*Pages 1--54 from Microsoft Word - 33983* Federal Communications Commission FCC 03- 296 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Allocation and Designation of Spectrum for Fixed-Satellite Services in the 37.5- 38.5 GHz, 40.5- 41.5 GHz and 48.2- 50.2 GHz Frequency Bands; Allocation of Spectrum to Upgrade Fixed and Mobile Allocations in the 40.5- 42.5 GHz Frequency Band; Allocation of Spectrum in the 46.9- 47.0 GHz Frequency Band for Wireless Services; and Allocation of Spectrum in the 37.0- 38.0 GHz and 40.0- 40.5 GHz for Government Operations ) ) ) ) ) ) ) ) ) ) ) ) IB Docket No. 97- 95 SECOND REPORT AND ORDER Adopted: November 17, 2003 Released: December 5, 2003 By the Commission: TABLE OF CONTENTS Heading Paragraph No. I. INTRODUCTION.................................................................................................................................. 1 II. BACKGROUND.................................................................................................................................... 4 III. DISCUSSION ...................................................................................................................................... 12 A. Designation Changes ..................................................................................................................... 12 1. Redesignate the 37.6- 38.6 GHz and 41.0- 42.0 GHz Satellite and Wireless Services Spectrum.................................................................................................................................. 12 2. Decline to Add MSS Designation to the 40.5- 41.0 GHz Band ............................................... 18 3. Modify Part 25 and Part 101 Rules to Reflect New Designations .......................................... 22 4. PFD Limits .............................................................................................................................. 23 5. Gateway Earth Stations............................................................................................................ 30 B. Allocation Changes........................................................................................................................ 34 1. Add FSS Allocation in the 37.5- 37.6 GHz Band .................................................................... 34 2. Shift MSS Allocation from 39.5- 40.0 GHz to 40.5- 41.0 GHz................................................ 42 3. Add Government FSS Allocation to the 40.5- 41.0 GHz Band ............................................... 50 4. Add FSS Allocation to the 41.0- 42.0 GHz Band .................................................................... 56 5. Consider Adding Fixed and Mobile Allocations for Non- Government Use to the 42.5- 43.5 GHz Band................................................................................................................ 59 6. Protect Radio Astronomy in the 42.5- 43.5 GHz Band............................................................ 69 IV. ORDERING CLAUSES....................................................................................................................... 73 1 Federal Communications Commission FCC 03- 296 2 APPENDIX A: LIST OF COMMENTERS APPENDIX B: FINAL RULES APPENDIX C: FINAL REGULATORY FLEXIBILITY ACT ANALYSIS APPENDIX D: CHART OF ALLOCATIONS AND DESIGNATIONS I. INTRODUCTION 1. In this Order, we modify the band plan for the 36.0- 51.4 GHz band. 1 We make various designation 2 and allocation 3 changes in the 37.0- 42.0 GHz band to create contiguous spectrum for both fixed- satellite services and terrestrial fixed and mobile services (wireless services), which reflects decisions made at the 2000 World Radiocommunication Conference (WRC- 2000) in Istanbul, Turkey and the 2003 World Radiocommunication Conference (WRC- 2003) in Geneva, Switzerland. 4 In this Order, we finalize the satellite and terrestrial designations required by our “soft segmentation” approach and adopt service rules for satellite services, including gateway definitions and power- flux density (PFD) limits. We will address in separate service rulemakings additional service rules for satellite and terrestrial systems’ use of the designations we adopt in this item, including the precise conditions applied to the satellite PFD limits we adopt here, and proposed rules to coordinate certain types of earth stations operating in the V- band spectrum. We also will address in future rulemakings the National Telecommunications and Information Administration’s (NTIA’s) request to delete Broadcasting- Satellite Service (BSS) from the 42.0- 42.5 GHz band and to protect Radio Astronomy operations at 42.5- 43.5 GHz from satellite services in adjacent downlink bands. By making these designation and allocation changes, we bring certainty to systems currently operating n the 37.0- 40.0 GHz portion of the spectrum and codify the concept of “soft- segmentation,” and allow ubiquitous deployment of fixed service and fixed satellite service operations to commence in the V- band. 2. The major decisions in this Second Report and Order are as follows: 1 We use the term “V- band” in this Order to refer generally to the frequencies in the 36- 51 GHz band. See Allocation and Designation of Spectrum for Fixed- Satellite Services in the 37.5- 38.5 GHz, 40.5- 41.5 GHz and 48.2- 50.2 GHz Frequency Bands; Allocation of Spectrum to Upgrade Fixed and Mobile Allocations in the 40.5- 42.5 GHz Frequency Band; Allocation of Spectrum in the 46.9- 47.0 GHz Frequency Band for Wireless Services; and Allocation of Spectrum in the 37.0- 38.0 GHz and 40.0- 40.5 GHz for Government Operations, IB Docket No. 97- 95, Further Notice of Proposed Rulemaking, FCC 01- 182, 16 FCC Rcd 12244 (2001) (V- band Further Notice); Allocation and Designation of Spectrum for Fixed- Satellite Services in the 37.5- 38.5 GHz, 40.5- 41.5 GHz, and 48.2- 50.2 GHz Frequency Bands; Allocation of Spectrum to Upgrade Fixed and Mobile Allocations in the 40.5- 42.5 GHz Frequency Band; Allocation of Spectrum in the 46.0- 47.0 GHz Frequency Band for Wireless Services; and Allocation of Spectrum in the 37.0- 38.0 GHz and 40.0- 40.5 GHz for Government Operations, IB Docket No. 97- 95, Report and Order, FCC 98- 336, 13 FCC Rcd 24649 (1998) (36- 51 GHz Order). 2 A designation provides an allocated service or services use of a specific frequency band for which other services may also be allocated. Designations are only needed where bands are allocated to more than one co- primary service and sharing between these services may be difficult. See 36- 51 GHz Order, 13 FCC Rcd at 24650 n. 3. 3 An allocation is an entry in the Table of Frequency Allocations of a service or services for use of a specific frequency band. 4 The International Telecommunication Union (ITU) holds multi- national World Radiocommunication Conferences (WRCs) at two or three year intervals to establish international provisions governing the use of the electromagnetic spectrum. 2 Federal Communications Commission FCC 03- 296 4 3. Today’s decision relies heavily on the consensus that FS and FSS proponents reached prior to WRC- 2000 and proposed in the V- band Further Notice. This consensus- driven soft segmentation approach provides tangible benefits for both terrestrial and satellite advocates and ensures both sets of operators have access to sufficient, largely unencumbered spectrum in which to operate. While additional service rules must be developed before all V- band satellite operations can commence, 6 we believe the changes adopted today are important not only to the licensees and applicants, but also to the public at large. 7 This will provide certainty necessary for FSS operators to begin construction, and for FS operators to understand the parameters of the environment in which they can compete. We believe the changes adopted today will ultimately provide consumers with new services and benefits by accelerating the deployment and increasing the efficiency of telecommunications in a largely unexploited portion of the radio frequency spectrum. 8 II. BACKGROUND 4. In 1994, the Commission initiated a rulemaking proceeding to open 18 gigahertz of spectrum for commercial use between 40.5 GHz and 153 GHz. In the Millimeter Wave Notice, 9 the Commission proposed to allocate the 40.5- 42.5 GHz and the 47.2- 48.2 GHz bands for new millimeter wave technology. 10 In 1995, the Commission proposed rules for fixed wireless (point- to- point) services in the 37.0- 38.6 GHz band, and competitive wireless operations in the 38.6- 40.0 GHz band. 11 New technologies, however, increased the demand for spectrum allocations in the 36.0- 51.4 GHz band and complicated these two proposed rulemakings. 5. In 1996, Motorola filed a petition for rulemaking seeking allocation of the 37.6- 38.6 GHz band to FSS (space- to- earth direction) on a co- primary basis with wireless services. In late 1996, the Commission established a working group comprised of all interested Bureaus and Offices. This working group met informally with interested industry participants and developed band plan options to accommodate future uses of this band. 12 In 1997, after reviewing the conclusions of this group, the 6 Although we adopt PFD limits for the 40.0- 42.0 GHz band at this time, rules for satellite- to- satellite sharing between Geostationary Orbit (GSO) and Non- Geostationary Orbit (NGSO) networks are also necessary. We will address these inter- satellite system sharing rules in a future rulemaking proceeding. 7 We note that we have an open proceeding regarding the service rules for some frequencies within the V- band. See Amendment of the Commission’s Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands; Implementation of Section 309( j) of the Communications Act – Competitive Bidding, 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, ET Docket No. 95- 183 (37 GHz Proceeding). 8 See infra ¶ 55 (discussing the effect of this rulemaking on pending satellite applications). 9 See Amendment of Parts 2, 15, and 21 of the Commission’s Rules to Permit Use of Radio Frequencies Above 40 GHz for New Radio Applications, ET Docket No. 94- 124, Notice of Proposed Rulemaking and Order, FCC 94- 273, 9 FCC Rcd 7078 (1994) (Millimeter Wave Notice). 10 See Millimeter Wave Notice, 9 FCC Rcd at 7083, ¶ 11. 11 See Amendment of the Commission’s Rules Regarding the 37.0- 38.6 GHz and 38.6- 40 GHz Band – Implementation of Section 309( j) of the Communications Act, ET Docket No. 95- 183, Notice of Proposed Rulemaking and Order, FCC 95- 500, 11 FCC Rcd 4930 (1995) (39 GHz Notice). 12 V- band Further Notice, 16 FCC Rcd at 12246, ¶ 4. 4 Federal Communications Commission FCC 03- 296 5 Commission adopted the First V- band Notice. 13 The First V- band Notice proposed a band plan for the entire 36.0- 51.4 GHz band. It was felt that this band plan would settle competing satellite, terrestrial, and Government interests, finalize the Millimeter Wave and 39 GHz rulemaking proceedings, and address the inherent difficulties in frequency sharing between ubiquitous terrestrial wireless systems and fixed- satellite systems. 6. Following issuance of the First V- band Notice, the Commission adopted a band plan for non-Government wireless and FSS services in the 36- 51 GHz Order. The plan recognized that forced sharing between services intended for communications with ubiquitous consumer terminals would likely result in undue technical constraints on one or both of the services. These technical constraints would not permit FS or FSS systems to achieve their full potentials. The 36- 51 GHz Order designated a total of four gigahertz of spectrum for ubiquitous FSS services in the 37.6- 38.6 GHz and 40.0- 41.0 GHz bands for downlinks, and the 48.2- 50.2 GHz band for uplinks. The Order also provided 5.6 gigahertz of spectrum for wireless services. The 36- 51 GHz Order retained primary wireless designations in the 38.6- 40.0 GHz and 47.2- 48.2 GHz bands, and added wireless designations in the 37.0- 37.6 GHz, 41.0- 42.5 GHz, 46.9- 47.0 GHz, and 50.4- 51.4 GHz bands. The 36- 51 GHz Order also re- allocated the 42.5- 43.5 GHz band for exclusive Government use and the 47.2- 48.2 GHz band for exclusive non- Government use. 7. After the Commission adopted the 36- 51 GHz Order, the U. S. delegation to WRC- 2000 reached a consensus on a proposal for sharing portions of the 36.0- 51.4 GHz band. The delegation consisted of wireless and satellite industry representatives as well as Government representatives. The delegation recognized that both wireless and satellite systems operate most efficiently in an allocation of contiguous spectrum and that satellites need a globally consistent allocation. Additionally, the delegation was aware that many wireless services around the globe operated below 40.0 GHz, while few operated above that threshold. The delegation thus developed a band sharing arrangement for the 37.5- 42.5 GHz band consistent with these observations and eventually introduced the key provisions of this consensus approach at WRC- 2000. 14 8. The band sharing arrangement proposed a system of “soft- segmentation” that would permit both FS and FSS operations in co- primary allocations throughout the 37.5- 42.5 GHz band. The soft-segmentation proposal sought to encourage ubiquitous FS deployment below 40 GHz by having satellite operators meet more restrictive PFD 15 limits below 40 GHz and encourage ubiquitous FSS deployment above 40 GHz by permitting more liberal PFD limits above 40.0 GHz. The proposed PFD restrictions 13 Allocation and Designation of Spectrum for Fixed- Satellite Services in the 37.5- 38.5 GHz, 40.5- 41.5 GHz, and 48.2- 50.2 GHz Frequency Bands; Allocation of Spectrum to Upgrade Fixed and Mobile Allocations in the 40.5- 42.5 GHz Frequency Band, Allocation of Spectrum in the 46.9- 47.0 GHz Frequency Band for Wireless Services; and Allocation of Spectrum in the 37.0- 38.0 GHz and 40.0- 40.5 GHz for Government Operations, IB Docket No. 97- 95, Notice of Proposed Rulemaking, FCC 97- 85, 12 FCC Rcd 10130 (1997) (First V- band Notice). 14 V- band Further Notice, 16 FCC Rcd at 12248, ¶ 8. 15 In this context, PFD represents a measure of the amount of energy emitted by a transmitter that is present over a unit area at the Earth’s surface or at the satellite and is a critical factor in determining whether satellite systems can successfully share spectrum with other services or satellite systems. See, e. g., Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co- Frequency with GSO and Terrestrial Systems in the Ku- Band Frequency Range, ET Docket No. 98- 206, Third Memorandum Opinion and Order, FCC 03- 24, ¶ 1 & n. 3 (rel. Feb. 6, 2003) (citation omitted). 5 Federal Communications Commission FCC 03- 296 6 would encourage wireless use of the 37.5- 40.0 GHz and 42.0- 42.5 GHz bands, and encourage satellite use of the 40.0- 42.0 GHz band. 16 9. In June, 2000, WRC- 2000 (1) adopted a comprehensive sharing arrangement for FS and FSS in the 37.5- 42.5 GHz band based largely on the consensus approach that the U. S. delegation supported; (2) adopted Resolution 84 (WRC- 2000), 17 which identified the 37.0- 40.0 GHz and the 40.5- 43.5 GHz bands as available for high- density fixed service (HDFS) operations; (3) adopted an FSS allocation in the 40.5- 42.5 GHz band for Region 1 (generally Europe, Russia and Africa); (4) established PFD limits in the 40.0- 40.5 GHz band for FSS and provisional PFD limits in the 37.5- 40.0 GHz and 40.5- 42.5 GHz bands for FSS, MSS, and BSS, and; (5) adopted a secondary MSS allocation in Region 2 in the 40.5- 41.0 GHz band. 18 10. Following WRC- 2000, the Commission released the V- band Further Notice proposing to codify domestically the consensus approach adopted at WRC- 2000. 19 NTIA played a key role in formulating the post- WRC- 2000 domestic proposals. In the 39.5- 40.0 GHz band, NTIA agreed to lower PFD limits and to add a U. S. footnote stating that Government MSS earth stations do not require protection from non- Government fixed and mobile service operations in the 39.5- 40.0 GHz band. This proposal was contingent on NTIA’s proposal in the 40.5- 41.0 GHz band, which allowed military access to the 40.5- 41.0 GHz band for FSS and MSS on a primary basis. 20 In May 2001, the Commission further proposed to shift FS, FSS and MSS allocations and to re- designate portions of the 37.5- 42.5 GHz spectrum for FS and FSS so as to encourage FS use of the 37.0- 40.0 GHz and 42.0- 42.5 GHz bands, and a combination of FSS, MSS and BSS in the 40.0- 42.0 GHz band. The Commission also proposed to adopt PFD limits consistent with the PFD limits adopted at WRC- 2000 and the proposed FS and FSS designations. 11. In July, 2003, WRC- 2003 changed some of the footnotes to the International Table of Allocations pertaining to the 37.5– 42.5 GHz frequency bands. Some of these changes emphasized the use of high- density applications of the FSS in the 40.0- 42.0 GHz and 48.2- 50.2 GHz bands (in ITU Region 2). 21 Other footnote changes adopted PFD limits on both FSS and BSS operations, in the 41.0- 42.5 GHz band, to protect Radio Astronomy operations at 42.5- 43.2 GHz. 22 III. DISCUSSION 16 The band 37.0- 37.6 GHz is allocated to non- Government Fixed and Mobile services and would be used for FS operations in association with the 37.6- 40.0 GHz band. 17 Invites 7 of ITU- R Res. 84 (WRC- 2000). 18 V- band Further Notice, 16 FCC Rcd at 12249, ¶ 11. 19 The V- Band Further Notice proposed to modify the band plan for the 36.0- 51.4 GHz band and proposed specific PFD limits on satellite operations consistent with the results of WRC- 2000, and, like the 36- 51 GHz Order, proposed to designate a total of four gigahertz of spectrum for FSS and 5.6 gigahertz of spectrum for wireless services. V- band Further Notice, 16 FCC Rcd at 12245, ¶ 1. 