Federal Communications Commission Before tbe Federal Communications Commission Wasbington, D.C. 20554 FCC 02ท152 In the Matter of ) ) Amendments to Parts 1,2,27 and 90 ofthe ) Commission's Rules to License Services in the ) 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, ) 1429-1432 MHz, 1432-1435 MHz, 1670-1675 ) MHz, and 2385-2390 MHz Government Transfer ) Bands ) WT Docket No. 02 - 8 RM-9267 RM-9692 RM-9797 RM-9854 RM-9882 Adopted: May 16,2002 REpORT AND ORDER Released: May 24, 2002 By the Commission: Commissioner Abernathy issuing a statement; Commissioner Copps approving in part, dissenting in part, and issuing a statement. TABLE OF CONTENTS Heading Paragraph # I. INTRODUCTION 1 II. EXECUTIVE SUMMARY 3 III. BACKGROUND 4 IV. DISCUSSION 7 A. Licensing Plan 7 I. Overview 7 2. Geographic Area Licensing 13 3. Spectrum Blocks : 21 4. Assignment ofLicenses 29 5. Flexible Use 37 6. Site-by-Site Licensing 40 7. Primary Telemetry (1429.5-1432 MHz) 44 8. Grandfathered Operations 50 B. Application, Licensing and Processing Rules for New Services 57 I. Regulatory Status 58 2. Eligibility; Foreign Ownership Restrictions 61 3. License Term and Renewal Expectancy 66 4. Performance Requirements 70 5. Application ofTitle II Requirements to Common Carriers 74 6. Partitioning and Disaggre.2l1tion 79 9980 Federal Communications Commission FCC 02-152 7. Individual Station Licenses 84 8. Frequency Coordination for Site-by-Site Applications 87 C. Competitive Bidding Procedures 97 1. Incorporation by Reference ofthe Part I Standardized Auction Rules 98 2. Provisions for Designated Entities 10 I D. Technical Rules 109 I. Part 27 109 2. In-Band Interference Control.. ll6 3. Out-of-Band Interference Control. 118 4. Part 90 Telemetry 137 E. Coordination , 145 I. Incumbent Government Operations : 145 2. FAS Coordination 158 3. Greenbelt, Maryland METSAT Station 162 4. Flight Test Telemetry 170 5. Canada and Mexico Coordination 176 F. Other Proposals 178 I. 216-220 MHz Band 178 2. 1.4 GHz Band 189 V. PROCEDURAL MATTERS 207 A. Final Regulatory Flexibility Analysis 207 B. Paperwork Reduction Analysis 208 C. Further Information 209 VI. ORDERING CLAUSES 211 Appendices A. List ofCommenters 80 B. List ofReply Commenters 81 C. Final Regulatory Flexibility Analysis...................................................................... 82 D. List ofNational Weather Service Radiosondes........................................................... 90 E. Final Rules...................................................................................................... 93 I. INTRODUCTION I. By this action, we adopt, in part, service rules proposed in the Service Rules Notice' to govern the licensing of 27 MHz of electromagnetic spectrum in the 216-220 MHz, 1390-1395 MHz, I Reallocation of the 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670 1675 MHz, and 2385-2390 MHz Government Transfer Bands, WT Docket No. 02-8. Notice of Proposed Rulemaking. 17 FCC Rcd 2500 (2002) (Service Rules Notice). 9981 Federal Communications Commission FCC 02-152 1427-1429.5 MHz, 1429.5-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz bands, which was recently reallocated for non-Government use. 2 The licensing plan we adopt in the instant proceeaing continues the implementation of the framework articulated in the Commission's November 1999 Spectrum Policy Statement. 3 Further, the service rules we adopt today establish a flexible regulatory and licensing framework. We believe that our decision will provide opportunities for new services to utilize this spectrum to address spectrum scarcity concerns as well as to promote the delivery of technologically innovative services to the public. 2. Of the seven frequency bands subject to this proceeding, the 216-220 MHz, 1432- 1435 MHz, and 2385-2390 MHz bands are subject to the provisions ofthe National Telecommunications and Information Administration Organization Act (NTIA Organization Act), as added by the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (NDAA-99), Pub. L. 105-261, 112 Stat. 1920 (1999).4 Section II3(g) of the NTIA Organization Act requires new non-Government licensees to reimburse Federal users for their relocation costs. s It also requires the Federal user to notify the National Telecommunications and Information Administration (NTIA) prior to auction of the "marginal costs anticipated to be associated with such relocation or with modifications necessary to accommodate prospective licensees," and requires the NTIA to provide the Commission with that information prior to auction. 6 The NDAA-99 also directs the NTIA and the Commission to develop reimbursement procedures.' Our implementation of NDAA-99 is heavily dependent on reimbursement procedures being promulgated by the NTIA, which have not yet been released. s Following the release of NTIA's rulemaking, any actions necessary for the Commission to adopt additional rules or procedures to supplement NTIA's reimbursement regulations will be resolved in a separate proceeding. 2 Reallocation of the 216-220 MHz, 1390-1392 MHz. 1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670 1675 MHz, and 2385-2390 MHz Government Transfer Bands, ET Docket No. 00-221, Report and Order and Memorandum Opinion and Order, 17 FCC Rcd 368 (2002) (Reallocation Report and Order). The Commission reallocated these bands pursuant to the provisions of the Omnibus Budget Reconciliation Act of 1993 (OBRA-93), Pub. L.I 03-66, 107 Stat. 312 (1993), and the Balanced Budget Act of 1997 (BBA-97), Pub. L.I 05-33, 111 Stat. 251 (1997). Section 6001(a) of the OBRA-93 (codified at 47 U.s.c. ง 925(b)(I)) and Section 3002(e) of the BBA-97 (codified at 47 U.S.c. ง 925 (c)( II). 3 Principles for Reallocation ofSpectrum to Encourage the Development of Telecommunications Technologies for the New Millennium, Policy Statement, 14 FCC Rcd 19868 (1999) (Spectrum Policy Statement). 4 Reallocation Report and Order, 17 FCC Rcd at 372 'Il 7. S 47 U.S.c. ง 923(g)( I)(A). 6 Id. In a recent letter from NTIA to the Commission. NTIA reports that there are "no longer any marginal costs subject to mandatory federal reimbursement for the 216-220 and 1432-1435 MHz bands." NTIA noted, however, that the projected costs for the 2385-2390 MHz band "have been more difficult to finalize." See Letter to Bruce Franca, Acting Chief, Office of Engineering and Technology, Federal Communications Commission, from William T. Hatch, Associate Administrator, Office of Spectrum Management, National Telecommunications and Information Administration (dated December 19,2001). 7 47 U.S.c. ง 923(g)(I)(E). 8 See Mandatory Reimbursement Rules for Frequency Band or Geographic Relocation of Federal Spectrum Dependent Systems, National Telecommunications and Information Administration, Docket No. 001206341-0341 oI, Notice of Proposed Rule Making, 66 Fed. Reg. 4771 (Jan. 18, 2001). We previously sought comment on proposed general rules and guidelines to implement NDAA-99. Reallocation ofthe 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz Government Transfer Bands, Notice ofProposed Rulemaking, ET Docket No. 00-221, 15 FCC Rcd 22657, 22677-22682 '\I'll 54-66 (2000) (Reallocation Notice). 9982 Federal Communications Commission n. EXECUTIVE SUMMARY FCC 02ท152 3. In this Report and Order, we make the following major determinations regarding the subject bands: • Assign the 1390-1392 MHz band by Major Economic Areas (MEAs), the paired 1392 1395 MHz and 1432-1435 MHz bands by Economic Area Groups (EAGs), the 1670 1675 MHz and the 2385-2390 MHz bands on a single, nationwide basis, and the 1429.5 1432 MHz band on a site-by-site basis with frequency coordination. • Permit open eligibility for initial licenses assigned by geographic area licensing in the paired 1392-1395 MHz and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands. 9 Adopt technical standards that are both consistent with our Part 27 rules and provide licensees flexibility. • License telemetry on a primary basis in the 1429.5-1432 MHz band and on a secondary basis in the 217-220 MHz and 1427-1429.5 MHz bands using a frequency coordinated site-by-site approach consistent with the technical specifications provided for telemetry operations under our Part 90 rules, as modified herein.'o • Adopt our proposed framework for a ten-year license term from the date of grant in the paired 1392-1395 MHz and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands. Require licensees to demonstrate that they are providing substantial service when they file their renewal application. • Allow licensees in the paired 1392-1395 MHz and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands to partition and/or disaggregate their licenses. • Apply the general competitive bidding rules set forth in Part 1, Subpart Q, of the Commission's Rules to the paired 1392-1395 and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands.'1 9 In the Real/ocation Report and Order, we stated that we would not allow new, co-primary services in either the 216-217 MHz band or the 217-220 MHz band. Real/ocation Report and Order, 17 FCC Red at 380 mI 26-27. The 216-217 MHz band is licensed by rule on a primary basis to the Low Power Radio Services (LPRS). See id The 217-218 MHz and 219-220 MHz bands are subject to auction and licensed to the Automated Maritime Telecommunication System (AMTS) Service. See Amendment of the Commission's Rules Concerning Maritime Communications, WT Docket No. 92-257, Fourth Report and Order and Third Further Notice ofProposed Rule Making, 15 FCC Red 22585 (2000). The 218-219 MHz service has already been assigned, in part, by auction. See Announcing High Bidders for 594 interactive Video and Data Services (IVDS) Licenses, Public Notice. Mimeo No. 44160 (reI. Aug. 2, 1994), erratum. Public Notice, Mimeo No. 44265 (reI. Aug. 9, 1994) (awarding MSA licenses by both lonery and auction); Amendment of Part 95 ofthe Commission's Rules to Provide Regulatory Flexibility in the 218-219 MHz Service, Report and Order and Memorandum Opinion and Order, WT Docket No. 98-169, 15 FCC Rcd 1497 (1999) (modifying the regulations governing the licensing ofthe 218-219 MHz Service). 10 Prior to the release of the Real/ocation Report and Order, Section 90.259 of our Rules permined secondary telemetry operations throughout the entire 216-220 MHz band and in the 1427-1435 MHz band. See 47 C.F.R. ง 90.259 (2000). We note that as a result of our decision in the Real/ocation Report and Order, telemetry is authorized on a secondary basis in the 216-220 MHz and 1427-1429.5 MHz bands and on a primary basis in the 1429.5-1432 MHz band. However, as of January 2, 2002. new telemetry operations in the 216-217 MHz portion of the 216-220 MHz band are not permitted in order to protect LPRS from harmful interference. See Real/ocation Report and Order. 17 FCC Red at 380 '26. 11 47 C.F.R. ง Part I, Subpart Q. 9983 Federal Communications Commission FCC 02-152 • Require non-Government users to file an application on the Universal Licensing System (ULS) requesting Frequency Assignment Subcommittee (FAS) coordination offixed sites and mobile operations within the protection radii ofco-primary Government incumbents. We specify that geographic area licensees are responsible for determining whether a particular operation requires FAS approval. We also clarify that a licensee may request coordination of multiple fixed and mobile stations via a single application. Finally, we indicate that users of the Low Power Radio Services (LPRS) are not required to coordinate with FAS. • Establish coordination procedures for licensees in the 2385-2390 MHz band operating near non-Government aeronautical flight-test telemetry sites and interim coordination procedures for terrestrial licenses along the Canadian and Mexican borders. • Implement the band "flip" portion of the AHA-Itren Joint Agreement and switch the primary allocation between Wireless Medical Telemetry Service (WMTS) in the 1427 1429.5 MHz band and Telemetry in the 1429.5-1432 MHz band, in seven defined geographic areas. 12 The following chart summarizes the licensing approaches we adopt herein. 12 This panicular aspect ofthe AHA-Itron band "flip" agreement is discussed further in Section IV.A.3.c, infra. 9984 216 MHz 217 MHz Federal Communications Commission 216-220 MHz Band 218MHz 219 MHz FCC 02-152 220 MHz LPRS AMTS 218-219 MHz Service AMTS (PRIMARy) (PRIMARy) (PRIMARy) (PRIMARY) (licensed by rule) (geographic area licensing) (geographic area licensing) (geographic area licensing) Telemetry Incumbents Telemetry Grandfathered (Secondary) (Secondary) (site-by-site licensing) (site-by-site licensing) 1.4 GHz Bands 1390 MHz 1392 MHz 1395 MHz 1427 MHz 14295 MHz 1432 MHz 1435 MHz FLEXIBLE USE FLEXIBLE USE Geographic Area License Geographic Area License (paired with MSS Feeder /432-1435 MH:) uplinksท WMTS TELEMETRY FLEXIBLE USE (PRIMARY) (PRIMARy) Geographic Area (licensed by rule) Site-by-Site License License Telemetry Grandfathered (secondary) Incumbent Telemetry (site-by-site licensing) (secondary) MSS Feeder (paired with downlinksท 1392-1395 MH:) t 1430 MHz 1432 MHz J ------ 1670-1675 MHz Band and 2385-2390 MHz Band 1670 MHz FLEXIBLE USE Geographic Area License 1675 MHz 2385 rM:.:.H::;z ..:::23:..::90..::....::M:.:;Hz FLEXIBLE USE Geographic Area License *MSS Feeder Uplinks and Downlinks are contingent on the adoption of an international allocation and other conditions. 13 13 47 C.F.R. ง 2.106, footnote US368. See Reallocation Report and Order, 17 FCC Red at 392 , 52. 9985 m. BACKGROUND Federal Communications Commission FCC 02-152 4. On January 2, 2002, we released a Reallocation Report and Order in ET Docket 00- 221. 14 Upon consideration of the record, we implemented a band plan to reallocate the subject spectrum bands for non-Government use consistent with the framework established in the Spectrum Policy Statement. IS Generally, we allocated the 216-220 MHz band to the fixed and mobile (except aeronautical telemetry) services on a co-primary basis and elevated the LPRS from secondary to primary status in the 216-217 MHz band. 16 In making this allocation, we stated that the reallocation ofthe 216-220 MHz band does not disturb the status of the Automated Maritime Telecommunication Systems (AMTS) or 218-219 MHz Services'" We allocated the 1390-1392 MHz, 1392-1395 MHz, 1432-1435 MHz, and 1670-1675 MHz bands to the fixed and mobile service (except aeronautical mobile) on a primary basis.. a The 2385 2390 MHz. band was allocated to the fixed and mobile services on a primary basis. 19 We shifted the allocation of WMTS from the 1429-1432 MHz band to the 1427-1429.5 MHz band and maintained the secondary status of non-medical telemetry systems in the band. 20 Telemetry in the 1429.5-1432 MHz band was elevated to primary status. 21 Finally, we conditionally allocated the 1390-1392 MHz band for Non-Geosynchronous Satellite Orbit (NGSO) MSS Feeder Uplinks and the 1430-1432 MHz band for NGSO MSS Feeder downlinks. 22 5. On February 6, 2002, we released a Service Rules Notice in WT Docket 02-8, in which we proposed licensing and service rules to govern both incumbent and new licensees in the subject bands. 2 As we noted in the Service Rules Notice. this proceeding is not intended to affect, and does not adopt rules governing the regulatory framework or service rules for the 218-219 MHz Service, AMTS, or LPRS. 24 Under the band plan we adopted in the Reallocation Report and Order, AMTS, the 218-219 MHz Service and LPRS will continue to be licensed on a primary basis in the 216-220 MHz band. 2s We ,4 Reallocation Report and Order, supra note 2. "See Amendment ofthe Commission's Rules Concerning Maritime Communications. PR Docket 92-257, FCC 02 74, Second Memorandum Opinion and Order and Fifth Report and Order (released April 8, 2002). 16 Reallocation Report and Order, 17 FCC Rcd at 379-380" 25-26. 11 Jd. at 377-378~21, citing Amendment of the Commission's Rules Concerning Maritime Communications, PR Docket No. 92-257, Fourth Report and Order and Third Notice of Proposed Rule Making, 15 FCC Rcd 22585 (2000) (AMTS Fourth Report and Order) and Amendment of Part 95 of the Commission's Rules to Provide Regulatory Flexibility in the 218-219 MHz Service. WT Docket No. 98-169, Report and Order and Memorandum Opinion and Order, 15 FCC Rcd 1497 (1999). I. Reallocation Report and Order, 17 FCC Rcd at 391-397~~49-68. We note that aeronautical mobile is authorized to operate throughout the 216-220 MHz band on a secondary basis. See 47 C.F.R. ง 2.106. 19 Reallocation Report and Order, 17 FCC Rcd at 397~~67-71. 2ฐ1d. at 391-394 " 48-60. 21 ld. zz ld. at 394~59. The NGSO MSS Feeder allocation is conditioned on the adoption of a similar international allocation. 23 Service Rules Notice, supra note I. 24 1d. at 2519~44. 25 Reallocation Report and Order, 17 FCC Rcd at 377~~18-19. 9986 Federal Communications Commission FCC 02-152 will continue to assign licenses in the 218-219 MHz service by competitive bidding, and we have already adopted a geographic area licensing approach for AMTS in the 217-218 MHz and 219-220 MHz bands. 26 6. In the Service Rules Notice, we proposed to adopt a licensing method that would allow for the filing ofmutually exclusive applications for new licenses in the paired 1392-1395 and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands and to apply the our Part 27 rules as modified to reflect the particular characteristics and circumstances ofthese bands. 27 We also proposed to apply comretitive bidding procedures under our Part I competitive bidding rules for future licensing ofthese bands. 2 We sought comment on our proposals to assign initial licenses to these bands on a flexible use basis. We also sought comment on the efficacy of certain additional technical specifications and coordination procedures to minimize the potential of harmful interference on either a co-channel or adjacent channel basis to incumbent operations. IV. DISCUSSION A. Licensing Plan 1. Overview 7. Background. In the Service Rules Notice. we sought comment on whether licensees in the paired 1392-1395 MHz and 1432-1435 MHz bands and in the unpaired 1390-1392 MHz, 1670-1675 MHz, and the 2385-2390 MHz bands would benefit from the regulatory construct and additional flexibility in our Part 27 rules. 29 We sought comment as to whether new terrestrial services in these bands should be governed by Part 27 of the Commission's Rules 30 and whether the application of our Part 27 rules to these bands would further the public interest bycontributin~to technological and service innovation and improving the national telecommunications infrastructure. I Further, we sought comment on the benefits and costs, including potential interference, associated with affording licensees such flexibility. 8. Additionally, we sought comment on licensing approaches for secondary telemetry in the 217-220 MHz 32 and 1427-1429.5 MHz bands. and primary telemetry in the 1429.5-1432 MHz band as 26 See supra note 9. 27 Service Rules Notice, 17 FCC Rcd at 2509~17. 28 We note that AMTS at 217-218 MHz and the 218-219 MHz Service are also subject to the Commission's Part I competitive bidding rules, but these bands are not affected by our decision today. See discussion supra~5. 29 Service Rules Notice. 17 FCC Rcd at 2509~17. We did not seek comment on the applicability of our Part 27 rules to services authorized to operate in the 217-220 MHz band for the reasons previously stated in Section III, supra. 30 47 C.F.R. Part 27. 31 The Commission has recognized that, where appropriate, "[fjlexibility can be permined through the use ofrelaxed service rules ...." Spectrum Policy Statement. 14 FCC Rcd at 19870 -,) 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 oftheir systems to respond readily to consumer demand for their services. thus allowing thc 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 andSecond Notice ofProposed Rulemaking, 12 FCC Rcd 18600, 18616~26 (1997). 32 We also note that in the Reallocations Report and Order, we grandfathered incumbent secondary telemetry operations in the 216-217 MHz band, and precluded new assignments for secondary telemetry operations in the 216 217 MHz band after January 1,2002. Reallocations Report and Order. 17 FCC Rcd at 380~26. 9987 Federal Communications Commission FCC 02.152 well as in the geographic "carve-out" areas. 33 With regard to these panicular bands, we sought comment on our proposal to apply our general Part 90 technical and service rules to telemetry operations in these bands. 3 9. We also sought comment on whether pennitting flexible use would be appropriate for the spectrum under consideration, pursuant to Section 303(y)(2) ofthe Communications Act,3 as amended by the Balanced Budget Act of 1997. 36 In this connection, we requested comment on whether permining flexible use of this spectrum would (I) be in the public interest; (2) not deter investment in communications services and systems, or technology development; or (3) not result in harmful interference among users. 31 10. Discussion. We note, as an initial maner, that the licensing plan and service rules we adopt here are consistent with the fundamental guidelines and framework established in the Commission's November 1999 Spectrum Policy Statement. 38 As indicated in the Spectrum Policy Statement, we believe that a flexible licensing approach will allow licensees the freedom to determine the services to be offered and the technologies to be used in providing those services. J9 This flexibility will better enable licensees to use their assigned frequencies in response to market forces. We also believe that our approach will facilitate a robust and competitive market in the provision ofcurrent and future wireless services. II. In light of these considerations, and the overwhelming concurrence of the commenters to the Service Rules Notice, we believe that the general application of our Part 27 licensing and operating rules will promote flexible and efficient use ofthe unpaired 1390-1392 MHz, 1670-1675 MHz., and 2385 2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands. We agree with the commenters that application ofour Part 27 rules will provide licensees a streamlined licensing framework that will foster innovation, flexible use and regulatory certainty.40 Although we generally adopt our Part 27 rules for the unpaired 1390-1392 MHz., 1670-1675 MHz., and 2385-2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands, we also recognize that the technical characteristics and potential use of each band varies depending on externalities separate and apart from strictly technical aspects. o • Accordingly, we have added technical and definitional rules to Part 27 of our rules, as necessary, to assure spectrum efficiency and to maximize the potential for the highest valued end use of 33 Service Rules Notice. 17 FCC Rcd at 2524-25~'li59-63. As discussed in Section IV.A.3.c, infra. AHA and Itron proposed a band plan that would pennit primary telemetry operations in specifically designated geographic "carve out" areas in lhe 1427-1429 MHz and 1431.5-1432 MHz bands. The band plan would also pennit primary WMTS operalions in the 1429-1431.5 MHz band in the same geographic "carve-out" areas. '0 Service Rules Notice. 17 FCC Rcd at 2526-27~64-69. " See 47 U.S.c. ง 303(y)(2). ,. See BBA-97, supra note 2. J7 See 47 U.S.C. ง 303(y)(2)(B). 31 Spectrum Policy Statement. supra note 3. ,. [d. at 19870~9. 00 See. e.g., ArrayComm Comments at 2 (supponing application ofour Pan 27 rules to the 1670-1675 MHz band). 0' We note thaI we will amend Section 87.173 of our rules to indicate that after January I, 2007. all operations pursuant to Pan 87 in the 2385-2390 MHz ponion of the 2310-2390 MHz band will be secondary to WCS operations in accordance with Subpan K ofour Pan 27 rules. See infra Appendix E - Definition and Rules. 9988 Federal Communications Commission FCC 02-152 the spectrum. 42 Consistent with our approach in other services, we also note that licensees will be required to comply with rules contained in other Parts ofthe Commission's Rules. 43 12. We are also adopting rules to license secondary telemetry in the 217-220 MHz band 44 and the 1427-1429.5 MHz band, and primary telemetry in the 1429.5-1432 MHz band 45 under Part 90 of our rules. Accordingly, we are adopting general technical and service rules to our Part 90 rules, as modified herein, governing telemetry operations in these bands. 2. Geographic Area Licensing 13. Background. In the Service Rules Notice, we stated that it has been our experience that "significant improvements in spectrum utilization" can be realized through wide-area licensing. 46 As a result, we proposed to license new services by geographic area in the paired 1392-1395 MHz and 1432 1435 MHz bands and the unpaired 1390-1392 MHz, 1670-1675 MHz and 2385-2390 MHz bands. 47 In requesting comment on our proposal generally, we also sought specific comment on whether a particular geographic area size was appropriate for each ofthese bands: 8 a. 1390-1392 MHz Band 14. Discussion. Based on our review ofthe record herein, we will license new services in the 1390-1392 MHz band by geographic area licensing. We note, as an initial maner, that only one commenter, the American Petroleum Institute (API), addressed the issue of geographic licensing with respect to the 1390-1392 MHz band. API states that geographic area licensing would make it difficult for potential users from the oil and natural gas industry, which rely on smaller operating areas, to make use of this band. 49 API states that a site-by-site licensing approach would facilitate spectrum access by oil and natural gas companies, because these users only need coverage in sparsely populated areas, like rural areas, where other conventional telecommunications services are not readily available.50 We believe that our overall spectrum management goals would best be met through a geographic licensing approach rather than a site-by-site licensing approach. For example, geographic area licensing will provide licensees with substantial flexibility to respond to market demand. In this connection, licensees will be able to coordinate usage across an entire geographic area and maximize use in areas where the demand is highest. Moreover, this approach streamlines the licensing process. reducing administrative burdens and operating costs by allowing licensees to modify, move, or add to their facilities within a particular 42 See infra Section IV.D. Technical Rules. 