WPCH 2BJ Courier3|X  Times New Roman BoldUnivers BoldTimes New RomanPCL) (Additional)HL4MPCAD.PRSx  @\j&TwX@26KF Z 3|X  "i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNg*gngggg???z\z\z\zjrFr4rSggggggzjr\r\r\gg?gz\r?zgr3\g)%)WddddddddddddddddddddddddddddddddddddddddNBnnBcg?rgggggFCg?Bg>((??g??nggpBnnBi\\(>\>"yyyy\n\c\jnn\"i~'^FR`xxʻRRRx>R>CxxxxxxxxxxCCjݭR[ӭ⭭RCRnxRjxjxjRxxCCxCxxxxR[Cxxxxjs0sR>nRRR>RRRRRRRRxCjjjjjӜjjjjjRCRCRCRCxxxxxxxxxxjxvxxxxjjjjjjjjjjxxxxxRCRxRRRxxC`RRCxxxxxӭRRR[[[eCnxxxxxx⭭jjjxRx[Rx>xxP+PWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNVVnxRjxxxxxCMxHMxHRRjjxRRxx듶VVȆRjxH"x𐋂x됐x"i~'^FRxxRRRx>R>CxxxxxxxxxxRRx⭞[x⭻𭭞RCRxRxjjRxCRCʆxj[Rxxxj`5`}R>}RRR>RRRRRRxRCxxxxxjjjjjYCYCYCYCxxxxxxxxxxxxxjj}jjjjjxxx}x[C[[R[†}}ClR`Cxxjjj[[[}zR}jjjR[Rx>xxPAPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNVVxRxxxxxxHRxHRxHRRxxxRRxxVVȆRxxH"x𐎂x됐x"i~'^IUd}}UUU}AUAF}}}}}}}}}}FFn津U_ܴ봴UFUs}Un}n}nU}}FF}F}}}}U_F}}}}nx2xUAsUUUAUUUUUUUU}FnnnnnܣnnnnnUFUFUFUF}}}}}}}}}}n}{}}}}nnnnnnnnnn}}}}}UFU}UUU}}FdUUF}}}}}ܴUUU___iFs}}}}}}봴nnn}U}_U}A}}S-SWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNZZs}Un}}}}}FP}KP}KUUnn}VV}}ZZЌUn}K"}}}2# K K K\ K!"i~'^IU}}UUU}AUAF}}}}}}}}}}UU}봥_}åÛôUFU}U}nnU}FUFҌ}n_U}}}nd7dUAUUUAUUUUUU}UF}}}}}nnnnn]F]F]F]F}}}}}}}}}}}}}nnnnnnn}}}Â}ÌÑ_F__U_ˌÌFqUdF}}nnn___UnnnU_U}A}}SDSWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNZZ}U}}}}}}KU}KU}KUU}}}VV}}ZZЌU}}K"}}}"i~'^IU}}UUU}AUAF}}}}}}}}}}UU}봥_}åÛôUFU}U|Ld|pȐd7dUAUUUAUUUUUU}UF}}}}}nnnnn]F]F]F]F}}}}}}}}}}}}}nnnnnnn}}}Â}ÌÑ_F__U_ˌÌFqUdF}}nnn___UnnnU_U}A}}SDSWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNZZ}U}}}}}}KU}KU}KUU}}}VV}}ZZЌU}}K"}}}"i~'^IUd}}UUU}AUAF}}}}}}}}}}FFn津U_ܴ봴UFUs}U|pDL|pp||x2xUAsUUUAUUUUUUUU}FnnnnnܣnnnnnUFUFUFUF}}}}}}}}}}n}{}}}}nnnnnnnnnn}}}}}UFU}UUU}}FdUUF}}}}}ܴUUU___iFs}}}}}}봴nnn}U}_U}A}}S-SWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNZZs}Un}}}}}FP}KP}KUUnn}VV}}ZZЌUn}K"}}}"i~'^,3>iiffSSxSrff8SS?"xxSx]xxS姧0 S88xfxxxxxxxxxx8S{gci{P8ix]i`xrxxxxxxxxxxSxxxxxxofxGcxxxxxxxSxxxxxxxSxxxxSxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx8xxx8xxx8xxx8xxxxxxxxxxxxx{`ic]S{``SfMx`f.+oS{Scx]xP`fc`flMiMrcxx]x{`x8irr`lrxz88iiii{xiiirrr8fSJ8Muu]daqqZZnn{{xu{{M{aZZ5M5M҅P?k"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""). ANSI does not itself develop American National Standards (ANSs);  yOY'rather, it facilitates their development by establishing guidelines to ensure consensus, due process, and openness.   {O!'Id. ANSI has three methods of accreditation (organization, committee or canvass). See generally ANSI Procedures for the Development and Coordination of American National Standards (approved by the ANSI Board of Directors, April 1998).  X4The First Report and Order emphasized that the standards recommended by the NCC for digital modulation, trunking, and receivers must be developed in accordance with ANSI XU4accredited procedures.kU I {O'ԍ See First Report and Order at paras. 92, 105, 117, and 122.k  X'47. The First Report and Order also provided that with regard to all technical standards recommended by the NCC, "no proprietary data is to be incorporated in any standard ultimately recommended unless the proprietary data is made available on a fair, reasonable, unbiased and nondiscriminatory basis, with license fees approved by ANSI and  X4on terms and conditions set by that standards body."X I {O %'ԍ See First Report and Order at para. 122.X The First Report and Order further"0*(&(&1" provided that the NCC was expected to complete its work within four years of the release  X4date of the First Report and Order.XI {Ob'ԍ See First Report and Order at para 122. X  X' EIII. DISCUSSION ă  Xx' A. ANSI Accreditation of Standards Developers  XJ48. P5HB  In its Petition for Reconsideration, ANSI describes itself as a private sector organization that, among other things, serves as the policy forum for the U.S. standards and conformity assessment communities, accredits domestic standards developers, approves standards as American National Standards, and safeguards the integrity and value of the American National Standard designation by requiring due process, balance of interests, consensus and openness to all directly and materially affected interests in the private and  X 4public sectors.^ ZI {O'ԍ See ANSI Petition filed December 2, 1998 at 2.^ ANSI and TIA describe in some detail the procedures required in the development and approval of American National Standards, and in the accreditation of  X4Standards Development Organizations, Standards Committees and Canvass Developers.I {O/'ԍ In general, see ANSI Petition at 4,5 and 79.  