Federal Register, Volume 62 Issue 21 (Friday, January 31, 1997)

[Federal Register Volume 62, Number 21 (Friday, January 31, 1997)]
[Rules and Regulations]
[Pages 4649-4657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2007]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2 and 15

[ET Docket No. 96-102; FCC 97-5]

Unlicensed NII Devices in the 5 GHz Frequency Range

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: By this action, the Commission amends its radio frequency
devices rules to make available 300 megahertz of spectrum at 5.15-5.35
GHz and 5.725-5.825 GHz for use by a new category of unlicensed
equipment, called Unlicensed National Information Infrastructure (``U-
NII'') devices. These devices will provide short-range, high speed
wireless digital communications on an unlicensed basis. We anticipate
that U-NII devices will support the creation of new wireless local area
networks (``LANs'') and will facilitate wireless access to the National
Information Infrastructure (``NII''). In order to permit significant
flexibility in the design and operation of these devices, we are
adopting the minimum technical rules necessary to prevent interference
to other services and to ensure that the spectrum is used efficiently.
We believe that the rules set forth herein will foster the development
of a broad range of new devices and communications options that will
stimulate economic development and the growth of new industries. We
also expect that this action will promote the ability of U.S.
manufacturers, including small businesses, to compete globally by
enabling them to develop unlicensed digital communications products for
the world market.

[[Page 4650]]

EFFECTIVE DATE: April 1, 1997.

FOR FURTHER INFORMATION CONTACT: Tom Derenge 418-2451 or Fred Thomas
418-2449.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Report and Order, ET Docket 96-102, FCC 97-5, adopted January 9,
1997, and released January 9, 1997. 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. On April 25, 1996, the Commission adopted a Notice of Proposed
Rule Making (``NPRM''), 61 FR 24749, May 16, 1996; this proceeding
proposed to make available 350 megahertz of spectrum at 5.15-5.35 GHz
and 5.725-5.875 GHz for Unlicensed National Information Infrastructure
(``U-NII'') devices.^{1 The NPRM proposed that such devices be
subject to minimum technical standards, including power limits, out-of-
band emission limits, and spectrum etiquette. We tentatively concluded
that these standards would be necessary to ensure that licensed
services in the bands would be protected from harmful interference,
that the spectrum would be used efficiently, and that all U-NII devices
would have equal access to the spectrum. The NPRM also solicited
comments whether we should adopt a channeling plan, a minimum
modulation efficiency, and whether we should regulate any U-NII
operations as a licensed service, particularly those intended for long-
range community network applications. Further, the NPRM also proposed
to establish ``safe-harbor'' rules setting forth conditions under which
unlicensed devices could operate without risk of being considered
sources of harmful interference.
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\1\ We note that in the Notice of Proposed Rule Making in this
proceeding, we referred to these devices as NII/SUPERNet devices.
However, on July 2, 1996, we received a letter from Smart &
Thevenet, P.C. on behalf of its client, SuperNet, Inc., which
requests that the Commission refrain from using the word
``SUPERNet'' because it would infringe upon its trademark
registration of the name ``Colorado Supernet.'' Accordingly, we have
adopted the term ``Unlicensed National Information Infrastructure or
U-NII'' to refer to the devices in this proceeding.
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2. The Commission's proposal to provide spectrum to accommodate U-
NII devices is strongly supported by the majority of the commenters
(``U-NII proponents''). U-NII proponents argue that U-NII devices would
facilitate connections among computers, televisions, appliance
automation products, and on-premises network cable or telephone company
access points within homes, schools and health care facilities.
Further, they submit that unlicensed devices could potentially satisfy
a collection of communications needs that otherwise would probably
remain unmet if free and open consumer access to spectrum were not
available. In particular, U-NII proponents argue that existing wireless
allocations and wireline alternatives are not capable of providing the
types of services that are envisioned for U-NII devices. However,
parties with incumbent operations on this spectrum argue that the
record does not sufficiently demonstrate a need for this new unlicensed
spectrum.
3. The Commission finds that there is a need for unlicensed
wireless devices that will be capable of providing data rates as high
as 20 Mbits/sec to meet the multimedia communication requirements
envisioned by the U-NII proponents. To achieve these high data rates at
a reasonable cost, we believe that these devices must use broad
bandwidths of up to 20 megahertz each and therefore these devices must
have access to a substantial amount of spectrum to accommodate a number
of devices within the same area. Further, we believe that accessibility
to a substantial amount of spectrum is necessary for these devices to
develop and mature to their full potential. The record in this
proceeding supports the conclusion that recent developments in digital
technologies have greatly increased the requirements for transferring
large amounts of information and data in relatively short time frames
from one network or system to another. Specifically, we note that
computers have much faster central processing units and substantially
increased memory capabilities, which have increased the demand for
devices that can more quickly transfer larger amounts of data. Further,
digital equipment is capable of switching and directing large amounts
of information within networks. In addition to these technical advances
in hardware capability, there has been substantial growth in the use,
size, and complexity of digital networks as well. Many of these
networks are not only growing internally in the amount and types of
data they contain, but are also increasingly being used in combination
and interaction with other such networks.
4. The Commission finds that it is appropriate to provide spectrum
for wireless unlicensed digital network communications devices to meet
the growing communications demands of multimedia network systems
resulting from developments of new digital technologies. We believe
that this will facilitate rapid and inexpensive wireless access to
information resources by educational institutions, business, industry,
and consumers. We also believe that making this spectrum available for
U-NII devices will further the Commission's mandate, in Section 257(b)
of the Communications Act, to promote vigorous competition and
technological advancement.^{2 For example, allowing unlicensed
devices access to the 5.15-5.35 GHz and 5.725-5.825 GHz bands will
permit educational institutions to form inexpensive broadband wireless
computer networks between classrooms, thereby facilitating cost-
effective access to an array of multimedia services on the Internet. In
addition, unlicensed wireless networks could help improve the quality
and reduce the cost of medical care by allowing medical staff to obtain
on-the-spot patient data, X-rays, and medical charts.
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\2\ See 47 U.S.C. Sec. 257(b) (``the Commission shall promote
the policies and purposes of this Act promoting * * * vigorous
economic competition, technological advancement, and promotion of
the public interest, convenience, and necessity.'').
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5. The U-NII proponents support providing 350 megahertz of spectrum
in the 5 GHz range for these devices. They argue that 350 megahertz of
spectrum is needed to realize the full potential of today's broadband
information technologies and to encourage further innovation in the
delivery of new broadband digital communications. They claim that
providing unlicensed broadband devices access to this amount of
spectrum will meet the needs of multiple users at a common location and
should be sufficient to provide for open entry and equal access by all
unlicensed devices. Further, they claim that this amount of spectrum is
needed to provide an environment for robust development and growth, and
to permit the communications infrastructure to keep pace with future
computer advancements. U-NII proponents further argue that 350
megahertz is necessary for wide bandwidth U-NII networks because these
devices will have to share the spectrum with other users, such as
Mobile Satellite Service (``MSS''), Amateur, and Industrial,
Scientific, and Medical (``ISM''). Finally, U-NII proponents note that
the

