Spectrum Horizons, 13888-13903 [2018-06179]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 83, Number 63 (Monday, April 2, 2018)]
[Proposed Rules]
[Pages 13888-13903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06179]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2, 5, 15, and 101

[GN Docket No. 18-21, RM-11795; FCC 18-17]


Spectrum Horizons

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks comment on proposed rules to permit licensed fixed 
point-to-point operations in a total of 102.2 gigahertz of spectrum; on 
making 15.2 gigahertz of spectrum available for unlicensed use; and on 
creating a new category of experimental licenses to increase 
opportunities for entities to develop new services and technologies 
from 95 GHz to 3 THz with no limits on geography or technology. The 
Commission also granted, in part, two petitions for rulemaking and 
denied two requests for waiver.

DATES: Comments are due May 2, 2018. Reply comments are due May 17, 
2018.

FOR FURTHER INFORMATION CONTACT: Michael Ha, Office of Engineering and 
Technology, 202-418-2099, [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, ET Docket No. 18-21, RM-11795, FCC 18-17, 
adopted February 22, 2018, and released February 28, 2018. 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 full text may also be 
downloaded at: https://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0228/FCC-18-17A1.pdf. People with Disabilities: 
To request materials in accessible formats for people with disabilities 
(braille, large print, electronic files, audio format), send an email 
to [email protected] or call the Consumer & Governmental Affairs Bureau at 
202-418-0530 (voice), 202-418-0432 (tty).

[[Page 13889]]

Synopsis

    1. Background. The Commission focuses the Notice on providing 
licensed and unlicensed spectrum use opportunities in the 95 GHz to 275 
GHz range, with additional provisions for experimental licensing up to 
3000 GHz in a manner that would not foreclose future federal and non-
federal access to opportunities and technologies. The frequencies in 
the 95 GHz to 275 GHz range are allocated for federal government and 
non-federal government use across multiple services on a co-primary 
basis, while the frequencies above 275 GHz are not allocated. Because 
the Commission presently has no licensed service rules in these bands, 
and these bands are currently ``restricted'' under the part 15 rules 
for unlicensed devices, there is limited Commission-authorized use 
above 95 GHz, other than for experimental and amateur radio operations. 
In developing our proposals, the Commission therefore draws from many 
inputs, including the present use of the band, our prior inquiries 
seeking information on potential use of this spectrum (including 
adjacent and nearby frequencies that can serve as useful comparisons), 
recent technical and international developments, our analysis of the 
engineering issues and propagation characteristics associated with the 
use of these frequencies, and applications for experimental licenses 
and rulemaking petitions that the Commission has received. Our proposed 
approach is intended to provide incentives and opportunities for 
investment in the development of innovative new technologies and 
services while remaining cognizant of the flexible international, 
federal and non-federal allocations, and the already extensive and 
planned passive uses of these bands. Developing rules in these bands 
serves the public interest; not only can it lead to new and novel 
communications opportunities in an uncrowded frequency range, it could 
also pay dividends by reducing pressures in lower parts of the 
spectrum. The Commission also recognizes that all the potential 
services and devices that might be developed in this spectrum are not 
yet known. Thus, while the Commission proposes a wide range of expanded 
licensed, unlicensed and experimental use opportunities now, the 
Commission also leaves room to enable future federal and non-federal 
access opportunities and technologies.
    2. Several parties filed comments in the Spectrum Frontiers docket 
regarding the spectrum above 95 GHz. Commenters nevertheless offered 
little in the way of specific proposed rules or technical analyses, 
likely due to the general nature of the questions about these bands 
posed by the Further Notice. While parties are welcome to reprise their 
observations and recommendations to the extent that they remain 
relevant, the Commission also encourages commenters to react to the 
specific objectives, proposals, and draft rules that the Commission 
describes in greater detail herein.
    3. Experimental licenses, petitions and other requests. A review of 
our licensing database indicates that there are currently eleven active 
experimental licenses for spectrum above 95 GHz. The Commission has 
also received petitions and waiver requests to enable spectrum use 
above 95 GHz on a non-experimental basis. Battelle Memorial Institute, 
Inc. (Battelle) filed a petition for rulemaking in February 2014 asking 
the Commission to adopt service rules for non-federal fixed use of the 
102-109.5 GHz band. McKay Brothers, LLC, which holds a nationwide, non-
exclusive license in the 70/80/90 GHz bands, seeks a waiver to enable 
its Geneva Communications subsidiary to operate in the band. 
Additionally, ZenFi Networks, Inc. (ZenFi), which also holds a 70/80/90 
GHz license, seeks a waiver of our part 101 rules to permit use of the 
102-109.5 GHz band in a number of cities under the 70/80/90 GHz band 
rules.
    4. IEEE-USA submitted a request for the Commission to make a 
declaratory ruling that any application for use of technology above 95 
GHz is presumed to be a ``new technology'' under section 7 of the 
Communications Act of 1934, and is thus subject to the one-year 
timeframe for determining whether the proposal is in the public 
interest. IEEE-USA also requests that the Commission declare that, if 
it finds a proposal to use above 95 GHz spectrum is in the public 
interest, it will adopt rules that enable provisioning of that new 
technology or service within a one-year period. James Whedbee, in a 
petition for rulemaking, asks us to create a rule for operation of 
unlicensed intentional radiator devices in the 95-1,000 GHz band. 
Whedbee states that his proposed rule is identical in most respects to 
those used for other Extremely High Frequency (30-300 GHz) bands 
regulated under part 15. The Commission has yet to take action on these 
various petitions or waiver requests.
    5. Discussion. Given the growth in interest in millimeter wave 
spectrum, the Commission believes it is now appropriate to make 
spectrum above 95 GHz more readily available for the deployment of 
fixed and mobile wireless technologies. The Commission tentatively 
concludes that finding new ways to promote the development of bands 
above 95 GHz will also serve the public interest. Moreover, a review of 
academic publications indicates that the demand for wireless data will 
continue to expand.
    6. Licensed service. The Commission seeks comment on whether to 
adopt rules for fixed point-to-point operations in the 95-100 GHz, 102-
109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 
GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz 
bands based on the rules currently in place for the 70/80/90 GHz band. 
In addition, the Commission also seeks comment on applying these rules 
to several other frequency bands above 95 GHz that may be suitable for 
licensed fixed operations, including 158.5-164 GHz, 167-174.5 GHz, 
191.8-200 GHz, 209-226 GHz, 232-235 GHz, 238-240 GHz, and 252-275 GHz. 
The Commission also inquires into whether mobile operations may be 
appropriate for any bands above 95 GHz with mobile allocations.
    7. Fixed Point-to-Point Services: Based on the propagation 
properties of the spectrum the Commission believes that large portions 
of the spectrum in the 95-275 GHz range are potentially suitable for 
deploying fixed point-to-point links. While the Commission has no 
intention of changing the current allocations of any of this spectrum, 
the Commission notes that there are numerous bands below 275 GHz that 
are already allocated for the fixed service. Consequently, the 
Commission seeks comment on proposed rules for fixed point-to-point 
operations in 36 gigahertz of spectrum in the 95-100 GHz, 102-109.5 
GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 
151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands 
based on the 70/80/90 GHz rules. These ``proposed fixed bands'' are all 
the bands below 275 GHz with a fixed service allocation that are not 
shared with either the FSS or MSS. Below, the Commission seeks comment 
on whether it should also include the bands shared with the FSS or MSS 
in our proposal. The Commission also believes that the 70/80/90 GHz 
rules in place since 2003, which have proven effective in efficiently 
providing access to spectrum in that frequency range, provide a useful 
model for the rules contemplated here. The propagation characteristics 
and technical rules associated with the 70/80/90 GHz frequencies allow 
for the sharing of spectrum by multiple users in close geographic 
proximity, as the Commission contemplates would be the

