Unlicensed Devices and Equipment Approval, 40678-40680 [2014-16420]
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Federal Register / Vol. 79, No. 134 / Monday, July 14, 2014 / Rules and Regulations
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 2 and 15
[ET Docket No. 03–201; FCC 14–80]
Unlicensed Devices and Equipment
Approval
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
This document terminates the
above captioned proceeding on
unlicensed transmitter operations.
Based on the record and considering
that the Commission has not received
any additional requests in recent years
advocating the need for a spectrum
etiquette requirement for unlicensed
operations in the requested bands, the
Commission concludes that adoption of
such a requirement does not merit
further evaluation at this time. In
terminating this proceeding, the
Commission also dismissed a pending
petition for reconsideration.
DATES: Effective August 13, 2014.
FOR FURTHER INFORMATION CONTACT:
Hugh Van Tuyl, Office of Engineering
and Technology, 202–418–7506,
Hugh.VanTuyl@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order
and Second Memorandum Opinion and
Order, ET Docket No. 03–201, FCC
1480, adopted June 9, 2014 and released
June 10, 2014. The full text of this
document is available for inspection
and copying during normal business
hours in the FCC Reference Center
(Room CY–A257), 445 12th Street SW.,
Washington, DC 20554. The complete
text of this document also may be
purchased from the Commission’s copy
contractor, Best Copy and Printing, Inc.,
445 12th Street SW., Room, CY–B402,
Washington, DC 20554. The full text
may also be downloaded at:
www.fcc.gov. People with Disabilities:
To request materials in accessible
formats for people with disabilities
(braille, large print, electronic files,
audio format), send an email to fcc504@
fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202–
418–0530 (voice), 202–418–0432 (tty).
SUMMARY:
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Summary of Order and Second
Memorandum Opinion and Order
1. By this Order, the Commission
terminates the above-captioned
proceeding on unlicensed transmitter
operations. The only substantive issues
pending in this proceeding concern
whether to adopt a specific ‘‘spectrum
etiquette’’ requirement for unlicensed
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15:56 Jul 11, 2014
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transmitters operating in the 902–928
MHz band, and whether there might be
need for a similar requirement with
respect to unlicensed operations in the
2.4 GHz and 5.8 GHz bands. Based on
the record before us, and considering
that the Commission has not received
additional requests in recent years
advocating the need for a spectrum
etiquette requirement for unlicensed
operations in these bands, the
Commission concludes that adoption of
such a requirement in these bands does
not merit further evaluation at this time.
In terminating this proceeding, the
Commission also dismissed a pending
petition for reconsideration.
2. Part 15 of the Commission’s rules
governs the operation of unlicensed
radiofrequency devices, including the
technical requirements for their use. As
a general condition of operation, part 15
devices may not cause harmful
interference to authorized radio services
and must accept any interference that
they receive.
3. In 2003, the Commission initiated
a Notice of Proposed Rulemaking in this
proceeding to review and update certain
sections of parts 2 and 15 of our rules
pertaining to technical parameters and
measurement procedures related to
unlicensed device operations in the
902–928 MHz band, the 2.4 GHz band,
and the 5.8 GHz band. The Commission
also invited comment on whether it
should consider any methods to ensure
efficient spectrum usage by unlicensed
devices, including the ‘‘spectrum
etiquette’’ sharing conditions developed
by the industry for the operation of
unlicensed Personal Communications
Service (PCS) devices operating in the
1920–1930 MHz band. A spectrum
etiquette establishes a set of steps and
protocols that a device must follow
before it may access the spectrum. Such
an etiquette may require that a device
monitor the spectrum in which it
intends to operate and begin
transmission only if no signal above a
specified threshold is detected.
4. In July 2004, the Commission
adopted a Report and Order, that
modified several rules pertaining to
these bands. The Commission, however,
declined to impose any type of
spectrum etiquette for any Part 15
bands. The Commission noted that most
commenting parties had asserted that a
spectrum etiquette requirement would
tend to limit development of unlicensed
operations. It also expressed concern
that an etiquette requirement applying
only to new devices in these heavily
used unlicensed bands may not be
useful in facilitating spectrum sharing if
the large number of devices already
authorized and used in the band were
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Fmt 4700
Sfmt 4700
not required to follow the etiquette. The
Commission also noted that the thenexisting regulations, which did not
require a spectrum etiquette, had
resulted in very efficient use of
unlicensed spectrum.
5. MO&O and Further Notice. In June
2007, the Commission issued its MO&O
and Further Notice, which addressed
Cellnet’s petition and the spectrum
etiquette issue. The Commission
dismissed Cellnet’s petition on the
grounds that the petition and Cellnet’s
subsequent filings did not satisfy the
Commission’s rules for specific relief
and timeliness; it noted that not until a
2006 ex parte presentation, filed over a
year past the reconsideration period, did
Cellnet describe a specific spectrum
etiquette that it believed the
Commission should require for digitally
modulated spread spectrum transmitters
operating in the 902–928 MHz band
under § 15.247 of the rules.
6. While the Commission focused the
further notice on a spectrum etiquette
that would apply only to the 902–928
MHz band, the Commission also
inquired generally about whether there
might be a similar need to adopt rules
for unlicensed devices in the 2.4 GHz
and 5.8 GHz bands. The Commission
stated, however, that industry standards
were being developed to facilitate
sharing in these bands and that it did
not intend to disrupt this process.
Discussion
7. The Commission is not persuaded
of the need to adopt a spectrum
etiquette requirement for unlicensed
operations in the 902–928 MHz band. In
addition to the record before us,
subsequent developments concerning
unlicensed operations in the 902–928
MHz band also counsel against adoption
of a spectrum etiquette requirement.
8. Since June 2007, the Commission
has approved more than 2,500
unlicensed devices operating in the
902–928 MHz band. This indicates that
the band continues to be heavily used
under the existing rules for unlicensed
operations. The Commission observes
that manufacturers have developed a
wide variety of different types of
products under the current part 15
rules. Consistent with the Commission’s
decision in 2004 not to adopt an
etiquette requirement, it is not
concerned that adoption of such a
requirement could impede design
flexibility and innovation of a wide
variety of devices that the current rules
enable. In declining to adopt a spectrum
etiquette requirement, the Commission
also notes that manufacturers and users
of part 15 devices can and do take
various steps when designing and
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Federal Register / Vol. 79, No. 134 / Monday, July 14, 2014 / Rules and Regulations
mstockstill on DSK4VPTVN1PROD with RULES
deploying their equipment to promote
the effective and efficient sharing
between digitally modulated devices
and other part 15 devices that operate in
the 902–928 MHz band. For example,
devices can tune to less congested
frequencies or hop to a number of
different frequencies to avoid
interference. In addition, device
operators can reduce the separation
distance between the transmitter and
receiver in areas where the 902–928
MHz spectrum is heavily used.
9. The Commission agrees with
commenters who argued that the large
number of existing devices in the 902–
928 MHz band would limit the
usefulness of a new etiquette since
previously approved devices would not
be required to comply with an etiquette.
Also, no party described an etiquette
that would be compatible with all types
of devices that currently operate in the
band. Further, as a number of
commenters noted, an etiquette could
potentially stifle innovation or preclude
the use of certain types of devices in the
902–928 MHz band.
10. The Commission focused the
further notice on whether it should
adopt a spectrum etiquette requirement
for unlicensed operations in the 902–
928 MHz band; only a few commenters
commented on a spectrum etiquette
requirement in either the 2.4 GHz or 5.8
GHz bands. The Commissions agrees
that there is no need for an etiquette in
these bands.
11. The record before us does not
establish the need for a spectrum
etiquette requirement in the 902–928
MHz band. Nor is there any basis before
us that establishes a need for adoption
of a spectrum etiquette requirement for
either the 2.4 GHz band or 5.8 GHz
band. The Commission concludes that
adoption of this type of requirement in
these bands would not serve the public
interest at this time.
Second Memorandum Opinion and
Order
12. The 2004 Report and Order in this
proceeding made several changes to part
15 of the rules regarding unlicensed
operations in the 902–928 MHz band,
the 2.4 GHz band, and the 5.8 GHz
band. In 2004, Warren C. Havens and
Telesaurus Holdings GB LLC (Havens),
which are licensees in the
Multilateration Location and Monitoring
Service (M–LMS) in portions of the
902–928 MHz band, filed a petition for
reconsideration of that order. Havens
requested that the Commission suspend
the rule changes adopted for unlicensed
devices for operation in the 902–928
MHz band until such time as the
Commission commenced and completed
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15:56 Jul 11, 2014
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a formal inquiry, including notice and
comment, with regard to the potential
effect of such changes to M–LMS
licensees that operate in portions of the
band. Havens claimed that the revised
part 15 rules would lead to increased
spectrum use of the 902–928 MHz band
by unlicensed devices and thus would
adversely affect M–LMS systems by
changing the ‘‘regulatory coexistence’’
between part 15 and M–LMS operations.
