Frequency Coordination of Public Safety Frequencies in the Private Land Mobile Radio Below 470 MHz Band

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document the Federal Communications Commission (Commission) seeks comment on whether to modify the frequency coordination procedures for Public Safety Pool frequencies in the Private Land Mobile Radio (PLMR) Services below 470 MHz by expanding competitive coordination. The Commissions also solicits comments on potential rule changes, whether modification of the existing frequency coordination process is warranted to ensure the quality of recommendations, minimize unwarranted application processing costs and delays, and encourage sharing and new technologies where appropriate while preserving the integrity of public safety communications systems in the Public Safety Pool below 470 MHz. Also, the Commission grants a Petition for Rulemaking (Petition) filed by the Association of Public-Safety Communications Officials-International, Inc. (APCO). The Petition requests the commencement of a proceeding to amend Commission's Rules for expansion of competitive frequency coordination for Public Safety Pool frequencies in the PLMR Services frequencies below 470 MHz. Finally, the Commission also seeks comment on retaining the existing frequency coordination rules and policies and alternatives to competitive frequency coordination.

DATES:

Comments are due on or before December 5, 2002 and reply comments are due on or before December 20, 2002.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., TW-A325, Washington, DC 20554. See Supplementary Information for filing instructions.

FOR FURTHER INFORMATION CONTACT:

John Evanoff, Esquire, at (202) 418-0848, jevanoff@fcc.gov, Policy and Rules Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 02-255, adopted on September 16, 2002, and released on September 19, 2002. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365 or at bmillin@fcc.gov.

1. In this NPRM, we solicit comment on whether to modify the existing frequency coordination procedures for the Public Safety Pool below 470 MHz by expanding competitive frequency coordination. We also grant the February 21, 2001 Petition for Rulemaking (Petition) filed by the Association of Public-Safety Communications Officials-International, Inc. (APCO) requesting the commencement of a proceeding to amend § 90.20(c) of the Commission's Rules.

I. Procedural Matters

A. Ex Parte Rules—Permit-But-Disclose Proceeding

2. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, if they are disclosed as provided in the Commission's Rules. See generally 47 CFR 1.1200(a), 1.1203, and 1.1206.

B. Initial Regulatory Flexibility Analysis

3. As required by section 603 of the regulatory Flexibility Act, 5 U.S.C. 603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the expected impact on small entities of the proposals suggested in this document. The IRFA is set forth in Appendix A of the NPRM. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in this NPRM, but they must have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA) in accordance with Section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 603(a).

C. Initial Paperwork Reduction Analysis

4. This NPRM contains a proposed information collection. As part of its continuing effort to reduce paperwork burdens, we invite the general public and the Office of Management and Budget (OMB) to take this opportunity to comment on the information collections contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this NPRM; OMB comments are due on or before January 6, 2003. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

D. Alternative Formats

5. Alternative formats (computer diskette, large print, audio cassette and Braille) are available from Brian Millin at (202) 418-7426, TTY (202) 418-7365, or at bmillin@fcc.gov. This NPRM can also be downloaded at http://www.fcc.gov.

E. Pleading Dates

6. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before December 5, 2002, and reply comments on or before December 20, 2002. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

7. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.htm. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters 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 for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply. 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 appear in the caption of this proceeding, commenters 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). The Commission's contractor, Vistronix, Inc., 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 8:00 a.m. to 7:00 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 mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

8. Written comments by the public on the proposed information collections are due on or before December 5, 2002. Written comments must be submitted by the OMB on the proposed information collections on or before January 6, 2003. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to jboley@fcc.gov and to Kim Johnson, OMB Desk Officer, 10236 NEOP, 725 17th Street, NW., Washington, DC 20503, or via the Internet Kim_A._Johnson@omb.eop.gov.