20 See Letter from William T. Hatch, Office of Spectrum Management, NTIA, to Bruce Franca, Office of Engineering and Technology, FCC (March 2, 2001) (NTIA Mar. 2, 2001 Ex Parte Letter). 21 See WRC 2003 Provisional Final Acts 5. 516B. 22 See WRC 2003 Provisional Final Acts 5.551H and 5.551I and Res. 743. 6 Federal Communications Commission FCC 03- 296 7 A. Designation Changes 1. Redesignate the 37.6- 38.6 GHz and 41.0- 42 GHz Satellite and Wireless Services Spectrum 12. WRC- 2000 adopted a global plan for sharing between fixed services and satellite services, which imposed a more rigorous satellite PFD limit from 37.0- 40.0 GHz favoring terrestrial uses, and a less rigorous PFD limit from 40.0- 42.0 GHz favoring satellite uses. 23 In the V- band Further Notice, the Commission noted that such a soft- segmentation sharing plan would increase the total amount of exclusively designated, contiguous spectrum available to satellite operators, and would better correspond to the international soft- segmentation sharing arrangement established at WRC- 2000. 24 The Commission therefore proposed to designate the entire band from 37.0 – 40.0 GHz for wireless services and from 40.0- 42.0 GHz for satellite services. 25 13. Commenters overwhelmingly support our proposal to redesignate portions of the V- band in a manner consistent with WRC- 2000. 26 Intelsat, for example, supports the proposed designation changes, noting that the re- designation would benefit all FSS satellite operators by creating a single two gigahertz contiguous spectrum block, which will greatly simplify spacecraft design. 27 Hughes similarly supports the designation of the 41.0- 42.0 GHz band for satellite services, 28 and Winstar states that it “strongly supports the Commission’s efforts to create a band plan for the 36.0– 51.4 GHz band and otherwise modify its rules to achieve optimal usage of that spectrum by fixed wireless and satellite providers.” 29 According to Winstar, the Commission’s V- band Further Notice correctly follows the results of WRC-2000 and designates the 37.0- 40.0 GHz and 42.0- 42.5 GHz bands for terrestrial services and the 40.0- 42.0 GHz band for satellite. 30 14. Consistent with the views of the majority of commenters, we redesignate the spectrum available for wireless services from 41.0- 42.0 GHz to 37.6- 38.6 GHz and redesignate the spectrum available for satellite uses from 37.6- 38.6 GHz to 41.0- 42.0 GHz. This decision will provide three gigahertz of contiguously designated wireless services spectrum from 37.0- 40.0 GHz and two gigahertz of contiguously designated FSS spectrum from 40.0- 42.0 GHz. Consolidating the formerly disparate spectrum designations into contiguous bands serves the public interest by permitting increased system 23 V- band Further Notice, 16 FCC Rcd at 12251- 52, ¶ 15. 24 V- band Further Notice, 16 FCC Rcd at 12251- 52, ¶ 15. 25 Specifically, the Commission proposed to redesignate the spectrum available for wireless services from 41.0- 42. 0 GHz to 37. 6- 38. 6 GHz, and to redesignate the spectrum available for satellite uses from 37. 6- 38. 6 GHz to 41.0- 42.0 GHz. V- band Further Notice, 16 FCC Rcd at 12251, ¶ 15. 26 See Winstar Comments at 3; DMC Comments at 1; SIA Comments at 2; ART Reply at 2; Bala IV Reply at 2; AT& T Reply at 2; Spectrum Astro Comments at 2; Harris Reply at 2. 27 Intelsat Comments at 2. 28 Hughes Comments at 8. 29 Winstar Comments at 2. 30 Winstar Comments at 2. 7 Federal Communications Commission FCC 03- 296 8 capacity, more rapid deployment and reduced operating costs for FS and FSS systems. 31 Increasing the total amount of exclusively designated, contiguous spectrum also will better correspond with the international table of allocations and will maximize the efficient use of the radio frequency spectrum by both satellite and terrestrial users with minimal changes to the existing Table of Frequency Allocations. 32 15. We are not persuaded by some satellite proponents’ arguments that the Commission should confine wireless designations to the 38.6– 40.0 GHz band instead of permitting the FS designation from the 37.6- 38.6 GHz band, or delay the implementation of these designations. 33 Boeing, for example, would have us ignore the possibility of FS growth in the V- band band based on its speculation that the needs of the FSS systems or some as- yet unknown operator would outweigh the needs of previously licensed FS operators. Specifically, Boeing asserts that terrestrial FS has not yet deployed in sufficient numbers to warrant an extension of the FS designation to the 37.6- 38.0 GHz band. 34 We disagree. While terrestrial FS operations in the V- band are not yet extensive, satellite operations in the band have not yet been licensed. In any case, the regulatory certainty gained by both FS and FSS operators outweighs Boeing’s conjecture that designating additional spectrum at this time “would foreclose other important alternatives that the Commission may wish to pursue at a later date when the public’s needs are much clearer.” 35 As noted above, moreover, this redesignation should promote investment and development throughout the V- band. 36 16. A few satellite operators assert that the 37.6- 38.6 GHz band should be allocated for FSS or, alternatively, remain undesignated. 37 Boeing, for example, reasons that the propagation characteristics of the 37.6- 38.6 GHz band, which require line- of- sight and a large number of base stations, 38 make it unsuitable for a wireless services designation. 39 Boeing adds that private coordination among the 31 See, e. g., Winstar Comments at 2 (arguing that the new band plan will promote deployment of fixed wireless services); Intelsat Comments at 2; V- band Further Notice, 16 FCC Rcd at 12248, ¶ 8. 32 See V- band Further Notice, 16 FCC Rcd at 12250, ¶ 14. 33 Boeing Comments at 9- 10. 34 Boeing Comments at 9. 35 Boeing Comments at 9- 10. 36 Because we are designating the 37.6- 38.6 GHz sub- band, we need not address Boeing’s argument that the Commission should target instead the 42.5- 43.5 GHz sub- band for any demonstrated need for future fixed service expansion. See Boeing Comments at 10. 37 Boeing Comments at ii, 10- 11; Hughes Comments at 8. 38 According to Boeing, assuming a maximum possible 78.5 square mile service area for each base station in a wireless network, at least 7,400 base stations would be required to cover the metropolitan areas of the United States. Assuming a price of $625,000 per base station, the cost to set up even a minimum required wireless infrastructure to serve all Metropolitan Statistical Areas (MSAs) would amount to $4.6 billion dollars, not including customer equipment costs. Rural Service Areas in the United States (distinct from MSAs) cover a total of approximately 3 million square miles. Coverage of these areas would require approximately 38,000 base stations at a total cost of about $23.8 billion dollars. Because of these costs, Boeing claims that it is likely that FS will be able to serve only a small portion of the United States using the 37. 6- 38. 6 GHz band. See Boeing Comments at 12- 13. 39 Boeing Comments at 11- 13. 8 Federal Communications Commission FCC 03- 296 9 terrestrial and satellite operators might result in sharing arrangements superior to the consensus agreement reached at WRC- 2000. 40 We disagree. First, Winstar – an FS licensee – is on record as stating that the propagation characteristics of this band are, in fact, well suited to FS operations. 41 Second, FS and FSS proponents tried, and failed, to coordinate operations in the V- band for many years. This proceeding and, more importantly, the consensus agreement that these parties reached at WRC- 2000 represents the culmination of those many years of private negotiation among FS and FSS interests. While we support and encourage parties to enter private sharing arrangements wherever co- primary allocations exist, we believe the consensus agreement reached among these parties and the Government prior to WRC- 2000 represents a better method of promoting timely and cost- effective deployment in this band than returning to a series of negotiations among each of the parties in this band. Third, designating the 37.6- 38.6 GHz band for terrestrial FS represents a key piece of the near universal agreement among both FS and FSS proponents at WRC- 2000 that generally envisioned most terrestrial operations below 40 GHz and most satellite operations above 40 GHz. If we were to accede to Boeing’s recommendation and undo one piece of that agreement in a manner that favored FSS interests, we would risk thwarting the hard- won consensus plan that emerged from WRC- 2000, which, in some sense, represents the type of privately negotiated agreement that Boeing endorses for this band. In short, we find that the benefits of the redesignation plan we adopt today — certainty to investors, benefits to wireless and satellite engineering, and compliance with WRC- 2000 and WRC- 2003 — outweigh the potential inefficiencies that the satellite proponents claims might occur. 42 17. Finally, while Hughes seeks additional spectrum for ubiquitous FSS operations in the V- band, we decline to provide for such additional spectrum at this time. 43 As noted above, we will not take any action here to undermine the basis of the consensus approach reached at WRC- 2000 and any consideration for additional spectrum in the V- band for ubiquitous FSS operations will have to be done in a separate proceeding after a comprehensive record has been developed. We will, however, allow gateway operations 44 in 47.2- 48.2 GHz FSS (Earth- to- space) band provided that the earth station downlink operations are also coordinated for use in the 37.5- 40.0 GHz band. 45 In addition, satellite entities could bid on licenses in future V- Band auctions, as TRW did in the 38.6- 40.0 GHz band. 46 2. Decline to Add MSS Designation to the 40.5- 41.0 GHz Band 40 Boeing Comments at 14. 41 Winstar Comments at 1- 3. 42 See, e. g., Intelsat Comments at 2 (redesignation would benefit FSS satellite operators and simplify spacecraft design.) 43 Hughes Comments at 2- 3; Hughes Reply at 1- 5. 44 See Section 25.202, n. 15. 45 See discussion infra Section III. A. 5. 46 See In the Matter of TRW, Inc. Request for Waiver of the Commissions Rules to Provide Fixed Satellite Service in the 39 GHz Band, Memorandum Opinion and Order, 16 FCC Rcd 5198 (Wireless Tel. Bur. 2001) (TRW Waiver Order). We note that the Commission adopted the TRW Waiver Order prior to the passage of the ORBIT Act, 47 U. S. C. § 761 et seq. 9 Federal Communications Commission FCC 03- 296 10 18. In the V- band Further Notice, we proposed to add an MSS designation to the existing FSS and BSS designations in the 40.5- 41.0 GHz Band. 47 The Commission reasoned that this designation would allow satellite licensees the maximum flexibility possible in deciding how to use this spectrum. The Commission noted that an MSS designation in the 40.5- 41.0 GHz band would be consistent with its proposal to shift the MSS allocation from 39.5- 40.0 GHz to 40.5- 41.0 GHz. 48 19. While a few commenters support the proposal to add an MSS designation to the 40.5- 41.0 GHz band, 49 most parties oppose the proposal as inconsistent with the designation of the 40.0- 42.0 GHz band for FSS. Intelsat, for example, opposes an MSS designation in the 40.5- 41.0 GHz band because adding MSS would result in the over- crowding of multiple services and applications in the 40.0- 42.0 GHz band. 50 Other commenters, such as PanAmSat and TRW, assert that FSS and MSS systems are technically incompatible on a co- primary basis. 51 Nevertheless, both PanAmSat and TRW would support a secondary non- government MSS allocation in the 40.5- 41.0 GHz band. 52 20. We decline to adopt our proposal to add a designation for MSS in the 40.5 -41.0 GHz band. Unlike allocations, no “primary” or “secondary” designations exist; instead, either we designate spectrum for a service or we do not. 53 Spectrum designations for a particular service do not necessarily preclude other technically dissimilar services from operating in a given band, provided that the dissimilar service can meet the technical constraints imposed by the service and licensing rules. 54 We use designations to indicate, based on a series of operational and technical constraints, the service type that we believe should principally occupy a band that is allocated among multiple services of the same regulatory status. For example, as between the two co- primary services, FS and FSS, in the 37.0- 40.0 GHz band, we designated the band for terrestrial wireless services such as FS, because we determined that the terrestrial FS should predominate in this band. 55 A designation of more than one technically dissimilar service in a given band is impractical because, by definition, only one service type could predominate in the band due to operational characteristics. 56 Hence, a designation is not appropriate for a secondary service. In this case, if we were to designate the 40.5- 41.0 GHz band for MSS, we would either relegate the existing designated service— FSS— to something less than predominant status, or we would render the very use of 47 V- band Further Notice, 16 FCC Rcd at 12252, ¶ 16. 48 V- band Further Notice, 16 FCC Rcd at 12253- 54, ¶¶ 23- 25. 49 Winstar Comments at 4; NTIA Comments at 1. 50 Intelsat Comments at 2. 51 PanAmSat Reply at 4; TRW Comments at 8. 52 PanAmSat Reply at 4; TRW Comments at 8. 53 See V- band Further Notice, 16 FCC Rcd at 12247 n. 17. 54 See V- band Further Notice, 16 FCC Rcd at 12247 n. 17. 55 See supra Section III. A. 1. 56 Designations, in other words, may apply to only technically similar services within the same band. For example, FSS and BSS, in which satellites transmit to fixed earth stations under similar power and operational constraints, are technically similar services. Their similarities allowed the Commission to designate both services as the principal service type in portions of the V- band over the technically dissimilar co- primary service of FS. 10 Federal Communications Commission FCC 03- 296 11 “designations” meaningless by requiring FSS and MSS to coordinate on an entirely co- equal basis. As an alternative to adopting an additional MSS designation, therefore, we create a secondary allocation for MSS in the 40.5 – 41.0 GHz band. The secondary allocation for MSS is discussed in detail below. 57 21. We question whether an MSS system could feasibly be operated in the same bands designated for FSS and BSS, because an MSS system would likely receive interference from FSS and BSS services under normal conditions. Even though there is a PFD limit for the shared allocation, the GSO (or a portion of the GSO) could be “packed” with FSS and BSS satellites. FSS and BSS systems are designed with fixed, directional antennas that point to a specific satellite to transmit and receive signals from space. Many MSS applications, particularly in the lower frequency bands, by comparison, use omni- directional antennas that do not point to a specific satellite. These omni- directional antennas are necessary because the handsets are, in general, mobile. The MSS receivers will “see” several transmitting satellites at once, however, because the MSS earth station antenna does not have a high directional antenna. The directional gain of FSS and BSS antennas, by contrast, minimizes the potential for receiving interference from other nearby FSS and BSS satellites due to the rapid decrease in antenna gain as the angle from the wanted satellite increases. MSS omni- directional antennas do not have this rapid gain roll- off pattern and, as a result, MSS, generally, has a greater potential to receive interference from other nearby satellites even when a PFD limit has been established for the FSS and BSS in the same band. The additional complication associated with MSS operations further persuades against adopting a designation for MSS in this band consistent with the outcome of WRC- 2000 for Region 2. The U. S. proposal to WRC- 2000 was to allocate MSS on a co- primary basis in the 40.5- 41.0 GHz band to accommodate Government uses. The U. S., however, failed to secure a global, primary MSS allocation. 58 We therefore allocate MSS in the 40.5- 41.0 GHz band on a secondary basis only. 59 Adopting MSS on a secondary basis will permit satellite operators to test those MSS applications that utilize higher gain user-antennas and, therefore, might be capable of sharing with FSS and BSS systems without interfering with the primary services. 3. Modify Part 25 and Part 101 Rules to Reflect New Designations 22. In the V- band Further Notice, we proposed to amend Part 25 of our rules concerning fixed-satellite service to remain consistent with our proposals for revised designation. 60 In addition, we proposed to amend Part 101 of our rules concerning fixed microwave services to correct the erroneous omission of FSS from the list of services that we permit in the 38.6- 40.0 GHz band. 61 Commenters generally support our decision to modify the Part 25 and Part 101 rules to reflect the new designations. Winstar supports the Commission’s proposal. 62 Similarly, TRW agrees that Parts 25 and Part 101 of our 57 See infra Section III. B. 2. As a secondary service in this band, MSS must not cause interference to and must accept interference from the primary FSS, BSS and FS services. 