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Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554
News media information 202 / 418-0500
Fax-On-Demand 202 / 418-2830
Internet: http://www.fcc.gov
TTY: 202/418-2555

This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).

November 9, 2000

News Media Contact:
Mark Rubin at (202) 418-2924
e-mail: mrubin@fcc.gov


Washington, DC -- The Federal Communications Commission (FCC) today adopted policies to implement Sections 309(j) and 337 of the Communications Act of 1934, as amended by the Balanced Budget Act of 1997 ("1997 Budget Act"), with respect to wireless services. In the 1997 Budget Act, Congress revised Section 309(j) of the Communications Act, which is the principal statutory provision that governs the FCC's auction authority for the licensing of radio services. Specifically, the 1997 Budget Act amended Section 309(j) to require the Commission to grant licenses through the use of competitive bidding when mutually exclusive applications for initial licenses are filed, unless certain specific statutory exemptions apply. The only exemption from auctions applicable to wireless services is for "public safety radio services," which Congress defined as public and private services that protect "the safety of life, health, and property."

Amendments to Section 309(j) Auction Authority

The Report and Order adopted today establishes the regulatory framework for exercise of the Commission's amended auction authority. The Report and Order affirms that in identifying which classes of licenses should be subject to competitive bidding, the Commission is required to pursue the public interest objectives set forth in Section 309(j). The order also affirms that as part of this public interest analysis, the Commission must continue to consider alternative procedures that avoid or reduce the likelihood of mutual exclusivity. That obligation, however, does not preclude the Commission from adopting licensing mechanisms for private radio services that result in auctions to resolve mutually exclusive applications, if the Commission determines that it is in the public interest to do so.

The Report and Order does not make any changes to license assignment procedures in existing private services, which generally preclude or limit the likelihood of mutually exclusive applications. The order also makes no specific determination about what licensing procedures to adopt for future private services. Rather, the Commission will continue to decide on a service-by-service basis whether to adopt geographic area licensing, site-by-site licensing, or any other licensing scheme.

The Commission also concludes that in addition to other licensing mechanisms, it should consider the use of "band manager" licensing as a future option for private services. The Commission recently implemented the band manager concept for the first time in the 700 MHz Guard Band, and believes that this licensing tool has the potential in other new spectrum allocations to provide private users with greater flexibility to access spectrum in amounts of bandwidth, periods of time, and geographic areas that best suit their needs.

The Report and Order defines the scope of the statutory exemption from auctions for "public safety radio services." The Commission concludes that the term "public safety radio services " as used in Section 309(j)(2) applies not only to traditional public safety services such as police, fire, and emergency medical services, but also to non-commercial services used by entities such as utilities, railroads, and transit systems.

Resolution of Petitions Concerning Existing Private Services

In the Report and Order, the Commission also addressed a number of pending petitions to amend its licensing and eligibility rules for existing private services. Specifically, the Commission declined a request to establish geographic area licensing and competitive bidding rules in the 450-470 MHz band. The Commission additionally declined a request to create a separate radio pool from existing private land mobile frequencies for entities that do not qualify for the existing Public Safety Radio Pool spectrum, but that fall within the broader "public safety radio services" exemption established by the 1997 Budget Act.

The Commission also made a limited change to its use restrictions affecting 800 MHz Business and Industrial/Land Transportation ("BI/LT") channels. Recognizing the unique nature of the 800 MHz band, and the degree to which BI/LT channels have previously been licensed to CMRS providers through inter- category sharing, the Commission concluded that subject to certain safeguards, BI/LT licensees should be allowed to "convert" their spectrum to commercial use, or to assign or transfer their licenses to CMRS operators for commercial use. To prevent trafficking by future licensees who apply for BI/LT licenses after the adoption date of the Report and Order, the Commission will not allow such conversions, assignments, or transfers until five years after the initial grant date of the license. In addition, it will prohibit a licensee who converts or transfers spectrum under this provision from obtaining new 800 MHz BI/LT spectrum in the same geographic area for one year. Finally, licensees who convert or transfer spectrum will be required to provide notice to adjacent public safety licensees and to cooperate in avoiding potential interference problems with public safety systems.

Licensing of Public Safety Pursuant to Section 337

The Report and Order also addresses the circumstances under which the Commission will award licenses under Section 337 of the Communications Act, which allows public safety entities to apply for unassigned spectrum not otherwise allocated for public safety use. The order also establishes procedures for consideration of Section 337 applications generally.

Further Notice of Proposed Rulemaking

Finally, in a Further Notice of Proposed Rulemaking, the Commission sought comment on a petition for rulemaking filed by the American Mobile Telecommunications Association proposing that certain Part 90 licensees be required to employ new spectrum-efficient technologies. In particular, the Further Notice seeks further comment on the effectiveness of the Part 90 rules that have been adopted in the course of the Commission's Refarming proceeding (PR Docket No. 92-235), the current pace of migration to narrowband technology, and on whether enough time has elapsed to allow the FCC to evaluate the effectiveness of its current rules. The Further Notice also seeks comment on whether to permit 900 MHz BI/LT licensees to modify or assign their licenses to permit CMRS use.

Action by the Commission on November 9, 2000 by Report and Order and Further Notice of Proposed Rulemaking (FCC 00-403). Chairman Kennard, Commissioners Ness, Furchtgott-Roth, Powell and Tristani.

- FCC -

Wireless Bureau Contacts: (Auctions Division) Leora Hochstein at (202) 418- 0660, e-mail: lhochste@fcc.gov; (Public Safety & Private Wireless) Shellie Blakeney at (202) 418-0680, e-mail at sblakene@fcc.gov or TTY at (202) 418-7233.

WT Docket No. 99 -87