43 47 C.F.R. ง 27.3. For example licensees will be required to comply with the practices and procedures listed in Part J ofour rules for license applications, adjudicatory proceedings, etc. .... We also note that in the Reallocations Report and Order, we grand fathered incumbent secondary telemetry operations in the 2 J6-217 MHz band. and precluded new assignments to secondary telemetry operations in the 216 217 MHz band after January J, 2002. Reallocations Report and Order. 17 FCC Rcd at 380 '\126. 4S We note that within seven designated geographic "carve-out" areas, as discussed, infra Section IV.AJ.c. telemetry will operate on a primary basis in the 1427-1429.5 MHz band and on a secondary basis to WMTS in the 1429.5-1432 MHz band. • 6 Sen'ice Rules Notice. 17 FCC Rcd at 2514 '\I 30. 47 ld. 48 ld. at 2514- J5 '\I 31. 49 API Comments at 6. so ld. 9989 Federal Communications Commission FCC 02-152 geographic area without prior Commission approval. SI We also believe that those who desire smaller operating areas can be accommodated within a geographic area licensing construct. S2 As a result, we decline to adopt a site-by-site licensing approach here in favor of providing licenses with the flexibility noted above. 15. We agree with API, however, that nationwide licensing is not appropriate for the 1390- 1392 MHz band. We believe that smaller economic areas and the eligibility of band managers (see discussion below) will help to alleviate spectrum access concerns of users with smaller and/or more localized spectrum needs such as those described by API. Sl Given these considerations, we will license this band using fifty-two (52) Major Economic Areas (MEAs).S4 We believe that MEAs will facilitate a larger number and more diverse pool of licensees than nationwide or larger regional licensing areas. We also note that the use of MEAs here should result in (i) lower costs for participating in an auction; (ii) greater efficiencies by making it easier for a bidder to acquire licenses for only as much area as required for its prospective service; and (iii) increased competition. ss b. 1392-1395l\fiIz and 1432-1435l\fiIz bands 16. For the paired 1392-1395 and 1432-1435 MHz bands, we also conclude that geographic area licensing is the most appropriate licensing construct for these bands. s6 The commenters are split as to what size geographic area is most appropriate for these bands. s7 Specifically, some commenters suggested as few as six licensing areas (namely--Economic Area Groupings (EAGsปS8 whereas others suggested as many as 734 licensing areas (namely--Metropolitan Statistical Areas (MSAs) and Rural Statistical Areas (RSAsป.s9 However. no commenters support licensing these bands on a nationwide basis. In determining the appropriate licensing area size, we believe it is necessary to consider the likely $1 See. e.g., Amendment ofPart 90 ofthe Commission's Rules to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band, PR Docket No. 93-144. Second Report and Order, 12 FCC Red 19079, 19087~10 (1997). 52 See Service Rules for the 746-764 and 776-794 MHz Bands. and Revisions to Part 27 ofthe Commission's Rules, WT Docket No. 99-168, First Report and Order, 15 FCC Red 476 (2000) (700 MHz First Report and Order) 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 Red 5299 (2000) (700 MHz Second Report and Order). 53 Id. at 6-7. 54 MEAs, which are based on Economic Areas (EAs) defined by the Department ofCommerce, were first developed by the Commission to define geographic license areas for the Wireless Communications Service. See Amendment ofthe Commission's Rules to Establish Part 27, the Wireless Communications Service ("WCS"). Report and Order, 12 FCC Red 10785, 10814,~54 (1997) (WeS Report and Order). In the wes Report and Order, we aggregated EAs into 52 MEAs, including 46 in the continental United States and an additional six areas covering Alaska (MEA #47), Hawaii (MEA #48), Guam and the Northern Mariana Islands (MEA # 49); Puerto Rico and the U.S. Virgin Islands (MEA #50); American Samoa (MEA #51); and the Gulf ofMexico (MEA #52). 55 / d. at~57. 56 See 1390-1392 MHz discussion, supra.. $7 See, e.g., American Mobile Telecommunications Association. Inc. (AMTA) Comments at 6 (suggesting use of six Regional Economic Area Groupings); National Telecommunications Cooperative Association (NTCA) Comments at 2 (suggesting use of 734 Metropolitan Statistical Areas and Rural Statistical Areas). 58 AMTA Comments at 6; LMCC Comments at 5.6. 59 See NTCA Comments at 2; Rural Telecommunications Group (RTG) Reply Comments at 2-3. Office of Advocacy, U.S. Small Business Administration (Advocacy) Reply Comments at 3-4 (stating that smaller geographic areas rather than nationwide licenses will encourage small businesses to provide services in these spectrum bands). 9990 Federal Communications Commission FCC 02-152 services in the band and deployment ofthose services. Based on the record in this proceeding, we believe that the bands will most likely be used to accommodate private radio services, including private land mobile radio operations. 60 In our Spectrum Policy Statement, in recognizing the need to relieve congestion and to p.fovide new opportunities to enhance business radio communications, we specifically identified the 1390-1395 MHz band for consideration to support a "Land Mobile Communications Service.'.6] Moreover, in the Spectrum Policy Statement. we expressed an interest to allow manufacturers to design cost-effective equipment. 62 17. Against this backdrop, we believe that EAGs are the most appropriate size licensing area for these bands. In this connection, we note that the LMCC states that there is currently no equipment to support fixed or mobile operations in this band. 63 In this case, we believe that larger geographic areas, such as EAGs, will afford manufacturers an opportunity to supply conforming equipment to support a larger demand base. We further believe that larger areas will facilitate flexibility for nascent operations to allocate resources according to demand, thus permitting them to rollout service quickly and to develop an active subscriber base. 64 In another licensing context, we have noted that use of EAGs "facilitates the acquisition of spectrum by different providers with spectrum needs that are confined to their particular region or market.'.6S Therefore, we believe that EAGs will accommodate a variety of uses, including PLMR and other particularized communications needs. 18. While we do not believe that MSAs and RSAs are appropriate for these bands, we nonetheless are mindful of the concerns expressed by representatives of the rural telecommunications community. In this regard, we intend to develop a more current and substantial record on the Commission's mandate to ensure that rural telecommunications companies are given the opportunity to participate in the provision of spectrum-based services pursuant to Section 309U)(4)(d)' of the Act. Accordingly, before the end of the year, we plan to initiate a Notice of Inquiry regarding a number of topics related to the provision of spectrum-based service to rural areas including (a) the nature of spectrum supply and demand and the services currently provided and planned in rural areas, (b) the effectiveness of our current regulatory tools (including partitioning and disaggregation, bidding credits, auction service area policies, build out requirements) in facilitating the delivery of services to these areas; (c) how the Commission could modify its policies to fulfill its statutory mandate. c. 1670-1675 MHz Band 19. For the 1670-1675 MHz band, we are adopting a single nationwide license as proposed in the Service Rules Notice. 66 We believe that nationwide licensing provides licensees flexibility to develop and provide new services ubiquitously across the entire band, as currently proposed by ArrayComm, 60 See generally AMTA Comments at 2 (stating that additional spectrum is needed to address the "PLMR" community). We also note that, in 1998, the LMCC filed a petition with the Commission requesting that these bands be designated for private land mobile use. See Petition/or Rule Making filed by LMCC on April 22. 1998. 61 Spectrum Policy Statement. 17 FCC Rcd at 19878~24. 62 ld. at 19879~24. 63 See LMCC Comments at 6. 64 Licensees may afford themselves of the options of partitioning and disaggregation where it would serve their interests, and where the market pennits. In this regard. we note that a number of Personal Communications Services (PCS) licensees have utilized these options. • 5 Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59). GN Docket 01-74, Report and Order. 17 FCC Rcd 1022, 1060-61~94 (2002). 66 Service Rules Notice. 17 FCC Rcd at 2516~33. 9991 Federal Communications Commission FCC 02.152 AeroAstro, and InsideTrax. These commenters all agree that a single, five megahertz nationwide license for this band would be the most appropriate licensing approach, given the particular type of wireless services each commenter proposes to provide. 67 While NTCA and RTG oppose a nationwide licensing approach for this band, suggesting instead smaller geographic area licensing throughout the government transfer bands," we believe that nationwide licensing in the 1670-1675 MHz band serves the public interest by promoting flexibility and efficient spectrum markets and facilitates the deployment of ubiquitous, innovative communications services to the public. We also believe nationwide licensing in this band will provide economies of scale for those seeking to offer new technology.69 In this connection, we have on more. than one occasion noted that nationwide assignments are more likely to stimulate investment in new technologies and can provide a critical means ofachieving greater spectrum efficiency and promoting research and development. 7o In addition, we note that we have adopted smaller license areas in the unpaired 1390-1392 MHz band and the paired 1392-1395 MHz and 1432-1435 MHz bands in light ofthe current and proposed uses ofthose bands. d. 2385-2390 MHz band 20. For the 2385-2390 MHz band, because we believe that a prospective licensee would be able to maximize its operational flexibility through a single, five megahertz nationwide license, we are adopting our proposal to implement nationwide licensing for this band. Although commenters did not address the license size issue for this particular band, we believe that a nationwide license will provide the most flexibility to licensees and will best promote the deployment of ubiquitous and innovative communications services to the public. As we indicated above for the 1670-1675 MHz band, nationwide licensing will provide economies of scale for those seeking to offer new technology.7\ Accordingly, as with the 1670-1675 MHz band, we will award a single nationwide license for this band. 3. Spectrum Blocks 21. Background. In the Service Rules Notice, we sought comment on the appropriate amount of spectrum to be provided for each licensee, in each band, for the new services that we proposed to license on a geographic area basis. 72 The paired 1392-1395 MHz and 1432-1435 MHz bands offer a total of six megahertz of spectrum. The unpaired 1390-1392 MHz band offers a total of two megahertz of spectrum while the unpaired 1670-1675 MHz and 2385-2390 MHz bands offer a total of five megahertz of spectrum each. We sought comment on whether the spectrum in each of these bands should be licensed as one block. or broken down into two or more bandwidths, and whether there should be a mixture ofspectrum blocks, depending on the service areas used for licensing. 67 See ArrayComm, Inc. (ArrayComm) Comments at 6; AeroAstro, Inc. (AeroAstro) Comments at 5; InsideTrax (InsideTrax) Comments at 6. ArrayComm proposes to market wide-area portable wireless broadband Internet access via its new i-Burst™ and IntelliCellฎ technology. ArrayComm Comments at iv. AeroAstro proposes a "satellite-based" personal location and monitoring service that it believes would be unduly restricted by a regional licensing plan. AeroAstro Comments at 5. InsideTrax states that a nationwide license would provide it with maximum flexibility to implement its personal location and monitoring services. InsideTrax Comments at 8. 68 NTCA Comments at 2; RTG Comments at 2. 69 See Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), GN Docket No. 01ท74, Report and Order, 17 FCC Rcd 1022, 1059 (2002). 70 See. e.g., WCS Report and Order. 12 FCC Rcd at 10807.08' 45; Amendment of Part 90 of the Commission's Rules to Provide for the Use ofthe 220-222 MHz Band By the Private Land Mobile Radio Services, PR Docket No. 89-552, Report and Order, 6 FCC Rcd 2356, 2361~34 (1991). 7\ Jd. n Service Rules Notice. 17 FCC Red at 2516' 34. 9992 Federal Communications Commission a. 1390-1392 MHz band FCC 02-152 22. Discussion. While no commenters specifically addressed the spectrum block issue with respect to the 1390-1392 MHz band, we believe that using a single two megahertz block in each of the fifty-two MEAs will encourage flexible and efficient use ofthis spectrum by allowing licenses to offer the wider range of services that two megahertz, rather than one megahertz, might allow. Moreover, in those cases where a lesser bandwidth is required, licensees would be able to coordinate spectrum under their control so as to maximize its use. b. 1392-1395 MHz and 1432-1435 MHz Bands 23. We believe that the paired 1392-1395 MHz and 1432-1435 MHz bands will best be utilized by dividing each three megahertz spectrum block so that each license will consist oftwo, paired 1.5 megahertz channels from each band, totaling three megahertz of spectrum. Thus, we will award two licenses in each paired EAG. We believe that this approach equitably balances our efforts to provide additional spectrum to help relieve congestion in existing land mobile bands 73 and to promote innovation in a market driven environment. 7 ' Because having more than one licensee per market will likely enhance competition from both an equipment manufacturing as well as a service provider aspect, we believe that our approach will foster new opportunities, including prospective licensees with either more specific or localized spectrum needs. 7s c. 1427-1429.5 MHz and 1429.5 -1432 MHz Bands 24. Because we have decided not to adopt a geographic area licensing approach for services in the 1427-1432 MHz band, we need not consider the issue ofan appropriate spectrum block size for this band. Nonetheless, at this juncture we direct our attention to a separate but related spectrum aspect ofthe five megahertz at issue in this band. 25. AHA-Itron Joint Agreement. We requested comment on a band flip proposal from AHA and Itron. 76 Generally, the AHAIltron proposal" would in effect switch the primary allocation between Medical Telemetry and Telemetry in seven defined geographic areas. 78 The AHAIltron proposal also would subdivide the band into smaller segments. We tentatively concluded to adopt the terms of the AHA/ltron agreement. 79 We also proposed to add a footnote to the Table of Frequency Allocations that would elevate the telemetry allocation to primary status in the 1427-1429.5 MHz band in seven 73 Real/ocation Report and Order. 17 FCC Rcd at 391-392~~49, 51. 7. Cf 47 C.F.R. ง 27.5{bXI). We licensed the 700 MHz Guard Bands as paired 2 MHz and I MHz spectrum blocks. 75 See LMCC Comments at 5-7; AMTA Comments at 6; API Comments at7. 76 See Service Rules Notice. 17 FCC Red at'lJ'lJ 50-52. 77 See Attachment A to Itron comments. Attachment is entitled Joint Statement of Position by the American Medical Hospital Association Task Force on Medical Telemetry and Itron, Inc. (Joint Statement). 78 See Itron Comments at 7, n.24; and Itron Comments, Attachments A (Joint Statement of Position by the American Medical Hospital Association Task Force on Medical Telemetry and hron. Inc.) and B (Ex Parte Presentation, American Hospital Association Task Force on Medical Telemetry. ET Docket No. 00-221). The Joint Agreement proposes switching the primary allocation between medical telemetry and telemetry in the following locations: Pittsburgh, PA, Washington. DC metropolitan area, RichmondINorfolk. VA, Austin/Georgetown, TX, Battle Creek, MI, Detroit, MI and Spokane, WA. 79 See Service Rules Notice. 17 FCC Red at 'lJ 52. 9993 Federal Communications Commission FCC 02-152 geographic areas and elevate WMTs as primary in the corresponding seven geographic areas in the 1429.5-1432 MHz band. so 26. We agree with the majority of commenters that support the "band flip" proposal from AHA and Itron. 81 We are particularly encouraged that AHA and Itron were able to address concerns regarding potential interference issues and devise a plan for submission to the Commission. In commenting on its own proposal, AHA states that the Commission did not fully implement the AHA Itron "band flip" proposal with regard to an integral element of the agreement. Accordingly, AHA now requests that the Commission reassess the band proposal. 82 AHA states that the Commission should modify slightly the proposal put forth in the Service Rules Notice to provide greater protection for WMTS from high power operations in the upper-adjacent 1432-1435 MHz band. 83 Specifically, AHA requests that we shift the bandwidth in which WMTS is primary in seven geographic carve out areas from the 1429.5-1432 MHz to the 1429-1431.5 MHz band segment. Under this slight refinement, primary telemetry operating in the corresponding seven geographic carve out areas would occupy the 1427-1429 MHz and 1431.5-1432 MHz portions of this band. AHA indicates that this "flip" to the "inside of the telemetry allocation" will provide a guard band of 0.5 MHz to protect WMTS from potentially higher powered land mobile operations in the 1432-1435 MHz band. 84 In addition, this 0.5 MHz shift can be made without adversely affecting telemetry operations in this band. 8S Because we find that this refinement to the AHA-Itron proposal would enhance protection of WMTS throughout the 1.4 GHz band without disturbing the integrity ofthe licensing scheme for this band, we adopt AHA's refinement. d. 1670-1675 MHz Band 27. As proposed in the Service Rules Notice, we will license the 1670-1675 MHz band as a single, five megahertz spectrum block. 86 This approach is consistent with the comments received on the issue and also logically follows our decision to license this band as a single, nationwide Iicense. 87 As a few commenters noted, dividing this spectrum into two or more blocks might discourage "new entry and investment" in this frequency band. 88 Accordingly, because we seek to encourage the development and implementation ofnew and innovative services, and we believe that our approach to license this band as a single, five megahertz spectrum block is therefore warranted. 80 Jd 81 See Itron Comments at " AHA comments at 5-6, UTC Comments at 4, Spacelabs Comments at 2. 82 AHA Comments at 6. 8) Jd at 6-1. 84 Jd. at 6. 8S We note that this shift in the seven geographic "carve-out" areas to allow telemetry to operate in the upper 0.5 MHz portion of the 1421-1432 MHz band is consistent with the allocation for telemetry outside the seven geographic "carve-out" areas where telemetry operates in the 1429.5-1432 MHz band adjacent high powered systems in the 1432-1435 MHz band. 86 Service Rules Notice. 11 FCC Rcd at 2516~35. 87 See ArrayComm Comments at 1; Insidetrax Comments at 5. 88 ArrayComm Comments at 8; see a/so Insidetrax Comments at 6-1. 9994 Federal Communications Commission e. 2385-2390 MHz Band FCC 02-152 28. For reasons similar to those articulated with regard to the 1670-1675 MHz band, we will adopt our proposal to license the 2385-2390 MHz band as a single, five megahertz spectrum block. 89 Although commenters did not address the issue ofspectrum blocks in this particular band, we believe that our approach here is consistent with our prior decision to license this band as a single, nationwide license. We believe that this approach will pennit a licensee maximum operational flexibility to utilize this spectrum in new and innovative ways. 4. Assignment of Licenses 29. Background. The Balanced Budget Act of 1997 revised the Commission's auction authority.90 Specifically, it amended Section 309(j) ofthe Act to require the Commission to grant licenses through the use ofcompetitive bidding when mutuallt' exclusive applications for initial licenses are filed, unless certain specific statutory exemptions apply.9 The BBA-97 also added to Section 309(j)( I) a reference to the Commission's obligation under Section 309(j)(6)(E) to use engineering solutions, negotiation, threshold qualifications, service regulations, or other means to avoid mutual exclusivity where it is in the public interest to do SO.92 BBA-97 did not amend Section 309(j)(3)'sdiR~tiveto consider certain public interest objectives in identifying classes of licenses and pennits to be issued by competitive bidding. 93 30. In the BBA Report and Order, the Commission established a framework for exercise of its auction authority, as amended by the Balanced Budget Act. 94 In identifying which classes of licenses should be subject to competitive bidding, the BBA Report and Order affinned that the Commission is required to pursue the public interest objectives set forth in Section 309(j)(3).9S As part of this public interest analysis, the BBA Report and Order also affinned that the Commission must continue to consider alternative procedures that avoid or reduce the likelihood of mutual exclusivity.96 The Commission concluded, however, that its obligation to avoid mutual exclusivity does not preclude it from adopting licensing processes in the non-exempt services that result in the filing of mutually exclusive applications where it detennines that such an approach would serve the public interest. 97 89 Service Rules Notice. 17 FCC Rcd at 2516 '\135. 90 See 47 U.S.c. ง 309(j)(I), (2) (as amended by Balanced Budget Act. ง 3002). As explained above, in BBA-97, Congress also directed the Secretary of Commerce to identify spectrum for transfer to non-Government use to be assigned in compliance with Section 309(j). NTIA identified the 216-220 MHz, 1432-1435 MHz. and 2385-2390 MHz bands. See supra '\12. 91 Id. 47 U.S.C. ง 309(j)(2) exempts from auctions licenses and construction permits for public safety radio services, digital television service licenses and permits given to existing terrestrial broadcast licensees to replace their analog television service licenses, and licenses and, ทnsrruction permits for noncommercial educational broadcast stations and public broadcast stations described in 47 U.S.c. ง 397(6) of the Communications Act. 92 See 47 U.S.C. งง 309(j)(I), 309(j)(6)(E). 93 See 47 U.S.c. ง 309(j)(3). 94 See Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as Amended, Report and Order and Further Notice of Proposed Rule Making, WT Docket No. 99-87, 15 FCC Rcd 22709 (1999) (BBA Report and Order). 9S Id. at 22718-22723 '\1'\120-27. 96 Id. 97 / d. 9995 Federal Communications Commission FCC 02-152 31. In detennining whether to assign licenses through competitive bidding in this proceeding, we intend to foIlow the approach set forth in the Balanced Budget Act proceeding regarding the exercise ofour auction authority. We note, too, that subsequent to the adoption of the Balanced Budget Act, the U.S. Court of Appeals for the D.C. Circuit concluded that the Section 3090X6)(E) obligation does not foreclose new licensing schemes that are likely to result in mutual exclusivity.98 The court stated that if the Commission finds such schemes to be in the public interest, it may implement them "without regard to [S]ection 3090X6XE) which imposes an obligation only to minimize mutual exclusivity 'in the public interest,' and 'within the framework ofexisting policies."'99 32. Discussion. We agree with the majority of commenters who support our tentative proposal in the Service Rules Notice to adopt a geographic area licensing scheme for the paired 1392 1395 MHz and 1432-1435 MHz bands, the unpaired 1670-1675 MHz band and the unpaired 2385-2390 MHz band. lOo As discussed in Section IV.A.2., supra, we believe that the geographic licensing areas we are designating for these bands will promote the objectives of Section 309GX3) includingpromotin~ economic opportunities and competition by disseminating licenses among a wide variety ofapplicants. 10 Because we find that it would serve the public interest to implement a geographic area licensing scheme, under which mutual exclusivity is possible, we must resolve mutuaIly exclusive applications for initial licenses in the paired 1392-1395 MHz and 1432-1435 MHz bands, the unpaired 1670-1675 MHz band and the unpaired 2385-2390 MHz band through competitive bidding. 33. We also adopt our tentative proposal in the Service Rules Notice to license the unpaired 1390-1392 MHz band for terrestrial use based on geographic areas. 102 We have aIlocated the 1390-1392 MHz band for fixed and mobile, except aeronautical mobile, services. We also have allocated this band for satellite (uplink) service, but only on a conditional basis. ,03 Because the satellite aIlocation in this band will not become effective until the U.S. first secures an international allocation, any future licensing of such satellite services would be addressed in a separate rulemaking proceeding. '04 Thus, because we find the public interest will be served by adopting a geographic area licensing scheme that pennits the filing of mutuaIly exclusive applications for terrestrial services in the 1390-1392 MHz band, we also find it will be consistent with our statutory mandate to resolve any such mutually 'exclusive applications accepted for filing by competitive bidding. 34. We will not receive mutuaIly exclusive applications for WMTS licenses in the unpaired 1427-1429.5 MHz band or in the seven geographic "carve-out" areas in the 1429-1431.5 MHz band because WMTS is licensed by rule under Part 95 and required to coordinate. lOs Thus, our statutory 98 See Benkelman Telephone Co., et aJ. v. FCC. 220 F.3d 601. 606 (D.C. Cir. 2000), petition/or rehearing on other grounds pending. 99 Id (citations omitted) (citing DlRECTV, Inc. v. FCC. 110 F.3d 816, 828 (D.C. Cir. 1997ป. 100 See e.g., ArrayComm Comments at 6, InsideTrax Comments at 6, AeroAstro Comments at 5. AMTA Comments at 6. But see Spacelabs Comments at 4 (supporting site-by-site licensing), Watchman Reply Comments at 2 (stating that a siteทby-site licensing scheme may be more appropriate for agricultural services). 101 Seesupra~13-18; 47 U.S.c. ง 3090)(3). '02 Service Rules Notice, 17 FCC Rcd at 2514" 29. 103 MSS Feeder Uplinks and Downlinks are contingent on the adoption of an international allocation and other conditions. See 47 C.F.R. ง 2.106, footnote US368. 