Wireless Operations in the 3650-3700 MHz Band, 24712-24727 [05-9096]

Download as PDF 24712 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ is defined in the Executive order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any ‘‘tribal implications’’ as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.’’ ‘‘Policies that have tribal implications’’ is defined in the Executive order to include regulations that have ‘‘substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.’’ This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. VIII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register. This final rule is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). AGENCY: contention-based protocol, in the 3650– 3700 MHz band (3650 MHz) band. It also adopted a streamlined licensing mechanism with minimal regulatory entry requirements that will encourage multiple entrants and stimulate the rapid expansion of wireless broadband services—especially in rural America— and will also serve as a safeguard to protect incumbent satellite earth stations from harmful interference. The Report and Order (R&O) established licensing, service and technical rules that allow fixed and base-stationenabled mobile terrestrial operations. Finally, the R&O maintained the existing Fixed Satellite Service (FSS) and Fixed Service (FS) allocations and modified the Mobile Service (MS) allocation to delete the restriction against mobile operations in the 3650 MHz band. The R&O also maintained the international/intercontinental operation requirements for FSS earth stations. DATES: Effective June 10, 2005, except for 47 CFR 90.203(o), 90.1323, which contain information collections that have not been approved by the Office of Management and Budget (OMB). The Commission will publish a document in the Federal Register announcing the effective date of those sections. FOR FURTHER INFORMATION CONTACT: Gary Thayer, Office of Engineering and Technology, (202) 418–2290, or Eli Johnson, 418–1395, Wireless Telecommunications Bureau. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s Report and Order, and Memorandum Opinion and Order ET Docket No. 04–151, ET Docket No. 02–380, ET Docket No. 98– 237, WT Docket No. 05–96, FCC 05–56, adopted March 10, 2005 and released March 16, 2005. The full text of this document is available on the Commission’s Internet site at https:// www.fcc.gov. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY–A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission’s duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY–B402, Washington, DC 20554; telephone (202) 488–5300; fax (202) 488–5563; e-mail FCC@BCPIWEB.COM. SUMMARY: This document adopted rules that provide for nationwide, nonexclusive, licensing of terrestrial operations, utilizing technology with a Summary of the Report and Order 1. The Report and Order (R&O), adopted rules that provide for nationwide, non-exclusive, licensing of terrestrial operations, utilizing technology with a contention-based List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 29, 2005. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: I PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: I Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.464 is amended by revising the section heading and alphabetically adding a commodity to the table in paragraph (a) to read as follows: I § 180.464 Dimethenamid; tolerances for residues. (a) * * * Commodity Parts per million * * * Horseradish ............... 0.01 * * * * * * * * * * * * [FR Doc. 05–9399 Filed 5–10–05; 8:45 am] BILLING CODE 6560–50–S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 2, 25, and 90 [ET Docket No. 04–151, WT Docket No. 05– 96, ET Docket No. 02–380, and ET Docket No. 98–237; FCC 05–56] Wireless Operations in the 3650–3700 MHz Band Federal Communications Commission. ACTION: Final rule. PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\11MYR1.SGM 11MYR1 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations protocol, in the 3650–3700 MHz band (3650 MHz) band. The Commission also adopted a streamlined licensing mechanism with minimal regulatory entry requirements that will encourage multiple entrants and stimulate the rapid expansion of wireless broadband services—especially in rural America— and will also serve as a safeguard to protect incumbent satellite earth stations from harmful interference. The Commission established licensing, service and technical rules that allow fixed and base-station-enabled mobile terrestrial operations. Finally, the Commission maintained the existing Fixed Satellite Service (FSS) and Fixed Service (FS) allocations and modified the Mobile Service (MS) allocation to delete the restriction against mobile operations in the 3650 MHz band. The R&O also maintained the international/ intercontinental operation requirements for FSS earth stations. 2. The Commission affirmed its belief that the 3650 MHz band is well-suited to respond to the needs expressed by the growing number of entrepreneurial wireless internet service providers (WISPs), that currently bring broadband services to consumers, particularly those living in rural areas of the United States. Today, rural consumers often have fewer choices for broadband services than consumers in more populated areas. The licensing scheme that has been adopted for this band will provide an opportunity for the introduction of a variety of new wireless broadband services and technologies, such as WiMax. Furthermore, the decisions adopted in the R&O will allow further deployment of advanced telecommunications services and technologies to all Americans, especially in the rural heartland, thus promoting the objectives of Section 706 of the Telecommunications Act of 1996. 3. In the Memorandum Opinion and Order (MO&O), the Commission addressed several petitions for reconsideration and a motion for stay that were filed in response to the First Report and Order (3650 MHz Allocation Order) in ET Docket No. 98–237, 65 FR 69451, November 11, 2000. The Commission denied the petitions for reconsideration, and it also denied the emergency motion for stay. 4. In April 2004, the Commission released the Notice of Proposed Rulemaking (Unlicensed Operation NPRM, or NPRM), 69 FR 26790, May 14, 2004, and proposed to allow the operation of unlicensed devices in the 3650 MHz band. In the NPRM, the Commission tentatively concluded that permitting unlicensed devices to operate in the band would be the most VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 beneficial approach, but also sought comment on alternative licensed approaches as well. 5. The Commission noted that the record clearly supports use of the 3650 MHz band for a variety of FS and MS operations. The Commission concluded that it would serve the public interest to maintain primary FS and MS allocations and a secondary FSS allocation in the band and to devise a regulatory scheme that provides flexibility for a variety of new terrestrial uses. Further, it noted that the public interest would best be served by establishing minimal regulatory barriers to encourage multiple entrants in the 3650 MHz band and to stimulate the rapid expansion of broadband services—especially in America’s rural heartland. At the same time, the Commission must ensure that incumbent grandfathered satellite earth stations and Federal Government radiolocation stations in this band are protected from harmful interference. 6. To accomplish these objectives, the Commission concluded that new terrestrial operations in the band should be licensed on a nationwide, nonexclusive basis, with all licensees registering their fixed and base stations in a common database. This streamlined licensing and registration process will provide additional spectrum to WISPs and other potential users suitable for backhaul and other broadband purposes such as community networks—at low entry costs and with minimal regulatory delay. While terrestrial licensees in this band will not have interference protection rights of primary, exclusive use licensees, the licensing scheme imposes on all licensees the mutual obligation to cooperate and avoid harmful interference to one another. 7. To ensure efficient and cooperative shared use of the spectrum, the Commission further required all terrestrial operations in the 3650 MHz band to use technology that includes a contention-based protocol. Such systems allow multiple users to share the same spectrum by defining the events that must occur when two or more devices attempt to simultaneously access the same channel and establishing rules by which each device is provided a reasonable opportunity to operate. Under this approach, terrestrial operations can operate in geographic areas of their own choosing and, because a contention-based protocol will control access to spectrum, terrestrial operations will avoid interference that could result from cofrequency operations. Interference caused by radiofrequency (RF) energy from a fixed or base station transmitter into a nearby fixed or base station PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 24713 receiver will be addressed by the process the Commission adopted to register fixed and base stations so that they can operate at locations and with technical parameters that will minimize the potential for interference between stations. By requiring use of contentionbased technologies, the Commission concluded that it does not have to limit terrestrial operations to outdoor-only or adopt other limiting measures to address possible contention among these new operations. The Commission also concluded that a contention-based protocol will allow the band to be used for a variety of base-station-enabled mobile terrestrial operations, thus providing additional flexibility in the use of the band, as many commenters requested. 8. The Commission concluded that licensing and registration of terrestrial fixed and base stations will also enable them to be easily identified and located to ensure the protection of incumbent FSS earth stations and Federal Government radiolocation stations. Under the approach adopted, new terrestrial operations will have to protect satellite earth station receivemode operations and Federal Government radiolocation stations in the 3650 MHz band in substantial areas of the country. To simplify this process, the Commission established protection zones around the grandfathered FSS earth stations, similar to the protection areas already designated around the grandfathered radiolocation stations. New terrestrial operations are to avoid operating within these zones, but the Commission will allow new terrestrial operations to negotiate agreements with earth station operators for operations within these protection zones. The technical requirements the Commission placed on fixed and mobile operations, along with our licensing/registration regime, should allow as much flexibility as technically possible at this point, and both prevent interference to the protected earth stations and facilitate the quick resolution of any interference issues that may arise. 9. In short, the actions taken in the R&O for the 3650 MHz band should facilitate the rapid deployment of advanced telecommunications services and technologies to all Americans, thus promoting the objectives of Section 706 of the Telecommunications Act of 1996. Allocation Issues 10. The Commission also maintained the existing FSS and FS allocations in the 3650 MHz band and modified the MS allocation to remove the ‘‘base station only’’ restriction. These allocations should ensure that the E:\FR\FM\11MYR1.SGM 11MYR1 24714 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations potential widespread use of the band by new terrestrial operations will not be impeded by the introduction of new coprimary FSS earth stations. 11. As proposed in the NPRM, the Commission retained the international/ intercontinental operating requirement on FSS earth stations by deleting the reference in the Table of Allocations to footnote U.S. 245 in the 3650 MHz band, and recasting it as a new ‘‘NG’’ footnote specifically for the 3650 MHz band. As noted in the NPRM, the Commission concluded that deletion of this restriction could result in more extensive FSS use and further curtail the use of this band by terrestrial operations. Finally, by providing for streamlined licensing of terrestrial operations under the existing allocations in the 3650 MHz band, the Commission resolved the questions posed in the NPRM regarding segmentation of the band. Among other benefits, the licensing approach the Commission adopted avoids splitting the band between licensed and unlicensed terrestrial operations, thus making the full 50-megahertz of spectrum in the 3650–3700 MHz band more attractive to potential service providers. Licensing Provisions 12. The Commission believed that a non-exclusive nationwide licensing scheme, coupled with a fixed and base station registration requirement, will ensure open access to this spectrum for nominal application fees and allow effective and efficient use of this spectrum in response to market forces. This should allow opportunities for rapid deployment of broadband technologies and will advance our goal of bringing broadband services to all Americans including consumers living in less densely populated rural and suburban areas. The Commission also believed that the use of contentionbased technologies will allow efficient use of this spectrum by multiple users without significant degradation of service. Thus, the Commission concluded that it is appropriate and in the public interest to have a licensing scheme that facilitates the sharing of this spectrum among multiple users. Such an approach will also allow licensees in this spectrum maximum flexibility to evolve their systems to meet uncertain future needs and requirements. 13. The Commission emphasized that the adopted licensing requirements for wireless operations in the 3650 MHz band are minimal in nature. The record in this proceeding indicated that service providers who typically operate on an VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 unlicensed basis under our part 15 of the Commission’s rules are interested in using this spectrum for the development of wireless broadband services, particularly in underserved and rural communities. The Commission did not impose any eligibility restrictions other than the foreign ownership restriction imposed by statute. The Commission also did not impose any in-band or outof-band spectrum aggregation limits. As a result, the Commission noted, this band will be open to all potential wireless service providers, including those with limited resources. 14. While the licensing and registration requirements adopted for wireless broadband operations in the 3650 MHz band are minimal in nature, the Commission found that they nevertheless provide benefits to licensees and the public. For example, these requirements will ensure that all terrestrial wireless systems operating in the 3650 MHz band are identified, which should facilitate cooperation among users and ensure that the Commission can monitor the development and usage of this spectrum. Furthermore, while terrestrial licensees in this band will not have interference protection rights of primary, exclusive use licensees, the licensing scheme imposes on all licensees the mutual obligation to cooperate and avoid harmful interference to one another. Should a licensee become aware of harmful interference, even if not intentionally caused, it must act in good faith to help eliminate the interference. In addition, this licensing approach will protect grandfathered FSS earth station and Federal Government operations that will continue to operate in the band on a primary basis. In addition, under the licensing scheme adopted, two principal concerns identified by commenters—the need for high power operations and the need to identify users operating in this band—will be met. Further, the licensing scheme adopted will allow the Commission the opportunity to obtain contact information, should the need arise. Further, site registration will facilitate voluntary interference avoidance and mitigation efforts among users and enable both the Commission and the public to monitor the intensity of spectrum usage in the band. 15. The Commission recognized that some commenters advocated exclusive licensing for the 3650 MHz band. However, the Commission believed that on balance, the non-exclusive licensing approach adopted in the R&O, combined with technical safeguards, is more suitable to the unique characteristics of this band. The PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 Commission explained that although a non-exclusive approach may require voluntary coordination efforts to avoid in-band terrestrial interference, the licensing regime adopted in the R&O obligates licensees to cooperate to avoid harmful interference, and makes the information necessary to conduct such coordination available via a site registration database. Some commenters have also raised contention as an issue; the record indicated that this band is well-suited for high power broadband operations using contention-based technologies that facilitate sharing. The Commission believed that the licensing scheme and technical rules adopted will result in investments in this band. In addition, because of the limitations on the use of this band in coastal areas near FSS earth stations, and because of the lack of obvious pairing opportunities with other spectrum bands for duplex operations, much of the interest in development of the band is focused on smaller markets and less densely populated areas of the U.S. where there is less likelihood of congestion and interference. Even in those larger markets that will be open for terrestrial use, the Commission believed that licensees in the band will have the incentive to develop spectrum sharing practices based on the use of contention-based technologies that will promote efficient use of the band. In short, the Commission believed that its decision struck the best balance for all the competing interests in a manner that best serves the public interest. Nationwide Non-Exclusive Licensing 16. Under the rules adopted by the Commission, each terrestrial licensee in the 3650 MHz band will have a nonexclusive nationwide license and be required to register its fixed and base stations. The licensee will be allowed to register all of its fixed and base stations under one license. A non-exclusive nationwide wireless license does not authorize operation of a fixed or base station in this band until that station is registered. Each wireless licensee will be authorized to operate on all 50 megahertz of the 3650 MHz band on a co-primary basis with other wireless licensees, and there will be no spectrum aggregation limits. As a result, wireless licensees in the 3650 MHz band will be able to use as much of this spectrum as needed for their operations as long as they comply with all applicable licensing, service, and operating rules. All wireless licensees in the 3650 MHz band will have equal rights to the use of this spectrum (i.e., no priority for first-in users), but all these licensees will have a mutual obligation to E:\FR\FM\11MYR1.SGM 11MYR1 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations cooperate and avoid harmful interference to one another. 17. Applicant qualification for nonexclusive nationwide wireless licenses in the 3650 MHz band will be assessed in accordance with FCC Form 601 and Commission rules. There will be no limit to the number of non-exclusive nationwide wireless licenses that may be granted for this spectrum, and these licenses will serve as a prerequisite for registering individual fixed or base stations. The Commission notes that registration process is simple and streamlined. It will be done electronically. The initial filing date for these wireless licenses, along with directions on how to use the Universal Licensing System (ULS), will be announced in a future Wireless Telecommunications Bureau (WTB) Public Notice. The Commission notes that in order to keep the ULS licensing and registration data base accurate and up-to-date, it delegates to the WTB the authority to adopt rules regarding the reporting of data base information including reporting of any license or station transfers. The WTB will issue a Public Notice seeking comment on these issues, if needed. Other Licensing Provisions 18. The 3650 MHz Service Rules NPRM sought comment on licensing, operating and service rules related to wireless operations in the 3650 MHz band. In our subsequent Unlicensed NPRM, the Commission sought to refresh the record on these issues. The Commission addressed these issues in terms of how they relate to the nonexclusive nationwide licensing scheme with fixed and base station registration provisions for this spectrum. 19. Rule Part and Regulatory Status. The 3650 MHz Service Rules NPRM sought comment on the rule part that should be utilized to govern wireless operations and services in the 3650 MHz band and noted that wireless broadband service licensees in the 3650 MHz band could be subject to other rule parts depending on the types of operations and services that they offered. Upon consideration of the record and given the non-exclusive nationwide nature of the licenses in the 3650 MHz band, the Commission decided to place the licensing, service, and operation provisions for this spectrum under a new subpart that will be entitled ‘‘3650 MHz Wireless Broadband Services,’’ created in the existing part 90 of its rules. This rule part already contains licensing, service and operating provisions for the private land mobile radio (PLMR) services, including services that operate on VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 certain frequencies on a shared use basis. As with wireless services in the 3650 MHz band, this means that multiple licensees in these shared use bands operate on the same frequencies in the same geographic areas without exclusive spectrum usage rights and interference protections. 20. Licensees in the 3650 MHz band may provide services on a common carrier or non-common carrier basis and will have flexibility to designate their regulatory status based on any services they choose to provide. Wireless licensees in the 3650 MHz band will be able to provide all allowable services anywhere within their service area at any time, consistent with whatever regulatory status they choose. 21. While wireless licensees in the 3650 MHz band will be subject to specific licensing and operating provisions adopted in the R&O, other rules may also apply to these licensees depending on the type of service they provide. For instance, if a wireless licensee provides Commercial Mobile Radio Services (CMRS), which makes the licensee a common carrier, other obligations attach as a result of that decision under Title II of the Communications Act or the Commission’s rules (e.g., universal service, CALEA). 22. Spectrum Aggregation Limits, Eligibility, and Foreign Ownership Restrictions. The 3650 MHz Service Rules NPRM did not propose any inband or out-of-band spectrum aggregation limits nor did it propose any eligibility restrictions on who can acquire a wireless license for this spectrum, other than the statutory foreign ownership restrictions. In this order, the Commission decided not to impose any spectrum aggregation limits, either in-band or out-of-band, or eligibility restrictions other than the statutory foreign ownership restrictions. All potential wireless service providers will have equal access to this band. 23. License Term and Renewal Expectancy. The 3650 MHz Service Rules NPRM sought comment on a 10year license term for wireless licenses in the 3650 MHz band and the standard that should be used for granting a renewal of that license. The Commission concluded that it is in the public interest to adopt a 10-year license term. The Commission’s action is consistent with license terms adopted for other services including certain services in part 90. A ten-year license term will provide regulatory certainty and encourage investments in the band. At the end of 10 years, licensees will be required through ULS to renew their non-exclusive nationwide license for PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 24715 wireless operations in the 3650 MHz band. Since there is no limit on the number of wireless licenses that will be granted for the 3650 MHz band, existing licensees can expect to receive license renewals as long as they are in compliance with the Commission’s rules. In addition, renewal of a nonexclusive nationwide license will automatically renew registration of all fixed and base stations associated with that license. 24. Performance Requirements. The 3650 MHz Service Rules NPRM sought comment on whether wireless licensees in the 3650 MHz band should be subject to any performance or build-out requirements. Build-out in this band will be driven by market demand and the ability to meet this demand will not be restricted by a limited number of wireless licenses or an exclusive licensing structure. As a result, the Commission found that there was no need to impose a performance or buildout requirement. Any interested party is free to meet this demand at any time, as long as it has a valid wireless license, registers its fixed and base stations, and complies with other applicable rules. Although the Commission did not impose a performance requirement, it required that licensees delete registrations for unused fixed and base stations in order to maintain database integrity and facilitate efficient coordination between licensees. 