialized Mobile Radio Service (part
90, subpart S); 900 MHz Specialized
Mobile Radio Service (part 90, subpart
S); Advanced Wireless Services (part 27,
subparts K and L); Air-Ground
Radiotelephone Service (Commercial
Aviation) (part 22, subpart G);
Broadband Personal Communications
Service (part 24, subpart E); Broadband
Radio Service (part 27, subpart M);
Cellular Radiotelephone Service (part
22, subpart H); Dedicated Short Range
Communications Service, excluding
public safety licenses (part 90, subpart
M); H Block Service (part 27, subpart K);
Local Multipoint Distribution Service
(part 101, subpart L); Multichannel
Video Distribution and Data Service
(part 101, subpart P); Multilateration
Location and Monitoring Service (part
90, subpart M); Multiple Address
Systems (EAs) (part 101, subpart O);
Narrowband Personal Communications
Service (part 24, subpart D); Paging and
Radiotelephone Service (part 22,
subpart E; part 90, subpart P); VHF
Public Coast Stations, including
Automated Maritime
Telecommunications Systems (part 80,
subpart J); Upper Microwave Flexible
Use Service (part 30); and Wireless
Communications Service (part 27,
subpart D).
Covered Site-based Licenses. Covered
site-based licenses consist of the
following services: 220–222 MHz
Service (site-based), excluding public
safety licenses (part 90, subpart T of this
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chapter); 800/900 MHz (SMR and
Business and Industrial Land
Transportation Pool) (part 90, subpart
S); Aeronautical Advisory Stations
(Unicoms) (part 87, subpart G); AirGround Radiotelephone Service
(General Aviation) (part 22, subpart G);
Alaska-Public Fixed Stations (part 80,
subpart O); Broadcast Auxiliary Service
(part 74, subparts D, E, F, and H);
Common Carrier Fixed Point-to-Point,
Microwave Service (part 101, subpart I);
Industrial/Business Radio Pool (part 90,
subpart C); Local Television
Transmission Service (part 101, subpart
J); Multiple Address Systems (sitebased), excluding public safety licenses
(part 101, subpart H); NonMultilateration Location and Monitoring
Service (part 90, subpart M); Offshore
Radiotelephone Service (part 22,
subpart I); Paging and Radiotelephone
Service (site-based) (part 22, subpart E);
Private Carrier Paging (part 90, subpart
P); Private Operational Fixed Point-toPoint Microwave Service, excluding
public safety licenses (part 101, subpart
H); Public Coast Stations (site-based)
(part 80, subpart J); Radiodetermination
Service Stations (Radionavigation Land
Stations) (part 87, subpart Q);
Radiolocation Service (part 90, subpart
F); and Rural Radiotelephone Service
(including Basic Exchange Telephone
Radio Service) (part 22, subpart F).
*
*
*
*
*
■ 3. Amend § 1.934 by:
■ a. Revising paragraphs (a)(1)(ii);
■ b. Removing paragraph (a)(3); and
■ c. Revising paragraphs (b) and (c).
The revisions read as follows:
§ 1.934 Defective applications and
dismissal.
sradovich on DSK3GMQ082PROD with RULES
*
*
*
*
*
(a) * * *
(1) * * *
(ii) If the applicant requests dismissal
of its application without prejudice, the
Commission will dismiss that
application without prejudice, unless it
is an application for which the
applicant submitted the winning bid in
a competitive bidding process.
*
*
*
*
*
(b) Dismissal of mutually exclusive
applications not granted. The
Commission may dismiss mutually
exclusive applications for which the
applicant did not submit the winning
bid in a competitive bidding process.
(c) Dismissal for failure to prosecute.
The Commission may dismiss
applications for failure of the applicant
to prosecute or for failure of the
applicant to respond substantially
within a specified time period to official
correspondence or requests for
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additional information. Such dismissal
may be with prejudice in cases of noncompliance with § 1.945. The
Commission may dismiss applications
with prejudice for failure of the
applicant to comply with requirements
related to a competitive bidding process.
*
*
*
*
*
■ 4. Revise § 1.949 to read as follows:
§ 1.949 Application for renewal of
authorization.
(a) Filing requirements. Applications
for renewal of authorizations in the
Wireless Radio Services must be filed
no later than the expiration date of the
authorization, and no sooner than 90
days prior to the expiration date.
Renewal applications must be filed on
the same form as applications for initial
authorization in the same service, i.e.,
FCC Form 601 or 605.
(b) Common expiration date.
Licensees with multiple authorizations
in the same service may request a
common date on which such
authorizations expire for renewal
purposes. License terms may be
shortened by up to one year but will not
be extended.
(c) Implementation. Covered Sitebased Licenses, except Common Carrier
Fixed Point-to-Point Microwave Service
(part 101, subpart I of this chapter), and
Covered Geographic Licenses in the 600
MHz Service (part 27, subpart N); 700
MHz Commercial Services (part 27,
subpart F); Advanced Wireless Services
(part 27, subpart L) (AWS–3 (1695–1710
MHz, 1755–1780 MHz, and 2155–2180
MHz) and AWS–4 (2000–2020 MHz and
2180–2200 MHz) only); and H Block
Service (part 27, subpart K) must
comply with paragraphs (d) through (h)
of this section. All other Covered
Geographic Licenses must comply with
paragraphs (d) through (h) of this
section beginning on January 1, 2023.
Common Carrier Fixed Point-to-Point
Microwave Service (part 101, subpart I)
must comply with paragraphs (d)
through (h) of this section beginning on
October 1, 2018.
(d) Renewal Standard. An applicant
for renewal of an authorization of a
Covered Site-based License or a Covered
Geographic License must demonstrate
that over the course of the license term,
the licensee(s) provided and continue to
provide service to the public, or
operated and continue to operate the
license to meet the licensee(s)’ private,
internal communications needs.
(e) Safe harbors. An applicant for
renewal will meet the Renewal Standard
if it can certify that it has satisfied the
requirements of one of the following
safe harbors:
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(1) Covered Site-based Licenses. (i)
The applicant must certify that it is
continuing to operate consistent with its
most recently filed construction
notification (or most recent
authorization, when no construction
notification is required).
(ii) The applicant must certify that no
permanent discontinuance of service
occurred during the license term. This
safe harbor may be used by any Covered
Site-based License.
(2) Geographic licenses—commercial
service. (i) For an applicant in its initial
license term with an interim
performance requirement, the applicant
must certify that it has met its interim
performance requirement and that over
the portion of the license term following
the interim performance requirement,
the applicant continues to use its
facilities to provide at least the level of
service required by its interim
performance requirement; and the
licensee has met its final performance
requirement and continues to use its
facilities to provide at least the level of
service required by its final performance
requirement through the end of the
license term. For an applicant in its
initial license term with no interim
performance requirement, the applicant
must certify that it has met its final
performance requirement and continues
to use its facilities to provide at least the
level of service required by its final
performance requirement through the
end of the license term. For an applicant
in any subsequent license term, the
applicant must certify that it continues
to use its facilities to provide at least the
level of service required by its final
performance requirement through the
end of any subsequent license terms.
(ii) The applicant must certify that no
permanent discontinuance of service
occurred during the license term. This
safe harbor may be used by any Covered
Geographic License.
(3) Geographic licenses—private
systems. (i) For an applicant in its initial
license term with an interim
performance requirement, the applicant
must certify that it has met its interim
performance requirement and that over
the portion of the license term following
the interim performance requirement,
the applicant continues to use its
facilities to further the applicant’s
private business or public interest/
public safety needs at or above the level
required to meet its interim performance
requirement; and the applicant has met
its final performance requirement and
continues to use its facilities to provide
at least the level of operation required
by its final performance requirement
through the end of the license term. For
an applicant in its initial license term
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with no interim performance
requirement, the applicant must certify
that it has met its final performance
requirement and continues to use its
facilities to provide at least the level of
operation required by its final
performance requirement through the
end of the license term. For an applicant
in any subsequent license term, the
applicant must certify that it continues
to use its facilities to further the
applicant’s private business or public
interest/public safety needs at or above
the level required to meet its final
performance requirement.
(ii) The applicant must certify that no
permanent discontinuance of operation
occurred during the license term. This
safe harbor may be used by any Covered
Geographic License.
(4) Partitioned or disaggregated
license without a performance
requirement. (i) The applicant must
certify that it continues to use its
facilities to provide service or to further
the applicant’s private business or
public interest/public safety needs.
(ii) The applicant must certify that no
permanent discontinuance of service
occurred during the license term. This
safe harbor may be used by any Covered
Geographic License.
(f) Renewal Showing. If an applicant
for renewal cannot meet the Renewal
Standard in paragraph (d) of this section
by satisfying the requirements of one of
the safe harbors in paragraph (e) of this
section, it must make a Renewal
Showing, independent of its
performance requirements, as a
condition of renewal. The Renewal
Showing must specifically address the
Renewal Standard by including a
detailed description of the applicant’s
provision of service (or, when allowed
under the relevant service rules or
pursuant to waiver, use of the spectrum
for private, internal communication)
during the entire license period and
address, as applicable:
(1) The level and quality of service
provided by the applicant (e.g., the
population served, the area served, the
number of subscribers, the services
offered);
(2) The date service commenced,
whether service was ever interrupted,
and the duration of any interruption or
outage;
(3) The extent to which service is
provided to rural areas;
(4) The extent to which service is
provided to qualifying tribal land as
defined in § 1.2110(e)(3)(i) of this
chapter; and
(5) Any other factors associated with
the level of service to the public.
(g) Regulatory Compliance
Certification. An applicant for renewal
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of an authorization in the Wireless
Radio Services identified in paragraph
(d) of this section must make a
Regulatory Compliance Certification
certifying that it has substantially
complied with all applicable FCC rules,
policies, and the Communications Act
of 1934, as amended.
(h) Consequences of denial. If the
Commission, or the Wireless
Telecommunications Bureau acting
under delegated authority, finds that a
licensee has not met the Renewal
Standard under paragraph (d) of this
section, or that its Regulatory
Compliance Certification under
paragraph (g) of this section is
insufficient, its renewal application will
be denied, and its licensed spectrum
will return automatically to the
Commission for reassignment (by
auction or other mechanism). In the case
of certain services licensed site-by-site,
the spectrum will revert automatically
to the holder of the related overlay
geographic-area license. To the extent
that an AWS–4 licensee also holds the
2 GHz Mobile Satellite Service (MSS)
rights for the affected license area, the
MSS protection rule in § 27.1136 of this
chapter will no longer apply in that
license area.
■ 5. Add § 1.950 to read as follows:
§ 1.950 Geographic partitioning and
spectrum disaggregation.
(a) Definitions. The terms ‘‘county and
county equivalent,’’ ‘‘geographic
partitioning,’’ and ‘‘spectrum
disaggregation’’ as used in this section
are defined as follows:
(1) County and county equivalent. The
terms county and county equivalent as
used in this part are defined by Federal
Information Processing Standards (FIPS)
6–4, which provides the names and
codes that represent the counties and
other entities treated as equivalent legal
and/or statistical subdivisions of the 50
States, the District of Columbia, and the
possessions and freely associated areas
of the United States. Counties are the
‘‘first-order subdivisions’’ of each State
and statistically equivalent entity,
regardless of their local designations
(county, parish, borough, etc.). Thus, the
following entities are equivalent to
counties for legal and/or statistical
purposes: The parishes of Louisiana; the
boroughs and census areas of Alaska;
the District of Columbia; the
independent cities of Maryland,
Missouri, Nevada, and Virginia; that
part of Yellowstone National Park in
Montana; and various entities in the
possessions and associated areas. The
FIPS codes and FIPS code
documentation are available online at
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https://www.itl.nist.gov/fipspubs/
index.htm.
(2) Geographic partitioning.
Geographic partitioning is the
assignment of a geographic portion of a
geographic area licensee’s license area.
(3) Spectrum disaggregation.
Spectrum disaggregation is the
assignment of portions of blocks of a
geographic area licensee’s spectrum.
(b) Eligibility. Covered Geographic
Licenses are eligible for geographic
partitioning and spectrum
disaggregation.
(1) Geographic partitioning. An
eligible licensee may partition any
geographic portion of its license area, at
any time following grant of its license,
subject to the following exceptions:
(i) 220 MHz Service licensees must
comply with § 90.1019 of this chapter.
(ii) Cellular Radiotelephone Service
licensees must comply with § 22.948 of
this chapter.
(iii) Multichannel Video &
Distribution and Data Service licensees
are only permitted to partition licensed
geographic areas along county borders
(Parishes in Louisiana or Territories in
Alaska).
(2) Spectrum disaggregation. An
eligible licensee may disaggregate
spectrum in any amount, at any time
following grant of its license to eligible
entities, subject to the following
exceptions:
(i) 220 MHz Service licensees must
comply with § 90.1019 of this chapter.
(ii) Cellular Radiotelephone Service
licensees must comply with § 22.948 of
this chapter.
(iii) VHF Public Coast (156–162 MHz)
spectrum may only be disaggregated in
frequency pairs, except that the ship
and coast transmit frequencies
comprising Channel 87 (see § 80.371(c)
of this chapter) may be disaggregated
separately.
(iv) Disaggregation is not permitted in
the Multichannel Video & Distribution
and Data Service 12.2–12.7 GHz band.
(c) Filing requirements. Parties
seeking approval for geographic
partitioning, spectrum disaggregation, or
a combination of both must apply for a
partial assignment of authorization by
filing FCC Form 603 pursuant to § 1.948.
Each request for geographic partitioning
must include an attachment defining the
perimeter of the partitioned area by
geographic coordinates to the nearest
second of latitude and longitude, based
upon the 1983 North American Datum
(NAD83). Alternatively, applicants may
specify an FCC-recognized service area
(e.g., Basic Trading Area, Economic
Area, Major Trading Area, Metropolitan
Service Area, or Rural Service Area),
county, or county equivalent, in which
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case, applicants need only list the
specific FCC-recognized service area,
county, or county equivalent names
comprising the partitioned area.
(d) Relocation of incumbent licensees.
Applicants for geographic partitioning,
spectrum disaggregation, or a
combination of both must, if applicable,
include a certification with their partial
assignment of authorization application
stating which party will meet any
incumbent relocation requirements,
except as otherwise stated in servicespecific rules.
(e) License term. The license term for
a partitioned license area or
disaggregated spectrum license is the
remainder of the original licensee’s
license term.
(f) Frequency coordination. Any
existing frequency coordination
agreements convey with the partial
assignment of authorization for
geographic partitioning, spectrum
disaggregation, or a combination of
both, and shall remain in effect for the
term of the agreement unless new
agreements are reached.
(g) Performance requirements. Parties
to geographic partitioning, spectrum
disaggregation, or a combination of
both, have two options to satisfy
service-specific performance
requirements (i.e., construction and
operation requirements). Under the first
option, each party may certify that it
will individually satisfy any servicespecific requirements and, upon failure,
must individually face any servicespecific performance penalties. Under
the second option, both parties may
agree to share responsibility for any
service-specific requirements. Upon
failure to meet their shared servicespecific performance requirements, both
parties will be subject to any servicespecific penalties.
(h) Unjust enrichment. Licensees
making installment payments or that
received a bidding credit, that partition
their licenses or disaggregate their
spectrum to entities that do not meet the
eligibility standards for installment
payments or bidding credits, are subject
to the unjust enrichment requirements
of § 1.2111.
■ 6. Add § 1.953 to read as follows:
sradovich on DSK3GMQ082PROD with RULES
§ 1.953 Discontinuance of service or
operations.
(a) Termination of authorization. A
licensee’s authorization will
automatically terminate, without
specific Commission action, if the
licensee permanently discontinues
service or operations under the license
during the license term. A licensee is
subject to this provision commencing on
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the date it is required to be providing
service or operating.
(b) 180-day Rule for Geographic
Licenses. Permanent discontinuance of
service or operations for Covered
Geographic Licenses is defined as 180
consecutive days during which a
licensee does not operate or, in the case
of commercial mobile radio service
providers, does not provide service to at
least one subscriber that is not affiliated
with, controlled by, or related to the
licensee.
(c) 365-day Rule for Site-based
Licenses. Permanent discontinuance of
service or operations for Covered Sitebased Licenses is defined as 365
consecutive days during which a
licensee does not operate or, in the case
of commercial mobile radio service
providers, does not provide service to at
least one subscriber that is not affiliated
with, controlled by, or related to the
providing carrier.
(d) 365-day Rule for public safety
licenses. Permanent discontinuance of
operations is defined as 365 consecutive
days during which a licensee does not
operate. This 365-day rule applies to
public safety licenses issued based on
the applicant demonstrating eligibility
under § 90.20 or § 90.529 of this chapter,
or public safety licenses issued in
conjunction with a waiver pursuant to
section 337 of the Communications Act.
(e) Channel keepers. Operation of
channel keepers (devices that transmit
test signals, tones, color bars, or some
combination of these, for example) does
not constitute operation or service for
the purposes of this section.
(f) Filing requirements. A licensee that
permanently discontinues service as
defined in this section must notify the
Commission of the discontinuance
within 10 days by filing FCC Form 601
or 605 requesting license cancellation.
An authorization will automatically
terminate, without specific Commission
action, if service or operations are
permanently discontinued as defined in
this section, even if a licensee fails to
file the required form requesting license
cancellation.
(g) Extension request. A licensee may
file a request for a longer
discontinuance period for good cause.
An extension request must be filed at
least 30 days before the end of the
applicable 180-day or 365-day
discontinuance period. The filing of an
extension request will automatically
extend the discontinuance period a
minimum of the later of an additional
30 days or the date upon which the
Wireless Telecommunications Bureau
acts on the request.
■ 7. Amend § 1.955 by revising
paragraph (a)(3) to read as follows:
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§ 1.955
41547
Termination of authorizations.
*
*
*
*
*
(a) * * *
(3) Service discontinued.
Authorizations automatically terminate,
without specific Commission action, if
service or operations are permanently
discontinued. See § 1.953.
*
*
*
*
*
PART 22—PUBLIC MOBILE SERVICES
8. The authority citation for part 22
continues to read as follows:
■
Authority: 47 U.S.C. 154, 222, 303, 309 and
332.
§ 22.131
[Amended]
9. Amend § 22.131 as follows:
a. Remove paragraph (b)(1);
b. Redesignate paragraphs (b)(2)
through (4) as paragraphs (b)(1) through
(3);
■ c. Remove paragraph (c)(3)(i);
■ d. Redesignate paragraphs (c)(3)(ii)
and (iii) as paragraphs (c)(3)(i) and (ii);
■ e. Remove paragraph (c)(4)(i); and
■ f. Redesignate paragraphs (c)(4)(ii)
through (iv) as paragraphs (c)(4)(i)
through (iii).
■
■
■
§ 22.317
■
[Removed]
10. Remove § 22.317.
§ 22.513
[Amended]
11. Amend § 22.513 by removing
paragraphs (f) and (g).
■
§ 22.947
■
[Removed]
12. Remove § 22.947.
PART 24—PERSONAL
COMMUNICATIONS SERVICES
13. The authority citation for part 24
continues to read as follows:
■
Authority: 47 U.S.C. 154, 301, 302, 303,
309 and 332.
§ 24.16
■
[Removed]
14. Remove § 24.16.
§ 24.104
[Amended]
15. Amend § 24.104 by removing
paragraphs (f) and (g).
■
§ 24.714
[Amended]
16. Amend § 24.714 by removing
paragraph (e).
■
PART 27—MISCELLANEOUS
WIRELESS COMMUNICATIONS
SERVICES
17. The authority citation for part 27
continues to read as follows:
■
Authority: 47 U.S.C. 154, 301, 302a, 303,
307, 309, 332, 336, 337, 1403, 1404, 1451,
and 1452, unless otherwise noted.
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a. Revising the section heading;
b. Removing and reserving paragraphs
(b) through (f); and
■ c. Removing paragraphs (q)(7), (r)(6),
(s)(6), and (t)(6).
The revision reads as follows:
■
■
§ 27.14
*
*
§ 27.15
Construction requirements.
*
*
*
[Amended]
19. Amend § 27.15 by removing
paragraph (d).
■
§ 27.17
■
based AMTS, or nationwide or multiregion LF, MF, and HF public coast
licensee will be required to construct
and commence ‘‘service to subscribers’’
in all facilities acquired through such
transactions within the original
construction deadline for each facility
as set forth in § 80.49. Failure to meet
the individual construction deadline
will result in the automatic termination
of the facility’s authorization.
PART 90—PRIVATE LAND MOBILE
RADIO SERVICES
[Removed]
28. The authority citation for part 90
continues to read as follows:
20. Remove § 27.17.
■
PART 30—UPPER MICROWAVE
FLEXIBLE USE SERVICE
Authority: 47 U.S.C. 151, 152, 153, 154,
301, 303, 304, 307, 309, 310, 316, 332, 1302.
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), and 332(c)(7), and Title VI of
the Middle Class Tax Relief and Job Creation
Act of 2012, Public Law 112–96, 126 Stat.
156.
§ 30.105
§ 90.157
21. The authority citation for part 30
continues to read as follows:
■
[Amended]
■
■
■
■
[Removed]
23. Remove § 30.106.
PART 74—EXPERIMENTAL RADIO,
AUXILIARY, SPECIAL BROADCAST
AND OTHER PROGRAM
DISTRIBUTIONAL SERVICES
24. The authority citation for part 74
continues to read as follows:
■
Authority: 47 U.S.C. 154, 302a, 303, 307,
309, 310, 336 and 554.
§ 74.632
29. Remove § 90.157.
30. Amend § 90.165 by:
a. Removing paragraph (b)(1);
b. Redesignating paragraphs (b)(2)
through (4) as paragraphs (b)(1) through
(3);
■ c. Removing paragraph (c)(3)(i);
■ d. Redesignating paragraphs (c)(3)(ii)
and (iii) as paragraphs (c)(3)(i) and (ii);
■ e. Revising newly redesignated
paragraph (c)(3)(ii);
■ f. Removing paragraph (c)(4)(i); and
■ g. Redesignating paragraphs (c)(4)(ii)
through (iv) as paragraphs (c)(4)(i)
through (iii).
The revision reads as follows:
■
22. Amend § 30.105 by removing
paragraph (d).
■
§ 30.106
[Removed]
[Amended]
25. Amend § 74.632 by removing
paragraph (g).
§ 90.165 Procedures for mutually
exclusive applications.
■
*
PART 80—STATIONS IN THE
MARITIME SERVICES
26. 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.
*
*
*
*
(c) * * *
(3) * * *
(ii) If any mutually exclusive
application filed on the earliest filing
date is an application for modification,
a same-day filing group is used.
*
*
*
*
*
§ 90.365
[Amended]
27. Amend § 80.60 by revising
paragraph (d) to read as follows:
31. Amend § 90.365 by removing
paragraph (d).
■ 32. Amend § 90.375 by revising
paragraph (b) to read as follows:
§ 80.60 Partitioned licenses and
disaggregated spectrum.
§ 90.375 RSU license areas,
communication zones and registrations.
*
*
sradovich on DSK3GMQ082PROD with RULES
■
*
*
*
*
(d) Partitioning and disaggregation
construction requirements for site-based
AMTS, and nationwide or multi-region
LF, MF, and HF public coast. Parties
seeking to acquire a partitioned license
or disaggregated spectrum from a site-
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■
*
*
*
*
(b) Applicants who are approved in
accordance with FCC Form 601 will be
granted non-exclusive licenses for all
non-reserved DSRCS frequencies (see
§ 90.377). Such licenses serve as a
prerequisite of registering individual
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Fmt 4700
Sfmt 4700
RSUs located within the licensed
geographic area described in paragraph
(a) of this section. Licensees must
register each RSU in the Universal
Licensing System (ULS) before
operating such RSU. RSU registrations
are subject, inter alia, to the
requirements of § 1.923 of this chapter
as applicable (antenna structure
registration, environmental concerns,
international coordination, and quiet
zones). Additionally, RSUs at locations
subject to NTIA coordination (see
§ 90.371(b)) may not begin operation
until NTIA approval is received.
Registrations are not effective until the
Commission posts them on the ULS. It
is the DSRCS licensee’s responsibility to
delete from the registration database any
RSUs that have been discontinued.
*
*
*
*
*
■ 33. Amend § 90.631 by revising
paragraph (f) to read as follows:
§ 90.631 Trunked systems loading,
construction and authorization
requirements.
*
*
*
*
*
(f) If a station is not placed in
permanent operation, in accordance
with the technical parameters of the
station authorization, within one year,
except as provided in § 90.629, its
license cancels automatically. For
purposes of this section, a base station
is not considered to be placed in
operation unless at least two associated
mobile stations, or one control station
and one mobile station, are also placed
in operation.
*
*
*
*
*
■ 34. Amend § 90.685 by revising
paragraph (a) to read as follows:
§ 90.685 Authorization, construction and
implementation of EA licenses.
(a) EA licenses in the 809–824/854–
869 MHz band will be issued for a term
not to exceed ten years.
*
*
*
*
*
■ 35. Revise § 90.743 to read as follows:
§ 90.743
Renewal requirements.
Until January 1, 2023, all licensees
seeking renewal of their authorizations
at the end of their license term must file
a renewal application in accordance
with the provisions of § 1.949 of this
chapter. Licensees must demonstrate, in
their application, that:
(a) They have provided ‘‘substantial’’
service during their past license term.
‘‘Substantial’’ service is defined in this
rule as service that is sound, favorable,
and substantially above a level of
mediocre service that just might
minimally warrant renewal; and
(b) They have substantially complied
with applicable FCC rules, policies, and
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operational for a period of 30 days or
more. A licensee is subject to this
provision commencing on the date it is
required to be providing service or
operating under § 101.63. This provision
is inapplicable to blanket authorizations
to operate fixed stations at temporary
locations pursuant to the provisions of
§ 101.31(a)(2). See § 101.305 for
additional rules regarding temporary
and permanent discontinuation of
service.
■ 45. Amend § 101.527 by revising
paragraph (a) and paragraph (b)
introductory text to read as follows:
the Communications Act of 1934, as
amended.
§ 90.813
[Amended]
36. Amend § 90.813 by removing
paragraph (e).
■
§ 90.816
■
[Removed]
37. Remove § 90.816.
§ 90.911
[Amended]
38. Amend § 90.911 by removing
paragraphs (e) and redesignating
paragraph (f) as (e).
■
§ 90.1019
[Amended]
39. Amend § 90.1019 by removing
paragraph (d).
PART 95—PERSONAL RADIO
SERVICES
40. The authority citation for part 95
continues to read as follows:
■
Authority: 47 U.S.C. 154, 301, 302(a), 303,
and 307(e).
§ 95.1923
[Amended]
41. Amend § 95.1923 by removing
paragraph (d).
■ 42. Amend § 95.1933 by revising
paragraph (a) and paragraph (b)
introductory text to read as follows:
■
§ 95.1933
Construction requirements.
(a) Each 218–219 MHz Service
licensee must make a showing of
‘‘substantial service’’ within ten years of
the license grant. Until January 1, 2023,
‘‘substantial service’’ assessment will be
made at renewal pursuant to the
provisions and procedures contained in
§ 1.949 of this chapter.
(b) Until January 1, 2023, each 218–
219 MHz Service licensee must file a
report to be submitted to inform the
Commission of the service status of its
system. The report must be labeled as an
exhibit to the renewal application. At
minimum, the report must include:
*
*
*
*
*
compliance with the respective
construction requirements within the
appropriate construction benchmarks
set forth in § 101.1325.
*
*
*
*
*
§ 101.1327
[Removed]
51. Remove § 101.1327.
■ 52. Amend § 101.1413 by revising the
section heading, paragraph (b)
introductory text, and paragraph (c) to
read as follows:
■
§ 101.1413 License term and construction
requirements.
(a) Each licensee must make a
showing of ‘‘substantial service’’ within
ten years of its license grant.
‘‘Substantial service’’ is a service which
is sound, favorable, and substantially
above a level of mediocre service which
just might minimally warrant renewal
during its past license term. Until
January 1, 2023, ‘‘substantial service’’
assessment will be made at renewal
pursuant to the provisions and
procedures set forth in § 1.949 of this
chapter.
(b) Until January 1, 2023, each
licensee must, at a minimum file:
*
*
*
*
*
*
*
*
*
(b) As a construction requirement,
MVDDS licensees must make a showing
of substantial service at the end of five
years into the license period and ten
years into the license period. The
substantial service requirement is
defined as a service that is sound,
favorable, and substantially above a
level of mediocre service which might
minimally warrant renewal. At the end
of five years into the license term and
ten years into the license period, the
Commission will consider factors such
as:
*
*
*
*
*
(c) The renewal application of an
MVDDS licensee is governed by § 1.949
of this chapter.
§ 101.529
§ 101.1415
§ 101.527 Construction requirements for
24 GHz operations.
■
■
[Removed]
46. Remove § 101.529.
§ 101.535
[Amended]
53. Amend § 101.1415 by removing
paragraph (f).
■ 54. Amend § 101.1513 by revising the
section heading to read as follows:
■
[Amended]
47. Amend § 101.535 by removing
paragraph (d).
■ 48. Revise § 101.1011 to read as
follows:
■
§ 101.1011
*
Construction requirements.
§ 101.1513
License term.
*
*
*
*
BILLING CODE 6712–01–P
Authority: 47 U.S.C. 154, 303.
§ 101.1111
AGENCY:
44. Revise § 101.65 to read as follows:
■
43. The authority citation for part 101
continues to read as follows:
■
sradovich on DSK3GMQ082PROD with RULES
*
[FR Doc. 2017–18501 Filed 8–31–17; 8:45 am]
LMDS licensees must make a showing
of ‘‘substantial service’’ in their license
area within ten years of being licensed.
‘‘Substantial’’ service is defined as
service which is sound, favorable, and
substantially above a level of mediocre
service which might minimally warrant
renewal. Failure by any licensee to meet
this requirement will result in forfeiture
of the license and the licensee will be
ineligible to regain it.
PART 101—FIXED MICROWAVE
SERVICES
■
41549
§ 101.65 Termination of station
authorizations.
In addition to the provisions of
§ 1.953 of this chapter, a site-based
license will be automatically terminated
in whole or in part without further
notice to the licensee upon the
voluntary removal or alteration of the
facilities, so as to render the station not
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[Amended]
49. Amend § 101.1111 by removing
paragraph (e).
■ 50. Amend § 101.1323 by revising
paragraph (c) to read as follows:
§ 101.1323 Spectrum aggregation,
disaggregation, and partitioning.
*
*
*
*
*
(c) Construction requirements.
Responsible parties must submit
supporting documents showing
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FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 2, 15, 74, 87, and 90
[GN Docket Nos. 14–166, 12–268, ET Docket
No. 14–165; FCC 17–95]
Promoting Spectrum Access for
Wireless Microphone Operations
Federal Communications
Commission.
ACTION: Final rule.
In this document, the
Commission addresses several petitions
for reconsideration regarding recent
decisions regarding wireless
microphones. Specifically, the
Commission makes technical revisions
to the spurious emission limits that it
had adopted for licensed wireless
SUMMARY:
E:\FR\FM\01SER1.SGM
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Agencies
[Federal Register Volume 82, Number 169 (Friday, September 1, 2017)]
[Rules and Regulations]
[Pages 41530-41549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18501]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 22, 24, 27, 30, 74, 80, 90, 95, and 101
[WT Docket No. 10-112; FCC 17-105]
Uniform License Renewal, Discontinuance of Operation, and
Geographic Partitioning and Spectrum Disaggregation Rules and Policies
for Certain Wireless Radio Services
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission adopts
rules to streamline and harmonize the Commission's license renewal and
service continuity rules for the Wireless Radio Services (WRS). This
unified regulatory framework includes: establishing a consistent
standard for renewing wireless licenses; setting forth safe harbors
providing expedited renewal for licensees that meet their initial term
construction requirement and generally remain operating at or above
that level; adopting consistent
[[Page 41531]]
service continuity rules, which provide for automatic termination of
any license on which a licensee permanently discontinues service or
operation; eliminating unnecessary, legacy ``comparative renewal
rules''; and requiring that when portions of geographic licenses are
sold, both parties to the transaction have a clear construction
obligation and penalty in the event of failure, closing a loophole used
to avoid the Commission's construction requirements. This action will
enhance competition and facilitate robust use of the nation's scarce
spectrum resources.
DATES: Effective October 2, 2017, except for the amendments to
Sec. Sec. 1.949, 1.950, and 1.953, which contain information
collection requirements that require approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (PRA),
and which the Commission will announce by publishing a document in the
Federal Register. The amendments to paragraphs (e), (q)(7), (r)(6),
(s)(6), and (t)(6) of Sec. 27.14 will become effective after OMB
review and approval of Sec. 1.949, which the Commission will announce
by publishing a document in the Federal Register; and the amendments to
Sec. Sec. 22.317, 22.947, 27.17, 30.106, 74.632, 90.157, 90.631, and
101.65 will become effective after OMB review and approval of Sec.
1.953, and which the Commission will announce by publishing a document
in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Joyce Jones at joyce.jones@fcc.gov, of
the Wireless Telecommunications Bureau, Mobility Division, (202) 418-
1327. For additional information concerning the PRA information
collection requirements contained in this document, contact Cathy
Williams at (202) 418-2918 or send an email to PRA@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Report and Order (Order) in WT Docket No. 10-112, FCC 17-105, released
on August 3, 2017. The complete text of the Order, including all
Appendices, is available for inspection and copying during normal
business hours in the FCC Reference Center, 445 12th Street SW., Room
CY-A157, Washington, DC 20554, or by downloading the text from the
Commission's Web site at https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-105A1.pdf.
Alternative formats are available for people with disabilities
(Braille, large print, electronic files, audio format), by sending an
email to FCC504@fcc.gov or calling the Consumer and Government Affairs
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
The Commission will send a copy of the Order in a report to be sent
to Congress and the Government Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
I. Second Report and Order
A. Renewal Requirements for Wireless Radio Services
1. Commission licensing records reflect that, over the next 10
years, the Commission can expect more than 50,000 renewal applications
to be filed by geographic-area licensees and more than 625,000 by site-
based licensees. By its Order, the Commission implements standardized
renewal requirements and expeditious renewal procedures, while
continuing to ensure that licenses are renewed in the public interest
as required by the Communications Act of 1934, as amended (Act). The
Commission finds that adoption of uniform renewal rules will promote
the efficient use of spectrum resources, serve the public interest by
providing licensees certainty regarding their license renewal
requirements, encourage licensees to invest in new facilities and
services, and facilitate their business and network planning.
