Implementing Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation Act of 2012

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission) sought comment on certain proposals to implement provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (Public Safety Spectrum Act) governing deployment of a nationwide public safety broadband network in the 700 MHz band under a nationwide license issued to the First Responder Network Authority (FirstNet). In particular, the Commission considered the adoption of initial rules to protect against harmful radio frequency interference in the spectrum designated for public safety services, as well as other matters related to FirstNet's license and to facilitating the transition directed under the Public Safety Spectrum Act. The proposals considered in the document are intended to provide a solid foundation for FirstNet's operations, taking into account FirstNet's need for flexibility in carrying out its statutory duties under the Public Safety Spectrum Act to establish a nationwide public safety broadband network.

DATES:

Submit comments on or before May 24, 2013. Submit reply comments on or before June 10, 2013.

FOR FURTHER INFORMATION CONTACT:

Gene Fullano, Federal Communications Commission, Public Safety and Homeland Security Bureau, 445 12th Street SW., Room 7-C747, Washington, DC 20554. Telephone: (202)-418-0492, email: genaro.fullano@fcc.gov.

SUPPLEMENTARY INFORMATION:

In the Notice of Proposed Rulemaking (NPRM), FCC 13-31, adopted March 7, 2013, and released March 8, 2013, the Commission seeks comment on certain proposals to implement provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (“Public Safety Spectrum Act” or “Act”) governing deployment of a nationwide public safety broadband network in the 700 MHz band under a nationwide license issued to the FirstNet. The NPRM addresses technical service rules for the new public safety broadband network to be established pursuant to the Public Safety Spectrum Act. It then considers the Commission's statutory responsibilities as they relate to oversight of FirstNet. Finally, it addresses different classes of incumbents now occupying portions of the spectrum licensed to FirstNet. These proposals are based on the Commission's established authority under the Communications Act to regulate use of the spectrum consistent with the public interest, convenience and necessity, including the authority to prescribe power limits and prevent interference between stations licensed by the Commission, as well as its licensing authority over FirstNet provided by the Public Safety Spectrum Act, and its authority under that Act “to take all actions necessary to facilitate the transition” of the existing public safety broadband spectrum to FirstNet.

The Notice of Proposed Rulemaking is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0308/FCC-13-31A1.pdf.

Procedural Matters

Paperwork Reduction Act

The Notice of Proposed Rulemaking does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any 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

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 Notice of Proposed Rulemaking (Notice). 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 provided in this NPRM. The Commission will send a copy of this Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). 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

The Notice of Proposed Rulemaking (NPRM) seeks comment on proposals to implement provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (“Public Safety Spectrum Act” or “Act”) governing deployment of a nationwide public safety broadband network in the 700 MHz band.

The Public Safety Spectrum Act establishes the First Responder Network Authority (FirstNet) to oversee the construction and operation of this network as licensee of both the existing public safety broadband spectrum (763-769/793-799 MHz) and the spectrally adjacent D Block spectrum (758-763/788-793 MHz). The Act directs the Federal Communications Commission (FCC or Commission) to reallocate the D Block for public safety services, to license the D Block and the existing public safety broadband spectrum to FirstNet and to take other actions necessary to “facilitate the transition” of such existing spectrum to FirstNet.

Proposals in the NPRM are intended to provide a solid foundation for FirstNet's operations, taking into account FirstNet's need for flexibility in carrying out its statutory duties under the Public Safety Spectrum Act to establish a nationwide public safety broadband network.

This NPRM seeks comment in three areas. First, we address technical service rules for the new public safety broadband network to be established pursuant to the Public Safety Spectrum Act. We next seek comment on the exercise of the Commission's statutory responsibilities as they relate to oversight of FirstNet's operations. Finally, we seek comment on the transition of different classes of incumbents now occupying portions of the spectrum to be licensed to FirstNet. These proposals are based on our established authority under the Communications Act to regulate use of the spectrum consistent with the public interest, convenience and necessity, including the authority to prescribe power limits and prevent interference between stations licensed by the Commission, as well as our licensing authority over FirstNet provided by the Public Safety Spectrum Act, and our authority under the Public Safety Spectrum Act “to take all actions necessary to facilitate the transition” of the existing public safety broadband spectrum to FirstNet. We seek comment on the scope of our authority as it relates to these proposals, and how such authority can most appropriately accommodate the Public Safety Spectrum Act's delegation to FirstNet of the responsibility to develop “the technical and operational requirements of the network.” In offering these proposals, we acknowledge the crucial importance of FirstNet's endeavor and its need for flexibility in carrying out its obligations under the Public Safety Spectrum Act.

B. Legal Basis

The proposed action is authorized under Sections 1, 2, 4(i), 5(c), 7, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 337 and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 155(c), 157, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 337 and 403, and the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156 (2012).

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 rules adopted herein. 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”). Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the rules changes we propose in this NPRM.

