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S'  )U< S' #&J\  P6Qg!&P#Federal Communications Commission`j(#bFCC 99138 ă   yx}dddy ) XX Њ Qb Before the Federal Communications Commission  S'&2Washington, D.C. 20554 ă In the Matter of  S'Replacement of Part 90 by Part 88 to#&J\  P6Qg!&P# ) Revise the Private Land Mobile Radio) Services and Modify the Policies) Governing Them)  S')  S'and)PR Docket No. 92235 ) Examination of Exclusivity and) Frequency Assignments Policies of) the Private Land Mobile Services)   Sj'  THIRD MEMORANDUM OPINION AND ORDER \  S'X` hp x (#%'0*,.8135@8:+.d,d,H,"  S'  I. INTRODUCTION AND EXECUTIVE SUMMARY ׃  S' e r1.ؠ` ` This Third Memorandum Opinion and Order (MO&O) addresses petitions for  xkreconsideration and related pleadings concerning the rules governing trunked operation in the Private Land  S5' x7Mobile Radio (PLMR) bands below 800 MHz that were adopted in the Second Report and Order (Second  S' x R&O)Zm yOk' " ԍReplacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the  x Policies Governing Them and Examination of Exclusivity and Frequency Assignments Policies of the Private Land  {O'Mobile Services, PR Docket No. 92235, Second Report and Order, 12 FCC Rcd. 14307 (1997) (Second R & O). in the captioned proceeding.m yO ' " ԍOn April 13, 1999, the Commission released the Second Memorandum Opinion and Order in this  {OU ' x proceeding, See Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify  x the Policies Governing Them and Examination of Exclusivity and Frequency Assignments Policies of the Private  {O ' xD Land Mobile Services, PR Docket No. 92235, Second Memorandum Opinion and Order, FCC 9968 (rel. Apr. 13,  x 1999). As part of that action, we addressed petitions for reconsideration concerning the consolidation plan for PLMR  {Oy ' x services. We also clarified one aspect of the concurrence requirement for trunked operations below 800 MHz. See  {OC'id. at para. 38. In this MO&O, we adopt new standards for consent by certain  S' xexisting licensees when applications are filed for trunked operation on shared spectrum below 800 MHz.k2 m yO' "I ԍWe note that issues related to "decentralized" trunking are being addressed in the Commission's biennial  x; review of its PLMR service rules. Decentralized trunking is a system of dynamic channel assignment in which either  x the base station or the mobile units continually monitor the system's assigned channels until an unused channel is  x| found. This type of dynamic channel assignment differs from traditional trunking in that the system does not require  {O' x* repeaters specifically designed for trunked operations. C.f. 1998 Biennial Regulatory Review 47 C.F.R. Part 90  xk ԩ Private Land Mobile Radio Services; Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio  x Services and Modify the Policies Governing Them; and Examination of Exclusivity and Frequency Assignments  {O' x Policies of the Private Land Mobile Services, WT Docket No. 98182, PR Docket No. 92235, Notice of Proposed  {O' x3 Rulemaking, FCC 98251, (rel. October 20, 1998) (1998 Biennial Review) at para. 23. Accordingly, because an independent record is being created in that proceeding, we will not address decentralized trunking herein.k  xWe direct the certified PLMR frequency coordinators to be primarily responsible for evaluating trunking  xkproposals on shared spectrum prior to submission and grant of authorizations for trunked operations. We  xnonetheless reserve to the Commission the right to resolve contested proposals. We also establish  xprocedures for the processing of trunking proposals on shared spectrum in order to guard against  S' xspeculative applications. Further, we affirm our decision in the Second R&O that a trunking proponent  xmust obtain consent from all affected cochannel and adjacent channel licensees before filing an  xapplication specifying trunked operation. In addition, we impose a limit on the number of channels that  x3may be requested when trunked operation is proposed. Finally, we terminate without adoption of new  S ' x^rules, the rulemaking initiated in the First Report and Order and Further Notice of Proposed Rule Making  S 'in this proceeding." m yOD!' " ԍ FR&O Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the  x Policies Governing Them and Examination of Exclusivity and Frequency Assignments Policies of the Private Land  {O"' x Mobile Services, PR Docket No. 92235, First Report and Order and Further Notice of Proposed Rule Making, 10 FCC Rcd. 10076 (1996) (First R & O and FNPRM).  Sn'4A II. BACKGROUND׃  S;'  S' e 2.` ` In the Second R&O, the Commission determined that permitting trunked operations on  x4shared spectrum would allow PLMR licensees to construct systems that are more efficient than  x[conventional systems, thereby allowing licensees to use fewer channels to provide the same".**!"  S' xtcommunications capability.Rm yOh'ԍSecond R&O, 12 FCC Rcd. at 14337.R Centralized trunking uses multiple channel pairs controlled by a computer  xtthat automatically assigns a user the first available channel or places the user in a queue to be served in  S' xtturn.:Xm {O'ԍId.: In an effort to foster the development of effective and efficient trunked operations in the PLMR  xgshared spectrum, the Commission adopted rules similar to those adopted for interconnection of PLMR  S4' xstations with the Public Switched Network.F4m {O'ԍId. at 143378.F Specifically, it decided to allow licensees to implement  xQcentralized trunked systems in the 150174 MHz, 421430 MHz, 450470 MHz, and 470512 MHz bands,  xprovided that they (1) obtain the consent of all licensees whose service areas overlap a circle with a radius  xof 113 km (70 mi) from the trunked system's base station and whose operating frequency is 15 kHz or  xless removed from the operating frequency of a trunked system designed to operate on 25 kHz channels  xor 7.5 kHz or less removed from a 12.5 kHz trunked system or 3.75 kHz or less removed from a 6.25 kHz  S' x*trunked system; and (2) comply with all frequency coordination requirements.X|m yO'ԍSecond R&O, 12 FCC Rcd. at 14338.X The Commission further  xrequired that statements stipulating the terms of such agreements be forwarded to the applicable frequency  S ' x7coordinator and the Commission as an attachment to the license application or modification.: m {OH'ԍId.: In addition,  xQfor those areas where licensees implement trunking, the Commission determined that new licensees could  xbe assigned the same channel(s) as the trunked system if the potential new licensee reaches a mutual  S ' xagreement with the licensee(s) operating the trunked system.;  m {OA'ԍId. ; The Commission also determined that if  xa licensee who previously consented or agreed to participate in a trunked system later decided against such  xuse, and that licensee is unable to negotiate a mutual agreement with the operator(s) of the trunked system,  Sj'that licensee may request that the Commission reassign it to another channel.: j0 m {O:'ԍId.:  S7'   S' e 3.` ` Seventeen petitions for reconsideration and related pleadings were filed in response to the  S' xgSecond R&O regarding trunked operations.}   m {O3' " ԍSee, e.g., Petition for Reconsideration, American Mobile Telecommunications Association, Inc. (AMTA  xk Petition); Petition for Clarification and/or Reconsideration, Industrial Telecommunications Association, Inc. (ITA  x& Petition); Petition for Partial Reconsideration and Request for Clarification, Kenwood Communications Corp.  x^ (Kenwood Petition); Petition for Reconsideration, Small Business in Telecommunications (SBT Petition); Petition  x of Ericsson, Inc. to the Second Report and Order (Ericsson Petition); Petition for Clarification, UTC, The  x Telecommunications Association (UTC Petition); Petition for Reconsideration, Manufacturers Radio Frequency  x Advisory Committee (MRFAC Petition); Comments of Affiliated American Railroads on Petitions for  x Reconsideration (AAR Comments); Comments of UTC on Petitions for Reconsideration (UTC Comments);  x| Comments of Motorola (Motorola Comments); Comments of Forest Industries Telecommunications (FIT Comments);  x Comments on Petitions for Reconsideration, INTEK Diversified Corp. (INTEK Comments); Opposition and  x Comments, Personal Communications Industry Association (PCIA Opposition); Opposition and Comments  x Responsive to Petitions for Reconsideration and/or Clarification, Industrial Telecommunications Association, Inc.  x (ITA Opposition); Request for Clarification of the Personal Communications Industry Association (PCIA Request);  x Supplemental Comments of the Land Mobile Communications Council on Petitions for Reconsideration of the Second  x Report and Order (LMCC Supplemental Comments); Reply Comments of UTC (UTC Reply); SBT Consolidated  xo Reply to Oppositions and Comments (SBT Reply); Kenwood Communications Corp Reply to Oppositions to Petition") .