Accommodation of Advanced Digital Communications in the 117.975-137 MHz Frequency Band and Implementation of Flight Information Services in the 136-137 MHz Frequency Band

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document amends the Commission's rules to (1) permit the Federal Aviation Administration (FAA) to use five additional channels in the 136-136.475 MHz frequency band; (2) authorize the implementation of Flight Information Services-Broadcast (FIS-B) in the 136-137 MHz band; (3) accommodate digital communications systems throughout the 117.975-137 MHz aeronautical radio spectrum; and (4) clarify that five channels previously reserved for special purpose aeronautical enroute operations in the Gulf of Mexico Region—136.775 MHz, 136.800 MHz, 136.825 MHz, 136.850 MHz and 136.875 MHz—are no longer so reserved, and thus may be licensed for general purpose aeronautical enroute operations without geographical limitation. The Commission has adopted these amendments in response to petitions for rulemaking filed by the Small Aircraft Manufacturers Association and the FAA, respectively, requesting that the Commission amend its rules to permit the implementation of FIS-B and other digital communications systems, and in response to comments on those petitions by Aeronautical Radio, Inc. and other organizations representing the aviation industry. These rule amendments will enhance the safety of aviation by alleviating spectrum congestion in the aeronautical radio frequency bands and by paving the way for the introduction of FIS-B and other new digital communications services.

EFFECTIVE DATE:

Effective June 14, 2001.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Tobias, Wireless Telecommunications Bureau at (202) 418-0680.

SUPPLEMENTARY INFORMATION:

1. This is a summary of the Commission's Report and Order (R&O), FCC 01-122, adopted on April 5, 2001, and released on April 13, 2001. The full text of this R&O is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, S.W., Washington, D.C. 20554. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20037.

Summary of Report and Order

2. Based on the record in this proceeding, we conclude that the 136-137 MHz frequency band should remain allocated for non-Government use on a primary basis, but that the FAA should have access to the five channels in that frequency band that have been held in reserve, 136.100 MHz, 136.200 MHz, 136.275 MHz, 136.375 MHz, and 136.475 MHz. Maintaining the existing allocation will protect the private sector's current use of the 136-137 MHz frequencies for aircraft operational control communications without having a negative impact on the FAA's existing rights to use the lower channels on a shared basis for air traffic control purposes. In addition, the existing allocation of the band remains consistent with the Final Acts of the 1979 and 1987 World Administrative Radio Conferences. We also believe that the public interest will be served by extending the FAA's existing shared access to 136-137 MHz spectrum to include the specified additional five frequencies. This action will permit the deployment of Flight Information Services-Broadcast (FIS-B) to go forward as contemplated by the FAA and the civil aviation industry.

3. We also conclude that we should accommodate digital communications in the 117.975-137 MHz band and allow the use of both VHF Digital Link Mode 2 and VHF Digital Link Mode 3 technology throughout the band without limitation. This action will help to alleviate congestion in the VHF aeronautical spectrum and will permit the introduction of FIS-B and other advanced services that will enhance the safety of flight. We also believe that placing no restrictions on the types of digital technologies that may operate in the 117.975-137 MHz band will promote flexibility and efficiency during the transition to digital aviation communications systems. It will allow the FAA to move ahead with its plans to deploy a VHF Digital Link Mode 3 system in the near future, while at the same time addressing aviation industry concerns that the significant investment in VHF Digital Link Mode 2 technology not be stranded.

4. We further conclude that FIS-B should be authorized in the 136-137 MHz band. The desire to accommodate FIS-B in the 136-137 MHz band was a primary impetus for this rulemaking proceeding, and all parties agree that deployment of FIS-B will serve the public interest. This action paves the way for the implementation of a new digital data service that will enhance flight safety in the frequency band identified by both the FAA and the industry as most suitable for that service. We designate as FIS-B frequencies the four frequencies identified by the FAA and the civil aviation industry in their pleadings and, consistent with the definition of FIS-B as a ground-to-air service, we will prohibit the use of the FIS-B frequencies for transmissions from aircraft. Prohibiting aircraft transmission will ensure that FIS-B is used for its intended purpose, will promote spectrum efficiency, and will minimize the time for needed for aircraft reception of an entire FIS-B data transmission.

5. Finally, we clarify that the reservation of six channels—136.750 MHz, 136.775 MHz, 136.800 MHz, 136.825 MHz, 136.850 MHz and 136.875 MHz—for special purpose aeronautical enroute services (helicopter flight following systems) in the Gulf of Mexico Region has expired, and we make five of the channels, all but 136.750 MHz, available for general purpose aeronautical enroute service both inside and outside the Gulf of Mexico Region. The reservation of these channels for helicopter flight following systems in the Gulf of Mexico Region expired on January 1, 1994. Of the six channels, only 136.750 MHz was licensed for a helicopter flight following system prior to the January 1, 1994, expiration date. Accordingly, the frequency 136.750 MHz should remain designated for special purpose enroute services in the Gulf of Mexico Region. Removing the restriction on the five other channels is consistent with previous FCC determinations and will provide needed additional spectrum resources for general purpose aeronautical enroute service.

Final Regulatory Flexibility Analysis (FRFA)

6. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM), 65 FR 41032, July 3, 2000, prepared in this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comments on the IRFA. This present FRFA conforms to the RFA.

A. Need for, and Objectives of, the Report and Order

7. Our objective in this proceeding is to address increasing spectrum congestion within the 117.975-136 MHz band stemming from increasing air traffic control communications requirements that cause frequency assignments in this band to grow about four percent annually. To alleviate this congestion in spectrum used for aviation communications vital to the safety of flight, while providing the Federal Aviation Administration (FAA) with the latitude it needs to meet its statutory role in administering the civil aviation communications spectrum, there needs to be a transition to new digital communications technology. The Report and Order and the rules adopted therein accommodate this need by revising technical requirements so as to permit the introduction of new digital aviation communication systems in the 117.975-136 MHz band generally, and the introduction specifically of a new digital data service known as Flight Information Service-Broadcast (FIS-B) on four channels in the 136-137 MHz portion of the band. The adopted rules further alleviate problems of spectrum scarcity in the 136-137 MHz band by giving the FAA shared access to five additional frequencies between 136.000 MHz and 136.475 MHz and by clarifying the availability for general purpose aeronautical enroute service communications of five frequencies between 136.750 MHz and 136.875 MHz, inclusive.

II. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

8. No comments were filed in direct response to the IRFA.

III. Description and Estimate of the Number of Small Entities to Which the Adopted Rules Will Apply

9. Under the RFA, small entities may include small organizations, small businesses, and small governmental jurisdictions, or entities. 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 that: (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. The statutory definition of a small business applies “unless an agency after consultation with the Office of Advocacy of the SBA, 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.”

10. A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. The definition of “small governmental jurisdiction” is one with a population of fewer than 50,000. There are 85,006 governmental jurisdictions in the nation. 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 has populations of fewer than 50,000. However, this number includes 38,978 counties, cities and towns, and, of those, 37,556, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all government entities. Thus, of the 85,006 governmental entities, we estimate that 96 percent, or about 81,600, are small entities that may be affected by our rules. Nationwide, there are 4.44 million small business firms, according to SBA reporting data.

11. The rules adopted in this Report and Order will affect small businesses that use, manufacture, design, import, or sell transceivers or other radio equipment intended to operate in the frequency band 117.975-137 MHz for the provision of aviation communications. There are no Commission-imposed requirements, however, for any entity to use these products. The adopted rules will benefit small entities that use such equipment, moreover, because they will enhance the safety and efficiency of aircraft navigation. At this time, the Commission does not have access to data that would permit a meaningful estimate of the number of small entities potentially affected by the adopted rules. Therefore, we will use the SBA definition of manufacturers of Radio and Television Broadcasting and Communications Equipment. According to the SBA's regulations, manufacturers of transceivers and radio equipment must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicates that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would be classified as small entities. The Census Bureau category is very broad, and specific figures are not available as to how many of these firms are exclusive manufacturers of transceivers and radio equipment or how many are independently owned and operated.

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

12. No new reporting, recordkeeping, or other compliance requirements would be imposed on applicants or licensees as a result of the actions taken in this rulemaking proceeding.

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

13. 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: (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. The rules adopted in the Report and Order do not impose any new reporting or compliance requirements, but only permit additional uses of existing Aviation Radio Service frequencies and the establishment of a new service. The rules adopted will accommodate the deployment of new digital transceivers designed to operate in the VHF aeronautical frequency bands, but the Commission has not specified design standards for such equipment; the Report and Order affects only the technical, performance standards for the use of the frequencies at issue. These rules reflect, moreover, a consensus among the FAA and the civil aviation industry regarding the best means of implementing FIS-B and other advanced digital aviation communications services. No parties commenting on the NPRM recommended any significant alternatives to the rules adopted.

VI. Federal Rules That May Duplicate, Overlap, or Conflict With the Adopted Rules

14. None.

Report to Congress: The Commission will send a copy of this Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will end a copy of this Report and Order, including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register. See 5 U.S.C. 604(b).

Ordering Clauses

15. Authority for issuance of this Report and Order is contained in sections 1, 4(i), 302, 303(f) and (r), 332, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 302, 303(f) and (r), 337.

16. Pursuant to sections 1, 4(i), 302, 303(f) and (r), 332, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 302, 303(f) and (r), 337, that parts 2 and 87 of the Commission's Rules, 47 CFR parts 2 and 87, ARE AMENDED as set forth in appendix B, effective thirty days after publication of this Report and Order in the Federal Register.

17. The Commission's Consumer Information 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.

List of Subjects

47 CFR Part 2

• Radio; Telecommunications

47 CFR Part 87

• Air transportation; Radio

Final Rules

For reasons discussed in the preamble, Title 47 of the Code of Federal Regulations, parts 2 and 87 are amended as follows:

PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS

1. The authority citation for Part 2 continues to read as follows:

Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.

2. Section 2.106 is amended by revising footnote US244 to read as follows:

PART 87—AVIATION SERVICES

3. The authority citation for Part 87 continues to read as follows:

Authority: 47 U.S.C. 154, 303, and 307(e), unless otherwise noted.

4. In § 87.131, amend the table by revising the entries for Aeronautical enroute and aeronautical fixed, Airport control tower, and Aircraft (Communication) to read as follows:

5. In § 87.133, amend the table in paragraph (a) by revising the heading for (5) Band—100-137 MHz to read (5) Band—108-137 MHz, and by revising the entries below that heading for Aeronautical stations and Aircraft and other mobile stations in the Aviation Services and by adding notes 12 and 13 to the table to read as follows:

6. In § 87.137, amend the table in paragraph (a) by adding an additional entry for G1D immediately below the existing entries for G1D to read as follows:

7. Amend § 87.139 by adding new paragraph (k) to read as follows:

8. In § 87.173, amend the table in paragraph (b) by revising the entries from 136.00-136.075 MHz through 136.975 MHz to read as follows:

9. Amend § 87.187 by adding new paragraph (dd) to read as follows:

10. In § 87.263, amend by revising paragraphs (a)(1) and (a)(5) to read as follows: