Facilitating the Use of Microwave for Wireless Backhaul and Other Uses and Providing Additional Flexibility To Broadcast Auxiliary Service and Operational Fixed Microwave Licensees, 59559-59574 [2011-23001]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 76, Number 187 (Tuesday, September 27, 2011)]
[Rules and Regulations]
[Pages 59559-59574]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23001]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 74 and 101

[WT Docket No. 10-153; FCC 11-120]


Facilitating the Use of Microwave for Wireless Backhaul and Other 
Uses and Providing Additional Flexibility To Broadcast Auxiliary 
Service and Operational Fixed Microwave Licensees

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission continues its efforts to 
increase flexibility in the use of microwave services licensed under 
our rules. This additional flexibility will enable FS licensees to 
reduce operational costs, increase reliability, and facilitate the use 
of wireless backhaul in rural areas. The steps we take will remove 
regulatory barriers that limit the use of spectrum for wireless 
backhaul and other point-to-point and point-to-multipoint 
communications. We also make additional spectrum available for wireless 
backhaul--as much as 650 megahertz--especially in rural areas, where 
wireless backhaul is the only practical middle mile solution. By 
enabling more flexible and cost-effective microwave services, the 
Commission can help accelerate deployment of fourth-generation (4G) 
mobile broadband infrastructure across America.

DATES: Effective October 27, 2011, except for 47 CFR 74.605, which 
contains new or modified information collection requirements 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 that section.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. A copy of any comments on the Paperwork Reduction 
Act information collection requirements contained herein should be 
submitted to Judith B. Herman, Federal Communications Commission, Room 
1-B441, 445 12th Street, SW., Washington, DC 20554 or via the Internet 
at JudithB.Herman@fcc.gov.

FOR FURTHER INFORMATION CONTACT: John Schauble, Wireless 
Telecommunications Bureau, Broadband Division, at 202-418-0797 or by e-
mail to John.Schauble@fcc.gov. For additional information concerning 
Paperwork Reduction Act information collection requirements contained 
in this document, contact Judith B. Herman at (202) 418-0214, or via 
the Internet at PRA@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Backhaul Report and Order and Memorandum Opinion and Order (Backhaul 
R&O, Backhaul MO&O), FCC 11-120, adopted and released on August 9, 
2011. The full text of this document is available for inspection and 
copying during normal business hours in the FCC Reference Information 
Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The 
complete text of the Backhaul Report and Order and Memorandum Opinion 
and Order and related Commission documents may be purchased from the 
Commission's duplicating contractor, Best Copy and Printing, Inc. 
(BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554, (202) 488-5300 or (800) 387-3160, contact BCPI at its Web site: 
https://www.bcpiweb.com. When ordering documents from BCPI, please 
provide the appropriate FCC document number, for example, FCC 11-120. 
The complete text of the Backhaul Report and Order and Memorandum 
Opinion and Order is also available on the Commission's Web site at 
https://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-11-120A1.doc. 
Alternative formats (computer diskette, large print, audio cassette, 
and Braille) are available by contacting Brian Millin at (202) 418-
7426, TTY (202) 418-7365, or via e-mail to bmillin@fcc.gov.

I. Introduction

    1. Broadband is indispensable to our digital economy, and wireless 
technology is an increasingly important source of broadband 
connectivity. A leading example of the role of wireless technology in 
connecting the nation to broadband is the impact and potential of 
point-to-point microwave systems. An essential component of many 
broadband networks--particularly in mobile wireless networks--microwave 
backhaul facilities are often used to transmit data between cell sites, 
or between cell sites and network backbones. Service providers' use of 
microwave links as a cost-effective alternative to traditional copper 
circuits and fiber optic links has been increasing. In certain rural 
and remote locations, microwave is the only practical high-capacity 
backhaul solution available.
    2. A robust broadband ecosystem therefore relies, at least in part, 
on access to adequate and cost-efficient

[[Page 59560]]

backhaul. In this Report and Order, we continue our efforts to increase 
flexibility in the use of microwave services licensed under our part 
101 rules. The steps we take will remove regulatory barriers that today 
limit the use of spectrum for wireless backhaul and other point-to-
point and point-to-multipoint communications. We also make additional 
spectrum available for wireless backhaul--as much as 650 megahertz--
especially in rural areas, where wireless backhaul is the only 
practical middle mile solution. By enabling more flexible and cost-
effective microwave services, the Commission can help accelerate 
deployment of fourth-generation (4G) mobile broadband infrastructure 
across America.

Background

    3. The Commission has licensed spectrum for microwave uses for most 
of its history. In 1996, the Commission consolidated its rules for most 
microwave point-to-point and point-to-multipoint services into a new 
part 101 of the Commission's rules. Two specialized microwave services 
in particular--the Broadcast Auxiliary Service (BAS) and the Cable TV 
Relay Service (CARS)--have not been consolidated into part 101. Part 
101 includes the point-to-point Private Operational Fixed Service 
(POFS) and the Common Carrier Operational Fixed Service. The 
Commission's licensing regime for these two services requires frequency 
coordination and the filing of an application for each microwave link 
or path containing detailed information concerning the proposed 
operation.
    4. On August 5, 2010, the Commission commenced this proceeding ``to 
remove regulatory barriers to the use of spectrum for wireless backhaul 
and other point-to-point and point-to-multipoint communications.'' In 
the NPRM, the Commission sought comment on allowing FS to share the 
6875-7125 MHz and 12700-13200 MHz bands currently used by BAS and CARS. 
The Commission also proposed to eliminate the ``final link'' rule that 
prohibits broadcasters from using FS stations as the final 
radiofrequency (RF) link in the chain of distribution of program 
material to broadcast stations. The Commission further proposed to 
modify the part 101 minimum payload capacity rule to allow temporary 
operations below the minimum capacity under certain circumstances, 
which would enable FS links--particularly long links in rural areas--to 
maintain critical communications during periods of fading. In the final 
portion of the NPRM, the Commission sought comment on permitting FS 
licensees to coordinate and deploy multiple links--a primary link and 
``auxiliary'' links. In the NOI, the Commission asked about relaxing 
efficiency standards in rural areas, permitting FS licensees to use 
smaller antennas, and other possible modifications to the part 101 
rules, or other policies or regulations, to promote flexible, efficient 
and cost-effective provisions of wireless backhaul service.
    5. Comments on the Wireless Backhaul NPRM/NOI were due October 25, 
2010, and reply comments were due November 22, 2010. In addition, on 
June 7, 2011, the Wireless Telecommunications Bureau issued a public 
notice that provided additional analysis of the existing BAS and CARS 
operations in the 7 and 13 GHz bands and requested supplemental comment 
on issues relating to FS sharing in the 6875-7125 MHz and 12700-13200 
MHz bands. Supplemental comments were due on June 27, 2011.