Havens asserted that the Commission
should have made no changes in the
part 15 rules regarding with 902–928
MHz band without a rulemaking on part
90 M–LMS rules.
13. In the 2007 MO&O and Further
Notice, the Commission dismissed the
Havens petition, declining to suspend
the part 15 rule changes. The
Commission first noted that Havens did
not raise any objections to any proposals
for revising part 15 rules in the Notice
of Proposed Rulemaking prior to the
filing of the Havens petition. The
Commission explained that, pursuant to
§ 1.429(b) of its rules, a petition for
reconsideration that relies on facts not
previously presented to the Commission
will be granted only if: (1) The facts
relied on relate to events which have
occurred or circumstances which have
changed since the last opportunity to
present them to the Commission; (2) the
facts relied upon were unknown to the
petitioner until after his last opportunity
to present them to the Commission, and
he could not through the exercise of due
diligence have learned of the facts in
question prior to such opportunity; or
(3) the Commission determines that
consideration of the facts relied on is
required in the public interest. The
Commission concluded that Havens
failed to address why it did not
previously participate in this
proceeding or claim that any of these
three conditions were met. In addition,
the Commission noted that § 1.429(c) of
the Commission rules require that a
petition for reconsideration state with
particularity the respects in which the
petitioner believes the action taken
should be changed. The Commission
pointed out that Havens did not identify
the particular rule changes that should
be suspended, and instead provided
only a mere statement of belief that the
part 15 rule changes in this proceeding
would lead to increased use of part 15
devices in the 902–928 MHz band and
thus would result in adverse effects on
M–LMS operations that also operate in
the portions of the band. The
Commission found that Havens had
provided no evidence or analysis to
support this assertion. The Commission
also noted that Havens had raised
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40679
essentially the same arguments in its
petition for reconsideration in ET
Docket No. 99–231 concerning changes
to the part 15 rules for spread spectrum
devices, which the Commission had
rejected in that proceeding.
Accordingly, the Commission dismissed
the Havens petition.
14. The Commission also noted that a
proceeding had been initiated in 2006 to
reexamine the rules for the M–LMS
operating in the 902–928 MHz band
(WT Docket No. 06–49), and that
proceeding had been prompted partly in
response to a petition for rulemaking by
Progeny LMS, LLC (Progeny), another
M–LMS licensee. The Commission
stated that the M–LMS proceeding was
the appropriate forum for addressing
concerns raised by Havens about the M–
LMS rules, including the operational
relationship between Part 90 M–LMS
devices and part 15 unlicensed devices.
The Commission also noted that Havens
had already participated in the
proceeding to consider Progeny’s earlier
petition for rulemaking.
15. In July 2007, on behalf of
Telesaurus, Warren Havens filed a
petition for reconsideration of the
Commission’s dismissal of the Havens
petition for reconsideration in the
MO&O and Further Notice. Havens
asserts that the Commission’s decision
dismissing the previous Havens petition
for reconsideration should be reversed
and that the relief that Havens had
requested in the previous petition
challenging the 2004 Report and Order
should now be granted on the basis of
the new petition. Havens claims that the
2007 petition for reconsideration is
based on ‘‘new facts.’’ The arguments
raised by Havens in the petition for
reconsideration of the Commission’s
dismissal of the earlier petition for
reconsideration raise no new relevant
facts, and do not provide grounds for
our reconsideration of the Commission’s
prior decision dismissing Havens earlier
petition. The Commission dismisses the
pending Havens petition as repetitious.
16. In dismissing this latest petition,
the Commission relies on § 1.429 of the
Commission’s rules, as had the earlier
Commission when dismissing the
previous Havens petition for
reconsideration in this proceeding. To
the extent a petitioner seeks
reconsideration of final orders in a
rulemaking proceeding, the petitioner
may rely on new facts and arguments
not previously presented to the
Commission. The Commission may
grant such a petition only if: (1) The
facts relied on relate to events which
have occurred or circumstances which
have changed since the last opportunity
to present them to the Commission; (2)
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40680
Federal Register / Vol. 79, No. 134 / Monday, July 14, 2014 / Rules and Regulations
the facts relied upon were unknown to
the petitioner until after its last
opportunity to present them to the
Commission, and it could not through
the exercise of due diligence have
learned of the facts in question prior to
such opportunity; or (3) the Commission
determines that consideration of the
facts relied on is required in the public
interest. The Commission’s rules also
require that a petition for
reconsideration state with particularity
the respects in which the petitioner
believes the action taken should be
changed. Except in circumstances where
the Commission has modified rules in
response to a petition for
reconsideration, a second petition for
reconsideration may be dismissed as
repetitious.
17. In the pending petition, Havens
argues that the Commission erred in
2007 when dismissing the previous
petition, and asserts alleged ‘‘new facts’’
as bases for its petition. In particular,
Havens repeats arguments made in the
earlier petition for reconsideration—
namely that the Commission could not
properly make any part 15 rule changes
applicable to the 902–928 MHz band
that were potentially adverse to M–LMS
operations without a notice and
comment proceeding on M–LMS.
Havens again asserts that any rule part
15 rule changes are changes to the M–
LMS rules. Havens also reasserts that
there was no obligation for Havens to
participate earlier in this part 15
proceeding. As for alleged ‘‘new facts,’’
Havens first asserts that the
Commission’s initiation in 2006 of the
proceeding seeking comment on
possible changes to the M–LMS rules for
operation in the 902–928 MHz band,
which could affect part 15 operations in
the band, demonstrates the validity of
its argument in its petition that the M–
LMS rules affect part 15 and vice versa.
Havens argues that since this new
proceeding occurred following the
release of the 2004 Report and Order,
this constitutes a new fact. Havens also
asserts that the Commission ignored all
of the arguments that Havens had raised
in response to a 2002 petition by an M–
LMS licensee to change rules in 902–
928 MHz band, which ultimately led to
the Commission’s initiation of the 2006
M–LMS rulemaking, and that this
constitutes a new fact showing the
Commission’s prejudice towards Havens
(and Telesaurus) and an abrogation of
the Commission’s duty to be impartial.
18. Havens has not demonstrated any
basis for our reconsideration of the
Commission’s earlier dismissal. The
Commission previously concluded that
the initial Havens petition for
reconsideration was procedurally
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defective and failed to establish a basis
for relief. The so-called ‘‘new facts’’
alleged by Havens, and which are only
unsupported assertions, do not
constitute the kinds of facts
contemplated under § 1.429 that would
provide a basis for granting a petition
for reconsideration. Further, nothing
prevented Havens from participating in
the rulemaking that revised part 15 rules
in this proceeding. Moreover, Havens
did not identify any particular rule that
should be changed, nor specify how he
would propose revising any particular
rule. In addition, the arguments raised
in the pending Havens petition for
reconsideration are repetitious. For all
of these reasons, the Commission
dismisses the petition.
19. Finally, as the Commission noted
in the MO&O and Further Notice,
Havens has had the opportunity to
present his concerns relating to
potential revisions to the M–LMS rules,
including the operational relationship
between M–LMS devices and part 15
unlicensed devices, in the M–LMS
rulemaking (WT Docket No. 06–49).
Havens has been an active participant in
that rulemaking.
Conclusion
20. The remaining issues raised in the
this proceeding, which concern whether
the Commission should adopt a
spectrum etiquette requirement for
unlicensed transmitters that operate
under §§ 15.247 and 15.249 of the rules
in the 902–928 MHz band, or possibly
also for the 2.4 GHz or 5.8 GHz bands,
do not merit further consideration at
this time. The Commission also
dismisses the pending petition for
reconsideration. With these actions, the
Commission terminates this proceeding.
Ordering Clauses
21. Pursuant to sections 4(i), 5(c), and
405 of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i), 155(c),
and 405(a), and § 1.429 of the
Commission’s Rules, 47 CFR 1.429, that
the Petition for Reconsideration filed by
Telesaurus GB LLC on July 23, 2007 IS
dismissed.
22. Pursuant to the authority
contained in Sections 4(i) and 4(j) of the
Communications Act, as amended, 47
U.S.C. 154(i) and (j), that the proceeding
in ET Docket No. 03–201 is hereby
terminated.
23. The Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Order and Second Memorandum
Opinion and Order, including the Final
Regulatory Flexibility Certification, to
the Chief Counsel for Advocacy of the
Small Business Administration.
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Report to Congress
24. The Commission will not send a
copy of this Second Memorandum
Opinion and Order pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A), because the Commission
did not adopt any new rules here.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2014–16420 Filed 7–11–14; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 15, 74, and 90
[WT Docket Nos. 08–166; 08–167; ET Docket
No. 10–24; FCC 14–62]
Revisions to Rules Regarding Low
Power Auxiliary Stations, Including
Wireless Microphones
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the Federal
Communications Commission takes
steps to better enable wireless
microphone users to provide high
quality audio services to serve a wide
range of needs. The Commission
expands Low Power Auxiliary Station
license eligibility under its part 74 rules
to include professional sound
companies and owners and operators of
large venues that routinely use 50 or
more wireless microphones, where the
use of wireless microphones is an
integral part of the major productions or
events they host.
