[Federal Register Volume 61, Number 211 (Wednesday, October 30, 1996)]
[Rules and Regulations]
[Pages 55924-55926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27818]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 15 and 97

[ET Docket No. 94-32; FCC 96-390]


Allocation of Spectrum Below 5 GHz Transferred From Federal 
Government Use

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission declines to adopt additional service rules or 
coordination procedures for the amateur service and Data-PCS devices or 
for the amateur service. The Commission also prohibits airborne use of 
all unlicensed devices in the 2390-2400 MHz band in order to protect 
space research conducted at the National Astronomy and Ionospheric 
Center Observatory (NAIC) at Arecibo, Puerto Rico. In addition, the 
Commission declines to combine the 2390-2400 MHz and 2400-2483.5 MHz 
bands for use by both Data-PCS and other unlicensed devices. It 
reaffirms that as long as the unlicensed device satisfies the technical 
standards of the band in which it is operating, the device would be 
permitted to transmit in either band. This action permits immediate use 
of the 2390-2400 MHz and 2402-2417 MHz bands by the amateur service, 
Data-PCS devices, and other unlicensed devices under existing rules. 
Finally the new and enhanced services and uses permitted by this action 
will create new jobs, foster economic growth, and improve access to 
communications by industry and the American public.

EFFECTIVE DATE: November 29, 1996.

FOR FURTHER INFORMATION CONTACT: Sean White (202) 418-2453 and Tom 
Derenge (202) 418-2451, Office of Engineering and Technology.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth 
Report and Order, ET Docket 94-32, FCC 96-390, adopted September 20, 
1996, and released October 18, 1996. The full text of this Commission 
decision is available for inspection and copying during normal business 
hours in the FCC Reference Center (Room 239), 1919 M Street, N.W., 
Washington, D.C., and also may be purchased from the Commission's 
duplication contractor, International Transcription Service, (202) 857-
3800, 2100 M Street, N.W., Suite 140, Washington, D.C. 20037.

Summary of the Report and Order

    1. By this action, the Commission addresses issues raised in the 
First Report and Order and Second Notice of Proposed Rule Making (First 
R&O and Second NPRM), 60 FR 13102, March 10, 1995, 10 FCC Rcd 4769 
(1995) in this proceeding regarding sharing of the 2390-2400 MHz and 
2402-2417 MHz bands by the Amateur Radio Service and unlicensed 
devices. On February 7, 1995, the Commission adopted the First R&O and 
Second NPRM. In that action, the Commission made the 2390-2400 MHz band 
available for use by unlicensed Data Personal Communications Services 
(Data-PCS) devices on a non-interference basis, provided for continued 
use of the 2402-2417 MHz band by other, non-Data-PCS, Part 15 devices, 
upgraded the allocation for both of these bands for use by the Amateur 
Radio Service from secondary to primary, and allocated the 4660-4685 
MHz band for use by the Fixed and Mobile Services. Additionally, we 
extended the existing rules governing Data-PCS at 1910-1920 MHz to the 
2390-2400 MHz band and decided that both the amateur service and non-
Data-PCS Part 15 operations at 2402-2417 MHz would continue to be 
governed in accordance with currently applicable technical and 
operational rules.
    2. In the First R&O and Second NPRM, we also requested comment on 
any rule changes that might be necessary for the amateur service and 
non-Data-PCS Part 15 devices to share the spectrum more efficiently. In 
addition, we stated that Data-PCS and amateur use of 2390-2400 MHz 
would generally be compatible and that it was unnecessary to propose 
any formal standards for sharing between these services in this band. 
However, we requested comment on whether formal sharing requirements 
would be needed or whether formal coordination procedures should be 
developed for amateur/Data-PCS use.
    3. We also proposed to prohibit airborne use of all unlicensed 
devices operating at 2390-2400 MHz in order to protect space research 
operations at 2380 MHz in the vicinity of the National Astronomy and 
Ionospheric Center Observatory (NAIC) at Arecibo, Puerto Rico. Noting 
that we were not proposing similarly to prohibit the terrestrial use of 
unlicensed devices in the vicinity of the NAIC, we sought comment on 
whether the proposed ban on airborne use would provide adequate 
protection to space research operations and, if not, what additional 
steps we should take to provide greater protection. In addition, we 
sought comment on whether the 2390-2400 MHz band and the superjacent 
2400-2483.5 MHz band, where Part 15 operations are currently 
authorized, should be combined for use as a single, large Part 15 band.
    4. In addition to commenting on these proposals, several commenters 
requested that we allocate the 2390-2400 MHz and 2402-2417 MHz bands to 
unlicensed devices on a primary basis. Currently, unlicensed devices 
have no allocation status, but are permitted to operate on a non-
interference basis to other users of the bands.
    5. In this Fourth Report and Order (Fourth R&O) the Commission 
declines to adopt additional service rules or coordination procedures 
for the amateur service and Data-PCS devices or for the amateur service 
and other Part 15 devices. We find that the existing technical rules 
governing use of these bands are adequate and that no additional rules 
are needed. We also prohibit airborne use of all unlicensed devices in 
the 2390-2400 MHz band in order to protect space research conducted at 
the NAIC. In addition, we decline to combine the 2390-2400 MHz and 
2400-2483.5 MHz bands for use by both Data-PCS and other Part 15 
devices. Instead, the item reaffirms that as long as the unlicensed 
device satisfies the technical standards of the band in which it is 
operating, the device would be permitted to transmit in either band. 
Finally, the Commission concludes that this is not the appropriate 
proceeding to address requests for a primary allocation for unlicensed 
devices in the 2390-2400 MHz and 2402-2417 MHz bands.