2. The Commission's current renewal requirements vary widely. Some
service rules include comprehensive filing and processing procedures,
while others contain only minimal guidance. For example, some radio
services have evaluation criteria for a renewal applicant involved in a
comparative renewal proceeding but no procedures for filing competing
applications. Some services require a detailed showing that the
licensee has provided substantial service during the license term. The
renewal rules for some of the Commission's newer services generally
require the licensee to be providing service or operating on an ongoing
basis, after construction, during the license term.
3. In an NPRM released on May 25, 2010 (WT Docket No. 10-112) (WRS
Reform NPRM), the Commission proposed to adopt renewal requirements for
numerous Wireless Radio Services based on the Commission's model for
the 700 MHz Commercial Services Band licensees. Under this three-part
approach: (1) Renewal applicants would file a detailed renewal showing,
demonstrating that they are providing service to the public (or, when
allowed under the relevant service rules or pursuant to waiver, using
the spectrum for private, internal communications) and substantially
complying with the Commission's rules (including any applicable
performance requirements) and policies and the Act; (2) competing
renewal applications would be prohibited; and (3) if a license is not
renewed, the associated spectrum would be returned to the Commission
for reassignment. For services licensed by site, the Commission
proposed to modify the first part of this approach by requiring
affected licensees to certify that they are continuing to operate
consistent with their applicable construction notification(s) or
authorization(s) (where the filing of construction notifications is not
required), rather than making a renewal showing.
4. Renewal Standard. The Commission adopts a unified renewal
standard for most Wireless Radio Services licensees, both geographic
and site-based. A clear, consistent standard will promote the efficient
use of spectrum resources and will serve the public interest by
providing licensees certainty regarding their renewal requirements. To
qualify for renewal, each WRS licensee must demonstrate that over the
course of its license term, the licensee either: (1) Provided and
continues to provide service to the public, taking into account the
periods of time the applicable service-specific rules give licensees to
construct facilities and meet performance benchmarks, or (2) operated
and continues to operate over the course of the license term to address
the licensee's private, internal communications needs, again taking
into account the periods of time the applicable service-specific rules
give licensees to construct facilities and meet performance benchmarks.
5. More specifically, for renewal at the end of an initial license
term, the licensee must demonstrate that it timely constructed to any
level(s) required by the service-specific rules and, thereafter,
consistent with the Commission's permanent discontinuance rules,
continuously provided service or operated at or above the required
level(s) for the remainder of the license term. For subsequent
renewals, the licensee must demonstrate that, over the license term at
issue, it continuously provided service to the public or operated under
the license to meet the licensee's private, internal communications
needs, at or above the level required to meet the final construction
requirement during the initial term of the license. In all events, the
licensee also must certify that its service or operations are
continuing. This requirement is reflected in the new
[[Page 41532]]
Sec. 1.949 the Commission adopts today, which replaces separate
renewal rules for each service in various rule parts, as reflected in
the final rules.
6. The renewal standard the Commission adopts today follows the
approach the Commission adopted in many of its proceedings for new
wireless services over the past decade. Beginning with the 700 MHz
First Report and Order in 2007 (WT Docket No. 06-150), and continuing
to the 2016 600 MHz Report and Order (GN Docket No. 12-268), the
Commission has established that licensees ``must demonstrate that they
are providing adequate levels of service over the course of their
license terms.'' Most recently, the Commission applied the same
principles in the Spectrum Frontiers Report and Order (GN Docket No.
14-177), concluding that Upper Microwave Flexible Use Service (UMFUS)
licensees would meet the renewal standard in their initial license
terms if they met certain performance benchmarks and were ``using
[their] facilities to provide service.'' For subsequent license terms,
the Commission concluded that it would ``award a renewal expectancy for
subsequent license terms if the licensee continues to provide at least
the initially-required level of service through the end of any
subsequent license terms.'' Today, the Commission applies that policy
across the board to most WRS licenses, finding that these renewal
requirements are in the public interest and their benefits outweigh any
likely costs.
7. As the Commission has stated in a number of decisions, a
licensee's renewal obligations are distinct from its performance (also
known as construction or buildout) requirements. Many of the
Commission's specific service rules require performance showings to be
made at the midpoint and end of an initial license term regarding
population or area covered. For some services, licensees must
demonstrate, or may elect to demonstrate, substantial service as their
performance requirement during their initial license term. Under the
Commission's performance requirement rules, a licensee generally
provides a snapshot in time (usually a date in close proximity to, but
no later than, the construction deadline) of the level of service that
it is providing to the public or its level of operation. By contrast,
the showing for renewal--also sometimes referred to as a substantial
service showing--requires more detailed information regarding a
licensee's services or operations and related matters for its entire
license period. Thus, under the Commission's current rules, those
licensees with a substantial service performance requirement at the end
of their initial license term are subject to two distinct substantial
service requirements, one to support their renewal application and one
for performance purposes. The renewal standard the Commission adopts
today and the accompanying discussion should make it more readily
apparent to licensees that the showing required for renewal is distinct
from the showing required to meet a performance requirement.
8. As the Commission stated in the WRS Reform NPRM, the Wireless
Radio Services that are licensed by rule or on a ``personal'' basis or
that have no construction/performance obligation are beyond the scope
of this proceeding and are not encompassed within the renewal policies
the Commission adopts today. Similarly, these policies do not extend to
public safety licenses issued based on the applicant demonstrating
eligibility under Sec. Sec. 90.20 or 90.529, or public safety licenses
issued in conjunction with a waiver pursuant to section 337 of the Act.
The Commission also excludes the Educational Broadband Service (EBS)
from application of the renewal requirements articulated in the Order
since this service presents unique issues that are under consideration
in a separate, comprehensive EBS rulemaking proceeding (See WT Docket
No. 03-66).
9. In contrast, the Commission finds it is no longer necessary to
provide any sort of modified renewal requirements for Broadband Radio
Service (BRS) licensees as the Commission had proposed in the WRS
Reform NPRM. Given that the BRS transition, which began in 2010, is now
complete, the Commission concludes that the BRS is appropriately
included within the overall renewal framework now. The Commission also
rejects Motorola's request that the partitioned and/or disaggregated
Part 80 VHF Public Coast (VPC) Service spectrum it acquired for the
purpose of promoting public safety and private land mobile systems be
excluded from application of the Commission's generally applicable
renewal framework. The Commission is not persuaded that the
characteristics of the Motorola-held VPC Service spectrum and its
planned usage warrant different treatment from other WRS licenses
regarding the renewal rules, and thus the Commission does not grant the
exception from the renewal policies sought by Motorola.
10. Implementation of Renewal Standard. Many commenters express
concern that the renewal framework proposed in the WRS Reform NPRM
would cause uncertainty in the renewal process and create undue
administrative burdens for licensees and Commission staff. Some
commenters suggest that the Commission apply a certification process
for all renewal applications. Other commenters suggest that the
Commission should adopt some form of a safe harbor.
11. The Commission agrees that clearer and more certain renewal
processes will benefit both licensees and the Commission and concludes
that adopting a set of safe harbors--based on licensee certifications--
will serve the public interest by reducing filing burdens on licensees
and concentrating scarce Commission resources on reviewing renewal
filings that warrant close scrutiny. Accordingly, the Commission adopts
four safe harbors to accommodate four license renewal scenarios by
which a renewal applicant can meet the renewal standard adopted in this
Order. These license renewal safe harbors are for (1) site-based
licenses; (2) wireless providers using geographic licenses; (3) private
systems using geographic licenses; and (4) partitioned or disaggregated
licenses without a performance requirement. In a future proceeding, the
Commission may consider additional safe harbors as necessary and
warranted. If a licensee is unable to meet the requirements of one of
the enumerated safe harbors, the licensee must make a more detailed
``renewal showing'' as part of its renewal application; the
requirements for a renewal showing are described following the
discussion of the renewal safe harbors.
12. Each safe harbor scenario is based on three certifications,
which are subject to the Form 601 condition that ``[w]illful false
statements made on this form or any attachments are punishable by fine
and/or imprisonment (18 U.S.C. 1001) and/or revocation of any station
license or construction permit (47 U.S.C. 312(a)(1)), and/or forfeiture
(47 U.S.C. 503).'' If the renewal applicant, in good faith, can make
all three certifications, its renewal application will be subject to
routine processing, and no further detailed renewal showing will be
required as part of the renewal application. The first certification in
each scenario addresses the renewal applicant's ongoing provision of
service and/or operations, and is tailored to the particular nature of
licenses covered under a given safe harbor. The second certification
requires the licensee to certify that no permanent discontinuance of
service or operation (as defined below as an unbroken failure to
provide service or operate over a
[[Page 41533]]
specified period of days) occurred during the license term. The third
certification requires the licensee to certify that it has
substantially complied with all applicable FCC rules, policies, and the
Act.
13. Site-based Licenses. Consistent with the Commission's
certification proposal in the WRS Reform NPRM for the renewal of site-
based licensees, the Commission adopts a safe harbor for site-based WRS
licensees. With site-based services, a licensee's initial application
for authorization provides the exact technical parameters of its
planned operations (such as transmitter location, frequency, and power
levels), while the licensee's subsequent notification, that it has
completed construction, confirms that the facilities have been
constructed consistent with its authorization (or with minor
modifications as may be permitted by the applicable service rules). A
licensee also may file to modify its license, which may lead to a
modified authorization and the submission of a subsequent construction
notification. Consequently, at the time a site-based service provider
files a renewal application, it should be operating as licensed.
14. A site-based WRS licensee will meet the Commission's renewal
standard if it can certify that it is continuing to operate consistent
with the licensee's most recently filed construction notification (or
most recent authorization, when no construction notification is
required), and make the certifications regarding permanent
discontinuance and substantial compliance with Commission rules and
policies that are applicable to all renewal applicants seeking to avail
themselves of one of the renewal safe harbors. Consistent with the
Commission's treatment of wireless providers using geographic licenses
as discussed below, licensees who temporarily reduce their operations
for fewer than 180 days may avail themselves of the safe harbor. The
Commission concludes that this safe harbor for site-based WRS licensees
is in the public interest and will expedite the renewal process for
licensees, ensure spectrum is being used efficiently to provide service
to the public or for private internal needs, and allow Commission staff
to concentrate scarce resources on renewal applications that warrant
heightened scrutiny. Moreover, applying the safe harbor process to
site-based services will ensure that renewed licenses in these services
are being operated, and if they are not, the licensee must submit a
renewal showing as discussed below. This safe harbor may be used by any
site-based WRS license in the services listed in Appendix G of the
Order.
15. Wireless Providers Using Geographic Licenses. The Commission
also finds that it would be in the public interest to adopt a safe
harbor for WRS licensees that provide service to customers using
geographic licenses. Many commenters urge the Commission to adopt a
streamlined certification process for renewal of geographic licenses
like what the Commission proposed for site-based licenses. Most
recently, Verizon argues that a straightforward renewal certification
``will obligate the licensee to verify that it is complying with the
terms of its authorization and Commission rules, including buildout,
spectrum utilization, or other performance requirements.'' Similarly,
CTIA maintains that a certification for geographic license renewal
``would require that licensees verify that they have complied with all
buildout, performance, and other rules--demonstrating that they are
providing service--without imposing unjustified burdens.'' Both Verizon
and CTIA argue that a certification is consistent with the renewal
standard adopted in the Spectrum Frontiers Order for the millimeter
wave spectrum bands at 28 GHz, 37 GHz, and 39 GHz. The Commission
agrees that a certification, as part of a comprehensive safe harbor for
geographic licenses, will streamline its renewal processes, ensure
compliance with its rules, and provide clarity and certainty for WRS
licensees.
16. Accordingly, the Commission adopts a safe harbor for WRS
providers using geographic licenses consistent with the approach taken
in the Spectrum Frontiers Order. A geographically-licensed WRS licensee
providing service to customers will meet the renewal standard if it can
make the following certifications. For a licensee in its initial
license term \1\ with an interim performance requirement, the licensee
must certify that (1) it has met its interim performance requirement
and that over the portion of the license term following the interim
performance requirement (up until the deadline for meeting the final
performance requirement), the licensee continues to use its facilities
\2\ to provide at least the level of service or operation required by
its interim performance requirement,\3\ and (2) it has met its final
performance requirement and continues to use its facilities to provide
at least the level of service required by its final performance
requirement through the end of the license term. For a licensee in its
initial license term with no interim performance requirement, the
licensee must certify that it has met its final performance requirement
and continues to use its facilities to provide at least the level of
service required by its final performance requirement through the end
of the license term.\4\ For a licensee in any subsequent license term,
the licensee must certify that it continues to use its facilities to
provide at least the level of service required by its last performance
requirement through the end of any subsequent license terms. Some
commenters ask the Commission to recognize that there are circumstances
(e.g., network upgrades, natural disasters, power outages, routine
maintenance, temporary service outages) during which a licensee may
need to ``reduce overall coverage below the level required by buildout
requirements, or briefly turn down service . . . for a limited
period.'' CTIA maintains that ``these events should not disqualify a
licensee from using the safe harbor.'' Thus, the Commission clarifies
that licensees who temporarily drop below their construction benchmark
for fewer than 180 days may avail themselves of the safe harbor. In
addition, the licensee must make the certifications regarding permanent
discontinuance and substantial compliance with Commission rules and
policies that are applicable to all renewal applicants seeking to avail
themselves of one of the renewal safe harbors. This safe harbor may be
used
[[Page 41534]]
by geographic licensees in the Wireless Radio Services listed in
Appendix H of the Order.
---------------------------------------------------------------------------
\1\ For performance showing requirements at the end of the
initial license term, there are two filing processes in ULS
depending on the service of the license. For some services,
licensees file a notification of construction (NT) and a separate
renewal application. For other services, licensees include their
performance showing as an exhibit to the renewal application and do
not file a separate NT. Under either filing method, the licensee
would certify in its renewal application that it has submitted a
final performance showing in good faith, but acceptance of its safe
harbor renewal certification is contingent on the Commission's
review and acceptance of the performance showing. This is true as
well for private systems using geographic licenses.
\2\ The Commission determines that use of facilities includes
operations under any spectrum leasing arrangement.
\3\ The Commission notes that any licensee that fails to meet
its interim performance requirement will not be able to avail itself
of this safe harbor option at the end of the initial license term
because it will be unable to certify that it has met its interim
performance requirement.
\4\ The Commission recognizes that a licensee may file a renewal
application as early as 90 days prior to license expiration. 47 CFR
1.949(a). The Commission notes that a licensee with a performance
requirement deadline coincident with its license expiration date
must meet any applicable performance requirement before it can
certify compliance with the safe harbor requirements and file a
renewal application.
---------------------------------------------------------------------------
17. Private Systems Using Geographic Licenses. The Commission finds
that the public interest will be served by adopting a separate safe
harbor for private systems using geographic licenses. In the WRS Reform
NPRM, the Commission queried what factors should be considered during
renewal of licenses used for a licensee's private, internal
communications needs. Commenters generally object to applying the WRS
Reform NPRM's proposed renewal framework to geographic licensees that
deploy private, internal communications systems. Instead, numerous
commenters urge the Commission to adopt a certification for such
licensees. The Commission agrees that a certification, as part of a
comprehensive safe harbor for geographic licensees using their licenses
for private, internal purposes, will streamline its renewal processes,
ensure compliance with its rules, and provide clarity and certainty for
such licensees.
18. Accordingly, the Commission adopts a safe harbor for WRS
licensees using their geographic licenses for private, internal
systems. A geographically licensed WRS licensee using its license for
private, internal purposes will meet the renewal standard if it can
make the following certifications. For a licensee in its initial
license term with an interim performance requirement, the licensee must
certify that (1) it has met its interim performance requirement and
that over the portion of the license term following the interim
performance requirement (up until the deadline for meeting the final
performance requirement), the licensee continues to use its facilities
to further the licensee's private, internal business or public
interest/public safety needs at or above the level required to meet its
interim performance requirement, and (2) it has met its final
performance requirement and continues to use its facilities to further
the licensee's private business or public interest/public safety needs
at or above the level required by its final performance requirement
through the end of the license term. For a licensee in its initial
license term with no interim performance requirement, the licensee must
certify that it has met its final performance requirement and continues
to use its facilities to further the licensee's private business or
public interest/public safety needs at or above the level required by
its final performance requirement through the end of the license term.
For a licensee in any subsequent license term, the licensee must
certify that it continues to use its facilities to further the
licensee's private business or public interest/public safety needs at
or above the level required to meet its last performance requirement.
Consistent with the treatment of wireless providers using geographic
licenses as discussed above, licensees who temporarily drop below their
construction benchmark for fewer than 180 days may avail themselves of
the safe harbor. In addition, the licensee must make the certifications
regarding permanent discontinuance and substantial compliance with
Commission rules and policies that are applicable to all renewal
applicants seeking to avail themselves of one of the renewal safe
harbors. This safe harbor may be used by geographic area licensees in
the Wireless Radio Services listed in Appendix H of the Order.