[[Page 13890]]

case with the above 95 GHz frequencies proposed here. The 70/80/90 GHz 
rules also allow for sharing with federal users and the protection of 
radio astronomy that shares many of these bands, which the Commission 
anticipates would also be important for the use of the bands 
contemplated in this proceeding.
    8. The Commission seeks comment on draft rules for the proposed 
fixed bands, which would be mostly identical to the rules for the 70/
80/90 GHz bands contained in part 101. Briefly summarizing, both sets 
of rules provide that:
     The Commission will issue non-exclusive nationwide 
licenses for ten-year terms.
     Each fixed point-to-point link must be registered through 
a link registration system maintained by a database manager. An 
interference analysis for the link must be submitted to the database 
manager when registering the link.
     The licensee must apply to the Commission for coordination 
of a link if: (1) The link receives a ``yellow light'' from NTIA's 
automated mechanism as part of the registration process; (2) it 
requires an environmental assessment; (3) it requires international 
coordination; or (4) it operates in a quiet zone.
     An applicant may request a license for any portion of any 
band.
     Interference protection is granted to the first-in-time 
registered non-federal link. Existing digital links are protected to a 
threshold-to-interference ratio (T/I) level of 1.0 dB of degradation to 
the static threshold. Existing analog links shall not experience more 
than a 1.0 dB degradation of the baseband signal-to-noise ratio 
required to produce an acceptable signal in the receiver.
     Construction of links must be completed within 12 months 
of link registration.
     Transmitters may operate at a maximum Equivalent 
Isotropically Radiated Power (EIRP) of 25 decibel watts per megahertz 
(dBW/MHz).
     Transmitters must have a minimum antenna gain of 43 
decibels (isotropic) (dBi) with a half-power beamwidth of 1.2 degrees, 
but the maximum EIRP is reduced by 2 decibels for each decibel the 
antenna gain is less than 50 dBi.
     Out-of-band emissions are limited as specified in Sec.  
101.111 of our rules for signals above 24 GHz with the value of B 
(bandwidth) set for 500 megahertz.
     Systems using digital modulation must have a minimum bit 
rate of 0.125 bits/second/Hz.
     Licensees may provide service on either a common carrier 
or non-common carrier basis and are subject to the eligibility 
requirements of Sec.  101.7 (foreign ownership).
     Coordination with Mexico or Canada is required for certain 
stations located near the borders.
The Commission seeks comment generally on adopting these rules for the 
identified fixed bands and discusses in more detail below some aspects 
of these proposed rules. Should identical rules be adopted for each of 
the individual bands or should the rules be adjusted for the 
characteristics of each band?
    9. Certain rules for the 70/80/90 GHz band contained in part 101 
are different for the 70/80 GHz bands as opposed to the 90 GHz band. 
For example, transmitters in the 90 GHz band are required to have an 
antenna gain of 50 dBi while in the 70/80 GHz band the limit is only 43 
dBi. The 90 GHz band also has an additional interference protection 
requirement that a new link must not decrease an existing link's 
desired to undesired signal ratio below 36 dB. Digital systems in the 
90 GHz band are required to have a bit rate of 1 bit/second/Hz instead 
of 0.125 bits/second/Hz in the 70/80 GHz bands. In these instances 
where the current rules vary, the Commission seeks comment on whether 
to adopt the 70/80 GHz rules
    10. Under the 70/80/90 GHz rules, the transmitted power is limited 
to 55 dBW irrespective of the bandwidth of the signal. Under the 
Commission's proposal, licensees will be limited to a maximum EIRP of 
25 dBW/MHz, which is equivalent to the 75 decibel milliwatts per 100 
megahertz (75 dBm/100 MHz) EIRP limit the Commission recently adopted 
for base stations in our part 30 rules. The Commission seeks comment on 
this proposal; would another EIRP be more appropriate?
    11. Can and should the Commission require or invite the current 70/
80/90 GHz database managers to extend their duties to additional bands 
above 95 GHz or should WTB identify one or more database managers for 
these bands through an independent process? Is the requirement that 
licensees submit an interference analysis to the database manager when 
registering a link necessary to prevent interference given the 
propagation characteristics above 95 GHz?
    12. The Commission seeks comment generally on extending the 70/80/
90 GHz service and technical rules to the proposed fixed bands. Should 
any of the proposed rules be modified for bands above 95 GHz based on 
licensees' experiences with the 70/80/90 GHz rules or for other 
reasons? Are modifications to the rules needed to encourage more 
efficient use of spectrum or to avoid harmful interference? Should a 
higher EIRP be permitted to compensate for the atmospheric attenuation 
at these higher frequencies? The Commission notes that Battelle has 
suggested an EIRP of 70 dBW in their rulemaking petition, which would 
be 31.25 dBW/MHz if spread evenly across the 102-109.5 GHz band, 
claiming that the 70/80/90 GHz bands suffers from limited range and 
operating availability during severe weather and that there will be 
additional atmospheric attenuation in the 102-109.5 GHz band. Should 
the Commission segment any of the proposed bands as the Commission did 
for the 90 GHz band? What segmentation would be appropriate? Would a 
specific channel plan be appropriate in any of the bands? Do the rules 
provide a workable framework for protecting radio astronomy facilities 
and federal operations in the band? Are there any modifications to the 
proposed rules that would be necessary to address any of the 
characteristics of the proposed fixed bands?
    13. Do the antenna gain requirements for the 70/80/90 GHz bands 
strike an appropriate balance between facilitating sharing of the 
spectrum and providing flexibility? Do the proposed rules need to be 
modified to allow for the use of small planar or phased array antennas?
    14. Should the Commission make provisions in the rules for fixed 
point-to-multipoint systems in addition to point-to-point links? For 
example, could the Commission allow licensees to register operations in 
an area around a fixed location instead of requiring registration of 
individual links as required by the 70/80/90 GHz rules? This would 
enable a licensee to establish an access point/base station that serves 
a number of fixed customer locations in the surrounding area. The 
access point/base station would be permitted to operate with multiple 
beams where each beam must abide by the power limits the Commission is 
adopting, but the sum of the power of all the beams could be higher. 
What are the advantages or disadvantages of such a proposal? The 
Commission envisions that the area served by an access/point base 
station would be small. What size area could an access point/base 
station serve given the propagation properties of these bands? Would 
allowing such point-to-multipoint systems require a higher degree of 
coordination with other licensees or Federal operations to prevent 
harmful interference from occurring? Should the area that is reserved 
around a particular access point/base station depend on the technical 
parameters of the access point

