*Pages 1--63 from Microsoft Word - 24960.doc* Federal Communications Commission FCC 03- 16 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Amendment of Part 2 of the Commission’s Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation Wireless Systems The Establishment of Policies and Service Rules for the Mobile- Satellite Service in the 2 GHz Band Amendment of the U. S. Table of Frequency Allocations to Designate the 2500- 2520/ 2670- 2690 MHz Frequency Bands for the Mobile-Satellite Service Petition for Rule Making of the Wireless Information Networks Forum Concerning the Unlicensed Personal Communications Service Petition for Rule Making of UTStarcom, Inc., Concerning the Unlicensed Personal Communications Service ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ET Docket No. 00- 258 IB Docket No. 99- 81 RM- 9911 RM- 9498 RM- 10024 THIRD REPORT AND ORDER, THIRD NOTICE OF PROPOSED RULEMAKING AND SECOND MEMORANDUM OPINION AND ORDER Adopted: January 29, 2003 Released: February 10, 2003 Comment Date: [30 days from date of publication in the Federal Register] Reply Comment Date: [45 days from the date of publication in the Federal Register] By the Commission: Chairman Powell and Commissioner Adelstein issuing separate statements; Commissioner Copps approving in part, dissenting in part, and issuing a statement. I. INTRODUCTION ........................................................................................................................... 2 II. EXECUTIVE SUMMARY ............................................................................................................. 2 III. BACKGROUND ............................................................................................................................. 4 IV. THIRD REPORT AND ORDER..................................................................................................... 6 A. Background......................................................................................................................... 6 B. Comments ......................................................................................................................... 11 C. Decision ............................................................................................................................ 16 V. THIRD NOTICE OF PROPOSED RULE MAKING ................................................................... 20 A. 1910- 1930 MHz and 1990- 2000 MHz Bands................................................................... 21 B. 2020- 2025 MHz and 2155- 2180 MHz Bands................................................................... 31 1 Federal Communications Commission FCC 03- 16 2 VI. SECOND MEMORANDUM OPINION AND ORDER............................................................... 35 VII. PROCEDURAL MATTERS ......................................................................................................... 36 A. Final Regulatory Flexibility Analysis for Third Report and Order................................... 36 B. Initial Regulatory Flexibility Analysis for the Third Notice of Proposed Rule Making.............................................................................................................................. 36 C. Ex Parte Rules – Permit- But- Disclose Proceeding........................................................... 36 D. Comments ......................................................................................................................... 36 E. Contact Persons................................................................................................................. 37 VIII. ORDERING CLAUSES................................................................................................................ 37 I. INTRODUCTION 1. In this Third Report and Order, Third Notice of Proposed Rulemaking, and Second Memorandum Opinion and Order, we continue our ongoing proceeding to promote spectrum efficiency by evaluating spectrum that may be suitable for the provision of new services, including Advanced Wireless Services (AWS). 1 In the Third Report and Order, we reallocate portions of the frequency bands currently used by the Mobile- Satellite Service (MSS) to provide additional spectrum for Fixed and Mobile services. In the Third Notice of Proposed Rulemaking, we seek comment on how best to use the reallocated MSS spectrum as well as other bands previously proposed for AWS use, the relocation of the Multipoint Distribution Service (MDS), and additional flexibility for the Unlicensed Personal Communications Service (UPCS) band spectrum. Finally, in the Second Memorandum Opinion and Order, we deny a petition filed by the Cellular Telecommunications and Internet Association (CTIA) relating to use of the MSS band. II. EXECUTIVE SUMMARY 2. Our efforts to identify and allocate spectrum that can be used to support new services, including AWS, have focused on identifying both Federal Government and non- Federal Government- use spectrum that possess attributes suitable for the provision of new services, and on allocating blocks of that spectrum that can quickly and efficiently be made available for this end. At the same time, we have taken a closer look at the existing uses of those frequency bands that we have identified as potential candidates for the provision of new services, and have taken steps to reallocate, retain, or provide additional flexibility to these bands, as warranted. Thus, a larger theme of this proceeding is our effort to promote more efficient spectrum use which, in turn, serves the public interest. 3. On November 15, 2002, the Commission issued a Second Report and Order in this proceeding that identified and allocated 90 megahertz of spectrum from Federal Government and non- Federal 1 Advanced Wireless Services is the collective term we use for new and innovative fixed and mobile terrestrial wireless applications using bandwidth that is sufficient for the provision of a variety of applications, including those using voice and data (such as internet browsing, message services, and full- motion video) content. In an ongoing service rules proceeding for 90 megahertz of spectrum for AWS, we have proposed to adopt rules that will provide innovative and agile licensees with the flexibility to quickly adapt to changes in technological capabilities and marketplace conditions into the future, and have stated that our goal for the AWS- designated spectrum is “to put this spectrum to its highest value use with minimal transaction cost.” Service Rules for Advanced Wireless Services, WT Docket No. 02- 353, Notice of Proposed Rulemaking, 17 FCC Rcd 24135 (2002). Although AWS is commonly associated with so- called third generation (3G) applications and has been predicted to build on the success of such current- generation commercial wireless services as cellular and Broadband PCS, the services ultimately provided by AWS licensees are only limited by the fixed and mobile designation of the spectrum we allocate for AWS and the service rules we ultimately adopt for the bands. 2 Federal Communications Commission FCC 03- 16 3 Government operations at 1710- 1755 MHz and 2110- 2155 MHz that can be used to support AWS. 2 In the instant decision, we evaluate a number of other frequency bands that were identified for possible AWS use, but not addressed in our previous decisions. In the Third Report and Order portion of our action herein, we: • Conclude that MSS in the 1990- 2025 MHz and 2165- 2200 MHz bands can operate in less than the 70 megahertz of spectrum currently allocated to MSS in the 2 GHz band. • Reallocate the 1990- 2000/ 2020- 2025 MHz and 2165- 2180 MHz bands for Fixed and Mobile services. This reallocates 30 megahertz of MSS spectrum while preserving 40 megahertz of spectrum for MSS. • Redistribute some 2 GHz spectrum recently abandoned as a result of the ongoing initial MSS milestone review. This spectrum will be reassigned to the authorized MSS operators that remain when we complete the initial milestone review. In the Third Notice of Proposed Rulemaking herein, we: • Seek comment on whether we should re- designate all or a portion of the UPCS spectrum at 1910- 1920 for new fixed and mobile uses. Five or ten megahertz of this spectrum could be paired with spectrum in the 1990- 2000 MHz band to expand the existing Broadband PCS allocation, to allow for AWS applications, or as replacement spectrum for other services. • Retain the 1920- 1930 MHz band for UPCS use and seek comment on whether we should provide for additional flexibility in that band, as well as any additional spectrum that we retain for UPCS use in the 1910- 1920 MHz band. • Seek comment on making available for new services, including AWS, the MSS uplink band spectrum that we are reallocating at 2020- 2025 MHz. We also ask whether this band could be paired with spectrum in the 2.1 GHz band. • Seek further comment on making available for new services, including AWS, a 10 megahertz block that is upper adjacent to the existing 45 megahertz AWS allocation in the 2110- 2155 MHz band. This spectrum block consists of the remaining 5 megahertz of the MDS band at 2155- 2160 MHz combined with an adjacent 5 megahertz spectrum block in the 2160- 2165 MHz band that was identified in the Emerging Technologies proceeding. • Seek comment on the best use of the spectrum that we make available by reallocating the MSS downlink band at 2165- 2180 MHz. • Seek comment on relocation spectrum for MDS operations from the 2150- 2160/ 62 MHz band, including spectrum that we make available by reallocating the MSS downlink band at 2165- 2180 MHz or, alternatively, spectrum that is adjacent to the Broadband PCS bands. In the Second Memorandum Opinion and Order herein, we: 2 Amendment of Part 2 of the Commission’s Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, Including Third Generation Wireless Systems, ET Docket No. 00- 258, Second Report and Order, 17 FCC Rcd 23193 (2002) (Second R& O). 3 Federal Communications Commission FCC 03- 16 4 • Deny a petition for reconsideration filed by CTIA that seeks reallocation of the entire 2 GHz MSS band for terrestrial wireless use. III. BACKGROUND 4. The bands that we have considered in this proceeding were identified in the January 2001 Notice of Proposed Rulemaking and Order, 3 and in the August 2001 Memorandum Opinion and Order and Further Notice of Proposed Rule Making. 4 Collectively, in the Notice and the Further Notice, the Commission sought comment on the suitability for use by AWS of the 1710- 1755 MHz band (scheduled for transfer from Federal Government to non- Federal Government use); the 1755- 1850 MHz band (a Federal Government- use band); the 2110- 2150 MHz and 2160- 2165 MHz bands (used for point- to- point fixed microwave services and identified in the Commission’s Emerging Technologies proceeding 5 as suitable for advanced services); the 2500- 2690 MHz band (used by Instructional Television Fixed Services (ITFS) and Multichannel Multipoint Distribution Services (MMDS)); the 2150- 2160/ 62 MHz band (used by MDS); the 1990- 2025 MHz and 2165- 2200 MHz bands (allocated for MSS); and the 1910- 1930 MHz and 2390- 2400 MHz bands (designated for UPCS use). In the Notice, the Commission also explored the possibility of introducing AWS in the 806- 960 MHz and 1850- 1910/ 1930- 1990 MHz bands that are currently used for cellular, Broadband PCS, and Specialized Mobile Radio (SMR) services, as well as the 698- 806 MHz bands that were reallocated as part of the transition to digital television. 6 5. The Commission addressed use of the 2500- 2690 MHz band in a September 2001 First Report and Order and Memorandum Opinion and Order in this proceeding. 7 In the First R& O and MO& O, the Commission found that ITFS and MMDS licensees operating in the band provided important services and would be difficult to relocate, and the Commission decided not to relocate these incumbent licensees. 8 Instead, the Commission modified the allocation by adding a mobile allocation to the 2500- 2690 MHz 3 Amendment of Part 2 of the Commission’s Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, Including Third Generation Wireless Systems, ET Docket No. 00- 258, Notice of Proposed Rulemaking and Order, 16 FCC Rcd 596 (2001) (Notice). 4 Amendment of Part 2 of the Commission’s Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation Wireless Systems, ET Docket No. 00- 258, ET Docket No. 95- 18, and IB Docket No. 99- 81, Memorandum Opinion and Order and Further Notice of Proposed Rule Making, 16 FCC Rcd 16043 (2001) (Further Notice). 5 Redevelopment of Spectrum to Encourage the Establishment of Services Using New and Innovative Technologies, ET Docket No. 92- 9, First Report and Order and Third Notice of Proposed Rule Making, 7 FCC Rcd 6886 (1992); Second Report and Order, 8 FCC Rcd 6495 (1993); Third Report and Order and Memorandum Opinion and Order, 8 FCC Rcd 6589 (1993); Memorandum Opinion and Order, 9 FCC Rcd 1943 (1994); Second Memorandum Opinion and Order, 9 FCC Rcd 7797 (1994), aff'd, Association of Public Safety Communications Officials-International, Inc. v. FCC, 76 F. 3d 395 (D. C. Cir. 1996) (collectively, “Emerging Technologies proceeding”). 6 Notice, 16 FCC Rcd at 610- 13 ¶¶ 34- 38. 7 Amendment of Part 2 of the Commission’s Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation Wireless Systems, ET Docket No. 00- 258, First Report and Order and Memorandum Opinion and Order, 16 FCC Rcd 17222 (2001) (First R& O and MO& O). 8 Id. 4 Federal Communications Commission FCC 03- 16 5 band to provide additional flexibility for use of this spectrum. 9 The Commission also affirmed its prior determination not to reallocate a portion of the 2500- 2690 MHz band to MSS. 10 6. In its November 2002 Second R& O, the Commission undertook a comprehensive examination of AWS spectrum needs. In July 2002, the Department of Commerce National Telecommunications and Information Administration (NTIA) released a study (“ 2002 Viability Assessment”) in which it concluded that 90 megahertz of spectrum consisting of the 1710- 1755 MHz band and a matching 45 megahertz from the 2110- 2170 MHz band could be reallocated without disrupting critical national security communications systems. 11 In the 2002 Viability Assessment, NTIA also found that the 1755- 1850 MHz Federal Government- use band (which had also been identified as spectrum that might support AWS) could not be made available for AWS for the foreseeable future. 12 Consistent with the 2002 Viability Assessment, the Commission in the Second R& O allocated 45 MHz of Federal Government- use spectrum in the 1710- 1755 MHz band for AWS, effective January 2004 (when the spectrum is scheduled to be made available for mixed Federal Government/ non- Federal Government use). 13 The Commission also allocated a 45 MHz block of contiguous spectrum in the 2110- 2155 MHz band for AWS. 14 This spectrum consists of the 2110- 2150 MHz band, which is currently used by point- to- point microwave facilities and subject to the relocation procedures adopted in the Commission’s Emerging Technologies proceeding, combined with an additional 5 megahertz block (2150- 2155 MHz) that was previously allocated to MDS. The Commission noted that it would consider relocation spectrum and propose relocation procedures for MDS licensees (which continue to operate in the band) in a subsequent decision. 15 7. As described in greater detail in the Second R& O, the Commission noted that the International Telecommunication Union (ITU) had identified a number of frequency bands that could be used to implement advanced wireless systems internationally, 16 and established a set of standards – International Mobile Telecommunications- 2000 (IMT- 2000) – that defines key characteristics of advanced radio 9 Id. 10 Id., 16 FCC Rcd at 17241 ¶¶ 35- 36. 11 United Stated Department of Commerce, National Telecommunications and Information Administration, “An Assessment of the Viability of Accommodating Advanced Mobile Wireless (3G) Systems in the 1710- 1770 MHz and 2110- 2170 MHz Bands,” Report, July 22, 2002 (2002 Viability Assessment) (incorporated into ET Docket No. 00- 258 and also available from NTIA at http:// www. ntia. doc. gov/ ntiahome/ threeg/ va7222002/ 3Gva072202web. htm). 12 Id. 13 Second R& O at ¶¶ 25 & 48. 14 Id. at ¶¶ 27- 47. 15 Id. at ¶ 41. 16 Id. at ¶¶ 2 & 4. See also WRC 2000 Final Acts S5. 317A: WRC- 2000 Final Acts Res. 223. ITU identified the 806- 960 MHz, 1710- 1885 MHz, and 2500- 2690 MHz bands for possible terrestrial use for its International Mobile Telecommunciations- 2000 standards and recognized that some administrations will use the 698- 806 MHz for these purposes. The ITU also recognized that jurisdictions will need to protect existing services operating in the spectrum, that not all bands will be allocated for advanced wireless systems in all jurisdictions, and that advanced services will not have priority over other allocated services. 5 Federal Communications Commission FCC 03- 16 6 systems. 