Establishment of Policies and Service Rules for the Broadcasting-Satellite Service, 50000-50033 [E7-16575]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 72, Number 167 (Wednesday, August 29, 2007)]
[Rules and Regulations]
[Pages 50000-50033]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-16575]



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Part IV





Federal Communications Commission





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47 CFR Parts 2 and 25



Establishment of Policies and Service Rules for the Broadcasting-
Satellite Service; Final Rule

Federal Register / Vol. 72, No. 167 / Wednesday, August 29, 2007 / 
Rules and Regulations

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 25

[IB Docket No. 06-123; FCC 07-76]


Establishment of Policies and Service Rules for the Broadcasting-
Satellite Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Federal Communications Commission adopts processing and 
service rules for the 17/24 GHz Broadcasting-Satellite Service (BSS). 
Specifically, the Commission adopts a first-come, first-served 
licensing procedure for the 17/24 GHz BSS, as well as various 
safeguards, reporting requirements, and licensee obligations. The 
Commission also adopts geographic service rules to require 17/24 GHz 
BSS licensees to provide service to Alaska and Hawaii as discussed 
herein. In addition, the Commission establishes rules and requirements 
for orbital spacing, minimum antenna diameter, and antenna performance 
standards. Also, the Commission establishes limits for uplink and 
downlink power levels to minimize the possibility of harmful 
interference. Finally, the Commission stipulates criteria to facilitate 
sharing in the 24 GHz and 17 GHz bands.

DATES: Effective September 28, 2007.

FOR FURTHER INFORMATION CONTACT: Andrea Kelly, (202) 418-7877, 
Satellite Division, International Bureau, Federal Communications 
Commission, Washington, DC 20554. For additional information concerning 
the information collection(s) contained in this document, contact 
Judith B. Herman at 202-418-0214, or via the Internet at Judith-
B.Herman@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order (R&O) in IB Docket No. 06-123, FCC 07-76, adopted May 2, 2007 
and released on May 4, 2007. The full text of the R&O is available for 
public inspection and copying during regular business hours at the FCC 
Reference Information Center, Portals II, 445 12th Street, SW., Room 
CY-A257, Washington, DC 20554. The document may also be purchased from 
the Commission's duplicating contractor, Best Copy and Printing, Inc., 
Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 
telephone 202-488-5300, facsimile 202-488-5563, or via e-mail 
FCC@BCPIWEB.com.
    Pursuant to the Regulatory Flexibility Act, the Commission has 
prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible 
significant economic impact on small entities by the rules adopted in 
the R&O. The text of the FRFA is set forth in Appendix A of the R&O.
    The actions contained herein have been analyzed with respect to the 
Paperwork Reduction Act of 1995 at the initiation of the Notice of 
Proposed Rulemaking in this proceeding, and we have previously received 
approval of the associated information collection requirements from the 
Office of Management and Budget (OMB) under OMB Control No. 3060-1097. 
The Report and Order and Further Notice of Proposed Rulemaking does not 
contain any new or modified ``information collection burden for small 
business concerns with fewer than 25 employees,'' pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4).

Paperwork Reduction Act Requirements

    OMB Control Number: 3060-1097.
    Title: Service Rules and Policies for the Broadcasting Satellite 
Service (BSS).
    Form No.: Not Applicable.
    Type of Review: On-going collection.
    Respondents: Businesses or other for-profit entities.
    Number of Respondents: 4 respondents; 24 responses.
    Estimated Time per Response: 10 hours.
    Frequency of Response: On occasion and annual reporting 
requirements.
    Estimated Total Annual Burden: 240 hours.
    Estimated Total Annual Costs: $12,451,700.00.
    Privacy Act Impact Assessment: Not Applicable.
    Needs and Uses: The purpose of this information collection is to 
address the Paperwork Reduction Act (PRA) requirements proposed in the 
Commission's Notice of Proposed Rulemaking (FCC 06-90) to establish 
policies and service rules for the new Broadcasting Satellite Service 
under IB Docket No. 06-123. In this NPRM, the Commission proposes three 
new information collection requirements applicable to Broadcasting 
Satellite Service licensees: (1) Annual reporting requirement on status 
of space station construction and anticipated launch dates, (2) 
milestone schedules and (3) performance bonds that are posted within 30 
days of the grant of the license.
    Without the information collected through the Commission's 
satellite licensing procedures, we would not be able to determine 
whether to permit applicants for satellite licenses to provide 
telecommunications services in the U.S. Therefore, we would be unable 
to fulfill our statutory responsibilities in accordance with the 
Communications Act of 1934, as amended; as well as the obligations 
imposed on parties to the World Trade Organization (WTO) Basic Telecom 
Agreement.

Summary of Report and Order

    1. With this Report and Order (R&O), the Federal Communications 
Commission (Commission) adopts processing and service rules for the 17/
24 GHz Broadcasting-Satellite Service (BSS). Specifically, the 
Commission adopts a first-come, first-served licensing procedure for 
the 17/24 GHz BSS, as well as various safeguards, reporting 
requirements, and licensee obligations. The Commission also adopts 
geographic service rules to require 17/24 GHz BSS licensees to provide 
service to Alaska and Hawaii as discussed herein. In addition, the 
Commission establishes rules and requirements for orbital spacing, 
minimum antenna diameter, and antenna performance standards. Also, the 
Commission establishes limits for uplink and downlink power levels to 
minimize the possibility of harmful interference. Finally, the 
Commission stipulates criteria to facilitate sharing in the 24 GHz and 
17 GHz bands.
    2. In June 2006, the Commission released a Notice of Proposed 
Rulemaking (NPRM) in this proceeding, which proposed processing and 
service rules for the 17/24 GHz BSS. Eight parties filed comments in 
response to the NPRM, and six parties filed reply comments.
    3. As the Commission explained in the NPRM, the 1992 World 
Administrative Radio Conference (WARC-92) of the International 
Telecommunication Union (ITU) adopted an additional frequency 
allocation for BSS in Region 2. In 2000, the Commission implemented, in 
large part, the ITU Region 2 allocation for BSS domestically. The 
Commission recognized that although the allocation would not become 
effective for several years, its action would provide interested 
parties with sufficient notice and time to design their systems to use 
this spectrum in the most efficient manner. Specifically, the 
Commission adopted the following allocations and designations, which 
took effect on April 1, 2007: (1) Allocated the 17.3-17.7 GHz band, on 
a primary basis, to the BSS for downlink transmissions, recognizing 
that although the ITU Region 2 allocation apportioned the 17.3-17.8

[[Page 50001]]