58 See International Telecommunications Union, Radio Regulations, Article 5. 59 See infra III. B. 2. 60 V- band Further Notice, 16 FCC Rcd at 12252, ¶ 17. 61 V- band Further Notice, 16 FCC Rcd at 12252, ¶ 17. 62 Winstar Comments at 4. 11 Federal Communications Commission FCC 03- 296 12 rules should be modified. 63 As indicated in Appendix B, we amend Parts 25 and 101 of our rules largely as proposed in the Notice. 4. PFD Limits 23. In the V- band Further Notice, the Commission proposed to adopt band- specific PFD limits as a means of implementing the designations described above. In particular, the Commission’s proposal was based on the soft- segmentation approach whereby the satellite PFD limits would differ below and above 40 GHz, consistent with Article 21 and Resolution 84 of the Final Acts of WRC- 2000 and the U. S./ CITEL proposal. 64 Such an approach would primarily accommodate high- density fixed service systems in the 37.5- 40.0 GHz band, with some provision for large gateway satellite earth stations, while primarily accommodating high- density fixed- satellite service systems in the 40.0- 42.0 GHz band. The Commission proposed to implement this approach by having clear- sky PFD limits below 40 GHz 12 dB lower than those above 40 GHz. The Commission reasoned that this difference in PFD limits would favor the deployment of FS below 40 GHz and FSS above 40 GHz. 65 While WRC- 2003 retained some aspects of the soft- segmentation approach, we find that the soft- segmentation approach is still important for the development of both the FS and FSS in the V- band. We, therefore, will implement PFD limits that favor the FS below 40 GHz and the FSS above 40 GHz. 24. Consistent with our proposed band designations in the 37.5- 42.5 GHz band, we conclude that adopting the PFD limits supporting the soft- segmentation approach would enhance and promote commercial development of both satellite and wireless services in this band. As we explained in the V-band Further Notice, we find that U. S. terrestrial wireless licensees, which operate systems today and plan to deploy additional systems in the near future, would benefit from the certainty of knowing the precise PFD limits that will apply in the United States. Similarly, we find that satellite operators, whose systems require more time to build than terrestrial operators, would benefit from knowing the parameters that they will need to observe in the United States when constructing their global systems. Accordingly, we adopt PFD limits in the 37.5- 42.0 GHz bands that provide both satellite and wireless operators an added level of certainty concerning the potential impact by the other service on their operations. These PFD limits also support “soft- segmentation” and designations of separate FS and FSS spectrum. The only outstanding issues are how to implement PFD limits under varying propagation conditions in the 37.5- 40.0 GHz band, and how to protect the Radio Astronomy Service (RAS) observations in the 42.5- 43.5 GHz band from satellite operations in the 42.0- 42.5 GHz band. The PFD levels we adopt for the 37.5- 42.0 GHz bands are contained in Section 25.208. 25. Several commenters support the WRC- 2000 “top- down” approach, which establishes relatively high PFD limits for fade conditions and relied on licensees to decrease their PFD to account for normal operating conditions. 66 TRW, for example, notes that, since the WRC- 2000, the US has firmly 63 TRW Comments at 19. 64 V- band Further Notice, 16 FCC Rcd at 12257- 58, ¶ 35. 65 V- band Further Notice, 16 FCC Rcd at 12259, ¶ 40. In May 2002, the Commission entered into an Arrangement with Industry Canada, which “reaffirms the band segmentation approach proposed by the Commission after WRC- 2000 that identifies spectrum below 40 GHz primarily for high density fixed service use as well as spectrum between 40 and 42 GHz primarily for high density fixed- satellite service operations.” See FCC and Industry Canada Sign Arrangement on Principles Governing Use on 37.5- 42.5 GHz Band, FCC Press Release, dated May 28, 2002. 66 V- Band Further Notice, 16 FCC Rcd at 12258, ¶ 38. 12 Federal Communications Commission FCC 03- 296 13 backed the WRC- methodology in the ITU- R. 67 TRW therefore alleges that adopting the US/ CITEL “bottom- up” approach “will likely cause confusion and compound already substantial international resentment to the clear- sky PFD elements. 68 PamAmSat similarly finds that adopting a standard contrary to the WRC- 2000 approach “will create confusion and add to international unhappiness with the clear- sky PFD components” of the band plan. 69 26. In contrast to WRC- 2000’s “top- down” approach, the U. S./ CITEL approach established lower PFD limits for normal operating conditions and, where applicable, allows licensees to increase power to compensate for fade conditions. 70 Winstar, for example, claims that the WRC- 2000 approach will place the burden on HDFS operators to police the FSS operators to make sure the FSS is operating at the lower PFD levels; on the other hand, Winstar argues that the US/ CITEL approach “will reasonably shift the burden to FSS operators to be diligent about when and how they operate at higher power levels.” 71 27. Upon review, we find that our rules should reflect at this time the PFD limits that define the boundaries of the soft- segmentation. 72 To this end, we incorporate in our rules the PFD levels that apply during normal operations, i. e., when there is no rain fading and the upper bound PFD that will apply during fade conditions. The ITU Radio Regulations already provide the upper bound that will apply to satellite operations. Moreover, we see no need to distinguish between the “top- down” an “bottom- up” approaches discussed above. In the end, both approaches to specifying PFD limits will have identical effects on satellite operations. 73 Both would require satellite operators to operate at the same PFD limit for clear sky conditions, while allowing satellite operators to operate at the same higher PFD limit during fade conditions. Thus, satellite providers must adhere to the same PFD limits, regardless of whether clear- sky or rain fade conditions dictate the standard operating PFD limit. Accordingly, we find that there is no meaningful difference between the “top- down” an “bottom- up” approaches described above. 74 67 TRW Comments at 21. 68 TRW Comments at 21. 69 PanAmSat Reply at 2. 70 V- Band Further Notice, 16 FCC Rcd at 12258, ¶¶ 36- 37. 71 Winstar Comments at 7. 72 Several parties suggest we defer adopting the provisional WRC- 2000 PFD limits until after the Commission addresses service and licensing rules for these bands and the conclusion of WRC- 2003. See Intelsat Comments at 3, Hughes Comments at 10- 11. WRC- 2003 has now concluded, and nothing that occurred at this WRC has persuaded us against implementing soft segmentation. 73 WRC- 2003 Article 21, Table 21.4. 74 For example, a “bottom- up” rule establishing a PFD limit of -132 dB/( W/ m 2 ) under clear sky conditions, but permitting satellite operators to increase power by 12 dB (to a level of -120 dB/( W/ m 2 )) under fade conditions is operationally identical to a “top- down” rule establishing a PFD limit of -120 dB/( W/ m 2 ) under fade conditions, but requiring licensees to decrease their power by 12 dB (to a level of -132 dB/( W/ m 2 )) under clear sky conditions. Under both scenarios, operators face a PFD limit of -132 dB/( W/ m 2 ) under clear sky conditions and of -120 dB/( W/ m 2 ) under fade conditions. 13 Federal Communications Commission FCC 03- 296 14 28. In the V- Band Further Notice, we requested commenters to address the issue of under what circumstances and for what period of time to permit FSS operators to exceed the lower PFD limit in the 37.5- 40.0 GHz band, especially during times when there is large attenuation of the satellite signal due to rain. We find that the record in this proceeding is not sufficiently detailed for us to adopt rules for satellite operations with a PFD exceeding the lower PFD limit in the 37.5- 40.0 GHz band. This does not mean, however, that we cannot support the basic PFD values that we proposed to apply to soft-segmentation. Until we have a better record or a more reasoned and comprehensive approach on dealing with an increase in PFD for a limited amount of time, we will incorporate only the lower and upper boundary PFD limits that are ripe for adoption. We will address this issue in a future rulemaking to establish a better record to determine the conditions under which the lower PFD limit may be exceeded. 29. We continue to recognize that rain fading has a significant impact on radio propagation at 40 GHz and that PFD increases and other ameliorating techniques will be necessary to maintain adequate satellite performance even to the limited extent provided for in the 37.5- 40.0 GHz band. The conditions under which geostationary satellites may exceed the lower boundary PFD limits are still being considered by the Commission. Even though the upper PFD boundary is being implemented in the rules, any request to exceed the lower boundary would be addressed on a case- by- case basis and subject to the review and coordination of both the International Bureau and the Wireless Telecommunications Bureau to ensure that the proper sharing conditions exist between the satellite and terrestrial stations. Our disposition of such requests will be subject to the outcome of the future rulemaking, addressing the FSS service rules in the V- band, which will establish specific criteria for exceeding the lower boundary. Nevertheless, terrestrial licensees, when deploying stations in the 37.5- 40.0 GHz band, should take into account the possibility of satellite operations for some limited period of time up to the maximum PFD contained in Section 25.208. Moreover, the PFD limits we adopt for NGSO FSS are provisional in that the conditions under which non- geostationary satellites may share with geostationary satellites are still being considered by the Commission. Resolution of the GSO/ NGSO satellite sharing rules could result in additional changes to Section 25.208. In addition to this issue, we intend to address in our future proceeding all additional issues raised in the V- Band Further Notice but not included in this Order, including out- of- band emission limits to protect RAS above 42.5 GHz, additional NGSO FSS and GSO FSS constraints to promote inter-satellite system sharing, and proposed rules to coordinate certain types of earth stations operating in the V- band spectrum. 75 Accordingly, we adopt the PFD limits contained in Appendix B, Section 25.208, recognizing that we will address these additional PFD- related issues in the future. 5. Gateway Earth Stations 30. In the V- band Further Notice, the Commission proposed to restrict FSS use in the 37.5- 40.0 GHz band to “gateway” earth station operations because such a restriction would help preserve the proposed designation for use by wireless services. Permitting satellite “gateways” to be deployed at large installations or large corporate campuses without generating the types of ubiquitous, consumer- level deployments, would not defeat the designation of wireless services as the predominant use in this band. Specifically, the Commission proposed to limit the satellite earth station operations that a Part 101 licensee may deploy in its licensed area in the 37.5- 40.0 GHz band to “gateway” facilities 76 and to restrict 75 The PFD limits adopted are different for GSO FSS and NGSO FSS systems. These PFD limits are provisional in that the conditions under which NGSO satellites may share with GSO satellites are under study and therefore have not been defined. Resolution of the NGSO/ GSO satellite sharing rules could result in additional changes to Section 25.208. 76 V- band Further Notice, 16 FCC Rcd at 12261, ¶ 46. 14 Federal Communications Commission FCC 03- 296 15 the use of gateway facilities by modifying Section 25.202( a)( 1) to state that “satellite earth station facilities in this band may not be ubiquitously deployed and may not be used to serve individual consumers.” 77 The Commission requested comment on whether limiting the flexibility of Part 101 licensees in this band is appropriate. The Commission also sought comment on its proposals to limit the 37.5- 40.0 GHz band to use by satellite earth station gateways and on the specific language proposed to restrict the “gateway” terminals. 31. TRW is the only commenter that explicitly recognizes the need to sacrifice a measure of Part 101 flexibility in order to preserve the proposed designation of the 37.5- 40.0 GHz band for use by wireless services. 78 Comments on limiting the satellite use of the 37.5- 40.0 GHz band to gateway terminals and on the specific language proposed to restrict the “gateway” terminals were more numerous. Since these comments address the manner in which such limitations of flexibility would be implemented we conclude that it is in the public interest to balance Part 101 flexibility for satellite earth stations in order to preserve the designation to the fixed service in the 37.5- 40.0 GHz band. 32. TRW and Winstar, among others, agree with us that the soft segmentation compromise is further strengthened by prohibiting ubiquitous deployment of FSS earth stations in the 37.5- 40.0 GHz band. 79 Hughes argues that limitations on the type of FSS earth station should be restricted to the 38.6- 40.0 GHz band, 80 while Intelsat argues that non- gateway earth stations should be allowed on a non-protected basis. 81 We agree with TRW and Winstar that the soft- segmentation compromise requires that we ensure that FSS terminals are not ubiquitously deployed in 37.5- 40.0 GHz band. We therefore conclude that some type of restriction should be placed upon the type of Earth station that will receive protection from interference in the 37.5- 40.0 GHz band. These restrictions are necessary to minimize the areas where FS/ FSS sharing considerations and coordination would be required. We also note that the deployment of non- protected earth stations at the sole risk of a satellite operator will not hinder the deployment of the ubiquitous fixed service terminals and that the satellite operator will need the express agreement from the affected Part 101 EA licensees prior to the deployment of the earth stations. Therefore we adopt limitations on the types of earth stations that may be licensed in the 37.5- 40.0 GHz band and limit the type of earth station that will receive interference protection from the fixed terminals. 33. In the V- band Further Notice we used the text of the footnote to Part 25.202( a)( 1) to describe the type of FSS earth terminal we would consider licensing in bands designated for ubiquitous fixed service deployment. 82 A number of commenters indicated that our proposal to prohibit facilities that serve 77 V- band Further Notice, 16 FCC Rcd at 12271, ¶ 47. 78 TRW Comments at 26. 79 TRW Comments at 26, Winstar Reply at 4, FWCC Reply at 4, DCT Transmission at 3, DMC Stratex Networks Comments at 2. 80 Hughes Comments at 12. 81 Intelsat Comments at 9. 82 See Appendix B, Proposed Part 25.202 (a)( 1)( 14) of the V- Band Further Notice (“ Use of this band by the fixed-satellite service is limited to “gateway” earth station operations, provided the licensee under this Part obtains a license under Part 101 of this Chapter or an agreement from a Part 101 licensee for the area in which an earth station is to be located. Satellite earth station facilities in this band may not be ubiquitously deployed and may not be used to serve individual consumers.”) 15 Federal Communications Commission FCC 03- 296 16 individual customers was unclear or overly restrictive. 83 Others urged the Commission to adopt the gateway definition contained in the V- Band Further Notice. 84 Moreover, WCA asserted that the gateway definition in the V- Band Further Notice was not sufficiently restrictive 85 and that a limit on the number of gateway stations constructed by any single FSS operator should be enacted. 86 We conclude that the proposed footnote language strikes the proper balance between the wireless designation and the limited FSS use of the 37.5- 40.0 GHz band and that it will help to foster the soft- segmentation compromise. We therefore adopt our proposed gateway earth station description, as proposed in the V- Band Further Notice, as a footnote to 25.202( a)( 1). 87 The footnote states: “Satellite earth station facilities in this band may not be ubiquitously deployed and may not be used to serve individual consumers.” We will address, in a future rulemaking, the specific conditions that will require coordination among gateway earth stations and terrestrial earth stations. B. Allocation Changes 1. Add FSS Allocation in the 37.5- 37.6 GHz Band 34. In the V- band Further Notice, the Commission proposed to add an additional 100 megahertz FSS allocation in the 37.5- 37.6 GHz band. 88 As a part of the compromise plan arising from WRC- 2000, the Commission proposed to allow limited FSS use of the entire 37.5- 40.0 GHz band. In the current Table of Allocations, however, only the 37.6- 40.0 GHz band includes a co- primary FSS allocation, and the 100 megahertz between 37.5- 37.6 GHz is allocated exclusively to fixed and mobile service. 89 In the V- band Further Notice, the Commission proposed completing the FSS allocation for the entire 37.5- 40.0 GHz band and noted that adding a co- primary FSS allocation in the 37.5- 37.6 GHz band would remain consistent with the designation of the entire 37.5- 40.0 GHz band principally for fixed services. 