104 See Real/ocation Report and Order, 17 FCC Rcd at 389-394~46-58. lOS 47 C.F.R. ง 95.1101, el seq. 9996 Federal CommuMcations Commission FCC 02-152 obligation to use competitive bidding under Section 309(j) is not applicable to the assignment of WMTS licenses in these portions ofthe 1.4 GHz band. 106 35. We note that the 217-218 MHz band will be paired with the 219-220 MHz band for licenses in the AMTS service, and that the rules for assigning licenses will be addressed in a separate rulemaking proceeding. I07 The 218-219 MHz band is licensed as the 218-219 MHz Service and the competitive bidding rules were established in a prior proceeding.lOS In addition, because we have allocated the 216-217 MHz portion of the band for LPRS, which is licensed by rule under Part 95 of our Rules, there will be no mutually exclusive applications and therefore no competitive bidding under Section 309(j).109 36. We also note that aPflications in these terrestrial services will be filed using the Universal Licensing System (ULS)." ULS is the Commission's automated licensing system and integrated database for wireless terrestrial services. ULS includes consolidated applications forms, which will enable licensees and applicants to file applications electronically, thus increasing the speed and efficiency ofthe application process. All licensees filing applications and other filings using FCC Forms 601 through 605 or associated schedules must make these filings in accordance with ULS." 1 Use ofULS will permit Commission staff to process filings more efficiently and will enhance the availability of pertinent licensing information to the public. 5. Flexible Use 37. Background. In the Service Rules lVotice, we sought comment on "approaches by which we may permit more flexible use of the spectrum" reallocated to non-government use in this proceeding. 1I2 We also proposed a licensing construct that would afford licensees maximum flexibility to promote efficient spectrum use and the development of more efficient spectrum markets. 1IJ In this connection, for the frequency bands that we proposed to license on a geographic area basis, we proposed to permit an entity to hold a Commission license as either a traditional licensee"ท or as a band manager." S 106 47 V.S.c. ง 309(j). 107 See AMTS Fourth R&O and Third NPRM. supra note 17. 108 See Amendment of Part 95 of the Commission's Rules to Provide Regulanory Flexibility in the 218-219 MHz Service, WT Docket No. 98-169. Report and Order and Memorandum Opinion and Order. 15 FCC Rcd 1497, 1558-1560~~116-121 (1999)(218-219 MH= Report and Order). See also 47 C.F.R. ง 95.816. 109 See Reallocation Report and Order. 17 FCC Rcd at t'., 22-26. See also supra note 28. 110 Biennial Regulatory Review -- Amendment of Pans O. I. 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). III 47C.F.R. ง 1.913(b). 112 Service Rules Notice. 17 FCC Rcd at 2517~38. 113 [d.; see supra~,;10-11. 114 A traditional licensee could be a commercial provider of wireless telecommunications services. or serve its own telecommunications needs. liS A band manager would act as a "spectrum broker" with the ability to lease the rights to use its licensed spectrum to third parties through private. contractual agreements, without having to secure prior approval by the Commission," Sen-ice Rules :Votice. J7 FCC Rcd at 25 J7~39. 9997 Federal Communications Commission FCC 02-152 38. Discussion. As discussed supra, we have adopted a geographic area licensing approach for the paired 1392-1395 MHz and 1432-1435 MHz bands and the unpaired 1390-1392 MHz, 1670-1675 MHz and 2385-2390 MHz bands. In light of this decision, we believe that licensees should be afforded optimal ability to develop and deploy the spectrum for a variety of uses, subject to our allocation116 and technical requirements. 1I7 We further believe that the most appropriate mechanism to provide such flexibility in these bands is by allowing licensees to avail themselves of both traditional licensing and band manager options.liS This licensing approach is consistent with our goals of promoting spectrum efficiency and diversity of uses. Within this framework, we recognize the potential viability of a band manager as a permissive use that constitutes one ofmany approaches to spectrum management.I 19 39. Subject to the rules we are adopting herein, licensees operating as band managers will be qualified to engage in spectrum leasing activities, as defined below, and subject to the outcome of our pending Secondary Markets Proceeding. 120 The band manager aEProach here represents a conceptual outgrowth from our earlier decision in the 700 MHz Proceeding.' I We are therefore applying the 700 MHz Guard Band Manager rules with some exceptions. 122 Specifically, we will not apply the following rules to the band managers in these frequency bands: (i) Section 27.2(b)'s prohibition against employing a cellular system architecture;123 (ii) Section 27.601(d)'s requirement to notify public safety frequency coordinators;124 (iii) Section 27.603(c)'s requirement that band managers must lease a predominant amount of spectrum to non-affiliates;12l (iv) Section 27.604's limitations on licenses won at auction;'26 and (v) Section 27.605's restrictions on partitioning and disaggregation. 127 We believe that our limited departure from some of the Part 27 band manager rules in this instance is consistent with our goal of providing the licensees with optimal flexibility and will accommodate a variety of business plans. This 1.6 See Reallocation Report and Order, supra note 2. 117 See Section IV.D. Technical Rules, infra. 118 See. e.g.. ITA Comments at4; LMCC Comments at 4 and American Petroleum Comments at 7, (supporting band manager licensing of the paired 1392-1395 MHz and 1432-1435 MHz bands.) But see ArrayComm Comments at 8 and AeroAstro Comments at 6 (opposing band manager licensing ofthe 1670-1675 MHz band). 119 We have previously recognized that band manager licensing can "increase the diversity of users of private spectrum ... with fewer transactional costs and regulatory burdens..... BBA Report and Order at 2517~39. See generallv "700 MHz Guard Band Auction Closes - Winning Bidder Announced," Report No. AUC-38-F, Public Notice. DA 01-478 (reI. February 22, 2001) (announcing winning bidders). Access Spectrum, LLC was a winning bidder in this auction and currently operates as a Guard Band Manager licensee in the 700 MHz band. 120 See Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets, WT Docket No. 00-230, Notice ofProposed Rule Making 15 FCC Rcd 24.203 (2000) (Secondary Markets Notice). We note that traditional licensees in this band who want to engage in spectrum leasing arrangements will also be governed by the ultimate outcome ofthe Secondary Markets Proceeding. '2' 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) 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 (2000) (700 MHz Second Report and Order). 122 See generally 47 C.F.R. Part 27 - Miscellaneous Wireless Communications Services (Subpart G). •23 47 C.F.R. ง 27.2(b). •24 47 C.F.R. ง 27.601(d). 12l 47 C.F.R. ง 27.603. 126 47 C.F.R. ง 27.604. m 47 C.F.R. ง 27.605. 9998 Federal Communications Commission FCC 02-152 departure also recognizes differences in the technical and coordination considerations between the 700 MHz band and the bands at issue here. For example, as ArrayComm states, a cellular architecture, in the absence ofthe particular public safety concerns we faced in licensing the 700 MHz band,128 may actually facilitate the protection ofadjacent band services. 129 6. Site-by-Site Licensing 40. The Commission historically has licensed telemetry operations in the 217-220 MHz and 1427-1432 MHz bands on a site-by-site basis under Pan 90 of our rules. 130 Pursuant to 3090> of the Communications Act, as amended, the Commission has the flexibility to continue to make determinations "on a service-by-service basis ofwhether to adopt geographic area licensing, site-bx-site licensing, or any other licensing scheme" based upon our statutory public interest obligations. I I In making such a determination, we also recognize that, as part of our public interest analysis, we should "give significant consideration to the effectiveness ofthe existing licensing mechanism that avoids mutual exclusivity, and should weigh the potential costs ofchanging such mechanisms against the potential benefits."m a. Secondary Telemetry (217-220 MHz and 1427-1429.5 MHz) 41. In the Service Rules Notice, we tentatively concluded that it would not serve the public interest goals of Section 309GX3) to license secondary telemetry on a geographic area basis in the 217 220 MHz and 1427-1429.5 MHz bands and within the seven geographic "carve-out" areas in the 1429 1431.5 MHz band. 133 While we generally favor geographic area licensing for new services, we indicated that that this type oflicensing approach is not appropriate for every licensing situation. 134 42. In this connection, we note that the majority of commenters to this proceeding favor the retention ofa site-by-site licensing method for secondary telemetry in the 217-220 MHz and 1427-1429.5 MHz bands and within the seven geographic "carve-out" areas in the 1429-1431.5 MHz band. 1lS In this instance, we note that the secondary status of telemetry operators in the 217-220 MHz band means that they must not cause harmful interference to the primary operations of AMTS and the 218-219 MHz Service. Similarly, the secondary status of non-medical telemetry operators in the 1427-1429.5 MHz band and within the seven geographic "carve-out" areas in the 1429-1431.5 MHz band means that they must not cause harmful interference to the primary operations of WMTS. Because secondary operations 121 In the 700 MHz Second Report and Order, the Commission prohibited this type of system design because, based on the record in that proceeding, we were concerned with protecting adjacent channel public safety operations. 700 MHz Second Report and Order, 15 FCC Rcd at~19. 129 See ArrayComm Comments at 33. ArrayComm states that a cellular architecture established around a system of base stations whose downlink coverage areas can be limited in conjunction with mobile stations operating on a "listen before talk" protocol may help ensure interference to adjacent band systems. Id. citing ArrayComm Comments filed in ET Docket 00-221 at 29. Cj Itron Reply Comments at 10 (stating that that prohibiting a cellular architecture in the 1427-1432 MHz band would not help protect Government operations or radio astronomy monitoring stations). 130 See 47 C.F.R. ง 90.259. To date, these operations have not been coordinated. Service Rules Notice. FCC Rcd at 2S26~64. 131 See BBA Report and Order. 15 FCC Rcd at 22725~31. See also 47 U.S.c. ง 309(j). 132 BBA Report and Order, 15 FCC Rcd at 22723~27; Service Rules Notice. 17 FCC Rcd at 2523-24~58. 133 Service Rules Notice. 17 FCC Red at 2524~59. 134 [d. IJ5 See Paging Systems Comments at 5-6; Spacelabs Comments at 3. 9999 Federal Communications Commission FCC 02-152 must always defer to primary operations, we do not believe it would be feasible to license secondary operations by geographic overlay in an environment where primary incumbents have preference and may generally increase operations without prior Commission approval. In addition, we believe the future development of primary services such as AMTS, the 218-219 MHz Service and WMTS could be unduly hindered by possible interference problems associated with geographically-licensed secondary telemetry.l36 We therefore adopt our tentative conclusion to retain a site-by-site licensing approach under Part 90 ofour Rules for secondary telemetry applicants in the 217-220 MHz and 1427-1429.5 MHz bands and within the seven geographic "carve-out" areas in the 1429-1431.5 MHz band. 1J7 43. For the reasons stated above, we will prohibit site-by-site telemetry 0.wrating on a secondary basis from specifying operations over a wide area ll8 or on an itinerant basis: 9 Rather, we believe that secondary telemetry operators should specify their area of normal day-t We indicated that NTIA proposed a 65-kilorneter protection radii around the Greenbelt, MO facil ity 507 We sought comment on the protection radii.,o8 Further, we proposed to require all fixed and mobile licensees to coordinate operations within the NTIA protection radii. 509 Under this proposal. we envisioned that coordination would take place hefore the activation of 502 See Service Rules Notice. 17 FCC Rcd at 2545-46~~126-129 SOl See Reallocation Report and Order. 17 FCC Rcd at 399-400~73. 504 See Service Rules Notice. 17 FCC Rcd at 2546-47 '\1'\1130-134. 505 Id at 2546 '\I 130 S06/d. 501 1 d at 2546 '\1131. 508 Id 509 Id 10041 Federal Communications Commission FCC 02-152 new facilities or any modifications to eXIsting facilities. We indicated that we believed that the coordination procedures established for the METSAT facilities located at Wallops Island, VA and Fairbanks, AK would also suffice for the Greenbelt, MD facility.slO Finally, we noted that protection of the Greenbelt, MD site is necessary only while the station is in operation. slI Therefore, we proposed that the 1670-1675 MHz licensee would be required to reduce power or shut down any fixed site or mobile unit located within the coordination zone and which could cause interference to the Greenbelt, MD facility, when the Greenbelt, MD facility is active.SI2 163. Discussion. Protection Radii. We believe that the 65-kilometers protection radius approach is appropriate because licensees in the 1670-1675 MHz band have the flexibility to operate fixed sites up to a maximum power of2000 watts EIRP. InsideTrax does not believe that a 65-kilometers radius of protection around the Greenbelt, MD site is necessary.SIl IllsideTrax states that protection radius should take into account the nature of the transmitters, rather then setting a single Iimit. S14 InsideTrax believes that a 16-kilometer zone may be more appropriate for low-power, low duty-cycle devices. SIS We note, however, that the 65-kilometer radius will provide the Greenbelt, MD facility protection from both high powered and low powered operation. Further, the 65-kilometer radius is a protection zone rather then an exclusion zone, thus providing the 1670-1675 MHz licensee with greater flexibility and regulatory certainty to coordinate operation within the 65-kilometer radius than would be provided by a protection zone detennined by the type of transmitters deployed. 164. Coordination ofFixed and Mobile. We received no comments opposed to our proposal to coordinate all fixed and mobile sites. Consequently, we will implement our plan to require all fixed and mobile licensees operating in the 1670-1675 MHz band to coordinate operations within the NTIA protection radii. As we indicated in the Service Rules Notice, under this proposed plan, coordination would take place before the activation of new facilities or any modifications to existing facilities. As we indicated in a previous section, coordination of multiple fixed sites and mobile units may be perfonned via a single application. 165. Coordination Procedures. Based on the record before us, we will implement the same coordination procedures for Greenbelt, MD that were established in the Reallocation Report and Order for Wallops Island, VA and Fairbanks, AK. s'b These procedures are listed in Section 1.924(f).S17 We believe these procedures are appropriate because they offer the 1670-1675 MHz licensee maximum flexibility. Section 1.924(f) requires the 1670-1675 MHz licensee to notify the National Oceanic and Atmospheric Administration (NOAA) of operations that require coordination. SIS The 1670-1675 MHz licensee must then file an application with the Commission requesting an individual station license. S19 The Commission allows a 20-day period for objections to be filed. S'OId. al 2546' 132. 51' ld. at 2546' 133. 5'" ld. SI3 InsideTrax Comments at 13. s" ld. SIS Id. 5'. See Reallocations Report and Order, 17 FCC Red at 399-400' 73. m 47 C.F.R. ง 1.924(0. SIB ld. 5,9 See discussion supra Section IV.B.7. 10042 Federal Communications Commission FCC 02-152 166. We believe that maximum flexibility is needed with coordination because we do not know what kind oftechnology will eventually be employed in this band. We note that each commenter who discusses the 1670-1675 MHz band proposes a different technology.s20 We also note that each commenter proposes a different method to protect Greenbelt, MD facility from harmful interference. S21 Under the procedures described above the eventual licensee will be able to negotiate directly with NOAA to establish protection. Consequently, we will decline to adopt ArrayComm's additional refinements to the coordination procedure. 167. ArrayComm states that the coordination procedures for established for Wallops Island, VA and Fairbanks, AK are applicable to the Greenbelt, MD facility, provided that additional refinements to the coordination procedures are adopted. m Specifically, ArrayComm proposes a coordination procedure whereby, prior to operation ofany site within the protection radii, the 1670-1675 MHz licensee would prepare a plan or model, based on a generally accepted cellular planning tool, ofall proposed base stations and mobile units. m The results of this modeling plan would be submitted to NOAA prior to operation for verification and testing at the Greenbelt, MD facility.m The Government operator would then have 30 days to complete and verify the measurements. m Under ArrayComm's proposal, the Government operator would also notify the 1670-1675 MHz licensee within 30 days of any scheduled Government operation at the Greenbelt, MD facility.s26 Additionally, in the event that the Greenbelt, MD facility is activated unexpectedly, the ArrayComm proposal would require the Government operator to alert the 1670-1675 MHz licensee. In those instances where the facility is activated unexpectedly, ArrayComm suggests that the 1670-1675 MHz licensee be afforded 120 minutes to transition to a mode where protection is provided to the Greenbelt, MD facility.m 168. We believe that the coordination procedures put forth by ArrayComm would limit a licensee's flexibility to negotiate alternative methods for protection. S28 While we decline to incorporate ArrayComm's suggestion, we note that under the procedures adopted here the 1670-1675 MHz licensee is free to negotiate any procedures with NOAA. AeroAstro states that they accept the need to undertake coordination prior to operation in the 1670-1675 MHz band. 529 AeroAstro states that theywill work with NOAA to reduce coordination zones around METSAT facilities Bo In addition, AeroAstro states that S20 See. e.g., ArrayComm Comments; InsideTrax Comments; AeroAstro Comments. m InsideTrax Comments at 13 (requesting a 16 kilometer coordination zone for low-power devices), AeroAstro Comments at 9-10 (proposing a scheme in lieu of coordination whereby transmitters automatically cease operation within coordination zone), ArrayComm Comments at 35 (supporting coordination based on generally accepted cellular planning tool.) m ArrayComm Comments at 35. m See attachment to Ex Parte Letter from Randall S. Coleman, ArrayComm, to Magalie Roman Salas, Secretary, Federal Communications Commission, dated December 21. 200 I. S2_ Id. at 3-4. mId. S261d. at 3. mId. at 2. S28 See InsideTrax Reply Comments at II (advocating a more progressive rule based on the output power of the licensed service). S29 AeroAstro Comments at 9. SJO Id. at 10. 10043 Federal Communications Commission FCC 02-152 they may propose a scheme in lieu of coordination whereby transmitters automatically cease operation within coordination zones. l3I 169. Protection needed when active. The Greenbelt, MD facility serves as a back up to the Wallops Island, VA facility and is therefore inactive most of the time. This facility is operational for testing purposes approximately once per month. ArrayComm states that protection should be afforded to the Greenbelt, MD facility only during the periods when it is in use. m In addition, ArrayComm believes that commercial operation in the vicinity should otherwise be allowed to exceed special protection criteria. 53J We agree with ArrayComm and we will indicate in our rules that protection of the Greenbelt, MD facility is necessary only while the station is in operation. Therefore, as we proposed in the Service Rules Notice, 1670-1675 MHz licensee will be required to reduce power or shut down any fixed site or mobile unit located within the coordination zone and which could cause interference to the Greenbelt, MD facility, only when the Greenbelt, MD facility is active. Conversely, when this facility is inactive, the 1670-1675 MHz licensee will be permitted to operate fixed and mobile units that exceed the designated protection criteria without prior coordination. We believe that these procedures strike an appropriate balance that both supports existing Government operations and promotes the opportunity for new licensees to offer services in this band to the Washington, DC-Baltimore, MD metropolitan areas. 4. Flight Test Telemetry' 170. Background, In the Reallocation Report and Order, we indicated that new entrants to the 2385-2390 MHz band would need to protect nine non-Governmental aeronautical flight test sites until 2007. 134 Accordingly, we sought comment on the best method for coordinating operations between licensees in the 2385ท2390 MHz band and incumbent non-Government aeronautical flight test telemetry operations. 535 The nine non-Governmental aeronautical flight test sites for which we established protection radii are listed in footnote US363 of Section 2.106 ofour Rules. SJ6 171. We proposed a procedure to require operations in the 2385-2390 MHz band to be coordinated with the Aerospace and Flight Test Radio Coordinating Council (AFTRCC).m Under this proposal. licensees in the 2385-2390 MHz band would be required to coordinate fixed and mobile operations within the protection radii of the non-Government aeronautical flight test sites listed in footnote US363 of Section 2.106. 5 . 18 We proposed that upon receipt of the 2385-2390 MHz licensee's filing ofits application, including all pertinent technical information regarding the proposed operation via the ULS, we would refer the application to AFTRCC for coordination. m Only upon AFTRCC approval of the application would we then issue an individual station license for the application referred to AFTRCC. 531 Id. m ArrayComm Comments at 35 .. mid 5H Real/ocolion Reporl and Order, 17 FCC Rcd at 399 'Ii 71. m See Service Rules NOlice, 17 FCC Rcd at 2547 'Ii 137. 5J" 47 C.F.R. ง 2.106. footnote US363. l)7 See Service Rules Nolice, 17 FCC Rcd at 2548 'Ii 138. AFTRCC is an association of aerospace companies engaged in the design, development. manufacturing and testing of commercial and military aircraft, space vehicles, missiles and weapons systems. AFTRCC Comments at 2. mid 5J9 1d \0044 Federal Communications Commission FCC 02-152 172. Discussion. We are adopting our proposal in general, with a slight modification as proposed by AFTRCC because this approach will facilitate a more streamlined processing mechanism than the approach we proposed in the Service Rules Notice. s4o Thus, under the coordination procedures we are adopting here, prospective operators will contact AFTRCC to secure a frequency recommendation prior to filing an application with the Commission. s41 We believe that this approach is consistent with existing procedures and facilitates the resolution of potential interference problems before an application is formally filed. s42 According, we will require licensees in the 2185-2390 MHz band to receive AFTRCC approval before filing an application via the ULS. 143 173. Thus, under the coordination rules we adopt herein. licensee in the 2385-2390 MHz band will be required to coordinate fixed and mobile operations within the protection radii of the non Government aeronautical flight test sites listed in footnote US363 of Section 2.106 of our rules. An individual station license will be issued for each coordinated operation. Further. licensees will need to obtain approval from AFTRCC prior to filing an application for an individual station license via the ULS. Applications filed in our ULS should contain all relevant technical information regarding the proposed operation. Additionally, all applications requiring AFTRCC approval must contain a statement that AFTRCC approval was obtained. 174. On a separate but related issue, AFTRCC expresses concern that out-of-band emissions from the 1432-1435 MHz band could affect upper adjacent-band flight test operations in the 1435-1525 MHz band and that out-of-band emissions from the 2385-2390 MHz band could effect lower adjacent band flight test operations in the 2360-2390 MHz band,s.. To limit adjacent-band interference, AFTRCC suggest that we also require licensees in the 1432-1435 MHz and 2385-2390 MHz bands 10 coordinate their operations within the protection radii of the non-Government aeronautical flight test sites listed in footnote US363 of Section 2. 106. s4s AFTRCC suggests that the basis for coordination be determined by power flux density limits at the receiver site of the flight test telemetry operation,s4. 175. Although we recognize the importance of aeronautical flight test telemetry, we believe that imposing AFTRCC's coordination requirements on licensees in the 1432-1435 MHz and 2385-2390 MHz bands would be onerous and potentially harmful to the viability ofoperations in these bands overall. Because we believe that the existing coordination procedures, which require coordination of in-band 2385-2390 MHz operations within 160 kilometers (100 miles) of each flight test site. is adequate protection, we will decline to incorporate AFTRCC's instant adjacent-band coordination proposal. Rather, we believe that the more appropriate approach is to afford aeronautical flight test telemetry operations protections from adjacent-band interference only to the extent that such radiation exceeds the limits on out-of-band emissions established for that service. Because there are a limited number of sites where aeronautical flight test operations may arise. we believe that such operations can be accommodated on a case-by-case basis. 140 AFTRCC Comments at 6-8. S41 Id. at 7. S4~Id. S4) See id. at 7-8. 144 [d. at 5. S4S [d. at 5. 