Subject: [NEXTEL-1] Subject: Federal Communications Commission: Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets.

From: [email-masked]
Date: Sat, 20 Dec 2003 01:12:48 -0500

GAO-04-320R
United States General Accounting Office
Washington, DC 20548
B-293425

December 12, 2003

The Honorable John McCain
Chairman

The Honorable Ernest F. Hollings
Ranking Minority Member
Committee on Commerce, Science, and Transportation
United States Senate

The Honorable W.J. “Billy” Tauzin
Chairman

The Honorable John D. Dingell
Ranking Minority Member
Committee on Energy and Commerce
House of Representatives

Subject: Federal Communications Commission: Promoting Efficient Use of Spectrum
Through Elimination of Barriers to the Development of Secondary Markets

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
(FCC), entitled “Promoting Efficient Use of Spectrum Through Elimination of
Barriers to the Development of Secondary Markets” (FCC 03-113). We received the
rule on December 4, 2003. It was published in the Federal Register as a final
rule on November 25, 2003. 68 Fed. Reg. 66252.

The final rule promotes wider use of spectrum leasing arrangements by
facilitating the ability of licensees in FCC’s Wireless Radio Services that hold
“exclusive” authority to lease some or all of their spectrum usage rights to
third parties for any amount of spectrum and in any geographic area encompassed
by the license, for any period of time within the term of the license. The rule
also adopts streamlined approval procedures for license assignments and
transfers of control in these Wireless Radio Services.

We note that the final rule has an announced earliest effective date of January
26,
2004, with certain provisions of the rule becoming effective upon approval of
the
information collections by the Office of Management and Budget. The
Congressional
Review Act requires a 60-day delay in the effective date of a major rule from
the date
of publication in the Federal Register or receipt of the rule by Congress,
whichever is
later. While the rule was published on November 25, 2003, Congress did not
receive it until December 4, 2003. Therefore, the portion of the rule that
becomes effective on January 26, 2004, does not meet the required 60-day delay
for congressional review.

Enclosed is our assessment of the FCC’s compliance with the procedural steps
required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the
rule.  Our review indicates that the FCC complied with the applicable
requirements.  If you have any questions about this report, please contact James
W. Vickers, Assistant General Counsel, at (202) 512-8210. The official
responsible for GAO evaluation work relating to the subject matter of the rule
is Michael Gryszkowiec, Managing Director, Physical Infrastructure. Mr.
Gryszkowiec can be reached at (202) 512-2834.

signed

Kathleen E. Wannisky
Managing Associate General Counsel
Enclosure
cc: Uzoma Onyeije
 Legal Advisor/Chief, Wireless
 Telecommunications Branch
 Federal Communications Commission

=============================================

GAO-04-320R
 ENCLOSURE
 ANALYSIS UNDER 5 U.S.C. § 801(a)(1)(B)(i)-(iv) OF A MAJOR RULE
 ISSUED BY THE
 FEDERAL COMMUNICATIONS COMMISSION
 ENTITLED
"PROMOTING EFFICIENT USE OF SPECTRUM THROUGH ELIMINATION OF BARRIERS TO THE
DEVELOPMENT OF SECONDARY MARKETS" (FCC 03-113)

(i) Cost-benefit analysis
The FCC’s submission to our Office stated 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

The FCC prepared both Initial and Final Regulatory Flexibility Analyses, which
were incorporated into the proposed and final rules, respectively. The analyses
contain the required information, including descriptions and estimates of the
number of small entities in the various segments of the industry and the steps
taken to reduce the burden on the small entities. FCC points out that under the
rule all entities, including small entities, will be governed by reduced filing
requirements and reduced regulatory uncertainty.

(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 FCC 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
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.  The final rule was issued
using the notice and comment procedures contained at 5 U.S.C. 553. On December
26, 2000, the FCC published a Notice of Proposed Rulemaking in the Federal
Register. 65 Fed. Reg. 81475. The FCC received 37 comments and 21 reply comments
in response to the notice.

Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520

The final rule contains a new information collection, which is subject to review
by the Office of Management and Budget (OMB) under the Paperwork Reduction Act.
Page 2 GAO-04-320R

FCC has submitted the required information to OMB including the estimated annual
burden. FCC estimates that the annual number of respondents will be 71,262 with
an estimated burden time of 9 hours per response for a total cost burden of
$117,088,018.33.

Statutory authorization for the rule

The final rule was promulgated under the authority contained at sections 1,
4(i), 8, 9, 10, 301, 303(r), 308, 309, 310, 332, and 503 of the Communications
Act of 1934, as amended, 47 U.S.C. 151, 154(i), 158, 161, 301, 303(r), 308, 309,
310, 332, and 503.

Executive Order No. 12866
As the rule is promulgated by an independent regulatory agency, it is not
subject to the review requirements of the order.
http://www.gao.gov:8765/cs.html?url=http%3A//www.gao.gov/decisions/majrule/d04320r.pdf&qt=%22Radio%22&col=legal
reports text&n=2

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