35. The record supports adding a co- primary FSS allocation in the 37.5- 37.6 GHz band. 90 Boeing states that the demand for satellite services warrants an FSS allocation at 37.5- 37.6 GHz. 91 Intelsat also supports the Commission’s proposal as the 100 megahertz of spectrum would provide additional capacity for the FSS generally, and could be utilized for “mitigation techniques to compensate for rain and other 83 See TRW Comments at 26, Hughes Reply at 18. 84 See WCA Reply at 4, DCT Transmission Reply at 3, Harris Corporation Reply at 3. 85 WCA Reply, Appendix A, at 1. 86 WCA Comments at 7. 87 See V- band Further Notice, 16 FCC Rcd at 12261, ¶47. 88 See V- band Further Notice, 16 FCC Rcd at 12252, ¶ 19. 89 47 C. F. R. § 2.106 (2002). Moreover, the 37.0- 38.6 GHz band is allocated to Government fixed and mobile services and the 37.0- 38.0 GHz band is allocated to Government Space Research Service (SRS). 90 See TRW Comments at 6- 7; SIA Comments at 2; Boeing Comments at 15; Hughes Comments at 8; Spectrum Astro Comments at 2; Intelsat Comments at 3; Winstar Reply at 6. 91 Boeing Comments at ii, 15. Boeing also notes that the Commission’s proposal is consistent with its contention that all wireless service designations should be withdrawn from the sub- bands below 38.6 GHz. See Boeing Comments at 15. 16 Federal Communications Commission FCC 03- 296 17 fades.” 92 Spectrum Astro and TRW add that a continuous FSS allocation in the 37.5- 40.0 GHz band would be consistent with the WRC- 2000 soft segmentation plan and would promote flexibility in the deployment of future FSS systems. 93 Hughes also notes FSS deployment in this band can facilitate the provision of “broadband services to a wide range of end- users.” 94 Non- Government FS proponents licensed in the 37.5- 40.0 GHz band do not object to an FSS allocation in the 37.5- 37.6 band, provided FSS use of this 100 megahertz of spectrum is “sufficiently limited” to protect current and future FS deployments. 95 NTIA indicated that any FSS use of the 37.5- 37.6 GHz spectrum should be limited to GSO FSS use because the space research service would share better with GSO FSS than with NGSO FSS. Moreover, NTIA would prefer that FSS use of the 37.5- 37.6 GHz band be limited to FSS gateways. 96 36. Adding an additional 100 megahertz FSS allocation in the 37.5- 37.6 GHz band will serve the public interest. As indicated above, allocating an additional 100 megahertz for FSS, subject to the same limitations on FSS as the other V- band frequencies that we have designated for terrestrial FS, will increase the spectrum efficiency in the band. With the PFD limits we adopt in this Order, we believe that FSS operations are capable of sharing with terrestrial operations (commercial and Government) in this band without creating undue technical burdens on either the terrestrial or space research services. Approving the allocation of FSS operations in this band will facilitate greater access to and higher utilization of the spectrum at 37 GHz. We also note that this additional 100 megahertz FSS allocation would bring the U. S. Table of Frequency Allocations into alignment with both the WRC- 2000 soft segmentation plan and Article 5 of the ITU Radio Regulations. 97 37. In addition, we will not limit this new FSS allocation to GSO FSS. Ordinarily we would permit both GSO and NGSO FSS use of the newly allocated FSS frequencies at 37.5- 37.6 GHz, as the Commission’s policy is not to distinguish between GSO and NGSO systems in the absence of a compelling reason to do so. In the V- band Further Notice, the Commission noted NTIA’s concern that current and intended Government uses of the 37.5- 37.6 band would be more susceptible to interference from NGSO FSS than GSO FSS satellites. 98 In its comments to this proceeding, NTIA reiterated that it preferred not to have an FSS allocation overlap the space research allocation at 37.0- 38.0 GHz. 99 NTIA 92 Intelsat Comments at 3. 93 See Spectrum Astro Comments at 2; TRW Comments at 7. TRW notes that the Commission has recognized that even though this band is designated for wireless operations, certain deployments of FSS earth stations are capable of sharing this band with fixed wireless system, including Winstar’s proposed High- density Fixed Services (HDFS) system, which is “extremely sensitive to interference.” Id. (citing V- band Further Notice 16 FCC Rcd at 12253, ¶ 21). 94 See Hughes Reply at iii. Hughes argues that these deployments will be successful so long as there are no “limitations or restrictions on the deployment of earth terminals [that] could render it unusable.” Hughes Reply at 9. 95 Winstar Reply at 6; FWCC Reply at 4; Bala Equity IV Reply at 4; AT& T Reply at 2, 4. 96 NTIA March 2, 2001 Ex Parte Letter. 97 See International Telecommunication Union, Radio Regulations, Article 5; see also Intelsat Comments at 3. 98 See V- band Further Notice, 16 FCC Rcd at 12253, ¶ 21. 99 See Letter from William T. Hatch, Office of Spectrum Management, NTIA, to Bruce Franca, Office of Engineering and Technology, FCC (Aug. 31, 2001) (NTIA Aug. 31, 2001 Ex Parte Letter) at 1. 17 Federal Communications Commission FCC 03- 296 18 maintained that FSS use of the 37.5- 37.6 band should be restricted to GSO FSS only and should incorporate adequate protections for the National Aeronautics and Space Administration (NASA) earth stations in Goldstone, CA and the orbital VLBI site at Green Bank, WV. 100 The Commission sought comment on whether the intended Government uses of the band were more susceptible to interference from NGSO FSS systems than GSO FSS systems and, if so, whether NGSO FSS operations in the band should be prohibited. The Commission also sought comment on what technical or operational constraints, short of a prohibition on NGSO FSS operations in the band, would provide sufficient protection to Government operations in the band. 101 The Commission noted that, under certain conditions, certain deployments of NGSO FSS systems can create a promising sharing environment for FS operators and are capable of addressing NTIA’s concerns. 102 38. In response, some commenters assert that the Commission should not exclude NGSO systems from the proposed FSS allocation. 103 These commenters argue that NTIA did not sufficiently demonstrate its specific rationale for excluding NGSO FSS systems from the 37.5- 37.6 GHz band and therefore future NGSO FSS use of this band should not be precluded. 104 Boeing adds that the Commission has “consistently refrained from dividing the 36- 51 GHz band between NGSO and GSO technologies.” 105 In a subsequent filing, NTIA supported its position that both the Goldstone, CA facility and the orbital VLBI site at Green Bank, WV should receive specific protections from NGSO FSS systems operating in the 37.5- 37.6 GHz band. 106 NTIA cites an international commitment, embodied in ITU- R SA. 1396, to protect space research operations like the Goldstone facility. 107 This Recommendation sets forth the specific protection criteria for space research services in the 37- 38 GHz band and was adopted by the ITU in an effort to protect both general space research operations as well as unique operations during mission critical events. 108 39. Taking NTIA’s concerns into consideration, we find that operation of NGSO systems within this new 37.5- 37.6 GHz FSS allocation with certain limitations is in the public interest. Consistent with our approach in other portions of the band, we seek to avoid making distinctions between NGSO and GSO deployments. FSS operations in the entire 37.5- 40.0 band, designated principally for terrestrial FS, 100 NTIA Aug. 31, 2001 Ex Parte Letter at 2. NTIA argues that to support current and future NASA missions these earth stations would require protection against harmful interference in the 37.5- 38.0 GHz band. Specifically they would require a power spectral density level of -217 dB( W/ Hz), not to be exceeded for more than 0.1% of time. NTIA later rescinded the request for protection to the Orbital VLBI site at Green Bank, WV in the 37. 0-38.0 GHz band. Id. 101 See V- band Further Notice, 16 FCC Rcd at 12253, ¶ 21. 102 See V- band Further Notice, 16 FCC Rcd at 12253, ¶ 21. 103 See SIA Comments at 2; Boeing Comments at 15. 104 SIA Comments at 2; Boeing Comments at 15- 16. 105 Boeing Comments at 15. 106 NTIA Aug. 31, 2001 Ex Parte Letter. 107 See ITU- R S. A. 1396, “Protection Criteria for the Space Research Service in the 37- 38 and 40- 40.5 GHz Bands” (adopted April 1999). 108 See ITU- R S. A. 1396. 18 Federal Communications Commission FCC 03- 296 19 will be subject to specific PFD limits to protect all licensees from both in- band and out- of- band interference. To ensure GSO and NGSO FSS systems adequately protect space research operations in the 37- 38 GHz band, we will require coordination between FSS systems and SRS facilities based on Recommendation ITU- R SA. 1396. 109 At the time of application, GSO and NGSO FSS applicants must demonstrate how the proposed systems will protect SRS receiving stations. The coordination process shall include representatives from the commercial operator and the Interdepartment Radio Advisory Committee (IRAC) (and its Frequency Assignment Subcommittee (FAS)), which is an interagency committee of Federal radio frequency managers that advises the Executive Branch on the Federal Government’s use of the spectrum. 110 We find that limiting GSO and NGSO FSS operations in this manner will not be technically burdensome. 111 Accordingly, we find this allocation strikes an appropriate balance between the desire for the deployment of advanced commercial FSS systems and the need to protect the Government’s exploration of space through radio astronomy. 40. By extending the FSS allocation to include this 100 megahertz of spectrum, we intend to provide both GSO and NGSO satellite systems the additional flexibility to deploy applications that utilize the spectrum allocation in the most efficient manner. Our goal is to promote the deployment of service to the public by balancing the need for additional FSS downlink spectrum against the terrestrial FS and space research operators’ requirements for sufficient protection against interference from in- band FSS systems. Moreover, we find that allowing FSS operators to take advantage of an additional 100 megahertz of capacity is both technically feasible and necessary to achieve a balanced band plan for the 36.0- 51.4 GHz band. 41. In its comments to the Commission’s Further Notice, NTIA identified the need to protect the Goldstone California SRS facility from FSS downlink transmissions. 112 We recognize, too, that the 37- 38.6 GHz portion of the 37.0- 40.0 GHz V- Band spectrum is designated for commercial wireless systems and allocated to Government fixed and mobile terrestrial services. 113 Commercial fixed and mobile systems operating in the wireless designation will have the potential to interfere with the Goldstone SRS facility. We will seek comment on methods to mitigate the potential interference that may be caused by commercial fixed and mobile stations operating near the Goldstone SRS facility in the 37 GHz Proceeding. 114 Among the possibilities we will seek comment on would be to adopt a footnote to the Table of Allocations modeled after Footnote US311, already contained in the Table of Allocations. 109 We note that coordination requirements for the Goldstone, CA SRS facility, for example, could make it difficult for FSS satellites to provide coverage to the Los Angeles area in the 37.5- 38.0 GHz band; however, we also note that these services could be supplied to Los Angeles in the remainder of the 37.5- 40.0 GHz band. 110 Specifically, the Space Systems Subcommittee (SSS) of IRAC is responsible for the international registration and coordination of Government satellite systems and normally processes all international actions through the Commission. For more information on the IRAC, see generally NTIA Office of Spectrum Management, Inter-department Radio Advisory Committee, available at (last visited, Mar. 19, 2003). 111 As NGSO system spot beams result in a confined geographic footprint it should not be prohibitively difficult to implement an FSS NGSO system in a manner that protects an area around the Goldstone Facility. 112 See Letter from William T. Hatch, Office of Spectrum Management, NTIA, to Bruce Franca, Office of Engineering and Technology, FCC (Aug. 31, 2001) (NTIA Aug. 31, 2001 Ex Parte Letter) at 1- 2. 113 47 C. F. R. § 2.106 (2002). 114 See 37 GHz Proceeding. 19 Federal Communications Commission FCC 03- 296 20 Footnote US311 establishes a 80 km (50 mile) radius around the Goldstone SRS facility in which every practicable effort is made to avoid the assignment of frequencies in the 1350- 1400 MHz and 4950- 4990 MHz bands to stations operating in the fixed and mobile services. 115 2. Shift MSS Allocation from 39.5- 40.0 GHz to 40.5- 41.0 GHz 42. In the V- band Further Notice, the Commission proposed to shift the 39.5- 40.0 GHz MSS allocation to the 40.5- 41.0 GHz band. 116 The 39.5- 40.0 GHz band is currently allocated to the FS, MS, FSS, and MSS services on a co- primary basis; however, in the 36- 51 GHz Order, the Commission concluded that ubiquitous satellite uses could not share the same spectrum as ubiquitous terrestrial uses. 117 Indeed, prior to WRC- 2000, NTIA agreed to support the U. S. proposals to the WRC- 2000, which required constraints to be placed on the Government 39.5- 40.0 GHz MSS allocation in return for access to the 40.0- 41.0 GHz spectrum under the “soft- segmentation” arrangement. 118 The Commission affirmed its conclusion regarding sharing between ubiquitously deployed services in the V- band Further Notice, and commenters addressing the issue of co- frequency sharing in the 39.5- 40.0 GHz band support our analysis. 119 Accordingly, while we will continue to permit FSS gateways to operate in the 39.5- 40.0 GHz band, we conclude that ubiquitously deployed MSS stations cannot share with ubiquitous terrestrial uses in the 39.5- 40.0 GHz band. Therefore, we delete the MSS allocation from the non- Government column of the Table of Frequency Allocations contained in Section 2.106 of the Commission’s Rules and add US382 to the Table whereby Government earth stations operating in the 39.5- 40.0 GHz MSS allocation shall not claim protection from non- federal Government stations in the fixed and mobile services. 120 43. For consistency, we would normally propose to delete the MSS allocation in this band from the Government column. NTIA, however, opposes this measure. 121 NTIA states that arrangements with member states of the North Atlantic Treaty Organization (NATO) require that we retain the Government MSS allocation for possible future requirements. 122 The spectrum requirements of NATO are set out in 115 47 C. F. R. § 2.106 n. US311 (2002). 116 V- band Further Notice, 16 FCC Rcd at 12253- 54, ¶ 22. 117 See 36- 51 GHz Order, 13 FCC Rcd 24649. 118 We note that there exists a co- primary Government Earth Exploration Satellite Service (EESS)( Earth- to- space), Space Research Service (SRS) (Earth- to- space), and secondary EESS allocation in the 40.0- 40.5 GHz band. See 47 C. F. R. § 2.106 (2002). 119 See Winstar Comments at 4. 120 See Appendix B, § 2.106, US382. 121 See Letter from Richard D. Parlow, Office of Spectrum Management, NTIA, to Richard Smith, Office of Engineering and Technology, FCC (April 30, 1997), available at (last visited, Feb. 23, 2003). 122 See Letter from Richard D. Parlow, Office of Spectrum Management, NTIA, to Richard Smith, Office of Engineering and Technology, FCC (April 30, 1997), available at (last visited, Feb. 23, 2003). 20 Federal Communications Commission FCC 03- 296 21 the NATO Joint Civil and Military Frequency Agreement (NJFA). 123 The NJFA constitutes the joint agreement between the civil and military authorities of the NATO nations on the use of the radio spectrum for military purposes required by NATO forces or in support of NATO. 124 In general, NATO member states agree to accept NJFA standards by reflecting such needs in national allocation tables to the maximum extent possible. 125 The NATO Frequency Management Branch acknowledges that complete harmonization of Government frequencies among member nations is not always possible. Indeed, when nations cannot comply with specific military requirements using provisions of the NJFA, the NATO Frequency Management Branch advises national authorities that “military requirements may be satisfied nationally in civil bands or allocations.” 126 44. To satisfy the NATO NJFA guidelines and to fulfill domestic Department of Defense (DOD) needs, however, NTIA proposed a plan under which NTIA would accede to certain protective measures that would benefit terrestrial fixed operations in the 39.5- 40.0 GHz range in exchange for the establishment of a new, primary, Government MSS allocation in the 40.5- 41.0 GHz band. 127 NTIA requested that we amend the Government column of the Table of Frequency Allocations to add a primary MSS allocation in the 40.5- 41.0 GHz band. 128 In the V- band Further Notice, we sought comment on NTIA’s proposal and asked commenters to address specifically how NTIA’s proposal for a primary Government MSS allocation might be implemented when WRC- 2000 adopted only a secondary MSS allocation for countries in Region 2 such as the United States. 129 45. Several commenters either oppose or raise concerns about the NTIA proposal. 