**XX)" for Partial Reconsideration and Request for Clarification (Kenwood Reply).} The issues raised in the petitions for consideration relate"X .**k"  xto six principal subjects: (1) the extent of concurrence from cochannel and adjacent channel licensees that  xmust be obtained before an application may be granted for use of shared spectrum for centralized trunking;  x(2) the need, if any, to place coordinations on "hold" while trunking consents are sought; (3) whether  x unanimous or less than unanimous consent of affected licensees should be sought in connection with  xtrunking proposals; (4) whether consent of affected adjacent channel licensees must be sought in  xconnection with trunking proposals; (5) whether there should be a limit on the number of trunked channels  x for which an applicant can apply; and (6) whether revisions are necessary to the Commission's "Safe  xxHarbor" tables. Subsequently, the Land Mobile Communications Council (LMCC) submitted supplemental  Sh'comments hXm yO` ' "} ԍSupplemental Comments of the Land Mobile Communications Council on Petitions for Reconsideration of the Second Report and Order filed July 22, 1988 (LMCC Supplemental Comments). that purport to be an industry consensus concerning trunked operation of PLMR facilities.zhm yO ' "_ ԍLMCC Supplemental Comments at 5. Therein it is noted that three LMCC member organizations the  x American Automobile Association (AAA), the International Municipal Signal Association (IMSA) and Forest  {OH' x@ Industries Telecommunications (FIT) do not support the filing of the supplemental comments. Id. at 2, n.3.  xt LMCC also states that, to the extent that earlier filings of its members are not representative of the consensus  x/ petition, those members request withdrawal of the conflicting portions of their filings. Based on LMCC's  x representation, we have not addressed the substantive arguments raised in the filings of its members, with the exception of AAA, IMSA and FIT to the extent those parties' filings conflict with the consensus position.  S'F hIII. DISCUSSION ׃  S ' e =4.` ` Based on our review and analysis of the petitions for reconsideration and/or clarification  xtpertaining to trunked operations below 800 MHz, we conclude that certain rules adopted in the Second  xR&O should be modified in order to accommodate efficient and effective trunking on PLMR shared  x@spectrum. As discussed in detail below, we believe that the rule changes we adopt herein will provide  xPLMR licensees the opportunity to more readily reap the benefits associated with trunked operations that is, increased utilization of radio channels in their existing and future systems.h  S7' e 5.` ` Most of the commenting parties who addressed the issuegZ7 m {O' "} ԍSee, e.g., AMTA Petition; ITA Petition; Kenwood Petition; SBT Petition; Ericsson Petition; UTC Petition;  x. MRFAC Petition; AAR Comments; UTC Comments; Motorola Comments; FIT Comments; INTEK Comments; PCIA Opposition; ITA Opposition; PCIA Request; LMCC Supplemental Comments.g favored amendment of Section  S' x90.187 of the Commission's RulesGm yO'ԍ47 C.F.R.  90.187.G to substitute a system of protected contours for the current mileage  xspacing criteria used to identify the licensees from whom consent must be obtained as a prerequisite to  S' xtrunked operation. As discussed above, Section 90.187(b) of the Commission's Rules requires trunking  xapplicants to obtain the consent of all cochannel and certain other licensees located 70 miles (113 km)  xor less from the proposed station's service contour (70mile concurrence area). The principal thrust of the  xpetitions and comments received is that the 70mile concurrence area is excessive in that it provides".**"  S' xgreater interference protection than is necessary. m {Oh' " ԍ CONTOURS See, e.g., LMCC Supplemental Comments at 58; Ericsson Petition at 3; AMTA Petition at 10; ITA Petition at 6; FIT Comments at 23; Kenwood Comments at 1011; Motorola Comments at 78.  Further, several parties contend that less than  S'unanimous consent of affected licensees should be sufficient to demonstrate concurrence."m {O' " ԍSee, e.g., Ericsson Petition at 2; INTEK Comments at 2; Kenwood Comments at 10; Motorola Comments at 89.  Sg'A.` ` Concurrence Area   S' e 96.` ` We have considered, but decline to adopt, Ericsson's suggestion that we address the  S' xkproblems associated with a 70mile separation criterion by reducing the minimum separation to 55 miles.R|m {O 'ԍSee Ericsson Petition at 3.R  xEricsson asserts that its 55mile separation recommendation is based on the premise that stations in the  x*800 and 900 MHz bands may operate as close as 55 miles in proximity of each other. However, we note  xthat the 55mile separation referenced by Ericsson applies only to shortspaced Specialized Mobile Radio  x3(SMR) stations. In this connection, we note that the typical spacing between 800 and 900 MHz radio  xfacilities is 70 miles, and that a shortspaced SMR station is required to operate at reduced power or  S ' xantenna height. & m {OJ' "@ ԍId. The necessary power or antenna height reduction is taken from tables that are based on the maintenance  x of a minimum 18 dB signal to interference ratio at the 40 dBu contour of the station with which the proposed station  {O' xk is short spaced, i.e., the 22 dBu interference contour of the proposed station may not overlap the 40 dBu contour  {O'of the protected station. Id.  While reduction of the maximum radius of the concurrence area to 55 miles indeed  xmight provide a modicum of improvement over a 70mile separation standard, we believe that our  xmodified approach, as discussed below, is both more efficient and less likely to result in harmful interference to existing stations.  S ' e 7.PARAMETERS CONTOUR ` ` Along these lines, we agree with the position advocated by the LMCC and other parties  xthat the existing 70mile separation standard should be supplemented by an alternative standard because,  S7' x^otherwise, implementation of trunking in spectrumcongested urban areas may be completely precluded.7 m {O' " ԍSee, e.g., LMCC Supplemental Comments at 58; AMTA Petition at 10; ITA Petition at 6; FIT Comments  {O'at 23; Kenwood Comments at 1011; Motorola Comments at 78. See also Kenwood Reply at 47.  S' xAccordingly, as recommended by several of the commenting parties,X m {O' "8 ԍSee, e.g., LMCC Supplemental Comments at 58; Motorola Comments 8; Kenwood Petition at 10; FIT Comments at 23. we adopt a protected contour  xanalysis alternative whereby applicants for trunked operations are required to obtain concurrence whenever  xthe 19 dBu (UHF) or 22 dBu (VHF) interference contour from a proposed trunked station intersects the  x37 dBu service contour (UHF) or 39 dBu service contour (VHF) of any existing cochannel or adjacent  xtchannel station. We note that a contour analysis is not required if a trunking proponent elects to utilize the 70mile separation standard.  S' e 8.` ` In endorsing the use of contour calculations to ascertain the stations with which  xcoordination is required, Kenwood observes that contour calculation should be based on propagation  xanalysis and that applicants should be entitled to make special showings to incorporate "accepted distance S' xttocontour formulas, terrain shielding factors and computer modeling."Km yOX)'ԍKenwood Petition at 1011.K While we will not require the"B.**"  x3use of any specific contour prediction method, we will rely on the certified frequency coordinators to  xkevaluate proposed trunking applications to ensure either that there is no prohibited contour overlap or that,  xif there is overlap, consent has been obtained from the relevant licensee or licensees. We expect that the  xQcertified frequency coordinators will use their existing techniques, or improvements thereon, to determine  xcontour overlap. The only restriction we will place on the process is that the contour prediction  xgmethodology used represent the consensus of all certified frequency coordinators. Individual trunking  xDapplicants will be permitted to contest coordinators' determinations; however, the burden of showing that  xa coordinator's conclusions are faulty will rest with the trunking applicant. We anticipate that should  xcontroversies arise, they, for the most part, will be resolved by the certified frequency coordinators. Thus, we believe that few contested trunking coordinations will be referred to the Commission.  