GHz band for BSS use, the U.S. allocation would be limited to 17.3-17.7 
GHz to retain spectrum at 17.7-17.8 GHz for the relocation of fixed 
service (FS) facilities which were being displaced as a result of the 
new BSS allocation; (2) allocated 300 megahertz of spectrum at 24.75-
25.05 GHz on a primary basis for the Fixed-Satellite Service (FSS) 
(uplink) and limited FSS uplink operations in this band to BSS feeder 
links; and (3) allocated 200 megahertz of spectrum at 25.05-25.25 GHz 
for co-primary use between the 24 GHz Fixed Service, formerly known as 
Digital Electronic Messaging Service (DEMS), and BSS feeder links. The 
Commission's objective was to accommodate new satellite services while 
providing adequate spectrum for existing FS operations.
    4. In the NPRM, the Commission proposed and sought comment on a 
variety of rules to facilitate the licensing of 17/24 GHz BSS space 
stations, and various obligations and requirements that will be applied 
to licensees. Also, the NPRM sought comment on technical rules designed 
to minimize interference and facilitate sharing in certain bands. The 
rules adopted in this Order establish licensing procedures and 
technical parameters that will enable prompt delivery of 17/24 GHz BSS 
satellite services to the public.
    5. Four entities--DIRECTV Enterprises, Inc. (DIRECTV), Pegasus 
Development DBS Corp. (Pegasus), EchoStar Satellite LLC (EchoStar), and 
Intelsat North America LLC (Intelsat)--have filed applications for 17/
24 GHz BSS space station licenses. These applications represent a wide 
range of system designs and business plans, from complementing existing 
DBS services to providing a new suite of services which will include 
standard-definition and high-definition formats. We adopt in this Order 
a method for processing these applications and accommodating entry by 
other qualified applicants.
    6. First-Come, First-Served Licensing Approach Adopted: In the 
NPRM, the Commission sought comment on the appropriate licensing 
approach to adopt for the 17/24 GHz BSS. The NPRM noted that, in the 
First Space Station Licensing Reform Order, the Commission adopted new 
licensing procedures for all satellite services except DBS and Digital 
Audio Radio Service (DARS). The Commission did not explain, however, 
whether 17/24 GHz BSS should be treated like DBS or other satellite 
services for purposes of processing applications. Thus, the NPRM sought 
comment on whether to process applications for the 17/24 GHz BSS space 
stations under the first-come, first-served licensing approach adopted 
in the First Space Station Licensing Reform Order for geostationary 
satellite orbit (GSO)-like space station applications. Under this 
approach, GSO-like satellite applications are processed on a first-
come, first-served basis. Thus, the Commission will grant a GSO-like 
application provided the applicant is qualified and the proposed system 
is not technically incompatible with a previously-licensed satellite or 
with a satellite proposed in a previously-filed application. 
Alternatively, we asked whether some other licensing approach would be 
more appropriate. In this regard, the NPRM specifically sought comment 
as to whether, pursuant to section 309(j) of the Communications Act, a 
competitive bidding system, or auction, could be designed to assign 
mutually exclusive applications for the use of this spectrum. The NPRM 
also sought comment on whether and how such an auction could be 
implemented consistent with the ORBIT Act, the D.C. Circuit's 
Northpoint ruling, and ITU procedures.
    7. The majority of commenters maintain that the first-come, first-
served licensing queue should be employed for processing applications 
for 17/24 GHz BSS space stations. EchoStar, however, argues that 17/24 
GHz BSS applications should not be processed under this approach, 
contending that this method does not result in the award of licenses to 
the applicant that is most able to put the spectrum to productive use. 
EchoStar believes that we should instead award 17/24 GHz BSS licenses 
by auction or by a processing round approach. To facilitate auctions, 
consistent with the ORBIT Act and the Northpoint ruling, EchoStar 
suggests that the Commission could limit 17/24 GHz BSS spectrum rights 
to the provision of domestic service if all competing applicants agree. 
Alternatively, EchoStar suggests that the Commission could require a 
percentage, such as 80%, of the 17/24 GHz BSS satellite's capacity be 
devoted to serving the United States. EchoStar further suggests that, 
if the Commission decides against an auctions approach, it should adopt 
a processing round procedure combined with strict financial 
requirements. No other commenters support the use of auctions or 
processing rounds.
    8. We find that the first-come, first-served licensing approach is 
well-suited for processing applications for 17/24 GHz BSS space 
stations. As noted in the NPRM, the proposed 17/24 GHz BSS space 
stations would provide services similar to those provided by the 
direct-to-home fixed satellite service (DTH FSS) satellites. We also 
note that all 17/24 GHz BSS applicants propose to operate GSO 
satellites. Because GSO satellites and constellations of non-
geostationary satellite orbit (NGSO) satellites cannot generally share 
the same spectrum, and because, as evidenced by the pending 
applications, GSO technology is better suited to providing DTH video 
services, we limit operations in the 17/24 GHz BSS to GSO satellites. 
The Commission licenses GSO satellites and most other satellite 
services on a first-come, first-served basis. As both Intelsat and 
DIRECTV point out, the first-come, first-served processing method has 
proven to be an efficient approach for licensing GSO satellites. 
Indeed, our experience has shown that this licensing method has allowed 
the Commission to dramatically reduce the length of time required to 
process GSO applications. Moreover, with its associated package of 
safeguards, the first-come, first-served approach has increased the 
probability that those awarded licenses actually construct and launch 
their satellite systems. As commenters have noted, prompt deployment in 
this band is particularly important in light of the fact that the 17/24 
GHz BSS spectrum became available for use on April 1, 2007. In 
addition, the first-come, first-served licensing approach works well in 
conjunction with the ITU processes for unplanned bands, such as this 
one.
    9. We disagree with EchoStar that the first-come, first-served 
approach is legally unsound or that such an approach will be more 
likely to result in spectrum warehousing, speculation, and 
gamesmanship. To the contrary, as mentioned, this approach has reduced 
the number of speculative applications. Further, we have previously 
addressed the Commission's legal authority to adopt a first-come, 
first-served procedure. EchoStar has not provided any basis for 
revisiting that issue here.
    10. We also are not persuaded that EchoStar's comments warrant a 
conclusion in this instance that a competitive bidding system would 
best serve the public interest. Although auctions have proven to be an 
efficient means of assigning licenses for scarce spectrum resources to 
those parties that are able to use these resources efficiently and 
effectively for the benefit of the public, we conclude that restricting 
the provision of international service solely to remove 17/24 GHz BSS 
from the auction prohibition of the ORBIT Act is not in the public 
interest. We are concerned that such a restriction would likely 
interfere with applicants' business plans and would thus be an 
impediment to the efficient deployment