DATES: Effective: August 13, 2014,
except for § 74.832, which contains new
or modified information collection
requirements that require approval by
the Office of Management and Budget
(OMB). The Federal Communications
Commission will publish a document in
the Federal Register announcing such
approval and the relevant effective date.
FOR FURTHER INFORMATION CONTACT: Bill
Stafford, Wireless Telecommunications
Bureau, (202) 418–0563, email
Bill.Stafford@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Second
Report and Order (Second R&O), WT
Docket Nos. 08–166; 08–167; ET Docket
No. 10–24; FCC 14–62, adopted May 15,
2014, and released June 2, 2014. The
full text of this document is available for
inspection and copying during business
hours in the FCC Reference Information
Center, Portals II, 445 12th Street SW.,
Room CY–A257, Washington, DC 20554.
SUMMARY:
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]]>Agencies
[Federal Register Volume 79, Number 134 (Monday, July 14, 2014)]
[Rules and Regulations]
[Pages 40678-40680]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-16420]
[[Page 40678]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 2 and 15
[ET Docket No. 03-201; FCC 14-80]
Unlicensed Devices and Equipment Approval
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document terminates the above captioned proceeding on
unlicensed transmitter operations. Based on the record and considering
that the Commission has not received any additional requests in recent
years advocating the need for a spectrum etiquette requirement for
unlicensed operations in the requested bands, the Commission concludes
that adoption of such a requirement does not merit further evaluation
at this time. In terminating this proceeding, the Commission also
dismissed a pending petition for reconsideration.
DATES: Effective August 13, 2014.
FOR FURTHER INFORMATION CONTACT: Hugh Van Tuyl, Office of Engineering
and Technology, 202-418-7506, Hugh.VanTuyl@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
and Second Memorandum Opinion and Order, ET Docket No. 03-201, FCC
1480, adopted June 9, 2014 and released June 10, 2014. The full text of
this document is available for inspection and copying during normal
business hours in the FCC Reference Center (Room CY-A257), 445 12th
Street SW., Washington, DC 20554. The complete text of this document
also may be purchased from the Commission's copy contractor, Best Copy
and Printing, Inc., 445 12th Street SW., Room, CY-B402, Washington, DC
20554. The full text may also be downloaded at: www.fcc.gov. People
with Disabilities: To request materials in accessible formats for
people with disabilities (braille, large print, electronic files, audio
format), send an email to fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(tty).
Summary of Order and Second Memorandum Opinion and Order
1. By this Order, the Commission terminates the above-captioned
proceeding on unlicensed transmitter operations. The only substantive
issues pending in this proceeding concern whether to adopt a specific
``spectrum etiquette'' requirement for unlicensed transmitters
operating in the 902-928 MHz band, and whether there might be need for
a similar requirement with respect to unlicensed operations in the 2.4
GHz and 5.8 GHz bands. Based on the record before us, and considering
that the Commission has not received additional requests in recent
years advocating the need for a spectrum etiquette requirement for
unlicensed operations in these bands, the Commission concludes that
adoption of such a requirement in these bands does not merit further
evaluation at this time. In terminating this proceeding, the Commission
also dismissed a pending petition for reconsideration.
2. Part 15 of the Commission's rules governs the operation of
unlicensed radiofrequency devices, including the technical requirements
for their use. As a general condition of operation, part 15 devices may
not cause harmful interference to authorized radio services and must
accept any interference that they receive.
3. In 2003, the Commission initiated a Notice of Proposed
Rulemaking in this proceeding to review and update certain sections of
parts 2 and 15 of our rules pertaining to technical parameters and
measurement procedures related to unlicensed device operations in the
902-928 MHz band, the 2.4 GHz band, and the 5.8 GHz band. The
Commission also invited comment on whether it should consider any
methods to ensure efficient spectrum usage by unlicensed devices,
including the ``spectrum etiquette'' sharing conditions developed by
the industry for the operation of unlicensed Personal Communications
Service (PCS) devices operating in the 1920-1930 MHz band. A spectrum
etiquette establishes a set of steps and protocols that a device must
follow before it may access the spectrum. Such an etiquette may require
that a device monitor the spectrum in which it intends to operate and
begin transmission only if no signal above a specified threshold is
detected.