1ททId. 10045 Federal Communications Commission 5. Canada and Mexico Coordination FCC 02-152 176. In the Service Rules Notice. we proposed certain interim requirements for terrestrial licenses along Mexico and Canada borders. We stated that the U.S. currently does not have agreements with Canada and Mexico covering the paired 1391-1395 MHz and 1432-1435 MHz bands or theun~aired 216-220 MHz, 1390-ท1392 MHz, 1427-1432 MHz, 1670-1675 MHz and 2385-2390 MHz bands. s4 We tentatively concluded that until such time as agreements are completed, licensees should operate at specific emission levels at the border. s48 177. After careful consideration, we have decided to decline adoption of an emission limit at the border. Rather, in order to provide the most flexibility to licensees near the border areas, we have decided that "near the border" .licensees must protect stations in Canada and Mexico from harmful interference. This will permit licensees to maximize their operations depending on the spectrum use, terrain, and other factors at the border areas, while still protecting operations across the border. We note, however, that operation in the paired 1391-1395 MHz and 1431-1435 MHz bands and the unpaired 216 220 MHz, 1390-1392 MHz, 1427-1432 MHz, 1670-1675 MHz and 1385-2390 MHz bands may be subject to future agreements with Canada and Mexico and therefore may be subject to further modification F. Other Proposals 1. 216-220 MHz Band a. Data Flow 178. Background. In the Sen'ice Rules Notice. we sought comment on Data Flow's Petition requesting that the Commission amend Sections 90.35 and 90.159 of the Commission's Rules. s49 Specifically, Data Flow requests that the "Class of Stations" column for frequency band 216-220 of the Industrial/Business Pool Frequency Table in Section 90.35. be amended from "Base or mobile" to "Fixed, base, or mobile."sso Data Flow Systems also requests that Section 90.259 be amended to substitute the word "shall" for "may" to read as follows: "Base stations authorized in these bands may be used to perform telecommand functions with associated mobile telemetering stations."SS1 179. Discussion. We take this opportunity to rectify the apparent uncertainty here by amending Section 90.35(b) of our rules to permit secondary telemetry operators the flexibility to utilize m The 216-220 MHz band is currently covered in an agreement with Canada for operations above 30 MHz. This agreement. though. applies only to Fixed Installation Radars in the 216-220 MHz band and would therefore not be applicable to the current planned use. A separate agreement will have to be negotiated for non-radar uses. See USA: Treaties and Other International Acts Senes (TIAS) 5105: CAN: COllado Treaty Series (CTS) 1962 No. 15. Agreement Between the United States ofAmerica and Canada Revising the Technical Annex to the Agreement of Octoher].l. 1962 (TIAS 52051CTS 1962 No. 15). Effected by Exchange of Notes at Ottawa, Canada, June 16 and 24. 1965. Entered into force June 24. 1965. USA: T1AS 5833/CAN: CTS 1962 No. 15. as amended June 24, 1965. 548 See ArrayComm Comments at 33. ArrayComm believes that the 47 dBuV/m field strength limit for the 1670 1675 MHz band would provide adequate protection for a wide range of co-channel commercial services in Canada and Mexico. '49 Data Flow Petition at 3. Data Flow is a Florida corporation that manufactures and sells Supervisory Control and Data Acquisition (SCADA) telemetry systems to public and private water utility companies throughout the United States. Id. sso Id. See 47 C.F.R. ง 90.35. SSI 47 C.F.R. ง 90.259 (emphasis added). 10046 Federal Communications Commission FCC 02-152 this band. Accordingly, we grant Data Flow's petition, in part, and hereby amend section 90.35(b) to include fixed uses in the 217-220 MHz band. We also deny, in part, Data Flow's request with regard to the 216-217 MHz portion of the band. Because we reallocated the 216-217 MHz portion of the band to LPRS, we will not grant new licenses in this portion ofthe band. ss1 We believe that the changes we adopt here will enhance the use' of the 217-220 MHz band for radio services provided by utilities and pipeline companies. lS3 We further believe that these amendments will remove any uncertainty regarding whether fixed telemetry can operate in the 217-220 MHz portion ofthe band under the Commission's rules. ss , 180. Mobex opposes Data Flow's proposed amendments. Mobex, citing a 1971 Commission rulemaking, states that historically, the Commission has made no provision for fixed uses in this band. sss We note, however, that the circumstances surrounding the use of this band since our 1971 rulemaking have not remained static. Other than SPASUR, since 1971, the Federal Government has ceased to use this band for high-powered radiolocation. Additionally. in light of this band's reallocation to non-Federal Government use and growing congestion and scarcity of spectrum that provide important public utility services, we believe that Data Flow's petition is both timely and relevant to this proceeding. Both the technological capabilities as well as the applicable scope of telemetering services throughout this band have matured significantly. 181. PSI believes that if the Commission grants Data Flow's request, it should also adopt coordination requirements for fixed telemetry operations that mirror those requirements adopted for secondary amateur stations under section 97.303(e) of our rules 5s6 We disagree. We do not currently require mobile telemetry operations in the band to follow such stringent coordination requirements, and we find no reason to adopt such requirements here. Rather. we believe that frequency coordination under Section 90.175 of our rules, coupled with a requirement on the fixed telemetry operator to notify the geographic area licensee, is more than adequate to protect primary operations in the band. 182. In response to the Service Rules No/ice. Data Flow also submits a new request, separate and apart, from its initial petition for rulemaking. In its latest filings to this proceeding, Data Flow requests that water utility telemetry be limited to the 217-220 MHz band and that it correspondingly be upgraded from secondary to primary.ss; Data Flow points out that water utility companies utilize fixed telemetry to ensure safe drinking water for the public and to protect the environment from contaminated runoff. S58 Data Flow contends that because of the dearth of satisfactory channels available in the 150-174 MHz or 450-470 MHz bands, water utility companies have needed to use the 216-220 MHz band for '10 In the Reallocation Report and Order. we recognized the important functions LPRS provides to the public. Accordingly. in allocating the 216-217 MHz to LPRS. we decided to cease licensing new non-LPRS in this band on either a primary or secondary basis so as to afford LPRS maximum protection from harmful interference. without having to impose additional technical or regulatory restrictions. Reallocation Report and Order. 17 FCC Rcd at 380 ~26 m See UTC Comments at 3 (permitting fixed telemetry in this band would provide necessary speclTum to facilitate the deployment and use ofcritical services provided by utilities and pipeline companies). ss< See IlTon Comments at 10 (stating that Section 90.35. as it currently reads. arguably precludes fixed telemetry, and further. that there is no basis to prOhibit fixed telemetry in a band in which mobile telemetry is permitted). sss Mobex Comments at 2. 556 PSI Comments at 5. 5'; Data Flow Comments at 4. On this point. we note that one other commenter agreed with Data Flow's position that telemetry ought to be elevated to primary status. See Watchman Comments at 3. SS8 Data Flow Comments at I. 3. 10047 Federal Communications Commission FCC 02-152 fixed telemetry purposes. SS9 Data Flow cites to previous waiver grants allowing water utility companies to operate fixed telemetry in the 216-220 MHz band. s60 183. PSI opposes Data Flow on this point. PSI opposes new licensing of primary telemetry in the 217-218 MHz and 219-220 MHz "AMTS bands" and proposes that secondary telemetry be "confined to the under utilized 218-219 MHz band."s61 Fairfield believes that Data Flow's new request and PSI's proposal to limit telemetry to the 2 I8-219 MHz band are both procedurally deficient. s6l Fairfield also points out that as a matter of policy as well as procedure, a grant ofeither proposal would have the effect oflimiting critical geophysical telemetry operations throughout the band.S63 184. The parties raise comments that serve to underscore anecdotally our position regarding the importance ofa spectrum use management approach that promotes efficiency as well as diversity. As Watchman states, "reliable telemetry is needed ... [but] water utilities are not the only important users in the band ... .,,564 In considering the claims of the parties, we must be mindful of the circumstances surrounding the current and prospective uses of this band. In assessing the proposals before us, we find no basis to change our approach to this band. To adopt either PSI's proposal or Data Flow's latest request would require us to at least revisit and potentially alter the existing framework for the 216-220 MHz band. We also note that neither PSI nor Data Flow is precluded from promoting their interests in the band as either a participant in future auctions of this band or as a principal in a contractual arrangement with primary licensees in this band. We therefore decline to entertain either PSI's proposal to limit telemetry to the "218-219" MHz band or Data Flow's latest request to elevate secondary water telemetry to primary throughout the 217-220 MHz band. b. Securicor 185. Background. In its comments to the Reallocation Notice, Securicor sought to license "white space" in the 216-220 MHz band under a paradigm similar to the 220-222 MHz band (220 MHz Service).s6s Securicor states that expansion of the spectrally-efficient technology ofthe 220 MHz service to the 2 I6-220 MHz band would allow greater use of the limited amount of unencumbered spectrum.S66 In the Reallocation Report and Order, we declined Securicor's request with respect to the 216-217 MHz portion of the band because of the need to protect LPRS operations. s67 We now address Securicor's request as it relates to the remaining portion of the 216-220 MHz band. s68 Specifically, in the Service Rules Notice, we sought comment on whether there are efficiencies to be gained by implementing Securicor's proposal because ofthe adjacent 220-222 MHz Service. s69 SS' [d. at 3. S60 [d. at 3-4. S6' PSI Comments at 5. 562 Fairfield Reply Comments at 3. S6l [d. at 3-6. S64 Watchman Comments at 3. S6S See Securicor Comments at 5. Securicor is a service provider in the 220 MHz Service. S66 [d at 5. 567 See Reallocation Report and Order, 17 FCC Red at 384 11 35. S68 Id. S69 Service Rules Notice. 17 FCC Red at 2521 11 49. According to Warren Havens, Securicor no longer manufactures and markets 5 kHz equipment. Warren Havens Late-Filed Comments at 4. Notwithstanding the current operating (continued....) 10048 Federal Communications Commission FCC 02-152 186. Discussion. Because we believe that it would be premature to implement a new licensing scheme for this band at this time, we deny Securicor's request. While we recognize that this band is heavily encumbered thus lending support to Securicor's position,S70 we do not believe that an implementation of Securicor's proposal would be prudent. l7I As we mentioned earlier in this proceeding, the balance of the 217-220 MHz band is either alreadysUb~ectto competitive bidding (2 I8-2 I9 MHz) or proposed to be assigned by competitiveท bidding (AMTS).s 2 DatexlUST asserts that Securicor's proposal would subject the "white areas" in this band to competitive bidding on a~eographicarea basis that, in turn, would cause "significant harm to the nascent 218-2 I9 MHz Service." S 3 In this connection, we note that prospective parties interested in utilizing this band to implement a particular business .plan are not foreclosed fromdoin~so should they elect to participate in and ultimately win a license at auction in either ofthese bands. S 4 c. Warren Havens 187. Background. In comments filed in response to the Reallocation Notice, Warren Havens requests the Commission to authorize "advanced technologies services" in the 2 I6-225 MHz band which would be governed under a corollary set of service rules. m Havens suggests that new "advanced technologies services" could include a National Environmental Wireless Service (NEWS) for environmental and wildlife monitoring, or 4 th generation wireless technologies. s76 In the Reallocation Report and Order, we declined to make changes to the 2 16-217 MHz portion of the band in order to protect LPRS operations. m Nonetheless, in the Reallocation Report and Order, we deferred action on Havens' request as it relates to the remaining portion of the 2 I6-220 MHz band. 178 We now turn our attention to Havens' proposal as it relates to the remaining portion ofthe 216-220 MHz band. 179 (...continued from previous page) status of Securicor's business, the issue raised by Securicor is far from settled. We believe that this issue, having been brought properly before the Commission, and given the issue's relevancy to the instant proceeding as evidenced by the record, is not moot as Warren Havens contends. S70 The SMR Advisory Group, LC and BlZCOM USA. Inc., (collectively, "SMRlBIZCOM") filed joint reply comments in support ofSecuricor's general position. S7' See, e.g., PSI Comments at 3 (stating that the Securicor plan provides no reason to support a remodeling of the 216-220 MHz band similar to the 220-222 MHz band). But see SMRlBIZCOM Reply Comments at 8 (claiming that Securicor's 5 kHz narrowband technology would enhance compatibility between the 218-220 MHz and 220-222 MHz bands). SMRlBIZCOM believes that the Commission should restructure the 218-220 MHz band similar to the 220-222 MHz band to enhance spectrum efficiency and to promote the variety of services that could be olTered. Id. at 7-8. m See supra' 35. m See DatexlUST Comments at 3 (stating that incumbent operators. who raised operating capital and created business plans in reliance on uniform spectrum rules for the 218ท219 MHz band. would suffer serious setbacks). In its joint filing UST and Datex indicate that they have already constructed systems and initiated operations in the Baton Rouge and Bakersfield markets, with plans for more. Id. S74 See e.g.. Mobex Comments at 5. m See Havens Comments at 3. Havens holds AMTS authorizations to serve five inland navigable waterways and also holds licenses in the 220-222 MHz service. S76 Id. at 4-8. m See Reallocation Report and Order, 17 FCC Rcd at 384' 35. S71 / d. S1'lId. 10049 Federal Communications Commission FCC 02-152 188. Discussion. The majority of comments oppose Havens' petition as overly broad and speculative. sBO Havens proposes to use this band for environmental and wildlife monitoring. Though laudable, we are not persuaded that this proposal would be feasible primarily because of significant incumbent use ofthe 217-220 MHz band, especially in light ofthe Commission's reallocation ofthe lower portion ofthis band to LPRS on a primary basis. Further. Havens would have the Commission postpone any plans to assign licenses in this rulemaking, at the expense ofexisting and prospective licenses, so that it can submit a proposed rulemaking to promulgate its advanced technologies services concept. We fail to see how Havens' proposal promotes the public interest with regard to our spectrum management goals and the immediate goals of this instant rulemaking. Lastly, we note that no Commission rule would prohibit the type of service Havens proposes. Havens, as well as current and prospective AMTS or 218 219 licensees have the opportunity to offer any type of acceptable service in this band through the competitive bidding process. Accordingly, we deny Havens' proposal to designate the 216-225 MHz band as an "advanced technologies services" band. 2. 1.4 GHz Band 189. In a proposed joint agreement (Joint Agreement), AHA and Itron present a band plan to facilitate the shared operations of WMTS and telemetry operations in the 1427-1429.5 MHz and 1429.5 1432 MHz bands. S81 In addition to proposing a band "flip" as part of the overall band plan,s82 the Joint Agreement, inter alia, outlines the terms between AHA and Itron governing telemetry operations throughout the band, including secondary usage as well as technical restrictions on telemetry to protect WMTS from harmful interference. AHA and Itron request that we codifY the major elements ofthe Joint Agreement as part ofthe instant proceeding. We now address the major elements of the Joint Agreement with regard to secondary operations and technical restrictions. a. Secondary Operations 190. Itron urges the Commission to adopt that portion of the Joint Agreement with regard to secondary operations. Under the Joint Agreement. secondary operations would be permitted as follows: (i) telemetry would operate on a secondary basis in the lower portion of the band (1427-1429.5 MHz) where WMTS is primary, and (ii) WMTS would operate on a secondary basis in the upper portion ofthe band (1429.5-1432 MHz) where Part 90 telemetry is primary.s83 In the Reallocation Report and Order, we allocated telemetry on a secondary basis in the lower portion of the band (1427-1429.5 MHz) where WMTS is primary.s84 However. in that proceeding. we did not establish an allocation for WMTS in the upper portion of the band (1429.5-1432 MHz) where telemetry is primary.s8s We note, however, that because WMTS is a subset of telemetry, the existing allocation for telemetry in this band would allow WMTS to operate in the upper portion of the band (1429.5-1432 MHz) on a primary basis under the provisions of Part 90 of our Rules. s86 Because WMTS equipment is generally prohibited from operating '.0 See, e.g., DatexlUST Comments, Mobex Comments. SMRlBIZCOM Reply Comments. ,., See Joint Agreement, supra note 77. m See supra" 25-26. m IIron Comments at 9. ,•• See Reallocation Report and Order, 17 FCC Red at 392 'lI54. '"' Jd '86 47 C.F.R. ง 90.259. 10050 Federal Communications Commission FCC 02-152 on Part 90 frequencies,S87 in this limited instance, we will allow WMTS equipment to operate on Part 90 frequencies throughout the 1427-1429.5 MHz and 1429.5-1432 MHz bands. 58 b, Limitations on Telemetry 191. In the Service Rules Notice we indicated that AHA provided several suggestions for restricting telemetry in these bands to protect WMTS from harmful interference. 589 Specifically. AHA proposed: I) restricting telemetry operations to utility telemetry; 2) restricting telemetry operations to fixed telemetry; and/or 3) limiting the power levels of telemetry operations from 100 watts to 10 watts to 1 watt as frequencies approach where WMTS operations are primary (1427-1429.5 MHz).590 In their Joint Agreement, AHA and 1tron also propose to limit the field strength telemetry may radiate - into the WMTS band - at the site ofany WMTS operations. We discuss each ofthese issues as follows. (i) Utility use 192. AHA, ltron, UTe. and Hexagram all endorse limiting telemetry at 1.4 GHz for utility use only.591 In support, ltron points to the Joint Agreement, which specifies utility telemetry as a form of telemetry that is wholly compatible with WMTS operations. 591 AHA states that comments in this proceeding demonstrate that wireless utility telemetry services are more compatible with WMTS. 593 In the Service Rules Notice, however, we specifically asked commenters who support limiting telemetry in these bands to utility-specific operations to explain whether other forms of telemetry operations (i.e.. non utility) would cause harmful interference to WMTS. 59 ' Although several commenters generally cite their support for utility use only, no commenter clearly explains how or whether non-utility telemetry operations would cause harmful interference to WMTS. Given the record in this proceeding, we believe that telemetry interference to WMTS is better addressed by establishing technical parameters to minimize interference that will apply to all forms of telemetry. rather than prohibiting non-telemetry. Accordingly, we decline to limit telemetry in these bands to utility use only. (ii) Fixed vs. Mobile Operation 193. Since telemetry operating within the WMTS primary band poses the greatest threat of interference, we agree with AHA that secondary telemetry should be limited to fixed operation only.595 We believe that in the absence of conclusive empirical data on the levels of interference. 59b fixed only 587 47 C.F.R. ง 90.203. 588 See also discussion at infra" 25-26. 589 See Service Rilles Notice. 17 FCC Rcd at 2523~56. 590 Id 59' See AHA Reply Comments at 1-2. Iti-on Commentsat~,UTC Comments at 6. Hexagram Comments at 3-4. 59~Itron at 2 593 AHA Comments at 2. 594 See Service Rules Notice. 17 FCC Rcd at 2523~56. 595 This limitation to allow only fixed telemetry will apply to secondary telemetry outside the seven geographic "carve-out" areas in the 1427-1429.5 MHz band and to secondary telemetry within the seven geographic "carve-out" areas in the 1429.5-1432 MHz band. See AHA Comments at 5. 596 See General Electric Comments at 2-3. 10051 Federal Communications Commission FCC 02-152 operations for secondary telemetry will help to identify, isolate and resolve interference conflicts quickly.S97 194. Unlike co-channel operations, we believe that the potential for harmful interference to WMTS arising from primary telemetry operations in the adjacent band is minimal. Therefore, we decline to prohibit mobile operations for primary telemetry. Primary telemetry will be authorized for fixed, base or mobile operations. S98 Licensees will be required to specify their mobile area of operations as a radius around a fixed point. 599 Although we decline to prohibit mobile operations for primary telemetry, we nonetheless impose other technical restrictions, such as field strength limits, to provide protection to WMTS operations from harmful interference. This issue is discussed below. (iii) Power Limitations 195. Fixed Sites: The Joint Agreement proposes a sliding scale power limitation on fixed telemetry as the transmit frequency approaches the WMTS primal)' band. 600 Specifically, AHA and Itron would limit the power of fixed telemetry from 100 watts to 10 watts to I watt as the frequency approaches the WMTS band. 601 Based on the record before us, we will adopt the sliding scale power restriction on fixed telemetry proposed by AHA and Itron. 602 Commenters generally suppon the sliding scale power limitation although one commenter supports an even stricter limitation on power for telemetry.603 We are concerned that stricter power limits may limit the viability of telemetry operations in this band. We believe that the limits proposed by AHA and Itron strike the proper balance between minimizing the possibility of harmful interference to adjacent-band WMTS operations and allowing viable telemetry operations. 196. Specifically, the maximum EIRP for secondary fixed telemetry will be I watt in the 1427-1429.5 MHz band. The maximum EIRP for primary fixed telemetry will be limited by frequency as follows (I) I watt for 1429.5-1430.5 MHz; (2) 10 watts for 1430.5-1431.5 MHz and (3) 100 watts for 1431.5-1432 MHz. In the "carve-out" areas.6Q.l the maximum EIRP for secondary fixed telemetry will be I watt in the 1429-1431.5 MHz band. For primary telemetry in the "carve-out" areas, the maximum EIRP will be limited by frequency as follows (I) 100 watts for 1427-1428 MHz; (2) 10 watts for 1428-1428.5 MHz; (3) I watt for 1428.5-1429 MHz and (4) I watt for 1431.5-1432 MHz. 605 S97 AHA Comments at 3. Bur see IIron Comments at 3-4 (stating that mobile authority should be confined to utility entities holding a fixed telemetry license). S9. Fixed, base or mobile telemetry will be authorized for primary telemetry outside the seven geographic "carve out" areas in the 1429.5-1432 MHz band and for primary telemetry within the seven geographic "carve-out" areas in the 1427-1429.5 MHz band. S"" See supra~48. M., Joint Agreement at 4. "'" Id. ""2 We will also adopt the sliding scale power limit for fixed telemetry operations in the seven geographic "carve out" areas. "") See Itron Comments at 2 and General Electric Reply Comments at 2 (supponing the AHA-llron sliding scale power limitation), UTC Comments at 12 (suggesting a slightly modified sliding scale power limitation). But see Hexagram Reply Comments at 5 (supponing a more strict power limitation). 604 See note 78, infra. ""s We note that the Joint Agreement contemplates a IO-wan maximum EIRP for operations at 1431.5-1432 MHz. This lO-wan maximum limit. however, would be inconsistent with the intent of the sliding scale power limitation (continued....) 10052 Federal Communications Commission FCC 02-152 197. In addition, we will limit "temporary fixed" sites to a maximum EIRP of I watt on any frequency.606 Because licensees will not be providing the specific coordinates of"temporary fixed" sites, we believe that these sites should be limited to the lowest power on the sliding scale to minimize the possibility ofhannful interference to adjacent-band WMTS operations. 198. Mobile Units: Itron proposes a sliding scale power limitation for mobile telemetry as the transmit frequency approaches the WMTS primary band. 607 Specifically, Itron would limit the power of mobile telemetry from I watt to 25 milliwatts as the frequency approaches the WMTS band. 60s We believe that the sliding scale limit on mobile units proposed by Itron strikes the proper balance between minimizing the possibility of hannful interference to adjacent-band WMTS operations and allowing viable mobile telemetry operations. Therefore, we will adopt Itron's sliding scale power limitation for mobile operations. 199. Specifically, the maximum EIRP for mobile telemetry will be limited by frequency as follows (I) 25 milliwatts for 1429.5-1430 MHz and (2) 1 watt for 1430-1432 MHz. In the "carve-out" areas, the maximum EIRP for mobile telemetl') will be limited by frequency as follows (1) 1 watt for 1427-1428.5 MHz; (2) 25 milliwatts for 1428.5-1429 MHz and (3) 25 milliwatts for 1431.5-1432 MHz. 609 200. AHA recommends that mobile telemetl')' operations be limited to an operating power no greater then 25 milliwatts in the non-WMTS ponions of the 1427-1432 MHz band. 6lO AHA believes that mobile operations restricted to no more than 25 milliwatts will limit adjacent-band and in-band interference to WMTS operations. 611 We believe, however, that such a strict power limitation will render mobile operations unusable for practical applications. Therefore, we decline to adopt AHA's proposed limit of 25 milliwatts. 