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of service to consumers. Indeed, as Intelsat notes, three current 
applicants, including EchoStar, propose to provide international 
service. Thus, the record does not support agreement by competing 
applicants to provide 17/24 GHz BSS domestic service only. Further, 
such restrictions could put U.S.-licensed operators at a competitive 
disadvantage to foreign-licensed 17/24 GHz BSS systems, which are not 
similarly restricted in their own domestic markets. For these reasons, 
we will not award licenses for 17/24 GHz BSS space stations by auction.
    11. Further, we are not persuaded by EchoStar's proposal to adopt a 
processing round procedure. Prior to the adoption of the First Space 
Station Licensing Reform Order in 2003, we employed a processing round 
procedure in licensing GSO-like applications. Under this procedure, it 
normally took several years to issue satellite licenses, in one case 
nearly four years. Eliminating this regulatory delay was one of our 
primary motives in adopting the first-come, first served approach. 
Since the first-come, first-served approach has been adopted, the 
average processing time for GSO-like applications has decreased 
drastically and the backlog of applications is at an all-time low. The 
first-come, first-served processing queue provides a workable framework 
for timely and prompt processing of applications in this band and 
thereby facilitates the provision of service to the public. 
Accordingly, for the reasons discussed above, we will adopt the first-
come, first-served procedure for processing 17/24 GHz BSS applications.
    12. Space Station Reform Safeguards Adopted, Including Bonds, 
Milestones, and Limits on the Number of Pending Applications: In the 
NPRM, the Commission noted that the First Space Station Licensing 
Reform Order adopted a package of safeguards designed to discourage 
speculative applications and to ensure that licensees remain committed 
and able to proceed with system implementation in a timely manner. 
Applying these safeguards to the 17/24 GHz BSS would require licensees 
to post a $3 million bond with the Commission within 30 days of license 
grant and construct and launch the satellite consistent with the 
milestone schedule specified in Sec.  25.164 of the Commission's rules. 
The bond becomes payable if a licensee fails to meet a milestone, 
rendering the license null and void. Further, GSO-like applicants are 
limited to a total of five pending applications and/or licensed but 
unlaunched satellites in a particular frequency band at any one time, 
and must submit substantially complete applications or face dismissal, 
and cannot sell their place in the processing queue. In the NPRM, the 
Commission requested comment on whether we should apply this package of 
safeguards if we decide to use the first-come, first-served processing 
approach for 17/24 GHz BSS. The Commission also sought comment on 
whether there are any public interest rationales for imposing a higher 
performance bond and/or tighter limits on the number of pending 
applications and licenses for unbuilt satellites that applicants for 
17/24 GHz systems may have at any one time.
    13. Commenters generally support applying the first-come, first-
served approach safeguards to the 17/24 GHz BSS. Intelsat states that 
applying the bond requirement and milestone policies should be 
sufficient to deter speculative filings in the 17/24 GHz BSS. Intelsat 
also notes that prohibiting the sale of places in the queue will 
further deter speculative applications. DIRECTV also supports the 
application of the safeguards that apply to other GSO-like services, 
i.e., milestones and performance bonds, to 17/24 GHz BSS systems. The 
Department of Telecommunications of the Government of Bermuda (Bermuda) 
notes that, although it does not support excessive reliance on the 
attainment of milestones nor the use of performance bonds for 
discouraging speculation, it supports the right of each administration 
to establish its own mechanisms to find a reasonable balance between 
commercial adventure and undue speculation. EchoStar raises concerns 
about the use of bonds and milestones to deter speculation and 
recommends reinstating the financial qualification rules applicable to 
FSS licensees prior to 2003. EchoStar contends that strict financial 
qualifications are needed because given the relatively limited number 
of orbital locations for operation in the 17/24 GHz BSS, the bond and 
milestone requirements are not enough to protect against speculation 
and could still result in an orbital location remaining fallow for 
several years.
    14. We adopt our proposal in the NPRM to apply the safeguards in 
place under the first-come, first-serve licensing approach to the 17/24 
GHz BSS. Contrary to EchoStar's assertions, our experience with these 
safeguards has shown them to be an effective measure for discouraging 
speculative applications. Indeed, the Commission adopted the bond 
requirement because the financial qualification requirements it had 
been using--and which EchoStar asks us to reinstate--did not accurately 
reflect whether a licensee would proceed with construction and launch 
of its space station. The Commission found requiring a surety company 
to assess the risk that a licensee would default on a bond would 
provide a more accurate market-driven determination of a licensee's 
ability to proceed than would a regulatory determination. EchoStar has 
not provided any evidence to support its assertion that the previously-
used financial standard was more effective. Consequently, we will not 
adopt EchoStar's proposal. Further, the record does not support more 
stringent bond requirements or different limits on the number of 
pending applications/unbuilt satellites for the 17/24 GHz BSS. Thus, we 
will apply the requirements in place for other GSO-like applicants to 
17/24 GHz BSS applicants.
    15. Accordingly, we will apply the same safeguards in place for 
other GSO-like bands to the 17/24 GHz BSS. These safeguards include 
requiring licensees to post a $3 million bond with the Commission 
within 30 days of license grant; to construct and launch satellite 
system(s) consistent with the milestone schedule for GSO satellites; to 
limit to five, the number of pending applications and/or licenses for 
unbuilt satellites in this band at any one time; and to file 
substantially complete applications. The safeguards also prohibit 
applicants from selling their places in the queue.
    16. With respect to the ``substantially complete'' requirement, we 
require applications to be complete in substance, and to provide all 
the information required in the application form. Furthermore, 
applications must not be defective under the Commission's rules, 
meaning that the applications must be complete with respect to answers 
to questions and informational showings, and must be free of internal 
inconsistencies. To be substantially complete, a 17/24 GHz BSS 
satellite application must include a complete Form 312 and Schedule S, 
and all the information requested in Sec.  25.114(d) of the 
Commission's rules. As amended in Appendix B of this Order, Sec.  
25.114(d) requires 17/24 GHz BSS satellite applicants to show that the 
proposed satellite will be able to function in a four-degree spacing 
environment. Applicants will be required to demonstrate that they 
comply with the pfd limits in new Sec.  25.208(w), or, if they do not, 
to demonstrate how they will affect adjacent 17/24 GHz BSS satellite 
networks, and that the operators of those networks agree to the 
applicant's proposed operations. Applicants whose proposed orbital 
locations are offset from the 17/24 GHz BSS orbital

