Implementation of the Commission's Incremental Reduction Plan for Phase I Accelerated Relocation Payments, 57369-57372 [2021-22490]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 86, Number 197 (Friday, October 15, 2021)]
[Rules and Regulations]
[Pages 57369-57372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22490]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[GN Docket Nos. 18-122, 21-320; DA 21-1223; FR ID 52434]


Implementation of the Commission's Incremental Reduction Plan for 
Phase I Accelerated Relocation Payments

AGENCY: Federal Communications Commission.

ACTION: Final action.

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SUMMARY: In this document, the Wireless Telecommunications Bureau (WTB 
or Bureau) announces its implementation of the Commission's incremental 
reduction plan for Phase I Accelerated Relocation Payments (ARP) 
relating to the ongoing transition of the 3.7 GHz band. On August 4, 
2021, as directed by the Commission in the Expanding Flexible Use of 
the 3.7 to 4.2 GHz Band, Report and Order and Proposed Modification 
(3.7 GHz Report and Order), WTB issued a Public Notice (PN) to seek 
comment on its proposed approach for calculating an incremental 
reduction for an eligible space station operator's ARP due to its 
failure to meet the Phase I Accelerated Relocation Deadline. After 
reviewing the record, the Bureau adopts the proposals outlined in the 
Phase I Incremental Reduction Comment PN with some clarifications.

DATES: Phase I Accelerated Relocation Certifications are due December 
5, 2021.

FOR FURTHER INFORMATION CONTACT: Susan Mort, Wireless 
Telecommunications Bureau, at [email protected] or 202-418-2429.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document, Public Notice, in GN Docket Nos. 18-122, 21-320; DA 21-1223, 
released on September 29, 2021. The complete text of this document is 
available on the Commission's website at https://www.fcc.gov/document/wtb-announces-phase-i-c-band-incremental-reduction-plan.

Paperwork Reduction Act

    This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, therefore, it does not contain 
any new or modified information collection burden for small business 
concerns with fewer than 25 employees, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

Congressional Review Act

    The Commission will not send a copy of this document to Congress 
and the Government Accountability Office pursuant to the Congressional 
Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted action is an 
action of particular applicability.

Synopsis

    With this document, the Wireless Telecommunications Bureau (WTB or 
Bureau) announces its implementation of the Commission's incremental 
reduction plan for Phase I Accelerated Relocation Payments (ARP) 
relating to the ongoing transition of the 3.7 GHz band. On August 4, 
2021 (86 FR 44329, August 12, 2021), as directed by the Commission in 
the 3.7 GHz Report and Order (85 FR 22804, April 23, 2020), WTB issued 
a Public Notice to seek comment on its proposed approach for 
calculating an incremental reduction for an eligible space station 
operator's ARP due to its failure to meet the Phase I Accelerated 
Relocation Deadline. The Bureau received six comments. After reviewing 
this record, we adopt the proposals outlined in the Phase I Incremental 
Reduction Comment PN (86 FR 44329, August 12, 2021), with certain 
clarifications described below.
    In the 3.7 GHz Report and Order, the Commission adopted rules to 
make 280 megahertz of mid-band spectrum available for flexible use 
(plus a 20 megahertz guard band) throughout the

[[Page 57370]]

contiguous United States by transitioning existing services out of the 
lower portion of the band and into the upper 200 megahertz of the C-
band (i.e., 4.0-4.2 GHz). The 3.7 GHz Report and Order established that 
new 3.7 GHz Service licensees would reimburse the reasonable, actual 
relocation costs of eligible FSS space station operators, incumbent FSS 
earth station operators, and incumbent Fixed Service licensees 
(collectively, incumbents) to transition out of the band.
    The 3.7 GHz Report and Order established a deadline of December 5, 
2025, by which incumbent space station operators were to complete the 
transition of their operations to the upper 200 megahertz of the band, 
but it also provided an opportunity for accelerated clearing of the 
band by allowing eligible space station operators to voluntarily commit 
to relocate on a two-phased accelerated schedule, with a Phase I 
deadline of December 5, 2021, and a Phase II deadline of December 5, 
2023. All five eligible space station operators elected to transition 
on the accelerated schedule. By electing accelerated relocation, the 
eligible space station operators have, among other things, voluntarily 
committed to perform all the tasks necessary to enable any incumbent 
earth station (except those that have elected instead to receive lump 
sum payments) that receives or sends C-band signals to a space station 
owned by that operator to maintain that functionality in the upper 200 
megahertz of the band. The 3.7 GHz Report and Order stated that ``[t]o 
the extent eligible space station operators can meet the Phase I and 
Phase II Accelerated Relocation Deadlines, they will be eligible to 
receive the accelerated relocation payments associated with those 
deadlines.'' Once validated, the ARPs will be disbursed by the 
Relocation Payment Clearinghouse (Clearinghouse).
    The 3.7 GHz Report and Order specified that an ``eligible space 
station operator's satisfaction of the Accelerated Relocation Deadlines 
will be determined by the timely filing of a Certification of 
Accelerated Relocation demonstrating, in good faith, that it has 
completed the necessary clearing actions to satisfy each deadline,'' 
and directed WTB to prescribe the form of such Certifications. Further, 
``the Bureau, Clearinghouse, and relevant stakeholders will have the 
opportunity to review the Certification of Accelerated Relocation and 
identify potential deficiencies.''
    The 3.7 GHz Report and Order also directed that if ``credible 
challenges as to the space station operator's satisfaction of the 
relevant deadline are made, the Bureau will issue a public notice 
identifying such challenges and will render a final decision as to the 
validity of the certification no later than 60 days from its filing.'' 
Absent notice from WTB of deficiencies in the Certification within 30 
days of its filing, the Certification will be deemed validated. 
Following validation, the Clearinghouse shall promptly notify overlay 
licensees, who must pay the ARP to the Clearinghouse within 60 days of 
the notice. The Clearinghouse must then disburse the ARP to the 
eligible space station operator within seven (7) days of receipt. 
Should an eligible space station operator miss the Phase I or Phase II 
deadline, it may still receive a reduced, but non-zero, ARP if it 
otherwise meets the Certification requirements within six months after 
the relevant Accelerated Relocation Deadline.
    The 3.7 GHz Report and Order directed WTB to: (1) ``Prescribe the 
form'' of Certifications and any challenges by relevant stakeholders, 
and (2) establish the process for how such challenges will impact 
incremental decreases in the ARP. On August 4, 2021, the Bureau issued 
a Public Notice implementing filing procedures for Phase I 
Certifications and related challenges. In the Phase I Incremental 
Reduction Comment PN, also released on August 4, 2021, the Bureau 
sought comment on how different Phase I Certification scenarios would 
affect both the challenge process and incremental decreases in the ARP.
    General Matters. In the Phase I Incremental Reduction Comment PN, 
we sought comment on specific timing scenarios involving credible 
challenges filed by relevant stakeholders in connection with the ARP 
certification process. As part of this discussion, WTB also noted the 
3.7 GHz Report & Order directive that ``[f]ollowing validation, the 
Clearinghouse shall promptly notify overlay licensees, who must pay the 
ARP to the Clearinghouse within 60 days of the notice.'' Commenters in 
response asked the Bureau to define the terms ``credible challenge,'' 
``relevant stakeholders,'' and ``promptly,'' which are all terms used 
by the Commission in the 3.7 GHz Report and Order. The Phase I 
Incremental Reduction Comment PN did not seek comment on these 
definitions and we decline to take action on these requests. We believe 
the Certification and challenge process will be able to proceed without 
impediment in the absence of such clarifications and that it is more 
appropriate to address these questions on a case-by-case basis.
    Several commenters also raised matters directly addressed in the 
Phase I ARP Certification Procedures PN (86 FR 44359, August 12, 2021) 
or otherwise outside the scope of the instant public notice. As these 
topics were not raised in the Phase I Incremental Reduction Comment PN, 
we do not address them here.
    Certification and Incremental Reduction Scenarios. At its outset, 
the Phase I Incremental Reduction Comment PN recognized the two most 
straightforward Certification and incremental reduction scenarios. 
First, all Certifications filed without subsequent change--whether by 
amendment or superseded by a refiled Certification--will not be subject 
to any incremental decrease in the ARP if the Certification was filed 
before the Phase I deadline and is ultimately validated. Second, any 
Certifications filed for the first time after the Phase I deadline and 
later validated without amendment or refiling will be subject to the 
incremental reduction schedule established by the Commission in the 3.7 
GHz Report and Order, using the Certification filing date as the ``Date 
of Completion'' for determining the applicable percentage by which the 
ARP will be reduced. In both situations, the challenge process laid out 
in in the Phase I ARP Certification Procedures PN would remain 
unaffected. No commenters disagreed with these baseline premises, and 
we adopt this approach.
    The Bureau also sought comment on more complex scenarios involving 
the potential amendment or refiling of Certifications, as well as on 
how to take into account possible remedial actions and agreements 
between eligible space station operators and other stakeholders as part 
of the Certification process. After considering the record, we 
generally adopt the approach proposed in the Phase I Incremental 
Reduction Comment PN, with certain clarifications described below.
    Amending or Refiling a Certification by the Phase I Deadline. In 
the 3.7 GHz Report and Order, the Commission stated that it was 
adopting accelerated relocation rules ``to facilitate the expeditious 
deployment of next-generation services nationwide across the entire 280 
megahertz made available for terrestrial use.'' In furtherance of this 
goal, we concluded in the Phase I Incremental Reduction Comment PN and 
affirm here that eligible space station operators may amend or refile 
an incomplete or invalid Certification without any incremental 
reduction in the ARP if, before the Phase I deadline, the eligible 
space station operator

[[Page 57371]]

corrects any underlying problems and submits an amended or refiled 
Certification that has no invalidating infirmities. Such amendment or 
refiling may be either on the eligible space station operator's own 
motion, in response to a challenge, or in response to the Bureau's 
determination that the original Certification was invalid. If WTB 
ultimately determines (before or after the Phase I deadline) that all 
the underlying problems have been resolved, the certifying space 
station operator will, in fact, have come into compliance with all the 
requirements for claiming the ARP by the Phase I deadline, provided the 
operator had resolved those problems before said deadline and such 
resolutions were reflected by the filing--also before this deadline--of 
an amendment or refiled Certification.
    T-Mobile agrees with the Bureau's proposal that, in these 
circumstances, the amended or refiled Certification should take the 
place of the original and start a new challenge process. Eutelsat and 
Verizon support limiting new challenges to matters involving changes to 
the original Certification, while Intelsat advocates that we consider 
only ``substantial'' or ``major'' amendments or revisions as starting a 
new comment cycle and review period. Based upon the record, we agree 
with our initial proposal from the Phase I Incremental Reduction 
Comment PN. New challenges to an amended or refiled Certification will 
be permitted but must be limited to matters involving changes made to 
the original Certification (whether the addition of new information, 
modifications of information that had been included in the original 
Certification, or the deletion of previously included information). 
While we agree that limiting the scope of challenges to an amendment or 
refiling in this way is warranted, we decline to distinguish between 
different types of substantive amendments or revisions as Intelsat 
suggests. We did not seek comment on this issue in the Phase I 
Incremental Reduction Comment PN. Additionally, we note that adopting 
Intelsat's approach could lead to confusion and disputes in the record 
over whether an amendment was ``substantive'' or ``major,'' taking the 
focus off the Commission's goal for the certification process--to 
accurately determine, based on the record, whether an operator has 
fully satisfied its Phase I clearing obligations by December 5, 2021. 
We reiterate our earlier tentative conclusion that if the Bureau has 
not already ruled on the original Certification, we may nevertheless 
consider all points raised during the original challenge cycle to the 
extent those points may still be relevant to the amended or refiled 
Certification.
    Several commenters also raised timing considerations relative to 
Certification review by the Bureau. In response, we clarify that where 
an eligible space station operator either amends or refiles its 
Certification, the filing date of the amendment or refiled 
Certification will open a new 30-day window for the identification of 
any deficiencies by the Bureau in the entire Certification, as amended 
or refiled. Further, it also triggers a new 60-day window for a final 
Bureau determination on the validity of the entire Certification, as 
amended or refiled, where the Bureau identifies any deficiencies in the 
entire Certification within the new 30-day window. In other words, the 
amending or refiling of a Certification restarts the clock for Bureau 
review of that Certification. This clarification conforms with the 3.7 
GHz Report and Order's directive to the Bureau to ``render a final 
decision as to the validity of the certification no later than 60 days 
from its filing,'' because an amendment or refiling will necessarily 
alter or replace the underlying Certification and otherwise make it 
impossible to ascertain whether the eligible space station operator had 
fulfilled its transition responsibilities absent a full review. Indeed, 
we would risk frustrating the Commission's objective of making an 
accurate determination on a Certification if we were to conclude, as 
some satellite operators suggest, that corrections to a Certification 
or remedial actions made during the 60-day review period would not 
affect when the date by which a final determination must be made. For 
instance, if an eligible space station operator were to substantially 
or entirely replace its Certification fifty-nine (59) days after its 
original filing and the Bureau took the position that this action had 
no effect on the timing of a final determination, then both outside 
parties and the Bureau would be deprived of the ability to assess the 
Certification's validity before the Bureau issued a final 
determination, which we believe would be inconsistent with the 
Commission's directive in the 3.7 GHz Report and Order. Eligible space 
station operators are strongly encouraged to ensure their original 
filings are complete and conform to the requirements specified in our 
Phase I ARP Certification Procedures PN to avoid the need for any 
amendments or refiling.
    We adopt our proposal that, if WTB decides that the amended or 
refiled Certification was valid, the eligible space station operator's 
ARP will be based on the filing date of the amended or refiled 
Certification. As noted above, where the amended or refiled 
Certification is submitted before the Phase I deadline and that 
Certification is found to be valid, there will be no reduction in the 
ARP.
    Amending or Refiling a Certification After the Phase I Deadline. As 
commenters largely focused on the effects of amending or refiling a 
Certification before the Phase I deadline of December 5, 2021, the 
record does not reflect detailed input on similar scenarios occurring 
after the Phase I deadline. We therefore adopt our proposals from the 
Phase I Incremental Reduction Comment PN, consistent with the 
clarifications articulated above. Thus, if WTB rejects a Certification 
filed before the Phase I deadline (whether the original or an amended 
or refiled Certification), then the eligible space station operator 
will have to finish any incomplete aspects of the transition and file a 
new Certification that the Bureau will have to find to be valid before 
its entitlement to an ARP could be determined. If the filing date of 
this new, valid Certification falls after the Phase I deadline, then 
the ARP will be subject to the incremental reduction schedule 
established by the Commission in the 3.7 GHz Report and Order, as 
applicable, based on that Certification's filing date. We establish the 
same treatment in cases where the Bureau has not yet ruled on a 
Certification and, after the Phase I deadline, the eligible space 
station operator either submits an amended or refiled Certification on 
its own motion, or in response to a challenge.
    Where a Certification is amended or refiled after the Phase I 
deadline, we establish the same challenge process as where an amended 
or refiled Certification is filed before the Phase I deadline. Thus, 
new challenges to the amended or refiled Certification will be 
permitted but must be filed within 10 days of the filing of the 
Certification and be limited to matters involving changes made to the 
original Certification (whether the addition of new information, 
modifications of information that had been included in the original 
Certification, or the deletion of previously included information). If 
the Bureau has not already ruled on the original Certification, we may 
nevertheless consider all timely filed points raised during the 
original challenge cycle (even if that cycle ends after the filing of 
an amended or refiled Certification) to the extent those points may 
still be relevant to the amended or refiled Certification.

[[Page 57372]]

    Accounting for Remedial Action by Eligible Space Station Operators. 
Subject to the provision on agreements below, we affirm that WTB will 
consider remedial action taken by an eligible space station operator 
only if said operator has memorialized that action in a Certification 
(whether amended or refiled). Thus, if WTB issues a final determination 
rejecting a Certification, the fact that the eligible space station 
operator has taken remedial action--after filing its Certification but 
before WTB's decision--to address the problems in said Certification 
that had prompted WTB's rejection will not, in and of itself, 
invalidate or otherwise affect WTB's determination. Rather, for such 
remedial action to be considered, the eligible space station operator 
will need to submit an amended or refiled Certification reflecting that 
remedial action. The amended or refiled Certification will initiate a 
new challenge process as to those aspects that had not yet been subject 
to the initial challenge process, will be subject to 60 day review by 
the Bureau, and will, if accepted as valid, establish a new date by 
which the eligible space station operator's ARP will be calculated.
    Agreements. We adopt our proposal that eligible space station 
operators and stakeholders (including, but not limited to, incumbent 
earth station operators) may enter into agreements to resolve any 
outstanding issues raised in a challenge to a Certification and submit 
any such agreements to WTB before the Bureau has made a final 
determination regarding the validity of the Certification without 
refiling or amending that Certification. For instance, if an eligible 
space station operator submits a Certification (either before or after 
the Phase I deadline) that is credibly challenged, and it attempts to 
address any alleged deficiency before WTB has issued a decision, the 
eligible space station operator and challenging parties can enter into 
an agreement(s) to resolve all outstanding issues between those parties 
and submit this agreement(s) to WTB. If, after review, WTB accepts this 
agreement(s) as a good faith resolution of issues in the eligible space 
station operator's Certification, the Bureau will find that the 
original Certification is valid and dismiss the related outstanding 
challenges. If such an agreement resolved all outstanding challenges, 
the Bureau would calculate the ARP as of the date the original 
Certification was filed. If the agreement, or agreements, entered into 
by the eligible space station operator and the relevant challenger(s) 
does not resolve all outstanding issues in an eligible space station 
operator's Certification, then the Bureau will proceed to make a 
determination on any outstanding issues not addressed by the agreement 
or agreements. To the extent the eligible space station operator files 
an amended Certification before such determination is made, attesting 
that it has completed the necessary remedial steps on any outstanding 
issues, then we will calculate the ARP as of the date of the amended 
Certification (assuming this amended Certification is found valid). 
While we decline to adopt certain proposals advanced by Eutelsat 
relating to our review of agreements, we clarify that parties to an 
agreement may request confidential treatment under Sec.  0.459 of the 
Commission's rules.
    Although we allow eligible space station operators and stakeholders 
to enter into agreements to resolve issues raised in challenges, to 
ensure the integrity of the transition process, we affirm our proposal 
to bar the use of greenmail to reach agreements designed to avoid 
incremental reductions. When a challenge against a Certification is 
withdrawn as the result of an agreement with an eligible space station 
operator, we will require that the written withdrawal agreement be 
accompanied by an affidavit from all parties certifying that no parties 
involved have received or will receive any money or other 
consideration, or pay any money or other consideration, in excess of 
legitimate and prudent expenses in exchange for the agreement or 
withdrawal of the challenge. We otherwise decline to clarify the 
Commission's greenmail policy as some commenters suggest, finding that 
the approach we adopt will ensure the integrity of the transition 
without imposing unnecessary or onerous requirements on the parties to 
such agreements. We believe it is more appropriate to address specific 
applications of this policy on a case-by-case basis, and will reject 
any agreement where we have reason to believe greenmail has changed 
hands.
    Finally, if the eligible space station operator takes remedial 
action to address any challenges to a filed Certification but does not 
attempt to negotiate with the challengers or such negotiations fail, 
WTB will proceed to make a decision based on the information submitted 
by the eligible space station operator in its Certification (original, 
amended, or refiled, as applicable).

Federal Communications Commission.
Amy Brett,
Acting Chief of Staff, Wireless Telecommunications Bureau.
[FR Doc. 2021-22490 Filed 10-14-21; 8:45 am]
BILLING CODE 6712-01-P