II. Report and Order

A. Making 6875-7125 MHz and 12700-13150 MHz Available for Part 101 FS 
Operations

    6. After a careful review of the comments, we conclude that it is 
feasible to authorize part 101 fixed stations in 650 megahertz in the 7 
and 13 GHz bands, so long as we ensure that these operations do not 
conflict with TV pickup stations that support important electronic 
newsgathering functions. As we explain in further detail below, we will 
therefore permit FS facilities only in areas where TV pickup operations 
are not licensed. As discussed below, our actions will permit 
additional FS stations in areas covering more than half of the nation's 
land mass, where they may be used to provide additional service to 
about 10 percent of the population.
    7. BAS and CARS stations fall into one of two categories: those 
that remain in one place (fixed) and those that move among different 
locations (mobile or temporary fixed). Mobile BAS and CARS include 
television pickup stations, which are authorized to transmit program 
material, orders concerning such program material and related 
communications from the scenes of events that occur in places other 
than a television studio to associated television stations. Under 
current rules, which were adopted in 2002, all FS and fixed BAS and 
CARS stations above 2110 MHz use the prior coordination notice 
procedure described in Sec.  101.103(d) of the Commission's rules, but 
mobile and temporary fixed BAS and CARS may use faster informal 
coordination procedures. TV pickup stations in these bands are usually 
licensed either for a specified radius around a set of coordinates or 
for a television market.
    8. The record indicates that it is not feasible to allow FS to 
share spectrum with mobile and temporary fixed TV pickup operations in 
areas where mobile and temporary fixed TV pickup operations are 
licensed. While BAS fixed and mobile operations share spectrum in the 
same geographic areas, the sharing that exists today would not be 
practicable if it were not guided by informal agreements among local 
market participants. Part 101 FS operators do not have the same 
incentive to accommodate the needs of TV pick-up operations, however, 
as few of them are involved in video newsgathering or video coverage of 
other live events. For that reason, if they were granted the same 
formal priority over TV pick-up operations that broadcasters' STL and 
ICR stations are entitled to claim under existing rules, FS operators 
could apply for spectrum that is presently used by TV pick-up 
operations--potentially precluding new TV pick-up operations and 
forcing existing operations to shut down. The National Spectrum 
Management Association (NSMA) points out that in bands that are already 
shared by BAS, CARS, and part 101 licensees, the bands are generally 
used for either fixed or mobile operations, but not both.
    9. We also conclude that it is not feasible at this time to adopt a 
formal band segmentation plan to separate fixed and mobile operations 
into designated sub-bands of the 7 and 13 GHz bands, as requested by 
the Fixed Wireless Communications Coalition (FWCC) and Vislink, Inc. 
The several bands allocated for BAS and CARS today support a mix of 
fixed, temporary fixed, and mobile services, including airborne mobile, 
and comments submitted in this proceeding confirm that BAS and CARS 
users coordinate these services on an individual market basis, without 
benefit of a formal nationwide plan, to assign the different types of 
service (fixed, mobile, airborne) to specific band segments. A portion 
of the band used in one market for fixed operation may commonly be used 
for mobile operation in another. Thus, to avoid disrupting those 
arrangements, we would need to tailor any band segmentation approach 
that we adopted to the needs and conditions of individual markets. 
Since we could not adopt a uniform band plan throughout the nation and 
provide the same spectrum to FS throughout the nation,

[[Page 59561]]

the value of such band segmentation would be quite limited.
    10. For areas where TV pickup licenses are not authorized, however, 
we conclude that sharing between part 101 FS and fixed BAS operations 
is feasible. WTB staff conducted additional analysis to determine 
whether it would be feasible for those services to share spectrum if 
they were separated geographically. The analysis appears to indicate 
that, even if FS operations were totally excluded from the service 
areas of TV pickup stations and CARS facilities, there would be 
considerable areas where FS facilities could be licensed--54 percent of 
the land area in the 7 GHz band and 64 percent of the land area in the 
13 GHz band--largely located in more rural areas, especially in the 
midwestern and western regions. For each band, FS facilities could 
serve about 10 percent of the population. Thus, opening the 7 and 13 
GHz bands to FS operations could be of particular benefit in rural 
areas, where spectrum in the 7 and 13 GHz bands is largely vacant.
    11. To avoid interference between FS operations and TV pickup 
operations, we prohibit FS paths from crossing the service areas of TV 
pickup authorizations and require FS to coordinate with all relevant 
licensees, including TV pickup authorizations, pursuant to the formal 
part 101 coordination procedures. EIBASS, the National Association of 
Broadcasters (NAB), and the Wireless Internet Service Providers 
Association (WISPA) believe that such an arrangement would be workable. 
We also note the presence of co-primary fixed satellite services (FSS) 
in these bands. FS applicants will be required to coordinate with and 
protect FSS licensees and applicants pursuant to the part 101 rules.
    12. The FWCC and SBE remain concerned about potential interference 
issues, particularly given the ability of broadcasters to operate 
short-term without a license. Under our rules, broadcasters can operate 
certain BAS facilities on a short-term basis without prior 
authorization for up to 720 hours a year subject to various 
limitations, including the fact that such short-term operation is 
secondary to regularly authorized facilities. We believe that such 
operations can be accommodated by excluding FS from two 25-megahertz 
channels each in the 7 GHz band (6975-7025 MHz) and the 13 GHz band 
(13150-13200 MHz). Excluding FS from that spectrum nationwide will 
accommodate TV pickup stations covering events that occur outside the 
license areas of local BAS and CARS operations. For the 7 GHz Band, we 
choose to exclude the 6975-7025 MHz segment because excluding the 
middle of the band will allow for greater separation between FS 
transmit and receive frequencies. For the 13 GHz Band, we exclude 
13150-13200 MHz because that spectrum is already reserved for 
television pickup operations in the top 100 markets. Furthermore, since 
such short-term operation is by definition secondary to other 
operations, broadcasters operating pursuant to Sec.  74.24 have no 
right to claim interference protection from regularly authorized 
operations.
    13. EIBASS and NAB propose additional conditions that we do not 
believe are necessary or appropriate. EIBASS asks that the Commission 
impose a requirement that the newcomer POFS station cannot degrade the 
noise threshold of any existing ENG-RO site by more than 0.5 dB. 
Although EIBASS's proposal may be an appropriate standard for 
evaluating a proposed FS facility, we decline to adopt it as part of 
our rules. Generally, in lieu of mandating specific interference 
criteria in our rules, we expect applicants and licensees to work out 
interference issues in the frequency coordination process. In addition, 
NAB asks that the Commission impose secondary status on FS operations 
in the 7 and 13 GHz Bands with respect to both existing and future BAS 
operations. We find that the rules we adopt fully protect existing BAS 
operations. With respect to future BAS operations, FS, BAS, and CARS 
will all be coprimary services required to protect pre-existing 
operations. We agree with NAB that there is an important public 
interest in broadcasters being able to report on breaking news events 
and emergency situations; but we also find there to be important public 
interests in the support that FS provides to vital broadband, public 
safety, and critical infrastructure uses.
    14. We also find that FS operations would be compatible with fixed 
BAS operations. In 2002, the Commission amended Parts 74 and 78 of its 
rules to harmonize many of the rules governing BAS and CARS with rules 
that already applied to FS licensees under part 101, allowing the use 
of digital transmissions, and requiring all fixed station applicants, 
except for those proposing operations in the 1990-2110 MHz band, to 
provide affected licensees and contemporaneous applicants with 30-day 
prior notifications and an opportunity to participate in frequency 
coordination before filing their applications with the Commission. It 
applied part 101 frequency coordination procedures to fixed BAS and 
CARS, and it did so with wide support from the affected industries. It 
rejected the request of one participant, SBE, that fixed BAS and CARS 
be allowed to continue relying upon informal coordination procedures. 
The subsequent ongoing shift from analog to digital transmission has 
accelerated the erosion of technical distinctions between BAS, CARS, 
and part 101 FS, and the use of consistent procedures for fixed 
stations in all of those services has played a vital role in the 
Commission's efforts to accommodate the increasing demand for closely-
packed microwave links in urban areas.
    15. We will allow mobile TV pickup licensees to continue to use 
informal coordination procedures within their service areas. Given the 
urgency of electronic newsgathering operations and the long history of 
successful real-time frequency coordination provided by local 
coordinators, the Commission previously found that there was little 
potential that interference would result from its continued function 
without imposing the formality of Sec.  101.103(d) procedures. In light 
of our decision not to allow FS within the service areas of mobile BAS/
CARS stations, there is no reason to require those stations to use 
formal coordination procedures.
    16. The rules we adopt today will open most of the 7 and 13 GHz 
bands to FS over more than half of the nation's land mass where 10 
percent of the population lives, while applying geographic restrictions 
on FS in those bands to minimize the potential for interference between 
FS facilities and TV pickup stations. Specifically, as reflected in the 
rules in Appendix A, we will allow part 101 FS stations to share the 7 
and 13 GHz bands subject to the following conditions:
    (1) We will not allow FS stations in the 7 and 13 GHz bands to 
locate their paths within the service areas of any previously licensed 
co-channel TV pickup stations.
    (2) We will require FS operators to coordinate any new fixed links 
with TV pickup stations within the appropriate coordination zones of 
any new fixed links.
    (3) As we require in other bands that fixed BAS and CARS share with 
part 101 fixed services, we will require all fixed BAS, fixed CARS and 
part 101 FS stations in the 7 and 13 GHz bands to engage in the same 
frequency coordination process that we require of all part 101 
services.
    (4) We will also reserve two 25-megahertz channels for BAS and CARS 
in the 7 GHz band (6975-7125 MHz) and two 25-megahertz channels in the

