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Public Safety Narrowband Operations in the 769-775/799-805 MHz Bands

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Released: December 3, 2012

Federal Communications Commission

DA 12-1942

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Service Rules Governing Public Safety
)
WT Docket No. 96-86
Narrowband Operations in the 769-775/799-805
)
MHz Bands
)

ORDER

Adopted: December 3, 2012

Released: December 3, 2012

By the Chief, Public Safety and Homeland Security Bureau:

I.

INTRODUCTION

1.
By this Order, the Federal Communications Commission’s Public Safety and Homeland
Security Bureau (“Bureau”), on delegated authority, conforms section 90.529(b) of the Commission's
rules1 regarding the “substantial service” deadlines for state-licensed 700 MHz public safety narrowband
channels to comport with the deadlines specified in the Commission’s July 2011 Declaratory Ruling.2
Specifically, in the Declaratory Ruling, the Commission clarified that the five- and ten-year substantial
service deadlines set forth in section 90.529 run from the June 12, 2009, completion date of the DTV
transition, and thus occur on June 13, 2014, and June 13, 2019, respectively.3 This Order revises the
language in section 90.529(b) to reflect this clarification.

II.

BACKGROUND

2.
In 1998, the Commission established the initial band plan and service rules for the 24
megahertz of public safety spectrum in the 700 MHz band that was reallocated from television broadcast
use as a result of the DTV transition.4 In 2000, the Commission designated 2.4 megahertz of the 700
MHz narrowband spectrum for statewide geographic licensing.5 The Commission also established
“substantial service” performance requirements for the statewide licenses, including five- and ten-year


1 See 47 C.F.R. §§ 90.529(b)(1) and (2).
2 See Service Rules Governing Public Safety Narrowband Operations in the 769-775/799-805 MHz Bands, WT
Docket No. 06-86, Declaratory Ruling, 26 FCC Rcd 10895 (2011) (“Declaratory Ruling”).
3 See id. at 10895 ¶ 1.
4 See id. at ¶ 2 (citing Development of Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Agency Communications Requirements Through the Year 2010, WT Docket No. 96-
86, First Report and Order and Third Notice of Proposed Rulemaking, 14 FCC Rcd 152 (1998)).
5 See id. (citing Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and
Local Public Safety Agency Communications Requirements Through the Year 2010, WT Docket No. 96-86, Third
Memorandum Opinion and Order and Third Report and Order
, 15 FCC Rcd 19844, 19864 ¶ 48 (2000) (“Third
Report and Order
”)).

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DA 12-1942

benchmarks for state licensees to establish specified levels of substantial service within their statewide
license areas.6
3.
Because the continued presence of incumbent TV broadcasters in the 700 MHz band
could limit state licensees’ ability to deploy systems on statewide narrowband channels, the Commission
determined that the five- and ten-year benchmarks would be calculated from the date that incumbent
broadcasters were required to vacate the 700 MHz band – i.e., the DTV transition deadline.7 At the time
the Commission made this determination, the anticipated DTV transition date for incumbent broadcasters
was December 31, 2006.8 Accordingly, for purposes of the rules the Commission calculated the
substantial service benchmarks using January 1, 2007, as the starting date, causing the five-year
benchmark (provision of substantial service to one-third of the statewide population or territory) to fall on
January 1, 2012, and the ten-year benchmark (provision of substantial service to two-thirds of the
statewide population or territory) to fall on January 1, 2017.9 The Commission codified these specific
dates in Section 90.529.10
4.
After the Commission adopted the substantial service requirements for statewide
narrowband licensees, Congress twice extended the deadline for completing the DTV transition, which
was completed on June 12, 2009.11 However, the Commission did not update section 90.529 to reflect
these extensions.12 The language of the rule, therefore, continues to specify January 1, 2012, and January
1, 2017, respectively, as the five- and ten-year benchmark dates, while also stating that these benchmark
dates occur within five and ten years “of the date that incumbent broadcasters are required to relocate to
other portions of the spectrum.”13
5.
To provide clarity to state public safety licensees regarding the correct substantial
services deadlines that apply under section 90.529(b), the Commission adopted the Declaratory Ruling,
which clarified that the five- and ten-year substantial service deadlines therein run from the June 12,
2009, completion date of the DTV transition, and thus occur on June 13, 2014, and June 13, 2019,
respectively.14 While the Declaratory Ruling provided clarity on this matter, it did not revise the actual
language of section 90.529(b) to reflect the correct five- and ten-year benchmark dates.

