Rule2021-22490
Implementation of the Commission's Incremental Reduction Plan for Phase I Accelerated Relocation Payments
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Published
October 15, 2021
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Wireless Telecommunications Bureau (WTB or Bureau) announces its implementation of the Commission's incremental reduction plan for Phase I Accelerated Relocation Payments (ARP) relating to the ongoing transition of the 3.7 GHz band. On August 4, 2021, as directed by the Commission in the Expanding Flexible Use of the 3.7 to 4.2 GHz Band, Report and Order and Proposed Modification (3.7 GHz Report and Order), WTB issued a Public Notice (PN) to seek comment on its proposed approach for calculating an incremental reduction for an eligible space station operator's ARP due to its failure to meet the Phase I Accelerated Relocation Deadline. After reviewing the record, the Bureau adopts the proposals outlined in the Phase I Incremental Reduction Comment PN with some clarifications.
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<title>Federal Register, Volume 86 Issue 197 (Friday, October 15, 2021)</title>
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[Federal Register Volume 86, Number 197 (Friday, October 15, 2021)]
[Rules and Regulations]
[Pages 57369-57372]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22490]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 27
[GN Docket Nos. 18-122, 21-320; DA 21-1223; FR ID 52434]
Implementation of the Commission's Incremental Reduction Plan for
Phase I Accelerated Relocation Payments
AGENCY: Federal Communications Commission.
ACTION: Final action.
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SUMMARY: In this document, the Wireless Telecommunications Bureau (WTB
or Bureau) announces its implementation of the Commission's incremental
reduction plan for Phase I Accelerated Relocation Payments (ARP)
relating to the ongoing transition of the 3.7 GHz band. On August 4,
2021, as directed by the Commission in the Expanding Flexible Use of
the 3.7 to 4.2 GHz Band, Report and Order and Proposed Modification
(3.7 GHz Report and Order), WTB issued a Public Notice (PN) to seek
comment on its proposed approach for calculating an incremental
reduction for an eligible space station operator's ARP due to its
failure to meet the Phase I Accelerated Relocation Deadline. After
reviewing the record, the Bureau adopts the proposals outlined in the
Phase I Incremental Reduction Comment PN with some clarifications.
DATES: Phase I Accelerated Relocation Certifications are due December
5, 2021.
FOR FURTHER INFORMATION CONTACT: Susan Mort, Wireless
Telecommunications Bureau, at <a href="/cdn-cgi/l/email-protection#84d7f1f7e5eaaac9ebf6f0c4e2e7e7aae3ebf2"><span class="__cf_email__" data-cfemail="f3a08680929dddbe9c8187b3959090dd949c85">[email protected]</span></a> or 202-418-2429.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
document, Public Notice, in GN Docket Nos. 18-122, 21-320; DA 21-1223,
released on September 29, 2021. The complete text of this document is
available on the Commission's website at <a href="https://www.fcc.gov/document/wtb-announces-phase-i-c-band-incremental-reduction-plan">https://www.fcc.gov/document/wtb-announces-phase-i-c-band-incremental-reduction-plan</a>.
Paperwork Reduction Act
This document does not contain new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995
(PRA), Public Law 104-13. In addition, therefore, it does not contain
any new or modified information collection burden for small business
concerns with fewer than 25 employees, pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
Congressional Review Act
The Commission will not send a copy of this document to Congress
and the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted action is an
action of particular applicability.
Synopsis
With this document, the Wireless Telecommunications Bureau (WTB or
Bureau) announces its implementation of the Commission's incremental
reduction plan for Phase I Accelerated Relocation Payments (ARP)
relating to the ongoing transition of the 3.7 GHz band. On August 4,
2021 (86 FR 44329, August 12, 2021), as directed by the Commission in
the 3.7 GHz Report and Order (85 FR 22804, April 23, 2020), WTB issued
a Public Notice to seek comment on its proposed approach for
calculating an incremental reduction for an eligible space station
operator's ARP due to its failure to meet the Phase I Accelerated
Relocation Deadline. The Bureau received six comments. After reviewing
this record, we adopt the proposals outlined in the Phase I Incremental
Reduction Comment PN (86 FR 44329, August 12, 2021), with certain
clarifications described below.