[[Page 59562]]

13 GHz band (13150-13200 MHz) nationwide to accommodate TV pickup 
stations covering events that occur outside the license areas of local 
BAS and CARS operations.
    17. Regarding the various alternative channelization plans proposed 
in the NPRM and the 7 and 13 GHz Public Notice, we have decided to 
retain the 25 megahertz bandwidth that presently applies to the 7 and 
13 GHz bands, as this channel-width best conforms to existing 
operations in the band. We recognize that FWCC recommends a mix of 10, 
20, and 30 megahertz channels similar to those available in other FS 
bands and asserts that such alignment will result in more readily 
available equipment. As FWCC and others have recognized, however, 
allowing 10 and 30 megahertz channels in a band with many pre-existing 
25 megahertz channels would preclude operation on multiple 25 megahertz 
channels, resulting in wasted spectrum. Many commenters recommend 
retaining a band plan based on the 25 megahertz channel bandwidth in 
order to prevent such wasted spectrum. To provide for a mix of larger 
and smaller channel-widths, we adopt an alternative proposal suggested 
by FWCC and permit FS to utilize 5, 8.33, and 12.5 megahertz channels.
    18. We also adopt WISPA's proposal to allow 50 megahertz channels 
in the 13 GHz Band. Since the 50 megahertz channels will be created 
from two 25 megahertz channels, we do not see any inefficiency that 
would result from 50 megahertz channels. We do not authorize 50 
megahertz channels in the 7 GHz Band because of the limited amount of 
spectrum available in that band.
    19. In addition, as proposed in the NPRM, we apply the existing FS 
minimum capacity and loading requirements to FS operators in the 6875-
7125 and 12700-13200 bands. We do not propose to apply those 
requirements to operations that are authorized under Parts 74 and 78, 
and we maintain the existing exemption from the capacity and loading 
requirements of part 101 for transmitters carrying digital video motion 
material. With respect to the remaining proposed technical rules for FS 
operation, we shall apply the same technical parameters that currently 
apply in the Upper 6 GHz band to the adjacent 6875-7125 MHz band, as 
proposed in the NPRM, because those bands are contiguous and should be 
able to use similar equipment. As noted above, we believe that applying 
the rules currently applicable in the Upper 6 GHz band to the 6875-7125 
MHz band will facilitate equipment development and provide consistency 
to FS licensees. Specifically, we will apply: (1) A maximum frequency 
tolerance of 0.005 percent; (2) a maximum transmitter power of +55 dBw; 
(3) the antenna standards currently applicable to Upper 6 GHz Band 
stations authorized after June 1, 1997, to the 6875-7125 MHz band; (4) 
the capacity and loading requirements contained in Sec.  101.141(a)(3) 
of the Commission's rules; and (5) the 17 kilometer minimum path length 
requirement of Sec.  101.143. We retain the rules that are already 
applicable to the 12700-13000 MHz band, with the exception of applying 
the minimum payload capacity and loading requirements that currently 
apply in the 11 GHz band to the 12700-13150 MHz band. Finally, with the 
addition of part 101 fixed services in the BAS bands, we believe it is 
necessary for our ULS database to include all fixed receive locations. 
We therefore will require BAS TV pickup licensees to record their 
stationary receive-only sites in ULS.
    20. We do not believe that allowing FS sharing in these bands will 
inhibit geographic expansion of BAS and CARS operations because, as a 
practical matter, these services have not been expanding geographically 
in recent years. Only one new BAS TV pickup license has been granted in 
the 7 GHz and 13 GHz bands in the past two years. Moreover, FWCC 
reports that BAS and CARS path and channel licensing, respectively, in 
the 13 GHz band have dropped sharply in the last decade. Furthermore, 
50 megahertz of spectrum in each band will remain exclusively for BAS 
and CARS use, and BAS and CARS applicants will have co-primary status 
and the ability to apply for new facilities in the shared portions of 
the bands. We also note that development of new technologies could 
provide broadcasters with new mechanisms to support of their electronic 
newsgathering functions in the future. In light of this record, we 
reject SBE's argument that FS should not be allowed in the 7 and 13 GHz 
Bands because of a need to preserve spectrum for geographic expansion 
of BAS and CARS.
    21. We find that permitting fixed microwave operations in the 7 and 
13 GHz bands will benefit operators and consumers alike and that these 
benefits outweigh any potential costs, which our rules have been 
designed to eliminate. Our actions today will enable these spectrum 
bands to be used more intensively for wireless backhaul, public safety, 
and other critical uses supported by microwave without limiting their 
use for BAS or CARS. With this additional spectrum available for their 
use, fixed microwave operators can establish more links in a given 
geographic area and increase the capacity of existing links, which in 
turn will facilitate deployment of wireless broadband services. 
Although it would be difficult to quantify with precision the benefits 
of opening the 7 and 13 GHz bands to FS, we find that those benefits 
outweigh the at most minimal cost of our actions.
    22. As a final matter, we reject SBE's allegation that we prejudged 
the decision to allow FS operations in these bands. We have carefully 
considered the issues raised concerning sharing between FS and mobile 
and temporary fixed BAS and CARS, analyzing the record received in 
response to the NPRM, as well as the record received in response to the 
Bureau's 7 and 13 GHz Comment Public Notice. As discussed in detail 
above, the rules we adopt today are clearly responsive to issues and 
concerns raised in this record.