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locations listed in Appendix F will be required to show that they do 
not cause more interference than if they operated at an exact location 
listed in Appendix F, and that their satellite network's performance 
objectives will be met assuming that adjacent operators are operating 
at the maximum allowed power flux density levels.
    17. DISCO II Market Access Standard Adopted: The Commission's DISCO 
II Order implemented the market-opening commitments made by the United 
States in the World Trade Organization (``WTO'') Agreement on Basic 
Telecommunications Service (``WTO Basic Telecom Agreement''). In 
particular, the DISCO II Order established a framework under which the 
Commission will consider requests for non-U.S.-licensed space stations 
to serve the United States. This analysis considers the effect on 
competition in the United States, eligibility and operating 
requirements, spectrum availability, and national security, law 
enforcement, foreign policy, and trade concerns.
    18. Under DISCO II, the Commission evaluates the effect of foreign 
entry on competition in the United States in one of two ways. First, in 
cases where the non-U.S.-licensed space station is licensed by a 
country that is a member of the WTO and will provide services covered 
by the U.S. commitments under the WTO Basic Telecom Agreement, the 
Commission presumes that entry will further competition in the United 
States. The U.S. commitments include Mobile-Satellite Services (MSS) 
and many fixed-satellite services, but specifically exclude DTH, DBS, 
and DARS. In contrast, the Commission conducts an ``ECO-Sat'' analysis 
for non-U.S.-licensed space stations licensed by countries that are not 
WTO members and where the foreign operator, regardless of its licensing 
country's WTO status, proposes to provide a non-covered service. Under 
this analysis, applicants seeking to access a foreign space station 
must provide an analysis as part of their application demonstrating 
that U.S.-licensed space stations have effective competitive 
opportunities to provide analogous services in the country in which the 
space station is licensed (``home'' market) and in all countries in 
which communications with the U.S. earth station will originate or 
terminate (``route'' markets). In particular, the Commission examines 
whether there are any de jure or de facto barriers to entry in the 
foreign country for the provision of analogous services and whether any 
such barriers cause competitive distortions in the U.S. market. In the 
NPRM, the Commission proposed to apply this framework to non-U.S.-
licensed 17/24 GHz BSS satellite operators seeking to access the U.S. 
market.
    19. With respect to eligibility requirements, the Commission also 
proposed, in the NPRM, to extend to 17/24 GHz BSS operators the DISCO 
II policy that requires foreign-licensed space stations and operators 
to meet the same legal, technical, and financial requirements that we 
require U.S. applicants to meet. These include any requirements adopted 
in this proceeding, such as bond requirements, milestone requirements, 
geographic service requirements, public interest obligations, and 
spacecraft end-of-life disposal requirements.
    20. Further, as in other satellite services, the Commission also 
proposed to require entities requesting authority to serve the U.S. 
market from a non-U.S. satellite to provide the same information 
concerning the 17/24 GHz BSS satellite as U.S. applicants must provide 
when applying for a space station license. This allows us to determine 
whether the foreign-licensed satellite complies with all Commission 
technical and service requirements, and whether it may cause 
interference to satellites providing authorized services to U.S. 
customers.
    21. The commenters generally support this approach. EchoStar and 
SES Americom suggest that we should strictly enforce the ECO-Sat test 
because it allows us to ensure that U.S.-licensed operators have the 
same opportunity to provide 17/24 GHz BSS services to foreign countries 
as the satellites licensed by foreign countries have to serve the 
United States. In contrast, however, Bermuda notes that consumers would 
benefit if there was an increased presumption in all cases that entry 
to the market will further competition.
    22. We adopt the Commission's proposal in the NPRM to evaluate the 
applications of non-U.S.-licensed 17/24 GHz BSS satellite operators 
seeking to access the U.S. market under the DISCO II framework. Thus, 
our analysis will consider the effect on competition in the United 
States, eligibility and operating requirements, spectrum availability, 
and national security, law enforcement, foreign policy, and trade 
concerns. We note in particular that all applications seeking authority 
to provide DTH services from non-U.S.-licensed 17/24 GHz BSS operators 
to the U.S. market must include an ECO-Sat analysis. We will not 
eliminate this analysis in favor of a presumption that entry, in all 
cases, will further competition, as Bermuda suggests. The ECO-Sat 
analysis assures us that a foreign entrant will not have a competitive 
advantage over U.S.-licensed operators derived from their ability to 
serve countries and customers that U.S. operators may be precluded from 
serving. Bermuda has not explained why, or to what extent, the 17/24 
GHz BSS is so different from other services that we need not be 
concerned about ensuring a level playing field among these systems. 
Further, any evaluation of whether to continue to apply the ECO-SAT 
analysis to non-covered services in general is beyond the scope of this 
proceeding.
    23. Last, as with all other services, we require all 17/24 GHz BSS 
operators seeking authority to serve the U.S. market from a non-U.S. 
satellite to provide the same information concerning their proposed 17/
24 GHz BSS space stations as U.S. applicants must provide when applying 
for a space station license. This includes filing FCC Form 312, 
information required in Schedule S, and all other information required 
by Sec.  25.114 of the Commission's rules. In addition, all non-U.S-
licensed satellite operators must meet the requirements adopted in this 
proceeding, including but not limited to bond requirements, milestone 
requirements, geographic service requirements, public interest 
obligations and spacecraft end-of-life disposal requirements.
    24. Licensing at Co-Located 17/24 GHz BSS and DBS Orbital 
Locations: EchoStar argues that we should award licenses for 17/24 GHz 
BSS satellites that will be co-located with DBS satellites only to 
existing DBS licensees at those locations. According to EchoStar, this 
restriction would minimize the risk of harmful interference which will 
occur when 17/24 GHz BSS satellites are located at or near the same 
orbital locations as DBS satellites. SES Americom and Intelsat oppose 
this proposal, claiming that it is anti-competitive and would block new 
entrants from the 17/24 GHz BSS.
    25. We agree with SES Americom and Intelsat. The effect of 
accepting EchoStar's argument would be an expansion of the 
authorizations of DBS licensees to include authority to operate in the 
17/24 GHz BSS on the same channel and orbital location at which they 
are currently operating. We find that providing such rights to existing 
DBS licensees would hinder competition while conferring a benefit on 
existing DBS licensees. Further, we note that, in the FNPRM section of 
this document below, we invite comment on various methods for 
coordinating DBS and 17/24 GHz BSS satellites when located near each 
other in the

[[Page 50004]]