See also TIA Petition at 27 and Exhibits AD.  P8GV 9. ANSI states from its experience that development and approval of an individual  XM4standard as an American National Standard can take from six months to three years.M~I {O|'ԍ See ANSI Petition at 4. See also Motorola Petition for Reconsideration and Clarification at 8. Additionally, an application for accreditation of a Standards Development Organization or Standards Committee can take between four and fifteen months, or much longer if the  X4application generates opposition on public review.GI {O'ԍ See ANSI Petition at 8.G  10. ANSI argues that because the NCC is required to complete its work within four years, "it is possible that the procedures preparation interval and accreditation interval could significantly use up a major portion of the fouryear interval leaving insufficient time for the  X4actual technical standards work."GI {O"'ԍ See ANSI Petition at 9.G Consequently, ANSI states that although the Commission can allow the NCC to become accredited itself if the NCC determines that such action is required, the Commission should also allow the NCC to make use of the work of any"g4 0*(&(&" Accredited Standards Developer that has the requisite expertise in public safety telecommunications. ANSI identifies one such accredited entity as the Engineering  X4Committee TR8 of the TIA.GI {OK'ԍ See ANSI Petition at 9.G TIA strongly recommends that the Commission modify the language to specify that the NCC or a related Working Group become ANSIaccredited, or that the NCC rely on an alreadyaccredited ANSI standards developer who has expertise in  X4this area of telecommunications work.AZI yO'ԍ See TIA Petition at 11.A  11. We conclude that ANSI and TIA have made a strong case for increasing the number of options available to the NCC for developing the standards it is required to  X14recommend under the provisions of the First Report and Order. We agree that allowing the NCC to make use of the work of other ASDs would offer the benefits of increased efficiency and improved use of NCC resources. The NCC could take advantage of these options in several ways, including by reviewing and recommending existing American National Standards, by working with one or more ASDs to advance the progress of pending documents toward their approval as American National Standards, or by entering into an agreement with  X 4one or more ASDs to begin the process of developing one or more new standards.J I {OD'ԍ See ANSI Petition at 9,10.J The ability to employ one or more of these approaches would potentially save time by allowing the NCC to build on standards work already accomplished or by allowing other technical standards development work to begin immediately, under ANSI procedures, without the necessity of waiting for the potentially lengthy process of accreditation of the NCC itself. In addition, allowing the NCC to work cooperatively with existing ASDs with expertise in the area of public safety communications would have the effect of conserving the committee's limited resources and could also help avoid challenges to the accreditation of the NCC on the  X4ground of duplication or overlap of jurisdictions.G|I {O'ԍ See ANSI Petition at 8.G Finally, because American National Standards must be reaffirmed or withdrawn every five years, cooperative efforts with an existing ASD, such as TIA's Engineering Committee TR8, would provide the capability of maintaining the standards developed through this process after the NCC ceases functioning  X4four years hence.JI {OT!'ԍ See ANSI Petition at 9,10.J   12. We note that by expanding the options available to the NCC in this way, we  XP4adhere to the original intent of the First Report and Order by maintaining the requirement that any standard recommended to the Commission by the NCC must be developed under an";0*(&(&"  X4"open process, governed by ANSI or standards approved by ANSI."XI {Oy'ԍ See First Report and Order at para. 122.X We further note that  X4this modification is supported by the commenters, ZI {O'ԍ See, e.g., FLEWUG comments at 17 (supporting the choice of an open standard created by an ANSI accredited entity). and other petitioners asking for  X4reconsideration.!I {O7'ԍ See FLEWUG Petition for Reconsideration and Clarification at 19,20; Petition of APCO for Reconsideration and Clarification at 13; and Motorola Petition for Reconsideration and Clarification at 8,9. Of course, should the NCC conclude that no existing ASD can adequately develop the needed standards, the NCC retains the option of seeking ANSI accreditation as a standards developer for itself or an NCC subcommittee or working group.  