17 The Commission did not formally adopt the ITU standards, but instead concluded that the allocation in the Second R& O would be able to support a wide variety of services, including those using the most popular technologies under IMT- 2000. Because this proceeding involved spectrum that falls under the spectrum management responsibilities of both the Executive Branch and the Commission, the Commission’s actions have been facilitated by the extensive cooperation among a variety of Federal Government stakeholders, including NTIA. The Federal Government- use spectrum that was considered in the Second R& O is also subject to specific requirements of an Executive Memorandum and legislation regarding the transfer, licensing, and relocation of incumbent users on this spectrum. We note that these Federal Government- use bands are not under consideration in the instant decision. IV. THIRD REPORT AND ORDER 8. This proceeding has provided us with the opportunity to explore a wide range of issues that affect many different frequency bands – including those bands identified for reallocation, those slated to host emerging technologies, and those that were not previously available for non- Federal Government use. In each of our decisions, we have sought to promote efficient use of spectrum in order to serve the public interest. Our goal here remains the same. As described in greater detail below, the allocations we make will promote efficiencies by reducing spectrum allocated for 2 GHz MSS, which we conclude can be accommodated in smaller spectrum bands, and by reallocating those bands to bring new services to the public. We explore in the accompanying Further Notice how best to use the spectrum we are reallocating for Fixed and Mobile services in the 2 GHz band. A. Background 9. The 2 GHz MSS band includes worldwide, regional and domestic allocations, which are partially harmonized as described below. The 1980- 2010 MHz (uplink) and 2170- 2200 MHz (downlink) bands are allocated to the MSS on a primary basis throughout the world and have been designated as the satellite component of IMT- 2000. 18 In Region 2 (North and South America), the 2010- 2025 MHz (uplink) and 2160- 2170 MHz (downlink) bands are also allocated to the MSS on a primary basis. 19 In addition, the 1980- 2025 MHz and 2160- 2200 MHz bands are also allocated to the fixed and mobile services on a primary basis throughout the world. 10. In the United States, the 1990- 2110 MHz band is currently used by the local television transmission service, the cable television relay service, and broadcast auxiliary stations (collectively, BAS) 17 These standards are intended to maximize the commonality of radio interfaces and provide a transition path to advanced systems from existing technologies. See Notice, 16 FCC Rcd at 598- 600 ¶¶ 3- 4 for additional background. 18 See ITU Radio Regulations, Edition of 2001, Resolution 212 (Rev. WRC- 97) and Resolution 716 (Rev. WRC-2000). In an uplink band terminals on Earth transmit up to the satellite. In a downlink band the satellite transmits down to the terminals. 19 All of the 2 GHz MSS allocations are now effective internationally, except that MSS use of the 1980- 1990 MHz band (allocated domestically to Broadband PCS) may not commence in Region 2 before January 1, 2005. See 47 C. F. R. § 2.106, footnote 5.389A, 5.389C, and 5.389D. However, MSS use of the 1980- 1990 MHz band must not cause harmful interference to or constrain the development of the fixed and mobile services in the United States and certain other Region 2 countries. See 47 C. F. R. § 2.106, footnote 5. 389B. In addition, MSS use of the Region 2 allocations (2010- 2025 MHz and 2160- 2170 MHz) may not cause harmful interference to or constrain the development of the fixed and mobile services in Regions 1 and 3; or, until January 1, 2005, in certain Region 2 countries. See 47 C. F. R. § 2. 106, footnotes 5.389E and 5.390. 6 Federal Communications Commission FCC 03- 16 7 for fixed and mobile purposes. The 2110- 2200 MHz band is currently used for fixed services (FS) and MDS. In 1997, the Commission reallocated the 1990- 2025 MHz segment of the 1990- 2110 MHz band (2 GHz BAS) for use by MSS uplinks and the 2165- 2200 MHz band for use by MSS downlinks, effective January 1, 2000. 20 To provide for an orderly transition from BAS use, the Commission allowed BAS fixed and mobile facilities to operate on a primary basis for up to 10 years, after which time BAS facilities would operate on a secondary basis. 21 In 2000, the Commission adopted relocation procedures for incumbent broadcast auxiliary services at 1990- 2025 MHz and the fixed services at 2165- 2200 MHz. 22 The Commission recently suspended for one year, until September 6, 2003, the expiration date for the initial two- year mandatory BAS negotiation period for Phase 1 of the relocation plan between MSS and BAS. 23 11. In August 2000, the Commission adopted the 2 GHz MSS R& O, which established licensing and service rules for 2 GHz MSS. 24 The Commission divided the 2 GHz MSS spectrum into “Selected Assignments” – segments of equal bandwidth based on the number of applicants seeking assignments, 25 plus an additional segment reserved for system expansion by operators meeting certain criteria for service to rural areas. 26 The Commission also established milestones for system implementation and conditioned the authorizations on achievement of these milestones. Recognizing that not all systems may be implemented, the Commission indicated that it would evaluate what to do with any “abandoned spectrum” 20 See Amendment of Section 2. 106 of the Commission’s Rules to Allocate Spectrum at 2 GHz for Use by the Mobile- Satellite Service, First Report and Order and Further Notice of Proposed Rule Making, ET Docket No. 95- 18, 12 FCC Rcd 7388 (1997) (2 GHz MSS Allocation Order), aff’d on recon., Memorandum Opinion and Order and Third Notice of Proposed Rule Making and Order, 13 FCC Rcd 23949 (1998) (affirming 2 GHz MSS allocation and seeking further comment on relocation issues). 21 Specifically, footnote NG156 reads as follows: “The band 1990- 2025 MHz is also allocated to the fixed and mobile services on a primary basis for facilities where the receipt date of the initial application was prior to June 27, 2000, and on a secondary basis for all other initial applications. Not later than September 6, 2010, the band 1990- 2025 MHz is allocated to the fixed and mobile services on a secondary basis.” See 47 C. F. R. § 2.106, footnote NG156. 22 See Amendment of Section 2. 106 of the Commission’s Rules to Allocate Spectrum at 2 GHz for Use by the Mobile- Satellite Service, ET Docket No. 95- 18, Second Report and Order and Second Memorandum Opinion and Order, 15 FCC Rcd 12315 (2000). The BAS relocation plan calls for a two- phase relocation with two- year mandatory negotiation periods in each phase that will clear current BAS Channel 1 (1990- 2008 MHz) followed by BAS Channel 2 (2008- 2025 MHz). Under the adopted two- phase relocation plan, when MSS entrants clear BAS Channel 1 in the top 30 markets, BAS channel 1 would no longer be used in any television market; MSS entrants will have up to 5 years to relocate BAS Channel 1 operations in the remaining television markets. In the event that an agreement for relocation is not reached by the end of a particular negotiation period, the MSS licensee( s) have the option of involuntary relocation of BAS incumbents. 23 Amendment of Section 2.106 of the Commission’s Rules to Allocate Spectrum at 2 GHz for Use by the Mobile-Satellite Service, ET Docket No. 95- 18, Order, 17 FCC Rcd 15141 (2002). The Commission took this action in order to maintain the status- quo while it decided whether the BAS relocation plan needs further revision in light of issues raised in other related rule making proceedings under consideration. 24 The Establishment of Policies and Service Rules for the Mobile Satellite Service in the 2 GHz Band, Report and Order, IB Docket No. 99- 81, 15 FCC Rcd 16127 (2000) (2 GHz MSS R& O). 25 Id., 15 FCC Rcd at 16138 ¶ 16. Under the 2 GHz MSS R& O, the number of system proponents is determined at the time that the first 2 GHz MSS system is authorized. Id. 26 Id., 15 FCC Rcd at 16146- 47 ¶¶ 35- 39. 7 Federal Communications Commission FCC 03- 16 8 after the passage of each of the milestones. 27 In this context, “abandoned spectrum” includes all licensed (or, for non- U. S.- entity access, reserved) spectrum that the Commission reclaims as a result of the system proponent voluntarily turning in its license or missing milestones. Possible options include: (a) redistributing the abandoned spectrum among systems that are operational and require additional spectrum; (b) making the abandoned spectrum available for new entrants; and (c) awarding the abandoned spectrum to operators serving unserved areas as per the criteria set forth in the 2 GHz MSS R& O. 28 12. On July 17, 2001, the Commission staff issued authorizations to eight applicants to provide 2 GHz MSS in the United States. 29 The authorizations provide each system with Selected Assignments of 3.5/ 3.5 megahertz of spectrum (i. e., 3.5 megahertz of uplink spectrum in the 1990- 2025 MHz band and 3.5 megahertz of downlink spectrum in the 2165- 2200 MHz band), where they may operate on a primary basis. 30 Commission staff delayed full implementation of the 2 GHz MSS R& O with regard to an incremental 0.38/ 0.38 megahertz of spectrum per licensee, though Selected Assignments were to be chosen in 3.88 megahertz blocks to ensure the Commission’s ability to implement the incremental 0.38 megahertz if that decision were made. 31 On October 15, 2002, ICO Global Communications (Holdings) Limited chose 1990- 1993. 88 MHz and 2172. 76- 2176.64 MHz as its Selected Assignments to serve the United States in the 2 GHz MSS band. 32 13. On August 20, 2001, we released the Further Notice in this proceeding, wherein we revisited our decision in the 2 GHz MSS R& O to defer until “after achievement of each of our system implementation milestones” evaluation of whether to redistribute abandoned spectrum among MSS 27 2 GHz MSS R& O, 15 FCC Rcd at 16139 ¶ 18. 28 Id., 15 FCC Rcd at 16144- 49 ¶¶ 31- 44. 29 See The Boeing Company, Order and Authorization, 16 FCC Rcd 13691 (Int’l Bur. 2001); Celsat America, Inc., Order and Authorization, 16 FCC Rcd 13712 (Int’l Bur. 2001); Constellation Communications Holdings, Inc., Order and Authorization, 16 FCC Rcd 13724 (Int’l Bur./ OET 2001); Globalstar, L. P., Order and Authorization, 16 FCC Rcd 13739 (Int’l Bur./ OET 2001); ICO Services Limited, Order, 16 FCC Rcd 13762 (Int’l Bur./ OET 2001); Iridium LLC, Order and Authorization, 16 FCC Rcd 13778 (Int’l Bur. 2001); Mobile Communications Holdings, Inc., Order and Authorization, 16 FCC Rcd 13794 (Int’l Bur./ OET 2001); TMI Communications and Company, Limited Partnership, Order, 16 FCC Rcd 13808 (Int’l Bur. 2001). 30 Each 2 GHz MSS operator identifies the specific frequencies of its Selected Assignment when the first satellite in its system reaches its intended orbit and notifies the Commission in writing of its selection. 2 GHz MSS R& O, 15 FCC Rcd at 16138 ¶ 16. Consistent with the 2 GHz MSS R& O, an operator may also elect to operate outside its Selected Assignment on a secondary basis with respect to other 2 GHz MSS operators, subject to certain conditions. Id., 15 FCC Rcd. at 16139- 40 ¶ 19. 31 If the Commission had applied the formula adopted in the 2 GHz MSS R& O, each licensee would have been assigned 3.88 megahertz in each direction (i. e., 35 megahertz divided by 8 licensees, plus 1). Instead, each licensee was assigned 3.5 megahertz of spectrum until the Commission decided in this proceeding whether to apply the formula as initially adopted (which would provide each of the 8 MSS licensees with .38 megahertz of additional spectrum in each direction) or to modify assignments under one of two proposed options. 32 See Letter of Cheryl A. Tritt, Counsel to ICO Satellite Services G. P. to Marlene H. Dortch, Secretary, Federal Communications Commission, File No. 188- SAT- LOI- 97; IBFS Nos. SAT- LOI- 19970926- 00163; SAT- AMD-20000612- 00107; SAT- AMD- 20001103- 00155 (October 15, 2002) (2 GHz MSS Selected Assignment Notification, Annual Section 25. 143( e) Report, and Section 25. 121( d)( 2) Certification). We note that over the course of this proceeding, ICO has filed under a number of names, including ICO Satellite Services G. P. and ICO Global Communications (Holdings) Ltd. For purposes of our discussion, we use the name “ICO” in all references. 8 Federal Communications Commission FCC 03- 16 9 licensees or make it available for licensing additional MSS systems or for other services. 33 Instead, we solicited comment regarding how to treat abandoned spectrum and included among the options whether to reallocate a portion of this spectrum for AWS. Specifically, we proposed that 10- 14 megahertz of MSS spectrum be reallocated for AWS use without waiting for spectrum to be abandoned. 34 We solicited comment on two possible approaches to achieve reallocation, one which would retain Selected Assignments of 7 megahertz of spectrum (3.5 megahertz in each direction), which are already provided in the authorizations, and one which would provide for Selected Assignments of 7. 5 megahertz of spectrum (3.75 megahertz in each direction). 35 Either approach would make it possible to reallocate the 2018/ 2020- 2025 MHz and 2165- 2170/ 2172 MHz bands to other services. Under either proposed approach, 56 to 60 megahertz of spectrum would be retained for MSS in the 1990- 2018/ 2020 MHz and 2170/ 2172- 2200 MHz bands. 36 14. We also requested comment on the use of abandoned spectrum. 37 Specifically, we sought comment on whether we should make abandoned spectrum available for AWS, redistribute it among remaining MSS licensees, or assign it to new MSS entrants. Under any combination of mechanisms ultimately adopted, we solicited comment on whether 20 megahertz of global MSS spectrum should be retained for MSS in both the uplink and downlink bands. 38 We proposed that any reallocation of existing MSS spectrum would not significantly impair any of the current licensees’ right to retain its current assigned spectrum allotment and reasonable expectation to acquire additional MSS spectrum for purposes of deploying and operating a 2 GHz MSS system. 15. We sought comment on what limitations should be placed on MSS licensees’ ability to designate Selected Assignments if we were to reallocate spectrum for AWS. In particular, we proposed to modify MSS authorizations pursuant to Section 316 of the Communications Act concerning the amount of spectrum available to each MSS entity for Selected Assignments; 39 the bands in which those assignments could be made; and the location of each MSS system within each available band (i. e., the incremental 33 Further Notice, 16 FCC Rcd at 16054 ¶ 22 n. 65 (citing 2 GHz MSS R& O, 15 FCC Rcd at 16139 ¶ 18). 34 Id., 16 FCC Rcd at 16055 ¶ 24. 35 One approach was to base the distribution of 2 GHz MSS spectrum on ten 3.5/ 3. 5 megahertz Selected Assignments. Each of the eight 2 GHz MSS licensees would choose Selected Assignments of 3. 5/ 3.5 megahertz. The remaining 14 megahertz of spectrum (two 7 megahertz assignments) would consist of the segment originally reserved for system expansion and the segment that would have been assigned to Inmarsat Horizons, which withdrew its application prior to licensing. Ten megahertz of spectrum (5 megahertz in each direction) could be reallocated for AWS, and 4 megahertz (2 megahertz in each direction) could be retained for MSS system expansion or made available for AWS or other services. If retained for MSS, the 2/ 2 megahertz could be distributed among the 2 GHz MSS systems or made available for other MSS systems. Another approach would be to make 5/ 5 megahertz of spectrum available for reallocation to other services, and to distribute the remaining 30/ 30 megahertz among the MSS licensees. The eight 2 GHz MSS licensees would choose Selected Assignments of 3.75/ 3.75 megahertz each. 36 See Further Notice, 16 FCC Rcd at 16055- 56 ¶ 27. 37 Id., 16 FCC Rcd at 16056 ¶ 28. 38 See id., 16 FCC Rcd at 16056 ¶ 29. 39 See 47 U. S. C. § 316. 9 Federal Communications Commission FCC 03- 16 10 spacing of each system from the band edge as well as the need to “pack” the MSS systems in one portion of the band in order to preserve contiguous spectrum for other users such as AWS). 40 16. We also requested comment on whether MSS operators should be permitted to consolidate operations. Finally, we sought comment on how the BAS and FS relocation plans would have to be modified to accommodate a reallocation of spectrum for AWS, including, for example, what the relocation responsibilities of new MSS and AWS entrants would be and whether 2 GHz MSS and AWS licensees should share BAS and FS relocation costs on a pro rata basis. 41 17. The Commission requires 2 GHz MSS networks to meet an implementation milestone schedule as a condition of authorization. All authorized networks must enter into a non- contingent satellite manufacturing contract for the system within one year of authorization, which in this case was July 17, 2002, and complete critical design review with two years of authorization; construction and deployment of satellites vary from two and a half years to five years, depending on whether the system is comprised of geostationary or non- geostationary satellites. 42 Non- compliance with implementation milestones will result in cancellation of the authorization. Operators are required to submit certification of milestone compliance, or filing disclosure of non- compliance, within ten days following the applicable milestone. 43 The Commission assesses compliance with the adopted milestone schedules by reviewing these and other filings. 44 All eight MSS entities certified compliance with the first milestone. Upon review of these certifications, the International Bureau cancelled authorizations held by Constellation Communications Holdings, Inc. (Constellation), Mobile Communications Holdings, Inc., and Globalstar L. P. (Globalstar). 45 40 Further Notice, 16 FCC Rcd at 16057 ¶ 31. 41 Id., 16 FCC Rcd at 16056- 59, ¶¶ 29- 35. 42 Non- geostationary satellite systems must begin physical construction of all satellites in the system within two and a half years of authorization, and complete construction and launch of the first two satellites within three and a half years of grant. Geostationary satellite systems must begin physical construction of all satellites in the system within three years, and complete construction of, and launch, one satellite of its constellation into its assigned orbital location within five years of authorization. The entire system must be launched and operational within six years of authorization. Id., 15 FCC Rcd at 16177- 78 ¶ 106. 