[Federal Register Volume 62, Number 147 (Thursday, July 31, 1997)]
[Proposed Rules]
[Pages 41012-41015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20078]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 2
[ET Docket No. 97-157; FCC 97-245]
Reallocation of TV Channels 60-69, the 746-806 MHz Band
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: By this Notice of Proposed Rule Making (NPRM), the Commission
proposes to reallocate the 746-806 MHz band, currently comprising
television (TV) channels 60-69. The Commission proposes to allocate 24
megahertz, at 764-776 MHz and 794-806 MHz, to the fixed and mobile
services, and to designate this spectrum for public safety use. The
Commission proposes to allocate the remaining 36 megahertz at 746-764
MHz and 776-794 MHz to the fixed, mobile, and broadcasting services;
and anticipates that licenses in this portion of the band may be
assigned through competitive bidding. These allocations would help to
meet the needs of public safety for additional spectrum, make new
technologies and services available to the American public, and allow
more efficient use of spectrum in the 746-806 MHz band. The Commission
also considers issues related to protecting existing and proposed TV
stations on channels 60-69 from interference until the transition to
digital TV (DTV) is complete, but defer specific interference
protection standards to a separate proceeding on service rules in the
746-806 MHz band.
DATES: Comments must be filed on or before September 15, 1997, and
reply comments must be filed on or before October 14, 1997.
ADDRESSES: Comments and reply comments should be sent to the Office of
Secretary, Federal Communications Commission, Washington, DC 20554. If
participants want each Commissioner to receive a personal copy of their
comments, an original plus nine copies must be filed.
FOR FURTHER INFORMATION CONTACT: Sean White, Office of Engineering and
Technology, (202) 418-2453, [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rule Making, ET Docket 97-157, FCC 97-245, adopted July 9,
1997, and released July 10, 1997. The full text of this Commission
decision is available for inspection and copying during regular
business hours in the FCC Reference Center (Room 239), 1919 M Street,
NW., Washington, DC. The complete text of this decision also may be
purchased from the Commission's duplication contractor, International
Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW.,
Washington, DC 20036.
Summary of Notice of Proposed Rule Making
1. In this NPRM, the Commission proposes to reallocate 24 megahertz
of spectrum at 764-776 MHz and 794-806 MHz to the fixed and mobile
services, and reserve this spectrum for the exclusive use of public
safety services. The Commission also proposes to reallocate the 746-764
MHz and 776-794 MHz bands to the fixed, mobile, and broadcasting
services, and anticipates that licenses in this spectrum will be
assigned by competitive bidding.
2. TV channels 60-69 (746-806 MHz) are relatively lightly used for
full service television operations. There are currently only 95 full
service analog stations, either operating or with approved construction
permits on these channels. In the Sixth Report and Order in MM Docket
No. 87-268 (DTV Proceeding), 62 FR 26684, May 14, 1997, the Commission
adopted a Table of Allotments for digital television. This Table
provides all eligible broadcasters with a second 6 MHz channel to be
used for DTV service during the transition from analog to digital
television service. The DTV Table also, inter alia, facilitates the
early recovery of a portion of the existing broadcast spectrum,
specifically, channels 60-69, by minimizing the use of these channels
for DTV purposes. The DTV Table provides only 15 allotments for DTV
stations on channels 60-69 in the continental United States.
3. In providing for early recovery of spectrum, the Commission also
observed that there is an urgent need for additional spectrum to meet
important public safety needs, including voice and data communications,
and to provide for improved interoperability between public safety
agencies. We indicated that spectrum in the region of the 746-806 MHz
band may be appropriate to meet some of these needs. The Commission
stated that we would initiate a separate proceeding to reallocate the
spectrum at channels 60-69 in the very near future, and that we would
give serious consideration to allocating 24 megahertz of this spectrum
for public safety use and consider allocating the remaining 36
megahertz in the 746-806 MHz band for assignment by auction.
4. In 1995, the Commission, along with the National
Telecommunications and Information Administration, established the
Public Safety Wireless Advisory Committee (PSWAC) to study public
safety telecommunications requirements. The PSWAC was chartered, inter
alia, to advise the Commission on total spectrum requirements for the
operational needs of public safety entities in the United States
through the year 2010. On September 11, 1996, the PSWAC issued its
Final Report. The PSWAC found that the currently allocated public
safety spectrum is insufficient to support current voice and data needs
of the public safety community, does not provide adequate capacity for
interoperability channels, and is inadequate to meet future needs,
based on projected population growth and demographic changes. In the
Final Report, the PSWAC stated that data communication needs are also
expected to grow rapidly in the next few years, and wireless video
needs are expected to expand quickly. In addition, new spectrum is
required to support new capabilities and technologies, including high
speed data and video. The PSWAC found that, in the short term, 24 or 25
megahertz of new public safety spectrum is needed, and concluded that
public safety users should be granted access to portions of the unused
spectrum in the 746-806 MHz band.
5. The Commission tentatively proposes to allocate the spectrum at
TV channels 63, 64, 68, and 69 (the 764-776 MHz and 794-806 MHz bands)
for public safety. There are several reasons why the Commission
believes these channels would best serve the needs of public safety.
These channels are relatively lightly used by full service television
broadcasting, so this spectrum would offer the fewest restrictions on
public safety operations. Further, since the 794-806 MHz band is
subjacent to existing public safety operations in the 806-824 MHz band,
it holds the best potential for expansion of
[[Page 41013]]
and interoperability with existing systems. The close proximity to
existing spectrum used for public safety could also reduce the
difficulty and cost of designing equipment. The Commission is aware
that public safety systems typically employ systems that for technical
reasons require some minimum separation between the receive and
transmit frequencies, and believes the proposed allocation would permit
systems to be deployed with adequate separation between transmit and
receive frequencies.
6. The Commission proposes to reallocate the remaining 36 MHz of
spectrum in the 746-806 MHz band to the fixed and mobile services, and
retain the existing broadcast allocation. This would allow the maximum
diversity in service offerings and the broadest licensee discretion,
consistent with international allocations. Internationally, the band is
allocated on a primary basis to the broadcasting service and on a
secondary basis to the fixed and mobile services in Region 2. A
footnote to the International Table of Frequency Allocations elevates
the allocation to the fixed and mobile services to primary status in
the United States, Mexico, and several other Region 2 countries. This
spectrum is located near spectrum now used for cellular telephone and
other land mobile services, and it could be used to expand the
capacities of these services. Other possible applications for this
spectrum include wireless local loop telephone service, video and
multimedia applications, wireless cable services, and industrial
communications services. Additionally, under the proposal, parties
would be able to obtain licenses in this spectrum to offer
broadcasting.
7. The Commission solicits public comment on the proposed
allocation, and defers consideration of protection of TV transmission
in the bands, licensing, and service rules to a separate proceeding.
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act,1 the
Commission has prepared an Initial Regulatory Flexibility Analysis of
the expected significant economic impact on small entities by the
policies and rules proposed in this Notice of Proposed Rule Making
(NPRM). Written public comments are requested on the IRFA. Comments
must be identified as responses to the IRFA and must be filed by the
deadlines for comments on the NPRM provided above. The Secretary shall
send a copy of this NPRM, including the IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration.2
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\1\ 5 U.S.C. 603.
\2\ See id. Sec. 603(a).
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A. Need for and Objectives of the Proposed Rules
This NPRM proposes to reallocate the 746-806 MHz band, television
(TV) Channels 60-69, to other services. We propose to allocate 24
megahertz at 764-776 MHz and 794-806 MHz for public safety use. We
propose to allocate the remaining 36 megahertz at 746-764 MHz and 776-
794 MHz to the fixed and mobile services, and to retain the allocation
to the broadcasting service in these bands. We further propose to
protect full-power TV stations in the band until the transition to
digital television (DTV) is complete, and to retain the secondary
status in the band of Low Power TV (LPTV) and TV translator stations.
These allocations would help alleviate a critical shortage of public
safety spectrum, make new technologies and services available to the
American public, and allow more efficient use of spectrum in the 746-
806 MHz band.
B. Legal Basis
The proposed action is taken pursuant to sections 4(i), 303(c),
303(f), 303(g), and 303(r) of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(c), 303(f), 303(g), and 303(r).
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
1. Definition of a ``Small Business''
Under the RFA, small entities may include small organizations,
small businesses, and small governmental jurisdictions. 5 U.S.C.