As an initial matter, we observe that the Public Safety Spectrum Act does not contemplate that “small governmental jurisdictions” would be directly authorized to serve as operators of their own 700 MHz public safety broadband networks. Rather, the Spectrum Act charges a single entity, FirstNet, with constructing, operating and maintaining a 700 MHz public safety broadband network on a nationwide basis. Accordingly, the technical service rules and other requirements the NPRM proposes or considers for the combined 700 MHz public safety broadband spectrum—in which FirstNet will operate on a nationwide basis—will not directly affect a substantial number of small entities. The absence of a direct effect on a substantial number of small entities suggests that it is not necessary to prepare a regulatory flexibility analysis in connection with these proposed requirements.

Small Businesses, Small Organizations, and Small Governmental Jurisdictions. Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 27.5 million small businesses, according to the SBA. In addition, 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 2007, there were approximately 1, 621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 89,476 local governmental jurisdictions in the United States. We estimate that, of this total, as many as 88, 506 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

Public Safety Radio Licensees. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Because of the vast array of public safety licensees, the Commission has not developed a small business size standard specifically applicable to public safety licensees. The SBA rules contain a definition for Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications employing no more that 1,500 persons. With respect to local governments, in particular, since many governmental entities comprise the licensees for these services, we include under public safety services the number of government entities affected. According to Commission records, there are a total of approximately 133,870 licenses within these services. There are 2,442 licenses in the 4.9 GHz band, based on an FCC Universal Licensing System search of May 23, 2012. We estimate that fewer than 2,442 public safety radio licensees hold these licenses because certain entities may have multiple licenses.

Regional Planning Committees. Neither the Commission nor the SBA has developed a small business size standard specifically applicable to Regional Planning Committees (RPCs) and the National Regional Planning Council (NRPC). As described by the NRPC, “[t]he National Regional Planning Council (NRPC) is an advocacy body formed in 2007 that supports public safety communications spectrum management by Regional Planning Committees (RPC) in the 700 MHz and 800 MHz NPSPAC public safety spectrum as required by the Federal Communications Commission.” The NRPC states that “Regional Planning Committees consist of public safety volunteer spectrum planners and members that dedicate their time, in addition to the time spent in their regular positions, to coordinate spectrum efficiently and effectively for the purpose of making it available to public safety agency applicants in their respective region.” There are 54 formed RPCs and one unformed RPC. The Commission has not developed a small business size standard specifically applicable to RPCs and the NRPC. The SBA rules, however, contain a definition for Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications employing no more that 1,500 persons. Under this category and size standard, we estimate that all of the RPCs and the NRPC can be considered small.

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 2007, there were a total of 939 establishments in this category that operated for part or all of the entire year. According to Census bureau data for 2007, there were a total of 919 firms in this category that operated for the entire year. Of this total, 771 had less than 100 employees and 148 had more than 100 employees. Thus, under that size standard, the majority of firms can be considered small.

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

The two segments of the spectrum that will be licensed to FirstNet—the D Block and the existing public safety broadband spectrum—are currently regulated under separate FCC rule parts, Parts 27 and 90. The NPRM proposes the development of a unified set of technical service rules to govern this spectrum, largely by consolidating under Part 90 the requirements applicable to both segments. Because FirstNet will be the nationwide licensee of this spectrum, it will be primarily responsible on a nationwide basis for ensuring compliance with any such requirements that are ultimately adopted. Accordingly, we do not believe that these requirements would have a significant economic impact on a substantial number of small entities.

The NPRM also considers establishing certification requirements for equipment operated in the combined public safety broadband spectrum. These requirements would be applicable to entities, such as RF equipment manufacturers, seeking to certify equipment for operation in this spectrum. We observe that equipment certification is a longstanding Commission practice, widely applicable to equipment marketed for operation in radiospectrum licensed by the Commission. Any certification requirements adopted pursuant to the NPRM are unlikely to depart significantly from current practice. In fact, a primary purpose of the certification requirements proposed in the NPRM is to consolidate under a common Part 90 rule provision existing requirements that separately govern the D Block and the public safety broadband spectrum. Such rules are unlikely to have a significant adverse economic impact on any small entities, much less a substantial number of them.

The NPRM also considers rules to govern the transition of incumbent narrowband, wideband and commercial systems currently authorized to operate in the spectrum to be licensed to FirstNet. With respect to the first category only, there may arguably be a significant number of small entities currently operating. In considering various transition options—including relocation of existing operations at the operators' expense—the NPRM seeks comment on ways to minimize the economic burden on incumbent operators. The NPRM seeks comment on whether FirstNet or some third party source could fund relocation, thereby relieving any incumbent small entities of this potentially substantial economic burden. It also seeks comment on whether FirstNet could accommodate incumbent narrowband operations within a portion of its licensed spectrum, either indefinitely or on a transitional basis. We seek comment in this IRFA on whether there are additional steps the Commission should take to minimize any economic burden its proposals might create for small entities operating narrowband systems in the spectrum to be licensed to FirstNet.