43 See 47 C. F. R. § 25. 143 (e)( 3). Failure to file a certification or disclosure of non- compliance will result in automatic cancellation of an authorization. See 47 C. F. R. § 25. 161. 44 See 47 C. F. R. § 25. 143 (e)( 1). 45 Applications of Mobile Communications Holdings, Inc. and ICO Global Communications (Holdings) Limited for Transfer of Control, Constellation Communications Holdings, Inc. and ICO Global Communications (Holdings) Limited for Transfer of Control, Mobile Communications Holdings, Inc. for Modification of 2 GHz MSS License, and Constellation Communications Holdings, Inc. for Modification of 2 GHz MSS License, File Nos. SAT- T/ C-20020719- 00104, SAT- T/ C- 20020718- 00114, SAT- MOD- 20020719- 00105 and SAT- MOD- 20020719- 00103, Memorandum Opinion and Order, DA 03- 285 (Int’l Bur., 2003); Application of Globalstar, L. P. For Modification of License for a Mobile- Satellite Service System in the 2 GHz Band, File Nos. 183/ 184/ 185/ 186- SAT- P/ LA- 97; 182- SAT- P/ LA- 97( 64), Memorandum Opinion and Order, DA 03- 328 (Int’l Bur., 2003). 10 Federal Communications Commission FCC 03- 16 11 18. Finally, we note that, in a separate proceeding, we have decided to permit MSS licensees to provide terrestrial and satellite services by integrating an ancillary terrestrial component (ATC) into their networks. 46 Therefore, our consideration of the 2 GHz MSS bands must also account for these changes. B. Comments 19. Many commenters support our proposal to reallocate at least 10- 14 megahertz of spectrum from the 2 GHz MSS bands for the provision of AWS. 47 For example, VoiceStream states that the market for satellite services has become smaller than it was in 1997 when 70 megahertz was allocated to the MSS in the 2 GHz, which increased the overall amount of spectrum allocated for MSS. It predicts that the number of potential MSS customers will continue to decrease as terrestrial services continue to build out, and that the potential customer base for all MSS systems in the United States is limited to 1- 2 million subscribers. It calculates that satellite providers have 4,386 customers per megahertz of allocated spectrum (based on global subscribership), 48 whereas terrestrial wireless carriers have 648,000 customers per megahertz (based on domestic subscribership), 49 and concludes that the current amount of allocated MSS spectrum is too large for the limited demand. 50 Similarly, AT& T Wireless, which supports reallocation of the entire MSS band, observes that Commercial Mobile Radio Service (CMRS) end user growth has been much greater than estimated when we allocated 70 megahertz for 2 GHz MSS. 51 20. Ericsson, The Progress and Freedom Foundation (PFF), Telephone and Data Systems (TDS), The Telecommunications Industry Association – Wireless Communications Division (TIA – Wireless 46 Flexibility for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L- Band, and the 1.6/ 2. 4 GHz Bands, Report and Order and Notice of Proposed Rulemaking, IB Docket No. 01- 185, FCC 03- 15 (rel. Feb. 10, 2003) (ATC Order). 47 See, e. g., Ericsson Comments to the Further Notice at 11- 13; PFF Comments to the Further Notice at 3; Motorola Reply Comments to the Further Notice at 6- 7; TDS Reply Comments to the Further Notice at 2. 48 VoiceStream states that the Mobile Satellite Users Associations Comments in IB Docket No. 01- 185 at 3 (October 22, 2001) stated that “By the end of 2000, there were close to 750, 000 mobile satellite terminals commissioned for operation around the globe.” VoiceStream counts 171 megahertz of MSS spectrum, consisting of L- band systems (1525- 1559 MHz and 1626.5- 1660.5 MHz); Big LEO systems (1610- 1626.5 MHz and 2483. 5- 2500); and 2 GHz MSS systems (1990- 2025 MHz and 2165- 2200 MHz) VoiceStream Reply Comments to the Further Notice at 9 (VoiceStream is now known as T- Mobile). 49 VoiceStream identifies 123,000,000 U. S. subscribers. Id. at 10. The current number of domestic subscribers may be higher, as indicated by statistics published by CTIA. On January 30, 2002, the CTIA web site (www. wow-com. com) claimed “137, 458, 902 current U. S. Wireless Subscribers.” VoiceStream identifies 190 megahertz of terrestrial wireless spectrum and counted 50 megahertz for cellular, 120 megahertz for Broadband PCS, and an estimated 20 megahertz for the SMR spectrum that Nextel uses in its services. 50 VoiceStream Reply Comments to the Further Notice at 8- 9; VoiceStream Reply Comments to the CTIA Petition for Reconsideration at 5- 6. 51 AT& T Wireless observes that in 1994, the Commission predicated that there would be 54 million CMRS users by the year 2000, but that CMRS end user growth has been more than twice as fast as the Commission envisioned, with the industry serving approximately 122 million customers today. In contrast, AT& T Wireless states that the MSS industry does not even serve 1 percent of that total. Thus, AT& T Wireless asserts that the “marketplace has clearly spoken and the Commission’s allocation decisions should respond to end user demand, not MSS licensees’ unrealistic promises.” See AT& T Wireless Comments to the Further Notice at 9. 11 Federal Communications Commission FCC 03- 16 12 Division), and Verizon also recommend that all abandoned spectrum be reallocated to AWS, 52 while Verizon further avers that all unassigned spectrum should be given to AWS. 53 PFF recommends that we adopt a “zero tolerance” policy for failure of MSS operators to meet milestone requirements, and should be prepared to reallocate such abandoned MSS spectrum to alternative uses, most likely AWS, on an expedited basis should abandonment occur. 54 Ericsson observes that the 1910- 1915 MHz and 1990- 1995 MHz bands could be used for Broadband PCS expansion. 55 21. Several commenters argue that MSS assignments should commence from 2025 MHz and 2200 MHz (i. e., at the top of each band) and occupy bands on a decreasing- in- frequency basis, arguing that this would allow an AWS reallocation without impairing MSS licenses, and make future reallocation of spectrum from MSS easier. 56 Ericsson, TIA – Wireless Division, Verizon, and VoiceStream also state that the 2165- 2170 MHz band should be immediately reallocated to 3G services (i. e. for AWS applications). 57 TIA – Wireless Division also notes that such a reallocation, in conjunction with reallocation of the 2110- 2165 MHz band, would create a 60 megahertz contiguous block – which would support 6 blocks of 10 megahertz each. 58 22. AT& T Wireless, Cingular, CTIA, and Orange Group 59 recommend that the entire 2 GHz MSS allocation (1990- 2025/ 2165- 2200 MHz) be reallocated for AWS, 60 arguing that the MSS industry as a 52 TDS Reply Comments to the Notice at 3; TIA – Wireless Division Comments to the Further Notice at 6; PFF Comments to the Further Notice at 3; Verizon Comments to the Further Notice at 3. 53 Verizon Comments to the Further Notice at 3. 54 PFF Comments to the Notice at 3. 55 Ericsson Notice of Ex Parte Presentation, ET Docket No. 00- 258, dated Sept. 18, 2001. 56 See, e. g., TIA – Wireless Division Comments to the Further Notice at 7; Motorola Reply Comments to the Further Notice at 7. Similarly, TDS states that 2 GHz MSS should use contiguous bands, so any reclaimed spectrum should also be contiguous. TDS Comments to the Further Notice at 7- 8. 57 See Ericsson Comments to the Further Notice at 2; TIA – Wireless Division Comments to the Further Notice at 6; VoiceStream Reply Comments to the Further Notice at 8. 58 TIA – Wireless Division Comments to the Further Notice at 6. 59 Orange Group recommends the reallocation of the Region 1 and 3 bands (1980- 2010 MHz and 2170- 2200 MHz) for terrestrial wireless systems, which we conclude is a recommendation to reallocate all current 2 GHz MSS spectrum because the remaining MSS spectrum (the 2010- 2025 MHz band paired with the 2165- 2170 MHz band) would be both small and asynchronous, and therefore unlikely to support MSS licensees under the current structure of that service. Orange Group Reply Comments to the Further Notice at 7. Orange Group notes that the terrestrial component of IMT- 2000 (1920- 1980 MHz paired with 2110- 2170 MHz) has a 190 megahertz duplex separation and that the 1990- 2010 MHz and 2180- 2200 MHz bands have this same duplex separation. Orange Group asserts that the use of 190 megahertz duplex separation would allow easier manufacture and design of terminal equipment, which would enable economies of scale and global roaming. See Orange Group Comments to the Further Notice at 4. 60 See AT& T Wireless Comments to the Further Notice at 8- 9; Cingular Comments to the Further Notice at ii, 7- 13; CTIA Reply Comments to the Further Notice at 3- 8. Cingular further recommends that reallocated MSS spectrum be used for Frequency Division Duplex (FDD) operations, with the 1990- 2010 MHz band paired with the 2180- 2200 MHz band and the 1710- 1780 MHz band paired with the 2110- 2180 MHz band, and that reallocated MSS spectrum in the 2010- 2025 MHz band be used for Time Division Duplex (TDD) operations or, alternately, as replacement (continued....) 12 Federal Communications Commission FCC 03- 16 13 whole is not economically viable and noting that some 2 GHz MSS licensees have made such statements in filings before the Commission. 61 ArrayComm and Nortel suggest that the 20/ 20 megahertz of global MSS spectrum be retained for 2 GHz MSS use and that the remainder be relocated for AWS. 62 SBE recommends that the 2008- 2025 MHz band be reallocated to support AWS. 63 CTIA, on the other hand, argues that the demand for spectrum for AWS and the tentative prospects for MSS should compel the Commission to reject maintaining any arbitrary “floor” of MSS spectrum, including the 40 megahertz of spectrum allocated to MSS globally, and that such a floor would preclude more efficient use of the spectrum. 64 Further, Nextel recommends that, as part of its proposed 800 MHz interference mitigation plan, we reallocate the 1910- 1915/ 1990- 1995 MHz bands to Nextel in exchange for spectrum that it would give up. 65 Finally, WCA offers that MDS relocation from the 2150- 2160/ 62 MHz band could be accomplished by providing MDS with the 1910- 1916/ 1990- 1996 MHz bands and allowing fixed or mobile use. 66 23. Several of the 2 GHz MSS proponents – including Celsat America (Celsat), Constellation, Globalstar, Lockheed Martin, Space Enterprise Council, and the Satellite Industry Association (SIA) – oppose any reallocation of spectrum from MSS, arguing that the satellite service may be the only viable solution for providing AWS to rural and underserved areas. 67 Lockheed Martin states that MSS provides many emergency communications, and the Mobile Satellite Users Association (MSUA) states that reallocating MSS spectrum would compromise many public safety operations. 68 The Telecommunications Industry Association – Satellite Communications Division (TIA – Satellite Division) states that MSS (... continued from previous page) spectrum for incumbents in other bands – such as MDS – that are being cleared for possible AWS use. Cingular Comments to the Further Notice at 11. 61 See AT& T Wireless Comments to the Further Notice at 8; Cingular Comments to the CTIA Petition for Reconsideration at 6; CTIA Reply Comments to the CTIA Petition for Reconsideration at 7- 9. Moreover, AWS proponents observe that Globalstar has filed for bankruptcy and assert that this proves the MSS industry is not viable. In addition, AWS proponents argue that MSS use of the 1990- 2025 MHz and 2165- 2200 MHz is an inefficient use of valuable spectrum. AWS proponents also state that MSS is not viable and is unable to deliver promised service to rural and underserved areas. 62 See ArrayComm Comments to the Further Notice at 9 & 13; Nortel Comments to the Further Notice at 6. 63 See SBE Reply Comments to the Further Notice at 1 & 5. 64 CTIA Comments to the Further Notice at 6- 7. 65 See Nextel Notice of Ex Parte Presentation, ET Docket No. 00- 258, dated Aug. 9, 2002. Nextel initially recommended the 2020- 2025/ 2170- 2175 MHz bands. See Nextel Notice of Ex Parte Presentation, ET Docket No. 00- 258, dated Nov. 21, 2001 at 29. 66 See Letter from WCA, et. al., to FCC Chairman Powell, July 11, 2002, in ET Docket 00- 258, concerning “Compromise Solution for Relocating MDS from 2150- 2162 MHz.” (WCA Letter) This letter was sent jointly by WCA, Bellsouth, Nucentrix, Sprint, and Worldcom. WCA is the trade association of the MDS industry. The other parties hold the majority of licenses in the 2150- 2160 MHz band. We note that the 1910- 1916 MHz UPCS band and the 1990- 1996 MHz MSS band is the same spectrum (1910- 1915 MHz/ 1990- 1995 MHz) that Nextel has identified. 67 Celsat Comments to the Further Notice at 3; Lockheed Martin Comments to the Further Notice at 5; Globalstar Reply Comments to the Further Notice at 4; Space Enterprise Council Reply Comments to the Further Notice at 1; Constellation Comments to the Further Notice at ii- iii; SIA Comments to the Further Notice at 2. 68 Lockheed Martin Comments to the Further Notice at 5; MSUA Comments to the Further Notice at 4. 13 Federal Communications Commission FCC 03- 16 14 provides important public service, particularly in disaster situations, 69 and argues that we must retain global MSS spectrum because of cost efficiencies such as simplified system design and economies of scale. 70 Globalstar and SIA state that the MSS bands are not designated globally for terrestrial services so a reallocation would not lead to global harmonization. 71 24. ICO and Boeing argue that any domestic reallocation that conflicts with the international MSS allocations at 1980- 2010 MHz and 2170- 2200 MHz would impair the ability of multiple MSS systems to provide global service, would be a reversal of long- standing U. S. support of global spectrum for MSS, and would undermine U. S. credibility with the international community at future world radio conferences. 72 In response to requests by Nextel and the MDS proponents for access to the 1990- 1996 MHz bands, ICO is concerned that a reallocation of the 1990- 1996 MHz band would limit the amount of spectrum available to its uplink operations because it has already constructed its system to operate within the 1985- 2015 MHz and 2170- 2200 MHz bands. 73 TMI Communications and Company Limited Partnership (TMI) states that reallocation of 2 GHz MSS spectrum would cause coordination problems with Mexico and Canada because this spectrum is licensed for MSS use in these countries. 74 25. CTIA, and certain incumbent PCS licensees and PCS equipment manufactures have raised the issue of possible out- of- band emissions interference from 2 GHz ATC mobile earth terminals to PCS mobile receivers operating in the 1930- 1990 MHz band, which they claim would not be adequately protected by our current out- of- band limitation of -43 + 10 log P dB for PCS mobile transmitters. 75 These parties also have indicated that PCS mobile handsets would not be able to adequately filter out transmissions from nearby MSS ATC handsets; which could result in either a desensitization or overload of existing PCS receivers. Verizon has also expressed its concern on this same point. 76 CTIA suggests that this potential for interference could be mitigated by providing 15- 20 megahertz of frequency separation between PCS and ATC operations and by imposing much tighter out- of- band emissions limits on ATC equipment. Nextel, however, disagrees with CTIA and Verizon’s view, contending that while ATC could theoretically cause interference to existing PCS operations in limited circumstances, the probability of such interference actually occurring is low. Nextel argues that a 15 MHz guard band between MSS/ ATC mobile transmit and PCS mobile receive is unnecessary given the combination of 69 TIA – Satellite Division Comments to the Further Notice at 3. 70 TIA – Satellite Division Comments to the Further Notice at 4- 5. 71 Globalstar Comments to the Further Notice at i- ii; SIA Comments to the Further Notice at 2, 5 & 6. 72 ICO Comments to the Further Notice at 27- 28; Boeing Comments to the Further Notice at 7. But see Cingular Reply Comments to the Further Notice at 5 (challenging the MSS proponents’ argument that a reallocation of MSS spectrum would harm U. S. credibility in the international community). 73 ICO Comments to the 2002 Viability Assessment at 4- 6. ICO also argues that a reallocation of the 1990- 1996 MHz band would impair its ability to comply with one of our 70 percent frequency agility requirements and thus require it to modify its system at great cost. Id. 74 TMI Comments to the Further Notice at 2. 75 Letter from Diane Cornell, Counsel, Cellular Telecommunications and Internet Association to Marlene H. Dortch, Secretary, Federal Communications Commission at 4- 10. Ex Parte filing in IB Docket No. 01- 185 and ET Docket No. 00- 258 (filed Jan. 14, 2003). 76 Letter from Donald C. Brittingham, Director, Wireless Spectrum Policy, Verizon Corp. to Marlene H. Dortch, Secretary, Federal Communications Commission at 1- 6. Ex Parte filing in IB Docket No. 01- 185 and ET Docket No. 00- 258 (filed Jan. 6, 2003). 14 Federal Communications Commission FCC 03- 16 15 contributing factors necessary to produce interference. 77 According to Nextel, if the same analyses used by CTIA for ATC mobile transmitters and PCS mobile receivers were used in the 800 MHz band, it would predict substantial interference. However, Nextel notes that in a similar allocation in the 800 MHz band where the cellular mobile transmit band is adjacent to the Land Mobile Radio mobile transmit band, there are no interference problems. 