4. In July 2004, the Commission adopted a Report and Order, that
modified several rules pertaining to these bands. The Commission,
however, declined to impose any type of spectrum etiquette for any Part
15 bands. The Commission noted that most commenting parties had
asserted that a spectrum etiquette requirement would tend to limit
development of unlicensed operations. It also expressed concern that an
etiquette requirement applying only to new devices in these heavily
used unlicensed bands may not be useful in facilitating spectrum
sharing if the large number of devices already authorized and used in
the band were not required to follow the etiquette. The Commission also
noted that the then-existing regulations, which did not require a
spectrum etiquette, had resulted in very efficient use of unlicensed
spectrum.
5. MO&O and Further Notice. In June 2007, the Commission issued its
MO&O and Further Notice, which addressed Cellnet's petition and the
spectrum etiquette issue. The Commission dismissed Cellnet's petition
on the grounds that the petition and Cellnet's subsequent filings did
not satisfy the Commission's rules for specific relief and timeliness;
it noted that not until a 2006 ex parte presentation, filed over a year
past the reconsideration period, did Cellnet describe a specific
spectrum etiquette that it believed the Commission should require for
digitally modulated spread spectrum transmitters operating in the 902-
928 MHz band under Sec. 15.247 of the rules.
6. While the Commission focused the further notice on a spectrum
etiquette that would apply only to the 902-928 MHz band, the Commission
also inquired generally about whether there might be a similar need to
adopt rules for unlicensed devices in the 2.4 GHz and 5.8 GHz bands.
The Commission stated, however, that industry standards were being
developed to facilitate sharing in these bands and that it did not
intend to disrupt this process.
Discussion
7. The Commission is not persuaded of the need to adopt a spectrum
etiquette requirement for unlicensed operations in the 902-928 MHz
band. In addition to the record before us, subsequent developments
concerning unlicensed operations in the 902-928 MHz band also counsel
against adoption of a spectrum etiquette requirement.
8. Since June 2007, the Commission has approved more than 2,500
unlicensed devices operating in the 902-928 MHz band. This indicates
that the band continues to be heavily used under the existing rules for
unlicensed operations. The Commission observes that manufacturers have
developed a wide variety of different types of products under the
current part 15 rules. Consistent with the Commission's decision in
2004 not to adopt an etiquette requirement, it is not concerned that
adoption of such a requirement could impede design flexibility and
innovation of a wide variety of devices that the current rules enable.
In declining to adopt a spectrum etiquette requirement, the Commission
also notes that manufacturers and users of part 15 devices can and do
take various steps when designing and
[[Page 40679]]
deploying their equipment to promote the effective and efficient
sharing between digitally modulated devices and other part 15 devices
that operate in the 902-928 MHz band. For example, devices can tune to
less congested frequencies or hop to a number of different frequencies
to avoid interference. In addition, device operators can reduce the
separation distance between the transmitter and receiver in areas where
the 902-928 MHz spectrum is heavily used.
9. The Commission agrees with commenters who argued that the large
number of existing devices in the 902-928 MHz band would limit the
usefulness of a new etiquette since previously approved devices would
not be required to comply with an etiquette. Also, no party described
an etiquette that would be compatible with all types of devices that
currently operate in the band. Further, as a number of commenters
noted, an etiquette could potentially stifle innovation or preclude the
use of certain types of devices in the 902-928 MHz band.
10. The Commission focused the further notice on whether it should
adopt a spectrum etiquette requirement for unlicensed operations in the
902-928 MHz band; only a few commenters commented on a spectrum
etiquette requirement in either the 2.4 GHz or 5.8 GHz bands. The
Commissions agrees that there is no need for an etiquette in these
bands.
11. The record before us does not establish the need for a spectrum
etiquette requirement in the 902-928 MHz band. Nor is there any basis
before us that establishes a need for adoption of a spectrum etiquette
requirement for either the 2.4 GHz band or 5.8 GHz band. The Commission
concludes that adoption of this type of requirement in these bands
would not serve the public interest at this time.
