Shared Use of the 42-42.5 GHz Band, 49423-49433 [2023-16167]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 88, Number 145 (Monday, July 31, 2023)]
[Proposed Rules]
[Pages 49423-49433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16167]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[WT Docket No. 23-158; GN Docket No. 14-177; FCC 23-51; FR ID 157853]


Shared Use of the 42-42.5 GHz Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; solicitation of comment.

-----------------------------------------------------------------------

SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) seeks comment on how innovative, non-exclusive 
spectrum access models might be deployed in the 42 GHz band (42-42.5 
GHz) to provide increased access to high-band spectrum, particularly by 
smaller wireless service providers, and to support efficient, intensive 
use of the band. The Commission also seeks comment on how potential 
sharing and licensing regimes might lower barriers to entry for smaller 
or emerging wireless service providers, encourage competition, and 
prevent spectrum warehousing.

DATES: Comments are due on or before August 30, 2023; reply comments 
are due on or before September 29, 2023. Written comments on the 
Paperwork Reduction Act proposed information collection requirements 
must be submitted by the public, the Office of Management and Budget 
(OMB), and other interested parties on or before September 29, 2023. 
Written comments on the Initial Regulatory Flexibility Analysis (IRFA) 
in this document must have a separate and distinct heading designating 
them as responses to the IRFA and must be submitted by the public on or 
before August 30, 2023.

ADDRESSES: Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules (47 CFR 1.415, 1.419), interested parties may file comments and 
reply comments on or before the dates indicated on the first

[[Page 49424]]

page of this document. Comments may be filed using the Commission's 
Electronic Comment Filing System (ECFS). See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121 (1998). You may submit 
comments, identified by WT Docket No. 23-158; and GN Docket 14-177, by 
any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
     Paper Filers:
     Parties who choose to file by paper must file an original 
and one copy of each filing.
     Filings can be sent by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mall. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington, DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    People with Disabilities: To request materials in accessible 
formats (braille, large print, computer diskettes, or audio 
recordings), please send an email to [email protected] or call the 
Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 
418-0432 (TTY).

FOR FURTHER INFORMATION CONTACT: Catherine Schroeder of the Wireless 
Telecommunications Bureau, Broadband Division, at 
[email protected] or 202-418-1956. For additional information 
concerning the Paperwork Reduction Act proposed information 
requirements contained in this document, send an email to [email protected] 
or contact Kathy Williams at (202) 418-2918.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM) in WT Docket No. 23-158 and GN Docket No. 
14-177; FCC 23-51, adopted on June 8, 2023, and released on June 9, 
2023. The full text of this document is available at https://docs.fcc.gov/public/attachments/FCC-23-51A1.pdf.
    Regulatory Flexibility Act: The Regulatory Flexibility Act of 1980, 
as amended (RFA), requires an agency to prepare a regulatory 
flexibility analysis for notice-and-comment rulemakings, unless the 
agency certifies that ``the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small 
entities.'' The Commission seeks comment on potential rule and policy 
changes contained in the NPRM, and accordingly, has prepared an IRFA. 
The IRFA for this NPRM in WT Docket No. 23-158 and GN Docket No. 14-177 
is set forth below in this document and written public comments are 
requested. Comments must be filed by the deadlines for comments on the 
NPRM indicated under the DATES section of this document and must have a 
separate and distinct heading designating them as responses to the 
IRFA. The Commission reminds commenters to file in the appropriate 
dockets: WT Docket No. 23-158 and GN Docket No. 14-177.
    Paperwork Reduction Act: This document may contain proposed 
modified information collection requirements. Therefore, the Commission 
seeks comment on potential new or revised information collections 
subject to the Paperwork Reduction Act of 1995. If the Commission 
adopts any new or revised information collection requirements, the 
Commission will publish a notice in the Federal Register inviting the 
general public and the Office of Management and Budget to comment on 
the information collection requirements, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), the Commission seeks specific comments on how it 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees.
    Ex Parte Rules: This proceeding 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. 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 summarizing oral ex parte 
presentations, and all attachments thereto, must be filed through the 
electronic comment filing system available for that proceeding, and 
must be filed in their native format (e.g., .doc, .xml, .ppt, 
searchable .pdf). 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). Participants in this 
proceeding should familiarize themselves with the Commission's ex parte 
rules.

Synopsis

I. Notice of Proposed Rulemaking in WT Docket No. 23-158 and GN Docket 
No. 14-177

A. Background

    1. As part of a multiyear effort to enable deployment of advanced 
wireless services such as 5G, the Commission has made 4.95 gigahertz of 
spectrum above 24 GHz available on an exclusively-licensed geographic 
area basis. The Commission has already established service and 
licensing rules for the 24 GHz, 28 GHz, Upper 37 GHz, 39 GHz, and 47 
GHz bands, all of which are available on either a county or a Partial 
Economic Area (PEA) basis.\1\ The

[[Page 49425]]

Commission has held three auctions to award licenses in these bands, 
the most recent of which was completed in 2020.
---------------------------------------------------------------------------

    \1\ See Use of Spectrum Bands Above 24 GHz For Mobile Radio 
Services, et al., Report and Order and Further Notice of Proposed 
Rulemaking, 31 FCC Rcd 8014, 8154, paragraph 403 (2016); Use of 
Spectrum Bands Above 24 GHz For Mobile Radio Services, et al., 
Second Report and Order, Second Further Notice of Proposed 
Rulemaking, Order on Reconsideration, and Memorandum Opinion and 
Order, 32 FCC Rcd 10988 (2017); Use of Spectrum Bands Above 24 GHz 
For Mobile Radio Services, et al., Third Report and Order, 
Memorandum Opinion and Order, and Third Further Notice of Proposed 
Rulemaking, 33 FCC Rcd. 5576 (2018); Use of Spectrum Bands Above 24 
GHz For Mobile Radio Services, et al., Fourth Report and Order, 33 
FCC Rcd 12168 (2018). See also 47 CFR 30.4, 30.5. When citing to the 
Report and Order portions of the 2016 or 2018 documents, the 
Commission will refer to the First R&O or Third R&O, respectively. 
When citing to the Memorandum Opinion and Order portion of the 2018 
document, the Commission will refer to the MO&O. When citing to the 
Further Notice of Proposed Rulemaking portion of the 2016 or 2018 
document, the Commission will refer to the First FNPRM or Third 
FNPRM, respectively.
---------------------------------------------------------------------------

    2. The Commission also has made available a significant amount of 
high-band spectrum for unlicensed use. The rules for unlicensed device 
use at 57-64 GHz were expanded in 2016 to include 64-71 GHz, bringing 
the total amount of high-band spectrum available on an unlicensed basis 
to 14 gigahertz.
    3. The 42 GHz band is currently allocated to non-Federal Fixed and 
Mobile services on a primary basis; there is no Federal allocation in 
the band.\2\ Although the Commission sought comment previously on 
proposed service rules for this band among other bands above 24 GHz, 
none are currently in place, and the band has no incumbent 
licensees.\3\ The lower adjacent 40-42 GHz band has been designated for 
satellite use. The upper adjacent 42.5-43.5 GHz band is allocated to 
radio astronomy services (RAS) on a primary basis for Federal and non-
Federal use and to the Federal fixed, fixed-satellite (Earth-to-space), 
and mobile--except aeronautical mobile--services on a primary basis.\4\
---------------------------------------------------------------------------

    \2\ 47 CFR 2.106.
    \3\ Nine experimental licenses are authorized for testing using 
this frequency range. Pursuant to the Commission's rules, operation 
of an experimental radio station is permitted only on the condition 
that harmful interference is not caused to licensees. If harmful 
interference to an established radio service occurs, upon becoming 
aware of such harmful interference the Experimental Radio Service 
licensee must immediately cease transmissions. See 47 CFR 5.84.
    \4\ 47 CFR 2.106. Footnote US211 urges applicants for airborne 
or space stations assignments in the 40.5-42.5 GHz band to take all 
practicable steps to protect radio astronomy observations in the 
42.5-43.5 GHz band from harmful interference. 47 CFR 2.106 n.US211.
---------------------------------------------------------------------------