In the 3.7 GHz Report and Order, the Commission adopted rules to
make 280 megahertz of mid-band spectrum available for flexible use
(plus a 20 megahertz guard band) throughout the
[[Page 57370]]
contiguous United States by transitioning existing services out of the
lower portion of the band and into the upper 200 megahertz of the C-
band (i.e., 4.0-4.2 GHz). The 3.7 GHz Report and Order established that
new 3.7 GHz Service licensees would reimburse the reasonable, actual
relocation costs of eligible FSS space station operators, incumbent FSS
earth station operators, and incumbent Fixed Service licensees
(collectively, incumbents) to transition out of the band.
The 3.7 GHz Report and Order established a deadline of December 5,
2025, by which incumbent space station operators were to complete the
transition of their operations to the upper 200 megahertz of the band,
but it also provided an opportunity for accelerated clearing of the
band by allowing eligible space station operators to voluntarily commit
to relocate on a two-phased accelerated schedule, with a Phase I
deadline of December 5, 2021, and a Phase II deadline of December 5,
2023. All five eligible space station operators elected to transition
on the accelerated schedule. By electing accelerated relocation, the
eligible space station operators have, among other things, voluntarily
committed to perform all the tasks necessary to enable any incumbent
earth station (except those that have elected instead to receive lump
sum payments) that receives or sends C-band signals to a space station
owned by that operator to maintain that functionality in the upper 200
megahertz of the band. The 3.7 GHz Report and Order stated that ``[t]o
the extent eligible space station operators can meet the Phase I and
Phase II Accelerated Relocation Deadlines, they will be eligible to
receive the accelerated relocation payments associated with those
deadlines.'' Once validated, the ARPs will be disbursed by the
Relocation Payment Clearinghouse (Clearinghouse).
The 3.7 GHz Report and Order specified that an ``eligible space
station operator's satisfaction of the Accelerated Relocation Deadlines
will be determined by the timely filing of a Certification of
Accelerated Relocation demonstrating, in good faith, that it has
completed the necessary clearing actions to satisfy each deadline,''
and directed WTB to prescribe the form of such Certifications. Further,
``the Bureau, Clearinghouse, and relevant stakeholders will have the
opportunity to review the Certification of Accelerated Relocation and
identify potential deficiencies.''
The 3.7 GHz Report and Order also directed that if ``credible
challenges as to the space station operator's satisfaction of the
relevant deadline are made, the Bureau will issue a public notice
identifying such challenges and will render a final decision as to the
validity of the certification no later than 60 days from its filing.''
Absent notice from WTB of deficiencies in the Certification within 30
days of its filing, the Certification will be deemed validated.
Following validation, the Clearinghouse shall promptly notify overlay
licensees, who must pay the ARP to the Clearinghouse within 60 days of
the notice. The Clearinghouse must then disburse the ARP to the
eligible space station operator within seven (7) days of receipt.
Should an eligible space station operator miss the Phase I or Phase II
deadline, it may still receive a reduced, but non-zero, ARP if it
otherwise meets the Certification requirements within six months after
the relevant Accelerated Relocation Deadline.
The 3.7 GHz Report and Order directed WTB to: (1) ``Prescribe the
form'' of Certifications and any challenges by relevant stakeholders,
and (2) establish the process for how such challenges will impact
incremental decreases in the ARP. On August 4, 2021, the Bureau issued
a Public Notice implementing filing procedures for Phase I
Certifications and related challenges. In the Phase I Incremental
Reduction Comment PN, also released on August 4, 2021, the Bureau
sought comment on how different Phase I Certification scenarios would
affect both the challenge process and incremental decreases in the ARP.