25. Disaggregation, Partitioning, and Secondary Markets. The 3650 MHz Service Rules NPRM sought comment on whether wireless licensees in the 3650 MHz band should be able to partition their own service areas and disaggregate their respective spectrum. Typically, wireless licensees with exclusive licensing areas are permitted to partition and disaggregate and commenters supported allowing wireless licensees in the 3650 MHz band to be able to take advantage of these provisions. 26. The Commission found that its decision to license the 3650 MHz band for wireless services on a non-exclusive nationwide basis obviates the need to adopt partitioning and disaggregation provisions. Wireless licensees in the 3650 MHz band, however, may assign or transfer their non-exclusive nationwide licenses with all the fixed and base stations registered under those licenses. A licensee can transfer affixed or base station registered under its nonexclusive nationwide license to another non-exclusive nationwide licensee so long as the first licensee deletes the registered fixed or base station from its license and the second licensee registers the station under its license. E:\FR\FM\11MYR1.SGM 11MYR1 24716 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations 27. For similar reasons, the Commission concluded that it need not make its spectrum leasing rules applicable to wireless licensees in the 3650 MHz band. Accordingly, the spectrum leasing arrangements described in the Secondary Markets Report and Order, 68 FR 66252, November 25, 2003, are not applicable, and the Commission does not see a need to apply those spectrum leasing rules and policies to this spectrum at this time. Statutory Compliance for Licensing Approach 28. The Commission’s decision to adopt a licensing scheme that avoids mutual exclusivity comports with the competitive bidding approach set forth in the Commission’s Balanced Budget Act proceeding. In the BBA Report and Order, 66 FR 33, January 2, 2001, the Commission established a framework for exercise of the Commission’s auction authority, as expanded by the Balanced Budget Act. The BBA Report and Order affirmed that, in identifying which classes of licenses should be subject to competitive bidding, the Commission must pursue the public interest objectives set forth in section 309(j)(3). Although Balanced Budget Act did not amend section 309(j)(3)’s directive to consider certain public interest objectives in identifying classes of licenses and permits to be issued by competitive bidding, pursuant to that statute, section 309(j)(1) did include a reference to the Commission’s obligation to avoid mutual exclusivity under section 309(j)(6)(E), which directs the Commission to use engineering solutions, negotiation, threshold qualifications, service regulations, or other means to avoid mutual exclusivity where it is in the public interest to do so. Accordingly, the BBA Report and Order affirmed that the Commission has a continuing obligation to attempt to avoid mutual exclusivity by the methods prescribed in section 309(j)(6) only when doing so furthers the public interest goals set forth in section 309(j)(3). 29. In adopting the appropriate licensing scheme for any particular spectrum band, the Commission has interpreted its statutory obligation in a manner consistent with the opinion of the U.S. Court of Appeals for the D.C. Circuit which stated, ‘‘Section 309(j)(6)(E) imposes an obligation only to minimize mutual exclusivity ‘in the public interest’ and ‘within the framework of existing policies.’ ’’ The Commission’s decision regarding the appropriate licensing scheme for this particular spectrum centers around the VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 unique characteristics of the 3650–3700 MHz band, including the need to protect grandfathered FSS earth station operations against harmful interference, the lack of pairing opportunities with other spectrum bands limiting the possibility of duplex operations, and the goal of enabling multiple users to share spectrum in the same geographic area without interference through the use of contention based technologies. As the record reflects, this band is well suited for high power broadband operations through such technology, and this approach is therefore likely to lead to the introduction of new and innovative broadband services in this band. With respect to the 3650 MHz band, the Commission determined that it serves the public interest and the Commission’s policy objectives to promote the rapid deployment of broadband services to assign nonexclusive nationwide licenses for the use of this spectrum. Insofar as this licensing scheme will not result in mutual exclusivity, the use of competitive bidding is not required. Technical Requirements 30. The Commission adopted the same magnitude of power limits for terrestrial operations proposed in the NPRM, but qualified the limit in terms of power density over a bandwidth. The Commission concluded that FSS protection zones that are somewhat modified from those proposed in the NPRM remain a viable tool for avoiding interference scenarios that might arise from FS/MS operations. The Commission concluded that mobile terrestrial operations could be accommodated while protecting grandfathered FSS and Federal Government stations so long as such operation is enabled by transmissions from a nearby fixed or base station. The Commission also concluded that technologies using a contention-based protocol are available that control access to spectrum and thereby mitigate the possibility of interference that could result from co-frequency operation of fixed and mobile stations, particularly in congested operating environments. In that connection, the Commission adopted equipment certification provisions to ensure that both fixed and mobile stations incorporate the requisite contention-based technologies. Interference caused by radiofrequency (RF) energy from a fixed or base station transmitter into a nearby fixed or base station received will be addressed by the process the Commission adopted to register fixed and base stations so that they can operate at locations and with technical parameters that will minimize PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 the potential for interference between stations. The Commission adopted outof-band emission limits for terrestrial operations and specify criteria for operations in proximity to Canadian and Mexican borders. Finally, the Commission retained the same 80 km coordination zone already established in the rules for the protection of the three grandfathered Federal Government stations operating in the band. 31. The Commission decided to leave it up to the industry to determine flexible and efficient methods for meeting the technical requirements adopted. In particular, the Commission noted that industry would need to address issues such as contention-based protocols and base-station enabled mobile operations. 32. Fixed Station Operating Power. In the NPRM, the Commission proposed an EIRP limit of 25 Watts for fixed stations operating in the 3650 MHz band. The Commission adopted a peak power limit, expressed as a power density, of 25 Watts per 25 megahertz bandwidth, for the following reasons. First, the Commission noted that the majority of commenters generally support the use of 25 watts for fixed operations. Additionally, the Commission noted that the potential for a system to cause interference is related to bandwidth in addition to power. In this respect, the Commission recognized that different systems operating in the 3650–3700 MHz band may utilize various operating bandwidths. Consequently, the Commission believes that EIRP limits should be specified not simply as a maximum power, but rather in terms of power density (i.e., power per unit of occupied bandwidth). By specifying the power limit in this way, protection of FSS earth stations is simplified because a single separation distance can be specified regardless of the bandwidth used. For example, a system using a bandwidth of 25 megahertz may use the full 25 Watts peak EIRP, but a system using only 1 megahertz bandwidth may only use 1 watt peak EIRP; in either case, the power density is equivalent. If the EIRP limit were not specified in this manner, a 1 megahertz system could use the full 25 watts, which, because all the power would be concentrated in a relatively small bandwidth, would result in much larger separation distances necessary to protect FSS earth stations, as compared to a system with 25 megahertz bandwidth. Therefore, the Commission adopted a fixed station peak power density of 25 Watts EIRP in any 25 megahertz band. Furthermore, to promote additional flexibility in system design, any combination of transmitter output power and antenna gain will be E:\FR\FM\11MYR1.SGM 11MYR1 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations permitted, so long as the peak 25 Watt/ 25 megahertz EIRP limit is not exceeded. The Commission believes that the power density requirement it adopted facilitates the goal of ensuring efficient use of the band. As detailed, this limit results in reasonably sized protection zones around FSS earth stations to maximize the area in which terrestrial licensees can operate while also providing enough power for these terrestrial operations to operate over sufficient ranges to provide service to a large number of users. 33. Mobile station operations. Mobile operations, including mobile-to-mobile, will be permitted under the rules we adopted in the R&O. The Commission noted, however, that mobile operations pose a greater risk of causing interference to FSS earth stations than fixed stations. Based on the record, the Commission concluded that, before it can transmit, a mobile station (including those operating in mobile-to-mobile mode) will be required to positively receive and decode an enabling signal transmitted by a base station. Thus, mere spurious emissions from other RF sources, such as another mobile transmitter, cannot enable a mobile to transmit. The Commission believes that this approach will ensure that spurious emissions from nearby devices will not inadvertently trigger the transmit ability of a mobile station. Furthermore, this approach will ensure that any mobile station will be within a reasonable distance of a base station and, thus, far from an FSS earth station (or federal government station) before it can transmit. The rules adopted will also allow for mobile-to-mobile operations. Beyond the basic requirement for the use of base station trigger, the Commission concluded that it should not adopt additional requirements regarding the characteristics of the signal needed to trigger mobile transmissions (e.g., signal level and content). Instead, the Commission decided to leave it up to the industry to determine flexible and efficient methods for meeting this requirement. The Commission noted, however, that meeting this requirement should not pose any undue burden upon manufactures inasmuch as equipment deployed today already incorporates a similar mechanism. 34. Mobile operating power. In the NPRM, the Commission proposed to limit mobile devices to a peak EIRP of 1 Watt. Accordingly, the Commission concluded that a maximum peak EIRP of 1 Watt over a 25 megahertz bandwidth will provide a reasonable balance between interference protection goals and fostering the most flexible use VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 of mobile stations in the 3650 MHz band. In the same manner as the power limits for fixed stations, the Commission specified the mobile power limit in terms of bandwidth density in order to accommodate systems with various bandwidths while assuring predictable protection of incumbent stations. The Commission also noted that this power/ bandwidth level is consistent with existing wireless mobile equipment operating in other bands, and with proposed wireless mobile systems under consideration by IEEE 802.16. 35. Antennas. In the NPRM, the Commission observed that sectorized and phased array antennas could be used to create highly spectrum efficient networks and could enable an application like a broadband local area network to serve a number of spatially separated clients from a single fixed antenna site. Such antennas allow systems to use spectrum more efficiently by making it possible to reuse a given frequency to communicate with different devices along nonoverlapping paths. The Commission believes that allowing such flexibility encourages both new and novel antenna technologies that will foster more intensive spectrum use. 36. The Commission concluded that transmitters installed at fixed locations should not be prohibited from using any particular type of antenna design. As a general requirement, the EIRP in any antenna beam must be limited to 25 Watts per 25 megahertz. However, transmitters using sectorized, scanning spot-beam, or other antenna types with multiple beam capability shall be required to limit their EIRP in any direction to no more than the limit the Commission adopted for fixed systems (i.e., 25 Watts per 25 megahertz). Thus, the aggregate power transmitted simultaneously on overlapping beams will have to be reduced such that the EIRP in the area of overlap does not exceed the limit for a single beam. In addition, to allow flexibility in deployment of advanced antenna systems, including sectorized and adaptive array systems, the Commission will allow systems using these antennas to operate with an aggregate transmit output power transmitted simultaneously on all beams of up to 8 dB above the limit for an individual beam. The Commission believes that these rules will provide flexibility for licensees to employ a wide variety of advanced antennas to meet their needs while still ensuring protection to FSS earth stations. Applications for equipment authorization must include the algorithm that confirms that this requirement is met. PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 24717 37. Protection of terrestrial stations. Under the licensing scheme being adopted for terrestrial transmitters in the 3650–3700 MHz band, it will be possible for both base and mobile stations to operate virtually anywhere— except near FSS earth stations and Federal stations. Mechanisms must therefore be in place to ensure operation on an interference-free basis. The Commission stated that it is concerned about two different kinds of interference in the 3650–3700 MHz band. The first could occur if the radiofrequency (RF) energy from a fixed or base station transmitter interferes with the performance of a nearby fixed or base station receiver. The second type of interference could take place if two or more stations are competing with each other for access to the spectrum. With regard to the former, the Commission will provide, at https://wireless.fcc.gov/ uls, information regarding the location of all registered stations in the band. Parties seeking to register a new station should examine this database, and then make every effort to ensure that their station operates at a location, and with technical parameters, that would minimize the potential for mutual interference between both the new and existing stations. 38. The Commission believes the best way of preventing the second form of interference from occurring is to require systems operating in the 3650–3700 MHz band to incorporate a contentionbased protocol. Such protocols can be characterized by having the following properties: Procedures for initiating new transmissions, procedures for determining the state of the channel (available or unavailable), and procedures for managing retransmissions in the event of a busy channel. 39. Systems using a contention-based protocol have been common for quite some time for both licensed and unlicensed systems. Because it is not according terrestrial licensees exclusive use of the spectrum in any area and because it desires to provide for widespread deployment of equipment, the Commission believes that a contention-based protocol is a reasonable, cost effective method for ensuring the ability of any user to access the spectrum. A contention based protocol also will have to ensure that all users will have a reasonable opportunity to operate, so that no operator can block others’ access to the spectrum. Accordingly, the Commission required fixed, base and mobile equipment designed for use in the 3650 MHz band to incorporate some type of contention based protocol. Consistent with past E:\FR\FM\11MYR1.SGM 11MYR1 24718 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations practice, the Commission did not specify a specific protocol, but left it to the industry and standards bodies to determine appropriate protocols. The incorporation of such a protocol will be a requirement of the equipment certification process, and equipment that appears to be designed to preclude others from using this spectrum will not be approved. In monitoring the use of this spectrum, the Commission noted that it remains free to modify the rules if there appears to be significant problems in this regard. The Commission also added a definition of contention-based protocol into the rules, see section 90.7. 40. FSS Earth Station Protection. Under the streamlined licensing approach adopted in the R&O, terrestrial FS/MS operations must continue to protect satellite earth stations that retain their primary status under our FSS grandfathering provisions for the 3650 MHz band. The Commission adopted circular protection zones of 150 km around the grandfathered earth stations. The Commission recognizes that the simplified circular protection zones that we are being imposed here employs a high degree of worst-case conservatism that, in many instances, could result in prohibiting the use of transmitters in less-than-worst-case circumstances where, in reality, there would be no likelihood of interference to FSS earth stations. To provide additional flexibility in the face of these conservative protection zones, the Commission determined that it will allow terrestrial operations within these protection zones, so long as they negotiate agreements with the earth stations operators. 41. The Commission adopted a registration requirement as an integral part of the streamlined licensing scheme for the 3650 MHz band. The Commission noted that this approach would ensure that the locations of all terrestrial users are known. To further assure that FSS earth stations are adequately protected, the Commission imposed the protection distance as a circular zone around the earth station. This differs from the proposal made in the NPRM of using a keyhole-like pattern based on the earth station pointing towards a specific satellite. The Commission made this decision because, in practice, each earth station can look at multiple satellites across the geostationary arc. Thus, a circular protection zone is more appropriate for ensuring interference protection in all cases. In addition, the Commission pointed out that using a circular zone has the benefit of simplicity for all parties as it is easy to determine exactly VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 which areas are excluded from terrestrial station operation. 42. Finally, the Commission noted that a more accurate determination of the requisite separation distances could be derived if the particular operating parameters of both the fixed terrestrial transmitter and protected FSS earth stations are taken into account. However, requiring operators to independently make detailed transmission path and link budget calculations could be unduly burdensome. The Commission recognized, however, that such operation within the conservative portion of the protection zone is possible, and thus will allow such operation so long as the FS station and the FSS station licensees mutually agree on appropriate operating parameters. An FS entity that requests to operate within the protection zone will be required to negotiate with each protected earth station that is potentially affected by the proposed fixed or mobile operation. Further, the FSS station licensee must not refuse to negotiate with the fixed licensee, and both parties should negotiate in good faith. The results of these negotiations must be documented and kept with the station’s records in the event that the Commission needs this information. 43. Equipment Authorization Requirements. As discussed in the licensing sections of the R&O, the Commission adopted rules to license terrestrial operations in the 3650 MHz band under part 90 of its rules. In addition, the Commission noted that there already exists a general requirement for all equipment to obtain certification under that rule part. This requirement recognizes that there is a certain ‘‘core group’’ of equipment that requires a higher level of oversight than manufacturer’s self-approval (Declaration of Conformance or Verification), due to a high risk of noncompliance, the potential to create significant interference to safety and other communication services, and the need to ensure compliance with the requirements to protect against radio frequency exposure. The Commission found that because of the risk of interference to FSS earth stations, equipment designed for operation in the 3650 MHz band falls into this ‘‘core group’’ of equipment. Thus, as with other part 90 equipment, the Commission required manufacturers to obtain certification for their equipment. The Commission noted that applications for equipment authorization must contain specific information regarding the methods employed to meet our rules. Specifically, certification PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 applications for systems using advanced antenna technology must provide the algorithm used to reduce the EIRP to the maximum allowed in the event of overlapping beams. In addition, the application must contain information discussing how the equipment meets the requirement to employ a contention based protocol for gaining access to the spectrum and for mobile transmitters, including a description of how the requirement to positively receive and decode an enabling signal is incorporated. 44. The Commission noted, that the rules currently require certification to be approved by the Commission or a designated Telecommunication Certification Body (TCB) before they may be marketed. In General Docket 98– 68, we established the requirements for TCBs that are allowed to approve equipment in the same manner as the Commission. In that proceeding, the Commission stated that while it intended to use TCBs to certify a broad range of equipment, we found that certain functions should continue to be performed by the Commission. The functions included certifying new or unique equipment for which the rules or requirements do not exist or for which the application of the rules is not clear. Because it had not previously specified that certification would be based on specification of a contention based protocol, nor on the ability of a mobile station to transmit only after receiving an enabling signal from a base station, the Commission, believes that many questions about the application of the rules may arise. Thus, the Commission decided that TCBs should not be permitted to certify or approve permissive changes for equipment operating under the rules adopted until it gains sufficient experience with this band. Once the Commission gains sufficient experience with equipment in this band, it will determine whether TCBs should be permitted to certify them. Accordingly, until the Chief of the Office of Engineering and Technology acting under the existing delegated authority issues an announcement by public notice, TCBs will not be permitted to certify equipment in the 3650–3700 MHz band. 45. RF Safety. The Commission decided that it will require manufacturers to obtain certification for their equipment, among other reasons, to address the need for compliance with the requirements to protect against radio frequency (RF) exposure. In addition, licensees are responsible for ensuring that transmitting equipment, as actually installed, continues to meet RF exposure guidelines. For example, fixed E:\FR\FM\11MYR1.SGM 11MYR1 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations transmitters operating at the peak EIRP output power of 25 Watts/25 MHz authorized in the R&O would not generally be required to undergo routine RF safety evaluation as a part of the equipment certification process because installation constraints typically result in sufficient separation distances such that human exposure limits would not be exceeded. Nevertheless, the Commission, recognized that such transmitters, particularly those that might be licensed by individuals or other small entities, could have a greater chance of being installed in a diverse range of atypical environments; possibly, for example, even inside a residential home. In such instances, an improper installation could result in circumstances where RF safety standards might be exceeded due to a reduced separation distance. Consequently, the Commission required, as part of the certification process, that equipment manufacturers include sufficiently detailed installation instructions and guidelines to ensure that licensees locate such transmitters in a manner that will maintain appropriate human exposure separations at all times. 