[[Page 13891]]

such its transmit power and antenna height and characteristics of the 
surrounding environment such as terrain and structures? Because the 
access point/base station may use dynamically steerable antenna arrays 
to point at particular customer locations as needed, would it make 
sense to allow licensees to specify their coverage areas as a 
probability density function that describes the relative likelihood of 
pointing in a particular direction? By specifying coverage areas in 
terms of probably density functions, the coverage areas of different 
licensees could overlap to allow a means of sharing the spectrum on a 
statistical basis. Do commenters agree with this assessment?
    15. While the Commission did not include the above 95 GHz bands 
that are allocated for the FSS or MSS in the above discussion, the 
Commission notes that satellite services successfully share spectrum 
with terrestrial services in many bands. Therefore, the Commission 
seeks comment on extending our above proposal based on the 70/80/90 GHz 
rules to permit fixed operations in one or more of the following 
additional bands that are allocated for either the FSS or the MSS in 
addition to the fixed and mobile services: 158.5-164 GHz, 167-174.5 
GHz, 191.8-200 GHz, 209-226 GHz, 232-235 GHz, 238-240 GHz, and 252-275 
GHz. What changes, if any, to our proposed rules would be necessary to 
permit fixed operations in these bands?
    16. Alternatively, should the Commission instead adopt the 
licensing and prior coordination requirement used in many bands subject 
to our part 101 rules. Under such an approach, links would be 
individually licensed and the Commission would require that the links 
be coordinated with the licensee of other potentially affected links 
prior to application for a license? Are there any other models for 
licensing that the Commission should consider for these bands?
    17. Mobile Services: The Commission seeks comment generally on the 
deployment of mobile services in this spectrum. Would there be 
significant interest in implementing mobile services here? Given the 
propagation characteristics of these bands, what type of systems could 
feasibly be deployed? What type of licensing and technical rules should 
the Commission consider adopting for mobile services in this spectrum?
    18. Sharing Considerations: With the exception of passive services 
(EESS, RAS, and SRS) that collectively have exclusive primary 
allocations in some of the bands between 95 GHz and 275 GHz, all other 
services in the 95-275 GHz bands have shared allocations. Sometimes, 
without specific guidance, such allocations convey a perception that 
when two or more primary services are listed in the U.S. Table, later-
licensed or authorized federal or non-federal operations would be 
expected to protect the earlier-licensed or authorized operations. 
However, to avoid any mistaken perceptions and in light of the unique 
physical characteristics in these bands, the Commission seeks comment 
below on adopting a new U.S. footnote in the table of allocations that 
would clarify that, among co-primary federal and non-federal services, 
first-in-time does not necessarily mean priority relative to other 
current or future licensed or unlicensed uses.
    19. Sharing with the RAS. RAS operations in this region of the 
spectrum are limited to certain locations. For this reason, the 
Commission believes that excluding fixed and mobile stations from these 
localities would provide adequate protection for incumbent operations. 
U.S. footnote 161 includes a list of RAS locations operating in the 
bands 81-86 GHz, 92-94 GHz, and 94.1-95 GHz that are protected from 
fixed stations by the use of coordination distances. The Commission 
seeks comment as to whether a similar approach would adequately protect 
RAS operations in the bands above 95 GHz. Does this list reflect RAS 
operations that currently exist or are anticipated above 95 GHz, or 
should the Commission modify it to add or eliminate certain locations? 
Given that the propagation losses in the bands above 95 GHz are higher 
than the bands identified in US161, should the coordination distances 
be adjusted accordingly?
    20. The Commission notes that footnote US246 prohibits all 
transmissions in a number of bands above 95 GHz to protect passive 
services such as the RAS and EESS (passive). Footnote US74 specifies 
that radio astronomy observatories operating in most of the frequency 
bands listed in US246 will be protected from unwanted emissions from 
other stations only to the extent the emissions exceed what would be 
permitted under the technical standards or criteria applicable to the 
service in which the station operates. However, US74 omits the 182-185 
GHz and 226-231.5 GHz bands even though they are included in US246 and 
have RAS allocations. The Commission seeks comment on whether these two 
bands should be added to US74.
    21. Sharing services with the EESS and SRS. The Commission seeks 
comments on the appropriate methodology for modelling potential 
interference to the EESS and SRS. Limitations on power or the number 
and locations of devices may be appropriate mitigation techniques that 
would not necessarily restrict the transmission ranges of services such 
as terahertz WLANs or fixed backhaul links to the point they are 
unworkable. Are there specific environmental propagation models the 
Commission should consider when contemplating allowing shared services 
with EESS and SRS? Should additional environmental characteristics, for 
example via building or other forms of clutter model, be considered? 
The Commission seeks comment on the harmful interference criteria for 
satellite passive remote sensing, as well as any published studies or 
recommendations that may be relevant in assessing sharing with 
satellite passive remote sensors. Are there methodologies the 
Commission should adopt into its rules that could mitigate interference 
to EESS and SRS services caused by new users of above 95 GHz spectrum? 
What is the best way of predicting atmospheric attenuation (including 
losses from rain, etc.), particularly in the bands beyond the 1 THz 
limit of the International Telecommunication Union (ITU) recommendation 
on attenuation by atmospheric gases, ITU-R P676-11? Are there other 
assumptions that must be considered in ensuring interference protected 
operation for passive sensors in the EESS and SRS?
    22. Sharing with the FSS, MSS, and ISS. The 158.5-164 GHz, 167-
174.5 GHz, 209-226 GHz, 232-235 GHz, 238-240 GHz, and 265-275 GHz bands 
have shared allocations with the FSS. The Commission expects that 
sharing between the MS service and the FSS service would be similar to 
the lower frequency bands under the new part 30 rules. The Commission 
seeks comment on how the Upper Microwave Flexible Use Service (UMFUS) 
rules could be used to facilitate sharing between the MS and FSS in the 
above 95 GHz bands. How can interference be avoided between mobile 
stations and satellite operations? Could exclusion zones or 
coordination be used to prevent interference? Would designating 
portions of the shared spectrum where satellite or terrestrial services 
have priority be an appropriate means for sharing the spectrum?
    23. The Commission also seeks comment on how sharing could be 
accomplished between the FS and FSS in the bands under discussion. 
Would the use of a narrow-beam antenna requirement in our proposed 
rules for FS operations avoid harmful interference to the FSS? Sharing