78 26. TIA – Satellite Division also opposes the reallocation of 10- 14 megahertz of spectrum for AWS, because such action would leave each MSS licensee with less than 4 megahertz of spectrum in each direction, which it claims is not enough to support the long- term provision of broad- based services. 79 Commenters representing 2 GHz MSS incumbents also describe anticipated growth for the service as a basis for rejecting the proposed reallocation. Celsat states that the spectrum usage by, and needs of, MSS are expected to grow as the service is deployed. 80 Boeing states that MSS will support a viable satellite-based air traffic management system and that it will use the entire assigned spectrum. 81 ICO notes that, according to the ITU, 206 megahertz of additional spectrum is predicted to be needed for MSS by 2005. 82 27. MSS proponents uniformly recommend redistribution of abandoned 2 GHz MSS spectrum to remaining MSS carriers. 83 TMI states that additional flexibility should be given to MSS licensees to consolidate space platforms and acquire forfeited spectrum to enhance efficiency. It argues that no more than 10 megahertz should be reallocated to 3G. 84 PFF recommends that we adopt a liberal policy with respect to consolidations among MSS providers and between MSS providers and other firms, including specifically CMRS providers. 85 77 See Letter from Regina M. Kenney, Esq., to Marlene H. Dortch, Secretary, Federal Communications Commission. Ex Parte filing on behalf of Nextel in IB Docket No 01- 185 and ET Docket No. 00- 258 (filed Jan. 23, 2003). Nextel notes that interference from an MSS/ ATC handset to a PCS handset only occurs when both mobiles are close to each other, both mobiles are making call, the desired signal for the PCS mobile is weak, and the MSS/ ATC mobile is operating at maximum power. Nextel states that the probability of all these factors occurring at the same time is very low. 78 Id. at 6- 8. 79 TIA – Satellite Division Comments to the Further Notice at 4. 80 Celsat Reply Comments to the Further Notice at 3- 5, 7- 8. 81 Boeing Opposition to the CTIA Petition for Reconsideration at i. 82 ICO Reply Comments to the Further Notice at ii, 3. 83 Boeing Comments to the Further Notice at 6- 7 (“ the Commission should make clear that [abandoned] spectrum must first be made available to the remaining 2 GHz MSS licensees that have met their milestones”; Celast Reply Comments to the Further Notice at 6- 8 (“ Any abandoned 2 GHz MSS spectrum should be made available to the remaining 2 GHz MSS licensees.”); Constellation Reply Comments to the Further Notice at 8 (“ A regulatory structure that provides for the pro rata assignment of . . . spectrum among the 2 GHz MSS systems that are actually financed and implemented will result in the most practical utilization of the 2 GHz MSS bands”); TMI Comments to the Further Notice at 7 (“ A pro rata share [of abandoned 2 GHz spectrum] should be offered to remaining operators (which have met their milestones) as a means to ensure that viable systems will develop.”). 84 TMI Reply Comments to the Further Notice at 2, 7- 8; TMI Comments to the Further Notice at 2. 85 See PFF Comments to the Notice at 3. 15 Federal Communications Commission FCC 03- 16 16 C. Decision 28. Based on the record, we conclude that the public interest would be best served by reallocating 30 megahertz of spectrum in the 2 GHz MSS band for Fixed and Mobile services on a primary basis and preserving the remaining 40 megahertz of spectrum for MSS at this time. We will reallocate 15 megahertz from the MSS uplink band, specifically the 1990- 2000 MHz and 2020- 2025 MHz band segments, and 15 megahertz from the MSS downlink band, specifically the 2165- 2180 MHz band segment. We are modifying the Table of Allocations to provide for Fixed and Mobile services in these bands on a co-primary basis. In addition, we are modifying footnote NG156 of the U. S. Table of Frequency Allocations, 86 concerning Fixed and Mobile service status in bands shared with MSS, to remove the 1990-2000 MHz band. We are also creating a new non- Federal Government footnote that makes incumbent BAS and cable television relay service operations that are secondary to MSS also secondary to new Fixed and Mobile services. Finally, we conclude that some abandoned 2 GHz spectrum recently recaptured as a result of the initial MSS milestone review will be reassigned to the authorized MSS operators that remain when we complete the initial milestone review. 29. We already have concluded in this proceeding that we need to make spectrum available for terrestrial wireless services to promote the introduction of new advanced services, 87 and we would satisfy the public interest by making more spectrum available to meet these needs. We explore alternative uses of this reallocated spectrum, including use of this spectrum for AWS, in the accompanying Further Notice. By retaining a reduced MSS allocation, we also serve the public interest by providing spectrum that can be used by those MSS entities that are proceeding with plans to implement service in these bands. We note that some commenters suggest that we should reallocate the entire 2 GHz MSS spectrum, but we reject that course because it would require us to abandon MSS entirely in this band. 88 Of course, nothing in our decision today limits our continuing spectrum management obligations to ensure that the spectrum is used efficiently and effectively. This includes the ability of the Commission to ensure that the 2 GHz MSS band is not monopolized, whether through our case- by- case review of consolidation of transactions or our ability to open new processing rounds or the reallocation of spectrum if 2 GHz MSS licensees fail to meet their milestones. 30. Our conclusion to reallocate some MSS spectrum for Fixed and Mobile services is supported by the record and other public information. We agree with VoiceStream and other parties that the terrestrial wireless services have seen substantially higher subscribership growth than MSS, even though both services share nearly the same amount of spectrum. 89 Remarkable growth in terrestrial CMRS subscribership has occurred since 1995 when we began allocation proceedings for MSS. For example, in the Second Competition Report, we estimated that, as of December 1996, there were approximately 46. 3 million subscribers in the mobile telephone sector. 90 In the Seventh Competition Report, we estimated that, 86 47 C. F. R. § 2.106, footnote NG156. 87 Second R& O, 17 FCC Rcd at 23200, ¶ 12. 88 As discussed in the Second Memorandum Opinion and Order portion of this document, infra, we likewise reject the petition for reconsideration filed by CTIA that relates to its petition for rulemaking to reallocate the entire 2 GHz MSS spectrum. 89 VoiceStream Reply Comments to the Further Notice at 8- 9 (calculating an average 648,000 United States customers per megahertz on 190 megahertz of spectrum allocated to terrestrial wireless services versus less than 5000 global customers per megahertz on the spectrum that is allocated to MSS). 90 See Implementation of Section 6002( b) of the Omnibus Budget Reconciliation Act of 1993 [and] Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services, Second Report, FCC 97- 75, rel. March 25, 1997 at 5 (Second Competition Report) (stating that “CMRS encompasses approximately 44 (continued....) 16 Federal Communications Commission FCC 03- 16 17 as of December 2001, there were 128.5 million subscribers in the mobile telephone sector, which translates into a national penetration rate of roughly 45 percent, with 61 percent of all U. S. households having at least one wireless phone. 91 This was approximately a 17 percent increase in the number of mobile telephone sector subscribers since December 2000. 31. Although, as some MSS proponents assert, the MSS industry is still relatively young and needs the opportunity to overcome the substantial start- up obstacles it has encountered, we conclude that a reallocation of some 2 GHz MSS spectrum should not impair the growth of MSS. The remaining MSS allocations, both in the 2 GHz band and other bands, will be sufficient to support growth of this service for the foreseeable future. 92 Although several MSS networks have been deployed in other bands, some of the eight authorized 2 GHz MSS authorizations have been cancelled because entities did not meet the milestone conditions of their authorizations. On balance, it is in the public interest to reallocate a portion of the 2 GHz MSS spectrum to support continuing growth of fixed and mobile services. 32. The 30 megahertz of spectrum that will be reallocated from MSS comes from two sources: 14 megahertz of spectrum that was not assigned to any of the MSS licensees and 16 megahertz of spectrum (of the 21 megahertz) that has been abandoned as a result of MSS licensees not meeting initial milestones. Presently, the International Bureau has cancelled three MSS authorizations, thereby recapturing 21 megahertz of spectrum. Sixteen megahertz of this recaptured spectrum, as well as the 14 megahertz of unassigned spectrum, will be reallocated immediately for Fixed and Mobile services. Relying on unassigned and abandoned spectrum as the basis for the reallocation is least disruptive to the MSS licensees. Further, the initial MSS milestone review, which is not yet completed, has already made available an additional 5 megahertz of abandoned spectrum that we are not reallocating for new services. We note that the MSS entities have asserted the need for access to more than 3.5 megahertz of spectrum in (... continued from previous page) million cellular subscribers, 34 million paging subscribers, and 2.3 million specialized mobile radio transmitters.”). However, in the Seventh Competition Report, 17 FCC Rcd at 12988 n. 10, the Commission uses the term “mobile telephone segment,” which includes the provision of mobile telephony services by cellular, Broadband PCS, and digital SMR operators. Following the definition of the most recent report, we are not including paging subscribers for comparison purposes. 91 See Seventh Competition Report, 17 FCC Rcd at 12988, 13004 & 13015. 92 In addition to the MSS allocations at 2 GHz, additional MSS allocations in the U. S. are: 1) L- band, 1525-1559 MHz (downlink) and 1626.5- 1660. 5 MHz (uplink); 2) “Big LEO” band, 1610- 1626. 5 MHz (uplink) and 2483. 5- 2500 MHz (downlink); and 3) 3- 4 megahertz across several bands for MSS data services (“ Little LEO”). Currently, MSS licensees in the 1.6 GHz and 2.4 GHz bands (referred to as Big LEO systems) are providing service in the United States. Among the licensees that operate Low- Earth Orbit (LEO) satellites in these bands, Globalstar is operating under Chapter 11 bankruptcy protection and Iridium emerged from bankruptcy in December 2000. Globalstar states that its Big LEO MSS system had 75, 535 worldwide commercial customers as of June 30, 2002. See “Globalstar presents ATC technology, discusses bankruptcy,” RCR Wireless News, July 29, 2002, at 17. Iridium Satellite LLC. (Iridium) re- initiated commercial service at the end of March 2001 and we have no information on its subscriber numbers at this time. We note, however, that Iridium has entered into a contract with the U. S. Department of Defense to provide unlimited airtime to 20, 000 Government workers. This contract was recently renewed for an additional year and there are options for renewal through 2005. See Iridium Press Release, Dec. 18, 2002, “Defense Department Exercises First Renewal Option of Contract” available at http:// www. iridium. com/ corp/ iri_ corp- news. asp? newsid= 51. ICO, one of the eight 2 GHz MSS licensees, is the only one to have launched a satellite, and it has six additional assembled satellites. ICO has stated that it intends to commence commercial service in 2003. 17 Federal Communications Commission FCC 03- 16 18 each band for their Selected Assignments. 93 We thus conclude that the public interest would be served by redistributing abandoned 2 GHz spectrum recently recaptured as a result of the initial MSS milestone review, above the 16 megahertz being reallocated, to the authorized MSS operators that remain when we complete the initial milestone review. Thus, it is possible that more than 5 megahertz of abandoned spectrum may be available for redistribution when the initial MSS milestone review is completed. We further note that MSS milestone review is an ongoing process that spans several years, and it is possible that not all currently authorized MSS networks will be deployed. As we previously stated in 2 GHz MSS R& O, we have not established nor do we do so here any policy or rule regarding the use of additional abandoned spectrum that may result after future MSS milestone reviews are completed. Instead, we will evaluate whether to redistribute such spectrum or make it available to new entrants after achievement of each of our system implementation milestones. 94 33. Because we are revising the allocated spectrum for MSS and modifying the amount of spectrum that will constitute a Selected Assignment, we also modify how Selected Assignments are to be located in the revised MSS bandwidth. In the 2 GHz MSS R& O, we determined that the MSS band plan would be divided into equal segments based on the number of licensed MSS systems. This incremental spacing approach allows MSS licensees to identify Selected Assignments working from either the bottom or the top of the band without requiring assignments to be selected in sequential order, as some commenters have suggested. 95 In order to maintain this flexibility, the plan for each band will be based on dividing the revised MSS allocation in each band by the number of MSS licensees remaining when we complete the initial MSS milestone review. Thus, MSS licensees will choose Selected Assignments as an integer multiple of this amount from either band edge. 96 We thus modify, pursuant to Section 316 of the Communications Act and consistent with our decisions here, the 2 GHz MSS authorizations to increase the amount of spectrum for Selected Assignments, to require that a Selected Assignment be located within the revised MSS allocation, and to require that a Selected Assignment be chosen such that the band edge of the assignment is an integer multiple of the revised value from the band edge. 97 We also delegate authority to the International Bureau to issue revised authorizations, consistent with our decisions here, when the initial milestone review is completed. When the authorizations are modified, the MSS entities, including ICO, can follow current procedures for notifying the Commission of their Selected Assignments and their selections will be put on public notice. 34. In deciding which segments of the MSS spectrum should be reallocated for Fixed and Mobile services, we recognize that the record is split on whether we should reallocate spectrum that overlaps the 93 See, e. g. , Boeing Comments to the Further Notice at 3- 6; Globalstar Comments to the Further Notice at 4- 6; ICO Comments to the Further Notice at 15- 16; Celsat Reply Comments to the Further Notice at 7- 8. 94 See 2 GHz MSS R& O, 15 FCC Rcd at 16139, ¶ 18. 95 In the 2 GHz MSS R& O, we also determined that we would not pair assignments in the uplink and downlink bands and, rather, provide MSS licensees with the flexibility to choose an assignment in one band independent of the chosen assignment in the other band. See id., 15 FCC Rcd at 16141, ¶ 23. 96 We recognize that if the Commission decides to assign MSS licensees additional spectrum through, for example, a distribution of abandoned MSS spectrum, the integer spacing of Selected Assignments may have to be modified so to accommodate the amount of assigned spectrum per licensee. 97 The Commission has the authority to modify the 2 GHz MSS authorizations by rulemaking. See, e. g., Community Television, Inc. v. FCC , 216 F. 3d 1133, 1140- 41 (D. C. Cir. 2000) (upholding Section 316 modification of broadcast licenses during the DTV transition, which would ultimately move licensees from one channel to another, but observing that the FCC had not “wrought a fundamental change to the terms of those . . . licenses”). 18 Federal Communications Commission FCC 03- 16 19 global MSS allocation, which consists of paired 30 megahertz bands at 1980- 2110 MHz and 2170- 2200 MHz. The U. S. MSS allocation, which consists of two paired 35 megahertz bands, overlaps 20 megahertz of the international allocation in the lower uplink band (1990- 2010 MHz) and all of the 30 megahertz of the international allocation in the upper downlink band (2170- 2200 MHz). After careful consideration of the record, we conclude that, on balance, the benefits to the public of providing additional spectrum for Fixed and Mobile services that overlaps the international 2 GHz MSS band outweigh the impact on MSS. Our decision is to reallocate MSS spectrum in a way that will allow new entrants to take advantage of economies of scale in developing and deploying new services while maintaining sufficient international MSS spectrum. 35. In the 1990- 2025 MHz band, we are reallocating from the current MSS allocation a 10 megahertz block at 1990- 2000 MHz, which is contiguous with the existing Broadband PCS allocation at 1930- 1990 MHz, and a 5 megahertz block at 2020- 2025 MHz. Because the 10 megahertz block is contiguous with the Broadband PCS band, this spectrum could provide needed growth spectrum for PCS providers, as well as facilitate new AWS equipment development and deployment. This reallocation will reduce by 10 megahertz the current 20 megahertz available for the international MSS uplink allocation. While we recognize that globally harmonized spectrum is an important resource, we share CTIA’s concerns regarding potential interference to existing PCS operations at 1930- 1990 MHz. 98 We believe that in this instance, these interference concerns outweigh the benefits of increased global harmonized spectrum. We find that we can accommodate the international needs of 2 GHz MSS licensees in the remaining 10 megahertz (uplink) + 20 megahertz (downlink) of overlapping international spectrum. Not all of the eight authorized MSS networks will be deployed, not all of the proposed MSS networks will be providing global service, and most MSS licensees propose to operate throughout the currently allocated band (2000- 2020 MHz). 99 The remaining MSS entities will be able to adapt their frequency use within the U. S. to the remaining allocated spectrum (2000- 2020 MHz), and use any spectrum within the international allocation (1980- 2010 MHz) outside the U. S. 100 Any newly authorized MSS networks could be built to accommodate the revised MSS allocation, assuming that sharing with incumbent MSS licensees is possible. We conclude that our decision to reduce the amount of globally harmonized MSS spectrum that will be available in the United States is appropriate at this time and consistent with the current spectrum requirements for the global portion of the 2 GHz MSS industry. Despite this action, we remain cognizant and supportive of the benefits of global spectrum harmonization, when appropriate. 36. In the 2165- 2200 MHz band, we balance the MSS and terrestrial services needs by reallocating a 15 megahertz block at 2165- 2180 MHz. This reallocation will minimize the impact on MSS, as all of the remaining 20 megahertz domestic allocation will overlap with the current international MSS downlink allocation – and, thus, 30 of the 40 megahertz of remaining MSS spectrum will overlap with the global allocation. As discussed above, we believe that MSS licensees should not be significantly impaired 98 We note in the companion ATC Order that we have also adopted stricter out- of- band emission limits and other service requirements to further protect existing PCS operations. See ATC Order, supra n. 46. 99 See supra ¶ 17; see also supra n. 29 (citing the Commission staff’s July 17, 2001, authorizations to eight applications to provide 2 GHz MSS in the United States, wherein some applicants disclosed plans to construct single geostationary satellite systems that would not provide global service). 100 For example, ICO has constructed its satellites to operate across the 1990- 2015 MHz segment of the uplink band and thus will have 15 megahertz of bandwidth available for satellite use within the U. S. ICO thus will meet the 70 percent frequency agility requirement for MSS systems in this band. 19 Federal Communications Commission FCC 03- 16 20 in providing satellite services in this band. 101 We note that, as a result of our previous decision in this docket, 45 megahertz of contiguous spectrum, from 2110- 2155 MHz, will be available for AWS. We also have proposed to make the adjacent bands at 2155- 2160 and 2160- 2165 MHz available for AWS. We note that our decision here to reallocate the adjacent MSS spectrum at 2165- 2180 MHz is consistent with the majority of the AWS proponents who favor reallocating MSS spectrum adjacent to the 2110- 2165 MHz band. Contiguous spectrum would make it easier to accommodate multiple licensees using larger spectrum blocks throughout this band. Further, as some commenters note, a flexible allocation at 2110- 2165 MHz would overlap to a large extent the international allocation for a terrestrial component of advanced services at 2110- 2170 MHz and thus will promote the timely introduction of new equipment and services in this spectrum. 37. As a consequence of our decision to reallocate the 1990- 2000/ 2020- 2025/ 2165- 2180 MHz bands, we note that coordination of satellite and terrestrial use with Canada and Mexico will be necessary. Finally, we are not reaching decisions here on several other issues raised in the Further Notice, such as the consolidation of MSS assignments and BAS and FS relocation issues. We will address those issues in further proceedings. We note, for example, that relocating incumbent BAS operations in the 1990- 2025 MHz band will be further complicated by our decision here. 102 As we stated in the Further Notice when discussing possible reallocation of spectrum in the 1990- 2025 MHz band, the relocation of BAS from any portion of the band would be shared between new MSS entrants and other new entrants in the band. 103 Although we conclude that this principle would apply as a consequence of our reallocation decision, we will address fully BAS relocation issues in a future separate proceeding. We intend to address the relocation issues well in advance of the September 6, 2003, expiration of the initial two- year mandatory negotiation period for Phase 1 of the relocation plan between MSS and BAS. 104 V. THIRD NOTICE OF PROPOSED RULE MAKING 38. Throughout this proceeding, we have identified and discussed numerous frequency bands that could be used to support AWS. As a result, we have generated a comprehensive record that has served as the basis for the allocation decisions we have taken to date and that will support our future decisions in 101 For example, ICO has constructed its satellites to operate across the 2170- 2200 MHz segment of the downlink band and thus will have 20 megahertz of bandwidth available for satellite use within the U. S. ICO thus will meet the 70 percent frequency agility requirement for MSS systems in this band. 102 For example, BAS Channel 1 covers 1990- 2008 MHz. Phase 1 of the BAS relocation plan makes the first MSS entrants responsible for clearing this channel, and allows them to seek reimbursement from later entering MSS operators. As a result of our decision here, a portion of BAS Channel 1 will now be used by other new entrants and thus raises the issue of those new entrants and the MSS parties sharing BAS relocation expenses. 103 See Further Notice, 16 FCC Rcd at 16057 ¶ 33. 104 In the Further Notice, we did not propose, nor do we suggest here, that 2 GHz MSS entities would be entitled to relocation compensation as a consequence of reallocating MSS spectrum for other services. We note, in particular, that the Emerging Technologies relocation policies were intended to prevent disruption of existing services and minimize the economic impact on licensees of those services. See Redevelopment of Spectrum to Encourage Innovation in the Use of New Telecommunications Technologies, ET Docket No. 92- 9, First Report and Order and Third Notice of Proposed Rulemaking, 7 FCC Rcd 6886 (1993). None of the authorized 2 GHz MSS systems are now operational, thus there is no need to prevent disruption to existing services. Further, most 2 GHz MSS systems are in the early stages of construction, having just recently certified that they have met the first construction contract requirement under milestone review. Thus, most 2 GHz MSS systems can accommodate in their system design and construction the allocation changes made here with little or no economic impact. ICO constructed its system at its own risk prior to receiving a U. S. authorization. Nonetheless, the ICO system is capable of operating across the revised allocated MSS bandwidth, and thus the economic impact on ICO should be minimal. 20 Federal Communications Commission FCC 03- 16 21 this docket. Today’s Third R& O further defines the scope of spectrum that could be made available for AWS or other purposes by reallocating 30 megahertz of MSS spectrum. In this Third Notice of Proposed Rulemaking (Third Notice), we discuss those frequency bands that are still under consideration in this proceeding and invite additional comment on their disposition. Specifically, we address the UPCS band at 1910- 1930 MHz, the MDS spectrum at 2155- 2160/ 62 MHz, the Emerging Technology spectrum at 2160- 2165 MHz, and the bands reallocated from MSS. We seek comment on these bands with respect to using them for paired or unpaired AWS operations or as relocation spectrum for existing services. We emphasize the scope of the record we have already developed and urge interested parties to narrow their discussion to specific proposals that will allow for the most efficient and effective use of this remaining spectrum. For example, parties filing comments in response to any of the issues in this Third Notice should take into account how the modification of our rules to allow MSS licensees to deploy ATC affects their analysis of the spectrum under consideration in this proceeding. A. 1910- 1930 MHz and 1990- 2000 MHz Bands 39. Background. The 1910- 1930 MHz band is allocated internationally to the fixed and mobile services on a primary basis and has been designated as a candidate band for administrations wishing to implement IMT- 2000 services. 105 In the United States, the 1910- 1930 MHz band is allocated to the fixed and mobile services on a primary basis, 106 and is designated for use by low power unlicensed personal communications service (UPCS) devices under Part 15 of the Commission’s Rules. 107 Because this band is located between the Broadband PCS mobile and base station transmit bands, UPCS is well suited to this band; i. e., these systems can coexist with Broadband PCS while higher power systems would have a high likelihood of causing harmful interference to those systems. 108 Prior to the availability of the 1910- 1930 MHz band for UPCS use, this band was used by fixed point- to- point microwave links. To facilitate the introduction of UPCS systems, the Commission established policies in the Emerging Technologies proceeding for the relocation of incumbent microwave systems from this band and designated UTAM, Inc. (UTAM) to coordinate and manage the transition. 109 40. Under the current rules, the 1910- 1920 MHz portion of the band may be used for asynchronous (generally data) UPCS devices and the 1920- 1930 MHz portion may be used for isochronous (generally voice) UPCS devices. 110 To minimize the potential of systems in each band 105 47 C. F. R. § 2.106, footnote 5. 388. International footnote 5. 388A states that the 1910- 1930 MHz and other frequency bands may be used by high altitude platform stations as base stations to provide IMT- 2000 services. 47 C. F. R. § 2.106, footnote 5.388A. 106 See 47 C. F. R. § 2.106. 107 See 47 C. F. R. Part 15 - Radio Frequency Devices. Subpart D of Part 15 is titled “Unlicensed Personal Communications Service Devices.” 108 Domestically, Broadband PCS systems have been implemented as frequency division duplex (FDD) systems. Such systems generally require a duplex gap – an unused frequency block – to provide isolation between base and mobile transmit frequencies. 109 See Amendment of the Commission's Rules to Establish New Personal Communications Services, GEN Docket No. 90- 314, Fourth Memorandum Opinion and Order, 10 FCC Rcd 7955 (1995). UTAM is the Commission’s frequency coordinator for UPCS devices in the 1910- 1930 MHz band. The UPCS band relocation policies are codified at 47 C. F. R. §§ 101.69- 101. 81. 110 Asynchronous devices are defined as those “that transmit RF energy at irregular time intervals, as typified by local area network data systems,” and isochronous devices are defined as those “that transmit at a regular interval, typified by time- division voice systems.” See 47 C. F. R. § 15. 303( a)-( d). Specific requirements for the operation of (continued....) 21 Federal Communications Commission FCC 03- 16 22 interfering with other systems operating in the same band, the Commission adopted rules requiring UPCS devices to monitor the spectrum prior to transmitting. Recognizing that asynchronous and isochronous transmissions have different characteristics – asynchronous transmissions tend to be short, bursty packet data and isochronous transmissions tend to be longer and more predictable – the Commission tailored the monitoring etiquette to optimize the 1910- 1920 MHz band for asynchronous devices and the 1920- 1930 MHz band for isochronous devices. 111 Currently, the most widespread application of the 1920- 1930 MHz UPCS band is for wireless PBX systems. 41. In the Further Notice, we sought comment on whether a portion of or the entire 1910- 1930 MHz band should be re- designated for AWS or as relocation spectrum for incumbents in other frequency bands that are displaced by new AWS licensees. 112 In particular, we sought comment on the extent to which the 1910- 1930 MHz band is being used or likely to be needed for UPCS devices and how the 1910- 1930 MHz band could be used with other spectrum being considered for AWS. We also asked if part of the 1910- 1930 MHz band were to be re- designated, how much, and which parts, should be re- designated, and whether the location of the 1910- 1930 MHz band, as adjacent to the Broadband PCS bands, benefits or hinders the band’s possible use for AWS. 42. We also note that there are several outstanding petitions relating to use of the 1910- 1930 MHz band. A petition for rulemaking filed by WINForum requests that we allow isochronous UPCS devices to operate over the entire 1910- 1930 MHz band and correspondingly phase out asynchronous UPCS use in the 1910- 1920 MHz band. In addition, it asks that we modify certain technical requirements for UPCS devices to optimize the 1910- 1930 MHz band for isochronous devices. 113 In contrast, a petition for rulemaking filed by UTStarcom requests that the use of the 1910- 1920 MHz band be made available for community wireless networks on a coordinated basis. 114 UTStarcom maintains that its proposal would permit it to establish community wireless networks using the UTStarcom Personal Access System (PAS). This system, based on the Japan RCR- 28 Personal Handy Phone System (PHS) standard, does not meet the current Part 15 UPCS monitoring etiquette rules for isochronous devices. 115 Instead, devices within the (... continued from previous page) asynchronous devices in the 1910- 1920 MHz band are codified at 47 C. F. R. § 15. 321 and specific requirements for the operation of isochronous devices in the 1920- 1930 MHz band are codified at 47 C. F. R. § 15. 323. 111 The purpose of the monitoring requirement is to allow systems that use different air interfaces to coexist harmoniously in the same band. The rules require asynchronous devices to monitor the spectrum that its transmission is intended to occupy for at least 50 microseconds prior to initiating a transmission with a monitoring threshold not more than 32 dB above the thermal noise power for a bandwidth equivalent to the emission bandwidth of the device. See 47 C. F. R. § 15. 321 Isochronous devices are limited to specific channels and must monitor for at least 10 or 20 milliseconds depending on the design of the system. The monitoring threshold must not be more than 30 dB above the thermal noise power for a bandwidth equivalent to the emission bandwidth of the device. See 47 C. F. R. § 15. 323. 112 Further Notice, 16 FCC Rcd at 16048, ¶ 9. 113 WINForum seeks modifications to certain technical rules, e. g., 47 C. F. R. §§ 15. 301 (definition of peak transmit power), 15. 319( e) (antenna gain), 15. 321 (frequency stability), in conjunction with its proposed rule for the 1910- 1920 MHz band. We note that WINForum did not ask for any changes to the monitoring requirement. 114 UTStarcom first requested licensed use of the 1910- 1920 MHz band. It now proposes “coordinated unlicensed operation” in the 1910- 1920 MHz band for its PAS system, with the coordination performed by UTAM using the existing UTAM coordination infrastructure. See UTStarcom Comments to the Further Notice at 6. 115 UTStarcom Petition at 2. UTStarcom later submitted specific proposed technical changes to Part 15 in order to facilitate the use of its PAS system. See Ex Parte Comments of UTStarcom in RM- 10024, filed May 23, 2001, at 1- (continued....) 22 Federal Communications Commission FCC 03- 16 23 system avoid interfering with each other through the use of a dedicated control channel. In the Further Notice, we solicited comment on these proposals, including the regulatory framework that we would have to establish were we to permit community wireless networks and/ or other expanded uses of the UPCS band. 116 In addition, we have pending four petitions for waiver relating to use of the 1910- 1920 MHz band. Specifically, petitions submitted by UTStarcom & Drew University and Alaska Power & Telephone Company, Inc. (Alaska Power) request use of the 1910- 1920 MHz band for community wireless networks. Petitions submitted by Lucent and Ascom Wireless Solutions, Inc. (Ascom) request use of the 1910- 1920 MHz band for isochronous UPCS devices. These petitions for waiver were previously placed on Public Notice. 117 43. The record generated to date demonstrates support for a variety of options, from re- designating the entire 1910- 1930 MHz band for AWS use to retaining the entire 20 megahertz for UPCS. Among those proponents of reallocating the entire UPCS band, 118 Ericsson and TIA – Wireless Division state that the characteristics of the 1910- 1930 MHz band suit those advanced services that can take advantage of unpaired spectrum technologies. 119 Those commenters that support UPCS describe a band in which service has developed in spite of numerous challenges and difficulties. For example, UTAM states that equipment manufacturers have made significant investments in the development of UPCS products in the 1920- 1930 MHz band and a large number of voice users exist in the band. 120 UTAM/ WINForum assert that delays in the widespread development of UPCS are due to the ongoing relocation of microwave incumbents from the UPCS band and the strict Part 15 spectrum etiquette required by the rules. 121 These parties note particular difficulties would be associated with reallocation of the 1920- 1930 MHz portion of the band. For example, NEC America (NEC) states that many wireless PBX systems cannot be retuned to (... continued from previous page) 3 (seeking modifications to the spectrum etiquette requirements of 47 C. F. R. § 15. 