S' e 9.` ` In addition, we reject SBT's and PCIA's recommendation that trunked stations be licensed  x*on a developmental basis and then be given regular licensing status within a certain period of time if there  Si ' xis no reported harmful interference.i m {O 'ԍSee SBT Petition at 20; PCIA Petition at 34. See also SBT Reply at 25. We do not believe that their recommended method has any  xsignificant advantage over the approach that we adopt herein. In fact, we are concerned that, if  ximplemented, the developmental license method could result in harmful interference to existing licensees.  xZAlso, we are loathe to involve the Commission and affected licensees in the burdensome determination  S ' x/of the existence of harmful interference vel non, from what potentially could be a large number of  x7developmental licensees. Moreover, as UTC notes, developmental licensing imposes a burden on existing  xlicensees who must identify the sources of interference, negotiate with the interfering stations for  S'interference resolution and, if unsuccessful in that effort, seek redress at the Commission.MZm {O'ԍSee UTC Comments at 7.M  S'B.` ` Coordination "Hold" While Consents are Obtained  S9' e d 10.` ` As some commenting parties have noted, we recognize that when applicants for trunked  xfacilities begin the process of seeking consent from existing stations, there is the potential that other  xppersons may seek to file conflicting applications in order to frustrate the trunking proposal or exact  S' xmonetary consideration from the potential trunking applicant in exchange for a consent agreement.vm {O,'ԍSee, e.g., LMCC Supplemental Comments at 9; AMTA Comments at 8.v To  x@forestall this possibility, some commenting parties have suggested that potential trunking applicants be  xallowed to place a "hold" on coordinations on their intended channels for a period sufficient to enable  S' xthem to obtain the requisite consents and file their applications.~m {O%' " ԍSee, e.g., LMCC Supplemental Comments at 910; Kenwood Petition at 910; AMTA Petition at 79; ITA  {O'Petition at 89. See also Kenwood Reply at 23. Under the "hold" construct, a certified  xfrequency coordinator receiving formal notice from a trunking proponent of the proponent's intent to  S' xxpursue trunking on given frequencies would so advise all other relevant certified frequency coordinators.>m {O#'ԍSee id.>  xThereupon, the subject frequencies would be protected from conflicting applications for a certain period  xof time sufficient for the trunking proponent to obtain the requisite consents from existing affected co S' xchannel and adjacent channel licensees. AMTA has suggested that the "hold" period be 120 days,Nl m {O''ԍSee AMTA Petition at 9.N while  S' xDITA proposes a 90 day period.M m {Os)'ԍSee ITA Petition at 8.M FIT opposes "holding" coordinations on the basis that it would be unfair" .**"  xIto other applicants whose coordination requests would be delayed and because it would encourage  S'speculative applications.Mm {O5'ԍSee FIT Comments at 5.M  Sg' e  11.` ` We agree that some protection should be afforded against the submission of "strike"  xapplications during the period in which a trunking proponent is seeking consent from existing licensees  xpand note that the holding period will be an additional bar against "greenmail" attempts proscribed by  S' xSection 1.935 of the Commission's rules.F Zm yO'ԍ47 C.F.R.  1.935.F However, in providing such protection, we must balance our  S' xkaction against the effect that the "hold" on coordinating frequencies would have on bona fide applications.  xWe believe that a diligent trunking proponent should be able to negotiate and obtain the requisite consents  x@within a period of 60 days and that a 60day "hold" period should not have a significant adverse effect  S' xIon parties intending to submit bona fide applications for frequencies subject to a proposed trunked  xoperation. In that connection, we note that the action we have taken herein to afford trunked applicants  xa contour overlap alternative as the criterion for defining the licensees from whom consent must be  xobtained substantially reduces the number of licensees from which a trunking proponent must obtain  xconsent, with an expected concomitant reduction in the amount of time required to do so. Accordingly,  xwe are instituting a rule that provides that the submission of a formal notice to a certified frequency  x/coordinator of a potential applicant's intent to pursue trunking on specified frequencies will toll the  xZcoordination of conflicting applications for those frequencies for a period of 60 days. Further, we are  xIrequiring that a certified frequency coordinator who receives such a notice shall so advise all other  xassociated certified frequency coordinators within one business day of receiving the notice. We also  xrecognize that there is a potential for abuse of the "hold" provisions were a trunking proponent to submit  xZconsecutive notices to the certified frequency coordinator thus effectively extending the 60day tolling  xperiod. Accordingly, we are requiring that, once a trunking proponent submits a "hold request" to a  xcertified frequency coordinator, at least six months must expire before that proponent may submit a request to hold frequencies in the same general area.  S'C.` ` Degree of Consent Required  Sn' e  12.` ` Our current rules require unanimous consent for trunking from all affected existing  xgstations. Ericsson asserts that consent of a simple majority of affected stations should be sufficient to  xgsupport a trunking application, but that the applicant should be required to pay relocation costs for any  S' xexisting station that encountered harmful interference from the trunked facility.R!m {O_'ԍSee Ericsson Petition at 2.R If unanimous consent  S' x&is required, Ericsson contends that any "holdout" licensee could thwart a trunking proposal.:"|m {O 'ԍId.: INTEK  xbelieves that requiring unanimity will deter or defeat trunking and suggests that the Commission relax the  S<' xIconsent requirements to some unspecified value below 100%.O#<m {O#'ԍSee INTEK Comments at 2.O Motorola suggests that only users  S ' xrepresenting at least 85% of the mobile units operated on the channel need consent.T$ m {OI&'ԍSee Motorola Comments at 89.T In the alternative,  xMotorola suggests that, if unanimity is required, the Commission adopt a mechanism whereby intransigent,"2 $.**"  xpunreasonable licensees could be forced to accept the presence of a trunked system on their current  S'channel(s).:%m {O5'ԍId.:  Sg' e  13.` ` Kenwood asserts that trunking proposals may safely be implemented without the consent  xof any affected licensees: that monitoring a channel for a period of weeks and finding no traffic  S' xyshould establish the availability of that channel for use in a trunked facility.E&Zm {O'ԍId. at 9, n.6.E As Kenwood itself  xconcedes, monitoring for a period of weeks would not capture "seasonal" users of channels such as beach  S' xtpatrols, ski lift operators, etc.:'m {O' 'ԍId.: Moreover, we note that the use of some communications systems is a  x3function of emergency conditions such as forest fires, mass disasters, etc. Kenwood proposes that a  S5' xtrunked licensee would remain accountable for, and must remedy, interference to such operations.@(5~m {OS'ԍId. at 9.@  xHowever, we are concerned that such remediation would come too late and that the public welfare could  xsuffer on that account. In any event, we find that Kenwood's proposal offers no advantage over the use  S ' xxof contour analysis which Kenwood itself also endorses in the alternativeA) m {OL'ԍId. at 11.A in determining the stations  xVfrom which consent must be sought as a prerequisite to trunked operation, and that the monitoring  xproposal would pose significant administrative difficulties in the resolution of interference controversies that implementation of the proposal likely would engender.  S ' e  14.