[[Page 55925]]

Final Regulatory Flexibility Analysis

    6. As required by Section 603 of the Regulatory Flexibility Act, 5 
U.S.C. 603 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the First Report and Order and Second Notice of 
Proposed Rule Making, (First R&O and Second NPRM), ET Docket No. 94-
32.\1\ The Commission sought written public comments on proposals in 
the First R&O and Second NPRM, including the IRFA. The Commission's 
Final Regulatory Flexibility Analysis (FRFA) in this Fourth Report and 
Order conforms to the RFA, as amended by the Contract With America 
Advancement Act of 1996 (CWAAA), Public Law 104-121, 110 Stat. 847 
(1996).\2\
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    \1\ See 10 FCC Rcd 4769 (1995).
    \2\ Subtitle II of the CWAAA is ``The Small Business Regulatory 
Enforcement Fairness Act of 1996'' (SBREFA), codified at 5 U.S.C. 
601 et seq.
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    7. Need for and Objectives of the Rule: This action is taken in 
response to the Reconciliation Act,\3\ which required the Secretary of 
Commerce to identify 200 megahertz of spectrum, currently allocated for 
use by Federal Government agencies, that could be transferred for 
private sector use, and in response to the ensuing Preliminary Spectrum 
Reallocation Report published by the Department of Commerce,\4\ which 
identified such spectrum. The First R&O and Second NPRM in this 
proceeding allocated the 2390-2400 MHz band to the Amateur Radio 
Service and Data-PCS, the 2402-2417 MHz band to the Amateur Radio 
Service, and the 4660-4685 MHz band to the Fixed and Mobile Services. 
It also inquired as to whether we should prohibit aeronautical use of 
Data-PCS or other unlicensed devices to protect space research 
operations at the National Astronomy and Ionospheric Center (NAIC) at 
Arecibo, Puerto Rico, as well as whether we should allow Data-PCS 
devices to operate in the 2400-2483.5 MHz band where other unlicensed 
devices operate, and vice versa. The allocation of Data-PCS spectrum is 
intended to provide enhanced communication service to the American 
public, while also creating new jobs, fostering economic growth, and 
increasing access to communications for industry and the public. The 
upgrade to primary status of the amateur allocation in this spectrum 
will encourage amateur operators to use this spectrum. The Commission's 
adoption of rules to prohibit the use of Data-PCS devices in the 2390-
2400 MHz band while airborne, is intended to protect space research 
operations at the NAIC.
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    \3\ Omnibus Budget Reconciliation Act of 1993, Pub. L. 103-66, 
107 Stat 312 (enacted August 10, 1993).
    \4\ See Spectrum Reallocation Final Report, U.S. Department of 
Commerce, NTIA, Special Publication 95-32, February 1995.
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    8. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA: No comments directly responded to the IRFA. In 
general comments on the First R&O and Second NPRM, however, some 
commenters raised an issue that might affect small entities. Some 
commenters argued that merging the 2390-2400 MHz band with the 
superjacent 2400-2483.5 MHz band into a single, large band for non-
Data-PCS devices would make the spectrum more useful to manufacturers 
and users of unlicensed spread spectrum equipment, some of whom may be 
small entities. Because Data-PCS devices are asynchronous devices and 
follow a special spectrum sharing etiquette, while other Part 15 
unlicensed devices are typically isochronous and do not adhere to a 
spectrum sharing etiquette, the Commission determined that combining 
the bands presented a significant danger of delaying or hampering the 
growth of Data-PCS through interference from other unlicensed devices. 
Manufacturers and users of Data-PCS devices may also be small entities, 
and the Commission declined to combine the bands because of the 
potential for mutual harmful interference between Data-PCS devices and 
other unlicensed devices.
    9. Description and Estimate of the Number of Small Entities to 
Which the Rules Will Apply: The rule adopted in this Fourth Report and 
Order will apply to any small entity using Data-PCS devices while 
airborne in the continental United States. Because Data-PCS is as yet 
undeveloped, no meaningful estimate of the number or description of 
such small entities is possible. Since the Regulatory Flexibility Act 
amendments were not in effect until the record in this proceeding was 
closed, the Commission was unable to request an estimate of the number 
of small businesses that may be affected.
    However, as Data-PCS service evolves, and until the Commission 
establishes a pertinent definition of small entities, the applicable 
definition will be under the Small Business Association (SBA) rules 
applicable to Communications Services, Not Elsewhere Classified. This 
definition provides that a small entity is expressed as one with $11.0 
million or less in annual receipts.\5\ According to Census Bureau data, 
there are 848 firms that fall under the category of Communications 
Services, Not Elsewhere Classified. Of those, approximately 775 
reported annual receipts of $11 million or less and qualify as small 
entities.\6\
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    \5\ 13 CFR 121.201, Standard Industrial Classification (SIC) 
Code 4899.
    \6\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992 
Census of Transportation, Communications, and Utilities, UC92-S-1, 
Subject Series, Establishment and Firm Size, Table 2D, Employment 
Size of Firms: 1992, SIC Code 4899 (issued May 1995).
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    10. Summary of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements: The rule adopted in this Fourth Report and 
Order imposes no reporting or recordkeeping requirements. The rule also 
requires no affirmative compliance action by any entity to which it 
applies. Rather, the rule operates as a prohibition on the use of Data-
PCS devices in the 2390-2400 MHz band while airborne in the continental 
United States. We do not predict that any compliance costs, 
administrative or otherwise, will be imposed on entities subject to 
this rule.
    11. Significant Alternatives and Steps Taken to Minimize the 
Economic Impact on a Substantial Number of Small Entities Consistent 
with the Stated Objectives: The Commission believes that this 
allocation of Data-PCS spectrum will facilitate the creation of new 
jobs and economic growth. At the suggestion of commenters, the 
Commission considered and rejected a complete ban on all use of 
unlicensed devices in the vicinity of the NAIC. The Commission rejected 
this alternative as excessively burdensome to small entities using 
Data-PCS, while of little benefit in protecting space research 
operations at the NAIC. The Commission also considered and agreed with 
a recommendation by Apple that manufacturers should not be held 
responsible for designing Data-PCS devices to cease operations while 
traveling in aircraft.\7\ We believe that this would place an 
unnecessary burden on the manufacturer and we believe that it will be 
the responsibility of the user to control when and where the device is 
used. Data-PCS is a nascent service, and it is not possible to 
determine the impact this action will have on small businesses, because 
we have no data on the number of small businesses likely to use Data-
PCS.
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    \7\ See, decision at para. 22.
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    12. Report to Congress: The Commission shall send a copy of this 
Final Regulatory Flexibility Analysis, along with this Fourth Report 
and Order, in a report to Congress pursuant to the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801(a)(1)(A).

