[Federal Register: May 30, 2007 (Volume 72, Number 103)]
[Proposed Rules]
[Page 29930-29933]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my07-25]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 27
[WT Docket No. 06-150; WT Docket No. 06-169; PS Docket No. 06-229; WT
Docket No. 96-86; DA 07-2197]
Comment Sought on Google Proposals Regarding Service Rules for
700 MHz Spectrum
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Wireless Telecommunications Bureau seeks
comments on a proposal recently submitted by Google regarding service
rules for the 700 MHz spectrum that is to be auctioned. Google requests
that the Commission clarify the service rules governing the 700 MHz
bands and declare that the rules allow the use of ``dynamic auction
mechanisms'' such as real-time auctions and per-device registration
fees. Google also requests that the Commission posit at least whether
it would be in the public interest to mandate the use of such
mechanisms for some, or even all, of the commercial spectrum to be
auctioned in the 700 MHz bands. The document also seeks comment on
Google's proposal that the unpaired 6 megahertz E Block (722-728 MHz)
in the current Lower 700 MHz band plan should be designated primarily
or exclusively to be used for deployment of broadband communications
platforms. Finally, the document seeks comment on the Initial
Regulatory Flexibility Analysis.
DATES: Comments due on or before June 6, 2007 and reply comments are
due on or before June 13, 2007.
ADDRESSES: You may submit comments, identified by WT Docket No. 06-150;
WT Docket No. 06-169; PS Docket No. 06-229; WT Docket No. 96-86, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/.
Follow the instructions for submitting comments.
E-mail: Include the docket numbers in the subject line of
the message.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: 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: John Branscome, Spectrum and
Competition Policy Division, Wireless Telecommunications Bureau, at
202-418-8205 or by e-mail at John.Branscome@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Public Notice
released May 24, 2007, DA 07-2197. 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 on or before the date indicated on the first
page of this document. 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.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Parties may also submit
an electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to ecfs@fcc.gov, and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies 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.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S.
Postal Service mail). All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes 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.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to fcc504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
Synopsis of the Public Notice
On April 27, 2007, the Commission released a Report and Order (72
FR 27688) and Further Notice of Proposed Rulemaking (72 FR 24238),
which addresses rules governing wireless licenses in the 698-806 MHz
Band (herein, the ``700 MHz Band''). This spectrum currently is
occupied by television broadcasters in TV channels 52-69 and is being
made available for wireless services, including public safety and
commercial services, as a result of the digital television (``DTV'')
transition. On May 21, 2007, Google Inc. (``Google'') filed an ex parte
letter asking that the Commission seek immediate comment on certain
proposals regarding the service rules for the 700 MHz Band spectrum
that is to be auctioned. In the Public Notice, the Wireless
Telecommunications Bureau seeks comment on those proposals as well as
any other alternative approaches for conditioning the licenses that
will be auctioned.
Google requests that the Commission clarify that the Commission's
existing rules governing commercial spectrum in the 700 MHz Band
already allow licensees to utilize ``dynamic auction mechanisms,'' such
as real-time auctions and per-device registration fees. In Google's
real-time airwaves auction model, a licensee could bestow the right to
transmit an amount of power for a unit of time, with the total amount
of power in any location being limited to a specified cap. According to
Google, as part of a real-time auction process,
[[Page 29931]]
the communications device itself could become key to the payment
process. For example, a consumer's price to purchase a device could
include an airwaves registration fee that would grant the ability to
gain unlimited use at a specified power level. The Public Notice seeks
comment broadly on the extent to which the Commission's existing rules
permit 700 MHz licensees to employ such ``dynamic spectrum management
techniques.'' To the extent they are not currently permitted, the
Notice asks whether the Commission should modify any of its rules to
permit their use.
Google also requests that the Commission posit at least whether it
would be in the public interest to mandate the use of such techniques
for some, or even all, of the commercial spectrum to be auctioned in
the 700 MHz bands. The Public Notice seeks comment on whether the
Commission should mandate such an approach, and if so, to what extent.
The Public Notice also seeks comment on Google's proposal that the
unpaired 6 megahertz E Block (722-728 MHz) in the current Lower 700 MHz
band plan should be designated primarily or exclusively to be used for
deployment of interactive, two-way broadband services; connected to the
public internet; and used to support innovative software-based
applications, services and devices.
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(the ``RFA''), the Commission has prepared this Initial Regulatory
Flexibility Analysis (``IRFA'') of the possible significant economic
impact of the policies and rules proposed in the Public Notice on a
substantial number of small entities. Written public comments are
requested on this IRFA. Comments must be identified as responses to the
IRFA and must be filed by the deadline for comments on the Public
Notice. The Commission will send a copy of the Public Notice, including
this IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (``SBA''). In addition, the Public Notice and IRFA (or
summaries thereof) will be published in the Federal Register.