[[Page 13892]]

between the FS and the FSS in the lower frequency bands under our part 
101 of our rules uses first-in-time coordination. Would this be an 
appropriate method for sharing between the FS and FSS? Could the 
registration of fixed links with the database manager required under 
our proposed rules be extended to also apply to satellite earth 
stations?
    24. The 158.5-164 GHz, 191.8-200 GHz, 232-235 GHz, and 252-265 GHz 
bands have shared allocations with the MSS. The Commission believes 
sharing between FS and MSS is technically feasible, and seeks comment 
on possible sharing mechanisms between these services. The Commission 
seeks comment on possible sharing mechanisms between the MS and MSS 
services. Would geographical partitioning between services, for example 
between urban/rural markets, serve as a possible sharing mechanism? If 
so, how should such markets be defined? Could dual MS/MSS user 
equipment, if available, resolve possible interference conditions by 
switching to terrestrial service when a terrestrial network is 
detected? Could requiring operators of terrestrial MS networks to adopt 
a method of registration and tracking of MSS user equipment reduce the 
possibility of interference by limiting emissions in the direction of 
MSS user equipment?
    25. The 122.25-123 GHz, 130-134 GHz, 167-174.8 GHz, and 191.8-200 
GHz bands have a shared allocation with the inter-satellite service 
(ISS). Is there a need to make provisions in the Commission's rules to 
prevent harmful interference to and from the ISS? Should there be 
specific antenna performance requirements for FS and MS stations to 
limit potential interference to the ISS? If so, should there be 
separate requirements for each of the shared bands? Commenters who 
support antenna performance requirements for FS and MS stations should 
provide specific technical information and proposals showing the need 
for such requirements. Similarly, should there be specific antenna 
performance requirements for aeronautical use of MS stations or should 
such use be prohibited entirely to protect the ISS? The Commission 
seeks comment on whether NGSO satellites can be accommodated in the 
116-122.25 GHz band.
    26. Other shared services. The 95-100 GHz, 141-148.5 GHz, 151.5-
155.5 GHz, 191-200 GHz, 238-241 GHz, and 252-265 GHz bands have shared 
allocations for radar use (radionavigation service or radiolocation 
service). The 95-100 GHz, 238-240 GHz, and 252-265 GHz bands are also 
allocated for the radio navigation satellite service. How likely is it 
that these allocations will be used in the future by non-federal users? 
The Commission seeks comment generally on how stations in the fixed 
and/or mobile service could share the bands with the radar allocated 
services. Can the sharing mechanism be based on geographical 
separation? Could a database of locations where radar operations occur 
or the locations of transmitters or receivers of other licensed 
services be used to facilitate sharing in these bands? Such a database 
could be a relatively simple record of the locations of fixed 
facilities or the geographic areas where mobile operations may occur or 
it could be more sophisticated. Could the use of sensing technologies 
to determine when radars are in operation be used to share the bands 
between radars and other licensed services?
    27. Federal/non-federal sharing: As the Commission notes above, the 
95-275 GHz spectrum is allocated on a co-primary basis for federal and 
non-federal use. In developing rules for this spectrum, the Commission 
will work closely with the NTIA with the objective of developing a 
framework that both encourages private sector investment in new 
technologies and services and preserves the ability of federal users to 
research, develop, test, and deploy new technologies and services to 
meet their needs. While this notice considers the possibility of 
granting nationwide licenses, access to the band by both federal and 
non-federal users would be on a shared basis where access by users 
would not preclude federal and non-federal users from deploying systems 
where no authorized facilities have been registered or deployed. 
Specific sharing and coordination terms to ensure federal and non-
federal co-primary access will be addressed through a future framework 
to be jointly developed by NTIA and FCC as part of follow-on 
proceedings. The Commission seeks comment on adding the following 
footnote to the Table of Frequency Allocations that reflects this 
approach:

    USxxx: Federal and non-federal users shall have equal rights to 
access the spectrum in the 95-275 GHz band. Use of the band by non-
federal users on a licensed or unlicensed basis shall not preclude 
or impair co-primary use of the bands by federal users and shall not 
establish non-federal priority in bands allocated for shared federal 
and non-federal use.

    28. Unlicensed operations under parts 15. Part 15 of the 
Commission's rules permits the operation of RF devices without issuing 
individual licenses to operators of these devices. The Commission's 
part 15 rules are designed to ensure that there is a low probability 
that these devices will cause harmful interference to authorized users 
of the same or nearby spectrum. Should harmful interference occur, the 
operator is required to immediately correct the interference problem or 
cease operation.
    29. Apart from a few specified frequency bands, spectrum above 38.6 
GHz is designated as ``restricted'' in Sec.  15.205 of the rules. 
Unless expressly permitted by rule or waiver, unlicensed devices are 
not allowed to intentionally radiate energy into a restricted band. The 
Commission proposes to allow unlicensed operation in additional 
frequency bands where the Commission believes it will not cause harmful 
interference to authorized services, and to remove those specific bands 
from the list of restricted bands.
    30. The Commission seeks comment on whether to make 15.2 gigahertz 
of spectrum above 95 GHz available for unlicensed use in four frequency 
bands. First, the Commission seeks comment on allowing unlicensed 
operation in the 122-123 GHz and the 244-246 GHz bands, which are 
already designated industrial, scientific, and medical (ISM) bands. The 
Commission would remove these bands from the list of restricted bands 
in Sec.  15.205. The Commission seeks comment on these proposals.
    31. The Commission also seeks comment on whether to allow 
unlicensed operation in two frequency bands near 183 GHz. The 
Commission believes that the frequency bands located around a sharp 
peak in the atmospheric attenuation curve at 183 GHz may be appropriate 
for unlicensed use. However, no transmissions are permitted in the 
frequency band at the peak due to Allocations Table footnote US246 
stating that no station shall be authorized to transmit in a number of 
bands including the 182-185 GHz band. The Commission would make 
spectrum available for unlicensed use on both sides of the attenuation 
peak, specifically, the 174.8-182 GHz and 185-190 GHz bands. The 
Commission would remove these bands from the list of restricted bands 
in Sec.  15.205. The Commission seeks comment on this approach.
    32. The Commission also seeks comment on what technical rules 
should apply to unlicensed operation within the 122-123 GHz, 174.8-182 
GHz, 185-190 GHz and 244-246 GHz frequency bands. In particular, the 
Commission seeks comment on whether the requirements that apply to the 
operation of unlicensed devices in the 57-71 GHz band under Sec.  
15.255 of the rules are appropriate in these bands. Would the power 
levels provided in that