B. Elimination of Final Link Rule

    23. In the NPRM, the Commission sought comment on eliminating the 
``final link'' rule, which prohibits broadcasters from using part 101 
stations as the final radiofrequency (RF) link in the chain of 
distribution of the program material to broadcast stations. In other 
words, the rule prevents the private FS stations from transmitting one 
type of content (``program material'') to one type of business 
(broadcasters) at one particular point in the transmission chain (the 
final RF link). The Commission questioned the sense of maintaining 
regulatory restrictions based on content as broadcasters and other 
microwave users move to digital-based systems. It expressed the belief 
that other existing rules would ensure productive use of spectrum and 
prevent broadcasters from crowding other FS licensees out of the band. 
The Commission also asked whether there were alternatives that could 
facilitate broadcaster access to FS spectrum while retaining the 
prohibition under certain circumstances.
    24. As proposed in the NPRM, we herein eliminate the ``final link'' 
rule. Our action removes from our rules an artificial distinction based 
solely on the type of content provided and directed solely at one type 
of business, and is consistent with our decision to allow FS to share 
in the 7 and 13 GHz BAS and CARS bands. We believe it makes little 
sense to maintain restrictions based on content as both FS licensees 
and broadcasters move to digital technologies. Furthermore, FS 
licensees do not object to elimination of the rule

[[Page 59563]]

so long as FS is granted access to BAS and CARS spectrum in the 7 and 
13 GHz bands, an action we are also taking in this Report and Order. 
Although AT&T expresses concern about the effect of eliminating the 
rule on spectrum availability, it does not object to legitimate 
broadcaster use of FS spectrum that is compatible with existing uses. 
While broadcasters have different opinions about the value of 
eliminating the rule, they support doing so.
    25. We find that there are significant benefits, and no costs, to 
eliminating the final link rule. We note that no commenter has 
identified any cognizable harm that would result from eliminating rule. 
With increasing adoption of digital technologies, the final link rule 
has become an outdated regulation that imposes unnecessary costs on 
broadcasters. In some instances, it may have required broadcasters to 
build two different, largely redundant, systems: One system to carry 
program material to the transmitter site, and a separate system to 
handle other data. Eliminating the rule will provide tangible benefits 
to broadcasters, by reducing unnecessary duplication of systems and 
facilities and enabling them to operate more efficiently. In such 
light, we find the benefits of eliminating the final link rule to be 
significant.

C. Adaptive Modulation

    26. Section 101.141(a)(3) of the Commission's rules establishes 
minimum payload capacities (in terms of megabits per second) for 
various channel sizes in certain part 101 bands. The underlying purpose 
of the rule is to promote efficient frequency use. Requiring links to 
carry a set amount of traffic (expressed in megabits/second) ensures 
that licensees will actually use facilities they apply for. Although 
the Commission has never quantified the time period over which 
licensees must comply with those standards, the industry has generally 
construed the payload requirements as applying whenever the link is in 
service.
    27. On May 8, 2009, Alcatel-Lucent, Dragonwave, Inc. Ericsson, 
Inc., Exalt Communications, FWCC, Harris Stratex Networks and Motorola 
(``Petitioners'') filed a request for interpretation of the 
Commission's rules. Petitioners asked the Bureau to interpret Sec.  
101.141(a)(3) of the Commission's rules to permit data rates to drop 
for brief periods below the minimum payload capacity specified in the 
rules, so long as the values mandated by the rules were maintained both 
in normal operation and on average. In the NPRM, the Commission 
determined that a rule change was needed to implement the policy 
interpretation sought in the FWCC Request because the policy 
interpretation was inconsistent with the plain language of the current 
rule, which has been interpreted to require compliance with the minimum 
payload capacity at all times when a system is in operation. The 
Commission concluded that it would be in the public interest to 
commence a rulemaking proceeding to facilitate the use of adaptive 
modulation. It noted that ``[a]llowing carriers to operate below the 
current efficiency standards for short periods when it is necessary to 
maintain an operational link, without a need for waiver, could enable 
carriers to save on costs and enhance reliability of microwave links.'' 
The Commission also recognized the benefits of allowing communications 
to be maintained during adverse propagation conditions.
    28. The Commission expressed a concern that the standard proposed 
in the FWCC Request, i.e., requiring compliance with the efficiency 
standards ``on average'' and ``during normal operation,'' would give 
licensees too much latitude to deploy inefficient systems. The 
Commission proposed a rule under which ``the minimum payload capacity 
requirements must be met at all times, except during anomalous signal 
fading, when lower capacities may be utilized in order to maintain 
communications.'' Finally, the Commission asked whether it should 
specify a minimum amount of time a link should be operational or a 
minimum efficiency standard below which an FS station may not fall.
    29. We conclude that it is in the public interest to amend our 
rules to facilitate the use of adaptive modulation. Most commenters 
agree that allowing the use of adaptive modulation will have 
significant benefits, including (1) Maintaining data throughput better 
than the zero rate that would otherwise be caused by a fade; (2) 
continuing to handle critical traffic when the link would otherwise 
cease to operate; and (3) maintaining network synchronization without 
the need for a time-consuming reboot. EIBASS, the only party that 
opposes allowing adaptive modulation, argues that any attempt to define 
by rule the conditions that justify adaptive modulation would open ``a 
Pandora's box.'' As discussed below, however, we believe that it is 
possible to craft rules that allow use of adaptive modulation while 
maintaining spectrum efficiency.
    30. Parties disagree about the protections that will be necessary 
to ensure that adaptive modulation will not be abused by operators that 
might seek to save money by operating inefficient links. Supporters of 
adaptive modulation recognize that there is a potential for abuse and 
offer a variety of proposals to address that problem. Several of them 
support the Commission's proposed rule language. FWCC opposes 
specifying a minimum percentage availability as a prerequisite for 
adaptive modulation because writing a minimum number into the rules 
will allegedly limit the freedom of link designers to specify 
parameters appropriate to a particular objective. It asks the 
Commission to impose one of several general conditions designed to 
maximize licensee flexibility. On the other hand, Aviat Networks, 
Comsearch, Motorola, Sprint, and Verizon argue that the rules should 
specify a minimum percentage of time when the link would be available, 
in order to allow use of modulations below the minimum payload 
capacity. Several parties propose a requirement that paths using 
adaptive modulation be designed to be available 99.995% or 99.999% of 
the time while complying with the minimum payload capacity, while FWCC 
and Motorola propose using a 99.95% standard.
    31. In an ex parte filing, Verizon argues that a 99.95% standard 
would undermine the Commission's goal in this proceeding to maximize 
the opportunity for fixed services to share existing bands. In 
particular, Verizon asserts that a 99.95% standard would create 
improper incentives to use smaller and lower performance antennas, 
which would significantly decrease spectral efficiency and increase the 
deployment costs and interference to future microwave licensees. 
Verizon also contends that a lower standard would increase the 
potential for interference conflicts among wireless backhaul licensees.
    32. We determine that applying a 99.95% standard strikes the 
appropriate balance between providing operators with the flexibility to 
address anomalous fading conditions while maintaining spectral 
efficiency. Specifically, we will require applicants seeking permission 
to use modulations below the minimums established in Sec.  
101.141(a)(3) of the Commission's rules to design their paths to be 
available at modulations compliant with the minimum payload capacity at 
least 99.95% of the time. In other words, applicants will have to 
design their paths to operate in full compliance with the capacity and 
loading requirements for all but 4.38 hours out of the year. A 
quantitative standard will provide an objective means for determining