19. Partitioned or Disaggregated Licenses. As discussed in more
detail below, the Commission's rules permit parties to partitioning or
disaggregation agreements to choose between two options to determine
how the parties will satisfy any relevant pending performance
requirement for the license after it has been divided by geographic
partitioning or spectrum disaggregation arrangements. In cases where
the original licensee has satisfied the applicable performance
requirement prior to partitioning or disaggregating the license,
however, the recipient of the partitioned area or disaggregated
spectrum has no performance requirement associated with the partitioned
or disaggregated portion. This lack of a performance requirement is
relevant in the renewal context because, while the partitioner or
disaggregator may be able to meet a safe harbor (to demonstrate that
over the course of its license term, the licensee provided and
continues to provide service to the public, or operated and continues
to operate the license to meet the licensee's private, internal
communications needs), the partitionee or disaggregatee will not be
able to avail itself of the safe harbors as adopted above because it
cannot certify continuing service or operation consistent with its
final performance requirement because it has none. Accordingly, the
safe harbor approach must be adjusted to provide the partitionee or
disagregatee with a mechanism for demonstrating compliance with the
renewal standard.
20. To this end, the Commission adopts an approach that applies to
WRS licensees with partitioned or disaggregated licenses when there is
no performance requirement. Such a licensee will meet the renewal
standard if it can satisfy the following safe harbor. The licensee must
certify that it uses and continues to use its facilities either to
provide service to the public or to further the licensee's private,
internal business or public interest/public safety needs. Thus,
although the Commission does not impose a specific performance
requirement for such licensees at renewal of the current license term,
in order to avail itself of the streamlined safe harbor renewal process
for any subsequent license term, a licensee without a performance
requirement must demonstrate some level of service or operation over
the subsequent license term. In addition, the licensee must make the
certifications regarding permanent discontinuance (as defined below)
and substantial compliance with Commission rules and policies that are
applicable to all renewal applicants seeking to avail themselves of one
of the renewal safe harbors. This safe harbor may be used by any WRS
licensee with a partitioned or disaggregated license without an
associated performance requirement. Any licensee that cannot meet the
requirements of the safe harbor must submit a renewal showing as
discussed below.
21. The Commission recognizes that this safe harbor, unlike the
others, does not prescribe a specific level of service or operation
required for renewal. As the Commission has explained, however, ``[t]he
goal of our construction requirements in both the partitioning and
disaggregation contexts is to ensure that the spectrum is used to the
same degree that would have been required had the partitioning or
disaggregation transaction not taken place.'' In the scenario addressed
here, the partitioner or disaggregator has already met the associated
performance requirement for the license; any additional construction
undertaken by the partitionee or disaggregatee exceeds the relevant
performance benchmark for the original license and thus does not
contravene the goal of the Commission's construction requirement in the
partitioning and disaggregation context. However, the Commission
contemplates taking action if it appears that parties to a partitioning
or disaggregation are attempting to abuse its rules.
22. Renewal Showing. The Commission seeks to provide licensees with
certainty and clarity regarding the renewal process, and thus have
adopted four safe harbors to provide licensees with a streamlined
mechanism for meeting the renewal standard. The Commission expects that
most licensees will be able to avail themselves of its streamlined safe
harbor process and
[[Page 41535]]
receive timely renewal grants. In the event a licensee is unable to
meet the requirements of any of the enumerated safe harbors, however,
it must file a ``renewal showing'' to demonstrate how it meets the
renewal standard the Commission adopts in this Order. Examples of
licensees that will not be able to meet a safe harbor, but for whom
there nonetheless may be legitimate bases that warrant renewal, include
a licensee that no longer provides service or no longer operates at the
level required to meet its final performance requirement, or a licensee
that has modified its service or operations since its final performance
requirement to offer novel services or employ a unique system
architecture. These scenarios warrant additional scrutiny before the
Commission can determine whether license renewal is in the public
interest. The Commission reiterates that it will not require renewal
applicants to file a renewal showing if they can meet the renewal
standard via a safe harbor.
23. In the WRS Reform NPRM, the Commission proposed to require all
renewal applicants to meet its renewal standard by filing a detailed
renewal showing to demonstrate that they are providing service to the
public (or, when allowed under the relevant service rules or pursuant
to waiver, using the spectrum for private, internal communication), and
substantially complying with the Commission's rules (including any
applicable performance requirements) and policies and the Act. The
Commission now turns toward a consideration of this proposed standard
for cases in which a renewal applicant does not meet one of the safe
harbors adopted herein.
24. The renewal showing proposed in the WRS Reform NPRM followed
the paradigm adopted in the 700 MHz Report and Order. After the release
of the WRS Reform NPRM, the Commission has adopted the 700 MHz
Commercial Services renewal paradigm in four additional services--AWS-
4, H Block, AWS-3, and 600 MHz. Specifically, the Commission proposed
to consider the following factors when evaluating whether a renewal
showing met the renewal standard: (1) The level and quality of service
provided by the applicant (e.g., the population served, the area
served, the number of subscribers, the services offered); (2) the date
service commenced, whether service was ever interrupted, and the
duration of any interruption or outage; (3) the extent to which service
is provided to rural areas; (4) the extent to which service is provided
to tribal lands; and (5) any other factors associated with a licensee's
level of service to the public.
25. Many commenters object to the adoption of this renewal showing
for all WRS licensees. These commenters argue that the proposed renewal
showing is complex and would impose substantial costs and burdens on
licensees. Other commenters assert that the proposed renewal process is
unclear and creates uncertainty for licensees. Still other commenters
maintain that the proposed process requests information already in the
Commission's possession, requests detailed information that licensees
do not maintain, and may require disclosure of competitively sensitive
information. The Commission acknowledges commenters' many concerns
regarding a general requirement that all WRS licensees submit detailed
renewal showings and have concluded that, in many cases, streamlined
applications containing the required certifications for safe harbor
treatment will be sufficient to ensure that the Commission renews
licenses in the public interest, consistent with the Act. The
Commission emphasizes that licensees that can take advantage of one of
the ``safe harbor'' renewal applications described above will not be
required to submit a renewal showing as part of their renewal
applications. Rather, only licensees that cannot satisfy one of the
enumerated safe harbors will be required to file a detailed renewal
showing. To fulfill the Commission's statutory mandate to ensure
efficient spectrum use consistent with the public interest, where a
licensee does not satisfy one of the streamlined processes, the
Commission must undertake a closer examination of a licensee's record
of service or operation over its license term. Consistent with the
Commission's conclusions in the AWS-4, H Block, AWS-3, and 600 MHz
proceedings, the Commission finds that the renewal showing it adopts
today, applied in the limited circumstances described herein, is in the
public interest and its benefits outweigh any likely costs.
26. Accordingly, licensees that cannot satisfy the renewal standard
under one of the enumerated safe harbors can nonetheless meet the
renewal standard by demonstrating that they are providing service to
the public (or, when allowed under the relevant service rules or
pursuant to waiver, using the spectrum for private, internal
communication), using the following renewal showing, as applicable:
(1) The level and quality of service/operation provided by the
applicant (e.g., for service--the population served, the area served,
the number of subscribers, the services offered; for operation--the
number of users (if applicable), the operating area, the type of
operation);
(2) the date service/operation commenced, whether service/operation
was ever interrupted, and the duration of any interruption or outage;
(3) the extent to which service/operation is provided to/in rural
areas;
(4) the extent to which service/operation is provided to/in tribal
lands; and
(5) any other factors associated with a licensee's level of service
to the public/level of operation.
27. Each of the factors listed above to be considered in a renewal
showing directly relates to the renewal standard the Commission adopts
today--service or operation over the license term. The Commission will
consider the totality of all the factors on a case-by-case basis to
determine if a licensee has demonstrated over the course of its license
term that it has provided and continues to provide service to the
public, or has operated and continues to operate under the license to
meet the licensee's private, internal communications needs.
28. In the WRS Reform NPRM, the Commission also asked whether a
variety of other factors should be incorporated into the renewal rules.
Many commenters object to the collection of additional data in support
of a renewal showing. On balance, the Commission agrees that the costs
of requesting additional information beyond the renewal showing as
adopted would outweigh the benefits of such additional information. The
Commission thus decides not to add further factors at this time to the
renewal showing requirements. The Commission finds that its renewal
framework strikes an appropriate balance between the need for
information to fully evaluate renewal applications that cannot meet the
safe harbors and minimizing burdens on licensees.
29. The Commission disagrees with commenters that argue that the
option of filing a full renewal showing would be contrary to the
Commission's original proposal for site-based services. Under the
Commission's prior proposal, if a site-based licensee could not make
the requisite certification, the renewal application could not be
granted and the spectrum would be returned to the Commission. Under the
renewal framework the Commission adopts today, if a site-based licensee
cannot meet the requirements of the safe harbor, it may choose to file
a renewal showing to explain why it should
[[Page 41536]]
nonetheless retain its license, thus providing additional flexibility
to such a licensee.
30. Implementation Timeline. The renewal framework represents, for
some WRS licenses, a significant change in how the Commission will
evaluate and process renewal applications going forward.\5\ For
licensees that already meet the renewal standard, the unified renewal
paradigm presents a streamlined process using safe harbors with minimal
filing burdens and certain, timely renewal processing. The Commission
recognizes, however, that other licensees will need time to come into
compliance with the renewal standard. Accordingly, the Commission
adopts an implementation schedule that will make the benefits of the
renewal framework available immediately for those licensees most likely
able to avail themselves of the streamlined processes, but provide
ample time for those licensees that may need to come into compliance
with the new rules. In all instances, compliance with the renewal
standard, via either a safe harbor or renewal showing, will be assessed
from the effective date of the new rules. Thus, for example, the
requirement to provide continuous service/operation does not cover
periods before the effective date of those rules. Nor does a licensee
seeking safe harbor treatment need to certify that it met the necessary
criteria during time periods prior to the effective date.
---------------------------------------------------------------------------
\5\ Because substantial compliance with applicable FCC rules and
policies and the Act is an ongoing obligation of licensees, this
will be assessed over the entire term of the license at renewal.
---------------------------------------------------------------------------
31. Site-based Licenses. For site-based licensees, the new renewal
paradigm is akin to their existing renewal requirements. As discussed
above, at the time a site-based service provider files a renewal
application, it should be operating as licensed. Thus, current renewal
requirements for site-based licensees are much like the safe harbor the
Commission adopts for such licensees. The Commission finds that the
renewal standard and renewal processes (whether streamlined or
entailing an evaluation of the licensee's full renewal showing) should
be made available to site-based licensees as soon as possible and thus
determines that such rules will be applied to those licensees without a
transition period, with one exception, effective upon their applicable
effective dates. For microwave licenses in the Common Carrier Fixed
Point-to-Point Microwave Service, licensees will not be required to
comply with the revised renewal rules for site-based licenses until
October 1, 2018, in order to provide sufficient time for them to
undertake a compliance review necessary to make the required
certification regarding operation. Existing service-specific renewal
rules will remain in effect until the renewal rules adopted herein
become effective. Applications filed prior to the effective date of the
new rules will be processed under the rules in effect when they are
filed.
32. Geographic-area Licenses. Given the inconsistency of the
Commission's renewal rules across wireless services, the Commission has
seen markedly different renewal submissions by licensees describing the
level of service or operation in the various specific services within
the WRS. Some licensees have submitted renewal applications clearly
demonstrating service or operation over the entire license term, which
would meet the renewal standard the Commission adopts today. Others
have filed applications that demonstrate service or operation over
significantly less than the entire license term, which would not meet
the Commission's new renewal standard contemplating ongoing service or
operation during the license term. The Commission seeks to provide
sufficient time to geographic-area licensees that have yet to be
subject to the renewal standard so that they can comply with the new
standard (indeed, some licensees are not yet required to even
demonstrate service over the license term). The Commission determines
that the renewal standard and the renewal framework will take effect
for such licensees on January 1, 2023, replacing the existing service-
specific renewal rules, giving licensees at least five years to comply
with the new renewal rules (giving all licensees sufficient time to
show service over the license term, starting from the effective date of
the new renewal rules). Existing service-specific renewal rules will
cease to be effective as of January 1, 2023. The Commission notes,
however, that licensees in the 700 MHz, AWS-4, H Block, AWS-3, and 600
MHz services already are subject to the renewal standard that it adopts
today for all WRS geographic licenses. Accordingly, the Commission
concludes that these licensees should be able to avail themselves of
the safe harbors and associated streamlined procedures prior to January
1, 2023. Thus, for licensees in the 700 MHz, AWS-4, H Block, AWS-3, and
600 MHz services, the safe harbor rules will apply immediately upon
their effective dates. Existing service-specific renewal rules will
remain in effect until the renewal rules adopted herein become
effective. Applications filed prior to the effective date of the new
rules will be processed under the rules in effect when they are filed.
33. Geographic and Site-based Licensed Services--Other
Requirements. Consistent with the Commission's proposal in the WRS
Reform NPRM, the Commission applies a single regulatory compliance
demonstration requirement to all renewal applicants, whether licensed
by geographic area or by site. In addition, the Commission prohibits
the filing of competing applications against such renewal applications.
Further, if a renewal application cannot be granted, the associated
spectrum generally will be returned to the Commission for re-licensing
under the applicable processes.
34. Regulatory Compliance Demonstration. In the 700 MHz First
Report and Order, the Commission stated that, as part of their renewal
filing, renewal applicants must demonstrate ``that they have
substantially complied with all applicable Commission rules, policies,
and the Communications Act of 1934, as amended, including any
applicable performance requirements.'' As the Commission stated in the
WRS Reform NPRM, such a regulatory compliance demonstration serves the
public interest by facilitating the Commission's evaluation of the
character and other qualifications of a renewal applicant.
35. To aid in this evaluation, the Commission proposed a detailed
submission of documents regarding compliance by the licensee and
certain defined affiliates. Industry commenters uniformly opposed
adoption of the proposed regulatory compliance demonstration as a
prerequisite to renewal on the basis that it is onerous and unduly
burdensome and could impose significant costs, particularly on rural
and regional carriers.
36. The Commission has a statutory duty to ensure that licensees
substantially comply with all applicable Commission rules and policies
and the Act. At the same time, where possible and practicable, the
Commission seeks to streamline the existing renewal application
processes and minimize filing burdens on licensees. In lieu of the
regulatory compliance demonstration proposed in the WRS Reform NPRM,
the Commission concludes that it can perform its duties and further its
public interest goals effectively by requiring a renewal applicant to
certify that it has substantially complied with all applicable FCC
rules, policies, and the Act. If a particular renewal applicant is
unable to make the substantial
[[Page 41537]]
compliance certification, it will need to provide an explanation of the
circumstances preventing such a certification and why renewal of the
subject license should still be granted.
37. Elimination of Comparative Renewal Rules for WRS. As proposed
in the WRS Reform NPRM and consistent with the action the Commission
took in the WRS Reform First Report and Order in this proceeding
adopted in tandem with the Cellular Reform Second Report and Order on
March 23, 2017 (WT Docket No. 12-40), and in several other proceedings
over the last decade, the Commission prohibits the filing of competing
applications for all WRS and eliminates the remaining comparative
renewal procedures and requirements across various rule parts.
38. The WRS Reform NPRM proposed to prohibit the filing of
competing renewal applications for all WRS as part of its proposed
uniform WRS renewal process. The majority of commenters support the
Commission's proposal to eliminate service-specific rules regarding the
filing of competing applications and the use of comparative hearings to
resolve them. A number of commenters maintain that the comparative
renewal process is an outdated vestige of licensing rules predating the
Commission's current reliance on auctions in many services.
39. The Commission deletes the remaining service-specific
comparative renewal rules and prohibits the filing of competing renewal
applications for all WRS. This approach is consistent with the
Commission's determinations in many other commercial wireless service
proceedings over the last ten years--including those for the AWS-3 and
AWS-4 Bands, the H Block, the 600 MHz Band, and the 700 MHz Commercial
Services Band--and with the elimination of comparative renewal rules
applicable to the Cellular Service. The same logic that the Commission
used in exempting those bands from comparative renewal applications
likewise applies to the remaining WRS bands. The Commission previously
found, and commenters agree here, that the public interest is not
served by the filing of time-consuming and costly competing
applications, and a prohibition on competing applications will
``protect[] the public interest without creating incentives for
speculators to file `strike' applications.''
40. The few commenters that support retention of the comparative
renewal application rules argue that, without the ability to file
competing applications, there is no way to discover disqualifying facts
about incumbent licensees. The renewal requirements the Commission
adopts today, however, will provide it with ample information to
determine whether a particular license renewal is in the public
interest. Some commenters also argue that competing applications are
rare, but this only strengthens the rationale to eliminate the outdated
rules. The Commission finds that the best course is to remove the
comparative renewal rules and harmonize the approach across spectrum
bands--many of which, as discussed above, already prohibit the filing
of competing applications. In the event that an entity lacks standing
to file a petition to deny a WRS license renewal application, it may
still bring relevant facts to the attention of the Commission by means
of an informal filing.
41. If a license is not renewed, the associated spectrum will be
returned to the Commission as discussed below, allowing parties that
may have been inclined to file a competing application to participate
in the auction of spectrum recovered from geographic licensees or apply
for spectrum recovered from a Cellular or site-based licensee.
42. Return of Spectrum to Commission if Renewal Application Is
Denied. Consistent with the Commission's proposals in the WRS Reform
NPRM, the Commission concludes that, if a WRS licensee cannot meet the
renewal standard and its license cannot be renewed, its licensed
spectrum will be returned automatically to the Commission. For site-
based licenses, the Commission will continue to apply the policy of
having spectrum revert to a geographic area licensee, if applicable, if
an underlying site-based authorization is not renewed.