201. AHA indicates that an adjacent-band mobile unit operating at I watt EIRP would have to be located at least 226 feet from a WMTS facility in order to avoid causing harmful interference to WMTS operations. 612 We believe that such a buffer zone between adjacent-band mobile telemetry and WMTS facilities can easily be maintained. Mobile telemetry will be limited to a specific radius around a fixed point therefore no wide-area operations will be permitted 61J Funher, mobile telemetry will be subject to frequency coordination. 61 ' Thus, we are confident that frequency coordinators will be able to recommend mobile areas of operation which will maintain the necessal')' distance between adjacent-band mobile units and WMTS facilities. (".continued from previous page) because it would place 10-wan telemetry operations immediately adjacent to WMTS operations at 1429-1431.5 MHz. Therefore. we adjust the maximum EIRP for telemetry at 1431.5-1432 MHz from I O-wans to I-wan. 606 See supra r 49. "Temporary fixed" sites are authorized on any frequency where telemetry is primary. ""7 Itron ex parte filing at I (May 7. 2002). 608 Id. """ Itron did not provide a sliding scale for mobile operations within the "carve-out" areas. We have convened their sliding scale for mobile operations within the "carve-out" areas. biD AHA ฃt Parte filing at 4. 6. (May 8. 2002) bll Id. at 2-6. bl~AHA Ex Parte filing at 3. (May 8. 2002) bl; See supra~48. bl' Seesupra';~92-96. 10053 Federal Communications Commission FCC 02-152 202. AHA also indicates that the potential for interference to WMTS operations from mobile telemetry is greatly increased at the edge of the geographic "carve-out" areas which are subject to the "band flip.'>6IS Because non-WMTS telemetry located outside the geographic "carve-out" areas will be operating on a co-channel basis with WMTS operations within the geographic "carve-out" areas. AHA indicates that a mobile telemetry unit operating at I wan EIRP would need to maintain a distance of 20 miles from a WMTS facility.616 We do not believe that all mobile telemetry nationwide should be limited by a situation which is unique to operations at the edge of the seven geographic "carve-out" areas. Rather, we believe that operations of non-WMTS telemetry at the edge of the geographic "carve-out" areas can be accommodated on a case-by-case basis. Accordingly. we expect frequency coordinators to examine these situations carefully to ensure that non-WMTS telemetry operations maintain the field strength limit at the location ofco-channel WMTS facilities inside the geographic "carve-out" areas. (iv) Field Strength Limits 203. In addition to the restrictions on telemetry we have discussed above, we believe that the balance between protecting WMTS operations from harmful interference and allowing flexible non WMTS systems to operate in bands co-channel and adjacent to WMTS operations is best achieved by defining the permissible field strength non-WMTS facilities may radiate into the WMTS bands. 617 In this connection, AHA and Itron propose to limit emissions from non-WMTS telemetry - into the WMTS band - to a field strength of less than 150 uV1m at the site of any WMTS operation. 6ls AHA and Itron would make this requirement applicable to secondary and primary non-WMTS telemetry in the 1427-1432 MHz band. In a similar manner, Philips proposes to minimize interference to WMTS operations in the 1395 1400 MHz band by limiting the out-of-band emissions from co-primary operations in the 1392-1395 MHz band. 619 204. Because we believe that the proper balance between allowing viable co-channel and adjacent channel operations while still protecting WMTS from harmful interference is best achieved by a field strength limit of 150 uV1m. we are adopting this value as proposed by AHA and hron. Consequently. we will limit the field strength that non-WMTS telemetry in the 1427-1432 MHz band may radiate - into the WMTS portions of the bando 20 - to a measured or predicted field strength of 150 uV/m at the site of any WMTS operation621 We will also limit the field strength that facilities in the 615 AHA Ex Parte filing at 4-5. (May 8. 2002) WMTS will operate on the frequencies 1429-1431.5 MHz inside the "carve-out" areas while primary non-WMTS telemetry will operate on the frequencies 1429.5-1432 MHz outside the "carve-out" areas. 616 1 d at 5. 617 In this instance. we believe that the potential safety of life concerns that are raised when WMTS devices receive interference distinguishes WMTS from other services that have requested similar protection in this proceeding. 618 Joint Agreement at 3-4. 619 See Phillips Comments at 5 and Phillips Reply Comments at 2. Phillips would limit the out-of-band emission from transminers in the 1392-1395 MHz band to 500 uV/m at3 meters from the radiator. 620 WMTS operates in the 1427-1429.5 MHz band except in the seven geographic "carve-out" areas where WMTS operates in the 1429-1431.5 MHz band. 621 This limit on the field strength radiated by a telemetry operation will apply at the location of any healthcare facility employing WMTS equipment in the 1427-14n MHz band. Healthcare facilities are defined in 47 C.F.R ง 95.1103(b). 10054 Federal Communications Commission FCC 02-152 1392-1395 MHz band may radiate - into the WMTS band at 1395-1400 MHz - to a measured or predicted field strength of ISO uV/m at the site ofany WMTS operation. 622 205. We believe that the rules we are adopting in this regard are consistent with our overarching spectrum management objectives to promote both a flexible and efficient use of the electromagnetic spectrum. Under this approach, licensees will be responsible for maintaining this limitation on field strength radiated at a WMTS facility when a new location is activated. Therefore, licensees may need to adjust their operations to comply with these field strength limits if a new WMTS facility causes their existing system to exceed the ISO uV/m limit. 206. The Joint Agreement proposes measurement procedures for verifying compliance with the field strength limits at WMTS facilities. 623 Specifically, !tron and AHA specify that the horizontal and venical component of the field strength should be measured over a I MHz bandwidth using an averaging detector. 624 Because we find that this resolution bandwidth is consistent with measurement procedures the Commission has established to verify out-of-band emission compliance for other services,625 we will require a resolution bandwidth of I MHz for equipment used to verify compliance with the field strength limit. Consistent with measurement procedures established in Pan IS of our rules for equipment operating above 1000 MHz,626 we will also require that measurement equipment employ an averaging detector. We believe, however, that the field strength limit should apply for any polarization and should not be limited to just horizontal or venical polarizations. Therefore, we will not specify a polarization in the measurement procedures. V. PROCEDURAL MATTERS A. Final Regulatory Flexibility Analysis 207. A Final Regulatory Flexibility Analysis has been prepared for the Report and Order and is included in Appendix C. B. Paperwork Reduction Analysis 208. This Report and Order contains either a new or modified information collection. As part ofthe Commission's 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 revision to the information collections contained in the Report and Order as required by the Paperwork Reduction Act of 1995. 627 Public and agency comments are due /60 days after date of publication in tile Federal Registerj. Comments should address: • Whether the proposed collection of information is necessary for the proper performance of the functions ofthe Commission, including whether the information shall have practical utility. 0:: This limit on the field strength radiated by telemetry operations will apply at the location of any healthcare facility employing WMTS equipment in the 1395-1400 MHz band. Healthcare facilities are defined in 47 C.F.R ง 95.1103(b). 0:3 Joint Agreement at 3-4. 6141d m See 47 C.F.R. งง 27.53(a)(4) and 90.210(m). 0:0 4 7 C.F.R. ง 15.209(d). 6:7 See Pub. L. No. 104-13. 10055 Federal Communications Commission • The accuracy ofthe Commission's burden estimates. • Ways to enhance the quality, utility, and clarity ofthe information collected. FCC 02-152 • Ways to minimize the burden ofthe collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. 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 Judith B. Herman, Federal Communications Commission, Room I-C804, 445 12th Street, SW, Washington. DC 20554. or via the Internet to jherman@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. For additional information concerning the information collection(s) contained in this document, contact Judith B. Herman at 202-418-0214, or via the Internet at jboley@fcc.gov. C. Further Information 209. For further information concerning the Report and Order, contact Zenji Nakazawa or Guy Benson regarding legal matters. and/or Brian Marenco or Tim Maguire regarding engineering matters via phone at (202) 418-0680, via TTY (202) 418-7233, or via e-mail at znakazaw@fcc.go\', gbenson@fcc.gov, bmarenco@fcc.gov or tmaguire@fcc.gov, respectively, Wireless Telecommunications Bureau, Federal Communications Commission, Washington, D.C. 20554. 210. Alternative formats (computer diskette. large print. audio cassette, and Braille) are available to persons with disabilities by contacting Brian Millin at (202) 418-7426, lTV (202) 418-7365, or via e-mail tobmillin@fcc.gov.This Report and Order can be downloaded from the Commission's website at www.fcc.gov/wtb/orders. VI. ORDERING CLAUSES 211. ACCORDINGLY, IT IS ORDERED that. pursuant to Sections I, 4(i), 30\, 302. 303(f) and (r), 309(j) and 332 of the Communications Act of 1934. as amended, 47 U.s.c. I, 154(i). 301, 302, 303(f) and (r), 309(j) and 332, this Report and Order is ADOPTED. 10056 Federal Communications Commission FCC 02-152 212. IT IS FURTHER ORDERED that, Parts 1,2,27,90, and 95 of the Commission's Rules ARE AMENDED as specified in Appendix E, effective 60 days after publication in the Federal Register. Infonnation collections contained in these rules will be effective upon OMB approval. 213. IT IS FURTHER ORDERED that, the Petition for Rulemaking filed by Data Flow Systems, IS GRANTED, IN PART, AND DENIED IN PART as described herein. 214. IT IS FURTHER ORDERED that, the Commission's Consumer and Governmental Affairs Bureau, Reference Infonnation Center, SHALL SEND a copy of this REPORT AND ORDER. including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 10057 Federal Communications Commission APPENDICES APPENDIX A - List ofCommenten AeroAstro, Inc. Aerospace Flight Test Radio Coordinating Council American Hospital Association Task Force on Medical Telemetry American Mobile Telecommunications Association, Inc. American Petroleum Institute Data Flow Systems, Inc. Dates Spectrum, L.L.C. GE Medical Systems Wireless Center ofExcellence Industrial Telecommunications Association, Inc. Industrial Telecommunications Association, Inc. InsideTrax Itron, Inc. Land Mobile Communications Council (Late-filed) Mobex Communications, Inc. National Academy ofSciences National Telecommunications Cooperative Association Paging Systems, Inc. Philips Medical Systems United Telecom Council XM Radio, Inc. 10058 FCC 02-152 Federal Communications Commission APPENDIX B - List of Reply Commenters AeroAstro, Inc ArryComm, Inc. Comsearch Cornell University Data Flow Systems, Inc. EDS Corporation Fleetwood Group, Inc GE Medical Systems Hexagram, Inc. InsideTrax Itron, Inc. Jonathan Peterson Land Mobile Communications Council LMS Wireless, Telesaurus Holdings GB LLC Maerican Hospital Association Task Force on Medical Telemetry Office of Advocacy, U.S. Small Business Administrations Paging Systems, Inc. Phillips Medical Systems Rural Telecommunications Group SMR Advisory Group, LC and Bizcom USA, Inc. 10059 FCC 02-152 Federal Communications Commission APPENDIX C - FINAL REGULATORY FLEXIBILITY ANALYSIS FCC 02-152 (for Report and Order) J. As required by the Regulatory Flexibility Act (RFA),628 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice ofProposed Rule Making (Service Rules Notice).6!9 The Commission sought written public comment on the proposals in the Service Rules Notice. including comment on the IRFA. The comments received are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 630 Need for, and Objectives of, the Report andOrder: 2. In this Report and Order, we adopt rules for the licensing and operation of fixed and mobile services in the 216-220 MHz, 1390-1395 MHz, 1427-1429.5 MHz. 1429.5-1432 MHz, 1432-1435 MHz, 1670-1675 MHz and 2385-2390 MHz bands pursuant to the provisions ofthe Communications Act of 1934, as amended, the Omnibus Budget Reconciliation Act of 1993 (OBRA-93), and the Balanced Budget Act of 1997 (BBA-97). These seven bands have a variety of continuing Government protection requirements and incumbent Government and non-Government uses. Despite these constraints and the relatively narrow bandwidth contained in each of the bands, we believe that the rules adopted herein will foster a variety of potential applications in both new and existing services. The transfer ofthese bands to non-Government use should enable the development of new technologies and services, provide additional spectrum relief for congested private land mobile frequencies, and fulfill our obligations as mandated by Congress to assign this spectrum for non-Government use. 3. The Report and Order also establishes competitive bidding rules and small business definitions for the unpaired 1390-1392 MHz. 1670-1675 MHz. and 2385-2390 MHz bands. and the paired 1392-1395 MHz and 1432-1435 MHz bands similar to those applied to the WCS 2.3 GHz band and the 700 MHz Guard Bands. 631 Consistent with the Commission's responsibility under Section 309(j) to promote opportunities for, and disseminate licenses to, a wide variety of applicants. 6 J! the Report and Order adopts small business size standards and bidding preferences for qualifYing bidders that will provide such bidders with opportunities to compete successfully against large. well-financed entities. Specifically, with respect to the aforementioned bands, we will define a '"small business" as any entity with average annual gross revenues for the three preceding years not exceeding $40 million. and a "very small business" as any entity with average annual gross revenues for the three preceding years not exceeding $15 miIlion. 633 Correspondingly, we will adopt a bidding credit of 15 percent for "small businesses" and 618 See 5 U.S.C. ง 603. The RFA, see 5 U.S.c. ง 601 e/. 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). 620 Reallocation of the 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670 1675 MHz, and 2385-2390 MHz Government Transfer Bands, WT Docket No. 02-8, No/ice of Proposed Rulemaking. 17 FCC Rcd 2500 (2002) Appendix A. 630 See 5 U.S.c. ง 604. 631 See supra~112. Because we have decided not to use competitive bidding procedures to resolve any mutually exclusive initial applications for licenses in the 1427-1432 MHz band, we will not adopt corresponding small business definitions and bidding credits as initially proposed in the Service Rules Notice. Service Rules Notice. 17 FCC Rcd at 2551~147; see supra~53. 632 47 U.S.C. ง 309(j)(3)(B), (4)(C)-(D). 6JJ See Service Rules Notice. 17 FCC Rcd at 2550-51~~144-146. To be consistent with the size standard of "very small business" proposed for the 1427-1432 MHz band for those entities with average gross revenues for the three (continued.... ) 10060 Federal Communications Commission FCC 02-152 a bidding credit of25 percent for "very small businesses." This bidding credit structure is consistent with our standard schedule of bidding credits, which may be found at Section 1.2110(1)(2) of the Commission's rules. 634 All of the commenters addressing this issue supported our proposal to adopt the two small business size standards that the Commission adopted for the WCS 2.3 GHz band and the 700 MHz Guard Bands. 63s As we noted in the Serdce Rules Notice, the capital requirements and characteristics ofthe services proposed in the aforementioned bands are comparable to those found in the WCS 2.3 GHz band and 700 MHz Guard Bands. 6J6 Consequently, as with the WCS 2.3 GHz band and 700 MHz Guard Bands, we believe that these two size standards will provide a variety of businesses with the opportunity to participate in the auction of licenses for this spectrum and will afford such licensees. who may have varying capital costs. substantial flexibility for the provision of services. 6J7 The Commission has long recognized that bidding preferences for qualifying bidders provides such bidders with an opportunity to compete successfully against large, well-financed entities. 638 The Commission also has found that the use of tiered or graduated small business definitions is useful in furthering our mandate under Section 3090) to promote oppor!unities for and disseminate licenses to a wide variety of applicants. 639 Summary ofSignificant Issues Raised by Public Comments in Response to the IRFA. 4. Although no comments were submitted specifically in response to the lRFA. some commenters expressed concern with our proposals to license new services on a wide geographic area basis. For example, the National Telecommunications Cooperative Association (NTCA) and the Rural Telecommunications Group (RTG) suppor! smaller geographic area licensing, rather than the use of nationwide or very large economic areas. in order to promote smaller carriers and rural (...continued from previous page) preceding years not exceeding $3 million, the Service Rules iVotice proposed to use the terms "entrepreneur" and "small business" to define entities with average gross revenues for the three preceding years not exceeding $40 million and $15 million. respectively. Because we are not adopting small business size standards for the 1427-1432 MHz band, we instead use the terms "small business" and "very small business" to define entities with average gross revenues for the three preceding years not exceeding 540 million and S 15 million respectively. 634 In the Part I Third Report and Order, we adopted a standard schedule of bidding credits. the levels of which were developed based on our auction experience. Part I Third Report and Order. 13 FCC Rcd at 403-04~47. See also 47 C.F.R. ง I.211O(1)(2). 6lS See ArrayComm Comments at 35-36, AeroAslro Reply Comments at 4. 636 Service Rules Notice, 17 FCC Rcd at 2550-51~.. 144-146. Generally. in developing the definitions for bidding preferences, the Commission evaluates the likely characteristics and capital requirements ofthe specific service. See Part I Third Report and Order. 13 FCC Rcd at 388~18: 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). 637 See Service Rules Notice. 17 FCC Rcd at 2550-51~145. 638 See. e.g.. Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging Systems: Implementation ofSection 309(j) of the Communication> Act -- Competitive Bidding. WT Docket No. 96 18. PR Docket No. 93-253. Memorandum OpinIOn and Order on Reconsideration and Third Report and Order.14 FCC Rcd 10030. 10091'; 112 (1999). 63 9 47 U.s.c. ง 309(j)(3)(B). (4)(C)-(D). We will not. however. adopt special preferences for entities owned by minorities or women. and rural telephone companies. The Commission did not receive any comments on this issue. and we do not have an adequate record to suppon such special provisions under the current standards of judicial review. See Adarand Constructors \'. Pdia, 515 U.S. 200 (1995) (requiring a strict scrutiny standard of review for government mandated race-conscious measures): United States \'. Virginia. 518 U.S. 515 (1996) (applying an intermediate standard of review to a state program based on gender classification). 10061 Federal Communications Commission FCC 02-152 telecommunications development. 64o We have considered the effect of these rule changes on small entities and considered other alternatives. We expect, however, that our actions will benefit all entities subject to these rule changes, including small entities. 5. The policies and rules adopted in this Report and Order affect all small entities that seek to acquire licenses in the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands. and the paired 1392-1395 MHz and 1432-1435 MHz bands. As noted above. the Commission has adopted small business size standards that define a "small business" as any entity with average annual gross revenues for the three preceding years not exceeding $40 million and a "very small business" as any entity with average annual gross revenues for the three preceding years not exceeding $15 million. The SBA has approved these small business size standards for the aforementioned bands. 641 However, the Commission cannot know until the auction begins how many entities will seek small or very small business status. The Commission will allow partitioning and disaggregation. yet it cannot determine in advance how many licensees will partition their license areas or disaggregate their spectrum blocks. In view ofour lack of knowledge of these factors, it is therefore assumed that, for purposes of our evaluations and conclusions in the FRFA, all of the prospective licenses are small entities, as that term is defined by the SBA or the Commission's small business definitions for these bands. Description and Estimate of the Number of Small Entities To Which the Rules Will Apply: 6. 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. 642 The RFA defines the term "small entity" as having the same meaning as the terms "small business:' "small organization," and "small business concern" under section 3 of the Small Business Act. 643 A small business concern is one which: ( I) is independently owned and operated: (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 644 Nationwide, as of 1992, there were approximately 275,801 small organizations. 645 "Small governmental jurisdiction" generally means "governments of cities, counties, towns, townships, villages. school districts, or special districts, with a population of less than 50,000.'.646 As of 1992, there were approximately 85.006 such jurisdictions in the United States. 647 This number includes 38.978 counties. cities. and towns; of these, 37.566, or ninety-six 640 See NTCA Comments at 1-3: RTG Reply Comments at 2. 64' See Letter from Hector V. Barreto. Administrator. Small Business Administration. to Margaret W. Wiener. Chief. Auctions and Industry Analysis Division. Wireless Telecommunications Bureau, Federal Communications Commission. dated January 18. 2002 (approving the size standards proposed and described in the Service Rules Notice). See also Letter from Margaret W. Wiener. Chief. Auctions and Industry Analysis Division. Wireless Telecommunications Bureau. Federal Communications Commission. to Hector V. Barretto. Administrator. U.S. Small Business Administration. dated January 29. 2002 (follow-up letter clarifying how the approved small business standards are applied in the seven geographic carve-out areas in the 1427-1432 MHz band). But see discussion supra note 6. 642 5 U.S.c. ง 603(b)(3). 643/d. ง 601(3). 644 ld ง 632. 645 1992 Economic Census, U.S. Bureau of the Census. Table 6 (special tabulation ofdata under contract to the Office ofAdvocacy ofthe Small Business Administration). 646 5 U.S.c. ง 601(5). 647 U.S. Dep't ofCommerce. Bureau ofthe Census. /992 Census a/Governments. 10062 Federal Communications Commission FCC 02-152 percent, have populations of fewer thanSO,OOO.~8The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (ninety-one percent) are small entities. 7. Wireless Service Providers. The SBA has developed a definition for small business within the two separate categories ofCellular and Other Wireless Telecommunications or Paging. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. 649 According to the Commission's Telephone Trends Report data, 1,495 companies reponed that they were engaged in the provision of wireless service. 650 Of these 1,495 companies, 989 reponed that they have 1,500 or fewer employees and 506 reponed that, alone or in combination with affiliates, they have more than 1,500 employees. We do not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number ofwireless service providers that would qualify as small business concerns under the SBA's definition. Consequently. we estimate that there are 989 or fewer small wireless service providers that may be affected by the rules. Below, we funher describe and estimate the number of small entity licensees and regulatees that may be affected by the rules adopted herein. Except as noted, these services are associated with the above SBA small business size standard. 8. With respect to the 1390-1392 MHz band, the Commission will award a single 2 MHz license in each of fifty-two Major Economic Areas (MEAs). For the 1670-1675 MHz, and 2385-2390 MHz bands, the Commission will award a single nationwide license in each band. For the paired 1392 1395 MHz and 1432-1435 MHz bands, the Commission will award a pair of 1.5 MHz licenses in each of six Economic Area Groupings (EAGs). For the 1432-1435 MHz band, the Commission will award licenses on a site by-site basis. The Commission does not yet know how many applicants or licensees in any ofthese bands will be small entities. 9. Existing services in other bands include entities that might be affected by the rules. either as existing licensees or potential applicants or licensees. Incumbent services in the 1427-1429.5 MHz and 1429.5-1432 MHz bands include wireless medical telemetry (WMTS) and general telemetry. 10. Telemetry. Incumbent non-medical telemetry operators in the 1427-1429.5 MHz and 1429.5-1432 MHz bands include hron, Inc .. Pueblo Service Company of Colorado and E Prime, Inc., and large manufacturers such as Deere and Company, Caterpillar, and General Dynamics. None of these licensees are likely to be small businesses. Itron. Inc. is the primary user of the 1427-1429.5 MHz and 1429.5-1432 MHz bands. hron, Inc., with an investment of $100 million in equipment development, is not likely to be a small business. One licensee. Zytex. a manufacturer of high-speed telemetry systems, may be a small business. The Commission does not yet know how many applicants or licensees in these bands will be small entities. II. WMTS. Users of medical telemetry are hospitals and medical care facilities. some of which are likely to be small businesses. The broad category of Hospitals consists of the following categories and the following small business providers with annual receipts of $29 million or less: General Medical and Surgical Hospitals, Psychiatric and Substance Abuse Hospitals. and Specialty Hospitals. 