Xv4 13. Accordingly, for the reasons stated above, we modify the provisions of the First  Xa4Report and Order to provide that the NCC may, in its own discretion, seek to become or to have a subcommittee of the NCC become an ASD under ANSI procedures. The NCC is not required to do so to the extent that it is able to support adequately its technical standards  X 4recommendations with standards developed and approved under ANSI procedures by one or more existing ASDs.  X ' B.NCC Standards Development Involving Intellectual Property Licensing  X 4  X 4 14.  STANDARD  The First Report and Order describes a role for ANSI in approving license fees and setting terms and conditions for such fees when sought by owners of propriety data used in an standard recommended by the NCC. In its Petition for Reconsideration, ANSI asserts that it cannot undertake this role because it lacks the necessary expertise and because such an unaccustomed role for ANSI would not meet with the approval of the voluntary standards  X:4community.H":I {O'ԍ See ANSI Petition at 10.H TIA echoes ANSI's concerns in its Petition for Reconsideration.G#:I {O'ԍ  See TIA Petition at 12.G 15. P12WS  ANSI suggests that the Commission adopt, in preference to the active role for  X4ANSI suggested in the First Report and Order, the patent policy used by ANSI and similarly  X4by international standards organizations.K$2 I {O!'ԍ See ANSI Petition at 1012.K ANSI asserts that this policy is selfpolicing and  X4has proved effective in achieving acceptable licensing terms and conditions for patented" $0*(&(&X"  X4technology used in ANSI standards.H%I {Oy'ԍ See ANSI Petition at 11.H TIA confirms that this policy is selfpolicing and very  X4similar to the policy followed at the International Telecommunication Union.K&ZI {O'ԍ  See TIA Petition at 1314.K  X416. Under the ANSI patent policy, an American National Standard may include  X4patented technology if technical reasons justify that approach.H'I {OA 'ԍ See ANSI Petition at 11.H Before such a standard will  X4be approved, however, ANSI must receive from the patent holder a statement that the patent holder either will (a) make its technology available to applicants without compensation, or (b) license its technology to applicants under reasonable terms and conditions that are  XH4demonstrably free of any unfair discrimination.(H~I {Ow'ԍ See American National Standards Institute, "Procedures for the Development and Coordination of American National Standards,  1.2.11.14, April, 1998. In its pleading, TIA notes that the patent  X14holder must provide the statement to TIA who in turn forwards it to ANSI.G)1I {O'ԍ See TIA Petition at 13.G The statements received by ANSI are kept on file and beneficiaries of the statements can seek their  X 4enforcement in the courts or otherwise outside of ANSI's procedures.H* j I {O'ԍ See ANSI Petition at 11.H In addition, ANSI notes that a patent holder that fails to abide by the representations contained in its filed statement risks having the standard withdrawn or not published and, in the case of deliberate  X 4misconduct, further risks the intervention of the Federal Trade Commission.H+ I {Ok'ԍ See ANSI Petition at 12.H 17. ANSI asserts that this policy is procompetitive in that it seeks to balance the  Xy4rights of patent holders to exploit their governmentgranted monopoly against the rights of the users of the standard, and it requires patent holders to license their technology to all parties,  XK4including competitors, on nondiscriminatory terms.H,K I {O'ԍ See ANSI Petition at 11.H ANSI also states that this policy seeks to allow the patent holder the rights to the market power granted by the patent without allowing an unfair additional advantage as a result of the incorporation of that technology into  X4a consensus standard.H- I {O#'ԍ See ANSI Petition at 11.H This position is supported by TIA.I.I {O'ԍ See TIA Petition at 13.I" Z.0*(&(&6"Ԍ18. On reconsideration, we agree that ANSI is not an appropriate entity to approve proprietary technology license terms and fees involved with standards recommended by the  X4NCC. Accordingly, we rescind the requirement in the First Report and Order that license fees or terms in license agreements for proprietary technology contained in any NCCrecommended standard be approved by ANSI. We further conclude, based upon the recommendation of both ANSI and TIA, that the alternative of a selfpolicing policy such as the ANSI patent policy can be structured to protect adequately the rights of both intellectual property right holders and consensus standard users while at the same time encouraging competition. 