[[Page 4651]]

proposed bands would align the spectrum available domestically for U-
NII devices with the spectrum available for European HIPERLAN systems.
6. The Commission continues to believe that it is appropriate to
provide unlicensed devices with access to a substantial amount of
spectrum at 5 GHz to accommodate the demand by educational, medical,
business, industrial and consumer users for broadband multimedia
communications. We are also cognizant, however, of the need for U-NII
devices to share the spectrum with primary services without causing
radio interference to those services. We believe that both of these
concerns can be accommodated by adopting appropriate technical
restrictions for U-NII devices, particularly transmit power and out-of-
band emission limits, and by avoiding portions of the spectrum where
sharing would be particularly difficult. Accordingly, we will make 300
megahertz of spectrum available for U-NII devices. Specifically, we are
providing U-NII devices access to three 100 megahertz bands at 5.15-
5.25 GHz, 5.25-5.35 GHz and 5.725-5.825 GHz. We recognize that this is
less than the 350 megahertz that was proposed, but we believe that this
amount of spectrum provides an appropriate balance between spectrum
sharing concerns and providing sufficient spectrum to satisfy the needs
of U-NII devices.
7. The Commission believes that 300 megahertz of spectrum will
provide sufficient spectrum to allow the full potential of broadband
multimedia technologies to be realized. This spectrum should provide
for open entry and equal access by all such devices and to allow access
to the spectrum by multiple users at a common location using a variety
of different devices. In this regard, we note that these broadband
devices each may require 20 to 25 megahertz channel bandwidth to
provide the high data rates envisioned by the petitioners. The
Commission also believes that the 300 megahertz of spectrum being
provided for U-NII devices avoids the use of spectrum that would be
particularly difficult to share with primary operations. It believes
that U-NII devices can share with proposed and existing services in
these bands including the MSS feeder link operations that may use the
5.15-5.25 GHz band. However, U-NII devices will not have access to
spectrum used by microwave landing systems (``MLS'') operated by the
Federal Aviation Administration in the 5.0-5.15 GHz band. Additionally,
U-NII devices will not have access to the 5.825-5.875 GHz band. This
will avoid potential interference with low power Part 15 hearing aid
devices and potential Intelligent Transportation Service operations in
the 5.850-5.875 GHz band, Fixed Satellite Service operations in the
5.850-5.925 GHz band, and amateur operations in the 5.650-5.725 and
5.825-5.925 GHz bands.
8. The 300 megahertz will be available to U-NII devices into three
bands of 100 megahertz each and will establish the following maximum U-
NII device power limits for each band: a) in the 5.15-5.25 GHz band,
the maximum peak transmitter output power limit will be 50 milliwatts
(``mW'') with up to 6 dBi antenna gain permitted, which equates to 200
m Equivalent Isotropically Radiated Power (``EIRP''); b) in the 5.25-
5.35 GHz band, the maximum peak transmitter output power limit will be
250 m with up to 6 db antenna gain permitted, which equates to 1 W
EIRP; and c) in the 5.725-5.825 GHz band, the maximum peak transmitter
output power limit will be 1 W with up to 6 db directional antenna gain
permitted, which equates to 4 W EIRP. To permit manufacturers
flexibility in designing U-NII equipment, we will permit the use of
higher directional antenna gain provided there is a corresponding
reduction in transmitter output power of one dB for every dB that the
directional antenna gain exceeds 6 db.
9. Additionally, in all three bands we are adopting peak power
spectral density limits to ensure that the power transmitted by U-NII
devices is evenly spread over the emission bandwidth. Specifically, we
will require U-NII devices to decrease transmitter output power
proportionally to any decrease in emission bandwidth below 20 MHz. For
U-NII devices operating with less than 20 megahertz of emission
bandwidth, we will limit power spectral density as follows: a) in the
5.15-5.25 GHz band, the transmitter peak power spectral density will be
2.5 m/MHz for an antenna gain of 6 db; b) in the 5.25-5.35 GHz band,
the transmitter peak power spectral density will be 12.5 m/MHz for an
antenna gain of 6 db; and c) in the 5.725-5.825 GHz band, the
transmitter peak power spectral density will be 50 m/MHz for an antenna
gain of 6 db.^{3 Further, we are adopting out-of-band emission
limits to protect operations outside the frequency bands of operation.
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\3\ These power spectral density requirements shall be measured
with a spectrum analyzer having a resolution bandwidth of 1
megahertz.
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10. Another goal in this proceeding is to provide rules which
permit maximum technical flexibility in the design and development of
U-NII devices capable of providing high data rate communications for a
variety of multimedia applications in a shared spectrum environment.
Therefore, the Commission declined to adopt specific channelization
requirements or a minimum modulation efficiency requirement.
Additionally, the Commission declined to adopt a spectrum sharing
etiquette for U-NII devices, nor will access to the 5 GHz bands by U-
NII devices be delayed until industry develops an etiquette. We believe
the minimal technical rules we are adopting, particularly the maximum
power limits discussed above, will generally allow for equal access and
sharing of these bands by U-NII devices and thereby accomplish the
intent of our proposed spectrum etiquette. Finally, our course of
action will not preclude industry from developing any voluntary
standards that it deems appropriate in the future.
11. Nevertheless, we are adopting a definition for the type of
devices that will be approved for this band and regulated under the
Part 15 rules. Specifically, the Part 15 rules will state that
unlicensed U-NII operations in the 5.15-5.35 GHz and 5.725-5.825 GHz
bands will be limited to wide bandwidth, high data rate digital
operations. Unlicensed devices accessing the 5.725-5.825 GHz band under
other Part 15 rules would not be subject to this definition. This will
give equipment manufacturers the flexibility to design and manufacture
a variety of broadband devices using different technologies and
modulation techniques, while ensuring that this spectrum is used for
its intended purpose. This definition will be enforced through the
Commission's equipment certification process.
12. The Commission also stated that the low power U-NII devices and
associated operations are more amenable to an unlicensed structure and
should be regulated under the Part 15 rules. Specifically, the rules
governing U-NII devices are similar in their low power and flexible
regulatory nature to those governing Part 15 devices. While some U-NII
devices in the upper band could have ranges of several kilometers, we
believe that most devices will have typical communication ranges of a
few meters to a few hundred meters. We also are unpersuaded by the
arguments that U-NII devices and associated operations need to be
licensed in order to provide regulatory parity with licensed services.
With regard to unlicensed U-NII devices that are used for community
networks in the upper band, we note that these will also be of very
limited range in comparison to the distances of

