og96014.txt

Office of the General Counsel
B-271810.5
June 25, 1996
The Honorable Larry Pressler Chairman The Honorable Ernest F.
Hollings Ranking Minority Member Committee on Commerce, Science,
and Transportation United States Senate
The Honorable Thomas J. Bliley, Jr. Chairman The Honorable John
D. Dingell Ranking Minority Member Committee on Commerce House of
Representatives
Subject: Amendment to the Commission's Rules Regarding a Plan
for Sharing the Cost of Microwave Relocation, First Report and
Order and Further Notice of Proposed Rule Making
Pursuant to section 801(a)(2)(A) of title 5, United States Code,
this is our report on a major rule promulgated by the Federal
Communications Commission, entitled "Amendment to the Commission's
Rules Regarding a Plan for Sharing the Cost of Microwave
Relocation, First Report and Order and Further Notice of Proposed
Rule Making" (WT Docket No. 95-157, FCC 96-196). We received the
rule on May 6, 1996. It was published in the Federal Register as a
final rule on June 12, 1996. 61 Fed. Reg. 29679.
This rule changes and clarifies certain aspects of the
Commission's microwave relocation rules and adopts a plan for
sharing the costs of relocating microwave facilities currently
operating in the 1850 to 1990 MHz (2GHz) band. That band has been
allocated for use by broadband Personal Communications Services
(PCS) licensees.
Enclosed is our assessment of the Federal Communications
Commission's compliance with the procedural steps required by
sections 801(a)(1)(B)(i) through
GAO/OGC-96-14
(iv) of title 5 with respect to the rule. Our review indicates
that the Federal Communications Commission complied with the
applicable requirements.
If you have any questions about this report, please contact
James W. Vickers, Senior Attorney, at [phone]. The official
responsible for GAO evaluation work relating to the Federal
Communications Commission is John H. Anderson, Director of
Transportation and Telecommunications Issues. Mr. Anderson can be
reached at [phone].
Robert P. Murphy General Counsel
Enclosure
cc: Mr. Andrew S. Fishel Managing Director Federal
Communications Commission
Page 2 GAO/OGC-96-14
ENCLOSURE
ANALYSIS UNDER 5 U.S.C. § 801(a)(1)(B)(i)-(iv) OF A MAJOR
RULE
ISSUED BY THE FEDERAL COMMUNICATIONS COMMISSION ENTITLED
AMENDMENT TO THE COMMISSION'S RULES REGARDING A PLAN FOR SHARING
THE COST OF MICROWAVE RELOCATION, FIRST REPORT AND ORDER AND
FURTHER NOTICE OF PROPOSED RULE MAKING (WT Docket No. 95-157, FCC
96-196)



(i)
Cost-benefit analysis

The Commission stated in its submission to us that it was not
required to prepare and did not prepare a cost-benefit analysis of
the rule.


(ii)
Agency actions relevant to the Regulatory Flexibility
Act, 5 U.S.C. §§ 603-605, 607 and 609


Section 603: Initial Regulatory Flexibility Analysis
The proposed rulemaking, 60 Fed. Reg. 55529 (November 1, 1995),
incorporated an initial regulatory flexibility analysis of the
expected impact on small entities.
The analysis included in the proposed rulemaking provides the
information required by paragraphs 603(b)(1) through (3). It
describes the reasons for the proposed agency action, and its
objectives and legal basis. It also describes the small entities
(PCS licensees) to which the proposed rule will apply. The
information required by paragraph 603(b)(4) concerning an estimate
of the classes of small entities subject to the requirement and the
type of professional skills necessary for preparation of the
required report is contained in the preamble under the Paperwork
Reduction Act section as permitted by section 605(a). In accordance
with paragraph 603(b)(5), the Commission notes that the proposed
rule does not duplicate, overlap, or conflict with any relevant
federal rule. Finally, the analysis reports, as required by
paragraph 603(c), that the Commission has reduced burdens where
possible and that the regulatory burdens retained are necessary to
ensure the public receives the benefits of the new services in a
prompt and efficient manner.
Section 604: Final Regulatory Flexibility Analysis
The Supplementary Information published in the Federal Register
with the final rule includes the full text of the Commission's
final regulatory flexibility analysis. 61 Fed. Reg. 29688. This
analysis includes the information required by paragraph 604(a) by
summarizing and evaluating comments received.
GAO/OGC-96-14
Numerous comments were received regarding the proposed plan to
convert microwave incumbents to secondary status when the
relocation rules sunset in 2005 and thereafter, licensees would not
be required to pay relocation costs after that date to such
incumbents. The American Public Power Association commented that
conversion to secondary status would have a severe impact on the
limited budgets of small, non-profit public utility systems.
Incumbent commentators noted that this will encourage licensees to
"wait out" incumbents and increase the likelihood that incumbents
would have to assume the costs of their own relocation. PCS
licensees argued that by 2005, most incumbent's equipment would be
fully amortized or in need of replacement.
In an attempt to balance the interests, the Commission has
decided to retain the sunset date of 2005 as the date after which
licensees would not have to pay relocation costs to incumbents but
decided that incumbents would not convert to secondary status until
and unless an emerging technology licensee required use of the
spectrum, regardless of the sunset date.
The final analysis was forwarded to the Chief Counsel for
Advocacy of the Small Business Administration.
Section 605: Avoidance of duplicative or unnecessary
analysis
The Commission did not invoke any of the exemptions or special
procedures authorized by section 605 in preparing its regulatory
flexibility analysis.
Section 607: Preparation of analysis
The Commission's analysis uses both quantifiable and general
descriptions of the effects of the rule on small entities.
Section 609: Participation by small entities
In addition to the actions required by 5 U.S.C. § 553, the
Commission also made available a complete copy of the proposed and
final rulemaking materials via the Internet.
(iii) Agency actions relevant to sections 202-205 of the
Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1532-1535
As an independent regulatory agency, the Commission is not
subject to title II of the Unfunded Mandates Reform Act of
1995.
(iv) Other relevant information or requirements under Acts and
Executive orders
Page 2 GAO/OGC-96-14
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
The Commission promulgated the rule under the notice and comment
procedures of 5 U.S.C. § 553. A notice of proposed rulemaking was
published on November 1, 1995. 60 Fed. Reg. at 55529. The
Commission received comments on the proposed rule from 45
commenters. In the preamble to the final rule, the Commission
responded to issues raised during the comment period.
Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520
Two portions of the rule contain information collection
requirements covered by the Act. The rule requires that once a PCS
licensee and a microwave incumbent have signed an agreement with
respect to relocation of the microwave license, the parties would
submit the relocation agreement to an industry-supported
clearinghouse. 60 Fed. Reg. 55536. The rule further requires
microwave licensees who seek special status as public safety
licensees in order to obtain special consideration (ie. an extended
voluntary negotiation period) obtain a certification confirming
their public safety status from the department head responsible for
system oversight.
The Commission has published in both the proposed and final
rulemaking notices the information required by the Act. These
requirements include the reasons for the collection of the
information, the type of information and an estimate of the burden
imposed on respondents. Comments were solicited from the public,
other federal agencies and the Office of Management and Budget
(OMB).
The Commission has advised our Office that the two portions of
the rule requiring approval by OMB under the Act will not become
effective until such approval is received. The Commission estimates
these dates will be later than 60 days after the Federal Register
publication.
Statutory authorization for the rule
The Commission has cited as authority Sections 4(i), 7, 303(c),
303(f), 303(g), 303(r) and 332 of the Communications Act, 47 U.S.C.
§§ 154(i), 157, 303(c), 303(f), 303(g), 303(r) and 332, as amended.
Sections 303(f) and (g) empower the Commission to make such
regulations as necessary to prevent interference between stations
and encourage the larger and more effective use of radio in the
public interest, respectively. Section 332 requires the Commission,
in managing the spectrum used by private land mobile services, to
encourage competition and provide services to the largest feasible
number of users.
Page 3 GAO/OGC-96-14
Executive Order No. 12866
The rule, promulgated by an independent regulatory agency, is
not subject to the review requirements of Executive Order No.
12866.
The Commission did not identify any other statutes or Executive
Orders imposing requirements relevant to the rule.
Page 4 GAO/OGC-96-14