19.  P14PZ  The ANSI patent policy, however, may be insufficient to protect all of the parties potentially affected in cases where proprietary intellectual property rights are asserted over technology imbedded in a standard recommended by the NCC. We conclude that these rights should be addressed by any policy that seeks to prevent abuses in the licensing of proprietary rights in consensus standards recommended by the NCC. Because there are intellectual property rights other than patent rights that may be asserted over such technology, such as rights granted by copyright, these may become the subject of licensing agreements. 20. Accordingly, we are modifying the language in the subsection of paragraph 122 of  XM4the First Report and Order relating to proprietary data. Within paragraph 122, the subparagraph beginning "no proprietary data" and ending "set by that standards body" is deleted and replaced with the following language: "proprietary technology may be incorporated in a standard ultimately recommended when the NCC concludes that technical reasons justify its incorporation, however, no intellectual property subject to a licensable proprietary right granted by patent or copyright, where the owner or holder of the right has licensed or expressed an intention to license the technology, may be included in a standard ultimately recommended unless the owner or holder of the right files a statement with the  X4NCC prior to such recommendation which states that the owner or holder will either (a) make its technology available to applicants without compensation, or (b) license its technology to applicants under reasonable terms and conditions that are demonstrably free of any unfair  XR4discrimination./RZI yO]'ԍ This process is separate from ANSI's requirements. We do not intend to deter a patent holder from also filing with ANSI. For purposes of this paragraph, the term "applicant" means a person or entity seeking to utilize the license for the purpose of implementing the standard. 21. We conclude that this approach, like that suggested by ANSI and TIA, is likewise consistent with the terms of the National Technology Transfer and Advancement Act (NTTAA) and Office of Management and Budget (OMB) Circular A119, 63 Fed. Reg. 8545" /0*(&(&^" (February 18, 1998), Sections 4a and 6j, which recommend that federal agencies participate in and support the voluntary standards process and that patents essintial to a standard be licensed  X4on terms that are reasonable and nondiscriminatory.o0I {OK'ԍ See ANSI Petition at 12. See also TIA Petition at 1415.o   X' uIV. PROCEDURAL MATTERS ă  X_' A.Regulatory Flexibility Act 22.  P38SK  REGFLEX  As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C. 603 (1981) (RFA), the Commission has prepared a Supplemental Final Regulatory Flexibility Analysis (SFRFA) of the expected impact on small entities by the policies and rules adopted in this Order. The SFRFA is contained in Appendix A.  X ' B.Authority 23.  P39TV This action is taken pursuant to Sections 1, 4(i), 4(j), 201, 202, 303(r), 309, 332, and 403 of the Communications Act, 47 U.S.C. 1, 4(i), 4(j), 201, 202, 303(r), 309, 332, 403.   X4' C.Further Information  X424.  P40JA For further information regarding this Order, contact Michael Pollak, Wireless Telecommunications Bureau, Public Safety and Private Wireless Division, at (202) 4180680.  X'  X'` ` hhCV. ORDERING CLAUSES  X|425.  CLAUSES  Accordingly, IT IS ORDERED that the petitions for reconsideration filed by the American National Standards Institute and the Telecommunications Industry Association ARE GRANTED to the extent indicated herein and otherwise ARE DENIED.  P57YB "7 Z00*(&(&"Ԍ X4 26. IT IS FURTHER ORDERED that the Office of Public Affairs, Reference Operations Division, shall send a copy of this Order, including the Supplemental Final 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, 5 U.S.C.  603(a). ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCMagalie Roman Salas ` `  hhCSecretary " 00*(&(&\ "  A. 1. 1. a.(1)(a) i) a) A. 1. 1. a.(1)(a) i) a)  X'\ Appendix A   X' SUPPLEMENTAL FINAL REGULATORY FLEXIBILITY ANALYSIS   \ 1. As required by the Regulatory Flexibility Act, 5 U.S.C.  603 (RFA), a Final  XH4Regulatory Flexibility Analysis (FRFA) was incorporated in Appendix A of the First Report  X34and Order issued in this proceeding.1 3I {O 'ԍ See Development of Operational, Technical and Spectrum Requirements For Meeting Federal, State and  yOv 'Local Public Safety Agency Communications Requirements Through the Year2010, WTDocket No.96-86,  {O> 'First Report and Order and Third Notice of Proposed Rulemaking, FCC 98191, Released September 29, 1998,  {O 'at Appendix A (herein First Report and Order). As required by  603 of the RFA, an Initial Regulatory  {O 'Flexibility Analysis (IFRA) was incorporated in the initial Notice of Proposed Rulemaking in WT Docket No.  {O'9686. See Development of Operational, Technical and Spectrum Requirements For Meeting Federal, State and Local Public Safety Agency Communications Requirements Through the Year2010, WTDocket No.96-86,  {O.'Notice of Proposed Rulemaking, 11 FCC Rcd 12,460 (1996) (First Notice). The proposals in the First Notice  {O'were refined and modified in a Second Notice of Proposed Rulemaking in this docket, into which a second IFRA  {O'was incorporated. See Development of Operational, Technical and Spectrum Requirements For Meeting Federal, State and Local Public Safety Agency Communications Requirements Through the Year2010, WTDocket  {OT'No.96-86, Second Notice of Proposed Rulemaking, 12 FCC Rcd 17,706 (1997) (Second Notice). The  {O'Commission sought written comment on the proposals in the Second Notice including the IFRA. The FRFA in  {O'the First Report and Order addressed issues raised by commenters that might affect small entities. The Commission's Supplemental Final Regulatory Flexibility Analysis (SFRFA) in this Memorandum Opinion and Order on Reconsideration  X 4(Order on Reconsideration) contains information additional to that contained in the FRFA and  X 4is thus limited to matters raised on reconsideration with regard to the First Report and Order  X 4and addressed in this Order on Reconsideration. This SFRFA conforms to the RFA, as  X 4amended by the Contract with America Advancement Act of 1996.2X I yO'ԍ Pub. L. No. 104121, 110 Stat. 846 (1996) (CWAAA). Title II of the Contract with America Act is entitled The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), and is codified at 5 U.S.C.  601611.  X' I. Need for and Purpose of This Action  X4  XU42. In the Order on Reconsideration, the Commission responds to the Petition for  X@4Reconsideration filed in connection with the First Report and Order in this docket by the American National Standards Institute (ANSI and ANSI Petition). The Commission clarifies  X4certain aspects of the First Report and Order relating to the operation of the National  X4Coordination Committee (NCC). The NCC was established as provided in the First Report" 20*(&(&)"  X4and Order pursuant to the provisions of the Federal Advisory Committee Act (FACA) to develop and recommend to the Commission technical standards to be used in public safety interoperability spectrum across the country. 3. In response to the ANSI Petition, the Commission modifies its initial decision in three respects. First, in order to allow the NCC to make more efficient use of ANSI standards processes, the Commission expands the standards development options available to the NCC by providing that the NCC may, but is not required to, become ANSIaccredited. The Commission also clarifies that the NCC is allowed to make use of and base its recommendations on the standards development work of existing ANSIAccredited Standards  X 4Developers (ASDs). Second, the Commission rescinds the requirement from the First Report  X 4and Order that the fees and terms of license agreements involving proprietary technologies contained in NCCrecommended standards be approved by ANSI. And third, the Commission revises the process for allowing the incorporation of proprietary technologies into standards recommended by the NCC by requiring the owner or holder of the rights to such technologies to file with the NCC a statement that they will make such rights available to applicants either without cost or without unfair discrimination.  