43. One overarching goal in this proceeding is to ensure that
valued spectrum resources are rapidly put to their highest and best
use. A second goal in this proceeding is to provide licensees with
certainty and clarity regarding the rules that apply to them and the
consequences for failing to meet those rules. The Commission's existing
spectrum reversion rule employed today serves these dual goals. If a
licensee cannot meet the renewal standard (via safe harbor or renewal
showing) or it has permanently discontinued service, or its regulatory
compliance certification is insufficient, its renewal application
cannot be granted, and its licensed spectrum will return automatically
to the Commission.
44. Wireless Radio Services Excluded from Rulemaking. The
Commission concludes that certain Wireless Radio Services should be
excluded from the new renewal requirements. Specifically, the
Commission will not apply the revised renewal paradigm to Wireless
Radio Services licenses that have no construction obligations,
including services where operations are licensed by rule (and thus
there is no individual ``license'' to renew) or to Wireless Radio
Services that can be considered to involve a ``personal'' license.
These services are listed in Appendix I of the Order.
B. Permanent Discontinuance of Operations for Wireless Radio Services
45. All WRS licensees are currently subject to the Part 1 rule
governing permanent discontinuance, which provides that an
authorization automatically terminates, without specific Commission
action, if service is ``permanently discontinued.'' To promote service
continuity, the Commission replaces disparate service-specific rules
dealing with permanent discontinuance with a standardized rule for all
WRS licensees. This rule will work in concert with construction and
renewal obligations to ensure that licensees provide service in a
timely manner, continue to provide service over the term of the
license, and do not discontinue service for such an extended period of
time that it should be deemed permanent.
46. Current service-specific rules do not clearly and consistently
define permanent discontinuance resulting in license termination, with
a few services defining the term and many services completely lacking
any definition. Thus, after meeting any service-specific construction
and renewal requirements, some licensees in a service whose rules
provide no definition of ``permanent'' discontinuance might conclude
that they are permitted to discontinue service for long periods of
time, and that such suspension of service would not trigger automatic
license termination. In contrast, other licensees/competitors in a
service whose rules define ``permanent'' discontinuance as specific
amount of time during which operations were suspended (e.g., 90 days)
would be subject to automatic license termination if they discontinued
service to subscribers for that specified length of time. As the
Commission noted in the WRS Reform NPRM, the public interest is not
served by such marked regulatory disparities. The Commission
accordingly proposed to adopt a uniform discontinuance of service rule
for Parts 22, 24, 27, 80, 90, 95, and 101 Wireless Radio Services. The
Commission finds that the adoption of a uniform regulatory framework
governing the permanent discontinuance of operations for Wireless Radio
Services will serve the public interest by: (1) Affording
[[Page 41538]]
similarly situated licensees and like services comparable regulatory
treatment; (2) providing licensees and other interested parties clarity
and certainty to facilitate business and network planning; and (3)
ensuring that valuable spectrum is not underutilized. The rules the
Commission adopts today strike the appropriate balance between
providing licensees with operational flexibility and ensuring spectrum
is not warehoused and does not lie fallow.
47. Most but not all commenters support a uniform regulatory
framework governing permanent discontinuance. Commenters disagree,
however, on the appropriate discontinuance period to be applied to the
various Wireless Radio Services, with some commenters supporting the
Commission's proposed time periods while other commenters seek a 365-
day discontinuance period for all WRS licensees.
48. Commenters are generally supportive of the Commission's
proposal to apply the permanent discontinuance rule commencing on the
date a licensee makes its initial construction showing or notification.
Some commenters, however, ask that the Commission commence the
permanent discontinuance period on the date of a licensee's
construction deadline, while Sprint suggests that the Commission use a
licensee's final construction deadline date.
49. Section 101.305 of the rules states that common carrier
licensees in certain services must notify the Commission of involuntary
discontinuance, reduction, or impairment of service within 48 hours,
and that voluntary discontinuance by a common carrier licensee in the
identified services must occur only with prior Commission approval,
under the procedures of part 63 of the Commission's rules. AT&T asks
that the Commission take this opportunity to delete Sec. 101.305,
arguing that it is both obsolete and duplicative of other rules,
specifically Sec. 101.65 and that the rule's concern for protecting
``communities'' is misplaced.
50. After reviewing the extensive record in this proceeding, the
Commission finds that the public interest will be best served by
adopting a uniform regulatory framework governing service continuity.
The Commission therefore adopts new Sec. 1.953 as it appears in
Appendix A of the Order and deletes multiple rule sections governing
permanent discontinuance in specific Wireless Radio Services. As
recognized by the Commission in four other proceedings and by
commenters in this proceeding, the approach the Commission adopts
strikes an appropriate balance between affording licensees operational
flexibility and ensuring that licensed spectrum is efficiently
utilized. The Commission disagrees with those commenters that oppose
the adoption of any permanent discontinuance rules. Allowing licensees
unfettered discretion to determine how long scarce spectrum resources
lie fallow after meeting relevant construction requirements would be
inconsistent with the intent of those requirements and would directly
contradict the Commission's statutory obligation to ``prevent
stockpiling or warehousing of spectrum by licensees or permittees.''
51. The Commission replaces the existing hodgepodge of
discontinuance rules with a unified regulatory framework that ensures
regulatory parity across services and license types and applies the
rules on a per-license basis. Under the new rules for all
geographically licensed radio services, permanent discontinuance of
service for a given license will be defined as 180 consecutive days
during which a licensee does not operate or, in the case of WRS
licensees providing service to customers, does not provide service to
at least one subscriber that is not affiliated with, controlled by, or
related to the providing carrier. The Commission adopted an identical
framework for AWS-4, H Block, AWS-3, and 600 MHz, which are all
licensed on a geographic basis. In addition, for all radio services
licensed by site, permanent discontinuance of service for a given
license will be defined as 365 consecutive days during which a licensee
does not operate or, in the case of WRS licensees providing service to
customers, does not provide service to at least one subscriber that is
not affiliated with, controlled by, or related to the providing
carrier. A licensee's authorization will automatically terminate,
without specific Commission action, if it permanently discontinues
service.
52. The rules distinguish between wireless providers providing
service to subscribers and private licensee operation. In accordance
with the Commission's proposal, for wireless providers, the Commission
defines ``permanently discontinued'' as a period of 180 or 365
consecutive days (for geographic and site-based licenses, respectively)
during which the licensee does not provide service to at least one
subscriber that is not affiliated with, controlled by, or related to,
the provider. The Commission adopts a different approach for wireless
licensees that use their licenses for private, internal communications,
however, because such licensees generally do not provide service to
unaffiliated subscribers. For such private, internal communications,
the Commission defines ``permanent discontinuance'' as a period of 180
or 365 consecutive days (for geographic and site-based licenses
respectively) during which the licensee does not operate.
53. The Commission concludes that different rules for geographic
versus site-based licenses are warranted by their differing operational
characteristics. Under a geographic license, a licensee constructs and
operates its entire network in the market under the umbrella of its
geographic license. As MetroPCS explains, wireless carriers constantly
discontinue individual sites or channels as they reconfigure their
networks to increase and adjust capacity. The Commission's goal in this
proceeding is not to hamper a licensee's normal network design and
reconfiguration processes. Licensees should continue to have the
necessary flexibility to add or remove network facilities consistent
with their business strategies and network planning processes. Thus,
for geographic licensees, the period of discontinuance will not start
for a given license until all network facilities operated under that
license within the licensed area are discontinued.
54. By contrast, site-based licensees do not have the same
flexibility as geographic licensees to decommission individual
facilities. Site-based licensees are authorized to transmit from a
particular location or over a particular path and have little
flexibility to alter these parameters; ceasing operation on a frequency
or band constitutes a total cessation of all service or operation under
the site-based license and, unless otherwise provided, would therefore
start the clock for measuring the length of discontinued service/
operations on that licensed frequency/band at that location/path. Thus,
to provide site-based licensees with the necessary flexibility to
repair, modify, or upgrade their sites without fear of triggering a
discontinuance period that could lead to the automatic termination of
their license, the Commission finds that site-based licensees should be
afforded a 365-day discontinuance period.
55. The Commission does not find that geographic licensees need a
365-day discontinuance period to adequately conduct technology upgrades
and to avoid unfairly penalizing licensees that operate in remote or
highly seasonal areas of the country that may be uninhabited for more
than half the year. Given the flexibility geographic licensees have to
[[Page 41539]]
turn off individual facilities in their licensed area so long as at
least one facility continues to operate or continues to serve at least
one non-affiliated subscriber, the Commission finds that 180 days
provides licensees with ample time to effectuate network modifications
without triggering a discontinuance period. Adoption of a 180-day
discontinuance period substantially increases the amount of time
licensees can discontinue operations in some services. However, the
Commission decreases the discontinuance period from one year to 180
days in certain services, for example, certain Part 101 geographic
licenses and 220-222 MHz geographic licenses (listed in Appendix F of
the Order). Given the operational flexibility afforded geographic area
licensees discussed above, the Commission concludes that this reduction
will not create undue burdens on such licensees. Moreover, in the event
additional time is needed, as discussed below, the rules will provide
for an automatic 30-day extension or licensees can file for a waiver
under Sec. 1.925 of the Commission's rules if additional time is
warranted.
56. The Commission agrees with commenters who propose that the
discontinuance rule should begin to apply on the date a licensee must
meet its first performance requirement benchmark, i.e., the
construction deadline. Using the construction deadline, versus the date
a licensee actually makes its construction notification, will ``avoid
unduly punishing early adopters who are experimenting with certain
business models or technologies, and who later deploy a different
technology.'' If a licensee files its notification prior to the
required construction deadline, the licensee should have the
flexibility to alter its network as it sees fit, including turning down
the entire system to accommodate changes in business plans or network
design. If the Commission were to apply the rule immediately upon the
filing of a licensee's construction showing or notification, it would
create a disincentive for licensees to deploy their networks prior to
their construction deadline. Such a result would be contrary to the
Commission's goal of rapid spectrum deployment.
57. In most cases, the first performance requirement benchmark is
the interim or final construction deadline for geographic licenses, or
the 12-month construction deadline for site-based licenses. In a few
cases, licensees have partitioned and/or disaggregated their licenses
under current rules, and one or more of the resulting licenses does not
have a construction deadline. Under the new renewal standard these
licenses must be operating by the end of the next full renewal term
after their current license term to warrant renewal. As such, the
discontinuance rules will apply to these partitioned/disaggregated
licenses at that date. This approach provides consistent treatment in
that licensees need only be concerned about permanent discontinuance
after they are required to be operating (whether at their next
construction deadline or renewal). The Commission adopted the same
approach for AWS-4, H Block, AWS-3, and 600 MHz.
58. In services where the Commission's rules currently contain no
definition of permanent discontinuance, some licensees may have met
their interim construction deadline, but have yet to reach their final
construction deadline and may have discontinued operations as part of a
business strategy or network plan. Absent a definition of permanent
discontinuance, these licensees might have concluded that they could
discontinue service for a long period without fear of automatic license
termination. While all covered WRS licensees must comply with the
permanent discontinuance rules going forward, it is equitable to
provide certain existing licensees with additional time to come into
compliance with the rules, if necessary. Thus, in all services that do
not currently have an explicit definition of permanent discontinuance,
(e.g., Part 24 Personal Communications Services, certain Part 27
Miscellaneous Wireless Communications Services, Part 80 Safety and
Special Radio Services, and Part 95 218-219 MHz Service) licensees will
be given until January 1, 2019 to come into compliance with the rules
adopted today regarding permanent discontinuance. If a licensee in
these services is not providing service or is not operational on
January 1, 2019, the discontinuance period would start on that date.
After that date, a WRS licensee's authorization will automatically
terminate, without specific Commission action, if service is
permanently discontinued as defined under the newly adopted rules.
59. The Commission declines to adopt Sprint's request to apply the
permanent discontinuance rules only after a licensee's final
construction date. The permanent discontinuance rules are designed to
ensure that once a licensee is required to begin operations or provide
service to the public by, e.g., an interim construction date, it
continues to do so thereafter without substantial breaks in operation
or service. If the Commission generally does not apply the permanent
discontinuance rules until after a licensee's final construction date,
a licensee would be permitted to initiate service at its interim date
and then shut down all operations until the final construction
deadline. This result is contrary to the Commission's goal of promoting
robust spectrum use. However, for some services a failure to meet an
interim construction date results in acceleration of the final
construction date and, in some cases, the license expiration date. For
these services, if a licensee fails to meet the interim construction
date, the discontinuance rule will apply after the licensee's
accelerated final construction date.
60. The Commission exclude EBS from application of the new
permanent discontinuance rule because this service presents unique
issues that are under consideration in a separate proceeding. The
Commission finds that it should consider EBS permanent discontinuance
policies in the context of the comprehensive EBS rulemaking. For the
reasons stated above in the discussion of the renewal policy rules, the
Commission finds that BRS licenses and the Motorola-held partitioned
and/or disaggregated Part 80 VHF Public Coast licenses should be
subject to the rules and policies adopted herein regarding permanent
discontinuance.
61. Section 101.305 contains a number of requirements related to
discontinuance, reduction, or impairment of services for some or all
Part 101 services. The bulk of these provisions relate to involuntary
and voluntary discontinuance, reduction, or impairment of public
communications services and required filings to be made with the
Commission. In particular, Sec. 101.305(b) requires that covered
licensees subject to Title II of the Act must obtain prior approval
from the Commission pursuant to the procedures set forth in part 63 of
the Commission's rules before they may voluntarily discontinue, reduce,
or impair public communications services to a community or part of a
community. Because Sec. 101.305 implicates the provision of service
pursuant to Title II of the Act and given the limited record addressing
this rule, the Commission makes no changes to this rule section at this
time.
62. Notification of permanent discontinuance. The Commission adopts
the proposed filing requirement that a licensee that permanently
discontinues service must notify the Commission of the discontinuance
within 10 days by filing FCC Form 601 or 605 requesting license
cancellation. Such a self-reporting requirement will
[[Page 41540]]
facilitate timely and accurate recordkeeping of the Commission license
and spectrum inventory. However, even if a licensee fails to file the
required form requesting license cancellation, an authorization will
automatically terminate, without specific Commission action, if service
is permanently discontinued as defined by the new rules. The Commission
disagrees with the two commenters who ask that the notification period
be extended to 30 days. Neither commenter advances a compelling basis
for extending the notification period and the proposed 10-day period
will ensure that the Commission's records are updated on a timely
basis.
63. Extension requests. In addition, the Commission adopts the
proposed extension request process under which a request for a longer
discontinuance period may be filed for good cause, subject to the
requirement that it be filed at least 30 days before the end of the
discontinuance period. Under this process, the filing of a request
would automatically extend the discontinuance period a minimum of the
later of an additional 30 days or the date upon which the Wireless
Telecommunications Bureau (Bureau) acts on the request. Commenters
support the proposed automatic process for extension requests. Such an
express process provides licensees with the flexibility to request a
limited period of additional time for discontinuance of operations as
necessitated by the licensee's business and operational needs and the
certainty that they will receive a minimum of 30 additional days to
resume service.
64. The Commission declines, however, to adopt CCA's proposal for
an automatic six-month extension period or case-by-case review. An
automatic extension of the permissible discontinuance period of six
months runs contrary to the goals of timely and efficient use of the
nation's scare spectrum resources. Although unique circumstances may
arise that necessitate a period of discontinuance beyond what is
automatically permitted under the new rules, these circumstances can
adequately be addressed by the existing waiver processes.
65. Roaming. Several commenters ask that the Commission clarify how
its permanent discontinuance rules apply to licensees that serve
roamers. The Commission concludes that, for purposes of the permanent
discontinuance rule, the term ``service'' includes service provided
exclusively or incidentally to roamers even though such roamers are not
subscribers of the licensee providing roaming service. Including
roaming within the definition of service serves the underlying goal of
the Commission's rules to ensure that licensees are actively using
their spectrum--be it to provide service to subscribers or roamers--and
not allowing it to lie fallow. The Commission clarifies, however, that
a WRS licensee must actually be providing service to a roamer and not
merely have the ability to provide service to roamers.
66. Channel keepers. The Commission adopts its proposed rule that
operation of so-called channel keepers--devices that transmit test
signals, tones, and/or color bars, for example--will not constitute
operation or service for the purposes of the permanent discontinuance
rule. As the Commission explained previously, ``it was clearly
unreasonable . . . to believe that the periodic broadcasting of signals
that nobody received constituted `service' within the meaning of the
rule. Such an interpretation is unreasonable; in order to provide a
service a provider would, at a minimum, need a customer or other person
to serve.'' The Commission thus adopts the rule regarding channel
keepers as proposed.
67. Verizon asks the Commission to expand the definition of
operation to include facilities that are ``available'' to carry
customer traffic but are in ``standby'' mode and only used on an ``as-
needed basis depending on capacity demands.'' Verizon argues that these
systems are needed to allow licensees to maximize efficiency of their
spectrum resources and network investment and maintain optimal
performance levels while providing seamless service to customers across
multiple licenses in the same market. The Commission declines to expand
its definition of operation as requested by Verizon. As the Commission
explained previously, at a minimum, provision of service requires a
customer or other person to serve. That a network is capable of service
in ``standby mode'' or on an ``as-needed basis'' without providing
actual service to a customer or other person is insufficient to
constitute service for purposes of the Commission's permanent
discontinuance rules. Moreover, the Commission does not license
spectrum on a network basis; rather, it evaluates operational
obligations on a license-by-license basis, and thus licensees must
maintain continuity of service or operations on a license-by-license
basis.