651 For all these health care providers, census data indicate that there is a combined total of 330 firms that operated in 1997, of which 237 or fewer had revenues of less than $25 million."5' An additional 45 firms 64lld. 649 13 C.F.R. ง 121.201, NAICS code 513322. 650 Telephone Trends Report (Aug. 2001), Table 5.3. 65\ 13 C.F.R. ง 121.201, NAICS Codes 622110, 622210. 622310. 652 1997 Health Care Data. 10063 Federal Communications Commission FCC 02-152 had annual receipts of $25 million to $49.99 million. 653 We therefore estimate that most Hospitals are small, given SBA's size categories. 12. The broad category of Nursing and Residential Care Facilities consists of the following categories and the following small business size standards. 6S4 The category of Nursing and Residential Care Facilities with annual receipts of $6 million or less consists of: Residential Mental Health and Substance Abuse Facilities, Homes for the Elderly, and Other Residential Care Facilities. The category of Nursing and Residential Care Facilities with annual receipts of$8.5 million or less consists ofResidential Mental Retardation Facilities. The category of Nursing and Residential Care Facilities with annual receipts of less than $11.5 million consists of: Nursing Care Facilities and Continuing Care Retirement Communities. For all ofthese health care providers, census data indicate that there is a combined total of 18,011 firms that operated in 1997. 655 Of these, 16,165 or fewer firms had annual receipts of below $5 million. 65O In addition, 1,205 firms had annual receipts of $5 million to $9.99 million, and 450 firms had receipts of $10 million to $24.99 million. 6S7 We therefore estimate that a great majority of Nursing and Residential Care Facilities are small, given SBA's size categories. Description oCProjected Reporting, Recordkeeping, and Otber Compliance Requirements: 13. Applicants for licenses to provide terrestrial fixed and mobile services in the paired 1392- 1395 MHz and 1432-1435 MHz bands, and the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385 2390 MHz bands will be required to submit short-form auction applications using FCC Form 175. 658 In addition, winning bidders must submit long-form license applications through the Universal Licensing System using FCC Form 601,659 FCC Ownership Disclosure Information for the Wireless Telecommunications Services using FCC Form 602, and other appropriate forms. 660 Licensees will also be required to apply for an individual station license by filing FCC Form 601 for those individual stations that (I) require submission of an Environmental Assessment under Section 1.1307 of our Rules;66) (2) require international coordination;662 (3) would operate in the quiet zones listed in Section 1.924 of our Rules;663 or (4) require coordination with the Frequency Assignment Subcommittee (FAS) of the Interdepartment Radio Advisory Committee (IRAC).b04 Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered: 65) /d. 650 13 C.F.R. ง 121.201, NAICS Codes 623110, 623210. 623220. 623311, 623312, 623990. 655 /997 Heailh Care Dora. 650 /d. 657/ d . 658 47 C.F.R. ง 1.2105. 659 47 C.F.R. ง 1.913(a)(I). 660 47 C.F.R. ง 1.2107. 66' 47 C.F.R. ง 1.1307. 662 See. e.g., 47 C.F.R. ง 1.928 (regarding frequency coordination arrangements between the U.S. and Canada). 66) 47 C.F.R. ง 1.924. ... We discuss FAS coordination in the section describing coordination with Government incumbents. See supra Section IV.E.2. 10064 Federal Communications Commission FCC 02-152 14. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than desiF standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 66 15. Regarding our decision to apply generally our Part 27 rules to the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands, see paras. 11-12 supra, we do not anticipate any adverse impact on small entities. The flexibility afforded by Part 27 ofour rules should benefit large and small entities alike, because licensees will be in a stronger position to meet changes in demand for services. Under this approach. all licensees will have the freedom to determine the services to be offered and the technologies to be used in providing those services. An alternative to this decision would have been to determine specific allowable services in each frequency band and apply the applicable rule part to the licensing of such services. This approach, however, would be unsatisfactory because it is too restrictive, and in any event, it is unclear that this would benefit small entities more than the flexible licensing approach we have decided upon today. 16. Regarding our decision to license the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands by geographic area, see paras. 14-20 supra, we anticipate that on balance small entities will benefit from this licensing approach. Geographic licensing in these bands supports the Commission's overall spectrum management goals in that it allows licensees to quickly respond to market demand. Small entities that acquire spectrum that is licensed on a geographic area basis will benefit from such flexibility. Moreover, we have attempted to strike a balance here by using varying sizes ofgeographic areas. For example. small entities may be more interested in spectrum licensed by smaller geographic areas rather than in spectrum licensed on a nationwide basis. Consequently, we have decided to license the 1390-1392 MHz band using fifry two MEAs and the paired 1392-1395 MHz and 1432-1435 MHz bands using six EAGs. Combined with our decision to employ flexible use licensing, which includes band manager licensing (see discussion below), small entities should be able to acquire spectrum that fits their individual needs. An alternative to our decision to use geographic areas to license the subject frequency bands would have been to employ a site-by-site licensing approach. Site-by-site licensing, however. would be an inefficient licensing method for the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands, due to a greater strain on Commission resources and less flexibility for licensees. 17. Regarding our decision to license secondary telemetry in the 217-220 MHz and 1427- 1429.5 MHz bands and primary telemetry in the 1429.5-1432 MHz band on a site-by-sitc basis. see paras. 40-49, supra. we anticipate no adverse impact on small entities. In fact, our approach here is particularly beneficial for small entities that have more localized spectrum needs, because such entities can apply for just the site that is needed for their communications systems. An alternative to this approach would have been to license telemetry in these bands on a geographic area basis. This is unsatisfactory. however, because. inter alia. of potential harmful interference issues that a geographic overlay would entail. 18. Regarding our decision to license the 1390-1392 MHz band using a single 2 MHz block in each MEA, see para. 22, supra. we do not anticipate any adverse impact on small entities. Our approach here provides maximum flexibility for both small and large entities to offer a wide range of communications services. In addition, in those cases where less than 2 MHz is required. band managers 66S See 5 U.S.c. ง 603(c). 10065 Federal Communications Commission FCC 02-152 would be able to coordinate spectrum under their control so as to maximiz.e its lise. An alternative to this decision would have been to divide the spectrum available in the 1390-1392 MHz band into two or more blocks. While this might promote diversity, it makes more sense to license this band using a single 2 MHz spectrum block in order to allow both small and large entities the opportunity to offer a wider range ofservices and to quickly meet changes in market demand. 19. Regarding our decision to license the paired 1392-1395 Mill. and 1ท132-1435 MHz bands using two pairs of 1.5 MHz spectrum blocks, see para. 23. supra, we do not anticipate any adverse impact to small entities. Our appnl3ch here promotes competition by allowing more than one licensee in each market and thus offers a greater opportunity for small entities to acquire specmlDl. An alternative to this approach would have been to license these bands using a single pair of 3 MHz spectrum blocks. This approach, however. is less desirable than the one we adopt today because of the competition and diversity benefits realized by dividing the spectrum into two blocks. 20. Regarding our decision to adopt the AHA-ltron Joint Agreement's band flip proposal, see para. 26, supra, we do not anticipate any adverse impact to small entities. Ollr implementation of this private agreement should benefit small and large entities by allowing telemetry and WMTS to operate where such services are needed the most. An alternative to this approach would have been to keep telemetry primary only in the 1429.5-1432 MHz band and WMTS primary only in the 1427-1429.5 MHz band. However, allowing telemetry and WMTS to operate in the seven geographic carve-out areas in each other's primary allocation allows greater flexibility in operations while avoiding harmful interference. 21. Regarding our decision to license the 1670-1675 MHz band using a single 5 MHz spectrum block, see para. 27, supra. we do not believe that there will be any adverse impact on small entities. Althollgh dividing this spectrum into two or more blocks might offer more opportunities for small entities to compete for a license, we agree with the commenters that a single 5 MHz spectrum block will promote the development of new technologies and services b66 and therefore. promotes the public interest. 22. Regarding our decision to license the 2385-2390 MHz band using a single 5 MHz spectrum block, see para. 28, supra. we do not believe that there will be any adverse impact on small entities. Although dividing this speclrum into two or more blocks might offer more opportunities for small entities to compete for a license, this is outweighed by the benefits that a larger spectrum block provides in terms of flexibility. In addition. we note that no commenters. including small entities, proposed an altemate spectrum block size for this frequency band. 23. Regarding our decision to employ a flexible use licensing scheme for the unpaired 1390- 1392 Mllz. 1670-1675 Mllz, and 2385-2390 MHz bands and the paired 1392-1394 MHz and 1432-1435 MHz bands. see paras. 38-39. supra, we do not anticipate any adverse impact on small entities. In fact, this approach~houldgenerally provide small entities with greater opportunities to acquire spectrum specifically tailored for their needs. For example. through a band manager licensee, small entities can obtain spectrum rights that are suited for operations of a local nature. rather than obtaining an entire geographic area that would result in less efficient spectrum usc. An alternative to this approach would have been to prohibit band managers from heing licensed in these frequency bands. We find that this would be unsatisfactory, howevcr. because the results would be less efficient spectrum markets and less spectrum access for small entities. 666 See ArrayComm Comments at 7; Insidctrax Comments at 5. 10066 Federal Communications Commission FCC 02-152 24. Regarding our decision to require a showing of "substantial service" at license renewal time, see paras. 72-73, supra, we do not anticipate any adverse impact on small entities. An alternative would have been to adopt a "minimal coverage" requirement. We believe, however, that the substantial service standard is better because it will provide both small and large entities the flexibility to determine how to best implement their business plans based on actual service to end users. 25. Regarding our decision to allow licensees in the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands to partition and/or disaggregate their spectrum, see paras. 80-83, supra, we do not anticipate any adverse impact on small entities. In fact, allowing licensees to partition/disaggregate their licensed spectrum should improve opportunities for small entities to acquire spectrum for their particular needs. An alternative to this approach would have been to prohibit partitioning/disaggregation, but we received no comments proposing such a prohibition. 26. Regarding our decision to require frequency coordination for primary and secondary telemetry operations in the 217-220 MHz, 1.427-1429.5 MHz and 1429.5-1432 MHz bands, see paras. 88 98, supra, we do not anticipate any adverse impact on small entities. Although there are certain costs associated with filing an application through an FCC-certified frequency coordinator, on balance, the benefits of frequency coordination, especially the avoidance of harmful interference, outweigh any costs. An alternative to this approach would have been to not require frequency coordination, but this is unacceptable because of high congestion. primary incumbent operations that must be protected, and the fact that licensees in these bands must share frequencies. Report to Congress: 27. The Commission will send a copy of this Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. 667 In addition, the Commission will send a copy of this Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this Order and FRFA (or summaries thereof) will also be published in the Federal Register. 668 667 5 U.S.C. ง 801 (a)(I)(A). 668 See 5 U.S.C. ง 604(b). !OO67 Federal Communications Commission FCC02~lS2 APPENDIX D - List of National Weather Sen'ice Radiosondes 10 Location State Latitude Longitude 1 ANCHORAGE AK 611000N 1500100W 2 ANNETTE AK 550200N 1313400W 3 BARROW AK 711800N 1564700W 4 BARTER AK 700800N 1434000W 5 BETHEL AK 604700N 1614800W 6 BETTLES AK 665500N 1513100W 7 COLD BAY AK 551200N 1624300W 8 FAIRBANKS AK 644900N 1475200W 9 FORT YUKON AK 663400N 1451600W 10 GALENA AK 644300N 1565400W 11 KING SALMON AK 584100N 1563900W 12 KODIAK AK 574500N 1523000W 13 KOTZEBUE AK 665200N 1623800W 14 MCGRATH AK 625800N 1553700W 15 NOME AK 643000N 1652600W 16 SAINT PAUL IS AK 570900N 1701300W 17 SHEMYA AK 524300N 1740600E 18 TANACROSS AK 662300N 1432000W 19 YAKUTAT AK 593100N 1394000W 20 ALABASTER AL 331048N 0864658W 21 LITTLE ROCK AR 345000N 0921500W 22 FLAGSTAFF AZ 351350N 1114911W 23 TUCSON AZ 3207XXN 11056XXW 24 OAKLAND CA 374500N 1221300W 25 RIVERSIDE CA 3359XXN 11721XXW 26 SAN DIEGO CA 325040N 1170723W 27 VANDENBURG CA 3445XXN 12034XXW 28 DENVER CO 394628N 1045247W 29 GRAND JUNCTION CO 390712N 1083128W 30 MARSHALL CO 3957XXN 10511XXW 31 JACKSONVILLE INTL FL 302900N 0814202W 32 KEY WEST FL 243500N 0814200W 33 MIAMI FL 254517N 0802302W 34 TALLAHASSEE FL 302345N 0842102W 35 TAMPA FL 275800N 0823200W 36 CHUUK FSM 072735N 1515040E 37 POHNPEI FSM 065800N 1581230E 38 YAP FSM 092918N 1380506E 39 PEACHTREE CITY GA 332122N 0843403W 40 TAGUAC GUM 133300N 1445000E 41 BARKING SANDS HI 220200N 1594700W 42 HILO HI 194300N 1550400W 43 LIHUE HI 215900N 1592100W 44 DAVENPORT IA 413645N 0903455W 10068 Federal Communications Commission FCC 02-152 45 BOISE ID 4334XXN 11613XXW 46 LINCOLN IL 395121N 0894026W 47 JOHNSTON IS JON 164400N 1693100W 48 DODGE CITY KS 374537N 0995806W 49 TOPEKA KS 390420N 0953749W 50 LAKE CHARLES LA 300700N 0931300W 51 SHREVEPORT LA 322709N 0935028W 52 SLIDELL LA 302100N 0894900W 53 CHATHAM MA 413943N 0695757W 54 CARIBOU ME 465206N 0680045W 55 PORTLAND ME 435334N 0701524W 56 KWAJALEIN MHL 084400N 1674400E 57 MAJURO MHL 070513N 1712238E 58 WATERS MI 445430N 0844259W 59 WHITE LAKE MI 424159N 0832819W 60 CHANHASSEN MN 445050N 0933352W 61 INTERNATIONAL F MN 483352N 0932349W 62 SPRINGFIELD MO 371517N 0932303W 63 JACKSON MS 321900N 0900500W 64 GLASGOW MT 481221N 1063733W 65 GREAT FALLS MT 472738N 1112304W 66 GREENSBORO NC 360553N 0795635W 67 MOREHEAD CITY NC 344635N 0765241W 68 BISMARCK ND 464619N 1004540W 69 NORTH PLAnE NE 410800N 1004100W 70 VALLEY NE 411913N 0962202W 71 ALBUQUERQUE NM 3503XXN 10637XXW 72 SANTA TERESA NM 315220N 1064152W 73 DESERT ROCK ARP NV 363714N 1160100W 74 ELKO NV 405138N 1154428W 75 RENO NV 393411N 1194740W 76 YUCCA PASS NV 365721N 1160259\IV 77 ALBANY NY 424133N 0734956W 78 BROOKHAVEN NY 405154N 0725148W 79 BUFFALO NY 425622N 0784328W 80 WILMINGTON OH 392514N 0834917W 81 NORMAN OK 351400N 0972700W 82 MEDFORD OR 422253N 1225240W 83 SALEM OR 4455XXN 12301XXW 84 PITISBURGH PA 403152N 0801259W 85 KOROR PLW 072000N 1342840E 86 SAN JUAN PR 182600N 0660000W 87 ABERDEEN SD 452720N 0982447W 88 RAPID CITY SD 440437N 1031259W 89 PAGO PAGO SMA 142000S 1704300W 90 NASHVILLE TN 3615XXN 08634XXW 91 AMARILLO TX 3514XXN 10142XXW 10069 Federal Communications Commission FCC 02-152 92 BROWNSVILLE TX 2554XXN 09726XXW 93 CORPUS CHRISTI TX 274600N 0973000W 94 DEL RIO TX 2922XXN 10055XXW 95 FORT WORTH TX 325002N 0971751W 96 MIDLAND TX 315600N 1021200W 97 SALT LAKE CITY UT 404713N 111580SW 98 BLACKSBURG ARPT VA 371221N 0802452W 99 STERLING VA 385838N 0772817W 100 WALLOPS ISLAND VA 375542N 0752834W 101 QUILLAYUTE WA 475603N 1243339W 102 SPOKANE WA 474054N 1173738W 103 WAKE ISLAND WAK 1917XXN 16639XXE 104 GREEN BAY WI 442920N 0880629W 105 RIVERTON WY 430358N 1082836W 106 GREENBELT MD 385958N 0765031W 107 ALBUQUERQUE NM 350200N 1063700W 108 TONOPAH TEST RA NV 374800N 1164500W 109 WALLOPS ISLAND VA 375000N 0752930W 10070 Federal Communications Commission Appendix E - Final Rules Part I ofTitle 47 ofthe Code ofFederal Regulations, is revised to read as follows: PART I-PRACTICE AND PROCEDURE The authority citation for Part I continues to read as follows: FCC 02-152 AUTHORITY: 47 U.S.c. lSI, 154(i), 154(j), 155,225, 303(r), 309, and 325(e) unless otherwise noted. 28. Section I.924(f) is amended to read as follows: ง 1.924 Quiet zones. • * • * • (f) GOES. The requirements ofthis paragraph are intended to minimize harmful interference to Geostationary Operational Environmental Satellite earth stations receiving in the band 1670-1675 MHz, which are located at Wallops Island, Virginia; Fairbanks, Alaska; and Greenbelt, Maryland. (I) Applicants and licensees planning to construct and operate a new or modified station within the area bounded by a circle with a radius of 100 kilometers (62.1 miles) that is centered on 37ฐ 56' 47" N, 75ฐ 27' 37" W (Wallops Island) or 64ฐ 58' 36" N, 147ฐ 31' 03" W (Fairbanks) or within the area bounded by a circle with a radius of65 kilometers (40.4 miles) that is centered on 39ฐ00' 02" N, 76ฐ 50' 31" W (Greenbelt) must notify the National Oceanic and Atmospheric Administration (NOAA) ofthe proposed operation. For this purpose, NOAA maintains the GOES coordination web page at http://www.osd.noaa.gov/radio/frequency.htm. which provides the technical parameters ofthe earth stations and the point-of-contact for the notification. The notification shall include the following information: requested frequency, geographical coordinates ofthe antenna location. antenna height above mean sea level, antenna directivity, emission type, equivalent isotropically radiated power. antenna make and model, and transmitter make and model. (2) Protection. (a) Wallops Island and Fairbanks. Licensees are required to protect the Wallops Island and Fairbanks sites at all times. (b) Greenbelt. Licensees are required to protect the Greenbelt site only when it is active. Licensees should coordinate appropriate procedures directly with NOAA for receiving notification oftimes when this site is active. (3) When an application for authority to operate a station is filed with the FCC, the notification required in paragraph (f)(I) ofthis section should be sent at the same time. The application must state the date that notification in accordance with paragraph (f)( I) ofthis section was made. After receipt ofsuch an application, the FCC will allow a period of20 days for comments or objections in response to the notification. (4) If an objection is received during the 20-day period from NOAA, the FCC will, after consideration ofthe record, take whatever action is deemed appropriate. 10071 Federal Communications Commission 29. Section 1.1307 is amended to read as follows: FCC 02-152 ง 1.1307 Actions that may have a significant environmental effect, for which Environmental Assignments (EAs) must be prepared. ••••• (b) •• * TABLE I - TRANSMITTERS, FACILITIES AND OPERAnONS SUBJECT TO ROUTINE ENVIRONMENTAL EVALUATIONท SERVICE (TITLE 47 CFR RULE PARn EVALUAnON REQUIRED IF: ***•• ••••• Wireless Communications Service (Part 27) (I) for the 1390-1392 MHz, 1392-1395 MHz, 1432- 1435 MHz 1670-1675 MHz and 2385-2390 MHz bands: Non-building-mounted antennas: height above ground level to lowest point ofantenna < 10m and total power ofall channels> 2000 W ERP (3280 W EIRP) Building-mountedantennas: total power ofall channels> 2000 W ERP (3280 W EIRP) (2) for the 746-764 MHz, 776-794 MHz, 2305-2320 MHz, and 2345-2360 MHz bands Total power ofall channels> 1000 W ERP (1640 W EIRP) ••••• ••••• Part 2 oftitle 47 ofthe Code ofFederal Regulations is revised to read as follows: PART 2 - FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS The authority citation for Part 2 continues to read as follows: AUTHORITY: 47 U.S.c. 154, 302a, 303, and 336, unless otherwise noted. 30. Section 2.106, the Table of Frequency Allocations, footnotes, US74, US350 and US362 are amended to read as follows: ง 2.106 Table ofFrequenc:y Allocations. ••••• UNITED STATES (US) FOOTNOTES ••••• 10072 Federal Communications Commission FCC 02-152 US74 In the: bands 25.55-25.67.73.0-74.6,406.1-410.0.608-614. 14110-142i. 1660.5-1670.0. 2690-2700 and 4990-5000 MHz and in tho: bands 10.68-10.7. 15.35-15.-1,23.6-~~4.0.J 1.3-31.5.86-92, 105-116 and 217-231 GHz, the: radio astronomy service shall be protected limn c.:xtraband radiation only to the extent that such radiation exceeds the level which would be present if the olfe:nding station were operating in compliance with the technical standards or criteria applicable to the: service in which it operates. Radio astronomy observations in these bands are performed at the locations listed in US311 . • • • • • US350 In the bands 608-614 MHz and 1395-1400 I'vtHz the Government and non-Government land mobile service is limited to medical telemetry and medical telecommand operations. Availability and use ofmedical telemetry and telecommand and non-medical telemetry and telecolllmand in the band 1427ท1432 MHz are described below: 1427-1429 lv'lHz 1431.5-1432 MHz Govenunent aJld non-Government land mobile service is limited to medical I telemetry and tclecommand operatlon~;. I I Non-Go\'~rnlllenttelemetry and telecommand lise is pennitted on asecomlar~hasis. I ----------------_._----------~~._-,--- RichmondlNorfolk, Virginia Washington. DC metropolitan area Pittsburgh, Pennsylvania Spokane. Washington Location I (see งง 90.259(b)(4) and 95.630(b) of this chapter fora~1 detailed description) . Austin/Georgetown. Texas Non-Gove:rnment land mohi Ie: Battle Creek, Michigan ' service is limited to telemetry and -=---:---:--:-:-:-. .,.....--------1 tc Ic:command operations, Detroit, Michigan Location --1-------1427.:)429.5MI:J7:---'-.---- i-:t-:iti."S-1432 MHz "CR=-e-s-t-o-::rC:-U':""."'S:::.-=- ----------G()ve~_;.;_;;:;_~mandท;on-Go;,;;.nme~tTN;;~~~;~~~~~~;~I~t-i~~d'-'m:::o-b....,i-Ie-- land mobile service is limited to '[ ,c:rviu: is lilllilcd to tc!t:l1Ietry medical telemetry and telecommand and telecomnwlld operations. npcri,tinn". Non-uovemmc:nl te:lemetr} and ______________________J~~;(;~:I:~;~~:~_'~~~:~:ttedon_~_ ... ,.. * • US162 The band 1670-1675 MHz is allocated to the lllcteorol"Fic,II-:,atcllite service (space-to-Earth) on a primary basis for Government use. Earth statiull use ofthi:; all<)(;alion is limited to Wallops Island, VA Cpo 56' 47" N. 75ฐ 27' 37" W). Fairbanks. AK (64' 58' 36" N. 147 0 31' 03" W),and Greenbelt. MD (39 0 00' 02" N. 76ฐ 50' 31" W). Applicants for non-(jovcmlllclll stations within 100 kilometers ofthe Wallops Island or Fairbanks coordinates and within 65 kil"IIlclns of the Greenbelt coordinatesshalln()tit~NOAA in accordance with the procedures specified in 4'1 C.F.R. ง 1.924. 10073 Federal Communications Commission FCC 02-152 31. Part 27 oftitle 47 ofthe Code ofFederal Regulations is revised to read as follows: PART 27 - MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES 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. 32. Section 27.1 is amended to read as follows: ง 27.1 Basis and purpose. ........ (b) • • • (4) 1390-1392 MHz. (5) 1392-1395 MHz and 1432-1435 MHz. (6) 1670-1675 MHz. (7) 2385-2390 MHz. 33. Section 27.4 is amended to add the following definition: ง 27.4 Terms and definitions. ......... Affiliate. This term shall have the same meaning as that for "affiliate" in part I. ง 1.21 10(b)(5) of this chapter. • •• Band Manager. The term Band Manager refers to a licensee in the paired 1392-1395 MHz and 1432-1435 MHz bands and the unpaired 1390-1392 MHz, 1670-1675 MHz and 2385-2390 MHz bands that functions solely as a spectrum broker by subdividing its licensed spectrum and making it available to system operators or directly to end users for fixed or mobile communications consistent with Commission Rules. A Band Manager is directly responsible for any interference or misuse ofits licensed frequency arising from its use by such non-licensed entities. 34. Section 27.5 is amended to read as follows: ง 27.5 Frequencies ......... (d) 1390-1391 MH= band. The 1390-1392 MHz band is available for assignment on a Major Economic Area basis. (e) The paired /392-/395 and /432-/435 MHz bands. The paired 1392-1395 MHz and 1432 1435 MHz bands are available for assignment on an Economic Area Grouping basis as follows: 10074 Federal Communications Commission Block A: 1392-1393.5 MHz and 1432-1433.5 MHz; and Block B: 1393.5-1395 MHz and 1433.5-1435 MHz. FCC 02-152 (f) /670-/675 MHz band. The 1670-1675 MHz band is available for assignment on a nationwide basis. (g) 2385-2390 MHz band. The 2385-2390 MHz band is available for assignment on a nationwide basis. 35. Section 27.6 is amended to read as follows: ง 27.6 Service areas. * * * • • (d) 1390-/392 MHz band. Service areas for the 1390-1392 MHz band is based on Major Economic Areas (MEAs), as defined in paragraphs (a)( I) and (a)(2) of this section. (e) The paired 1392-/395 and 1432-1435 MHz bands. Service areas for the paired 1392-1395 and 1432-1435 MHz bands are as follows. Service areas for Block A in the 1392-1393.5 MHz and 1432 1433.5 MHz bands and Block B in the 1393.5-1395 MHz and 1433.5-1435 MHz bands are based on Economic Area Groupings (EAGs) as defined in paragraph (b)(2). (f) /670-/675 MHz band. Service areas for the 1670-1675 MHz band are available on a nationwide basis. (g) 2385-2390 MHz band. Service areas for the 2385-2390 MHz band are available on a nationwide basis. 