geostationary orbit, perhaps as close as 0.2[deg] or 0.3[deg] to each 
other. In light of this, we find that EchoStar's proposal to prohibit 
non-DBS operators from applying for 17/24 GHz BSS licenses at DBS 
orbital locations is not necessary to prevent harmful interference 
between DBS and 17/24 GHz BSS satellites.
    26. Fifteen-year and Eight-Year License Terms Adopted, 
Respectively, for Non-Broadcast and Broadcast 17/24 GHz Licensees: In 
the NPRM, the Commission sought comment on the license term it should 
apply to 17/24 GHz licenses. The Commission noted that Sec.  25.121 of 
the Commission's rules provides that licenses for space stations will 
be issued for a period of 15 years, except licenses for DBS space 
stations. DBS space stations licensed as broadcast facilities are 
issued licenses for eight-year terms, and those DBS space stations not 
licensed as broadcast facilities have 10-year terms. The Communications 
Act provides for a maximum licensing term of eight years for 
broadcasting facilities and allows the Commission to determine license 
terms for particular classes of stations, including satellite space and 
earth stations. In the NPRM, the Commission proposed to adopt a 10-year 
license term for all non-broadcast 17/24 GHz BSS satellites. For 17/24 
GHz BSS satellites that will operate as broadcast facilities, the 
Commission proposed an eight-year license term, as provided under 
section 307(c)(1) of the Communications Act.
    27. DIRECTV, Intelsat, and Bermuda support a 15-year license term 
for 17/24 GHz systems. Bermuda states that most commercial satellites 
being planned or built today are intended for a service life-expectancy 
of longer than eight years, and notes that a 15-year term would also be 
consistent with international practices.
    28. Pursuant to our statutory authority to implement license terms 
for different classes of space and earth stations, with the exception 
of DBS stations, we adopt a 15-year license term for all non-broadcast 
17/24 GHz BSS licenses and an eight-year license term for 17/24 GHz BSS 
licensees operating as broadcasters. As noted by the parties, 
satellites being built today are intended for longer service life 
expectancy than in the past and should therefore be assigned a longer 
license term. A 15-year license term for non-broadcast 17/24 GHz BSS 
satellites accurately reflects the useful life of most GSO satellites 
today and therefore, we will extend the license terms applicable to 
other non-broadcast GSO-like licensees to 17/24 GHz BSS licensees.
    29. Streamlined Procedures Adopted: While the Commission has 
consistently said that all orbital assignments confer no permanent 
rights of use to the licensee, it has recognized the importance of 
giving satellite operators some assurance that they will be able to 
continue to serve their customers from the same orbital location as 
older satellites are retired. The Commission has stated that, without 
this assurance, operators may be discouraged from investing the hundred 
of millions of dollars needed to construct, launch, and operate each 
satellite. Further, the Commission has said that without follow-on 
capacity at the same orbit location, customers could experience service 
disruptions. When an orbit location remains available for a U.S. 
satellite with the technical characteristics of the proposed 
replacement satellite, we will generally authorize the replacement 
satellite at the same location.
    30. To facilitate grant of replacement satellites, the Commission 
has historically processed applications for replacement satellites as 
they are filed, rather than subjecting them to the procedures that 
otherwise govern applications for new satellites. Thus, Commission 
practice is to immediately consider an application for a replacement 
satellite--and grant it if the applicant is qualified--without 
subjecting the application to a ``processing queue'' or other procedure 
by which it considers other applications that may be mutually exclusive 
with the replacement satellite application. To further expedite 
replacement satellite licensing, the Commission considers unopposed 
replacement satellite applications with technical characteristics 
consistent with those of the satellite to be retired are processed 
under a grant-stamp procedure. In the NPRM, we proposed to treat 
replacement satellite applications in the 17/24 GHz BSS under these 
streamlined procedures.
    31. DIRECTV and Intelsat support this proposal. Bermuda also 
supports a replacement policy that allows operators to replace ``like 
with like,'' i.e., replace a satellite after a premature in-orbit 
failure (such as caused by solar activity or manufacturing flaw) but 
cautions against abuses in the satellite replacement grant-stamp 
process.
    32. In order to facilitate grant of 17/24 GHz BSS replacement 
satellite applications, we adopt the streamlined procedures applicable 
to the majority of the replacement satellite applications considered by 
the Commission. We have found that the grant-stamp procedure is an 
efficient method of processing replacement satellite applications and 
will apply this procedure to unopposed applications for replacement 
satellites in the 17/24 GHz BSS. Further, the procedure contains 
mechanisms against abuse. We will place 17/24 GHz replacement 
applications on Public Notice, as we do with replacement satellite 
applications in other services. Thus, interested parties will have an 
opportunity to comment on all applications. We will address any 
concerns raised when processing the replacement application and will 
issue an Order, instead of a grant stamp, when appropriate.
    33. Annual Reporting Requirements Adopted: In the NPRM, the 
Commission noted that most space station operators are subject to 
annual reporting requirements on June 30 of each year. These reports 
must include, among other things, the status of space station 
construction and anticipated launch dates. The Commission requested 
comment on whether we should require 17/24 GHz BSS U.S.-licensees and 
17/24 GHz BSS non-U.S. operators that are authorized to access the 
United States to submit similar annual reports.
    34. Bermuda and Intelsat support a reporting requirement, stating 
that annual reports can be useful for monitoring the progress of 
milestone compliance and helping to deter speculative applications. 
Bermuda adds that licensees should file reports regardless of whether 
they are U.S. operators or non-U.S. operators. Bermuda also states that 
requiring operators to report at intervals of less than one year would 
provide an increased opportunity to monitor progress. No party objects 
to a reporting requirement for 17/24 GHz BSS operators.
    35. We adopt the Commission's proposal to require 17/24 GHz BSS 
U.S.-licensees and 17/24 GHz BSS non-U.S. operators that are authorized 
to access the United States to submit annual reports similar to the 
annual reports required of most FSS satellite operators to the 
Commission on June 30 of each year. We believe such reports, filed on 
an annual basis, will help keep us apprised of the status of the space 
station, both while it is being built and once it is in-orbit. We are 
not convinced that more frequent reporting is needed to achieve this 
objective. In addition to annual reports, licensees must file 
documentation that they have met various milestones at each milestone 
deadline. This provides the most timely way to monitor licensees' 
compliance with the milestone conditions in their licenses. We also 
note that the Commission may request at any time additional information 
if such request is warranted.

[[Page 50005]]