C. Geographic Partitioning and Spectrum Disaggregation Rules and
Policies
68. In the WRS Reform NPRM, the Commission proposed a new rule,
Sec. 1.950, to standardize and clarify its partitioning and
disaggregation rules across services in which such activities are
permitted. As part of this proposal, the Commission contemplated
establishing consistent performance obligations (i.e., construction and
operation) for spectrum licenses that have been divided by geographic
partitioning or spectrum disaggregation arrangements. Specifically, the
Commission proposed that each party to such an arrangement would be
individually required to meet any service-specific performance
requirements.
69. At present, there are a wide variety of Wireless Radio Services
under the Commission's authority that are subject to equally varied
construction and performance obligations. The Commission's current
partitioning rules provide licensees several options to meet their
construction obligations: (1) Independent Construction--the parties may
independently elect to satisfy the construction requirements for their
respective partitioned license areas and failure to perform subjects a
licensee in this context to forfeiture of its partitioned license; (2)
Collective Construction--the parties may collectively share
responsibility for meeting the construction requirement for the entire
geographic area and if the parties collectively fail, then both will be
subject to a range of penalties, including possible license forfeiture;
or (3) Partitioner-only Construction--the partitioner may satisfy the
construction requirement for the entire pre-partitioned geographic
area. Many services allow this third option, but the repercussions for
failure to perform vary significantly. In some instances, partitionees
must still satisfy a substantial service requirement for the
partitioned area at renewal. In others, partitionees can argue that
they are not obligated to provide service to obtain license renewal
since only the non-performing partitioner is subject to forfeiture of
its license at renewal.
70. Licensees also currently have multiple options under the
Commission's disaggregation rules to meet applicable construction
obligations: (1) One-party Construction--parties can assign
responsibility to either the disaggregator or the disaggregatee, and
construction by that party is deemed sufficient for both. Generally, if
the designated party
[[Page 41541]]
fails to perform, only its license is subject to forfeiture at renewal.
(2) Shared Construction Responsibility--parties may share
responsibility for meeting the construction requirements. Depending on
the service, failure to perform by either party could result in
forfeiture of both licenses. By contrast, some service rules allow
parties to a disaggregation to satisfy the construction requirement in
the aggregate rather than individually.
71. A majority of the commenters that addressed the partitioning
and disaggregation construction requirements in the WRS Reform NPRM
disagree with the Commission's proposal to require that each party to
such arrangements independently satisfy construction obligations. They
object largely on the basis that the current rules already promote
efficient spectrum use and changing them is unnecessary, or worse,
harmful. They contend, among other things, that the new rules will curb
interest in secondary market opportunities, particularly in rural
areas, and will disrupt existing private contractual relationships.
72. The Commission's experience with partitioning and
disaggregation indicates that parties can, and sometimes do, manipulate
the current requirements in ways that result in spectrum in some
services lying fallow for long periods of time, contrary to the
Commission's stated goal of maximizing efficient spectrum use. For
instance, under the current rules, parties have been free to
disaggregate a small sliver of a spectrum license over the entire
geographic licensed area and assign the entire construction requirement
to that particular license. In that circumstance, only that small
sliver of spectrum has been subject to license termination or
forfeiture, while the bulk of the license has not been subject to any
construction requirement. The Commission finds that none of the
comments effectively addresses the central rationale for proposing to
modify the partitioning and disaggregation performance requirements,
i.e., preventing spectrum warehousing. The Commission therefore amends
the partitioning and disaggregation rules to prevent spectrum
warehousing.
73. In lieu of requiring each party to a partitioning or
disaggregation arrangement to certify that it will independently
satisfy service-specific construction and/or performance requirements,
the Commission will afford such parties the additional option of
sharing service-specific performance requirements.\6\ Further, to
ensure uniformity and clarity, the Commission adopts Sec. 1.950,
largely as proposed, and Sec. 1.950(g), as revised, to replace
separate partitioning and disaggregation construction and performance
rules for each service in various rule parts. The Commission concludes
that these changes will provide WRS licensees with greater flexibility
to configure their licenses according to their operational needs, while
still affording important safeguards against spectrum warehousing.
---------------------------------------------------------------------------
\6\ Specifically, in Sec. 1.950(g), as revised herein, the
Commission provides the parties to a partitioning and/or
disaggregation arrangement with two options for satisfying service-
specific performance requirements (i.e., construction and operation
requirements). Under the first option, each party may individually
satisfy any service-specific requirements and, upon failure, must
individually face any service-specific performance penalties. Under
the second option, both parties may agree to share responsibility
for any service-specific requirements. Upon failure to meet their
shared service-specific performance requirements, both parties will
be subject to any service-specific penalties.
---------------------------------------------------------------------------
74. The Commission agrees with Verizon that imposing an independent
construction requirement on both parties to a partitioning or
disaggregation arrangement, as proposed in draft Sec. 1.950(g) in the
WRS Reform NPRM, might, under certain circumstances, unnecessarily
impose additional construction requirements on parties to partitioning
and disaggregation arrangements that would not have existed had the
license not been partitioned or disaggregated. To address this
potential issue, the Commission revises Sec. 1.950(g) to allow
participants to share the construction requirement, which ensures that
no two parties to a partitioning or disaggregation arrangement will be
required to build out more than 100 percent of the requirement for any
particular geographic area or spectrum block. In addition, parties to
partitioning and disaggregation arrangements are not required to
continue construction in cases where the original licensee has already
satisfied the requirement for the license term. However, to the extent
that Sec. 1.950(g), as revised, requires that partitionees and
disaggregatees comply with interim and final construction benchmarks in
addition to satisfying the renewal requirements the Commission adopts
in this order, the Commission's interest in preventing spectrum
warehousing that is permitted under current rules outweighs the
potential added burden, if any, on these third-party licensees.
75. The Commission finds that the new rule adequately addresses
commenters' arguments that proposed Sec. 1.950(g) would deter
secondary market activity, especially with respect to small, rural
licensees for whom buildout requirements may be prohibitively costly.
The Commission also finds that its rule adequately addresses Blooston's
arguments underlying its recommendation that the Commission exempt
rural areas from the rule. The revised rule allows parties to
partitioning and disaggregation arrangements to share service-specific
construction requirements. The Commission concludes that the additional
flexibility of the revised rule will continue to enable service
providers to configure geographic area and spectrum block licenses to
suit their unique operational needs, which includes using partitioning
and disaggregation to open up licensing opportunities to rural
carriers.
76. The Commission declines to retain ``partitioner only''
construction rules (wherein a partitioner can certify that it has met
or will meet the construction requirement for the entire pre-
partitioned area) to encourage carriers to take risks in rural markets.
This proposal would appear to allow a partitionee in certain services
to hold a license for the partitioned area without deploying facilities
on the spectrum for a significant period of time, even if the licensee
must be able to certify that it is providing service at renewal, or
otherwise make a showing to justify license renewal. The Commission
concludes that the better way to promote service to rural markets is to
ensure that all license holders--at least during the initial license
term, and in circumstances where the original licensee has not
previously satisfied the construction requirement for the entire
geographic area or spectrum block--have, directly or indirectly, an
obligation to construct and operate facilities on the spectrum.
77. The Commission declines to adopt CTIA's proposal that the
Commission should exempt a licensee's wholly owned subsidiaries or
commonly controlled affiliates when they partner with the licensee to
divide the license. The Commission's experience has shown that this
type of intra-corporate family partitioning and disaggregation has
proven particularly susceptible to manipulation for spectrum
warehousing purposes simply because the parties to the division are
commonly controlled. Adoption of CTIA's proposal risks undermining
rather than advancing the Commission's objective of eliminating
spectrum warehousing. Moreover, the addition of the new option to
permit shared construction responsibility by a
[[Page 41542]]
partitioner/partitionee or a disaggregator/disaggregatee should largely
address this concern.
78. The Commission does not adopt the suggestions raised by
MetroPCS and Verizon that the Commission exempt Broadband PCS from the
proposed rule based on the argument that the substantial service
requirement at renewal discourages parties to a partitioning
arrangement from warehousing spectrum in the manner the Commission
seeks to preclude. The Commission concludes that these licensees will
be no worse off under a regulatory framework that holds all licensees
to comparable requirements. Many services still allow parties to a
partitioning or disaggregation arrangement to assign the performance
requirement to one of the parties and thereby allow the other to delay
or avoid construction in that party's portion of the license (whether
geography or spectrum) if they so choose. This problem exists in
numerous services, even if some service rules may discourage so-called
free riders. By this Order, the Commission seeks to consolidate the
services under a single set of rules and proscribe spectrum warehousing
by all licensees in the covered services, not just the few who hold
spectrum subject to service rules that more effectively prevent such
warehousing.
79. The Commission also declines to adopt CTIA's proposal to
prohibit parties from assuming construction and performance obligations
for an entire license area or spectrum block unless they also hold
spectrum covering a majority of that same geographic area or spectrum
block. CTIA does not provide evidence demonstrating why this approach
would be more effective at preventing spectrum warehousing than the
consistent approach envisioned by the partitioning and disaggregation
rules adopted today, nor does it acknowledge or address the potential
administrative burdens that would be placed on applicants and on
Commission staff in addressing such arrangements. The Commission
believes that adoption of CTIA's proposal would provide greater
uncertainty in the spectrum marketplace and would not consistently and
successfully prevent spectrum warehousing.
80. The Commission also declines to exempt existing partitioning
and disaggregation arrangements from application of the requirements of
Sec. 1.950(g) as adopted today, and apply the rule only prospectively
and only to future partitioning and disaggregation arrangements. By
adopting Sec. 1.950(g) as revised, the Commission intends to prevent
spectrum warehousing and ensure that future transactions facilitate the
availability of spectrum in the marketplace for licensees who are most
highly motivated to use it. By this action, the Commission seeks to
resolve loopholes in the current partitioning and disaggregation rules
that could be and have been manipulated to avoid the very construction
and substantial service obligations that promote efficient spectrum
use. However, the Commission agrees that its rules should not be
applied retroactively to disrupt transactions that have already been
negotiated based on the pre-existing rules and submitted to the
Commission for approval. Specifically, Sec. 1.950(g) will be applied
to partitioning and disaggregation arrangements reflected in
applications filed on or after the effective date of the new rule, and
not to any arrangements reflected in an already granted application or
in an application filed before the effective date of new Sec.
1.950(g).
81. The Commission makes no changes in response to AT&T's argument
that new entrants will be discouraged from acquiring spectrum through
partitioning or disaggregation when it is late in the original license
term, and there is little time to fulfill the construction obligation.
The Commission concludes that this concern is related not to
partitioning and disaggregation rules, but to the current build out
rules, which provide that the performance requirements associated with
a license are not reduced or extended as a result of any secondary
market transaction, including one near the end of a license term. The
rule modifications do not alter those obligations.
82. Finally, the Commission does not address the suggestion by
Sprint and AT&T that licensees that have acquired previously
partitioned and/or disaggregated licenses be allowed, as a matter of
processing, to consolidate the subdivided parts into the original
license configuration. The Commission finds this proposal to be beyond
the scope of this proceeding, which is narrowly focused on
standardizing and clarifying the Commission's partitioning and
disaggregation rules across services. The question of whether, and how,
a partitioned or disaggregated license can be reconstituted as a matter
or processing can be addressed by Commission staff under current rules
and licensing systems.
83. Commenting parties in this proceeding that addressed proposed
Sec. 1.950 focused solely on proposed Sec. 1.950(g). Accordingly,
based on the record in this proceeding, the Commission adopt Sec.
1.950 largely as proposed in the WRS Reform NPRM, with the exception of
Sec. 1.950(g). The Commission further concludes that adopting new
Sec. 1.950(g), as revised herein, will most effectively balance its
competing obligations to: (1) remove potential barriers to entry by
returning heretofore fallow spectrum to the marketplace, and thereby
increase competition; (2) encourage parties to use spectrum more
efficiently; and (3) speed service to unserved and underserved areas.
D. Freeze on the Filing of Competing Renewal Applications and
Resolution of Previously Pending Competing Renewal Applications
84. In the WRS Reform Order, the Commission imposed a freeze on the
filing of competing renewal applications and held in abeyance the
already-filed competing renewal applications until the conclusion of
this proceeding. The Commission stated that, if it were to adopt the
rules proposed in the WRS Reform NPRM, it would ``dismiss all pending
mutually exclusive applications and related correspondence filed with
the Commission regarding those applications.''
85. At the time that the WRS Reform Order was adopted, the
Commission had before it a total of 151 renewal applications in three
different service bands, and 178 applications competing with those
renewal applications. Most of those competing applications--175 of
178--were filed in the 2.3 GHz Band against WCS licensees. These
competing applications were dismissed by the Commission after the
relevant parties reached settlement agreements. Of the remaining three
competing applications, two were against Cellular licensees' renewal
applications and one was against a Broadband PCS licensee's renewal
application. The two Cellular competing applications have since been
dismissed or resolved. The PCS competing application was withdrawn
after the applicant obtained the underlying license at issue via the
license assignment process.
86. Because there are no remaining pending competing renewal
applications, there is no further action needed on the Commission's
part to dismiss such applications.
E. Transition From Interim Renewal Application Procedures
87. The Commission directed incumbent licensees to continue to file
timely renewal applications as required by applicable Commission rules
during the pendency of this rulemaking. The Commission further directed
that
[[Page 41543]]
renewal applications routinely should continue to be placed on a Bureau
accepted for filing public notice, and that interested parties could
continue to file petitions to deny consistent with the rules. In order
to reduce uncertainty that might be caused by long-pending renewal
applications, the Commission directed the Bureau to routinely grant
renewal applications during the pendency of this proceeding,
conditioned on the outcome of this rulemaking.
88. Notwithstanding the Commission's statement in the WRS Reform
Order that interested parties may file petitions to deny consistent
with the requirements of its rules, NTCH, Inc., now asks that the
Commission provide an opportunity for a potential applicant to
challenge a renewal applicant's basic qualifications at the close of
this docket. NTCH asserts that providing this opportunity to file
petitions to deny against conditionally granted renewal applications is
necessary to avoid ``permanently abrogat[ing] the legal rights of
parties interested in challenging the grant of a renewal application.''
The Commission denies NTCH's request that it open a window for the
filing of petitions to deny against licensees whose renewal
applications have been conditionally granted. The opportunity to file
petitions to deny against renewal applications has been present
throughout the pendency of this proceeding, and NTCH has not offered a
persuasive legal or equitable argument in support of having a second
shot at these renewal applications. The Commission accordingly declines
to open a window for the filing of petitions to deny against renewal
applications that have been conditionally granted.
89. Petitions for reconsideration of the actions taken by the WRS
Reform Order were filed by: (1) Atlantic Tele-Network, Inc., in
connection with its wholly owned indirect subsidiary's, Tisdale
Telephone Company, LLC, competing Cellular application with the
Cellular renewal application filed by Kankakee Cellular L.L.C.; (2)
CTIA, AT&T, Cricket, Rural Cellular Association, Sprint, T-Mobile, US
Cellular, and Verizon Wireless; (3) Green Flag Wireless, LLC, CWC
Licensing Holding, Inc., James McCotter, and NTCH-CA, Inc.; and (4)
Wireless Communications Association International, Inc. (WCAI).
90. The Atlantic Tele-Network, Inc. petition has been mooted by the
fact that Kankakee withdrew its renewal application for a Cellular
license authorization in the Kankakee, Illinois market, and Tisdale was
granted a Cellular license for that market. The Commission previously
approved the withdrawal of the petition for reconsideration filed by
Green Flag Wireless, LLC, CWC License Holding, Inc., James McCotter,
and NTCH-CA, Inc., along with another petition for reconsideration
filed by the same parties on October 22, 2010, pursuant to a settlement
agreement. The WCAI petition for partial reconsideration was addressed
by the WRS Reform Clarification Public Notice, (WT Docket No. 10-112)
on March 18, 2011, issued by the Bureau to clarify the conditional
grant of applications for renewal of license in the WRS Reform Order.
Subsequent to the release of the WRS Reform Clarification Public
Notice, CTIA, AT&T, Cricket, Rural Cellular Association, Sprint, T-
Mobile, US Cellular, and Verizon Wireless filed a motion to withdraw
their petition for reconsideration. The Commission finds no reason to
address the arguments in the CTIA Petition and accordingly will grant
the request to withdraw the CTIA Petition.
91. The Commission directs the Bureau to take the necessary steps
to cease conditioning the grant of renewal applications on the outcome
of this proceeding. In addition, the Commission directs the Bureau to
take the necessary steps to remove the condition from already granted
renewal applications or otherwise make clear on the face of such
licenses that such condition is no longer valid.
II. Procedural Matters
A. Paperwork Reduction Act Analysis
92. The Order contains modified information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. It will be submitted to the Office of Management and Budget (OMB)
for review under Sec. 3507(d) of the PRA. OMB, the general public, and
other Federal agencies will be invited to comment on the modified
information collection requirements contained in this proceeding. In
addition, the Commission notes that pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), it previously sought specific comment on how it might
further reduce the information collection burden for small business
concerns with fewer than 25 employees.