130 These parties assert that adding a co- primary Government MSS allocation to the 40.5- 41.0 GHz band would 123 See NATO Frequency Management Branch, Response to the Commission of the European Communities[ ’] Green Paper on Radio Spectrum Policy, available at http:// europa. eu. int/ ISPO/ spectrumgp/ sgpcom/ nato. pdf (last visited, Feb. 24, 2003) (Unclassified NATO Frequency Management Branch Response). 124 NTIA April 30, 1997 Ex Parte Letter at 4. 125 NTIA April 30, 1997 Ex Parte Letter at 4. 126 See NATO Frequency Management Branch, Response to the Commission of the European Communities[ ’] Green Paper on Radio Spectrum Policy, available at http:// europa. eu. int/ ISPO/ spectrumgp/ sgpcom/ nato. pdf (last visited, Feb. 24, 2003) (Unclassified NATO Frequency Management Branch Response). 127 Specifically, NTIA committed to observe the provisional PFD limits on MSS that WRC- 2000 adopted and prohibit Government MSS earth stations from claiming protection from non- Government stations operating in the fixed and mobile services. See Letter from William T. Hatch, Office of Spectrum Management, NTIA, to Bruce Franca, Office of Engineering and Technology, FCC (March 2, 2001). In the V- band Further Notice, the Commission proposed to embody NTIA’s conditional commitments in a footnote, USYYY, in the Government column of the Table of Frequency Allocations and, on this basis, tentatively concluded that it should retain the Government MSS allocation in the 39.5- 40.0 GHz band. V- band Further Notice, 16 FCC Rcd at 12254, ¶ 23. 128 See Letter from William T. Hatch, Office of Spectrum Management, NTIA, to Bruce Franca, Office of Engineering and Technology, FCC (March 2, 2001). 129 V- band Further Notice, 16 FCC Rcd at 12254- 55, ¶ 25 & n. 51 (citing WRC- 2000 Final Acts, Art. S5 (adopting a secondary MSS allocation in the 40.5- 41.0 GHz band in Region 2). 130 See, e. g., TRW Reply at 6- 7; SIA Letter at 3; Intelsat Comments at 4; Boeing Comments at 16. While Hughes also opposes a Government MSS allocation in the 40.5- 41.0 GHz band, Hughes Comments at 7, Hughes supports (continued….) 21 Federal Communications Commission FCC 03- 296 22 impose regulatory burdens on FSS licensees and diminish the usefulness of the satellite spectrum above 40.0 GHz for FSS by requiring coordination between FSS and Government MSS operators at 40.5- 41.0 GHz. 131 Others assert that a co- primary Government MSS allocation in the 40.5- 41.0 GHz band would be inconsistent with the outcome of the WRC- 2000 and that FSS and MSS operations would be technically incompatible. 132 46. We find merit in the commenters’ concerns about adding a co- primary government MSS allocation in the 40.5- 41.0 GHz band. First, the 40- 42 GHz spectrum is designated for use by commercial FSS licensees, and a new, primary MSS allocation from 40.5- 41.0 GHz would require FSS licensees in the band to protect another ubiquitously deployed service in the frequency band. 133 Furthermore, absent further international or domestic sharing studies that demonstrate the compatibility between FSS and MSS systems in the 40.5- 41.0 GHz band, we are reluctant to allocate the MSS in the band on a co-primary basis. Third, the ITU has not allocated the 40.5- 41.0 GHz band for co- primary MSS in Region 2, which includes the United States; therefore, even if we were inclined to adopt a MSS allocation in the United States, the allocation would have no interference protection from FSS operations outside of the borders of the United States. 134 Last, the NATO spectrum requirements are advisory in nature, and domestic needs can be satisfied through actions short of establishing a primary MSS allocation in the band. For these reasons, we decline to add a co- primary MSS allocation to the 40.5- 41.0 GHz band for Government use. 47. Like several of the commercial commenters that addressed the issue, Hughes opposes a co-primary Government MSS allocation that would require commercial FSS licensees to coordinate with Government MSS operators on an equal basis. Despite its opposition to a co- primary Government MSS allocation, however, Hughes supports the adoption of a co- primary commercial MSS allocation in the 40.5- 41.0 GHz band. 135 Hughes contends that, because commercial “licensees need the maximum flexibility to implement their systems,” the Commission should establish a primary MSS allocation for commercial operators. 136 As indicated above, a decision to adopt a co- primary MSS allocation in the (Continued from previous page) designating spectrum at 40.5- 41.0 GHz for non- Government MSS to promote flexible satellite deployments. Hughes Comments at 9. For a discussion of designation changes in this band, see supra section IV. A. 131 See, e. g., SIA Comments at 3 (asserting that the proposal would “unreasonably disadvantage satellite providers and unreasonably advantage terrestrial wireless users”); Intelsat Reply Comments at 3 (“ this [40.0- 42.0 GHz] spectrum block should not be hindered by the addition of new services on a primary basis, as contemplated by the Commission’s proposal to upgrade the MSS in the 40.5 41.0 GHz band.”); see also Hughes Reply at 12 (“ the Commission should not adopt a primary Government MSS allocation at 40.5- 41.0 GHz unless and until it is clear that government use of that spectrum will not interfere with the deployment and operation of commercial systems in the same band.”). But see Winstar Comments at 4 (“ Winstar supports the FCC proposal”). 132 TRW Reply at 7; TRW Comments at 9- 10. 133 See discussion infra Section III. A. 2. 134 47 C. F. R. § 2.106 (2002). 135 Hughes claims that commercial MSS operations in the 40.5- 41.0 GHz band could prove compatible with FSS systems in this band if MSS operators were to use FSS transponders to close MSS links. Hughes Reply at 13 (claiming that the use of FSS transponders would allow “MSS systems . . . [to] work in a way that creates no greater level of interference than FSS systems”). 136 Hughes Reply at 12. 22 Federal Communications Commission FCC 03- 296 23 40.5- 41.0 GHz band must be based on whether the newly proposed MSS operations would be technically compatible with the FSS uses in the 40.0- 42.0 GHz band. In this respect, we fail to see any material distinction between the technical and practical compatibility of any co- primary MSS systems – Government or commercial – with co- frequency FSS systems and with the compromise band plan that the FSS and FS operators reached at WRC- 2000. The same problems of coordination and interference protection that apply to proposals for a co- primary Government MSS system apply to a co- primary commercial MSS system in the band. Moreover, even Hughes acknowledges that the “international table of allocations only contains a secondary MSS allocation for the 40.5- 41.0 GHz band in Region 2.” 137 While Hughes then speculates that the United States might one day “successfully undertake an effort to upgrade their international allocation to primary status,” Hughes provides no sharing studies or other technical evidence that would support the allocation of additional spectrum for MSS in this band for either Government or commercial use on a co- primary basis with the FSS. 138 Thus, we decline to add a co- primary MSS allocation to the 40.5- 41.0 GHz band for commercial use. 48. As an alternative to adopting a co- primary MSS allocation, several commenters ask the Commission to adopt a secondary MSS allocation in this band for commercial or Government systems, or both. 139 While noting that precise non- interference standards for secondary MSS operations would need to be developed, several commenters embrace this approach. 140 Intelsat, for example, supports a secondary MSS allocation because it offers the potential for permitting the deployment of new or innovative types of MSS services without unduly affecting the primary FSS operators in the band. 141 Similarly, TRW supports creating a secondary MSS allocation in the 40.5- 41.0 GHz band because, unlike a primary service, secondary MSS licensees would bear the burden of accepting any interference that FSS operations might cause and would have to protect FSS operators from any harmful interference from MSS operations. 142 49. We agree that adopting both a commercial and Government secondary MSS allocation would offer MSS licensees additional flexibility without unduly compromising the authority granted to primary FSS systems in the band. 143 In addition, we believe that adopting the secondary Government MSS allocation in the 40.5- 41.0 GHz band would largely fulfill NTIA’s desires to meet the need of NATO and DOD operations without causing the incompatibility, interference and inequity that would accompany any co- primary MSS allocation in the 40.5- 41.0 GHz band. Adding a new, secondary Government MSS 137 Hughes Reply at 12. 138 Hughes Reply at 12. In addition, Hughes does not explain in any detail how coordinating a co- primary commercial MSS system would be any less burdensome than coordinating a co- primary Government MSS system. 139 See, e. g., SIA Comments at 3 (supporting use of the 40.5- 41.0 GHz band “on a strictly secondary basis”). 140 TRW Comments at iii (“ TRW supports the proposed secondary allocation of non- Government spectrum to the MSS at 40.5- 41.0 GHz, provided that it is clear to all parties that this allocation is truly secondary”); SIA Comments at 3 (supporting use of the 40.5- 41.0 GHz band “on a strictly secondary basis”). 141 Intelsat Comments at 4. 142 Section 2.104( d) of the Commission’s rules provides that stations of a secondary service shall not cause harmful interference to stations of primary services and cannot claim protection from harmful interference from stations of primary services to which frequencies are already assigned or may be assigned at a later date. See 47 C. F. R. § 2.104( d)( 3)( 2002); see also, e. g., TRW Comments at 8 & n. 14. 143 Hughes Comments at 9; Intelsat Comments at 4. 23 Federal Communications Commission FCC 03- 296 24 allocation to the 40.5- 41.0 GHz band will also allow us to maintain protection of FS licensees in the 39.5- 40.0 GHz band by applying Footnote US382 to the Government MSS allocation from the 39.5- 40.0 GHz band while permitting necessary Government MSS operations in V- band frequencies above 40.5 GHz on a secondary basis. Unlike the proposals for a primary Government allocation, moreover, proposals for a secondary commercial and Government MSS allocation in the 40.5- 41.0 GHz band fully comport with the International Table of Allocations. 144 Accordingly, we modify the domestic Table of Allocations to reflect the addition of a secondary MSS allocation to the 40.5- 41.0 GHz band in the Federal Government and Non- Federal Government columns of the Table. In so doing, we recognize that the new secondary MSS allocation will require us to develop adequate protection for primary operators prior to permitting widespread deployment of secondary MSS operations in this band. Nevertheless, we believe that the Commission can develop the service rules necessary to ensure that primary FSS operations remain fully protected from harmful interference once potential FSS and MSS operators in the band begin finalizing their plans for operation. 145 3. Add Government FSS Allocation to the 40.5- 41.0 GHz Band 50. In the V- band Further Notice, the Commission proposed to add a primary FSS allocation to the Government column of the Table of Frequency Allocations in the 40.5- 41.0 GHz band. 146 This band is currently allocated for exclusive non- Government use. By designating the 37.0– 40.0 GHz band for wireless services, we placed significant restrictions on Government V- band FSS spectrum not previously encumbered by restrictive PFD limits. Adding a primary FSS allocation in the 40.5- 41.0 GHz band would provide Government access to additional FSS allocations where the PFD levels are less constraining. Moreover, as noted above, NTIA conditioned its willingness to accept restrictive PFD limits below 40 GHz provided that Government access to the 40.5- 41.0 GHz band for FSS and MSS operations is granted. 147 51. Most commenters view the proposal to allocate more primary FSS spectrum for Government use as potentially detrimental to commercial satellite operations in the band unless the Commission develops rules to establish priority and coordination between commercial and Government FSS systems. 148 Intelsat, for example, expresses concern that adding a new Government FSS allocation within spectrum allocated principally for commercial satellite use will pit commercial and Government interests against one another in the band. 149 Similarly, Intelsat fears that commercial FSS operators would lose access to essential FSS spectrum to make room for Government systems. 150 Hughes and TRW share 144 TRW Comments at 8; Intelsat Reply at 5 (“ Intelsat supports a secondary domestic allocation to MSS in this band, in line with the international table of frequency allocation in Section S5 of the ITU Radio Regulations.”) 145 As noted above, for example, some FSS operators appear to believe that requiring secondary MSS operations to use FSS terminals for MSS transmissions would adequately protect FSS operators against harmful interference. See, e. g., Hughes Reply at 13. 146 V- band Further Notice, 16 FCC Rcd at 12255, ¶ 26. 147 See supra Section III. B. 2. 148 Intelsat Comments at 5. 149 Intelsat Comments at 5. 150 See, e. g., Intelsat Comments at 5 (“ Intelsat is concerned with [the proposal to add a Government FSS allocation at 40.5- 41.0 GHz], as it may result in FSS non- Government users competing for spectrum with Government applications.”). 24 Federal Communications Commission FCC 03- 296 25 Visible orbital arc from an earth station operating at a 5º elevation angle Figure 1: Visible Orbital Arcs from Earth Stations Operating at Different Elevation Angles. Figure is for illustrative purposes only and is not to drawn scale. Visible orbital arc from an earth station operating at a 30º elevation angle Intelsat’s concern. Hughes states that the proposal for a new, primary Government FSS spectrum would “unfairly place the burden of coordinating Government systems solely on commercial satellite interests.” 151 TRW adds that the “allocation of spectrum for unconstrained Government FSS operations at 41.0- 42.0 GHz will have a negative impact on the commercial viability of non- Government FSS operations in that band.” 152 Finally, each of these parties suggests that the additional government allocation would threaten to undo the hard- fought compromise that FS and FSS interests reached at WRC- 2000 by diminishing the viability of the 40.5- 41.0 GHz band for commercial FSS. 153 52. NTIA has supported the soft segmentation arrangement that the U. S. succeeded in obtaining at WRC- 2000. Further, it is clear that the constraints arising from the soft segmentation arrangement make Government access to FSS spectrum above 40 GHz a necessity. We note, however, the commercial operators’ contentions that unbridled Government use of this commercial bandwidth would not serve the public interest and should not be permitted. The potential for coordination difficulties among commercial and Government systems when both users hold co- primary allocations in the same band is particularly acute in the V- band where frequency propagation characteristics render access to spectrum at particular orbital locations even more limited than in other frequency bands. As in any frequency band, the satellite orbital locations visible to a satellite earth station are based on the elevation angle requirements of the earth station. The earth station elevation and azimuth angles define the visible geostationary arc (or visible arc) from locations in the United States. In lower frequency bands, satellite operators can more reliably establish communications links to satellite systems at elevation angles as low as 5°. 154 151 Hughes Comments at 7. 152 TRW Reply at 6. 153 See, e. g., Hughes Reply at 13 (asserting that adding a Government FSS allocation at 40.5- 41.0 GHz unfairly shifts a burden currently shared by both terrestrial FS and FSS operators to one that FSS operators alone must bear); Hughes Comments at 7- 8 (same). 154 In Ku- band, for example, satellite operators typically require a minimum elevation angle of ten degrees or greater in order to provide reliable service to a particular location, although service in Alaska has often been offered at elevation angles as low as five degrees. See Policies and Rules for Direct Broadcast Satellite Service, 17 FCC Rcd 11331, 11358, ¶ 55 (2002) (citations omitted). Satellite operators could establish communications links with satellites at angles of less than five degrees, but the Commission generally prohibits earth stations from operating at these very low elevation angles due to the likelihood of interference to terrestrially based communications networks. See 47 C. F. R. § 25.205 (2002). 25 Federal Communications Commission FCC 03- 296 26 While the relationship between elevation angles and service provision is not absolute, 155 we estimate that, with today’s technology, overcoming the additional absorption of radiofrequency signals from the atmosphere that occurs in the V- band would require V- band earth stations to operate at higher elevation angles. As demonstrated in Figure 1, the higher the elevation angle that an earth station must use, the smaller the available orbital arc that remains visible to a given earth station. With a 30 degrees minimum elevation angle, the visible orbital arc would have sufficient room for significantly fewer individually located satellites to remain visible from a single earth station located in the forty- eight contiguous United States (CONUS). 156 As a consequence, commercial operators are legitimately concerned that – absent some type of coordination process – the government might launch and operate geostationary FSS satellites into one or more of the limited number of available orbital positions before the Commission could authorize commercial operators to deploy their systems under the current system of granting satellite applications. 53. Parties to this proceeding offered several proposals on the types of coordination procedures they believe would be necessary to ensure productive coordination between Government and commercial users. 157 TRW, for example, would support the proposal to add a primary FSS allocation at 40.5- 41.0 for Government use, provided that the Commission indicates that Government uses will not receive priority over commercial use and that the 40.0- 42.0 GHz band remains otherwise available without constraint. 158 Specifically, TRW suggests that the Commission adopt a footnote similar to US334, which establishes the relative authority between commercial and Government users in the 18 GHz band by requiring coordination and by limiting Government operations to a certain portion of the orbital arc. 159 Provided 155 Many other factors, such as terrain obstacles, foliage density or atmospheric attenuation, can influence the provision of service to a given area. 156 This estimate of the number of visible orbital locations is based upon an assumed elevation angle of 30º and assumes compliance with Commission’s two- degree orbital spacing policy for FSS. For information on the Commission’s two- degree spacing policy, see Licensing of Space Stations in the Domestic Fixed- Satellite Service and Related Revisions of Part 25 of the Rules and Regulations, Report and Order, CC Docket No. 81- 704, 54 RR 2d 577, 598, ¶ 70 (1983) (Two- Degree Spacing Order); see also, e. g., Columbia Communications Corporation, 14 FCC Rcd 3318 (Int'l Bur. 1999); Assignment of Orbital Locations to Space Stations in the Domestic Fixed-Satellite Service, 5 FCC Rcd 179, FCC 89- 364 (1990). Subsequent to the time pleadings were filed in this proceeding, the Commission adopted the Space Station Reform First Report and Order to establish faster satellite licensing procedures. In addition, the Commission explained how the new procedures would be applied to the pending V- band applications, and announced that those applications would be placed on public notice shortly after this Order is released. Amendment of the Commission’s Space Station Licensing Rules and Policies, IB Docket No. 02- 34, First Report and Order and Further Notice of Proposed Rulemaking, FCC 03- 102, 18 FCC Rcd 10760 (2003) (Space Station First Report and Order). 157 TRW Comments at 14. 158 TRW Comments at 14. 159 Footnote US334 provides as follows: In the band 17.8- 20.2 GHz, Government space stations in both geostationary (GSO) and non- geostationary satellite orbits (NGSO) and associated earth stations in the fixed-satellite service (space- to- Earth) may be authorized on a primary basis. For a Government geostationary satellite network to operate on a primary basis, the space station shall be located outside the arc, measured from east to west, 70 West Longitude to 120 West Longitude. Coordination between Government fixed- satellite systems and non- Government space and terrestrial systems operating in accordance with the United States Table of Frequency Allocations is required. 47 C. F. R. § 2.106, n. US334 (2002). 26 Federal Communications Commission FCC 03- 296 27 the Commission develops some type of coordination procedure between commercial and Government users, several parties express support of the additional Government FSS allocation. 160 54. We recognize that both Government and commercial systems must remain sufficiently sure of their access to orbital and spectrum resources if they are to proceed with research, development and production of their planned space- station systems. At the same time, several years will pass before either commercial or Government systems are ready to deploy space stations. If experience is any guide, some will choose not to implement planned systems while others will implement currently unplanned systems. 161 Of course, we can and frequently do attempt to narrow the potential for interference when we can reasonably anticipate that interference would occur. In this case, however, the Government may or may not deploy systems in the band, and, given this uncertainty, it is difficult for us to determine, ex ante, whether and how we should limit Government systems. For us to support confining Government systems to one small portion of the orbital arc as TRW has proposed would be particularly inappropriate because we cannot be certain that this particular method of coordination represents a cost- effective or necessary restriction. 55. Moreover, the Commission recently revised its satellite licensing procedures to speed the process for acting on satellite applications. Specifically, the Commission explained how it would license V- band satellite systems. 162 The Commission also explained that all pending V- band applications would be treated as though they were filed at the same instant. 163 In addition, the Commission directed the International Bureau to issue a public notice shortly after the release of this Order, to explain these procedures in more detail, and to give applicants an opportunity to amend their applications, if necessary. 164 The Public Notice can also identify any known orbit/ spectrum requirements of the 160 Boeing Comments at 16 (“ Boeing does not object to a Government FSS allocation in principle; however, any Government FSS allocation in this band should be on a secondary basis, rather than co- primary with non-Government FSS.”); TRW Reply at 6 (“ TRW . . . believes that, with the imposition of sensible limits on government FSS operations, a place can be found in the band for government FSS systems to meet their objectives in a way that does not jeopardize the commercial viability and business objectives of non- government FSS systems”); see also Hughes Reply at 13 (asserting that the Commission should not adopt a primary Government MSS allocation at 40.5- 41.0 GHz unless and until it is clear that government use of that spectrum will not interfere with the deployment and operation of commercial systems in the same spectrum); Hughes Comments at 7- 8 (same). 161 See, e. g., Public Notice of Dismissal, Report No. SAT- 00125, Lockheed Martin Corporation (d/ b/ a Marine Systems), File Nos. SAT- LOA- 19970925- 0100 through- 0108 (rel., Oct. 30, 2002), available at < http:// www. fcc. gov/ Daily_ Releases/ Daily_ Business/ 2002/ db1030/ DOC- 227913A1. pdf> (last visited, Mar. 28, 2003), citing Letter from Gerald C. Musarra, Vice President Trade and Regulatory Affairs, Lockheed Martin, to Marlene Dortch, Secretary, FCC (Sept. 13, 2002). 162 Space Station Reform First Report and Order at 10865, ¶ 279. 163 Space Station Reform First Report and Order at 10865, ¶ 279. Previously, the “processing round” system would combine satellite applications into groups and then processes mutually exclusive satellite applications together. See Amendment of the Commission's Space Station Licensing Rules and Policies, Notice of Proposed Rulemaking and First Report and Order, 17 FCC Rcd 3847, 3850, ¶ 5- 6 (2002) (Space Station Licensing Reform Notice), available at (last visited Mar. 18, 2003). The Commission has noted that “the processing round licensing procedures involve multiple, often quite intricate and time- consuming steps.” Id. at 3850, ¶ 5. 164 Space Station Reform First Report and Order at 10865, ¶ 279. 27 Federal Communications Commission FCC 03- 296 28 Government. In the meantime, rather than attempt to render a judgment now about the relative future demand for orbital and spectrum resources among Government and commercial systems in the V- band, we will add a Government FSS allocation to the band; however, we will require both Government and commercial operators to coordinate their operations on an co- primary basis. 165 The coordination process shall include representatives from the commercial operator and the Interdepartment Radio Advisory Committee (IRAC), which is an interagency committee of Federal radio frequency managers that advises the executive branch on the Federal Government's use of the spectrum. 166 Coordinated commercial and Government use of the 40.5- 41.0 GHz band will result in a mutually interference- free operating environment for the deployment and operation of commercial systems. Should the parties to the coordination prove unable to coordinate their planned systems in a reasonably timely fashion, however, the Commission and NTIA will work under the IRAC process to find a resolution of any coordination disputes. 4. Add FSS Allocation to the 41.0- 42.0 GHz Band 56. In the V- band Further Notice, the Commission proposed to add a primary FSS allocation to the 41.0- 42.0 GHz band. Because WRC- 2000 adopted PFD limits that favor terrestrial uses below 40.0 GHz and that favor satellite uses from 40.0- 42.0 GHz, the Commission proposed to redesignate the spectrum available for wireless services from 41.0- 42.0 GHz to 37.6- 38.6 GHz and to redesignate the spectrum available for satellite use from 37.6- 38.6 GHz to 41.0- 42.0 GHz. 167 Consequently, the Commission proposed to add a primary FSS allocation to the 41.0- 42.0 GHz band to achieve the redesignation of the 41.0- 42.0 GHz band for FSS use. 168 57. To meet the needs of commercial FSS operators and consolidate the compromise plan established for the V- band, commenters unanimously support the proposed FSS allocation. 169 TRW, for example, notes that adding a primary FSS allocation to the 41.0- 42.0 GHz band not only would enable “global [high- density] FSS operations at 40.0- 42.0 GHz,” but also would “comport[] fully with the soft segmentation division of spectrum between satellite and terrestrial users agreed to by WRC- 2000.” 170 Boeing adds that the additional spectrum for FSS operations in the 41.0- 42.0 GHz band would “promote[] the more efficient design and deployment of [FSS] systems.” 171 Given the support for the Commission’s 165 Coordination between Government and commercial operations will ensure equitable access to the shared FSS allocations. 166 Specifically, the Space Systems Subcommittee (SSS) of IRAC is responsible for the international registration and coordination of Government satellite systems and normally processes all international actions through the Commission. For more information on the IRAC, see generally NTIA Office of Spectrum Management, Inter-department Radio Advisory Committee, available at (last visited, Mar. 19, 2003). 167 See WRC- 2000 Final Acts, Art. S. 21. 168 V- band Further Notice, 16 FCC Rcd at 12255, ¶ 27. 169 See, e. g., Hughes Reply at 6 & n. 23; Winstar Comments at 5; TRW Comments at 7; Boeing Comments at 17; Hughes Comments at 5- 6, 8; Intelsat Comments at 2, 6; SIA Comments at 2. 170 TRW Comments at 7. 171 Boeing Comments at 17. 28 Federal Communications Commission FCC 03- 296 29 proposal from commenters, we adopt the proposal to add a primary non- Government FSS allocation in the 41.0- 42.0 GHz band and modify the Table of Allocations in Section 2.106 of our rules accordingly. 172 58. Boeing and TRW indicated in their comments that the Commission should not adopt a co-primary, Government FSS allocation in this band. 173 NTIA has expressed no interest in pursuing a primary, Government FSS allocation in the 41.0- 42.0 GHz band, 174 and we did not propose an additional FSS allocation in the 41.0- 42.0 GHz band for Government FSS. We, therefore, make no finding on the comment by TRW or Boeing. 5. Consider Adding Fixed and Mobile Allocations for Non- Government Use to the 42.5- 43.5 GHz Band 59. In the V- band Further Notice, the Commission sought comment on whether to add primary, non- Government Fixed and Mobile allocations to the 42.5- 43.5 GHz band and then designate the band for wireless services. 175 WRC- 2000 identified the 42.5- 43.5 GHz band as available for HDFS. In the United States, this band is currently allocated on a co- primary basis to FS, FSS (Earth- to- space), Mobile, and Radio Astronomy (RA) services. These allocations currently are for exclusive Government use, except for RA, in which we also permit non- Government uses. Although each of the active services in the 42.5- 43.5 GHz band (FS, Mobile, and FSS) can theoretically share with RA to some degree, when the Commission issued the V- band Further Notice, it said it expected that non- Government FS operators would have a particular interest in operating in this band because WRC- 2000 identified the 42.5- 43.5 GHz band as available for HDFS. 176 60. As the Commission noted in the V- band Further Notice, commercial use of the 42.5- 43.5 GHz band is in some sense linked to Government use of the 47.2- 48.2 GHz band. 177 Prior to 1998, Government and commercial uses shared allocations in the 42.5- 43.5 GHz band on a co- primary basis. In 1998, however, the Commission chose to separate Government and commercial operators by establishing the 42.5- 43.5 GHz band for exclusive Government use and the 47.2- 48.2 GHz band for exclusive commercial use. In choosing to adopt the exclusive non- Government allocation for the 47.2- 48.2 GHz band, we relied on our desire to serve the needs of High Altitude Platform Service (HAPS) operators. 61. In the V- band Further Notice, the Commission stated that HAPS proponents “have withdrawn [their] interest to develop . . . service in the 47.2- 48.2 GHz band.” 178 Indeed, many participants in this proceeding affirm that HAPS has not developed as anticipated. 179 While SkyTower, a 172 A primary allocation for the fixed and mobile services still remains in the 41. 0- 42. 0 GHz band. What, if any, use by these other services will be addressed in a future rulemaking. 173 See Boeing Comments at 16 (“ Requiring commercial FSS systems to shoulder the burden of sharing with Government FSS would upset this careful balance.”); TRW Reply at 5. 174 NTIA Mar. 2, 2001 Ex Parte Letter. 175 V- band Further Notice, 16 FCC Rcd at 12255, ¶ 28. 176 V- band Further Notice, 16 FCC Rcd at 12255- 56, ¶¶ 28- 29. 177 V- band Further Notice, 16 FCC Rcd at 12256, ¶ 30. 178 V- band Further Notice, 16 FCC Rcd at 12256, ¶ 30. 179 Boeing Comments at 5- 6; Spectrum Astro Comments at 7; Hughes Comments at iii, 5; SIA Comments at 2. 29 Federal Communications Commission FCC 03- 296 30 proponent of HAPS technologies, states that HAPS remains a potentially important new delivery mechanism for advanced telecommunications services, SkyTower acknowledges that no HAPS proponent currently envisions a need for a “specific HAPS service in a particular band.” 180 In light of the reduced need for HAPS spectrum and in hopes of providing additional spectrum for terrestrial FS users, the Commission proposed to return the 42.5- 43.5 GHz and 47.2- 48.2 GHz bands to their original configurations of shared Government and commercial operations. 181 Specifically, the Commission proposed to reverse the commercial- Government spectrum swap and return the 42.5- 43.5 GHz and 47.2- 48.2 GHz bands to shared commercial- Government use by adding non- government allocations to the 42.5- 43.5 GHz band. 182 Other things being equal, most operators would prefer to operate at the lower frequencies in the 42.5- 43.5 GHz band than the higher frequencies in the 47.2- 48.2 GHz band due to the lower band’s somewhat superior propagation characteristics. Several parties to this proceeding accordingly support the proposal to once again make the 42.5- 43.5 GHz band available for commercial use. 183 62. The Government, however, does not support the change. NTIA recognizes that “there is a degree of merit” in harmonizing the 42.5- 43.5 GHz bands globally for commercial operations, but asserts that the 42.5- 43.5 GHz band remains peculiarly appropriate for exclusive Government operations for several reasons. First, some Government systems currently operate in the 42.5- 43.5 GHz band, 184 and the 42.5- 43.5 GHz band is immediately adjacent to the Government satellite band at 43.5- 45.5 GHz. Second, the 42.5- 43.5 GHz band could accommodate an expansion of Government Earth- to- space operations. Third, NTIA has encouraged federal agencies over the last few years to use the 42.5- 43.5 GHz band as a substitute for the 37.0- 38.6 GHz band. 185 For these reasons, NTIA views commercial operations in the 42.5- 43.5 GHz band as inimical to existing and future Government operations in the band. 63. Hughes agrees with NTIA’s reasoning and recommends that the Commission should maintain the current 42.5- 43.5 GHz allocation for exclusive Government use and the 47.2- 48.2 GHz band for exclusive non- Government use. 186 According to Hughes, allocating the 47.2- 48.2 GHz band for exclusive Government use would prevent commercial FSS satellites from using this much- needed uplink allocation while the hoped- for reclamation of the 42.5- 43.5 GHz band for commercial FSS would probably not 180 SkyTower Reply at 3. SkyTower states that HAPS proponents now view “HAPS as multi- purpose platforms that can be used by operators in existing services.” Id. According to SkyTower, “there are now several companies, including SkyTower, pursuing alternative strategies for deploying HAPS.” Id. at 3- 4. 