    36. Operators should file their annual reports with the 
Commission's International Bureau and the Commission's Columbia 
Operations Center in Columbia, Maryland. Specifically, the annual 
reports must include: (1) Status of satellite construction and 
anticipated launch date, including any major problems or delays 
encountered; (2) a listing of any non-scheduled transponder outages for 
more than 30 minutes and the cause or causes of such outage; (3) a 
detailed description of the utilization made of each transponder on 
each of the in-orbit satellites, including the percentage of time that 
the system is actually used for U.S. domestic or transborder 
transmission, the amount of capacity (if any) sold but not in service 
within U.S. territorial geographic areas, and the amount of unused 
system capacity; and (4) identification of any transponder not 
available for service or otherwise not performing to specifications, 
the cause of these difficulties, and the date any space station was 
taken out of service or the malfunction identified.
    37. NPRM Proposal Adopted: In the NPRM, the Commission proposed 
that applicants for 17/24 GHz BSS satellites should pay fees associated 
with the ``Space Stations (Geostationary)'' service in Sec.  1.1107 of 
the Commission's rules. In addition, we proposed that applicants 
seeking authority to operate earth stations in the 17/24 GHz BSS should 
pay fees associated with the ``Fixed Satellite Transmit/Receive Earth 
Stations'' in Sec.  1.1107. There were no comments on our filing fee 
proposals and we adopt our fee proposals.
    38. DBS and DTH Public Interest Obligations Adopted for 17/24 GHz 
BSS: Sec.  25.701 of our rules requires DBS providers to comply with 
certain political broadcast requirements and children's television 
advertising limits, and to set aside four percent of channel capacity 
for noncommercial, educational or informational programming. The 
entities subject to Sec.  25.701 include entities licensed to operate 
satellites in the 12.2 to 12.7 GHz DBS frequency bands; entities 
licensed pursuant to part 25 of the Commission's rules to provide FSS 
via the Ku-band, that sell or lease transponder capacity to a video 
program distributor that offers a specified number of DTH video 
channels to consumers; and non-U.S. licensed satellites providing DBS 
or DTH-FSS services in the United States. The NPRM proposed that, to 
the extent a 17/24 GHz BSS space station is used to provide video 
programming to consumers in the United States (DBS-like services), the 
licensee should be subject to the public interest obligations contained 
in Sec.  25.701. We invited comment on this proposal.
    39. Commenters generally support applying public interest 
requirements to the 17/24 GHz BSS. SES Americom, however, contends that 
such requirements should be imposed only on 17/24 GHz BSS licensees 
that distribute programming to end users, and not on 17/24 GHz BSS 
licensees that are strictly satellite operators with no programming 
control, because they are not in a position to comply with the 
obligations. In reply, EchoStar states that if public interest 
obligations are imposed on any 17/24 GHz BSS licensees, they should be 
imposed uniformly on all such licensees. DIRECTV also believes that 
public interest obligations should be imposed equally on all 17/24 GHz 
BSS licensees, and states that the Commission has previously addressed 
and rejected SES Americom's arguments.
    40. We find that the obligations imposed on DBS providers by Sec.  
25.701 should apply uniformly if the 17/24 GHz BSS space station is 
used to provide video services to consumers in the United States. SES 
Americom's argument that program distributors using satellite capacity 
should be ultimately responsible for fulfilling these obligations was 
specifically addressed and rejected by the Commission when it 
originally adopted the public interest rules and on reconsideration of 
those rules. We see no reason to adopt a different approach for 
operations in the 17/24 GHz BSS. Accordingly, we adopt the proposal to 
amend Sec.  25.701 to apply to any 17/24 GHz BSS licensee, to the 
extent that the space station is used to provide video programming to 
consumers in the United States.
    41. Although Media Access Project supports the Commission's 
proposal to impose public interest obligations on 17/24 GHz BSS 
licensees that provide DBS-like services, it argues that the Commission 
should increase the amount of programming that service providers in 
this band are required to reserve for non-commercial programming of an 
educational or informational nature. It argues that, given the 
expansion of spectrum capacity being offered to service providers in 
this proceeding, the Commission should require that licensees offer an 
accompanying increase in their public interest programming from the 
statutory minimum of four percent to the statutory maximum of seven 
percent. According to Media Access Project, the increase would provide 
value to the public in return for their use of the scarce public 
resources of spectrum and orbital locations. EchoStar argues that a 
public interest programming set-aside requirement of seven percent 
would be a disincentive to development of the 17/24 GHz BSS and would 
``significantly limit'' the capacity available for sought-after 
services such as local-into-local television broadcast stations and 
high-definition programming.
    42. To the extent that Media Access Project is arguing that the 
channel reservation requirement should be increased for all DBS 
providers, including those originally covered by Sec.  25.701, that 
issue is beyond the scope of this proceeding. With respect to any 
argument that the reservation be increased for only licensees in the 
17/24 GHz BSS, we find that this might prove detrimental to development 
of this band by placing greater burdens on these licensees than those 
operating in others bands. Thus, we require 17/24 GHz BSS licensees to 
reserve four percent of their channel capacity, as defined in Sec.  
25.701, for use by qualified programmers for noncommercial programming 
of an educational or informational nature. See 47 CFR 25.701(c).
    43. The NPRM also sought comment on whether licensees in the 17/24 
GHz BSS qualify to use the compulsory copyright licenses granted under 
sections 119 and 122 of the Copyright Act and, if so, whether broadcast 
carriage requirements should apply. See 17 U.S.C. 119, 122. These 
statutory licenses permit satellite carriers, as defined in the 
Copyright Act, to provide television broadcast signals to their 
subscribers. Section 119 of the Copyright Act defines ``satellite 
carrier'' as an entity that uses a satellite operating in the FSS or 
DBS service for point-to-multipoint distribution of television signals. 
See 17 U.S.C. 119(d)(6). See also 47 U.S.C. 339. This section of the 
Copyright Act allows satellite carriers to offer distant broadcast 
signals under certain circumstances. Section 122 of the Copyright Act 
provides a license for local-into-local service and defines ``satellite 
carrier'' by reference to the definition in section 119. See 17 U.S.C. 
122(j)(3). See also 47 U.S.C. 338.
    44. Both DIRECTV and EchoStar, as well as NAB, support allowing 17/
24 GHz BSS licensees to qualify to use the compulsory copyright 
licenses. DIRECTV asserts that while the 17/24 GHZ BSS service is not 
totally in either the DBS or FSS frequency bands, the uplink for this 
service is in a frequency band allocated to FSS and, therefore, the 
copyright license could be construed to cover 17/24 GHz BSS. 
Alternatively,

[[Page 50006]]