36. Section 27.10 is revised to read as follows: ง 27.10 Regulatory status. Except with respect to Band Manager licenses and Guard Band Manager licenses, which are subject to subpart G ofthis part, the following rules apply concerning the regulatory status of licensees in the frequency bands specified in ง 27.5. •• • • • 37. Section 27.11 is revised to read as follows: ง 27.11 Initial authorization. • • • * * (e) 1390-/392 MHz band. Initial authorizations for the 1390-1392 MHz band shall be for 2 megahertz ofspectrum in accordance with ง27.5(c). Authorizations will be based on Major Economic Areas (MEAs), as specified in ง27.6(c). (f) The paired /392-/395 MHz and /432-/435 MHz bands. Initial authorizations for the paired 1392-1395 MHz and 1432-1435 MHz bands shall be for 3 megahertz of paired spectrum in accordance with ง27.5(d). Authorization for Blocks A and B will be based on Economic Areas Groupings (EAGs), as specified in ง27.6(d). 10075 Federal Communications Commission FCC 02-152 (g) 1670-/675 MHz band. Initial authorizations forthe 1670-1675 MHz band shall be for 5 megahertz ofspectrum in accordance with ง27.5(e). Authorizations will be on a nationwide basis. (h) 2385-2390 MHz band. Initial authorizations for the 2385-2390 MHz band shall be for 5 megahertz of spectrum in accordance with ง27.5(f). Authorizations will be on a nationwide basis. •• •• • 38. Section 27.12 is amended to read as follows: ง 27.12 Eligibility. (a) Except as provided in ง 27.604, any entity other than those precluded by section 310 ofthe Communications Act of 1934, as amended, 47 U.S.c. ง 310, is eligible to hold a license under this part. (b) Band Manager licenses. For the 1392-1395 MHz, 1670-1675 MHz, and 2385-2390 MHz bands and the paired 1392-1395 MHz and 1432-1435 MHz bands, applicants applying for an initial license may elect to operate as a Band Manager, subject to the rules governing Guard Band Managers under subpart G. provided however, that the following rules do not apply to Band Managers: (I) The prohibition in Section 27.601(a) and (b) against employing a cellular system architecture; (2) The requirement in Section 27.601(d)(l) to notify Public Safety frequency coordinators; (3) The requirement in Section 27.603(c) to lease the predominant amount ofits spectrum to non-affiliates; (4) The prohibition in Section 27.604 against a single applicant becoming the winning bidder of both blocks A and B in a single geographic service area; and (5) The requirement in Section 27.605 that any entity that acquires a portion ofa Guard Band Manager's spectrum or geographic area through partitioning or disaggregation must also act as a band manager. Section 27.13 is amended to read as follows: ง 27.13 License period. • •••• (c) /390- / 392 MHz hand. Initial authorizations for the 1390-1392 MHz band will have a tenn not to exceed ten years from the date of initial issuance or renewal. (d) The paired /392-/395 alld /-132-/435 MHz bands. Initial WCS authorizations for the paired 1392-1395 MHz and 1432-1435 MHz bands will have a tenn not to exceed ten years from the date of initial issuance or renewal. (e) /670-/675 MHz band. Initial authorizations forthe 1670-1675 MHz band will have a tenn not to exceed ten years from the date of initial issuance or renewal. (f) 2385-2390 MHz band. Initial authorizations for the 2385-2390 MHz band will have a tenn not to exceed ten years from the date ofinitial issuance or renewal. 39. Section 27.50 is amended by adding new paragraphs (d), (e), and (f) to read as follows 10076 Federal Communications Commission and redesignating paragraphs (d) as paragraph (g) : ง 27.50 Power and antenna height limits. • • • • • FCC 02-152 (d) The following power limits apply to the paired 1392-1395 MHz and 1432-1435 MHz bands as well as the unpaired 1390ท1392 MHz band (1.4 GHz band): (1) Fixed stations transmitting in the 1390-1392 MHz and 1432-1435 MHz bands are limited to 2000 watts EIRP peak power. Fixed stations transmitting in the 1392-1395 MHz band are limited to 100 watts EIRP peak power. (2) Mobile stations transmitting in the 1390-1392 MHz and 1432-1435 MHz bands are limited to 4 watts EIRP peak power. Mobile stations transmitting in the 1392-1395 MHz band are limited to 1 watt EIRP peak power. (e) The following power limits apply to the 1670-1675 MHz band: (1) Fixed and base stations are limited to 2000 watts EIRP peak power. (2) Mobile stations are limited to 4 watts EIRP peak power. (f) The following power limits apply to the 2385-2390 MHz band: (I) Fixed and base stations are limited to 2000 watts EIRP peak power. (2) Mobile and aeronautical mobile stations are limited to 4 watts EIRP peak power. • • • • * Section 27.53 is amended to read as follows: ง 27.53 Emission limits. • • * • * (g) For operations in the unpaired 1390-1392 MHz band and the paired 1392-1395 MHz and 1432-1435 MHz bands, the power of any emission outside the licensee's frequency band(s) of operation shall be attenuated below the transmitter power (P) by at least 43 T 10 log (P) dB. Compliance with these provisions is based on the procedures described in paragraph (a)( 4). (h) For operations in the 1670-1675 MHz band, the power of any emission outside the licensee's frequency band(s) ofoperation shall be attenuated below the transmitter power(P) by at least 43 + 10 log (P) dB. Compliance with these provisions is based on the procedures described in paragraph (a)(4). (i) For operations in the 2385-2390 MHz band. the power of any emission outside the licensee's frequency band(s) ofoperation shall be attenuated below the transmitter power (P) by at least 43 + 10 log (P) dB. Compliance with these provisions is based on the procedures described in paragraph (a)(4). (j) When an emission outside of the authorized bandwidth causes harmful interference, the Commission may, at its discretion, require greater attenuation than specified in this section. 40. Section 27.55(a) is amended to read as follows: ง 27.55 Field strength limits. (a) • • • 10077 Federal Communications Commission FCC 02-152 (3) The paired 1392-1395 MHz and 1432-1435 MHz bands and the unpaired 1390-1392 MHz band (1.4 GHz band): 47 dBuV/m. We add a new Subpart to Part 27 as follows: Subpart I - 1.4 GHz Band ง 27.801 Scope. This subpart sets out the regulations governing service in the paired 1392-1395 MHz and 1432 1435 MHz bands as well as the unpaired 1390-1392 MHz band (1.4 GHz band). ง 27.802 Permissible communications. Licensees in the paired 1392-1395 MHz and 1432-1435 MHz bands and unpaired 1390-1392 MHz band are authorized to provide fixed or mobile service, except aeronautical mobile service, subject to the technical requirements of this subpart. ง 27.803 Coordination requirements. (a) Licensees in the 1.4 GHz band will be issued geographic area licenses in accordance with the service areas listed in ง27.6(d) and (e). (b) Licensees in the 1.4 GHz Service must file a separate station application with the Commission and obtain an individual station license. prior to construction or operation, ofany station: (I) that requires submission ofan Environmental Assessment under Part 1, ง 1.1307; (2) that requires international coordination: (3) that operates in the quiet zones listed in Part J. ง1.924; or (4) that requires approval of the Frequency Advisory Subcommittee (FAS) ofthe Interdepartment Radio Advisory Committee (IRAC). Stations that require FAS approval are as follows: (i) licensees in the 1390-1392 MHz and 1392-1395 MHz band must receive FAS approval prior to operation of fixed sites or mobile units within the NTIA recommended protection radii of the Government sites listed in footnote US351 of ง 2.106. (ii) licensees in the 1432-1435 MHz band must receive FAS approvaL prior to operation affixed sites or mobile units within the NTiA recommended protection radii of the Government sites listed in footnote US361 ofง 2.106. (c) Prior to construction ofa station. a licensee in the 1.4 GHz Band must register with the Commission any station antenna structure for which notification to the Federal Aviation Administration is required by Part 17 of this chapter. (d) It is the licensee's responsibility to determine whether an individual station needs referral to the Commission. (e) The application required in subparagraph (b) must be filed on the Universal Licensing System. 10078 Federal Communications Commission ง 27.804 Field Strength Limits at WMTS Facility. FCC 02-152 For any operation in the 1392-1395 MHz band, the predicted or measured field strength - into the WMTS band at 1395-1400 MHz - shall not exceed 150 uV1m at the location ofany registered WMTS healthcare facility. When performing measurements to determine compliance with this provision, measurement instrumentation employing an average detector and a resolution bandwidth of 1 MHz may be used, provided it accurately represents the true interference potential ofthe equipment. ง 27.805 Geographic partitioning and spectrum disaggregation. An entity that acquires a portion of a 1.4 GHz band licensee's geographic area or spectrum subject to a geographic partitioning or spectrum disaggregation agreement under ง 27.15 must function as a 1.4 GHz band licensee and is subject to the obligations and restrictions on the 1.4 GHz band license as set forth in this subpart. ง 27.806 1.4 GHz Service licenses subject to competitive bidding. Mutually exclusive initial applications for 1.4 GHz Band licenses in the paired 1392-1395 MHz and 1432-1435 MHz bands as well as the unpaired 1390-1392 MHz band are subject to competitive bidding. The general competitive bidding procedures set forth in Part I, Subpart Q ofthis chapter will apply unless otherwise provided in this subpart. ง 27.807 Designated entities. (a) Eligibility for small business provisions for 1.4 GHz band licenses in the paired 1392-1395 MHz and 1432-1435 MHz bands and the unpaired 1390-1392 MHz band. (1) A very small business is an entity that, together with its controlling interests and affiliates, has average annual gross revenues not exceeding $15 million for the preceding three years. (2) A small business is an entity that, together with its controlling interests and affiliates, has average annual gross revenues not exceeding $40 million for the preceding three years. (3) A consortium of very small businesses is a conglomerate organization formed as ajoint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)( 1) ofthis section. A consortium ofsmall 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) ofthis section. (4) For purposes ofdetermining whether an entity meets any ofthe definitions set forth in paragraphs (a)( 1), (a)(2), or (a)(3) ofthis section, the gross revenues ofthe entity, its controlling interests and affiliates shall be considered in the manner set forth in ง 1.211O(b) and (cl ofthis chapter. (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 ง 1.211 O(f)(2)(ii) ofthis 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 ง 1.211 O(f)(2)(iii) ofthis chapter. We add a new Subpart to Part 27 as follows: Subpart J - 1670-1675 MHz Band. ง 27.901 Scope. 10079 Federal Communications Commission FCC 02-152 This subpart sets out the regulations governing service in the 1670-1675 MHz band (1670-1675 MHz band). ง 27.902 Permissible communications. Licensees in the 1670-1675 MHz band are authorized to provide fixed or mobile service, except aeronautical mobile service, subject to the technical requirements ofthis subpart. ง 27.903 Coordination requirements. (a) The Licensee in the 1670-1675 MHz band will be issued a geographic area license on a nationwide basis in accordance with ง27.6(f). (b) Licensees in the 1670-1675 MHz band must file a separate station application with the Commission and obtain an individual station license, prior to construction or operation, ofany station: (1) that requires submission ofan Environmental Assessment under Part I, ง 1.1307; (2) that requires international coordination; (3) that operates in the quiet zones listed under Part I, ง 1.924. (c) The application required in subparagraph (b) must be filed on the Universal Licensing System. (d) Prior to construction ofa station, a licensee must register with the Commission any station antenna structure for which notification to the Federal Aviation Administration is required by Part 17 of this chapter. (e) It is the licensee's responsibility to determine whether an individual station requires referral to the Commission. ง 27.904 Geographic partitioning and spectrum disaggregation. An entity that acquires a portion ofa 1670-1675 MHz band licensee's geographic area or spectrum subject to a geographic partitioning or spectrum disaggregation agreement under ง 27.15 must function as a 1670-1675 MHz licensee and is subject to the obligations and restrictions on the 1670-1675 MHz license as set forth in this subpart. ง 27.905 1670-1675 MHz Service licenses subject to competitive bidding. Mutually exclusive initial applications for the 1670-1675 MHz Band license are subject to competitive bidding. The general competitive bidding procedures set forth in Part I, Subpart Q of this chapter will apply unless otherwise provided in this subpart. ง 27.906 Designated entities. (a) Eligibility for small business provisions. (I) A very small business is an entity that, together with its controlling interests and affiliates, has average annual gross revenues not exceeding $15 million for the preceding three years. 10080 Federal Communications Commission FCC 02-152 (2) A small business is an entity that, together with its controlling interests and affiliates, has average annual gross revenues not exceeding $40 million for the preceding three years. (3) A consortium ofvery small businesses is a conglomerate organization formed as ajoint venture between or among mutually independent business firms, each ofwhich individually satisfies the definition in paragraph (a)(l) ofthis section. A consortium ofsmall 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) ofthis section. (4) For purposes ofdetermining whether an entity meets any ofthe definitions set forth in paragraphs (a)(I), (a)(2), or (a)(3) ofthis section, the gross revenues ofthe entity, its controlling interests and affiliates shall be considered in the manner set forth in ง 1.2110(b) and (c) ofthis chapter. (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 ง 1.211 0(f)(2)(ii) ofthis chapter. A winning bidder that qualifies as a small business or a consortium ofsmall businesses as defined in this section may use the bidding credit specified in ง 1.2110(f)(2)(iii) ofthis chapter. We add a new Subpart to Part 27 as follows: Subpart K - 2385-2390 MHz Band. ง 27.1001 Scope. This subpart sets out the regulations governing service in the 2385-2390 MHz band (2385-2390 MHz band). ง 27.1002 Permissible communications. Licensees in the 2385-2390 MHz band are authorized to provide fixed or mobile service, including aeronautical mobile, subject to the technical requirements ofthis subpart. ง 27.1003 Coordination requirements. (a) The Licensee in the 2385-2390 MHz band will be issued a geographic area license on a nationwide basis in accordance with ง27.6(g). (b) The Licensee in the 2385ท2390 MHz Band must file a separate station application with the Commission and obtain an individual station license, prior to construction or operation, ofany station: (I) that requires submission ofan Environmental Assessment under Part I, ง 1.1307; (2) that requires international coordination; (3) that operates in the quiet zones listed in Part I, ง 1.924; (4) that requires approval ofthe Frequency Advisory Subcommittee (FAS) ofthe Interdepartment Radio Advisory Committee(IRAC). The Licensee in the 2385-2390 MHz Band must receive FAS approval prior to operation of fixed sites or mobile units within the NTIA recommended protection radii ofthe Government aeronautical telemetry sites listed in footnote US363 ofง 2.106. 10081 Federal Communications Commission FCC 02-152 (c) The Licensee in the 2385-2390 MHz Band must file a separate station application with the Commission and obtain an individual station license prior to construction or operation ofany station that would require approval ofthe Aeronautical Flight Test Radio Coordinating Council (AFTRCC). Any fixed sites or mobile units within the protection radi i ofthe non-Government flight test operations listed in footnote US363 ofง 2.106 will require AFTRCC approval. The Licensee in the 2385-2390 MHz Band must receive AFTRCC approval prior to filing an application and the application must contain a showing of AFfRCC approval. (d) Prior to construction ofa station. the 2385-2390 MHz licensee must register with the Commission any station antenna structure for which notification to the Federal Aviation Administration is required by Part 17 ofthis chapter. (e) It is the licensee's responsibility to determine whether a referral to the Commission is needed for any individual station constructed. (f) The application required in subparagraphs (b) and (c) must be filed on the Universal Licensing System. ง 27.1004 Geographic partitioning and spectrum disaggregation. An entity that acquires a portion ofa 2385-2390 MHz licensee's geographic area or spectrum subject to a geographic partitioning or spectrum disaggregation agreement under ง 27.15 must function as a 2385-2390 MHz licensee and is subject to the obligations and restrictions on the 2385-2390 MHz license as set forth in this subpart. . ง 27.1005 238>2390 MHz Service licenses subject to competitive bidding. Mutually exclusive initial applications for the 2385-2390 MHz Band license are subject to competitive bidding. The general competitive bidding procedures set forth in Part I, Subpart Q ofthis chapter will apply unless otherwise provided in this subpart. ง 27.1006 Designated entities. (a) Eligibility for small business provisions. (I) A very small business is an entity that. together with its controlling interests and affiliates, has average annual gross revenues not exceeding $15 million for the preceding three years. (2) A small business is an entity that. together with its controlling interests and affiliates, has average annual gross revenues not exceeding $40 million for the preceding three years. (3) A consortium ofvery small businesses is a conglomerate organization formed as ajoint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (aX I) ofthis 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 (aX2) ofthis section. (4) For purposes ofdetermining whether an entity meets any ofthe definitions set forth in paragraphs (aX I), (aX2), or (aX3) ofthis section. the gross revenues ofthe entity, its controlling interests and affiliates shall be considered in the manner set forth in ง 1.211 O(b) and (c) ofthis chapter. 10082 Federal Communications Commission FCC 02-152 (b) Bidding credits. A winning bidder that qualifies as a very small business or a consonium of very small businesses as defined in this section may use the bidding credit specified in ง 1.211 0(f)(2)(ii) ofthis chapter. A winning bidder that qualifies as a small business or a consonium ofsmall businesses as defined in this section may use the bidding credit specified in ง 1.211 0(f)(2)(iii) of this chapter. 41. Pan 87 oftitle 47 ofthe Code of Federal Regulations, is amended to read as follows: PART 87 - AVIATION SERVICES The authority citation for Pan 87 continues to read as follows: AUTHORITY: Sections 4, 303, 307(e), 309, and 332, 48 Stat, 1066, 1082, as amended; 47 U,S.C. 154,303, 307(e), 309, and 332. 42. Section 87.173 is amended to read as follows: ••••• (b) Frequency table: Frequency or frequency band Subpan Class of station Remarks ••••• ••••• ••••• ••••• 2310-2390 MHz ••••• ••••• ••••• ••••• ••••• ••••• ••••• I All operation in the 2385-2390 MHz ponion ofthe 2310-2390 MHz band are secondary to WCS operations in accordance with subpan K of Pan 27 except at the locations listed in footnote US363 of ง 2.106. Operations at the locations listed in footnote US363 of ง"2.1 06 will remain primary until January 1,2007. After January 1,2007, all operations in the 2385-2390 MHz ponion ofthe 2310-2390 MHz band will be secondary to WCS operations in accordance with subpart K of Part 27. 43. Pan 90 oftitle 47 ofthe Code of Federal Regulations, is amended to read as follows: PART 90 - PRIVATE LAND MOBILE RADIO SERVICES The authority citation for Pan 90 continues to read as follows: AUTHORITY: Sections 4(i), 11, 303(g), 303(r), and 302(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7). 44. Section 90.20 is amended to read as follows: • • • • • (c) * * * (3) Frequencies. PUBLIC SAFETY POOL FREQUENCY TABLE Frequency or band Class ofstation(s) Limitations 10083 Coordinator Federal Communications Commission FCC 02-152 Kilohertz ••••• ••••• ••••• ••••• Megahertz ••••• ••••• ••••• ••••• 1427 to 1432 Base, mobile or 72. operational fixed. ••••• ••••• ••••• ••••• The 1432 to 1435 MHz band is removed from the Public Safety Pool frequency table. 45. Section 90.35 is amended to read as follows: ง 90.35 IndustriallBusiness Pool. ••••• (b) ••• (3) Frequencies. INDUSTRIALIBUSINESS POOL FREQUENCY TABLE Frequency or band Class ofstation(s) Limitations Coordinator Kilohertz ••••• ••••• ••••• ••••• Megahenz 216 to 217............... Base or mobile. 55. 217t0220............... Base, mobile, or 55. operational fixed. ••••• ••••• ••••• ••••• 1427 to 1432 Base, mobile or 55. operational fixed. ••••• ••••• ••••• ••••• The 1432 to 1435 MHz band is removed from the IndustriallBusiness Pool frequency table. 46. Section 90.175 is amended as follows: ง 90.175 Frequency Coordinator Requirements. Except for applications listed in paragraph U> ofthis section, each application for a new frequency assignment, for a change in existing facilities as listed in ง 90.135(a), or for operation at temporary locations in accordance with ง 90.137 must include a showing offrequency coordination as set fonh below. (a) Frequency coordinators may request, and applicants are required to provide, all appropriate technical information, system requirements, and justification for requested station parameters when such information is necessary to identify and recommend the most appropriate frequency. Additionally, applicants bear the burden of proceeding and the burden of proof in requesting the Commission to ovenum a coordinator's recommendation. )0084 Federal Communications Commission FCC 02-152 (b) For frequencies between 25 and 470 MHz: (1) A statement is required from the applicable frequency coordinator as specified in งง ?0.20(c)(2) and 90.35(b) recommending the most appropriate frequency. In addition, ifthe interference contour ofa proposed station would overlap the service contour ofa station on a frequency fonnerly shared prior to radio service consolidation by licensees in the Manufacturers Radio Service, the Forest Products Radio Service. the Power Radio Service, the Petroleum Radio Service, the Motor Carrier Radio Service, the Railroad Radio Service or the Automobile Emergency Radio Service, the written concurrence ofthe coordinator for the industry-specific service, or the written concurrence ofthe licensee itself, must be obtained. Requests for concurrence must be responded to within 20 days ofreceipt ofthe request. The written request for concurrence shall advise the receiving party ofthe maximum 20 day response period. The coordinator's recommendation may include comments on technical factors such as power, antenna height and gain, terrain and other factors which may serve to minimize potential interference. In addition: (2) On frequencies designated for coordination or concurrence by a specific frequency coordinator as specified in งง 90.20(c)(3) and 90.35(bl. the applicable frequency coordinator shall provide a written supporting statement in instances in which coordination or concurrence is denied. The supporting statement shall contain sufficient detail to pennit discernment ofthe technical basis for the denial ofconcurrence. Concurrence may be denied only when a grant of the underlying application would have a demonstrable, material, adverse effect on safety. (3) In instances in which a frequency coordinator determines that an applicant's requested frequency or the most appropriate frequency is one designated for coordination or concurrence by a specific frequency coordinator as specified in งง 90.20(c)(3) or 90.35(b). that frequency coordinator may forward the application directly to the appropriate frequency coordinator. A frequency coordinator may only forward an application as specified above ifconsent is received from the applicant. (c) For frequencies above 800 MHz: When frequencies are shared by more than one service, concurrence must be obtained from the other applicable certified coordinators. (d) For frequencies in the 450-470 MHz band: When used for secondary fixed operations, frequencies shall be assigned and coordinated pursuant to ง 90.261. (e) For frequencies between 470 and 512 MHz. 764-776/794-806 MHz. 806.-824/851-869 MHz, and 896-901/935-940 MHz: A recommendation ofthe specific frequencies that are available for assignment in accordance with the loading standards and mileage separations applicable to the specific radio service. frequency pool, or category of user involved is required from an applicable frequency coordinator. (f) For frequencies in the 929-930 MHz band listed in paragraph (b) ofง 90.494: A statement is required from the coordinator recommending the most appropriate frequency. (g) For frequencies between 1427-1432 MHz: A statement is required from the coordinator recommending the most appropriate frequency. operating power and area ofoperation in accordance with the requirements of ง 90.259(b). (h) Any recommendation submitted in accordance with paragraphs (a). (c), (d), or (e) ofthis section is advisory in character and is not an assurance that the Commission will grant a license for operation on that frequency. Therefore, applicants are strongly advised not to purchase radio equipment operating on specific frequencies until a valid authorization has been obtained from the Commission. (i) Applications for facilities near the Canadian border north of line A or east of line C in Alaska may require coordination with the Canadian government. See ง 1.955 of this chapter. 