[[Page 55926]]

List of Subjects

47 CFR Part 15

    Communications equipment, Radio.

47 CFR Part 97

    Communications equipment, Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.

Rule Changes

    Parts 15 and 97 of Title 47 of the Code of Federal Regulation are 
amended as follows:

PART 15--RADIO FREQUENCY DEVICES

    1. The authority citation for Part 15 continues to read as follows:

    Authority: 47 U.S.C. 154, 302, 303, 304, 307 and 544A.

    2. Section 15.321 is amended by adding paragraph (g) to read as 
follows:


Sec. 15.321   Specific requirements for asynchronous devices operating 
in the 1910-1920 MHz and 2390-2400 MHz bands.

* * * * *
    (g) Operation of devices in the 2390-2400 MHz band from aircraft 
while airborne is prohibited, in order to protect space research 
operations at the National Astronomy and Ionospheric Center at Arecibo, 
Puerto Rico.

PART 97--AMATEUR RADIO SERVICE

    1. The authority citation for Part 97 continues to read as follows:

    Authority: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. 
Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 
U.S.C. 151-155, 301-609, unless otherwise noted.

    2. Section 97.303(j)(2) is revised to read as follows:


Sec. 97.303   Frequency sharing requirements.

* * * * *
    (j) * * *
    (2) In the United States, the 2300-2310 MHz segment is allocated to 
the amateur service on a co-secondary basis with the Government fixed 
and mobile services. In this segment, the fixed and mobile services 
must not cause harmful interference to the amateur service. The 2390-
2400 MHz and 2402-2417 MHz segments are allocated to the amateur 
service on a primary basis. No amateur station transmitting in the 
2400-2450 MHz segment is protected from interference due to the 
operation of industrial, scientific, and medical devices on 2450 MHz.
* * * * *
[FR Doc. 96-27818 Filed 10-29-96; 8:45 am]
BILLING CODE 6712-01-P