[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Proposed Rules]
[Pages 2465-2469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1247]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2, 21, and 94

[FCC 95-500]


Fixed Point-to-Point Microwave Service

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: By the Notice of Proposed Rule Making (NPRM) portion of this 
NPRM and Order, the Commission proposes to provide a channeling plan 
and licensing and technical rules for fixed point-to-point microwave 
operations in the 37.0-38.6 GHz (37 GHz) band and proposes to amend the 
licensing and technical rules for fixed point-to-point microwave 
operations in the 38.6-40.0 GHz (39 GHz) band. This action would make 
available additional channels in the 37 GHz band and would ensure more 
efficient use of the 39 GHz band in the future. The objectives of this 
proposal are to provide adequate point-to-point microwave spectrum, 
including channels for the support of broadband personal communications 
services (PCS) and other services, and to provide for technical 
commonality across the bands.

DATES: Comments must be submitted on or before February 12, 1996 and 
reply comments must be submitted on or before February 27, 1996. 
Written comments by the public on the proposed and/or modified 
information collections are due February 12, 1996. (The comment and 
reply dates originally were set for January 16, 1996 and January 31, 
1996, respectively. However, the Commission's Office of Engineering and 
Technology, under delegated authority, extended the comment and reply 
period due to the exigency caused by the closing of the government; see 
Order Extending Time, DA 96-15, released January 16, 1996.)
    Written comments must be submitted by OMB on the proposed and/or 
modified information collections on or before March 26, 1996.

ADDRESSES: Comments and reply comments should be sent to Office of the 
Secretary, Federal Communications Commission, Washington, DC 20554. In 
addition to filing comments with the Secretary, a copy of any comments 
on the information collections contained herein should be submitted to 
Dorothy Conway, Federal Communications Commission, Room 234, 1919 M 
Street NW., Washington, DC 20554, or via the Internet to 
[email protected], and to Timothy Fain, OMB Desk Officer, 10236 

[[Page 2466]]
NEOB, 725 17th Street NW., Washington, DC 20503 or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Tom Mooring, Office of Engineering and 
Technology, 202-418-2450. For additional information concerning the 
information collections contained in this NPRM contact Dorothy Conway 
at 202-418-0217, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's NPRM, 
adopted and released on December 15, 1995. The complete NPRM and Order 
is available for inspection and copying during normal business hours in 
the FCC Reference Center (Room 239), 1919 M Street NW., Washington, DC, 
and also may be purchased from the Commission's duplication contractor, 
International Transcription Service, (202) 857-3800, 2100 M Street NW., 
Suite 140, Washington, DC 20037.

Paperwork Reduction Act

    This NPRM contains either a proposed or modified information 
collection. The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public and OMB to comment on the 
information collections contained in this NPRM, as required by the 
Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Public and agency 
comments are due at the same time as other comments on this NPRM; OMB 
comments are due 60 days from date of publication of this NPRM in the 
Federal Register. Comments should address: (a) whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the Commission, including whether the information 
shall have practical utility; (b) the accuracy of the Commission's 
burden estimates; (c) ways to enhance the quality, utility, and clarity 
of the information collected; and (d) ways to minimize the burden of 
the collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology.

    OMB Approval Number: N/A.
    Title: Proposed rule 21.711(b).
    Form No.: N/A.
    Type of Review: New collection.
    Respondents: Businesses or other for-profit.
    Number of Respondents: 300.
    Estimated Time Per Response: 40 hours.
    Total Annual Burden: 12,000 hours.
    Needs and Uses: Rule requires that respondents certify that they 
have constructed a minimum number of installed and operating microwave 
links no later than 18 months from adoption of the Report and Order in 
this docket. If the Commission does not require this certification then 
it would not know whether the spectrum is being used effectively.

    OMB Approval Number: N/A.
    Title: Proposed rule 21.711(b)(2).
    Form No.: N/A.
    Type of Review: New collection.
    Respondents: Businesses or other for-profit.
    Number of Respondents: 200.
    Estimated Time Per Response: 80 hours.
    Total Annual Burden: 16,000 hours.
    Needs and Uses: Rule requires that respondents not meeting the 
construction threshold file a list of permanently installed or 
operating microwave links that they wish to have grandfathered no later 
than 18 months from adoption of the Report and Order in this docket. If 
the Commission does not require this filing then it would not be able 
to protect these incumbent operations from possible harmful 
interference caused by new systems.