93. The Commission assessed the effects of the policies adopted in
the Order with regard to information collection burdens on small
business concerns, and found that these policies will benefit many
companies with fewer than 25 employees because the revisions the
Commission adopts should reduce filing burdens for all WRS licensees,
whether large or small. Also, by ensuring, pursuant to the partitioning
and disaggregation rules and the permanent discontinuance rules the
Commission adopts today, that valuable spectrum will not lie fallow,
these policies will provide small entities with more opportunities to
gain access to valuable spectrum. In addition, the Commission has
described impacts that might affect small businesses, which includes
most businesses with fewer than 25 employees, in the Final Regulatory
Flexibility Analysis (FRFA) in Appendix B of the Order.
B. Congressional Review Act
94. The Commission will send a copy of this Order to Congress and
the Government Accountability Office pursuant to the Congressional
Review Act. In addition, the Commission will send a copy of the Order,
including the FRFA, to the Chief Counsel for Advocacy of the SBA (5
U.S.C. 603(a)).
C. Final Regulatory Flexibility Analysis
95. The Regulatory Flexibility Act of 1980 (RFA) requires that an
agency prepare a regulatory flexibility analysis for notice and comment
rulemakings, unless the agency certifies that ``the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities.'' Accordingly, the Commission has prepared a FRFA,
set forth in Appendix B of the Order, concerning the possible impact of
the rule changes.
D. Ex Parte Presentations
96. This proceeding shall continue to be treated as ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda or other filings in the
proceeding, the presenter may provide citations to such data or
[[Page 41544]]
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b). In proceedings governed by
rule 1.49(f) or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the Commission's Electronic Comment Filing System
(ECFS) available for that proceeding, and must be filed in their native
format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this
proceeding should familiarize themselves with the Commission's ex parte
rules.
97. People with Disabilities. To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to fcc504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
III. Ordering Clauses
98. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i),
4(j), 7, 301, 303, 307, 308, 309, 310, and 332 of the Communications
Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 157, 301,
303, 307, 308, 309, 310, 332, that this second report and order in WT
Docket No. 10-112 is adopted.
99. It is further ordered that parts 1, 22, 24, 27, 30, 74, 80, 90,
95, and 101 of the Commission's rules, 47 CFR parts 1, 22, 24, 27, 30,
74, 80, 90, 95, and 101, are amended, effective October 2, 2017 except
as otherwise provided herein.
100. It is further ordered that the amendments adopted in this
second report and order, and to Sec. Sec. 1.949, 1.950, and 1.953,
which contain new or modified information collection requirements that
require review by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, will become effective after OMB review and
approval, on the effective date specified in a notice that the
Commission will have published in the Federal Register announcing such
approval and effective date.
101. It is further ordered that the amendments adopted in this
second report and order, and to paragraphs (e), (q)(7), (r)(6), (s)(6),
and (t)(6) of Sec. 27.14, will become effective after OMB review and
approval of Sec. 1.949, on the effective date specified in a notice
that the Commission will have published in the Federal Register
announcing such approval and effective date.
102. It is further ordered that the amendments adopted in this
second report and order, and to Sec. Sec. 22.317, 22.947, 27.17,
30.106, 74.632, 90.157, 90.631, and 101.65, will become effective after
OMB review and approval of Sec. 1.953, on the effective date specified
in a notice that the Commission will have published in the Federal
Register announcing such approval and effective date.
103. It is further ordered that, pursuant to sections 4(i) and 405
of the Communications Act of 1934, 47 U.S.C. 154(i), 405, and Sec.
1.106 of the Commission's rules, 47 CFR 1.106, the Motion of CTIA--The
Wireless Association[supreg], AT&T Services, Inc., Cricket
Communications, Inc., Rural Cellular Association, Sprint Nextel
Corporation, T-Mobile USA, United States Cellular Corporation and
Verizon Wireless To Withdraw Petition for Reconsideration, filed May
31, 2011, to withdraw their Petition for Reconsideration, filed Aug. 6,
2010, is granted.
104. It is further ordered that, pursuant to section 801(a)(1)(A)
of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission
shall send a copy of the second report and order to Congress and to the
Government Accountability Office.
105. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of the second report and order, including the Initial Regulatory
Flexibility Analysis and the Final Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Parts 1, 22, 24, 27, 30, 74, 80, 90, 95,
and 101
Communications common carriers, Radio, Reporting and recordkeeping
requirements.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 1, 22, 24, 27, 30, 74,
80, 90, 95, and 101 as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 is revised to read as follows:
Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201,
225, 227, 303, 309, 310, 332, 1403, 1404, 1451, 1452, and 1455.
0
2. Amend Sec. 1.907 by adding the definitions of ``Covered Geographic
Licenses'' and ``Covered Site-based Licenses'' in alphabetical order to
read as follows:
Sec. 1.907 Definitions.
* * * * *
Covered Geographic Licenses. Covered geographic licenses consist of
the following services: 1.4 GHz Service (part 27, subpart I of this
chapter); 1.6 GHz Service (part 27, subpart J); 24 GHz Service and
Digital Electronic Message Services (part 101, subpart G); 218-219 MHz
Service (part 95, subpart F); 220-222 MHz Service, excluding public
safety licenses (part 90, subpart T); 600 MHz Service (part 27, subpart
N); 700 MHz Commercial Services (part 27, subparts F and H); 700 MHz
Guard Band Service (part 27, subpart G); 800 MHz Specialized Mobile
Radio Service (part 90, subpart S); 900 MHz Specialized Mobile Radio
Service (part 90, subpart S); Advanced Wireless Services (part 27,
subparts K and L); Air-Ground Radiotelephone Service (Commercial
Aviation) (part 22, subpart G); Broadband Personal Communications
Service (part 24, subpart E); Broadband Radio Service (part 27, subpart
M); Cellular Radiotelephone Service (part 22, subpart H); Dedicated
Short Range Communications Service, excluding public safety licenses
(part 90, subpart M); H Block Service (part 27, subpart K); Local
Multipoint Distribution Service (part 101, subpart L); Multichannel
Video Distribution and Data Service (part 101, subpart P);
Multilateration Location and Monitoring Service (part 90, subpart M);
Multiple Address Systems (EAs) (part 101, subpart O); Narrowband
Personal Communications Service (part 24, subpart D); Paging and
Radiotelephone Service (part 22, subpart E; part 90, subpart P); VHF
Public Coast Stations, including Automated Maritime Telecommunications
Systems (part 80, subpart J); Upper Microwave Flexible Use Service
(part 30); and Wireless Communications Service (part 27, subpart D).
Covered Site-based Licenses. Covered site-based licenses consist of
the following services: 220-222 MHz Service (site-based), excluding
public safety licenses (part 90, subpart T of this
[[Page 41545]]
chapter); 800/900 MHz (SMR and Business and Industrial Land
Transportation Pool) (part 90, subpart S); Aeronautical Advisory
Stations (Unicoms) (part 87, subpart G); Air-Ground Radiotelephone
Service (General Aviation) (part 22, subpart G); Alaska-Public Fixed
Stations (part 80, subpart O); Broadcast Auxiliary Service (part 74,
subparts D, E, F, and H); Common Carrier Fixed Point-to-Point,
Microwave Service (part 101, subpart I); Industrial/Business Radio Pool
(part 90, subpart C); Local Television Transmission Service (part 101,
subpart J); Multiple Address Systems (site-based), excluding public
safety licenses (part 101, subpart H); Non-Multilateration Location and
Monitoring Service (part 90, subpart M); Offshore Radiotelephone
Service (part 22, subpart I); Paging and Radiotelephone Service (site-
based) (part 22, subpart E); Private Carrier Paging (part 90, subpart
P); Private Operational Fixed Point-to-Point Microwave Service,
excluding public safety licenses (part 101, subpart H); Public Coast
Stations (site-based) (part 80, subpart J); Radiodetermination Service
Stations (Radionavigation Land Stations) (part 87, subpart Q);
Radiolocation Service (part 90, subpart F); and Rural Radiotelephone
Service (including Basic Exchange Telephone Radio Service) (part 22,
subpart F).
* * * * *
0
3. Amend Sec. 1.934 by:
0
a. Revising paragraphs (a)(1)(ii);
0
b. Removing paragraph (a)(3); and
0
c. Revising paragraphs (b) and (c).
The revisions read as follows:
Sec. 1.934 Defective applications and dismissal.
* * * * *
(a) * * *
(1) * * *
(ii) If the applicant requests dismissal of its application without
prejudice, the Commission will dismiss that application without
prejudice, unless it is an application for which the applicant
submitted the winning bid in a competitive bidding process.
* * * * *
(b) Dismissal of mutually exclusive applications not granted. The
Commission may dismiss mutually exclusive applications for which the
applicant did not submit the winning bid in a competitive bidding
process.
(c) Dismissal for failure to prosecute. The Commission may dismiss
applications for failure of the applicant to prosecute or for failure
of the applicant to respond substantially within a specified time
period to official correspondence or requests for additional
information. Such dismissal may be with prejudice in cases of non-
compliance with Sec. 1.945. The Commission may dismiss applications
with prejudice for failure of the applicant to comply with requirements
related to a competitive bidding process.
* * * * *
0
4. Revise Sec. 1.949 to read as follows:
Sec. 1.949 Application for renewal of authorization.
(a) Filing requirements. Applications for renewal of authorizations
in the Wireless Radio Services must be filed no later than the
expiration date of the authorization, and no sooner than 90 days prior
to the expiration date. Renewal applications must be filed on the same
form as applications for initial authorization in the same service,
i.e., FCC Form 601 or 605.
(b) Common expiration date. Licensees with multiple authorizations
in the same service may request a common date on which such
authorizations expire for renewal purposes. License terms may be
shortened by up to one year but will not be extended.
(c) Implementation. Covered Site-based Licenses, except Common
Carrier Fixed Point-to-Point Microwave Service (part 101, subpart I of
this chapter), and Covered Geographic Licenses in the 600 MHz Service
(part 27, subpart N); 700 MHz Commercial Services (part 27, subpart F);
Advanced Wireless Services (part 27, subpart L) (AWS-3 (1695-1710 MHz,
1755-1780 MHz, and 2155-2180 MHz) and AWS-4 (2000-2020 MHz and 2180-
2200 MHz) only); and H Block Service (part 27, subpart K) must comply
with paragraphs (d) through (h) of this section. All other Covered
Geographic Licenses must comply with paragraphs (d) through (h) of this
section beginning on January 1, 2023. Common Carrier Fixed Point-to-
Point Microwave Service (part 101, subpart I) must comply with
paragraphs (d) through (h) of this section beginning on October 1,
2018.
(d) Renewal Standard. An applicant for renewal of an authorization
of a Covered Site-based License or a Covered Geographic License must
demonstrate that over the course of the license term, the licensee(s)
provided and continue to provide service to the public, or operated and
continue to operate the license to meet the licensee(s)' private,
internal communications needs.
(e) Safe harbors. An applicant for renewal will meet the Renewal
Standard if it can certify that it has satisfied the requirements of
one of the following safe harbors:
(1) Covered Site-based Licenses. (i) The applicant must certify
that it is continuing to operate consistent with its most recently
filed construction notification (or most recent authorization, when no
construction notification is required).
(ii) The applicant must certify that no permanent discontinuance of
service occurred during the license term. This safe harbor may be used
by any Covered Site-based License.
(2) Geographic licenses--commercial service. (i) For an applicant
in its initial license term with an interim performance requirement,
the applicant must certify that it has met its interim performance
requirement and that over the portion of the license term following the
interim performance requirement, the applicant continues to use its
facilities to provide at least the level of service required by its
interim performance requirement; and the licensee has met its final
performance requirement and continues to use its facilities to provide
at least the level of service required by its final performance
requirement through the end of the license term. For an applicant in
its initial license term with no interim performance requirement, the
applicant must certify that it has met its final performance
requirement and continues to use its facilities to provide at least the
level of service required by its final performance requirement through
the end of the license term. For an applicant in any subsequent license
term, the applicant must certify that it continues to use its
facilities to provide at least the level of service required by its
final performance requirement through the end of any subsequent license
terms.
(ii) The applicant must certify that no permanent discontinuance of
service occurred during the license term. This safe harbor may be used
by any Covered Geographic License.
(3) Geographic licenses--private systems. (i) For an applicant in
its initial license term with an interim performance requirement, the
applicant must certify that it has met its interim performance
requirement and that over the portion of the license term following the
interim performance requirement, the applicant continues to use its
facilities to further the applicant's private business or public
interest/public safety needs at or above the level required to meet its
interim performance requirement; and the applicant has met its final
performance requirement and continues to use its facilities to provide
at least the level of operation required by its final performance
requirement through the end of the license term. For an applicant in
its initial license term
[[Page 41546]]
with no interim performance requirement, the applicant must certify
that it has met its final performance requirement and continues to use
its facilities to provide at least the level of operation required by
its final performance requirement through the end of the license term.
For an applicant in any subsequent license term, the applicant must
certify that it continues to use its facilities to further the
applicant's private business or public interest/public safety needs at
or above the level required to meet its final performance requirement.
(ii) The applicant must certify that no permanent discontinuance of
operation occurred during the license term. This safe harbor may be
used by any Covered Geographic License.
(4) Partitioned or disaggregated license without a performance
requirement. (i) The applicant must certify that it continues to use
its facilities to provide service or to further the applicant's private
business or public interest/public safety needs.
(ii) The applicant must certify that no permanent discontinuance of
service occurred during the license term. This safe harbor may be used
by any Covered Geographic License.
(f) Renewal Showing. If an applicant for renewal cannot meet the
Renewal Standard in paragraph (d) of this section by satisfying the
requirements of one of the safe harbors in paragraph (e) of this
section, it must make a Renewal Showing, independent of its performance
requirements, as a condition of renewal. The Renewal Showing must
specifically address the Renewal Standard by including a detailed
description of the applicant's provision of service (or, when allowed
under the relevant service rules or pursuant to waiver, use of the
spectrum for private, internal communication) during the entire license
period and address, as applicable:
(1) The level and quality of service provided by the applicant
(e.g., the population served, the area served, the number of
subscribers, the services offered);
(2) The date service commenced, whether service was ever
interrupted, and the duration of any interruption or outage;
(3) The extent to which service is provided to rural areas;
(4) The extent to which service is provided to qualifying tribal
land as defined in Sec. 1.2110(e)(3)(i) of this chapter; and
(5) Any other factors associated with the level of service to the
public.
(g) Regulatory Compliance Certification. An applicant for renewal
of an authorization in the Wireless Radio Services identified in
paragraph (d) of this section must make a Regulatory Compliance
Certification certifying that it has substantially complied with all
applicable FCC rules, policies, and the Communications Act of 1934, as
amended.
(h) Consequences of denial. If the Commission, or the Wireless
Telecommunications Bureau acting under delegated authority, finds that
a licensee has not met the Renewal Standard under paragraph (d) of this
section, or that its Regulatory Compliance Certification under
paragraph (g) of this section is insufficient, its renewal application
will be denied, and its licensed spectrum will return automatically to
the Commission for reassignment (by auction or other mechanism). In the
case of certain services licensed site-by-site, the spectrum will
revert automatically to the holder of the related overlay geographic-
area license. To the extent that an AWS-4 licensee also holds the 2 GHz
Mobile Satellite Service (MSS) rights for the affected license area,
the MSS protection rule in Sec. 27.1136 of this chapter will no longer
apply in that license area.
0
5. Add Sec. 1.950 to read as follows:
Sec. 1.950 Geographic partitioning and spectrum disaggregation.
(a) Definitions. The terms ``county and county equivalent,''
``geographic partitioning,'' and ``spectrum disaggregation'' as used in
this section are defined as follows:
(1) County and county equivalent. The terms county and county
equivalent as used in this part are defined by Federal Information
Processing Standards (FIPS) 6-4, which provides the names and codes
that represent the counties and other entities treated as equivalent
legal and/or statistical subdivisions of the 50 States, the District of
Columbia, and the possessions and freely associated areas of the United
States. Counties are the ``first-order subdivisions'' of each State and
statistically equivalent entity, regardless of their local designations
(county, parish, borough, etc.). Thus, the following entities are
equivalent to counties for legal and/or statistical purposes: The
parishes of Louisiana; the boroughs and census areas of Alaska; the
District of Columbia; the independent cities of Maryland, Missouri,
Nevada, and Virginia; that part of Yellowstone National Park in
Montana; and various entities in the possessions and associated areas.
The FIPS codes and FIPS code documentation are available online at
https://www.itl.nist.gov/fipspubs/index.htm.
(2) Geographic partitioning. Geographic partitioning is the
assignment of a geographic portion of a geographic area licensee's
license area.
(3) Spectrum disaggregation. Spectrum disaggregation is the
assignment of portions of blocks of a geographic area licensee's
spectrum.
(b) Eligibility. Covered Geographic Licenses are eligible for
geographic partitioning and spectrum disaggregation.
(1) Geographic partitioning. An eligible licensee may partition any
geographic portion of its license area, at any time following grant of
its license, subject to the following exceptions:
(i) 220 MHz Service licensees must comply with Sec. 90.1019 of
this chapter.
(ii) Cellular Radiotelephone Service licensees must comply with
Sec. 22.948 of this chapter.