[[Page 4652]]

fixed point-to-point operations, will have to operate in a Part 15
sufferance mode and may not always be able to provide the same grade of
service as the licensed operations. That is, they will receive no
protection from other users of the spectrum. Finally, we believe that
the vast majority of U-NII devices will provide communications that are
complementary to, rather than competitive with, the licensed services.
13. We recognize that it is likely that two new uses of the 5.15-
5.25 GHz band, MSS feeder link operations and U-NII devices, will be
developing at the same time. In view of this fact, as indicated above,
we are adopting relatively conservative operating parameters for U-NII
devices utilizing this band. While we believe that this approach for U-
NII devices is technically conservative and will fully protect MSS
operations, we note that MSS interests have also suggested that we
limit the aggregate EIRP density of emissions from unlicensed devices
on the Earth's surface to the MSS satellite to 10 dBW/MHz.^{4 They
argue that MSS operations could begin to be affected when emissions
from unlicensed devices approach such a level. Alternatively, they
suggest that the Commission should review the technical parameters for
U-NII operations in a future rule making as such a limit is approached.
They state this would allow the Commission to review, for example,
whether some future reduction in permitted power of U-NII devices in
this band should be imposed. They state that all existing U-NII devices
would be grandfathered. We concur that such an approach would provide
further assurance that future potential conflicts between U-NII devices
and MSS operations are taken into account and that MSS operations are
protected appropriately. Accordingly, we invite MSS parties to monitor
the emissions from U-NII devices in the 5.15-5.25 GHz band and, if
emissions approach the 10 dBW/MHz level, to request that we initiate a
rule making to reassess the use of this band. At that time the
Commission could determine if future U-NII devices should be required
to operate at different technical standards. In this regard, we note
that it may also be appropriate to reassess the technical parameters
governing U-NII devices in light of second generation MSS systems. For
example, second generation MSS systems may be more sensitive and
therefore more susceptible to interference from U-NII devices. On the
other hand, if European HIPERLAN systems proliferate and operate at
more power than U-NII devices, second generation MSS systems may of
necessity be designed to be more robust and immune to interference from
such devices.
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\4\ This equates to a power flux density of -124 dBW/MHz/m\2\ at
a satellite with a slant range of 1414 km. See ex parte filing of
Airtouch, December 5, 1996; see also, Draft New Recommendation--
Power Flux Density Limits for Wireless Data Networks In The 5150-
5250 MHz Band Sharing Frequencies With Systems In The Fixed
Satellite Service, to ITU-R Working Party 4-9S, David E. Weinreich
of Globalstar, November 27, 1996.
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14. Finally, all U-NII devices will be required to be authorized
under the Commission's certification procedure. The Commission will
also require U-NII devices to comply with the RF Hazard requirements
set forth in Sections 1.1307(b), 1.1310, 2.1091, and 2.1093 of our
rules. For purposes of these rules, all U-NII equipment will be deemed
to operate in an ``uncontrolled'' environment. Any application for
equipment certification for these devices must contain a statement
confirming compliance with these requirements. Technical information
showing the basis for this statement must be submitted to the
Commission upon request.

Final Regulatory Flexibility Analysis

15. 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 Notice of Proposed Rule Making
(``NPRM''), ET Docket No. 96-102.^{5 The Commission sought written
public comment on the proposals in the NPRM, including the IRFA. The
Commission's Final Regulatory Flexibility Analysis (``FRFA'') in this
Report and Order conforms to the RFA, as amended by the Contract With
America Advancement Act of 1996 (``CWAAA''), Public Law No. 104-121,
110 Stat. 847 (1996).^{6
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\5\ See Notice of Proposed Rule Making, ET Docket No. 96-102, 11
FCC Rcd 7205 (1996).
\6\ See Subtitle II of the CWAAA is ``The Small Business
Regulatory Enforcement Fairness Act of 1996'' (``SBREFA''), codified
at 5 U.S.C. 603.
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16. Need for and Objectives of the Rule

By this action, the Commission provides 300 megahertz of spectrum
for a new category of unlicensed equipment called ``Unlicensed National
Information Infrastructure'' (``U-NII'') devices. These devices are
needed to provide high speed wireless digital communications on an
unlicensed basis. The Commission anticipates that these U-NII devices
will support the creation of new wireless LANs, campus networks,
community networks, and will facilitate wireless access to the National
Information Infrastructure. Additionally, the rules set forth herein
will foster the development of a broad range of new devices and
services that will stimulate economic development and the growth of new
industries. Finally, this action will promote the ability of U.S.
manufacturers to compete globally by enabling them to develop
unlicensed digital communications products for the world market.

17. Summary of Significant Issues Raised by the Public Comments in
Response to the IRFA

Five parties directly address the IRFA. In general, comments
support the provision of U-NII devices and argue that these operations
will benefit small entities. Several comments addressing the IRFA argue
that longer range U-NII devices will be needed to permit schools and
libraries to access information on the NII without having to pay
expensive monthly charges, such as long distance fees, to
telecommunications service providers. Further, these parties state that
longer range U-NII devices will not only benefit equipment
manufacturers, but also will benefit Internet service providers, small
entities in rural communities, and the up to 5 million small businesses
that offer products and services over the Internet.^{7 However,
regarding the manufacturers of U-NII devices, the Northern Amateur
Relay Council of California, Inc. (``NARCC'') argues that only
established major players in the microwave radio community will have
the talent and resources to bring U-NII devices to the market in a
timely manner. Therefore, NARCC contends that affording small companies
preferential treatment will not produce anything significant in the way
of a lower cost, more innovative product.^{8 Finally, Cylink, Inc.
opposes the adoption of an interim spectrum etiquette because small
entities would not have the resources to develop interim equipment and
to later redesign that equipment to comply with any formally adopted
spectrum etiquette.^{9
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\7\ See Wireless Field Test for Education Project; Fundamental
Research Corporation; Crystal Wind Communications, Inc.; and Jean
Armour Polly.
\8\ See Northern Amateur Relay Council of California, Inc.
Comments at 7.
\9\ See Cylink Reply at 17.
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18. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply

The RFA generally defines the term ``small business'' as having the
same meaning as the term ``small business concern'' under the Small
Business Act, 15 U.S.C. 632. Based on that statutory

[[Page 4653]]

provision, we will consider a small business concern one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
Small Business Administration (SBA). The RFA SBREFA provisions also
apply to nonprofit organizations and to governmental organizations.
Since the Regulatory Flexibility Act amendments were not in effect
until the record in this proceeding was closed, the Commission was
unable to request information regarding the number of small business
that might use this service and is unable at this time to determine the
number of small businesses that would be affected by this action. The
rules adopted in this Report and Order will apply to any entities
manufacturing U-NII devices to operate in the 5 GHz range which could
include computer manufacturers and unlicensed RF equipment
manufacturers. Although the rules do not directly affect entities that
purchase this equipment, comments contend that several million
entities, including consumers, schools, libraries, and small
businesses, could benefit from the use of these devices.
19. The rules adopted in this Report and Order will apply to
entities engaged in the manufacturing of U-NII devices. The Commission
has not developed a definition of small entities applicable to
unlicensed device manufacturers. Therefore, the applicable definition
of small entity is the definition under the Small Business
Administration (``SBA'') rules applicable to manufacturers of ``Radio
and Television Broadcasting and Communications Equipment'' and
``Computer Manufacturers.'' According to the SBA's regulations, an RF
manufacturer must have 750 or fewer employees in order to qualify as a
small business.^{10 Census Bureau data indicates that there are 858
companies in the United States that manufacture radio and television
broadcasting and communications equipment, and that 778 of these firms
have fewer than 750 employees and would be classified as small
entities.^{11 Further, according to SBA regulations, a computer
manufacturer must have 1,000 or fewer employees in order to qualify as
a small entity.^{12 Census Bureau data indicates that there are 716
firms that manufacture electronic computers and of those, 659 have
fewer than 500 employees and qualify as small entities.^{13 The
remaining 57 firms have 500 or more employees; however, we are unable
to determine how many of those have fewer than 1,000 employees and
therefore also qualify as small entities under the SBA definition. The
Census Bureau categories are very broad and specific figures are not
available on the number of these firms that will manufacture U-NII
devices; however, we acknowledge the likelihood that many of them will
be small businesses.
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\10\ See 13 CFR 121.201, Standard Industrial Classification
(SIC) Code 3663.
\11\ See U.S. Department of Commerce, 1992 Census of
Transportation, Communications and Utilities (issued May 1995), SIC
category 3663.
\12\ See 13 CFR 121.201 (SIC) Code 3571.
\13\ See U.S. Small Business Administration 1995 Economic Census
Industry and Enterprise Report, Table 3, SIC Code 3571, (Bureau of
the Census data adapted by the Office of Advocacy of the U.S. Small
Business Administration).
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20. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements

The rules adopted in this Report and Order will require U-NII
manufacturers to comply with the Commission's equipment certification
requirements set forth in Section 15.210(b), prior to marketing, and
the radio frequency hazard requirements set forth in Sections
1.1307(b), 1.1310, 2.1091, and 2.1093 of the rules. All equipment will
be deemed to operate in an ``uncontrolled'' environment. Any
application for equipment certification for these devices must contain
a statement confirming compliance with these requirements. Technical
information showing the basis for this statement must be submitted to
the Commission upon request. The equipment certification requirement is
necessary to ensure compliance with the Commission's rules and promote
electromagnetic compatibility. Further, compliance with the radio
frequency hazard requirements is necessary to protect the health of
individuals using the equipment. These requirements are typically
required for all unlicensed equipment. No further reporting or
recordkeeping requirements will be imposed. Therefore, the only
compliance costs likely to be incurred are costs necessary to ensure
that prototype devices comply with our equipment certification
requirements and radio frequency hazard requirements.
21. Skills of an application examiner, radio technician or engineer
will be needed to meet the requirements. If a device is not
categorically excluded, the manufacturer of the device must make a
determination of whether the device will comply with the RF radiation
limits. This study can be done by calculation or measurement, depending
upon the situation. In many cases the studies can be done by a radio
technician or engineer. Certification applications are usually done by
application examiners.

22. Significant Alternatives and Steps Taken By Agency To Minimize
Significant Economic Impact on a Substantial Number of Small Entities
Consistent With Stated Objectives

Based on comments received in response to the NPRM, the Commission
considered several significant alternatives. For example, although the
NPRM proposed to make 350 megahertz available for U-NII devices,
parties with incumbent or future operations request that less spectrum
be made available in order to protect their interests. Specifically,
parties with mobile satellite service (``MSS'') interests argue that U-
NII devices should not be permitted in the 5.15-5.25 GHz band because
of potential use of this band by MSS feeder links.^{14 Further,
amateur radio parties oppose U-NII operations in the 5.725-5.875 GHz
band because of amateur operations in this spectrum.^{15 Resound
Corporation (``Resound'') and the Federal Highway Administration
(``FHWA'') oppose U-NII operations in the 5.850-5.875 GHz band because
of future plans to use this spectrum.^{16 After considering these
alternatives, the Commission concluded that 300 megahertz of U-NII
spectrum at 5.15-5.35 GHz and 5.725-5.825 GHz is appropriate for these
devices to operate without interfering with incumbent and potential
operations. This reduction from the proposed U-NII spectrum is
necessary to protect Part 15 hearing assistance devices, potential
intelligent transportation system operations, and amateur operations in
the 5.825-5.875 GHz band from interference. This action should not have
a negative impact on small U-NII businesses and will protect incumbent
and proposed spectrum users which may be small businesses.
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\14\ See e.g., Loral/Qualcomm Licensee, Inc. Comments at 4.
\15\ See e.g., Amateur Radio Relay League, Inc. Comments at 5.
\16\ See Resound Comments at 7 and FHWA Comments at 2.
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23. Additionally, various parties recommend different technical
standards for U-NII devices. For example, some U-NII proponents support
increasing the proposed power limit and permitting unrestricted antenna
gain for U-NII devices in order to accomplish longer range
communications.^{17 However, AT&T and point-to-point microwave
parties oppose longer range use of U-NII devices and support short
range, low

[[Page 4654]]

power operations.^{18 The Commission has determined that U-NII
devices should be governed by minimal technical rules which permit
maximum flexibility in the way these devices are implemented.
Specifically, the Commission has concluded that an increase in the
power limits proposed in the NPRM is supported by new material in the
record in this proceeding, but does not believe unrestricted antenna
gain should be permitted due to interference concerns. The Commission
has determined that the public interest is best serviced by increasing
the maximum peak power limit as follows: 50 mW peak transmitter output
power with up to 6 dBi antenna gain (equates to 200 mW EIRP) permitted
in the 5.15-5.25 GHz band; 250 mW peak transmitter output power with up
to 6 dBi antenna gain (equates to 1 W EIRP) permitted in the 5.25-5.35
GHz band; and 1 W peak transmitter output power with up to 6 dBi
antenna gain (equates to 4 W EIRP) permitted in the 5.725-5.825 GHz
band. In addition, to permit manufacturers flexibility in designing U-
NII equipment, the Commission will permit the use of higher directional
antenna gain provided there is a corresponding reduction in transmitter
output power of one dB for every dB that the directional antenna gain
exceeds 6 dBi. Also, U-NII use of the 5.15-5.25 GHz band is restricted
to indoor operations only. Further, this action adopts a power spectral
density (``PSD'') requirement for U-NII devices that would require that
the maximum power be spread across a bandwidth of at least 20
megahertz. This PSD requirement will ensure that U-NII devices spread
its signal energy evenly across the band and encourages the use of this
spectrum by wideband high data rate applications, but permits non-
wideband operations at reduced powers. These increased power limits
will permit U-NII equipment manufacturers, many of which may be small
businesses, more flexibility to develop products to meet market
demands.
---------------------------------------------------------------------------

\17\ See e.g., Apple Computer, Inc. Comments at 8.
\18\ See e.g., AT&T Comments at 3; Pacific Telesis Group
Comments at 4; and Telecommunications Industry Association, Fixed
Point-to-Point Communications Section Comments at 4.
---------------------------------------------------------------------------