46. By comparison, non-fixed transmitters generally require additional evaluation as a part of the manufacturer’s equipment certification process. Based upon the peak EIRP operating limit of 1 Watt specified here. The Commission required routine evaluation for these devices to demonstrate RF exposure compliance. In any event, manufacturers are responsible for ensuring that any equipment they design, manufacture, and sell meets the corresponding RF safety limits. Licensees of non-fixed transmitters may generally rely upon the manufacturers’ equipment certification that RF exposure guidelines for that equipment have been met. 47. Federal Government Facilities. In the NPRM, the Commission sought comment on whether the methods described in the NPRM would provide an effective means of protecting the three Federal Government radiolocation stations that operate in the 3650–3700 MHz band on a primary basis. These stations, located at St. Inigoes, MD, Pascagoula, MS, and Pensacola, FL, were grandfathered as a condition of the transfer of the 3650 MHz band to a mixed-use status. The current rules require that FS and FSS stations located within 80 kilometers of each site coordinate with the Federal Government. As noted, this protection criterion for Federal stations has been in existence for fixed stations since 1999 and the Commission did not propose to VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 alter it. Thus, the Commission will continue to require coordination with NTIA through the Frequency Assignment Subcommittee of the Interdepartmental Radio Advisory Committee for any station that requests registration of a site closer than 80 km from the three specified radiolocation sites. The Commission, further noted that our ULS system has the capability of screening for any terrestrial applications that might propose site coordinates located within the 80 kilometer coordination zone and, within approximately 24 hours, flag that application for any necessary coordination. 48. Furthermore, the Commission called to the attention of potential users of the 3650–3700 MHz band that the adjacent 3600–3650 MHz band is used by high power federal government radar systems and they are not limited to the three protected sites. Consequently, terrestrial transmitter/receiver manufacturers will likely find the need to incorporate design measures to protect their equipment from possible overload by these adjacent band radar signals. The Commission strongly recommends that parties installing equipment in this band should determine if there are any nearby Federal Government radar systems that could affect their operations. Information regarding the locations and operational characteristics of the radar systems operating adjacent to this band are provided in NTIA TR–99–361. 49. Operation in Proximity to U.S. Borders. To provide sufficient protection to Canadian and Mexican stations operating in the 3650–3700 MHz band that are located near the U.S. borders, the Commission proposed in the NPRM to require that fixed devices be located at least 8 kilometers from the U.S./Canada or U.S./Mexico border if the antenna of the device looks within the 160° sector away from the border and be located at least 56 kilometers from each border if the device looks within the 200° sector towards the border. This proposal is consistent with the treatment of licensed fixed stations in bands above 470 MHz along the U.S./ Canada border. The Commission concluded that these same considerations apply to the type of licensed operation that we permit in the R&O. Accordingly, the Commission adopted the requirements for operation near the borders as proposed. The Commission pointed out, however, that even under these guidelines, operators might need to further reduce their power to protect FSS earth stations in Canada or Mexico. It further note that, under our current agreement with PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 24719 Canada, operations within the distances specified above may be permitted if we are able to coordinate such use with Canada. The Commission noted that it currently has no agreement with Mexico to permit such coordinated use at this time, but in the future, it may negotiate more specific agreements with Mexico and Canada to govern operations near our borders in the 3650–3700 MHz band. Licensees in this band would be required to comply with the provisions of such agreements. 50. Adjacent Band Emissions. In the NPRM, the Commission sought updated comment on what interference criteria might be used to protect adjacent band services from licensed systems operating in the 3650 MHz band. For example, the Commission asked if it should require that licensed non-fixed devices comply with the field strength limit described in the NPRM for unlicensed devices; or whether we should require that licensed fixed stations comply with a particular field strength limit or satisfy the adjacent band protection criteria proposed in the 3650 MHz Service Rules Second NPRM. In the 3650 MHz Service Rules Second NPRM, the Commission proposed that, in order to protect FSS operations in the 3700–4200 MHz band from interference, terrestrial stations operating in the 3650–3700 MHz band would have to comply with the part 101 emission limits already in place to protect such FSS systems from licensed fixed stations operating in the 3700–4200 MHz band. Therein, the Commission, discussed a proposal made earlier in the ET Docket 98–237 proceeding concerning whether the out of band emission limit defined by 43 + 10 log(P) dB minimum attenuation that applies to broadband PCS should be applied to FS operations in the 3650–3700 MHz band. Comments to that earlier proposal were divided. In that context, the Commission proposed in the 3650 MHz Service Rules NPRM to require that terrestrial service equipment operating in the 3650–3700 MHz band comply with the emission limits already in place for FS operation in the adjacent 3700–4200 MHz band. Commenters to that proposal were similarly split on what criterion to apply. 51. The Commission adopted rules here to require that new terrestrial operations in the 3650 MHz band limit emissions into the adjacent 3600–3650 MHz and 3700–4400 MHz bands by a minimum attenuation of 43 + 10 log(P) below the transmit power. That is, the power of any emission outside of the authorized operating frequency ranges must be attenuated below the transmitting power (P) by a factor of at E:\FR\FM\11MYR1.SGM 11MYR1 24720 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations least 43 + 10 log(P). The Commission noted that this requirement is consistent with the out of band emission limit specified in several of the Commission’s rule parts (reference) for wireless devices including higher power devices. Furthermore, the limit specified in this section is a generic limit that has been applied successfully for many of our wireless services. Finally, the Commission noted that this limit is very conservative, especially for coded digital signals which generally decay more rapidly and produce lower levels of out of band emission than analog signals. On balance, therefore, the Commission believes that this criterion should provide appropriate protection from out of band emission. 52. Space station power flux density. In the 3650 MHz Service Rules NPRM the Commission sought comment on whether it should adopt a rule for the power flux density (pfd) that a space station operating in the 3650–3700 MHz band may produce consistent with the limit for space stations in the adjacent 3700–4200 MHz band. The limit for the 3700–4200 MHz band, which is contained in § 25.208(a) of the Commission’s rules, is identical to the limit in the ITU Radio Regulations, which applies throughout the 3400– 4200 MHz band. One commenter supported applying the same pfd limit in the 3650–3700 MHz band as is applied to the upper adjacent band. In order to conform its rules in this regard to the ITU Radio Regulations, the Commission applied the same pfd limit in the 3650–3700 MHz band as it does in the 3700–4200 MHz band. Memorandum Opinion and Order 53. In the MO&O, the Commission addressed several petitions for reconsideration and an emergency motion for stay that were filed in response to the 3650 MHz Allocation Order in ET Docket No. 98–237. 54. Consistent with its conclusion in the Unlicensed Operation NPRM, the Commission found no statutory obstacle to its decision to affirm its previous allocation decisions, in the Unlicensed Operation NPRM, the Commission, concluded that it did not have any remaining statutory obligations under section 3002 of the BBA. Moreover, in consideration of its decision to adopt a licensing approach that does not result in the acceptance of mutually-exclusive applications, the arguments presented by satellite interests to the effect that the Commission inappropriately determined that the 3650 MHz band could satisfy the requirements of section 3002 of the BBA are moot. VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 Allocation Issues 55. Petitioners generally challenge the rules adopted in the 3650 MHz Allocation Order that created a new, primary FS/MS allocation and made future, non-grandfathered FSS earth stations secondary. In the NPRM, the Commission, asked for comments to refresh the record on the full range of allocation, technical, service and licensing issues raised in this proceeding—including the possibility of revisiting the FSS allocation status in the 3650 MHz band. Thus, the Commission concluded that it had considered anew the potential benefit of different sharing mechanisms in light of this renewed and expanded record. With more specific relation to these petitions for reconsideration, the Commission found that its decision here affirms the FSS allocation changes made in the 3650 MHz Allocation Order. The Commission stated that, in essence, it had decided that it is desirable to foster new terrestrial services under the FS/ MS allocations while protecting a relatively small and static number of grandfathered FSS earth stations in the band. It further noted that it was accomplishing this goal by providing a mechanism (under a streamlined licensing approach) for preventing and addressing any interference concerns of FSS earth stations that might arise from sharing the band with terrestrial operations. The Commission , thus found that its decision strikes a balance among a number of competing factors in a manner that its believe will best serve the public interest and foster the expeditious introduction of new terrestrial services in the 3650 MHz band. 56. Therefore, In light of its full review of the refreshed record in this proceeding, and in light of the decisions made in the companion R&O, the Commission denied the aspects of the petitions that challenge and seek to reverse the allocation decisions made in the 3650 MHz Allocation Order. TT&C Issues 57. The Commission denied the petitions for reconsideration insofar as they request that it allow in the 3650 MHz band new TT&C earth stations on a primary basis for out-of-band FSS systems. The Commission concluded, as it stated in the 3650 MHz Service Rules NPRM, that the basic purpose of the part 25 in-band rules for TT&C is valid. In particular § 25.202(g) of the rules effectively limits FSS operators to operating TT&C links in the same frequency bands as their FSS operations. Thus, a GSO/FSS operator PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 will generally coordinate its TT&C operations with the same set of satellites, at adjacent orbital locations, with which it coordinates its FSS operations. This simplifies the coordination process for FSS systems and also provides an incentive for an operator to maximize the efficiency of a system’s TT&C operations while minimizing the constraints placed on other satellite operations. The Commission noted that its decision is based on a recognition that certain events have occurred since these petitions were filed that mitigate the need to provide the requested relief. In particular, the Commission noted, that it has since authorized satellite systems in the Ka band with TT&C links to be located within band. As a result, TT&C facilities are now available for Ka band systems. As for pending V band system applications, the Commission believes that it is better to address the TT&C needs of particular systems in the context of acting on specific applications for waiver rather than modify the rule based on generalized arguments that some assigned frequency bands of satellite systems are so congested, unreliable, or lacking in manufactured equipment as to render in-band TT&C operations unfeasible. 58. With regard to the filing deadline for co-primary TT&C earth station applications, the secondary status of non-grandfathered TT&C sites, and the restriction on grandfathered TT&C sites to frequencies for which the earth station is already licensed, the Commission believes that those aspects of its decision in the 3650 MHz Allocation Order are necessary measures that help ensure the terrestrial operations under the primary FS/MS allocations are not unduly hampered. The Commission, thus declines to modify these decisions. Furthermore, the Commission, clarified that the decision in the 3650 MHz Allocation Order was not intended to exempt from the FSS application ‘‘freeze,’’ as EchoStar requests, any future requests for earth stations for TT&C operations that serve satellites already authorized in the 3650 MHz band, including new uplink sites. Nonetheless, the Commission, recognizes that individual cases of particular need, particularly for systems already authorized for the 3650 MHz band, can be better addressed through a waiver process that would evaluate each request on its merit. Emergency Motion for Stay 59. In October, 2000, the Commission determined that it was necessary to establish a limit on the acceptance of applications and on the construction of E:\FR\FM\11MYR1.SGM 11MYR1 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations FSS facilities that would be considered primary under the established grandfathering provisions. Accordingly, in the 3650 MHz Allocation Order, the Commission decided that applications for FSS earth stations in the 3650–3700 MHz band located within 10 miles of the authorized coordinates of an existing grandfathered earth station must be filed prior to December 1, 2000, in order to still be considered coprimary. 60. The Commission, denied the motion for stay. When the Commission established the November 30, 2000, filing deadline, it did so because it found that additional new FSS facilities permitted by the Freeze MO&O could affect the use of the 3650–3700 MHz band by the terrestrial services. By deciding in this Order to maintain the FSS allocation changes made in the 3650 MHz Allocation Order, the Commission, reaffirmed its conclusion that allowing additional primary FSS earth stations in the 3650 MHz band could negatively affect the prospects for viable FS/MS terrestrial operations. In light of the foregoing, the Commission, concluded that granting the stay (with the possible consequence of establishing new FSS filing window, and thereby increasing the number of primary FSS earth stations in the band) would be directly counter to its fundamental judgments concerning future use of the 3650 MHz band and would not serve the public interest. Ordering Clauses 61. Pursuant to the authority contained in sections 4(i), 302, 303(e), 303(f), and 307 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, 303(c), 303(f), and 307 this Report and Order is hereby adopted. 62. Parts 1, 2, 15, and 90 of the Commission’s rules are amended as specified in Rules Changes, and such rule amendments shall be effective 30 days after publication in the Federal Register. The Report and Order contains information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13, that are not effective until approved by the Office of Management and Budget. The Federal Communications Commission will publish a document in the Federal Register following approval of the information collection by the Office of Management and Budget (‘‘OMB’’) announcing the effective date of those rules. 63. Pursuant to sections 4(i), 302, 303(e), 303(f), 303(r) and 307 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, 303(e), 303(f), 303(r) and 307, the 3650 MHz VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 Proceeding in ET Docket No. 98–237 is terminated. 64. Pursuant to sections 4(i), 302, 303(e), 303(f), 303(g), 303(r) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, 303(e), 303(f), 303(g) and 405, that the petitions for reconsideration of the 3650 MHz Allocation Order are denied. 65. Pursuant to sections 4(i), 302, 303(e), 303(f), 303(g), 303(r) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, 303(e), 303(f), 303(g) and 405, that the Emergency Motion for Stay of the 3650 MHz Allocation Order is denied. 66. Pursuant to 47 U.S.C. 155(c) and 47 CFR 0.131(c) and 0.331, the Wireless Telecommunications Bureau is granted delegated authority to adopt requirements regarding the reporting of registration and licensing information, pertaining to the 3650 MHz Wireless Broadband Services, in the Universal Licensing System database. 67. The Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order and Memorandum Opinion and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Final Regulatory Flexibility Analysis 68. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1 an Initial Regulatory Flexibility Analysis (IFRA) was incorporated in the Notice of Proposed Rule Making (NPRM), ‘‘Unlicensed Operation in the Band 3650–3700 MHz.’’ 2 The Commission sought written public comments on the proposals in the NPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis conforms to the RFA.3 A. Need for, and Objectives of, the Report and Order 69. The Report and Order (‘‘Order’’) adopts rules that provide for nationwide, non-exclusive, licensing of terrestrial operations, utilizing contention-based technologies, in the 3650–3700 MHz band (3650 MHz band). The Order would take the following actions: • Maintain the existing Fixed Satellite Service (FSS) and Fixed 1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– 612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104–121, Title II, 110 Stat. 857 (1996). 2 See Notice of Proposed Rule Making in ET Docket No. 04–151, 19 FCC Rcd 7545 (7580) (2004). 3 See 5 U.S.C. 604. PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 24721 Service (FS) allocations and modify the Mobile Service (MS) allocation to delete the restriction against mobile-to-mobile operations in the 3650 MHz band. The Order would also maintain the international/intercontinental operation requirements for FSS earth stations. • Adopt a streamlined licensing mechanism that will serve as a safeguard to protect incumbent satellite earth stations and Federal Government radiolocation stations from harmful interference • Establish minimal regulatory entry requirements that should encourage multiple entrants and stimulate the rapid expansion of broadband services, especially in rural America • Establish licensing, service and technical rules that allow fixed, and base-station-enabled mobile terrestrial operations B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 70. None. C. Description and Estimate of the Number of Small Entities To Which Rules Will Apply 71. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein.4 The RFA generally defines the term ‘‘small entity’’ as having the same meaning as the terms, ‘‘small business,’’ ‘‘small organizations,’’ and ‘‘small governmental jurisdiction.’’ 5 In addition, the term ‘‘small business’’ has the same meaning as the term ‘‘small business concern’’ under the Small Business Act.6 A ‘‘small business concern’’ is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).7 Nationwide, there are a total of 22.4 million small businesses, according to SBA data.8 72. A ‘‘small organization’’ is generally ‘‘any not-for-profit enterprise 4 See 5 U.S.C. 604(a)(3). U.S.C. 601(6). 6 5 U.S.C. 601(3) (incorporating by reference the definition of ‘‘small-business concern’’ in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies ‘‘unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.’’ 7 15 U.S.C. 632. 8 See SBA, Programs and Services, SBA Pamphlet No. CO–0028, at page 40 (July 2002). 55 E:\FR\FM\11MYR1.SGM 11MYR1 24722 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations which is independently owned and operated and is not dominant in its field.’’ 9 Nationwide, there are approximately 1.6 million small organizations.10 The term ‘‘small governmental jurisdiction’’ is defined as ‘‘governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.’’ 11 As of 1997, there were approximately 87,453 governmental jurisdictions in the United States.12 This number includes 39,044 county governments, municipalities, and townships, of which 37,546 (approximately 96.2%) have populations of fewer than 50,000, and of which 1,498 have populations of 50,000 or more. Thus, we estimate the number of small governmental jurisdictions overall to be 84,098 or fewer. 73. The Commission has not developed a definition of small entities applicable to manufacturers of communications devices that are licensed on a nationwide, non-exclusive basis. Therefore, we will utilize the SBA definition applicable to Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. Examples of products in this category include ‘‘transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment’’ 13 and may include other devices that transmit and receive IPenabled services, such as personal digital assistants (PDAs). Under the SBA size standard, firms are considered small if they have 750 or fewer employees.14 According to Census Bureau data for 1997, there were 1,215 establishments 15 in this category that 9 See 5 U.S.C. 601(4). Sector, The New Nonprofit Almanac & Desk Reference (2002). 11 5 U.S.C. 601(5). 12 U.S. Census Bureau, Statistical Abstract of the United States: 2000, Section 9, pages 299–300, Tables 490 and 492. 13 Office of Management and Budget, North American Industry Classification System, pages 308–09 (1997) (NAICS code 334220). 14 13 CFR 121.201, NAICS code 334220. 15 The number of ‘‘establishments’’ is a less helpful indicator of small business prevalence in this context than would be the number of ‘‘firms’’ or ‘‘companies,’’ because the latter take into account the concept of common ownership or control. Any single physical location for an entity is an establishment, even though that location may be owned by a different establishment. Thus, the numbers given may reflect inflated numbers of businesses in this category, including the numbers of small businesses. In this category, the Census breaks-out data for firms or companies only to give the total number of such entities for 1997, which was 1,089. 10 Independent VerDate jul<14>2003 15:30 May 10, 2005 Jkt 205001 operated for the entire year.16 Of those, there were 1,150 that had employment of under 500, and an additional 37 that had employment of 500 to 999. The percentage of wireless equipment manufacturers in this category was approximately 61.35%,17 so we estimate that the number of wireless equipment manufacturers with employment of under 500 was actually closer to 706, with an additional 23 establishments having employment of between 500 and 999. Consequently, we estimate that the majority of wireless communications equipment manufacturers that may be affected by our action are small entities. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 74. The terrestrial service operations authorized by this Order will be governed by new regulations that will be housed in part 90 of our rules. There presently exists a general requirement for all equipment to obtain certification under part 90.18 Thus, as with other part 90 equipment, we will require manufacturers to obtain similar certification for their equipment.19 Consequently, the new equipment certification rules adopted for part 90 in this proceeding for transmitters operating the 3650–3700 MHz band would apply similar reporting or recordkeeping requirements. Further, the regulations add permissible operating frequencies for broadband and other technologically advanced uses. The adopted regulations would not require the modification of any existing products. Additionally, rules adopted for use of the 3650 MHz band require that all applicants and licensees shall cooperate in the selection and use of frequencies in the 3650–3700 MHz band in order to minimize the potential for interference and make the most effective use of the authorized facilities.20 A database identifying the locations of registered stations will be available at the FCC’s website to facilitate such cooperation. E. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered 75. The RFA requires an agency to describe any significant alternatives that 16 U.S. Census Bureau, 1997 Economic Census, Industry Series: Manufacturing, ‘‘Industry Statistics by Employment Size,’’ Table 4, NAICS code 334220 (issued Aug. 1999). 17 Id. Table 5. 18 See 47 CFR 90.203. 19 See Order at ¶ 69–70, infra. 20 See adopted new rule § 90.1319(c) in Appendix A. PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603. 76. In the NPRM, the Commission proposed a regulatory scheme for the 3650 MHz band that would have permitted unlicensed use of the band. The NPRM also sought comment on alternative approaches, including those that would provide for licensing of terrestrial operations. Based upon comments to the NPRM and further analysis, this Order adopts an approach that provides for nationwide, nonexclusive licensed operations. Consistent with the underlying goals expressed in the NPRM, we believe that this approach will best provide for the introduction of a new variety of broadband services and technologies in the 3650 MHz band, while protecting grandfathered FSS earth station operations from harmful interference that may be caused by the new services and technologies. 77. We see no evidence that the rules set forth in the Report and Order and Memorandum Opinion and Order will have a significant economic impact on small entities. The costs involved in the selection and use of frequencies by affected entities, including small entities, should be minimal because of the available on-line database to assist with these efforts. Furthermore, these minimal costs will be shared by all entities that use the 3650 MHz band. In particular, as noted in the Report and Order, the streamlined licensing approach should also reduce the costs and regulatory requirements to obtaining a license.21 F. Report to Congress 78. The Commission will send a copy of the Report and Order and Memorandum Opinion and Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office, pursuant to the Congressional Review Act.22 In addition, the Commission will send a copy of the Report and Order and 21 See, e.g., 3650 MHz Report and Order at paragraphs 27–29. 22 See 5 U.S.C. 801(a)(1)(A). E:\FR\FM\11MYR1.SGM 11MYR1 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations Memorandum Opinion and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. List of Subjects in Parts 1, 2, 25, and 90 Radio. Federal Communications Commission. Marlene H. Dortch, Secretary. Rules Changes For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 2, 25, and 90 as follows: I PART 1—PRACTICE AND PROCEDURE 1. The authority citation for part 1 continues to read as follows: I Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309, and 325(e). 2. Section 1.1307 is amended by revising paragraph (b) (2) to read as follows: I § 1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared. * * * * * (b) * * * (2) Mobile and portable transmitting devices that operate in the Cellular Radiotelephone Service, the Personal VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 Communications Services (PCS), the Satellite Communications Services, the Wireless Communications Service, the Maritime Services (ship earth stations only), the Specialized Mobile Radio Service, and the 3650MHz Wireless Broadband Service authorized under Subpart H of parts 22, 24, 25, 27, 80, and 90 of this chapter are subject to routine environmental evaluation for RF exposure prior to equipment authorization or use, as specified in §§ 2.1091 and 2.1093 of this chapter. Unlicensed PCS, unlicensed NII and millimeter wave devices are also subject to routine environmental evaluation for RF exposure prior to equipment authorization or use, as specified in §§ 15.253(f), 15.255(g), 15.319(i), and 15.407(f) of this chapter. Portable transmitting equipment for use in the Wireless Medical Telemetry Service (WMTS) is subject to routine environment evaluation as specified in §§ 2.1093 and 5.1125 of this chapter. Equipment authorized for use in the Medical Implant Communications Service (MICS) as a medical implant transmitter (as defined in Appendix 1 to Subpart E of part 95 of this chapter) is subject to routine environmental evaluation for RF exposure prior to equipment authorization, as specified in § 2.1093 of this chapter by finite difference time domain computational modeling or laboratory measurement PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 24723 techniques. Where a showing is based on computational modeling, the Commission retains the discretion to request that specific absorption rate measurement data be submitted. All other mobile, portable, and unlicensed transmitting devices are categorically excluded from routine environmental evaluation for RF exposure under §§ 2.1091, 2.1093 of this chapter except as specified in paragraphs (c) and (d) of this section. * * * * * PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 3. The authority citation for part 2 continues to read as follows: I Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. 4. Section 2.106 is amended as follows: a. Revise page 54. I b. In the list of United States footnotes, revise footnote US245. I c. In the list of non-Federal Government footnotes, remove footnote NG170 and add footnote NG185. The revisions and additions read as follows: I I § 2.106 * * Table of Frequency Allocations. * * BILLING CODE 6712–01–P E:\FR\FM\11MYR1.SGM 11MYR1 * 24724 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\11MYR1.SGM 11MYR1 ER11MY05.000</GPH> BILLING CODE 6712–01–C 24725 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations * * * * * United States (US) Footnotes * * * * * US245 In the bands 3600–3650 MHz (space-to-Earth), 4500–4800 MHz (space-toEarth), and 5850–5925 MHz (Earth-to-space), the use of the non-Federal fixed-satellite service is limited to international intercontinental systems and is subject to case-bycase electromagnetic compatibility analysis. The FCC’s policy for these bands is codified at 47 CFR 2.108. * * * * * Non-Federal (NG) Footnotes * * * * * NG185 In the band 3650–3700 MHz, the use of the non-Federal fixed-satellite service (space-to-Earth) is limited to international inter-continental systems. * * * * * 5. Section 2.1091 is amended by revising paragraph (c) to read as follows: I § 2.1091 Radiofrequency radiation exposure evaluation: mobile devices. * * * * * (c) Mobile devices that operate in the Cellular Radiotelephone Service, the Personal Communications Services, the Satellite Communications Services, the Wireless Communications Service, the Maritime Services and the Specialized Mobile Radio Service, and the 3650 MHz Wireless Broadband Service authorized under subpart H of part 22 of this chapter, parts 24, 25 and 27 of this chapter, part 80 of this chapter (ship earth stations devices only) and part 90 of this chapter are subject to routine environmental evaluation for RF exposure prior to equipment authorization or use if they operate at frequencies of 1.5 GHz or below and their effective radiated power (ERP) is 1.5 watts or more, or if they operate at frequencies above 1.5 GHz and their ERP is 3 watts or more. Unlicensed personal communications service devices, unlicensed millimeter wave devices and unlicensed NII devices authorized under §§ 15.253, 15.255, and 15.257, and subparts D and E of part 15 of this chapter are also subject to routine environmental evaluation for RF exposure prior to equipment authorization or use if their ERP is 3 watts or more or if they meet the definition of a portable device as specified in § 2.1093(b) requiring evaluation under the provisions of that section. All other mobile and unlicensed transmitting devices are categorically excluded from routine environmental evaluation for RF exposure prior to equipment authorization or use, except as specified in §§ 1.1307(c) and 1.1307(d) of this chapter. Applications for equipment VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 authorization of mobile and unlicensed transmitting devices subject to routine environmental evaluation must contain a statement confirming compliance with the limits specified in paragraph (d) of this section as part of their application. Technical information showing the basis for this statement must be submitted to the Commission upon request. * * * * * I 6. Section 2.1093 is amended by revising paragraph (c) to read as follows: 8. Section 25.202 is amended by adding an entry for 3.65–3.7 GHz and a new footnote 17 to the table in paragraph (a)(1) to read as follows: I § 25.202 Frequencies, frequency tolerance and emission limitations. (a)(1) * * * 3.65–3.7 17. § 2.1093 Radiofrequency radiation exposure evaluation: portable devices. * * * * (c) Portable devices that operate in the Cellular Radiotelephone Service, the Personal Communications Service (PCS), the Satellite Communications Services, the Wireless Communications Service, the Maritime Services, the Specialized Mobile Radio Service, the 3650 MHz Wireless Broadband Service, the 4.9 GHz Band Service, the Wireless Medical Telemetry Service (WMTS) and the Medical Implant Communications Service (MICS), authorized under subpart H of part 22 of this chapter, parts 24, 25, 27, 80 and 90 of this chapter, subparts H and I of part 95 of this chapter, and unlicensed personal communication service, unlicensed NII devices and millimeter wave devices authorized under subparts D and E, §§ 15.253, 15.255 and 15.257 of this chapter are subject to routine environmental evaluation for RF exposure prior to equipment authorization or use. All other portable transmitting devices are categorically excluded from routine environmental evaluation for RF exposure prior to equipment authorization or use, except as specified in §§ 1.1307(c) and 1.1307(d) of this chapter. Applications for equipment authorization of portable transmitting devices subject to routine environmental evaluation must contain a statement confirming compliance with the limits specified in paragraph (d) of this section as part of their application. Technical information showing the basis for this statement must be submitted to the Commission upon request. * * * * * Earthtospace (GHz) Space-to-Earth (GHz) * * * * * * * * * * * * * * * * earth stations in this band must operate on a secondary basis to terrestrial radiocommunication services, except that the band is shared co-equally between certain grandfathered earth stations and the terrestrial radiocommunication services. 17 FSS * * * * * 9. Section 25.208 is amended by revising the first sentence of paragraph (a) to read as follows: I § 25.208 Power flux-density limits. (a) In the band 3650–4200 MHz, the power flux density at the Earth’s surface produced by emissions from a space station for all conditions and for all methods of modulation shall not exceed the following values: * * * * * I 10. Part 25 is amended by adding § 25.256 to read as follows: § 25.256 Special Requirements for operations in the 3.65–3.7 GHz band. Upon request from a terrestrial licensee authorized under Subpart Z, Part 90 that seeks to place base and fixed stations in operation within 150 km of a primary earth station, licensees of earth stations operating on a primary basis in the fixed satellite service in the 3.65–3.7 GHz band must negotiate in good faith with that terrestrial licensee to arrive at mutually agreeable operating parameters to prevent unacceptable interference. PART 90—PRIVATE LAND MOBILE RADIO SERVICES 11. The authority citation for part 90 continues to read as follows: I PART 25—SATELLITE COMMUNICATIONS 7. The authority citation for part 25 continues to read as follows: Authority: 47 U.S.C. 701–744. Interprets or applies Sections 4, 301, 302, 307, 309 and 332 of the Communications Act, as amended, 47 U.S.C. 154, 301, 302, 307, 309 and 332, unless otherwise noted. 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). I I PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 12. Section 90.7 is amended by adding a new definition, in the alphabeticallyappropriate location, as follows: E:\FR\FM\11MYR1.SGM 11MYR1 24726 § 90.7 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations Definitions. * * * * * Contention-based protocol. A protocol that allows multiple users to share the same spectrum by defining the events that must occur when two or more transmitters attempt to simultaneously access the same channel and establishing rules by which a transmitter provides reasonable opportunities for other transmitters to operate. Such a protocol may consist of procedures for initiating new transmissions, procedures for determining the state of the channel (available or unavailable), and procedures for managing retransmissions in the event of a busy channel. * * * * * I 13. Section 90.203 is amended by adding a new paragraph (o), to read as follows: § 90.203 * * * * * (o) Equipment certification for transmitters in the 3650–3700 MHz band. (1) Applications for all transmitters must describe the methodology used to meet the requirement that each transmitter employ a contention based protocol (see §§ 90.7, 90.1305 and 90.1321); (2) Applications for mobile transmitters must identify the base stations with which they are designed to communicate and describe how the requirement to positively receive and decode an enabling signal is incorporated (see § 90.1333); and (3) Applications for systems using advanced antenna technology must provide the algorithm used to reduce the equivalent isotropically radiated power (EIRP) to the maximum allowed in the event of overlapping beams (see § 90.1321). (4) Applications for fixed transmitters must include a description of the installation instructions and guidelines for RF safety exposure requirements that will be included with the transmitter. (See § 90.1335). I 14. Add subpart Z to Part 90 to read as follows: Subpart Z—Wireless Broadband Services in the 3650–3700 MHz Band Sec. 90.1301 Scope. 90.1303 Eligibility. 90.1305 Permissible operations. 90.1307 Licensing. 90.1309 Regulatory status. 90.1311 License term. 90.1312 Assignment and transfer. 90.1319 Policies governing the use of the 3650–3700 MHz band. 14:57 May 10, 2005 Jkt 205001 § 90.1312 § 90.1301 (a) Channels in this band are available on a shared basis only and will not be assigned for the exclusive use of any licensee (b) Any base, fixed, or mobile station operating in the band must employ a contention-based protocol. (c) All applicants and licensees shall cooperate in the selection and use of frequencies in the 3650–3700 MHz band in order to minimize the potential for interference and make the most effective use of the authorized facilities. A database identifying the locations of registered stations will be available at https://wireless.fcc.gov/uls. Licensees should examine this database before seeking station authorization, and make every effort to ensure that their fixed and base stations operate at a location, and with technical parameters, that will minimize the potential to cause and receive interference. Licensees of stations suffering or causing harmful interference are expected to cooperate and resolve this problem by mutually satisfactory arrangements. Scope. This subpart sets out the regulations governing wireless operations in the 3650–3700 MHz band. It includes licensing requirements, and specific operational and technical standards for wireless operations in this band. The rules in this subpart are to be read in conjunction with the applicable requirements contained elsewhere in the Commission’s rules; however, in case of conflict, the provisions of this subpart shall govern with respect to licensing and operation in this band. § 90.1303 Certification required. VerDate jul<14>2003 90.1321 Power and antenna limits. 90.1323 Emission limits. 90.1331 Restrictions on the operation of base and fixed stations. 90.1333 Restrictions on the operation of mobile and portable stations. 90.1335 RF safety. 90.1337 Operation near Canadian and Mexican borders. Eligibility. Any entity, other than those precluded by section 310 of the Communications Act of 1934, as amended, 47 U.S.C. 310, is eligible to hold a license under this part. § 90.1305 Permissible operations. Use of the 3650–3700 MHz band must be consistent with the allocations for this band as set forth in Part 2 of the Commission’s Rules. All stations operating in this band must employ a contention-based protocol (as defined in § 90.7). § 90.1307 Licensing. The 3650–3700 MHz band is licensed on the basis of non-exclusive nationwide licenses. Non-exclusive nationwide licenses will serve as a prerequisite for registering individual fixed and base stations. A licensee cannot operate a fixed or base station before registering it under its license and licensees must delete registrations for unused fixed and base stations. § 90.1309 Regulatory status. Licensees are permitted to provide services on a non-common carrier and/ or on a common carrier basis. A licensee may render any kind of communications service consistent with the regulatory status in its license and with the Commission’s rules applicable to that service. § 90.1311 License term. The license term is ten years, beginning on the date of the initial authorization (non-exclusive nationwide license) grant. Registering fixed and base stations will not change the overall renewal period of the license. PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 Assignment and transfer. Licensees may assign or transfer their non-exclusive nationwide licenses, and any fixed or base stations registered under those licenses will remain associated with those licenses. § 90.1319 Policies governing the use of the 3650–3700 MHz band. § 90.1321 Power and antenna limits. (a) Base and fixed stations are limited to 25 watts/25 MHz equivalent isotropically radiated power (EIRP). In any event, the peak EIRP power density shall not exceed 1 Watt in any onemegahertz slice of spectrum. (b) In addition to the provisions in paragraph (a) of this section, transmitters operating in the 3650–3700 MHz band that emit multiple directional beams, simultaneously or sequentially, for the purpose of directing signals to individual receivers or to groups of receivers provided the emissions comply with the following: (1) Different information must be transmitted to each receiver. (2) If the transmitter employs an antenna system that emits multiple directional beams but does not emit multiple directional beams simultaneously, the total output power conducted to the array or arrays that comprise the device, i.e., the sum of the power supplied to all antennas, antenna elements, staves, etc. and summed across all carriers or frequency channels, shall not exceed the limit specified in paragraph (a) of this section, as applicable. The directional E:\FR\FM\11MYR1.SGM 11MYR1 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Rules and Regulations antenna gain shall be computed as follows: (i) The directional gain, in dBi, shall be calculated as the sum of 10 log (number of array elements or staves) plus the directional gain, in dBi, of the individual element or stave having the highest gain. (ii) A lower value for the directional gain than that calculated in paragraph (b)(2)(i) of this section will be accepted if sufficient evidence is presented, e.g., due to shading of the array or coherence loss in the beam-forming. (3) If a transmitter employs an antenna that operates simultaneously on multiple directional beams using the same or different frequency channels and if transmitted beams overlap, the power shall be reduced to ensure that the aggregate power from the overlapping beams does not exceed the limit specified in paragraph (b)(2) of this section. In addition, the aggregate power transmitted simultaneously on all beams shall not exceed the limit specified in paragraph (b)(2) of this section by more than 8 dB. (4) Transmitters that emit a single directional beam shall operate under the provisions of paragraph (b)(2) of this section. (c) Mobile and portable stations are limited to 1 watt/25 MHz EIRP. In any event, the peak EIRP density shall not exceed 40 milliwatts in any onemegahertz slice of spectrum. § 90.1323 Emission limits. (a) The power of any emission outside a licensee’s frequency band(s) of operation shall be attenuated below the transmitter power (P) within the licensed band(s) of operation, measured in watts, by at least 43 + 10 log (P) dB. Compliance with this provision is based on the use of measurement instrumentation employing a resolution bandwidth of 1 MHz or less, but at least one percent of the emission bandwidth of the fundamental emission of the transmitter, provided the measured energy is integrated over a 1 MHz bandwidth. (b) When an emission outside of the authorized bandwidth causes harmful interference, the Commission may, at its discretion, require greater attenuation than specified in this section. § 90.1331 Restrictions on the operation of base and fixed stations. (a)(1) Except as provided in paragraph (a)(2) of this section, base and fixed stations may not be located within 150 km of any grandfathered satellite earth station operating in the 3650–3700 MHz band. The coordinates of these stations VerDate jul<14>2003 14:57 May 10, 2005 Jkt 205001 are available at https://www.fcc.gov/ib/ sd/3650/. (2) Base and fixed stations may be located within 150 km of a grandfathered satellite earth station provided that the licensee of the satellite earth station and the 3650–3700 MHz licensee mutually agree on such operation. (3) Any negotiations to enable base or fixed station operations closer than 150 km to grandfathered satellite earth stations must be conducted in good faith by all parties. (b) (1) Except as specified in paragraph (b)(2) of this section, base and fixed stations may not be located within 80 km of the following Federal Government radiolocation facilities: St. Inigoes, MD—38° 10′ N., 76°, 23′ W. Pascagoula, MS—30° 22′ N., 88°, 29′ W. Pensacola, FL—30° 21′ 28″ N., 87°, 16′ 26″ W. Note: Licensees installing equipment in the 3650–3700 MHz band should determine if there are any nearby Federal Government radar systems that could affect their operations. Information regarding the location and operational characteristics of the radar systems operating adjacent to this band are provided in NTIA TR–99–361. (2) Requests for base or fixed station locations closer than 80 km to the Federal Government radiolocation facilities listed in paragraph (b)(1) of this section will only be approved upon successful coordination by the Commission with NTIA through the Frequency Assignment Subcommittee of the Interdepartmental Radio Advisory Committee. § 90.1333 Restrictions on the operation of mobile and portable stations. (a) Mobile and portable stations may operate only if they can positively receive and decode an enabling signal transmitted by a base station. (b) Any mobile/portable stations may communicate with any other mobile/ portable stations so long as each mobile/ portable can positively receive and decode an enabling signal transmitted by a base station. (c) Airborne operations by mobile/ portable stations is prohibited. § 90.1335 RF safety. Licensees in the 3650–3700 MHz band are subject to the exposure requirements found in § 1.1307(b), 2.1091 and 2.1093 of our Rules. § 90.1337 Operation near Canadian and Mexican borders. (a) Fixed devices generally must be located at least 8 kilometers from the U.S./Canada or U.S./Mexico border if the antenna of that device looks within PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 24727 the 160° sector away from the border. Fixed devices must be located at least 56 kilometers from each border if the antenna looks within the 200° sector towards the border. (b) Fixed devices may be located nearer to the U.S./Canada or U.S./ Mexico border than specified in paragraph (a) of this section only if the Commission is able to coordinate such use with Canada or Mexico, as appropriate. (c) Licensees must comply with the requirements of current and future agreements with Canada and Mexico regarding operation in U.S./Canada and U.S./Mexico border areas. [FR Doc. 05–9096 Filed 5–10–05; 8:45 am] BILLING CODE 6712–01–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 73 and 76 [FCC 05–22] Order on Reconsideration, in the Matter of Children’s Television Obligations of Digital Television Broadcasters Federal Communications Commission. ACTION: Final rule; stay of effective date. AGENCY: SUMMARY: This document stays two sections of the CFR regarding the requirements for Internet Web site address displays in children’s television programming in MM Docket 00–167, published on January 3, 2005 (70 FR 25), until January 1, 2006. These requirements became effective on February 3, 2005. DATES: Effective May 11, 2005, 47 CFR 73.670(b) and (c) and 76.225(b) and (c) are stayed until January 1, 2006. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Kim Matthews, Policy Division, Media Bureau, Federal Communications Commission, (202) 418–2120. SUPPLEMENTARY INFORMATION: Among other things, the Report and Order adopted September 9, 2004 in MM Docket 00–167 (70 FR 25, January 3, 2005) held that the display of Internet Web site addresses during programs directed to children ages 12 and under is permitted as within the commercial time limitations only if the Web site meets the following criteria: (1) It offers a substantial amount of bona fide program-related or other noncommercial content; (2) it is not primarily intended E:\FR\FM\11MYR1.SGM 11MYR1

Agencies

FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 70, Number 90 (Wednesday, May 11, 2005)]
[Rules and Regulations]
[Pages 24712-24727]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-9096]


=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2, 25, and 90

[ET Docket No. 04-151, WT Docket No. 05-96, ET Docket No. 02-380, and 
ET Docket No. 98-237; FCC 05-56]


Wireless Operations in the 3650-3700 MHz Band

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document adopted rules that provide for nationwide, non-
exclusive, licensing of terrestrial operations, utilizing technology 
with a contention-based protocol, in the 3650-3700 MHz band (3650 MHz) 
band. It also adopted a streamlined licensing mechanism with minimal 
regulatory entry requirements that will encourage multiple entrants and 
stimulate the rapid expansion of wireless broadband services--
especially in rural America--and will also serve as a safeguard to 
protect incumbent satellite earth stations from harmful interference. 
The Report and Order (R&O) established licensing, service and technical 
rules that allow fixed and base-station-enabled mobile terrestrial 
operations. Finally, the R&O maintained the existing Fixed Satellite 
Service (FSS) and Fixed Service (FS) allocations and modified the 
Mobile Service (MS) allocation to delete the restriction against mobile 
operations in the 3650 MHz band. The R&O also maintained the 
international/intercontinental operation requirements for FSS earth 
stations.

DATES: Effective June 10, 2005, except for 47 CFR 90.203(o), 90.1323, 
which contain information collections that have not been approved by 
the Office of Management and Budget (OMB). The Commission will publish 
a document in the Federal Register announcing the effective date of 
those sections.

FOR FURTHER INFORMATION CONTACT: Gary Thayer, Office of Engineering and 
Technology, (202) 418-2290, or Eli Johnson, 418-1395, Wireless 
Telecommunications Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, and Memorandum Opinion and Order ET Docket No. 04-151, ET 
Docket No. 02-380, ET Docket No. 98-237, WT Docket No. 05-96, FCC 05-
56, adopted March 10, 2005 and released March 16, 2005. The full text 
of this document is available on the Commission's Internet site at 
https://www.fcc.gov. It is also available for inspection and copying 
during regular business hours in the FCC Reference Center (Room CY-
A257), 445 12th Street, SW., Washington, DC 20554. The full text of 
this document also may be purchased from the Commission's duplication 
contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., 
Room CY-B402, Washington, DC 20554; telephone (202) 488-5300; fax (202) 
488-5563; e-mail FCC@BCPIWEB.COM.

Summary of the Report and Order

    1. The Report and Order (R&O), adopted rules that provide for 
nationwide, non-exclusive, licensing of terrestrial operations, 
utilizing technology with a contention-based

[[Page 24713]]

protocol, in the 3650-3700 MHz band (3650 MHz) band. The Commission 
also adopted a streamlined licensing mechanism with minimal regulatory 
entry requirements that will encourage multiple entrants and stimulate 
the rapid expansion of wireless broadband services--especially in rural 
America--and will also serve as a safeguard to protect incumbent 
satellite earth stations from harmful interference. The Commission 
established licensing, service and technical rules that allow fixed and 
base-station-enabled mobile terrestrial operations. Finally, the 
Commission maintained the existing Fixed Satellite Service (FSS) and 
Fixed Service (FS) allocations and modified the Mobile Service (MS) 
allocation to delete the restriction against mobile operations in the 
3650 MHz band. The R&O also maintained the international/
intercontinental operation requirements for FSS earth stations.
    2. The Commission affirmed its belief that the 3650 MHz band is 
well-suited to respond to the needs expressed by the growing number of 
entrepreneurial wireless internet service providers (WISPs), that 
currently bring broadband services to consumers, particularly those 
living in rural areas of the United States. Today, rural consumers 
often have fewer choices for broadband services than consumers in more 
populated areas. The licensing scheme that has been adopted for this 
band will provide an opportunity for the introduction of a variety of 
new wireless broadband services and technologies, such as WiMax. 
Furthermore, the decisions adopted in the R&O will allow further 
deployment of advanced telecommunications services and technologies to 
all Americans, especially in the rural heartland, thus promoting the 
objectives of Section 706 of the Telecommunications Act of 1996.
    3. In the Memorandum Opinion and Order (MO&O), the Commission 
addressed several petitions for reconsideration and a motion for stay 
that were filed in response to the First Report and Order (3650 MHz 
Allocation Order) in ET Docket No. 98-237, 65 FR 69451, November 11, 
2000. The Commission denied the petitions for reconsideration, and it 
also denied the emergency motion for stay.
    4. In April 2004, the Commission released the Notice of Proposed 
Rulemaking (Unlicensed Operation NPRM, or NPRM), 69 FR 26790, May 14, 
2004, and proposed to allow the operation of unlicensed devices in the 
3650 MHz band. In the NPRM, the Commission tentatively concluded that 
permitting unlicensed devices to operate in the band would be the most 
beneficial approach, but also sought comment on alternative licensed 
approaches as well.
    5. The Commission noted that the record clearly supports use of the 
3650 MHz band for a variety of FS and MS operations. The Commission 
concluded that it would serve the public interest to maintain primary 
FS and MS allocations and a secondary FSS allocation in the band and to 
devise a regulatory scheme that provides flexibility for a variety of 
new terrestrial uses. Further, it noted that the public interest would 
best be served by establishing minimal regulatory barriers to encourage 
multiple entrants in the 3650 MHz band and to stimulate the rapid 
expansion of broadband services--especially in America's rural 
heartland. At the same time, the Commission must ensure that incumbent 
grandfathered satellite earth stations and Federal Government 
radiolocation stations in this band are protected from harmful 
interference.
    6. To accomplish these objectives, the Commission concluded that 
new terrestrial operations in the band should be licensed on a 
nationwide, non-exclusive basis, with all licensees registering their 
fixed and base stations in a common database. This streamlined 
licensing and registration process will provide additional spectrum to 
WISPs and other potential users suitable for backhaul and other 
broadband purposes such as community networks--at low entry costs and 
with minimal regulatory delay. While terrestrial licensees in this band 
will not have interference protection rights of primary, exclusive use 
licensees, the licensing scheme imposes on all licensees the mutual 
obligation to cooperate and avoid harmful interference to one another.
    7. To ensure efficient and cooperative shared use of the spectrum, 
the Commission further required all terrestrial operations in the 3650 
MHz band to use technology that includes a contention-based protocol. 
Such systems allow multiple users to share the same spectrum by 
defining the events that must occur when two or more devices attempt to 
simultaneously access the same channel and establishing rules by which 
each device is provided a reasonable opportunity to operate. Under this 
approach, terrestrial operations can operate in geographic areas of 
their own choosing and, because a contention-based protocol will 
control access to spectrum, terrestrial operations will avoid 
interference that could result from co-frequency operations. 
Interference caused by radiofrequency (RF) energy from a fixed or base 
station transmitter into a nearby fixed or base station receiver will 
be addressed by the process the Commission adopted to register fixed 
and base stations so that they can operate at locations and with 
technical parameters that will minimize the potential for interference 
between stations. By requiring use of contention-based technologies, 
the Commission concluded that it does not have to limit terrestrial 
operations to outdoor-only or adopt other limiting measures to address 
possible contention among these new operations. The Commission also 
concluded that a contention-based protocol will allow the band to be 
used for a variety of base-station-enabled mobile terrestrial 
operations, thus providing additional flexibility in the use of the 
band, as many commenters requested.
    8. The Commission concluded that licensing and registration of 
terrestrial fixed and base stations will also enable them to be easily 
identified and located to ensure the protection of incumbent FSS earth 
stations and Federal Government radiolocation stations. Under the 
approach adopted, new terrestrial operations will have to protect 
satellite earth station receive-mode operations and Federal Government 
radiolocation stations in the 3650 MHz band in substantial areas of the 
country. To simplify this process, the Commission established 
protection zones around the grandfathered FSS earth stations, similar 
to the protection areas already designated around the grandfathered 
radiolocation stations. New terrestrial operations are to avoid 
operating within these zones, but the Commission will allow new 
terrestrial operations to negotiate agreements with earth station 
operators for operations within these protection zones. The technical 
requirements the Commission placed on fixed and mobile operations, 
along with our licensing/registration regime, should allow as much 
flexibility as technically possible at this point, and both prevent 
interference to the protected earth stations and facilitate the quick 
resolution of any interference issues that may arise.
    9. In short, the actions taken in the R&O for the 3650 MHz band 
should facilitate the rapid deployment of advanced telecommunications 
services and technologies to all Americans, thus promoting the 
objectives of Section 706 of the Telecommunications Act of 1996.

Allocation Issues

    10. The Commission also maintained the existing FSS and FS 
allocations in the 3650 MHz band and modified the MS allocation to 
remove the ``base station only'' restriction. These allocations should 
ensure that the

[[Page 24714]]

potential widespread use of the band by new terrestrial operations will 
not be impeded by the introduction of new co-primary FSS earth 
stations.
    11. As proposed in the NPRM, the Commission retained the 
international/intercontinental operating requirement on FSS earth 
stations by deleting the reference in the Table of Allocations to 
footnote U.S. 245 in the 3650 MHz band, and recasting it as a new 
``NG'' footnote specifically for the 3650 MHz band. As noted in the 
NPRM, the Commission concluded that deletion of this restriction could 
result in more extensive FSS use and further curtail the use of this 
band by terrestrial operations. Finally, by providing for streamlined 
licensing of terrestrial operations under the existing allocations in 
the 3650 MHz band, the Commission resolved the questions posed in the 
NPRM regarding segmentation of the band. Among other benefits, the 
licensing approach the Commission adopted avoids splitting the band 
between licensed and unlicensed terrestrial operations, thus making the 
full 50-megahertz of spectrum in the 3650-3700 MHz band more attractive 
to potential service providers.

Licensing Provisions

    12. The Commission believed that a non-exclusive nationwide 
licensing scheme, coupled with a fixed and base station registration 
requirement, will ensure open access to this spectrum for nominal 
application fees and allow effective and efficient use of this spectrum 
in response to market forces. This should allow opportunities for rapid 
deployment of broadband technologies and will advance our goal of 
bringing broadband services to all Americans including consumers living 
in less densely populated rural and suburban areas. The Commission also 
believed that the use of contention-based technologies will allow 
efficient use of this spectrum by multiple users without significant 
degradation of service. Thus, the Commission concluded that it is 
appropriate and in the public interest to have a licensing scheme that 
facilitates the sharing of this spectrum among multiple users. Such an 
approach will also allow licensees in this spectrum maximum flexibility 
to evolve their systems to meet uncertain future needs and 
requirements.
    13. The Commission emphasized that the adopted licensing 
requirements for wireless operations in the 3650 MHz band are minimal 
in nature. The record in this proceeding indicated that service 
providers who typically operate on an unlicensed basis under our part 
15 of the Commission's rules are interested in using this spectrum for 
the development of wireless broadband services, particularly in 
underserved and rural communities. The Commission did not impose any 
eligibility restrictions other than the foreign ownership restriction 
imposed by statute. The Commission also did not impose any in-band or 
out-of-band spectrum aggregation limits. As a result, the Commission 
noted, this band will be open to all potential wireless service 
providers, including those with limited resources.
    14. While the licensing and registration requirements adopted for 
wireless broadband operations in the 3650 MHz band are minimal in 
nature, the Commission found that they nevertheless provide benefits to 
licensees and the public. For example, these requirements will ensure 
that all terrestrial wireless systems operating in the 3650 MHz band 
are identified, which should facilitate cooperation among users and 
ensure that the Commission can monitor the development and usage of 
this spectrum. Furthermore, while terrestrial licensees in this band 
will not have interference protection rights of primary, exclusive use 
licensees, the licensing scheme imposes on all licensees the mutual 
obligation to cooperate and avoid harmful interference to one another. 
Should a licensee become aware of harmful interference, even if not 
intentionally caused, it must act in good faith to help eliminate the 
interference. In addition, this licensing approach will protect 
grandfathered FSS earth station and Federal Government operations that 
will continue to operate in the band on a primary basis. In addition, 
under the licensing scheme adopted, two principal concerns identified 
by commenters--the need for high power operations and the need to 
identify users operating in this band--will be met. Further, the 
licensing scheme adopted will allow the Commission the opportunity to 
obtain contact information, should the need arise. Further, site 
registration will facilitate voluntary interference avoidance and 
mitigation efforts among users and enable both the Commission and the 
public to monitor the intensity of spectrum usage in the band.
    15. The Commission recognized that some commenters advocated 
exclusive licensing for the 3650 MHz band. However, the Commission 
believed that on balance, the non-exclusive licensing approach adopted 
in the R&O, combined with technical safeguards, is more suitable to the 
unique characteristics of this band. The Commission explained that 
although a non-exclusive approach may require voluntary coordination 
efforts to avoid in-band terrestrial interference, the licensing regime 
adopted in the R&O obligates licensees to cooperate to avoid harmful 
interference, and makes the information necessary to conduct such 
coordination available via a site registration database. Some 
commenters have also raised contention as an issue; the record 
indicated that this band is well-suited for high power broadband 
operations using contention-based technologies that facilitate sharing. 
The Commission believed that the licensing scheme and technical rules 
adopted will result in investments in this band. In addition, because 
of the limitations on the use of this band in coastal areas near FSS 
earth stations, and because of the lack of obvious pairing 
opportunities with other spectrum bands for duplex operations, much of 
the interest in development of the band is focused on smaller markets 
and less densely populated areas of the U.S. where there is less 
likelihood of congestion and interference. Even in those larger markets 
that will be open for terrestrial use, the Commission believed that 
licensees in the band will have the incentive to develop spectrum 
sharing practices based on the use of contention-based technologies 
that will promote efficient use of the band. In short, the Commission 
believed that its decision struck the best balance for all the 
competing interests in a manner that best serves the public interest.

Nationwide Non-Exclusive Licensing

    16. Under the rules adopted by the Commission, each terrestrial 
licensee in the 3650 MHz band will have a non-exclusive nationwide 
license and be required to register its fixed and base stations. The 
licensee will be allowed to register all of its fixed and base stations 
under one license. A non-exclusive nationwide wireless license does not 
authorize operation of a fixed or base station in this band until that 
station is registered. Each wireless licensee will be authorized to 
operate on all 50 megahertz of the 3650 MHz band on a co-primary basis 
with other wireless licensees, and there will be no spectrum 
aggregation limits. As a result, wireless licensees in the 3650 MHz 
band will be able to use as much of this spectrum as needed for their 
operations as long as they comply with all applicable licensing, 
service, and operating rules. All wireless licensees in the 3650 MHz 
band will have equal rights to the use of this spectrum (i.e., no 
priority for first-in users), but all these licensees will have a 
mutual obligation to

[[Page 24715]]

cooperate and avoid harmful interference to one another.
    17. Applicant qualification for non-exclusive nationwide wireless 
licenses in the 3650 MHz band will be assessed in accordance with FCC 
Form 601 and Commission rules. There will be no limit to the number of 
non-exclusive nationwide wireless licenses that may be granted for this 
spectrum, and these licenses will serve as a prerequisite for 
registering individual fixed or base stations. The Commission notes 
that registration process is simple and streamlined. It will be done 
electronically. The initial filing date for these wireless licenses, 
along with directions on how to use the Universal Licensing System 
(ULS), will be announced in a future Wireless Telecommunications Bureau 
(WTB) Public Notice. The Commission notes that in order to keep the ULS 
licensing and registration data base accurate and up-to-date, it 
delegates to the WTB the authority to adopt rules regarding the 
reporting of data base information including reporting of any license 
or station transfers. The WTB will issue a Public Notice seeking 
comment on these issues, if needed.

Other Licensing Provisions

    18. The 3650 MHz Service Rules NPRM sought comment on licensing, 
operating and service rules related to wireless operations in the 3650 
MHz band. In our subsequent Unlicensed NPRM, the Commission sought to 
refresh the record on these issues. The Commission addressed these 
issues in terms of how they relate to the non-exclusive nationwide 
licensing scheme with fixed and base station registration provisions 
for this spectrum.
    19. Rule Part and Regulatory Status. The 3650 MHz Service Rules 
NPRM sought comment on the rule part that should be utilized to govern 
wireless operations and services in the 3650 MHz band and noted that 
wireless broadband service licensees in the 3650 MHz band could be 
subject to other rule parts depending on the types of operations and 
services that they offered. Upon consideration of the record and given 
the non-exclusive nationwide nature of the licenses in the 3650 MHz 
band, the Commission decided to place the licensing, service, and 
operation provisions for this spectrum under a new subpart that will be 
entitled ``3650 MHz Wireless Broadband Services,'' created in the 
existing part 90 of its rules. This rule part already contains 
licensing, service and operating provisions for the private land mobile 
radio (PLMR) services, including services that operate on certain 
frequencies on a shared use basis. As with wireless services in the 
3650 MHz band, this means that multiple licensees in these shared use 
bands operate on the same frequencies in the same geographic areas 
without exclusive spectrum usage rights and interference protections.
    20. Licensees in the 3650 MHz band may provide services on a common 
carrier or non-common carrier basis and will have flexibility to 
designate their regulatory status based on any services they choose to 
provide. Wireless licensees in the 3650 MHz band will be able to 
provide all allowable services anywhere within their service area at 
any time, consistent with whatever regulatory status they choose.
    21. While wireless licensees in the 3650 MHz band will be subject 
to specific licensing and operating provisions adopted in the R&O, 
other rules may also apply to these licensees depending on the type of 
service they provide. For instance, if a wireless licensee provides 
Commercial Mobile Radio Services (CMRS), which makes the licensee a 
common carrier, other obligations attach as a result of that decision 
under Title II of the Communications Act or the Commission's rules 
(e.g., universal service, CALEA).
    22. Spectrum Aggregation Limits, Eligibility, and Foreign Ownership 
Restrictions. The 3650 MHz Service Rules NPRM did not propose any in-
band or out-of-band spectrum aggregation limits nor did it propose any 
eligibility restrictions on who can acquire a wireless license for this 
spectrum, other than the statutory foreign ownership restrictions. In 
this order, the Commission decided not to impose any spectrum 
aggregation limits, either in-band or out-of-band, or eligibility 
restrictions other than the statutory foreign ownership restrictions. 
All potential wireless service providers will have equal access to this 
band.
    23. License Term and Renewal Expectancy. The 3650 MHz Service Rules 
NPRM sought comment on a 10-year license term for wireless licenses in 
the 3650 MHz band and the standard that should be used for granting a 
renewal of that license. The Commission concluded that it is in the 
public interest to adopt a 10-year license term. The Commission's 
action is consistent with license terms adopted for other services 
including certain services in part 90. A ten-year license term will 
provide regulatory certainty and encourage investments in the band. At 
the end of 10 years, licensees will be required through ULS to renew 
their non-exclusive nationwide license for wireless operations in the 
3650 MHz band. Since there is no limit on the number of wireless 
licenses that will be granted for the 3650 MHz band, existing licensees 
can expect to receive license renewals as long as they are in 
compliance with the Commission's rules. In addition, renewal of a non-
exclusive nationwide license will automatically renew registration of 
all fixed and base stations associated with that license.
    24. Performance Requirements. The 3650 MHz Service Rules NPRM 
sought comment on whether wireless licensees in the 3650 MHz band 
should be subject to any performance or build-out requirements. Build-
out in this band will be driven by market demand and the ability to 
meet this demand will not be restricted by a limited number of wireless 
licenses or an exclusive licensing structure. As a result, the 
Commission found that there was no need to impose a performance or 
build-out requirement. Any interested party is free to meet this demand 
at any time, as long as it has a valid wireless license, registers its 
fixed and base stations, and complies with other applicable rules. 
Although the Commission did not impose a performance requirement, it 
required that licensees delete registrations for unused fixed and base 
stations in order to maintain database integrity and facilitate 
efficient coordination between licensees.
    25. Disaggregation, Partitioning, and Secondary Markets. The 3650 
MHz Service Rules NPRM sought comment on whether wireless licensees in 
the 3650 MHz band should be able to partition their own service areas 
and disaggregate their respective spectrum. Typically, wireless 
licensees with exclusive licensing areas are permitted to partition and 
disaggregate and commenters supported allowing wireless licensees in 
the 3650 MHz band to be able to take advantage of these provisions.
    26. The Commission found that its decision to license the 3650 MHz 
band for wireless services on a non-exclusive nationwide basis obviates 
the need to adopt partitioning and disaggregation provisions. Wireless 
licensees in the 3650 MHz band, however, may assign or transfer their 
non-exclusive nationwide licenses with all the fixed and base stations 
registered under those licenses. A licensee can transfer affixed or 
base station registered under its non-exclusive nationwide license to 
another non-exclusive nationwide licensee so long as the first licensee 
deletes the registered fixed or base station from its license and the 
second licensee registers the station under its license.