[[Page 13893]]

rule section be high enough for unlicensed equipment to function as 
intended in the bands under consideration here? If not, what would be a 
reasonable power level that provides for a practical operational range 
that would also provide adequate protection to authorized services in 
the same and nearby spectrum? Could the Commission permit higher power 
levels in the 174.8-182 GHz and 185-190 GHz bands since they are close 
to a peak in atmospheric attenuation that is greater than the peak at 
60 GHz? The Commission recognizes that the primary allocations for the 
174.8-182 GHz and 185-190 GHz bands are for the ISS and for the EESS 
and the SRS (passive) and that footnote 5.562H limits ISS emissions to 
levels below the EESS (passive) protection criteria. The Commission 
also notes that the rules applying to unlicensed use of the 57-71 GHz 
band do not allow the use of devices on satellites or allow for the use 
of field disturbance sensors unless the sensors are part of fixed 
equipment. In addition, these rules permit the use of devices on 
aircraft only under certain specific circumstances. Therefore, the 
Commission seeks comment on whether any of these restrictions should 
apply to unlicensed devices in any or all of the four proposed bands to 
protect the existing authorized services in these bands, and if so, 
why? Is there a need to prohibit all operation of devices on aircraft 
in any of the proposed bands? Would any other modifications to the 
requirements of Sec.  15.255 be needed to permit unlicensed operation 
in these bands?
    33. The Commission further seeks comment on whether there are any 
other bands above 95 GHz that would be suitable for unlicensed use in 
addition to the 15.2 gigahertz of spectrum identified above. In 
particular, the Commission seeks comment on allowing unlicensed use of 
the 116-122 GHz band. The 116-122.25 GHz band is allocated to passive 
services such as the EESS and SRS (passive) as well as the ISS which is 
used for communications between satellites with footnote 5.562C 
limiting ISS emission levels below the EESS (passive) protection 
criteria. The passive services would likely be compatible only with low 
density deployments and low power unlicensed uses because of the high 
sensitivity of these types of passive receivers. Because devices 
operating under our part 15 rules are limited to transmission at low 
power levels, and given the increased propagation attenuation from high 
atmospheric absorption, the Commission believes that part 15 devices 
may be able to share spectrum with these passive services without 
causing interference. However, the Commission notes that while this 
band is close to a peak in the atmospheric attenuation curve, this peak 
is smaller than the peaks at 60 GHz and 183 GHz. Also, the Commission 
notes that RAS observations at 115.27 GHz may necessitate geographic 
restrictions to protect RAS facilities. Accordingly, the Commission 
seeks comment on whether unlicensed operation should be permitted in 
the 116-122 GHz band. If so, what technical and other requirements 
should apply to prevent interference to authorized services in the 
band? The Commission also seeks comment on any other bands above 95 GHz 
that may be suitable for unlicensed use and the technical requirements 
that would be necessary to allow operation in them while protecting 
authorized services. In particular, the Commission seeks comment on how 
such use would relate to current and planned passive services.
    34. Potential future applications in these bands includes ultra-
high definition video, and high-speed data transmission, such as 
temporary fiber optic line replacement, chip-to-chip communication 
within computer equipment, and replacement of computer data cables in 
data centers with wireless links. Would the rules proposed above for 
unlicensed devices allow for applications such as these? With respect 
to non-federal users, the Commission seeks comment on whether the 
unlicensed spectrum access model is most appropriate for the types of 
devices that could be operated in the proposed frequency bands, or 
whether some other spectrum access model would be more appropriate, 
e.g., licensed or licensed by rule.
    35. As mentioned above, James Whedbee has filed a rulemaking 
petition requesting that the Commission adopt rules to permit 
unlicensed device operation in the 95-1000 GHz range. Whedbee advocates 
that the Commission apply the same technical rules to these unlicensed 
operations as currently apply in the 57-71 GHz band with a few 
differences. Whedbee proposes unlicensed devices in 95-1000 GHz be 
limited to a bandwidth of 500 megahertz. Whedbee also specifies that 
unlicensed operations be limited to indoors only and that transmitters 
not be deliberately pointed at windows in a number of bands used by the 
RAS, EESS (passive), and SRS (passive). According to Whedbee, licensing 
of transmissions over the range 95-1000 GHz may hinder the 
technological developments that his proposed rule would permit without 
licensing. The Commission is reluctant to open such a wide swath of 
spectrum for unlicensed use because the Commission believes it 
represents an inefficient use of the spectrum, provides no focus for 
development of technologies in specific bands and the Commission's 
proposals would already provide considerable opportunities for 
unlicensed devices. Nevertheless, in seeking comment on making 15.2 
gigahertz of spectrum above 95 GHz available for unlicensed use the 
Commission grants his petition in part. The Commission also seeks 
comment broadly on Whedbee's rulemaking petition to the extent his 
proposal goes beyond what the Commission is seeking comment on and on 
any costs or benefits that could arise from making the 95-1000 GHz band 
available for unlicensed use in accordance with his proposal.
    36. The Commission also seeks comment on what rules might be most 
appropriate for ISM operations in the above 95 GHz band. Part 18 of the 
rules contains the regulations for ISM equipment.
    37. The Commission has historically treated RF devices that 
transmit a radio signal for purposes such as measuring the level of a 
fluid in a container or for measuring some quantifiable property of a 
material as part 15 devices. The Commission is aware of interest in 
using the spectrum above 95 GHz for devices that use terahertz 
spectroscopy to analyze material properties and for imaging 
applications, which could possibly be considered ISM applications. The 
Commission seeks comment on whether it should establish a more certain 
regulatory approach for devices that use the frequencies above 95 GHz. 
Is the lack of provisions under part 15 for equipment that operates in 
these higher frequency bands hampering the ability of these new 
technologies to be approved and, if so should the Commission modify the 
part 15 rules to allow them? Or would it be more appropriate to 
routinely treat these terahertz applications as part 18 ISM equipment 
for which there are already power and field strength limits specified 
in the rules?
    38. The Commission recognizes that the radiated emission limits in 
part 18 were originally developed for devices operating at 
significantly lower frequencies than the Commission is considering 
here, and seeks comment on how that should affect its analysis. 
Accordingly, the Commission seeks comment on whether changes to these 
limits are necessary for operation above 95 GHz. Are the limits in 
Sec.  18.305 appropriate for these devices? If not,

[[Page 13894]]

what are the appropriate limits, and in what terms should they be 
expressed, e.g., field strength, power density, EIRP or some other 
power-related terms? In addition, the Commission notes that the rules 
currently specify that radiated emissions from most ISM equipment must 
be measured at a distance of 300 meters from the equipment. Due to the 
rapid attenuation of signals and the limitations in measurement devices 
at frequencies above 95 GHz, measurements at this distance are likely 
not practical. The Commission therefore seeks comment on the 
appropriate measurement distance and procedures for determining 
compliance with the rules. The Commission also seeks comment on whether 
any other changes to the rules may be required to prevent harmful 
interference to authorized services. For example, should the Commission 
restrict operation in certain frequency bands to indoor locations only, 
and if so, in which frequency bands should such a restriction apply and 
how could it be enforced?
    39. Experimental Radio service. In this section, the Commission 
seeks comment on whether to create a new subpart of our part 5 
Experimental Radio Service (ERS) rules to better encourage experiments 
in the spectrum range between 95 GHz and 3 THz. The Commission's part 5 
ERS rules prescribe the requirements for authorizing a variety of 
entities to experiment with new radio technologies, equipment designs, 
characteristics of radio wave propagation, or service concepts related 
to the use of the radio spectrum. Experimental operations are not 
entitled to exclusive use protected from harmful interference from 
allocated services, and ERS licensees must not cause harmful 
interference to stations of authorized services, including secondary 
services.
    40. Proposal for ``Spectrum Horizons Experimental Radio Licenses.'' 
Because of the potential for innovation above 95 GHz, and the unique 
nature of this spectrum (e.g., limited propagation and virtually no 
existing operations), the Commission believes that certain experimental 
requirements can be relaxed or modified without creating an 
unacceptable risk of interference or undermining our longstanding 
general policies related to the marketing and authorization of 
equipment. Accordingly, the Commission seeks comment on a proposal to 
create an experimental radio license for authorizing operation on 
frequencies from 95 GHz to 3 THz. In keeping with the current structure 
of part 5, the Commission proposes to add a new subpart I that would 
provide specific requirements for ``Spectrum Horizons Experimental 
Radio Licenses'' and amend subparts A, B, and C, which are generally 
applicable to all part 5 ERS licenses, as necessary. Since these 
Spectrum Horizons licensees would be subject to unique requirements 
that, in many cases, reflect existing or modified versions of the 
requirements associated with other ERS licensees, the Commission 
believes this would be the best option for providing prospective 
licensees with clear requirements, while at the same time maintaining 
existing rules for the various other forms of ERS authorization. The 
Commission seeks comment on the assumptions made above and whether a 
unique subpart of the ERS rules is warranted.
    41. The Commission believes that Spectrum Horizons licenses should 
have a number of characteristics that differ from existing ERS 
authorizations, although they would also have a number of 
characteristics in common. Specifically, the Commission seeks comment 
on the following proposed rules for these Spectrum Horizon licenses.
    42. Marketing. Marketing of experimental devices or provision of 
services for hire under product development trial is currently 
prohibited. While our rules permit market trials under certain 
circumstances, ERS licensees may sell equipment only to each other 
under such trials, rather than to market trial participants, and must 
also ensure that the number of marketed devices is the minimum 
necessary to conduct the market trial.
    43. In the spectrum range above 95 GHz, the Commission believes 
that marketing of innovative devices at a relatively early stage of 
experimentation may be particularly important to permit entrepreneurs 
to gauge consumer acceptance and to determine whether to proceed to the 
next stage of the experiment. As operations extend further into the 
spectrum above 95 GHz, the unique technical issues associated with such 
operations make capable devices more expensive to produce. Further, 
these same issues also make it less likely that such devices could be 
easily adapted for use in the lower spectrum. Thus, entrepreneurs will 
be reluctant to proceed without a clear signal from consumers that they 
are interested in purchasing such devices.
    44. The Commission proposes to allow experimental devices used in 
market trials in these bands to be sold directly to participants to 
encourage experimentation, as well as to help innovators share device 
manufacturing costs with potential early adopters who are willing to 
bear the risks associated with experimental licensing in this range. As 
a safeguard against such devices causing harmful interference, the 
Commission will maintain a requirement that the Spectrum Horizons 
licensee must adhere to the conditions specified in Sec.  5.602(e) of 
our rules, which states that ``trial devices are either rendered 
inoperable or retrieved . . . at the conclusion of the trial.'' The 
Commission also proposes that the Spectrum Horizons licensee must 
provide market trial participants with a written disclosure clearly 
stating that the equipment being purchased is part of an experiment 
that may be terminated at any time by the licensee or the Commission. 
Thus, only those individuals who are willing to accept the risk that 
their devices could be rendered unusable on short notice would be 
candidates for participating in such market trials. The Commission 
seeks comment on these proposals.
    45. In this connection, the Commission proposes to require that 
Spectrum Horizons licensees who choose to market equipment must label 
any such equipment as ``Experimental--Not Authorized for Permanent 
Use'' and carry with it an equipment ID number registered as part of 
the experimental license process. The Commission notes that a Spectrum 
Horizons license should have no expectation that an experiment will 
always lead to the establishment of a permanent service. Thus, a 
Spectrum Horizons licensee who chooses to market a substantial--rather 
than a limited--amount of equipment would be increasing its financial 
risk. The Commission seeks comment on these marketing proposals, and on 
any alternatives to them.
    46. Eligibility and filing requirements. The Commission seeks 
comment on whether Spectrum Horizons licenses should be broadly 
available to qualified persons as generally defined under existing ERS 
rules. However, to obtain a Spectrum Horizons license, the Commission 
proposes that a qualified applicant be required to include a narrative 
statement that sufficiently explains the proposed new technology/
potential new service and that incorporates an interference analysis 
that explains why the proposed experiment would not cause harmful 
interference to any other spectrum user. The statement should include 
technical details, including the requested frequency band(s), maximum 
power, emission designators, area(s) of operation, type(s) of device(s) 
to be used, and the maximum number of each type of device to be used. 
The Commission seeks comment on these and any other issues that it 
should