` ` Given that use of a channel for trunking can render the channel unusable by other than  xthe trunked licensee and that the trunking proponent may negotiate any necessary relocation in advance  xof submitting its application, we are reluctant to deviate from the requirement that unanimous consent of  xaffected stations be obtained. As FIT has pointed out, we are concerned that allowing less than unanimous  S' xconsent may allow trunking proponents to force out incumbents.O*m {O'ԍSee FIT Comments at 34.O Similarly, UTC argues that allowing  xa group of licensees to be subjected to interference merely because another group of licensees concur with  Sk' xa trunking proponent's proposal relegates the nonconcurring licensees to secondary status.O+k4 m {O?'ԍSee UTC Comments at 67.O We therefore  xdecline to adopt either Ericsson's or Motorola's proposals for requiring less than unanimous consent of  x&affected licensees if a channel is to be used for trunking. Moreover, we do not believe that the public  x7interest would be served or that it is necessary for the Commission to become embroiled in controversies  xconcerning whether an existing licensee has acted "reasonably" in withholding consent to a trunking  xpproposal. Rather, we believe that this is a matter that should be handled among the affected parties  xtwithout Commission intervention. To the extent that there is concern that trunking operations will tend  xto force out nontrunked incumbents, we note that an incumbent licensee may condition its consent on the trunking proponent providing service on the trunked system to the incumbent licensee.  Sm' e F 15.` ` In sum, we recognize that implementation of trunked systems could be inhibited to a  x^degree by the unanimous consent requirement. However, the burden of obtaining unanimous consent has  xQbeen substantially mitigated by our allowing the use of protected contours, rather than mileage separation,  xDto determine the number of stations from which consent must be obtained. Should experience prove that  xthe unanimous consent requirement is materially inhibiting the implementation of trunked systems and" +.**k"  xVhence impairing more efficient use of the spectrum we will revisit the issue of whether less than  xunanimous consent of affected licensees would be sufficient to support an application for trunked operation.  S4'gD.` ` Adjacent Channel Interference  S' e 16.` ` Kenwogod submits that the consent requirement should be eliminated with respect to  xadjacent channel licensees and that it should be sufficient for a trunking proponent to merely certify that  Sh' x*no interference is calculated to be due to any adjacent channel licensee.R,hm {O'ԍSee Kenwood Comments at 11.R Implicit in Kenwood's proposal  xis the conclusion that the likelihood of a trunked system causing interference to an adjacent channel  xplicensee is inconsequentially slight. However, we find that Kenwood has cited no authority for that  xconclusion nor provided technical data to support it. In opposing Kenwood's proposal, Motorola observes  xtthat the channeling plan adopted for refarming assigns channels every 6.25 kHz while allowing varying  Si ' xQbandwidth equipment, i.e. equipment employing 25 kHz and 12.5 kHz bandwidth. Accordingly, Motorola  S7 ' xsubmits, "systems assigned to adjacent frequencies are actually cochannel in many instances."R-7 Zm {O1'ԍSee Motorola Comments at 9.R Similarly,  xFIT opposes Kenwood's proposal, arguing that incumbent systems will require protection from adjacent  S 'channel stations until narrowbanding has been fully implemented.M. m {O]'ԍSee FIT Comments at 5.M  Sk' e 17.` ` Based on the record in this proceeding, we have decided not to adopt Kenwood's proposal  xto exempt trunking proponents from obtaining consent from existing licensees that have an adjacent  xchannel relationship to the proposed trunked facility. Kenwood has not shown that harmful interference  xto adjacent channel licensees would not occur when a trunked facility is implemented. Further, we do not  xgagree that a certification that "no interference is calculated . . . to any adjacent licensee" would provide  xthe same certainty as actual consent from the affected licensee. Moreover, we note that we have  xsubstantially addressed Kenwood's concern about requiring "consent of adjacent channel licensees at the  S' x}same mileage limits as those for cochannel licensees"H/~m yO$'ԍKenwood Comments at 11.H by allowing protected contour analysis as a substitute for "mileage limits."  Sm'gE.` ` Limitation on the Number of Channels Requested  S' e 18.` ` Under our current rules, there is no limit on the number of trunked channels for whichgń  xgan entity may apply in one application. Some petitioners have asserted the need for such a limit lest an  x^applicant inhibit effective use of the spectrum by obtaining authorizations for trunked channels that would  Sn' xnot be immediately used.q0nm {O#'ԍSee, e.g., LMCC Comments at 89; AMTA Comments at 9.q We share the petitioners' concern regarding the potential for spectrum  xt"warehousing" in the PLMR shared spectrum. We are persuaded that a limit is appropriate. Further, in  xterms of determining such limit, we are guided by the industry consensus position reflected in the LMCC's  S' xfiling;V1m {O''ԍSee LMCC Comments at 89.V thus, we conclude that the maximum number of channels that may initially be requested for any  xgiven trunked system is ten. We note that such a limit would not preclude an applicant from requesting  xadditional channels in subsequent applications. However, consideration of such subsequent applications  xwould be dependent upon a certification from the applicant that the channels for which it is then"< 2 1.**"  xauthorized have been constructed and placed into operation. Certified frequency coordinators are  xauthorized to verify such certifications. LMCC has proposed that a channel limit not be imposed on  xpublic safety entities seeking trunked operation because such entities often construct complex  Sg' xcommunications systems requiring a large number of channels.[2gm {O'ԍSee LMCC Supplemental Comments at 8.[ Although we decline to adopt LMCC's  xproposed blanket exclusion of public safety applicants from the 10channel limit, we recognize that large  xpublic safety communications systems may require more than 10 channels at a single location.  xkAccordingly, we will allow public safety applicants to apply for more than 10 channels provided that such  x*applications are accompanied by a showing of sufficient need; for example loading studies demonstrating  xZthat each requested channel in excess of 10 will be loaded with 50 or more mobiles per channel within  S5'a five year period commencing with grant of the applications.S35Zm {O/ 'ԍC.f.  47 C.F.R.  90.313.S  S'gF. ` ` Operational Issues  Si ' e 019.` ` LMCgC states that, once all trunking consents have been obtained, the trunking applicant  xwould file its application with the Commission "with consent forms attached as specified in the current  S ' x<rules."R4 m yO'ԍLMCC Supplemental Comments at 10.R We believe that LMCC's statement does not accurately reflect the substance of our rules.  S ' xSpecifically, Section 90.187(b)(3) of the Commission's RulesM5 |m yO'ԍ47 C.F.R.  90.187(b)(3).M provides that "a statement [not the  xagreements] must be submitted to the Commission indicating that all licensees have agreed to the use of  xtrunking." Thus, trunking proponents are required to include a certification to the effect that they have  x^obtained the requisite consents from affected licensees and that the terms of such consents are consistent  xwith the Commission's Rules. We further will require that trunking applicants maintain a copy of the consent agreements, which can be made available for inspection upon the Commission's request.  Sk' e 20.EUO` ` UTC submits that Section 90.187(b)(2)(iii) of the Commission's rules implies that a  xlicensee authorized to employ trunking is afforded a "protected service area" with regard to new applicants  S' x/specifying the same channel or channels as those used by the licensee employing trunking.J6 m {O'ԍSee UTC Reply at 3.J UTC  xrecommends that such protected service area be established by reference to the service area contour  xrealized by use of the parameters (effective radiated power and antenna height above average terrain)  Sl' xemployed to determine whether or not consent needed to be sought from existing licensees.A7lm {O 'ԍId. A We agree  xDwith UTC that the protected service area of a trunked station should be so defined. However, the service  S' xarea will no longer be protected should the trunking licensee discontinue trunked operation. Moreover,  S' xin response to the clarification sought by UTC,@80 m {O$'ԍId. at 4.@ we hereby state that the service area shall be protected against both cochannel and adjacent channel interference. "m 8.**+"Ԍ S'gG.` ` Trunking in the Bands Below 150 MHz  S' e m21.` ` FIT arggues that trunking should be confined to bands above 150 MHz because of the  Sg' xxpropagation vagaries of lower frequencies.C9gm yO'ԍFIT Comments at 6.C We agree with FIT's contention. It would be difficult, if not  ximpossible, to apply either the protected contour or mileage separation principle to obtain trunking  xconsents for channels below 150 MHz because, given favorable propagation conditions, signals on those  xxfrequencies can cause interference to stations hundreds or thousands of miles distant. Accordingly, at this time, we are limiting trunked operation to frequencies 150 MHz and above.  S5'4H.` ` Alleged Bias Against Spectrally Efficient Systems  S' e ~22.` ` Ericsson contends that Section 90.187(b)(2)(1) of the Commission's Rules discriminates  x4against licensees who employ highly spectrally efficient equipment using 12.5 kHz or 25 kHz  Si ' xbandwidths.R:i Xm {Oa'ԍSee Ericsson Petition at 3.R The basis of Ericsson's argument is that applicants proposing trunked operation with 25 kHz  xor 12.5 kHz bandwidths even when using what Ericsson characterizes as "spectrumefficient" equipment  xԩ must obtain the consent of cochannel and adjacent channel licensees, whereas applicants proposing  S ' xtrunked operation on 6.25 kHz channels need only obtain consent of affected cochannel licensees.D; m {OZ'ԍSee id. at 4.D To  xremedy this perceived inequity, Ericsson suggests two alternative solutions. The first is to limit trunking  Sj' xQto: (a) those channels that are the same as the "original 25 kHz channels," i.e. the channels as they existed  S8' xprior to refarming; and (b) those channels that are offset by 25 kHz from the original 25 kHz channels.:<8|m {OT'ԍId.:  xThe second proposed solution is to require applicants that propose trunking on 6.25 kHz channels to obtain  xconsent from affected adjacent channel licensees using 12.5 kHz channels if the operating frequency of  S' xthose adjacent channel licensees falls within 7.5 kHz of the proposed trunked channel.:=m {OM'ԍId.: The referenced  xpconsent would be required only if the licensee using 12.5 kHz channel bandwidth met an efficiency  S9'standard of at least one "talk path" per 6.25 kHz of bandwidth.:>9m {Oy'ԍId.:  S' e 23.` ` We disagree with Ericsson's contention that our rules governing trunking below 800 MHz  xpresent adverse consequences for what Ericsson characterizes as "spectrally efficient systems." As an  xinitial matter, we note that Ericsson has not shown that its systems are any more spectrally efficient than  xthose using other technology. Further, we do not believe that implementation of either of Ericsson's  xproposals would further the public interest or improve upon our trunking rules. In this connection, we  xbelieve that Ericsson's first proposal could artificially limit the number of channels available for trunked  xoperation without a concomitant public interest benefit to doing so. This is contrary to our express goal  xof maximizing the number of channels available for trunked operation. Moreover, we are concerned that  xEricsson's second proposal could penalize certain licensees by requiring them to afford an unwarranted  xxadditional degree of interference protection to certain stations using Ericsson's technology which Ericsson  xasserts, but has not shown, has superior spectral efficiency. Thus, we believe that adoption of this second  xkof Ericsson's proposals could also limit the number of channels available for trunked operation and, in any event, would be administratively cumbersome. "< 2 >.**"Ԍ S'I.` ` Limiting Trunked Operation to Incumbent Licensees  S' e 24.` ` ITA urges that trunking authorizations be issued only to existing stations that file a notice  Sg' xto convert to trunked operation.M?gm {O'ԍSee ITA Petition at 9.M We believe that the net effect of such a limitation would be to relegate  xgnew applicants to a single channel or if their communications requirements so justified to multiple  xuntrunked channels. One of the goals underlying the rules adopted in this proceeding for allowing trunked  S' xoperation is to realize spectrum use efficiencies.c@XZm yO' " ԍ"Trunked systems will allow PLMR licensees to construct systems which are more efficient than  x conventional systems, thereby allowing licensees to use fewer channels to provide the same communications  yOX 'capability." Second R & O, 12 FCC Rcd. at 14337.c We are not convinced by ITA that it would serve the  xpublic interest to deny new applicants the opportunity to realize such efficiencies and thus decline to adopt ITA's suggested restriction.  S'J.` ` Other Related Matters  S '` ` 1. Further Notice of Proposed Rulemaking  S6 ' e 25.` ` In the First R&O and FNPRM, the Commission sought comment on: (a) means to afford  xexclusivity on PLMR channels that currently are shared; (b) permitting leasing of excess capacity on  xexclusive channels; (c) introduction of user fees for PLMR spectrum; and (d) whether spectrum auctions  S 'could achieve the same policy goals as user fees.LA zm yO'ԍ10 FCC Rcd. at 10079.L  S7' e 26.` ` The regulatory landscape has changed since these proposals were introduced in 1995. In  S' x<particular, the Balanced Budget Act of 1997fB m yO'ԍPub. Law No. 10533, Title III, 111 Stat. 251 (1997).f has overtaken the issues raised in the First R&O and  xFNPRM concerning auctions. With enactment of the 1997 Balanced Budget Act, competitive bidding is  xZnow mandatory when mutually exclusive initial applications are filed for any service, subject to certain  Sk' xgspecified exceptions,7C$km yO' "" ԍThe statute exempts from auctions applications for public safety radio services and private internal radio  xD services used to protect the safety of life, health, or property and that are not made commercially available to the  {O5' xU public and for initial noncommercial broadcast applications and certain digital television applications. See 47 U.S.C.  {O' 309(j)(1), 309(j)(2).  See also 47 U.S.C.  397(6).  7 and questions concerning the auctionability of spectrum used to provide private  S8' xxinternal radio services are the subject of a pending proceeding.D$8 m yO^!' "y ԍBBAImplementation of Sections 309(j) and 337 of the Communications Act of 1934, as amended, Promotion  x7 of Spectrum Efficient Technologies on Certain Part 90 Frequencies, Establishment of a Public Service Radio Pool  {O"' x in the Private Mobile Frequencies Below 800 MHz, WT Docket No. 9987, RM9332, Notice of Proposed  {O#'Rulemaking, FCC 9952 (rel. March 25, 1999). Further, a proposal in the First R&O and  S' xFNPRM concerning user feesEZrm yO&' " ԍUser fees, which are intended to recover from the user the market value of spectrum, are to be distinguished  x from application fees, which are fixed by statute, and regulatory fees, which the Commission is mandated to collect  {O''in order to recover its own costs. See 47 U.S.C.  158, 159. was premised on Congress giving the Commission statutory authority to" E.**"  S' ximpose such fees.kFm {Oh'ԍSee First R&O and FNPRM, 10 FCC Rcd. at 1013610137.k However, that anticipated authority was not forthcoming, although user  S' xfees could, of course, be authorized in the future. Also, the First R&O and FNPRM introduced the  xMconcept of "exclusive use overlay" whereby a licensee employing spectrumefficient technology could  xg"cap" the number of users on that licensee's channel, thereby foreclosing additional interference on the  xMchannel. The exclusive use overlay construct was viewed as having particular benefits for centralized  S' x^trunking operations.NGZm {O'ԍSee id. at 1012910131.N We note that the rules adopted herein provide that, once a trunking licensee obtains  xconsent from other licensees potentially affected by the trunked operation and obtains a license for trunked  S' xoperation, no additional users may be added to the trunked channel, i.e. the number of users of the trunked  xchannel is "capped" at the existing level. Thus, for trunked operations, we have provided the functional  S6' xequivalent of exclusive use overlay. Accordingly, some of the issues addressed in the First R&O and  xFNPRM are no longer germane to this proceeding's spectrum conservation goals and portions of the record  xMare stale. We therefore terminate the rulemaking portion of the First R&O and FNPRM as it relates to  S ' xmatters, such as exclusive use overlay, rendered moot by decisions in the instant docket. However, to the  xextent that issues raised in the First R&O and FNPRM may have a bearing on the Commission's  S7 ' xproceeding concerning implementation of the 1997 Balanced Budget ActZH7 m {O'ԍSee n.  