II. Initial Regulatory Flexibility Analysis

9. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this NPRM. 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 this NPRM provided above in paragraph 6, supra. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

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

10. The Commission has stated that it would revisit competitive coordination in the PLMR public safety frequencies below 470 MHz. On February 21, 2001, the Association of Public Safety Communications Officials, International, Inc. (APCO) filed a petition for rulemaking recommending that the Commission introduce competitive coordination. Because the APCO Petition required changes to the Commission's Rules, APCO asked the Commission to adopt these rule changes. Presently, certain below 470 MHz frequencies are coordinated by designated frequency coordinators. APCO believes these proposed rule changes are needed in order to reduce cost and delays in processing applications for public safety frequencies below 470 MHz. Because of the continuing need for public safety spectrum, APCO believes that implementation of the rule changes proposed in its Petition is in the public interest. Therefore, the Commission seeks comment on whether to amend part 90 of its rules in order to effectuate the changes suggested in the Petition.

11. Commenters disagree with the Petition and urge the Commission to maintain the current coordination processes, or consider alternatives to the existing coordination processes. Commenters contend that the APCO proposal would undermine public safety communications if implemented. Because of the need to improve efficiency in the licensing of public safety spectrum and the need to protect public safety communications, commenters suggest that the Commission should seek comment on maintaining the existing system or examine alternatives to the rule changes proposed in the Petition. With regard to alternatives, commenters suggest the Commission consider whether a contour overlap analysis would be appropriate in the Public Safety Pool below 470 MHz. Therefore, the Commission seeks comment on whether to maintain or amend Part 90 of its rules in order to retain the current processes as suggested in the comments or effectuate the changes suggested in the comments.

B. Legal Basis

12. Authority for the proposed rules included in this issuance of this NPRM is contained in sections 1, 4(i), 302, 303(f), and (r), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(i), 302, 303(f) and (r), and 332.

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

13. 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 defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of 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. Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (ninety-one percent) are small entities. Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the proposed rules, if adopted.

14. Public Safety Pool and Governmental entities. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. The SBA rules contain a definition for small radiotelephone (wireless) companies, which encompasses business entities engaged in radiotelephone communications employing no more that 1,500 persons. There are a total of approximately 127,540 licensees within these services. Governmental entities as well as private businesses comprise the licensees for these services. The RFA also includes small governmental entities as a part of the regulatory flexibility analysis. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, the Commission estimates that 81,600 (91 percent) are small entities.

15. Estimates for PLMR Licensees. Private land mobile radio systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a definition of small entities specifically applicable to PLMR users, nor has the SBA developed any such definition. The SBA rules do, however, contain a definition for small radiotelephone (wireless) companies. Included in this definition are business entities engaged in radiotelephone communications employing no more that 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms, out of a total of 1,178 such firms that operated during 1992, had 1,000 or more employees. For the purpose of determining whether a licensee is a small business as defined by the SBA, each licensee would need to be evaluated within its own business area. The Commission's fiscal year 1994 annual report indicates that, at the end of fiscal year 1994, there were 1,101,711 licensees operating 12,882,623 transmitters in the PLMR bands below 512 MHz.

16. Estimates for Frequency Coordinators. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to spectrum frequency coordinators. Therefore the Commission concluded that the closest applicable definition under SBA rules is Business Associations (SIC 8611). The SBA defines a small business association as an entity with $5 million or less in annual receipts. There are 18 entities certified to perform frequency coordination functions under Part 90 of our Rules. However, the Commission is unable to ascertain how many of these frequency coordinators are classified as small entities under the SBA definition. The Census Bureau indicates that 97% of business associations have annual receipts of $4.999 million or less and would be classified as small entities. The Census Bureau category is very broad and does not include specific figures for firms that are engaged in frequency coordination. Therefore, for the purposes of this IRFA, the Commission estimates that almost all of the 18 spectrum frequency coordinators are small as defined by the SBA.

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

17. As part of our consideration of whether to introduce competitive coordination in the below-470 MHz public safety band, thereby reducing application processing costs and delays, we continue to believe that each public safety frequency coordinator that chooses to recommend below-470 MHz Public Safety frequencies must be knowledgeable about public safety plans. In this connection, we seek comment on whether to require certified public safety coordinators to adopt a system for information exchange to ensure that applications, once submitted, are not in conflict with relevant public safety plans or other applications being submitted simultaneously or concurrently. In this connection, we will leave the issue of whether to use a real-time common database to the coordinators' discretion.

18. We seek comment on whether to require that coordinators provide notification of all frequency recommendations for Public Safety below-470 MHz frequencies to every certified in-pool coordinator that is also certified to coordinate that frequency within one business day of making such recommendations. This notification requirement, we believe, could improve the speed and quality of recommendations. In the interests of efficiency and fairness, notification must be made to all in-pool coordinators at approximately the same time. To encourage and facilitate the cooperation between in-pool coordinators, we propose to require that each coordinator communicate at least once each business day with each other in-pool coordinator. Even on days when there are no coordinations, communication between coordinators would be required.

19. We seek comment on whether to maintain the existing concurrence mechanism for frequency recommendations for Public Safety below-470 MHz frequencies. Presently, coordinators are required to obtain the concurrence of certain coordinators when coordinating certain below-470 MHz public safety frequencies. This requirement, we believe, could continue to ensure that frequency coordination recommendations are consistent with existing public safety plans.

20. We seek comment on whether to amend the existing concurrence procedure by requiring coordinators to conduct a contour overlap analysis. Presently, coordinators in the Industrial/Business Pool are required to determine whether concurrence from a designated frequency coordinator or an affected licensee is required before coordinating certain frequencies. This requirement could continue to ensure that frequency coordination recommendations are consistent with existing public safety plans while improving efficiency in the licensing of public safety spectrum below-470 MHz.

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

21. 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.

22. Presently, the majority of below-470 MHz frequencies are coordinated by designated frequency coordinators. Any of the four certified public safety coordinators, however, may coordinate frequencies designated for frequency coordination by a specific frequency coordinator. Under such circumstances, a frequency coordinator must obtain the consent of the designated frequency coordinator prior to coordinating an application. While this consent requirement may delay application processing and increase application costs it may also ensure that frequency recommendation are consistent with relevant public safety plans. We seek comment on whether maintaining the existing concurrence requirement would affect small entities.

23. As part of our consideration of whether to introduce competitive coordination in the below-470 MHz public safety band, each public safety frequency coordinator that chooses to recommend below-470 MHz Public Safety frequencies may be required to provide notification of all frequency recommendations for Public Safety below-470 MHz frequencies. We believe that the proposed notification system could minimize the economic impact on small entities by reducing application processing delays and costs, however, commenters believe that the notification system could impair public safety systems. We also believe that the suggested contour overlap analysis could reduce application processing costs and delays while ensuring applications are filed consistent with relevant public safety plans. We seek comment on how the changes proposed and alternatives suggested in the NPRM would affect small entities.

24. The proposal contained herein has been analyzed with respect to the Paper Reduction Act of 1980 and found to contain a proposed information collection that will not increase or decrease burden hours imposed on the public. We seek comment on how the proposed information collection contained herein will affect the public.

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

25. None.

III. Ordering Clauses

26. Pursuant to sections 1, 4(j), 302, 303(f) and (r), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(j), 302, 303(f) and (r), 332, the Petition for Rulemaking filed by the Association of Public Safety Communications Officials, International, Inc., on February 21, 2001, is granted to the extent indicated herein.

27. Pursuant to Sections 1, 4(j), 302, 303(f) and (r), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(j), 302, 303(f) and(r), 332, Notice is hereby given of the proposed regulatory changes described in this Notice of Proposed Rulemaking, and that comment is sought on these proposals.

28. The Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, RM-10077, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with Section 603(a) of the Regulatory Flexibility Act.

List of Subjects in 47 CFR Part 90

• Communications equipment
• Radio
• Reporting and recordkeeping requirements

Potential Rule Changes

Part 90 of Chapter 1 of Title 47 of the Code of Federal Regulations is proposed to be amended as follows:

PART 90—PRIVATE LAND MOBILE RADIO SERVICES

1. The authority citation for part 90 continues to read as follows.

Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).

2. Section 90.20 would be amended by adding paragraph (c)(2)(iii)and by revising paragraph (c)(3) to read as follows: