Subject: [NEXTEL-1] The 4.9 GHz Band Transferred from Federal Government Use - WT Docket No. 00-32

From: [email-masked]
Date: Tue, 03 Aug 2004 15:04:11 -0400

Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of

The 4.9 GHz Band Transferred from Federal Government Use

WT Docket No. 00-32

ORDER
Adopted:  July 30, 2004 Released:  August 2, 2004
By the Commission:

I.  INTRODUCTION
1. In this order we grant a request  to stay the effectiveness of a rule
adopted in the 4.9 GHz Memorandum Opinion and Order and Third Report and
Order (Third R&O).   The Third R&O established licensing and service
rules for the 4940-4990 MHz (4.9 GHz) band.  One element of the rules
permits the 700 MHz regional planning committees (RPCs) to submit
regional plans on guidelines to be used for sharing the spectrum within
each region, and requires that any such plan must be submitted within
twelve months after the effective date of the rules.  The rules became
effective on July 30, 2003, making the RPC sharing plans due on July 30,
2004.  For the reasons set forth herein, we find that good cause has
been shown to stay this date pending Commission resolution of the
petition for reconsideration filed in this proceeding.

II. BACKGROUND
2. The 4.9 GHz band was transferred from the Federal Government to
non-Government use in 1999, in accordance with the provisions of the
Omnibus Budget Reconciliation Act of 1993.   In 2000, the Commission
released a Notice of Proposed Rulemaking proposing to allocate the 4.9
GHz band to non-Government fixed and mobile services, and to allow
flexible use of this band.   In 2002, the Commission adopted the fixed
and mobile allocation, and designated the band for use in support of
public safety.   At the same time, the Commission sought comment on the
establishment of licensing and service rules for the 4.9 GHz band.  In
April of 2003, the Commission adopted licensing and service rules for
use of this band.  As part of these rules, the Commission authorized the
700 MHz regional planning committees (RPCs) to submit regional plans
regarding utilization of the 4.9 GHz band spectrum in support of public
safety.  In this regard, the Commission required such plans to be
submitted within twelve months after the effective date of the rules
adopted in the Third R&O.   The Third R&O was published in the Federal
Register on June 30, 2003, with an effective date of July 30, 2003.
Thus, under the rules as adopted, the 700 MHz RPCs were tasked with
development of a plan on guidelines for the shared use of the 4.9 GHz
band within their regions, and are required to submit such plans by July
30, 2004.

3. On July 30, 2003, the National Public Safety Telecommunications
Council (NPSTC) filed a petition for reconsideration of the Third R&O
(NPSTC Petition).  Specifically, NPSTC requests that the Commission
adopt different emission masks,  develop a clear path toward the
identification and adoption of a technology standard for general and
interoperability use within the 4.9 GHz band,  require mandatory
regional planning, and require that each plan filed by the RPCs include
a conflict resolution process.   Several entities filed comments to the
NPSTC Petition.

4. On June 26, 2004, the National Association of Regional Planning
Committees (NARPC) filed a request to stay the July 30, 2004 deadline
until twelve months after the Commission resolves the NPSTC Petition.
In addition, several RPCs recently requested an extension of the
deadline, largely for the same reasons as stated by NARPC.

III.  DISCUSSION

5. In considering requests for stay, the Commission generally considers
the four criteria set forth in Virginia Petroleum Jobbers Association.
These criteria are (1) a likelihood of success on the merits; (2) the
threat of irreparable harm absent the grant of preliminary relief; (3)
the degree of injury to other parties if relief is granted; and (4) the
issuance of the order will further the public interest.   The Commission
then balances these interests in order to determine an administrative
response on a case-by-case basis.   The relative importance of the four
criteria will vary depending upon the circumstances of the case.   If
there is a particularly overwhelming showing in at least one of the
factors, we may find that a stay is warranted notwithstanding the
absence of another one of the factors.   For the reasons set forth
below, we agree with NARPC that a stay of the July 30, 2004 date is
appropriate under the circumstances presented.  Specifically, we
conclude that a stay will further the public interest, and that no
parties will be injured if relief is granted.

6. We agree with NARPC that it would be in the public interest to stay
the July 30, 2004 deadline.  In this regard, we believe that some of the
matters that are the subject of the NPSTC Petition arguably could bear
upon how the 4.9 GHz band is utilized by public safety entities and
other 4.9 GHz band operations in support of public safety.  We concur
that twelve months from the effective date of the Third R&O may not have
been sufficient time for RPCs to complete plans for the sharing of 4.9
GHz spectrum in light of the issues raised on reconsideration.   We are
concerned that if RPCs were required to meet the July 30, 2004 deadline,
they may produce plans that are over- or underinclusive and would
therefore need to be revised following resolution of the reconsideration
petitions.  The public interest favors avoiding unnecessary and
potentially duplicative efforts in this regard, particularly for the
public safety community.  We are concerned that such a result could have
the unintended consequence of adversely affecting public safety and
critical infrastructure operations in the 4.9 GHz band.

7. In addition, nothing in the record before us suggests that there will
be any injury to any other party if the requested relief is granted.  A
temporary stay of the July 30, 2004 date pending the resolution of the
petitions for reconsideration of the Third R&O will not place
limitations on licensing in the 4.9 GHz band, or preclude the licensing
of any new stations.  In addition, given that manufacturers are not
likely to commence full-scale production of 4.9 GHz band equipment until
the technical issues raised in the NPSTC Petition are resolved, we do
not believe that extensive operations will be undertaken in the absence
of regional plans.

8. We disagree with NARPC, however, regarding the proper length of the
stay.  NARPC requests that we stay the deadline until twelve months
after the resolution of the NPSTC Petition.   While NARPC does not
explain the basis for requesting twelve months, it appears to be
analogizing to the twelve-month period that RPCs were provided following
the effective date of the 4.9 GHz band service rules.  We do not believe
that a full twelve months following resolution of the NPSTC Petition is
necessary.  Unlike the case when the Commission originally adopted the
service rules, most of the possible issues are now settled, and not
affected by the NPSTC Petition.  Pending resolution of those issues,
RPCs can begin considering matters within their plans that are not
implicated by the NPSTC Petition.  After we rule on the NPSTC Petition,
the RPCs can complete their efforts.  We believe that six months should
provide sufficient time to respond to the Commission’s resolution of the
NPSTC Petition, by developing and/or further refining their plans
accordingly.
9. Based on the record before us, we are concerned that retaining the
July 30, 2004 deadline would not be in the public interest, because it
may adversely affect public safety communications and critical
infrastructure operations.  We also believe that a temporary stay of the
deadline would not injure any party.  We therefore conclude that a stay
of the July 30, 2004 date is appropriate.  For the foregoing reasons,
therefore, we will stay the July 30, 2004 deadline for submission of 4.9
GHz regional plans in Section 90.1211(a) of the Commission’s Rules.  We
grant this stay until six months after the release date of the order
resolving issues raised in the petition for reconsideration of the
Memorandum Order Opinion and Order and Third Report and Order.

IV. ORDERING CLAUSE
10. For the aforementioned reasons, IT IS ORDERED pursuant to Sections
4(i), 11, 303(g), and 303(r) of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 161, 303(g), and 303(r), that the Request
for Stay filed by The National Association of Regional Planning
Committees on June 24, 2004, IS GRANTED to the extent described herein
and will remain in effect until six months after release of a decision
resolving the petition for reconsideration filed in this proceeding.
FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch
Secretary
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-185A1.doc

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