BBA68  supra.Z we will incorporate the record of the First R&O and FNPRM into that proceeding. 4  S '` `  2.Amendments to Safe Harbor Tables  S8' e 27.` ` We find that the question of the technical appropriateness of the Safe Harbor tables should4  S' xQnot be addressed herein because it is a matter outside the scope of the Second R & O.hI~m {O#'ԍSee Motorola Petition at 10; AMTA Petition at 12.h The Safe Harbor  S' xDtables were established in the First R&O and FNPRM. Any petition for reconsideration of that order was  S' xrequired to be filed within 30 days of its release date, see 47 C.F.R.  1.429(d); thus, we conclude that  xrequests for reconsideration of the Safe Harbor rules in the context of the instant proceeding are  S:' xuntimely.PJ:m {O'ԍSee PCIA Opposition at 8.P Proposals for revision of the Safe Harbor rules, at this juncture, would be appropriate for a petition for rulemaking and not a petition for reconsideration.  S'` `  D IV. CONCLUSION ׃  S;' e W28.` ` In this Third Memorandum Opinion and Order, the Commission has fashioned amended  xrules that will permit greater numbers of licensees to realize the efficiencies attainable through the use of  xttrunking consistent with protecting neighboring stations against harmful interference. Additionally, the  xCommission has clarified certain of its trunking rules and has incorporated other rule modifications that  x^will simplify the preparation and coordination of trunking applications. These decisions affirm the general  S=' x&framework for trunking adopted in the Second R&O. In sum, the rule amendments and clarifications  x^adopted herein continue our efforts to promote effective and efficient use of the PLMR spectrum through spectrum refarming. " J.**^"Ԍ S'  V. PROCEDURAL MATTERS  S'  S' A.Regulatory Flexibility Act   S4' e S29. REG FLEX  ` ` Appendix B contains a Final Regulatory Flexibility Analysis with respect to this Third  S'Memorandum Opinion and Order.  S' B.Paperwork Reduction Act Analysis  S7' "R 30. REG FLEX  This Third Memorandum Opinion and Order contains either a new or modified information  x@collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the  S' xggeneral public to comment on the information collection contained in this Third Memorandum Opinion  S ' xDand Order as required by the Paperwork Reduction Act of 1995, Pub. L. No. 10413. Public and agency  Sn ' xDcomments are due 60 days from date of publication of this Third Memorandum Opinion and Order in the  xFederal Register. Comments should address: (a) whether the new or modified collection of information  xis necessary for the proper performance of the functions of the Commission, including whether the  xinformation shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways  xto enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the  xburden of the collection of information on the respondents, including the use of automated collection  S=' xtechniques or other forms of information technology. These comments should be submitted to Judy Boley,  x^Federal Communications Commission, Room 234, 1919 M Street, N.W., Washington, D.C. 20554, or via  xthe Internet to jboley@fcc.gov. Furthermore, a copy of any such comments should be submitted to  xTimothy Fain, OMB Desk Officer, 10236 NEOB, 725 - 17th Street, N.W., Washington, D.C. 20503 or via the Internet at fain_t@al.eop.gov.  S ' gC.Ordering Clauses   S' e q31.ORDERING CLAUSES ` ` Ign view of the foregoing and pursuant to the authority contained in Sections 4(i), 303(r),  x and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(r), and 405, and  S?' x!Section 1.429(i) of the Commission's Rules, 47 C.F.R.  1.429(i), IT IS ORDERED that the Petitions for  S ' xReconsideration and related pleadings described herein ARE GRANTED in whole or in part and  S' DENIED in part as discussed herein;  Ss' e 32. ` ` IT IS FURTHER ORDERED that pursuant to the authority contained in Sections 4(i)  x^and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  4(i) and 303(r), Part 90 of the  S ' xCommission's Rules IS AMENDED as set forth below effective [60 days after publication in the  S'Federal Register] .  St' e N 33.` ` IT IS FURTHER ORDERED that the rulemaking portion of the First Report and Order  SA' xand Further Notice of Proposed Rule Making IS TERMINATED as to matters rendered moot by the  S 'instant Third Memorandum Opinion and Order and previous orders in the instant proceeding.  S!' e !34. ` ` IT IS FURTHER ORDERED that the Commission's Office of Public Affairs, Reference  Sv"' xOperations Division, SHALL SEND a copy of this Third Memorandum Opinion and Order including the  xgSupplemental Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. "$J.**#&"Ԍ S' 6 D.Contact for Information   S' e "35. CONTACTS  ` ` For further information contact Michael Wilhelm of the Public Safety and Private Wireless  xWDivision of the Wireless Telecommunications Bureau at (202) 4180680 or via email to "mwilhelm@fcc.gov". ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCMagalie Roman Salas ` `  hhCSecretary 6 "i J.** "  S' APP A Y APPENDIX A   S'\List of Petitioners and Commenters Đ Sg'\  S4'Petitions for Reconsideration or Clarification: UTC, The Telecommunications Association Personal Communications Industry Association Manufacturers Radio Frequency Advisory Committee, Inc.  S5'American Mobile Telecommunications Association, Inc.  S'Small Business in Telecommunications Kenwood Communications Corp. Motorola Industrial Telecommunications Association, Inc. Ericsson, Inc.  S 'Comments INTEK Diversified Corp. Affiliated American Railroads Industrial Telecommunications Association, Inc. Forest Industries Telecommunications Personal Communications Industry Association UTC, The Telecommunications Association  S'Reply Comments: Kenwood Communications Corp. Small Business in Telecommunications  S'Supplemental Comments: Land Mobile Communications Council  Sm'"mJ.**"  S' APP B  Z APPENDIX B   S' Supplemental Final Regulatory Flexibility Analysis Đ\J  S4' e  1. 1. 1. a.(1)(a) i) a)# 1. 1. 1. a.(1)(a) i) a)1. REGFLEX  ` ` As required by the Regulatory Flexibility Act (RFA), see 5 U.S.C.  603, Initial  S' xDRegulatory Flexibility Analyses (IRFA) were incorporated in the Notice of Proposed Rule Making and the  S' x*Further Notice of Proposed Rule Making in PR Docket 92235.t m yO8' " ԍReplacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the  {O' x Policies Governing Them, PR Docket 92235, Notice of Proposed Rule Making, 7 FCC Rcd 8105, 8133 (1992)  {O' xZ (Refarming Notice). Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and  xD Modify the Policies Governing Them and Examination of Exclusivity and Frequency Assignments Policies of the  {O\ ' xU Private Land Mobile Radio Services, PR Docket No. 92235, Report and Order and Further Notice of Proposed Rule  {O& ' x Making, 10 FCC Rcd 10076, 10177 (1995) (Report and Order or Further Notice). A Final Regulatory Flexibility  {O ' x Analysis was provided in the first Memorandum Opinion and Order, Replacement of Part 90 by Part 88 to Revise  {O ' x the Private Land Mobile Radio Services and Modify the Policies Governing Them, PR Docket 92235, Memorandum  {O ' x Opinion and Order, 11 FCC Rcd. 17676, 17718 (1996). An additional Final Regulatory Flexibility Analysis was  {ON' x furnished in connection with the Second Report and Order, Replacement of Part 90 by Part 88 to Revise the Private  {O' x Land Mobile Radio Services and Modify the Policies Governing Them, PR Docket 92235, Second Report and  {O'Order, 12 FCC Rcd 14307, 14353 (1997). The Commission sought written public  S' xcomment on the rulemaking proposals in the Refarming Notice and Further Notice, including on the  x*respective IRFAs. This present Supplemental Regulatory Flexibility Analysis (Supplemental FRFA) in this  S9'Third Memorandum Opinion and Order (Third MO&O) conforms to the RFA.Z9 m {O' "I ԍSee 5 U.S.C.  603. The RFA, see 5 U.S.C.  601 et seq., has been amended by the Contract With America  x Advancement Act of 1996, Pub. L. No. 104121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).  S 4 I.Need For, and Objectives of, the Third MO&O  S; ' e A2. FRFA_A  ` ` Our objective is to increase spectrum efficiency and facilitate the introduction of spectrum xuse efficiencies into the 150174 MHz, 421430 MHz, 450470 MHz, and 470-512MHz private land  xmobile radio (PLMR) bands by adopting and refining the Commission's rules that deal with the trunking  S ' xof PLMR facilities. The Report and Order in this proceeding modified the Commission's rules to resolve  xxmany of the technical issues which inhibited the use of spectrally efficient technologies in these frequency  xbands. It also stated the Commission's intent to consolidate the twenty existing radio service pools. The  S ' xFurther Notice in this proceeding proposed several methods of introducing market based incentives into  S' xthe PLMR bands, including exclusivity. In the Second R&O, the Commission consolidated the radio  xservice frequency pools and addressed related issues such as frequency coordination, trunking, and low  Ss' x^power frequencies. The Second MO&O addressed petitions for reconsideration and clarification received  SA' xin response to the Second R&O except to the extent those pleadings addressed trunking and potential  S' xxinterference to biomedical telemetry from PLMR facilities. This Third Memorandum and Order addresses  xthe trunking issues; biomedical telemetry issues will be addressed in a subsequent memorandum opinion and order.  SD' e 3. ` ` The Commission finds that the potential benefits to the PLMR community from the  xpromulgation of rules for this purpose exceed any negative effects that may result. Thus, the Commission  xconcludes that the public interest is served by modifying our rules to increase the spectral efficiency of the PLMR bands through use of trunking techniques. "E&.**"Ԍ S' " II.XSummary of Significant Issues Raised by the Public in Response to the Previous Final  S'Regulatory Flexibility Analyses (#  Sg' e 4. FRFA_B  ` ` No reconsideration petitions were submitted in direct response to the previous FRFAs.  x7The Commission has, however, reviewed general comments that may impact small businesses. Much of  xthe impact on small businesses arises from the central decision in this proceeding determining the  xnumber of frequency pools and the eligibility criteria for each pool. This affects small businesses in the  xfollowing way. A smaller number of pools provides a greater number of frequencies available for small  xbusinesses that use PLMR systems to meet their coordination needs. Additionally, by creating fewer  xxpools, frequency coordinators will now be subject to competition. Thus, small businesses that use PLMR  xsystems can expect to pay lower prices for frequency coordination while receiving equivalent or better  xservice. Finally, facilitating the use of trunking technologies in the PLMR services may assist small  xMbusinesses in efficiently expanding the capacity of their communications systems, realizing economies thereby.  S ' III.XDescription and Estimate of the Number of Small Entities Subject to Which the Rules Apply (#  S ' e W5. FRFA_C  ` ` The RFA directs agencies to provide a description of and, where feasible, an estimate of  xMthe number of small entities that may be affected by the rules adopted. The RFA generally defines the  xterm "small entity" as having the same meaning as the terms "small business," "small organization," and  S' x@"small governmental jurisdiction."Pm {Ol'ԍSee 5 U.S.C.  601(6).P In addition, the term "small business" has the same meaning as the  S' xgterm "small business concern" under the Small Business Act.Zm yO' " ԍ5 U.S.C.  601(3) (incorporating by reference the definition of "small business concern" in 15 U.S.C.  632).  x Pursuant to the RFA, the statutory definition of a small business applies "unless an agency, after consultation with  x! the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes  xZ 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). A small business concern is one which:  x^(1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any  Sk' x<additional criteria established by the Small Business Administration (SBA).^k m yO'ԍSmall Business Act, 5 U.S.C.  632 (1996).^ A small organization is  xgenerally "any notforprofit enterprise which is independently owned and operated and is not dominant  S' x in its field."Fm yO?'ԍ5 U.S.C.  601(4).F Nationwide, as of 1992, there were approximately 275,801 small organizations.* m yO' " ԍ1992 Economic Census, U.S. Bureau of the Census, Table 6 (special tabulation of data under contract to the Office of Advocacy of the Small Business Administration). "Small  xgovernmental jurisdiction" generally means "governments of cities, counties, towns, townships, villages,  S' xschool districts, or special districts, with a population of less than 50,000."F m yO#'ԍ5 U.S.C.  601(5).F As of 1992, there were  Sl' x&approximately 85,006 such jurisdictions in the United States.| lm yO&'ԍU.S. Dept. of Commerce, Bureau of the Census, "1992 Census of Governments."| This number includes 38,978 counties,  S9' xcities and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000.: 9m {O{('ԍId.: The Census"94 .**"  x XXX, 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.  Rg4 F Estimates for PLMR Licensees Đ\  S' e 96. ` ` Private land mobile radio systems serve an essential role in a vast range of industrial,  x^business, land transportation, and public safety activities. These radios are used by companies of all sizes  xoperating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has  x&not developed a definition of small entities that is specifically applicable. Therefore, we will utilize the  x}definition of small entity under the Small Business Administration rules applicable to radiotelephone  xservice providers. This definition provides that a small entity is any entity employing less than 1500  xpersons. See, 13 C.F.R.  121.201, Standard Industrial Classification (SIC) Code 4812. According to the  x*1992 Census of Transportation, Communications, and Utilities, conducted by the Bureau of Census, only  x12 radiotelephone firms out of a total of 1,178 such firms, which operated during 1992 had 1,000 or more  x@employees. However, for the purpose of determining whether a PLMR licensee is a small business as  xdefined by the Small Business Administration (SBA), each licensee would need to be evaluated within  xits own business area. The Commission's fiscal year 1994 annual report indicates that, at the end of fiscal  xyear 1994, there were 1,101,711 licensees operating 12,882,623 transmitters in the PLMR bands below  Sj' x512 MHz. j  {O'ԍSee Federal Communications Commission, 60th Annual Report, Fiscal Year 1994 at 120121. Further, because any entity engaged in a commercial activity is eligible to hold a PLMR  S7'license, these rules could potentially impact every small business in the U.S.  7Z  yO1' " ԍThe Regulatory Flexibility Act amendments were not in effect until the record in this proceeding was closed, hence the Commission did not request the level of information currently mandated under the RFA.   S' "2  IV.XDescription of Projected Reporting, Recordkeeping, and Other Compliance Requirements  S'of the Rules (#  S8' e 7. ` ` The rules adopted in this Third MO&O require that applicants requesting more than 10  xtrunked channels in an initial application for frequencies in the Public Safety Pool must submit a showing  xof need for the additional channels, which showing of need may require projected loading studies. The  xCommission estimates that few applicants for trunked Public Safety Pool frequencies will request more  xZthan 10 trunked channels; that the burden on an applicant will be highly variable and that it will take an average of 5 hours to prepare a showing of need.  S' " V.XSteps Taken to Minimize Significant Economic Impact on Small Entities and Significant  S'Alternatives Considered (#  S;' e W8.` ` The Commission, in this Third MO&O, has considered petitions for reconsideration and  S ' xgclarification regarding its Second R&O in PR Docket No. 92235, which consolidated the PLMR radio  xservices below 512 MHz and made provisions for the trunked operation of PLMR facilities. In doing so,  xthe Commission has adopted proposals which minimize burdens placed on small entities. The most  x7significant of these actions is the reduction in the number of written consents that must be obtained from other licensees when an existing licensee or new applicant proposes trunked operation of PLMR facilities.  