    4. The Commission previously sought comment on a proposal to 
authorize flexible fixed and mobile operations in the 42 GHz band under 
the new part 30 Upper Microwave Flexible Use Service (UMFUS) rules, but 
only on the condition that adjacent channel RAS at 42.5-43.5 GHz could 
be protected. Specifically, the Commission sought comment and detailed 
information on what protections should be established for this adjacent 
band--for example, whether out-of-band emission limits into the 42.5-
43.5 GHz band should be established or whether it was necessary to 
create a guard band below 42.5 GHz. The Commission also sought comment 
on the appropriate band plan for the 42 GHz band, including whether the 
band should be licensed as a single channel, split into two channels, 
or split into multiple 100 megahertz channels. The Commission proposed 
licensing the band geographically using PEAs.
    5. Pursuant to the directives in the MOBILE NOW Act,\5\ the 
Commission later included in the Third FNPRM, 83 FR 34520 (July 20, 
2018), requests for further comment on a regulatory framework to enable 
licensed and/or unlicensed uses of the 42 GHz band. The Commission 
received 17 comments and six reply comments to the Third FNPRM relating 
to the 42 GHz band.
---------------------------------------------------------------------------

    \5\ MOBILE NOW Act, Public Law 115-141, Div. P, tit. VI, 132 
Stat. 1097 (2018), Sec.  604(a), (b)(1), (b)(2) (codified at 47 
U.S.C. 1503) (requiring the Commission to publish a Notice of 
Proposed Rulemaking to consider service rules to authorize mobile or 
fixed terrestrial wireless operations, including for advanced mobile 
service operations, in the 42 GHz band).
---------------------------------------------------------------------------

B. Shared Use of the 42-42.5 GHz Band

1. Potential Benefits of Shared Licensing
    6. Millimeter wave (mmW) \6\ transmissions have a shorter 
propagation range than lower-frequency spectrum and are blocked by 
walls and other obstacles, making it easier to reuse the same band or 
channel within a smaller geographic area. Technological advances such 
as MIMO (multiple-input multiple-output) and beamforming antennas offer 
additional possibilities for reuse between multiple operators. Given 
that the Commission already has offered both traditionally-licensed 
spectrum (on a geographic basis) and made spectrum available on a 
flexible basis for unlicensed devices in the mmW bands, and that the 
characteristics of mmW spectrum lend themselves to sharing and reuse, 
the Commission seeks to explore how novel approaches to shared 
licensing may support increased efficiency and intensity of use among a 
wider range of users within this mmW spectrum.
---------------------------------------------------------------------------

    \6\ Generally, spectrum between 30 GHz and 300 GHz.
---------------------------------------------------------------------------

    7. Unlike many other mmW bands, the 42 GHz band has no existing 
operations, either federal or non-federal.\7\ This ``greenfield'' 
spectrum gives the Commission greater flexibility in designing a shared 
licensing scheme that may be optimized for future use and can take 
advantage of new developments in technology more easily than a band 
with existing deployments. The Commission therefore believes that 
consideration of alternatives to exclusive geographic area licensing in 
the 42 GHz band is appropriate.
---------------------------------------------------------------------------

    \7\ As of March 31, 2023, nine experimental licenses are 
authorized for testing using this frequency range; however, as noted 
above, these licenses are issued on a noninterference basis. See 47 
CFR 5.84.
---------------------------------------------------------------------------

    8. Although the Commission has previously sought comment on 
licensing the 42 GHz band on the same geographic area basis as the 
UMFUS bands such as the 37/39 GHz bands,\8\ those two ranges are 
separated by the 40-42 GHz satellite-only band. This separation means 
that there appear to be fewer potential synergies to using the same 
licensing approach in both bands than if the two could be combined into 
a single continuous band.
---------------------------------------------------------------------------

    \8\ Some commenters supported this approach.
---------------------------------------------------------------------------

    9. The benefits of potential unlicensed use of the 42 GHz band also 
appear to be limited. No commenter previously supported making this 
band available on an unlicensed basis, and de Vries suggested that 
unlicensed use of the band would not provide adequate protection 
against harmful interference. This latter point is significant given 
the importance of protecting RAS operations in the adjacent 42.5-43.5 
GHz band. Harmful interference from unlicensed devices would likely be 
more difficult to resolve, given the additional difficulty relative to 
licensed operations of identifying the specific interferer.
    10. In light of these considerations, the Commission seeks comment 
on applying a shared approach to the 42 GHz band. The Commission asks 
commenters to enumerate the benefits or drawbacks of this approach, as 
compared with either an exclusive-use licensed \9\ or unlicensed 
approach.
---------------------------------------------------------------------------

    \9\ The Commission notes that it has already established a 
record on an exclusive-use licensed approach for the 42 GHz band. 
See Third FNPRM, 33 FCC Rcd at 5599, paragraph 54.
---------------------------------------------------------------------------

2. Shared Licensing Approaches
    11. In this section, the Commission discusses a variety of 
potential approaches to licensing the 42 GHz band on a shared basis. 
These approaches may have different costs and benefits in different 
situations, and some may facilitate certain uses better than others. 
The Commission seeks comment on these approaches and on any 
alternatives that might better promote its goals of more efficient 
spectrum use and lower barriers to spectrum access compared with 
traditional exclusive-use licensing in this band.
    12. Nationwide non-exclusive licensing. Under this approach,

[[Page 49426]]

currently in use in the 70/80/90 GHz bands, operators would first 
obtain a nationwide non-exclusive license from the Commission, and then 
coordinate specific deployment sites with a third-party database. This 
approach would likely require advance work in identifying and setting 
up a database administrator but could facilitate quick and efficient 
site registration once established. OTI, focusing on point-to-
multipoint service, supports this licensing regime for the 42 GHz band 
(as well as for the Lower 37 GHz band), and it argues that such a 
system would reduce costs and facilitate entry and coexistence between 
licensees. Charter also supports this approach for the Lower 37 GHz 
band, in order to promote greater efficiency.
    13. The Commission seeks comment on the potential use of this 
nationwide non-exclusive licensing approach for the 42 GHz band. Would 
this model best facilitate efficient use of this spectrum? Would it 
lower barriers to entry as compared with either traditional exclusive-
use licensing, or the other shared licensing approaches discussed in 
this NPRM? Commenters advocating such an approach should also provide 
information regarding any limitations that should be placed on users. 
For example, should all licensees operating in a common area have 
access to the full 500 megahertz or only a portion to preserve the 
ability of other licensees to operate in that same area? Should there 
be limitations on the size of a service area that could be registered 
with a database to promote coexistence and enable access by other 
licensees? Should the Commission simply make the band available and 
require licensees to cooperate in the selection and use of frequencies 
in the band? What are the costs and benefits of taking this approach? 
The Commission notes that OTI's proposal focuses on fixed point-to-
multipoint service. Would it be possible to use this approach to 
license mobile service as well? What would be the costs or obstacles 
associated with identifying and establishing a database administrator? 
The Commission seeks comment on these issues and any other 
considerations involved with a nationwide non-exclusive model for this 
band.
    14. Site-based licensing. Alternatively, the Commission could 
license the 42 GHz band on a site-by-site basis directly, without the 
use of a nationwide non-exclusive license regime or a third-party 
database. This approach might provide greater transparency than the use 
of third-party databases, because information for each licensed site--
including, for example, construction notifications demonstrating 
whether buildout requirements have been met--would be publicly 
available in the Commission's Universal Licensing System (ULS). This 
would also allow the Commission to be more responsive to potential 
disputes, and facilitate easier administration and enforcement of 
buildout requirements, without needing to communicate with the third-
party database manager as part of this process.
    15. The Commission seeks comment on a potential site-based 
licensing approach in this context. Would licensing each individual 
site directly be overly burdensome on licensees? Would adopting a site-
based licensing approach facilitate the easier enforcement of buildout 
requirements as compared to using a third party database registrar, and 
therefore contribute to greater efficiency and less warehousing of this 
spectrum? To what extent would the lack of a third-party database 
administrator result in logistical hurdles that might increase costs or 
decrease efficiency of licensees' operations, or would it be a benefit 
to have license issues addressed directly with the Commission? Would 
prospective licensees be able to access this spectrum more quickly and 
easily under a third-party database approach, versus licensing each 
site with the Commission? Would there be additional or different 
technical or operational rules needed under either approach, for 
example specific rules for resolving coexistence issues under site-
based licensing versus relying on the database for this purpose in a 
third-party registration approach? The Commission seeks comment on 
these and any other considerations relating to this licensing model.
    16. Technology-based sensing. In the context of the Lower 37 GHz 
band, Qualcomm proposes that the Commission adopt a technology-based 
long-term sensing mechanism for mmW spectrum. Qualcomm suggests that 
this approach would allow ``multiple licensees each using any air 
interface, to share on a licensed basis the entire . . . band in the 
same location, on the same frequencies, and at the same time, by taking 
advantage of the highly directional nature of mmW communications.'' 
\10\ This proposal, which describes technology-based sensing using a 
geographic area licensing regime, would require that licensees 
coordinate among themselves a measurement window during which all 
licensees (except for a priority user in each channel) cease 
transmissions for a given time period in order to use long-term sensing 
to detect any active receivers, and then transmit afterwards only in 
directions where no such receivers are detected. Qualcomm suggests 
that, if properly implemented, this system would provide priority 
licensees with more reliable protection than other sensing-based 
systems such as Listen Before Talk, and would also allow indoor 
operation across the entire band without disrupting priority or outdoor 
operations, and without requiring a database.
---------------------------------------------------------------------------

    \10\ Letter from John W. Kuzin, Vice President, Qualcomm, to 
Marlene H. Dortch, Secretary, FCC, GN Docket 14-177 et al., at 1 
(filed Mar. 18, 2022) (emphasis removed). See also Letter from John 
W. Kuzin, Vice President, Qualcomm, to Marlene H. Dortch, Secretary, 
FCC, GN Docket 14-177 et al., at 2 (filed Oct. 2, 2021).
---------------------------------------------------------------------------

    17. The Commission seeks comment on applying this potential 
approach to the 42 GHz band, and the attendant costs and benefits of 
adopting a technology-based sensing framework. Because Qualcomm 
designed this proposal for the Lower 37 GHz band, are there changes 
that would need to be made to make it suitable for the 42 GHz band? For 
example, would this proposal be viable without a priority user in a 
given channel? Similarly, given that Qualcomm's proposal demonstrates 
how technology-based sensing operates using geographic license areas, 
would adjustments need to be made to the proposal for a different type 
of licensing regime? Further, would the measurement and sensing 
requirements mean that users of the 42 GHz band could not take 
advantage of the equipment ecosystems of existing millimeter-wave 
bands? If so, would it increase equipment costs or increase barriers to 
entry for smaller or emerging operators? Are there other long-term 
sensing systems that should be considered? The Commission seeks comment 
on what steps the Commission or industry should take to ensure that, if 
adopted, any technology-based sensing protocols are non-proprietary/
open-source or widely available to maximize use and drive innovation. 
The Commission seeks comment on these and any other considerations for 
this approach.
    18. Coordination mechanism. The Commission assumes that any shared 
licensing regime will require a coordination mechanism to protect all 
licensees from harmful interference. Examples of potential coordination 
mechanisms include the third-party database queries used in 70/80/90 
GHz, the Spectrum Access Systems (SAS) used in the Citizens Broadband 
Radio Service to manage access to spectrum by different classes of 
licensed users in the 3550-3700 MHz band, the Automated

[[Page 49427]]

Frequency Coordination (AFC) system recently established in 6 GHz to 
facilitate coexistence of unlicensed devices with incumbent operations 
and radio astronomy observatories, and equipment-based long-term 
sensing like the approach proposed by Qualcomm for the Lower 37 GHz 
band. The Commission seeks comment on these and other potential 
coordination mechanisms. What are the costs and benefits of each model? 
Which model would work best for each potential licensing regime? Are 
there concerns specific to the 42 GHz band that might recommend one 
coordination mechanism over another?
    19. Other Considerations. The Commission seeks general comment on 
the sharing and licensing mechanisms described above, as applied to the 
42 GHz band. Which model would be most conducive to the intensive and 
efficient use of this spectrum? Which model would yield the greatest 
benefits, at the least cost? What are the potential barriers to 
deployment, operation, or equipment availability under each model? The 
Commission also seeks comment on which types of services might be 
accommodated by these shared licensing regimes. OTI suggests the 
Commission also allow for point-to-multipoint service in this context. 
Would it be possible to accommodate both point-to-point and point-to-
multipoint services in the 42 GHz band? Would it also be possible to 
accommodate mobile service? Are there specific licensing or sharing 
mechanisms that would better facilitate multiple services in the band? 
Are there specific technical or licensing requirements or coordination 
mechanisms that would better facilitate the inclusion of mobile 
service?
    20. The Commission seeks comment on whether first-in-time 
protections \11\ are necessary or appropriate for each of the shared 
licensing regimes discussed above, and if so, what form they should 
take. Charter argues that the use of time division duplex (TDD) 
synchronization would enable multiple operators to coexist in exactly 
the same area. Would requiring TDD synchronization be sufficient to 
enable such reuse? If so, would such a system render first-in-time 
protections moot? To what extent would the certainty provided by a 
first-in-time guarantee be necessary to encourage deployment in this 
band? Would the lack of such a guarantee deter investment by potential 
licensees? Do the answers to these questions depend on which shared 
licensing regime the Commission adopts? Are there licensing mechanisms 
(such as technology-based sensing) for which a first-in-time guarantee 
would be unnecessary, or more burdensome than beneficial? If the 
Commission does not adopt first-in-time protections, what other 
mechanisms might resolve situations of congestion or harmful 
interference in a particular area? The Commission seeks general comment 
on this issue, including on any other potential costs or benefits not 
mentioned here.
---------------------------------------------------------------------------

    \11\ The Commission could, for example adopt a first-come-first-
served licensing or registration scheme in which the first actual 
users that are licensed/registered have a right to interference 
protection (provided they deploy their systems within the requisite 
time period), but they have no right to exclude other users.
---------------------------------------------------------------------------