XQ44. As a result of the Commission's action in the Order on Reconsideration, it has addressed the fundamental concerns raised by ANSI in its petition, thus allowing the work of the NCC to proceed in a timely fashion, with the flexibility to operate with increased efficiency, and without the constraints that may have unnecessarily delayed the completion of  X4that work. In addition, the Order on Reconsideration provides new procedures for the NCC that will promote competition in the market for public safety communications equipment by protecting users of standards recommended by the NCC from unfair discrimination in the licensing of proprietary technology contained in such standards.  X'  II. Summary of Significant Issues Raised by the Public  Xo'|Comments in Response to the Final Regulatory Flexibility Analysis Đ\  XA45. No comments were filed in direct response to the FRFA.3$AI yO'ԍ In addition, no comments were filed in direct response to the IRFA. In comments responding to the  {O'Second Notice, however, some commenters raised issues that might affect small entities. Those comments that  {OL 'are relevant to this Order on Reconsideration are addressed herein. The others will be addressed in later orders in this proceeding.  In the ANSI Petition, and in certain other pleadings, issues were raised that might affect small entities. Specifically, ANSI argued that it had no authority to approve the license terms and fees offered by owners or holders of rights to proprietary technology and that better protection of licensees of this technology could be offered by adoption of the ANSI patent policy. ANSI also asserted that"30*(&(&^" the NCC should not be required to become an ASD to develop its own standards but instead should be able to make use of American National Standards, or preliminary or inprocess standards developed by other ASDs. FLEWUG supported the concept of requiring that the  X4NCC choose an open standard created by an ANSIaccredited entity.f4I {O4'ԍ See FLEWUG comments to the Second Notice at 17. f  X'  III. Changes Made to the Proposed and Final Rules \  X_46. In the Second NPRM the Commission proposed to set technical standards for public  XJ4safety interoperability spectrum. In the First Report and Order, the Commission determined instead, to seek to create the NCC to advise the Commission on the standards to be used in  X 4such spectrum. The First Report and Order required the NCC to become an ASD in order to  X 4develop itself the standards that it would recommend to the Commission. This Order on  X 4Reconsideration rescinds that requirement and allows the NCC to make use of, and base its recommendations on, the work of other ASDs.  X 47. In addition, the Order on Reconsideration eliminates the requirement that fees and license terms for proprietary technology contained in any NCCrecommended standard be approved by ANSI. Instead, the Commission requires that before the NCC recommends any standard containing proprietary technology, where the technology is the subject of an actual or proposed license agreement, the owner or holder of such proprietary right must file with the NCC a statement that they will make such rights available to applicants either without cost or without unfair discrimination.  X'  IV. Description and Number of Small Entities  X'Affected by Rule Amendment Đ\  X48. The changes in the operations of the NCC provided in this Order on  X4Reconsideration would principally affect the NCC, ANSI, the public safety and commercial entities who contribute members and/or resources to the NCC, and the persons or entities that hold the rights to proprietary technology that might be included in an NCCrecommended standard. The public safety equipment manufacturers who might enter into agreements to use such standards in the construction of public safety communications equipment and the government and nongovernment entities that will purchase such equipment are only indirectly  X4affected by the Order on Reconsideration. "Z40*(&(&^"Ԍ X49. The Commission released a Public Notice soliciting nominations for membership.5I {Oy'ԍ See Public Notice, Public Safety National Coordination committee (rel. Jan. 29, 1999). Membership is open to any interested member of the public safety communications community, including representatives of federal, state and local government entity radio users, licensees and organizations, manufacturers, consulting firms, frequency coordinators and trade associations. A similar open membership structure was adopted for the most recent FCCappointed federal advisory committee for public safety matters. This committee, formed in 1996 and called the Public Safety Wireless Advisory Committee (PSWAC), attracted approximately 500 members. It is anticipated that the NCC will have a similar number of members.  