24. Further, the Commission considered several alternatives from
the comments regarding a spectrum etiquette for U-NII devices. Although
some parties support the proposed interim ``listen-before-talk''
(``LBT'') spectrum etiquette until industry can develop a formal
spectrum etiquette,^{19 others oppose the interim etiquette because
it would limit the flexibility of U-NII devices to use different
technologies.^{20 Further, several U-NII proponents support the
adoption of an industry developed spectrum etiquette to govern
unlicensed use of this spectrum.^{21 Metricom, however, suggests
that rather than adopting a complex spectrum etiquette, U-NII devices
should be required to use spread spectrum techniques.^{22 The
Commission has now concluded that the proposed LBT spectrum etiquette
could delay deployment of U-NII devices and hinder innovation in the
development of these devices. Rather, the Commission has concluded that
simple technical rules, such as PSD limits and out-of-band emission
requirements, should be sufficient to ensure spectrum sharing between
incumbent operations and new U-NII devices. The Commission declined to
adopt a spectrum etiquette, any channelization plan, or a minimum
modulation efficiency requirement because such requirements may
preclude certain technologies or some of the many different concepts
envisioned by U-NII proponents. We believe this action will benefit
small entities by permitting these entities to develop innovative
equipment to meet market demands without having to follow protocols
governing use of the spectrum.
---------------------------------------------------------------------------

\19\ See e.g., Consumer Electronics Manufacturers' Association
Comments at 4.
\20\ See e.g., Hewlett-Packard Comments at 3.
\21\ See e.g., WINForum comments at 21.
\22\ See Metricom Reply at 10.
---------------------------------------------------------------------------

25. Finally, we proposed to establish parameters in the rules
(``safe harbor''), under which U-NII devices complying with these
parameters could operate without being considered sources of harmful
interference. Incumbent parties oppose ``safe harbor'' rules or any
action that would provide unlicensed devices addition spectrum
rights.^{23 However, U-NII proponents request that these devices be
protected either by ``safe harbor'' rules or by providing a primary
allocation status for the unlicensed operations.^{24 After
considering the alternatives, the Commission concluded that ``safe
harbor'' rules are not necessary at this time to provide assurances to
assurance to U-NII operators that their communications will not be
prohibited. Rather, the Commission invited MSS parties to monitor the
emissions from U-NII devices in the 5.15-5.25 GHz band and if emissions
approach the 10 dBW/MHz level to request that we reassess the use of
this band through future rule making.^{25 At that time the
Commission could determine if future U-NII devices should be required
to operate at different technical standards. This approach will provide
both MSS feeder link and U-NII operations with an appropriate level of
protection and assurance for the continuation of their operations.
While, the Commission is confident that an interference situation will
not arise, this approach will permit it to develop regulatory solutions
that will adequately protect the investments of both services, if such
a situation were to develop.
---------------------------------------------------------------------------

\23\ See e.g., Loral/Qualcomm Licensee, Inc. Comments at 15;
Metricom Reply at 7; and San Bernardino Microwave Society Reply at
3.
\24\ See e.g., Apple Computer Comments at 27, WINForum Reply at
23, and Consumer Electronics Manufacturers' Association Comments at
7.
\25\ We also note that it may also be appropriate to reassess
the technical parameters governing U-NII devices in light of second
generation MSS systems. For example, second generation MSS systems
may be more sensitive and therefore more susceptible to interference
from U-NII devices. On the other hand, if European HIPERLAN systems
proliferate and operate at more power than U-NII devices, second
generation MSS systems may be required to more robust and immune to
interference from such devices.
---------------------------------------------------------------------------

26. Report to Congress

The Commission shall send a copy of this Final Regulatory
Flexibility Analysis, along with this 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). A copy of this FRFA will also be
published in the Federal Register.

List of Subjects

47 CFR Part 1

Administrative practice and procedure.

47 CFR Part 2

Communications equipment, Radio.

47 CFR Part 15

Radio.

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

Rules Changes

Parts 1, 2 and 15 of title 47 of the Code of Federal Regulations
are amended as follows:

PART 1--PRACTICE AND PROCEDURE

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

Authority: 15 U.S.C. 79 et seq., and 47 U.S.C. 151, 154(i),
154(j), and 303(r).

2. Section 1.1307 is amended by revising paragraph (b)(2) to read
as follows:

[[Page 4655]]

Sec. 1.1307 Actions which may have a significant environmental effect,
for which Environmental Assessments (EAs) must be prepared.

* * * * *
(b) * * *
(2) Mobile and portable transmitting devices that operate in the
Cellular Radiotelephone Service, the Personal Communications Services
(PCS), the Satellite Communications Services, the Maritime Services
(ship earth stations only) and covered Specialized Mobile Radio Service
providers authorized under subpart H of part 22, part 24, part 25, part
80, and part 90 of this chapter are subject to routine environmental
evaluation for RF exposure prior to equipment authorization or use, as
specified in Secs. 2.1091 and 2.1093 of this chapter. All unlicensed
PCS, unlicensed NII and millimeter wave devices are also subject to
routine environmental evaluation for RF exposure prior to equipment
authorization or use, as specified in Secs. 15.253(f), 15.255(g),
15.319(i), and 15.407(f) of this chapter. All other mobile, portable,
and unlicensed transmitting devices are categorically excluded from
routine environmental evaluation for RF exposure under Secs. 2.1091 and
2.1093 of this chapter except as specified in paragraphs (c) and (d) of
this section.
* * * * *

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: Sec. 4, 302, 303 and 307 of the Communications Act of
1934, as amended, 47 U.S.C. 154, 302, 303 and 307, unless otherwise
noted.

2. Section 2.1091 is amended by revising paragraphs (c) and (d)
introductory text to read as follows:

Sec. 2.1091 Radiofrequency radiation exposure evaluation: mobile and
unlicensed devices.