General Matters. In the Phase I Incremental Reduction Comment PN,
we sought comment on specific timing scenarios involving credible
challenges filed by relevant stakeholders in connection with the ARP
certification process. As part of this discussion, WTB also noted the
3.7 GHz Report & Order directive that ``[f]ollowing validation, the
Clearinghouse shall promptly notify overlay licensees, who must pay the
ARP to the Clearinghouse within 60 days of the notice.'' Commenters in
response asked the Bureau to define the terms ``credible challenge,''
``relevant stakeholders,'' and ``promptly,'' which are all terms used
by the Commission in the 3.7 GHz Report and Order. The Phase I
Incremental Reduction Comment PN did not seek comment on these
definitions and we decline to take action on these requests. We believe
the Certification and challenge process will be able to proceed without
impediment in the absence of such clarifications and that it is more
appropriate to address these questions on a case-by-case basis.
Several commenters also raised matters directly addressed in the
Phase I ARP Certification Procedures PN (86 FR 44359, August 12, 2021)
or otherwise outside the scope of the instant public notice. As these
topics were not raised in the Phase I Incremental Reduction Comment PN,
we do not address them here.
Certification and Incremental Reduction Scenarios. At its outset,
the Phase I Incremental Reduction Comment PN recognized the two most
straightforward Certification and incremental reduction scenarios.
First, all Certifications filed without subsequent change--whether by
amendment or superseded by a refiled Certification--will not be subject
to any incremental decrease in the ARP if the Certification was filed
before the Phase I deadline and is ultimately validated. Second, any
Certifications filed for the first time after the Phase I deadline and
later validated without amendment or refiling will be subject to the
incremental reduction schedule established by the Commission in the 3.7
GHz Report and Order, using the Certification filing date as the ``Date
of Completion'' for determining the applicable percentage by which the
ARP will be reduced. In both situations, the challenge process laid out
in in the Phase I ARP Certification Procedures PN would remain
unaffected. No commenters disagreed with these baseline premises, and
we adopt this approach.
The Bureau also sought comment on more complex scenarios involving
the potential amendment or refiling of Certifications, as well as on
how to take into account possible remedial actions and agreements
between eligible space station operators and other stakeholders as part
of the Certification process. After considering the record, we
generally adopt the approach proposed in the Phase I Incremental
Reduction Comment PN, with certain clarifications described below.
Amending or Refiling a Certification by the Phase I Deadline. In
the 3.7 GHz Report and Order, the Commission stated that it was
adopting accelerated relocation rules ``to facilitate the expeditious
deployment of next-generation services nationwide across the entire 280
megahertz made available for terrestrial use.'' In furtherance of this
goal, we concluded in the Phase I Incremental Reduction Comment PN and
affirm here that eligible space station operators may amend or refile
an incomplete or invalid Certification without any incremental
reduction in the ARP if, before the Phase I deadline, the eligible
space station operator
[[Page 57371]]
corrects any underlying problems and submits an amended or refiled
Certification that has no invalidating infirmities. Such amendment or
refiling may be either on the eligible space station operator's own
motion, in response to a challenge, or in response to the Bureau's
determination that the original Certification was invalid. If WTB
ultimately determines (before or after the Phase I deadline) that all
the underlying problems have been resolved, the certifying space
station operator will, in fact, have come into compliance with all the
requirements for claiming the ARP by the Phase I deadline, provided the
operator had resolved those problems before said deadline and such
resolutions were reflected by the filing--also before this deadline--of
an amendment or refiled Certification.
T-Mobile agrees with the Bureau's proposal that, in these
circumstances, the amended or refiled Certification should take the
place of the original and start a new challenge process. Eutelsat and
Verizon support limiting new challenges to matters involving changes to
the original Certification, while Intelsat advocates that we consider
only ``substantial'' or ``major'' amendments or revisions as starting a
new comment cycle and review period. Based upon the record, we agree
with our initial proposal from the Phase I Incremental Reduction
Comment PN. New challenges to an amended or refiled Certification will
be permitted but must be limited to matters involving changes made to
the original Certification (whether the addition of new information,
modifications of information that had been included in the original
Certification, or the deletion of previously included information).
While we agree that limiting the scope of challenges to an amendment or
refiling in this way is warranted, we decline to distinguish between
different types of substantive amendments or revisions as Intelsat
suggests. We did not seek comment on this issue in the Phase I
Incremental Reduction Comment PN. Additionally, we note that adopting
Intelsat's approach could lead to confusion and disputes in the record
over whether an amendment was ``substantive'' or ``major,'' taking the
focus off the Commission's goal for the certification process--to
accurately determine, based on the record, whether an operator has
fully satisfied its Phase I clearing obligations by December 5, 2021.