Although Section 213 of the Consolidated Appropriations Act of 2000
provides that the RFA shall not apply to the rules and competitive
bidding procedures for frequencies in the 746-806 MHz Band, the
Commission believes that it would serve the public interest to analyze
the possible significant economic impact of the proposed policy and
rule changes in this band on small entities. Accordingly, this IRFA
contains an analysis of this impact in connection with all spectrum
that falls within the scope of this Public Notice, including spectrum
in the 746-806 MHz Band.
A. Need for, and Objectives of, the Proposed Rules
The Public Notice seeks comments broadly on a proposal recently
submitted by Google and on any other alternative approaches for
conditioning the licenses that will be auctioned in the 700 MHz band.
Google requests that the Commission clarify the service rules governing
the 700 MHz bands and declare that the rules allow the use of ``dynamic
auction'' mechanisms such as real-time auctions and per-device
registration fees. Google also asks the Commission to consider whether
it would be in the public interest to mandate such mechanisms for some,
or even all, of the commercial spectrum to be auctioned in the 700 MHz
bands. The Public Notice also seeks comment on Google's proposal that
the unpaired 6 MHz E Block (722-728 MHz) in the current Lower 700 MHz
band plan should be designated primarily or exclusively to be used for
deployment of broadband communications platforms.
B. Legal Basis
The legal authority for the actions proposed in this Public Notice
are contained in sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 208, 214,
301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333,
336, 337, 614, 615, and 710 of the Communications Act of 1934, as
amended, 47 U.S.C. Sec. Sec. 151, 152, 154(i), 155(c), 157, 160, 201,
202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319,
324, 332, 333, 336, 337, 534, 535, and 610.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
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 Small Business
Administration (``SBA'').
Small Businesses. Nationwide, there are a total of approximately
22.4 million small businesses, according to SBA data.
Small Organizations. Nationwide, there are approximately 1.6
million small organizations.
Governmental Entities. The term ``small governmental jurisdiction''
is defined as ``governments of cities, towns, townships, villages,
school districts, or special districts, with a population of less than
fifty thousand.'' As of 2002, there were approximately 87,525
governmental jurisdictions in the United States. This number includes
38,967 county governments, municipalities, and townships, of which
37,373 (approximately 95.9%) have populations of fewer than 50,000, and
of which 1,594 have populations of 50,000 or more. Thus, we estimate
the number of small governmental jurisdictions overall to be 85,931 or
fewer.
Wireless Service Providers. The SBA has developed a small business
size standard for wireless firms within the two broad economic census
categories of ``Paging'' and ``Cellular and Other Wireless
Telecommunications.'' Under both categories, the SBA deems a wireless
business to be small if it has 1,500 or fewer employees. For the census
category of Paging, Census Bureau data for 2002 show that there were
807 firms in this category that operated for the entire year. Of this
total, 804 firms had employment of 999 or fewer employees, and three
firms had employment of 1,000 employees or more. Thus, under this
category and associated small business size standard, the majority of
firms can be considered small. For the census category of Cellular and
Other Wireless Telecommunications, Census Bureau data for 2002 show
that there were 1,397 firms in this category that operated for the
entire year. Of this total, 1,378 firms had employment of 999 or fewer
employees, and 19 firms had employment of 1,000 employees or more.
Thus, under this second category and size standard, the majority of
firms can, again, be considered small.
Under this Public Notice, any of the changes to the Commission's
rules which may occur as a result of the Public Notice would be limited
to the 698-806 MHz spectrum band. Since this rulemaking proceeding
applies to services in that band, this IRFA analyzes the number of
small entities affected on a service-by-service basis. When identifying
small entities that could be affected by the Commission's new rules,
this IRFA provides information
[[Page 29932]]
describing auctions results, including the number of small entities
that were winning bidders. However, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily reflect the total number of small entities currently in a
particular service. The Commission does not generally require that
licensees later provide business size information, except in the
context of an assignment or transfer of control application where
unjust enrichment issues are implicated. Consequently, to assist the
Commission in analyzing the total number of potentially affected small
entities, the Commission requests commenters to estimate the number of
small entities that may be affected by any rule changes that might
result from this Public Notice.
700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, the
Commission adopted size standards for ``small businesses'' and ``very
small businesses'' for purposes of determining their eligibility for
special provisions such as bidding credits and installment payments. A
small business in this service is an entity that, together with its
affiliates and controlling principals, has average gross revenues not
exceeding $40 million for the preceding three years. Additionally, a
``very small business'' is an entity that, together with its affiliates
and controlling principals, has average gross revenues that are not
more than $15 million for the preceding three years. SBA approval of
these definitions is not required. An auction of 52 Major Economic Area
(MEA) licenses commenced on September 6, 2000, and closed on September
21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine
bidders. Five of these bidders were small businesses that won a total
of 26 licenses. A second auction of 700 MHz Guard Band licenses
commenced on February 13, 2001, and closed on February 21, 2001. All
eight of the licenses auctioned were sold to three bidders. One of
these bidders was a small business that won a total of two licenses.
Upper 700 MHz Band Licenses. The Commission released a Report and
Order authorizing service in the Upper 700 MHz band. An auction for
these licenses, previously scheduled for January 13, 2003, was
postponed.
Lower 700 MHz Band Licenses. The Commission adopted criteria for
defining three groups of small businesses for purposes of determining
their eligibility for special provisions such as bidding credits. The
Commission has defined a small business as an entity that, together
with its affiliates and controlling principals, has average gross
revenues not exceeding $40 million for the preceding three years. A
very small business is defined as an entity that, together with its
affiliates and controlling principals, has average gross revenues that
are not more than $15 million for the preceding three years.
Additionally, the Lower 700 MHz Band has a third category of small
business status that may be claimed for Metropolitan/Rural Service Area
(MSA/RSA) licenses. The third category is entrepreneur, which is
defined as an entity that, together with its affiliates and controlling
principals, has average gross revenues that are not more than $3
million for the preceding three years. The SBA has approved these small
size standards. An auction of 740 licenses (one license in each of the
734 MSAs/RSAs and one license in each of the six Economic Area
Groupings (EAGs)) commenced on August 27, 2002, and closed on September
18, 2002. Of the 740 licenses available for auction, 484 licenses were
sold to 102 winning bidders. Seventy-two of the winning bidders claimed
small business, very small business or entrepreneur status and won a
total of 329 licenses. A second auction commenced on May 28, 2003, and
closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and
476 CMA licenses. Seventeen winning bidders claimed small or very small
business status and won sixty licenses, and nine winning bidders
claimed entrepreneur status and won 154 licenses.
Public Safety Radio Licensees. As a general matter, public safety
radio licensees include police, fire, local government, forestry
conservation, highway maintenance, and emergency medical services. The
SBA rules contain a small business size standard for cellular and other
wireless telecommunications companies, which encompasses business
entities engaged in wireless communications employing no more than
1,500 persons. According to Census Bureau data for 2002, in this
category there were 8,863 firms that operated for the entire year. Of
this total, 401 firms had 100 or more employees, and the remainder had
fewer than 100 employees. With respect to local governments, in
particular, since many governmental entities as well as private
businesses comprise the licensees for these services, we include under
public safety services the number of government entities affected.
Wireless Communications Equipment Manufacturers; Radio and
Television Broadcasting and Wireless Communications Equipment
Manufacturing. The Census Bureau defines this category as follows:
``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: Transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' The SBA has developed a small business size
standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: All such firms having
750 or fewer employees. According to Census Bureau data for 2002, there
were a total of 1,041 establishments in this category that operated for
the entire year. Of this total, 1,010 had employment of under 500, and
an additional 13 had employment of 500 to 999. Thus, under this size
standard, the majority of firms can be considered small.
D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
Google requests that the Commission clarify that the existing rules
governing the commercial bands of the 700 MHz spectrum already allow
licensees to utilize what it describes as ``dynamic spectrum management
techniques.'' Google provides as examples ``real-time airwaves
auctions'' and ``device-driven registration.'' According to Google, in
real-time airwaves auctions, a licensee can bestow the right to
transmit an amount of power for a unit of time, with the total amount
of power in any location being limited to a specified cap. With a per-
device registration process, Google states, the communications device
itself can become a key to the payment process, and that a consumer's
price to purchase a device could include an airwaves registration fee
that would grant the ability to gain unlimited use at a specified power
level. Under its proposal, Google states that a licensee would simply
purchase spectrum initially in the up-front auction, and then recover
its costs over time by charging third parties for real-time and place
use. The Public Notice seeks comment broadly on the extent to which the
Commission's existing rules permit 700 MHz licensees to employ such
``dynamic spectrum management techniques,'' and on whether the
Commission should modify any of its rules to permit their use.
The Public Notice also seeks comment on Google's request that the
Commission posit at least whether it would be in the public interest to
[[Page 29933]]
mandate the use of such techniques for some, or even all, of the
commercial spectrum to be auctioned in the 700 MHz bands.
The Public Notice also seeks comment on Google's proposal that the
unpaired 6 MHz E Block (722-728 MHz) in the current Lower 700 MHz band
plan should be designated primarily or exclusively to be used for
deployment of interactive, two-way broadband services; connected to the
public internet; and used to support innovative software-based
applications, services and devices.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
The RFA requires an agency to describe any significant,
specifically small business, 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 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.''
The Public Notice seeks comment on the relative merits of dynamic
auction techniques. The Public Notice also seeks comment on whether the
Commission should designate the unpaired 6 MHz E Block (722-728 MHz) in
the current Lower 700 MHz band plan primarily or exclusively for
deployment of broadband communications platforms. To assist the
Commission in its analysis, commenters are requested to provide
information regarding how small entities would be affected if the
Commission were to adopt Google's proposals. Commenters should also
provide information on alternative approaches to alleviate any
potential burdens on small entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
Federal Communications Commission.
James D. Schlichting,
Deputy Chief.
[FR Doc. E7-10417 Filed 5-29-07; 8:45 am]
BILLING CODE 6712-01-P