X 4 10. The RFA generally defines the term "small entity" as having the same meaning as  X 4the terms "small business," "small organization," and "small governmental jurisdiction."Q6 ZI {O'ԍ  See 5 U.S.C.  601(6). Q In addition, the term "small business" has the same meaning as the term "small business concern"  X 4under the Small Business Act.27 I yOr'ԍ 5 U.S.C.  601(3) (incorporating by reference the definition of "small business concern" in 15 U.S.C. 632). Pursuant to the RFA, 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." 5 U.S.C.  601(3).2 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  X 4additional criteria established by the Small Business Administration (SBA). X8 I yO'ԍ Small Business Act, 15 U.S.C.  632 (1996).X A small organization is generally "any notforprofit enterprise which is independently owned and  Xy4operated and is not dominant in its field."C9y, I yOV'ԍ 5 U.S.C.  601(4). C Nationwide, as of 1992, there were  Xb4approximately 275,801 small organizations.:b I yO'ԍ 1992 Economic Census, U.S. Bureau of the Census, Table 6 (special tabulation of data under contract to Office of Advocacy of the U.S. Small Business Administration). ANSI has fewer than 300 employees, is independently owned and operated and we conclude that it is a small organization. "Small governmental jurisdiction" generally means "governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than  X450,000."@;I yO#'ԍ 5 U.S.C.  601(5). @ As of 1992, there were approximately 85,006 such jurisdictions in the United";0*(&(&"  X4States.w<I yOy'ԍ U.S. Dept. of Commerce, Bureau of the Census, "1992 Census of Governments." w This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96  X4percent, have populations of fewer than 50,000.3=XI {O'ԍ Id.3 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 (91percent) 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.  X_4 11. As a general matter, Public Safety Radio Pool licensees include police, fire, local  XH4government, forestry conservation, highway maintenance, and emergency medical services.> HI {O 'ԍ See Subparts A and B of Part 90 of the Commission's Rules, 47 C.F.R. 90.1-90.22. Police licensees include 26,608 licensees that serve state, county, and municipal enforcement through telephony (voice), telegraphy (code) and teletype and facsimile (printed material). Fire licensees include 22,677 licensees comprised of private volunteer or professional fire companies as well as units under governmental control. Public Safety Radio Pool licensees also include 40,512 licensees that are state, county, or municipal entities that use radio for official purposes. There are also 7,325 forestry service licensees comprised of licensees from state departments of conservation and private forest organizations who set up communications networks among fire lookout towers and ground crews. The 9,480 state and local governments are highway maintenance licensees that provide emergency and routine communications to aid other public safety services to keep main roads safe for vehicular traffic. Emergency medical licensees (1,460) use these channels for emergency medical service communications related to the delivery of emergency medical treatment. Another 19,478 licensees include medical services, rescue organizations, veterinarians, handicapped persons, disaster relief organizations, school buses, beach patrols, establishments in isolated areas, communications standby facilities, and emergency repair of public communications facilities.  Spectrum in the 700MHz band for public safety services is governed by 47U.S.C.337. NonFederal governmental entities as well as private businesses are licensees for these services.  X 4 12. We anticipate that at least six radio equipment manufacturers might be affected by  X 4our decision in this Order on Reconsideration. According to the SBA's regulations, a communications equipment manufacturer must have 750 or fewer employees in order to  X4qualify as a small business concern.R?I yO'ԍ 13 C.F.R.  121.201, (SIC) Code 3663.R Census Bureau data indicate 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 therefore be classified as  XM4small entities.