    OMB Approval Number: N/A.
    Title: Proposed rule 21.711(a)(4).
    Form No.: N/A.
    Type of Review: New collection.
    Respondents: Businesses or other for-profit.
    Number of Respondents: 500.
    Estimated Time Per Response: 256 hours.
    Total Annual Burden: 128,000 hours.
    Needs and Uses: Rule requires that respondents maintain a computer-
readable database. This data would be used to facilitate coordination 
with Government links that share the 37 GHz band with non-Government 
licensees.

    OMB Approval Number: 3060-0064 and 3060-0402.
    Title: Application for a station authorization in the Private 
Operational Fixed Microwave Radio Service; Application for a new or 
modified microwave radio station license under Part 21.
    Form No.: FCC 402 and FCC 494.
    Type of Review: New collection.
    Respondents: Businesses or other for-profit.
    Number of Respondents: 100.
    Estimated Time Per Response: 2 hours.
    Total Annual Burden: 200 hours.
    Needs and Uses: Forms are used by applicants to apply to provide 
either a common carrier service (FCC 494) or to use the spectrum for 
private purposes (FCC 402). If the Commission did not require that 
applicants file one these two forms then it would not know how to 
regulate the licensees.

Summary of MO&O

    1. By this action, the Commission proposes to provide a channeling 
plan and licensing and technical rules for fixed point-to-point 
microwave operations in the 37 GHz band. Adoption of this proposal 
would make the band available for point-to-point microwave operations 
that would provide communications infrastructure such as ``backhaul'' 
and ``backbone'' communications links for services including broadband 
PCS, cellular radio, and other commercial and private mobile radio 
operations. The Commission observes that such infrastructure could also 
facilitate the development of competitive wireless local telephone 
service. Further, the Commission proposes a channeling plan based on 
fourteen paired 50 megahertz channel blocks (with a 700 megahertz 
separation between transmit and receive channel blocks) and four 
unpaired 50 megahertz channel blocks, to allow licensees to subdivide 
their channel blocks as they choose, service areas based on Basic 
Trading Areas (BTAs), licensing by competitive bidding if mutually 
exclusive applications are filed, and a minimal number of technical 
rules designed to limit interference. Proposed technical rules include 
specifications as to frequency tolerance, bandwidth, transmitter power, 
directional antenna standards, digital modulation, and field strength 
limitation at service area boundaries. The term of licenses in the 37 
GHz band is proposed to be 10 years and comment is sought on the 
appropriate buildout requirement.
    2. With regard to sharing the 37 GHz band between Government fixed 
and non-Government point-to-point operations, the Commission proposes 
to share the band on a first-come, first-served basis as follows. 
Commission licensees would be required to protect incumbent operations 
when they build out their system. Any new Government fixed operations 
would be coordinated on a link-by-link basis with the affected 
Commission licensees through the existing Government/non-Government 
coordination process. In order for the Commission to process a 
coordination request, non-Government licensees would be required to 
maintain a computer-readable database with the coordinates of their 
sites, frequencies (occupied bandwidth) assigned to their sites, EIRP, 
and other needed information for all of their links.
    3. In addition, comment is requested on whether the 37 GHz band or 
a portion of it should be made available for a wider array of fixed 
services, such 