Second Memorandum Opinion and Order
12. The 2004 Report and Order in this proceeding made several
changes to part 15 of the rules regarding unlicensed operations in the
902-928 MHz band, the 2.4 GHz band, and the 5.8 GHz band. In 2004,
Warren C. Havens and Telesaurus Holdings GB LLC (Havens), which are
licensees in the Multilateration Location and Monitoring Service (M-
LMS) in portions of the 902-928 MHz band, filed a petition for
reconsideration of that order. Havens requested that the Commission
suspend the rule changes adopted for unlicensed devices for operation
in the 902-928 MHz band until such time as the Commission commenced and
completed a formal inquiry, including notice and comment, with regard
to the potential effect of such changes to M-LMS licensees that operate
in portions of the band. Havens claimed that the revised part 15 rules
would lead to increased spectrum use of the 902-928 MHz band by
unlicensed devices and thus would adversely affect M-LMS systems by
changing the ``regulatory coexistence'' between part 15 and M-LMS
operations. Havens asserted that the Commission should have made no
changes in the part 15 rules regarding with 902-928 MHz band without a
rulemaking on part 90 M-LMS rules.
13. In the 2007 MO&O and Further Notice, the Commission dismissed
the Havens petition, declining to suspend the part 15 rule changes. The
Commission first noted that Havens did not raise any objections to any
proposals for revising part 15 rules in the Notice of Proposed
Rulemaking prior to the filing of the Havens petition. The Commission
explained that, pursuant to Sec. 1.429(b) of its rules, a petition for
reconsideration that relies on facts not previously presented to the
Commission will be granted only if: (1) The facts relied on relate to
events which have occurred or circumstances which have changed since
the last opportunity to present them to the Commission; (2) the facts
relied upon were unknown to the petitioner until after his last
opportunity to present them to the Commission, and he could not through
the exercise of due diligence have learned of the facts in question
prior to such opportunity; or (3) the Commission determines that
consideration of the facts relied on is required in the public
interest. The Commission concluded that Havens failed to address why it
did not previously participate in this proceeding or claim that any of
these three conditions were met. In addition, the Commission noted that
Sec. 1.429(c) of the Commission rules require that a petition for
reconsideration state with particularity the respects in which the
petitioner believes the action taken should be changed. The Commission
pointed out that Havens did not identify the particular rule changes
that should be suspended, and instead provided only a mere statement of
belief that the part 15 rule changes in this proceeding would lead to
increased use of part 15 devices in the 902-928 MHz band and thus would
result in adverse effects on M-LMS operations that also operate in the
portions of the band. The Commission found that Havens had provided no
evidence or analysis to support this assertion. The Commission also
noted that Havens had raised essentially the same arguments in its
petition for reconsideration in ET Docket No. 99-231 concerning changes
to the part 15 rules for spread spectrum devices, which the Commission
had rejected in that proceeding. Accordingly, the Commission dismissed
the Havens petition.
14. The Commission also noted that a proceeding had been initiated
in 2006 to reexamine the rules for the M-LMS operating in the 902-928
MHz band (WT Docket No. 06-49), and that proceeding had been prompted
partly in response to a petition for rulemaking by Progeny LMS, LLC
(Progeny), another M-LMS licensee. The Commission stated that the M-LMS
proceeding was the appropriate forum for addressing concerns raised by
Havens about the M-LMS rules, including the operational relationship
between Part 90 M-LMS devices and part 15 unlicensed devices. The
Commission also noted that Havens had already participated in the
proceeding to consider Progeny's earlier petition for rulemaking.
15. In July 2007, on behalf of Telesaurus, Warren Havens filed a
petition for reconsideration of the Commission's dismissal of the
Havens petition for reconsideration in the MO&O and Further Notice.
Havens asserts that the Commission's decision dismissing the previous
Havens petition for reconsideration should be reversed and that the
relief that Havens had requested in the previous petition challenging
the 2004 Report and Order should now be granted on the basis of the new
petition. Havens claims that the 2007 petition for reconsideration is
based on ``new facts.'' The arguments raised by Havens in the petition
for reconsideration of the Commission's dismissal of the earlier
petition for reconsideration raise no new relevant facts, and do not
provide grounds for our reconsideration of the Commission's prior
decision dismissing Havens earlier petition. The Commission dismisses
the pending Havens petition as repetitious.
16. In dismissing this latest petition, the Commission relies on
Sec. 1.429 of the Commission's rules, as had the earlier Commission
when dismissing the previous Havens petition for reconsideration in
this proceeding. To the extent a petitioner seeks reconsideration of
final orders in a rulemaking proceeding, the petitioner may rely on new
facts and arguments not previously presented to the Commission. The
Commission may grant such a petition only if: (1) The facts relied on
relate to events which have occurred or circumstances which have
changed since the last opportunity to present them to the Commission;
(2)
[[Page 40680]]
the facts relied upon were unknown to the petitioner until after its
last opportunity to present them to the Commission, and it could not
through the exercise of due diligence have learned of the facts in
question prior to such opportunity; or (3) the Commission determines
that consideration of the facts relied on is required in the public
interest. The Commission's rules also require that a petition for
reconsideration state with particularity the respects in which the
petitioner believes the action taken should be changed. Except in
circumstances where the Commission has modified rules in response to a
petition for reconsideration, a second petition for reconsideration may
be dismissed as repetitious.