We reiterate our earlier tentative conclusion that if the Bureau has
not already ruled on the original Certification, we may nevertheless
consider all points raised during the original challenge cycle to the
extent those points may still be relevant to the amended or refiled
Certification.
Several commenters also raised timing considerations relative to
Certification review by the Bureau. In response, we clarify that where
an eligible space station operator either amends or refiles its
Certification, the filing date of the amendment or refiled
Certification will open a new 30-day window for the identification of
any deficiencies by the Bureau in the entire Certification, as amended
or refiled. Further, it also triggers a new 60-day window for a final
Bureau determination on the validity of the entire Certification, as
amended or refiled, where the Bureau identifies any deficiencies in the
entire Certification within the new 30-day window. In other words, the
amending or refiling of a Certification restarts the clock for Bureau
review of that Certification. This clarification conforms with the 3.7
GHz Report and Order's directive to the Bureau to ``render a final
decision as to the validity of the certification no later than 60 days
from its filing,'' because an amendment or refiling will necessarily
alter or replace the underlying Certification and otherwise make it
impossible to ascertain whether the eligible space station operator had
fulfilled its transition responsibilities absent a full review. Indeed,
we would risk frustrating the Commission's objective of making an
accurate determination on a Certification if we were to conclude, as
some satellite operators suggest, that corrections to a Certification
or remedial actions made during the 60-day review period would not
affect when the date by which a final determination must be made. For
instance, if an eligible space station operator were to substantially
or entirely replace its Certification fifty-nine (59) days after its
original filing and the Bureau took the position that this action had
no effect on the timing of a final determination, then both outside
parties and the Bureau would be deprived of the ability to assess the
Certification's validity before the Bureau issued a final
determination, which we believe would be inconsistent with the
Commission's directive in the 3.7 GHz Report and Order. Eligible space
station operators are strongly encouraged to ensure their original
filings are complete and conform to the requirements specified in our
Phase I ARP Certification Procedures PN to avoid the need for any
amendments or refiling.
We adopt our proposal that, if WTB decides that the amended or
refiled Certification was valid, the eligible space station operator's
ARP will be based on the filing date of the amended or refiled
Certification. As noted above, where the amended or refiled
Certification is submitted before the Phase I deadline and that
Certification is found to be valid, there will be no reduction in the
ARP.
Amending or Refiling a Certification After the Phase I Deadline. As
commenters largely focused on the effects of amending or refiling a
Certification before the Phase I deadline of December 5, 2021, the
record does not reflect detailed input on similar scenarios occurring
after the Phase I deadline. We therefore adopt our proposals from the
Phase I Incremental Reduction Comment PN, consistent with the
clarifications articulated above. Thus, if WTB rejects a Certification
filed before the Phase I deadline (whether the original or an amended
or refiled Certification), then the eligible space station operator
will have to finish any incomplete aspects of the transition and file a
new Certification that the Bureau will have to find to be valid before
its entitlement to an ARP could be determined. If the filing date of
this new, valid Certification falls after the Phase I deadline, then
the ARP will be subject to the incremental reduction schedule
established by the Commission in the 3.7 GHz Report and Order, as
applicable, based on that Certification's filing date. We establish the
same treatment in cases where the Bureau has not yet ruled on a
Certification and, after the Phase I deadline, the eligible space
station operator either submits an amended or refiled Certification on
its own motion, or in response to a challenge.
Where a Certification is amended or refiled after the Phase I
deadline, we establish the same challenge process as where an amended
or refiled Certification is filed before the Phase I deadline. Thus,
new challenges to the amended or refiled Certification will be
permitted but must be filed within 10 days of the filing of the
Certification and be limited to matters involving changes made to the
original Certification (whether the addition of new information,
modifications of information that had been included in the original
Certification, or the deletion of previously included information). If
the Bureau has not already ruled on the original Certification, we may
nevertheless consider all timely filed points raised during the
original challenge cycle (even if that cycle ends after the filing of
an amended or refiled Certification) to the extent those points may
still be relevant to the amended or refiled Certification.