DIRECTV asserts that the Commission could amend its definition of 
``DBS'' to include use of the 17/24 GHz BSS downlink band. Although we 
will not offer an opinion on the appropriate construction of the 
Copyright Act, we believe that sections 338 and 339 of the 
Communications Act would apply to 17/24 GHz BSS licensees and that 
operators in this band, to the extent that they provide DBS-like 
service, qualify for use of the statutory copyright licenses. These 
licensees will provide point-to-multipoint service, in part using FSS 
frequencies, and thus they appear to come within the definition of a 
satellite carrier. Licensees availing themselves of the statutory 
copyright licenses must, of course, abide by the accompanying broadcast 
carriage requirements in the statute and in Commission rules, and, if 
they offer service to more than 5 million customers, must provide 
television broadcast signals to subscribers in Alaska and Hawaii.
    45. EEO Requirements Adopted: The NPRM noted that Sec.  25.601 of 
the Commission's rules requires an entity that owns or leases an FSS or 
DBS service facility to provide video programming directly to the 
public on a subscription basis to comply with the equal employment 
opportunity (EEO) requirements. These requirements are set forth in 
part 76 of the Commission's rules and apply if the entity exercises 
control over the video programming it distributes. We proposed to apply 
Sec.  25.601 to 17/24 GHz BSS licensees to the extent such licensees 
provide DBS-like services. In addition, we proposed to require 17/24 
GHz BSS licensees to comply with any other EEO requirements that may be 
subsequently adopted or enforced by the Commission for broadcasters and 
multichannel video service distributors (MVPDs). We sought comment on 
this proposal.
    46. EchoStar states that if we impose EEO obligations on 17/24 GHz 
BSS licensees, we should apply them uniformly to all licensees. Bermuda 
states generally that it supports our proposals. We find that it is in 
the public interest to apply Sec.  25.601 of our rules to 17/24 GHz BSS 
licensees to the extent such licensees provide DBS-like services, as 
well as to require 17/24 GHz BSS licensees to comply with any other EEO 
requirements that may be subsequently adopted or enforced by the 
Commission for broadcasters and MVPDs. Accordingly, we will apply Sec.  
25.601 of our rules to 17/24 GHz BSS licensees to the extent such 
licensees provide DBS-like services, and 17/24 GHz BSS licensees will 
be required to comply with any other EEO requirements that may be 
subsequently adopted or enforced by the Commission for broadcasters and 
MVPDs.
    47. Service Requirements for Alaska and Hawaii Adopted: The 
Commission is committed to establishing policies and rules that will 
promote service to all regions in the United States, particularly to 
traditionally underserved areas, such as Alaska and Hawaii, and other 
remote areas. To achieve these goals, the NPRM proposed to apply 
geographic service rules for the states of Alaska and Hawaii in the 17/
24 GHz BSS. Specifically, to the extent that 17/24 GHz BSS space 
stations are used to provide video programming to consumers in the 
United States, we proposed to adopt rules analogous to those in effect 
for DBS satellites in Sec.  25.148(c) of the Commission's rules. These 
rules require DBS licensees to provide service to Alaska and Hawaii 
where such service is technically feasible from the authorized orbital 
location. DBS applicants who do not propose to serve Alaska and Hawaii 
at the licensing stage must provide technical analyses to the 
Commission demonstrating that such service is not feasible as a 
technical matter or that, while technically feasible, such service 
would require so many compromises in satellite design and operation as 
to make it economically unreasonable. The Commission sought comment on 
this proposal. In addition, the NPRM noted that it is likely that many 
of the satellite operators in the 17/24 GHz BSS will operate multiple 
satellites. We asked whether, in such instances, we should apply 
geographic service rules at each orbital location or on a system-wide 
basis.
    48. Commenters generally support adopting rules analogous to the 
DBS rules. DIRECTV and EchoStar also support applying the rules on a 
system-wide basis rather than on an orbital location basis. DIRECTV 
states that applying the rules on a system-wide basis will provide 
flexibility without compromising the goal of comparable service to all 
regions of the United States. EchoStar notes that the technical 
feasibility of service from a particular orbital location may not be 
the same for the 12 GHz and 17 GHz bands.
    49. Accordingly, 17/24 GHz BSS licensees, to the extent that such 
licensees provide DBS-like services, are required to certify that they 
will provide service to Alaska and Hawaii comparable to that provided 
to locations in the 48 contiguous United States (CONUS), unless such 
service is not technically feasible or not economically reasonable from 
the authorized orbital location. In addition, we require applicants to 
design and configure 17/24 GHz BSS satellites to be capable of 
providing service to Alaska and Hawaii that is comparable to the 
service that such satellites will provide to CONUS subscribers. 
Furthermore, we require applicants to design and configure these 
satellites to be able to provide service to Alaska and Hawaii from any 
orbital location capable of providing service to either Alaska or 
Hawaii to which they may be relocated in the future. Thus, regardless 
of the location to which the satellite is initially authorized to 
operate from, if moved to a location capable of providing coverage to 
Alaska and Hawaii, the satellite will be configured to provide service 
to Alaska and Hawaii at the new orbital location. Applying geographic 
service requirements to 17/24 GHz BSS operators in this manner will 
best ensure that 17/24 GHz BSS service provided to Alaska and Hawaii is 
comparable to that provided to CONUS locations. Although we are 
applying these requirements to each satellite where technically 
feasible instead of on a system-wide basis as proposed by DIRECTV and 
EchoStar, we believe that operators will have sufficient flexibility to 
design their systems in a manner that will be both technically and 
economically efficient. We also require licensees to certify that 
replacement and relocated satellites at locations from which service to 
Alaska and Hawaii had been provided by another 17/24 GHz BSS satellite 
will have the capability to provide at least the same level of service 
to Alaska and Hawaii as the previous 17/24 GHz BSS satellite at that 
location. 17/24 GHz BSS applicants who do not intend to provide service 
to Alaska and Hawaii must provide, in their initial application, 
technical analyses to the Commission demonstrating that such service is 
not feasible as a technical matter or that, while technically feasible, 
such service would require so many compromises in satellite design and 
operation as to make it economically unreasonable.
    50. EAS Requirements Adopted: In the NPRM, the Commission noted 
that, in the EAS First Report and Order and Further Notice, the 
Commission amended part 11 of its rules to require participation in the 
Emergency Alert System (EAS) by digital broadcast stations, digital 
cable systems, DBS services, and DARS. The NPRM also noted that in the 
EAS First Report and Order and Further Notice, the Commission defined 
DBS broadly to include the ``vast majority of DTH services, 
particularly those which viewers may have expectations as to available 
warnings based on experience

[[Page 50007]]