307 and certain technical rules in 47 C. F. R. §§ 15. 319 and proposing new rules in 47 C. F. R. §§ 15. 320 (specific requirements for associated controlling and controlled isochronous devices operating in the 1910- 1920 MHz band) and 15. 321( c) (specific requirements for asynchronous devices operating in the 1910- 1920 MHz and 2390- 2400 MHz bands)). 116 See Further Notice, 16 FCC Rcd at 16049- 50, ¶ 13. See also Report No. 2320, Public Notice, (Mar. 10, 1999) (listing WINForum Petition for Rulemaking, RM- 9498, filed Jan. 8, 1999) and Report No. 2459, Public Notice, (Dec. 14, 2000) (listing UTStarcom Petition for Rulemaking, RM- 10024, filed on Nov. 6, 2000). See also infra ¶ 54. 117 See DA 99- 1242 (Lucent Petition for Waiver, rel. Jun. 24, 1999); DA 00- 2061 (UTStarcom & Drew University Petition for Waiver, rel. Sept. 8, 2000); DA 00- 2833 (Ascom Petition for Waiver, rel. Dec. 15 2000); and DA 01-2308 (Alaska Power Petition for Waiver, rel. Oct. 5, 2001). 118 See, e. g., ArrayComm Comments to the Further Notice at 5; Ericsson Comments to the Further Notice at 7- 8; Orange Group Comments to the Further Notice at 4; Siemens Comments to the Further Notice at 2; TDS Comments to the Further Notice at 6; and TIA Comments to the Further Notice at 4. 119 See Ericsson Comments to the Further Notice at 7- 8; TIA Comments to the Further Notice at 4. ArrayComm, which recommends that the 1910- 1930 MHz band be used for time division duplex (TDD) technology, notes that the 1910- 1920 MHz band is used for TDD operations in many parts of the world. ArrayComm Comments to the Further Notice at n. 7. 120 UTAM/ WINForum Reply Comments to the Further Notice at 3- 4. In addition, Motorola states that the market for isochronous devices is beginning to emerge. See Motorola Comments at 20. NEC states that the number of UPCS end users grew 31 percent in 2000. See NEC Comments at 10. 121 UTAM/ WINForum Reply Comments to the Further Notice at 5- 6. 23 Federal Communications Commission FCC 03- 16 24 operate in different frequency bands, 122 and Avaya asserts that current users of UPCS systems cannot afford to replace their systems, effectively precluding the ability of many incumbents to migrate to other bands. 123 There is also support for retention and expanded use of the 1910- 1920 MHz portion of the band. Echoing the pending petitions relating to use of the band, these commenters urge the development of isochronous devices across the entire UPCS band, 124 or ask that the 1910- 1920 MHz band be used for community wireless networks to serve rural, tribal, and underserved areas. 125 In addition, Avaya, NEC, Blackfoot Telephone Cooperative, Inc., et al. (collectively, the Rural Commenters), and UTAM state that if the Commission were to re- designate any of the UPCS band for AWS, the band clearing administration and coordination efforts of UTAM would have to be addressed, and that UTAM’s expenses should be reimbursed. 126 44. In the Third R& O, we reallocate the 1990- 2000 MHz band from MSS to fixed and mobile use. This band is adjacent to the current PCS base station transmit band at 1930- 1990 MHz and the remaining MSS uplink band at 2000- 2020 MHz. Although the 1990- 2000 MHz band was previously allocated to MSS, currently there are no MSS operations in the band. Currently it is used by the BAS as part of the 1990- 2110 MHz band. At the time that 1990- 2025 MHz band was reallocated to MSS, the Commission adopted a transition plan to accommodate the BAS. In the Further Notice, we sought comment, generally, on how spectrum reallocated from MSS should be used. 45. Finally, we note that several existing licensees have asked that we consider using a portion of these bands as replacement spectrum. For example, Nextel, in conjunction with its “Private Wireless Coalition Consensus Plan” for resolving public safety and CMRS interference issues in the 800 MHz band, 122 See NEC Comments to the Further Notice at 14. NEC also claims that re- designation would be unduly burdensome and would deter future investment in UPCS because it would create stranded equipment, which may cause manufacturers to exit the UPCS market. 123 See Avaya Reply Comments to the Further Notice at 2 & 6. 124 For example, UTAM/ WINForum states that UPCS spectrum usage is “vibrant” and that it is increasing as microwave migration continues. UTAM/ WINForum Reply Comments to the Further Notice at 3- 8. See also Avaya Comments to the Further Notice at 5 and 7; Nortel Comments to the Further Notice at 3- 10; NEC Comments to the Further Notice at 2- 4. 125 See Blackfoot Telephone Cooperative (Blackfoot) Comments to the Further Notice at 2; Midstate Comments to the Further Notice at 2; Midvale Comments to the Further Notice at 2; Penasco Valley Comments to the Further Notice at 2; UTStarcom Comments to the Further Notice at 2; Rural Commenters Reply Comments to the Further Notice at 2; NTCA Reply Comments to the Further Notice at 2; Ex Parte Comments of the Rural Commenters in ET Docket No. 00- 258, filed March 19, 2002. See also Panasonic Comments to the Further Notice at 2; Quantum Communication, Inc. Comments to the Further Notice at 2; RNI Communications Corp. Comments to the Further Notice at 2; RTG Comments to the Further Notice at 5, Telecom Consulting Associates, Inc. Comments to the Further Notice at 6; PHS MoU Comments to the Further Notice at 1; Robert Hart Comments to the Further Notice at 1. 126 See Avaya Comments to the Further Notice at 6; NEC Reply Comments to the Further Notice at 6; Rural Commenters Reply Comments to the Further Notice at 4; and UTAM Reply Comments to the Further Notice. See also Nortel Comments to the Further Notice at 5 (suggesting that UPCS users, manufacturers, distributors, and users should be afforded the same level of relocation funding as other displaced services). UTAM recently stated that it has cleared 98 percent of the microwave facilities from the 1920- 1930 MHz band and 91 percent from the 1910- 1920 MHz band. In addition, UTAM states that it has incurred more than $60 million in liabilities relocating incumbent microwave links from the 1910- 1930 MHz band. See “UTAM Report to the FCC” (filed July 1, 2002 in GEN Docket No. 90- 314) (UTAM Report). 24 Federal Communications Commission FCC 03- 16 25 has asked that we re- designate the 1910- 1915 MHz and 1990- 1995 MHz bands to Nextel in exchange for spectrum that Nextel would surrender for reassignment to public safety systems. 127 Similarly, WCA has offered a proposal to relocate MDS Channels 1 and 2/ 2A to the 1910- 1916/ 1990- 1996 MHz bands and allow fixed or mobile use. 128 46. Reallocation. We recognize that UPCS equipment manufacturers, distributors, and end users have invested considerable efforts and resources in the development and deployment of isochronous devices in the 1920- 1930 MHz band, and that re- designation of the 1920- 1930 MHz band for AWS would upset the reasonable expectations of these parties. Thus, we are no longer proposing to reallocate the 1920- 1930 MHz portion of the UPCS band to support AWS applications. In contrast, we note that asynchronous UPCS applications have not been developed for the 1910- 1920 MHz band as the Commission had envisioned when it authorized this service in 1994. 129 A search of our equipment authorization database reveals that there is not any UPCS equipment authorized for this band. We do not believe that the public interest is served if we allow this 10 megahertz of spectrum to remain fallow when there are many applications that can put it to good use. 47. As an initial matter, we note that because the 1910- 1920 MHz band is adjacent to the 1850- 1910 MHz Broadband PCS spectrum and the Third R& O creates a 10 megahertz fixed and mobile allocation at 1990- 2000 MHz that is adjacent to the 1930- 1990 MHz Broadband PCS block 130 one option is to pair spectrum from the UPCS band, 1910- 1920 MHz, with spectrum from the 1990- 2000 MHz band for an expansion of Broadband PCS services. 131 Other options include pairing and redesignating this spectrum for AWS, or using the bands to support the relocations of existing licensees under proposals such as those set forth by WCA or Nextel, as discussed below. Such a pairing could consist of two 5 megahertz blocks – i. e. the 1910- 1915 MHz band paired with the 1990- 1995 MHz band – or two 10 megahertz blocks, consisting of the entire 20 megahertz of spectrum in these two bands. We seek comment on such pairings. 48. We believe that it would serve the public interest to adopt a 5 + 5 megahertz or a 10 + 10 megahertz pairing within these bands. 132 For example, pairing these bands could allow for use of existing PCS equipment with little modification and easier manufacture and design of equipment, thereby enabling significant economies of scale. In addition, because the 1910- 1920 MHz band lacks incumbent UPCS 127 Ex Parte comments of Nextel in WT Docket 00- 258, filed Aug. 9, 2002. See also “Improving Public Safety Communications in the 800 MHz Band,” WT Docket No. 02- 55. Since Nextel’s proposal is part of the record in WT Docket 02- 55 and comments have already been filed on Nextel’s proposal, we do not invite comment here on this issue. 128 See WCA Letter, supra n. 66. We believe that if existing MDS licensees deployed more robust, spectrally efficient equipment upon relocation, WCA’s proposal could also be implemented within the 1910- 1915 and 1990- 1995 MHz bands. 129 At that time, the Commission anticipated that the band would be used for data applications such as high- speed, high- capacity LANs. See Amendment of the Commission’s Rules to Establish New Personal Communications Services, GEN Docket No. 90- 314, Second Report and Order, 8 FCC Rcd 7700 (1993). 130 See supra ¶ 35. 131 If this approach is taken, we would propose specific licensing and service rules in a subsequent Notice of Proposed Rule Making. 132 We could also adopt an asymmetric pairing for these bands. See infra ¶ 53. 25 Federal Communications Commission FCC 03- 16 26 users, new licensees need only address relocation as it pertains to the relocation of incumbent point- to-point microwave systems in the band. 133 49. We note that pairing the 1910- 1920 MHz and 1990- 2000 MHz bands in 5 megahertz increments (i. e. either 1910- 1915 MHz paired with 1990- 1995 MHz or 1910- 1920 MHz paired with 1990- 2000 MHz) is consistent with many possible uses of the bands. For example, the existing channel block assignments for Broadband PCS consist of 2x5 megahertz in the D, E, and F blocks. 134 In addition, we note that the IMT- 2000 standards being considered for AWS include WCDMA, which is based on paired 5 MHz channel blocks and CDMA- 2000, which uses multiple 1.25 megahertz carrier channels to provide higher data rates. Finally, such a pairing would also create the possibility of granting the request of Nextel or WCA. Accordingly, we seek comment on whether spectrum in these bands should be paired and re-designated for AWS with the likelihood that we would be able to use our existing Broadband PCS rules to promote rapid deployment of service in the band 135 or whether the bands should be used to support the relocation of existing licensees under proposals such as those set forth by WCA or Nextel. 50. As mentioned above, Broadband PCS has been implemented domestically using FDD technology which requires separation between the base and mobile transmit frequencies. Because this band separates the Broadband PCS base and mobile transmit frequencies, some commenters question the usefulness of the band for AWS and express concern that Broadband PCS receivers will be subject to harmful interference if spectrum in the 1910- 1930 MHz band is re- designated for higher- powered uses. 136 Other commenters, such as Ericsson, endorse the use of the band for AWS as long as there are sufficient safeguards to protect existing Broadband PCS operations. 137 Currently, the UPCS band provides 20 megahertz of spectrum for separating the Broadband PCS base and mobile transmit bands. Based on the record of this proceeding, it appears possible to reduce this separation by 5 to 10 megahertz without 133 Microwave systems operating with paired frequencies use the 1910- 1930 MHz band paired with the 2160- 2180 MHz band. We note that UTAM previously relocated certain microwave incumbents from the 1910- 1920 MHz band in conjunction with the designation of the 1910- 1930 MHz band for UPCS use. We discuss proposed modifications to the existing relocation and reimbursement procedures for the 1910- 1920 MHz band to account for these relocations in ¶¶ 56- 61, infra. We observe that the rules adopted in the 1992 Emerging Technologies proceeding apply to this band. Emerging Technologies First Report and Order and Third Notice of Proposed Rule Making, 7 FCC Rcd at 6890, ¶¶ 23- 24. This relocation right was affirmed in the Emerging Technologies Memorandum Opinion and Order and Third Notice of Proposed Rulemaking and Order, 13 FCC Rcd 23949 (1998). The rules are codified in 47 C. F. R. §§ 101.69- 101.101.99. Because these procedures are well known, parties can move expediently to initiate any relocation deemed necessary. For these reasons, we believe that service providers can roll out service in this band quickly. 134 See 47 C. F. R. § 24. 229. 135 We make no decision with respect to whether our Broadband PCS rules would be most appropriate for this band, and note that we would propose specific licensing and service rules in a subsequent Notice of Proposed Rulemaking. 136 CTIA Comments to the Further Notice at 3. See also, e. g., Avaya Comments to the Further Notice at 10; Motorola Comments to the Further Notice at ii, 15 & 18; Nortel Comments to the Further Notice at 3- 5; TIA Comments to the Further Notice at 4; UTAM Comments to the Further Notice at 16; UTStarcom Comments to the Further Notice at 3- 4. See also Ex Parte comments of Motorola in WT Docket 00- 258, filed Dec. 18, 2002 at 8 (suggesting that it would be feasible to extend the Broadband PCS spectrum by 5- 6 megahertz to leverage existing equipment and technology). 137 See Ericsson Comments to the Further Notice at 7- 8. 26 Federal Communications Commission FCC 03- 16 27 leading to harmful interference to existing Broadband PCS systems. 138 We seek comment on how much we can reduce the frequency separation between the Broadband PCS base and mobile transmit bands in order to allow new systems to be deployed while protecting existing Broadband PCS operations, and what rules we would have to adopt to permit such operations. As an example, we could ensure that existing Broadband PCS is protected but allow for use of the entire 1910- 1920 MHz band by adopting out- of- band emission limits that are tighter than those employed under our current PCS rules. 51. We note that in the Third R& O, we reallocated the 1990- 2000 MHz band from MSS. 139 MSS operations, including ATC, may exist above 2000 MHz. In this regard, new operations in the 1990- 2000 MHz band will need to take into account these adjacent band operations when developing and deploying new services and equipment. Licensees and operators in this band should take measures both to ensure that their operations are protected from MSS/ ATC operations and will protect MSS and ATC operations from interference. For example, a PCS licensee operating in the band could eliminate potential interference from MSS/ ATC operations by deploying additional base stations. Because the 1930- 1990 MHz band is used for base station transmit by current PCS operators, we expect new operations in the band to follow that same convention. Accordingly, if this band is used for expanded PCS, licensees may be required to deploy additional base stations to avoid interference from MSS/ ATC operations. With regard to interference to MSS/ ATC, we request comment on whether we should adopt the same out- of-band limits for operations as we adopted for MSS/ ATC (i. e., a combination of -43 + 10 log P and -70 + 10 log P) or whether we should adopt a single -70 + 10 log P requirement for out- of- band emissions. We believe that base stations could easily achieve limits of -70 + log P at the band edge. We seek comment on this matter. 52. We also ask for comment on whether we should retain the 1915- 1920 MHz band for UPCS use, but allow for greater flexibility of UPCS use within the entire 1915- 1930 MHz band. We note the record includes comments that claim that the 1920- 1930 MHz band is seeing continuing growth in the deployment of isochronous devices – particularly wireless PBXs – and that assert that there is a need for more spectrum for such uses in certain locations. By extending isochronous unlicensed use under the existing rules to the 1915- 1920 MHz band, we would make an additional 5 megahertz of spectrum available for wireless PBXs and other UPCS devices, including voice and data devices. 140 By leaving the 1915- 1920 MHz band segment unlicensed in this manner, we could further encourage the deployment – in both urban high- density and rural areas – of low power innovative Part 15 devices in this band. We seek comment on flexible UPCS use of the 1915- 1930 MHz band. Commenters should take into account the existing base of isochronous devices in the band. For example, as noted above the monitoring etiquette differs for isochronous and asynchronous devices. Based on these differences and the differences between the way each type of device operates, can a single monitoring etiquette be used for these devices? Could the current monitoring etiquette for isochronous devices be used? In addition, we seek comment on whether we need to modify any other existing technical requirements 141 now specified for isochronous and 138 See, e. g., letter from Regina M. Kenney, Esq. to Marlene H. Dortch, Secretary, Federal Communications Commission. Ex Parte filing on behalf of Nextel in IB Docket No 01- 185 and ET Docket No. 00- 258 (filed Jan. 23, 2003). 