[[Page 24716]]

    27. For similar reasons, the Commission concluded that it need not 
make its spectrum leasing rules applicable to wireless licensees in the 
3650 MHz band. Accordingly, the spectrum leasing arrangements described 
in the Secondary Markets Report and Order, 68 FR 66252, November 25, 
2003, are not applicable, and the Commission does not see a need to 
apply those spectrum leasing rules and policies to this spectrum at 
this time.

Statutory Compliance for Licensing Approach

    28. The Commission's decision to adopt a licensing scheme that 
avoids mutual exclusivity comports with the competitive bidding 
approach set forth in the Commission's Balanced Budget Act proceeding. 
In the BBA Report and Order, 66 FR 33, January 2, 2001, the Commission 
established a framework for exercise of the Commission's auction 
authority, as expanded by the Balanced Budget Act. The BBA Report and 
Order affirmed that, in identifying which classes of licenses should be 
subject to competitive bidding, the Commission must pursue the public 
interest objectives set forth in section 309(j)(3). Although Balanced 
Budget Act did not amend section 309(j)(3)'s directive to consider 
certain public interest objectives in identifying classes of licenses 
and permits to be issued by competitive bidding, pursuant to that 
statute, section 309(j)(1) did include a reference to the Commission's 
obligation to avoid mutual exclusivity under section 309(j)(6)(E), 
which directs the Commission to use engineering solutions, negotiation, 
threshold qualifications, service regulations, or other means to avoid 
mutual exclusivity where it is in the public interest to do so. 
Accordingly, the BBA Report and Order affirmed that the Commission has 
a continuing obligation to attempt to avoid mutual exclusivity by the 
methods prescribed in section 309(j)(6) only when doing so furthers the 
public interest goals set forth in section 309(j)(3).
    29. In adopting the appropriate licensing scheme for any particular 
spectrum band, the Commission has interpreted its statutory obligation 
in a manner consistent with the opinion of the U.S. Court of Appeals 
for the D.C. Circuit which stated, ``Section 309(j)(6)(E) imposes an 
obligation only to minimize mutual exclusivity `in the public interest' 
and `within the framework of existing policies.' '' The Commission's 
decision regarding the appropriate licensing scheme for this particular 
spectrum centers around the unique characteristics of the 3650-3700 MHz 
band, including the need to protect grandfathered FSS earth station 
operations against harmful interference, the lack of pairing 
opportunities with other spectrum bands limiting the possibility of 
duplex operations, and the goal of enabling multiple users to share 
spectrum in the same geographic area without interference through the 
use of contention based technologies. As the record reflects, this band 
is well suited for high power broadband operations through such 
technology, and this approach is therefore likely to lead to the 
introduction of new and innovative broadband services in this band. 
With respect to the 3650 MHz band, the Commission determined that it 
serves the public interest and the Commission's policy objectives to 
promote the rapid deployment of broadband services to assign non-
exclusive nationwide licenses for the use of this spectrum. Insofar as 
this licensing scheme will not result in mutual exclusivity, the use of 
competitive bidding is not required.

Technical Requirements

    30. The Commission adopted the same magnitude of power limits for 
terrestrial operations proposed in the NPRM, but qualified the limit in 
terms of power density over a bandwidth. The Commission concluded that 
FSS protection zones that are somewhat modified from those proposed in 
the NPRM remain a viable tool for avoiding interference scenarios that 
might arise from FS/MS operations. The Commission concluded that mobile 
terrestrial operations could be accommodated while protecting 
grandfathered FSS and Federal Government stations so long as such 
operation is enabled by transmissions from a nearby fixed or base 
station. The Commission also concluded that technologies using a 
contention-based protocol are available that control access to spectrum 
and thereby mitigate the possibility of interference that could result 
from co-frequency operation of fixed and mobile stations, particularly 
in congested operating environments. In that connection, the Commission 
adopted equipment certification provisions to ensure that both fixed 
and mobile stations incorporate the requisite contention-based 
technologies. Interference caused by radiofrequency (RF) energy from a 
fixed or base station transmitter into a nearby fixed or base station 
received will be addressed by the process the Commission adopted to 
register fixed and base stations so that they can operate at locations 
and with technical parameters that will minimize the potential for 
interference between stations. The Commission adopted out-of-band 
emission limits for terrestrial operations and specify criteria for 
operations in proximity to Canadian and Mexican borders. Finally, the 
Commission retained the same 80 km coordination zone already 
established in the rules for the protection of the three grandfathered 
Federal Government stations operating in the band.
    31. The Commission decided to leave it up to the industry to 
determine flexible and efficient methods for meeting the technical 
requirements adopted. In particular, the Commission noted that industry 
would need to address issues such as contention-based protocols and 
base-station enabled mobile operations.
    32. Fixed Station Operating Power. In the NPRM, the Commission 
proposed an EIRP limit of 25 Watts for fixed stations operating in the 
3650 MHz band. The Commission adopted a peak power limit, expressed as 
a power density, of 25 Watts per 25 megahertz bandwidth, for the 
following reasons. First, the Commission noted that the majority of 
commenters generally support the use of 25 watts for fixed operations. 
Additionally, the Commission noted that the potential for a system to 
cause interference is related to bandwidth in addition to power. In 
this respect, the Commission recognized that different systems 
operating in the 3650-3700 MHz band may utilize various operating 
bandwidths. Consequently, the Commission believes that EIRP limits 
should be specified not simply as a maximum power, but rather in terms 
of power density (i.e., power per unit of occupied bandwidth). By 
specifying the power limit in this way, protection of FSS earth 
stations is simplified because a single separation distance can be 
specified regardless of the bandwidth used. For example, a system using 
a bandwidth of 25 megahertz may use the full 25 Watts peak EIRP, but a 
system using only 1 megahertz bandwidth may only use 1 watt peak EIRP; 
in either case, the power density is equivalent. If the EIRP limit were 
not specified in this manner, a 1 megahertz system could use the full 
25 watts, which, because all the power would be concentrated in a 
relatively small bandwidth, would result in much larger separation 
distances necessary to protect FSS earth stations, as compared to a 
system with 25 megahertz bandwidth. Therefore, the Commission adopted a 
fixed station peak power density of 25 Watts EIRP in any 25 megahertz 
band. Furthermore, to promote additional flexibility in system design, 
any combination of transmitter output power and antenna gain will be

[[Page 24717]]

permitted, so long as the peak 25 Watt/25 megahertz EIRP limit is not 
exceeded. The Commission believes that the power density requirement it 
adopted facilitates the goal of ensuring efficient use of the band. As 
detailed, this limit results in reasonably sized protection zones 
around FSS earth stations to maximize the area in which terrestrial 
licensees can operate while also providing enough power for these 
terrestrial operations to operate over sufficient ranges to provide 
service to a large number of users.
    33. Mobile station operations. Mobile operations, including mobile-
to-mobile, will be permitted under the rules we adopted in the R&O. The 
Commission noted, however, that mobile operations pose a greater risk 
of causing interference to FSS earth stations than fixed stations. 
Based on the record, the Commission concluded that, before it can 
transmit, a mobile station (including those operating in mobile-to-
mobile mode) will be required to positively receive and decode an 
enabling signal transmitted by a base station. Thus, mere spurious 
emissions from other RF sources, such as another mobile transmitter, 
cannot enable a mobile to transmit. The Commission believes that this 
approach will ensure that spurious emissions from nearby devices will 
not inadvertently trigger the transmit ability of a mobile station. 
Furthermore, this approach will ensure that any mobile station will be 
within a reasonable distance of a base station and, thus, far from an 
FSS earth station (or federal government station) before it can 
transmit. The rules adopted will also allow for mobile-to-mobile 
operations. Beyond the basic requirement for the use of base station 
trigger, the Commission concluded that it should not adopt additional 
requirements regarding the characteristics of the signal needed to 
trigger mobile transmissions (e.g., signal level and content). Instead, 
the Commission decided to leave it up to the industry to determine 
flexible and efficient methods for meeting this requirement. The 
Commission noted, however, that meeting this requirement should not 
pose any undue burden upon manufactures inasmuch as equipment deployed 
today already incorporates a similar mechanism.
    34. Mobile operating power. In the NPRM, the Commission proposed to 
limit mobile devices to a peak EIRP of 1 Watt. Accordingly, the 
Commission concluded that a maximum peak EIRP of 1 Watt over a 25 
megahertz bandwidth will provide a reasonable balance between 
interference protection goals and fostering the most flexible use of 
mobile stations in the 3650 MHz band. In the same manner as the power 
limits for fixed stations, the Commission specified the mobile power 
limit in terms of bandwidth density in order to accommodate systems 
with various bandwidths while assuring predictable protection of 
incumbent stations. The Commission also noted that this power/bandwidth 
level is consistent with existing wireless mobile equipment operating 
in other bands, and with proposed wireless mobile systems under 
consideration by IEEE 802.16.
    35. Antennas. In the NPRM, the Commission observed that sectorized 
and phased array antennas could be used to create highly spectrum 
efficient networks and could enable an application like a broadband 
local area network to serve a number of spatially separated clients 
from a single fixed antenna site. Such antennas allow systems to use 
spectrum more efficiently by making it possible to re-use a given 
frequency to communicate with different devices along non-overlapping 
paths. The Commission believes that allowing such flexibility 
encourages both new and novel antenna technologies that will foster 
more intensive spectrum use.
    36. The Commission concluded that transmitters installed at fixed 
locations should not be prohibited from using any particular type of 
antenna design. As a general requirement, the EIRP in any antenna beam 
must be limited to 25 Watts per 25 megahertz. However, transmitters 
using sectorized, scanning spot-beam, or other antenna types with 
multiple beam capability shall be required to limit their EIRP in any 
direction to no more than the limit the Commission adopted for fixed 
systems (i.e., 25 Watts per 25 megahertz). Thus, the aggregate power 
transmitted simultaneously on overlapping beams will have to be reduced 
such that the EIRP in the area of overlap does not exceed the limit for 
a single beam. In addition, to allow flexibility in deployment of 
advanced antenna systems, including sectorized and adaptive array 
systems, the Commission will allow systems using these antennas to 
operate with an aggregate transmit output power transmitted 
simultaneously on all beams of up to 8 dB above the limit for an 
individual beam. The Commission believes that these rules will provide 
flexibility for licensees to employ a wide variety of advanced antennas 
to meet their needs while still ensuring protection to FSS earth 
stations. Applications for equipment authorization must include the 
algorithm that confirms that this requirement is met.
    37. Protection of terrestrial stations. Under the licensing scheme 
being adopted for terrestrial transmitters in the 3650-3700 MHz band, 
it will be possible for both base and mobile stations to operate 
virtually anywhere--except near FSS earth stations and Federal 
stations. Mechanisms must therefore be in place to ensure operation on 
an interference-free basis. The Commission stated that it is concerned 
about two different kinds of interference in the 3650-3700 MHz band. 
The first could occur if the radiofrequency (RF) energy from a fixed or 
base station transmitter interferes with the performance of a nearby 
fixed or base station receiver. The second type of interference could 
take place if two or more stations are competing with each other for 
access to the spectrum. With regard to the former, the Commission will 
provide, at https://wireless.fcc.gov/uls, information regarding the 
location of all registered stations in the band. Parties seeking to 
register a new station should examine this database, and then make 
every effort to ensure that their station operates at a location, and 
with technical parameters, that would minimize the potential for mutual 
interference between both the new and existing stations.
    38. The Commission believes the best way of preventing the second 
form of interference from occurring is to require systems operating in 
the 3650-3700 MHz band to incorporate a contention-based protocol. Such 
protocols can be characterized by having the following properties: 
Procedures for initiating new transmissions, procedures for determining 
the state of the channel (available or unavailable), and procedures for 
managing retransmissions in the event of a busy channel.
    39. Systems using a contention-based protocol have been common for 
quite some time for both licensed and unlicensed systems. Because it is 
not according terrestrial licensees exclusive use of the spectrum in 
any area and because it desires to provide for widespread deployment of 
equipment, the Commission believes that a contention-based protocol is 
a reasonable, cost effective method for ensuring the ability of any 
user to access the spectrum. A contention based protocol also will have 
to ensure that all users will have a reasonable opportunity to operate, 
so that no operator can block others' access to the spectrum. 
Accordingly, the Commission required fixed, base and mobile equipment 
designed for use in the 3650 MHz band to incorporate some type of 
contention based protocol. Consistent with past

[[Page 24718]]