10085 Federal Communications Commission FCC 02-152 G) The following applications need not be accompanied by evidence offrequency coordination: (1) Applications for frequencies below 25 MHz. (2) Applications for a Federal Government frequency. (3) Applications for frequencies in the 72-76 MHz band except for mobile frequencies subject to ง 90.35(cX77). (4) Applications for a frequency to be used for developmental purposes. (5) Applications in the IndustriallBusiness Pool requesting a frequency designated for itinerant operations, and applications requesting operation on 154.570 MHz, 154.600 MHz, 151.820 MHz, 151.880 MHz, and 151.940 MHz. (6) Applications in the Radiolocation Service. (7) [Reserved] (8) Applications for frequencies listed in the SMR tables contained in งง 90.617 and 90.619. (9) Applications indicating license assignments such as change in ownership, control or corporate structure ifthere is no change in technical parameters. (10) Applications for mobile stations operating in the 470-512 MHz band, 764-776/794-806 MHz band, or above 800 MHz ifthe frequency pair is assigned to a single system on an exclusive basis in the proposed area ofoperation. (II) Applications for add-on base stations in multiple licensed systems operating in the 470-512 MHz, 764-776/794-806 MHz band, or above 800 MHz ifthe frequency pair is assigned to a single system on an exclusive basis. (12) Applications for control stations operating below 470 MHz, 764-776/794-806 MHz, or above 800 MHz and meeting the requirements of ง 90.119(b). (13) Applications for itinerant operation in the 217-220 MHz band. (14) Except for applications for the frequencies set forth in งง 90.719(c) and 90.720, applications for frequencies in the 220-222 MHz band. (IS) Applications for a state license under ง 90.529. (16) Applications for narrowband low power channels listed for itinerant use in ง 90.531(b)(4) 47. Section 90.176 is amended as follows: ง 90.176 Coordinator notification requirements on frequencies below 512 MHz, at 764 7761794-806 MHz. or at 1427-1432 MHz. (a) Frequencies below ท170 MH=. Within one business day of making a frequency recommendation, each frequency coordinator must notify and provide the information indicated in 10086 Federal Communications Commission FCC 02-152 paragraph (g) ofthis section to all other frequency coordinators who are also certified to coordinate that frequency. (I) The applicable frequency coordinator for each frequency is specified in the coordinator column ofthe frequency tables of งง 90.20(c)(3) and 90.35(b)(3). (2) For frequencies that do not specify any frequency coordinator, all certified in-pool coordinators must be notified. (3) For frequencies that are shared between the Public Safety Pool and the IndustriallBusiness Pool (frequencies subject to งง 90.20(d)(7), (d)(25), (d)(34), or (d)(46) in the Public Safety Pool. and subject to งง 90.35(c)(13), (c)(25), or (d)(4) in the Industrial/Business Pool), all certified coordinators of both pools must be notified. (b) Frequencies in the 470-512 MHz band. Within one business day of making a frequency recommendation, each frequency coordinator must notify and provide the information indicated in paragraph (g) ofthis section to all other certified frequency coordinators in the Public Safety Pool and the IndustriallBusiness Pool. (c) Frequencies in the 764-7761794-806 MHz band. Within one business day ofmaking a frequency recommendation, each frequency coordinator must notify and provide the information indicated in paragraph (g) ofthis section to all other certified frequency coordinators in the Public Safety Pool. (d) Frequencies in the 1427-1432 MHz band. Within one business day of making a frequency recommendation, each frequency coordinator must notify and provide the information indicated in paragraph (g) ofthis section to the WMTS frequency coordinator designated in ง 95.113 and to all other frequency coordinators who are also certified to coordinate that frequency. (e) Each frequency coordinator must also notify all other certified in-pool coordinators on any day that the frequency coordinator does not make any frequency recommendations. (f) Notification must be made to all coordinators at approximately the same time and can be made using any method that ensures compliance with the one business day requirement. (g) At a minimum the following information must be included in each notification: ( I) Name ofapplicant; (2) Frequency or frequencies recommended; (3) Antenna locations and heights; (4) Effective radiated power (ERP); (5) Type(s) ofemissions; (6) Description ofthe service area; and (7) Date and time ofrecommendation. 10087 Federal Communications Commission FCC 02-152 (h) Upon request, each coordinator must provide any additional information requested from another certified coordinator regarding a pending recommendation that it has processed but has not yet been granted by the Commission. (i) It is the responsibility of each coordinator to insure that its frequency recommendations do not conflict with the frequency recommendations of any other frequency coordinator. Should a conflict arise, the affected coordinators are jointly responsible for taking action to resolve the conflict, up to and including notifying the Commission that an application may have to be returned. 48. Section 90.203(a) is amended as follows: ง 90.203 Certification required. (a) ... (I) Effective October 16,2002, except in the 1427-1432 MHz band, an equipment approval may no longer be obtained for in-hospital medical telemetry equipment operating under the provisions ofthis part. The requirements for obtaining an approval for medical telemetry equipment after this date are found in subpart H ofpart 95 ofthis chapter. * •• * • 49. Section 90.205 is amended by redesignating paragraphs (f) through (k) as paragraphs (g) through (I), redesignating paragraphs (I) through (0) as paragraphs (n) through (q), and adding new paragraphs (e) and (m) to read as follows: ง 90.205 Power and antenna height limits. • • * • * (e) 217-220 MHz. Limitations on power and antenna heights are specified in ง 90.259. * •••• (m) 1427-1429.5 MHz and 1429.5-].132 MH=. Limitations on power are specified in ง 90.259. • •••• 50. Section 90.209 is amended to read as follows: ง 90.209 Bandwidth limitations. ••••• (b) (5) ••• ••• STANDARD CHANNELSPACINGIBANDWIDTH Frequency band (MHz) Channel spacing (kHz) Authorized bandwidth (kHz) ••••• ••••• ••••• 216-220 s ............................ 6.25 6.25 10088 Federal Communications Commission FCC 02-152 ••••• ***•• ••••* 1427-1432 5 ••••••••••••••••••••••••• 12.5 12.5 ••••• ••••• ••••• ••• 5 Licensees will be allowed to combine contiguous channels up to 50 kHz, and more than 50 kHz only upon a showing ofadequate justification per ง90.259(a)(8) and (b)( I0). 51. Section 90.213 is amended to read as follows: ง 90.213 Frequency stability. (a) • • • MINIMUM FREQUENCY STABILITY [Parts per million (ppm)] Frequency range (MHz) Fixed and base stations Mobile stations Over 2 watts output 2 watts or less output power power ••••• ••••• ••••• *•••• 216-220 ................ 1.0 ............................ 1.0 ••••• ••••• ••••• ••••• • • • • • 52. Section 90.259 is amended to read as follows: ง 90.259 Assignment and use of frequencies in the bands 216-220 MHz and 1427 1432 MHz. (a) 216-220 MHz band. (I) Frequencies in the 216-220 MHz band may be assigned to applicants that establish eligibility in the IndustriallBusiness Pool. (2) All operation is secondary to the fixed and mobile services. including the Low Power Radio Service. (3) In the 216-217 MHz band, no new assignments will be made after January 1,2002. (4) In the 2 I7-220 MHz band, the maximum transmitter output power is 2 watts. The maximum antenna height above average terrain (HAAT) is 152 m (500 feet). (5) In the 217-220 MHz band, base, mobile, and operational fixed is permitted. (6) Wide area operations will not be authorized. The area of normal day-to-day operations will be described in the application in terms ofmaximum distance from a geographical center (latitude and longitude). 10089 Federal Communications Commission FCC 02-152 (7) Assignable frequencies occur in increments of6.25 kHz from 217.0625 MHz to 219.99375 MHz. (8) Licensees may combine contiguous channels up to 50 kHz, and more than 50 kHz only upon a showing ofadequate justification. (b) 1427-1432 MHz band. (1) Frequencies in the 1427-1432 MHz band may be assigned to applicants that establish eligibility in the Public Safety Pool or the IndustriaVBusiness Pool. (2) All operations in the 1427-1429.5 MHz band are secondary to the Wireless Medical Telemetry Service except in the locations specified in paragraph (b)(4) of this section. At the locations specified in paragraph (b)(4) ofthis section, all operations are secondary to the Wireless Medical Telemetry Service in the 1429-143 I.5 MHz band. (3) All operations in the 1429.5-1432 MHz band are primary in status except in the locations specified in paragraph (b)(4) ofthis section. At the locations specified in paragraph (b)(4) ofthis section, all operations are primary in status in the 1427-1429 MHz and 1431.5-1432 MHz bands. (4) Locations: (i) Pittsburgh, Pennsylvania - Counties ofWestmoreland, Washington, Beaver, Allegheny and Butler; (ii) Washington, DC metropolitan area - Counties ofMontgomery, Prince George's, Charles, Arlington, Prince William, Fauquier, Loudon, and Fairfax; Cities of Alexandria, Falls Church, Fairfax, and District ofColumbia; (iii) Richmond/Norfolk, Virginia - Counties ofCharles City, Chesterfield, Dinwiddie, Goochland, Hanover, Henrico, Isle of Wight, James City, New Kent, Powhatan, Prince George, Southhampton, Surrey, Sussex, and York; Cities ofChesapeake, Colonial Heights, Franklin, Hampton, Hopewell, Newport News, Norfolk. Petersburg, Poquoson, Portsmouth, Richmond, Suffolk, Virginia Beach, and Williamsburg; (iv) Austin/Georgetown, Texas - Counties ofWilliamson and Travis; (v) Battle Creek, Michigan - County ofCalhoun; (vi) Detroit, Michigan - Counties ofOakland. Wayne, Washtenaw, Macomb and Livingston; (vii) Spokane, Washington - Counties ofSpokane. WA and Kootenai. 10. (5) All operations in the 1429.5-1432 MHz band authorized priorlo April 12, 2002 are on a secondary basis. (6) For secondary operations only fixed stations are permitted. At the locations specified in (b)(4) ofthis section, secondary operations are performed in the 1429-1431.5 MHz band. For all other locations, secondary operations are performed in the 1427-1429.5 MHz band. The maximum power is I wan EIRP. 10090 Federal Communications Commission FCC 02ท152 (7) For primary operations base, mobile, operational fixed and temporary fIx.ed operations are permitted. (i) At the locations specified in (b)(4) ofthis section, primary operations are performed in the 1427-1429 MHz and 1431.5-1432 MHz bands. The maximum EIRP limitations are as follows: Operation Freauency range (MHz) 1427-1428 MHz 1428-1428.5 1428.5-1429 1431.5-1432 Fixed 100 watts 10 watts 1 watt I watt Mobile 1 watt I watt 25 milliwans 25 milliwatts Temoorarv fixed 1 watt I wan 1 watt I wan (ii) For all other locations, primary operations are performed in the 1429.5-1432 MHz band. The maximum EIRP limitations are as follows: Operation Frequency range (MHz) 1429.5-1430 1430-1430.5 1430.5-1431.5 1431.5-1432 Fixed 1 wan I wan 10 watts 100 watts Mobile 25 milliwans I watt I watt I watt Temporary fixed I watt I wan 1 wan I wan (8) Wide area operations will not be authorized. The area of normal day-ta-day operations will be described in the application in terms of maximum distance from a geographical center (latitude and longitude). (9) Assignable frequencies occur in increments of 12.5 kHz from 1427.0125 MHz to 143 \.9875 MHz. (10) Licensees, howeYer, may combine contiguous channels up to 50 kHz, and more than 50 kHz only upon a showing ofadequate justification. (11) For any operation in the 1427-1432 MHz band. the predicted or measured field strength - in the WMTS primary band - at the location ofany registered WMTS healthcare facility shall not exceed 150 uV/m. For the locations specified in (b)(4) ofthis section. WMTS is primary in the 1429-1431.5 MHz band. For all other locations, WMTS is primary in the 1427-1429.5 MHz band. (c) Authorized uses. (1) Use ofthese bands is limited to telemetering purposes. (2) Base stations authorized in these bands shall be used to perfonn telecommand functions with associated mobile telemetering stations. Base stations may also command actions by the vehicle itself, but will not be authorized solely to perform this function. (3) Airborne use is prohibited. 53. Part 95 oftitle 47 ofthe Code ofFederal Regulations, is amended to read as follows: PART 95 - PERSONAL RADIO SERVICES 10091 Federal Communications Commission The authority citation for Part 95 continues to read as follows: FCC 02-152 AUTHORITY: Sections 4,303,48 Stat. 1066, 1082 as amended; 47 U.S.C. 154,303. 54. Section 95.630 is amended to read as follows: ง 95.630 WMTS Transmitter frequencies. ••• 1427-1432 MHz 55. Section 95.1113 is amended to read as follows: ง 95.1113 Frequency coordinator. (b)ท • • (5) Notify licensees - who are operating in accordance with ง 90.259(b) - ofthe need to comply with the field strength limit ofง 90.259(b)(ll) prior to initial activation ofWMTS equipment in the 1427 1432 MHz band. (6) Notify licensees - who are operating in 1392-1395 MHz band in accordance with Subpart I of Part 27 - of the need to comply with the field strength limit of ง 27.804 prior to initial activation of WMTS equipment in the 1395-1400 MHz band. 10092 Federal Communications Commission SEPARATE STATEMENT OF COMMISSIONER KATHLEEN Q. ABERNATHY FCC 02-152 Re: Amendments to Parts I, 2, 27 and 90 of the Comm ission's Rules to License Services in the 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz. 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz Government Transfer Bands, WT Docket No. 02-08. Repon and Order. Today's Order is a substantial and imponant step forward in providing additional spectrum for some essential wireless services that often receive less attention that the traditional CMRS industry. As we develop new and innovative spectrum management policies. we must remember that one size does not fit all. In fact, it is imperative that we adopt a diverse and flexible spectrum management approach that allows a wide variety ofservices to survive. thrive and serve the American people. The Commission today does just that. We license some bands site-by-site, others nationwide, and still others in 52 areas. The Commission licensed paired bands and unpaired as well. Some licenses are 5 MHz, others only 2 MHz. The agency also designed some bands to provide additional spectrum resources for private land mobile radio services. These service rules are significant because many of these licensees have unique safety and reliability needs that cannot be met by traditional commercial services. Similarly we chose to auction two five MHz bands as unpaired spectrum blocks to allow new technologies that do not use paired spectrum to enter the marketplace. These various approaches enable a wide variety oflicensees to provide spectrum-based services. As we work to facilitate a more effective secondary market. our initial allocations matter more than they should from a policy perspective. For today. we must adopt policies that refle.:t the way things are. Thus today, we will need to consider all shapes and sizes of spectrum allocations and service rules to serve the public interest. I also want to emphasize the importance of the more-detailed-than-usual interference protections advanced by the parties and adopted today in the 1427-1432 MHz band. As I said when we issued the Notice of Proposed Rulemaking in this docket. "[t]he medical and utility telemetry communities privately crafted a solution that advances each of their interests - a job often better done by the parties than by government. There is no question that mutual resolution of their private interests greatly assists the Commission in assessing the broader public interest."' The record in this docket did not produce a single pany that opposed the interference limits jointly advanced by the medical and utility telemetry communities. While I generally support flexibility in allocations and service rules. I cannot support flexibility in the face ofthe identified public interest harms associated with that approach for these bands. Wireless Medical Telemetry Service devices are used in hospitals. clinics. nursing homes. and other health care facilities to transmit wavefonn and other physiological data from patient measurement devices (that are worn or carried by the patient or transported along with the patient) to patient monitoring. data distribution and data storage systems. One of the main purposes of patient monitoring is the early detection of life-threatening developments so that appropriate and timely intervention can be rendered. Based on the supportive record, safety-of-life considerations and the lack of any countervailing commercial interest, I believe the detailed rules we adopt today to protect medical telemetry from hannful interference advances the public interest. Finally I am pleased that the Commission has committed to issuing an NO) by year's end to examine the availability of wireless services in rural America. The decision-making process would greatly benefit from additional data regarding the spectrum being used. the services being provided. and the needs in these areas. In turn. the Commission has an obligation to ensure that our regulatory tools are effective in facilitating the efficient use of spectrum in rural regions. Thus, secondary markets, panitioning and disaggregation, auction service areas. bidding credits. and our other policies should be 10093 Federal Communications Commission FCC 02-152 closely reviewed to ensure their efficacy for non-urban settings. This is particularly important because wireless is poised to provide significant competition in rural areas where multiple facilities-based providers have not developed as rapidly in some more densely populated areas. I look forward to this proceeding and gathering a record that will improve our rural spectrum policy process. 10094 Federal Communications Commission SEPARATE STATEMENT OF COMMISSIONER MICHAEL J. COPPS Approving in part, dissenting in part FCC 02-152 RE: In the Matter ofAmendments to Parts 1,2,27, and 90 ofthe Commission's Rules to License Services in the 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1432ท1435 MHz, 1670-1675 MHz and 2385-2390 MHz Government Transfer Bands (Report and Order). In an era ofscarce spectrum, with all the new technologies and services out there clamoring for additional spectrum, making 27 additional megahertz available for commercial use is good news indeed. And we are continuing the process set in motion by Congress to fully transfer this spectrum from government use to commercial use. 1support this process, and I support and the vast majority ofthe rules that we adopt today. I have deep misgivings, however, about one aspect of today's Order. the significant extension ofour transfer ofFCC allocation responsibilities to "band managers." A "band manager" is a private entity to which the FCC grants spectrum rights to act as a "spectrum broker" rather than as a service provider. Band managers need not provide communications services; they may sell the use oftheir spectrum to whoever is willing to pay for it. This enables the band manager to gain private profits by brokering public spectrum. The Commission has permitted band managers in limited circumstances in the past for narrow guard bands. To date. we have not adequately analyzed the success ofthis initiative. In fact, the first annual band manager report is still in preparation. Nevertheless, today's Order represents a significant expansion of the FCC's use of band managers. I recognize the potential theoretical benefits of band managers. They can arguably allocate spectrum more quickly and dynamically than can an overburdened Commission, and the profit motive gives them an incentive to squeeze the most out of the spectrum as possible. But I also see grave risks. The spectrum is a public asset. The Commission's stewardship of the spectrum is a public trust. Congress gave the Commission the responsibility to allocate spectrum for a reason. While there are often downsides to government management when it comes to speed and innovation. there are sometimes very important advantages. This Commission is legally obligated to operate transparently. Our charter commands us to promote the public interest. And we are accountable to the American people. Our charter is different than a band managerทs. A band manager need not reveal its decisions to the public. It is legally obligated to maximize profits for its shareholders rather than serve primarily the public interest. Band managers are accountable to those private interests that control them, not to the people. Probably most band managers would recognize their larger responsibilities and it is not the majority I am worried about; it is the few who may come along and see this as an opportunity to put their private gain ahead of the public interest. Congress understands the costs and benefits of government versus private stewardship of various assets. Here, I believe, Congress chose the FCC to manage spectrum because the protections inherent in FCC allocation of spectrum outweigh the costs. 10095 Federal Communications Commission FCC 02-152 Beyond these questions ofthe general propriety of band management, I also note that practical questions about band management remain unresolved. While we have allowed band managers recently in guard bands, we do not have much experience in their operation. What will happen ifa band manager's lessee violates our rules? Will we be able in practice to successfully to enforce our rules against the lessee and the band manager when they start pointing fingers at each other? What will happen ifband managers faced with economic distress break our rules to increase profits in a way that helps them in the short term but throws the band into confusion in the long run? Even ifwe are able to enforce, how will we clean up the mess? What will happen ifband managers artificially limit spectrum supply to drive up prices for their own profit? Recent experience in electricity trading should indicate that such destructive tactics are altogether plausible. Our previously established band manager rules attempt to address some ofthese concems, but they remain largely untested. I do not believe that Congress wanted the FCC to delegate its spectrum authority to private speculators who can tum public spectrum into private profits with no intention ofproviding communications services. I believe that significant questions about the enforcement ofour rules and the effect ofband managers on the public interest are too uncertain to support an extension ofour reliance on band managers at this time. I therefore must dissent from this section ofthe Order. I understand resource constraints and all the other arguments used to justify the conferring onto others ofthe authority reposed in us. In my mind, none ofthese arguments even begins to offset the Commission's obligation to perform its duties itself as the agent ofthe American public to manage the American public's spectrum. On a separate matter, I also believe that the Commission has far too little information to rely on partitioning and disaggregation as fulfilling our statutory responsibility to promote service to rural areas. Section 309(jX3) states that the Commission must design competitive bidding systems so as to promote objectives including "promoting economic opportunity and competition and ensuring that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and disseminating licenses among a wide variety ofapplicants, including small businesses, rural telephone companies. and businesses owned by minority groups and women.'.669 One theory is that partitioning and disaggregation will accommodate the entry ofnew entrants and small businesses, and will speed service to unserved or underserved areas, enhance competition, and encourage new entrants into the market. Relying on this theory, the Commission could decide that it can auction spectrum in nationwide blocks or large EAGs. rather than in small geographic blocks geared toward rural service, depending on partitioning and disaggregation to eventually provide spectrum to rural areas. To make such a decision we would have to believe that a nationwide carrier will buy a nationwide license and if it finds that it will not use the rural portion ofits spectrum. as is often the case when a national carrier buys such a license. it will strike deals with local carriers using the partitioning and disaggregation rules. However, rural telecom commenters state emphatically that partitioning and disaggregation do not result in significant new service to rural areas. These rural carriers explain that the cost to a national ... 47 U.S.c. ง 309(j)(3). 10096 Federal Communications Commission FCC 02-152 carrier of negotiating and signing a partitioning or disaggregation deal with a small carrier is often higher than the profit the nationwide carrier would gain from the deal. Therefore, they find it better business to let the rural spectrum lie fallow, even if rural carriers are interested in using it. I believe that section 309(jX3) compels us to design our auctions to promote service to rural areas. While partitioning and disaggregation theoretically could accomplish this goal, there is no proof that they do so. Therefore, we should not rely on these tools to meet our statutory obligation until we gather far more information. I support the use of partitioning and disaggregation here only because we do not rely on these tools as fulfilling our statutory duty to rural America, and because we promise to release a formal Notice of Inquiry into tools at our disposal to promote rural service through our auction rules, by the end ofthe year. This NOI will explore whether partitioning and disaggregation are useful for this goal, whether there are ways to improve partitioning and disaggregation, whether there are additional and better tools that we should adopt in addition to auctioning smaller service areas. I believe that this NOI will give us the information we need to determine how to meet our responsibilities. I note, however, that until this NOI provides me with new information, I will continue to push for RSAs to promote rural service, and will not rely on partitioning and disaggregation for this purpose. 10097