[[Page 13895]]

require a Spectrum Horizons service applicant to address in its 
narrative statement.
    47. Available frequencies. Because all ERS licenses are authorized 
on a non-interfering basis, and such applications must be coordinated 
with federal users via NTIA, the Commission proposes that subpart I 
specify that Spectrum Horizons licenses be permitted on any frequency 
in the range of 95 GHz-3 THz, provided there are no objections raised 
in the coordination process. Applicants would be expected to address 
any allocation footnotes and any known use(s) of the requested 
frequency or frequencies in the spectrum analysis that they would be 
required to provide in their narrative statements discussed above. 
Additionally, applicants must ensure that the significant number of 
passive services that use spectrum above 95 GHz are protected from 
harmful interference and, if proposing to use spectrum that is 
exclusively allocated for passive use(s), they must explain why nearby 
bands that have non-passive allocations are not adequate for the 
experiment. The Commission seeks comment on this proposal. Commenters 
who propose limitations on available frequencies should identify 
specific bands where they believe that Spectrum Horizons experiments 
should be prohibited or restricted, including references to pertinent 
footnotes listed in the Table of Frequency Allocations. The Commission 
proposes to list in subpart I all bands that the Commission concludes 
should be prohibited or restricted for Spectrum Horizons experimental 
use.
    48. Scope of license grant. The Commission proposes to provide 
Spectrum Horizons licensees with substantial flexibility to conduct 
long-term experiments over a wide geographic area and frequency range, 
market equipment if necessary, and adapt their program of 
experimentation as needed. In making these proposals, the Commission 
emphasizes the overriding considerations that Spectrum Horizons 
licensees--like all ERS licensees--would have to accept to operate: (1) 
Licensees would be prohibited from causing harmful interference to any 
established radio service, and would be solely responsible for promptly 
remedying any such interference; (2) licenses would be non-exclusive; 
and (3) there would be no assurance that experimentation would lead to 
the establishment of an authorized service. Otherwise, the Commission 
asks for comment on what specific technical rules in subpart C should 
or should not be applicable to Spectrum Horizons stations.
    49. License term and interim reporting requirement. The Commission 
seeks comment on whether to extend the experimental license term for 
Spectrum Horizons licenses and, if so, for how long. Would a longer 
license term, such as 10 years, encourage entrepreneurs to make 
investments in this portion of the spectrum where there has been 
relatively minimal experimentation and, thus, limited ``real world'' 
experiences to guide the experimental planning process? If the 
Commission provides longer license terms, the Commission proposes to 
require an interim report be submitted to the Commission at the half-
way point of the license term to provide the public with information 
about the progress of the experiment. The Commission also seeks comment 
on whether a longer Spectrum Horizons license would be eligible for 
renewal.
    50. Other aspects. The Commission seeks comment on how best to 
handle geographic, frequency, or technical limits on experiments, and 
limits on the number of devices or their type, including whether these 
limits should be decided on a case-by-case basis. The Commission also 
seeks comment on how applicants should be required to justify their 
proposed parameters in their narrative statements. In order to avoid 
the filing of subsequent requests to modify those parameters during the 
license term, the Commission proposes that applicants request the 
maximum parameters that they may ultimately use, even if their initial 
plans do not require those maximums. The Commission acknowledges that 
circumstances may change, however, and would still consider granting 
applications to modify Spectrum Horizons licenses.
    51. To better ensure that Spectrum Horizons experiments do not 
cause harmful interference, the Commission proposes to adopt rules for 
such experiments similar to our existing ``station identification,'' 
``responsible party,'' and ``stop buzzer'' rules. However, consistent 
with our rules for conventional experimental licenses, the Commission 
proposes to permit Spectrum Horizons licenses to be transferred, if the 
Commission finds that to be in the public interest and gives its 
consent in writing. Comments are requested on each of these proposals.
    52. RF Exposure Limits. RF devices must comply with the 
Commission's RF exposure limits that are currently specified up to 100 
GHz. The power density limits specified for general population and 
occupational exposure at 100 GHz are 1 mW/cm\2\ and 5 mW/cm\2\ 
respectively for whole-body continuous exposure. The Commission notes 
that these limits could in principle be applied up to infrared 
wavelengths, although the Commission does not suggest that there should 
be any particular changes to our rules at this time. The Commission 
also notes that the issues of averaging area and averaging time for 
localized and time varying exposure are the subject of ongoing 
consideration at lower frequencies in the context of developing 
laboratory test procedures for specific devices. However, the 
Commission has an open proceeding in which it is broadly examining its 
RF exposure rules and policies, which could potentially influence how 
such devices are authorized in the future. In the RF Inquiry of that 
separate open proceeding, the Commission specifically asks whether it 
should expand the frequency scope of its exposure rules above the 
present maximum of 100 GHz. The Commission proposes that it make no 
changes to its present rules limiting human exposure to RF energy until 
it considers the broader issues brought forth in its RF Inquiry.
    53. Equipment Authorization Matters. As the Commission has noted 
previously in the Spectrum Frontiers proceeding, there are unique 
technical challenges specific to demonstrating compliance with our 
rules for the purpose of equipment authorization of millimeter-wave 
devices. As technology evolves to address the technical challenges 
related to perform compliance measurements above 95 GHz (with respect 
to propagation, interference protection, modulation techniques, 
transmission security, etc.), the Commission expects that OET, in its 
capacity as the technical administrator of the Commission's part 2, 5, 
15, and 18 rules, will provide guidance on appropriate measurement 
techniques through its knowledge database publications as products are 
developed, seeking notice and comment as appropriate. To inform this 
guidance, the Commission generally requests information on relevant 
research as it addresses measurement techniques to verify that devices 
meet the electromagnetic compatibility (EMC) technical rules; the 
Commission discusses specific concerns in more detail below.
    54. EMC measurements. In this Notice, the Commission seeks comment 
on what technical rules should apply to operation in spectrum above 95 
GHz. At this time, the FCC laboratory has offered generally limited 
guidance related to the technical procedures that could be used to 
demonstrate the compliance of millimeter-wave devices with such rules. 
The Commission recognizes that

[[Page 13896]]