[[Page 2467]]
as point-to-multipoint systems; whether there is a requirement for 
mobile operations in the 37 GHz band and, if so, whether such 
operations should be on a co-primary or secondary basis to the point-
to-point operations; and whether the Commission has overestimated 
demand and, thus whether a portion of the band should be held in 
reserve for future services. If the permissible use of the 37 GHz and 
39 GHz bands (see para. 6, below) is broadened to include other fixed 
and/or mobile uses, the Commission would not anticipate separately 
licensing such uses but rather would include them within the uses 
permitted under our proposed BTA licenses. In response to a request 
from the National Telecommunications and Information Administration 
(NTIA), the Commission solicits comment on additionally allocating the 
37-38 GHz band to the space research (space-to-Earth) service.
    4. If competitive bidding is not adopted for the 37 GHz band, 
comment is solicited alternatively on licensing the 37 GHz band in the 
same manner as the 39 GHz band is currently licensed with the following 
modifications. Service areas would be based on BTAs. Eligibility for 
Channel Blocks 15 through 20 would be limited to broadband PCS 
licensees until three months after the last broadband PCS license is 
issued. Eligibility for Channel Blocks 21 through 28 would be limited 
to broadband PCS, cellular, and wide-area SMR licensees for three 
years, commencing with the effective date of the rules adopted in this 
proceeding. After the expiration of these restrictions, eligibility 
would be open to all parties.
Eligibility for unpaired Channel Blocks 29 through 32 would be 
unrestricted. Further, the Commission proposes to require that 
applicants demonstrate a need for each channel requested, that 
applicants initially be limited to one channel per designated service 
area, that all licensees, except broadband PCS licensees, construct 
their system within 18 months and that such construction be defined as 
the ability to pass communications traffic significantly throughout the 
service area, and that license transfers of unbuilt systems be 
prohibited. Additionally, each licensee would be permitted to apply for 
an additional channel in its service area only when it is operating its 
previously authorized channel(s) at or near expected capacity. Comment 
is solicited on whether licensees should be required at some time in 
the future to provide the Commission with a report of their operations 
so that a second licensing opportunity could be provided for parties 
interested in those portions of licensed service areas that are unused. 
Comment is specifically requested on what criteria should be applied in 
determining whether a licensed service area is underused to the point 
that other applicants should be permitted to propose service in that 
area. If an additional party is allowed to obtain a license in an 
existing licensee's BTA, the Commission proposes to require them to 
coordinate informally on a link-to-link basis.
    5. The Commission also proposes to amend the licensing and 
technical rules for fixed point-to-point microwave operations in the 39 
GHz band. Specifically, the Commission proposes that the unlicensed 
areas be licensed using BTA service areas and that auctions be employed 
should mutually exclusive applications be filed. In order to 
accommodate incumbent operations, the Commission proposes that 
licensees of rectangular service areas be given eighteen months from 
the adoption of a Report and Order in this proceeding to file with the 
Commission a certification that they have constructed a minimum average 
of four permanently installed and operating links per hundred square 
kilometers (approximately one link per ten square miles) of their 
licensed service area for each licensed channel block. Further, 
licensees with more than one channel block must certify that each 
channel block contains at least four permanently installed and 
operating links per hundred square kilometers that cannot be 
reaccommodated in another channel block. If a licensee meets these 
threshold construction and filing requirements, then the licensee would 
retain its entire rectangular service area. However, if a licensee does 
not meet these requirements, then the license would be automatically 
canceled nineteen months from the adoption of a Report and Order in 
this proceeding. Further, licensees of rectangular service areas not 
meeting the above construction threshold must file a list of 
permanently installed and operating links that they wish to have 
grandfathered no later than eighteen months from the adoption of a 
Report and Order in this proceeding. The Commission would then 
relicense qualifying links individually. Failure to file timely a list 
of installed and operating links would result in automatic cancellation 
of the respective licenses. As an alternative to relicensing incumbent 
facilities on their current frequency, comment is solicited on whether 
incumbent links should be ``repacked'' into a portion of the band, 
e.g., most grandfathered links would be switched to one designated 
channel pair provided that mutual interference would not result. The 
technical rules for the 39 GHz band would be modified to make them 
consistent with the technical rules that are proposed for the 37 GHz 
band. Licensees would be limited to six of the 28 paired channel blocks 
and to two of the four unpaired channel blocks in each BTA in the 
combined 37-40 GHz band.
    6. The Commission notes that the lower portion of the 39 GHz band, 
38.6-39.5 GHz, is allocated to the fixed, mobile, and fixed-satellite 
(space-to-Earth) services and that the upper portion of the 39 GHz 
band, 39.5-40 GHz, is allocated to these services and to the mobile-
satellite (space-to-Earth) service. Comment is solicited on whether the 
proposed modifications for licensing the 39 GHz band would have any 
affect on the sharing of this band among these services. Further, 
comment is solicited on whether the Commission should provide for more 
flexible use of the 39 GHz band, including whether permissible uses 
should be broadened to include point-to-multipoint and/or mobile 
services in this band, perhaps under a broader service category such as 
GWCS or LMWS.
    7. If competitive bidding is not adopted for the 39 GHz band, 
comment is solicited alternatively on whether to license the 39 GHz 
band under the current rules with certain modifications. Specifically, 
the Commission proposes to strengthen and codify the policy guidance 
given in the Commission's Common Carrier Bureau's Public Notice, Mimeo 
No. 44787, released September, 1994, so that all applicants for 
channels in the 39 GHz band would be required to make the following 
showings:

    (i) Consideration of non-radiofrequency (non-RF) solutions. That 
the applicant has given detailed consideration to non-RF solutions for 
satisfying its communications requirements, including but not limited 
to fiber optic cable and wireline, and explaining why such alternatives 
are technically unacceptable, as opposed to merely less economically 
preferable.

    (ii) Clear and present need. That the applicant has an immediate 
and real need for the proposed communications. Neither speculation, nor 
anticipated market development, nor a desire merely to hold a license 
will be sufficient in this regard. Each narrative must include an 
implementation schedule with six month benchmarks and will be required 
to demonstrate system construction and operation within the 
construction deadline imposed by Sec. 21.43 of the Rules. 

[[Page 2468]]

    (iii) Frequency and efficiency. Normally, only one channel block 
will be authorized per applicant per geographic area. New assignments 
will be licensed by BTAs. Current applicants must modify their 
applications accordingly. A future request for an additional channel 
block will be considered only if the applicant demonstrates that:
     An immediate requirement exists for simultaneous 
communications within the licensed service area;
     Frequency re-use is impossible as demonstrated by an 
engineering showing;
     All previously authorized channel blocks within the 
licensed service area are constructed, are operational, and are loaded 
to 100% capacity;
     All frequencies are loaded to a minimum equivalent digital 
efficiency of 1 bps/Hz;
     All transmitting equipment is operating with a frequency 
tolerance of 0.001%; and
     Only Category A antennas are employed.