    21. The Commission also seeks comment on the appropriate 
coordination requirements for site-based licensing or site-based 
registration (in conjunction with a nationwide license), should the 
Commission adopt it. OTI suggests that site-based licensing (or 
registration) should require coordination not only on a site-by-site 
basis, but on a sector-by-sector basis, to increase spectrum reuse, 
avoid warehousing, and encourage competition. Would this level of 
specificity be feasible from a deployment perspective? Would it be 
unduly burdensome on licensees who might wish to license or register 
multiple sectors at the same site? How prevalent are deployment 
scenarios in which operators use only a subset of sectors? Would access 
to one sector (or some subset of a full arc) at a particular site 
provide smaller or later-deploying operators with a greater opportunity 
to deploy alongside other licensees? If the Commission does incorporate 
sector-level licensing or registration, what would the appropriate 
sector size be? Is it 30-degree sectors, as OTI suggests? Should the 
Commission allow licensees or registrants to specify a sector size when 
applying or registering? If sector-based licensing is not appropriate 
in the 42 GHz band, is there some other way of licensing or registering 
sites that might facilitate greater spectrum reuse while still 
providing licensees with adequate spectrum access?
    22. The Commission also seeks comment on whether there would be any 
potential synergies in the instant context with approaches being 
considered for the Lower 37 GHz (37-37.6 GHz) band. In 2016, the 
Commission adopted rules to permit fixed and mobile terrestrial 
operation across the 37 GHz band (37-38.6 GHz) and made the Lower 37 
GHz band available for coordinated co-primary sharing between Federal 
and non-Federal users, with the non-Federal users licensed by rule. The 
Commission indicated that both Federal and non-Federal users would 
access the band by registering individual sites through a coordination 
mechanism and sought comment on the details of that coordination 
mechanism and what functions it should perform. In 2018, the Commission 
sought comment on several specific proposals for this coordination 
mechanism, including first-come-first-served site-based licensing or 
registration in conjunction with several different types of potential 
licenses. In addition to OTI, Charter, and Qualcomm, whose proposals 
are discussed above, several commenters suggest that Commission base 
its rules for Lower 37 GHz on those adopted for the 70/80 GHz bands. 
The Commission seeks comment on whether it should adopt a shared 
licensing approach for the 42 GHz band that mirrors the Commission's 
approach to the Lower 37 GHz band. What would be the benefits or costs 
to doing so? Are there other ways to leverage the potential of these 
bands together? The Commission notes that unlike the 42 GHz band, the 
Lower 37 GHz band must accommodate sharing and coordination between 
Federal and non-Federal users.
    23. Finally, the Commission also seeks comment on any other model 
or mechanism for non-exclusive licensing not discussed here which may 
be better suited for the 42 GHz band, or any other relevant 
considerations for these or other shared licensing regimes. Commenters 
suggesting alternative approaches should do so with as much specificity 
as possible, including discussing the potential costs and benefits of 
their proposed option as compared with the approaches above and either 
an exclusive-use licensed or unlicensed approach. The Commission also 
seeks comment on whether it could enable secondary operations in the 42 
GHz band, while still ensuring primary licensees protection from 
harmful interference.
3. Buildout Requirements
    24. In traditional exclusive-use geographic area licensing regimes, 
the Commission typically sets buildout requirements in terms of service 
coverage of a given percentage of the population of the license area. 
For licensing regimes not tied to a particular license area, or where a 
license area is shared among multiple licensees, however, this metric 
may not be suitable or feasible. The Commission's overarching goal is 
to adopt a buildout metric that ensures in each circumstance that 
spectrum is meaningfully being put to use in practice. To this end, the 
Commission

[[Page 49428]]

seeks comment on the appropriate buildout requirements for potential 
licensees under the various approaches described above.
    25. One buildout approach could be to require licensees to begin 
operations within a specified time. OTI has proposed that an 
appropriate timeframe would be 12 months or less from site 
registration, after which a licensee would lose any first-in-time 
protections for that site. The Commission seeks comment on this 
proposal, including any alternative timeframes. The Commission also 
seeks comment on whether this approach would be better suited to 
certain sharing and licensing regimes, and, conversely, whether it 
might be unsuitable or inapplicable to certain others. Recognizing that 
the Commission seeks comment above on whether it should adopt first-in-
time protections for this band, if the Commission ultimately do not 
adopt such protections as part of the shared licensing regime here, 
what other consequence for failing to meet a build-out deadline might 
be appropriate? Would any consequence for failure to build out in a 
timely manner be necessary in such circumstances?
    26. The Commission also seeks general comment on the appropriate 
buildout metrics for potential technology-based sharing regimes. If the 
Commission ultimately adopts a sharing mechanism where the equipment 
itself determines access to spectrum, should it impose any buildout 
requirement at all, or is the inherently non-exclusive nature of such a 
regime sufficient to ensure efficient use and prevent spectrum 
warehousing? The Commission seeks comment on these and any other 
considerations for buildout requirements under sharing regimes based on 
technology-based long-term sensing, including any potential solutions 
not discussed here.
    27. The Commission also seeks comment on any other potential 
buildout requirement metrics or levels suitable for the sharing 
mechanisms discussed in this NPRM. Additionally, to the extent that 
commenters have suggestions for other potential sharing or licensing 
mechanisms, the Commission encourages them to include suggestions for 
corresponding buildout requirements, or other methods of ensuring 
efficient spectrum use and preventing spectrum warehousing.
4. License Term and Applicability of Part 30 Technical Rules
    28. The Commission previously sought comment on licensing the 42 
GHz band under the part 30 UMFUS licensing and technical rules. 
Although the Commission is not proposing to adopt an exclusive-use 
licensing regime, it does propose to adopt a ten-year license term for 
licenses in this band, similar to other part 30 services. The 
Commission seeks comment on this proposal, and ask whether there are 
additional considerations in adopting a ten-year license term under a 
shared licensing approach.
    29. The mmW bands the Commission has previously licensed are all 
governed by the technical rules found in part 30.\12\ This uniform 
treatment facilitates development of a common equipment ecosystem and 
easier operator deployment, and is supported generally in the 
underlying record in this proceeding.\13\ Inclusion in this uniform 
technical regime might allow these benefits to also accrue to the 42 
GHz band. If this band is made available under a licensing scheme 
significantly different from the other part 30 bands, however, it is 
possible that those benefits might be diminished, or costs or other 
inefficiencies incurred.
---------------------------------------------------------------------------

    \12\ 47 CFR 30.201 through 209.
    \13\ No commenters oppose the inclusion of 42 GHz in these 
technical rules, or suggest specific variations.
---------------------------------------------------------------------------

    30. The Commission seeks comment on the applicability of the part 
30 technical rules to the 42 GHz band as licensed under the various 
potential sharing regimes outlined above. Should the Commission apply 
these existing technical rules for the 42 GHz band, regardless of the 
licensing regime it ultimately adopts? Are there changes to the 
technical rules might be appropriate or necessary to accommodate shared 
licensing? Are there different costs or benefits that may be associated 
with the existing part 30 technical rules in this context, which the 
Commission has not previously considered?
5. Band Plan
    31. In the Third FNPRM, the Commission proposed to license the 42 
GHz band as five 100 megahertz channels. Most commenters supported the 
Commission's proposal. They noted that a 100 megahertz channel is a 
building block for mmW mobile equipment, and that this channel size is 
consistent with 3rd Generation Partnership Project (``3GPP'') standards 
in the mmW bands. Several commenters also asserted that 100 megahertz 
block sizes would facilitate the deployment of 5G services. A few 
commenters advocated using 200 MHz channels. For example, TIA argues 
that wider channels will better support 5G services.\14\ In response to 
the First FNPRM, 81 FR 58269 (August 24, 2016), Qualcomm also supported 
a band plan with two 200 megahertz channels.
---------------------------------------------------------------------------

    \14\ TIA addressed this issue in its comments to a separate 
Further Notice, 83 FR 42089 (Aug. 20, 2018). See Use of Spectrum 
Bands Above 24 GHz For Mobile Radio Services, GN Docket 14-177, 
Fourth Further Notice of Proposed Rulemaking, 33 FCC Rcd 7674 (2018) 
(Fourth FNPRM). See TIA Fourth FNPRM Comments at 5-6, Table 1, 11.
---------------------------------------------------------------------------

    32. The Commission again proposes to license the 42 GHz band in 
five 100 megahertz channels and seeks comment on this proposal in the 
context of the new proposals under consideration here. Would the 
benefits previously noted by commenters supportive of 100 megahertz 
channels still apply under the sharing regimes discussed above? Would 
the increased flexibility of a non-exclusive licensing regime benefit 
more from 100 megahertz channels, or from another channel size? Are 
there particular sharing or licensing regimes that would benefit most 
from a different channel size?
6. Protecting RAS Services at 42.5-43.5 GHz
    33. As noted above, in the First FNPRM, the Commission proposed to 
authorize flexible mobile and fixed operations in the 42 GHz band, 
provided that RAS could be protected in the adjacent 42.5-43.5 GHz 
band.\15\ The Commission sought comment on the forms that such 
protection should take, e.g., whether it should establish special out-
of-band emission (OOBE) limits into the 42.5-43.5 GHz band or create a 
guard band below 42.5 GHz. After noting the National Academy of 
Sciences' Committee on Radio Frequencies (CORF) and T-Mobile's 
agreement that RAS bands could be protected by limiting UMFUS 
operations near an RAS observatory, the Commission renewed its call in 
the Third FNPRM for interested parties to provide detailed technical 
analysis of the coexistence of RAS with terrestrial mobile operations 
that fully supported any proposed methodology. Specifically, the 
Commission asked whether its rules should be based on the International 
Telecommunication Union Radiocommunication Sector (ITU-R) RA.769 
parameters, or alternate protection criteria, and sought comment on 
whether to establish coordination zones around relevant RAS facilities.
---------------------------------------------------------------------------

    \15\ The adjacent band, 42.5-43.5 GHz, is allocated for Federal 
and non-Federal RAS operations and Federal fixed, earth-to-space 
satellite and mobile services. 47 CFR 2.106.
---------------------------------------------------------------------------

    34. CORF has asserted that frequency lines at 42.519, 42.821, 
43.122, and 43.424 GHz are of the greatest importance for the detection 
of strong silicon monoxide maser emissions from stars and star forming 
regions, which

[[Page 49429]]

facilitates the measurement of stellar temperature, density, wind 
velocity and other parameters. The 42 GHz band also is one of the 
preferred bands for measuring continuum observations. RAS observations 
are currently made at a limited set of observatories around the United 
States.\16\ Additionally, according to a report by the National Academy 
of Sciences, Engineering, and Medicine, the Next Generation Very Large 
Array (ngVLA) is a top priority for U.S. astronomy in the coming decade 
and would include new sites predominantly near the current VLA, but 
also throughout New Mexico and adjacent states with long baseline 
stations in close proximity to existing VLBA stations. Because a 
typical radio telescope receives less than 1 percent of one-billionth 
of one-billionth of a watt (10-\20\ W) from a typical cosmic 
object, the telescope is particularly vulnerable to in-band emissions, 
spurious out-of-band emissions, and emissions producing harmonics, 
making protection important. CORF has represented that the detrimental 
levels for continuum and spectral line radio astronomy observations for 
single dishes are -227 dBW/m\2\/Hz and -210 dBW/m\2\/Hz, respectively, 
for the average across the full 1 gigahertz of the 42.5-43.5 GHz band 
and the peak level in any single 500 kHz channel, as based upon ITU-R 
RA.769, Tables 1 and 2, respectively. For observations using the entire 
VLBA, CORF represented that the corresponding limit is -175 dBW/m\2\/
Hz). T-Mobile agreed that the ITU power flux density (PFD) limits are 
appropriate to address potential interference to RAS.
---------------------------------------------------------------------------

    \16\ RAS observations in this band are currently made at various 
U.S. observatories: Green Bank Telescope (GBT), WV; VLA Socorro, NM; 
Westford, MA (Haystack); Brewster, WA; Fort Davis, TX; Hancock, NH; 
Kitt Peak, AZ; Los Alamos, NM; Mauna Kea, HI; North Liberty, IA; 
Owens Valley, CA; Pie Town, NM; St. Croix, VI. CORF FNPRM Comments 
at 9 & n.7 (citing 47 CFR 2.106, n.US131).
---------------------------------------------------------------------------

    35. Proponents of using the 42 GHz band for flexible terrestrial 
wireless use have generally agreed that various practical methods may 
be effective at protecting RAS, including use of exclusion zones, 
coordination zones, and aggregate emissions limits--particularly 
because RAS sites are remotely located. None provide detailed 
information or examples showing how these proposed methods would work 
in practice.\17\ Regarding whether it is necessary or appropriate to 
establish a guard band below 42.5 GHz in order to protect RAS, CORF 
stated that a guard band of 200 MHz within the radio horizon around 
radio astronomy sites would meet the ITU-R RA.769 protection criteria. 
T-Mobile argued that a guard band is unnecessary and the ITU protection 
threshold can be met with minimum exclusion distances. In response to 
the First FNPRM, some commenters asserted that a guard band would 
narrow the usable aspects of the 42 GHz band.\18\ TIA argued it should 
be possible to craft UMFUS operating rules that protect adjacent RAS 
services via geographic coordination or otherwise, making guard bands 
unnecessary, especially since they interfere with the Commission's 
channel block plans.
---------------------------------------------------------------------------

    \17\ Although they provide no new studies, Nokia and others 
direct the Commission to T-Mobile's RAS sharing study, produced for 
the 32/47/50 GHz bands and assert this study is well-suited to also 
calculating protection zones for RAS sites operating adjacent to the 
42 GHz band. CORF agrees this study could be applicable for 
calculating coordination distances. The Commission does not find 
this study sufficient to establish coordination distances because it 
is based on an analysis done with respect to different systems in 
the 32 GHz band.
    \18\ FWCC urges that any guard band adopted should be limited to 
fixed-only operations subject to full fixed service frequency 
coordination to control emissions in the direction of RAS sites.
---------------------------------------------------------------------------

    36. The Commission agrees with CORF and T-Mobile that RAS bands can 
probably be protected by limiting 42 GHz operations near a RAS facility 
to reduce the risk of terrestrial interference. Because the Commission 
believes that geographic separation of 42 GHz licensed operations and 
RAS facilities will provide sufficient protection of RAS facilities, it 
does not propose to impose out-of-band emissions limits on licenses in 
the 42 GHz band that are tighter than out-of-band-emissions limits on 
UMFUS licenses in other mmW bands. Furthermore, the Commission does not 
propose to establish coordination zones around RAS facilities because 
it believes that compliance with the limits it proposes in this NPRM 
will be sufficient to protect RAS observations. The record to date does 
not contain sufficient information to determine whether, and if so, at 
what distances, coordination zones would be appropriate, but the 
Commission invites the submission of such information from commenters.
    37. The Commission proposes to require 42 GHz licensees to limit 
emissions into the 42.5-43.5 GHz passive band at those relatively few 
locations where RAS observatories make observations in this band. The 
Commission proposes to adopt the parameters established by ITU-R RA.769 
as the interference protection criteria for RAS operations, as 
suggested by CORF and T-Mobile. While the Commission believes that 
these parameters are extremely conservative, no one has previously 
submitted studies suggesting alternative criteria, and the ITU's 
analysis indicates compliance with those criteria are likely to protect 
the RAS facilities from harmful interference. Given that the 
observatories are mostly located in remote areas and signals in this 
frequency range are significantly attenuated by terrain and clutter, 
the Commission expects that adopting these conservative criteria would 
have only a small impact on 42 GHz licensed operations.
    38. Therefore, for all 42 GHz licensees operating near designated 
RAS facilities, the Commission proposes that: (1) the spectral PFD 
received at the RAS sites at the Haystack Observatory (Westford, MA), 
the Green Bank Telescope (Green Bank, WV) and the Very Large Array 
(Socorro, NM) averaged over the entire 42.5-43.5 GHz frequency range 
must not exceed -227 dBW/m\2\/Hz; (2) the spectral PFD received within 
any 500 kHz channel within the 42.5-43.5 GHz frequency range for the 
three sites noted above must not exceed -210 dBW/m\2\/Hz; and, (3) the 
spectral PFD within the 42.5-43.5 GHz frequency range for the Very Long 
Baseline Array (VLBA) Stations must not exceed -175 dBW/m\2\/Hz. The 
Commission proposes to list the relevant sites in a new footnote to the 
United States Table of Frequency Allocations for clarity. The 
Commission believes that these limits are sufficient to protect RAS 
operations in the adjacent band without establishing a guard band 
within the 42 GHz band. The Commission emphasizes that its proposal to 
adopt these limits is based on the specific factors present in the 42 
GHz band and would not necessarily control future decisions it makes 
regarding other frequency bands subject to note US342. In addition to 
these requirements, the existing requirements for coordination in the 
National Radio Quiet Zone will be maintained.\19\ The Commission seeks 
comment on this proposal.
---------------------------------------------------------------------------

    \19\ 47 CFR 1.924.
---------------------------------------------------------------------------

C. Costs and Benefits and Diversity, Equity, and Inclusion

    39. The Commission invites comment generally on the costs and 
benefits associated with the various approaches discussed in this NPRM. 
Are there any aspects of the above issues that the Commission has not 
considered? Are there any studies, efforts, or analyses that the 
Commission should consider? If so, the Commission asks that commenters 
identify them and explain why they should be considered.
    40. Digital Equity and Inclusion. Finally, the Commission, as part 
of its

[[Page 49430]]

continuing effort to advance digital equity for all,\20\ including 
people of color, persons with disabilities, persons who live in rural 
or Tribal areas, and others who are or have been historically 
underserved, marginalized, or adversely affected by persistent poverty 
or inequality, invites comment on any equity-related considerations 
\21\ and any potential benefits that may be associated with the various 
approaches and issues discussed herein. Specifically, the Commission 
seeks comment on how the various approaches that the Commission may 
consider may promote or inhibit advances in diversity, equity, 
inclusion, and accessibility, as well the scope of the Commission's 
relevant legal authority.
---------------------------------------------------------------------------

    \20\ Section 1 of the Communications Act of 1934 as amended 
provides that the FCC ``regulat[es] interstate and foreign commerce 
in communication by wire and radio so as to make [such service] 
available, so far as possible, to all the people of the United 
States, without discrimination on the basis of race, color, 
religion, national origin, or sex.'' 47 U.S.C. 151.
    \21\ The term ``equity'' is used here consistent with E.O. 13985 
as the consistent and systematic fair, just, and impartial treatment 
of all individuals, including individuals who belong to underserved 
communities that have been denied such treatment, such as Black, 
Latino, and Indigenous and Native American persons, Asian Americans 
and Pacific Islanders and other persons of color; members of 
religious minorities; lesbian, gay, bisexual, transgender, and queer 
(LGBTQ+) persons; persons with disabilities; persons who live in 
rural areas; and persons otherwise adversely affected by persistent 
poverty or inequality. See E.O. 13985, 86 FR 7009, E.O. on Advancing 
Racial Equity and Support for Underserved Communities Through the 
Federal Government (Jan. 20, 2021).
---------------------------------------------------------------------------

II. Initial Regulatory Flexibility Analysis in WT Docket No. 23-158 and 
GN Docket No. 14-177

    41. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\22\ the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in this NPRM. Written public comments are requested on this 
IRFA. Comments must be identified as responses to the IRFA and must be 
filed by the deadlines for comments in the NPRM. The Commission will 
send a copy of the NPRM including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA).\23\ In addition, 
the NPRM and IRFA (or summaries thereof) will be published in the 
Federal Register.\24\
---------------------------------------------------------------------------

    \22\ See 5 U.S.C. 603. The RFA, 5 U.S.C. 601 through 612, has 
been amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, (SBREFA) Public Law 104-121, Title II, 110 Stat. 857 
(1996).
    \23\ See 5 U.S.C. 603(a).
    \24\ See id.
---------------------------------------------------------------------------

A. Need for, and Objectives of, the Proposed Rules

    42. In the NPRM, the Commission proposes to increase the Nation's 
supply of spectrum for mobile broadband by adopting rules for fixed and 
mobile services in the 42-42.5 GHz band. The Commission proposes to 
license this spectrum on a shared, non-exclusive basis. This additional 
spectrum for mobile use will help ensure that the speed, capacity, and 
ubiquity of the nation's wireless networks keeps pace with the 
skyrocketing demand for mobile service. It will also make possible new 
types of services for consumers and businesses. The Commission seeks 
comment on the specific types of licenses under which it should make 
this spectrum available, including non-exclusive nationwide licensing, 
site-based licensing, and technology-based sensing. The Commission 
seeks comment in particular on what licensing models might best 
facilitate entry and participation by smaller and emerging entities as 
well as comments that provide options for potentially lowering barriers 
to entry for smaller or emerging wireless service providers, encourage 
competition, and avoid spectrum warehousing.
    43. Until recently, the mmW bands were generally considered 
unsuitable for mobile applications because of propagation losses at 
such high frequencies and the inability of mmW signals to propagate 
around obstacles. As increasing congestion has begun to fill the lower 
bands and carriers have resorted to smaller and smaller microcells in 
order to re-use the available spectrum, the industry is taking another 
look at the mmW bands and beginning to realize that at least some of 
the presumed disadvantages can be turned to advantages. For example, 
short transmission paths and high propagation losses can facilitate 
spectrum re-use in microcellular deployments by limiting the amount of 
interference between adjacent cells. Furthermore, where longer paths 
are desired, the extremely short wavelengths of mmW signals make it 
feasible for very small antennas to concentrate signals into highly 
focused beams with enough gain to overcome propagation losses. The 
short wavelengths of mmW signals also make it possible to build multi-
element, dynamic beam-forming antennas that will be small enough to fit 
into handsets--a feat that might never be possible at the lower, 
longer-wavelength frequencies below 6 GHz where cell phones operate 
today.

B. Legal Basis

    44. The proposed action is authorized pursuant to sections 1, 2, 4, 
301, 302, 303, 304, 307, 309, and 310 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 152, 154, 301, 302a, 303, 304, 307, 
and 309, Sec.  604 of the MOBILE NOW Act, 47 U.S.C. 1503, and Sec.  
1.411 of the Commission's Rules, 47 CFR 1.411.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    45. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted.\25\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \26\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.'' \27\ A ``small business concern'' is 
one which: (1) is independently owned and operated; (2) is not dominant 
in its field of operation; and (3) satisfies any additional criteria 
established by the SBA.\28\
---------------------------------------------------------------------------

    \25\ 5 U.S.C. 603(b)(3).
    \26\ 5 U.S.C. 601(6).
    \27\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \28\ 15 U.S.C. 632.
---------------------------------------------------------------------------

    46. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. The Commission's actions, over time, may affect small 
entities that are not easily categorized at present. The Commission 
therefore describes here, at the outset, three broad groups of small 
entities that could be directly affected herein.\29\ First, while there 
are industry specific size standards for small businesses that are used 
in the regulatory flexibility analysis, according to data from the 
SBA's Office of Advocacy, in general a small business is an independent 
business having fewer than 500 employees.\30\ These types of small 
businesses represent 99.9% of all

[[Page 49431]]

businesses in the United States, which translates to 32.5 million 
businesses.\31\
---------------------------------------------------------------------------

    \29\ See 5 U.S.C. 601(3) through (6).
    \30\ See SBA, Office of Advocacy, Frequently Asked Questions, 
``What is a small business?,'' https://cdn.advocacy.sba.gov/wp-content/uploads/2021/11/03093005/Small-Business-FAQ-2021.pdf. (Nov 
2021).
    \31\ Id.
---------------------------------------------------------------------------

    47. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
\32\ The Internal Revenue Service (IRS) uses a revenue benchmark of 
$50,000 or less to delineate its annual electronic filing requirements 
for small exempt organizations.\33\ Nationwide, for tax year 2020, 
there were approximately 447,689 small exempt organizations in the U.S. 
reporting revenues of $50,000 or less according to the registration and 
tax data for exempt organizations available from the IRS.\34\ Finally, 
the small entity described as a ``small governmental jurisdiction'' is 
defined generally as ``governments of cities, counties, towns, 
townships, villages, school districts, or special districts, with a 
population of less than fifty thousand.'' \35\ U.S. Census Bureau data 
from the 2017 Census of Governments \36\ indicate there were 90,075 
local governmental jurisdictions consisting of general purpose 
governments and special purpose governments in the United States.\37\ 
Of this number, there were 36,931 general purpose governments 
(county,\38\ municipal, and town or township \39\) with populations of 
less than 50,000 and 12,040 special purpose governments--independent 
school districts \40\ with enrollment populations of less than 
50,000.\41\ Accordingly, based on the 2017 U.S. Census of Governments 
data, the Commission estimates that at least 48,971 entities fall into 
the category of ``small governmental jurisdictions.'' \42\
---------------------------------------------------------------------------

    \32\ See 5 U.S.C. 601(4).
    \33\ The IRS benchmark is similar to the population of less than 
50,000 benchmark in 5 U.S.C 601(5) that is used to define a small 
governmental jurisdiction. Therefore, the IRS benchmark has been 
used to estimate the number of small organizations in this small 
entity description. See Annual Electronic Filing Requirement for 
Small Exempt Organizations--Form 990-N (e-Postcard), ``Who must 
file,'' https://www.irs.gov/charities-non-profits/annual-electronic-filing-requirement-for-small-exempt-organizations-form-990-n-e-postcard. The Commission notes that the IRS data does not provide 
information on whether a small exempt organization is independently 
owned and operated or dominant in its field.
    \34\ See Exempt Organizations Business Master File Extract (E.O. 
BMF), ``CSV Files by Region,'' https://www.irs.gov/charities-non-profits/exempt-organizations-business-master-file-extract-eo-bmf. 
The IRS Exempt Organization Business Master File (E.O. BMF) Extract 
provides information on all registered tax-exempt/non-profit 
organizations. The data utilized for purposes of this description 
was extracted from the IRS E.O. BMF data for businesses for the tax 
year 2020 with revenue less than or equal to $50,000 for Region 1-
Northeast Area (58,577), Region 2-Mid-Atlantic and Great Lakes Areas 
(175,272), and Region 3-Gulf Coast and Pacific Coast Areas (213,840) 
that includes the continental U.S., Alaska, and Hawaii. This data 
does not include information for Puerto Rico.
    \35\ See 5 U.S.C. 601(5).
    \36\ See 13 U.S.C. 161. The Census of Governments survey is 
conducted every five (5) years compiling data for years ending with 
``2'' and ``7''. See also Census of Governments, https://www.census.gov/programs-surveys/cog/about.html.
    \37\ See U.S. Census Bureau, 2017 Census of Governments--
Organization Table 2. Local Governments by Type and State: 2017 
[CG1700ORG02], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. Local governmental jurisdictions are made up 
of general purpose governments (county, municipal and town or 
township) and special purpose governments (special districts and 
independent school districts). See also tbl.2. CG1700ORG02 Table 
Notes_Local Governments by Type and State_2017.
    \38\ See id. at Table 5. County Governments by Population-Size 
Group and State: 2017 [CG1700ORG05], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. There were 2,105 county 
governments with populations less than 50,000. This category does 
not include subcounty (municipal and township) governments.
    \39\ See id. at Table 6. Subcounty General-Purpose Governments 
by Population-Size Group and State: 2017 [CG1700ORG06], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. 
There were 18,729 municipal and 16,097 town and township governments 
with populations less than 50,000.
    \40\ See id. at Table 10. Elementary and Secondary School 
Systems by Enrollment-Size Group and State: 2017 [CG1700ORG10], 
https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. There were 12,040 independent school districts 
with enrollment populations less than 50,000. See also Table 4. 
Special-Purpose Local Governments by State Census Years 1942 to 2017 
[CG1700ORG04], CG1700ORG04 Table Notes_Special Purpose Local 
Governments by State_Census Years 1942 to 2017.
    \41\ While the special purpose governments category also 
includes local special district governments, the 2017 Census of 
Governments data does not provide data aggregated based on 
population size for the special purpose governments category. 
Therefore, only data from independent school districts is included 
in the special purpose governments category.
    \42\ This total is derived from the sum of the number of general 
purpose governments (county, municipal and town or township) with 
populations of less than 50,000 (36,931) and the number of special 
purpose governments--independent school districts with enrollment 
populations of less than 50,000 (12,040), from the 2017 Census of 
Governments--Organizations Tables 5, 6 & 10.
---------------------------------------------------------------------------

    48. Fixed Microwave Services. Fixed microwave services include 
common carrier,\43\ private-operational fixed,\44\ and broadcast 
auxiliary radio services.\45\ They also include the UMFUS,\46\ 
Millimeter Wave Service (70/80/90 GHz),\47\ Local Multipoint 
Distribution Service (LMDS),\48\ the Digital Electronic Message Service 
(DEMS),\49\ 24 GHz Service,\50\ Multiple Address Systems (MAS),\51\ and 
Multichannel Video Distribution and Data Service (MVDDS),\52\ where in 
some bands licensees can choose between common carrier and non-common 
carrier status.\53\ Wireless Telecommunications Carriers (except 
Satellite) \54\ is the closest industry with a SBA small business size 
standard applicable to these services. The SBA small size standard for 
this industry classifies a business as small if it has 1,500 or fewer 
employees.\55\ U.S. Census Bureau data for 2017 show that there were 
2,893 firms that operated in this industry for the entire year.\56\ Of 
this number, 2,837 firms employed fewer than 250 employees.\57\ Thus 
under the SBA size standard, the Commission estimates that a majority 
of fixed microwave service licensees can be considered small.
---------------------------------------------------------------------------

    \43\ See 47 CFR part 101, subparts C and I.
    \44\ See id. Subparts C and H.
    \45\ Auxiliary Microwave Service is governed by part 74 of Title 
47 of the Commission's Rules. See 47 CFR part 74. Available to 
licensees of broadcast stations and to broadcast and cable network 
entities, broadcast auxiliary microwave stations are used for 
relaying broadcast television signals from the studio to the 
transmitter, or between two points such as a main studio and an 
auxiliary studio. The service also includes mobile TV pickups, which 
relay signals from a remote location back to the studio.
    \46\ See 47 CFR part 30.
    \47\ See 47 CFR part 101, subpart Q.
    \48\ See id. Subpart L.
    \49\ See id. Subpart G.
    \50\ See id.
    \51\ See id. Subpart O.
    \52\ See id. Subpart P.
    \53\ See 47 CFR 101.533 and 101.1017.
    \54\ See U.S. Census Bureau, 2017 NAICS Definition, ``517312 
Wireless Telecommunications Carriers (except Satellite),'' https://www.census.gov/naics/?input=517312&year=2017&details=517312.
    \55\ See 13 CFR 121.201, NAICS Code 517312 (as of 10/1/22, NAICS 
Code 517112).
    \56\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Employment Size of Firms for the U.S.: 2017, Table ID: 
EC1700SIZEEMPFIRM, NAICS Code 517312, https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
    \57\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard.
---------------------------------------------------------------------------

    49. The Commission's small business size standards with respect to 
fixed microwave services involve eligibility for bidding credits and 
installment payments in the auction of licenses for the various 
frequency bands included in fixed microwave services. When bidding 
credits are adopted for the auction of licenses in fixed microwave 
services frequency bands, such credits may be available to several 
types of small businesses based average gross revenues (small, very 
small and entrepreneur) pursuant to the competitive bidding rules 
adopted in conjunction with the requirements for the auction and/or as 
identified in part 101 of the Commission's rules for the

[[Page 49432]]

specific fixed microwave services frequency bands.\58\
---------------------------------------------------------------------------

    \58\ See 47 CFR 101.538(a)(1) through (3), 101.1112(b) through 
(d), 101.1319(a)(1) through (2), and 101.1429(a)(1) through (3).
---------------------------------------------------------------------------

    50. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time the Commission is not 
able to estimate the number of licensees with active licenses that 
would qualify as small under the SBA's small business size standard.
    51. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. This industry comprises establishments 
primarily engaged in manufacturing radio and television broadcast and 
wireless communications equipment.\59\ Examples of products made by 
these establishments are: transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.\60\ The SBA small business size standard for 
this industry classifies businesses having 1,250 employees or less as 
small.\61\ U.S. Census Bureau data for 2017 show that there were 656 
firms in this industry that operated for the entire year.\62\ Of this 
number, 624 firms had fewer than 250 employees.\63\ Thus, under the SBA 
size standard, the majority of firms in this industry can be considered 
small.
---------------------------------------------------------------------------

    \59\ See U.S. Census Bureau, 2017 NAICS Definition, ``334220 
Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing,'' https://www.census.gov/naics/?input=334220&year=2017&details=334220.
    \60\ Id.
    \61\ See 13 CFR 121.201, NAICS Code 334220.
    \62\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Employment Size of Firms for the U.S.: 2017, Table ID: 
EC1700SIZEEMPFIRM, NAICS Code 334220, https://data.census.gov/cedsci/table?y=2017&n=334220&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
    \63\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard.
---------------------------------------------------------------------------

    52. Satellite Telecommunications. This industry comprises firms 
``primarily engaged in providing telecommunications services to other 
establishments in the telecommunications and broadcasting industries by 
forwarding and receiving communications signals via a system of 
satellites or reselling satellite telecommunications.'' \64\ Satellite 
telecommunications service providers include satellite and earth 
station operators. The SBA small business size standard for this 
industry classifies a business with $38.5 million or less in annual 
receipts as small.\65\ U.S. Census Bureau data for 2017 show that 275 
firms in this industry operated for the entire year.\66\ Of this 
number, 242 firms had revenue of less than $25 million.\67\ 
Additionally, based on Commission data in the 2021 Universal Service 
Monitoring Report, as of December 31, 2020, there were 71 providers 
that reported they were engaged in the provision of satellite 
telecommunications services.\68\ Of these providers, the Commission 
estimates that approximately 48 providers have 1,500 or fewer 
employees.\69\ Consequently, using the SBA's small business size 
standard, a little more than half of these providers can be considered 
small entities.
---------------------------------------------------------------------------

    \64\ See U.S. Census Bureau, 2017 NAICS Definition, ``517410 
Satellite Telecommunications,'' https://www.census.gov/naics/?input=517410&year=2017&details=517410.
    \65\ See 13 CFR 121.201, NAICS Code 517410.
    \66\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Selected Sectors: Sales, Value of Shipments, or Revenue Size 
of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code 
517410, https://data.census.gov/cedsci/table?y=2017&n=517410&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false.
    \67\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard. The Commission also notes that according to the U.S. 
Census Bureau glossary, the terms receipts and revenues are used 
interchangeably, see https://www.census.gov/glossary/#term_ReceiptsRevenueServices.
    \68\ Federal-State Joint Board on Universal Service, Universal 
Service Monitoring Report at 26, Table 1.12 (2021), https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf.
    \69\ Id.
---------------------------------------------------------------------------

    53. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves.\70\ Establishments in this industry have spectrum licenses 
and provide services using that spectrum, such as cellular services, 
paging services, wireless internet access, and wireless video 
services.\71\ The SBA size standard for this industry classifies a 
business as small if it has 1,500 or fewer employees.\72\ U.S. Census 
Bureau data for 2017 show that there were 2,893 firms in this industry 
that operated for the entire year.\73\ Of that number, 2,837 firms 
employed fewer than 250 employees.\74\ Additionally, based on 
Commission data in the 2021 Universal Service Monitoring Report, as of 
December 31, 2020, there were 797 providers that reported they were 
engaged in the provision of wireless services.\75\ Of these providers, 
the Commission estimates that 715 providers have 1,500 or fewer 
employees.\76\ Consequently, using the SBA's small business size 
standard, most of these providers can be considered small entities.
---------------------------------------------------------------------------

    \70\ See U.S. Census Bureau, 2017 NAICS Definition, ``517312 
Wireless Telecommunications Carriers (except Satellite),'' https://www.census.gov/naics/?input=517312&year=2017&details=517312.
    \71\ Id.
    \72\ See 13 CFR 121.201, NAICS Code 517312 (as of 10/1/22, NAICS 
Code 517112).
    \73\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Employment Size of Firms for the U.S.: 2017, Table ID: 
EC1700SIZEEMPFIRM, NAICS Code 517312, https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
    \74\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard.
    \75\ Federal-State Joint Board on Universal Service, Universal 
Service Monitoring Report at 26, Table 1.12 (2021), https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf.
    \76\ Id.
---------------------------------------------------------------------------

    54. All Other Telecommunications. This industry is comprised of 
establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation.\77\ This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems.\78\ Providers 
of internet services (e.g. dial-up ISPs) or Voice over internet 
Protocol (VoIP) services, via client-supplied telecommunications 
connections are also included in this industry.\79\ The SBA small 
business size standard for this industry classifies firms with annual 
receipts of $35 million or less as small.\80\ U.S. Census Bureau data 
for 2017 show that there were 1,079 firms in this industry that

[[Page 49433]]

operated for the entire year.\81\ Of those firms, 1,039 had revenue of 
less than $25 million.\82\ Based on this data, the Commission estimates 
that the majority of ``All Other Telecommunications'' firms can be 
considered small.
---------------------------------------------------------------------------

    \77\ See U.S. Census Bureau, 2017 NAICS Definition, ``517919 All 
Other Telecommunications,'' https://www.census.gov/naics/?input=517919&year=2017&details=517919.
    \78\ Id.
    \79\ Id.
    \80\ See 13 CFR 121.201, NAICS Code 517919 (as of 10/1/22, NAICS 
Code 517810).
    \81\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Selected Sectors: Sales, Value of Shipments, or Revenue Size 
of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code 
517919, https://data.census.gov/cedsci/table?y=2017&n=517919&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false.
    \82\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard. The Commission also notes that according to the U.S. 
Census Bureau glossary, the terms receipts and revenues are used 
interchangeably, see https://www.census.gov/glossary/#term_ReceiptsRevenueServices.
---------------------------------------------------------------------------

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    55. The Commission expects the proposed rules in the NPRM will 
impose new or additional reporting or recordkeeping and/or other 
compliance obligations on small entities as well as other licensees and 
applicants. At this time however, the Commission is not in a position 
to determine whether, if adopted, its proposals and the matters upon 
which it seeks comment will require small entities to hire 
professionals to comply and cannot quantify the cost of compliance with 
the potential rule changes discussed herein.
    56. Depending on the licensing model the Commission ultimately 
adopts for the 42 GHz band, applicants for licenses may be required to 
coordinate their proposed operations with other licensees and 
applicants. Under the relevant licensing models, such coordination 
would be necessary to ensure that neighboring operations will not 
interfere with each other. The Commission seeks comment on the cost to 
small entities for this potential coordination with operations.
    57. Small entities and other applicants in the 42 GHz band may be 
required to meet buildout requirements. Depending on the type of 
buildout requirement the Commission ultimately adopts, licensees may be 
required to provide information to the Commission on the facilities 
they have constructed, the nature of the service they are providing, 
and the extent to which they are providing coverage in their license or 
registered site area. Any performance or buildout requirements the 
Commission adopts will be structured to ensure that spectrum is being 
put into use and to encourage rapid deployment of next generation 
wireless services, including 5G, which would benefit small entities and 
the industry as a whole. The Commission seeks comment as to the 
potential equipment, operational and implementation costs to small 
entities working towards complying with these buildout requirements.

E. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    58. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rule for such small entities; (3) the 
use of performance rather than design standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.'' \83\
---------------------------------------------------------------------------

    \83\ 5 U.S.C. 603(a)(1) through (4).
---------------------------------------------------------------------------

    59. The Commission believes the potential licensing models on which 
it seeks comment would facilitate access to spectrum by small 
businesses and a wide variety of other entities. However, to assist in 
the Commission's evaluation of the economic impact on small entities as 
a result of actions that have been proposed in the NPRM, and to better 
explore options and alternatives, the Commission has sought comment 
from the parties. Of particular interest are those comments providing 
insight as to whether any of the costs associated with any potential 
performance or buildout requirements can be alleviated for small 
businesses. The Commission expects to more fully consider the economic 
impact and alternatives for small entities following the review of 
comments filed in response to the NPRM.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    60. None.

III. Ordering Clauses

    61. Accordingly, it is ordered, pursuant to sections 1, 2, 4, 301, 
302, 303, 304, 307, 309, and 310 of the Communications Act of 1934, 47 
U.S.C. 151, 152, 154, 301, 302a, 303, 304, 307, and 309, Sec.  604 of 
the MOBILE NOW Act, 47 U.S.C. 1503, and Sec.  1.411 of the Commission's 
Rules, 47 CFR 1.411, that this Notice of Proposed Rulemaking is hereby 
adopted.
    62. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking, including the Initial 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2023-16167 Filed 7-28-23; 8:45 am]
BILLING CODE 6712-01-P