17. In the pending petition, Havens argues that the Commission
erred in 2007 when dismissing the previous petition, and asserts
alleged ``new facts'' as bases for its petition. In particular, Havens
repeats arguments made in the earlier petition for reconsideration--
namely that the Commission could not properly make any part 15 rule
changes applicable to the 902-928 MHz band that were potentially
adverse to M-LMS operations without a notice and comment proceeding on
M-LMS. Havens again asserts that any rule part 15 rule changes are
changes to the M-LMS rules. Havens also reasserts that there was no
obligation for Havens to participate earlier in this part 15
proceeding. As for alleged ``new facts,'' Havens first asserts that the
Commission's initiation in 2006 of the proceeding seeking comment on
possible changes to the M-LMS rules for operation in the 902-928 MHz
band, which could affect part 15 operations in the band, demonstrates
the validity of its argument in its petition that the M-LMS rules
affect part 15 and vice versa. Havens argues that since this new
proceeding occurred following the release of the 2004 Report and Order,
this constitutes a new fact. Havens also asserts that the Commission
ignored all of the arguments that Havens had raised in response to a
2002 petition by an M-LMS licensee to change rules in 902-928 MHz band,
which ultimately led to the Commission's initiation of the 2006 M-LMS
rulemaking, and that this constitutes a new fact showing the
Commission's prejudice towards Havens (and Telesaurus) and an
abrogation of the Commission's duty to be impartial.
18. Havens has not demonstrated any basis for our reconsideration
of the Commission's earlier dismissal. The Commission previously
concluded that the initial Havens petition for reconsideration was
procedurally defective and failed to establish a basis for relief. The
so-called ``new facts'' alleged by Havens, and which are only
unsupported assertions, do not constitute the kinds of facts
contemplated under Sec. 1.429 that would provide a basis for granting
a petition for reconsideration. Further, nothing prevented Havens from
participating in the rulemaking that revised part 15 rules in this
proceeding. Moreover, Havens did not identify any particular rule that
should be changed, nor specify how he would propose revising any
particular rule. In addition, the arguments raised in the pending
Havens petition for reconsideration are repetitious. For all of these
reasons, the Commission dismisses the petition.
19. Finally, as the Commission noted in the MO&O and Further
Notice, Havens has had the opportunity to present his concerns relating
to potential revisions to the M-LMS rules, including the operational
relationship between M-LMS devices and part 15 unlicensed devices, in
the M-LMS rulemaking (WT Docket No. 06-49). Havens has been an active
participant in that rulemaking.
Conclusion
20. The remaining issues raised in the this proceeding, which
concern whether the Commission should adopt a spectrum etiquette
requirement for unlicensed transmitters that operate under Sec. Sec.
15.247 and 15.249 of the rules in the 902-928 MHz band, or possibly
also for the 2.4 GHz or 5.8 GHz bands, do not merit further
consideration at this time. The Commission also dismisses the pending
petition for reconsideration. With these actions, the Commission
terminates this proceeding.
Ordering Clauses
21. Pursuant to sections 4(i), 5(c), and 405 of the Communications
Act of 1934, as amended, 47 U.S.C. 154(i), 155(c), and 405(a), and
Sec. 1.429 of the Commission's Rules, 47 CFR 1.429, that the Petition
for Reconsideration filed by Telesaurus GB LLC on July 23, 2007 IS
dismissed.
22. Pursuant to the authority contained in Sections 4(i) and 4(j)
of the Communications Act, as amended, 47 U.S.C. 154(i) and (j), that
the proceeding in ET Docket No. 03-201 is hereby terminated.
23. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of this Order and
Second Memorandum Opinion and Order, including the Final Regulatory
Flexibility Certification, to the Chief Counsel for Advocacy of the
Small Business Administration.
Report to Congress
24. The Commission will not send a copy of this Second Memorandum
Opinion and Order pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A), because the Commission did not adopt any new rules
here.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2014-16420 Filed 7-11-14; 8:45 am]
BILLING CODE 6712-01-P