    (iv) Full disclosure. Applicants must fully disclose the real party 
(or parties) in interest, including a complete disclosure of the 
identity and relationship of those persons or entities directly or 
indirectly owning and/or controlling the applicant. In addition, 
licensees must construct their facilities and must be passing 
communications traffic on all of assigned channel blocks throughout 
their licensed service areas by the end of the eighteenth month since 
initial license grant. An extension to the 18 month period of 
construction will not generally be granted. If construction is not 
timely completed, the licensee's authority to construct additional 
links will be automatically cancelled and forfeited, and the licensee 
must notify the Commission as to which links have been constructed so 
that those links may be grandfathered.
    8. For both the 37 GHz and 39 GHz bands, the Commission proposes 
the following procedure for establishing eligibility to bid at auction. 
The Commission proposes open eligibility and does not intend to require 
that applicants prove that they are financially qualified. Applicants 
must file a ``short form,'' i.e., FCC form 175, by a date specified in 
the applicable initial public notice. The short forms would be reviewed 
for compliance with the Commission's rules. Timely-filed applications 
would be classified as either accepted for filing or incomplete and 
this result would be announced by public notice. Ex parte rules would 
be waived as they apply to the submission of amended short-form 
applications. Applicants would not be permitted to make any major 
modifications to their applications until after the auction. Applicants 
could modify their short-form applications to reflect the formation of 
consortia or changes in ownership at any time before or during the 
auction, provided such changes would not result in a change in control 
of the applicant, and provided that parties forming consortia or 
entering into ownership agreements have not applied for licenses in any 
of the same geographic license areas. Applications that are not signed 
would be dismissed as unacceptable. Incomplete applications must be 
resubmitted by the resubmission deadline to correct minor deficiencies. 
Late-filed applications would be dismissed without the opportunity to 
resubmit. If mutually exclusive applications are not filed for a 
license, then the Commission would by public notice cancel the auction 
for that license and establish a date for the filing of a ``long-form 
application,'' i.e., FCC Form 600. Applicants whose application for 
filing is ultimately approved will tender in advance to the Commission 
an upfront payment of $2,500 or $0.02 per pop per MHz, whichever is 
greater. Upfront payments generally will be due no later than 14 days 
before the scheduled auction.
    9. The design of the auction process for both the 37 GHz and the 39 
GHz bands is proposed to be simultaneous multiple round auctions. The 
minimum bid increments and stopping rules will be specified by public 
notice prior to the auction. The Milgrom-Wilson activity rule is 
tentatively proposed, but an alternative activity rule may be used 
instead and, if so, would be announced by public notice prior to the 
start of the auction. The duration of bidding rounds would either be 
announced by public notice prior to the auction or by announcement 
during the auction. A down payment of 20 percent must be submitted by a 
date to be specified by public notice, generally within 5 business days 
following the close of bidding. All auction winners generally would be 
required to make full payment of the balance of their winning bids with 
5 business days following public notice that the license is ready for 
grant. Any bidder who withdraws a high bid during an auction before the 
Commission declares the bidding closed, or defaults by failing to remit 
the required down payment within the prescribed time, would be required 
to reimburse the U.S. Treasury in the amount of the difference between 
its high bid and the amount of the winning bid the next time the 
license is offered by the Commission, if the subsequent winning bid is 
lower. After bidding closes, a defaulting auction winner would be 
assessed an additional payment of 3 percent of the subsequent winning 
bid or 3 percent of the amount of the defaulting bid, whichever is 
less. The Commission proposes to apply the transfer disclosure 
requirements contained in Section 1.2111(a).
    10. The Commission proposes the following provisions for designated 
entities. A small business is defined as entities with less than $40 
million in average annual gross revenues for the preceding 3 years. 
Further, the same affiliation and attribution rules for calculating 
revenues that were adopted in the broadband PCS and GWCS proceedings 
are also proposed for this service. A 10 percent bidding credit for 
small businesses is proposed and the bidding credit can be applied to 
any and all of the 37 and 39 GHz licenses. Small business licensees may 
elect to pay their winning bid amount (less upfront payments) in 
installments over 10 years, with interest charges to be fixed at the 
time of licensing at a rate equal to the rate for ten year U.S. 
Treasury obligations plus 2.5 percent. Installment payments would be 
due on the anniversary of the day the license was granted. Timely 
payment of all installments would be a condition of the license grant 
and failure to make such timely payments would be grounds for 
revocation of the license. Small business licensees will be permitted 
to make interest-only installment payments during the first two years 
of the license. The down payment for small businesses is proposed to be 
5 percent of the winning bid due five days after the auction and 5 
percent due five days after the public notice that the license is ready 
for grant. Comment is sought on the appropriate transfer restrictions 
for small businesses and on the proposal not to adopt an entrepreneurs' 
block.
    11. In addition, the Commission proposes that rural telephone 
companies be permitted to partition BTAs. Rural telephone companies are 
defined as local exchange carriers having 100,000 or fewer access 
lines, including all affiliates. Rural telephone companies would be 
permitted to acquire partitioned licenses in either of two ways: (1) 
they may form bidding consortia consisting entirely of rural telephone 
companies to participate in the auctions, and then partition the 
licenses won among consortia participants; and (2) they may acquire 
partitioned licenses from other licenses through private negotiation 
and agreement either before or after the 

[[Page 2469]]
auction. The partitioned areas must conform to established geopolitical 
boundaries and each area must include all portions of the wireline 
service area of the rural telephone company applicant that lies within 
the service area.
    12. The application processing rules contained in Parts 21 and 94 
would be used for the 37 GHz service (as well as the 39 GHz service). 
Auction winners will be required to file a long form by a specific 
date, generally within 10 business days after the close of the auction. 
If the winning bidder intends to provide a common carrier service it 
would file FCC Form 494, and if it intends to provide a private use it 
would file FCC Form 402. After the Commission receives the winning 
bidder's down payment and the long-form application, the long-form 
application would be reviewed to determine if it is acceptable for 
filing. Upon acceptance for filing of FCC Form 494, a Public Notice 
announcing this fact would be released, triggering the filing window 
for petitions to deny. If the Commission denies all petitions to deny, 
and is otherwise satisfied that the applicant is qualified, a Public 
Notice announcing the grants will be issued. Winning bidders would have 
five business days after the issuance of the Public Notice to complete 
payment of their licenses. The Commission would then have ten business 
days to grant the licenses.

List of Subjects

47 CFR Part 1

    Administrative practice and procedure, Radio.

47 CFR Part 2

    Radio.

47 CFR Part 21

    Communications common carriers, Communications equipment, Radio.

47 CFR Part 94

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-1247 Filed 1-25-96; 8:45 am]
BILLING CODE 6712-01-P