S ' " FRFA_G  Report to Congress : The Commission will send a copy of this Third Memorandum Opinion and  S!' xOrder including this Supplemental FRFA, in a report to be sent to Congress pursuant to the Small  St"' xMBusiness Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C.  801(a)(1)(A). In addition, the  SB#' xCommission will send a copy of the Third Memorandum Opinion and Order, including Supplemental  S$' x3FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Third  S$' xMemorandum Opinion and Order and Supplemental FRFA (or summaries thereof) will also be published  S%'in the Federal Register. See 5 U.S.C.  604(b). "%  0++&"  S' X,XX Y  APP C APPENDIX C   S'_'Final Rules Đ\ Part 90 of Chapter I of Title 47 of the Code of Federal Regulations is amended as follows:  S' PART 90 PRIVATE LAND MOBILE RADIO SERVICES  1. 1. 1. a.(1)(a) i) a) 1.(1) 1. a.(1)(a) i) a)  Sh' 1.(1) 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a) 1. ` ` The authority citation for Part 90 continues to read as follows:  S' AUTHORITY: 47 U.S.C. 154, 302, 303, and 332, unless otherwise noted.  S ' 2. ` ` Section 90.187 is amended by deleting paragraph (b)(2)(iii) and adding the following new paragraphs (b)(2)(iii), (b)(2)(iv) and (b)(2)(v) and new paragraphs (d), (e) and (f) to read as follows:  S '  90.187 Trunking in the Bands Between 150 MHz and 512 MHz. n* * * * *  (b) * * * (2) Trunking will be permitted on frequencies where an applicant or licensee does not have an exclusive service area provided that all frequency coordination requirements are complied with and written consent is obtained from affected licensees using either the procedure set forth in (b)(2)(i), and b(2)(ii) of this section (mileage separation) or the procedure set forth in (b)(2)(iii)(A), (b)(2)(iii)(B) and (b)(2)(iii)(C) of this section (protected contours) (i) * * * (ii) * * * (iii) In lieu of the mileage separation procedure set forth in (b)(2)(i) and (b)(2)(ii) of this section, applicants for trunked facilities may obtain consent only from stations that would be subjected to objectionable interference from the trunked facilities. Objectionable interference will be considered to exist when the interference contour (22 dBu for VHF stations, 19 dBu for UHF stations) of a proposed trunked station would intersect the service contour (39 dBu for VHF stations, 37 dBu for UHF stations) of an existing station. The existing stations that must be considered in a contour overlap analysis are a function of the channel bandwidth of the proposed trunked station, as follows: (A) For trunked stations proposing 25 kHz channel bandwidth: Existing cochannel stations and existing stations that have an operating frequency 15 kHz or less from the proposed trunked station. (B) For trunked stations proposing 12.5 kHz channel bandwidth: Existing cochannel stations and existing stations that have an operating frequency 7.5 kHz or less from the proposed trunked station. (C) For trunked stations proposing 6.25 kHz channel bandwidth: Existing cochannel stations and existing stations that have an operating frequency 3.75 kHz or less from the proposed trunked station. "( .**)"Ԍ(iv) The calculation of service and interference contours referenced in paragraph (iii) above shall be done using generally accepted engineering practices and standards which, for purposes of this rule section, shall presumptively be the practices and standards agreed to by a consensus of all certified frequency coordinators.  S' (v) The written consent from the licensees specified in paragraphs (b)(2)(i) and (b)(2)(ii) or (b)(2)(iii)(A), (b)(2)(iii)(B) and (b)(2)(iii)C of this section, above, shall specifically state all terms agreed to by the parties and shall be signed by the parties. The written consent shall be maintained by the operator of the trunked station and be made available to the Commission upon request. The submission of a coordinated trunked application to the Commission shall include a certification from the applicant that written consent has been obtained from all licensees specified in paragraphs (b)(2)(i) and (b)(2)(ii) or (b)(2)(iii)(A), (b)(2)(iii)(B) and (b)(2)(iii)C, above; that the written consent documents encompass the complete understandings and agreements of the parties as to such consent; and that the terms and conditions thereof are consistent with the Commission's rules. Should a potential applicant disagree with a certified frequency coordinator's determination that objectionable interference exists with respect to a given channel or channels, that potential applicant may request the Commission to overturn the certified frequency coordinator's determination. In that event, the burden of proving by clear and convincing evidence that the certified frequency coordinator's determination is incorrect shall rest with the potential applicant. If a licensee has consented to the use of trunking, but later decides against the use of trunking, that licensee may request that the licensee(s) of the trunked system(s) cease the use of trunking. Should the trunked station(s) decline the licensee's request, the licensee may request a replacement channel from the Commission. A new applicant whose interference contour overlaps the service contour of a trunked licensee will be assigned the same channel as the trunked licensee only if the trunked licensee consents in writing and a copy of the written consent is submitted to the certified frequency coordinator responsible for coordination of the application. (c) * * *  Sl'(d)` ` Potential applicants proposing trunked operation may file written notice with any certified frequency coordinator for the pool (Public Safety or Industrial/Business) in which the applicant proposes to operate. The notice shall specify the channels on which the potential trunked applicant proposes to operate and the proposed effective radiated power, antenna pattern, height above ground, height above average terrain and proposed channel bandwidth. On receipt of such a notice, the certified frequency coordinator shall notify all other certified frequency coordinators in the relevant pool within one business day. For a period of sixty days thereafter, no application will be accepted for coordination which specifies parameters that would result in objectionable interference to the channels specified in the notice. Potential applicants shall not file another notice for the same channels within 10 km (6.2 miles) of the same location unless six months shall have elapsed since the filing of the last such notice. Certified frequency coordinators shall return without action, any coordination request which violates the terms of this paragraph (d).  S '(e)` ` No more than 10 channels for trunked operation in the Industrial/Business Pool may be applied for in a single application. Subsequent applications, limited to an additional 10 channels or fewer, must be accompanied by a certification, submitted to the certified frequency coordinator coordinating the application, that all of the applicant's existing channels authorized for trunked operation have been constructed and placed in operation. Certified frequency coordinators are authorized to require documentation in support of the applicant's certification that existing channels have been constructed and placed in operation. Applicants in the Public Safety Pool may request more than 10 channels at a single location provided that any application for more than 10 Public Safety Pool channels must be accompanied by a showing of sufficient need. The requirement for such a showing may be satisfied by submission of loading studies demonstrating that requested channels in excess of 10 will be loaded with 50 mobiles per channel within a five year period commencing with grant of the application.") .**@*"Ԍ S'ԙ(f)` ` If a licensee authorized for trunked operation discontinues trunked operation for a period of 30 consecutive days, the licensee, within 7 days of the expiration of said 30 day period, shall file a conforming application for modification of license with the Commission. Upon grant of that application, new applicants may file for the same channel or channels notwithstanding the interference contour of the new applicant's proposed channel or channels overlaps the service contour of the station that was previously engaged in trunked operation.