[[Page 59564]]

compliance with the rules and eliminate some disputes. We are concerned 
that under FWCC's proposal, as well as the Commission's proposal in the 
NPRM, there would be insufficient safeguards to prevent the deployment 
of inefficient systems. While we understand FWCC's concern about 
providing sufficient flexibility to applicants, we do not believe that 
a 99.95% standard would be overly restrictive, because most paths are 
designed to a standard of at least 99.95% availability.
    33. We decline to apply the 99.999% standard, as Verizon and others 
advocate, because it would not provide meaningful relief, as it would 
only anticipate 5.26 minutes a year of impaired operations for a link. 
With a 99.999% standard, an applicant would be required to build a more 
expensive system designed to operate through severe weather, which 
could make deployment cost-prohibitive in some instances. By way of 
hypothetical, consider a single link in the 6 GHz band that would 
require 10-foot antennas with a 99.999% standard instead of 6-foot 
antennas under the 99.95% standard. The total cost increase over a ten-
year period in this hypothetical example could exceed $100,000. 
Furthermore, most systems use multiple links. We believe that the 
increased reliability and cost savings adaptive modulation will make 
possible under a 99.95% standard outweigh the marginal costs of a small 
temporary reduction in spectral efficiency. Therefore, we find the 
99.95% standard to be in the public interest.
    34. We reject Verizon's arguments that a 99.95% design standard 
will lead to increased interference or provide improper incentives to 
deploy inefficient systems. A temporary drop in a data rate, by itself, 
does not increase interference to other operators. Furthermore, we 
adopt a series of safeguards designed to protect existing systems. We 
adopt the NPRM's proposal to require licensees that plan to use 
adaptive modulation to indicate their intent in prior coordination 
notices. We agree with FWCC and AT&T that such a requirement will help 
the industry catch possible abuses and address any potential issues 
through the coordination process before the facilities are authorized. 
We will also require applicants to apply for all modulations they 
intend to use as part of their authorizations. Under the rule we adopt 
today, adaptive modulation can only be used during periods of anomalous 
signal fading, and the use must be necessary to allow licensees to 
maintain communications. Furthermore, systems must be designed to 
operate in full compliance with our existing capacity and loading 
requirements for all but 4.38 hours out of the year. Finally, we 
require applicants to use good engineering practice in determining the 
percentage of time a system can operate in compliance with the capacity 
and loading requirements. As suggested by FWCC, we will not dictate the 
use of a specific engineering model to determine availability but 
presume that use of Telecommunications Industry Association Bulletin 
TSB 10-F to determine availability is consistent with good engineering 
practice.
    35. To the extent Verizon is concerned about the increased use of 
smaller antennas, we note that our rules already contain protections 
designed to minimize interference from smaller antennas. Section 
101.115(b) of the Commission's rules establishes directional antenna 
standards designed to maximize the use of microwave spectrum while 
avoiding interference between operators. More specifically, the 
Commission's rules set forth certain requirements, specifications, and 
conditions pursuant to which FS stations may use antennas that comply 
with either the more stringent performance standard in Category A (also 
known as Standard A) or the less stringent performance standard in 
Category B (also known as Standard B). In general, the Commission's 
rules require a fixed microwave operator using a Category B antenna to 
upgrade if its antenna causes interference problems that would be 
resolved by the use of a Category A antenna. Thus, if adaptive 
modulation allows a licensee to use a Category B antenna, but that 
antenna would cause interference to (or receive interference from) 
another operation, the other operator can require the licensee to 
upgrade to a Category A antenna if the upgrade would resolve the 
interference issue. This rule applies even when the use of the Category 
B antenna precedes use by the other licensee.
    36. Further, we decline to grant Verizon's request that we 
establish additional equipment-based restrictions on adaptive 
modulation--including requiring all licensees to operate at no less 
than two-thirds of the minimum payload capacity values established in 
Sec.  101.141(a)(3). We believe that the time-based design standard for 
link availability, along with the other safeguards in the rule we adopt 
today, will adequately prevent the proliferation of inefficient systems 
and find that imposing additional requirements would limit licensee 
flexibility and place undue regulatory burdens on licensees. Finally, 
we reject Verizon's proposal to limit the transmit power and power 
spectral density when using non-compliant modulations to no more than 3 
dB greater than the values of the worst-case (highest total signal 
power, highest power density) values of the available compliant 
modulations. An applicant can specify multiple emissions/modulation 
schemes, but they all must have the same EIRP unless they license 
separate paths. The gains realized from the use of adaptive modulation 
are related to the lower receiver threshold with lower order modulation 
schemes, not by using higher power with lower order modulation.
    37. We will not require licensees to log instances when they use 
adaptive modulation or to include that information in station records. 
We are establishing the minimum availability standard as a path design 
requirement, not as an operational requirement. We believe that the 
best time to enforce the rule is before equipment is deployed, not 
after. Once an operator has made the investment required to deploy 
adequate equipment in a well-designed link, it should have every 
incentive to operate that equipment consistent with the design 
standard. It is possible, of course, that unusual weather conditions 
could require some operators to use adaptive modulation for longer 
intervals than our design standard specifies. However, we see no reason 
to penalize operators for events that are beyond their control. In that 
context, we believe that the burden imposed by requiring the logging of 
adaptive modulation episodes would outweigh any potential benefit of 
the information.
    38. We conclude that allowing licensees to use adaptive modulation 
will confer substantial benefits on operators and their customers, 
while imposing minimal, if any, cost. Adaptive modulation will allow 
operators to maintain critical links during fade conditions, decreasing 
the number of microwave service outages they experience, and the 
detrimental impacts that these outages may cause for consumers. 
Furthermore, by reducing service outages, use of adaptive modulation 
may permit operators to avoid costs and delays associated with 
reinitializing service. The rules we adopt are designed to 
appropriately restrict use of adaptive modulation to provide fixed 
microwave operators additional flexibility to deal with adverse 
conditions while ensuring that their systems continue to be operated 
efficiently.