@M4I {O2$'ԍ U.S. Dept. of Commerce, 1992 Census of Transportation, Communications and Utilities (issued May 1995), SIC category 3663. We do not have information that indicates how many of the six radio"M@0*(&(&" equipment manufacturers associated with this proceeding are among these 778 firms. However, Motorola and Ericsson, firms that control approximately ninetyfive percent of the public safety communications equipment market, are major, nationwide radio equipment manufacturers, and, thus, we conclude that these manufacturers would not qualify as small businesses.  Xv'  V. Summary of Projected Reporting, Recordkeeping,  X_' and Other Compliance Requirements Đ\  X14 13. The compliance requirements pertaining to the issues addressed in the Order on  X 4Reconsideration that were adopted in the First Report and Order include the provision that  X 4the NCC was to become accredited by ANSI as an ASD. Further, the First Report and Order required that no proprietary data was to be incorporated in any standard ultimately recommended by the NCC unless the proprietary data was made available on a fair, reasonable, unbiased and nondiscriminatory basis, with license fees approved by ANSI and  X 4on terms and conditions set by that standards body. The Order on Reconsideration eliminates the requirement that the NCC become NCC accredited and the requirement that license fees  X4terms and conditions be approved by ANSI. The Order on Reconsideration requires that before any standard may the owner or holder of the any rights to proprietary technologies that are incorporated into standards recommended by the NCC, where such owner or holder has licensed or announced and intention to license such proprietary technology, to file with the NCC a statement that they will make such rights available to applicants either without cost or without unfair discrimination.  X'q  VI. Steps Taken To Minimize the Economic  X',Impact on Small Entities Đ\  X4 14. The Commission has reduced the impact on small entities of the provisions governing the operations of the NCC by eliminating the requirement that the NCC become ANSIcertified as an ASD and by eliminating the requirement that all fees, terms and conditions of licenses for proprietary technology contained in any NCCrecommended standard be approved by ANSI. In addition, the Commission has adopted on reconsideration an alternative procedure to protect users of NCCrecommended standards from unfair discrimination. The requirement that owners or holders of rights to proprietary technology contained in NCCrecommended standards that seek to license such rights must file statements with the NCC will burden a handful of entities that may or may not be small entities. In contrast, the requirement will benefit thousands of small governmental jurisdictions and their agencies by protecting their suppliers from unfair discrimination in the acquisition of technologies, and by encouraging greater competition in the public safety communications equipment market. "r$@0*(&(&""Ԍ X'  VII. Significant Alternatives Considered and Rejected Đ\  X415. The alternative approaches contained in the First Report and Order were considered and rejected as too burdensome, unnecessarily restrictive, or inefficient, thus leading the Commission to eliminate the abovedescribed compliance requirements on ANSI and the NCC. With regard to a mechanism to protect users of NCCrecommended standards from unfair discrimination in the licensing of proprietary technology, the alternative of providing no protection was considered and deemed anticompetitive, unnecessarily expensive and insufficiently responsive to the communications needs of the large and small members of public safety community that the Commission is bound by law to support. The chosen mechanism of requiring owners and holders of rights to proprietary technology to agree with their licensees to make the technologies available, either without cost or on terms that are free from unfair discrimination, and to evidence that agreement by filing a statement to that effect with the NCC, was determined to be the least expensive and burdensome alternative available. Moreover, given its probable effect of encouraging competition in the relevant equipment market, this mechanism was determined to generate the most favorable ratio of cost to benefit in the overall public safety communications community.  Xd'X` hp x (#%'0*,.8135@8: