[Federal Register Volume 76, Number 104 (Tuesday, May 31, 2011)]
[Rules and Regulations]
[Pages 31252-31260]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13379]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 2, and 25
[ET Docket No. 10-142; FCC 11-57]
Fixed and Mobile Services in the Mobile Satellite Service Bands
at 1525-1559 MHz and 1626.5-1660.5 MHz, 1610-1626.5 MHz and 2483.5-2500
MHz, and 2000-2020 MHz and 2180-2200 MHz
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission amends its rules to make
additional spectrum available for new investment in mobile broadband
networks while also ensuring that the United States maintains robust
mobile satellite service capabilities. First, this document adds co-
primary Fixed and Mobile allocations to the Mobile Satellite Service
(MSS) 2 GHz band, consistent with the International Table of
Allocations, allowing more flexible use of the band, including for
terrestrial broadband services, in the future. Second, to create
greater predictability and regulatory parity with the bands licensed
for terrestrial mobile broadband service, the document extends the
Commission's existing secondary market spectrum manager spectrum
leasing policies, procedures, and rules that currently apply to
wireless terrestrial services to terrestrial services provided using
the Ancillary Terrestrial Component (ATC) of an MSS system.
DATES: Effective June 30, 2011.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Kevin Holmes, Wireless
Telecommunications Bureau at 202-418-2487 or kevin.holmes@fcc.gov, or
Nicholas Oros, Office of Engineering and Technology at 202-418-0636 or
nicholas.oros@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, FCC 11-57, adopted on April 5, 2011, and released on April
6, 2011, as corrected by an erratum issued on April 15, 2011. The full
text of this document is available for 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, facsimile (202) 488-5563,
or via e-mail at fcc@bcpiweb.com. The complete text is also available
on the Commission's Web site at http://wireless.fcc.gov/edocs_public/attachment/FCC-11-57A1doc. 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
The Federal Communications Commission makes additional spectrum
available for new investment in mobile broadband networks while also
ensuring that the United States maintains robust MSS capabilities. This
action is consistent with Recommendation 5.8.4 of the National
Broadband Plan, which recommended that 90 megahertz of spectrum
allocated to MSS could be made available for terrestrial mobile
broadband use, while preserving sufficient MSS capability to serve
rural areas, public safety, and other important national purposes. The
rules adopted herein: (1) Add co-primary Fixed and Mobile allocations
to the MSS 2GHz band, consistent with the International Table of
Allocations, and (2) extend the Commission's existing secondary market
spectrum manager spectrum leasing policies, procedures, and rules that
currently apply to wireless terrestrial services to services provided
using the ATC of an MSS system.
I. Background
1. Mobile Satellite Service Spectrum Allocation. MSS is a
radiocommunications service involving transmission between mobile earth
stations and one or more space stations. As we discussed in the MSS
NPRM, three MSS frequency bands are capable of supporting broadband
service: The 2 GHz band (``S-band'') from 2000-2020 MHz and 2180-2200
MHz, the Big LEO Band from 1610-1626.5 MHz and 2483.5-2500 MHz, and the
L-band from 1525-1559 MHz and 1626.5-1660.5 MHz. 75 FR 49871 (August
16, 2010). Although the International Table of Allocations includes a
primary Fixed and Mobile services allocation along with the primary
Mobile-Satellite allocation in the S-band, such co-allocations do not
exist in the U.S. Table. The Big LEO and L-bands are not allocated for
Fixed and Mobile services either in the United States or on an
international basis.
2. In addition, as noted in the MSS NOI, MSS has the capability to
serve important needs, such as rural access and disaster recovery. 75
FR 49871 (August 16, 2010). MSS has the ability to provide
communications to mobile
[[Page 31253]]
user terminals anywhere in the United States, including in remote areas
where people are without basic telecommunications services. MSS is
particularly well suited for meeting the needs of the transportation,
petroleum, and other vital industries. MSS operators have the ability
to operate when existing terrestrial infrastructure is non-existent or
has been degraded or destroyed and therefore can meet public safety and
emergency communication needs in times of national crises and natural
disasters. For example, MSS satellite networks were utilized in the
aftermath of the terrorist attacks of September 11, 2001, and during
the hurricane season of 2005. MSS units provide interoperable
connections between emergency responders and other communications
networks, and can even link U.S. emergency response providers with
counterparts in neighboring countries.
3. Terrestrial Use of MSS Spectrum. At present, use of these MSS
bands for terrestrial mobile service is permitted only under the
Commission's ATC rules and in association with the existing satellite
system authority. The Commission adopted the ATC rules in 2003. ATC
consists of terrestrial base stations and mobile terminals that re-use
frequencies assigned for MSS operations. In the MSS NPRM, we noted that
technological developments involving the use of MSS/ATC spectrum could
soon lead to the provision of mobile broadband services similar to
those provided by terrestrial mobile providers. In particular, we
observed that SkyTerra (now LightSquared) plans to construct an
integrated national satellite/terrestrial mobile broadband network,
which would make use of both MSS spectrum and terrestrial spectrum that
it has already leased in the secondary market, and that the services it
would offer have the potential to expand services offered in the
overall market of mobile terrestrial wireless services and to enhance
competition in this larger mobile marketplace. In addition to
LightSquared, three other MSS licensees have received ATC authority,
although none of these currently has commercial terrestrial ATC
stations in operation. We note that Globalstar's ATC authority has been
suspended for failure to come into compliance with the ATC ``gating
criteria'' as required pursuant to the temporary waiver granted in
2008.
4. Secondary Market Policies and MSS Spectrum. Currently, the
Commission's secondary markets spectrum leasing framework, which
applies to terrestrial Wireless Radio Services licenses, does not
extend to ATC uses of MSS spectrum. In the Secondary Markets First
Report and Order adopted in 2003, the Commission established policies
and rules by which terrestrially-based Wireless Radio Service licensees
could lease some or all of the spectrum usage rights associated with
their licenses to third party spectrum lessees, which could then
provide wireless services consistent with the underlying license
authorization. 68 FR 66232 (November 25, 2003). The Commission provided
for two different types of spectrum leasing arrangements for Wireless
Radio Services: Spectrum manager leasing arrangements and de facto
transfer leasing arrangements. Spectrum manager leasing arrangements
require the licensee to maintain an active role in ensuring compliance
with applicable Commission policies and rules but do not involve a
transfer of de facto control under 47 U.S.C. 310(d), while de facto
transfer leasing arrangements involve a transfer of de facto control
and require Commission approval. In establishing these secondary market
policies, the Commission sought to promote more efficient, innovative,
and dynamic use of the spectrum, expand the scope of available wireless
services and devices, enhance economic opportunities for accessing
spectrum, promote competition among terrestrial wireless service
providers, and eliminate regulatory uncertainty surrounding terrestrial
spectrum leasing arrangements. At that time, however, the Commission
decided not to extend these spectrum leasing policies and rules to
satellite services. In particular, the Commission recognized that there
already was a well-established set of policies and rules in effect for
satellite-capacity transponder leasing, the kinds of leasing
arrangements that were occurring in the context of satellite services.
Satellite-capacity transponder leasing arrangements differ from
spectrum leasing arrangements. Among other things, satellite-capacity
transponder leasing does not involve the leasing of spectrum.
Subsequently, the Commission extended the leasing framework to
additional Wireless Radio Services and to Public Safety services, as
well as to other terrestrial spectrum bands that became available.
5. More recently, as ATC services have begun to develop, the
Commission has drawn guidance from the Wireless Radio Services
secondary market leasing policies. In 2008, the Commission determined
that its ATC policies specifically contemplated that MSS licensees
could lease access to spectrum to third-party terrestrial providers so
long as the requisite ATC gating requirements are met. Furthermore, the
Commission found in one case that the particular ATC spectrum leasing
arrangement at issue--which the parties had directly modeled on the
requirements for spectrum manager leasing arrangements already
available to terrestrial wireless services--was consistent with
Commission policy, including the statutory requirement relating to
transfers of control under 47 U.S.C. 310(d) that applied to Wireless
Radio Services under the secondary market policies. Specifically, the
Commission found that the leasing arrangement was consistent with a
spectrum manager leasing arrangement under its spectrum leasing
policies for Wireless Radio Services. Thus, even though the Commission
did not adopt the terrestrial Wireless Radio Services spectrum leasing
policies and rules for MSS/ATC spectrum leasing arrangements in a
rulemaking context, it nonetheless applied the statutory interpretation
relating to those policies and rules to the particular lease of MSS
spectrum associated with an ATC authorization.
II. Discussion
A. Co-Primary Allocation of the MSS 2 GHz Band for Terrestrial and
Fixed Services
6. As proposed in the MSS NPRM, we add Fixed and Mobile allocations
to the 2000-2020 MHz and 2180-2200 MHz band. These allocations will be
co-primary with the existing Mobile Satellite allocation. By adding
these allocations to the band, we will be in a position to provide
greater flexibility for use of this spectrum in the future. In
addition, this change in allocation will bring our allocations for the
band into harmony with the International Table of Allocations. We take
no action on the proposal in the MSS NPRM that, in the event that a 2
GHz MSS license is returned or cancelled, the spectrum covered by the
license should not be assigned to the remaining MSS licensee or made
available to a new MSS licensee.
7. Our proposal to add Fixed and Mobile allocations to the 2 GHz
MSS band received wide support from both satellite and terrestrial
wireless licensees. Only Boeing opposed the proposal. Boeing argues
that adding this allocation will undermine the ability of 2 GHz MSS
licensees to provide service in rural areas, provide valuable service
to public safety, and assist in disaster recovery. Boeing also points
out that keeping MSS primary in the 2 GHz MSS band promotes the goal of
international
[[Page 31254]]
harmonization with respect to satellite services. Boeing also claims
that MSS networks provide the only means to create a next generation
air traffic management (ATM) communication, navigation, and
surveillance infrastructure. Boeing explains that it obtained a 2 GHz
MSS license in 2001 with a goal of developing such a system but that
economic conditions and other factors thwarted the plan. Boeing still
believes that development of an ATM system is critical to the future of
aviation.
8. We agree that MSS networks are a necessary and critical part of
this nation's communications infrastructure, and serve an important
role in meeting the needs of rural areas, the public safety community,
and disaster recovery, but conclude that these needs can continue to be
satisfied under the rules we adopt. MSS remains co-primary in the 2 GHz
MSS band, which is consistent with international allocations. As we
stated in the MSS NPRM, the addition of Fixed and Mobile allocations to
the 2 GHz MSS band is merely a first step toward providing flexibility
to allow greater use of the band for mobile broadband. The existing
service rules that permit MSS and ATC operation in the band will not be
altered solely by the addition of Fixed and Mobile allocations to the
band. Both of the MSS licensees in the band will continue to operate
under the terms of their existing licenses and must comply with all of
the Commission's satellite and ATC rules. Furthermore, we are not
altering the allocation for the Big LEO band or the L-band.
9. As to the development of an ATM system, we express no opinion as
to the need for such a system, whether it should be satellite-based, or
whether the 2 GHz band is a suitable location for it. As a practical
matter, we note that Boeing has returned its 2 GHz MSS license. At the
same time, there is evidence of exploding demand for spectrum for
mobile broadband networks. Given all of the foregoing, we believe that
adding Fixed and Mobile allocations to the 2 GHz MSS band will provide
additional flexibility to meet this demand in the future and therefore
is in the public interest.
10. We also modify three footnotes to the U.S. Table to be
consistent with this change in allocation. Footnote US380 permits MSS
operators to operate ATC in conjunction with MSS networks despite the
fact that these bands have not been allocated for Fixed and Mobile
uses. Because we have now added Fixed and Mobile allocations to the
2000-2020 MHz and 2180-2200 MHz band, US380 is no longer needed for
this band. We amend footnote US380 to remove this band while keeping
US380 in place for the MSS Big LEO and L-bands. Two footnotes, NG156
and NG168 permit certain Broadcast Auxiliary Service (BAS) and Fixed
Service (FS) licensees, respectively, to continue to operate on a
primary basis until December 9, 2013 (the sunset date for the band).
Because the relocation of the BAS incumbents out of the 2000-2020 MHz
band has been completed, footnote NG156 which addresses the status of
the BAS incumbents is no longer needed. Therefore, we remove footnote
NG156 from the U.S. Allocation Table. We amend footnote NG168 to
clarify that existing Fixed and Mobile operations in the 2180-2200 MHz
band (i.e. the pre-existing FS licensees) shall become secondary after
the band sunset date while ATC operations by MSS will continue to be
permitted on a primary basis after the sunset date.
11. In sum, we find that adding co-primary Fixed and Mobile
allocations along with the MSS allocation in the 2 GHz band serves the
public interest. Our actions bring the allocations into harmony with
the international allocations. We also lay the foundation for more
flexible use of the band in the future, thereby promoting investment in
the development of new services and additional innovative technologies.
In adding these co-primary allocations and in applying certain
secondary market spectrum leasing rules to ATC leasing arrangements we
have not altered in any way the existing ATC service rules and policies
that the Commission previously adopted to guard against harmful
interference. Furthermore, we conclude that adding co-primary Fixed and
Mobile allocations in this band will not result in harmful
interference, and would not inevitably lead to uses that would result
in harmful interference. Finally, having added co-primary Fixed and
Mobile allocations to the 2 GHz band, we anticipate issuing a notice of
proposed rulemaking on subjects raised in the MSS NOI, including
possible service rule changes that could increase investment and
utilization of the band in a manner that further serves the public
interest. We expect the staff will take advantage of industry technical
expertise as it develops options, which may include potential synergies
with neighboring bands, to inform our decision making process going
forward.
B. Applying Terrestrial Secondary Market Spectrum Leasing Policies to
ATC Spectrum Leasing Arrangements
12. As proposed in the MSS NPRM, we extend the Commission's general
secondary market spectrum leasing policies, procedures, and rules to
ATC spectrum leasing arrangements. As we discussed in the MSS NPRM,
recent and planned near-term developments in the use of MSS spectrum
for the provision of terrestrial services are increasing the potential
that these services will become sufficiently similar to the services
offered in the overall market of mobile terrestrial wireless services
to enhance competition in this larger mobile marketplace. Accordingly,
we find that a common set of policies, procedures, and rules--where
consistent with ATC policies and rules--will promote greater
consistency, regulatory parity, predictability, and transparency with
respect to spectrum leasing arrangements involving terrestrially-based
mobile service offerings.
13. The record contains widespread support for this action. Indeed,
every commenter that addressed the issue supported the extension of the
general secondary markets spectrum leasing rules and policies to ATC.
For example, the Telecommunications Industry Association asserts that
applying the Commission's secondary market rules and policies to ATC
will encourage innovative arrangements and partnerships that will speed
the development and deployment of wireless broadband to rural and other
areas. Additionally, Inmarsat states that spectrum leasing arrangements
would facilitate the ability of MSS operators to deploy ATC, which
would increase the availability of terrestrial broadband services and
advance the public interest. Echostar notes that ``efficient secondary
markets * * * promote spectrum efficiency and create opportunities to
maximize use of spectrum for mobile broadband services.'' We agree that
applying these spectrum leasing policies and rules will help facilitate
efficient and innovative new arrangements for using spectrum, including
in both urban and rural areas. Moreover, commenters assert that by
extending these spectrum leasing policies, the Commission would
establish regulatory predictability and parity between similarly
situated services.
14. Spectrum Manager Leasing Arrangements. Consistent with the
Commission's ATC policies and rules, and the ancillary nature of ATC,
we determine that MSS licensees and spectrum lessees may only enter
into spectrum manager leasing arrangements. As discussed in the MSS
NPRM, the Commission established several ``gating criteria'' that MSS
operators must meet in order to be authorized to operate ATC stations.
At their core, these gating criteria require the MSS licensee to
provide substantial satellite service, as
[[Page 31255]]
well as an integrated satellite/terrestrial service. We conclude that
ATC spectrum manager leasing arrangements, which would require the MSS
licensee to maintain an active role in ensuring compliance with all of
these requirements, are the best means of ensuring that terrestrial
leasing arrangements in MSS spectrum remains consistent with the
underlying ATC policies and rules. We believe that the spectrum manager
leasing rules will enable significant flexibility for the provision of
terrestrial mobile broadband as part of an MSS/ATC service offering.
15. Under a spectrum manager leasing arrangement, the MSS licensee
retains de facto control of the MSS spectrum at all times, remaining
primarily responsible for ensuring compliance with the underlying ATC
requirements (including the underlying authorization) as well as for
the spectrum lessee's compliance with those requirements. This
responsibility includes maintaining reasonable operational oversight
over the leased spectrum so as to ensure that each lessee complies with
all applicable technical and service rules, including frequency
coordination requirements and resolution of interference-related
matters. Permitting only spectrum manager leasing arrangements ensures
that the MSS licensee retains primary responsibility for MSS, including
the provision of substantial satellite service (including all gating
criteria) as well as the coordination of any terrestrial use with
satellite use so that the terrestrial use is consistent with the MSS
service and interference rules. Requiring spectrum manager leasing
arrangements also address the concerns, expressed by Inmarsat, that the
MSS licensee should retain ultimate control over the use of MSS
spectrum in order to enhance its ability to coordinate operations and
avoid harmful interference.
16. De facto transfer leasing arrangements, in contrast, would
effectively transfer primary responsibilities for meeting these
obligations to the spectrum lessee(s), which are not in a position to
meet many of the underlying obligations of the MSS license, such as
meeting the gating criteria obligations to provide substantial
satellite service and to provide integrated mobile satellite/
terrestrial service. Transferring de facto control over the use of the
spectrum to a spectrum lessee also could sever the relationship between
the provision of the satellite and the terrestrial service. We are not
persuaded by the commenters that assert generally that we should permit
MSS licensees to enter into de facto transfer leasing arrangements, but
do not address how such arrangements would be fully consistent with the
ATC gating criteria.
17. We also will apply the general policies and rules that pertain
to the spectrum manager leasing arrangements, as set forth in the
Commission's secondary market policies and rules. Accordingly, we agree
with TerreStar that an MSS licensee may lease spectrum for ATC use in
varying amounts and in any geographic area or at any site encompassed
by the license when entering into a spectrum manager leasing
arrangement.
18. Notification procedures. MSS licensees and potential spectrum
lessees seeking to enter into spectrum manager leasing arrangements
will be required to file the same information and certifications as
required under the Commission's rules for Wireless Radio Service. As
proposed in the MSS NPRM, we will require that leasing parties submit
specified information and certifications (including information about
the parties, the amount and geographic location of the spectrum
involved, and other overlapping terrestrial-use spectrum holdings of
the parties) to the Commission in advance of any operations that would
be permitted pursuant to the proposed transaction. As is required with
respect to a spectrum leasing arrangement involving Wireless Radio
Services, each party to a proposed ATC spectrum manager leasing
arrangement must have correct and up-to-date ownership information on
file with the Commission (using FCC Form 602) as of the date that the
notification of the spectrum manager leasing arrangement is filed.
19. As with spectrum manager leasing arrangements involving
Wireless Radio Services, to the extent a proposed ATC spectrum manager
leasing arrangement does not raise potential public interest concerns,
the transaction would be subject to immediate processing, whereas to
the extent potential public interest concerns were raised (e.g.,
potential competitive harms, as discussed below, or foreign ownership
concerns) the transaction would be subject to streamlined procedures as
the Commission evaluated whether the public interest would be served by
the proposed transaction. We hereby delegate to the Wireless
Telecommunications Bureau (WTB) and the International Bureau (IB) the
authority to resolve implementation and administrative issues relating
to these notification requirements, which will include revisions to FCC
Form 608 and the Commission's Universal Licensing System (ULS).
20. Potential competitive concerns. Assessing potential competitive
effects of proposed secondary market transactions is an important
element of the Commission's policies to promote competition and guard
against the harmful effects of anticompetitive behavior. As the
Commission recognized in the Secondary Markets First Report and Order,
spectrum leasing arrangements potentially raise competitive concerns,
and the Commission applied its general competition policies for
terrestrially-based mobile services to these arrangements.
Specifically, the Commission observed that it may consider the use of
leased spectrum as a relevant factor when examining marketplace
competition. In assessing the potential competitive effects of spectrum
leasing arrangements, the Commission stated that it would determine,
based on a case-by-case review of all relevant factors, whether
services provided over both leased and licensed spectrum in specific
product and geographic markets should be taken into account.
21. We conclude that spectrum leasing arrangements involving ATC
also potentially raise competitive concerns, as several commenters
assert. As we discussed above, technological advances will enable MSS
licensees and their spectrum lessees to use ATC authority to provide
mobile services similar to those provided by terrestrial mobile
providers. While we recognize that in the past the Commission has not
viewed MSS as a substitute for terrestrial mobile services, we have
recently observed that the mobile satellite service industry currently
is undergoing major technological advances and structural changes. In
particular, we note that several MSS providers have, at various times,
articulated their plans to offer high-speed data services, especially
in connection with terrestrial networks using their ATC authority, and
that such services in the future could affect, and potentially enhance,
competition in the provision of terrestrial mobile services. Spectrum
lessees using ATC therefore appear increasingly likely to provide
services that could affect competition in the mobile telephony/
broadband services product market. Accordingly, to the extent that we
determine that particular ATC spectrum leasing arrangements can be used
to provide such services, the procedures we will adopt allow us to
assess these arrangements in the context of our existing competitive
analysis framework
[[Page 31256]]
for mobile telephony/broadband services, consistent with our general
authority to ensure that the public interest would be served by
proposed transactions. We note that these procedures also enable us to
assess each proposed spectrum manager leasing arrangement to determine
whether any other type of competitive issue might arise in the context
of the MSS/ATC transaction, such as leasing arrangements between
different MSS operators.
22. Existing ATC spectrum leasing arrangements. We conclude that
MSS licensees and ATC lessees must conform any existing spectrum
leasing arrangement to the spectrum leasing policies adopted in this
Report and Order. We note that providing this information and
submitting the notification is consistent with the Commission's
approach when it first evaluated an MSS/ATC spectrum leasing
arrangement, as discussed above. We direct parties to submit
notification to the Commission of any existing MSS/ATC spectrum leasing
arrangements no later than thirty (30) days of the effective date of
this Report and Order. This would include any spectrum leasing
arrangement that parties may seek to enter prior to the effective date
of the rules adopted herein.
23. U.S. GPS Industry Council's Request. In its comments, the U.S.
GPS Industry Council expresses concern about the need to protect the
Radionavigation-Satellite Service (RNSS) operating in the 1559-1610 MHz
band, including the Global Positioning System (GPS), from interference
from terrestrial operations in the MSS bands. The U.S. GPS Industry
Council is concerned that applying existing secondary market rules to
the use of MSS spectrum could lead to denser deployment of terrestrial
services using MSS spectrum, which in turn would increase the
probability of harmful interference to GPS. It also requests that the
Commission codify the technical operating parameters applicable to MSS
licensees under their respective ATC authorizations to ensure greater
clarity and certainty about the interference rules applicable to
secondary market arrangements. The U.S. GPS Industry Council expresses
particular concern about potential interference to GPS that could
result from adjacent terrestrial operations by an MSS L-band operator
(LightSquared Subsidiary LLC). The National Telecommunications and
Information Administration (NTIA) also has expressed concern about the
potential for adverse impact of ATC operations in the L-band on GPS and
other Global Navigation Satellite System (GNSS) receivers.
24. The addition of co-primary Fixed and Mobile allocations to the
MSS 2 GHz band and the secondary market policies and rules that we
adopt herein do not in any way change the obligations that attach to
each MSS licensee to comply with the applicable technical and
operational rules for ATC operations pursuant to its license. Under the
spectrum manager leasing arrangements that we are permitting, the MSS
licensee continues to have primary responsibility for ensuring
compliance of any terrestrial operations with the obligations
associated with its authorization, and each spectrum lessee would be
obligated to ensure its operations comply with the particular technical
and operational requirements applicable to the MSS licensee from which
it is leasing spectrum.
25. To the extent that potential interference concerns arise with
respect to MSS/ATC operations in particular MSS bands, concerns will be
addressed on a licensee and band-specific basis. We note that, as
regards the interference concerns raised by the U.S. GPS Industry
Council and NTIA about LightSquared's operations in the MSS L-band,
LightSquared is working with the GPS community by establishing a
technical working group to fully study the potential for harmful
interference from its base station operations in the MSS L-band
spectrum to GPS receivers in the adjacent 1559-1610 MHz band and to
identify measures necessary to prevent harmful interference to GPS.
Pursuant to the January 26, 2011 LightSquared Waiver Order,
LightSquared cannot commence offering a commercial terrestrial service
on its MSS L-band frequencies until the Commission, after consultation
with NTIA, concludes that the harmful interference concerns have been
resolved.
26. We emphasize that responsibility for protecting services rests
not only on new entrants but also on incumbent users themselves, who
must use receivers that reasonably discriminate against reception of
signals outside their allocated spectrum. In the case of GPS, we note
that extensive terrestrial operations have been anticipated in the L-
band for at least 8 years. We are, of course, committed to preventing
harmful interference to GPS and we will look closely at additional
measures that may be required to achieve efficient use of the spectrum,
including the possibility of establishing receiver standards relative
to the ability to reject interference from signals outside their
allocated spectrum.
27. Foreign Ownership. T-Mobile requests that, in applying the
Commission's secondary markets spectrum leasing rules and policies to
ATC, we extend the availability of the immediate processing/approval
procedures to prospective lessees with indirect foreign ownership
exceeding 25 percent, if that ownership has previously been approved by
the Commission. We decline to revisit this issue here. T-Mobile's
request is a reiteration of similar previous requests, including
requests made in the Commission's earlier wireless secondary markets
proceeding, which the Commission has denied. This Report and Order
neither re-examines the wireless secondary market rules and policies
generally nor establishes independent ATC secondary market rules and
policies.
III. Procedural Matters
28. Paperwork Reduction Analysis: 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).
IV. Final Regulatory Flexibility Analysis
29. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Fixed and Mobile Services in the Mobile Satellite
Service Bands at 1525-1559 MHz and 1626.5-1660.5 MHz, 1610-1626.5 MHz
and 2483.5-2500 MHz, and 2000-2020 MHz and 2180 MHz Notice of Proposed
Rulemaking and Notice of Inquiry (Notice). 75 FR 49871 (August 16,
2010). The Commission sought written public comment on the proposals in
the Notice, including comment on the IRFA. This present Final
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Report and Order
30. This Report and Order continues the Commission's efforts to
enhance competition and speed the deployment of terrestrial mobile
broadband. While ensuring the United States maintains robust mobile
satellite service capabilities, in the Report and Order the Commission
takes steps to make additional spectrum available for new
[[Page 31257]]
investment in terrestrial mobile broadband networks.
31. The Report and Order takes two actions. First, we add co-
primary Fixed and Mobile allocations to the Table of Frequency
Allocations for the 2 GHz band, consistent with the International Table
of Allocations. Under this allocation, Fixed and Mobile services will
have equal status to MSS. This allocation modification is a
precondition for more flexible licensing of terrestrial services within
the band and lays the groundwork for providing additional flexibility
in use of the 2 GHz spectrum in the future. The Report and Order does
not change the status of the existing MSS licensees nor grant authority
for terrestrial operations in the band beyond what is currently
permitted under the ATC rules.
32. Second, the Report and Order applies the Commission's secondary
markets policies and rules applicable to terrestrial wireless radio
services to spectrum leasing arrangements involving the use of MSS
bands for terrestrial services. Specifically, the Report and Order
specifies requirements for licensees entering into spectrum manager
leasing arrangements involving ATC, which will increase competition,
improve spectrum efficiency, and allow small entities greater access to
spectrum.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
33. There were no comments filed that specifically addressed the
rules and policies presented in the IRFA.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
34. The RFA directs agencies to provide a description of, and,
where feasible, an estimate of the number of small entities that may be
affected by the rules and policies adopted herein. 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
SBA.
35. Satellite Telecommunications and All Other Telecommunications.
Two economic census categories address the satellite industry. The
first category has a small business size standard of $15 million or
less in average annual receipts, under SBA rules. The second has a size
standard of $25 million or less in annual receipts.
36. The category of Satellite Telecommunications ``comprises
establishments primarily engaged in providing telecommunications
services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications
signals via a system of satellites or reselling satellite
telecommunications.'' Census Bureau data for 2007 show that 512
Satellite Telecommunications firms operated for that entire year. Of
this total, 464 firms had annual receipts of under $10 million, and 18
firms had receipts of $10 million to $24,999,999. Consequently, the
Commission estimates that the majority of Satellite Telecommunications
firms are small entities that might be affected by our action.
37. The second category, i.e. ``All Other Telecommunications''
comprises ``establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems.
Establishments providing Internet services or voice over Internet
protocol (VoIP) services via client-supplied telecommunications
connections are also included in this industry.'' For this category,
Census Bureau data for 2007 show that there were a total of 2,383 firms
that operated for the entire year. Of this total, 2,347 firms had
annual receipts of under $25 million and 12 firms had annual receipts
of $25 million to $49,999,999. Consequently, the Commission estimates
that the majority of All Other Telecommunications firms are small
entities that might be affected by our action.
38. Mobile Satellite Service Carriers. Neither the Commission nor
the U.S. Small Business Administration has developed a small business
size standard specifically for mobile satellite service licensees. The
appropriate size standard is therefore the SBA standard for Satellite
Telecommunications, which provides that such entities are small if they
have $15 million or less in annual revenues. Currently, the
Commission's records show that there are 31 entities authorized to
provide voice and data MSS in the United States. The Commission does
not have sufficient information to determine which, if any, of these
parties are small entities. The Commission notes that small businesses
are not likely to have the financial ability to become MSS system
operators because of high implementation costs, including construction
of satellite space stations and rocket launch, associated with
satellite systems and services. Nonetheless, it might be possible that
some are small entities affected by this Report and Order and therefore
we include them in this section of the FRFA.
39. Wireless Telecommunications Carriers (except satellite). The
Report and Order applies the Commission's secondary market policies and
rules to terrestrial service in the MSS bands. We cannot predict who
may in the future lease spectrum for terrestrial use in these bands. In
general, any wireless telecommunications provider would be eligible to
lease spectrum from the MSS licensees. Since 2007, the SBA has
recognized wireless firms within this new, broad, economic census
category. Prior to that time, such firms were within the now-superseded
categories of Paging and Cellular and Other Wireless
Telecommunications. Under the present and prior categories, the SBA has
deemed a wireless business to be small if it has 1,500 or fewer
employees. For this category, census data for 2007 show that there were
1,383 firms that operated for the entire year. Of this total, 1,368
firms had employment of 999 or fewer employees and 15 had employment of
1000 employees or more. Similarly, according to Commission data, 413
carriers reported that they were engaged in the provision of wireless
telephony, including cellular service, Personal Communications Service
(PCS), and Specialized Mobile Radio (SMR) Telephony services. Of these,
an estimated 261 have 1,500 or fewer employees and 152 have more than
1,500 employees. Consequently, the Commission estimates that
approximately half or more of these firms can be considered small.
Thus, using available data, we estimate that the majority of wireless
firms can be considered small.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
40. This Report and Order applies the Commission's secondary
markets policies and rules applicable to terrestrial wireless services
to spectrum management leasing transactions
[[Page 31258]]
involving the use of MSS bands for terrestrial wireless services.
Leasing parties will be required to submit specified information and
certifications (including information about the parties, the amount and
geographic location of the spectrum involved, and other overlapping
terrestrial-use spectrum holdings of the parties) to the Commission in
advance of any operations that would be permitted pursuant to the
proposed transaction. These changes affect small and large companies
equally. To give these rules any meaning, this information must be
generated by small and large entities alike. Otherwise, wireless
service providers seeking to lease MSS/ATC spectrum would not have all
of the information available to make educated leasing agreements.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
41. The RFA requires an agency to describe any significant
alternatives that it has considered in developing its approach, which
may include the following four alternatives (among others): ``(1) The
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; (3) the use of performance rather than design standards; and
(4) an exemption from coverage of the rule, or any part thereof, for
such small entities.'' 5 U.S.C. 603(c)(1)-(c)(4).
42. In the Report and Order, we add Fixed and Mobile allocations to
the 2000-2020 MHz and 2180-2200 MHz bands. By adding these allocations
to the band, we will be in a position to provide greater flexibility
for use of this spectrum in the future, which may provide small
entities with greater opportunity to lease spectrum. Only one party,
Boeing, opposed the proposal, arguing the allocation will undermine the
ability of 2 GHz MSS to provide service in rural areas, provide
valuable service to public safety, and assist in disaster recovery.
Boeing also suggested that keeping MSS primary in the 2 GHz MSS band
promotes the goal of international harmonization with respect to
satellite services. Boeing also claimed that MSS networks provide the
only means to create a next generation air traffic management (ATM)
communication, navigation, and surveillance infrastructure. We agree
with Boeing that MSS has an important role in meeting the needs or
rural areas, the public safety community, and disaster recovery, but
conclude that these needs can continue to be satisfied under the rules
we adopt. Furthermore, we do not think it prudent to limit future
flexible use of the 2 GHz band based on speculation that an ATM
communication system may be developed in the band at some unspecified
date, particularly in light of evidence of exploding demand for
spectrum for mobile broadband networks. We believe that adding Fixed
and Mobile allocations to the 2 GHz MSS band will provide additional
flexibility to meet this demand in the future and therefore is in the
public interest.
43. In the Report and Order, we take steps that may affect small
entities that provide specific information pursuant to the Commission's
secondary market leasing rules and policies. The requirements we adopt
will require parties to an MSS/ATC spectrum leasing arrangement to file
the same type of notification information that other parties to current
spectrum leases must file. MSS licensees that propose to enter into
MSS/ATC spectrum manager leasing arrangements must file the FCC Form
608. Additionally, all parties to such a proposed spectrum manager
leasing arrangement must submit an FCC Form 602, which details
ownership information, to the extent that a current version of this
form is not already on file with the Commission. The extension of
secondary markets rules and policies to MSS/ATC spectrum will promote
competition in wireless terrestrial broadband and will benefit small
entities in their efforts to compete against other wireless service
providers, both large and small, in the provision of wireless broadband
services. We believe that, on balance, the benefits to small entities
of our actions in the Report and Order far outweigh any burdens this
order places on small entities.
44. The record makes clear that broad support exists for extending
the Commission's secondary markets rules and policies to MSS/ATC
spectrum. Our actions in the Report and Order should benefit wireless
broadband service providers seeking additional terrestrial spectrum,
many of which may be small entities, by providing access to an
increased amount of spectrum. Our actions benefit the public interest
by promoting competition, innovation, and investment.
45. In extending the Commission's secondary markets rules and
policies to MSS/ATC spectrum, we limit that extension to spectrum
manager spectrum leasing arrangements. While several parties recommend
we allow both spectrum manager and de facto transfer spectrum leasing
arrangements, we reject those arguments. De facto transfer leasing
arrangements would effectively transfer primary responsibilities for
meeting the obligations of the MSS licensee to the spectrum lessee(s),
which are not in a position to meet many of the underlying obligations
of the MSS license authorization, such as meeting the gating criteria
obligations to provide substantial satellite service and to provide
integrated mobile satellite/terrestrial service. Transferring de facto
control over the use of the spectrum to a spectrum lessee also could
sever the relationship between the provision of the satellite and
terrestrial service. Thus, we do not extend de facto transfer spectrum
leasing arrangements to the MSS/ATC spectrum.
V. Report to Congress
46. The Commission will send a copy of the Report and Order,
including this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Report and Order, including this FRFA, to the Chief Counsel for
Advocacy of the SBA. A copy of the Report and Order and the FRFA (or
summaries thereof) will also be published in the Federal Register.
VI. Ordering Clauses
47. Accordingly, it is ordered, that pursuant to sections 1, 4(i)
and (j), 301, 303, and 310 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, and 310, this Report
and Order is adopted.
48. It is further ordered, that pursuant to the authority contained
in sections 1, 4(i) and (j), 301, 303, and 310 of the Communications
Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, and
310, the Commission's rules are amended.
49. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
50. It is further ordered that the Commission shall send a copy of
this Report and Order in a report to be sent to Congress and the
General Accounting Office pursuant to the Congressional Review Act, see
5 U.S.C. 801(a)(1)(A).
List of Subjects
47 CFR Parts 1 and 25
Administrative practice and procedure, Communications common
[[Page 31259]]
carriers, Radio, Reporting and recordkeeping requirements, Satellites,
Telecommunications.
47 CFR Part 2
Communications equipment, Disaster assistance, Radio, Reporting and
recordkeeping requirements, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 1, 2, and 25 as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 continues to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j),
155, 157, 225, 303(r), and 309.
0
2. Section 1.9001 is amended by revising paragraph (a) to read as
follows:
Sec. 1.9001 Purpose and scope.
(a) The purpose of part 1, subpart X is to implement policies and
rules pertaining to spectrum leasing arrangements between licensees in
the services identified in this subpart and spectrum lessees. This
subpart also implements policies for private commons arrangements.
These policies and rules also implicate other Commission rule parts,
including parts 1, 2, 20, 22, 24, 25, 26, 27, 80, 90, 95, and 101 of
title 47, chapter I of the Code of Federal Regulations.
* * * * *
0
3. Section 1.9005 is amended by revising the introductory text and by
adding paragraph (jj) to read as follows:
Sec. 1.9005 Included services.
The spectrum leasing policies and rules of this subpart apply to
the following services, which include Wireless Radio Services in which
commercial or private licensees hold exclusive use rights and the
Ancillary Terrestrial Component (ATC) of a Mobile Satellite Service:
* * * * *
(jj) The ATC of a Mobile Satellite Service (part 25 of this
chapter).
0
4. Section 1.9020 is amended by revising paragraphs (d)(2)(i) and
(e)(2)(i)(A) to read as follows:
Sec. 1.9020 Spectrum manager leasing arrangements.
* * * * *
(d) * * *
(2) * * *
(i) The spectrum lessee must meet the same eligibility and
qualification requirements that are applicable to the licensee under
its license authorization, with the following exceptions. A spectrum
lessee entering into a spectrum leasing arrangement involving a
licensee in the Educational Broadband Service (see Sec. 27.1201 of
this chapter) is not required to comply with the eligibility
requirements pertaining to such a licensee so long as the spectrum
lessee meets the other eligibility and qualification requirements
applicable to 47 CFR part 27 services (see Sec. 27.12 of this
chapter). A spectrum lessee entering into a spectrum leasing
arrangement involving a licensee in the Public Safety Radio Services
(see part 90, subpart B and Sec. 90.311(a)(1)(i) of this chapter) is
not required to comply with the eligibility requirements pertaining to
such a licensee so long as the spectrum lessee is an entity providing
communications in support of public safety operations (see Sec.
90.523(b) of this chapter). A spectrum lessee entering into a spectrum
leasing arrangement involving a licensee in the Mobile Satellite
Service with ATC authority (see part 25) is not required to comply with
the eligibility requirements pertaining to such a licensee so long as
the spectrum lessee meets the other eligibility and qualification
requirements of paragraphs (d)(2)(ii) and (d)(2)(iv) of this section.
* * * * *
(e) * * *
(2) * * *
(i) * * *
(A) The license does not involve spectrum that may be used to
provide interconnected mobile voice and/or data services under the
applicable service rules and that would, if the spectrum leasing
arrangement were consummated, create a geographic overlap with spectrum
in any licensed Wireless Radio Service (including the same service), or
in the ATC of a Mobile Satellite Service, in which the proposed
spectrum lessee already holds a direct or indirect interest of 10% or
more (see Sec. 1.2112), either as a licensee or a spectrum lessee, and
that could be used by the spectrum lessee to provide interconnected
mobile voice and/or data services;
* * * * *
0
5. Add Sec. 1.9049 to read as follows:
Sec. 1.9049 Special Provisions relating to spectrum leasing
arrangements involving the Ancillary Terrestrial Component of Mobile
Satellite Services.
(a) A license issued under part 25 of the Commission's rules that
provides authority for an ATC will be considered to provide ``exclusive
use rights'' for purpose of this subpart of the rules.
(b) For the purpose of this subpart, a Mobile Satellite Service
licensee with an ATC authorization may enter into a spectrum manager
leasing arrangement with a spectrum lessee (see Sec. 1.9020).
Notwithstanding the provisions of Sec. Sec. 1.9030 and 1.9035, a MSS
licensee is not permitted to enter into a de facto transfer leasing
arrangement with a spectrum lessee.
(c) For purposes of Sec. 1.9020(d)(8), the Mobile Satellite
Service licensee's obligation, if any, concerning the E911 requirements
in Sec. 20.18 of this chapter, will, with respect to an ATC, be
specified in the licensing document for the ATC.
(d) The following provision shall apply, in lieu of Sec.
1.9020(m), with respect to spectrum leasing of an ATC:
(1) Although the term of a spectrum manager leasing arrangement may
not be longer than the term of the ATC license, a licensee and spectrum
lessee that have entered into an arrangement, the term of which
continues to the end of the current term of the license may, contingent
on the Commission's grant of a modification or renewal of the license
to extend the license term, extend the spectrum leasing arrangement
into the new license term. The Commission must be notified of the
extension of the spectrum leasing arrangement at the same time that the
licensee submits the application seeking an extended license term. In
the event the parties to the arrangement agree to extend it into the
new license term, the spectrum lessee may continue to operate
consistent with the terms and conditions of the expired license,
without further action by the Commission, until such time as the
Commission makes a final determination with respect to the extension or
renewal of the license.
(2) Reserved.
PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS
0
6. The authority citation for part 2 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise
noted.
0
7. Section 2.106, the Table of Frequency Allocations, is amended as
follows:
0
a. Page 36 is revised.
0
b. In the list of United States (US) Footnotes, footnote US380 is
revised.
0
c. In the list of non-Federal Government (NG) Footnotes, footnote NG156
is removed and footnote NG168 is revised.
[[Page 31260]]
The revisions read as follows:
Sec. 2.106 Table of Frequency Allocations.
* * * * *
[GRAPHIC] [TIFF OMITTED] TR31MY11.006
* * * * *
United States (US) Footnotes
* * * * *
US380 In the bands 1525-1544 MHz, 1545-1559 MHz, 1610-1645.5 MHz,
1646.5-1660.5 MHz, and 2483.5-2500 MHz, a non-Federal licensee in the
mobile-satellite service (MSS) may also operate an ancillary
terrestrial component in conjunction with its MSS network, subject to
the Commission's rules for ancillary terrestrial component and subject
to all applicable conditions and provisions of its MSS authorization.
* * * * *
Non-Federal Government (NG) Footnotes
* * * * *
NG168 Except as permitted below, the use of the 2180-2200 MHz band
is limited to the MSS and ancillary terrestrial component offered in
conjunction with an MSS network, subject to the Commission's rules for
ancillary terrestrial components and subject to all applicable
conditions and provisions of an MSS authorization. In the 2180-2200 MHz
band, where the receipt date of the initial application for facilities
in the fixed and mobile services was prior to January 16, 1992, said
facilities shall operate on a primary basis and all later-applied-for
facilities shall operate on a secondary basis to the mobile-satellite
service (MSS); and not later than December 9, 2013, all such facilities
shall operate on a secondary basis.
* * * * *
PART 25--SATELLITE COMMUNICATIONS
0
8. The authority citation for part 25 continues to read as follows:
Authority: 47 U.S.C. 701-744. Interprets or applies sections 4,
301, 302, 303, 307, 309 and 332 of the Communications Act, as
amended, 47 U.S.C. Sections 154, 301, 302, 303, 307, 309 and 332,
unless otherwise noted.
0
9. Section 25.149 is amended by adding paragraph (g) to read as
follows:
Sec. 25.149 Application requirements for ancillary terrestrial
components in the mobile-satellite service networks operating in the
1.5./1.6 GHz, 1.6/2.4 GHz and 2 GHz mobile-satellite service.
* * * * *
(g) Spectrum leasing. Leasing of spectrum rights by MSS licensees
or system operators to spectrum lessees for ATC use is subject to the
rules for spectrum manager leasing arrangements (see Sec. 1.9020) as
set forth in part 1, subpart X of the rules (see Sec. 1.9001 et seq.).
In addition, at the time of the filing of the requisite notification of
a spectrum manager leasing arrangement using Form 608 (see Sec. Sec.
1.9020(e) and 1.913(a)(5)), both parties to the proposed arrangement
must have a complete and accurate Form 602 (see Sec. 1.913(a)(2)) on
file with the Commission.
[FR Doc. 2011-13379 Filed 5-27-11; 8:45 am]
BILLING CODE 6712-01-P