(iii) Multichannel Video & Distribution and Data Service licensees
are only permitted to partition licensed geographic areas along county
borders (Parishes in Louisiana or Territories in Alaska).
(2) Spectrum disaggregation. An eligible licensee may disaggregate
spectrum in any amount, at any time following grant of its license to
eligible entities, subject to the following exceptions:
(i) 220 MHz Service licensees must comply with Sec. 90.1019 of
this chapter.
(ii) Cellular Radiotelephone Service licensees must comply with
Sec. 22.948 of this chapter.
(iii) VHF Public Coast (156-162 MHz) spectrum may only be
disaggregated in frequency pairs, except that the ship and coast
transmit frequencies comprising Channel 87 (see Sec. 80.371(c) of this
chapter) may be disaggregated separately.
(iv) Disaggregation is not permitted in the Multichannel Video &
Distribution and Data Service 12.2-12.7 GHz band.
(c) Filing requirements. Parties seeking approval for geographic
partitioning, spectrum disaggregation, or a combination of both must
apply for a partial assignment of authorization by filing FCC Form 603
pursuant to Sec. 1.948. Each request for geographic partitioning must
include an attachment defining the perimeter of the partitioned area by
geographic coordinates to the nearest second of latitude and longitude,
based upon the 1983 North American Datum (NAD83). Alternatively,
applicants may specify an FCC-recognized service area (e.g., Basic
Trading Area, Economic Area, Major Trading Area, Metropolitan Service
Area, or Rural Service Area), county, or county equivalent, in which
[[Page 41547]]
case, applicants need only list the specific FCC-recognized service
area, county, or county equivalent names comprising the partitioned
area.
(d) Relocation of incumbent licensees. Applicants for geographic
partitioning, spectrum disaggregation, or a combination of both must,
if applicable, include a certification with their partial assignment of
authorization application stating which party will meet any incumbent
relocation requirements, except as otherwise stated in service-specific
rules.
(e) License term. The license term for a partitioned license area
or disaggregated spectrum license is the remainder of the original
licensee's license term.
(f) Frequency coordination. Any existing frequency coordination
agreements convey with the partial assignment of authorization for
geographic partitioning, spectrum disaggregation, or a combination of
both, and shall remain in effect for the term of the agreement unless
new agreements are reached.
(g) Performance requirements. Parties to geographic partitioning,
spectrum disaggregation, or a combination of both, have two options to
satisfy service-specific performance requirements (i.e., construction
and operation requirements). Under the first option, each party may
certify that it will individually satisfy any service-specific
requirements and, upon failure, must individually face any service-
specific performance penalties. Under the second option, both parties
may agree to share responsibility for any service-specific
requirements. Upon failure to meet their shared service-specific
performance requirements, both parties will be subject to any service-
specific penalties.
(h) Unjust enrichment. Licensees making installment payments or
that received a bidding credit, that partition their licenses or
disaggregate their spectrum to entities that do not meet the
eligibility standards for installment payments or bidding credits, are
subject to the unjust enrichment requirements of Sec. 1.2111.
0
6. Add Sec. 1.953 to read as follows:
Sec. 1.953 Discontinuance of service or operations.
(a) Termination of authorization. A licensee's authorization will
automatically terminate, without specific Commission action, if the
licensee permanently discontinues service or operations under the
license during the license term. A licensee is subject to this
provision commencing on the date it is required to be providing service
or operating.
(b) 180-day Rule for Geographic Licenses. Permanent discontinuance
of service or operations for Covered Geographic Licenses is defined as
180 consecutive days during which a licensee does not operate or, in
the case of commercial mobile radio service providers, does not provide
service to at least one subscriber that is not affiliated with,
controlled by, or related to the licensee.
(c) 365-day Rule for Site-based Licenses. Permanent discontinuance
of service or operations for Covered Site-based Licenses is defined as
365 consecutive days during which a licensee does not operate or, in
the case of commercial mobile radio service providers, does not provide
service to at least one subscriber that is not affiliated with,
controlled by, or related to the providing carrier.
(d) 365-day Rule for public safety licenses. Permanent
discontinuance of operations is defined as 365 consecutive days during
which a licensee does not operate. This 365-day rule applies to public
safety licenses issued based on the applicant demonstrating eligibility
under Sec. 90.20 or Sec. 90.529 of this chapter, or public safety
licenses issued in conjunction with a waiver pursuant to section 337 of
the Communications Act.
(e) Channel keepers. Operation of channel keepers (devices that
transmit test signals, tones, color bars, or some combination of these,
for example) does not constitute operation or service for the purposes
of this section.
(f) Filing requirements. A licensee that permanently discontinues
service as defined in this section must notify the Commission of the
discontinuance within 10 days by filing FCC Form 601 or 605 requesting
license cancellation. An authorization will automatically terminate,
without specific Commission action, if service or operations are
permanently discontinued as defined in this section, even if a licensee
fails to file the required form requesting license cancellation.
(g) Extension request. A licensee may file a request for a longer
discontinuance period for good cause. An extension request must be
filed at least 30 days before the end of the applicable 180-day or 365-
day discontinuance period. The filing of an extension request will
automatically extend the discontinuance period a minimum of the later
of an additional 30 days or the date upon which the Wireless
Telecommunications Bureau acts on the request.
0
7. Amend Sec. 1.955 by revising paragraph (a)(3) to read as follows:
Sec. 1.955 Termination of authorizations.
* * * * *
(a) * * *
(3) Service discontinued. Authorizations automatically terminate,
without specific Commission action, if service or operations are
permanently discontinued. See Sec. 1.953.
* * * * *
PART 22--PUBLIC MOBILE SERVICES
0
8. The authority citation for part 22 continues to read as follows:
Authority: 47 U.S.C. 154, 222, 303, 309 and 332.
Sec. 22.131 [Amended]
0
9. Amend Sec. 22.131 as follows:
0
a. Remove paragraph (b)(1);
0
b. Redesignate paragraphs (b)(2) through (4) as paragraphs (b)(1)
through (3);
0
c. Remove paragraph (c)(3)(i);
0
d. Redesignate paragraphs (c)(3)(ii) and (iii) as paragraphs (c)(3)(i)
and (ii);
0
e. Remove paragraph (c)(4)(i); and
0
f. Redesignate paragraphs (c)(4)(ii) through (iv) as paragraphs
(c)(4)(i) through (iii).
Sec. 22.317 [Removed]
0
10. Remove Sec. 22.317.
Sec. 22.513 [Amended]
0
11. Amend Sec. 22.513 by removing paragraphs (f) and (g).
Sec. 22.947 [Removed]
0
12. Remove Sec. 22.947.
PART 24--PERSONAL COMMUNICATIONS SERVICES
0
13. The authority citation for part 24 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 309 and 332.
Sec. 24.16 [Removed]
0
14. Remove Sec. 24.16.
Sec. 24.104 [Amended]
0
15. Amend Sec. 24.104 by removing paragraphs (f) and (g).
Sec. 24.714 [Amended]
0
16. Amend Sec. 24.714 by removing paragraph (e).
PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES
0
17. The authority citation for part 27 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302a, 303, 307, 309, 332, 336,
337, 1403, 1404, 1451, and 1452, unless otherwise noted.
[[Page 41548]]
0
a. Revising the section heading;
0
b. Removing and reserving paragraphs (b) through (f); and
0
c. Removing paragraphs (q)(7), (r)(6), (s)(6), and (t)(6).
The revision reads as follows:
Sec. 27.14 Construction requirements.
* * * * *
Sec. 27.15 [Amended]
0
19. Amend Sec. 27.15 by removing paragraph (d).
Sec. 27.17 [Removed]
0
20. Remove Sec. 27.17.
PART 30--UPPER MICROWAVE FLEXIBLE USE SERVICE
0
21. The authority citation for part 30 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 303, 304, 307,
309, 310, 316, 332, 1302.
Sec. 30.105 [Amended]
0
22. Amend Sec. 30.105 by removing paragraph (d).
Sec. 30.106 [Removed]
0
23. Remove Sec. 30.106.
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
0
24. The authority citation for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, 307, 309, 310, 336 and 554.
Sec. 74.632 [Amended]
0
25. Amend Sec. 74.632 by removing paragraph (g).
PART 80--STATIONS IN THE MARITIME SERVICES
0
26. 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
27. Amend Sec. 80.60 by revising paragraph (d) to read as follows:
Sec. 80.60 Partitioned licenses and disaggregated spectrum.
* * * * *
(d) Partitioning and disaggregation construction requirements for
site-based AMTS, and nationwide or multi-region LF, MF, and HF public
coast. Parties seeking to acquire a partitioned license or
disaggregated spectrum from a site-based AMTS, or nationwide or multi-
region LF, MF, and HF public coast licensee will be required to
construct and commence ``service to subscribers'' in all facilities
acquired through such transactions within the original construction
deadline for each facility as set forth in Sec. 80.49. Failure to meet
the individual construction deadline will result in the automatic
termination of the facility's authorization.
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
0
28. 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), and 332(c)(7), and Title VI of the Middle Class Tax
Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat.
156.
Sec. 90.157 [Removed]
0
29. Remove Sec. 90.157.
0
30. Amend Sec. 90.165 by:
0
a. Removing paragraph (b)(1);
0
b. Redesignating paragraphs (b)(2) through (4) as paragraphs (b)(1)
through (3);
0
c. Removing paragraph (c)(3)(i);
0
d. Redesignating paragraphs (c)(3)(ii) and (iii) as paragraphs
(c)(3)(i) and (ii);
0
e. Revising newly redesignated paragraph (c)(3)(ii);
0
f. Removing paragraph (c)(4)(i); and
0
g. Redesignating paragraphs (c)(4)(ii) through (iv) as paragraphs
(c)(4)(i) through (iii).
The revision reads as follows:
Sec. 90.165 Procedures for mutually exclusive applications.
* * * * *
(c) * * *
(3) * * *
(ii) If any mutually exclusive application filed on the earliest
filing date is an application for modification, a same-day filing group
is used.
* * * * *
Sec. 90.365 [Amended]
0
31. Amend Sec. 90.365 by removing paragraph (d).
0
32. Amend Sec. 90.375 by revising paragraph (b) to read as follows:
Sec. 90.375 RSU license areas, communication zones and registrations.
* * * * *
(b) Applicants who are approved in accordance with FCC Form 601
will be granted non-exclusive licenses for all non-reserved DSRCS
frequencies (see Sec. 90.377). Such licenses serve as a prerequisite
of registering individual RSUs located within the licensed geographic
area described in paragraph (a) of this section. Licensees must
register each RSU in the Universal Licensing System (ULS) before
operating such RSU. RSU registrations are subject, inter alia, to the
requirements of Sec. 1.923 of this chapter as applicable (antenna
structure registration, environmental concerns, international
coordination, and quiet zones). Additionally, RSUs at locations subject
to NTIA coordination (see Sec. 90.371(b)) may not begin operation
until NTIA approval is received. Registrations are not effective until
the Commission posts them on the ULS. It is the DSRCS licensee's
responsibility to delete from the registration database any RSUs that
have been discontinued.
* * * * *
0
33. Amend Sec. 90.631 by revising paragraph (f) to read as follows:
Sec. 90.631 Trunked systems loading, construction and authorization
requirements.
* * * * *
(f) If a station is not placed in permanent operation, in
accordance with the technical parameters of the station authorization,
within one year, except as provided in Sec. 90.629, its license
cancels automatically. For purposes of this section, a base station is
not considered to be placed in operation unless at least two associated
mobile stations, or one control station and one mobile station, are
also placed in operation.
* * * * *
0
34. Amend Sec. 90.685 by revising paragraph (a) to read as follows:
Sec. 90.685 Authorization, construction and implementation of EA
licenses.
(a) EA licenses in the 809-824/854-869 MHz band will be issued for
a term not to exceed ten years.
* * * * *
0
35. Revise Sec. 90.743 to read as follows:
Sec. 90.743 Renewal requirements.
Until January 1, 2023, all licensees seeking renewal of their
authorizations at the end of their license term must file a renewal
application in accordance with the provisions of Sec. 1.949 of this
chapter. Licensees must demonstrate, in their application, that:
(a) They have provided ``substantial'' service during their past
license term. ``Substantial'' service is defined in this rule as
service that is sound, favorable, and substantially above a level of
mediocre service that just might minimally warrant renewal; and
(b) They have substantially complied with applicable FCC rules,
policies, and
[[Page 41549]]
the Communications Act of 1934, as amended.
Sec. 90.813 [Amended]
0
36. Amend Sec. 90.813 by removing paragraph (e).
Sec. 90.816 [Removed]
0
37. Remove Sec. 90.816.
Sec. 90.911 [Amended]
0
38. Amend Sec. 90.911 by removing paragraphs (e) and redesignating
paragraph (f) as (e).
Sec. 90.1019 [Amended]
0
39. Amend Sec. 90.1019 by removing paragraph (d).
PART 95--PERSONAL RADIO SERVICES
0
40. The authority citation for part 95 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302(a), 303, and 307(e).
Sec. 95.1923 [Amended]
0
41. Amend Sec. 95.1923 by removing paragraph (d).
0
42. Amend Sec. 95.1933 by revising paragraph (a) and paragraph (b)
introductory text to read as follows:
Sec. 95.1933 Construction requirements.
(a) Each 218-219 MHz Service licensee must make a showing of
``substantial service'' within ten years of the license grant. Until
January 1, 2023, ``substantial service'' assessment will be made at
renewal pursuant to the provisions and procedures contained in Sec.
1.949 of this chapter.
(b) Until January 1, 2023, each 218-219 MHz Service licensee must
file a report to be submitted to inform the Commission of the service
status of its system. The report must be labeled as an exhibit to the
renewal application. At minimum, the report must include:
* * * * *
PART 101--FIXED MICROWAVE SERVICES
0
43. The authority citation for part 101 continues to read as follows:
Authority: 47 U.S.C. 154, 303.
0
44. Revise Sec. 101.65 to read as follows:
Sec. 101.65 Termination of station authorizations.
In addition to the provisions of Sec. 1.953 of this chapter, a
site-based license will be automatically terminated in whole or in part
without further notice to the licensee upon the voluntary removal or
alteration of the facilities, so as to render the station not
operational for a period of 30 days or more. A licensee is subject to
this provision commencing on the date it is required to be providing
service or operating under Sec. 101.63. This provision is inapplicable
to blanket authorizations to operate fixed stations at temporary
locations pursuant to the provisions of Sec. 101.31(a)(2). See Sec.
101.305 for additional rules regarding temporary and permanent
discontinuation of service.
0
45. Amend Sec. 101.527 by revising paragraph (a) and paragraph (b)
introductory text to read as follows:
Sec. 101.527 Construction requirements for 24 GHz operations.
(a) Each licensee must make a showing of ``substantial service''
within ten years of its license grant. ``Substantial service'' is a
service which is sound, favorable, and substantially above a level of
mediocre service which just might minimally warrant renewal during its
past license term. Until January 1, 2023, ``substantial service''
assessment will be made at renewal pursuant to the provisions and
procedures set forth in Sec. 1.949 of this chapter.
(b) Until January 1, 2023, each licensee must, at a minimum file:
* * * * *
Sec. 101.529 [Removed]
0
46. Remove Sec. 101.529.
Sec. 101.535 [Amended]
0
47. Amend Sec. 101.535 by removing paragraph (d).
0
48. Revise Sec. 101.1011 to read as follows:
Sec. 101.1011 Construction requirements.
LMDS licensees must make a showing of ``substantial service'' in
their license area within ten years of being licensed. ``Substantial''
service is defined as service which is sound, favorable, and
substantially above a level of mediocre service which might minimally
warrant renewal. Failure by any licensee to meet this requirement will
result in forfeiture of the license and the licensee will be ineligible
to regain it.
Sec. 101.1111 [Amended]
0
49. Amend Sec. 101.1111 by removing paragraph (e).
0
50. Amend Sec. 101.1323 by revising paragraph (c) to read as follows:
Sec. 101.1323 Spectrum aggregation, disaggregation, and partitioning.
* * * * *
(c) Construction requirements. Responsible parties must submit
supporting documents showing compliance with the respective
construction requirements within the appropriate construction
benchmarks set forth in Sec. 101.1325.
* * * * *
Sec. 101.1327 [Removed]
0
51. Remove Sec. 101.1327.
0
52. Amend Sec. 101.1413 by revising the section heading, paragraph (b)
introductory text, and paragraph (c) to read as follows:
Sec. 101.1413 License term and construction requirements.
* * * * *
(b) As a construction requirement, MVDDS licensees must make a
showing of substantial service at the end of five years into the
license period and ten years into the license period. The substantial
service requirement is defined as a service that is sound, favorable,
and substantially above a level of mediocre service which might
minimally warrant renewal. At the end of five years into the license
term and ten years into the license period, the Commission will
consider factors such as:
* * * * *
(c) The renewal application of an MVDDS licensee is governed by
Sec. 1.949 of this chapter.
Sec. 101.1415 [Amended]
0
53. Amend Sec. 101.1415 by removing paragraph (f).
0
54. Amend Sec. 101.1513 by revising the section heading to read as
follows:
Sec. 101.1513 License term.
* * * * *
[FR Doc. 2017-18501 Filed 8-31-17; 8:45 am]
BILLING CODE 6712-01-P