III.

DISCUSSION

6.
By this Order, we revise the five- and ten-year substantial service deadlines specified in
section 90.529(b) for state licensees to comply with substantial service requirements on their statewide
narrowband channels so that they run from the actual DTV transition date of June 12, 2009. Specifically,
we revise the language of section 90.529(b)(1) to specify that the five-year benchmark date falls on June
13, 2014, five years after the June 12, 2009, final DTV transition date. Similarly, we revise the language


6 See id.
7 See id.
8 See id.
9 See id. at 10896 ¶ 3 (citing Third Report and Order, 15 FCC Rcd 19844, 19871 ¶ 62).
10 See 47 C.F.R. §§ 90.529(b)(1) and (2).
11 In 2006, Congress established a “hard” DTV transition date of February 17, 2009. See Title III of the Deficit
Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4 (2006). In 2009, Congress extended the DTV transition
deadline from February 17, 2009, to June 12, 2009. See DTV Delay Act, Pub. L. No. 111-4, 123 Stat. 112 (2009).
12 See 47 C.F.R. §§ 90.529(b)(1) and (2).
13 Id.
14 See Declaratory Ruling, 26 FCC Rcd at 10895 ¶ 1.
2

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DA 12-1942

of section 90.529(b)(2) to specify that the ten-year benchmark date falls on June 13, 2019, ten years after
the final DTV transition date.
7.
As the Commission explained in the Declaratory Ruling, it has always been the
Commission’s intent that the five- and ten-year substantial service periods for the statewide narrowband
channels would commence upon the actual DTV transition date.15 The language of section 90.529(b)
indicates as much, expressly describing the deadlines as occurring five and ten years from “the date that
incumbent broadcasters are required to relocate to other portions of the spectrum.”16 As the Commission
further explained in the Declaratory Ruling, the failure to update the numerical five- and ten-year dates
set forth in section 90.529(b) to reflect the extension of the DTV transition date to June 12, 2009, was an
inadvertent omission.17 Because the Declaratory Ruling clarified but did not revise the language of
section 90.529(b) to correct that administrative oversight, we are issuing this Order to revise the language
of section 90.529(b) consistent with its established parameters, as specified by the Commission in the
Declaratory Ruling.18
8.
We further conclude that the notice and comment requirements of section 553 of the
Administrative Procedure Act (APA) do not apply to the rule revisions adopted herein.19 Section
553(b)(3)(B) of the APA permits implementation of rules without public notice and comment “when the
agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.”20 As described above, our revisions to section 90.529 merely conform the
rule’s language to its established parameters, rendering it internally consistent, and do not in any way
affect the substantive content of the rule.21 Prior notice and opportunity for comment is therefore
unnecessary. We also find good cause for making the rule revisions to section 90.529 adopted in the
instant Order effective as soon as possible – i.e., upon publication in the Federal Register.22 The delay in
making the ministerial correction to the rule in its codified form would needlessly prolong the risk of
confusion caused by the presence of erroneous language in a codification. In addition, because the subject
rule change does not alter the obligations of any party, there is no need to provide time for preparation
before the rule becomes effective.


15 See id. at 10896 ¶ 6.
16 47 C.F.R. §§ 90.529(b)(1) and (2).
17 See Declaratory Ruling, 26 FCC Rcd at 10896 ¶ 6.
18 Section 0.392 of the Commission's rules delegates authority to the Chief, Public Safety and Homeland Security
Bureau to, among other things, issue orders involving ministerial conforming amendments to rule parts. See 47
C.F.R. § 0.392(e). As the Commission explained in the Declaratory Ruling, and as the language in section
90.529(b) itself specifies, the five- and ten-year benchmark dates set forth in section 90.529(b) run from the DTV
transition date, which was June 12, 2009. See Declaratory Ruling, 26 FCC Rcd at 10896 ¶ 6; 47 C.F.R. §§
90.529(b)(1) and (2).
19 5 U.S.C. §§ 551, et seq.
20 5 U.S.C. § 553(b)(3)(B).
21 See, e.g., Schools and Libraries Universal Service Support Mechanism, Second Report and Order and Further
Notice of Proposed Rulemaking
, 18 FCC Rcd 9202, 9232 ¶ 89 (2003) (“Because the new provisions [adopted
without notice and comment] are substantively the same as the original definitions, we conclude that all of these rule
changes are minor and technical, and we therefore find good cause to conclude that notice and comment procedures
of the Administrative Procedure Act (APA) are unnecessary” (citing 5 U.S.C. § 553(b)(3)(B)). See also Schools and
Libraries Universal Service Support Mechanism, Fifth Report and Order and Order, 19 FCC Rcd 15808, 15830
n.120 (2004); Amendment of Part 90 of the Commission’s Rules to Provide for the Use of the 220–222 MHz Band
by the Private Land Mobile Radio Services, Order, 8 FCC Rcd 4161, 4164 ¶ 12 (1993).
22 See 5 U.S.C. § 553(d)(3) (allowing for effective date of rule amendments to occur prior to 30 days after
publication where good cause is found and published with the rule).
3

Federal Communications Commission

DA 12-1942

IV.

PROCEDURAL MATTERS

A.

Regulatory Flexibility Act Analysis

9.
Section 213 of the Consolidated Appropriations Act of 2000 provides that the Regulatory
Flexibility Act (RFA), 5 U.S.C. § 603, does not apply to rules that are not adopted in notice and comment
rulemaking proceedings.23 Accordingly, we have not performed an Initial or Final Regulatory Flexibility
Analysis in connection with the instant Order.24
10.
The Commission will send a copy of this Order to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

B.

Paperwork Reduction Act Analysis

11.
This document does not contain new or modified information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. We are therefore not
inviting comment pursuant to the Paperwork Reduction Act on any information collections associated
with this document.

V.

ORDERING CLAUSES

12.
Accordingly, IT IS ORDERED that, pursuant to the authority contained in sections 1, 2,
4(i), 303(r), 332 and 337 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152, 154(i),
303(r), 332 and 337, this Order in WT Docket No. 96-86 IS hereby ADOPTED.
13.
IT IS FURTHER ORDERED that, pursuant to 5 U.S.C. § 553(d)(3), the rules adopted
herein WILL BECOME EFFECTIVE upon publication in the Federal Register.
14.
We take this action under delegated authority pursuant to sections 0.191 and 0.392 of the
Commission’s rules, 47 C.F.R. §§ 0.191, 0.392.
FEDERAL COMMUNICATIONS COMMISSION
David S. Turetsky
Chief, Public Safety and Homeland Security Bureau


23 See 5 U.S.C. § 603(a).
24 Id.
4

Federal Communications Commission

DA 12-1942

APPENDIX

Final Rules

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR
Part 90 to read as follows:

PART 90 – PRIVATE LAND MOBILE RADIO SERVICES

1.
The authority citation for part 90 continues to read as follows:
Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).
2.
Amend § 90.529 by revising paragraphs (b)(1) and (b)(2) to read as follows:
§ 90.529 State License.
* * * * *
(b) * * *
(1) providing or prepared to provide “substantial service” to one-third of their population or territory by
June 13, 2014, i.e., within five years of the date that incumbent broadcasters are required to relocate to
other portions of the spectrum;
(2) providing or prepared to provide “substantial service” to two-thirds of their population or territory by
June 13, 2019, i.e., within ten years of the date that incumbent broadcasters are required to relocate to
other portions of the spectrum.
* * * * *
5

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