139 See supra ¶ 35. 140 See UTAM Comments to FNPRM at 13- 14 (stating that isochronous applications can support both voice and data). UTAM further notes that isochronous data systems are also efficient, as both Digital Enhanced Cordless Telephony (DECT) and Personal Handyphone Service (PHS) offer data rates on the order of 384 to 552 kbps. See also NEC Comments to Further Notice at 25 (stating that the ability to provide both data and voice on a converged wireless platform would increase the deployment of wireless PBXs). 141 Specific requirements for the operation of asynchronous devices in the 1910- 1920 MHz band are codified at 47 C. F. R. § 15. 321 and specific requirements for the operation of isochronous devices in the 1920- 1930 MHz band are (continued....) 27 Federal Communications Commission FCC 03- 16 28 asynchronous devices if they share the band, and if so, specifically how. Commenters should also address whether any proposed modifications to the UPCS rules would also be appropriate if we reduce the UPCS band to 1920- 1930 MHz. 53. In light of the above discussion, we note that retaining the 1915- 1930 MHz band for UPCS would result in an expanded PCS band of only 1910- 1915 MHz, not 1910- 1920 MHz as previously discussed. Thus, such action would result in an asymmetric pairing of 5 megahertz (1910- 1915 MHz) + 10 megahertz (1990- 2000 MHz) or a symmetric pairing of 5 megahertz (1910- 1915 MHz) + 5 megahertz (1990- 1995 MHz) and an unpaired 5 megahertz block (1995- 2000 MHz). Parties should also provide comment on the best use of the 1995- 2000 MHz spectrum. For example, if the 1995- 2000 MHz band remains unpaired, could it be used to support low- power unlicensed devices or point- to- point licensed services? 54. Finally, we seek comment on whether systems such as those proposed by UTStarcom for community wireless networks could also coexist in a reduced UPCS band. The UTStarcom system, based on PAS technology used in other countries, does not adhere to the monitoring etiquette specified in our rules. Rather, a central control channel is used to instruct handsets which channel to use. We note that such systems are designed to operate essentially in the 1910- 1920 MHz band. 142 Would these systems be able to work in the 1915- 1930 MHz band, or even the 1920- 1930 MHz band? 143 In addition, UTStarcom asserts that these types of systems would cause co- channel interference to UPCS devices at significant distances. 144 In general, we note that our unlicensed rules have allowed for the development and introduction of successful consumer and business devices. 145 We believe that unlicensed spectrum should be available to the widest possible range of technologies, and conclude that the introduction of systems such as those geared for community wireless networks would serve the public interest. Accordingly, we seek comment on whether techniques exist to allow community wireless network systems to share the remaining UPCS frequencies with isochronous devices. Commenters who advocate expanding the rules to include these systems should provide specific proposals for rule changes. Commenters should also address both the possibility of a UPCS band consisting of 1915- 1930 MHz and a UPCS band consisting of 1920- 1930 MHz. Because it appears that systems based on current PAS technology cannot share the band with existing isochronous UPCS devices, comments supporting community wireless networks should specifically address potential interference and propose mechanisms for addressing such concerns. (... continued from previous page) codified at 47 C. F. R. § 15.323. Because the isochronous etiquette is intended for “circuit switched” devices that transmit at regular intervals – thus they would take control of a communication channel for longer time periods – and the asynchronous etiquette is for “packet data” transmitted in bursts at irregular intervals, there are different monitoring timing intervals for each type of etiquette. 142 UTStarcom Petition for Rulemaking at 2. The PAS system operates on a subset of the frequencies from 1893. 5 to 1919.6 MHz. UTStarcom avers that the system can support large number of users through very small cells if it is allowed to use all 10 MHz in the 1910- 1920 MHz. Id., at 3. 143 See UTStarcom Ex Parte Comments in RM- 10024 and RM- 9498, filed March 23, 2001, Proposed Part 15 Changes. The PAS system utilizes a control channel in the 1910- 1911. 25 MHz band. Although the control channel frequency can be changed within this frequency band, it is questionable whether the control channel may be moved to a sub- band within 1915- 1930 MHz. 144 See UTStarcom Ex Parte Comments in RM- 10024 and RM- 9498, filed November 15, 2002, Potential Interference to Existing UPCS Systems Resulting From Co- Channel and Adjacent Channel Operation of UTStarcom Networks, at 1. 145 See, e. g., Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band, ET Docket No. 02- 380, Notice of Inquiry, 17 FCC Rcd 25632 (2002). 28 Federal Communications Commission FCC 03- 16 29 For example, could a limited monitoring requirement be placed on PAS systems? Could such a requirement be accomplished only at the base station or must there be a similar requirement at the mobile station? We note that existing UPCS devices, such as wireless PBXs, are operated primarily indoors and in urban areas. Could a geographic restriction be placed on such systems (e. g., only allow them to operate in certain areas)? Commenters in favor of such restrictions should address how they could be enforced. 55. Pending the outcome of these further proceedings, we will hold the petitions for waiver that relate to use of the UPCS band in abeyance. 56. Reimbursement. Our proposal to re- designate all or part of the 1910- 1920 MHz band raises several issues regarding reimbursement and relocation of existing operations. As noted above, unlicensed system operators, through UTAM, have been clearing the 1910- 1930 MHz band of incumbent microwave systems. With respect to the 1990- 2000 MHz band, the ultimate disposition of that band (i. e., auctioned for AWS or used in part for relocating Nextel or MDS, etc.) will affect the relocation of incumbent operations. The Third R& O notes that the Commission will address these issues in a separate Notice of Proposed Rulemaking. 146 Therefore, we do not address relocation issues related to the 1990- 2000 MHz band herein. 57. In its comments, UTAM states that it and its industry members have expended considerable efforts and financial resources in clearing the UPCS bands of incumbent fixed microwave links. 147 In its most recent report, UTAM demonstrates that it has cleared 91 percent of the microwave facilities from the 1910- 1920 MHz band. 148 We note that because no asynchronous UPCS equipment has been deployed in this band, UTAM has not been recovering its band clearing expenses. 149 Because we propose to re-designate as much as 10 megahertz in the 1910- 1920 MHz band, new licensees will reap the benefits of UTAM’s band clearing efforts. 58. Avaya, the Rural Commenters, and other parties argue that the investments of the UPCS industry should be taken into account in re- designating the UPCS bands. 150 We agree. In other bands, when the Commission has reallocated spectrum, the general policy is that incumbent users, who have made substantial investments in their systems should be made whole – either through a monetary payment or by receiving comparable facilities in another frequency band. In this band, we note that there are no deployed systems. However, UTAM, acting under the framework set up by the Commission, has invested a significant amount of time, effort, and resources into clearing the 1910- 1920 MHz band in anticipation of future use by UPCS. Consistent with Commission policy for licensees, we believe that they, too, should be made whole. 59. Because we are proposing to remove up to half of the current UPCS spectrum, we propose that UTAM be entitled to a percentage of the total reimbursement expenses incurred for the 1910- 1930 MHz 146 See supra ¶ 37. 147 UTAM Comments to the Further Notice at 3. 148 See UTAM Report, supra n. 126. 149 To recover its band clearing expenses, UTAM charges a fee for each deployed UPCS handset. So far, there has been no UPCS equipment using the 1910- 1920 MHz band. 150 Avaya Comments to the Further Notice at 6; Rural Commenters Reply Comments to the Further Notice at 4. See also NEC Reply Comments to the Further Notice at 6; UTAM Reply Comments to the Further Notice; Nortel Comments to the Further Notice at 5. 29 Federal Communications Commission FCC 03- 16 30 band as of the effective date of any final rules we adopt in this proceeding. 151 This percentage would represent the percentage of the 1910- 1930 MHz band that we ultimately re- designate. For example, if we re- designate 10 megahertz – half of the band – then UTAM would be entitled to 50 percent of its total reimbursement expenses. If we instead re- designate the 1910- 1915 MHz band segment, then UTAM would be entitled to a 25 percent reimbursement. We note that the party (or parties) obligated to reimburse UTAM will depend on our final decision with respect to the 1910- 1920 MHz band. As an example, if we license the 1910- 1915 MHz band segment in conjunction with Broadband PCS expansion, we propose that each future Broadband PCS licensee in that band contribute towards reimbursing UTAM a pro- rated portion of the total reimbursement. We note that this pro- rated amount could be based on the number of licenses, 152 the value of licenses as determined by auction, or could be calculated by other means, and we seek further comment on the specific calculation we should employ. If the spectrum is to be used for the relocation of existing licensees, it may be inequitable to expect these relocated licensees to reimburse UTAM. Thus, for those commenters that propose that the 1910- 1920 MHz band (or a portion thereof) be used to relocate existing licensees, we seek comment on the means by which UTAM should be reimbursed, including proposals as to what parties should pay these expenses and how such a payment should be apportioned between parties. 60. We propose our overall reimbursement approach for several reasons. First, because some microwave systems may operate in portions of both the 1910- 1920 and 1920- 1930 MHz band, UTAM can continue to clear these systems and still recover its incurred expenses in the 1910- 1920 MHz band. Second, because incumbent microwave systems were deployed across the entire 1910- 1930 MHz band and UTAM has cleared most microwave links across the whole band, we believe that this represents the most reasonable and easiest approach to implement. We observe that the vast majority of the 1910- 1930 MHz band has been cleared by UTAM over a period of several years, rendering retroactive calculations for apportionment difficult and complex. Finally, this reimbursement plan allow us to seek additional comment on how much of the UPCS band we re- designate, while proposing a mechanism that will allow relocation efforts to continue in the 1910- 1930 MHz band without disruption. We seek comment on these proposals. 61. After the effective date of the rules adopted in this proceeding, it is possible that UTAM may continue to encounter microwave systems that operate in portions of the band that we re- designate and portions of the band that remains designated for UPCS, and that UTAM will incur some expenses for clearing a portion of the re- designated band. Similarly, a new licensee in the 1910- 1920 MHz band (or a subset of that band, if we re- designate a smaller amount of spectrum) may incur expenses under the Emerging Technology relocation rules for microwave systems that they need to clear from the band. In these cases, we propose that on a case- by- case basis the new PCS entrant and UTAM reimburse each other on a pro- rata basis, based on the amount of relative spectrum cleared for each service. 153 We seek comment on these proposals. 151 New licensees are subject to the relocation rules established in the Emerging Technologies proceeding for clearing incumbent microwave stations from the portion of the 1910- 1930 MHz band that is re- designated. See supra n. 133. 152 For example, if the Commission eventually issues 10 licenses for the 1910- 1915 MHz band, a Broadband PCS licensee would be responsible for 1/ 10 times the number of its licenses of the total amount to be reimbursed to UTAM. 153 For example, if UTAM clears a microwave link which uses a 20 megahertz channel across the entire 1910- 1930 MHz band, and we re- designate the 1910- 1915 MHz band for advanced services, then UTAM would seek reimbursement of 25 percent of the costs incurred from the new entrant( s) in the 1910- 1915 MHz band. 30 Federal Communications Commission FCC 03- 16 31 B. 2020- 2025 MHz and 2155- 2180 MHz Bands 62. Background. In the Third R& O, we reallocate spectrum in the 2020- 2025 MHz and 2165-2180 MHz bands that were formerly allocated for MSS. Although these bands are reallocated for fixed and mobile services, we have not made a decision on the best use for these bands. In addition, still outstanding in this proceeding is the disposition of the remaining MDS spectrum at 2155- 2160/ 62 MHz and the Emerging Technology spectrum at 2160- 2165 MHz. We now address all these bands and invite additional comment on how best to use these resources. 63. As described in the Third R& O and above, the 2020- 2025 MHz band is currently allocated to MSS for uplinks and is currently used by BAS. 154 Also described in the Third R& O is the 2165- 2180 MHz band, which is currently allocated to MSS for downlinks and is currently used by the fixed service. 155 64. The 2160- 2165 MHz band is currently used in the United States for non- Federal Government fixed services and mobile services licensed under the Fixed Microwave Service in Part 101 of the Rules, the Public Mobile Services under Part 22 of the Rules, and the Domestic Public Fixed Radio Services under Part 21 of the Rules. 156 The Commission originally identified this band for new advanced fixed and mobile services in the 1992 Emerging Technologies proceeding and adopted rules and procedures to permit new licensees to relocate existing fixed service microwave licensees from this spectrum band. 157 In the Notice, the Commission proposed to make this band available for advanced mobile and fixed communication services. 158 65. The 2155- 2160/ 62 MHz band is a subset of the MDS band. In the Further Notice, the Commission requested comment on whether the entire 2150- 2160/ 62 MHz band should be reallocated for AWS, and if so, how this band might be used with other spectrum being considered for AWS. 159 In the Second R& O, the Commission reallocated a 5 megahertz portion of the MDS band at 2150- 2155 MHz, but deferred to a later proceeding issues relating to MDS licensees, including the disposition of the remaining MDS spectrum and identification of replacement spectrum and relocation procedures. 66. Internationally, the 2150- 2160 MHz band is allocated to Fixed and Mobile services on a primary basis. 160 Before the adoption of the Second R& O, the 2150- 2160 MHz band was allocated domestically to the Fixed Service on a primary basis. 161 MDS operations in the band are regulated under 154 See supra ¶ 10. 155 Id. 156 See 47 C. F. R. Parts 21, 22, and 101. 157 Emerging Technologies First Report and Order and Third Notice of Proposed Rule Making, 7 FCC Rcd at 6890, ¶¶ 23- 24. This relocation right was affirmed in the Emerging Technologies Memorandum Opinion and Order and Third Notice of Proposed Rulemaking and Order, 13 FCC Rcd 23949 (1998). 158 See Notice, 16 FCC Rcd at 618, ¶ 52. 159 See Further Notice, 16 FCC Rcd at 16060- 61, ¶¶ 38- 41. 160 In Region 2 (the Americas) this band is also allocated for MSS downlinks on a secondary basis. 161 Prior to February 25, 1974 footnote NG23 made the 2150- 2162 MHz band available for assignment to stations in the International Fixed Public Radiocommunication Services in the Caribbean. A review of our licensing database finds that there are no such licensees. In a separate proceeding, we are proposing to delete footnote NG23. See Amendment of Parts 2, 25, and 87 of the Commission's Rules to Implement Decisions from World Radiocommunication Conferences Concerning Frequency Bands Between 28 MHz and 36 GHz and to Otherwise (continued....) 31 Federal Communications Commission FCC 03- 16 32 Part 21 of our Rules. 162 This band is generally operated as two channels - channel 1 (2150- 2156 MHz) and channel 2A (2156- 2160 MHz). 163 Licensees may also use channel 2 (2156- 2162 MHz) on a limited basis in 50 cities. 164 In addition, MDS may use spectrum in the 2500- 2690 MHz band. 165 67. In 1992, when the 2160- 2165 MHz band was reallocated to emerging technologies, 166 the Commission implemented a policy by which incumbent MDS licensees that were using the 2160- 2162 MHz band would continue such use on a primary basis. 167 However, any MDS station that applied for use of this band after January 16, 1992 would be granted only on a secondary basis to emerging technology use. 168 In 1996, the Commission auctioned licenses for MDS channels on a Basic Trading Area (BTA) basis, but licenses for the 2160- 2162 MHz band by licensees using MDS channel 2 were (... continued from previous page) Update the Rules in this Frequency Range, ET Docket No. 02- 305, Notice of Proposed Rule Making, 17 FCC Rcd 19756 at ¶ 103 (2002). 162 See 47 C. F. R. Part 21— Domestic Public Fixed Radio Services. Subpart K of Part 21 is titled “Multipoint Distribution Service.” 163 Under an informal agreement among MDS licensees, the principal use of the 2150- 2160/ 2 MHz band is for response stations transmitting to hub stations, which is generally known as upstream communications. See generally Sprint Comments to the Notice at 21 and WCA Comments to the Notice at 42- 43. A response station in a two- way system is a customer- premises transceiver used for the reception of downstream and transmission of upstream signals as part of a large system of such stations licensed under the authority of a single license. A maximum e. i. r. p. of 33 dBW (2000 watts) per 6 MHz is permitted. A hub station is a receive- only station licensed as part of a system of response stations in a two- way system and used for the purpose of receiving the upstream transmissions of those response stations. 164 The 2 megahertz at 2160- 2162 MHz can only be assigned where there is evidence that no harmful interference would occur to any authorized co- frequency point- to- point facility. See 47 C. F. R. § 21. 901( c). 165 There are other MDS channels in the 2596- 2644 MHz, 2650- 2656 MHz, 2662- 2668 MHz, and 2674- 2680 MHz bands, as well as response channels in the 2686- 2690 MHz band. Historically, the 2150- 2162 MHz and 2500- 2690 MHz bands were predominantly used for one- way analog video transmission. Increasingly, MDS operators are using these bands for two- way digital broadband services. In October 1996, the Commission decided to allow high- speed digital data applications, including Internet access. Then, in 1998, the Commission approved the use of two- way transmissions, effectively enabling the provision of voice, video, and data services. In 2001, a mobile, except aeronautical mobile, service allocation was added to the 2500- 2690 MHz band. See First R& O and MO& O, 16 FCC Rcd 17222 (2001). 166 See Emerging Technologies First Report and Order and Third Notice of Proposed Rule Making, 7 FCC Rcd at 6889, ¶ 17. 167 Our licensing database indicates that there are 27 MDS licenses for the 2160- 2162 MHz band on a primary basis. These stations are listed in Appendix E. We note that the Wireless Telecommunications Bureau is currently conducting an effort to verify the status of all existing MDS licenses. See Wireless Telecommunications Bureau Seeks to Verify ITFS, MDS, and MMDS License Status and Pending Applications, Public Notice, DA 02- 2751 (rel. Oct. 18, 2002). 168 See 47 C. F. R. § 21. 901( c). The Commission provided the MDS service with an extra 2 megahertz in the 50 largest metropolitan areas so that there would be sufficient bandwidth (6 MHz) for a second analog television channel. 32 Federal Communications Commission FCC 03- 16 33 secondary to Emerging Technology licensees. 169 Currently, there are 16 MDS stations operating with such status. 170 68. Proposal. We tentatively conclude that the MDS spectrum at 2155- 2160/ 62 MHz and the Emerging Technology spectrum at 2160- 2165 MHz, in conjunction with the former MSS spectrum at 2020- 2025 MHz and 2165- 2180 MHz, should be made available for new fixed and mobile services, including AWS. We envision that this spectrum could be offered in equally sized paired blocks to support FDD or TDD applications, or a combination of these technologies. We note that the record includes a number of proposals that could result in spectrum efficiencies. For example, the residual MDS spectrum at 2155- 2160/ 62 MHz could be combined with the 2160- 2165 MHz band to create a 10 megahertz block suitable for AWS use. Moreover, this spectrum is adjacent to the 2110- 2155 MHz frequency band that we allocated to AWS in the Second R& O – creating a total of 55 megahertz of contiguous spectrum that can be used for AWS. We recognize that there are numerous benefits to such an allocation: contiguous spectrum will create synergies in equipment design and facilitate the introduction of multiple AWS licensees using large spectrum blocks; it could provide opportunities for asymmetric spectrum usage; and a flexible allocation at 2110- 2165 MHz closely matches the international allocation for a terrestrial component of advanced services at 2110- 2170 MHz, which will aid the deployment of new equipment and services in the band. 69. We also note that 5 megahertz of spectrum in the 2155- 2180 MHz band could be paired with the 5 megahertz being made available at 2020- 2025 MHz and that the remaining 20 megahertz could be used to provide an asymmetric pairing or TDD operations. Alternatively, the 2155- 2180 MHz band could be used to support TDD operations in a 15 megahertz portion and as relocation spectrum for MDS in the remaining 10 megahertz portion. Other options also exist. For example, MDS licensees could retain the 2155- 2160 MHz band and we could provide a contiguous allocation starting at 2160 MHz to replace the spectrum reallocated from 2150- 2155 MHz in the Second R& O. We note that WCA has proposed a plan by which MDS operations would be completely relocated from these bands. 171 To develop a complete record, we believe that all spectrum options should be explored. 70. We seek comment on potential uses of the 2020- 2025 MHz and 2155- 2180 MHz bands. Comments should identify specific band plans and frequency pairings and describe how such proposals will result in spectrum efficiencies. Commenter should discuss any technical limitations that would be necessary to protect existing adjacent band operators, including MSS/ ATC operations in the 2000- 2020 MHz and 2180- 2200 MHz bands. Commenters may also wish to consider how this spectrum could be used in conjunction with the 1910- 1920 MHz and 1990- 2000 MHz bands, discussed elsewhere in this Third Notice. In addition, commenters should focus on how any spectrum recommended for MDS relocation is comparable to the spectrum on which they are currently licensed. 169 See http:// wireless. fcc. gov/ auctions/ 06/ for information on Auction 6. This auction made available a maximum of 78 MHz of primary spectrum in each BTA, but with the caveat that BTA licensees would protect incumbent stations. In the MDS Bidder Information Package, the Commission noted: “In 1992, the 2160- 2162 MHz frequency was reallocated to emerging technologies, and thus, any subsequent MDS use of these 2 MHz will be secondary.” See FCC Auction [for] Multipoint and/ or Multichannel Distribution Service (MDS) Authorizations for Basic Trading Areas, Bidder Information Package (1995), at 21 (available at http:// wireless. fcc. gov/ auctions/ 06/ releases. html). 170 These stations are listed in Appendix E. 171 See WCA Letter, supra n. 66 (proposing that MDS operations be relocated to spectrum in the 1910- 1915/ 6 MHz and 1995- 1995/ 6 MHz bands). 33 Federal Communications Commission FCC 03- 16 34 71. In the Further Notice, the Commission proposed that if relocation were deemed necessary, MDS incumbents would be entitled to comparable facilities or adequate replacement spectrum. 172 In the Emerging Technologies proceeding, we allowed new entrants to provide incumbents with comparable facilities using any acceptable technology. 173 Under this policy, incumbents must be provided with replacement facilities that allow them to maintain the same service in terms of throughput, reliability and operating costs. 174 We continue to believe that, to minimize disruption to existing services and to minimize the economic impact on licensees of those services, a similar approach is warranted for MDS. In the Further Notice, we also asked for a suggested timeframe for clearing the band as well as the types and magnitude of costs that would be involved. The Commission also requested comment on whether the spectrum sharing conclusions of an FCC study of MDS use of the 2500- 2690 MHz band apply to the 2150-2160 MHz band, 175 and invited comment on the public interest costs and benefits of adding a mobile allocation to the 2150- 2160 MHz band. 176 72. We seek comment on the amount and location of spectrum needed to relocate MDS operations at 2150- 2160/ 62 MHz. In particular, we seek to minimize disruption to existing services and to minimize the economic impact on MDS licensees providing those services. We note that our relocation policies do not dictate that systems be relocated to spectrum- based facilities or even to the same amount of spectrum as they currently use, only that comparable facilities be provided. 177 We further note that under our relocation policies only stations with primary status are entitled to relocation. 178 Because secondary operations, by definition, cannot cause harmful interference to primary operations, 179 new entrants are not required to relocate secondary operations. As stated above, MDS stations licensed after 1992 to use the 2160- 2162 MHz band are on a secondary basis. Thus, in some cases, a portion of MDS channel 2 has secondary status, and this portion would not be entitled to relocation. Stations licensed prior to 1992 for MDS channel 2 (2156- 2162 MHz) operate on a primary basis over the entire channel and thus, are entitled to relocation. Comparable facilities can be provided by upgrading equipment to digital technology and making use of efficient modulation and coding techniques. In addition, some existing MDS equipment 172 Second R& O, 16 FCC Rcd at 16061, ¶ 40. 173 Emerging Technologies Third R& O, 8 FCC Rcd 6589, 6591 & 6603 ¶¶ 5 & 36 (1993). 174 See, e. g., 47 C. F. R. § 101. 91. 175 See FCC Releases Staff Final Report “Spectrum Study of 2500- 2690 MHz Band: The Potential for Accommodating Third Generation Mobile Systems” Seeks Comment on Final Report in Pending Spectrum Allocation Proceeding (ET Docket No. 00- 258), DA 01- 786, Public Notice, 12 FCC Rcd 10272 (2001). The study concluded that MDS and AWS sharing would not be possible in the 2500- 2690 MHz band, and that it would not be possible to relocate MDS users on the band without jeopardizing the unique and valuable services that MDS users provide. 176 See Further Notice, 16 FCC Rcd at 16061, ¶ 40. 177 For example, in ET Docket No. 95- 18, the Commission adopted a policy in which new MSS entrants would relocate incumbent BAS systems operating in the 1990- 2110 MHz band in two phases to the 2008- 2110 MHz band and then to the 2025- 2110 MHz band – a reduction of 35 megahertz of spectrum. The Commission determined that BAS could achieve comparable facilities in the reduced spectrum because the relocation would entail an upgrade of equipment from analog to digital. See Amendment of Section 2.106 of the Commission’s Rules to Allocate Spectrum at 2 GHz for Use by the Mobile- Satellite Service, ET Docket No. 95- 18, Second Report and Order and Second Memorandum Opinion and Order, 15 FCC Rcd. 12315 (2000). 178 Currently, there are 27 stations with primary status. See Appendix E. 179 See 47 C. F. R. § 2.105( c)( 2). 34 Federal Communications Commission FCC 03- 16 35 could likely be retuned, but it is also likely that some operations may move to another medium. 180 Given advances in technology, e. g., changing from analog to digital modulation and the flexibility provided by our existing relocation procedures to make incumbents whole, we believe that current MDS operations could be accommodated using substantially less spectrum than that of the existing 2150- 2160/ 62 MHz allocation. We seek comment on how the relocation obligation should be applied to post- 1992 licensees operating on MDS channel 2. We also seek comment on the amount of spectrum necessary for MDS relocation. For example, can current MDS operations be supported using 10 megahertz or less, or must 12 megahertz be provided? Commenters should explain how the types of services existing licensees are providing and the operating status (i. e., primary or secondary) of those stations affects their view. 73. We also seek additional comment on the appropriate relocation spectrum for MDS. Comments should address what spectrum should be used to accommodate existing MDS operations and how such spectrum is adequate to provide comparable facilities to minimize disruption to existing services. In particular, comments should address whether MDS operations could co- exist with incumbent users in suggested relocation bands or whether those incumbent users also would need to be relocated, including the costs to relocate those incumbents. VI. SECOND MEMORANDUM OPINION AND ORDER 74. CTIA filed a petition for rule making on May 18, 2001, 181 requesting that the 2 GHz MSS bands be reallocated for other uses (such as terrestrial wireless services) and also asking that the Commission withhold grant of 2 GHz MSS licenses. 182 In the Further Notice, we granted the petition insofar as we proposed to reallocate 10- 14 megahertz of spectrum for AWS, and denied it insofar as it requested reallocation of the entire 2 GHz MSS band and delaying of the licensing of MSS systems in the band. 183 We stated that our actions in the Further Notice would better serve the public with respect to these issues and was consistent with the International Bureau’s granting of the MSS licenses on July 17, 2001. 184 In its petition for reconsideration, 185 CTIA claims we made an error by acting on its petition without first placing it on public notice, and asks that we vacate our decision to reject its petition for rulemaking, place the petition on public notice, and consider it ab initio. CTIA also claims that we failed to articulate a reasoned decision for rejecting its request and, further, that we could not reasonably rely on the grant of the MSS licenses because that action prejudged our consideration of CTIA’s petition. 186 180 See Wireless Communications Association Reply Comments to the Notice at 34 n. 89. 181 Petition for Rulemaking of the Cellular Telecommunications & Internet Association Concerning Reallocation of 2 GHz Spectrum for Terrestrial Wireless Use, Petition for Rulemaking (filed May 18, 2001). 182 See 2 GHz MSS R& O, 15 FCC Rcd at 16127. At the time the petition was filed, the Commission had reallocated the 1990- 2025 MHz and 2165- 2200 MHz bands and established service rules for MSS. 183 See Further Notice, 16 FCC Rcd at 16054, ¶ 23. 184 AT& T Wireless, Verizon Wireless and Cingular filed an application for review of the MSS license grants on August 16, 2001. We will address that application for review separately. 185 Introduction of New Advanced Mobile and Fixed Terrestrial Services; Use of Frequencies Below 3 GHz; Petition for Rulemaking of the Cellular Telecommunications & Internet Association Concerning Reallocation of 2 GHz Spectrum for Terrestrial Wireless Use, Petition for Reconsideration, ET Docket No. 00- 258 (filed October 15, 2001) (CTIA Petition for Reconsideration). 186 CTIA Petition for Reconsideration. 35 Federal Communications Commission FCC 03- 16 36 75. Although we did not place CTIA’s petition on public notice, our decision in that regard did not prejudice CTIA. We note that various parties filed responsive comments addressing reallocation of the entire 2 MSS GHz band in IB Docket No. 99- 81, 187 which demonstrates that the public was provided the opportunity to submit comment on the reallocation question raised by CTIA’s petition, and did so. Moreover, the Commission has already raised and duly considered this reallocation question. The same day the Commission adopted the Further Notice that considered the reallocation of some MSS spectrum, it initiated a separate proceeding to explore whether MSS licensees should be afforded additional flexibility. 188 Together, these proceedings explored the larger issue of MSS use that is also reflected in CTIA’s petition. The Third R& O we adopt today concludes that a portion of the MSS spectrum should be reallocated to support AWS, but rejects a complete reallocation of the band. Accordingly, CTIA’s original petition for rule making is now moot, and we deny its petition for reconsideration. VII. PROCEDURAL MATTERS A. Final Regulatory Flexibility Analysis for Third Report and Order 76. As required by Section 603 of the Regulatory Flexibility Act, 5 U. S. C. § 603, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible significant economic impact on small entities of the proposals suggested in this document. The FRFA is set forth in Appendix C. B. Initial Regulatory Flexibility Analysis for the Third Notice of Proposed Rule Making 77. As required by Section 603 of the Regulatory Flexibility Act, 5 U. S. C. § 603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the proposals suggested in this document. The IRFA is set forth in Appendix D. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in this Third Notice of Proposed Rulemaking provided in paragraph 79, below. Comments must have a separate and distinct heading designating them as responses to the IRFA. C. Ex Parte Rules – Permit- But- Disclose Proceeding 78. This is a permit- but- disclose notice and comment rule making proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's rules. See generally 47 C. F. R. §§ 1. 1202, 1.1203, and 1.2306( a). D. Comments 79. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 C. F. R. §§ 1.415, 1.419, interested parties may file comments on or before [30 days from date of publication in the Federal Register], and reply comments on or before [45 days from date of publication in the Federal Register]. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 Fed. Reg. 24121 (1998). 187 CTIA referenced this docket in the caption of its petition. 188 Flexibility of Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L- Band, and the 1. 6/ 2.4 GHz Band, IB Docket No. 01- 185, ET Docket No. 95- 18, Notice of Proposed Rulemaking, 16 FCC Rcd 15532 (2001). 36 Federal Communications Commission FCC 03- 16 37 80. Comments filed through the ECFS can be sent as an electronic file via the Internet to http:// www. fcc. gov/ e- file/ ecfs. html. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, U. S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e- mail. To get filing instructions for e- mail comments, commenters should send an e- mail to ecfs@ fcc. gov, and should include the following words in the body of the message, "get form