[Federal Register Volume 77, Number 169 (Thursday, August 30, 2012)]
[Proposed Rules]
[Pages 52633-52636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21450]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 02-55; DA 12-1343]


Public Safety and Homeland Security Bureau Seeks Comment on Post-
Reconfiguration 800 MHz Band Plan Along the U.S.-Mexico Border

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document seeks comment on post-reconfiguration 800 MHz 
band channel plans along the U.S.-Mexico border. The Public Safety and 
Homeland Security Bureau (Bureau), by this action, affords interested 
parties an opportunity to submit comments and reply comments on 
proposals for establishing and implementing reconfigured 800 MHz 
channel plans along the U.S.-Mexico border.

DATES: Comments are due on or before October 1, 2012 and reply comments 
are due on or before October 15, 2012.

ADDRESSES: You may submit comments, identified by WT Docket 02-55, by 
any of the following methods:
     Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format

[[Page 52634]]

documents, sign language interpreters, CART, etc.) by email: 
FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Brian Marenco, Policy and Licensing 
Division, Public Safety and Homeland Security Bureau, (202) 418-0838.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth 
Further Notice of Proposed Rulemaking, DA 12-1343, released on August 
17, 2012. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text may also be 
purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, 
Washington, DC 20554, telephone 1-800-378-3160, or via email to 
fcc@bcpiweb.com.

Summary

    1. In a July 2004 Report and Order, the Commission reconfigured the 
800 MHz band to eliminate interference to public safety and other land 
mobile communication systems operating in the band, 69 FR 67823, 
November 22, 2004. However, the Commission deferred consideration of 
band reconfiguration plans for the border areas, noting that 
``implementing the band plan in areas of the United States bordering 
Mexico and Canada will require modifications to international 
agreements for use of the 800 MHz band in the border areas.'' The 
Commission stated that ``the details of the border plans will be 
determined in our ongoing discussions with the Mexican and Canadian 
governments.''
    2. In a Second Memorandum Opinion and Order, adopted in May 2007, 
the Commission delegated authority to Public Safety and Homeland 
Security Bureau to propose and adopt border area band plans once 
agreements are reached with Canada and Mexico, 72 FR 39756, July 20, 
2007. Specifically, the Commission noted that ``once those discussions 
are completed, and any necessary modifications to our international 
agreements have been made, we will need to amend our rules to implement 
the agreements and identify the portions of the 800 MHz band that will 
be available to U.S. licensees on a primary basis. In addition, we will 
need to adopt a band plan for the border regions that specifies the 
ESMR and non-ESMR portions of the band and the distribution of channels 
to public safety, B/ILT, and SMR licensees.''
    3. On June 8, 2012, the United States and Mexico signed an 
agreement modifying the international apportionment of 800 MHz spectrum 
in the U.S.-Mexico border region, which enables the U.S. to proceed 
with 800 MHz band reconfiguration along the U.S.-Mexico border. In the 
Fourth Further Notice of Proposed Rulemaking, the Public Safety and 
Homeland Security Bureau, on delegated authority, seeks comment on 
proposals for establishing and implementing reconfigured 800 MHz 
channel plans along the U.S.-Mexico border.
    4. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, 1.419, interested parties may file comments and 
reply comments on or before the dates indicated on the first page of 
this document. All filings related to this Fourth Further Notice of 
Proposed Rulemaking (Fourth FNPRM) should refer to WT Docket No. 02-55. 
Comments may be filed using: (1) The Commission's Electronic Comment 
Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, 
or (3) by filing paper copies. See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    5. Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW., Washington, DC 20554.
    6. Interested parties may view documents filed in this proceeding 
on the Commission's Electronic Comment Filing System (ECFS) using the 
following steps: (1) Access ECFS at http://www.fcc.gov/cgb/ecfs. (2) In 
the introductory screen, click on ``Search for Filed Comments.'' (3) In 
the ``Proceeding'' box, enter the numerals in the docket number. (4) 
Click on the box marked ``Retrieve Document List.'' A link to each 
document is provided in the document list. The public may inspect and 
copy filings and comments during regular business hours at the FCC 
Reference Information Center, 445 12th Street SW., Room CY-A257, 
Washington, DC 20554. The public may also purchase filings and comments 
from the Commission's duplicating contractor, Best Copy and Printing, 
Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 
20554, telephone 1-800-378-3160, or via email to fcc@bcpiweb.com. The 
public may also download this Fourth Further Notice of Proposed 
Rulemaking from the Commission's web site at http://www.fcc.gov/.
    7. People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    8. Commenters who file information that they believe should be 
withheld from public inspection may request confidential treatment 
pursuant to Section 0.459 of the Commission's rules. Commenters should 
file both their original comments for which they request 
confidentiality and redacted comments, along with their request for 
confidential treatment. Commenters should not file proprietary 
information electronically. See Examination of Current Policy 
Concerning the Treatment of Confidential Information Submitted to the 
Commission, Report and Order, 13 FCC Rcd 24816 (1998), Order on 
Reconsideration, 14 FCC Rcd 20128 (1999). Even if the Commission grants 
confidential treatment, information that does not fall within a 
specific exemption pursuant to the Freedom of Information Act (FOIA) 
must be publicly disclosed pursuant to

[[Page 52635]]

an appropriate request. See 47 CFR 0.461; 5 U.S.C. 552. We note that 
the Commission may grant requests for confidential treatment either 
conditionally or unconditionally. As such, we note that the Commission 
has the discretion to release information on public interest grounds 
that does fall within the scope of a FOIA exemption.
    9. This proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making ex parte presentations must file a copy of any written 
presentation or a memorandum summarizing any oral presentation within 
two business days after the presentation (unless a different deadline 
applicable to the Sunshine period applies). Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 
47 CFR 1.49(f) or for which the Commission has made available a method 
of electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.

Procedural Matters

A. Initial Regulatory Flexibility Analysis

    10. Pursuant to the Regulatory Flexibility Act (RFA), the Federal 
Communications Commission's Public Safety and Homeland Security Bureau 
(Bureau) has prepared an Initial Regulatory Flexibility Analysis (IRFA) 
of the possible significant economic impact on small entities by the 
proposals considered in this Fourth FNPRM. The text of the IRFA is set 
forth in Appendix A. Written public comments are requested on this 
IRFA. Comments must be filed in accordance with the same filing 
deadlines for comments on the Fourth FNPRM, and they should have a 
separate and distinct heading designating them as responses to the 
IRFA. The Bureau will send a copy of the Fourth FNPRM, including the 
IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration.

B. Initial Paperwork Reduction Act of 1995 Analysis

    11. This document proposes no additional information collection(s) 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 
beyond those already approved for this proceeding. See OMB Control No. 
3060-1080 for Improving Public Safety Communications in the 800 MHz 
Band (exp. September 30, 2014). Therefore, it contains no new or 
modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

Initial Regulatory Flexibility Analysis

    12. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Federal Communications Commission's Public Safety 
and Homeland Security Bureau (Bureau) has prepared this Initial 
Regulatory Flexibility Analysis (IRFA) of the possible significant 
economic impact on small entities by the policies and rules proposed in 
this Fourth Further Notice of Proposed Rule Making (Fourth FNPRM). 
Written public comments are requested on this IRFA. Comments must be 
identified as responses to the IRFA and must be filed by the deadlines 
for comments on the first page of the Fourth FNPRM. The Commission will 
send a copy of this Fourth FNPRM, including this IRFA, to the Chief 
Counsel for Advocacy of the Small Business Administration (SBA). In 
addition, the Fourth FNPRM and IRFA (or summaries thereof) will be 
published in the Federal Register.

A. Need for, and Objectives of, the Proposed Rules

    13. In the Fourth FNPRM, the Bureau proposes channels plans for 
reconfiguring the 800 MHz band along the U.S.-Mexico border. The 
channel plans we propose in the Fourth FNPRM will be incorporated into 
the Commission's rules and are needed to implement and complete the 
Commission's band reconfiguration program along the U.S.-Mexico border. 
The Commission ordered reconfiguration of the 800 MHz band to address 
an ongoing nationwide problem of interference created by a 
fundamentally incompatible mix of technologies in the band. The 
Commission resolves the interference by reconfiguring the band to 
spectrally separate incompatible technologies. The Commission delegated 
authority to the Bureau in May 2007 to propose and adopt channel plans 
for implementing band reconfiguration along the U.S.-Mexico border. The 
band plans we propose in the Fourth FNPRM will separate incompatible 
technologies along the U.S.-Mexico border and thus resolve the ongoing 
interference problem in that region.

B. Legal Basis

    14. The proposed action is authorized under Sections 4(i), 301, 
302, 303(e), 303(f), 303(r), 304 and 307 of the Communications Act of 
1934, as amended, 47 U.S.C. Sections 154(i), 301, 302, 303(e), 303(f), 
303(r), 304 and 307.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    15. 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 proposed rules, if adopted. 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. Pursuant to 5 
U.S.C. 601(3), the statutory definition of a small business applies 
``unless an agency, after consultation with the Office of Advocacy of 
the Small Business Administration and after opportunity for public 
comment, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.'' Below, we further describe and 
estimate the number of small entities that may be affected by the rules

[[Page 52636]]

changes proposed in this Fourth FNPRM.
    16. Private Land Mobile Radio Licensees (PLMR). PLMR systems serve 
an essential role in a range of industrial, business, land 
transportation, and public safety activities. These radios are used by 
entities of all sizes operating in all U.S. business and public sector 
categories, and are often used in support of the licensee's primary 
(non-telecommunications) operations. For the purpose of determining 
whether a licensee of a PLMR system is a small entity as defined by the 
SBA, we use the broad census category, Wireless Telecommunications 
Carriers (except Satellite). This definition provides that a small 
entity is any such entity employing no more than 1,500 persons. The 
Commission does not require PLMR licensees to disclose information 
about number of employees, so the Commission does not have information 
that could be used to determine how many PLMR licensees constitute 
small entities under this definition. We note that PLMR licensees 
generally use the licensed facilities in support of other business and 
governmental activities, and therefore, it would also be helpful to 
assess PLMR licensees under the standards applied to the particular 
industry subsector to which the licensee belongs.
    17. As of May 2012, there were approximately 220 PLMR licensees 
operating in the PLMR band between 806-824/851-869 MHz along the U.S.--
Mexico border. We note that many government and commercial actors are 
eligible to hold a PLMR license, and that any revised rules in this 
context could therefore potentially impact small entities covering a 
great variety of industries.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    18. The Fourth FNPRM does not propose a rule that will entail 
additional reporting, recordkeeping, and/or third-party consultation or 
other compliance efforts beyond those already approved for this 
proceeding. See OMB Control No. 3060-1080 for Improving Public Safety 
Communications in the 800 MHz Band (exp. September 30, 2014).

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    19. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed 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 or reporting requirements under the rule for 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 small 
entities.
    20. The Fourth FNPRM will create no significant economic impact on 
small entities because Sprint Nextel Corporation will pay all 
reasonable costs associated with retuning incumbent licensees to the 
post-reconfiguration channel plans proposed by the Bureau. Further, 
once the channel plans proposed in the Fourth FNPRM are implemented, 
licensees will no longer be subject to on-going interference in the 
band and will therefore save costs that would otherwise be associated 
with resolving interference. Finally, the Bureau specifically seeks 
comment on alternatives to the proposed channel plans it proposes and 
will consider such alternatives as may be recommended in comments to 
the Fourth FNPRM.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    21. None.

Ordering Clauses

    22. Accordingly, it is ordered, pursuant to sections 4(i) and 332 
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 332, 
that this Fourth Further Notice of Proposed Rulemaking is adopted.
    23. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Fourth Further Notice of Proposed Rulemaking, including 
the Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

Federal Communications Commission.
David S. Turetsky,
Chief, Public Safety and Homeland Security Bureau.
[FR Doc. 2012-21450 Filed 8-29-12; 8:45 am]
BILLING CODE 6712-01-P