Federal Register, Volume 75 Issue 114 (Tuesday, June 15, 2010)

[Federal Register Volume 75, Number 114 (Tuesday, June 15, 2010)]
[Rules and Regulations]
[Pages 33729-33731]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-14387]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WT Docket No. 03-66; RM-10586; FCC 10-107]

Facilitating the Provision of Fixed and Mobile Broadband Access,
Educational and Other Advanced Services in the 2150-2162 and 2500-2690
MHz Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission modifies the construction
deadline applicable to new initial Broadband Radio Service (BRS)
licenses granted on or after November 6, 2009. Specifically, the
Commission permits these BRS licensees to demonstrate substantial
service four years from the date of license grant rather than on or
before May 1, 2011. The Commission further modifies the construction
rule by clarifying that BRS and Educational Broadband Service (EBS)
licensees may demonstrate substantial service by meeting one of the
safe harbors specified in the rule and that they may, under certain
circumstances, demonstrate substantial service by combining licenses.
Finally, on its own motion, the Commission corrects a clerical error in
its rules governing the pre-transition frequency assignments for BRS
Channel 1. These actions clarify the requirements necessary for BRS and
EBS licensees to demonstrate substantial service and ensure that BRS
licensees of new initial licenses are given a reasonable period of time
to deploy service, while ensuring that spectrum is rapidly placed in
use.

DATES: Effective July 15, 2010.

FOR FURTHER INFORMATION CONTACT: Nancy M. Zaczek, Wireless
Telecommunications Bureau, Broadband Division, Federal Communications
Commission, 445 12th Street, SW., Washington, DC 20554, at (202) 418-
0274 or via the Internet to Nancy.Zaczek@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Broadband Radio Service/Educational Broadband Service Third Report and
Order (BRS/EBS 3rd R&O), FCC 10-107, adopted on June 1, 2010, and
released on June 3, 2010. The full text of this document is available
for public inspection and copying during normal business hours in the
FCC Reference Information Center, Room CY-A257, 445 12th Street, SW.,
Washington, DC 20554. The complete text may be purchased from the
Commission's duplicating contractor, Best Copy and Printing, Inc.
(BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC
20554, (202) 488-5300

[[Page 33730]]

or 1-800-378-3160, contact BCPI at its Web site: http://www.bcpiweb.com. When ordering documents from BCPI, please provide the
appropriate FCC document number, for example, FCC 10-107. The complete
text of this document is also available on the Commission's Web site at
http://wireless.fcc.gov/edocs_public/attachment/FCC-10-107A1doc. This
full text may also be downloaded at: http://wireless.fcc.gov/releases.html. Alternative formats (computer diskette, large print,
audio cassette, and Braille) are available by contacting Brian Millin
at (202) 418-7426, TTY (202) 418-7365, or via e-mail to
bmillin@fcc.gov.

SUMMARY:

I. Background

A. Introduction

1. In the April 2006, BRS/EBS Second Report and Order, the
Commission adopted May 1, 2011 as the uniform date by which all BRS
Basic Trading Area (BTA) authorization holders and incumbent BRS and
EBS licensees must demonstrate substantial service. The Commission
adopted May 1, 2011 as the date for BRS licensees to demonstrate
substantial service because it is the date that renewal applications
for incumbent BRS licenses are due. Moreover, May 1, 2011 is
approximately five years from the date of release of the BRS/EBS Second
Report and Order, which gave existing BRS licensees five years to build
out their systems, while they simultaneously transitioned to the new
band plan and technical rules. Thus, the Commission concluded,
requiring BRS licensees to demonstrate substantial service by May 1,
2011 struck the appropriate balance between ensuring that the band is
promptly placed in use and giving licensees fair opportunity to
transition their facilities. The Commission then required that BRS
incumbent licensees file their demonstration of substantial service
with their respective renewal applications.
2. On April 24, 2009, the Bureau announced Auction 86, in which it
intended to auction 78 BRS BTA licenses, 75 of which were overlay
licenses that were originally offered in Auction 6 and were available
as a result of default, cancellation, or termination. Three additional
licenses were created by the Commission in the BRS/EBS Fourth MO&O,
when the Commission amended its rules to establish three Gulf of Mexico
Service Areas for BRS. Under the rules adopted in the BRS/EBS Second
Report and Order, auction winners would be required to demonstrate
substantial service on or before May 1, 2011.
3. On September 11, 2009, the Commission released the BRS/EBS Third
Further Notice of Proposed Rulemaking (BRS/EBS Third FNPRM), 74 FR
49335 (September 28, 2009), concluding that applicants that win BRS
licenses in Auction 86, and any subsequent auction of BRS licenses,
should demonstrate substantial service on or before four years from the
date their respective licenses are granted. The Commission tentatively
concluded that a four-year time period would allow new licensees
sufficient time to build out their systems and put the spectrum to use.
The Commission also proposed to revise the introductory text to Sec.
27.14(o) of the Commission's rules to more clearly state the
Commission's intent to allow BRS or EBS licensees to demonstrate
substantial service if their respective lessees met one of the safe
harbors adopted by the Commission and to allow licenses to be combined
for purposes of demonstrating substantial service under certain
circumstances.
4. On October 27, 2009, the Commission began Auction 86, the
auction of 78 BRS BTA licenses. On November 6, 2009, the Wireless
Telecommunications Bureau announced the closing of the auction.