181 As an alternative, the Commission proposed reallocating the 42.5- 43.5 GHz band for exclusive non-Government use, except for RA, and reallocating the 47.2- 48.2 GHz band for exclusive Government use. V- band Further Notice, 16 FCC Rcd at 12256, ¶ 30. No one supported this proposal because it would have virtually all of the drawbacks that NTIA finds in the principal proposal with far fewer benefits to commercial operators. See TRW Comments at 13; Hughes Comments at 9. 182 V- band Further Notice, 16 FCC Rcd at 12255- 56, ¶ 29. 183 Intelsat Comments at 6; TRW Comments at 13; SIA Comments at 2. 184 NTIA Aug. 31, 2001 Ex Parte Letter at 2. For example, NTIA notes that the National Science Foundation conducts extensive radio astronomy observations in the band. 185 NTIA Aug. 31, 2001 Ex Parte Letter at 2. 186 Hughes Comments at 9. 30 Federal Communications Commission FCC 03- 296 31 permit extensive commercial FSS use because radio astronomy operates in that band. 187 Comments from the radioastronomy community support Hughes’ concerns. The National Academy of Sciences notes that radio astronomy facilities in this band are particularly susceptible to interference. 188 If the Commission were to reintroduce commercial operations into the 42.5- 43.5 GHz band, the National Academy of Sciences recommends that the Commission prohibit aeronautical mobile uses, establish and enforce geographic separation between RAS observatories and fixed and mobile users, and mandate detailed coordination procedures. 189 64. We agree with those commenters that recommend against returning the 42.5- 43.5 GHz and 47.2- 48.2 GHz band to their pre- 1998 allocations given that federal Government users already operate in the 42.5- 43.5 GHz band and that NTIA appears to have relied on the Commission’s 1998 spectrum- swap decision in encouraging other federal agencies to use the band as a substitute for the 37.0- 38.6 GHz band. Although we agree with those commenters that note that the lower frequencies generally offer better propagation characteristics and recognize this band’s potential for commercial use, extensive radioastronomy operations in the 42.5- 43.5 GHz band make these same frequencies less than ideal candidates for immediate commercial operations. Prudent spectrum management supports the continued separation of government and non- Government operations in this portion of the V- band. 65. In light of our decision not to return the 42.5- 43.5 GHz band to shared Government and commercial use, we will preserve the 47.2- 48.2 GHz band for exclusive commercial use. Currently, the 47.2- 48.2 GHz band is allocated on a co- primary basis to terrestrial fixed and mobile services and FSS (Earth- to- space). 190 While HAPS operators indicate that they no longer need an exclusive band dedicated to HAPS use, commercial operators in one or more of the services allocated to the 47.2- 48.2 GHz may prove able to use this band to serve the public. Indeed, both TRW and Hughes identify this band as an important potential uplink for V- band FSS systems. 191 The 47.2- 48.2 GHz band, however, contains no incumbent services. Given the nascent development of technology in this band, we are not willing to conclude at this time that sharing among the co- primary terrestrial and satellite services in this band is entirely impractical. Therefore, we conclude that allocating the 47.2- 48.2 GHz band exclusively for FSS use at this time would be inappropriate. 66. Hughes asserts that FSS requires three gigahertz of FSS uplink spectrum and three gigahertz of downlink spectrum in the V- band. 192 We have identified two gigahertz of FSS downlink spectrum in the 40.0- 42.0 GHz band and two gigahertz of FSS uplink spectrum in the 48.2- 50.2 GHz band. Hughes proposes that we identify an additional one gigahertz of FSS downlink spectrum to pair with the one gigahertz of FSS uplink spectrum at 47.2- 48.2 GHz. Hughes suggests two alternatives for identifying this downlink spectrum: either one gigahertz of FSS downlink at 37.6- 38.6 GHz, or 500 megahertz in the 37.6- 38.6 GHz band and an additional 500 megahertz at 42.0- 42.5 GHz. 187 Hughes Comments at 9. 188 CORF Comments at 6. 189 CORF Comments at 6- 7. 190 47 C. F. R. § 2.106 (2002). 191 TRW Reply at 11. 192 Hughes Reply at 1. 31 Federal Communications Commission FCC 03- 296 32 67. We decline to adopt Hughes’ proposals. First, the 37.6- 38.6 GHz band is designated for FS use with FSS gateway operations permitted under the soft- segmentation approach adopted in this item. Reallocation to FSS is, therefore, inconsistent with our actions taken herein, which carefully balances the equities between FS and FSS interests in the V- band. Second, the Commission is deferring action on the 42.0- 42.5 GHz band with respect to the BSS and, consequently, the FSS allocation. Since the 42.0- 42.5 GHz FSS allocation would be adjacent to the radio astronomy allocation at 42.5- 43.5 GHz, FSS operations in this band potentially could be affected by how radio astronomy service is protected. 193 However, the FS designation in the 42.0- 42.5 GHz band is still in effect, even though the conditions for operating at the satellite PFD limits for the band will be considered in a future Commission proceeding. Third, the Hughes proposal would leave the 37.5- 40.0 GHz downlink band unpaired with any comparable FSS uplink band. FSS operators could seek use of the remaining one gigahertz of spectrum in the 47.2- 48.2 GHz band in conjunction with their gateway operations in the 37.5- 40.0 GHz band. Any asymmetrical pairings in these bands, and any associated constraints, are inherent in decisions we adopt today. Such constraints can, to some extent, be alleviated by using techniques that result in spectrum spreading on the downlink. That is, FSS gateway operation in a high- density fixed service band, consistent with today’s Order, will necessitate the use of lower FSS downlink PFDs than in other FSS bands. Some of the FSS techniques available for use in this controlled PFD environment include the use of lower- rate modulations and increased in- channel coding. These techniques decrease the information data rate per hertz of downlink bandwidth. One option to maintaining the FSS link capacity would be to increase the FSS downlink transmission bandwidth. Therefore, the FSS operators could potentially make use of wider bandwidths in the FSS downlink spectrum at 37.5– 40.0 GHz than in the 47.2- 48.2 GHz uplink band. For this reason, we preserve the 47.2- 48.2 GHz V- band FSS uplink allocation for possible asymmetrical pairing with the 37.5- 40.0 GHz band. 6. Protection of Radio Astronomy in the 42.5- 43.5 GHz Band 68. In the V- band Further Notice, the Commission proposed to adopt aggregate PFD limits on certain systems licensed to operate in the 41.5- 42.5 GHz band in order to protect certain RA operations. 194 Under ITU footnote 5.551G, the aggregate PFD in the 42.5- 43.5 GHz band produced by all space stations in any non- geostationary system operating in the 41.5- 42.5 GHz band is not to exceed -167 dB( W/ m 2 ) in any one megahertz band at the site of an RA station for more than two percent of the time. 195 Footnote 5.551G also restricts geostationary FSS or BSS operations in the 42.0- 42.5 GHz band to PFD limits in the 42.5- 43.5 GHz band, of -167 dB( W/ m 2 ) in any one megahertz band at the site of an RA station. 196 Under the Commission’s proposed approach, a modified version of footnote 5.551G of the ITU Radio Regulations would be incorporated into the domestic Table of Frequency Allocations. 197 As adopted by WRC- 2000, footnote 5.551G was provisional and subject to modification by WRC- 2003. 198 193 See infra III. B. 6. 194 See V- band Further Notice, 16 FCC Rcd at 12256- 7, ¶ 32. 195 See V- band Further Notice, 16 FCC Rcd at 12257, ¶ 32. 196 See V- band Further Notice, 16 FCC Rcd at 12257, ¶ 32. 197 See V- band Further Notice, 16 FCC Rcd at 12256, ¶ 32. 198 See V- band Further Notice, 16 FCC Rcd at 12257, ¶¶ 32- 33. 32 Federal Communications Commission FCC 03- 296 33 69. As another measure to protect RA, the Commission sought comment on NTIA’s request to consider deleting BSS from the 42.0- 42.5 GHz band entirely. The Commission noted NTIA’s concern that the limits adopted in ITU footnote S5.551G might not adequately protect RA operations in the 42.5- 43.5 GHz band. 199 While some commenters from the RA community support deleting BSS, 200 others oppose the measure with the hope that the Commission can develop an alternative that accommodates the needs of both BSS and radio astronomy operations. 201 Other commenters noted certain proposals to WRC- 2003 that would have permitted greater satellite use of the 42.0- 42.5 GHz band and argue the Commission should reconsider its allocation decision for this band and allocate this spectrum for both FSS and BSS. 202 70. The V- band Further Notice recognized that the PFD limits adopted in footnote 5.551G were provisional and therefore subject to modification by WRC- 2003. 203 Since release of the V- band Further Notice, moreover, four competing proposals have been submitted to the ITU- R in preparation for WRC-2003 regarding the final language of footnote 5.551G. 204 Several commenters argue that the Commission should not adopt the proposals outlined in the V- band Further Notice because the ITU- R is currently examining these proposals as well as a broader study, established by the Final Acts of WRC- 2000, on the appropriate PFD protections afforded to RA. 205 WRC- 2003 has concluded its work on the issue of RAS 199 See V- band Further Notice, 16 FCC Rcd at 12257, ¶ 34. 200 CORF Comments at 4- 5; NTIA Comments at 2. 201 Astrolink Comments at 6- 7. 202 Hughes Reply at 11; Hughes Comments at 8- 9 (“ If WRC- 03 and the Commission sufficiently relax the out- of-band emission pfd limit applicable to the 42. 5- 43. 5 GHz band to allow satellite use of the 42. 0- 42. 5 GHz band, and if the Commission determines that the band is a better alternative for additional downlink spectrum, then the Commission should also add an FSS allocation at 42.0- 42.5 GHz and should designate that band for FSS and BSS use.”); TRW Comments at 15 (“ The proposal not to allocate spectrum for FSS at 42.0- 42.5 GHz is in clear conflict with U. S. positions at WRC- 97 and WRC- 2000 advocating just the opposite.”); Boeing Reply at 7; but see CORF Reply at 2 (expressing concern about the potential for harmful interference from BSS and FSS operations in the 42.0- 42.5 GHz band.). 203 See V- band Further Notice, 16 FCC Rcd at 12257, ¶ 34. 204 Section 4.5 of the Conference Preparatory Meeting (CPM) report to WRC- 2003 describes recent analysis of the required power flux density limits to protect RA in the 42.5- 43.5 GHz band from adjacent band satellite services. The proposed PFD limits to protect radio astronomy vary between -116 dB (W/( m 2 * GHz)) to -153 dB (W/( m 2 * GHz)) depending on the type of RA application analyzed. The CPM report discusses four possible models to revise footnote S. 551G indicating that a one- size fits all approach may not be necessary for RA protection. Footnote S5.551G and the proposed footnote USXXX are a one- size fits all approach to RA protection. Current ITU studies question the need for a stringent -167 dB (W/ m 2 ) protection level in any 1 MHz band. The four new models incorporate the observation type in defining PFD limits for GSO and non- GSO satellite networks in the 41.5- 42.5 GHz band. Each of these models has advantages and disadvantages, and further study within the ITU- R will likely yield adoption of a single method by WRC- 2003. 205 Astrolink Reply at 3 (arguing that “[ d] ecisions regarding protection of radio astronomy should be deferred until after the ITU- R completes its analysis on the issue.”); TRW Comments at 15- 18 (urging the Commission to await the completion of a pending ITU- R study into the “possible steps RA can take to reduce susceptibility to interference into its sites.”); Intelsat Comments at 7 (asking the Commission to “defer a decision on the domestic allocation or designation of the band 42. 0- 42. 5 GHz until completion of the work by the ITU- R.”) Panamsat at 4 (continued….) 33 Federal Communications Commission FCC 03- 296 34 protection by suppressing footnote 5.551G and adopting two new footnotes, 5.551H and 5.551I. These new footnotes place PFD limits on (both NGSO and GSO) FSS and BSS systems, operating in the 42.0- 42.5 GHz band, to protect RA operations in the 42.5- 43.5 GHz band. We are in the process of reviewing the results of WRC- 2003 and the approach adopted there to protect RA. We will address the proper PFD limit necessary to protect RA in an upcoming rulemaking proceeding. 71. We also conclude that deleting the BSS allocation, and/ or adding an FSS allocation, would be premature prior to the completion of our domestic proceeding on the protection requirements for RA. 206 The proper level of protection for RA remains the subject of active debate. In the interest of both continuing open, productive debate and of promoting international comity, we defer decision on NTIA’s request to delete BSS from the 42.0- 42.5 GHz band. IV. ORDERING CLAUSES 72. IT IS ORDERED that, pursuant to Sections 4( i), 7( a), 303( c), 303( f), 303( g), and 303( r) of the Communications Act of 1934, as amended, 47 U. S. C. Sections 154( i), 157( a), 303( c), 303( f), 303( g), 303( r), Part 25 of the Communications Rules IS AMENDED, as specified in Appendix B, effective 30 days after publication in the Federal Register. 73. IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order, including the Initial and Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. 74. Additional Information. For further information concerning this rulemaking proceeding contact David Strickland and (202) 418- 0977 (internet: david. strickland@ fcc. gov), International Bureau, Federal Communications Commission, Washington, DC 20554. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary (Continued from previous page) (opposing the adoption of a modified version of footnote S5.551G as it “ignores the pending ITU- R study . . . . into the possible steps radio astronomy can take to reduce susceptibility to interference into its sites.”). 206 Astrolink Reply at 9. 34 Federal Communications Commission FCC 03- 296 35 APPENDIX A: LIST OF COMMENTERS COMMENTERS DMC Stratex Networks Inc. (DMC) Astrolink International LLC (Astrolink) Satellite Industry Association (SIA) Winstar Communications, Inc. (Winstar) TRW Inc. (TRW) The Boeing Company (Boeing) Hughes Communications, Inc. (Hughes) Wireless Communications Association International, Inc. (WCA) Spectrum Astro, Inc. (Spectrum) National Academy of Sciences Committee on Radio Frequencies (CORF) Intelsat Global Services Corporation (Intelsat) National Telecommunications and Information Administration (NTIA) REPLY COMMENTERS Advanced Radio Telecom Corp. (ART) DCT Sprint, L. L. C. (Sprint) Bala Equity IV, Inc. (Bala IV) PanAmSat Corporation, (PanAmSat) Harris Corporation (Harris) DCT Transmission, L. L. C. (DCT) Astrolink International LLC (Astrolink) PVT Networks, Inc. (PVT) Fixed Wireless Communications Coalition( R. D. Coles) (FWCC) Wireless Communications Association International, Inc. (WCA) The Boeing Company, (Boeing) Hughes Communications, Inc. (Hughes) Intelsat Global Service Corporation (Intelsat) SkyTower, Inc., (Skytower) AT& T Corp. (AT& T) National Academy of Sciences’ Committee on Radio Frequencies (CORF) Winstar Communications, Inc. (Winstar) TRW Inc. (TRW) Satellite Industry Association (SIA) 35 Federal Communications Commission FCC 03- 296 36 APPENDIX B: FINAL RULES Parts 2, 25, and 101 of title 47 of the Code of Federal Regulations are amended as follows: PART 2 – FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for part 2 continues to read as follows: AUTHORITY: 47 U. S. C. 154, 302a, 303, and 336, unless otherwise noted. 