601(6). The RFA, 5 U.S.C. 601(3), generally defines the term ``small
business'' as having the same meaning as the term ``small business
concern'' under the Small Business Act, 15 U.S.C. 632. 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 Small Business Administration
(``SBA''). According to the SBA's regulations, entities engaged in
television broadcasting Standard Industrial Classification (``SIC'')
Code 4833--Television Broadcasting Stations, may have a maximum of
$10.5 million in annual receipts in order to qualify as a small
business concern. This standard also applies in determining whether an
entity is a small business for purposes of the RFA.
2. Issues in Applying the Definition of a ``Small Business''
As discussed below, we could not precisely apply the foregoing
definition of ``small business'' in developing our estimates of the
number of small entities to which the rules will apply. Our estimates
reflect our best judgments based on the data available to us.
An element of the definition of ``small business'' is that the
entity not be dominant in its field of operation. We were unable at
this time to define or quantify the criteria that would establish
whether a specific television station is dominant in its field of
operation. Accordingly, the following estimates of small businesses to
which the new rules will apply do not exclude any television station
from the definition of a small business on this basis and are therefore
overinclusive to that extent. An additional element of the definition
of ``small business'' is that the entity must be independently owned
and operated. As discussed further below, we could not fully apply this
criterion, and our estimates of small businesses to which the rules may
apply may be overinclusive to this extent. The SBA's general size
standards are developed taking into account these two statutory
criteria. This does not preclude us from taking these factors into
account in making our estimates of the numbers of small entities.
3. Television Station Estimates Based on Census Data
The NPRM will affect full service television stations, TV
translator facilities, and LPTV stations. The Small Business
Administration defines a television broadcasting station that has no
more than $10.5 million in annual receipts as a small
business.3 Television broadcasting stations consist of
establishments primarily engaged in broadcasting visual programs by
television to the public, except cable and other pay television
services.4 Included in this industry are commercial,
religious, educational, and other television stations.5 Also
included
[[Page 41014]]
are establishments primarily engaged in television broadcasting and
which produce taped television program materials.6 Separate
establishments primarily engaged in producing taped television program
materials are classified under another SIC number.7
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\3\ 13 CFR Sec. 121.201, Standard Industrial Code (SIC) 4833
(1996).
\4\ Economics and Statistics Administration, Bureau of Census,
U.S. Department of Commerce, 1992 Census of Transportation,
Communications and Utilities, Establishment and Firm Size, Series
UC92-S-1, Appendix A-9 (1995).
\5\ Id. See Executive Office of the President, Office of
Management and Budget, Standard Industrial Classification Manual
(1987), at 283, which describes ``Television Broadcasting Stations
(SIC Code 4833) as:
Establishments primarily engaged in broadcasting visual programs
by television to the public, except cable and other pay television
services. Included in this industry are commercial, religious,
educational and other television stations. Also included here are
establishments primarily engaged in television broadcasting and
which produce taped television program materials.
\6\ Economics and Statistics Administration, Bureau of Census,
U.S. Department of Commerce, supra note 7, Appendix A-9.
\7\ Id.; SIC 7812 (Motion Picture and Video Tape Production);
SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services
(producers of live radio and television programs).
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There were 1,509 television stations operating in the nation in
1992.8 That number has remained fairly constant as indicated
by the approximately 1,551 operating television broadcasting stations
in the nation as of February 28, 1997.9 For 1992
10 the number of television stations that produced less than
$10.0 million in revenue was 1,155 establishments, or approximately 77
percent of the 1,509 establishments.11 Thus, the rules will
affect approximately 1,551 television stations; approximately 1,194 of
those stations are considered small businesses.12 These
estimates may overstate the number of small entities since the revenue
figures on which they are based do not include or aggregate revenues
from non-television affiliated companies. We recognize that the rules
may also impact minority and women owned stations, some of which may be
small entities. In 1995, minorities owned and controlled 37 (3.0%) of
1,221 commercial television stations in the United States.13
According to the U.S. Bureau of the Census, in 1987 women owned and
controlled 27 (1.9%) of 1,342 commercial and non-commercial television
stations in the United States.14
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\8\ FCC News Release No. 31327, January 13, 1993; Economics and
Statistics Administration, Bureau of Census, U.S. Department of
Commerce, supra note 7, Appendix A-9.
\9\ FCC News Release No. 7033, March 6, 1997.
\10\ Census for Communications' establishments are performed
every five years ending with a ``2'' or ``7''. See Economics and
Statistics Administration, Bureau of Census, U.S. Department of
Commerce, supra note 7, at III.
\11\ The amount of $10 million was used to estimate the number
of small business establishments because the relevant Census
categories stopped at $9,999,999 and began at $10,000,000. No
category for $10.5 million existed. Thus, the number is as accurate
as it is possible to calculate with the available information.
\12\ We use the 77 percent figure of TV stations operating at
less than $10 million for 1992 and apply it to the 1997 total of
1551 TV stations to arrive at 1,194 stations categorized as small
businesses.
\13\ Minority Commercial Broadcast Ownership in the United
States, U.S. Dep't of Commerce, National Telecommunications and
Information Administration, The Minority Telecommunications
Development Program (``MTDP'') (April 1996). MTDP considers minority
ownership as ownership of more than 50% of a broadcast corporation's
stock, voting control in a broadcast partnership, or ownership of a
broadcasting property as an individual proprietor. Id. The minority
groups included in this report are Black, Hispanic, Asian, and
Native American.
\14\ See Comments of American Women in Radio and Television,
Inc. in MM Docket No. 94-149 and MM Docket No. 91-140, at 4 n.4
(filed May 17, 1995), citing 1987 Economic Censuses, Women-Owned
Business, WB87-1, U.S. Dep't of Commerce, Bureau of the Census,
August 1990 (based on 1987 Census). After the 1987 Census report,
the Census Bureau did not provide data by particular communications
services (four-digit Standard Industrial Classification (SIC) Code),
but rather by the general two-digit SIC Code for communications
(#48). Consequently, since 1987, the U.S. Census Bureau has not
updated data on ownership of broadcast facilities by women, nor does
the FCC collect such data. However, we sought comment on whether the
Annual Ownership Report Form 323 should be amended to include
information on the gender and race of broadcast license owners.
Policies and Rules Regarding Minority and Female Ownership of Mass
Media Facilities, Notice of Proposed Rule Making, 10 FCC Rcd 2788,
2797 (1995), 60 FR 06068, February 1, 1995.
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There are currently 4,977 TV translator stations and 1,952 LPTV
stations which would be affected by the allocation policy and other
policies in this proceeding.15 The Commission does not
collect financial information of any broadcast facility and the
Department of Commerce does not collect financial information on these
broadcast facilities. We will assume for present purposes, however,
that most of these broadcast facilities, including LPTV stations, could
be classified as small businesses. As indicated earlier, approximately
77 percent of television stations are designated under this analysis as
potentially small business. Given this, LPTV and TV translator stations
would not likely have revenues that exceed the SBA maximum to be
designated as small businesses.
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\15\ FCC News Release No. 7033, March 6, 1997.
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4. Alternative Classification of Small Television Stations
An alternative way to classify small television stations is by the
number of employees. The Commission currently applies a standard based
on the number of employees in administering its Equal Employment
Opportunity (``EEO'') rule for broadcasting.16 Thus, radio
or television stations with fewer than five full-time employees are
exempted from certain EEO reporting and recordkeeping
requirements.17 We estimate that the total number of
commercial television stations with 4 or fewer employees is 132 and
that the total number of noncommercial educational television stations
with 4 or fewer employees is 136.18
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\16\ The Commission's definition of a small broadcast station
for purposes of applying its EEO rule was adopted prior to the
requirement of approval by the Small Business Administration
pursuant to section 3(a) of the Small Business Act, 15 U.S.C.
Sec. 632(a), as amended by section 222 of the Small Business Credit
and Business Opportunity Enhancement Act of 1992, Public Law 102-
366, Sec. 222(b)(1), 106 Stat. 999 (1992), as further amended by the
Small Business Administration Reauthorization and Amendments Act of
1994, Public Law 103-403, Sec. 301, 108 Stat. 4187 (1994). However,
this definition was adopted after public notice and an opportunity
for comment. See Report and Order in Docket No. 18244, 23 FCC 2d 430
(1970), 35 FR 8925, June 6, 1970.
\17\ See, e.g., 47 CFR Sec. 73.3612 (Requirement to file annual
employment reports on Form 395-B applies to licensees with five or
more full-time employees); First Report and Order in Docket No.
21474 (In the Matter of Amendment of Broadcast Equal Employment
Opportunity Rules and FCC Form 395), 70 FCC 2d 1466 (1979), 44 FR
6722, February 2, 1979. The Commission is currently considering how
to decrease the administrative burdens imposed by the EEO rule on
small stations while maintaining the effectiveness of our broadcast
EEO enforcement. Order and Notice of Proposed Rule Making in MM
Docket No. 96-16 (In the Matter of Streamlining Broadcast EEO Rule
and Policies, Vacating the EEO Forfeiture Policy Statement and
Amending Section 1.80 of the Commission's Rules to Include EEO
Forfeiture Guidelines), 11 FCC Rcd 5154 (1996), 61 FR 09964, March
12, 1996. One option under consideration is whether to define a
small station for purposes of affording such relief as one with ten
or fewer full-time employees. Id. at para. 21.
\18\ We base this estimate on a compilation of 1995 Broadcast
Station Annual Employment Reports (FCC Form 395-B), performed by
staff of the Equal Opportunity Employment Branch, Mass Media Bureau,
FCC.
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We have concluded that the 746-806 MHz band can be recovered
immediately, and that it is in the public interest to reallocate this
spectrum to uses in addition to TV broadcasting. We believe that such a
reallocation is possible while continuing to protect TV. There are 95
full power TV stations, either operating or with approved construction
permits, in Channel 60-69. There are also nine proposed stations, and
approximately 15 stations will be added during the DTV transition
period, for a total of approximately 119 nationwide. There are also
approximately 1,366 LPTV stations and TV translator stations in the
band, operating on a secondary basis to full power TV stations. We
propose to immediately reallocate the 746-806 MHz band in order to
maximize the public benefit available from its use.
The RFA also includes small governmental entities as a part of the
regulatory flexibility analysis.19 The definition of a small
governmental entity is one with a population of fewer than
50,000.20 There are approximately 85,006 governmental
entities in the
[[Page 41015]]
nation.21 This number includes such entities as states,
counties, cities, utility districts and school districts. There are no
figures available on what portion of this number have populations of
fewer than 50,000. However, this number includes 38,978 counties,
cities and towns, and of those, 37,566, or 96 percent, have populations
of fewer than 50,000.22 The Census Bureau estimates that
this ratio is approximately accurate for all governmental entities.
Thus, of the approximately 85,006 governmental entities, we estimate
that 96 percent, or 81,600, are small entities that may be affected by
our rules.
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\19\ 5 U.S.C. Sec. 601(5).
\20\ Id.
\21\ 1992 Census of Governments, U.S. Bureau of the Census, U.S.
Department of Commerce.
\22\ Id.
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D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
None.
E. Significant Alternatives to Proposed Rules which Minimize
Significant Economic Impact on Small Entities and Accomplish Stated
Objectives
We do not propose to provide LPTV and TV translator stations with
the same protection afforded to full-power TV stations. Because of the
large number of such stations, protecting them would significantly
diminish the utility of the 746-806 MHz band to both public safety and
commercial users. Also, LPTV and TV translator stations are secondary
in this band, and we have proposed to make public safety and commercial
services primary in the band. We remain concerned, however, for the
interests of LPTV and TV translator stations because they are a
valuable part of the American telecommunications structure and economy.
For this reason, we seek measures which will allow as many LPTV and TV
translator stations as possible to remain in operation. At a minimum,
we propose to continue the secondary status of these stations, so that
they will not be required to change or cease their operations until
they actually interfere with one of the newly-allocated services. We
also request comment on a number of measures which may alleviate the
impact of reallocation of the 746-806 MHz band on LPTV and TV
translator stations. We request comment on these options, with emphasis
on how we can ensure fairness to all licensees, and how we can best
balance the interests of current and future licensees to the benefit of
the public.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules.
None.
List of Subjects in 47 CFR Part 2
Frequency allocations and radio treaty matters, Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-20078 Filed 7-30-97; 8:45 am]
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