B. BRS/EBS Third Report and Order

5. In this BRS/EBS Third Report and Order, we adopt our proposal in
the BRS/EBS Third FNPRM, to modify the construction deadline for new
initial BRS licenses to provide licensees with four years from license
grant to demonstrate substantial service. As noted in the BRS/EBS Third
FNPRM, we believe that the substantial service deadline should ensure
that spectrum is promptly placed in use while allowing licensees a
reasonable opportunity to construct. We agree with most commenters
that, with respect to new initial BRS licenses, a four year term
strikes the appropriate balance in serving these goals. We recognize
that the May 1, 2011 deadline adopted in 2006 does not provide adequate
time to build out new initial BRS licenses, particularly since licenses
for the recently-completed Auction 86 have not yet been issued.
6. We note that we do revise our proposal in the BRS/EBS Third
FNPRM in one respect. We had originally proposed to make the new
substantial service date effective when the new version of Sec.
27.14(o) of the Commission's rules became effective. Because Auction 86
has now closed, we amend Sec. 27.14(o) to apply the new substantial
service date to initial licenses granted on or after the date the
Closing Public Notice was released, November 6, 2009. This change will
allow all licensees awarded licenses in Auction 86 to take advantage of
the new substantial service date.
7. We also adopt our proposal to revise the introductory text to
Sec. 27.14(o) of the Commission's rules to more clearly state the
Commission's intent to allow BRS or EBS licensees to demonstrate
substantial service if a lessee has met one of the specified safe
harbors, and to allow licenses to be combined for purposes of
demonstrating substantial service under certain circumstances.
8. On our own motion, we correct a clerical error in Sec.
27.5(i)(1) of the Commission's rules. The listing for BRS Channel 1 in
the pre-transition frequency assignments currently reads as ``RS
Channel 1.''
9. Our actions today will provide licensees who are awarded new
initial BRS licenses, including through the Auction 86 process, with a
reasonable period of time to deploy service, while ensuring that
spectrum is rapidly placed in use.

II. Procedural Matters

Paperwork Reduction Analysis

10. This document does not contain proposed information collection
requirements subject to the Paperwork Reduction Act of 1995, Public Law
104-13. In addition, therefore, it does not contain any proposed
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).

III. Final Regulatory Flexibility Act Certification

11. For the reasons described below, we now certify that the
policies and rules adopted in the BRS/EBS Third Report and Order will
not have a significant economic impact on a substantial number of small
entities. The RFA generally defines the term ``small entity'' as having
the same meaning as the terms ``small business,'' ``small
organization,'' and ``small governmental jurisdiction.'' In addition,
the term ``small business'' has the same meaning as the term ``small
business concern'' under the Small Business Act. A ``small business
concern'' is one which: (1) Is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the

[[Page 33731]]

U.S. Small Business Administration (SBA).
12. In the BRS/EBS Third Report and Order, the Commission extends
the deadline for demonstrating substantial service for those licensees
that are granted an initial BRS license on or after November 6, 2009.
The Commission takes this action in the context of its decision to
auction 78 available BRS BTA licenses in Auction No. 86, which began on
October 27, 2009. The Wireless Telecommunications Bureau announced the
close of Auction No. 86 on November 6, 2009. This action will not
create any additional burdens for BRS licensees because all BRS
licensees must demonstrate substantial service. Moreover, this decision
relieves licensees granted an initial license on or after November 6,
2009 from having to meet the May 1, 2011 deadline, but would require
them to demonstrate substantial service four years from the date of
license grant.
13. Therefore, we certify that the requirements of the BRS/EBS
Third Report and Order will not have a significant economic impact on a
substantial number of small entities.

IV. Report to Congress

14. The Commission will send a copy of this BRS/EBS Third Report
and Order, including a copy of this Final Regulatory Flexibility
Certification, in a report to Congress and the Government
Accountability Office pursuant to the Small Business Regulatory
Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A).

V. Ordering Clauses

15. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 7,
10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333 and
706 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157,
160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333,
and 706, that this Third Report and Order is hereby adopted.
16. It is further ordered, pursuant to section 4(i) of the
Communications Act of 1934, 47 U.S.C. 154(i) that the Commission's
Consumer and Governmental Affairs Bureau, Reference Information Center,
shall send a copy of this Third Report and Order, including the Final
Regulatory Certification, to the Chief Counsel for Advocacy of the
Small Business Administration.

List of Subjects in 47 CFR Part 27

Communications common carriers, Radio.

Marlene H. Dortch,
Secretary, Federal Communications Commission.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications
Commission proposes to amend 47 CFR part 27 as follows:

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
1. The authority citation for part 27 continues to read as follows:

Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and
337 unless otherwise noted.

0
2. Amend Sec. 27.5 by revising paragraph (i)(1) to read as follows:

Sec. 27.5 Frequencies.

* * * * *
(i) * * *
(1) Pre-transition frequency assignments.

BRS Channel 1: 2150-2156 MHz or 2496-2500 MHz
BRS Channel 2: 2156-2162 MHz or 2686-2690 MHz
BRS Channel 2A: 2156-2160 MHz
EBS Channel A1: 2500-2506 MHz
EBS Channel B1: 2506-2512 MHz
EBS Channel A2: 2512-2518 MHz
EBS Channel B2: 2518-2524 MHz
EBS Channel A3: 2524-2530 MHz
EBS Channel B3: 2530-2536 MHz
EBS Channel A4: 2536-2542 MHz
EBS Channel B4: 2542-2548 MHz
EBS Channel C1: 2548-2554 MHz
EBS Channel D1: 2554-2560 MHz
EBS Channel C2: 2560-2566 MHz
EBS Channel D2: 2566-2572 MHz
EBS Channel C3: 2572-2578 MHz
EBS Channel D3: 2578-2584 MHz
EBS Channel C4: 2584-2590 MHz
EBS Channel D4: 2590-2596 MHz
BRS Channel E1: 2596-2602 MHz
BRS Channel F1: 2602-2608 MHz
BRS Channel E2: 2608-2614 MHz
BRS Channel F2: 2614-2620 MHz
BRS Channel E3: 2620-2626 MHz
BRS Channel F3: 2626-2632 MHz
BRS Channel E4: 2632-2638 MHz
BRS Channel F4: 2638-2644 MHz
EBS Channel G1: 2644-2650 MHz
BRS Channel H1: 2650-2656 MHz
EBS Channel G2: 2656-2662 MHz
BRS Channel H2: 2662-2668 MHz
EBS Channel G3: 2668-2674 MHz
BRS Channel H3: 2674-2680 MHz
EBS Channel G4: 2680-2686 MHz
I Channels: 2686-2690 MHz
* * * * *

0
3. Amend Sec. 27.14 by revising paragraph (o) introductory text to
read as follows:

Sec. 27.14 Construction requirements; Criteria for renewal.

* * * * *
(o) BRS and EBS licensees originally issued a BRS or EBS license
prior to November 6, 2009 must make a showing of substantial service no
later than May 1, 2011. With respect to initial BRS licenses issued on
or after November 6, 2009, the licensee must make a showing of
substantial service within four years from the date of issue of the
license. Incumbent BRS licensees that are required to demonstrate
substantial service by May 1, 2011 must file their substantial service
showings with their renewal applications. ``Substantial service'' is
defined as service which is sound, favorable, and substantially above a
level of mediocre service which just might minimally warrant renewal.
Substantial service for BRS and EBS licensees is satisfied if a
licensee meets the requirements of paragraph (o)(1), (o)(2), or (o)(3)
of this section. If a licensee has not met the requirements of
paragraph (o)(1), (o)(2), or (o)(3) of this section, then demonstration
of substantial service shall proceed on a case-by-case basis. Except as
provided in paragraphs (o)(4) and (o)(5) of this section, all
substantial service determinations will be made on a license-by-license
basis. Failure by any licensee to demonstrate substantial service will
result in forfeiture of the license and the licensee will be ineligible
to regain it.
* * * * *
[FR Doc. 2010-14387 Filed 6-14-10; 8:45 am]
BILLING CODE 6712-01-P