2. Section 2.106, the Table of Frequency Allocations, is amended as follows: a. Revise pages 76, 77, 78, and 79. b. In the list of International footnotes under heading I, revise footnotes 5.340, 5.547, and 5.555A; add footnotes 5.516B, 5.551H, 5.551I, and 5.554A; and remove footnotes 5.551AA and 5.551G. c. In the list of United States footnotes, add footnote US382. d. In the list of Federal Government footnotes, revise footnote G117. The revisions and additions read as follows: § 2.106 Table of Frequency Allocations. * * * * * 36 37 36- 37 EARTH EXPLORATION- SATELLITE (passive) FIXED MOBILE SPACE RESEARCH (passive) 5.149 36- 37 EARTH EXPLORATION- SATELLITE (passive) FIXED MOBILE SPACE RESEARCH (passive) US263 US342 37- 37.5 FIXED MOBILE SPACE RESEARCH (space- to- Earth) 5.547 37- 37.5 FIXED MOBILE Fixed Microwave (101) 37.5- 38 FIXED FIXED- SATELLITE (space- to- Earth) MOBILE SPACE RESEARCH (space- to- Earth) Earth exploration- satellite (space- to- Earth) 5.547 37- 38 FIXED MOBILE SPACE RESEARCH (space- to- Earth) 37.5- 38.6 FIXED FIXED- SATELLITE (space- to- Earth) MOBILE 38- 38.6 FIXED MOBILE 38- 39.5 FIXED FIXED- SATELLITE (space- to- Earth) MOBILE Earth exploration- satellite (space- to- Earth) 5.547 38.6- 39.5 38.6- 39.5 FIXED FIXED- SATELLITE (space- to- Earth) MOBILE NG175 39.5- 40 FIXED FIXED- SATELLITE (space- to- Earth) 5.516B MOBILE MOBILE- SATELLITE (space- to- Earth) Earth exploration- satellite (space- to- Earth) 5.547 39.5- 40 FIXED- SATELLITE (space- to- Earth) MOBILE- SATELLITE (space- to- Earth) US382 G117 39.5- 40 FIXED FIXED- SATELLITE (space- to- Earth) MOBILE NG175 US382 Satellite Communications (25) Fixed Microwave (101) 40- 40.5 EARTH EXPLORATION- SATELLITE (Earth- to- space) FIXED FIXED- SATELLITE (space- to- Earth) 5.516B MOBILE MOBILE- SATELLITE (space- to- Earth) SPACE RESEARCH (Earth- to- space) Earth exploration- satellite (space- to- Earth) 40- 40.5 EARTH EXPLORATION- SATELLITE (Earth- to- space) FIXED- SATELLITE (space- to- Earth) MOBILE- SATELLITE (space- to- Earth) SPACE RESEARCH (Earth- to- space) Earth exploration- satellite (space- to- Earth) G117 40- 40.5 FIXED- SATELLITE (space- to- Earth) MOBILE- SATELLITE (space- to- Earth) Satellite Communications (25) 37 38 40.5- 50.2 GHz (EHF) Page 77 International Table United States Table Region 1 Region 2 Region 3 Federal Government Non- Federal Government FCC Rule Part( s) 40.5- 41 FIXED FIXED- SATELLITE (space- to- Earth) BROADCASTING BROADCASTING- SATELLITE Mobile 5.547 40.5- 41 FIXED FIXED- SATELLITE (space- to- Earth) 5.516B BROADCASTING BROADCASTING- SATELLITE Mobile Mobile- satellite (space- to- Earth) 5.547 40.5- 41 FIXED FIXED- SATELLITE (space- to- Earth) BROADCASTING BROADCASTING- SATELLITE Mobile 5.547 40.5- 41 FIXED- SATELLITE (space- to- Earth) Mobile- satellite (space- to- Earth) US211 G117 40.5- 41 FIXED- SATELLITE (space- to- Earth) BROADCASTING BROADCASTING- SATELLITE Fixed Mobile Mobile- satellite (space- to- Earth) US211 41- 42 FIXED FIXED- SATELLITE (space- to- Earth) BROADCASTING BROADCASTING- SATELLITE MOBILE US211 Satellite Communications (25) 41- 42.5 FIXED FIXED- SATELLITE (space- to- Earth) 5.516B BROADCASTING BROADCASTING- SATELLITE Mobile 41- 42.5 42- 42.5 FIXED BROADCASTING BROADCASTING- SATELLITE MOBILE 5.547 5.551F 5.551H 5.551I US211 US211 Fixed Microwave (101) 42.5- 43.5 FIXED FIXED- SATELLITE (Earth- to- space) 5.552 MOBILE except aeronautical mobile RADIO ASTRONOMY 5.149 5.547 42.5- 43.5 FIXED FIXED- SATELLITE (Earth- to- space) MOBILE except aeronautical mobile RADIO ASTRONOMY US342 42.5- 43.5 RADIO ASTRONOMY US342 43.5- 47 MOBILE 5.553 MOBILE- SATELLITE RADIONAVIGATION RADIONAVIGATION- SATELLITE 43.5- 45.5 MOBILE- SATELLITE (Earth- to- space) FIXED- SATELLITE (Earth- to- space) G117 43.5- 45.5 38 39 45.5- 46.9 MOBILE MOBILE- SATELLITE (Earth- to- space) RADIONAVIGATION- SATELLITE 5.554 RF Devices (15) 5.554 46.9- 47 MOBILE MOBILE- SATELLITE (Earth- to- space) RADIONAVIGATION- SATELLITE 5.554 46.9- 47 MOBILE MOBILE- SATELLITE (Earth- to- space) RADIONAVIGATION- SATELLITE FIXED 5.554 47- 47.2 AMATEUR AMATEUR- SATELLITE 47- 47.2 AMATEUR AMATEUR- SATELLITE Amateur (97) 47.2- 47.5 FIXED FIXED- SATELLITE (Earth- to- space) 5.552 MOBILE 5.552A 47.5- 47.9 FIXED FIXED- SATELLITE (Earth- to- space) 5.552 (space- to- Earth) 5.516B MOBILE 47.5- 47.9 FIXED FIXED- SATELLITE (Earth- to- space) 5.552 MOBILE 47.9- 48.2 FIXED FIXED- SATELLITE (Earth- to- space) 5.552 MOBILE 5.552A 47- 48.2 47.2- 48.2 FIXED FIXED- SATELLITE (Earth- to- space) US297 MOBILE US264 48.2- 48.54 FIXED FIXED- SATELLITE (Earth- to- space) 5.552 (space- to- Earth) 5.516B 5.554A 5.555A MOBILE 48.54- 49.44 FIXED FIXED- SATELLITE (Earth- to- space) 5.552 MOBILE 5.149 5.340 5.555 48.2- 50.2 FIXED FIXED- SATELLITE (Earth- to- space) 5.516B 5.552 MOBILE 48.2- 50.2 FIXED FIXED- SATELLITE (Earth- to- space) US297 MOBILE US264 See next page 5.149 5.340 5.555 5.555 US342 Satellite Communications (25) 39 40 50.2- 65 GHz (EHF) Page 79 International Table United States Table Region 1 Region 2 Region 3 Federal Government Non- Federal Government FCC Rule Part( s) 49.44- 50.2 FIXED FIXED- SATELLITE (Earth- to- space) 5.552 (space- to- Earth) 5.516B 5.554A 5.555A MOBILE See previous page for 48.2- 50.2 GHz See previous page for 48.2- 50.2 GHz See previous page for 47.2- 50.2 GHz 50.2- 50.4 EARTH EXPLORATION- SATELLITE (passive) SPACE RESEARCH (passive) 5.340 5.555A 50.2- 50.4 EARTH EXPLORATION- SATELLITE (passive) SPACE RESEARCH (passive) US246 50.4- 51.4 FIXED FIXED- SATELLITE (Earth- to- space) MOBILE Mobile- satellite (Earth- to- space) 50.4- 51.4 FIXED FIXED- SATELLITE (Earth- to- space) MOBILE MOBILE- SATELLITE (Earth- to- space) G117 50.4- 51.4 FIXED FIXED- SATELLITE (Earth- to- space) MOBILE MOBILE- SATELLITE (Earth- to- space) 51.4- 52.6 FIXED MOBILE 5.547 5.556 51.4- 52.6 FIXED MOBILE 52.6- 54.25 EARTH EXPLORATION- SATELLITE (passive) SPACE RESEARCH (passive) 5.340 5.556 52.6- 54.25 EARTH EXPLORATION- SATELLITE (passive) SPACE RESEARCH (passive) US246 54.25- 55.78 EARTH EXPLORATION- SATELLITE (passive) INTER- SATELLITE 5.556A SPACE RESEARCH (passive) 5.556B 54.25- 55.78 EARTH EXPLORATION- SATELLITE (passive) INTER- SATELLITE 5.556A SPACE RESEARCH (passive) 55.78- 56.9 EARTH EXPLORATION- SATELLITE (passive) FIXED 5.557A INTER- SATELLITE 5.556A MOBILE 5.558 SPACE RESEARCH (passive) 5.547 5.557 55.78- 56.9 EARTH EXPLORATION- SATELLITE (passive) FIXED INTER- SATELLITE 5.556A MOBILE 5.558 SPACE RESEARCH (passive) US263 US353 56.9- 57 EARTH EXPLORATION- SATELLITE (passive) FIXED INTER- SATELLITE 5.558A MOBILE 5.558 SPACE RESEARCH (passive) 56.9- 57 EARTH EXPLORATION- SATELLITE (passive) FIXED INTER- SATELLITE G128 MOBILE 5.558 56.9- 57 EARTH EXPLORATION- SATELLITE (passive) FIXED MOBILE 5.558 SPACE RESEARCH 40 Federal Communications Commission FCC 03- 296 41 * * * * * INTERNATIONAL FOOTNOTES * * * * * 5.340 All emissions are prohibited in the following bands: 1400- 1427 MHz, 2690- 2700 MHz, except those provided for by No. 5.422, 10.68- 10.7 GHz, except those provided for by No. 5.483, 15.35- 15.4 GHz, except those provided for by No. 5.511, 23.6- 24 GHz, 31.3- 31.5 GHz, 31.5- 31.8 GHz, in Region 2, 48.94- 49.04 GHz, from airborne stations, 50.2- 50.4 GHz 2 , 52.6- 54.25 GHz, 86- 92 GHz, 100- 102 GHz, 109.5- 111.8 GHz, 114.25- 116 GHz, 148.5- 151.5 GHz, 164- 167 GHz, 182- 185 GHz, 190- 191.8 GHz, 200- 209 GHz, 226- 231.5 GHz, 250- 252 GHz. 2 5.340.1 The allocation to the earth exploration- satellite service (passive) and the space research service (passive) in the band 50.2- 50.4 GHz should not impose undue constraints on the use of the adjacent bands by the primary services. * * * * * 5.516B The following bands are identified for use by high- density applications in the fixed- satellite service (HDFSS): 17.3- 17.7 GHz (space- to- Earth) in Region 1 18.3- 19.3 GHz (space- to- Earth) in Region 2 19.7- 20.2 GHz (space- to- Earth) in all Regions 39.5- 40 GHz (space- to- Earth) in Region 1 40- 40.5 GHz (space- to- Earth) in all Regions 40.5- 42 GHz (space- to- Earth) in Region 2 47.5- 47.9 GHz (space- to- Earth) in Region 1 48.2- 48.54 GHz (space- to- Earth) in Region 1 49.44- 50.2 GHz (space- to- Earth) in Region 1 and 27.5- 27.82 GHz (Earth- to- space) in Region 1 28.35- 28.45 GHz (Earth- to- space) in Region 2 28.45- 28.94 GHz (Earth- to- space) in all Regions 28.94- 29.1 GHz (Earth- to- space) in Region 2 and 3 41 Federal Communications Commission FCC 03- 296 43 These values shall apply at the site of any radio astronomy station that either: – was in operation prior to 5 July 2003 and has been notified to the Radiocommunication Bureau before 4 January 2004; or – was notified before the date of receipt of the complete Appendix 4 information for coordination or notification, as appropriate, for the space station to which the limits apply. Other radio astronomy stations notified after these dates may seek an agreement with administrations that have authorized the space stations. In Region 2, Resolution 743 (WRC- 03) shall apply. The limits in this footnote may be exceeded at the site of a radio astronomy station of any country whose administration so agreed. * * * * * 5.554A The use of the bands 47.5- 47.9 GHz, 48.2- 48.54 GHz and 49.44- 50.2 GHz by the fixed-satellite service (space- to- Earth) is limited to geostationary satellites. * * * * * 5.555A The power flux- density in the band 48.94- 49.04 GHz produced by any geostationary space station in the fixed- satellite service (space- to- Earth) operating in the bands 48.2- 48.54 GHz and 49.44- 50.2 GHz shall not exceed –151.8 dB( W/ m 2 ) in any 500 kHz band at the site of any radio astronomy station. * * * * * UNITED STATES (US) FOOTNOTES * * * * * US382 In the band 39.5- 40 GHz, Federal Government earth stations in the mobile- satellite service (space- to- Earth) shall not claim protection from non- Federal Government stations in the fixed and mobile services. ITU Radio Regulation No. 5.43A does not apply. * * * * * GOVERNMENT (G) FOOTNOTES * * * * * G117 In the bands 7.25- 7.75 GHz, 7.9- 8.4 GHz, 17.8- 21.2 GHz, 30- 31 GHz, 33- 36 GHz, 39.5- 41 GHz, 43.5- 45.5 GHz and 50.4- 51.4 GHz, the Government fixed- satellite and mobile- satellite services are limited to military systems. * * * * * 43 Federal Communications Commission FCC 03- 296 50 less in annual receipts. 215 According to 1997 Census Bureau data, 216 there are 273 satellite communication firms with annual receipts of under $10 million. In addition, 24 firms had receipts for that year of $10 million to $24,999,990. 217 Generally, these NGSO and GSO FSS systems cost several millions of dollars to construct and operate. Therefore the NGSO and GSO FSS companies, or their parent companies, rarely qualify under this definition as a small entity. In addition, the proposed rules may affect allocations for the space research (passive) and radio astronomy services. There are no small entities affected by this action because only Federal agencies currently make use of these services. Terrestrial Fixed and Mobile Wireless Services. We note that the rules proposed in this order provide spectrum for future wireless and satellite licensees and the proposal would not affect any current non-Federal Government users. Regarding future terrestrial fixed and mobile use of the subject bands, the applicable definition of small entity is the definition under the SBA rules applicable to the Cellular and Other Wireless Telecommunications industry. This definition provides that a small entity is a firm employing no more than 1,500 persons. 218 The 1997 Census of Transportation, Communications, and Utilities, conducted by the Bureau of the Census, which is the most recent information available, shows that only 12 cellular and other wireless telecommunications firms out of a total of 1,238 such firms that operated during 1997 had 1,000 or more employees. 219 While we cannot at this time know precisely which entities will ultimately be utilizing all the subject spectrum, the following services are possibilities: Fixed Microwave Services. Fixed microwave services include common carrier, 220 private operational-fixed, 221 and broadcast auxiliary radio services. 222 At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operations- fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business 215 See 13 C. F. R. § 121.201 (2002), North American Industry Classification System (NAICS) 517410. 216 In 1997— the most recent year in which census data is available— the NAICS code for “Satellite Telecommunications” was 513340. 217 U. S. Bureau of Census, U. S. Department of Commerce, 1997 Economic Census, EC97S51S- SZ, Subject Series, Establishment and Firm Size, Table 2, Employment Size of Establishments of Firms Subject to Federal Income Tax: 1997, NAICS Code 51740 (issued October 2000). 218 See 13 C. F. R. § 121.201 (2002), NAICS Code 513322 (changed to 517410 in October 2002). 219 U. S. Bureau of the Census, U. S. Department of Commerce, 1997 Economic Census, EC97551S- SZ, Subject Series, Establishment and Firm Size, Table 5, Employment Size of Firms: 1997, NAICS Code 513322 (issued October 2000). 220 See 47 C. F. R. §§ 101 et seq. (2002) (formerly part 21 of the Commission’s Rules) for common carrier fixed microwave services (except Multipoint Distribution Service). 221 Persons eligible under parts 80 and 90 of the Commission’s rules can use Private Operational- Fixed Microwave services. See 47 C. F. R. parts 80 and 90 (2002). Stations in this service are called operational- fixed to distinguish them from common carrier and public fixed stations. Only the licensee may use the operational- fixed station, and only for communications related to the licensee’s commercial, industrial, or safety operations. 222 Auxiliary Microwave Service is governed by part 74 of Title 47 of the Commission’s rules. See 47 C. F. R. part 74 et seq. (2002) This service is available to licensees of broadcast stations and to broadcast and cable network entities. Broadcast auxiliary microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between two points such as a main studio and an auxiliary studio. The service also includes mobile television pickups, which relay signals from a remote location back to the studio. 50 Federal Communications Commission FCC 03- 296 51 specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. 223 The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA’s small business size standard. Consequently, the Commission estimates that there are 22,015 or fewer small common carrier fixed licensees and 61,670 licensees in the microwave services that may be affected by the rules and policies adopted herein. The Commission notes, however, that the common carrier microwave fixed licensee category includes some large entities. 39 GHz Service. The Commission created a special small business size standard for 39 GHz licenses – an entity that has average gross revenues of $40 million or less in the three previous calendar years. 224 An additional size standard for “very small businesses” is: an entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. 225 The SBA has approved these small business size standards. 226 The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses. Consequently, the Commission estimates that 18 or fewer 39 GHz licensees are small entities that may be affected by the rules and policies adopted herein. Local Multipoint Distribution Service. The auction of the 1,030 Local Multipoint Distribution Service (LMDS) licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licensees as an entity that has average gross revenues of less than $40 million in the three previous calendar years. 227 An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. 228 The SBA approved these small business size standards in the context of LMDS auctions. 229 There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re- auctioned 161 licenses; there were 40 winning bidders. Based on this information, we conclude that the number of small LMDS licenses will include the 93 winning bidders in the first auction and the 40 winning bidders in the re- auction, for a total of 133 small entity LMDS providers as defined by the SBA and the Commission’s auction rules. 223 13 C. F. R. § 121.201 (2002), NAICS code 513322 (changed to 517212 in October 2002). 224 See Amendment of the Commission’s Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, ET Docket No. 95- 183, Report and Order, 63 FR 6079 (February 6, 1998). 225 Id. 226 See Letter to Kathleen O’Brien Ham, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, administrator, Small Business Administration (February 4, 1998). 227 See Local Multipoint Distribution Service, Second Report and Order, 12 FCC Rcd 12545 (1997). 228 Id. 229 See Letter to Dan Phythyon, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from A. Alvarez, Administrator, Small Business Administration (January 6, 1998). 51 Federal Communications Commission FCC 03- 296 52 D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements None. These changes impose no cost or reporting burdens on fixed- satellite, mobile- satellite, or broadcasting- satellite service operators. No incumbents are affected by this proposed action. The only service rule changes proposed concern power flux density limits and frequency tolerance and emission limitations, which do not have associated compliance burdens. E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 230 In this Report and Order, we modify the band segmentation plan governing operations in the 36.0- 51.4 GHz band to reflect decisions reached at the 2000 World Radiocommunication Conference (WRC- 2000) and the 2003 World Radiocommunication Conference (WRC- 2003). These changes primarily attempt to settle allocation and segmentation issues and, as a result, provide similar benefits for all entities, including small. Specifically, the changes adopted in the domestic Table of Allocations seek to maximize efficient use of the radio spectrum by both satellite and terrestrial uses, with minimal changes to the existing Table. These changes will benefit all satellite and terrestrial operators by providing satellite and terrestrial operators, including small entity operators, with greater certainty about the scope of operations in this band. F. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules None. 230 See 5 U. S. C. § 603. 52 APPENDIX D: CHART OF ALLOCATIONS AND DESIGNATIONS 1 V- Band Allocations (37.0 GHz- 42.5 GHz) Current Allocations 37.6 BSS V- Band Order Allocations BSS BSS Fixed and Mobile Terrestrial Wireless Services (FS/ MS) Fixed Satellite Services (FSS) Mobile Satellite Services (MSS) Broadcasting Satellite Services (BSS) Legend Notes: 1 Government- only allocation (changes from a government and non- government shared allocation). 2 New secondary allocation. FSS FSS FS/ MS FS/ MS FSS FSS FSS FSS FSS FSS MSS MSS MSS FS/ MS FSS FS/ MS FS/ MS FS/ MS FS/ MS mss 2 FS/ MS FS/ MS FSS FSS Space Research (SR) MSS 1 42.5 GHz 37.0 38.0 39.0 40.0 41.0 42.0 SR 1 SR 1 SR 1 SR 1 SR 53 APPENDIX D: CHART OF ALLOCATIONS AND DESIGNATIONS 2 Non- Government V- Band Designations 42.5 GHz Current Designations V- Band Order Designations Legend Wireless Wireless Wireless Wireless Wireless FSS MSS FSS BSS FSS BSS FSS MSS FSS BSS 37.0 38.0 39.0 40.0 41.0 42.0 FSS 37.6 38.6 Fixed and Mobile Terrestrial Wireless Services (FS/ MS) Fixed Satellite Services (FSS) FSS and Mobile Satellite Services (MSS) FSS and Broadcasting Satellite Services (BSS) 54