radiated field strength measurements at frequencies above 1 GHz present 
challenges due to the relatively high values of cable loss and antenna 
factor. Similarly, a conducted method of measurement would only be 
effective if the device and other mixer waveguides are both accessible. 
The Commission seeks information on fundamental aspects of measurements 
of radiated and conducted emissions at these frequencies. What are ways 
to demonstrate compliance with procedures which are practical, 
repeatable, and do not have large margins of error? Specifically, 
Sec. Sec.  15.255 and 15.257 of our rules apply to the use of an RF 
detector that has been specified to make millimeter-wave measurements. 
Is the use of an RF detector an appropriate method for measuring the 
frequencies above 95 GHz? Are there industry measurement standards 
available for RF devices operating above 95 GHz? The Commission seeks 
further comment on whether and how present procedures can be adapted or 
modified to appropriately address the specific technical challenges 
presented by millimeter-wave devices.
    55. Out-of-band and spurious emissions measurement. At the present 
time, the FCC laboratory guidance does offer a procedure to measure the 
out-of-band and spurious emissions from devices with multiple antennas. 
The measurement challenges discussed above are often accentuated in the 
case of out-of-band and spurious emissions due to the low levels of 
these emissions relative to the fundamental emissions. The Commission 
seeks comment on what other measurement procedures, such as those in 
ANSI C63.10-2013, may be used and whether the Commission needs to 
provide additional guidance (e.g., appropriate measurement bandwidth, 
cut-off frequency, etc.) to determine compliance with the out-of-band 
and spurious emission limits for millimeter-wave devices considering 
the technical challenges of such measurements.
    56. Equipment authorization procedures. The Commission proposes to 
parallel the existing 70/80/90 GHz service rules for the bands the 
Commission proposes for fixed services and similarly adapt our UMFUS 
rules for the bands the Commission proposes for mobile services. 
Transmitters used for operation in accordance with the Commission's 
part 101 Fixed Microwave Services rules are generally authorized via 
our Suppliers Declaration of Conformity (SDoC) procedure. Transmitters 
used for part 30 UMFUS mobile operations are required to be authorized 
via the certification procedure. The Commission seeks comment on which 
equipment authorization procedure would be most appropriate for any 
fixed or mobile service adopted under the proposals set forth herein, 
or whether some other authorization procedure would be more 
appropriate.
    57. Rulemaking and Waiver Petitions. Battelle Petition. Battelle 
Memorial Institute, Inc. (Battelle) filed a petition for rulemaking in 
February 2014 asking the Commission to commence a rulemaking to propose 
service rules for fixed use of the 102-109.5 GHz band. Battelle's 
proposed rules draw extensively from the 70/80/90 GHz rules. Because 
the rules the Commission is proposing for the 102-109.5 GHz band are 
similar to what Battelle has proposed, the Commission considers their 
rulemaking petition granted in part. Battelle and other interested 
parties are able to participate in this rulemaking and will have ample 
opportunity to comment on the rules the Commission is proposing and 
therefore the Commission dismisses Battelle's petition from further 
consideration.
    58. ZenFi Waiver. ZenFi Networks, Inc. (ZenFi), which holds a 
nationwide, non-exclusive license under call sign WQUN758 in the 71-76 
GHz, 81-86 GHz, and 92-95 GHz bands, seeks a waiver of the applicable 
part 1 and subpart Q of part 101 rules to permit use of the 102-109.5 
GHz band under its existing license and to register individual point-
to-point links at locations within the New York City, Chicago, 
Washington, DC, and San Francisco metropolitan markets using the 
regulatory framework established for registering links in the 70/80/90 
GHz bands. ZenFi states that it understands that grant of its waiver 
request will serve as a pre-requisite for coordinating and registering 
individual point-to-point links in the 102-109.5 GHz band in the four 
identified markets and that its use of the 102-109.5 GHz band would 
continue pending resolution of the Battelle rulemaking proceeding.
    59. On October 13, 2015, the Commission's Wireless 
Telecommunications Bureau released a public notice seeking comment on 
the ZenFi Waiver Request. Battelle and SMG Holdings, LLC (SMG) support 
grant of the ZenFi Waiver Request, and SMG asks that the Commission 
extend to it any relief granted to ZenFi.
    60. The Commission denies the ZenFi Waiver Request and SMG's 
informal request seeking waiver to use the 102-109.5 GHz band because 
ZenFi and SMG have not met the standard for a waiver and grant of a 
waiver would improperly judge the outcome of the rulemaking proceeding 
the Commission has begun with this NPRM. First, ZenFi has failed to 
justify a waiver based on special circumstances because there is 
nothing unique or unusual about its situation. It is no different than 
any other operator who has potential interest in using the above 95 GHz 
bands, and has not demonstrated a need to use this band that cannot be 
met by deployment in another band. Second, ZenFi has not shown that a 
deviation from the general rule would be in the public interest. 
Although ZenFi generally discusses its intent to address the growing 
demand for wireless links capable of delivering 10GE, it fails to 
reference a specific proposed deployment that would require a waiver, 
or discuss the extent to which its proposed deployments could not be 
reasonably achieved on other spectrum. ZenFi has also failed to 
distinguish itself from any other party who would potentially be 
interested in using the 102-109.5 GHz band. ZenFi also fails to satisfy 
the third prong, because a waiver grant here would essentially replace 
the current rulemaking process, undermining the validity of that final 
rule. This is particularly true in this band where the Commission lacks 
any actual service, licensing, or technical rules. What ZenFi is 
requesting is not a waiver of the existing rules, but the authority to 
operate absent any established rules governing the operations. As noted 
above, there are a series of issues that the Commission must decide 
before it authorizes service in the 102-109.5 GHz band and develops 
service rules for that band, including whether to adopt the existing 
70/80/90 GHz licensing regime for this band. The Commission does not 
believe that it would be a prudent policy to subject licensees and 
their customers to this potential disruption, particularly in the 
absence of any specific, demonstrated need for interim operation in the 
band. While the Commission may ultimately adopt rules similar to what 
Battelle has proposed, ZenFi (and SMG) have not justified the need for 
a waiver prior to our developing a full record on the proposed changes.
    61. McKay Brothers Waiver. McKay Brothers has requested that if the 
Commission were not to issue a notice of proposed rulemaking regarding 
Battelle's petition, the Commission should consider granting a waiver 
of the Commission's rules to permit operations similar to ZenFi's 
waiver request. Because the Commission has deemed Battelle's rulemaking 
petition granted-in-part, the Commission shall likewise consider McKay 
Brothers request

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granted-in-part and dismiss it from further considerations.
    62. Procedural Matters. Ex Parte Rules--Permit-but-disclose. 
Pursuant to Sec.  1.1200(a) of the Commission's rules, this NPRM shall 
be treated as a ``permit-but-disclose'' proceeding in accordance with 
the Commission's ex parte rules. Persons making ex parte presentations 
must file a copy of any written presentation or a memorandum 
summarizing any oral presentation within two business days after the 
presentation (unless a different deadline applicable to the Sunshine 
period applies). Persons making oral ex parte presentations are 
reminded that memoranda summarizing the presentation must (1) list all 
persons attending or otherwise participating in the meeting at which 
the ex parte presentation was made, and (2) summarize all data 
presented and arguments made during the presentation. If the 
presentation consisted in whole or in part of the presentation of data 
or arguments already reflected in the presenter's written comments, 
memoranda or other filings in the proceeding, the presenter may provide 
citations to such data or arguments in his or her prior comments, 
memoranda, or other filings (specifying the relevant page and/or 
paragraph numbers where such data or arguments can be found) in lieu of 
summarizing them in the memorandum. Documents shown or given to 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with rule 1.1206(b). 
In proceedings governed by rule 1.49(f) or for which the Commission has 
made available a method of electronic filing, written ex parte 
presentations and memoranda summari