[[Page 59565]]

D. Auxiliary Stations

    39. In the NPRM, the Commission sought comment on a proposal to 
permit greater reuse of scarce microwave resources by permitting FS 
licensees to coordinate and deploy multiple links--a primary link and 
``auxiliary'' links. The idea had its origin in a petition filed by 
Wireless Strategies, Inc. (WSI) asking the Commission to issue a 
declaratory ruling ``confirming that a Fixed Service licensee is 
permitted to simultaneously coordinate multiple links whose transmitter 
elements collectively comply with the Commission's antenna standards 
and frequency coordination procedures.'' Although the Commission denied 
WSI's petition for declaratory ruling, determining that WSI's requested 
interpretation was inconsistent with its current rules, it found WSI's 
concept to be ``worthy of further consideration.''
    40. Generally, the concept of auxiliary stations rests on the fact 
that a point-to-point microwave transmitter typically radiates energy 
outward in a keyhole-shaped signal pattern. This signal pattern 
precludes other stations from sharing the same spectrum in that area, 
if placement of the new transmitter would interfere with the original 
licensee's ability to receive its signal at its downlink station. The 
auxiliary stations proposal contemplates placement of multiple smaller 
transmitters within the signal pattern of the main link.
    41. The Commission sought to clarify debate on the merits of the 
proposal by proposing specific rule changes intended to capture WSI's 
underlying concept, while preserving existing part 101 practices, 
policies and expectations to the greatest extent possible. Accordingly, 
the Commission sought comment on allowing FS licensees to deploy 
auxiliary stations under the following conditions, among others:
     Each auxiliary station would be required to operate on the 
same frequencies as the main licensed link.
     Auxiliary stations would not be allowed to cause any 
incremental interference to other primary links, i.e., they would not 
be allowed to cause any more interference to other primary stations 
than the main link would cause.
     Auxiliary stations would be secondary in status and would 
have no right to claim protection from interference from any primary 
stations.
     Auxiliary stations would have to be coordinated in advance 
with other licensees and applicants pursuant to the frequency 
coordination process specified in Sec.  101.103 of the Commission's 
rules.
     Auxiliary stations would not be subject to the loading, 
antenna standards or minimum path length requirements that apply to 
main links.
    42. In seeking comments on those proposals, we asked commenters to 
provide (1) Estimates of how many systems they contemplated operating 
with auxiliary stations, (2) information on whether such systems would 
typically be deployed in urban or rural areas, (3) the types of uses to 
which such systems would be put, (4) the distances they contemplated 
between the auxiliary stations and their main links, and (5) the 
relative amounts of traffic that they expected to carry on main links 
versus the auxiliary links. We also asked commenters to discuss the 
possibility that services where geographic area licensing already 
exists--such as the Local Multipoint Distribution Service, the 24 GHz 
Service, or operations in the 38.6-40.0 GHz band (39 GHz band)--might 
provide a more reasonable way of accommodating any need for auxiliary 
stations.
    43. Most commenters oppose the proposal to allow auxiliary 
stations. They argue that auxiliary stations will increase congestion, 
cause greater interference, and create opportunities for gaming/
manipulation that would be detrimental to competition and efficient 
deployment of microwave facilities. Supporters contend that auxiliary 
stations could result in more efficient use of spectrum and could 
support a variety of innovative uses.
    44. We decline to adopt at this time our proposal to allow use of 
auxiliary stations in FS bands. We lack a sufficient basis for 
concluding that auxiliary stations could coexist with FS stations 
without causing interference to primary FS stations. Moreover, we are 
concerned that adopting the auxiliary stations proposal would create a 
perverse incentive for applicants to propose excessive power for their 
primary transmitters, wasting spectrum in an effort to stake out as 
much territory as possible for auxiliary stations. Finally, using upper 
microwave bands such as LMDS, 24 GHz, and 39 GHz appears to be a viable 
alternative for the type of operations contemplated under the auxiliary 
station proposal.
    45. Proponents of auxiliary stations largely operate on the premise 
that FS spectrum is ``wasted,'' particularly in urban areas. We 
disagree with this premise because there is already extensive reuse of 
FS spectrum. It is even possible to re-use a frequency at exactly the 
same location, under existing procedures.
    46. As mentioned above, there is an insufficient record for us to 
conclude that auxiliary stations can coexist with existing microwave 
operations without causing interference. We reject, however, the 
argument that auxiliary stations should not be allowed solely because 
authorizing them would cause further congestion to spectrum that is 
already congested. If auxiliary stations could coexist with other 
microwave operations, we would view the ability to use spectrum more 
intensively as a positive development.
    47. Most opponents of the auxiliary stations concept argue that it 
would be inefficient to intermix frequency division duplex (FDD) 
currently used in the microwave bands and time division duplex (TDD) 
operations, as WSI proposes. Comsearch points out that intermixing FDD 
and TDD increases the types of potential interference that may occur, 
including direct interference between sites, co-site interference, and 
reflective interference. In response, WSI relies on the ability of 
smart antennas to adapt an antenna pattern and use spectrum more 
efficiently. As noted by EIBASS, however, WSI has not provided any 
detailed information concerning the physically small, phased-array 
microwave antenna that it asserts would be suitable for auxiliary 
stations. Indeed, WSI has allegedly ignored requests from SBE and NSMA 
for credible proof of the performance that WSI ascribes to that 
antenna.
    48. Furthermore, while WSI has repeatedly claimed that TDD-style 
auxiliary station operations would use spectrum more efficiently than 
existing FDD-style microwave operations, it has offered insufficient 
analysis of how auxiliary stations would co-exist with existing 
microwave operations. In the NPRM, the Commission had emphasized its 
intention to avoid interference to existing operations and 
``maintaining the reliability and integrity of existing systems.'' 
Furthermore, the proposal to require prior coordination for auxiliary 
stations and to make auxiliary stations secondary to existing primary 
links does not adequately address the potential for interference but 
instead could result in situations where incumbent microwave licensees 
could face the costly and time-consuming process of identifying and 
resolving complex interference issues.
    49. An additional consideration is that adopting the auxiliary 
stations proposal could create a perverse incentive for applicants to 
propose excessive power for their primary transmitters, creating a more 
diffuse antenna pattern, and thus precluding other microwave operators 
from coordinating spectrum or operating in that larger area. In the 
NPRM, the