practice, the Commission did not specify a specific protocol, but left 
it to the industry and standards bodies to determine appropriate 
protocols. The incorporation of such a protocol will be a requirement 
of the equipment certification process, and equipment that appears to 
be designed to preclude others from using this spectrum will not be 
approved. In monitoring the use of this spectrum, the Commission noted 
that it remains free to modify the rules if there appears to be 
significant problems in this regard. The Commission also added a 
definition of contention-based protocol into the rules, see section 
90.7.
    40. FSS Earth Station Protection. Under the streamlined licensing 
approach adopted in the R&O, terrestrial FS/MS operations must continue 
to protect satellite earth stations that retain their primary status 
under our FSS grandfathering provisions for the 3650 MHz band. The 
Commission adopted circular protection zones of 150 km around the 
grandfathered earth stations. The Commission recognizes that the 
simplified circular protection zones that we are being imposed here 
employs a high degree of worst-case conservatism that, in many 
instances, could result in prohibiting the use of transmitters in less-
than-worst-case circumstances where, in reality, there would be no 
likelihood of interference to FSS earth stations. To provide additional 
flexibility in the face of these conservative protection zones, the 
Commission determined that it will allow terrestrial operations within 
these protection zones, so long as they negotiate agreements with the 
earth stations operators.
    41. The Commission adopted a registration requirement as an 
integral part of the streamlined licensing scheme for the 3650 MHz 
band. The Commission noted that this approach would ensure that the 
locations of all terrestrial users are known. To further assure that 
FSS earth stations are adequately protected, the Commission imposed the 
protection distance as a circular zone around the earth station. This 
differs from the proposal made in the NPRM of using a keyhole-like 
pattern based on the earth station pointing towards a specific 
satellite. The Commission made this decision because, in practice, each 
earth station can look at multiple satellites across the geostationary 
arc. Thus, a circular protection zone is more appropriate for ensuring 
interference protection in all cases. In addition, the Commission 
pointed out that using a circular zone has the benefit of simplicity 
for all parties as it is easy to determine exactly which areas are 
excluded from terrestrial station operation.
    42. Finally, the Commission noted that a more accurate 
determination of the requisite separation distances could be derived if 
the particular operating parameters of both the fixed terrestrial 
transmitter and protected FSS earth stations are taken into account. 
However, requiring operators to independently make detailed 
transmission path and link budget calculations could be unduly 
burdensome. The Commission recognized, however, that such operation 
within the conservative portion of the protection zone is possible, and 
thus will allow such operation so long as the FS station and the FSS 
station licensees mutually agree on appropriate operating parameters. 
An FS entity that requests to operate within the protection zone will 
be required to negotiate with each protected earth station that is 
potentially affected by the proposed fixed or mobile operation. 
Further, the FSS station licensee must not refuse to negotiate with the 
fixed licensee, and both parties should negotiate in good faith. The 
results of these negotiations must be documented and kept with the 
station's records in the event that the Commission needs this 
information.
    43. Equipment Authorization Requirements. As discussed in the 
licensing sections of the R&O, the Commission adopted rules to license 
terrestrial operations in the 3650 MHz band under part 90 of its rules. 
In addition, the Commission noted that there already exists a general 
requirement for all equipment to obtain certification under that rule 
part. This requirement recognizes that there is a certain ``core 
group'' of equipment that requires a higher level of oversight than 
manufacturer's self-approval (Declaration of Conformance or 
Verification), due to a high risk of non-compliance, the potential to 
create significant interference to safety and other communication 
services, and the need to ensure compliance with the requirements to 
protect against radio frequency exposure. The Commission found that 
because of the risk of interference to FSS earth stations, equipment 
designed for operation in the 3650 MHz band falls into this ``core 
group'' of equipment. Thus, as with other part 90 equipment, the 
Commission required manufacturers to obtain certification for their 
equipment. The Commission noted that applications for equipment 
authorization must contain specific information regarding the methods 
employed to meet our rules. Specifically, certification applications 
for systems using advanced antenna technology must provide the 
algorithm used to reduce the EIRP to the maximum allowed in the event 
of overlapping beams. In addition, the application must contain 
information discussing how the equipment meets the requirement to 
employ a contention based protocol for gaining access to the spectrum 
and for mobile transmitters, including a description of how the 
requirement to positively receive and decode an enabling signal is 
incorporated.
    44. The Commission noted, that the rules currently require 
certification to be approved by the Commission or a designated 
Telecommunication Certification Body (TCB) before they may be marketed. 
In General Docket 98-68, we established the requirements for TCBs that 
are allowed to approve equipment in the same manner as the Commission. 
In that proceeding, the Commission stated that while it intended to use 
TCBs to certify a broad range of equipment, we found that certain 
functions should continue to be performed by the Commission. The 
functions included certifying new or unique equipment for which the 
rules or requirements do not exist or for which the application of the 
rules is not clear. Because it had not previously specified that 
certification would be based on specification of a contention based 
protocol, nor on the ability of a mobile station to transmit only after 
receiving an enabling signal from a base station, the Commission, 
believes that many questions about the application of the rules may 
arise. Thus, the Commission decided that TCBs should not be permitted 
to certify or approve permissive changes for equipment operating under 
the rules adopted until it gains sufficient experience with this band. 
Once the Commission gains sufficient experience with equipment in this 
band, it will determine whether TCBs should be permitted to certify 
them. Accordingly, until the Chief of the Office of Engineering and 
Technology acting under the existing delegated authority issues an 
announcement by public notice, TCBs will not be permitted to certify 
equipment in the 3650-3700 MHz band.
    45. RF Safety. The Commission decided that it will require 
manufacturers to obtain certification for their equipment, among other 
reasons, to address the need for compliance with the requirements to 
protect against radio frequency (RF) exposure. In addition, licensees 
are responsible for ensuring that transmitting equipment, as actually 
installed, continues to meet RF exposure guidelines. For example, fixed

[[Page 24719]]

transmitters operating at the peak EIRP output power of 25 Watts/25 MHz 
authorized in the R&O would not generally be required to undergo 
routine RF safety evaluation as a part of the equipment certification 
process because installation constraints typically result in sufficient 
separation distances such that human exposure limits would not be 
exceeded. Nevertheless, the Commission, recognized that such 
transmitters, particularly those that might be licensed by individuals 
or other small entities, could have a greater chance of being installed 
in a diverse range of atypical environments; possibly, for example, 
even inside a residential home. In such instances, an improper 
installation could result in circumstances where RF safety standards 
might be exceeded due to a reduced separation distance. Consequently, 
the Commission required, as part of the certification process, that 
equipment manufacturers include sufficiently detailed installation 
instructions and guidelines to ensure that licensees locate such 
transmitters in a manner that will maintain appropriate human exposure 
separations at all times.
    46. By comparison, non-fixed transmitters generally require 
additional evaluation as a part of the manufacturer's equipment 
certification process. Based upon the peak EIRP operating limit of 1 
Watt specified here. The Commission required routine evaluation for 
these devices to demonstrate RF exposure compliance. In any event, 
manufacturers are responsible for ensuring that any equipment they 
design, manufacture, and sell meets the corresponding RF safety limits. 
Licensees of non-fixed transmitters may generally rely upon the 
manufacturers' equipment certification that RF exposure guidelines for 
that equipment have been met.
    47. Federal Government Facilities. In the NPRM, the Commission 
sought comment on whether the methods described in the NPRM would 
provide an effective means of protecting the three Federal Government 
radiolocation stations that operate in the 3650-3700 MHz band on a 
primary basis. These stations, located at St. Inigoes, MD, Pascagoula, 
MS, and Pensacola, FL, were grandfathered as a condition of the 
transfer of the 3650 MHz band to a mixed-use status. The current rules 
require that FS and FSS stations located within 80 kilometers of each 
site coordinate with the Federal Government. As noted, this protection 
criterion for Federal stations has been in existence for fixed stations 
since 1999 and the Commission did not propose to alter it. Thus, the 
Commission will continue to require coordination with NTIA through the 
Frequency Assignment Subcommittee of the Interdepartmental Radio 
Advisory Committee for any station that requests registration of a site 
closer than 80 km from the three specified radiolocation sites. The 
Commission, further noted that our ULS system has the capability of 
screening for any terrestrial applications that might propose site 
coordinates located within the 80 kilometer coordination zone and, 
within approximately 24 hours, flag that application for any necessary 
coordination.
    48. Furthermore, the Commission called to the attention of 
potential users of the 3650-3700 MHz band that the adjacent 3600-3650 
MHz band is used by high power federal government radar systems and 
they are not limited to the three protected sites. Consequently, 
terrestrial transmitter/receiver manufacturers will likely find the 
need to incorporate design measures to protect their equipment from 
possible overload by these adjacent band radar signals. The Commission 
strongly recommends that parties installing equipment in this band 
should determine if there are any nearby Federal Government radar 
systems that could affect their operations. Information regarding the 
locations and operational characteristics of the radar systems 
operating adjacent to this band are provided in NTIA TR-99-361.
    49. Operation in Proximity to U.S. Borders. To provide sufficient 
protection to Canadian and Mexican stations operating in the 3650-3700 
MHz band that are located near the U.S. borders, the Commission 
proposed in the NPRM to require that fixed devices be located at least 
8 kilometers from the U.S./Canada or U.S./Mexico border if the antenna 
of the device looks within the 160[deg] sector away from the border and 
be located at least 56 kilometers from each border if the device looks 
within the 200[deg] sector towards the border. This proposal is 
consistent with the treatment of licensed fixed stations in bands above 
470 MHz along the U.S./Canada border. The Commission concluded that 
these same considerations apply to the type of licensed operation that 
we permit in the R&O. Accordingly, the Commission adopted the 
requirements for operation near the borders as proposed. The Commission 
pointed out, however, that even under these guidelines, operators might 
need to further reduce their power to protect FSS earth stations in 
Canada or Mexico. It further note that, under our current agreement 
with Canada, operations within the distances specified above may be 
permitted if we are able to coordinate such use with Canada. The 
Commission noted that it currently has no agreement with Mexico to 
permit such coordinated use at this time, but in the future, it may 
negotiate more specific agreements with Mexico and Canada to govern 
operations near our borders in the 3650-3700 MHz band. Licensees in 
this band would be required to comply with the provisions of such 
agreements.
    50. Adjacent Band Emissions. In the NPRM, the Commission sought 
updated comment on what interference criteria might be used to protect 
adjacent band services from licensed systems operating in the 3650 MHz 
band. For example, the Commission asked if it should require that 
licensed non-fixed devices comply with the field strength limit 
described in the NPRM for unlicensed devices; or whether we should 
require that licensed fixed stations comply with a particular field 
strength limit or satisfy the adjacent band protection criteria 
proposed in the 3650 MHz Service Rules Second NPRM. In the 3650 MHz 
Service Rules Second NPRM, the Commission proposed that, in order to 
protect FSS operations in the 3700-4200 MHz band from interference, 
terrestrial stations operating in the 3650-3700 MHz band would have to 
comply with the part 101 emission limits already in place to protect 
such FSS systems from licensed fixed stations operating in the 3700-
4200 MHz band. Therein, the Commission, discussed a proposal made 
earlier in the ET Docket 98-237 proceeding concerning whether the out 
of band emission limit defined by 43 + 10 log(P) dB minimum attenuation 
that applies to broadband PCS should be applied to FS operations in the 
3650-3700 MHz band. Comments to that earlier proposal were divided. In 
that context, the Commission proposed in the 3650 MHz Service Rules 
NPRM to require that terrestrial service equipment operating in the 
3650-3700 MHz band comply with the emission limits already in place for 
FS operation in the adjacent 3700-4200 MHz band. Commenters to that 
proposal were similarly split on what criterion to apply.
    51. The Commission adopted rules here to require that new 
terrestrial operations in the 3650 MHz band limit emissions into the 
adjacent 3600-3650 MHz and 3700-4400 MHz bands by a minimum attenuation 
of 43 + 10 log(P) below the transmit power. That is, the power of any 
emission outside of the authorized operating frequency ranges must be 
attenuated below the transmitting power (P) by a factor of at

[[Page 24720]]

least 43 + 10 log(P). The Commission noted that this requirement is 
consistent with the out of band emission limit specified in several of 
the Commission's rule parts (reference) for wireless devices including 
higher power devices. Furthermore, the limit specified in this section 
is a generic limit that has been applied successfully for many of our 
wireless services. Finally, the Commission noted that this limit is 
very conservative, especially for coded digital signals which generally 
decay more rapidly and produce lower levels of out of band emission 
than analog signals. On balance, therefore, the Commission believes 
that this criterion should provide appropriate protection from out of 
band emission.
    52. Space station power flux density. In the 3650 MHz Service Rules 
NPRM the Commission sought comment on whether it should adopt a rule 
for the power flux density (pfd) that a space station operating in the 
3650-3700 MHz band may produce consistent with the limit for space 
stations in the adjacent 3700-4200 MHz band. The limit for the 3700-
4200 MHz band, which is contained in Sec.  25.208(a) of the 
Commission's rules, is identical to the limit in the ITU Radio 
Regulations, which applies throughout the 3400-4200 MHz band. One 
commenter supported applying the same pfd limit in the 3650-3700 MHz 
band as is applied to the upper adjacent band. In order to conform its 
rules in this regard to the ITU Radio Regulations, the Commission 
applied the same pfd limit in the 3650-3700 MHz band as it does in the 
3700-4200 MHz band.

Memorandum Opinion and Order

    53. In the MO&O, the Commission addressed several petitions for 
reconsideration and an emergency motion for stay that were filed in 
response to the 3650 MHz Allocation Order in ET Docket No. 98-237.
    54. Consistent with its conclusion in the Unlicensed Operation 
NPRM, the Commission found no statutory obstacle to its decision to 
affirm its previous allocation decisions, in the Unlicensed Operation 
NPRM, the Commission, concluded that it did not have any remaining 
statutory obligations under section 3002 of the BBA. Moreover, in 
consideration of its decision to adopt a licensing approach that does 
not result in the acceptance of mutually-exclusive applications, the 
arguments presented by satellite interests to the effect that the 
Commission inappropriately determined that the 3650 MHz band could 
satisfy the requirements of section 3002 of the BBA are moot.

Allocation Issues

    55. Petitioners generally challenge the rules adopted in the 3650 
MHz Allocation Order that created a new, primary FS/MS allocation and 
made future, non-grandfathered FSS earth stations secondary. In the 
NPRM, the Commission, asked for comments to refresh the record on the 
full range of allocation, technical, service and licensing issues 
raised in this proceeding--including the possibility of revisiting the 
FSS allocation status in the 3650 MHz band. Thus, the Commission 
concluded that it had considered anew the potential benefit of 
different sharing mechanisms in light of this renewed and expanded 
record. With more specific relation to these petitions for 
reconsideration, the Commission found that its decision here affirms 
the FSS allocation changes made in the 3650 MHz Allocation Order. The 
Commission stated that, in essence, it had decided that it is desirable 
to foster new terrestrial services under the FS/MS allocations while 
protecting a relatively small and static number of grandfathered FSS 
earth stations in the band. It further noted that it was accomplishing 
this goal by providing a mechanism (under a streamlined licensing 
approach) for preventing and addressing any interference concerns of 
FSS earth stations that might arise from sharing the band with 
terrestrial operations. The Commission , thus found that its decision 
strikes a balance among a number of competing factors in a manner that 
its believe will best serve the public interest and foster the 
expeditious introduction of new terrestrial services in the 3650 MHz 
band.
    56. Therefore, In light of its full review of the refreshed record 
in this proceeding, and in light of the decisions made in the companion 
R&O, the Commission denied the aspects of the petitions that challenge 
and seek to reverse the allocation decisions made in the 3650 MHz 
Allocation Order.

TT&C Issues

    57. The Commission denied the petitions for reconsideration insofar 
as they request that it allow in the 3650 MHz band new TT&C earth 
stations on a primary basis for out-of-band FSS systems. The Commission 
concluded, as it stated in the 3650 MHz Service Rules NPRM, that the 
basic purpose of the part 25 in-band rules for TT&C is valid. In 
particular Sec.  25.202(g) of the rules effectively limits FSS 
operators to operating TT&C links in the same frequency bands as their 
FSS operations. Thus, a GSO/FSS operator will generally coordinate its 
TT&C operations with the same set of satellites, at adjacent orbital 
locations, with which it coordinates its FSS operations. This 
simplifies the coordination process for FSS systems and also provides 
an incentive for an operator to maximize the efficiency of a system's 
TT&C operations while minimizing the constraints placed on other 
satellite operations. The Commission noted that its decision is based 
on a recognition that certain events have occurred since these 
petitions were filed that mitigate the need to provide the requested 
relief. In particular, the Commission noted, that it has since 
authorized satellite systems in the Ka band with TT&C links to be 
located within band. As a result, TT&C facilities are now available for 
Ka band systems. As for pending V band system applications, the 
Commission believes that it is better to address the TT&C needs of 
particular systems in the context of acting on specific applications 
for waiver rather than modify the rule based on generalized arguments 
that some assigned frequency bands of satellite systems are so 
congested, unreliable, or lacking in manufactured equipment as to 
render in-band TT&C operations unfeasible.
    58. With regard to the filing deadline for co-primary TT&C earth 
station applications, the secondary status of non-grandfathered TT&C 
sites, and the restriction on grandfathered TT&C sites to frequencies 
for which the earth station is already licensed, the Commission 
believes that those aspects of its decision in the 3650 MHz Allocation 
Order are necessary measures that help ensure the terrestrial 
operations under the primary FS/MS allocations are not unduly hampered. 
The Commission, thus declines to modify these decisions. Furthermore, 
the Commission, clarified that the decision in the 3650 MHz Allocation 
Order was not intended to exempt from the FSS application ``freeze,'' 
as EchoStar requests, any future requests for earth stations for TT&C 
operations that serve satellites already authorized in the 3650 MHz 
band, including new uplink sites. Nonetheless, the Commission, 
recognizes that individual cases of particular need, particularly for 
systems already authorized for the 3650 MHz band, can be better 
addressed through a waiver process that would evaluate each request on 
its merit.

Emergency Motion for Stay

    59. In October, 2000, the Commission determined that it was 
necessary to establish a limit on the acceptance of applications and on 
the construction of

[[Page 24721]]

FSS facilities that would be considered primary under the established 
grandfathering provisions. Accordingly, in the 3650 MHz Allocation 
Order, the Commission decided that applications for FSS earth stations 
in the 3650-3700 MHz band located within 10 miles of the authorized 
coordinates of an existing grandfathered earth station must be filed 
prior to December 1, 2000, in order to still be considered co-primary.
    60. The Commission, denied the motion for stay. When the Commission 
established the November 30, 2000, filing deadline, it did so because 
it found that additional new FSS facilities permitted by the Freeze 
MO&O could affect the use of the 3650-3700 MHz band by the terrestrial 
services. By deciding in this Order to maintain the FSS allocation 
changes made in the 3650 MHz Allocation Order, the Commission, 
reaffirmed its conclusion that allowing additional primary FSS earth 
stations in the 3650 MHz band could negatively affect the prospects for 
viable FS/MS terrestrial

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