with broadcast television services.'' Because the same concerns the 
Commission addressed in the EAS First Report and Order and Further 
Notice are presented with the introduction of services by 17/24 GHz BSS 
providers, the NPRM proposed to apply the EAS requirements to providers 
of those services to the extent that 17/24 GHz BSS licensees provide 
DBS-like services.
    51. Commenters disagree as to whether the Commission should apply 
EAS requirements to all 17/24 GHz BSS licensees. SES Americom and 
Intelsat maintain that EAS requirements should apply only to 17/24 GHz 
BSS licensees that distribute programming to end users and not to FSS 
licensees that provide satellite capacity, such as SES Americom and 
Intelsat. According to SES Americom, FSS operators have conclusively 
demonstrated that placing EAS obligations on the licensee instead of 
the programming distributor impairs the effectiveness of the EAS 
program and prevents the Commission from penalizing a programming 
distributor that fails to deliver a required alert. SES concludes that 
if the Commission decides to apply EAS requirements to the 17/24 GHz 
BSS, it should ensure that they are placed only on programming 
distributors and not on the underlying satellite operators.
    52. EchoStar and DIRECTV disagree with SES Americom and Intelsat. 
On reply, EchoStar and DIRECTV argue that all 17/24 GHz BSS licensees, 
whether they provide programming or underlying capacity, should be 
subject to EAS requirements. DIRECTV also notes that the Commission has 
previously determined that satellite licensees, such as Intelsat, 
should be subject to EAS requirements for other satellite services. 
Consequently, DIRECTV argues, unless the Commission changes its policy 
regarding the application of EAS requirements to other services it 
should not adopt Intelsat and SES Americom's proposal for the 17/24 GHz 
service alone.
    53. Bermuda also submitted comments in support of applying EAS 
requirements to all 17/24 GHz BSS licensees that provide DBS-like 
services. Bermuda argues that imposing this requirement not only 
insures that all satellite operators providing DTH-like or DBS-like 
services will be subject to the same requirements, but also means that 
consumers will receive equal services in the event of an emergency. 
Bermuda further states that in the broader context of EAS, it has 
concerns regarding extreme weather conditions and recognizes that 
resilient communications are necessary for the dissemination of vital 
information to the public in times of emergency.
    54. We believe that customers of the new 17/24 GHz BSS services 
would likely have similar expectations regarding these services as they 
do towards those other satellite services where video programming is 
provided directly to consumers. The particular band in which DTH 
services are offered has no relevance to customers' expectations 
regarding their ability to receive warnings. In other words, the EAS 
obligations for these services should be uniform no matter what portion 
of spectrum a particular provider chooses for its services. In this 
regard, we note that, pursuant to the rules adopted in the EAS First 
Report and Order, entities providing DBS services as defined by Sec.  
25.701(a) of the Commission's rules, will be subject to the part 11 EAS 
rules effective May 31, 2007. In light of this precedent and the 
reasons stated above, we conclude that, where 17/24 GHz BSS space 
stations are used to provide video services directly to consumers, the 
EAS requirements will apply. This will ensure consistent application of 
the EAS requirements irrespective of the different spectrum being used. 
We note, however, that PanAmSat Corporation, SES Americom, Inc. and 
Intelsat, Ltd. (collectively the ``FSS Group'') filed a petition for 
partial reconsideration of the EAS First Report and Order, making 
arguments essentially identical to those raised in their comments in 
this proceeding. We will address these issues in an Order dealing with 
the reconsideration petitions in the EAS proceeding.
    55. Use of BSS Spectrum at 17.7-17.8 GHz: Although the 
international allocation for Region 2 BSS in the space-to-Earth 
direction extends from 17.3-17.8 GHz, in the 18 GHz Report and Order, 
the Commission extended the domestic allocation to the BSS only to 17.7 
GHz. As discussed in the NPRM, the Commission based its decision in 
part upon the ubiquitous nature of broadcasting-satellite services 
which we believed would preclude successful coordination with a 
terrestrial service that was similarly widely deployed, and taking into 
account the amount of terrestrial fixed spectrum being lost as a result 
of that proceeding. In the NPRM, the Commission recognized that U.S. 
satellite operators might wish to use the 17.7-17.8 GHz band to provide 
service to receiving earth stations located within ITU Region 2, but 
outside of the United States. Accordingly, the Commission proposed to 
permit U.S. operators to use the international allocation to the BSS, 
but to limit use of the downlink to international service only, i.e., 
to receiving earth stations located outside of the U.S. and its 
possessions. The NPRM sought comment on this proposal and any rule 
changes that might be necessary to effect its implementation. 
Recognizing that the footprint of satellite beams serving nearby Region 
2 countries could illuminate portions of the United States, the NPRM 
also proposed to adopt Power Flux Density (pfd) limits in order to 
protect terrestrial service antennas from co-frequency interference 
from space station transmissions. Specifically, it proposed to adopt 
the same pfd limits that were imposed on FSS transmissions in the 17.7-
17.8 GHz band by Sec.  25.208(c) of the Commission's rules prior to the 
adoption of the 18 GHz Report and Order in 2002, and are also the same 
limits that Article 21 of the ITU Radio Regulations currently imposes 
on FSS operators in this band. See Table 21-4 of the ITU Radio 
Regulations. The NPRM sought comment on extension of these proposed pfd 
limits to the 17/24 GHz BSS.
    56. Commenters responding to this issue consistently favor the 
Commission's proposal to permit use of the 17.7-17.8 GHz band outside 
of the United States and its possessions. However, many argue that the 
Commission's proposal did not go far enough with regard to domestic 
service. DIRECTV and EchoStar both request that the Commission also 
allow satellite operators to provide service to U.S.-based receiving 
earth stations on a non-protected, non-interference basis, arguing that 
there is very little chance that downlink transmissions from a BSS 
satellite would interfere with the much stronger terrestrial service 
transmissions in this portion of the band and stating that spectrum 
should not be required to remain fallow in areas where there is little 
terrestrial use. Intelsat further argues that coordination with Fixed 
Service (FS) operators in the 17.7-17.8 GHz band is feasible 
particularly if FS deployment is frozen after a certain date to permit 
BSS operators to deploy their earth stations with full knowledge of the 
locations of FS earth stations. Alternatively, Intelsat suggests that 
the Commission could grant BSS and FS co-primary status and protect 
receive earth station sites on a case-by-case basis while permitting FS 
deployment in the band to continue. Finally, SES Americom states that 
the Commission should entertain requests for a waiver of the 
Commission's rules to permit use of the 17.7-17.8 GHz band on a case-
by-case basis.

[[Page 50008]]

    57. The Fixed Wireless Communications Coalition (FWCC) opposes 
satellite operators' requests for authority to provide domestic service 
in the 17.7-17.8 GHz band. The FWCC claims that the FS used the band 
heavily even prior to the 1998 18 GHz Report and Order and that the 
number of FS links continues to increase. It argues that such an action 
on the Commission's part would be both bad policy and contrary to law 
as the NPRM expressly took such a possibility off the table. The FWCC 
further argues that satellite operators seek to reopen the issue of 
terrestrial service and satellite service sharing that has already been 
thoroughly aired and considered, and urges the Commission to state that 
the matter is closed. FiberTower also opposes 17/24 GHz BSS domestic 
use of the 17.7-17.8 GHz band, stating that it would not be possible to 
effect coordination with ongoing FS operations in the band and that 
such a reallocation would once again disrupt FS operations in order to 
rechannelize the 18 GHz band.
    58. In the NPRM, the Commission made clear that it did not intend 
to reexamine the question of BSS and FS sharing in the 17.7-17.8 GHz 
band in this rulemaking. We believe that undertaking examination of 
such a technically complex issue would only result in a protracted and 
contentious rulemaking. As stated in the NPRM, this could only disserve 
our goal of establishing technical and service rules for the 17/24 GHz 
BSS in a timely manner, particularly recognizing the April 1, 2007 date 
at which the allocation became effective. Moreover, the Commission also 
stated that no applicant had provided either convincing evidence that 
terrestrial FS spectrum relocation requirements are less demanding than 
predicted, or a compelling argument that coordination of widely 
deployed terrestrial services with ubiquitously located 17/24 GHz BSS 
receivers would be readily feasible. That remains true to date. For 
these reasons, we agree with the FWCC's assertion that reopening the 
issue in this rulemaking is not appropriate, and we decline to consider 
requests to make the 17.7-17.8 GHz band available for domestic BSS 
operations as a part of this proceeding.
    59. EchoStar, DIRECTV and SES Americom all suggest that reception 
of some non-protected BSS transmissions at U.S. earth stations might be 
accommodated successfully in the 17.7-17.8 GHz band. EchoStar notes 
that a similar approach has been undertaken successfully with FSS DTH 
antennas in the extended Ku-bands. In certain instances, FSS applicants 
seeking to use extended Ku-band spectrum for domestic service, have 
obtained waivers of the Commission's rules and agreed to accept all 
interference from FS stations as a condition of authorization. However, 
in the extended Ku-bands, there is an existing primary allocation to 
the FSS in the 10.95-11.2 GHz and 11.45-11.7 GHz bands, although 
footnote NG 104 to the United States Table of Frequency Allocations 
(Table of Allocations) limits FSS use to international systems only. 
See 47 CFR 2.106 and NG 104. In the case of the 17.7-17.8 GHz band, 
neither a primary nor a secondary domestic allocation to the BSS exists 
in the space-to-Earth direction. The Commission will not modify the 
Table of Allocations to provide a secondary allocation to the BSS in 
this band for the reasons stated above--we do not intend to reexamine 
BSS/FS sharing issues in this rulemaking.
    60. Commenters also support the adoption of pfd limits in the 17.7-
17.8 GHz band to protect terrestrial networks. SES Americ