[[Page 57372]]
Accounting for Remedial Action by Eligible Space Station Operators.
Subject to the provision on agreements below, we affirm that WTB will
consider remedial action taken by an eligible space station operator
only if said operator has memorialized that action in a Certification
(whether amended or refiled). Thus, if WTB issues a final determination
rejecting a Certification, the fact that the eligible space station
operator has taken remedial action--after filing its Certification but
before WTB's decision--to address the problems in said Certification
that had prompted WTB's rejection will not, in and of itself,
invalidate or otherwise affect WTB's determination. Rather, for such
remedial action to be considered, the eligible space station operator
will need to submit an amended or refiled Certification reflecting that
remedial action. The amended or refiled Certification will initiate a
new challenge process as to those aspects that had not yet been subject
to the initial challenge process, will be subject to 60 day review by
the Bureau, and will, if accepted as valid, establish a new date by
which the eligible space station operator's ARP will be calculated.
Agreements. We adopt our proposal that eligible space station
operators and stakeholders (including, but not limited to, incumbent
earth station operators) may enter into agreements to resolve any
outstanding issues raised in a challenge to a Certification and submit
any such agreements to WTB before the Bureau has made a final
determination regarding the validity of the Certification without
refiling or amending that Certification. For instance, if an eligible
space station operator submits a Certification (either before or after
the Phase I deadline) that is credibly challenged, and it attempts to
address any alleged deficiency before WTB has issued a decision, the
eligible space station operator and challenging parties can enter into
an agreement(s) to resolve all outstanding issues between those parties
and submit this agreement(s) to WTB. If, after review, WTB accepts this
agreement(s) as a good faith resolution of issues in the eligible space
station operator's Certification, the Bureau will find that the
original Certification is valid and dismiss the related outstanding
challenges. If such an agreement resolved all outstanding challenges,
the Bureau would calculate the ARP as of the date the original
Certification was filed. If the agreement, or agreements, entered into
by the eligible space station operator and the relevant challenger(s)
does not resolve all outstanding issues in an eligible space station
operator's Certification, then the Bureau will proceed to make a
determination on any outstanding issues not addressed by the agreement
or agreements. To the extent the eligible space station operator files
an amended Certification before such determination is made, attesting
that it has completed the necessary remedial steps on any outstanding
issues, then we will calculate the ARP as of the date of the amended
Certification (assuming this amended Certification is found valid).
While we decline to adopt certain proposals advanced by Eutelsat
relating to our review of agreements, we clarify that parties to an
agreement may request confidential treatment under Sec. 0.459 of the
Commission's rules.
Although we allow eligible space station operators and stakeholders
to enter into agreements to resolve issues raised in challenges, to
ensure the integrity of the transition process, we affirm our proposal
to bar the use of greenmail to reach agreements designed to avoid
incremental reductions. When a challenge against a Certification is
withdrawn as the result of an agreement with an eligible space station
operator, we will require that the written withdrawal agreement be
accompanied by an affidavit from all parties certifying that no parties
involved have received or will receive any money or other
consideration, or pay any money or other consideration, in excess of
legitimate and prudent expenses in exchange for the agreement or
withdrawal of the challenge. We otherwise decline to clarify the
Commission's greenmail policy as some commenters suggest, finding that
the approach we adopt will ensure the integrity of the transition
without imposing unnecessary or onerous requirements on the parties to
such agreements. We believe it is more appropriate to address specific
applications of this policy on a case-by-case basis, and will reject
any agreement where we have reason to believe greenmail has changed
hands.
Finally, if the eligible space station operator takes remedial
action to address any challenges to a filed Certification but does not
attempt to negotiate with the challengers or such negotiations fail,
WTB will proceed to make a decision based on the information submitted
by the eligible space station operator in its Certification (original,
amended, or refiled, as applicable).
Federal Communications Commission.
Amy Brett,
Acting Chief of Staff, Wireless Telecommunications Bureau.
[FR Doc. 2021-22490 Filed 10-14-21; 8:45 am]
BILLING CODE 6712-01-P
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