[[Page 59566]]

Commission sought comment on that issue. EIBASS, San Mateo, and Verizon 
point to a prior coordination notice submitted by OEM as an example of 
how auxiliary stations could result in an inefficient use of spectrum 
and preclude frequency sharing. Furthermore, several licenses issued to 
WSI proposed the same very high EIRP level of 84.7 dBm. The proponents 
of auxiliary stations have not adequately explained these 
circumstances, or proposed any ways in which the Commission could 
prevent or counteract manipulation of the auxiliary stations mechanism 
in this manner. Thus, we remain concerned about the compatibility of 
auxiliary stations with existing operations.
    50. Another reason we decline to authorize auxiliary stations in FS 
bands is that such operations can be accommodated in several upper 
microwave bands for which the Commission has issued geographic area 
licenses, including Local Multipoint Distribution Service (LMDS) 24 
GHz, and 39 GHz, in which licensees may freely deploy links as they see 
fit.
    51. While we do not authorize auxiliary stations in existing FS 
bands today, we encourage proponents of the auxiliary stations concept 
to continue working with other interested stakeholders to develop the 
concept. We note that proponents of the auxiliary stations concept 
believe that auxiliary stations would support such varied uses as the 
provision of backhaul, telecommunications support for small intelligent 
data centers, and rural telemedicine applications. We believe 
proponents of auxiliary stations should take advantage of the 
opportunities presented by 24 GHz, LMDS, and 39 GHz bands to develop 
and deploy auxiliary stations. To the extent parties believe further 
testing is needed to develop the auxiliary stations concept, we 
encourage those parties to cooperate in testing and development 
efforts, to develop a better factual record regarding the interaction 
of potential auxiliary station configurations with existing incumbent 
microwave systems, and with microwave applicants yet to come.

III. Memorandum Opinion and Order

    52. In the Memorandum Opinion and Order, we address various other 
proposals offered in response to the NOI that we do not intend to 
consider further at this time, either because the proposals lack 
specificity, are outside the scope of this proceeding, were previously 
considered by the Commission, or are not ripe for consideration at this 
time.

A. Local Multipoint Distribution Service

    53. TIA recommends that the Commission consider harmonizing its 
approach to the 27.5-28.35 GHz Local Multipoint Distribution Service 
(LMDS) band with recent proposals by the Radio Advisory Board of Canada 
(RABC). TIA says that Canada has designated that band for Local 
Multipoint Communications Systems (LMCS), a service similar to LMDS. In 
an effort to maximize use of the currently underutilized LMCS spectrum, 
the RABC has proposed to apply site-based licensing in the band, with 
technical rules that favor frequency division duplex operations on 
bandwidths ranging from 10 to 50 megahertz. TIA argues that harmonizing 
U.S. rules with Canada's would establish a broader market for equipment 
and services, thus improving the band's market potential through 
economies of scale. NSMA also supports this proposal.
    54. We decline to take any action on this proposal at this time. No 
current LMDS licensee supports the proposal. Furthermore, most LMDS 
licensees have received an extension until June 1, 2012 to demonstrate 
buildout. While LMDS licensees can deploy point-to-point services, the 
majority of deployments that have been reported to the Commission at 
this time have involved point-to-multipoint services. We believe it 
would be premature to undertake the type of review contemplated by TIA 
and NSMA before current licensees have had an opportunity to build out 
their systems under the existing rules.

B. Wireless Communications Service

    55. Sirius XM suggests that the Commission encourage use of the 2.3 
GHz Wireless Communications Service (WCS) band for wireless backhaul 
operations because it would present substantially fewer interference 
concerns to adjacent licensees than the mobile operations. In 2010, the 
Commission adopted technical rules for the 2.3 GHz band that would 
allow WCS licensees to offer mobile broadband services while limiting 
the potential for harmful interference to incumbent services operating 
in adjacent bands such as Sirius XM. In response, Sirius XM and other 
parties filed petitions for reconsideration asking, among other things, 
that the Commission reconsider several technical rules that were 
adopted. Given that the issue of the appropriate technical rules for 
the 2.3 GHz band is currently pending in WT Docket No. 07-293, we 
decline to consider it in the instant proceeding.

C. Multichannel Video and Data Distribution Service

    56. DTV Norwich, LLC (DTV Norwich), a licensee in the Multichannel 
Video Distribution and Data Service (MVDDS), asks the Commission to 
allow MVDDS licensees to utilize higher power to provide point-to-point 
services. MVDDS is a fixed wireless terrestrial service at 12.2-12.7 
GHz that may be used to provide one-way digital fixed non-broadcast 
service, including one-way direct-to-home/office wireless service. 
MVDDS is authorized on a co-primary, non-harmful interference basis 
with incumbent Direct Broadcast Satellite Service (DBS) providers and 
on a co-primary basis with non-geostationary satellite orbit fixed-
satellite service (NGSO FSS) stations. MVDDS is licensed on a 
geographic area basis according to Nielsen's 2002 Designated Market 
Areas and several FCC-defined areas.
    57. DTV Norwich argues that MVDDS point-to-point operations at 
higher power levels may be possible without causing interference to DBS 
and NGSO FSS. According to DTV Norwich, however, ``at existing power 
levels, the point-to-point path `hops' would simply be too short to be 
economically viable.''
    58. DTV Norwich's proposal lacks sufficient specificity to be 
worthy of further consideration at this time. The Commission adopted 
rules for MVDDS based on the extensive record of the MVDDS rule-making 
proceeding, which included a congressionally mandated independent 
analysis of potential MVDDS interference to DBS. These rules include 
detailed frequency coordination procedures, interference protection 
criteria, and limitations on signal emissions, transmitter power 
levels, and transmitter locations. The rules limit the effective 
isotropic radiated power (EIRP) for MVDDS stations to 14.0 dBm per 24 
megahertz (-16.0 dBW per 24 megahertz). To accommodate co-primary DBS 
earth stations, an MVDDS licensee shall not begin operation unless it 
can ensure that the equivalent power flux density (EPFD) from a 
proposed transmitting antenna does not exceed the applicable EPFD limit 
at any DBS subscriber location.
    59. Under these circumstances, DTV Norwich's proposal is far too 
general to warrant further consideration. The Commission found that the 
power limits and other technical requirements would ensure that any 
interference caused to DBS customers will not exceed a level that is 
considered permissible. Furthermore, the Commission also contemplated 
that MVDDS service

[[Page 59567]]

providers might petition for waiver(s) of the technical rules, and 
required that the petitioning party must ``submit an independent 
technical demonstration of its equipment and technology.'' In denying 
petitions to reconsider the power limits, the Commission reiterated 
that MVDDS providers may seek waivers of the general MVDDS limits. DTV 
Norwich's proposal, if considered as a waiver request, would not meet 
that standard because it does not provide any technical analysis to 
support its claims. Indeed, DTV Norwich does not identify the power 
levels it wishes to use. For the reasons listed above, we decline to 
consider DTV Norwich's proposal.

D. Revising Technical Rules in Bands Above 15 GHz

    60. Sprint recommends that the Commission develop more specific 
technical rules governing the use of spectrum masks above 15 GHz, which 
would allow for less variance in the interpretation of the Commission's 
rules by equipment vendors and enable more frequencies to be used while 
also reducing interference. Sprint also asks that the Commission 
establish maximum power limits based on the link distance for the bands 
above 15 GHz. No other commenter responded to this suggestion. We 
decline to take action at this time because (1) Sprint has not made a 
concrete showing that there is a problem requiring Commission 
intervention, and (2) Sprint does not offer specific proposals for 
changes to our rules. We reserve the right to consider the matter 
further if additional information is brought to our attention.

E. Modification of Existing Licensing Practices and Procedures

    61. XO Communications (XO) expresses concern ``that substantial 
portions of spectrum are made available to the public in a manner that 
neither promotes * * * efficient spectrum use nor captures the value of 
this spectrum for the United States Treasury.'' XO contends that making 
``these frequencies available to interested parties at virtually no 
cost on a first-come, first-served basis * * * undercut[s] the value of 
existing LMDS spectrum licenses.'' XO suggests that the Commission 
should consider changing its procedures for licensing point-to-point 
services to promote more efficient spectrum use by implementing a 
licensing regime under which mutually exclusive applications would be 
accepted and resolved through competitive bidding, or alternatively, 
applying spectrum usage fees, and by making changes to the Universal 
Licensing System (ULS) database. XO argues that adopting competitive 
bidding or spectrum fees would give licensees greater economic 
incentives to use their spectrum fully and efficiently. XO also states 
that the microwave link information provided in the ULS database for 
LMDS spectrum relative to the more extensive technical information 
provided for common carrier point-to-point microwave links may 
discourage customers from seeking to lease LMDS spectrum and that we 
should make changes to the ULS to place users of LMDS and common 
carrier microwave spectrum on an equal footing.
    62. We are not persuaded that we should adopt XO's proposed changes 
to our licensing procedures for point-to-point services at this time. 
XO has provided no factual basis upon which to decide that the existing 
frequency coordination-based licensing regime, under which we accept 
applications for each microwave link or path, leads to inefficient use 
of this spectrum or is otherwise no longer in the public interest. 
While we recognize that accepting mutually exclusive applications that 
are resolved through competitive bidding is often an efficient way to 
assign licenses, we do not believe that the spectrum coordination 
regime for point-to-point services currently in effect, which does not 
result in the acceptance of mutually exclusive applications, has failed 
thus far either to promote efficient spectrum use or capture its value. 
We note, further, that the Commission may continue to use licensing 
schemes and other means to avoid mutual exclusivity if public interest 
goals are met. Moreover, we decline to implement XO's proposal to 
impose fees for the use of this spectrum. As the Commission has 
previously noted in other proceedings, we may lack the authority to 
impose certain user fees. Finally, to the extent that XO seeks to 
eliminate what it sees as an ``economic disparity'' between common 
carrier microwave spectrum and existing LMDS spectrum, we observe as an 
initial matter that there are significant differences between these 
spectrum bands. To the extent that XO's proposals regarding possible 
changes to the ULS are motivated by its desire to lease its LMDS 
spectrum for point-to-point uses, we are unaware of any obstacles that 
would prevent an LMDS licensee such as XO from making additional 
detailed technical information available to potential users seeking to 
lease spectrum for point-to-point use.

F. Siting Issues

1. OTARD
    63. PCIA states that ``local regulations continue to be a 
significant barrier to the collocation of antennas on existing towers'' 
and recommends that the Commission examine its authority to streamline 
the collocation review process by restricting the ability of local 
authorities to review the placement of wireless antenna. We deny PCIA's 
request. In 2000, the Commission determined that section 332(c)(7) of 
the Communications Act provides state and local governments with the 
authority to regulate the placement, construction, and modification of 
carrier hub sites and relay antennas. PCIA is asking the Commission to 
modify this decision. PCIA, however, has not presented any change of 
circumstances, legal precedent, or statutory authority to support this 
change, so we see no reason to revisit the Commission's decision in the 
2000 OTARD Report and Order.
2. Colocation of Microwave Facilities
    64. XO states that some carriers violate section 251(c)(6) of the 
Communications Act by hindering XO's efforts to expand its collocation 
facilities at incumbent LEC central offices to include microwave 
transmission equipment. XO contends that ``the Commission should 
expressly confirm that the collocation of microwave transmission 
facilities as proposed by XO was one of the arrangements contemplated 
by section 251(c)(6) of the [Communication] Act.'' We find that the 
limited information provided by XO on this issue does not provide us 
with a sufficient basis upon which to act at this time. This decision 
does not preclude XO from filing a more complete submission as it deems 
appropriate.

G. Universal Service

    65. FiberTower suggests that the Commission utilize the Universal 
Service Fund to make wireless backhaul available to qualifying areas 
and for qualifying purposes. In February of 2011, the Commission 
proposed to revise the Universal Service Fund. In that item, the 
Commission asked whether it should modify the universal service rules 
to provide additional support for middle mile costs and what effect 
would middle mile support have on incentives for small carriers to 
develop regional networks that provide lower cost, higher capacity 
backhaul capability. Given that the issue of providing Universal 
Service funding for wireless backhaul service is currently pending in 
the Universal Service

[[Page 59568]]

proceeding, we decline to address this issue in this proceeding but are 
incorporating FiberTower's comments