* * * * *
(c) Mobile devices that operate in the Cellular Radiotelephone
Service, the Personal Communications Services, the Satellite
Communications Services, the Maritime Services and the Specialized
Mobile Radio Service authorized under subpart H of part 22 of this
chapter, part 24 of this chapter, part 25 of this chapter, part 80 of
this chapter (ship earth station devices only) and part 90 of this
chapter (``covered'' SMR devices only, as defined in the note to Table
1 of Sec. 1.1307(b)(1) of this chapter), are subject to routine
environmental evaluation for RF exposure prior to equipment
authorization or use if their effective radiated power (ERP) is 1.5
watts or more. Unlicensed personal communications service, unlicensed
millimeter wave devices and unlicensed NII devices authorized under
Sec. 15.253, Sec. 15.255 and subparts D and E of part 15 of this
chapter are also subject to routine environmental evaluation for RF
exposure prior to equipment authorization or use, regardless of their
power used, unless they meet the definition of a portable device as
specified in Sec. 2.1093(b). All other mobile and unlicensed
transmitting devices are categorically excluded from routine
environmental evaluation for RF exposure prior to equipment
authorization, except as specified in Secs. 1.1307(c) and 1.1307(d) of
this chapter. Applications for equipment authorization of mobile and
unlicensed transmitting devices subject to routine environmental
evaluation must contain a statement confirming compliance with the
limits specified in paragraph (d) of this section as part of their
application. Technical information showing the basis for this statement
must be submitted to the Commission upon request.
(d) The limits to be used for evaluation are specified in
Sec. 1.1310 of this chapter. All unlicensed personal communications
service (PCS) devices and unlicensed NII devices shall be subject to
the limits for general population/uncontrolled exposure.
* * * * *
3. Section 2.1093(c) is revised to read as follows:

Sec. 2.1093 Radiofrequency radiation exposure evaluation: portable
devices.

* * * * *
(c) Portable devices that operate in the Cellular Radiotelephone
Service, the Personal Communications Services, the Satellite
Communications services, the Maritime Services and the Specialized
Mobile Radio Service authorized under subpart H of part 22 of this
chapter, part 24 of this chapter, part 25 of this chapter, part 80 of
this chapter (ship earth station devices only), part 90 of this chapter
(``covered'' SMR devices only, as defined in the note to Table 1 of
Sec. 1.1307(b)(1) of this chapter), and portable unlicensed personal
communication service, unlicensed NII devices and millimeter wave
devices authorized under Sec. 15.253, Sec. 15.255 or subparts D and E
of part 15 of this chapter are subject to routine environmental
evaluation for RF exposure prior to equipment authorization or use. All
other portable transmitting devices are categorically excluded from
routine environmental evaluation for RF exposure prior to equipment
authorization, except as specified in Secs. 1.1307(c) and 1.1307(d) of
this chapter. Applications for equipment authorization of portable
transmitting devices subject to routine environmental evaluation must
contain a statement confirming compliance with the limits specified in
paragraph (d) of this section as part of their application. Technical
information showing the basis for this statement must be submitted to
the Commission upon request.
* * * * *

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 15.17(a) is revised to read as follows:

Sec. 15.17 Susceptibility to interference.

(a) Parties responsible for equipment compliance are advised to
consider the proximity and the high power of non-Government licensed
radio stations, such as broadcast, amateur, land mobile, and non-
geostationary mobile satellite feeder link earth stations, and of U.S.
Government radio stations, which could include high-powered radar
systems, when choosing operating frequencies during the design of their
equipment so as to reduce the susceptibility for receiving harmful
interference. Information on non-Government use of the spectrum can be
obtained by consulting the Table of Frequency Allocations in Sec. 2.106
of this chapter.
* * * * *
3. Section 15.205(a) is amended in the table by removing the entry
for 4.5-5.25 in the GHz column and adding a new entry for 4.5-5.15 in
its place to read as follows:

Sec. 15.205 Restricted bands of operation.

(a) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
MHz MHz MHz GHz
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *................ * * * * * * * * * * 4.5-5.15

[[Page 4656]]

* * * * * * * * * * * * * * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
4. A new Subpart E is added to Part 15 to read as follows:

Subpart E--Unlicensed National Information Infrastructure Devices

Sec.
15.401 Scope.
15.403 Definitions.
15.405 Cross reference.
15.407 General technical requirements.

Subpart E--Unlicensed National Information Infrastructure Devices

Sec. 15.401 Scope.

This subpart sets out the regulations for unlicensed National
Information Infrastructure (U-NII) devices operating in the 5.15--5.35
GHz and 5.725--5.825 GHz bands.

Sec. 15.403 Definitions.

(a) U-NII devices (Unlicensed). Intentional radiators operating in
the frequency bands 5.15--5.35 GHz and 5.725--5.825 GHz that provide a
wide array of wideband, high data rate, digital, mobile and fixed
communications for individuals, businesses, and institutions.
(b) Peak transmit power. The peak power output as measured over an
interval of time equal to the frame rate or transmission burst of the
device under all conditions of modulation. Usually this parameter is
measured as a conducted emission by direct connection of a calibrated
test instrument to the equipment under test. If the device cannot be
connected directly, alternative techniques acceptable to the Commission
may be used.

Sec. 15.405 Cross reference.

(a) The provisions of subparts A, B, and C of this part apply to
unlicensed U-NII devices, except where specific provisions are
contained in this subpart E. Manufacturers should note that this
includes the provisions of Secs. 15.203 and 15.205.
(b) The requirements of this subpart E apply only to the radio
transmitter contained in the U-NII device. Other aspects of the
operation of a U-NII device may be subject to requirements contained
elsewhere in this chapter. In particular, a U-NII device that includes
digital circuitry not directly associated with the radio transmitter
also is subject to the requirements for unintentional radiators in
subpart B of this part.

Sec. 15.407 General technical requirements.

(a) Power limits:
(1) For the band 5.15-5.25 GHz, the peak transmit power over the
frequency band of operation shall not exceed 50 mW. In addition, the
peak power spectral density shall not exceed 2.5 mW/MHz. If
transmitting antennas of directional gain greater than 6 dBi are used,
both the peak transmit power and the peak power spectral density shall
be reduced by the amount in dB that the directional gain of the antenna
exceeds 6 dBi.
(2) For the band 5.25-5.35 GHz, the peak transmit power over the
frequency band of operation shall not exceed 250 mW. In addition, the
peak power spectral density shall not exceed 12.5 mW/MHz. If
transmitting antennas of directional gain greater than 6 dBi are used,
both the peak transmit power and the peak power spectral density shall
be reduced by the amount in dB that the directional gain of the antenna
exceeds 6 dBi.
(3) For the band 5.725-5.825 GHz, the peak transmit power over the
frequency band of operation shall not exceed 1 W. In addition, the peak
power spectral density shall not exceed 50 mW/MHz. If transmitting
antennas of directional gain greater than 6 dBi are used, both the peak
transmit power and the peak power spectral density shall be reduced by
the amount in dB that the directional gain of the antenna exceeds 6
dBi.
(4) The peak transmit power must be measured over any interval of
continuous transmission using instrumentation calibrated in terms of an
rms-equivalent voltage. The measurement results shall be properly
adjusted for any instrument limitations, such as detector response
times, limited resolution bandwidth capability when compared to the
emission bandwidth, sensitivity, etc., so as to obtain a true peak
measurement for the emission in question over the full bandwidth of the
channel.
(5) The peak power spectral density is measured as a conducted
emission by direct connection of a calibrated test instrument to the
equipment under test. Measurements are made using a resolution
bandwidth of 1 MHz. If the device can not be connected directly,
alternative techniques acceptable to the Commission may be used.
(b) The peak levels of emissions outside of the frequency band of
operation shall be attenuated below the maximum peak power spectral
density contained within the band of operation in accordance with the
following limits:
(1) For transmitters operating in the band 5.15-5.25 GHz: all
emissions within the frequency range 5.14-5.15 GHz and 5.35-5.36 GHz
must be attenuated by a factor of at least 27 dB; within the frequency
range outside these bands by a factor of at least 37 dB.
(2) For transmitters operating in the 5.25-5.35 GHz band: all
emissions within the frequency range from the band edge to 10 MHz above
or below the band edge must be attenuated by a factor of at least 34
dB; for frequencies 10 MHz or greater above or below the band edge by a
factor of at least 44 dB.
(3) For transmitters operating in the 5.725-5.825 GHz band: all
emissions within the frequency range from the band edge to 10 MHz above
or below the band edge must be attenuated by a factor of at least 40
dB; for frequencies 10 MHz or greater above or below the band edge by a
factor of at least 50 dB.
(4) The above emission measurements shall be performed using a
minimum resolution bandwidth of 1 MHz. A lower resolution bandwidth may
be employed near the band edge, when necessary, provided the measured
energy is integrated to show the total power over 1 MHz. Regardless of
the attenuation levels shown above, emissions outside the frequency
range of operation do not need to be attenuated below the general
radiated emission limits in Sec. 15.209.
(5) Unwanted emissions must comply with the general field strength
limits set forth in Sec. 15.209. Further, any U-NII devices using an AC
power line are required to comply also with the conducted limits set
forth in Sec. 15.207.
(6) The provisions of Sec. 15.205 of this part apply to intentional
radiators operating under this section.
(7) When measuring the emission limits, the nominal carrier
frequency shall be adjusted as close to the upper and lower frequency
block edges as the design of the equipment permits.
(c) The device shall automatically discontinue transmission in case
of either absence of information to transmit or operational failure.
These provisions are not intended to preclude the transmission of
control or signalling information or the use of repetitive codes used
by certain digital technologies to complete frame or burst intervals.
(d) Any U-NII device that operates in the 5.15-5.25 GHz band shall
use a

[[Page 4657]]

transmitting antenna that is an integral part of the device.
(e) Within the 5.15-5.25 GHz band, U-NII devices will be restricted
to indoor operations to reduce any potential for harmful interference
to co-channel MSS operations.
(f) U-NII devices are subject to the radio frequency radiation
exposure requirements specified in Secs. 1.1307(b), 2.1091 and 2.1093
of this chapter, as appropriate. All equipment shall be considered to
operate in a ``general population/uncontrolled'' environment.
Applications for equipment authorization of devices operating under
this section must contain a statement confirming compliance with these
requirements for both fundamental emissions and unwanted emissions.
Technical information showing the basis for this statement must be
submitted to the Commission upon request.
(g) The frequency stability of the carrier frequency of an
intentional radiator operating under this section shall be
10 ppm over 10 milliseconds. The frequency stability shall
be maintained over a temperature variation of -20 degrees to +50
degrees Celsius at normal supply voltage, and over a variation in the
primary supply voltage of 85 percent to 115 percent of the rated supply
voltage at a temperature of +20 degrees Celsius. For equipment that is
capable of operating only from a battery, the frequency stability tests
shall be performed using a new battery without any further requirement
to vary supply voltage.

[FR Doc. 97-2007 Filed 1-30-97; 8:45 am]
BILLING CODE 6712-01-P}}}}}}}}}}}}}}}}}}}}}}}}}