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

The RFA requires an agency to describe any significant alternatives that it has considered in developing its 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.”

As an initial matter, we find that one possible alternative—to refrain from pursuing the adoption of rules in Docket 12-94—is untenable given the clear directives of the Public Safety Spectrum Act regarding reallocation of the D Block and the licensing of spectrum to FirstNet. This NPRM is necessary to ensure that a solid regulatory foundation is in place to support FirstNet's operations under the Act.

We also do not believe it would be tenable to establish differing requirements for small entities or to exempt such entities from rules adopted pursuant to the NPRM. Given the importance of ensuring that the public safety broadband network is technically and operationally viable on a nationwide basis, it is important that network be governed by a common set of rules and requirements.

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

1. None.

List of Subjects

47 CFR Part 1

• Administrative practice and procedure
• Civil rights
• Claims
• Communications common carriers
• Drug abuse
• Environmental impact statements
• Equal access to justice
• Equal employment opportunity
• Federal buildings and facilities
• Government employees
• Income taxes
• Indemnity payments
• Individuals with disabilities
• Investigations
• Lawyers
• Metric system
• Penalties
• Radio
• Reporting and recordkeeping requirements
• Satellites
• Telecommunications
• Television
• Wages

47 CFR Part 2

• Communications equipment
• Disaster assistance
• Imports
• Radio
• Reporting and recordkeeping requirements
• Telecommunications
• Television
• Wiretapping and electronic surveillance

47 CFR Part 27

• Communications common carriers
• Radio

47 CFR Part 90

• Administrative practice and procedure
• Business and industry
• Civil defense
• Common carriers
• Communications equipment
• Emergency medical services
• Individuals with disabilities
• Radio
• Reporting and recordkeeping requirements

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1, 2, 27 and 90 as follows:

PART 1—PRACTICE AND PROCEDURE

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

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), and 309, Cable Landing License Act of 1921, 47 U.S.C. 35-39, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96.

2. Section 1.9005 is amended by revising paragraph (k) to read as follows:

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

3. The authority citation for part 2 continues to read as follows:

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

4. Section 2.103 is amended by revising paragraphs (a) introductory text and paragraph (c) to read as follows:

PART 27—MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

5. The authority citation for part 27 continues to read as follows:

Authority: 47 U.S.C. 154, 301, 302a, 303, 307, 309, 332, 336, and 337 unless otherwise noted.

6. Section 27.6 is amended by revising paragraph (b) introductory text to read as follows:

7. Section 27.11 is amended by revising paragraph (c) introductory text to read as follows:

8. Section 27.13 is amended by revising the first sentence in paragraph (b) to read as follows:

9. Section 27.14 is amended by revising the first sentence in paragraphs (a), and (e), and removing paragraphs (m) and (n), and redesignating paragraphs (o) and (p) as paragraphs (m) and (n) to read as follows:

10. Section 27.15 is amended by revising the first sentence in paragraphs (d)(1)(i) and (d)(2)(i) to read as follows:

12. Section 27.53 is amended by removing paragraph (d), redesignating paragraphs (e) through (n) as paragraphs (d) through (m), and revising newly redesignated paragraphs (d), (1) and (2) and (e) to read as follows:

13. Section 27.55 is amended by revising paragraph (c) to read as follows:

14. Section 27.57 is amended by revising paragraph (b) to read as follows:

15. Section 27.60 is amended by revising the introductory text, and paragraph (a)(1)(iii) and the second sentence in paragraphs (b) introductory text and (b)(2)(i); and revising paragraphs (b)(2)(ii), (b)(2)(ii)(A) and (C) to read as follows:

16. Section 27.70 is amended by revising paragraphs (a) and (b)(1), and (b)(2) to read as follows:

17. Section 27.303 is amended by revising paragraph (a) introductory text to read as follows:

18. Section 27.501 is revised to read as follows:

PART 90—PRIVATE LAND MOBILE RADIO SERVICES

19. 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), and 332(c)(7), and Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156.

20. Section 90.179 is amended by revising paragraph (g) to read as follows:

21. Section 90.203 is amended by removing paragraph (p).

22. Section 90.205 is amended by revising paragraph (j) to read as follows:

23. Section 90.523 is amended by revising the introductory text and paragraph (e) to read as follows:

24. Section 90.533 is amended by revising the introductory text and paragraphs (a) and (c) to read as follows:

25. Section 90.542 is amended by revising paragraph (a) introductory text, paragraphs (a)(1) through (a)(7), and paragraph (a)(8) introductory text, and by revising Tables 1 through 4 and paragraph (b) to read as follows:

26. Section 90.543 is amended by revising the introductory paragraph and revising paragraphs (e) and (f) to read as follows:

27. Section 90.549 is revised to read as follows:

28. Section 90.555 is amended by revising paragraph (a) introductory text, and revising paragraphs (b)(1) and (2) and paragraph (c) to read as follows: