*Pages 1--79 from Microsoft Word - 4424.doc* Federal Communications Commission FCC 00- 363 1 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Amendment of the Commission’s Rules With Regard to the 3650- 3700 MHz Government Transfer Band The 4. 9 GHz Band Transferred from Federal Government Use ) ) ) ) ) ) ) ) ET Docket No. 98- 237 RM- 9411 WT Docket No. 00- 32 FIRST REPORT AND ORDER AND SECOND NOTICE OF PROPOSED RULE MAKING Adopted: October 12, 2000 Released: October 24, 2000 Comment Date: [30 days from publication in the Federal Register] Reply Comment Date: [60 days from publication in the Federal Register] By the Commission: TABLE OF CONTENTS Heading Paragraph # I. INTRODUCTION ............................................................................................................................. 1 II. BACKGROUND ............................................................................................................................... 4 III. DISCUSSION ................................................................................................................................. 10 A. Reallocation of the 3650- 3700 MHz Band for Non- Government Operations ................................ 10 1. Allocation ............................................................................................................................ 10 a. Terrestrial Fixed and Mobile Services ............................................................................ 10 b. Sharing with Fixed Satellite Service Operations ............................................................. 18 c. Statutory Considerations ................................................................................................ 19 2. Fixed Satellite Service Transition Issues ............................................................................... 22 a. Existing Fixed Satellite Service Operations .................................................................... 22 b. New Fixed Satellite Service Operations .......................................................................... 27 c. Telemetry, Tracking, and Command (TT& C) Operations ............................................... 31 3. Non- Government Radiolocation Operations .......................................................................... 34 B. Federal Government Operations ................................................................................................. 35 1. Radiolocation Operations ..................................................................................................... 35 2. Aeronautical Radionavigation Allocation .............................................................................. 39 IV. SECOND NOTICE OF PROPOSED RULE MAKING ................................................................... 40 A. Application, Licensing, and Processing Rules ............................................................................. 41 1. Regulatory Status; Flexible Use ........................................................................................... 50 2. Eligibility; Spectrum Aggregation ........................................................................................ 57 3. Foreign Ownership Restrictions ........................................................................................... 61 4. Geographic Areas and Spectrum Blocks ............................................................................... 64 5. License Term; Renewal Expectancy ..................................................................................... 72 1 Federal Communications Commission FCC 00- 363 2 6. Partitioning and Disaggregation of Licenses; Band Managers ............................................... 75 7. Performance Requirements ................................................................................................... 82 8. Equal Employment Opportunity ........................................................................................... 89 B. Technical Rules ......................................................................................................................... 91 1. In- Band Interference Control ................................................................................................ 93 a. Fixed and Mobile Services in the 3650- 3700 MHz band ................................................. 94 b. Coordination with Fixed Satellite Service Operations in the 3650- 3700 MHz Band ....... 102 c. Coordination with Federal Government Operations in the 3650- 3700 MHz Band .......... 107 2. Adjacent Band Interference Control .................................................................................... 110 a. Upper Adjacent Band: 3700- 4200 MHz ....................................................................... 110 b. Lower Adjacent Band: 3300- 3650 MHz ....................................................................... 114 3. RF Safety .......................................................................................................................... 117 C. Competitive Bidding Procedures ............................................................................................... 120 1. Incorporation by Reference of the Part 1 Standardized Auction Rules ................................. 120 2. Provisions for Designated Entities ...................................................................................... 121 D. Additional Satellite Issues ........................................................................................................ 128 1. International Intercontinental Restriction on Fixed Satellite Service ..................................... 128 2. Telemetry, Tracking & Control (TT& C) Operation ............................................................ 129 3. Space Station Power Flux Density ..................................................................................... 133 V. PROCEDURAL MATTERS ......................................................................................................... 134 A. Challenge to Earth Station Application Freeze .......................................................................... 134 B. Final Regulatory Flexibility Analysis ........................................................................................ 135 C. Initial Regulatory Flexibility Analysis ...................................................................................... 136 D. Paperwork Reduction Analysis ................................................................................................. 138 E. Ex Parte Presentations ............................................................................................................. 140 F. Pleading Dates ......................................................................................................................... 141 G. Further Information .................................................................................................................. 144 VI. ORDERING CLAUSES ................................................................................................................ 145 APPENDIX A: RESPONDENTS APPENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS FOR THE FIRST REPORT AND ORDER APPENDIX C: INITIAL REGULATORY FLEXIBILITY ANALYSIS FOR THE SECOND NOTICE OF PROPOSED RULE MAKING APPENDIX D: FINAL RULES APPENDIX E: PROPOSED RULES APPENDIX F: PRELIMINARY LIST OF GRANDFATHERED FSS EARTH STATIONS APPENDIX G: MAP OF COORDINATION ZONES AROUND GRANDFATHERED FSS EARTH STATIONS I. INTRODUCTION 1. By this action, we allocate the 50 megahertz of spectrum in the 3650- 3700 MHz band to the fixed and mobile (base stations) terrestrial services on a primary basis. This allocation will facilitate the provision of a broad range of services, including traditional voice telephony and new broadband, high-speed, data and video services. We also believe that this allocation will help foster the introduction of such services to rural areas of the United States, thus promoting the objectives of Section 706 of the Telecommunications Act of 1996 to facilitate the rapid deployment of advanced telecommunications 2 Federal Communications Commission FCC 00- 363 3 services and technologies to all Americans. 1 This action will also encourage new and more effective competition to existing wireline local exchange carriers by providing for an economical means to offer competitive “local loop” or “last- mile” facilities. 2. We are “grandfathering” existing fixed satellite service (" FSS") earth station sites in this band and, for a limited time, will accept new applications for FSS earth stations in the vicinity (i. e. within 10 miles) of these grandfathered sites to operate on a co- primary basis in the band. We will also permit additional FSS earth station operations on a secondary basis. This will ensure the continuity of FSS operations and permit new FSS operations to help alleviate congestion in the adjacent 3700- 4200 MHz FSS band. Finally, to provide for compatibility with both terrestrial fixed service and FSS operations in the band, we are limiting the terrestrial mobile service use of the band to base station operations. 3. In the Second Notice of Proposed Rule Making (" Second Notice"), we also propose licensing and service rules for the assignment of fixed and mobile services licenses in this band by competitive bidding. Both new and existing FSS earth stations will be subject to Part 25 of the Commission’s rules. Parties who wish to use this spectrum for FSS will have to comply with the Part 25 application and licensing rules. Those who wish to provide fixed and mobile services in the 3650- 3700 MHz band will be subject to the application, licensing and services rules we adopt in this proceeding. We propose that 3650- 3700 MHz licensees who obtain licenses pursuant to the rules we adopt for fixed and mobile services and who subsequently choose to offer FSS in this band may retain their 3650- 3700 MHz licenses if they meet the proposed FSS build- out requirement. 2 These actions and proposals are designed to benefit the public by permitting and encouraging the introduction of new services, particularly in rural areas. II. BACKGROUND 4. The 3600- 3700 MHz band has been allocated for use by the Federal Government on a primary basis for radiolocation services. In 1984, a primary allocation in the 3600- 3700 MHz band was added for non- Government FSS (space- to- Earth), but US245 footnote restricted use of this FSS allocation "to international inter- continental systems . . . subject to case- by- case electromagnetic compatibility analysis." 3 The allocation was aimed at meeting "future INTELSAT projected requirements." 4 To date, 1 See Pub. L. 104- 104, Title VII, § 706, Feb. 8, 1996, 110 Stat. 153, reproduced in the notes under 47 U. S. C. § 157 (" Section 706"). Section 706( c)( 1) defines "advanced telecommunications capability . . . without regard to any transmission media or technology, as high- speed, switched, broadband telecommunications capability that enables users to originate and receive high- quality voice, data graphics, and video telecommunications using any technology." See generally Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, CC Docket 98- 146, Second Report, FCC 00- 290, (rel. Aug. 21, 2000) (" Section 706 Second Report"). 2 See ¶¶ 82- 88, infra. 3 See Amendment of the Commission’s Rules with Regard to the 3650- 3700 MHz Government Transfer Band, ET Docket No. 98- 237, Notice of Proposed Rule Making and Order, 14 FCC Rcd at 1295, 1297- 98 (¶ 3) (1998) (" Notice and Order"). See also Amendment of Part 2 of the Commission's Rules Regarding Implementation of the Final Acts of the World Administrative Radio Conference, Geneva, 1979, General Docket 80- 739, Second Report and Order, 49 FR 2357 (Jan. 19, 1984). 4 See Notice and Order, 14 FCC Rcd at 1297 (¶ 3). 3 Federal Communications Commission FCC 00- 363 4 approximately 82 FSS earth stations at 49 sites 5 have been licensed in this spectrum. 6 5. Pursuant to the Omnibus Budget Reconciliation Act of 1993 (" OBRA- 93"), 7 the National Telecommunications and Information Administration (" NTIA") identified the 3650- 3700 MHz band for transfer, effective January 1999, from a Government/ non- Government shared use status to a mixed- use status. 8 While the band is now predominately available for non- Government use, a condition of the transfer allows Government radiolocation stations to continue to operate indefinitely in the 3650- 3700 MHz band at Pascagoula, Mississippi; Pensacola, Florida; and Saint Inigoes, Maryland. NTIA states that the "radius of operation" for these radiolocation stations is 80 kilometers (49. 7 miles). 9 6. Pursuant to the Balanced Budget Act of 1997, NTIA was required to identify 15 megahertz to be reallocated from Government to non- Government use for assignment by competitive bidding within the range 1990- 2110 MHz, or to identify alternative spectrum. 10 NTIA subsequently identified the following frequency bands that could be assigned by competitive bidding as a substitute for the 15 megahertz: 944- 960 MHz, 1390- 1400 MHz, 1427- 1432 MHz, 1670- 1675 MHz, 2500- 2690 MHz, and 3650- 3700 MHz. 11 7. In the Notice of Proposed Rule Making and Order (“ Notice and Order”) in this proceeding, we proposed to allocate the 3650- 3700 MHz band on a primary basis to the terrestrial fixed service (" FS") 5 See Appendix F. Earth stations that operate in the 3600- 3700 MHz band require coordination with NTIA. We note that the earth stations listed in Appendix F are being coordinated with NTIA. We are working with NTIA to ensure that all earth stations are coordinated. 6 Footnote US245 to the Table of Allocations states that "The fixed- satellite service is limited to international inter- continental systems and subject to case- by- case electro- magnetic compatibility analysis." These numbers include four earth stations at three sites used to provide Telemetry, Tracking and Control (" TT& C") functions for satellite systems. Section 25.201 of the Commissions rules defines TT& C operations as follows: Space Telemetering is defined as the use of telemetering for the transmission from a space station of results of measurements made in a spacecraft, including those relating to the functioning of the spacecraft; Space Tracking is defined as determination of the orbit, velocity or instantaneous position of an object in space by means of radiodetermination, excluding primary radar, for the purpose of following the movement of the object; and Space Telecommand is defined as the use of radiocommunication for the transmission of signals to a space station to initiate, modify or terminate function of the equipment on a space object, including the space station. See 47 C. F. R. § 25.201. 7 See Omnibus Budget Reconciliation Act of 1993 (“ OBRA- 93”), Pub. L. No. 103- 66, Title VI, § 6001( a)( 3), 107 Stat. 312 (enacted August 10, 1993). See also H. R. Rep. No. 103- 213, 103rd Cong., 1st Sess. (1993). 8 See Spectrum Reallocation Final Report, Response to Title VI - Omnibus Budget Reconciliation Act of 1993, NTIA Special Publication 95- 3l2, released February 1995 (" Final Report"). Shared use means that a band of frequencies is generally available for both government and non- government use. See 47 C. F. R. § 2.105( b). Mixed use means that government use is limited by geographic area, by time or by other means so as to guarantee that the potential use by government stations is substantially less than the potential use to be made by non- government stations. See Section 113( b)( 2)( B) of OBRA- 93. See 47 U. S. C. § 923( b)( 2)( B). 9 See Final Report at Sections 4- 16 through 4- 21. 10 See The Balanced Budget Act of 1997, Section 3002( c), Pub. L. 105- 33, 111 Stat. 251- 258 (1997) (" BBA"). 11 See Identification of Alternate Bands, NTIA Special Pub. 98- 39 (1998), at 25- 29. 4 Federal Communications Commission FCC 00- 363 5 and proposed to grandfather existing FSS earth station sites in the band. 12 In the Notice and Order we tentatively concluded against proposing a mobile service allocation in the band. 13 We sought comment on this tentative conclusion, and alternatively, whether we should allocate this band to the land mobile service. 14 Additionally, we sought comment on the need to delete the FSS allocation in the 3650- 3700 MHz band in order to preserve the availability of the band for use by the proposed FS. 15 We also proposed to delete the non- Government radiolocation allocation in the band. 16 Further, we proposed to delete the Government radiolocation service allocation, except for three grandfathered sites. 17 We also proposed to delete the unused Government aeronautical radionavigation service (ground based) allocation. 18 We also sought comment on whether to assign licenses in this band through competitive bidding and what would be the optimal size of the licensing blocks and service areas. 19 Moreover, we sought comment on appropriate service rules for fixed service operation in the band. 20 8. In the Notice and Order, we stated that we would no longer accept applications in the 3650- 3700 MHz band for: (1) new FSS earth stations, (2) major amendments to pending FSS earth station applications, or (3) applications for major changes in existing FSS earth stations. This action was intended to ensure that adequate opportunities would continue to exist for the provision of fixed operations in the band. 21 Subsequently, we adopted a Memorandum Opinion and Order (" MO& O") in this proceeding modifying this decision to provide limited relief from the FSS earth station application freeze for immediate needs. 22 Specifically, the MO& O stated that the Commission would accept new and major change applications for FSS earth stations and major amendments to pending applications if the subject facilities were located within the vicinity (i. e. 10 miles) of an existing FSS earth station operating in the 3650- 3700 MHz band. 23 9. A total of 27 parties filed comments and 18 parties filed reply comments in this proceeding. 24 The majority of the comments were submitted on behalf of telecommunication providers that serve predominately rural areas of the country, terrestrial equipment manufacturers, and satellite operators. 12 See Notice and Order, 14 FCC Rcd at 1295- 96, 1299- 300, 1305- 06 (¶¶ 1- 2, 6- 7, 13). 13 See Notice and Order, 14 FCC Rcd at 1299- 300, 1308 (¶¶ 6, 17). 14 Id. at 1308 (¶ 17). 15 Id. at 1306 (¶ 14). 16 Id. at 1307 (¶ 15). 17 Id. at 1307 (¶ 16). 18 Id. 19 Id. at 1303 (¶ 10). 20 Id. at 1302- 05 (¶¶ 9- 12). 21 Id. at 1296- 97 (¶ 2). 22 See MO& O, 15 FCC Rcd at 9341 (¶ 4). 23 Id. 24 A complete list of commenters is contained in Appendix A. 5 Federal Communications Commission FCC 00- 363 6 III. DISCUSSION A. Reallocation of the 3650- 3700 MHz Band for Non- Government Operations 1. Allocation a. Terrestrial Fixed and Mobile Services 10. In the Notice and Order, we proposed to allocate spectrum in the 3650- 3700 MHz band on a primary basis to the non- Government fixed service. 25 In making this proposal, we envisioned that this spectrum would be used for a broad range of services, such as traditional voice telephony and a wide variety of new broadband, high- speed, digital data and video services that could be used for both home and business applications. 26 We also recognized that this spectrum may be well suited for wireless connections to the public switched telephone network (“ PSTN”). 27 We noted that this could provide an economical means to offer competitive “local loop” or “last- mile” facilities, which may lead to more effective competition to existing wireline local exchange carrier services. 28 This type of service is known as Fixed Wireless Access (" FWA"). We also noted that commercial deployment of FWA has already commenced internationally in the 3400- 3700 MHz band in several countries. 29 We tentatively concluded that terrestrial mobile operations would not be compatible with the incumbent FSS earth stations. 30 Specifically, we noted that the Commission has traditionally licensed satellite downlinks 31 in bands that are not used by mobile services because of the difficulties associated with sharing of spectrum by low power satellite receive signals and roving mobile units. 32 We sought comment on this tentative conclusion, and alternatively, on whether we should allocate the 3650- 3700 MHz band to the land mobile service. 33 11. Several telecommunications service providers, particularly those serving rural areas, and fixed service equipment manufacturers expressed support for allocating the 3650- 3700 MHz band on a primary 25 See Notice and Order, 14 FCC Rcd at 1295- 96, 1299- 1300 (¶¶ 1, 6- 7). 26 Id. at 1295- 96 (¶ 1). 27 Id. at 1299- 300 (¶ 6). 28 Id. at 1295- 96 (¶ 1). 29 For example, the Mexican government has specified that the 3400- 3700 MHz band is to be used for local wireless telephony and has recently auctioned this band. Australia also has just announced an auction. The Canadian government has authorized trials of Nortel's Proximity- I system, which is also used in the United Kingdom. See also "Update on Fixed Wireless Access in Canada (Updated paper)," at http:// www. tsacc. ic. gc. ca/ RAST6/ DOCS/ rast- 6- 14.html. Domestically, Lucent Technologies and Interdigital Communications Corp. are conducting fixed wireless access (" FWA") experiments in the 3400- 3600 MHz band for the export market. Mountain Telecommunications Inc., (" MountainTel") has an experimental license, 0041- EX- ML- 1999, for FWA service in the band. 30 See Notice and Order, 14 FCC Rcd at 1299- 300 (¶ 6). 31 Note that FSS earth stations in the 3650- 3700 MHz are authorized as space- to- Earth operations (i. e. downlinks). 32 See Notice and Order, 14 FCC Rcd at 1308 (¶ 17). 33 Id. 6 Federal Communications Commission FCC 00- 363 7 basis to the fixed service. 34 They agree that a fixed service allocation will permit the introduction of new services to the public and will provide a means for delivery of advanced telecommunications services to rural and traditionally underserved areas of the U. S. 35 In particular, parties representing rural entities believe that a fixed service allocation will allow telecommunications providers to employ potentially cost-effective wireless technology for the deployment of advanced broadband communications services, such as wireless Internet access, in rural areas of the country. 36 Some commenters requested that we allocate additional spectrum in the 3400- 3650 MHz band in conjunction with the 3650- 3700 MHz band to improve the economic viability of the fixed service. 37 Two commenters note that MountainTel and Saddleback Communications Company (" Saddleback") filed a petition for rule making (" MountainTel/ Saddleback petition") on September 30, 1998, requesting that the Commission allocate the 3400- 3700 MHz band for use in the provision of FWA by telecommunications carriers. 38 Several parties supported the Commission’s tentative conclusion not to provide a mobile service allocation in the band. 39 No comments were filed supporting a mobile service allocation in the 3650- 3700 MHz band. 12. Satellite service providers objected to the Commission’s proposed fixed service allocation if done in a manner that precludes expansion of FSS. For example, ImpSat USA (" ImpSat") and Wold International, Inc. (" Wold") assert that the proposed fixed service allocation will prevent continued access to the 3650- 3700 MHz band and would cripple the development of international telecommunication services provided by the FSS operations in the band. 40 PanAmSat Corporation (" PanAmSat") is concerned that the proposed fixed service operations will cause interference to FSS operations in the 3650- 3700 MHz band. 41 Further, COMSAT Corporation (" COMSAT") and MCI WorldCom, Inc. (" MCI WorldCom"), believe that the public interest would best be served by allowing the FSS and new fixed services to share 34 See, e. g. CommNet Cellular, Inc., Kerville Telephone Company, Lincoln County Telephone System, Inc., Minnesota Southern Cellular Telephone Company, Penasco Valley Telephone Cooperative, Inc., Ringgold Telephone Company, Sully Buttes Telephone Cooperative Inc., 3 Rivers Telephone Cooperative Inc. (" Rural Carriers") comments at 2- 3 and reply comments at 1; Cheyenne River Sioux Telephone Authority (" CSRT") comments at 1; Lucent Technologies (" Lucent") comments at 3; Motorola comments at 2; Telephone and Data Systems, Inc., (" TDS") comments at 2; The Rural Telecommunications Group (" RTG") comments at 3; SR Telecom Inc. (" SR Telecom") comments at 3; TRANSCOMM, Inc., (" TRANSCOMM") comments at 2; AT& T Corp. (" AT& T") comments at 6; and Western Wireless Corporation (" Western Wireless") comments at 1 and 5. 35 See Rural Carriers comments at 2- 3 and reply comments at 1. See also: Lucent comments at 3, Motorola comments at 1- 3, TDS comments at 2, RTG comments at 3, SR Telecom comments at 3, TRANSCOMM comments at 2, AT& T comments at 6 and Western Wireless comments at 1 and 5. 36 See RTG comments at 1, 4. See also Rural Carriers comments at 2- 3. 37 See CRST comments at 1, 4. See also SR Telecom comments at 3, 6- 7; Airspan comments at 1- 2; Lucent comments at 2- 3; Motorola comments at 2; GTE reply comments at 6; Nortel comments at 4; and TRANSCOMM comments at 4. 38 See CRST comments at 1 and TRANSCOMM comments at 5. While the Commission has not assigned a rulemaking number to this petition, it is available on the Commission’s Electronic Comment Filing System (ECFS) at http:// www. fcc. gov/ e- file/ ecfs. html under proceeding number PRM98ET, dated 09/ 30/ 1998. 39 See COMSAT comments at 15. See also Lucent comments at 6; Motorola comments at 3; and SR Telecom comments at 4. 40 See ImpSat comments at 1. See also Wold reply comments at 1- 2. 41 See PanAmSat comments at 7. 7 Federal Communications Commission FCC 00- 363 8 the 3650- 3700 MHz band on a co- primary basis. 42 Lockheed Martin Corporation (" Lockheed") and COMSAT believe that effective sharing criteria can be developed by establishing suitable reference system parameters for calculating coordination contours and for conducting interference analyses. 43 13. Based on the record in this proceeding and the need to balance competing demands for this spectrum, we are adopting our proposal to allocate the 3650- 3700 MHz band for terrestrial fixed service operations on a primary basis. As indicated by the commenting parties, allocation of this band on a primary basis for fixed service will facilitate the operation of a broad range of new advanced services. We believe that the 3650- 3700 MHz band is situated low enough in the radiofrequency spectrum so as to permit favorable transmission characteristics which will allow the establishment of service links that can cover significant distances. In addition, 50 megahertz will provide enough bandwidth to allow for high speed digital data and video services. These characteristics should prove useful in establishing basic and advanced telecommunications services within rural areas of the country. The need for advanced services in rural areas has been well documented in recent studies. These studies conclude that Americans living in rural areas and inner cities do not have access to advanced services that are comparable to services available to people living in other areas. 44 A lack of broadband infrastructure could limit the potential of these communities to attract and retain businesses and jobs, especially businesses that are dependent on electronic commerce. Lack of infrastructure could also restrict community access to education, health care, and recreational services. 45 We conclude that allocation of the 3650- 3700 MHz band for the fixed service will serve the public interest by providing broadband data services to residential and business consumers, particularly in rural areas. Additionally, this allocation will facilitate an alternative means of providing basic telephone service, thus fostering a competitive market structure for direct PSTN access for rural and underserved areas of the U. S. For example, it could be used to provide unserved persons with a wireless connection to the PSTN and to economically serve high- cost wireline service areas, including rural areas. 14. While we recognize that the desirability of providing fixed service operations access to additional spectrum, spectrum in the adjacent 3400- 3650 MHz band is not available. That band is currently allocated on a primary basis for Federal Government use. The Commission consulted with NTIA concerning access to this band on a co- primary basis, but NTIA determined that non- Government fixed service operations are incompatible with the incumbent Government operations. 46 Given NTIA’s determination, we do not anticipate gaining access to spectrum in the 3400- 3650 MHz band in the near term and, therefore, must deny the MountainTel/ Saddleback petition requesting allocation of this band for non- Government operations. 15. Although additional spectrum for fixed service operation is not available, we find that the 50 MHz at 3650- 3700 MHz can support viable fixed service operations. We are encouraged by comments in the record indicating that technologies such as time division duplexing (" TDD") could be used to provide 42 See COMSAT comments at 17- 18. See also MCI WorldCom reply comments at 1. 43 See Lockheed reply comments at 4. See also COMSAT comments at 11- 12. 44 See generally National Telecommunications and Information Administration, Falling Through the Net (July 1999). See also Section 706 Second Report, at 6- 7, 89- 90. 45 See Section 706 Second Report, at 88. 46 See letter dated June 30, 2000 from William T. Hatch, Associate Administrator, NTIA to Dale Hatfield, Chief OET. 8 Federal Communications Commission FCC 00- 363 9 service in this band. 47 To further enhance the viability of terrestrial fixed and mobile services, we seek comment in the Second Notice on the feasibility of pairing the 3650- 3700 MHz band with the 4940- 4990 MHz band and whether such a pairing will encourage synergies in use of both portions of spectrum. 48 In some areas of the country it may be useful to utilize the 4940- 4990 MHz band to serve areas near grandfathered FSS earth station sites operating in the 3650- 3700 MHz band. In addition, given the frequency separation of these bands could allow the use of frequency division duplexing (“ FDD”) technology. These two bands may complement one another and allow for ubiquitous deployment of new terrestrial fixed services. 16. We decline to adopt our tentative conclusion concerning a mobile service allocation in the 3650- 3700 MHz band in its entirety. Given the challenging spectrum sharing environment involving the relatively weaker satellite receive signals, we remain concerned about mobile station (i. e. roving handset) operations in the 3650- 3700 MHz band. 49 However, while we agree with COMSAT, Lucent, Motorola and SR Telecom that mobile station operations may raise interference concerns, we find that land mobile base stations should be allowed to operate within the 3650- 3700 MHz band. Mobile base stations are fixed and thus do not raise the same interference concerns as mobile handset operations. Mobile base stations in the 3650- 3700 MHz band might operate with land mobile services offered in the 4940- 4990 MHz band. Specifically, the land mobile base stations could transmit in the 3650- 3700 MHz band, and the land mobile receivers could use the 4940- 4990 MHz band to transmit back to the land mobile base station. We therefore allocate the 3650- 3700 MHz band to the mobile service on a nationwide co- primary basis with the fixed service. However, we limit this allocation to base station operations only. Consistent with the international allocation in this band, we are not permitting aeronautical mobile operations. Land mobile base stations in the 3650- 3700 MHz band will be subject to the same coordination procedures as FS stations concerning grandfathered Government radiolocation and grandfathered FSS operations. 50 17. Motorola requests that the Commission allow for "nomadic" or "temporary- fixed" operation in the band. 51 Motorola indicates that "nomadic" operation differs from traditional mobile operations in that the nomadic transmissions do not generally occur when the radio is in rapid high- speed motion. 52 Motorola’s description of nomadic operation does not clearly distinguish that operation from mobile operation and we do not see a clear definitional or technical distinction. Our rules define mobile service as a radiocommunication service between mobile and land stations or between mobile stations 53 and fixed 47 See Innowave comments at 2. Additionally, Rural Carriers notes that a 50 MHz block of spectrum in the 3 GHz band could potentially support wireless Internet access with data rates surpassing digital subscriber line (" DSL") services, such as cable modems into remote, rural areas of the country. See Rural Carriers comments at 4. 48 See The 4.9 GHz Band Transferred from Federal Government Use, WT Docket No. 00- 32, Notice of Proposed Rulemaking, 15 FCC Rcd 4778 (2000) (" 4. 9 GHz Notice"). 49 See 47 C. F. R. § 2. 1( c). A mobile station is defined as station in the mobile service intended to be used while in motion or during halts at unspecified points. See also 47 U. S. C. § 3( 23) (defining land station), § 3( 27) (defining mobile service), and § 3( 28) (defining mobile station). 50 See ¶¶ 103- 109, infra. 51 See Motorola comments at 3. 52 Id. 53 See 47 C. F. R. § 2.1( c). 9 Federal Communications Commission FCC 00- 363 10 service as a radiocommunication service between fixed points. 54 Given these definitions it appears that Motorola's "nomadic" operation would fall under our definition of mobile station operations and thus not be permitted in this band. To the extent that Motorola can provide a detailed demonstration that its proposed "nomadic" operations are consistent with our policies in this band and fall within the Commission's definition of temporary fixed operations, they will be permitted to operate. b. Sharing With Fixed Satellite Service Operations 18. In the Notice and Order, we imposed a freeze on the acceptance of applications for earth station operations in the 3650- 3700 MHz band. 55 We proposed to permanently implement this action, but sought comment on alternative methods to meet the terrestrial fixed service needs while minimizing the effect on FSS operations. 56 While some satellite providers indicate that sharing on a co- primary basis is possible, we decline to adopt such a proposal. We recognize that fixed operations and FSS share spectrum in some bands. We will permit sharing to the extent it is technically possible and promotes efficient use of the spectrum. However, in this band, allowing FSS on an unrestrained co- primary basis would impede any potential widespread use of the band for terrestrial services. Due to the weak signals that are received in the FSS, coordination with the higher- powered terrestrial operations would result in potentially large geographic areas where terrestrial services could not operate to avoid interference to FSS. The size and shape of these “exclusion zones” may be different for each FSS earth station site because factors such as shielding, antenna orientation and terrain elevation will vary from site to site. 57 These coordination requirements and the presence of exclusion zones would significantly increase transaction costs and create a disincentive for deployment of new terrestrial operations. Thus, we find that unrestrained deployment of FSS earth stations could hinder or greatly inhibit the opportunities for terrestrial operations in the band. c. Statutory Considerations 19. As previously mentioned, NTIA identified the 3650- 3700 MHz band as a possible substitute for 15 megahertz at 1990- 2110 MHz for assignment by competitive bidding pursuant to the requirements of the BBA. 58 A statutory condition of the substitution requires that alternative spectrum “better serve the public interest, convenience, and necessity” and that “the alternative could reasonably be expected to produce comparable receipts.” 59 The other bands identified by NTIA as alternatives to the 15 megahertz at 1990- 2110 MHz include: 944- 960 MHz, 1390- 1400 MHz, 1427- 1432 MHz, 1670- 1675 MHz, and 2500- 2690 MHz. As noted in our Spectrum Policy Statement, the 944- 960 MHz and 2500- 2690 MHz bands are already used extensively for non- Government services. 60 We also observe that portions of the 1390- 1400 54 Id. 55 See Notice and Order, 14 FCC Rcd at 1296- 97, 1305- 06 (¶¶ 2, 13). 56 Id. at 1305- 06 (¶ 13). 57 See ¶ 26, infra (discussing the difference between coordination zones and exclusion zones). 58 See ¶ 6, supra. 59 See BBA at Section 3002( a)( 4). See also 47 U. S. C. § 309( j). 60 See Principles for Reallocation of Spectrum to Encourage the Development of Telecommunications Technologies for the New Millennium, Policy Statement, 14 FCC Rcd 19868, 19880- 81 (1999) (“ Spectrum Policy Statement”) at ¶ 27. 10 Federal Communications Commission FCC 00- 363 11 MHz and 1427- 1432 MHz have already been allocated and assigned to non- Government use. 61 The remaining portions of these bands and the 1670- 1675 MHz band are small, non- contiguous segments and thus we believe are unlikely to raise comparable receipts as required by the BBA. 62 Thus, with the exception of 3650- 3700 MHz, none of the bands identified by NTIA is available to satisfy the requirements of the BBA. Because this 50 megahertz is at a higher frequency than 15 megahertz of spectrum identified in the 1990- 2110 MHz band, additional bandwidth is required to compensate for increased path losses that occur in the 3650- 3700 MHz band. For these reasons, we find that the 3650- 3700 MHz band is an equivalent and viable substitute for 15 megahertz of spectrum at 1990- 2110 MHz, taking into account differences in propagation characteristics between the two bands. 20. Because we are substituting the 3650- 3700 MHz band for 15 megahertz of spectrum in the 1990- 2110 MHz band, we must assign licenses for this spectrum by competitive bidding to satisfy the requirements of the BBA. 63 Our allocation to the terrestrial services will enable us to establish service rules consistent with the statutory mandate to auction licenses for this spectrum. We seek comment in the Second Notice on various service rules necessary to conduct an auction. 64 21. Recently enacted legislation states that the Commission “shall not assign spectrum used for international or global satellite services by competitive bidding.” 65 FSS in this band has historically been restricted to international, intercontinental services. 66 Given that this band is allocated for space- to- Earth or downlink services, this footnote implies that data is being transmitted from another country. Even if this 61 See Amendment of the Commission's Rules to Establish Part 27, the Wireless Communications Service (" WCS"), GN Docket No. 96- 228, Report and Order, 12 FCC Rcd 10785 (1997); Amendment of Parts 2 and 95 of the Commission’s Rules to Create a Wireless Medical Telemetry Service, ET Docket 99- 255, Report and Order, 15 FCC Rcd. 11206. 62 See BBA at Section 3002( c)( 4). 63 Id. See also NTIA Special Publication 98- 39. 64 See ¶¶ 120- 127, infra. As discussed, recently enacted legislation prohibits the Commission from assigning licenses for international or global satellite services by competitive bidding. See ¶ 21, infra. The assignment of licenses for terrestrial services by competitive bidding, however, is not prohibited by this legislation. We note that the 24 GHz band is allocated for terrestrial fixed services and satellite services, and we recently adopted rules for awarding licenses for terrestrial fixed service in that band by competitive bidding. See Amendments to Part 1, 2, 87 and 101 of the Commission’s Rules to License Fixed Services at 24 GHz, Report and Order, FCC 00- 272, WT Docket No. 99- 327 (rel. July 31, 2000). Terrestrial services and satellite services also share the 39 GHz band, and we have auctioned terrestrial service licenses in that band. See Amendment of the Commission's Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, Report and Order and Second Notice of Proposed Rule Making, 12 FCC Rcd 18600 (1997); "39 GHz Band Auction Closes", Public Notice, DA 00- 1035, Report No. AUC- 30- E (rel. May 10, 2000). 65 See Open- Market Reorganization for the Betterment of International Telecommunications Act, Pub. L. No. 106- 180, 114 Stat. 48 (2000) (“ ORBIT Act”). Specifically, Section 647 of the ORBIT Act provides: Notwithstanding any other provision of law, the Commission shall not have the authority to assign by competitive bidding orbital locations or spectrum used for the provision of international or global satellite communications services. The President shall oppose in the International Telecommunication Union and in other bilateral and multilateral fora any assignment by competitive bidding of orbital locations and or spectrum used for provision of such services. 66 See ¶ 4, supra. 11 Federal Communications Commission FCC 00- 363 12 restriction were not in place, the international inter- continental nature of the satellite systems deployed in this band results in a footprint that extends well beyond the U. S. border into other countries. Because FSS is, or may be, used for the provision of international satellite services in this band, we believe that the assignment of FSS licenses by competitive bidding would be inconsistent with the ORBIT Act. While we do not plan to assign FSS licenses for the 3650- 3700 MHz band by competitive bidding, we are taking a number of steps to continue to accommodate FSS use of the band. Specifically, we are: (1) grandfathering existing FSS earth station sites on a co- primary basis; (2) providing a limited opportunity to request additional co- primary FSS earth station sites within 10 miles of existing grandfathered FSS earth station sites; and (3) allowing other new FSS earth station sites on a secondary basis. In addition, we note that the 3600- 3650 MHz band remains available for FSS earth station operations on a primary basis. 2. Fixed Satellite Service Transition Issues a. Existing Fixed Satellite Service Operations 22. In the Notice and Order, we proposed to grandfather existing FSS earth station sites operating in the 3650- 3700 MHz band. 67 In addition, we sought comment on whether new terrestrial licensees should have the right to require existing FSS earth stations to vacate the band, subject to reimbursement, in a manner consistent with the Commission’s emerging technologies relocation policies. 68 We also sought comment on whether we should change the allocation status of FSS earth stations to secondary after a specified time period. 69 23. Several commenters support grandfathering existing FSS earth station sites. 70 For example, Sprint argues that grandfathering existing FSS earth station sites is important in order for common carriers to continue to provide voice and data services within the Americas using INTELSAT. 71 Some commenters objected to grandfathering existing FSS earth station sites and argue that the band should be cleared. 72 For example, SR Telecom believes that FSS operations should be relocated, but argues that relocation costs should not be borne by FS providers because they may not have sufficient market demand to justify the additional associated costs. 73 24. While incumbent FSS operations could relocate to other bands that are available for FSS, relocation would necessitate significant reconfiguration costs and disrupt continuity of operations. Recognizing the importance of providing continuity of service to the public, we will grandfather existing 67 See Notice and Order, 14 FCC Rcd at 1306 (¶ 14). 68 Id. 69 Id. 70 See COMSAT comments at 2 and 6. See also Sprint comments at 2; SIA comments at 2; PetroCom comments at 3; MCI WorldCom reply comments at 2- 4; ICG reply comments at 1; and Sprint reply comments at 2. 71 See Sprint comments at 3. 72 See SR Telecom comments at 5. See also Rural Carriers reply comments at 9. 73 See SR Telecom comments at 5. 12 Federal Communications Commission FCC 00- 363 13 FSS earth station sites indefinitely. 74 We also believe that the Commission should not mandate relocation of FSS operations to other bands because FSS and terrestrial operations, as limited by this First Report and Order, are not fundamentally incompatible. 75 We are not, however, precluding voluntary negotiations between existing FSS licensees and new terrestrial licensees for relocation where feasible. 25. We realize that grandfathering existing FSS earth station sites will impose constraints on new terrestrial operations. However, in many cases these new terrestrial fixed and mobile operations should be able to co- exist with existing FSS earth stations by “engineering in” facilities to avoid interference. Furthermore, many rural, remote and less densely populated areas that could benefit significantly from deployment of terrestrial fixed and mobile services are not effected by existing grandfathered FSS earth station sites. Thus, we conclude that grandfathering existing FSS earth station sites will not unreasonably constrain the new terrestrial services. 26. In order to facilitate continued grandfathered FSS operations, we consider the establishment of coordination zones around grandfathered FSS earth station sites as part of the service rules which are discussed in the Second Notice below. 76 Within these coordination zones we propose that, terrestrial service operations must be coordinated with grandfathered FSS operations to ensure that the FSS operations are protected from interference from terrestrial service operations. Within these coordination zones, grandfathered FSS operations will have co- primary status with the new terrestrial services. We recognize that within these coordination zones, there will be exclusion zones where terrestrial services will not be able to operate without causing harmful interference to FSS. Such exclusion zones cannot be generally determined and will vary from site to site. These coordination zones differ from the exclusion zones mentioned earlier. A coordination zone refers to a specified geographical area where terrestrial and satellite licensees can co- exist subject to coordination procedures. An exclusion zone is not geographically defined and refers to the area within the coordination zone where sharing is not technically feasible. b. New Fixed Satellite Service Operations 27. In the Notice and Order, the Commission stated that it would no longer accept applications in the 3650- 3700 MHz band for new FSS earth stations, major amendments to pending FSS earth station applications, or applications for major changes in existing FSS earth stations. 77 This freeze was imposed to ensure that adequate opportunities would continue to exist for the provision of FS operations in the band. 78 28. In response to concerns raised by satellite operators and their accompanying requests for emergency relief from the freeze, the Commission issued a Memorandum Opinion and Order (“ MO& O”) modifying the earth station freeze by allowing the acceptance of applications for earth station facilities that were located within 10 miles of an existing grandfathered extended C- band earth station in the 3650- 3700 74 Earth station sites are grandfathered for the frequencies they are authorized to operate on pursuant to their license. We note that some existing earth stations are not authorized to use the entire 3650- 3700 MHz band. See Appendix F at Table 2. 75 See ¶¶ 102- 106, infra. 76 Id. 77 See Notice and Order, 14 FCC Rcd at 1296- 97 and 1305- 06 (¶¶ 2, 13- 14). 78 Id. at 1296- 97 (¶ 2). 13 Federal Communications Commission FCC 00- 363 14 MHz band. 79 The Commission found that this limited relief from the freeze would enable satellite operators to meet immediate needs without jeopardizing future availability of the 3650- 3700 MHz band for FS operations. 80 29. In the MO& O, the Commission did not establish a time limit for the filing of FSS earth station applications. However, because the new FSS facilities permitted by the MO& O could affect the use of the 3650- 3700 MHz band by the terrestrial services, we now find it necessary to establish a limit on the acceptance of such applications and on the construction of FSS facilities. Accordingly, applications for FSS earth stations in the 3650- 3700 MHz band within 10 miles of the authorized coordinates of an existing grandfathered earth station submitted prior to December 1, 2000 and subsequently authorized for service by the Commission will be co- primary with the terrestrial services. Such FSS earth stations will be grandfathered as described above. 81 We consider the filing of an FSS earth station application before the cut- off date to be an expression of immediate need consistent with the intent of the MO& O. However, applicants will be required to complete construction and be operational within one year from the date of initial authorization. 82 If a license for an FSS earth station at a grandfathered site is assigned or transferred, the earth station will retain its grandfathered status, provided there is no change in the site coordinates. In addition, certain modifications are permitted to the extent there is no change in the site coordinates. 83 Such modifications should be minor in nature and can include changes in the polarization and antenna orientation. However, changes such as an increase in the height of the center line of the dish or a change in geographical coordinates of greater than one second in either latitude or longitude would not be considered minor. Further, any change in the earth station antenna dish size that increases the likelihood of receiving interference will not be considered a minor change in facilities. If a license for a grandfathered FSS station is forfeited pursuant to Section 25.161( c) of the Commission's rules, the site will no longer be considered primary and will lose its grandfathered status. 84 30. Subsequent to the end of the filing window, we will continue to accept applications for additional FSS earth stations. These authorizations, however, will be provided on a secondary basis only in the 3650- 3700 MHz band. Secondary status will apply for new earth station sites located both inside and outside the coordination zones. We note that FSS earth stations only receive signals in this band, and thus cannot cause interference. We also note that secondary FSS earth stations are not entitled to protection from primary terrestrial operations. We find that allowing additional FSS expansion on a secondary basis will help alleviate congestion in the adjacent C- band (3700- 4200 MHz) and allow FSS providers to market available capacity, while preserving opportunities for a viable terrestrial services. In addition, allowing additional FSS earth stations on a secondary basis may enable FSS providers licensed under Part 25 to 79 See MO& O, 15 FCC Rcd at 9340 (¶ 2). 80 Id. at 9341- 42 (¶ 4). 81 A list of the coordinates of the currently existing FSS earth station sites that must be protected is included in Appendix F. The Commission will issue a public notice after the December cutoff date which will include the coordinates of any additional FSS sites that attain grandfathered status and must be protected. In addition, a subsequent Report and Order in this proceeding and Public Notices will provide the coordinates of all known sites requiring protection. 82 See 47 C. F. R. § 25.133( a). 83 Consistent with our current practice, we would not view a change of one second in latitude or longitude as a change in coordinates. 84 See 47 C. F. R. § 25.161( c). 14 Federal Communications Commission FCC 00- 363 15 enter into private arrangements with terrestrial service licensees in the secondary market for access to this spectrum. We note, however, that an agreement between a terrestrial service licensee and an FSS operator would not elevate an FSS earth station in this band to primary status relative to other FS licensees. 85 c. Telemetry, Tracking, and Control (TT& C) Operations 31. Echostar requests that the Commission clarify, as part of this proceeding, that Directsat will be able to continue its TT& C operations in the 3650- 3700 MHz band. 86 Echostar notes that the Commission's authorization allowing Directsat to provide TT& C operations from 3698.3- 3699.7 MHz was conditioned based on a "non- interference, non- protected basis.” 87 Echostar asserts that it is essential to the continued safety of its satellite system that new services not cause interference to its TT& C operations, and that it not be required to protect new services. 88 Echostar states that it is confident that its TT& C operations can be accommodated without imposing undue restrictions on these services except in a "sliver" of spectrum and in a "few geographical locations." 89 Echostar further notes that loss of its satellite system would not be in the public interest since it would disrupt its ability to provide service to its more than to 2 million DBS subscribers and would greatly diminish its ability to furnish competition to incumbent cable operators. 90 Consistent with our regulatory treatment of existing FSS earth stations, we will grandfather the sites currently used to provide TT& C operations, including Echostar's. 91 As a result those sites will receive the same protections as the other grandfathered FSS earth stations in the 3650- 3700 MHz band, except that they will be protected only for the frequencies they are authorized to use for TT& C operations. Any other TT& C operations site that receives grandfathering protection in the 3650- 3700 MHz band will also be protected only for the specific frequencies the site is authorized to operate on pursuant to the license it holds. 32. Several commenters assert that the Commission failed to consider a petition (" TT& C petition") that was filed jointly by Echostar, GE Americom, HCI, KaStar, Lockheed Martin Corporation, Orion, PanAmSat and Visionstar, Inc., requesting that 10 MHz of spectrum in the 3600- 3700 MHz band be designated for TT& C use for satellite systems operating above the Ka band (i. e. above 15 GHz). 92 The Commission did place the TT& C petition on Public Notice seeking comment on the requested 10 MHz allocation. 93 We also referred this petition to NTIA, via the Interdepartment Radio Advisory Committee 85 The terms under which a licensee can enter into a lease or other private contractual arrangement regarding use of licensed spectrum is one of the issues that the Commission has under consideration as part of its secondary markets initiative. See “FCC Announces Public Forum on Secondary Markets in Radio Spectrum,” Public Notice (rel. April 13, 2000) (announcing public forum in connection with Commission initiative to develop rules and policies to promote secondary markets in radio spectrum). 86 See Echostar comments at 2. 87 See In the Matter of Directsat Corporation, Order, 11 FCC Rcd 22375, 22378- 79 (¶ 11). 88 See Echostar comments at 2. 89 Id. at 4- 5. 90 Id. 91 See Appendix F at Tables 3 and 4. 92 See Petition for Rulemaking filed on August 7, 1997 in RM- 9411. 93 See Public Notice, Report Number 2306, dated November 23, 1998. 15 Federal Communications Commission FCC 00- 363 16 (" IRAC"), requesting that it consider the proposed operations in the 3600- 3650 MHz band. 94 NTIA has responded that the proposed TT& C operations appear to be incompatible with Government operations in the 3600- 3650 MHz band. NTIA recommends using non- Government spectrum in the 3650- 4200 MHz band to satisfy the requirements indicated in the TT& C petition. 95 33. We deny the TT& C petition's request for a reservation of 10 MHz of spectrum in the 3650- 3700 MHz band for TT& C operations. We find that reserving 10 MHz of spectrum for TT& C operations for a few earth station sites would be an inefficient use of limited spectrum resources. We have determined that the public interest will be best served by adopting a regulatory framework that will foster the development and deployment of terrestrial services in the 3650- 3700 MHz band. Nothing in Part 2 of the Commission's rules prohibits TT& C operations under the FSS allocation in this band, or from grandfathered FSS earth station locations, provided the non- TT& C operations of the satellite system include operations in the fixed satellite service. We address the other aspects of the petition in the Second Notice. Specifically, we seek comment on whether Part 25 of the Commission's rules should be modified to permit TT& C operations in the extended C- bands, even though those bands may be outside the band through which a satellite's principal services are offered. 96 3. Non- Government Radiolocation Operations 34. In the Notice and Order, the Commission requested comment on a proposal to delete the unused secondary non- Government radiolocation service allocation in the 3650- 3700 MHz band. 97 Northern Telecom, Inc. (" Nortel") supports the proposal and encourages the Commission to align U. S. policy with ITU radio regulations that do not allow commercial radiolocation operations in the band. 98 No comments were filed supporting the continued secondary allocation for the unused non- Government radiolocation service and we find no sufficient reason to maintain the secondary unused allocation. Accordingly, we adopt the proposal and delete the unused secondary non- Government radiolocation allocation to preserve the availability of the spectrum for use by the terrestrial services and FSS operations. We note that sufficient spectrum remains available within the 2900- 3650 MHz band, on a secondary basis, to accommodate non- Government radiolocation service needs. B. Federal Government Operations 1. Radiolocation Operations 35. In the Notice and Order, we noted that, as a condition of the transfer of the 3650- 3700 MHz band to a mixed- use status, three Government radiolocation sites would be allowed to operate indefinitely in the band within an 80- kilometer "radius of operation" surrounding each site. 99 NTIA indicates that a 94 See letter dated March 12, 1999, from Dale Hatfield, Chief, OET to Mr. William Hatch, Acting Associate Administrator, NTIA. 95 See letter dated November 2, 1999 from William T. Hatch, Acting Associate Administrator, NTIA to Dale Hatfield, Chief, OET (" November NTIA letter"). 96 See ¶¶ 129- 132, infra. 97 See Notice and Order, 14 FCC Rcd at 1307 (¶ 15). 98 See Nortel comments at iii, 13. 99 See Notice and Order, 14 FCC Rcd at 1298- 99 (¶ 4). The three grandfathered sites are at St. Inigoes, Maryland, Pascagoula, Mississippi, and Pensacola, Florida. 16 Federal Communications Commission FCC 00- 363 17 coordination distance of 80 kilometers around these three sites will provide adequate identification of spectrum conflicts, and that the Commission should coordinate any non- Government terrestrial service or FSS station within 80 kilometers of these sites with NTIA’s Frequency Assignment Committee on a case-by- case basis. 100 In the Notice and Order, we requested comment on what actions should be taken to achieve this coordination in a manner to promote the ability of new non- Government services to co- exist with extremely high powered Government mobile radar systems in the adjacent 3300- 3650 MHz band as well as with occassional high powered in- band use at three grandfathered Government radiolocation sites. 101 36. We did not receive any proposals specifically addressing the questions raised in the Notice and Order regarding coordination with these sites. 102 Innowave expressed support for NTIA’s proposal for coordination of any station within 80 kilometers of the Government radars; however, it recommends that the coordination range apply to base stations only, and not to stations located at customer premises. 103 Because the requirement to protect the three grandfathered Government radiolocation sites at an 80 kilometer distance is a condition of the transfer of this spectrum, we adopt NTIA’s proposal for an 80 kilometer coordination radius to ensure that these sites will be protected from interference. This requirement means that non- Government terrestrial service and FSS stations located within 80 kilometers of the three grandfathered Government radiolocation stations may not cause interference to the grandfathered Government radiolocation operations, that they must accept any interference received from such operations, and that they must be coordinated before commencing operation. The coordination requirement will apply to all non- Government stations, not just base station operations as requested by Innowave, because any station within the coordination zone could potentially cause interference to the protected Government operations. Given that coordination is required only for areas within 80 kilometers of three grandfathered Government radiolocation sites, we find that this should affect a limited number of non-Government stations. We adopt this coordination requirement in a footnote to the Table of Allocations contained in Section 2.106 of the Commission's rules. The coordination procedures will be addressed as part of the service rules in the attached Second Notice. 104 37. In the Notice and Order, the Commission proposed to delete the Government radiolocation service allocation from the 3650- 3700 MHz band, except for grandfathering three Government radiolocation sites that would continue operations in the band. 105 The Commission also proposed to permit Government radiolocation operations in the 3650- 3700 MHz band on Naval vessels at an appropriate distance from shore. 106 NTIA recommends the inclusion of a footnote to the Table of Frequency Allocations indicating that off- shore Government radiolocation operations may operate on a non-interference basis with authorized non- Government operations, and may not hinder the implementation of 100 See November NTIA letter referenced at note 95, supra. 101 See Notice and Order, 14 FCC Rcd at 1303- 04 (¶ 11). 102 Petroleum Communications, Inc. (" PetroCom") made general comments about coordination with military operations, however, these were directed at adjacent band operations. 103 See Innowave comments at 4. 104 See ¶¶ 102- 109, infra. 105 See Notice and Order, 14 FCC Rcd at 1307 (¶ 16). 106 See Notice and Order, 14 FCC Rcd at 1307 (¶ 16). 17 Federal Communications Commission FCC 00- 363 18 any non- Government operations. 107 NTIA recommends that a distance of 30 nautical miles (55. 5 kilometers) from shore be specified. 108 It notes that this recommended distance is based upon limited information, and that a different distance may later be found appropriate after further measurements and experience with non- Government use of the 3650- 3700 MHz band. 109 SR Telecom believes that the Government radiolocation allocation should be deleted or restricted to areas beyond 50- 70 statute miles from shore. 110 PetroCom recommends that the limit be set at no more than 3 nautical miles. 111 Neither PetroCom nor SR Telecom submitted detailed technical analysis justifying alternative distances. 38. After carefully reviewing the comments concerning this issue, we find that NTIA's recommended distance of 30 nautical miles 112 from the shore of the U. S. or its territories may be insufficient to protect non- Government services that will operate in the band. We note that NTIA has indicated previously that the operational radius of the three grandfathered Government radiolocation operations is 80 kilometers. 113 We note that 80 kilometers is approximately equal to 44 nautical miles. 114 We are concerned that allowing operation of Government radiolocation stations any closer than 44 nautical miles (80 kilometers) to the U. S. or its territories will have the potential to cause interference to non-Government operations in the band. Therefore, we specify a distance of 44 nautical miles, which is equivalent to the 80 kilometers grandfathered Government radiolocation "radius of operation" as described in the Notice and Order. 115 NTIA's request to include the Government radiolocation allocation via a footnote, as described, will not hinder the introduction of non- Government services in the band, given the 80- kilometer protection limit. Additionally, offshore Government radiolocation stations will not be allowed to cause interference to non- Government stations, irrespective of their location. Further, if additional technical information and analysis is made available to us concerning any change in the distance requirements, we will consider altering the distance as appropriate. 2. Aeronautical Radionavigation Allocation 39. In the Notice and Order, we proposed to delete the unused Government aeronautical radionavigation service (ground based) allocation in the 3650- 3700 MHz band. 116 SR Telecom believes that the aeronautical radionavigation allocation should be deleted because it may limit future use of the 107 See November NTIA letter referenced at note 95, supra. 108 Id. 109 Id. 110 See SR Telecom comments at 5- 6. 111 See PetroCom comments at 4. 112 1 nautical mile = 1. 15 statute miles. 113 See Spectrum Reallocation Final Report, Response to Title VI - Omnibus Budget Reconciliation Act of 1993, NTIA Special Publication 95- 32, released February 1995. 114 1 statute mile = 1.609 kilometers 115 See Notice and Order 14 FCC Rcd at 1298- 99 (¶ 4). 116 See Notice and Order, 14 FCC Rcd at 1307 (¶ 16). 18 Federal Communications Commission FCC 00- 363 19 3650- 3700 MHz band. 117 NTIA did not object to this proposal. We see no useful purpose in continuing this allocation. Therefore, for the reasons set forth in the Notice and Order, we adopt our proposal to delete the Government aeronautical radionavigation service (ground based) allocation from the 3650- 3700 MHz band to preserve the band for non- Government use. IV. SECOND NOTICE OF PROPOSED RULE MAKING 40. In this Second Notice, we propose licensing and operating rules for FS and mobile service (base stations only) operations in the 3650- 3700 MHz band. In light of the fact that this spectrum has been allocated to terrestrial service operations on a co- primary basis for assignment by competitive bidding pursuant to Section 3002 of the BBA, 118 we propose to assign terrestrial service licenses in this band pursuant to the Commission’s Part 1 competitive bidding rules. We also propose to license the 3650- 3700 MHz band under Part 27 of the Commission’s rules, as modified herein, to reflect the particular characteristics and circumstances of services offered through the use of spectrum in the 3650- 3700 MHz band. In addition, we seek comment on the feasibility of pairing this band with the 4940- 4990 MHz (" 4.9 GHz") band for use for fixed and mobile services. A. Application, Licensing, and Processing Rules 41. In the Notice and Order in this proceeding, we sought comment on whether the 3650- 3700 MHz band should be licensed under the Local Multipoint Distribution Service (" LMDS" or Part 101, Subparts L and M) rules or under the Wireless Communications Service (" WCS" or Part 27) service rules, or under an entirely new set of service rules. 119 In addition, we sought comment on the initial spectrum licensing blocks. 120 Specifically, we sought comment on whether the 3650- 3700 MHz band should be licensed as a single 50- megahertz block or broken down into two or more blocks. 121 If the latter, we asked if the spectrum should be initially offered as contiguous or paired blocks and, if paired blocks, whether they should be symmetric or asymmetric. 122 In addition, we sought comment on the appropriate geographic size of service areas for initial licensing. 123 Specifically, we sought comment on whether the band should be initially licensed for a single nationwide service area, for several large regional service areas, or for some other choice of smaller geographic areas. 124 42. Since the release of the Notice and Order, there have been several developments that lead us to seek additional comment on these issues, as well as the additional proposals set forth below. As discussed above, we have allocated the 3650- 3700 MHz band to the terrestrial services on a nationwide basis and 117 See SR Telecom comments at 5. 118 As explained above, the 3650- 3700 MHz band is a permissible substitute for 15 MHz of spectrum at 1990- 2110 MHz, which the BBA directs the Commission to assign by competitive bidding. See ¶¶ 6, 19, supra. 119 See Notice and Order, 14 FCC Rcd at 1303 (¶ 10). 120 Id. 121 Id. 122 Id. 123 Id. 124 Id. 19 Federal Communications Commission FCC 00- 363 20 have grandfathered 82 non- Federal Government FSS earth stations at 49 sites 125 and three Federal Government radiolocation operations sites on a co- primary basis. We have also decided to accept on a secondary basis new FSS earth station applications. In addition to these decisions, earlier this year we released a Notice of Proposed Rulemaking for the 50 megahertz of spectrum in the 4940- 4990 MHz band (" 4.9 GHz Notice"). 126 In the 4.9 GHz Notice, we proposed to allocate the 4. 9 GHz band to the non-Federal Government fixed and mobile services, except aeronautical mobile service, on a nationwide co-primary basis. We also proposed to license the 4. 9 GHz band under Part 27 of the Commission’s rules and sought comment on the appropriate spectrum licensing blocks and geographic service areas to be adopted. 43. Both the 4.9 GHz band and the 3650- 3700 MHz bands have been transferred from Federal Government use to private sector use. Both bands include 50 megahertz of spectrum. The 3650- 3700 MHz band is allocated for fixed and mobile services on a nationwide co- primary basis and we have proposed to allocate the 4. 9 GHz band for fixed and mobile services on a nationwide co- primary basis. We believe that a possibility exists that fixed and mobile service providers could pair these two frequency bands and we seek comment on this possibility and on what licensing and service rules we should adopt to encourage this result. We recognize that the mobile allocation for the 3650- 3700 MHz band is restricted to base stations only. However, we believe that land mobile receivers might be able to use the 4940- 4990 MHz band to transmit to land mobile base stations operating in the 3650- 3700 MHz band. We are hopeful that if these two bands are paired they could be used to provide a broad range of new fixed and mobile services, directly linking residences, businesses, and other locations to an ever- developing array of networks. Given the allocation we have adopted for the 3650- 3700 MHz band and the possibility of pairing that band with the 4. 9 GHz band, we seek additional comment on the application and licensing issues raised in the Notice and Order. 44. We wish to develop a record on whether technical requirements or other reasons justify licensing the 3650- 3700 MHz and 4.9 GHz bands at the same time. Commenters have voiced support for the adoption of certain modulation standards, such as TDD or FDD, and the use of associated pairing schemes. 127 We are encouraged by comments in the record indicating that TDD technology is well suited for operation in the 3650- 3700 MHz band and could be used to provide service in this band. 128 Additionally, SR Telecom, Airspan, CSRT, Lucent, and Motorola observe that FDD technology in this region of the spectrum generally requires a separation of between 50 MHz and 100 MHz between transmit and receive frequencies, with a wider separation in higher bandwidth services. 129 We invite comment on the implications that the use of certain technologies and channelization requirements may have upon our decision whether to couple these bands. Some commenters have also taken the view that the 50 MHz of 125 Existing incumbent earth stations and any new applications meeting the criteria articulated in the MO& O, submitted prior to December 1, 2000, and subsequently authorized for service by the Commission and that commence operation within one year of initial authorization will be grandfathered on a co- primary basis. 126 See 4. 9 GHz Notice, 15 FCC Rcd at 4778. 127 See InnoWave comments at 3- 4. See also SR Telecom comments at 9- 10; Rural Carriers comments at 5- 6. 128 See Innowave comments at 2. Additionally, Rural Carriers notes that a 50 MHz block of spectrum in the 3 GHz band could potentially support wireless Internet access with data rates surpassing digital subscriber line (" xDSL") services, such as cable modems into remote, rural areas of the country. See Rural Carriers comments at 4. 129 See SR Telecom comments at 7; Airspan comments at 1- 2. See also CRST comments at 1; Lucent comments at 2- 3; Motorola comments at 2. 20 Federal Communications Commission FCC 00- 363 21 spectrum in the 3650- 3700 MHz band will provide insufficient capacity for the development of fixed broadband wireless competition. 130 In light of this contention, we seek comment on whether the pairing of the 4.9 GHz band with the 3650- 3700 MHz frequencies is necessary or appropriate. If commenters believe that pairing the two bands is necessary or appropriate, we seek comment on whether any of our proposals for licensing the 4. 9 GHz band need to be changed in order to facilitate the pairing of the two bands. 45. We tentatively conclude that all services, other than FSS earth stations, in the 3650- 3700 MHz band should be governed by Part 27 of the Commission's rules. 131 This proposal is consistent with our proposal to regulate the 4. 9 GHz band under Part 27 of the Commission’s rules, and regulating both bands under the same rule part should help those licensees who wish to pair the two bands to provide fixed and mobile service offerings. We also propose to modify Part 27 of the Commission’s rules to the extent necessary to reflect the particular characteristics and circumstances of services to be offered. We seek comment on our tentative conclusion that we should regulate the 3650- 3700 MHz band under Part 27 of the Commission’s rules. 46. As discussed above in the First Report and Order, we are not restricting the types of fixed services that can be provided in the 3650- 3700 MHz band. We are restricting the mobile service to base station use only. Consistent with this approach, we note that fixed and mobile service licensees may be required to comply with rules contained in other Parts of the Commission's rules. For example, to the extent a licensee provides a Commercial Mobile Radio Service (" CMRS"), such service will also be subject to the provisions of Part 20 of the Commission’s rules. 132 Part 20 applies to all CMRS providers, even though the stations may be licensed under other Parts of the Commission’s rules. We seek comment generally on any provisions in existing, service- specific rules that may require specific recognition or adjustment to comport with the supervening application of Part 27, as well as any provisions that may be necessary in Part 27 to fully describe the scope of covered services and technologies. For instance, if a 3650- 3700 MHz licensee provides a fixed service, we seek comment on whether there are any specific provisions in Part 101 of the Commission’s rules that the licensee should be subject to even though the licensee’s stations will be licensed under Part 27. 133 47. Wireless licensees operating in the 3650- 3700 MHz band will be subject to the Universal Licensing System (“ ULS”). 134 ULS is the interactive licensing database developed by the Wireless Telecommunications Bureau to consolidate and replace eleven existing licensing systems used to process application and grant licenses in the wireless services. ULS provides numerous benefits, including fast and easy electronic filing via the Internet, improved data accuracy through automated checking of applications, 130 See Motorola comments at 2. See also SR Telecom comments at 6- 7. 131 See 47 C. F. R. Part 27 (WCS). 132 See 47 C. F. R. § 27.3( g). See also Service Rules for the 746- 764 and 776- 794 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT Docket No. 99- 168, First Report and Order, 15 FCC Rcd 476 (2000) (" 700 MHz First Report and Order"). 133 See 47 C. F. R. Part 101 (Fixed Microwave Services). 134 See Biennial Regulatory Review -- Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to Facilitate the Development and Use of the Universal Licensing System in the Wireless Telecommunications Services, WT Docket No. 98- 20, Amendment of the Amateur Service Rules to Authorize Visiting Foreign Amateur Operators to Operate Stations in the United States, WT Docket No. 96- 188, RM- 8677, Report and Order, 13 FCC Rcd 21027 (1998) (" ULS Report and Order"). 21 Federal Communications Commission FCC 00- 363 22 and enhanced electronic access to licensing information via the Internet. 135 License applications filed by Part 27 licensees must be filed electronically via ULS. These filings include initial applications, major modifications, construction notifications, transfers and assignments, and renewals. 136 48. The fixed satellite service will continue to be regulated under Part 25 of the Commission’s rules. 137 FSS earth stations receive signals in the 3650- 3700 MHz band and typically transmit at frequencies in the 5850- 5925 and 6425- 6525 MHz bands. Authorization of earth station transmissions in these bands will continue to be on a co- primary basis with terrestrial users, and subject to coordination. 49. While we seek comment from the public in general concerning the proposals set forth in this Second Notice, we specifically seek comment from Indian Tribal governments on the proposals below. As detailed in the Tribal Government Policy Statement, adopted earlier this year, the Commission is committed to (1) working with Indian tribes on a government- to- government basis to ensure that Indian tribes have adequate access to communications services, and (2) consulting with Tribal governments prior to implementing any regulatory action or policy that will significantly affect Tribal governments, their land, and resources. 138 We believe the proposals set forth in this Second Notice have the potential to foster the development and, ultimately, the deployment of new technologies and services to many communities, including tribal communities. In keeping with the principles of the Tribal Government Policy Statement, we welcome the opportunity to consult with Tribal governments on the issues raised by this Second Notice and we seek comment both from Tribal governments and other interested parties on the potential for the spectrum proposals set forth herein to serve the communications needs of tribal communities. 1. Regulatory Status; Flexible Use 50. To fulfill its enforcement obligations and ensure compliance with the statutory requirements of Titles II and III of the Communications Act, the Commission has often required applicants to identify whether or not they seek to provide common carrier services. The Commission's current mobile service license application, for example, requires an applicant for mobile services to indicate whether the service it intends to offer will be CMRS, Private Mobile Radio Service (“ PMRS”), or both. In the LMDS Second Report and Order, the Commission required applicants for fixed services to indicate if they planned to offer services as a common carrier, a non- common carrier, or both, and to notify the Commission of any changes in status even though no prior authorization is required. 139 In adopting a similar licensing 135 See http:// www. fcc. gov/ wtb/ uls. 136 See ¶¶ 102- 109, infra. 137 See 47 C. F. R. Part 25 (Satellite Communications). 138 See Statement of Policy on Establishing a Government- to- Government Relationship with Indian Tribes, FCC 00- 207 (rel. June 23, 2000) (" Tribal Government Policy Statement"). 139 See Rulemaking to Amend Parts 1, 2, 21, 25 of the Commission’s Rules to Redesignate the 27.5- 29.5 GHz Frequency Band, To Reallocate the 27.5- 29.5 GHz Frequency Band, To Reallocate the 29.5- 30.0 GHz Frequency Band, To Establish Rules and Policies for Local Multipoint Distribution Service and for Fixed Satellite Services, CC Docket No. 92- 297, Second Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rulemaking, 12 FCC Rcd 12545, 12636- 38, 12644- 45, 12652- 53 (¶¶ 205- 208, 225- 226, 245- 251) (1997) (" LMDS Second Report and Order"); aff'd, Melcher v. FCC, 134 F. 3d 1143 (D. C. Cir. 1998); Erratum, rel. Apr. 7, 1997 (First Erratum); Erratum, rel. May 1, 1997; Order on Reconsideration, 12 FCC Rcd 6424 (1997); Second Order on Reconsideration, FCC 97- 323, rel. Sept. 12, 1997; Third Report and Order, FCC 97- 378, rel. Oct. 15, 1997; Third Order on Reconsideration, FCC 98- 15, 63 Fed. Reg. 9443, rel. Feb. 11, 1998; (continued….) 22 Federal Communications Commission FCC 00- 363 23 framework for Part 27, the Commission has permitted applicants to request common carrier status as well as non- common carrier status for authorization in a single license, rather than require the applicant to choose between common carrier and non- common services. 140 As with the 4.9 GHz band, 141 we propose to adopt this same procedure for licensing services in the 3650- 3700 MHz band. 142 The licensee will be able to provide all allowable services anywhere within its licensed area at any time, consistent with its regulatory status. We tentatively conclude that, in the case of services offered in the 3650- 3700 MHz band, this approach is likely to achieve efficiencies in the licensing and administrative processes. 51. In adopting Part 27, the Commission stated that, apart from this designation of regulatory status, the Commission would not require applicants to describe the services they seek to provide. 143 The Commission stated that it is sufficient that an applicant indicate its choice of regulatory status in a streamlined application process. 144 In providing guidance on this issue to applicants, the Commission pointed out that an election to provide service on a common carrier basis requires that the elements of common carriage be present in the type of service the license applicant seeks to provide; otherwise, the applicant must choose non- common carrier status. 145 52. The 1996 Act provides that a telecommunications carrier shall be treated as a common carrier only to the extent that it is engaged in providing telecommunications services. 146 Telecommunications services are defined as the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available to the public, regardless of the facilities used. 147 As stated in the 24 GHz Report and Order, we depend on the license applicant to notify the Commission of its intent to provide common carrier services, thereby enabling us to determine whether to apply the statutory requirements of Title II of the Communications Act. 148 We note that to the extent that a 3650- 3700 MHz (Continued from previous page) Fourth Report and Order, 13 FCC Rcd 11655 (1998) (" LMDS Fourth Report and Order"); see also 47 C. F. R. § 101.1017. 140 See Amendment of the Commission’s Rules to Establish Part 27, the Wireless Communications Services (WCS), GN Docket No. 96- 228, Report and Order, 12 FCC Rcd 10785, 10846, 10848 (¶¶ 119, 122) (1997) (" Part 27 Report and Order"). 141 See 4. 9 GHz Notice, 15 FCC Rcd at 4792 (¶ 31). 142 See 47 C. F. R. § 27.10, as amended by 700 MHz First Report and Order. 143 See Part 27 Report and Order, 12 FCC Rcd at 10848 (¶ 121). See also LMDS Second Report and Order, 12 FCC Rcd at 12644 (¶ 223); 47 C. F. R. § 101.1013. 144 Id. 145 See Part 27 Report and Order, 12 FCC Rcd at 10790 (¶ 12). The Commission examined services in the LMDS Second Report and Order and explained that any video programming service would be treated as a non- common carrier service. See also LMDS Second Report and Order, 12 FCC Rcd at 12639- 41 (¶¶ 213- 215). Thus, any applicant intending to provide a video programming service would appropriately indicate a choice of non- common carrier regulatory status. 146 See 47 U. S. C. § 153( 44). 147 See 47 U. S. C. § 153( 46). 148 See Amendments to Parts 1, 2 and 101 of the Commission's Rules To License Fixed Services at 24 GHz, WT Docket 99- 327, Report and Order, FCC 00- 272, ¶ 27, (rel. Aug. 1, 2000) (" 24 GHz Report and Order"). 23 Federal Communications Commission FCC 00- 363 24 licensee is a telecommunications carrier it will be governed by the duties required under Part 51, including interconnection with other telecommunications carriers. 149 Also to the extent that a 3650- 3700 MHz provider meets the definition of a local exchange carrier it will also be governed by the requirements set forth in Subpart C of Part 51 of our rules. 150 If potential applicants are unsure of the nature of their services and their classification as common carrier services, they may submit a petition with their applications, or at any time, requesting clarification and including service descriptions for that purpose. 151 53. We propose that applicants and licensees in the 3650- 3700 MHz band also not be required to describe their proposed services, but be required to indicate a regulatory status based on any services they choose to provide. We also propose that if licensees change the service or services they offer, such that it would change their regulatory status, they must notify the Commission, even if such change would not require prior Commission authorization. 152 We propose that licensees be required to notify the Commission within 30 days of the change, unless the change results in the discontinuance, reduction, or impairment of the existing service, in which case a different time period may apply. 153 In this instance, the licensee is governed by Section 101.305 of the Commission’s rules and must submit an application under Section 1.947 of the Commission’s rules in conformance with the deadlines established by Section 101.305. 154 We proposed these same procedures for the 4. 9 GHz band. 155 Under our proposal here, a 3650- 3700 MHz licensee would be authorized to provide a variety or combination of fixed, mobile (for base stations only), common carrier, and non- common carrier services. We seek comment on these proposals. 54. In addition, we tentatively conclude that permitting this kind of flexible use for fixed and mobile services in the 3650- 3700 MHz band is consistent with Section 303( y)( 2) of the Communications Act, 156 as amended by the Balanced Budget Act of 1997. 157 We seek comment on this tentative conclusion. Section 303( y)( 2) grants the Commission authority to permit flexible use of this spectrum if the Commission finds that such use: (1) is in the public interest; (2) would not deter investment in communications services and systems, or technology development; and (3) would not result in harmful interference among users. We tentatively find that permitting the 3650- 3700 MHz band to be used for a variety of terrestrial service uses and making the spectrum available for commercial use under the Part 27 Rules is in the public interest because it will contribute to technological and service innovation and improve 149 See 47 C. F. R. § 51.100. 150 See 47 C. F. R. §§ 51.201 - 51.223. 151 See Part 27 Report and Order, 12 FCC Rcd at 10848 (¶ 121). 152 See Sections 101.61( b)( 3) and 101.61( c)( 9) of the Commission's rules, 47 C. F. R. §§ 101.61( b)( 3), 101.61( c)( 9). A change in regulatory status would require Commission prior authorization, however, if the change raised issues concerning the benchmark contained in Section 310( b)( 4) of the Act. 47 U. S. C. § 310( b)( 4). See also note 182, infra. 153 See 47 C. F. R. § 27.66, as codified by 700 MHz First Report and Order. 154 See 47 C. F. R. §§ 1.947 and 101.305. 155 See 4. 9 GHz Notice, 15 FCC Rcd 4793 (¶ 33) 156 See 47 U. S. C. § 303( y)( 2). 157 See BBA, Pub. L. No. 105- 33, 111 Stat. 251. 24 Federal Communications Commission FCC 00- 363 25 the national telecommunications infrastructure. We note that one commenter urges the Commission to restrict the 3650- 3700 MHz band to point- to- multipoint uses only. 158 However, this type of restriction is contrary to our policies favoring flexible use of the spectrum. 159 We seek comment on these tentative findings. 55. To satisfy the requirements of Section 303( y)( 2)( B) of the Act, we seek comment on whether permitting flexible use of this spectrum would deter investment in communications services and systems, or technology development. 160 To the extent commenters believe such flexibility will deter investment, they should also suggest specific restrictions on how spectrum should be used by a licensee, and detailed analyses of the economic trade- offs between flexibility and investment that justify the recommended use restriction. We seek to develop a record to help quantify any trade- offs between flexibility and investment in technology and new services. Such a record will assist us in structuring these rules so as to avoid deterring investment in new technology and communications services. We also seek comment regarding the extent to which significant flexibility in service rules may encourage such investments. 56. Finally, we tentatively find that the technical rules that we are proposing in this Second Notice for the 3650- 3700 MHz band satisfy the requirements of Section 303( y)( 2)( C). 161 These rules provide licensees with a framework to provide a wide variety of services with a minimum of interference. As the Commission stated in the 700 MHz First Report and Order, any interference issues that may arise among licensees can be satisfactorily resolved by general non- interference standards and technical rules. 162 We believe that this conclusion applies for licensees in the 3650- 3700 MHz band. We seek comment on this tentative finding. 2. Eligibility; Spectrum Aggregation 57. Sections 27.12 and 27.302 of the Commission's rules 163 impose no restrictions on eligibility, other than the foreign ownership restrictions set forth in Section 310 of the Communications Act, 164 and 158 See SR Telecom Comments at 4. SR Telecom also advocates restricting the use of the 6 GHz, 11 GHz and 18 GHz bands to point- to- point systems. See id. That proposal, however, falls outside of the scope of this proceeding. 159 The Commission has recognized that “[ f] lexible allocations may result in more efficient spectrum markets.” Spectrum Policy Statement, 14 FCC Rcd at 19870- 71 ¶ 9 (1999). As the Commission observed when it adopted service rules for the 39 GHz bands: “It is in the public interest to afford [] licensees flexibility in the design of their systems to respond readily to consumer demand for their services, thus allowing the marketplace to dictate the best uses for this band.” Amendment of the Commission’s Rules Regarding the 37.0- 38.6 GHz and 38.6- 40 GHz Bands, Report and Order and Second Notice of Proposed Rulemaking, 12 FCC Rcd 18,600, 18,616 ¶ 26 (1997). In addition, the BBA, which mandates the assignment of this band through competitive bidding (see ¶¶ 19- 20, supra), requires the Commission to “seek to promote the most efficient use of the electromagnetic spectrum” in the spectrum allocations made pursuant to the statute. BBA, Section 3002( c)( 2)( A). 160 See 47 U. S. C. § 303( y)( 2)( B). 161 See 47 U. S. C. § 303( y)( 2)( C). 162 See 700 MHz First Report and Order, 15 FCC Rcd at 486 (¶ 22). See also Allocation of Spectrum Below 5 GHz Transferred from Federal Government Use, 4660- 4685 MHz, ET Docket No. 94- 32, Second Report and Order, 11 FCC Rcd 624, 633 (¶ 18) (1995) (" GWCS Second Report and Order"). 163 See 47 C. F. R. §§ 27.12 and 27.302. 164 See 47 U. S. C. § 310. 25 Federal Communications Commission FCC 00- 363 26 discussed below. Consistent with these sections of the existing rules in Part 27, we propose that there be no additional restrictions on eligibility for a license in the 3650- 3700 MHz band. 165 This approach is also consistent with the approach we took with regard to the 4. 9 GHz band. 166 We believe that opening the 3650- 3700 MHz market to a wide range of applicants will permit and encourage entrepreneurial efforts to develop new technologies and services, while helping to ensure efficient use of this spectrum. 167 We seek comment on this tentative conclusion. 58. Part 27 of the Commission's rules does not contain a limitation on the amount of spectrum a licensee may aggregate in each geographic area. Consistent with the existing Part 27 rules, we tentatively conclude that we will permit licensees in the 3650- 3700 MHz band to obtain all of the 3650- 3700 MHz licenses in a given geographic area if we eventually decide to divide the 3650- 3700 MHz band into more than one licensee per geographic area. This tentative conclusion is consistent with our proposal for the 4. 9 GHz band. 168 We believe that the flexibility this approach permits will help licensees operating in the 3650- 3700 MHz band offer regional and national services, and will therefore create interest in the commercial development of the 3650- 3700 MHz band. We also believe that this approach will permit licensees who are so inclined to pair the 3650- 3700 MHz band with the 4.9 GHz band. By permitting licensees to acquire all of the spectrum in these bands in a given geographic area, licensees will be able to offer a wider variety of services and this flexibility in turn should stimulate more consumer interest in these services. The more consumer interest there is in a service, the more likely this service will be deployed broadly and to underserved areas. 59. In addition, as with the 4. 9 GHz band, we tentatively conclude that a spectrum cap is not necessary to prevent a 3650- 3700 MHz licensee from exercising market power. 169 The Commission has made available ample spectrum in other bands for licensees to offer services that likely will compete with those offered by 3650- 3700 MHz licensees. 170 We seek comment on our tentative conclusion that we should not impose a geographic area spectrum aggregation limit on 3650- 3700 MHz licensees. 165 For Commission decisions regarding relevant factors in deciding whether license eligibility restrictions are necessary or appropriate, see Amendment of the Commission's Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, ET Docket No. 95- 183, RM- 8553, Implementation of Section 309( j) of the Communications Act Competitive Bidding, 37.0- 38.6 GHz and 38.6- 40.0 GHz, PP Docket No. 93- 253, Report and Order and Second Notice of Proposed Rulemaking, 12 FCC Rcd 18600, 18619- 20 (¶¶ 32- 35) (1997) (" 39 GHz Report and Order"); LMDS Second Report and Order, 12 FCC Rcd at 12614- 16 (¶¶ 157- 161); Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission’s Rules to Redesignate the 27.5- 29.5 GHz Frequency Band, to Reallocate the 29.5- 30.0 GHz Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service and for Fixed Satellite Services, CC Docket No. 92- 297, Sixth Notice of Proposed Rule Making, 14 FCC Rcd 21520 (1999); Third Report and Order and Memorandum Opinion and Order, FCC 00- 223 (rel. June 27, 2000). 166 See 4. 9 GHz Notice, 15 FCC Rcd at 4793- 94 (¶ 34). 167 See GWCS Second Report and Order, 11 FCC Rcd at 649 (¶ 60). 168 See 4. 9 GHz Notice, 15 FCC Rcd at 4794 (¶ 35). 169 Id. at 4794 (¶ 36). 170 See Part 27 Report and Order; LMDS Second Report and Order; Amendment of the Commission’s Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Band, ET Docket No. 95- 183, Memorandum Opinion and Order, 14 FCC Rcd 12428 (1999); Amendments to Parts 1, 2 and 101 of the Commission’s Rules To License Fixed Services at 24 GHz, WT Docket No. 99- 327, Notice of Proposed Rulemaking, 14 FCC Rcd 19263, 19269- 70 (¶¶ 9- 10) (1999); 700 MHz First Report and Order. 26 Federal Communications Commission FCC 00- 363 27 Commenters that oppose our proposal should provide a rationale for whatever limit they deem appropriate, considering the varying bandwidth requirements of the different types of services that could be offered over the 3650- 3700 MHz band. In addition, commenters who advocate a spectrum cap should discuss why the availability of spectrum in other bands does not eliminate the need for a spectrum cap and, wherever possible, provide copies of any studies or analyses upon which their assertions are based. 60. The current spectrum cap applicable to CMRS licensees covers broadband Personal Communications Service (" PCS"), cellular, and certain covered Specialized Mobile Radio (" SMR") services, and, therefore, by its terms does not apply to licensees in the 3650- 3700 MHz band. 171 As we did in the 4.9 GHz Notice, 172 we tentatively conclude not to extend this cap with respect to those licensees in the 3650- 3700 MHz band who may be operating as CMRS providers. This approach is consistent with the decision the Commission reached in the GWCS Second Report and Order 173 and the 700 MHz First Report and Order. 174 We seek comment on this tentative conclusion. 3. Foreign Ownership Restrictions 61. Sections 310( a) and 310( b) of the Communications Act 175 impose certain foreign ownership and citizenship requirements that restrict the issuance of licenses to certain applicants. Section 310( a) prohibits any foreign government or its representative from holding a station license subject to a control test. 176 Section 310( b) prohibits certain defined foreign ownership interests in common carrier and other licenses. Section 27.12 of the Commission’s rules, which implements Section 310 of the Act, would by its terms apply to applicants for licenses in the 3650- 3700 MHz band, as well as applicants in the 4.9 GHz band. 177 An applicant requesting authorization only for non- common carrier services would be subject to Section 310( a) but not to the additional prohibitions of Section 310( b). An applicant requesting authorization for common carrier services (or for both common carrier and non- common carrier services) would be subject to both Section 310( a) and 310( b). Under the Commission's Foreign Participation Order, we now presume that ownership by entities based in countries that are WTO members serves the public 171 See 47 C. F. R. § 20.6( a); see also 1998 Biennial Regulatory Review Spectrum Aggregation Limits for Wireless Telecommunications Carriers. Cellular Telecommunications Industry Association's Petition for Forbearance From the 45 MHz CMRS Spectrum Cap, WT Docket No. 98- 205, Amendment of Parts 20 and 24 of the Commission's Rules - Broadband PCS Competitive Bidding and Commercial Mobile Radio Service Spectrum Cap, WT Docket No. 96- 59, Implementation of Sections 3( n) and 332 of the Communications Act, Regulatory Treatment of Mobile Services, GN Docket No. 93- 252, Report and Order, FCC 99- 244, rel. Sept. 22, 1999; Amendment of Parts 20 and 24 of the Commission's Rules Broadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap, WT Docket No. 96- 59, Report and Order, 11 FCC Rcd 7824, 7869- 76 (¶¶ 94- 107) (1996) (maintaining the 45 megahertz CMRS spectrum cap and eliminating the 35 megahertz cellular and PCS spectrum cap, and the 40 megahertz PCS spectrum cap). 172 See 4. 9 GHz Notice, 15 FCC Rcd at 4795 (¶ 37). 173 See GWCS Second Report and Order, 11 FCC Rcd at 645 (¶ 50). 174 See 700 MHz Report and Order, 15 FCC Rcd at 497- 98 (¶¶ 51- 53). 175 See 47 U. S. C. §§ 310( a), 310( b). 176 See, e. g., Orion Satellite Corp., 5 FCC Rcd 4937, 4944, n. 26 (1990). 177 See 47 C. F. R. §§ 27.12 and 27.302. 27 Federal Communications Commission FCC 00- 363 28 interest. 178 However, ownership by entities from countries that are not WTO members continues to be subject to the effective competitive opportunities test established by the Commission. 179 62. In the filing of an application under the Multipoint Distribution Service (“ MDS”), satellite, and LMDS rules, the Commission requires any applicant electing non- common carrier status to submit the same information that common carrier applicants submit to address the foreign ownership restrictions under Section 310( b) of the Act. 180 We proposed to follow this same approach with respect to applicants in the 4.9 GHz band, and we also propose to follow this approach with respect to applicants for the 3650- 3700 MHz band who wish to use the spectrum for fixed and mobile services. 181 Because these licensees will be permitted to offer both common and non- common carrier services, we believe this requirement is necessary in order to enable us to ascertain compliance of all these licensees with the alien ownership restrictions set forth in Section 27.12 of the Commission’s rules and the Communications Act of 1934, as amended. This information can be used whenever the licensee changes to common carrier status without imposing an additional filing requirement when the licensee makes the change. 182 We note, moreover, that we would not disqualify an applicant requesting authorization exclusively to provide non- common carrier service from obtaining a 3650- 3700 MHz license to provide fixed and mobile services solely on the basis that its citizenship information would disqualify it from receiving a common carrier license. 63. Accordingly, we propose that common carrier and non- common carrier licensees who wish to use the 3650- 3700 MHz band to provide fixed and mobile services be required to provide the alien ownership information requested by FCC Form 601. Moreover, we propose that both common carrier and non- common carrier licensees who provide fixed and mobile services in the 3650- 3700 MHz band must amend their FCC Form 602 to reflect any changes in foreign ownership information. We seek comment on these proposals. 4. Geographic Areas and Spectrum Blocks 64. As indicated above, in the Notice and Order in this proceeding, we sought comment on the appropriate geographic service areas to use for licensing the 3650- 3700 MHz band. 183 We received several 178 See Rules and Policies on Foreign Participation in the U. S. Telecommunications Market and Market Entry and Regulation of Foreign- Affiliated Entities, IB Docket Nos. 97- 142 and 95- 22, Report and Order and Order on Reconsideration, 12 FCC Rcd 23891, 23935- 47 (¶¶ 97- 132) (1997). 179 Id. 180 See 47 U. S. C. § 310( b). See also Revisions to Part 21 of the Commission's Rules regarding the Multipoint Distribution Service, CC Docket No. 86- 179, Report and Order, 2 FCC Rcd 4251, 4253 (¶ 16) (1987) (" MDS Report and Order"); Streamlining the Commission's Rules and Regulations for Satellite Application and Licensing Procedures, IB Docket No. 95- 117, Report and Order, 11 FCC Rcd 21581, 21599 (¶ 43) (1996) (" Satellite Rules Report and Order"); LMDS Second Report and Order, 12 FCC Rcd at 12650- 51 (¶ 243). 181 See 4. 9 GHz Notice, 15 FCC Rcd at 4795- 96 (¶ 39). 182 We note, however, that to the extent that a licensee’s decision to change its regulatory status raises issues with respect to that licensee exceeding the benchmark contained in Section 310( b)( 4), the rules require the Commission’s prior approval before the licensee can make this change. See Rules and Policies on Foreign Participation in the U. S. Telecommunications Market and Market Entry and Regulation of Foreign- Affiliated Entities, IB Docket Nos. 97- 142 and 95- 22, Report and Order and Order on Reconsideration, 12 FCC Rcd 23891, 23940- 41 (¶¶ 111- 118) (1997). 183 See Notice and Order, 14 FCC Rcd at 1303 (¶ 10). 28 Federal Communications Commission FCC 00- 363 29 comments on this issue, with some commenters, including rural and smaller carriers, advocating that the band be licensed using small geographic areas, such as Basic Trading Areas (" BTAs"), or Metropolitan Statistical Areas (" MSAs") and Rural Statistical Areas (" RSAs"), 184 while a few commenters suggest that the band should be licensed on a large regional basis, such as Economic Areas (" EAs") or nationwide basis. 185 Given the allocation that we have adopted for this band and the possibility of pairing the 50 megahertz of spectrum in the 3650- 3700 MHz band with the 50 megahertz of spectrum in the 4.9 GHz band, we believe it is appropriate to supplement the record on this issue. 65. Consistent with the Notice and Order, we tentatively conclude that a geographic area licensing approach should be used to assign licenses in the 3650- 3700 MHz band. 186 Our experience has been that wide- area licensing (as opposed to site- by- site licensing) affords licensees substantial flexibility to respond to market demand and may result in significant improvements in spectrum utilization. 187 In particular, geographic area licensing allows licensees to coordinate usage across an entire geographic area to maximize the use of spectrum in areas of highest demand. Wide- area licenses also provide the flexibility to dynamically adjust spectrum usage depending upon market demands. Such adjustments may be significantly more difficult under a site- by- site licensing regime where prior Commission approval is needed before a licensee can address growth or changes in demand. We note that we have proposed to use a wide- area licensing approach with the 4. 9 GHz band. 188 We seek comment on our tentative conclusion to use geographic areas to license the 3650- 3700 MHz band. 66. Assuming we adopt a wide- area approach to licensing the 3650- 3700 MHz band, there are a number of geographic area options. In the past the Commission has licensed spectrum using the 306 MSAs and the 428 RSAs. When combined, these two geographical service areas create the 734 geographic areas that were originally used to license cellular service. The Commission has also licensed or proposed to license spectrum using other geographic service areas, such as Economic Areas (“ EAs”) and EA- like areas. There are 172 EAs, as defined by the U. S. Department of Commerce, and three additional Commission-defined EA- like areas. 189 Specifically, the Commission has licensed the bands 37.0- 38.6 GHz and 38.6- 184 See, e. g., Rural Carriers comments at 5 and reply comments at 2- 6; Innowave comments at 3; NTCA comments at 2; RTG comments at ii, 6- 7; TDS comments at 2- 3 and reply comments at 1- 2; SR Telecom comments at 9- 10; Nortel comments at 10; GTE reply comments at 3; Western Wireless reply comments at 4- 5; OPASTCO reply comments at 1- 2. 185 See TDS comments at 2; PetroCom comments at 2. 186 See Notice and Order, 14 FCC Rcd at 1303 (¶ 10). 187 See, e. g., Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band, PR Docket No. 93- 144, First Report and Order, Eighth Report and Order, and Second Further Notice of Proposed Rule Making, 11 FCC Rcd at 1463 (1995) (restructuring licensing framework for 800 MHz Specialized Mobile Radio Service and adopting wide- area licensing). See also Gregory L. Rosston & Jeffrey S. Steinberg, Using Market- Based Spectrum Policy to Promote the Public Interest, 50 Fed. Comm. L. J. 87, 94 (1997). 188 See 4. 9 GHz Notice, 15 FCC Rcd at 4797 (¶ 43). 189 The three additional EA- like services areas are: (1) Guam and the Northern Mariana Islands (combined as one service area); (2) Puerto Rico and the United States Virgin Islands (combined as one service area); and (3) American Samoa. 29 Federal Communications Commission FCC 00- 363 30 40.0 GHz using EAs and has used EAs to license the 24 GHz band. 190 The Commission has also used larger geographic areas to license spectrum. For instance, the Commission licensed the 2. 3 GHz band using the twelve Regional Economic Area Groupings (“ REAs”) and the 52 Major Economic Areas (“ MEAs”). 191 REAs and MEAs are also based on the 172 EAs, as modified by the Commission. More recently, the Commission has chosen to license the bands 746- 764 MHz and 776- 794 MHz using the even larger Economic Area Groupings (“ EAGs”). 192 There are six EAGs and these are as well based on EAs. 67. If we adopt a wide- area licensing approach to license the 3650- 3700 MHz band, we seek comment on the appropriate geographic area to be used and what impact this choice of service territory will have on the possible pairing of the 3650- 3700 MHz band with the 4.9 GHz band. We are mindful of the competing need to provide large enough service areas for those wishing to provide national services in the 3650- 3700 MHz band, and possibly the 4.9 GHz band, and the need to choose a geographic licensing area that will permit the dissemination of 3650- 3700 MHz licenses among a wide variety of applicants. 193 We also wish to ensure service to rural areas 194 and to promote investment in and rapid deployment of new technologies and services. 195 We seek comment on the possibility of licensing part of the 3650- 3700 MHz band and the 4. 9 GHz band on a regional or national basis and the remaining part of the bands on a smaller scale. 196 If commenters support licensing based on service territories other than those discussed above, they should discuss why other types of service areas are more appropriate. 197 68. We note that, whatever service area is used to license the 3650- 3700 MHz band, some of those service areas will be contained within the coordination zones for the grandfathered FSS earth stations sites and the three grandfathered Federal Government radiolocation operations sites. In the Notice and Order in this proceeding, we identified the location of the three grandfathered Government radiolocation sites 198 and in the Report and Order we established an 80 kilometer coordination zone around each of these sites. 199 Likewise, below we propose to establish coordination zones around the grandfathered FSS earth station 190 See Amendment of the Commission’s Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Band, ET Docket No. 95- 183, Memorandum Opinion and Order, 14 FCC Rcd at 12428 (1999). See also 24 GHz Report and Order, FCC 00- 272 at ¶¶ 13- 18. 191 See 47 C. F. R. § 27.6. See also Part 27 Report and Order, 12 FCC Rcd at 10814- 16 (¶¶ 54- 60). At the time of the 2. 3 GHz auction, REAs were know as Regional Economic Area Groupings (“ REAGs”). 192 See 700 MHz First Report and Order, 15 FCC Rcd at 500 (¶ 56). 193 See 47 U. S. C. §§ 309( j)( 3)( B), (4)( C). 194 See 47 U. S. C. § 309( j)( 3)( A). 195 Id. at 309( j)( 4)( C)( iii). 196 In order to permit licensees to develop regional or national services, we seek comment below on whether we should modify our competitive bidding rules to promote bidder flexibility. See ¶ 120, infra. 197 One such approach might be the use of Component Economic Areas (" CEAs") which are a subset of EAs. CEAs were developed by the Commerce Department and there are 348 CEAs. While the Commission has not used CEAs before to license spectrum, commenters may wish to address their appropriateness for this band. 198 See Notice and Order, 14 FCC Rcd at 1307 (¶ 16). 199 See ¶ 36, supra. 30 Federal Communications Commission FCC 00- 363 31 sites. 200 No matter what geographic licensing areas we choose to license in this band, we do not propose to adjust these licensing areas to take into account these coordination zones. Licensees will acquire their licenses with knowledge of these coordination requirements. We seek comment on this tentative conclusion. 69. We also seek comment on whether we should license the Gulf of Mexico as part of larger service areas, as we did for the upper 700 MHz bands, or whether we should separately license a service area or service areas to cover the Gulf of Mexico. 201 Commenters who advocate a separate service area or areas to cover the Gulf of Mexico should discuss what boundaries should be used and whether special interference protection criteria or performance requirements are necessary due to the unique radio propagation characteristics and antenna siting challenges that exist for Gulf licensees. 70. We requested comment in the Notice and Order on the appropriate size for spectrum blocks in the 3650- 3700 MHz band. 202 We received numerous comments on this issue, with many commenters advocating the use of one 50 megahertz block 203 while others recommend dividing up the 50 megahertz of spectrum into smaller blocks. 204 For the reasons discussed above, we are seeking additional comment on the size of geographic licensing areas to be used to license the 3650- 3700 MHz band, we also believe it is appropriate to seek additional comment on the size spectrum block or blocks that should be used to license this band. We are particularly interested in seeking comment on what size spectrum block or blocks should be used to license this band so as to facilitate the pairing of this band with the 4. 9 GHz band. With this goal in mind, we seek comment on whether this spectrum should be auctioned in 50 megahertz block licenses. We seek to develop a record on whether 50 megahertz block licenses or smaller block licenses would provide licensees with more options for services in this band and the 4. 9 GHz band. For instance, the choice of 50 megahertz block licenses might better facilitate provision of broadband services by licensees. On the other hand, smaller blocks, such as 5 MHz, may provide a valuable option for licensees relocating from the 18 GHz band. 205 71. We also request comment on whether we should adopt a licensing plan for this band that provides for different sized blocks. If we allocate spectrum in different sized blocks, licensees would not be required to acquire more spectrum than they need for their operations. This alternative approach could save time and resources, and also could expedite the development and offering of services. We further 200 See ¶¶ 107- 109, infra. 201 See 700 MHz First Report and Order, 15 FCC Rcd at 500 (¶ 56 note 137). 202 See Notice and Order, 14 FCC Rcd at 1303 (¶ 10). 203 See, e. g., Rural Carriers comments at 2- 5 and reply comments at 2, 6; RTG comments at 7; NTCA comments at 2; RTG comments at ii, 6; OPASTCO comments at 1- 2. 204 See, e. g., PetroCom comments at 2 and 5; Nortel comments at ii, 2, and 10; TDS comments at 2- 4 and reply comments at 2; Innowave comments at 3; SR Telecom at 9- 10. 205 The Commission recently adopted a new band plan for the 18 GHz band that will, among other things, require the relocation of certain Part 101 point- to- point microwave facilities and obligate new satellite entrants to provide for the relocation of any existing fixed stations operating in spectrum being designated for exclusive satellite use (18.58- 19.3 GHz). See Redesignation of the 17.7- 19.7 GHz Frequency Band, Blanket Licensing of Satellite Earth Stations in the 17.7- 20.2 GHz and 27.5- 30.0 GHz Frequency Bands, and the Allocation of Additional Spectrum in the 17.3- 17.8 GHz and 24.75- 25.25 GHz Frequency Bands for Broadcast Satellite- Service Use, IB Docket No. 98- 172, RM- 9005, RM- 9118, Report and Order, FCC 00- 212 (rel. June 22, 2000). The affected 18 GHz bands are used by point- to- point microwave facilities that operate with 5 MHz bandwidths. See 47 C. F. R. § 101.147( r)( 2). 31 Federal Communications Commission FCC 00- 363 32 request comment on how various public objectives, such as the diversity of services offered to consumers, the adequacy of spectrum for flexible uses, the time necessary to implement the grants, and the ability of small businesses to provide niche services, may be achieved with a licensing scheme that uses a variety of blocks of different sizes. In addition, we request comment on whether the 3650- 3700 MHz band should be licensed in paired spectrum blocks. Under this approach, we could pair 25 megahertz spectrum blocks into licenses of 50 megahertz. 5. License Term; Renewal Expectancy 72. Section 27. 13 of the Commission's rules provides for authorizations for license terms not to exceed 10 years from the date of original issuance or renewal. 206 Section 27. 14 of the Commission's rules establishes a right to a renewal expectancy. 207 We sought comment on whether to apply these license term and renewal expectancy provisions to the 4. 9 GHz band and we seek comment on whether to apply them with respect to licensees in the 3650- 3700 MHz band. 208 We seek comment on whether a 10- year license term, combined with a renewal expectancy, will help to provide a stable regulatory environment that will be attractive to investors and thereby encourage development of this spectrum. We also seek comment on whether a license term longer than 10 years is appropriate to achieve these goals and better serve the public interest. 209 Commenters who favor a license term in excess of 10 years should specify the appropriate license term and include a basis for the period proposed, and should address whether the same terms should apply to 4.9 GHz licensees. 73. Consistent with Part 27, we propose that in the event that a license is partitioned or disaggregated, 210 any partitionee or disaggregatee shall be authorized to hold its license for the remainder of the original licensee's 10- year term, and the partitionee or disaggregatee may obtain a renewal expectancy on the same basis as other licensees in the 3650- 3700 MHz band. 211 We further propose that all licensees meeting the substantial service requirement will be deemed to have met this part of the renewal expectancy requirement regardless of which of the construction options the licensees have chosen. We tentatively conclude that this approach is appropriate because a licensee, through partitioning, should not be able to confer greater rights than it has been awarded under the terms of its license grant. 212 We tentatively concluded that we should impose these provisions on 4. 9 GHz licensees and, likewise, we tentatively conclude that we should impose these provisions on 3650- 3700 MHz licensees. We seek comment on this tentative conclusion. 74. In addition, in the 4.9 GHz Notice, 213 we tentatively concluded that in order for a licensee 206 See 47 C. F. R. § 27.13. 207 See 47 C. F. R. § 27.14. 208 See 4. 9 GHz Notice, 15 FCC Rcd at 4789 (¶ 48). 209 See 47 U. S. C. § 307( c) (limiting broadcasting station licenses to eight years). 210 See ¶¶ 75- 80, infra. 211 See 47 C. F. R. §§ 27.15( d), 27.324( b)( 4). 212 See Part 27 Report and Order, 12 FCC Rcd at 10840 (¶ 106). 213 See 4. 9 GHz Notice, 15 FCC Rcd at 4799 (¶ 50). 32 Federal Communications Commission FCC 00- 363 33 involved in a comparative renewal proceeding 214 to claim a renewal expectancy that licensee must include, at a minimum, the following showing required by Section 27. 14( c) of the Commission's rules: 215 x A description of current service in terms of geographic coverage and population served or links installed. x An explanation of the licensee's record of expansion, including a timetable for the construction of new base sites or links to meet changes in demand for service. x A description of the licensee's investments in its system. x Copies of any Commission orders finding the licensee to have violated the Communications Act or any Commission rule or policy, and a list of any pending proceedings that relate to any matter described by the requirements for the renewal expectancy. 216 We likewise tentatively conclude that a licensee in the 3650- 3700 MHz band involved in a comparative renewal proceeding must, at a minimum, make this same showing in order to claim a renewal expectancy. We seek comment on this tentative conclusion. We also seek comment on how the deployment of earth stations within a licensee’s service area should be taken into account in connection with renewal expectancy. 6. Partitioning and Disaggregation of Licenses; Band Managers 75. As we did with respect to potential 4. 9 GHz licensees, we hereby tentatively conclude that we should allow all 3650- 3700 MHz licensees the flexibility to partition their service areas without any restriction, and to disaggregate their spectrum. 217 We tentatively conclude that geographic partitioning and spectrum disaggregation can result in efficient spectrum use and economic opportunity for a wide variety of applicants, including small business, rural telephone, minority- owned, and women- owned applicants, as required by Section 309( j)( 4)( C) of the Communications Act. 218 We also tentatively conclude that our proposed approach will provide a means to overcome entry barriers through the creation of smaller licenses that require less capital, thereby facilitating greater participation by rural telephone companies and other smaller entities, many of which are owned by minorities and women. 219 214 A comparative renewal proceeding is one in which an existing licensee is challenged by another applicant. The existing licensee must demonstrate sufficient reason for the Commission to renew its license for an additional license term rather than issue the license to another applicant. See 47 C. F. R. § 27.14( b); see also Part 27 Report and Order, 12 FCC Rcd at 10840, 10843- 44 (¶¶ 106, 113). 215 See 47 C. F. R. § 27.14( c). See also Part 27 Report and Order, 12 FCC Rcd at 10840- 41 (¶ 107). 216 Cf. Sections 22.940( a)( 2)( i)-( iv) of the Commission's rules, 47 C. F. R. §§ 22.940( a)( 2)( i)-( iv). We note that, because of the anticipated difference in the nature of the respective services, we are not proposing that licensees in the 3650- 3700 MHz band would be required to demonstrate an ability to serve roamers, as is required of cellular licensees under Part 22 of the Commission's rules. 217 See 4. 9 GHz Notice, 15 FCC Rcd at 4800 (¶ 52). 218 See 47 U. S. C. § 309( j)( 4)( C). 219 See Partitioning and Disaggregation Report and Order, 11 FCC Rcd at 21843- 44 (¶¶ 13- 17) (1996). 33 Federal Communications Commission FCC 00- 363 34 76. Section 27. 15 of the Commission's rules permits licensees seeking approval for partitioning and disaggregation arrangements to request authorization from the Commission for partial assignment of a license, and provides that licensees may apply to partition their licensed geographic service areas or disaggregate their licensed spectrum at any time following the grant of their licenses. 220 In adopting the rule, the Commission decided to permit geographic partitioning of any service area defined by the partitioner and partitionee, to permit spectrum disaggregation without restriction on the amount of spectrum to be disaggregated, and to permit combined partitioning and disaggregation. 221 The Commission concluded that allowing parties to decide without restriction the exact amount of spectrum to be disaggregated will encourage more efficient use of the spectrum and permit the deployment of a broader mix of service offerings, both of which will lead to a more competitive wireless marketplace. 222 We request comment on our proposal that licensees in the 3650- 3700 MHz band be eligible to the same extent to partition service areas and disaggregate spectrum. We also request comment on what limits, if any should be placed on the ability of licensees to partition service areas and disaggregate spectrum. 77. Section 27. 15( b)( 1) of the Commission’s rules provides that, in the case of partitioning, applicants and licensees must file FCC Form 603 and list the partitioned service area on a schedule to the application. 223 Section 27. 15( c) contains provisions against unjust enrichment in order to address situations where a licensee under Part 27 who received a bidding credit partitions a section of its service area or disaggregates a portion of its spectrum to an entity that would not qualify for a similar bidding credit. 224 We propose to apply these provisions, as well as the remaining provisions governing partitioning and disaggregation in Section 27.15 of the Commission's rules, to 3650- 3700 MHz licensees. 78. We also seek comment on our proposal to apply the methods that the Commission adopted in the Part 27 Report and Order for parties to partitioning, disaggregation, or combined partitioning and disaggregation agreements to meet construction requirements. 225 Specifically, we propose to allow parties to partitioning agreements to choose between two options for satisfying the construction requirements. 226 Under the first option, the partitioner and partitionee would each certify that it will independently satisfy the substantial service requirement for its respective partitioned area. If a licensee fails to meet its substantial service requirement during the relevant license term, the non- performing licensee's authorization would be subject to cancellation at the end of the license term. Under the second option, the partitioner certifies that the requirement has been or will be met for the entire market. If the partitioner fails to meet the substantial service standard during the relevant license term, only its license would be subject to 220 See Part 27 Report and Order, 12 FCC Rcd at 10836- 39 (¶¶ 96- 103), adopting 47 C. F. R. § 27.15. 221 Id. at 10836- 37, 10839 (¶¶ 97- 99, 102), citing Partitioning and Disaggregation Report and Order, 11 FCC Rcd at 21847- 48 (¶¶ 23- 24). 222 Id. at 10836 (¶ 97). 223 See 47 C. F. R. § 27.15( b)( 1). See also ULS Report and Order, 13 FCC Rcd at 21078- 83 (¶¶ 109- 122). 224 See 47 C. F. R. § 27.15( c). See also Part 27 Report and Order, 12 FCC Rcd at 10838- 39 (¶ 101); 47 C. F. R. § 1.2111. 225 See Part 27 Report and Order, 12 FCC Rcd at 10836 (¶ 96). See also Partitioning and Disaggregation Report and Order, 11 FCC Rcd at 21857, 21865 (¶¶ 42, 62- 63); LMDS Fourth Report and Order, 13 FCC Rcd at 11655, 11664- 66 (¶¶ 16- 19). 226 See 47 C. F. R. § 27.15( e)( 1), as amended by 700 MHz First Report and Order. 34 Federal Communications Commission FCC 00- 363 35 cancellation at the end of the license term. The partitionee's license would not be affected by such failure. 79. Our proposal to offer two options to partitioning parties is based on our tentative conclusion that licensees in the 3650- 3700 MHz band may be motivated to enter into partitioning arrangements for different reasons and under various circumstances. For example, a 3650- 3700 MHz licensee might partition its license in order to reduce its construction costs. In that case, the original licensee would have less population to cover in order to meet its substantial service requirement. Thus, it may find the first option more attractive for its purposes. Under another scenario, a 3650- 3700 MHz licensee who has met or is close to meeting its substantial service requirement may be approached by another entity interested in serving a niche market in a portion of the service area. Under these circumstances, the second option may seem more attractive to the parties. In either instance, the public interest is advanced by permitting that flexibility, in terms of service areas and niche markets, conducive to optimizing the viability and value of the licenses partitioned while precluding circumvention of our construction requirements. 227 80. Finally, we propose to allow parties to disaggregation agreements to choose between two options for satisfying the construction requirements. 228 Under the first option, the disaggregator and disaggregatee would certify that they will share responsibility for meeting the substantial service requirement for the geographic service area. If parties choose this option, both parties' performance will be evaluated at the end of the relevant license term and both licenses could be subject to cancellation. The second option would allow the parties to agree that either the disaggregator or the disaggregatee would be responsible for meeting the substantial service requirement for the geographic service area. If parties choose this option, and the party responsible for meeting the construction requirement fails to do so, only the license of the non- performing party would be subject to cancellation. As with partitioned licenses, providing these options preserves the public interest in developing the spectrum to the same degree as that required had the disaggregation (or partitioning) not occurred. 229 81. We seek comment on whether the use of band manager licensing may also be an appropriate alternative method of accomplishing the objectives that we strive to achieve through our partitioning and disaggregation rules. Band managers would be a class of Commission licensee that would engage in the business of making spectrum available for use by others through private, written contracts. We seek comment generally on the possible use of band managers in the 3650- 3700 MHz band, and in the 4.9 GHz band should we find that the public interest supports the pairing of these bands. Should we decide to license band managers for this spectrum, we seek comment on whether licensees should be permitted to choose to operate either as band managers (i. e., spectrum brokers), or as traditional licensees, or both. In the alternative, some or all of the frequencies could be authorized exclusively for band manager licensing. We invite comment on the advantages and disadvantages of band manager licensing and the approaches identified above. We also seek comment on all the rules that should apply to band managers. 230 227 See Partitioning and Disaggregation Report and Order, 11 FCC Rcd at 21857 (¶ 43). 228 See 47 C. F. R. § 27.15( e)( 2), as amended by 700 MHz First Report and Order. 229 See Partitioning and Disaggregation Report and Order, 11 FCC Rcd at 21864- 65 (¶ 61). 230 See Service Rules for the 746- 764 and 776- 794 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT Docket No. 99- 168, Second Report and Order, 15 FCC Rcd 5299, 5321- 28, 5331- 33 ¶¶ 48- 67, 74- 80 (2000) (establishing Guard Band Manager licenses for the 700 MHz guard bands and adopting Subpart G of Part 27 of the Commission’s rules and other rules governing Guard Band Manager licenses). 35 Federal Communications Commission FCC 00- 363 36 7. Performance Requirements 82. Section 27. 14( a) of the Commission's rules requires 2. 3 GHz licensees to provide “substantial service” in their service areas within 10 years of being licensed, and also states that a failure to meet this requirement will result in forfeiture of the license and the licensee's ineligibility to regain it. 231 This section defines substantial service “as service which is sound, favorable, and substantially above a level of mediocre service which just might minimally warrant renewal.” 232 The Part 27 Report and Order provided several examples of safe harbors that would demonstrate substantial service. 233 Later, for LMDS, the Commission adopted the same build- out requirement and safe harbor provisions. 234 Recently, the Commission adopted these same safe harbor provisions for the 747- 762 MHz and 777- 792 MHz bands. 235 As we did for the 4.9 GHz band, we propose that licensees in the 3650- 3700 MHz band be governed by the same construction standards, including the same safe harbor provisions. 236 We also propose an FSS build- out requirement for those 3650- 3700 MHz licensees who choose not to use their licenses for fixed and mobile services and instead use the spectrum to provide FSS under Part 25 of the Commission's rules. 83. Our construction proposal includes the requirement that licensees submit an acceptable showing to the Commission at the end of the license period demonstrating that they have provided substantial service during the license term or are providing substantial service at the end of the term. 237 We propose to amend Part 27 to adopt the following safe harbors that would be applicable to 3650- 3700 MHz licensees. 238 In order to constitute substantial service, licensees would have to meet one of the following: x For a licensee who chooses to offer fixed, point- to- point services, the construction of four permanent links per one million people in its licensed service area during its license term or at the license- renewal mark would constitute substantial service. x For a licensee who chooses to offer fixed, point- to- multipoint services, a demonstration of coverage to 20 percent of the population of its licensed service area during its licensed term or at the license- renewal mark would constitute substantial service. x For a licensee that chooses to offer a fixed- satellite service, construction of one earth station per licensed service area during its license term or at the license- renewal mark would constitute substantial service. 84. The second safe harbor proposal concerning fixed, point- to- multipoint services would include 231 See 47 C. F. R. § 27.14( a). 232 Id. See also Part 27 Report and Order, 12 FCC Rcd at 10843- 45 (¶¶ 111- 115). 233 See Part 27 Report and Order, 12 FCC Rcd at 10844 (¶ 113). 234 See LMDS Second Report and Order, 12 FCC Rcd at 12660 (¶ 270). 235 See 700 MHz First Report and Order, 15 FCC Rcd at 505 (¶ 70). 236 See 4. 9 GHz Notice, 15 FCC Rcd at 4802 (¶ 58). 237 See Part 27 Report and Order, 12 FCC Rcd at 10843- 44 (¶ 113). See also 47 C. F. R. § 27.14( c). 238 See Appendix B, Proposed Section 27.14( a)( 1) of the Commission's rules, 47 C. F. R. § 27.14( a)( 1). 36 Federal Communications Commission FCC 00- 363 37 3650- 3700 MHz licensees that use the band to provide mobile services. This is because the band is limited to mobile base station use. Mobile services in the band would essentially be a fixed, point- to- multipoint service. We recognize that this safe harbor proposal for licensees who choose to offer fixed, point- to-multipoint services is different from the safe harbor standard adopted for the 24 GHz band. 239 Unlike at 24 GHz, however, there is presently no domestic terrestrial fixed or mobile commercial use of the 3650- 3700 MHz band. For 3650- 3700 MHz licensees, therefore, there might be equipment availability issues that do not exist for 24 GHz licensees. 85. The third safe harbor proposal concerns the situation where a 3650- 3700 MHz licensee who aquires its license pursuant to the rules we adopt for fixed and mobile services uses this spectrum to provide FSS service on a secondary basis in the band. As stated earlier, this licensee would have to comply with the Part 25 application and licensing rules related to FSS and earth stations. However, without the third safe harbor proposal, this licensee would lose its Part 27 license at the end of its license renewal mark. The FSS safe harbor proposal, therefore, makes clear that a 3650- 3700 MHz licensee that uses this spectrum to provide FSS will not lose its license at the end of its license term as long as the licensee constructs one earth station per licensed service area during its license term or at its license- renewal mark. 86. Our safe harbor proposals are intended to provide licensees an opportunity to achieve certainty as to compliance with the substantial service requirement during or by the end of the initial license term. If they comply with the safe harbors, they will have met the substantial service requirement. In addition, the substantial service requirement could be met in other ways, and we propose to review licensees' showings on a case- by- case basis. 240 In reviewing licensees' showings, we propose to consider such factors as whether the licensee is offering a specialized or technologically sophisticated service that does not require wide coverage to be of benefit to customers, 241 and whether the licensee's operations serve niche markets or focus on serving populations outside of areas served by other licensees. 242 Although licensees will have incentives to construct facilities to meet the service demands in their licensed service areas, we tentatively conclude that the minimum requirements we propose for the 3650- 3700 MHz band will promote efficient use of the spectrum, encourage the provision of service to rural, remote, and insular areas, and prevent the warehousing of spectrum. 87. We tentatively conclude that these build- out provisions fulfill our obligations under Section 309( j)( 4)( B) of the Communications Act. 243 This section requires the Commission in implementing auction 239 See 24 GHz Report and Order, FCC 00- 272 at ¶¶ 37- 39. 240 See Appendix B, Proposed Section 27.14( a)( 2) of the Commission's rules, 47 C. F. R. § 27.14( a)( 2). 241 See Part 27 Report and Order, 12 FCC Rcd at 10844 (¶ 113), citing Amendment of Parts 2 and 90 of the Commission's Rules to Provide for the Use of 200 Channels Outside the Designated Filing Areas in the 896- 901 MHz and the 935- 940 MHz Bands Allotted to the Specialized Mobile Radio Pool, Implementation of Section 309( j) of the Communications Act Competitive Bidding, and Implementation of Sections 3( n) and 322 of the Communications Act, GN Docket No. 93- 252, Second Report and Order and Second Further Notice of Proposed Rulemaking, 10 FCC Rcd 6884, 6887 (¶ 4) (1995). 242 See Amendment of Parts 2 and 90 of the Commission's Rules to Provide for the Use of 200 Channels Outside the Designated filing Areas in the 896- 901 MHz and the 935- 940 MHz Bands Allotted to the Specialized Mobile Radio Pool Implementation of Sections 3( n) and 322 of the Communications Act, GN Docket No. 93- 252, Third Order on Reconsideration, 11 FCC Rcd at 1170 (¶ 2) (1995). 243 Id. at 10844- 45 (¶¶ 114- 115), citing 47 U. S. C. § 309( j)( 4)( B). See also Melcher v. FCC, 134 F. 3d 1143 (D. C. Cir. 1998). 37 Federal Communications Commission FCC 00- 363 38 procedures to include “safeguards to protect the public interest in the use of the spectrum” and performance requirements “to ensure prompt delivery of service to rural areas, to prevent stockpiling or warehousing of spectrum by licensees or permittees, and to promote investment in and rapid deployment on new technologies and services.” 244 We tentatively conclude that the licensing, service and technical rules that we are proposing for the 3650- 3700 MHz band, along with our overall competition and universal service policies, constitute effective safeguards to protect the public interest in the use of the spectrum. The performance requirements that we are proposing for this band should ensure that the spectrum is used and promote investment in and rapid deployment of new technologies and services. We also believe that, combined with the universal service policies of the Telecommunications Act of 1996 (" 1996 Act"), 245 service to rural areas may be furthered by our proposal to allow partitioning of service areas and disaggregation of spectrum and by our proposal, as outlined above, 246 to permit parties to disaggregation and partitioning agreements to negotiate between themselves the responsibility for meeting the applicable construction requirements. 88. Finally, as we proposed with respect to the 4.9 GHz band, we intend to reserve the right to review our construction requirements in the future if we receive complaints related to Section 309( j)( 4)( B), or if a reassessment is warranted because spectrum is being warehoused or is otherwise not being used despite demand. 247 We will also reserve the right to impose additional, more stringent construction requirements on licenses in the future in the event that actual anticompetitive or universal service problems develop. We solicit comment on these proposals and views regarding performance requirements. In addition, if commenters believe that pairing the 3650- 3700 MHz band and the 4.9 GHz band is necessary or appropriate, we seek comment on whether our safe harbor proposals should be modified and what would be appropriate safe harbors. 8. Equal Employment Opportunity 89. Part 27 does not explicitly require licensees to afford equal opportunity in employment. Nor does Part 24 contain an Equal Employment Opportunity (EEO) provision. 248 We note that there are specific EEO provisions for fixed service providers in Parts 21 and 101, including both common carrier and non- common carrier LMDS licensees; 249 and for common carrier mobile service providers in Parts 22 and 90 of the Commission's rules, though these latter provisions do not apply to PMRS providers because they are not common carriers. 250 In addition, Part 25 contains EEO rules for entities that use an owned or leased fixed- satellite service facility to provide more than one channel of video programming directly to the public. 251 244 See 47 U. S. C. § 309( j)( 4)( B). 245 See Telecommunications Act of 1996, Pub. L. No. 104- 104, 110 Stat. 56 (1996) (1996 Act). 246 See ¶¶ 78- 80, supra. 247 See 4. 9 GHz Notice, 15 FCC Rcd at 4804 (¶ 62). 248 See 47 C. F. R. Part 24 (Personal Communications Services). 249 See, e. g., 47 C. F. R. § 101.311. 250 See 47 C. F. R. §§ 22.321, 90.168. 251 See 47 C. F. R. § 25.601. 38 Federal Communications Commission FCC 00- 363 39 90. Just as we did with respect to the 4. 9 GHz band, we seek comment regarding whether to include an EEO provision in the Commission's rules applicable to services in the 3650- 3700 MHz band and, if so, which of the Commission's EEO rules we should adopt. 252 Commenters should address the advisability of having different EEO requirements depending on the service a licensee provides. Commenters supporting the adoption of EEO requirements should address what statutory authority should be invoked to support these requirements and how these rules should be tailored to satisfy constitutional requirements. 253 B. Technical Rules 91. In the Notice and Order, we sought comment on technical issues related to the proposed allocation of the 3650- 3700 MHz band for FS operations. 254 While we have considered the comments received to date, we do not believe that a sufficient record has been established for us to adopt technical rules at this time. 255 Furthermore, in light of our final allocation plan for the 3650- 3700 MHz band and the new regulatory scheme proposed in this Second Notice, we now make specific proposals regarding technical rules. We seek to establish a new record based on these proposals. Specifically, we seek comment on adopting the Commission's Part 27 technical standards for fixed and mobile operations in the 3650- 3700 MHz band, with appropriate modifications to reflect the particular characteristics and circumstances of this band. 92. The application of general provisions of Part 27 would include technical standards relating to power limits, out- of- band emission limits, frequency stability, international coordination, antenna structures and air navigation safety, disturbance of AM broadcast station antenna patterns, radiofrequency (RF) safety standards, and equipment authorization. 256 In addition to the requirements in Part 27, we seek comment on proposals for additional technical requirements that may be necessary to allow terrestrial service operations to co- exist with the incumbent non- Federal Government FSS earth stations and the Federal Government radiolocation operations in the 3650- 3700 MHz band, as well as the high- powered Federal Government mobile radar systems in the adjacent 3300- 3650 MHz band. 1. In- Band Interference Control a. Fixed and Mobile Services in the 3650- 3700 MHz band 93. Part 27 of the Commission's rules provides limits on the field strength of signals at a licensee's 252 See 4. 9 GHz Notice, 15 FCC Rcd at 4808 (¶ 71). 253 See Lutheran Church- Missouri Synod v. FCC, 141 F. 3d 344 (D. C. Cir. 1998) (striking down the Commission's EEO program requirements for radio broadcast stations as unconstitutional and remanding to the Commission the issue of whether the non- discrimination rule was within its statutory authority), reh’g denied, 154 F. 3d 487 (D. C. Cir. 1998), opinion after remand, 13 FCC Rcd, 23328, appeal pending. 254 See Notice and Order at 1302- 05 (¶¶ 9- 12). 255 See, e. g., Rural Carriers comments at 8; COMSAT comments at 8- 9, 12- 14; Comsearch comments at 6; Innowave comments at 3 and 5- 6; Lucent comments at 7- 8; PanAmSat comments at 7- 8; PetroCom comments at 4; RTG comments at ii and 11- 12; SBC comments at 2; SBC comments at 2; Sprint comments at 5; SR Telecom at pages iii and 8- 9; Nortel comments at iii, 10, 12- 14; AT& T reply comments at 5; Lockheed comments at 4. 256 See 47 C. F. R. §§ 27.51, 27.54, 27.56, 27.57, 27.59, 27.61, 27.63. See also Part 27 Report and Order, 12 FCC Rcd at 10848- 65 (¶¶ 123- 161). 39 Federal Communications Commission FCC 00- 363 40 border area unless the adjacent licensees agree to a higher field strength limit at their shared border. 257 The Commission has permitted similar flexibility in other frequency bands such as cellular service, Personal Communications Service, and Wireless Communications Service (“ WCS”). In these cases, the Commission generally has addressed the control of co- channel interference between licensees in adjacent geographic regions by establishing field strength limits at the edge of the service areas and encouraging licensees to resolve interference problems on their own before coming to the Commission. 258 94. Given that the mobile allocation in the 3650- 3700 MHz band is limited to base stations which operate from a fixed location, we tentatively propose that technical requirements selected for the FS will also apply to the mobile service in this band. We seek comment on this conclusion. 95. In the absence of a consensus on an appropriate limit on field strength at a service area boundary, the Commission has relied on the use of coordination procedures to avoid harmful interference between the operations of licensees in adjacent service areas. 259 Specifically, licensees are required to coordinate pursuant to the appropriate provisions of Section 101.103 of the Commission's rules when they construct new facilities or modify existing facilities within a certain distance of the edge of their licensed service areas. 260 Through coordination, many steps can be taken to limit or prevent interference, such as use of robust technologies, partitioning the use of frequencies, taking advantage of terrain shielding and other propagation effects, and use of directional antennas. 96. We believe that either a coordination or field strength method, when properly applied, can provide a satisfactory means of controlling harmful interference between adjacent licensee's systems. There may be reasons to prefer one method over the other in the 3650- 3700 MHz band. Specifically, a general coordination requirement may minimize the potential for interference to coordinated facilities, but may impose unnecessary coordination costs for facilities with a low potential for interference. Additionally, a coordination procedure may increase the potential for undesirable strategic or anti- competitive behavior. Alternatively, a field strength limit may reduce the need for coordination by giving licensees the ability to deploy unilaterally facilities in boundary areas as long as the field strength limit is satisfied, but by itself may provide insufficient assurance against interference to such facilities. A boundary field strength limit may require some degree of coordination and joint planning between bordering licensees to ensure efficient spectrum use on each side of the boundary. 97. We seek comment on the advantages and disadvantages of both approaches, or possibly, other approaches that combine elements of both a boundary field strength limit and a coordination requirement for controlling interference across geographic boundaries between 3650- 3700 MHz operations. Parties should address the degree to which each method would provide adequate interference protection. We request comment on the kinds of incentives each method may present for undesirable strategic or anti-competitive behavior and the effect on licensee cost. 98. Regarding whether a general coordination approach should be used, comments are invited on specific aspects of procedures, such as those contained in Section 101.103 of the Commission’s rules that 257 See 47 C. F. R. § 27.57. 258 See, e. g., 47 C. F. R. §§ 24.236, 24.237 (Broadband PCS), 47 C. F. R. § 21.902( b)( 5) (Multipoint Distribution Service), and 47 C. F. R. § 27.55 (WCS). 259 See LMDS Second Report and Order; 39 GHz Report and Order. 260 See 47 C. F. R. § 101.103. 40 Federal Communications Commission FCC 00- 363 41 should apply. 261 While we suggest that Section 101.103 can serve as a useful framework for coordination in the 3650- 3700 MHz band, our objective is to ensure that licensees receive protection from harmful interference with the minimum regulation necessary. If we ultimately adopt a general coordination approach, we tentatively conclude that such coordination would be required with co- channel fixed or mobile service licensees in adjacent geographic service areas and with adjacent channel licensees in adjacent geographic service areas, as well as the same or overlapping area. We propose to have each licensee coordinate with licensees in other relevant areas and develop agreements to that effect. 99. In other proceedings, the Commission has based coordination on fixed distances between the station and the licensee's service area boundary. 262 For the 3650- 3700 MHz band, we propose to require that licensees coordinate their facilities whenever their facilities have line of sight into co- channel licensee facilities. 263 Under this proposal, coordination would have to be successfully completed before operation is permitted. In the event that there is no 3650- 3700 MHz licensee immediately present in adjacent or overlapping areas, the fixed or mobile licensee must be prepared to coordinate its stations in the future in order to accommodate other adjacent area licensees to ensure cooperative and effective use of the 3650- 3700 MHz band in each service area. 100. If commenters believe that we should apply a field strength limit at service area boundaries for the 3650- 3700 MHz band as a means to control interference to neighboring systems, then an analysis should be presented to justify any proposed value. In the Notice and Order, we indicated that a field strength value of 54 dBµV/ m may be an appropriate field strength for FS operations in the 3650- 3700 MHz band. 264 We note that other maximum field strengths have been adopted by the Commission for other services, such as, 47 dBµV/ m for PCS, and 40 dBµV/ m for 700 MHz WCS licensees. 265 101. In the Notice and Order, we sought comment on the alternative possibility of subjecting fixed stations to operating limits similar to those now employed for Broadband PCS, i. e., a base station height/ power limit of 1640 watts peak effective isotropically radiated power (" EIRP") with an antenna height up to 300 meters. 266 There was a lack of consensus in comments filed in response to the Notice and Order. We seek comment on what, if any, power limits (in terms of EIRP or effective radiated power (ERP)) and antenna height restrictions are necessary or appropriate under either a coordination or field strength limit approach. b. Coordination with Fixed Satellite Service Operations in the 3650- 3700 MHz Band 267 102. In the Notice and Order, we recognized the need to protect FSS earth station reception of 261 Id. 262 See LMDS Second Report and Order; 39 GHz Report and Order. 263 At a minimum, stations whose radio horizon overlaps adjacent areas should contact relevant licensees regarding coordination of facilities. 264 See Notice and Order, 14 FCC Rcd at 1303 (¶ 10). 265 See 47 C. F. R. §§ 24.236 (PCS); 27.55( b) (700 MHz WCS). 266 See Notice and Order, 14 FCC Rcd at 1304- 05 (¶ 12). 267 These coordination procedures apply to both the fixed and mobile base station services permitted in the 3650- 3700 MHz band. 41 Federal Communications Commission FCC 00- 363 42 very weak signals transmitted by geostationary orbit satellites in the 3650- 3700 MHz band. 268 However, we were not inclined to adopt the sharing criteria used in the adjacent 3700- 4200 MHz band and instead proposed to restrict FS power. 269 We based this conclusion on the assumption that the coordination procedures used for the 3700- 4200 MHz band would require large coordination distances that could unnecessarily constrain the deployment of fixed service in 3650- 3700 MHz. 270 Comsearch objects to our proposal and instead suggests use of the coordination procedures contained in Part 25 of the Commission’s rules, which are based on Appendix S7 of the International Telecommunication Union (“ ITU”) Radio Regulations. 271 Comsearch notes that these procedures have resulted in sharing at distances much less then the coordination contour radius, and that given certain technical parameters, earth stations have actually been located near the base of FS sites operating in the same band. 272 103. We find that Comsearch’s arguments have merit and believe that coordination procedures may allow greater flexibility than regulated power limits as proposed in the Notice and Order. 273 Given the need to protect grandfathered FSS sites from harmful interference caused by terrestrial service operations in this band, we tentatively conclude that coordination zones (based on ITU Appendix S7) will be required for terrestrial service operations located within 200 kilometers (approximately 125 miles) of grandfathered FSS sites. Given the proposed ERP limit for fixed and mobile service operations in the 3650- 3700 MHz band, we tentatively find that the distance cutoff for coordination of 200 kilometers is appropriate. This proposed coordination procedure will provide for line of sight coordination protection to grandfathered FSS earth stations and take into account elevation angle, terrain shielding and over the horizon distances from grandfathered FSS earth station sites to proposed fixed and mobile service operations. We seek comment on this coordination proposal and whether alternative coordination procedures should be considered for the terrestrial service operations to provide interference protection to grandfathered FSS sites in the 3650- 3700 MHz band. Further, given that we permit flexibility for FSS earth station use, the coordination procedures should take into account any possible future changes to the FSS earth station facilities, including possible future polarization and receive antenna orientation changes. With respect to changes in antenna orientation, one possible coordination method would be to protect the earth station's orientation, plus a fixed arc adjacent to that orientation. This would provide certainty for terrestrial licensees, by quantifying the exclusion zone around the earth station. Another option would be to permit changes in the antenna orientation of grandfathered earth stations, subject to acceptance of interference from any existing terrestrial facilities, such that the exclusion zone of the modified earth station would only reflect the earth station's actual facilities. We seek comment on these and any other options. In addition, commenters seeking to propose alternative distances for coordination zones should submit detailed technical information on how the zone size should be determined. 104. We propose that terrestrial service operations located within these 200 kilometer coordination zones utilize the technical information contained in Appendix S7 of the ITU Radio Regulations to determine if any interference would be caused to grandfathered FSS earth station facilities 268 See Notice and Order, 14 FCC Rcd at 1304- 05 (¶ 12). 269 Id. 270 Id. 271 ITU Appendix S7 contains coordination procedures for ensuring that interference does not occur between terrestrial and satellite operations. 272 See Comsearch comments at 3. 273 See Notice and Order, 14 FCC Rcd at 1304- 05 (¶ 12). 42 Federal Communications Commission FCC 00- 363 43 from the proposed terrestrial service operations. 274 If the terrestrial service licensee believes that no interference will be caused by the proposed operations, then the study and additional information relating to the technical aspects of the fixed or mobile service operations required by Appendix S7 of the ITU Radio Regulations will be sent to the affected grandfathered FSS earth station licensee. We propose to allow the grandfathered FSS earth station licensee 30 days to respond to the fixed or mobile service licensee's proposed operation. The FSS licensee's response should be submitted as quickly as possible and contain specific technical details concerning potential interference. Both licensees would be expected to make every reasonable effort to eliminate all problems or conflicts. In addition, we tentatively conclude that if no response is received within 30 days, the proposed FS operations will be deemed to have made reasonable efforts to coordinate its proposed operations. We seek comment on these proposed coordination procedures. 105. Under our proposal, operations at new FSS sites in the 3650- 3700 MHz band will be secondary, and thus would not be afforded any protection from interference from primary fixed or mobile service operations. Accordingly, we find that the same coordination procedures as those proposed above are not necessary for secondary FSS operations. 106. While an FSS operator who does not hold a license in the band may effectively seek to obtain protection for its earth station facility through a private arrangement reached with the fixed or mobile service licensee in the relevant service area or service areas, such an arrangement would not in any way change coordination requirements. We want to make it clear that secondary FSS operations in the 3650- 3700 MHz band cannot achieve primary status by negotiating with a terrestrial service licensee to allow placement of an FSS earth station within the terrestrial service licensee's service area. Simply stated, any agreement with a primary terrestrial service licensee does not carry any interference protections from the Commission for the secondary FSS earth station. Furthermore, we wish to stress that the primary fixed or mobile service licensee remains ultimately responsible for any interference caused to primary services in adjacent areas. We seek comment on these findings. c. Coordination with Federal Government Operations in the 3650- 3700 MHz Band 107. As noted above in the Report and Order, NTIA requires a coordination distance of 80 kilometers around the three grandfathered Federal Government radiolocation sites to provide adequate identification of spectrum conflicts that may arise between the Federal Government radiolocation service and the non- Federal Government fixed, mobile and FSS operations in the 3650- 3700 MHz band. 275 We note that this requires any non- Federal Government fixed, mobile or FSS station located within 80 kilometers of the three- grandfathered Federal Government radiolocation sites to be coordinated with NTIA's Frequency Assignment Committee (" FAS"). Currently, we are not aware of any grandfathered FSS operations that are located within 80 kilometers of the three- grandfathered Federal Government radiolocation sites. However, the grandfathered Federal Government radiolocation site at St. Inigoes, Maryland is encompassed, either partially or fully within several 200- kilometer coordination contours for grandfathered FSS earth stations from three sites. As a result, potential fixed or mobile service licensees for these areas will need to be aware that any operation will need to be coordinated for the presence of the 274 WRC- 95 changed the ITU RR numbering scheme. Therefore, the ITU RR procedures for determining the coordination distance around an earth station for bands shared between space and terrestrial radiocommunications services, which were previously in Appendix 28 are now in Appendix S7. We will modify Section 25.251 of our rules to reflect this change. See 1998 ITU RR, Appendix S7, Method for the determination of the coordination area around an earth station in frequency bands between 1 GHz and 40 GHz shared between space and terrestrial radiocommunications services. 275 See ¶ 35, supra. 43 Federal Communications Commission FCC 00- 363 44 grandfathered Federal Government radiolocation site and the grandfathered FSS earth stations. 108. The Commission handles the coordination between Government and non- Government entities in shared use bands. When an application for a station license is filed in a geographic area where such coordination is required, the Commission’s licensing system automatically identifies the application as requiring coordination with the Government. The relevant technical and other data are then sent to the NTIA FAS for comment. If no objections are received within a specified time period, the Commission grants the application if it is otherwise acceptable. This approach works well when a service is licensed on a site- by- site basis. However, because we are considering licensing the 3650- 3700 MHz band on wide-area basis, licensees would not normally be required to submit technical data for each individual site. Therefore, we could not go through the usual coordination process in those cases where it is necessary. Accordingly, we are proposing that licensees planning to construct facilities in the 3650- 3700 MHz band within 80 km of the three grandfathered Government radiolocation sites be required to submit data to the Commission to allow coordination of their facilities. For each site requiring prior coordination, the licensee would be required to notify via the ULS any facility within the coordination zone by providing technical data including latitude, longitude, station type, frequency range, antenna height, power, and types of emissions. 276 Licensees would not be permitted to operate such facilities within the coordination zone until they obtain a response from the Commission indicating that there are no objections from the Government. We request comment on this proposal. 109. As requested by NTIA, we have maintained an allocation for Federal Government radiolocation for stations operating at least 44 nautical miles out at sea on a non- interference basis. Because this allocation is on a non- interference basis, we tentatively conclude that coordination procedures are not necessary for these Federal Government radiolocation operations. Rather, we believe it is incumbent upon NTIA to ensure that Federal Government radiolocation operations at sea do not cause any harmful interference to non- Federal Government services in the 3650- 3700 MHz band, regardless of the distance the Federal Government radiolocation station is away from the shore. We seek comment on these conclusions. 2. Adjacent Band Interference Control a. Upper Adjacent Band: 3700- 4200 MHz 110. The 3700- 4200 MHz band is allocated to the FS and FSS on a co- primary basis. Given the need to protect adjacent FSS earth stations reception we sought comment on whether the proposed out of band emission limit of 43 + 10log( p) dB that applies to broadband PCS should be applied to FS operations in the 3650- 3700 MHz band. 277 Commenters were divided on the proposed out of band emissions limit. Specifically, FSS operators requested that a stricter limit of 60 + 10log( p) dB be placed on FS operations in the 3650- 3700 MHz band. 278 In addition, Nortel recommends that we require that at the edge of the 50 megahertz block in any 30 kHz bandwidth, unwanted emission spectral power density be attenuated by at least (i) 10 dB at the band edge; (ii) 25 dB at 200- 400 kHz from the band edge; (iii) 25 dB at 400 kHz to 50 dB at 3.0 MHz offset, linearly interpolated; (iv) 50 dB beyond 3 MHz from the band edge or in any one MHz band which is removed more than 250% of the necessary bandwidth at least 43 + 10 log (Pmean) dB or 80 dB whichever is less stringent, where Pmean is the mean output power of the transmitter in watts. 276 See ¶ 47, supra. 277 See Notice and Order, 14 FCC Rcd at 1303- 04 (¶ 11). 278 See COMSAT comments at 14. 44 Federal Communications Commission FCC 00- 363 45 111. Part 101 of the Commission's rules contains a section relating to emission limits for FS equipment that operate, with higher ERP limits, in the adjacent 3700- 4200 MHz band. 279 We note that the emission limit set forth in Section 101.111 is more flexible than the emission limit proposed by Nortel. As a result, we propose to require that terrestrial service equipment operating in the 3650- 3700 MHz band comply with the emission limits already in place for FS operation in the adjacent 3700- 4200 MHz band. We request comment on this proposal and the proposed alternative emission limits advanced by Nortel and FSS operators and any additional methods that we could utilize to minimize the possibility of fixed or mobile service operations in the 3650- 3700 MHz band causing interference to adjacent band FSS operations in the 3700- 4200 MHz band. 112. The FS operations in the adjacent 3700- 4200 MHz band can be authorized with EIRP values of up to 55 dBW and should, in general, not be as susceptible to interference from the lower powered terrestrial services in the adjacent 3650- 3700 MHz band. However, we request comment on any mitigating factors, such as the potential need for coordination of terrestrial service operations in the 3650- 3700 MHz band with FS operations in the 3700- 4200 MHz band, or rules that should be applied to terrestrial service operation in the 3650- 3700 MHz band to ensure that their operations do not cause interference to adjacent FS operations in the 3700- 4200 MHz band. 113. In the Notice and Order, we sought comment on whether Very Small Aperture Terminals (" VSATs") should be precluded from operating in spectrum immediately adjacent to the new FS allocation by requiring a 3.5 meter diameter minimum antenna size for earth stations licensed to receive the 3700- 3720 MHz segment. 280 In comments, FSS operators opposed such a restriction as premature and unnecessary. 281 Comsearch stated that the FSS earth station receiver IF filtering would be primarily responsible for rejecting adjacent band interference. 282 In addition, PanAmSat stated that as a technical matter it is not the case that larger FSS earth stations can avoid out- of- band emissions any better than small earth stations when the out- of- band emissions are emanating from ubiquitous terminals in an adjacent band. 283 PanAmSat indicated that out- of- band emissions could only be reduced through RF filtering at the output of 3650- 3700 MHz transmitters, at the input of 3700- 4200 MHz receivers, or both. 284 Given these comments we tentatively conclude that the size of the VSAT antenna will not be the determining factor in an earth station's ability to reject interference from adjacent band signals. Instead, we believe, as Comsearch and PanAmSat indicated, that the signal rejection capability of FSS earth stations would be based upon the receivers filtering capabilities. Therefore, we find that there is no need to restrict the usage of VSATs or the size of the antennas used with VSATs in the 3700- 3720 MHz band. We request comment on these tentative conclusions. b. Lower Adjacent Band: 3300- 3650 MHz 114. Any new service in the 3650- 3700 MHz band will have to co- exist with high- powered Federal Government mobile radar systems operating in the lower adjacent 3300- 3650 MHz band. One 279 See 47 C. F. R. § 101.111. 280 See Notice and Order, 14 FCC Rcd at 1303- 04 (¶ 11). 281 See COMSAT comments at 15. See also PanAmSat comments at 8. 282 See Comsearch comments at 6. 283 See PanAmSat comments at 8. 284 Id. 45 Federal Communications Commission FCC 00- 363 46 option for mitigating adjacent band interference issues is the establishment of a guard band. However, given the limited amount of spectrum available in the 3650- 3700 MHz band, we tentatively conclude that this approach is not feasible. We seek comment on this conclusion. 115. In December 1999, NTIA released a report on the technical characteristics of Government systems operating in the lower adjacent band. 285 In that report, NTIA suggested engineering techniques to mitigate potential interference with systems in 3650- 3700 MHz band. Specifically, NTIA recommends that, in order to achieve satisfactory commercial service in the 3650- 3700 MHz band, the Commission “adopt effective transmitter emission and receiver selectivity standards to minimize interference to and from Federal Government systems operating in the adjacent band.” 286 In the Notice and Order, we declined to propose receiver standards 287 based on the position that this matter is best left to market forces. Sprint supported this position and asserted that market forces will guide the development of innovative technology and the design of equipment. 288 We continue to believe that making appropriate technical information about the use of the 3300- 3650 MHz band available to equipment manufacturers is the best method to ensure that they will be able to take into account the electromagnetic environment when designing and building equipment for use in the 3650- 3700 MHz band. We believe that this will encourage the development and deployment of innovative equipment that will be able to coexist with the high- powered in-band and adjacent band Federal Government radar operations. We seek further comment on this conclusion. 116. NTIA also asserts that the most effective technique for precluding electromagnetic interference (" EMI") from adjacent band radar systems to FSS earth stations is the careful selection of the earth station receive site. 289 NTIA indicates that sites should be selected that provide adequate distance separation or site shielding between, for example, an FSS earth station antenna and any high power radar transmitter in the environment. NTIA also indicates that based upon the EMI cases investigated to date, EMI from receiver front- end overload can be precluded by improving the receiver’s RF selectivity with additional filtering. As noted above, we have declined to propose receiver standards for FS equipment that will operate in the 3650- 3700 MHz band. However, we wish to draw the attention of terrestrial service equipment manufacturers and prospective bidders to the technical specifications, for Federal Government radiolocation systems that operate in the 3100- 3700 MHz band, that are contained in the NTIA Radiolocation Report. 290 285 See NTIA Report TR- 99- 361 entitled Technical Characteristics of Radiolocation Systems Operating In The 3.1- 3.7 GHz Band And Procedures For Assessing EMC With Fixed Earth Station Receivers, December 1999 (" NTIA Radiolocation Report"). 286 See Final Report at 4- 20. 287 See Notice and Order, 14 FCC Rcd at 1298- 99, 1303- 04, 1308- 09 (¶¶ 4, 11, 18). 288 See Sprint comments at 5. 289 See NTIA Radiolocation Report at Section 7. 2. 1. 290 See NTIA Radiolocation Report. 46 Federal Communications Commission FCC 00- 363 47 3. RF Safety 291 117. Section 27. 52 of the Commission's rules 292 subjects licensees and manufacturers to the RF radiation exposure requirements specified in Sections 1.1307( b), 2.1091, and 2.1093 of the Commission's rules, which list the services and devices for which an environmental evaluation must be performed. 293 In adopting the rule, the Commission concluded that routine environmental evaluations for RF exposure are required by applicants desiring to use the following types of transmitters: (1) fixed operations, including base stations and radiolocation transmitters, when the effective radiated power (ERP) is greater than 1, 000 watts; (2) all portable devices; and (3) mobile devices, if the ERP of the station, in its normal configuration, will be 1. 5 watts or greater. 294 118. With regard to RF safety requirements, we propose to treat services and devices in the 3650- 3700 MHz band in a comparable manner to other services and devices that have similar operating characteristics. We tentatively conclude that the requirements in Section 27. 52 that the Commission adopted for licensees in the 2. 3 GHz band will apply to the same extent to licensees in the 3650- 3700 MHz band. As the Commission has previously stated, the Commission is providing guidance on acceptable methods of evaluating compliance with the Commission's exposure limits in OET Bulletin No. 65, which has replaced OST Bulletin No. 65. 295 119. The Commission adopted the 1,000 watts ERP threshold for 2.3 GHz to recognize the flexibility with respect to use, power, location, and other factors that was accorded licensees operating in that band, and determined that this power limit was appropriate to ensure compliance with the Commission's RF exposure standards for most situations. 296 Moreover, the Commission found the 1, 000 watts ERP threshold consistent with its existing rules for transmitters and devices of comparable use and similar operating frequencies. For the same reasons, we propose to adopt the 1,000 watts ERP threshold 291 We are planning to initiate a proceeding in the near future to consider measurement methods for determining compliance with our RF safety requirements. Any changes that we may make as a result of this proceeding will be applied to products developed for the 3650- 3700 MHz band. 292 See 47 C. F. R. § 27.52. 293 See 47 C. F. R. §§ 1.1307( b), 2.1091, 2.1093. The RF radiation exposure limits are set forth in 47 C. F. R. §§ 1.1310, 2.1091, and 2.1093, as modified in Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 93- 62, Report and Order, 11 FCC Rcd 15123 (1996); First Memorandum Opinion and Order, 11 FCC Rcd 17512 (1997); Second Memorandum Opinion and Order, 12 FCC Rcd at 13494 (1997) (" RF Guidelines Second Reconsideration Order"). 294 See Part 27 Report and Order, 12 FCC Rcd at 10861 (¶ 154 n. 344), noting that 1,000 watts ERP equates to 1,640 watts EIRP. In the RF Guidelines Second Reconsideration Order, the Commission increased the exclusion threshold for mobile devices operating above 1. 5 GHz from 1. 5 watts to 3 watts ERP. See also RF Guidelines Second Reconsideration Order, 12 FCC Rcd at 13514 (¶ 51). 295 See Part 27 Report and Order, 12 FCC Rcd at 10862 (¶ 154 n. 346). OET Bulletin No. 65 (Edition 97- 01) was issued on August 25, 1997. It is available for downloading at the FCC Web Site: www. fcc. gov/ oet/ rfsafety. Copies of OET Bulletin No. 65 also may be obtained by calling the FCC RF Safety Line at (202) 418- 2464. 296 See Part 27 Report and Order, 12 FCC Rcd at 10862 (¶ 154 n. 345), noting that, in a pending petition for reconsideration of the RF Guidelines Report and Order, the Commission was considering whether to revise the threshold for requiring routine evaluation of mobile devices above 1. 5 GHz from 1. 5 watts to 3 watts. This change was made in the RF Guidelines Second Reconsideration Order. 47 Federal Communications Commission FCC 00- 363 48 for operations in the 3650- 3700 MHz bands. We invite comment on this proposals and any alternatives. C. Competitive Bidding Procedures 1. Incorporation by Reference of the Part 1 Standardized Auction Rules 120. We propose to conduct the auction of initial licenses in the 3650- 3700 MHz band in conformity with the general competitive bidding rules set forth in Part 1, Subpart Q, of the Commission's rules, and substantially consistent with the bidding procedures that have been employed in previous auctions. 297 Specifically, we propose to employ the Part 1 rules governing competitive bidding design, designated entities, application and payment procedures, reporting requirements, collusion issues, and unjust enrichment. 298 Under this proposal, such rules would be subject to any modifications that the Commission may adopt in the Part 1 proceeding. 299 In addition, consistent with current practice, matters such as the appropriate competitive bidding design for the auction of 3650- 3700 MHz band licenses, as well as minimum opening bids and reserve prices, would be determined by the Wireless Telecommunications Bureau (“ Bureau”) pursuant to its delegated authority. 300 We seek comment on whether any of our Part 1 rules or other auction procedures would be inappropriate in an auction of licenses in the 3650- 3700 MHz band. We also seek comment on whether, if the 4.9 GHz band were to be paired with the 3650- 3700 MHz band, any of our Part 1 rules or other auction procedures would be inappropriate in an auction for licenses in these two bands. 2. Provisions for Designated Entities 121. In authorizing the Commission to use competitive bidding, Congress mandated that the Commission “ensure that small businesses, rural telephone companies, and businesses owned by members of minority groups and women are given the opportunity to participate in the provision of spectrum- based services.” 301 In addition, Section 309( j)( 3)( B) of the Act provides that in establishing eligibility criteria and bidding methodologies the Commission shall promote “economic opportunity and competition . . . by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of 297 See 47 C. F. R. Section 1.2101 et. seq. (Part 1, Subpart Q). The Commission has recently clarified and amended its general competitive bidding procedures for all auctionable services. See Amendment of Part 1 of the Commission's Rules -- Competitive Bidding Procedures, WT Docket No. 97- 82, Order on Reconsideration of the Third Report and Order, Fifth Report and Order, and Fourth Further Notice of Proposed Rule Making, FCC 00- 274 (rel. Aug. 14, 2000). 298 Id. 299 Id. at ¶¶ 79- 88. The Commission is also considering certain modifications to its rule prohibiting collusion among auction participants. See Amendment of Part 1 of the Commission's Rules -- Competitive Bidding Procedures, WT Docket No. 97- 82, Third Further Notice of Proposed Rule Making, 14 FCC Rcd 21558 (1999). 300 See Amendment of Part 1 of the Commission's Rules - Competitive Bidding Procedures, Third Report and Order and Second Further Notice of Proposed Rule Making, 13 FCC Rcd 374, 448- 49, 454- 55 (¶¶ 125, 139) (directing the Bureau to seek comment on specific mechanisms relating to auction conduct pursuant to the Balanced Budget Act) (" Part 1 Third Report and Order"). 301 See 47 U. S. C. § 309( j)( 4)( D). 48 Federal Communications Commission FCC 00- 363 49 minority groups and women.” 302 122. In the Competitive Bidding Second Memorandum Opinion and Order, the Commission stated that it would define eligibility requirements for small businesses on a service- specific basis, taking into account the capital requirements and other characteristics of each particular service in establishing the appropriate threshold. 303 The Part 1 Third Report and Order, while it standardizes many auction rules, provides that the Commission will continue a service- by- service approach to defining small businesses. 304 The Notice and Order in this proceeding stated our belief that the 3650- 3700 MHz band may support wireless local loop services and other broadband wireless applications. 305 Consistent with that belief, we are proposing in this Second Notice to permit licensees to use the 3650- 3700 MHz band for a broad range of fixed wireless broadband uses, as well as mobile uses. 306 We note that several commenters agree that these frequencies would be well suited for fixed wireless broadband services. 307 These factors suggest that the capital requirements for these bands may be comparable to those for WCS in the nearby 2. 3 GHz band. 308 WCS licensees in the 2. 3 GHz band are afforded substantial flexibility to offer a broad range of fixed and mobile services and technologies spanning a wide range of uses, including interactive, high- speed broadband data services, fixed terrestrial use, new and innovative services, radiolocation, and wireless local loop. 309 Further, both the proposed 3650- 3700 MHz and existing 2.3 GHz WCS services are subject to limitations on mobile use. 310 For these reasons, we propose to adopt the two small business standards the Commission applied to 2.3 GHz WCS. 311 123. Further, we propose to adopt an additional category of entities with average annual gross revenues for the three preceding years of not more than $3 million. Although we did not utilize this third category for 2.3 GHz WCS, it may be appropriate here because fixed wireless equipment is already being deployed in nearby spectrum bands, which suggests that entry costs may be lower than was the case for WCS when it was licensed in 1997 and that very small businesses may now be better able to take advantage of bidding credits to acquire licenses and participate in the provision of services. Should we 302 See 47 U. S. C. § 309( j)( 3)( B). 303 See Implementation of Section 309( j) of the Communications Act – Competitive Bidding, PP Docket No. 93- 253, Second Memorandum Opinion and Order, 9 FCC Rcd 7245, 7269 (¶ 145) (1994) (" Competitive Bidding Second Memorandum Opinion and Order"). 304 See Part 1 Third Report and Order, 13 FCC Rcd at 388 (¶ 18). 305 See Notice and Order, 14 FCC Rcd at 1295- 96, 1299- 1305 (¶¶ 1, 6- 12). 306 See ¶ 40, supra. 307 See Rural Carriers comments at 3- 5; Western Wireless reply comments at 3. 308 See 47 C. F. R. Part 27, Subparts A- E. 309 See Part 27 Report and Order, 12 FCC Rcd at 10798 (¶ 27). 310 In the 3650- 3700 MHz band, mobile service will be limited to base station operations. See 47 C. F. R. § 2.106 note NG 170. While the Part 27 rules applicable to WCS permit mobile uses in the 2.3 GHz bands, the Commission has previously acknowledged that the out- of- band emissions limitations render mobile WCS operations “technologically infeasible,” at least for the forseeable future. See Part 27 Report and Order, 12 FCC Rcd at 10800 (¶ 3). 311 See Part 27 Report and Order, 12 FCC Rcd at 10879 (¶ 194). 49 Federal Communications Commission FCC 00- 363 50 choose to adopt this additional category, we would adjust the nomenclature for designated entities as follows: we would define an “entrepreneur” as any entity with average annual gross revenues for the three preceding years not exceeding $40 million, a “small business” as any entity with average annual gross revenues for the three preceding years not exceeding $15 million, and a “very small business” as any entity with average annual gross revenues for the three preceding years not exceeding $3 million. We seek comment on the use of these standards. 124. In developing this proposal, we acknowledge the difficulty in accurately predicting the market forces that will exist at the time these frequencies are licensed. Thus, our forecasts of types of services that will be offered over the 3650- 3700 MHz band may require adjustment depending upon ongoing technological developments and changes in market conditions. For these reasons, we invite interested parties to submit detailed information on the types of system architectures that are likely to be deployed in these bands, the availability of equipment, market conditions, and other factors that may affect the capital requirements of this proposed service. 125. In the Part 1 Third Report and Order, we adopted a standard schedule of bidding credits for certain small business definitions, the levels of which were developed based on our auction experience. 312 We see no reason to depart from those levels here. Our standard schedule may be found at Section 1.2110( f)( 2) of the Commission’s rules and provides the following levels of bidding credits: Average Annual Gross Revenues Bidding Credit Not to exceed $3 million 35% Not to exceed $15 million 25% Not to exceed $40 million 15% These credits are not cumulative. We believe that these bidding credits will provide adequate opportunities for small businesses to participate in the 3650- 3700 MHz band auction. 313 We therefore propose to adopt these bidding credits here. 126. We note that in the 4.9 GHz Notice, we proposed to use a similar schedule of bidding credits, except that we did not propose a 35 percent bidding credit for entities having average annual gross revenues of $3 million or less. We request comment on whether our proposed small business definitions and bidding credits, including this additional credit, are appropriate for the 4. 9 GHz band should that band be consolidated with these frequencies. 127. We also seek comment on whether the small business provisions we propose today are sufficient to promote participation by businesses owned by minorities and women, as well as rural telephone companies. To the extent that commenters propose provisions to ensure participation by minority- or women- owned businesses, they should address how such provisions should be crafted to meet the relevant constitutional standards. 314 312 See Part 1 Third Report and Order, 13 FCC Rcd at 403- 04 (¶ 47). 313 Id. 314 See Adarand Constructors, Inc. v. Peña, 515 U. S. 200 (1995); United States v. Virginia, 518 U. S. 515 (1996). 50 Federal Communications Commission FCC 00- 363 51 D. Additional Satellite Issues 1. International Intercontinental Restriction on Fixed Satellite Service 128. In General Docket 80- 739, the Commission added an allocation in the 3600- 3700 MHz band for the FSS (space- to- Earth), but adopted footnote US 245 to restrict use of this FSS allocation "to international inter- continental systems subject to a case- by- case electromagnetic compatibility analysis. 315 The Commission indicated that this restricted allocation was aimed narrowly at meeting future INTELSAT projected requirements. 316 We did not specifically propose to remove this footnote restriction from the 3650- 3700 MHz band in the Notice and Order. We believe that deletion of this footnote restriction should be considered for the 3650- 3700 MHz band in order to provide for flexible and efficient use of FSS earth station sites. As INTELSAT privatizes, and as commercial providers offer similar services, we do not consider it appropriate to continue what amounts to a spectrum reservation for only one of several competitors. We seek comment on whether deletion or modification of this footnote is desirable. 2. Telemetry, Tracking & Control (TT& C) 129. As noted earlier, we are requesting comment on whether Part 25 of the Commission's rules should be modified to permit TT& C operations in the extended C- bands (3650- 3700 MHz and 5850- 5925 MHz) for FSS systems that operate outside of the C- band frequencies. Section 25.202( g) of the Commission's rules provides: "Telemetry, tracking and telecommand functions for U. S. domestic satellites shall be conducted at either or both edges of the allocated band( s)." 317 This rule, particularly the portion requiring that TT& C functions be conducted in the "allocated band( s)," has been followed in the standard C- and Ku- bands, and effectively limits FSS operators to operating TT& C links in the same frequency bands as their FSS operations. Thus a GSO/ FSS operator will generally coordinate its TT& C operations with the same set of satellites, at adjacent orbital locations, with which it coordinates its FSS operations. In this respect, the rule serves the purpose of simplifying the coordination process for FSS systems, by limiting the number of potentially affected operators. It also provides an incentive for an operator to maximize the efficiency of a system's TT& C operations, and minimize the constraints placed on other satellite operations, since the greatest effect of any inefficiency in TT& C operations is likely to impact services offered by the operator’s own satellite. 130. We continue to believe that the basic purpose of Section 25.202( g) is valid. There may be instances, however, in which geographic or bandwidth limitations on an allocation render TT& C operations impracticable in the allocation in which the space station is operating, e. g., transfer orbit operations for a system operating in an ITU Region 2 only allocation. We therefore propose to amend Section 25.202( g) to permit authorization of TT& C operations in the 3650- 3700 MHz band for FSS systems that operate outside of the 3650- 3700 MHz band, upon a particularized showing of need. TT& C would be primary if conducted at grandfathered FSS sites and secondary at new sites. We note that this may provide greater flexibility for FSS licensees that may have operational requirements that cannot otherwise be met. We specifically seek comment on the circumstances when such TT& C operations should be authorized. 315 See Notice and Order, 14 FCC Rcd at1297- 98 (¶ 3). See also Amendment of Part 2 of the Commission's Rules Regarding Implementation of the Final Acts of the World Administrative Radio Conference, Geneva 1979, in General Docket No. 80- 739, Second Report and Order, 49 Federal Register 2357 (Jan. 19, 1984). 316 See Notice and Order, 14 FCC Rcd at 1297- 98 (¶ 3). 317 See 47 C. F. R. § 25.202( g). 51 Federal Communications Commission FCC 00- 363 52 131. We specifically seek comment on the types of showings that would warrant such an authorization. A number of commenters on the TT& C petition identified satellite systems operating at Ka-band frequencies and above as particularly in need of C- band TT& C frequencies, because of the more favorable signal propagation characteristics of C- band, and consequent higher reliability. We seek comment on this issue. Can higher reliability be assured at Ka- band and above through the use of earth station diversity, or other technical methods? Are there particular TT& C operations, such as recovery using an omni- directional spacecraft antenna of a spacecraft of which control has been lost, for which a C-band antenna provides the only sufficiently reliable option? Are there costs associated with providing TT& C through "allocated band( s)" that would potentially offset the increased complexity of coordination, potential interference with adjacent satellite operators, and potential incentives to specify less efficient TT& C operations? Are TT& C costs likely to decrease as more Ka- band and above systems become operational, more Ka- band and above equipment is deployed, and more operational experience is gained with Ka- band and above antennas? 132. We are not proposing any changes to the Table of Allocations to permit TT& C use of the 3650- 3700 MHz band by satellite systems having an FSS component. Such uses are permitted under Part 2 of the rules. 318 We propose to modify the Table of Allocations in Section 2.106 of the Commission’s rules to include an allocation for space operations in the 3650- 3700 MHz band, and the companion 6425- 6525 MHz bands, to be used for TT& C by satellite systems that do not have an FSS component, and thus might otherwise be precluded by our rules from use of this band. 3. Space Station Power Flux Density 133. There are currently no limits in the Commission’s rules on the power flux density that a space station operating in the 3650- 3700 MHz band may produce, unlike in the adjacent 3700- 4200 MHz band. The limit for the 3700- 4200 MHz band contained in the Commission’s rules, 319 however, is identical to the limit in the ITU Radio Regulations. 320 The ITU limit applies throughout the 3400- 4200 MHz band. We seek comment on whether this limit should be adopted for the 3650- 3700 MHz band. V. PROCEDURAL MATTERS A. Challenge to Earth Station Application Freeze 134. Some of the commenters allege that our decision to suspend the acceptance of license applications, major amendments, and major modifications is procedurally defective. 321 PanAmSat and Wold claim that the suspension of the acceptance of such applications deprives FSS operators of the three basic elements that fundamental fairness requires in administrative proceedings: notice, and opportunity to comment, and reasonable consideration of the viewpoints expressed. 322 We note that in several proceedings 318 TT& C is a space operations service. See 47 C. F. R. § 2. 1 (definition of space operations service). Space operations functions “will normally be provided within the service in which the space station is operating.” Id., note. Thus, a space station that otherwise operates in an FSS allocation may also provide TT& C in an FSS allocation. 319 See 47 C. F. R. § 25.208( a). 320 See ITU Radio Regulation S21. 16. 321 See e. g., PanAmSat comments at 4; Globecast comments at 2; Wold reply comments at 4- 5. 322 See PanAmSat comments at 4; Wold reply comments at 4- 5. 52 Federal Communications Commission FCC 00- 363 53 the Commission has suspended the acceptance of license applications while it transitions from one set of regulations to new regulations. 323 The purpose of these suspensions has been to ensure that the goals of the rulemaking proceeding were not compromised and to deter speculative applications. 324 As stated before in other Commission items and as mentioned in the Notice and Order, the suspension of acceptance of applications is procedural and not substantive. 325 Therefore, it does not require notice and comment under the Administrative Procedure Act (“ APA”). 326 Wold’s contention that earth station operators are to be foreclosed from competing for licenses is incorrect. Indeed, today's Report and Order allows current users to continue to use the spectrum they currently have plus it provides them with a limited opportunity to expand their operations. Globecast asserts that the freeze is a significant policy change and requires "sunshine." The reference to “sunshine” is not clear. Section 1.1203 of our rules prohibit “presentations to decision- makers concerning matters listed on a Sunshine Agenda, whether ex parte or not.” 327 We followed section 1.1203 when we adopted the Notice and Order and followed those procedures for adopting this Report and Order. Therefore, Globecast’s concerns are unwarranted. B. Final Regulatory Flexibility Analysis 135. As required by the Regulatory Flexibility Act of 1980 (" RFA"), 328 the Final Regulatory Flexibility Analysis for this First Report and Order is contained in Appendix B. C. Initial Regulatory Flexibility Analysis 136. The Commission has prepared an Initial Regulatory Flexibility Analysis (" IRFA") of the possible significant economic impact on small entities of the policies and rules proposed in the Second Notice of Proposed Rule Making and is contained in Appendix C. We request written public comment on the analysis. In order to fulfill the mandate of the Contract with America Advancement Act of 1996 regarding the Final Regulatory Flexibility Analysis, we ask a number of questions in our IRFA regarding the prevalence of small businesses in the affected industries. 137. Comments must be filed in accordance with the same filing deadlines as comments filed in response to the Second Notice of Proposed Rule Making, but they must have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer Information Bureau, 323 See, e. g., Amendment of the Commission’s Rules Concerning Maritime Communications, PR Docket No. 92- 257, Second Report and Order and Second Further Notice of Proposed Rulemaking, 12 FCC Rcd 16949, 17015 (¶ 132) (1997); Revision of Part 22 and Part 90 of the Commission’s Rules to Facilitate Future Development of Paging Systems, Notice of Proposed Rule Making, WT Docket No. 96- 18, 11 FCC Rcd 3108, 3136 (¶ 139) (1996); Licensing of General Category Frequencies in the 806- 809.750/ 851- 854.750 MHz Bands, Order, 10 FCC Rcd at 13190 (¶ 3) (1995). 324 See, e. g., Implementation of Section 309( j) and 337 of the Communications Act of 1934 as Amended, WT Docket 99- 87, Notice of Proposed Rule Making, 14 FCC Rcd 5206, 5249 (¶ 96) (1999)(" Implementation of 309( j) Order"); Revision of Part 22 and Part 90 of the Commission’s Rules to Facilitate Future Development of Paging Systems, WT Docket 96- 18, First Report and Order, 11 FCC Rcd 16570, 16581 (¶ 19) (1996) (" Paging Order"). 325 See Notice and Order, 14 FCC Rcd at 1305- 06 (¶ 13). 326 See Paging Order, 11 FCC Rcd at 16580- 81 (¶ 18). 327 See 47 C. F. R. § 1.1203( a). 328 See 5 U. S. C. § 603 et seq. 53 Federal Communications Commission FCC 00- 363 54 Reference Information Center, will send a copy of this Report and Order and Second Notice of Proposed Rule Making, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. D. Paperwork Reduction Analysis 138. This First Report and Order and Second Notice of Proposed Rule Making contains either a proposed or modified information collection. As part of our continuing effort to reduce paperwork burdens, we invite the general public and the Office of Management and Budget (“ OMB”) to take this opportunity to comment on the information collections contained in this Report and Order and Second Notice of Proposed Rule Making, as required by the Paperwork Reduction Act of 1995. 329 Public and agency comments are due 60 days from the date of publication of this Second Notice in the Federal Register; OMB comments are due 120 days from the date of publication of this Second Notice in the Federal Register. Comments should address: x Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility. x The accuracy of the Commission's burden estimates. x Ways to enhance the quality, utility, and clarity of the information collected. x Ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. 139. Written comments by the public on the proposed and/ or modified information collections are due 60 days after the date of publication in the Federal Register. Written comments must be submitted by the OMB on the proposed and/ or modified information collections on or before 120 days after the date of publication in the Federal Register. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1- C804, 445 Twelfth Street, S. W., Washington, D. C. 20554, or via the Internet to jboley@ fcc. gov, and to Ed Springer, OMB Desk Officer, Room 10236 New Executive Office Building, 725 Seventeenth Street, N. W., Washington, D. C. 20503, or via the Internet to Edward. Springer@ omb. eop. gov. E. Ex Parte Presentations 140. For purposes of this permit- but- disclose notice and comment rulemaking proceeding, members of the public are advised that ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed under the Commission's rules. 330 F. Pleading Dates 141. Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's rules, 331 interested parties may file comments on or before [30 days from publication in the 329 See Pub. L. No. 104- 13. 330 See generally 47 C. F. R. §§ 1.1202, 1.1203, 1.1206( a). 331 See 47 C. F. R. §§ 1.415, 1.419. 54 Federal Communications Commission FCC 00- 363 55 Federal Register] and reply comments on or before [60 days from publication in the Federal Register] Comments and reply comments should be filed in ET Docket No. 98- 237. All relevant and timely comments will be considered by the Commission before final action is taken in this proceeding. To file formally in this proceeding, interested parties must file an original and four copies of all comments, reply comments, and supporting comments. If interested parties want each Commissioner to receive a personal copy of their comments, they must file an original plus nine copies. Interested parties should send comments and reply comments to the Office of the Secretary, Federal Communications Commission, Room TW- A325, 445 Twelfth Street, S. W., Washington, D. C. 20554, with a copy to Eli Johnson, Policy Division, Wireless Telecommunications Bureau, 445 Twelfth Street, S. W., Washington, D. C. 20554. 142. Comments may also be filed using the Commission's Electronic Comment Filing System (ECFS). 332 Comments filed through the ECFS can be sent as an electronic file via the Internet to . Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e- mail. To obtain filing instructions for e- mail comments, commenters should send an e- mail to ecfs@ fcc. gov, and should include the following words in the body of the message, “get form .” A sample form and directions will be sent in reply. 143. Comments and reply comments will be available for public inspection during regular business hours at the FCC Reference Information Center, Room CY- A257, at the Federal Communications Commission, 445 Twelfth Street, S. W., Washington, D. C. 20554. Copies of comments and reply comments are available through the Commission's duplicating contractor: International Transcription Service, Inc. (ITS, Inc.), 1231 20th Street, N. W., Washington, D. C. 20037, (202) 857- 3800. G. Further Information 144. For further information concerning the First Report and Order, contact Rodney Conway via phone at (202) 418- 2904, via e- mail at rconway@ fcc. gov, via TTY (202) 418- 2989, Office of Engineering and Technology, Federal Communications Commission, Washington D. C. 20554. For further information concerning the Second Notice of Proposed Rule Making, contact Eli Johnson via phone at (202) 418- 1310, via e- mail at ejohnson@ fcc. gov, via TTY at (202) 418- 7233, Wireless Telecommunications Bureau, Federal Communications Commission, Washington, D. C. 20554. VI. ORDERING CLAUSES 145. IT IS ORDERED, that Parts 2 and 90 of the Commission's rules and regulations are amended as specified in Appendix D [effective ninety days after publication in the Federal Register]. This action is taken pursuant to Sections 4, 4( i), 157, 303, 303( g), 303( r), 307, and 332( c)( 7) of the Communications Act of 1934, as amended, 47 U. S. C. 154, 154( i), 157, 303, 303( g), 303( r), 307, and 332( c)( 7). 146. IT IS FURTHER ORDERED that the Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this FIRST REPORT AND ORDER including the Final Regulatory Flexibility Analysis and SECOND NOTICE OF PROPOSED RULE MAKING, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with paragraph 603( a) of the Regulatory Flexibility Act, Pub Law No. 96- 354, 94 Stat. 1164, 5 U. S. C. § 601, et seq. (1981). 332 See Electronic Filing of Documents in Rulemaking Proceedings, 63 Fed. Reg. 24, 121 (1998). 55 Federal Communications Commission FCC 00- 363 56 147. IT IS FURTHER ORDERED that the petition for rule making filed by Comm, Inc., EchoStar Satellite Corporation, GE American Communications, Inc., Hughes Communications Galaxy, Inc., KaStar Satellite Communications Corp., Lockheed Martin Corporation, Orion Network Systems, Inc., PanAmSat Licensee Corp., and VisionStar, Inc., entitled "Amendment of Parts 2 and 25 of the Commission's rules to Designate Extended C- Band Spectrum for TT& C Functions of GSO FSS Systems Operating in Bands Above Ku- band" in RM- 9411 IS HEREBY DENIED, in part, with respect to the request for the designation of 10 MHz of spectrum in the 3650- 3700 MHz band to be used exclusively for TT& C operations and IS DISMISSED WITHOUT PREJUDICE, in part, concerning the request to allow FSS licensees with systems that operate outside the 3650- 3700 MHz band to use the band for TT& C operations. 148. IT IS FURTHER ORDERED that the petition for rule making by Mountain Telecommunications Inc., and Saddleback Communications Company entitled "Petition for Allocation of Radio Spectrum in the 3. 4- 3. 7 GHz Band to Allow Carriers to Improve Deployment and Reduce Costs Through the Provision of Fixed Wireless Access" IS HEREBY DENIED. 149. IT IS FURTHER ORDERED that NOTICE IS HEREBY GIVEN to any FSS earth station licensee with operations in the 3650- 3700 MHz band that may have been omitted from Appendix A of the Memorandum Opinion and Order in this proceeding must contact Sylvia Lam, via phone at (202) 418- 0742, or via e- mail slam@ fcc. gov, International Bureau, in order to ensure that the licensed earth station receives grandfathering protections. 150. IT IS FURTHER ORDERED that, pursuant to Sections 4, 4( i), 157, 303, 303( g), 303( r), 307 and 332( c)( 7) of the Communications Act of 1934, as amended, 47 U. S. C. 154, 154( i), 157, 303, 303( g), 303( r), 307, and 332( c)( 7) the SECOND NOTICE OF PROPOSED RULE MAKING, is hereby ADOPTED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary 56 Federal Communications Commission FCC 00- 363 57 APPENDIX A: RESPONDENTS LIST OF COMMENTERS 1. Airspan Communications Corporation (" Airspan") 2. Blooston, Mordkofsky, Jackson & Dickens on behalf of: CommNet Cellular, Inc., Kerville Telephone Company, Lincoln County Telephone System, Inc., Minnesota Southern Cellular Telephone Company, Penasco Valley Telephone Cooperative Inc., Ringgold Telephone Company, Sully Buttes Telephone Cooperative Inc., 3 Rivers Telephone Cooperative Inc. (" Rural Carriers") 3. Cheyenne River Sioux Telephone Authority (" CRST") 4. COMSAT Corporation (" COMSAT") 5. Comsearch 6. EchoStar Communications Corporation (" EchoStar") 7. GE American Communications, Inc. (GE Americom") 8. GlobeCast North America Incorporated (" GlobeCast") 9. Hughes Communications, Inc. (" HCI") 10. InnoWave Tadiran Telecommunications Wireless Systems Ltd. (" InnoWave") 11. Loral Space & Communications Ltd. (" Loral") 12. Lucent Technologies (" Lucent") 13. Motorola 14. National Telephone Cooperative Association (" NTCA") 15. PanAmSat Corporation (" PanAmSat") 16. Petroleum Communications, Inc. (" PetroCom") 17. The Rural Telecommunications Group (" RTG") 18. Satellite Industry Association (" SIA") 19. SBC Communications Inc. (" SBC") 20. Sprint Corporation (" Sprint") 21. Telephone and Data Systems, Inc. (" TDS") on behalf of its subsidiaries: Aerial Communications, Inc., TDS Telecommunications Corporation, and United States Cellular Corporation 22. SR Telecom Inc. (" SR Telecom") 23. TRANSCOMM, Inc. (" TRANSCOMM") 24. TRW, Inc (" TRW") 25. Lockheed Martin Corporation (" Lockheed Martin") 26. Northern Telecom Inc. (Nortel Networks") 27. New Skies Satellites N. V. (" New Skies") LIST OF REPLY COMMENTERS 1. AT& T Corp. (" AT& T") 2. COMSAT Corporation (" COMSAT") 3. Comsearch 4. GTE Service Corporation (" GTE") on behalf of its affiliates: GTE Alaska, Incorporated, GTE Arkansas Incorporated, GTE California Incorporated, GTE Florida Incorporates, GTE Hawaiian Telephone Company Incorporated, The Micronesian Telecommunications Corporation, GTE Midwest Incorporated, GTE North Incorporated, GTE Northwest Incorporated, GTE South Incorporated, GTE Southwest Incorporated, Contel of Minnesota, Inc., GTE West Coast Incorporated, Contel of the South, Inc., GTE Communications Corporation and GTE Wireless Incorporated. 5. Hughes Communications, Inc. (" HCI") 6. ICG Satellite Services, Inc. (" ICG") 7. Lockheed Martin Corporation (" Lockheed Martin") 8. PanAmSat Corporation (" PanAmSat") 57 Federal Communications Commission FCC 00- 363 58 9. Blooston, Mordkofsky, Jackson & Dickens on behalf of: CommNet Cellular, Inc., Kerville Telephone Company, Lincoln County Telephone System, Inc., Minnesota Southern Cellular Telephone Company, Penasco Valley Telephone Cooperative Inc., Ringgold Telephone Company, Sully Buttes Telephone Cooperative Inc., 3 Rivers Telephone Cooperative Inc. (" Rural Carriers") 10. Sprint Corporation (" Sprint") 11. Telephone and Data Systems, Inc. (" TDS") on behalf of its subsidiaries: Aerial Communications, Inc., TDS Telecommunications Corporation, and United States Cellular Corporation 12. Western Wireless Corporation (" Western Wireless") 13. Wold International, Inc. (" Wold") 14. New Skies Satellites N. V. (" New Skies") 15. MCI WorldCom, Inc. (" MCI WorldCom") 16. Organization For The Promotion And Advancement Of Small Telecommunications Companies (" OPASTCO") 17. GE American Communications, Inc. (GE Americom") 18. ImpSat USA 58 Federal Communications Commission FCC 00- 363 59 APPENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS FOR REPORT AND ORDER As required by the Regulatory Flexibility Act (RFA), 333 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Notice of Proposed Rule Making and Order (" Notice and Order") in ET Docket 98- 237. 334 The Commission sought written public comments on the proposals in the Notice and Order, including the IRFA. The Final Regulatory Flexibility Analysis (" FRFA") in this First Report and Order and Second Notice of Proposed Rule Making conforms to the RFA. 335 A. Need for and Objective of this Report and Order. These rules allocate the 3650- 3700 MHz band to the fixed, mobile (base stations only), and grandfathered fixed satellite services on a co- primary basis and for non- grandfathered fixed satellite service earth station operations on a secondary basis. These actions are taken in order to make this transfer spectrum available for commercial services, including those of any small businesses. The adoption of this First Report and Order and Second Notice of Proposed Rule Making will provide additional spectrum to be used in meeting the growing demand for fixed, mobile (base station only) and fixed satellite services among all sizes of providers. B. Legal Basis for Adopted Rules. The adopted rule changes are authorized pursuant to Sections 4, 4( i), 157, 303, 303( g), 303( r), 307, and 332( c)( 7) of the Communications Act of 1934, as amended, 47 U. S. C. 154, 154( i), 157, 303, 303( g), 303( r), 307, and 332( c)( 7). C. Summary of Significant Issues raised by Public Comments in Response to the IRFA. No comments were filed in response to the IRFA that was contained in the Notice and Order in this proceeding. D. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply. For purposes of this First Report and Order, the RFA defines a "small business" to be the same as a "small business concern" under the Small Business Act, 15 U. S. C. § 632, unless the Commission has developed one or more definitions that are appropriate to its activities. 336 Under the Small Business Act, a "small business concern" is one that: 1) is independently owned and operated; 2) is not dominant in its field of operation; and 3) meets any additional criteria established by the Small Business Administration (" SBA"). 337 333 See 5 U. S. C. § 603. The RFA, see 5 U. S. C. § 601 et. seq., has been amended by the Contract With America Advancement Act of 1996, Pub. L No. 104- 121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). 334 See 14 FCC Rcd 1295 (1999). 335 See 5 U. S. C. § 604. 336 See 5 U. S. C. § 601( 3) (incorporating by reference the definition of "small business concern" in 5 U. S. C. § 632). 337 See 15 U. S. C. § 632. 59 Federal Communications Commission FCC 00- 363 60 A small organization is generally “any not- for- profit enterprise which is independently owned and operated and is not dominant in its field.” 338 Nationwide, as of 1992, there were approximately 275,801 small organizations. 339 The definition of “small governmental jurisdiction” is one with populations of fewer than 50,000. 340 There are 85,006 governmental jurisdictions in the nation. 341 This number includes such entities as states, counties, cities, utility districts and school districts. There are no figures available on what portion of this number has populations of fewer than 50,000. However, this number includes 38,978 counties, cities and towns, and of those, 37,556, or 96 percent, have populations of fewer than 50,000. 342 The Census Bureau estimates that this ratio is approximately accurate for all government entities. Thus, of the 85,006 governmental entities, we estimate that 96 percent, or about 81, 600, are small entities that may be affected by our rules. Nationwide, there are 4. 44 million small business firms, according to SBA reporting data. 343 The Commission has not developed a definition of small entities applicable to fixed satellite service licensees. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to Communications Services, Not Elsewhere Classified. This definition provides that a small entity is one with no more than 11. 0 million in annual receipts. 344 According to Census Bureau data, there are 848 firms that fall under the category of Communications Services, Not Elsewhere Classified. Of those, approximately 775 reported annual receipts of 11 million or less and qualify as small entities. 345 As described, the designations we hereby adopt will permit wireless services, as broadly defined to include fixed and mobile base station operations. Neither the Commission nor the SBA has developed a definition of small entities applicable to wireless services licensees. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to radiotelephone (wireless) companies. The rules adopted by the First Report and Order will affect applicants who wish to provide fixed, mobile (base stations only) and/ or fixed satellite services in the 3650- 3700 MHz band. Pursuant to 47 C. F. R. § 24.702( b) the Commission has defined "small entity" for Blocks C and F broadband licensees as firms that had average gross revenues of less than $40 million dollars in the three previous calendar years. This Commission regulation defining "small entity" in the context of broadband PCS auctions has been approved 338 Id. § 601( 4). 339 Department of Commerce, U. S. Bureau of the Census, 1992 Economic Census, Table 6 (special tabulation of data under contract to Office of Advocacy of the U. S. Small Business Administration). 340 5 U. S. C. § 601( 5). 341 1992 Census of Governments, U. S. Bureau of the Census, U. S. Department of Commerce. 342 Id. 343 See 1992 Economic Census, U. S. Bureau of the Census, Table 6 (special tabulation of data under contract to the Office of Advocacy of the U. S. Small Business Administration). 344 See 13 C. F. R. § 121.201, Standard Industrial Classification (SIC) Code 4899. 345 See U. S. Bureau of the Census, U. S. Department of Commerce, 1992 Census of Transportation, Communications, and Utilities, UC92- S- 1, Subject Series, Establishment and Firm Size, Table 2D, Employment Size of Firms, 1992, SIC Code 4899 (issued May 1995). 60 Federal Communications Commission FCC 00- 363 61 by the SBA. 346 With respect to the 3650- 3700 MHz license applicants, we propose to use the small entity definition adopted in the Broadband PCS proceeding. The Commission has not yet determined or proposed how many licenses will be awarded, nor will it know how many licensees will be small businesses until the auction is held. Even after that, the Commission will not know how many licensees will partition their license areas or disaggregate their spectrum blocks, if partitioning and disaggregation are allowed which may result in additional small entities. In view of our lack of knowledge of the entities which will seek licenses in the 3650- 3700 MHz band, we will assume that, for the purposes of our evaluations and conclusions in the FRFA, all of the prospective licensees are small entities, as that term is defined by the SBA or our proposed definitions for the 3650- 3700 MHz band. We invite comment on this analysis. E. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements. The rules adopted in the First Report and Order allocate the 3650- 3700 MHz band to the fixed, mobile (base station operation, and grandfathered fixed satellite services on a co- primary basis and for non-grandfathered fixed satellite service earth station operations on a secondary basis. These adopted rules do not require any additional reporting, recordkeeping or other compliance requirements. Rules that may apply to the auctioning and licensing of these operations or other operating requirements will be addressed in the Second Notice of Proposed Rule Making in this proceeding and any reporting, recordkeeping and other compliance requirements will be addressed then. F. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered. No petition for rule making was filed to initiate this proceeding and there are no comments in this proceeding that suggest alternatives to the adopted allocation. We requested comment on alternatives that might minimize the amount of economic impact on small entities and no alternatives were offered. The allocation adopted in this First Report and Order represents the most efficient and least restrictive method to accomplish the Commission's policies and objectives. G. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules. None. H. Report to Congress. The Commission will send a copy of the First Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, see 5 U. S. C. § 801( a)( 1)( A). In addition, the Commission will send a copy of the First Report and Order, including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the First Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register. See 5 U. S. C. § 604( b). 346 See Implementation of Section 309( j) of the Communications Act, Competitive Bidding, PP Docket 93- 253, Fifth Report and Order, 9 FCC Rcd 5532, 5581- 82 (¶ 115)( 1994). 61 Federal Communications Commission FCC 00- 363 62 APPENDIX C: INITIAL REGULATORY FLEXIBILITY ANALYSIS FOR SECOND NOTICE OF PROPOSED RULE MAKING As required by the Regulatory Flexibility Act (" RFA"), 347 the Commission has prepared this present Initial Regulatory Flexibility Analysis (" IRFA") of the possible significant economic impact on small entities by the policies and rules proposed in the Second Notice of Proposed Rulemaking (" Second Notice"), ET Docket No. 98- 237, and WT Docket No. 00- 32. 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 on the Second Notice as provided above in paragraph 141. The Commission will send a copy of the Second Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 348 In addition, the Second Notice and IRFA (or summaries thereof) will be published in the Federal Register. 349 A. Need for, and Objectives of, the Proposed Rules In this Second Notice, we propose licensing, service, operating, and competitive bidding rules for fixed and mobile services licenses in the 3650- 3700 MHz band. The Second Notice also seeks comment on applying similar rules to the 4.9 GHz band, if the Commission determines that the public interest would be served by licensing these two bands at the same time. These actions are intended to facilitate the provision of a broad range of services, including traditional voice telephony and new broadband, high- speed, data and video services. The Commission believes this spectrum may be used to foster the introduction of such services to rural areas of the United States and develop new and more effective competition to existing wireline local exchange carriers by providing for an economical means to offer competitive “local loop” or ‘last- mile” facilities. B. Legal Basis for Proposed Rules The proposed action is authorized under Sections 4, 4( i), 157, 303, 303( g), 303( r), 307, and 332( c)( 7) of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154, 154( i), 157, 303, 303( g), 303( r), 307, and 332( c)( 7). C. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply 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. 350 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under Section 3 of the Small Business Act, unless the Commission has developed one or 347 See 5 U. S. C. § 603. The RFA, see 5 U. S. C. §§ 601 et. seq., has been amended by the Contract with America Advancement Act of 1996, Pub. L. No. 104- 121, 110 Stat. 847 (1996) (CWAA). Title II of the CWAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). 348 5 U. S. C. § 603( a). 349 See id. 350 5 U. S. C. § 603( b)( 3). 62 Federal Communications Commission FCC 00- 363 63 more definitions that are appropriate for its activities. 351 Under the Small Business Act, a “small business concern” is one that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 352 A small organization is generally “any not- for- profit enterprise which is independently owned and operated and is not dominant in its field.” 353 Nationwide, as of 1992, there were approximately 275,801 small organizations. 354 The definition of “small governmental jurisdiction” is one with populations of fewer than 50,000. 355 There are 85,006 governmental jurisdictions in the nation. 356 This number includes such entities as states, counties, cities, utility districts and school districts. There are no figures available on what portion of this number has populations of fewer than 50,000. However, this number includes 38,978 counties, cities and towns, and of those, 37,556, or 96 percent, have populations of fewer than 50,000. 357 The Census Bureau estimates that this ratio is approximately accurate for all government entities. Thus, of the 85,006 governmental entities, we estimate that 96 percent, or about 81, 600, are small entities that may be affected by our rules. Nationwide, there are 4. 44 million small business firms, according to SBA reporting data. 358 The Commission has not developed a definition of small entities applicable to fixed satellite service licensees. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to Communications Services, Not Elsewhere Classified. This definition provides that a small entity is one with no more than $11.0 million in annual receipts. 359 According to Census Bureau data, there are 848 firms that fall under the category of Communications Services, Not Elsewhere Classified. Of those, approximately 775 reported annual receipts of $11 million or less and qualify as small entities. 360 Because we are substituting the 3650- 3700 MHz band for 15 megahertz of spectrum in the 1990- 2110 MHz band, we must assign licenses for this spectrum by competitive bidding to satisfy the requirements of the Balanced Budget Act of 1997. 361 The Commission has not yet determined how many licenses will be 351 Id. § 601( 3). 352 Id. § 632. 353 Id. § 601( 4). 354 Department of Commerce, U. S. Bureau of the Census, 1992 Economic Census, Table 6 (special tabulation of data under contract to Office of Advocacy of the U. S. Small Business Administration). 355 5 U. S. C. § 601( 5). 356 1992 Census of Governments, U. S. Bureau of the Census, U. S. Department of Commerce. 357 Id. 358 See 1992 Economic Census, U. S. Bureau of the Census, Table 6 (special tabulation of data under contract to the Office of Advocacy of the U. S. Small Business Administration). 359 See 13 C. F. R. § 121.201, Standard Industrial Classification (SIC) Code 4899. 360 See U. S. Bureau of the Census, U. S. Department of Commerce, 1992 Census of Transportation, Communications, and Utilities, UC92- S- 1, Subject Series, Establishment and Firm Size, Table 2D, Employment Size of Firms, 1992, SIC Code 4899 (issued May 1995). 361 See The Balanced Budget Act of 1997, Section 3002( c)( 4), Pub. L. 105- 33, 111 Stat. 251- 258 (1997) (" BBA"). See also NTIA Special Publication 98- 39. 63 Federal Communications Commission FCC 00- 363 64 awarded. Moreover, the Commission does not know how many licensees will partition their license areas or disaggregate their spectrum blocks, if partitioning and disaggregation are allowed. We therefore assume that, for purposes of our evaluations and conclusions in the IRFA, all prospective licensees are small entities, as that term is defined by the SBA or our proposed small business definitions for terrestrial fixed and mobile services in the 3650- 3700 MHz band, which are discussed below in Section E. We invite comment on this analysis. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements Applicants for licenses to provide terrestrial fixed and mobile services in the 3650- 3700 MHz band will be required to submit short- form applications using FCC Form 175. In addition, winning bidders must submit long- form license applications through the Universal Licensing System using FCC Form 601, and other appropriate forms. We invite comment on how these filing requirements can be modified to reduce the burden on small entities. As discussed in paragraph 45 of the Second Notice, all services, other than fixed satellite service earth stations, in the 3650- 3700 MHz band would be governed by Part 27 of the Commission’s Rules, and, in certain instances, as discussed in paragraph 46, Part 20 if the proposals are adopted. The proposals under consideration in this item include requiring commercial licensees to make showings that they are in compliance with construction requirements, 362 file applications for license renewals 363 and make certain other filings as required by the Communications Act. 364 We request comment on how these requirements can be modified to reduce the burden on small entities and still meet the objectives of the proceeding. E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered The RFA requires an agency to describe any significant alternatives that is has considered in reaching its proposed approach, which may include the following four alternatives: (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 or reporting requirements under the rule for 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 small entities. 365 The Second Notice proposes the following small business definitions for bidders in auctions of licenses in the 3650- 3700 MHz band: an “entrepreneur” would be defined as an entity with average annual gross revenues for the three preceding years not exceeding $40 million, a “small business” would be defined as an entity with average annual gross revenues for the three preceding years not exceeding $15 million, and a “very small business” would be defined as an entity with average annual gross revenues for the three preceding years not exceeding $3 million. These definitions are consistent with the definitions the Commission applied to the 2. 3 GHz WCS, but include an additional third category of entities with average annual gross revenues for the three preceding years not exceeding $3 million. In developing these 362 See ¶¶ 82- 88 , supra. 363 See ¶¶ 72- 74, supra. 364 See ¶¶ 87- 88, supra. 365 See 5 U. S. C. § 603( c). 64 Federal Communications Commission FCC 00- 363 65 definitions, we considered the alternative of using only two small business definitions, as we have done in the 2. 3 GHz WCS, 39 GHz, and broadband PCS contexts, among others. Here, however, we believe that an additional third category of small businesses may be appropriate because the deployment of fixed wireless equipment in nearby spectrum bands suggests that entry costs may be lower than was the case for the 2.3 GHz WCS when it was licensed in 1997. Thus, very small businesses may now be better able to take advantage of bidding credits to acquire licenses and provide communications services. As indicated in paragraphs 50- 53, the Commission, while proposing a requirement that fixed and mobile services applicants identify whether or not they seek to provide common carrier services, also proposes to allow these applicants to request common carrier status as well as non- common carrier status for authorization in a single license, rather than require these applicants to choose between common carrier and non- common carrier services. The Commission also proposes that fixed and mobile applicants and licensees in the 3650- 3700 MHz band not be required to describe their proposed services, but be required to indicate a regulatory status based on any services they choose to provide. As detailed in paragraphs 54-56, the Commission favors this type of flexible approach for regulating the 3650- 3700 MHz for a variety of reasons. The Commission, however, particularly seeks comment on the effect of this flexible approach on possible investment in communications services and systems and more generally on technology development. As discussed in paragraphs 57- 63, the Commission proposes that there be no restrictions on eligibility for fixed and mobile services licensees in the 3650- 3700 MHz and 4.9 GHz bands other than the alien ownership restrictions set forth in Section 310 of the Communications Act. In order to supervise effectively the compliance of these licensees with regard to our alien ownership restrictions, we propose that both common carrier and non- common carrier licensees in the 3650- 3700 MHz band provide the alien ownership information requested in FCC Form 601, as well as amendments to FCC Form 602 to reflect any changes in foreign ownership information. This proposed enforcement is a mutual benefit to all licensees and a minimal reporting burden. We have reduced burdens wherever possible. To minimize any negative impact, however, we propose certain incentives for small entities which will redound to their benefit. These special provisions include partitioning and spectrum disaggregation. 366 These provisions will allow smaller entities to overcome entry barriers. In addition, we seek comment on whether it would be appropriate to license the 3650- 3700 MHz band for fixed and mobile services using smaller geographical licensing areas. The use of smaller licensing areas could benefit small entities by reducing costs and build- out expenses. We have also sought comment on different approaches to minimizing the burdens of interference management. 367 The regulatory burdens we have retained, such as filing applications on appropriate forms, are necessary in order to ensure that the public receives the benefits of innovative new services in a prompt and efficient manner. We will continue to examine alternatives in the future with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities. We seek comment on significant alternatives commenters believe we should adopt. F. Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rules None. 366 See ¶¶ 75- 80, supra. 367 See ¶¶ 93- 116, supra. 65 Federal Communications Commission FCC 00- 363 66 APPENDIX D: FINAL RULES Parts 2 and 90 of title 47 of the Code of Federal Regulations are amended as follows: PART 2 – FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for Part 2 continues to read as follows: AUTHORITY: 47 U. S. C. 154, 302a, 303, and 336, unless otherwise noted. 2. Section 2.106, the Table of Frequency Allocations, is amended as follows: a. Page 54 is revised. b. Footnote US110 is revised and footnotes US348 and US349 are added. c. Footnotes NG169 and NG170 are added. d. Footnotes G59 and G110 are revised. The revisions and additions read as follows: § 2.106 Table of Frequency Allocations. * * * * * 66 67 2900- 3100 RADIONAVIGATION S5. 426 Radiolocation S5.425 S5.427 2900- 3100 MARITIME RADIONAVIGATION Radiolocation G56 S5.427 US44 US316 2900- 3100 MARITIME RADIONAVIGATION Radiolocation US44 S5.5427 US316 Maritime (80) Private Land Mobile (90) 3100- 3300 RADIOLOCATION Earth exploration- satellite (active) Space research (active) S5.149 S5.428 3100- 3300 RADIOLOCATION S5.333 US110 G59 S5.149 3100- 3300 Radiolocation S5.333 US110 S5.149 Private Land Mobile (90) 3300- 3400 RADIOLOCATION S5.149 S5.429 S5.430 3300- 3400 RADIOLOCATION Amateur Fixed Mobile S5.149 S5.430 3300- 3400 RADIOLOCATION Amateur S5.149 S5.429 3300- 3500 RADIOLOCATION US108 G31 3300- 3500 Amateur Radiolocation US108 Private Land Mobile (90) Amateur (97) 3400- 3600 FIXED FIXED- SATELLITE (space- to- Earth) Mobile Radiolocation 3400- 3500 FIXED FIXED- SATELLITE (space- to- Earth) Amateur Mobile Radiolocation S5.433 S5.282 S5.432 S5.149 S5.149 S5.282 S5.431 3500- 3600 Radiolocation US110 Private Land Mobile (90) 3500- 3700 FIXED FIXED- SATELLITE (space- to- Earth) MOBILE except aeronautical mobile Radiolocation S5.433 3500- 3650 RADIOLOCATION US110 G59 AERONAUTICAL RADIONAVIGATION (ground- based) G110 US245 3600- 3650 FIXED- SATELLITE (space- to- Earth) US245 Radiolocation US110 S5.435 3650- 3700 US245 US348 US349 3650- 3700 FIXED FIXED- SATELLITE (space- to- Earth) NG169 MOBILE except aeronautical mobile NG170 US245 US348 US349 3600- 4200 FIXED FIXED- SATELLITE (space- to- Earth) Mobile See next page for 3700- 4200 MHz See next page for 3700- 4200 MHz See next page for 3700- 4200 MHz See next page for 3700- 4200 MHz 67 Federal Communications Commission FCC 00- 363 68 * * * * * UNITED STATES (US) FOOTNOTES * * * * * US110 In the bands 3100- 3300 MHz, 3500- 3650 MHz, 5250- 5350 MHz, 8500- 9000 MHz, 9200- 9300 MHz, 9500- 10000 MHz, 13.4- 14.0 GHz, 15.7- 17.3 GHz, 24.05- 24.25 GHz and 33.4- 36.0 GHz, the non-Government radiolocation service shall be secondary to the Government radiolocation service and to airborne doppler radars at 8800 MHz, and shall provide protection to airport surface detection equipment (ASDE) operating between 15.7- 16.2 GHz. * * * * * US348 The band 3650- 3700 MHz is also allocated to the Government radiolocation service on a primary basis at the following sites: St. Inigoes, MD (38 q 10' N, 76 q 23' W); Pascagoula, MS (30 q 22' N, 88 q 29' W); and Pensacola, FL (30 q 21' 28'' N, 87 q 16' 26'' W). All fixed and fixed satellite operations within 80 kilometers of these sites shall be coordinated through the Frequency Assignment Subcommittee of the Interdepartmental Radio Advisory Committee on a case- by- case basis. US349 The band 3650- 3700 MHz is also allocated to the Government radiolocation service on a non-interference basis for use by ship stations located at least 44 nautical miles in off- shore ocean areas on the condition that harmful interference is not caused to non- Government operations. * * * * * NON- FEDERAL GOVERNMENT (NG) FOOTNOTES * * * * * NG169 After December 1, 2000, operations on a primary basis by the fixed- satellite service (space- to- Earth) in the band 3650- 3700 MHz shall be limited to grandfathered earth stations. All other fixed- satellite service earth station operations in the band 3650- 3700 MHz shall be on a secondary basis. Grandfathered earth stations are those authorized prior to December 1, 2000, or granted as a result of an application filed prior to December 1, 2000, and constructed within 12 months of initial authorization. license applications for primary operations for new earth stations, major amendments to pending earth station applications, or applications for major modifications to earth station facilities filed on or after December 18, 1998, and prior to December 1, 2000, shall not be accepted unless the proposed facilities are in the vicinity (i. e. within 10 miles) of an authorized primary earth station operating in the band 3650- 3700 MHz. License applications for primary operations by new earth stations, major amendments to pending earth station applications, and applications for major modifications to earth station facilities, filed after December 1, 2000, shall not be accepted, except for changes in polarization, antenna orientation or ownership of a grandfathered earth station. NG170 In the band 3650- 3700 MHz, the mobile except aeronautical mobile service is limited to base station operations. These base stations are subject to the same coordination procedures as fixed service operations in the band 3650- 3700 MHz. 68 Federal Communications Commission FCC 00- 363 69 * * * * * FEDERAL GOVERNMENT (G) FOOTNOTES * * * * * G59 In the bands 902- 928 MHz, 3100- 3300 MHz, 3500- 3650 MHz, 5250- 5350 MHz, 8500- 9000 MHz, 9200- 9300 MHz, 13.4- 14.0 GHz, 15.7- 17.7 GHz and 24.05- 24.25 GHz, all Government non- military radiolocation shall be secondary to military radiolocation, except in the sub- band 15. 7- 16. 2 GHz airport surface detection equipment (ASDE) is permitted on a co- equal basis subject to coordination with the military departments. * * * * * G110 Government ground- based stations in the aeronautical radionavigation service may be authorized between 3500- 3650 MHz when accommodation in the band 2700- 2900 MHz is not technically and/ or economically feasible. * * * * * PART 90 -- PRIVATE LAND MOBILE RADIO SERVICES 3. The authority citation for Part 90 continues to read as follows: AUTHORITY: Secs. 4( i), 11, 303( g), 303( r) and 332( c)( 7) of the Communications Act of 1934 as amended, 47 U. S. C. 154( i), 161, 303( g), 303( r), and 332( c)( 7), unless otherwise noted. 4. Section 90.103( b) is amended by replacing the table entry 3500- 3700 under the heading "megahertz" with the following entry: § 90.103 Radiolocation Service * * * * * 3500- 3650 …………..| ……. do …………………………….| 12 * * * * * 69 Federal Communications Commission FCC 00- 363 70 APPENDIX E: PROPOSED RULES For those reasons discussed in the accompanying Second Notice of Proposed Rulemaking, parts 2, 25 and 27 of Title 47 of the Code of Federal Regulations are proposed to be amended as follows: PART 2 – FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for Part 2 continues to read as follows: AUTHORITY: 47 U. S. C. 154, 302, 303, 307, 336, and 337, unless otherwise noted. 2. Section 2.106, the Table of Frequency Allocations, is amended by adding the following non- Government footnote: NGXXX Fixed- satellite service systems that operate primarily outside the 3650- 3700 MHz band may be authorized to perform space operations, such as, telemetry, tracking and telecommand operations in the band 3650- 3700 MHz, provided the requirement in §25.202( g)( 1) of this chapter is satisfied. PART 25 – SATELLITE COMMUNICATIONS 3. The authority citation for Part 25 continues to read as follows: AUTHORITY: 47 U. S. C. 701- 744. Interprets or applies sec. 303, 47 U. S. C. 303. 47 U. S. C. sections 154, 301, 302, 303, 307, 309 and 322, unless otherwise noted. 4. Section 25.202 is modified in paragraph (g) by adding a new paragraph (g)( 1) to read as follows: § 25.202 Frequencies, frequency tolerance and emission limitations. * * * * * (g) * * * * * (1) Telemetry, tracking and telecommand functions for satellite service systems operating outside of the band 3650- 3700 MHz may be authorized on a secondary basis in the 3650- 3700 MHz band upon a particularized showing of need. PART 27 – MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES 5. The authority citation for Part 27 continues to read as follows: AUTHORITY: 47 U. S. C. 154, 301, 302, 303, 307, 309, 332, 336, and 337, unless otherwise noted. 6. Section 27. 1 is modified by adding a new paragraph (b)( 3) to read as follows: § 27.1 Basis and purpose. 70 Federal Communications Commission FCC 00- 363 71 * * * * * (b) * * * * * (3) 3650- 3700 MHz band. * * * * * 7. Section 27. 4 is modified by adding the following definition Grandfathered fixed satellite service earth station. An earth station in the 3650- 3700 MHz band is an earth station that is authorized prior to December 1, 2000, or granted as a result of an application filed prior to December 1, 2000. 8. Section 27. 5 is modified by adding a new paragraph (c) to read as follows: § 27.5 Frequencies. * * * * * (c) 3650- 3700 MHz band. The 3650- 3700 MHz band is available for licensing pursuant to this part. 9. Section 27. 14 is modified by redesignating paragraph (d) as paragraph (e) and adding a new paragraph (d) to read as follows: § 27. 14 Construction requirements; criteria for comparative renewal proceedings. * * * * * (d) 3650- 3700 MHz band. (1) For a WCS licensee that offers fixed, point- to- point service, the construction of four permanent links per one million people in its licensed service area within the prescribed license term set forth in § 27. 13 of this part would constitute substantial service. (2) For a WCS licensee that offers fixed, point- to- multipoint service, a demonstration of coverage of 20 percent of the population of its licensed service area within the prescribed license term set forth in § 27. 13 of this part would constitute substantial service. (3) For a licensee that offers fixed satellite service, the construction of one earth station per licensed service area within the prescribed license term set forth in § 27.13 of this part would constitute substantial service. * * * * * 10. Section 27. 50 is modified by redesignating paragraph (c) as paragraph (d) and adding a new paragraph (c) to read as follows: § 27.50 Power limits. * * * * * (c) The following power and antenna height limits apply to base and fixed stations operating in the 3650- 3700 MHz band: Base and fixed stations must not exceed an effective radiated power of 1640 watts and an antenna height of 300 m height above average terrain, or its equivalent. 71 Federal Communications Commission FCC 00- 363 72 11. Section 27. 53 is modified by redesignating paragraph (f) as paragraph (g) and adding a new paragraph (f) to read as follows: § 27.53 Emission limits. * * * * * (f) Base and fixed service operations in the 3650- 3700 MHz band are subject to the emission limits set forth in § 101.111 of this chapter. * * * * * 12. Section 27. 55 is modified by adding a new paragraph (c) to read as follows: § 27.55 Field strength limits. * * * * * (c) 3650- 3700 MHz band: 54 dBµV/ m 13. Section 27.57 is revised to read as follows: § 27.57 International coordination. WCS licensees shall comply with the appropriate coordination agreements between the United States and Canada and the United States and Mexico concerning cross- border sharing and use of WCS bands. Operations in the border areas shall be subject to coordination with bordering countries and provide protection to non- U. S. operations in the appropriate frequency bands. In addition, satellite operations in WCS spectrum shall be subject to international satellite coordination procedures. 14. Section 27. 58 is revised by inserting introductory text before paragraph (a) to read as follows: § 27. 58 Interference to MDS/ ITFS receivers. The following rules concerning interference to Multipoint Distribution Service (“ MDS”) and Instructional Television Fixed Service (“ ITFS”) receivers apply only to WCS licensees in the 2305- 2320 and 2345- 2360 MHz bands. * * * * * 15. Section 27.61 is added to read as follows. § 27.61 FS/ FSS Coordination Procedure. Base and fixed service transmitters in the 3650- 3700 MHz band that are located within 200 kilometers of a grandfathered fixed satellite service earth station must be coordinated prior to construction to reduce the 72 Federal Communications Commission FCC 00- 363 73 potential for interference. The fixed station licensee must use the coordination procedures specified in § 101.21 of this chapter. 16. A new Subpart H is added to read as follows. Subpart H – Competitive Bidding Procedures for the 3650- 3700 MHz Band § 27.701 3650- 3700 MHz band subject to competitive bidding. Mutually exclusive initial applications for terrestrial service licenses in the 3650- 3700 MHz band are subject to competitive bidding procedures. The procedures set forth in part 1, subpart Q, of this chapter will apply unless otherwise provided in this part. § 27.702 Designated entities. (a) Eligibility for small business provisions. (1) A very small business is an entity that, together with its controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years. (2) A small business is an entity that, together with its controlling interests and affiliates, has average gross revenues not exceeding $15 million for the preceding three years. (3) An entrepreneur is an entity that, together with its controlling interests and affiliates, has average gross revenues not exceeding $40 million for the preceding three years. (4) For purposes of determining whether an entity meets any of the definitions set forth in paragraphs (a)( 1), (a)( 2), or (a)( 3) of this section, the gross revenues of the entity, its controlling interests and affiliates shall be considered in the manner set forth in § 1.2110( b) and (c) of this chapter. (5) A consortium of very small businesses is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)( 1) of this section. A consortium of small businesses is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)( 2) of this section. A consortium of entrepreneurs is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)( 3) of this section. Where an applicant or licensee is a consortium of small businesses (or very small businesses or entrepreneurs), the gross revenues of each small business (or very small business or entrepreneur) shall not be aggregated. (b) Bidding credits. A winning bidder that qualifies as a very small business or a consortium of very small businesses as defined in this section may use the bidding credit specified in § 1.2110( f)( 2)( i) of this chapter. A winning bidder that qualifies as a small business or a consortium of small businesses as defined in this section may use the bidding credit specified in § 1.2110( f)( 2)( ii) of this chapter. A winning bidder that qualifies as an entrepreneur or a consortium of entrepreneurs as defined in this section may use the bidding credit specified in § 1.2110( f)( 2)( iii) of this chapter. 73 Federal Communications Commission FCC 00- 363 74 APPENDIX F PRELIMINARY LISTS OF GRANDFATHERED FSS EARTH STATIONS 368 NOTE: A FINAL LIST WILL BE ISSUED IN A FUTURE PUBLIC NOTICE Table 1: Authorized Extended C- Band Earth Stations (Receive at 3625- 3700 MHz and Transmit at 5850- 5925 MHz) 369 State City North Latitude West Longitude License California Carmel Valley 36 o 24' 10" 121 o 38' 48" KA23 Culver City 34 o 01' 06" 118 o 24' 13" KA298 Livermore 37 o 45' 40" 121 o 47' 53" KA232 Los Angeles 34 o 01' 53" 118 o 27' 18" KA382 34 o 01' 54" 118 o 27' 15" KA383 Malibu 34 o 04' 49.7" 118 o 53' 44" KA91 34 o 04' 50.3" 118 o 53' 46" KA273 34° 4' 51" 118° 53' 44" KB32 Mountain House 37 o 45' 01" 121 o 35' 34" KA206 37 o 45' 02" 121 o 35' 35" KA86 Niles Canyon 37 o 35' 56" 121 o 56' 32" KA93 37 o 36' 00" 121 o 56' 35" KA82 Salt Creek 38 o 56' 20.2" 122 o 08' 48" KA371 38 o 56' 21" 122 o 08' 49" KA372 38 o 56' 22.3" 122 o 08' 50" KA373 Somis 34 o 19' 31" 118 o 59' 41" KA318 Sylmar 34 o 19' 04" 118 o 29' 00" KA274 368 See n. 5, supra. 369 Most of these earth stations are authorized to make use of both C- band (3700- 4200 MHz for downlinks and 5925- 6425 MHz band for uplinks) and extended C- band frequencies (3625- 3700 MHz for downlinks and 5850- 5925 MHz for uplinks). 74 Federal Communications Commission FCC 00- 363 75 Table 1 continued: Authorized Extended C- Band Earth Stations State City North Latitude West Longitude License 25 o 50' 26" 80 o 19' 03" E960406 Medley 25 o 51' 19" 80 o 19' 52" E960068 28 o 02' 25" 80 o 35' 48" KA354 Melbourne 28 o 05' 10" 80 o 38' 10" E950276 25 o 48' 34" 80 o 21' 11" E940470 25 o 48' 35" 80 o 21' 10" KA407 Miami 25 o 48' 35" 80 o 21' 11" KA412 Miramar 25 o 58' 32" 80 o 17' 00" E960105 Orlando 28 o 25' 29" 81 o 07' 21" KA280 Florida Palm Bay 28 o 02' 28" 80 o 35' 42" KA400 Guam Pulantat 13 o 25' 00" 144 o 44' 57" 370 KA28 KA326 21° 40' 26" 158° 2' 13" KA25 21° 40' 27" 158° 2' 16" KA265 21° 40' 27" 158° 2' 16" KA266 21° 40' 25.5" 158° 2' 16" KA267 21° 40' 25" 158° 2' 16" KA268 21° 40' 24" 158° 2' 16" KA269 Hawaii Paumalu 21° 40' 24" 158° 2' 16" KA270 44 o 37' 57" 70 o 42' 01" KA276 Maine Andover 44 o 37' 58" 70 o 41' 54" KA349 39 o 16' 48" 79 o 44' 14" WA21 West Virginia Etam 39 o 16' 50" 79 o 44' 13" KA378 39° 13' 5.6" 77° 16' 12" KA259 39° 13' 07" 77° 16' 12" KA275 39° 13' 5" 77° 16' 12" KA260 39° 13' 2.2" 77° 16' 12" KA261 39° 13' 1.4" 77° 16' 13" KA262 39° 13' 4.8" 77° 16' 15" KA263 Maryland Clarksburg 39° 13' 4.8" 77° 16' 15" KA264 370 Guam's longitude coordinate is East, not West. 75 Federal Communications Commission FCC 00- 363 76 Table 1 continued: Authorized Extended C- Band Earth Stations State City North Latitude West Longitude License Massachusetts Whitinsville 42 o 07' 01" 71 o 38' 11" E980517 Midway Atoll Midway Atoll 28 o 13' 11" 177 o 22' 5" E960325 New Jersey Franklin 41 o 07' 04" 74 o 34' 33" E6777 KA231 New York Hauppauge 40° 49' 15" 73° 15' 50" E950436 Staten Island 40° 36' 13" 74° 10' 39" KA308 North Carolina West Jefferson 36 o 25' 50" 81 o 23' 45" E970334 Oregon Moores Valley 45 o 20' 33" 123 o 17' 15" CSG- 90- 101- P/ L 40 o 53' 35.9" 76 o 26' 23" KA444 Pennsylvania Roaring Creek 40 o 53' 37.5" 76 o 26' 22" WA33 Carolina 18 o 26' 00" 65 o 59' 35" KA377 Cayey 18 o 08' 00" 66 o 07' 57" KA320 Humacao 18 o 09' 05" 65 o 47' 20" E872647 Puerto Rico Rio Piedras 18 o 14' 30" 66 o 01' 50" KA403 36 o 14' 6.2" 86 o 45' 20" E970010 36 o 14' 5.7" 86 o 45' 19" E960073 Tennessee Nashville 36 o 14' 5.7" 86 o 45' 21" E960050 Texas Desoto 32 o 37' 48" 96 o 50' 32" KA306 Alexandria 38 o 47' 36" 77 o 09' 59" KA81 Reston 38° 57' 00" 77° 22' 40" E950406 Virginia Shenandoah 38 o 43' 45" 78 o 39' 26" KA255 48 o 08' 51" 119 o 41' 29" KA294 Washington Brewster 48 o 08' 51" 119 o 41' 29" E960222 Albright 39 o 34' 07" 79 o 34' 45" KA413 West Virginia Rowlesburg 39 o 16' 52.1" 79 o 44' 11" KA351 76 Federal Communications Commission FCC 00- 363 77 Table 2: Sites Authorized for Less than the Entire 3650- 3700 MHz C- Band Band City, State Latitude Longitude License 3685- 3700 MHz Miami, Florida 25 o 28' 48" 80 o 10' 48" E970362 Atlanta, Georgia 33 o 52' 38.2" 84 o 27' 58" E970197 Marietta, Georgia 33 o 55' 41" 84 o 29' 45" E970364 Guaynabo, Puerto Rico 18 o 34' 10" 66 o 23' 00" E970195 San Juan, Puerto Rico 18 o 22' 00" 66 o 07' 00" E970196 3698.7- 3698.7 MHz Rio Piedras, Puerto Rico 18 o 22' 59" 66 o 04' 09" KA426 Caguas, Puerto Rico 18 o 17' 53" 66 o 03' 14" E950405 Table 3: Authorized TT& C Sites (Receive at 3698.5- 3699.5 MHz and Transmit at 5923.5- 5924.5 MHz) City, State Latitude Longitude License Three Peaks, California 38 o 8' 51.9" 122 o 47' 38" E950208 Hawley, Pennsylvania 41 o 27' 51" 75 o 7' 48" E950209 Table 4: Authorized TT& C Sites (Receive at 3698.3- 3699.7 MHz and Transmit at 5923- 5924 MHz) City, State Latitude Longitude License CHEYENNE, WY 41 o 7' 56" 104 o 44' 11" E950253 CHEYENNE, WY 41 o 7' 55.7" 104 o 44' 12" E980118 77 Federal Communications Commission FCC 00- 363 78 APPENDIX G: MAP OF COORDINATION ZONES AROUND GRANDFATHERED FSS EARTH STATIONS AND GRANDFATHERED GOVERNMENT RADIOLOCATION STATIONS 78 Federal Communications Commission FCC 00- 363 79 79