[Federal Register Volume 62, Number 155 (Tuesday, August 12, 1997)]
[Rules and Regulations]
[Pages 43116-43122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21180]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 15, and 97

[ET Docket No. 97-124; FCC 97-153]


Use of Radio Frequencies Above 40 GHz for New Radio Applications

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission adopts a Second Report and Order designating 
the frequency spectrum band between 47.2 and 48.2 GHz for commercial 
use on a licensed basis. The Commission decides to permit fixed, fixed-
satellite, and mobile uses consistent with the Table of Frequency 
Allocations governing the band. The Commission also decides to define 
service rules in a future rulemaking, based on the dominant use of the 
spectrum, and finds that the most likely dominant use will be fixed, 
point-to-multipoint services delivered through the deployment of fixed 
platforms located in the stratosphere. The Commission adopts the 
proposal to license operations on an area-wide basis and determines to 
divide the spectrum into five pairs of license blocks of 200 megahertz 
each pair, with each pair separated by 500 megahertz of spectrum. These 
actions are taken to promote the commercial availability of millimeter 
wave

[[Page 43117]]

technology in providing the potentially valuable uses of licensed 
spectrum above 40 GHz.

EFFECTIVE DATE: October 14, 1997.

ADDRESSES: Room 7002, 2025 M Street, NW., Federal Communications 
Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Barbara Reideler, Policy Division, 
Wireless Telecommunications Bureau, (202) 418-1310.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Second Report and 
Order in ET Docket No. 94-124, FCC 97-153, adopted May 2, 1997, and 
released July 21, 1997. The complete text of this decision 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 copy contractor, 
International Transcription Service, (202) 857-3800, 1231 20th Street, 
NW., Washington, DC 20036.

Synopsis of Second Report and Order

    1. This action is part of an ongoing proceeding to open for 
commercial development portions of the spectrum known as the millimeter 
wave bands above 40 GHz.1 The Commission initiated this 
proceeding by Notice of Proposed Rulemaking (First NPRM) in 1994 (59 FR 
61304, March 1, 1995).
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    \1\ The term ``millimeter wave'' refers to the fact that the 
wavelength of radio signals for frequencies between 30 GHz and 300 
GHz ranges from 10 millimeters down to 1 millimeter.
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    2. In this Second Report and Order (Second R&O), the Commission 
adopts the proposal contained in the First NPRM to designate for 
commercial use on a licensed basis the 47.4-48.2 GHz band, together 
with the 47.2-47.4 GHz band made available in the First Report and 
Order (61 FR 14041, March 29, 1996) for a total of one gigahertz of 
spectrum (47 GHz band). Further, the Commission adopts proposals to 
establish a licensing framework that permit the full range of services 
allowed under the Table of Frequency Allocations (Allocation Table) in 
our rules 2 and to define service rules based on our best 
judgment of what the dominant use of the spectrum is likely to be. The 
Commission finds that the most likely dominant use will be fixed, 
point-to-multipoint services delivered through the deployment of fixed 
platforms located in the stratosphere, without foreclosing the other 
uses under the Allocation Table. The Commission adopts the proposal to 
license operations on an area-wide basis and we determine to divide the 
spectrum into five pairs of license blocks of 100 megahertz each, with 
each pair separated by 500 megahertz of spectrum.
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    \2\  47 CFR 2.106.
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    3. The Commission concludes that opening this spectrum for 
commercial licensed use under our licensing framework will stimulate 
the development of millimeter wave technology to provide new wireless 
communications services that are in demand by consumers. The broad 
degree of flexibility regarding the permissible range of services will 
ensure the ability of carriers to respond to the market, will promote 
competition, and will provide for the most efficient and effective 
services. The Commission will initiate a proceeding in the near future 
to propose service rules in order to implement our determinations in 
this Second R&O for the licensing of the 47 GHz band. The proposed 
rules will include proposals relating to auctions. The Commission also 
defers to future proceedings our consideration of the additional 
frequency bands above 40 GHz that we proposed for licensed use in the 
First NPRM, as well as the additional bands proposed for unlicensed use 
that were not considered in the First Report and Order.
    4. In this Second Report and Order, the Commission limits 
consideration of the bands we proposed to designate for commercial, 
licensed use in the First NPRM to the 47 GHz band. This band consists 
of the 47.4-48.2 GHz segment originally set forth in the First NPRM and 
the adjoining 47.2-47.4 GHz segment made available for such use in the 
First Report and Order. The Commission did not propose any changes to 
this band in the 36-51 GHz Band Plan NPRM in IB Docket No. 97-95 (62 FR 
16129, April 4, 1997) where we designated the band for predominantly 
wireless terrestrial services. The Commission found that comments had 
already been received on this band segment in response to the First 
NPRM on which we could proceed to take action without delay. Thus, the 
Commission's proposals in the First NPRM as they apply to the 47 GHz 
band are ripe for disposition at this time.
    5. The comments filed in this docket consist of two sets, the 
comments filed in direct response to the Commission's proposals in the 
First NPRM (to the extent those comments are pertinent to the issues we 
resolve in this Second Report Order), and the comments filed in 
response to the respective public notices accepting the Request To 
Establish New GSTS Service, Additional Comments, and Petition for 
Rulemaking (hereinafter cited as Request and Petition) and the 
Application, filed by Sky Station International, Inc. (Sky Station) on 
March 20, 1996, in this docket. Both the filings by Sky Station and the 
responsive pleadings concern the Commission's proposals to license the 
47 GHz band, but were filed after the comment period to the First NPRM 
closed and raise issues not addressed in our proposals. Because the Sky 
Station filings and responsive pleadings are pertinent to the issues 
before us, the Commission has decided to take these filings and 
pleadings into account in connection with the decisions we make in this 
Second Report and Order.
    6. In the Request and Petition, Sky Station requests that the 
Commission authorize use of the spectrum at 47.2-47.5 GHz and 47.9-48.2 
GHz for a new commercial, licensed service described as the Global 
Stratospheric Telecommunications Service (GSTS), and that the 
Commission adopt service rules either in this proceeding or a separate 
rulemaking to implement the service. Sky Station filed concurrently an 
application (hereinafter cited as Application) for authorization to 
construct and operate its proposed service to provide a global network 
of wireless communications services, subject to amendment pending the 
outcome of its Request and Petition. A public notice was issued 
accepting the Application for filing and accepting petitions, 
oppositions, and other pleadings filed in response to that public 
notice. (FCC Public Notice, Sky Station International, Inc., File No. 
96-SAT-P/LA-96, released April 22, 1996.) Comments to the request and 
petition, and to the Application, are listed in Appendix A in the full 
text of this decision.
    7. Sky Station, in its Request and Petition, states that it has 
developed a new technology for delivery of a new paradigm of wireless 
telecommunications services that it identifies as GSTS, to compete with 
existing satellite and terrestrial wireless services. Sky Station 
explains that GSTS is based on the concept of using a network of 
platforms in the stratosphere that are kept aloft in fixed positions by 
hydrogen or helium elements at an altitude of 30 kilometers, or 18 
miles, above 99 percent of the atmosphere. Unlike satellite services, 
these platforms are not launched into orbit in space, but rather are 
lifted by balloons similar to dirigibles to an area in the stratosphere 
above flight patterns and below satellite orbits.
    8. In the request and petition, Sky Station argues that opening up 
a portion of the 47 GHz band for the proposed system will promote the 
policy goals we established in the First NPRM and meet

[[Page 43118]]

numerous environmental, economic, and social public interest 
objectives. It requests that the Commission adopt proposed technical, 
financial, implementation, and licensing standards that encourage 
commercial development of the unused 47 GHz band and promote 
competition consistent with the flexible framework proposed in the 
First NPRM. The service rules advocated by Sky Station in its Request 
and Petition would enable all qualified applicants to construct and 
operate their own systems as part of the entire GSTS, and the GSTS 
would be designed to cover 80 percent of the world's population by a 
certain date.
    9. Sky Station requests that the Commission dedicate exclusively 
for GSTS that portion at 47.2-47.5 GHz for earth-to-stratosphere 
communications and 47.9-48.2 GHz for stratosphere-to-earth 
communications. Sky Station argues that its service is covered by the 
Allocation Table, which provides for fixed and mobile service. However, 
it requests that the Commission modify the Table to permit only fixed 
and mobile GSTS stations to operate in the two portions of the 47 GHz 
band, inasmuch as it contends that the service cannot share co-channel 
frequencies with conventional fixed, mobile, or fixed satellite 
services. It also requests that International footnote 901 be modified, 
as well as U.S. footnote 297, in order to eliminate sharing with 
broadcasting-satellite service feeder links, which also could interfere 
with GSTS and could operate elsewhere.
    10. Sky Station requests authorization in the Application to 
implement its proposed service. It argues that the Application 
demonstrates that Sky Station is in compliance with the technical, 
financial, licensing, and other regulations it has requested we adopt 
in the Request and Petition. Sky Station reserves the right to amend 
this application to comply with any future rules the Commission may 
adopt for its proposed service. The Application includes a request for 
a pioneer preference in the event that mutually-exclusive applications 
are filed.
    11. On December 24, 1996, Sky Station submitted further comments to 
clarify its request and petition. Sky Station argues that the 
Commission should grant its alternative request in the request and 
petition to treat the filing as additional comments in response to the 
First NPRM, and that a new rulemaking proceeding to adopt separate 
service rules for its proposed stratospheric service is neither 
necessary nor appropriate. It requests that the Commission hold the 
Application in abeyance. Sky Station argues that the Commission's 
proposal for the commercial, licensed use of the 47 GHz band has been 
open for comment since the First NPRM and that its comments on the 
pending issues together with the other comments in this docket provide 
an adequate record on which to resolve the issues to be determined in 
this Order.
    12. In its further comments, Sky Station argues that its proposed 
service is a fixed terrestrial service and that we need not allocate 
the requested spectrum to a new global stratospheric service, apart 
from other fixed service millimeter wave uses. It argues that a generic 
terrestrial allocation for a flexible fixed (non-satellite) service 
would suffice, so that it would compete with other aspiring fixed 
service providers in auctions for this spectrum. Sky Station argues 
that its proposed operations generally fit well within the service 
rules the Commission proposed in the First NPRM to adopt for licensed 
services above 40 GHz, including the 47 GHz band, which rules are now 
contained in Part 101. (See Reorganization and Revision of Parts 1, 2, 
21, and 94 of the Rules To Establish a New Part 101 Governing 
Terrestrial Microwave Fixed Radio Services, WT Docket No. 94-148, 
Amendment of Part 21 of the Commission's Rules for the Domestic Public 
Fixed Radio Services, CC Docket No. 93-2, and McCaw Cellular 
Communications, Inc., Petition for Rulemaking, RM-7681, Report and 
Order, 61 FR 26670, May 28, 1996.) Sky Station submits modifications to 
the proposed rules that it argues are minor but necessary to 
accommodate its proposed service in the 47 GHz band, including 
segmentation of the band to prevent sharing with other services, 
license blocks of 100 megahertz paired blocks separated by 500 
megahertz, and larger area-wide licensing, among other operating and 
technical rules.
    13. The Commission grants Sky Station's alternative request to 
accept its request and petition as late-filed comments in this 
proceeding. In addition, the Commission will also accept the 
Application as part of the comments, inasmuch as Sky Station 
acknowledges that the Application is filed preliminarily and is 
intended to illustrate the service it could provide under its proposals 
in the request and petition. As discussed more fully in the text of 
this Second R&O, petitioners filing in response to request and petition 
do not raise issues that prevent the Commission from including the Sky 
Station filings for consideration together with other comments filed in 
response to the First NPRM to open the 47 GHz band for commercial, 
licensed use.
    14. Fixed Point-to-Point Communications Section, Network Equipment 
Division of the Telecommunications Industry Association (TIA), Motorola 
Satellite Communications, Inc. (Motorola), and Harris Corporation-
Farinon Division (Harris) argue that the nature of Sky Station's 
service proposal as terrestrial or satellite service is not clear, and 
that it does not fit existing definitions. They request that the 
Commission establish a separate allocation category for any airborne 
terrestrial wireless communications service.
    15. TIA argues that the nature of Sky Station's proposed service 
must be identified to determine how to classify the service and find 
the appropriate regulatory niche before we may adopt its proposals. TIA 
contends that the filings are contradictory regarding whether the 
service is terrestrial or satellite, fixed or mobile. It contends that 
the service does not fit the international service definition that 
defines Radio-Relay Systems to be fixed services operating via 
terrestrial stations. TIA argues that the proposed service would be 
similar to a satellite based system as an interference source, that the 
platform qualifies as a Space Station under the definitions, and that 
it should be considered to be a Mobile-Satellite System.
    16. TIA proposes that the Commission and the 1997 World Radio 
Conference (WRC-97) establish a new service category for any airborne 
service operating in the stratosphere or below, apart from aviation 
services, that would be defined as a Global Airborne Telecommunications 
Service. The category would stimulate innovative airborne services and 
would be consistent with allocation requirements. Harris agrees that 
the nature of the service should be clarified and that the Global 
Airborne category might be the solution to accommodating various 
airborne services that will have characteristics similar to the Sky 
Station proposal.
    17. Motorola also argues that the proposed service requires a new 
allocation. It contends that terrestrial fixed and mobile service 
allocations do not contemplate stratosphere-to-earth and earth-to-
stratosphere communications provided by means of stratospheric balloon-
supported platforms. It asserts that the platforms should be 
disqualified as fixed or mobile terrestrial services because of their 
placement above the earth's atmosphere, and should instead be defined 
as spacecraft. Motorola further argues that the platforms would lie 
within sovereign airspace, and that

[[Page 43119]]

countries may view the proposed service as an infringement of their 
rights. It contends that we should refrain from pursuing an 
international allocation for the proposed service.
    18. In the 36-51 GHz Band Plan NPRM, the Commission determined that 
Sky Station's proposed use of spectrum in the 47 GHz band for its 
stratospheric radio relay repeater system is considered to be a 
terrestrial service. In its Further Comments, Sky Station has clarified 
its previous filings, which TIA points out are contradictory, in order 
to demonstrate that the proposed service is a terrestrial, fixed 
operation. Users permanently mount their terminals or antennas, which 
communicate with the repeaters located on the platforms. The Commission 
disagrees with TIA and Motorola that the platform qualifies as a space 
station and that the proposed service should be considered to be a 
satellite service. The platforms proposed for use by Sky Station 
clearly are not satellites and, unlike satellites, will not be in earth 
orbit. Although the platforms will be located 30 kilometers above the 
earth's surface, they still will be within the earth's atmosphere and 
will rely on atmospheric lift to keep them at that fixed altitude, 
which is far below the location of the lowest satellite orbit.
    19. Motorola and TIA point out that there are international 
definitions and other international concerns that require that Sky 
Station's proposed service be considered in the appropriate 
international forums. In that context, the Commission further points 
out that world spectrum management experts recently participated in the 
work of ITU-R WP4-9S and WP 9B and concluded that a radio-relay service 
like Sky Station's proposed service that uses stratospheric-based 
repeaters is in the fixed service. The groups developed two Proposed 
Draft New Recommendations relating to platform-based stratospheric 
radio relay repeaters in the fixed service.3 Moreover, in 
the 36-51 GHz Band Plan NPRM the Commission noted that the Ad Hoc 
Millimeter Wave group of the Commission's WRC-97 Advisory Committee had 
discussed, among other things, the possibility of satellite and fixed 
terrestrial services, as well as other terrestrial services operating 
from alternative delivery platforms, sharing spectrum in the band. 
Thus, the use of such stratospheric-based platforms for a global 
service is being addressed in the appropriate forums, where issues of 
sovereignty and other concerns will be examined. The Commission denies 
the requests of Motorola, Harris, and TIA to establish a separate 
allocation category for any airborne terrestrial wireless 
communications service as unnecessary and inefficient, inasmuch as the 
spectrum Sky Station seeks to use is the subject of this proceeding in 
which rules can be proposed to accommodate its service, as well as 
other terrestrial services in 47 GHz. The Commission finds these 
requests unnecessary and inefficient, inasmuch as the spectrum Sky 
Station seeks to use is the subject of this proceeding in which rules 
can be proposed to accommodate its service, as well as other 
terrestrial services in 47 GHz.
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    \3\ Doc. 4-9S/TEMP/30(Rev.1) and Doc. 9B/TEMP/38(Rev.1).
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    20. HCI and Motorola argue that the Application and the Request and 
Petition leave open many technical, financial, and safety concerns that 
must be addressed before the Commission can act on Sky Station's 
request and allocate the spectrum it requests. The Commission intends 
to solicit comment on the necessary technical and financial 
requirements for platform-based stratospheric services at the time we 
consider service rules, in a separate Notice of Proposed Rulemaking. At 
the same time the Commission will seek comment on the safety concerns 
that the platforms raise. These matters are important features of the 
service rules that the Commission must adopt before any service in the 
47 GHz band can be implemented. They need not be considered in this 
Second R&O, however, which is limited to deciding whether to open the 
band to commercial, licensed use under a flexible licensing framework. 
The matters that HCI and Motorola ask the Commission to address now are 
not factors in that decision.
    21. HCI, Lockheed Martin Corporation, and Motorola express concern 
that, as members of the satellite community, they will not be able to 
share the 47 GHz band with Sky Station's proposed service. Since the 
filings of these pleadings, the Commission has initiated a spectrum 
plan in the 36-51 GHz Band Plan NPRM in order to address the competing 
demands between satellite and terrestrial interests for spectrum 
allocations for provision of commercial services. Although the 
Commission maintained the 47 GHz band for predominantly wireless 
services, we identified additional bands for predominantly satellite 
services that include the adjacent 48.2-50.2 GHz bands, among others. 
Thus, the spectrum management issues raised by petitioners here are 
matters addressed in that proceeding and are not a basis for delaying 
this proceeding. As for the additional matters the parties seek to 
raise here concerning licensed uses of the band, the Commission will 
include those comments in our consideration of licensing issues in the 
full text of this Second R&O.
    22. The Second R&O adopts the proposal to open the 47 GHz band for 
commercial applications and technologies. As stated in the First NPRM, 
the millimeter wave bands such as 47 GHz are a major resource that 
essentially is undeveloped and unavailable today for commercial use. 
The Commission finds that there is broad consensus that our proposal to 
open frequency bands above 40 GHz to commercial development will 
provide the public with access to new products and communications 
services and provide new opportunities for business and economic 
growth.
    23. The Second R&O also adopts the proposal to license the 47 GHz 
band for commercial service and finds that our proposal to allow any 
use under the Allocation Table reflects the best approach to licensing 
this band. As a ``frontier'' band located in the frequencies above 40 
GHz that are yet to be opened for commercial development, the exact 
nature of the services to emerge from the development of the 47 GHz 
band cannot be predicted in the comments. The Commission concludes that 
all identified uses of the 47 GHz band may be valuable and should be 
permitted. The record also confirms that both the technology and 
potential applications of millimeter wave spectrum will continue to 
evolve rapidly. Since the Commission initiated this proceeding we have 
seen important new technologies proposed for the millimeter wave 
spectrum, and it is likely that other technologies also will be 
developed. Under the circumstances, the Commission decides not to limit 
the types of services that can be offered in the band.
    24. Accordingly, the Commission will license the 47 GHz band based 
on the services currently allowed under the Allocation Table. The 
spectrum from 47.2 to 50.2 GHz is allocated domestically for Government 
and non-Government Fixed, Fixed-Satellite, and Mobile uses, and 
internationally for the same uses. The Commission finds that the range 
of services covers all of the services identified as potential uses of 
the 47 GHz band. The Commission confirms the view expressed in the 
First NPRM that a broadly defined service allocation coupled with the 
licensing, technical, and operating rules to be proposed in a 
subsequent rulemaking will provide the best means of assuring that this 
spectrum will be used to the greatest benefit of the public.

[[Page 43120]]

    25. The Commission denies the requests of AT&T Corp, Hewlett-
Packard, Millimeter Wave Advisory Group, Alcatel Network Systems, 
Harris, and TIA to expand the band to include spectrum up to 51 GHz in 
order to provide for point-to-point services. That additional spectrum 
in the adjacent bands will be addressed in response to the 36-51 GHz 
Band Plan NPRM, in which the Commission proposes to designate the 
portion 48.2-50.2 GHz for predominantly satellite use. The Commission 
points out that point-to-point services may be provided in the 47 GHz 
band under the allocations for that band.
    26. The Commission disagrees with TIA's assertion that licensing on 
such an ``open-market'' basis, which provides licensees with broad 
flexibility to engage in any uses under the Allocation Table, evades 
our statutory responsibilities under section 303(c) and, in light of 
the Commission's proposal to auction the spectrum, is inconsistent with 
Section 309(j) of the Communications Act. The Commission has broad 
authority under the Communications Act to designate spectrum usage, as 
well as the authority to perform any and all acts necessary in the 
execution of our functions.4 In light of the range of 
possible uses, the likelihood that new uses can be developed in the 
future, and the lack of a record for specific service designations that 
would better serve the public interest and the goals of the 
Communications Act, our broad service designation comports with the 
public interest and with our statutory authority. The Commission's 
decision to designate this spectrum in this manner is unrelated to the 
proposal in the First NPRM to award licenses through competitive 
bidding.
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    \4\ See Section 4(i) of the Communications Act, 47 U.S.C. 
154(i).
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    The designation is not entirely open-ended and will be subject to 
technical rules we will adopt. Therefore, the Commission has not 
delegated to private parties our responsibility to allocate spectrum 
and adopt appropriate technical standards.
    27. The Commission finds that, when we propose licensing and other 
service rules for the 47 GHz band, we will follow the approach proposed 
in the First NPRM to tailor the rules to reflect what we expect will 
likely be the dominant use of this spectrum, while retaining the 
flexibility allowed under the Allocation Table. Especially for 
``frontier'' bands such as those above 40 GHz, this approach should set 
allocation and licensing rules that promote rapid, efficient use of 
this spectrum to meet all the communications needs advanced by 
commenters, while allowing the market to adjust to changing needs and 
technologies and providing scope for innovative uses. It will also 
minimize regulatory barriers and requirements that might otherwise 
hamper entrepreneurial efforts to develop effective commercial uses of 
this spectrum.
    28. However, the Commission does not find that the dominant use of 
spectrum in the 47 GHz band is likely to be similar to LMDS in the 28 
GHz band, as we proposed. As Avant-Garde Telecommunications, Inc. 
requests, the Commission has reexamined our proposal, and we have taken 
into account the anticipated uses and changed circumstances reflected 
in the record for purposes of determining whether another licensing 
methodology would better meet the needs posed by those anticipated 
uses. The Commission finds that the dominant use of the 47 GHz band is 
likely to be a fixed, point-to-multipoint service that employs 
stratospheric platforms at fixed locations.
    29. The Commission emphasizes, however, that we anticipate that 
ongoing technological developments can be expected to generate other 
types of delivery systems for fixed, point-to-multipoint services in 
the band. Thus, while the Commission will seek to tailor our licensing 
rules to accommodate the likely dominant use we have identified based 
on the current record, we will not foreclose other uses permitted by 
the Allocation Table, including new and innovative uses and 
technologies.
    30. The Commission denies Sky Station's request that we dedicate to 
its exclusive use two portions of the 47 GHz band for its service and 
modify the Allocation Table to that effect. Sky Station is concerned 
about interference to its stratospheric signal when it is in the main 
path of a conventional fixed co-channel signal of greater power. The 
problems of interference do not necessarily require a change in the 
service allocation, but rather are the subject of operational and 
technical mitigation techniques that can be included in the 
Commission's service rules to be used to reduce or eliminate these 
types of interference problems. Accordingly, Sky Station should ensure 
that its concerns are addressed when the Commission seeks to adopt 
appropriate service rules in a subsequent proceeding to implement 
services under the Allocation Table.
    31. Similarly, the Commission defers the request of United States 
Satellite Broadcasting Company (USSB) that we accept a service rule 
requirement submitted by Sky Station to protect DBS-TV from 
interference from Sky Station's service. USSB requested that the 
Commission consider the impact of Sky Station's proposed platform-based 
service on the operations of other telecommunications services and, in 
particular, on the reception of DBS signals on the surface of the 
earth. The Commission will consider the requested restriction when we 
consider the need for other use restrictions to ensure the performance 
of the authorized services under appropriate service rules.
    32. The Commission also denies the request of TIA for a guardband 
of 500 MHz to ensure adequate signal selectivity between the licensed 
services in the 47 GHz band and the fixed point-to-point services that 
TIA requests we designate for use in the adjacent band at 48.5-51.4 
GHz. The adjacent band is under consideration in the 36-51 GHz Band 
Plan NPRM and TIA's request can be addressed there. The Commission will 
consider the need for protections of licensed users from interference 
in developing service rules that govern the uses of 47 GHz.
    33. The Second R&O adopts the Commission's proposal to issue area-
wide licenses for services in the 47 GHz band as a necessary component 
of the flexible licensing framework we are adopting. The Commission has 
found that the predominant use of the band is a fixed point-to-
multipoint service, which is a service provided on a point-radius basis 
within an area and not on a fixed point-to-point basis. However, fixed 
point-to-point service is not precluded and may be provided within the 
area. Moreover, authorization of a geographic area is consistent with 
the Allocation Table for the 47 GHz band, which also provides for 
mobile services in addition to fixed services. The Commission does not 
decide the size of the geographic area in this Second R&O, inasmuch as 
that is a matter for the service rules.
    34. The Second R&O also adopts the Commission's plan to divide the 
spectrum into license blocks for exclusive assignment in each area. 
However, we modify our proposal to divide the entire band into only one 
contiguous pair and instead divide it into five separated pairs. Based 
on the comments filed in response to the Commission's inquiry into 
whether the licensed blocks should be contiguous or further subdivided 
into paired blocks to facilitate two-way transmission, the Commission 
finds that our original proposed division into one paired block would 
not be appropriate and would inhibit the most efficient and effective

[[Page 43121]]

use of the 47 GHz band. The Commission believes that Sky Station's 
proposal to divide the entire block into five pairs of 200 MHz channels 
each pair, separated by 500 megahertz, effectively accommodates the 
predominant use as well as the other likely uses of the band. The 
Commission further believes that paired 100-MHz channels would provide 
adequate bandwidth for the dominant use, while fostering competition 
and diversity of uses among licensees.
    35. Finally, in the First NPRM, the Commission proposed to impose a 
spectrum cap and limit each licensee to a single spectrum block in each 
band in the same area, so that the licensee would not be permitted to 
own both licenses in the same band in any area. The Commission will 
address any spectrum limitation in the proceeding to establish the 
service rules to implement the framework we adopt here, which 
proceeding we will initiate shortly.
    36. It is the Commission intent to complete the licensing of the 47 
GHz band as quickly as possible to achieve our goal as stated in the 
First NPRM--to promote the commercial availability of millimeter wave 
technologies in providing the potentially valuable uses of licensed 
spectrum above 40 GHz.

Procedural Matters and Ordering Clauses

Final Regulatory Flexibility Analysis

    37. As required by the Regulatory Flexibility Act, 5 U.S.C. 603 
(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the First NPRM in this proceeding. The Commission 
sought written public comments on the proposals in the First NPRM, 
including on the IRFA. The Commission's Final Regulatory Flexibility 
Analysis (FRFA) in this Second R&O conforms to the RFA, as amended by 
the Contract with America Advancement Act of 1996 (CWAAA), Pub. L. 104-
121, 110 Stat. 846 (1996).

I. Need for and Objectives of Action

    38. We proposed in the First NPRM to open spectrum in the 47.4-48.2 
GHz band for commercial, licensed use on an area-wide basis in a paired 
license block in order to promote the use of the millimeter wave region 
of the spectrum above 40 GHz. We adopt our proposals, with modification 
to the licensing blocks, for the entire 47.2-48.2 GHz band (47 GHz 
band) in order to achieve our goal to expedite the commercial 
development of this spectrum.
    39. Advances in millimeter wave technology will enable new 
commercial uses to be achieved and will help meet consumer demand for a 
wide range of potential commercial services, which would stimulate 
research and the growth of technology. We adopt a licensing framework 
that allows the full range of services in the Table of Frequency 
Allocations to provide licensees the flexibility to provide the most 
efficient and effective services. We identify the potential dominant 
use of the 47 GHz band to ensure that the service rules we will propose 
in a future proceeding are adequate and appropriate. Licensing on the 
basis of a geographic area will ensure that licensees have the 
flexibility to provide new services in the most rapid and efficient 
manner. Dividing the spectrum into five separated pairs of spectrum 
blocks for licensing ensures that licensees in the 47 GHz bands are 
able to offer the predominant service, as well as other potential 
services, in the most efficient manner.

II. Summary of Significant Issues Raised by the Public Comments in 
Response to Initial Regulatory Flexibility Statement

    40. Avant-Garde and M/A-Com, Inc. (MACOM) are small entities that 
generally support opening the bands above 40 GHz for commercial use to 
take advantage of the developments in millimeter wave technology. They 
argue that the technology is available for commercial uses and that we 
should designate any of the bands for commercial use in order to 
stimulate market demand for their products. Sky Station argues that its 
proposal to provide a fixed, terrestrial, global service in the 47 GHz 
band using stratospheric-based platforms will meet many commercial uses 
and promote the growth of a new stratospheric-based technology, rather 
than traditional tower-based technology, for delivery of service.
    41. Metricom, Inc. (Metricom) requests that we adopt a flexible 
regulatory approach for licensed operations that includes very broad 
and general rules to encourage the development of equipment and 
services. Avant-Garde argues that the spectrum to be made available for 
licensing should not be artificially constrained in the manner in which 
it is licensed or used. It requests that we reexamine our proposal to 
use the LMDS service rules to govern the predominant uses of the bands 
above 40 GHz in light of the anticipated uses and changed circumstances 
reflected in the filings. It questions whether the licensing scheme we 
proposed remains appropriate or whether some other methodology would 
better meet the needs of commercial service providers.
    42. Sky Station argues that its stratospheric-based platforms would 
deliver point-to-multipoint services that can be licensed under the 
terrestrial, flexible rules we proposed to adopt for 47 GHz. It argues 
that its technology is uniquely suited to take advantage of the 
characteristics of the 47 GHz band and will promote the maximum use of 
that spectrum. Sky Station argues that the service cannot share co-
channel frequencies with other services and requests we dedicate the 
segments of the band at 47.2-47.5 Ghz and 47.9-48.2 GHz to its 
exclusive use and modify the Table of Frequency Allocations 
accordingly.
    43. Sky Station supports the use of area-wide licensing and 
requests that we adopt large service areas that are super-regional in 
size. Sky Station opposes our proposal to adopt a single pair of 
contiguous license blocks, and argues that the spectrum should be 
divided into five pairs of 100 MHz each that are separated by 500 MHz 
to ensure flexibility. P-Com, Inc. argues that we should be careful to 
divide the spectrum to reflect the proposed use, and that paired blocks 
with maximum frequency separation are required for fixed service, two-
way links such as point-to-multipoint operations.

III. Description and Estimate of the Number of Small Entities to Which 
Rules Will Apply

    44. The determinations we adopt to open 47 GHZ for commercial use 
under a flexible licensing framework authorizing any service under the 
Table of Frequency Allocations on an area-wide basis would apply to all 
entities that apply for a license, including small entities.
    45. The definition that SBA has developed that approximates most 
closely the services that may be provided by the licensees would be the 
definition applicable to radiotelephone companies. The definition of 
radiotelephone companies provides that a small entity is a 
radiotelephone company employing 1,500 or fewer persons.5 
The size data provided by SBA do not enable us to make an accurate 
estimate of the number of telecommunications providers which are small 
entities because it combines all radiotelephone companies with 500 or 
more employees.6 We therefore use the 1992 Census of 
Transportation,

[[Page 43122]]

Communications, and Utilities, conducted by the Bureau of the Census, 
which is the most recent information available. This document shows 
that only 12 radiotelephone firms out of a total of 1,178 such firms 
which operated during 1992 had 1,000 or more employees.7 
Therefore, the majority of entities to provide telecommunications 
services in the 47 GHz band may be small businesses under SBA's 
definition.
---------------------------------------------------------------------------

    \5\ 13 CFR 121.201, Standard Industrial Classification (SIC) 
4812.
    \6\ U.S. Small Business Administration 1992 Economic Census 
Employment Report, Bureau of the Census, U.S. Department of 
Commerce, Table 3, SIC 4812 (radiotelephone communications industry 
data adopted by the SBA Office of Advocacy).
    \7\ 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 5, Employment 
Size of Firms: 1992, SIC 4812 (issued May 1995).
---------------------------------------------------------------------------

    46. The Commission has not developed a definition of small entities 
applicable to licensees in the 47 GHz band, because the band is being 
opened for the first time for commercial, licensed use in this Second 
R&O and has not been subject to licensing. The RFA amendments were not 
in effect when the First NPRM was released, and no data has been 
received establishing the number of small businesses to be associated 
with services in the band. Although we proposed to auction the spectrum 
for assignment, we did not request information regarding the potential 
number of small businesses interested in obtaining licenses. We do not 
adopt in the Second R&O our proposal to auction the spectrum, and 
instead will seek additional comment in a future Notice of Proposed 
Rulemaking in which we will also propose the service rules to implement 
services in the 47 GHz band. Thus, we are unable to estimate the 
potential number of entities that may apply for a license that may be 
small businesses.

IV. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    47. We do not adopt any rules that entail reporting, recordkeeping, 
and third party consultation. Until we adopt service rules to govern 
the licensing, operating, and technical aspects of our decision, there 
are no requirements to impose on any entities.

V. Significant Alternatives to Proposed Rules Which Minimize 
Significant Economic Impact on Small Entities and Accomplish Stated 
Objectives

    48. We agree with many small entities that opening up the 47 GHz 
band for commercial uses is timely and feasible, and would be in the 
public interest. Small entities, such as Avant-Garde and MACOM, see 
many future market opportunities and have developed equipment, or 
expect to readily modify equipment, to meet consumer demand for the 
kinds of services to be provided. Sky Station has developed an 
innovative technology that uses platforms fixed in the stratosphere to 
deliver services in an efficient and effective manner. They and other 
small or new entities will benefit from the demand for commercial 
applications of their technologies.
    49. We agree with commenters, such as Avant-Garde and Metricom, to 
adopt the flexible licensing framework we proposed that authorizes any 
service allowed under the Table of Frequency Allocations. We find that 
a broadly defined service allocation assures that the 47 GHz band will 
be used to the greatest benefit of the public by giving licensees, 
including small entities, the flexibility to meet demands. We also 
adopt our proposal to prescribe service rules for the licensing of the 
band based on what the dominant use is likely to be, as demonstrated by 
the comments. We agree with Avant-Garde to reexamine the likely uses 
and find that, while the predominant uses are the fixed point-to-
multipoint uses we predicted, they would not be based on LMDS-type 
technology but rather on millimeter wave technology based on 
stratospheric platforms for delivery of service as proposed for the 47 
GHz band by Sky Station. We deny Sky Station's request to modify the 
Table of Frequency Allocations to protect its service, and find that 
its need for protection from interference is properly addressed in the 
future proceeding in which we will establish the technical and 
operational service rules to govern the authorized services in the 
band.
    50. We decide to adopt our proposal to license on the basis of 
geographic areas in order to enable the broadest range of uses for the 
band and ensure efficient and effective operations. Area-based 
licensing provides greater operational flexibility and ease of 
administration that is particularly beneficial to small entities. We 
defer questions about the appropriate size of the area as raised by Sky 
Station to our consideration of service rules in a future proceeding.
    51. Because of the change in the potential predominant use for the 
band, we do not adopt our proposed channelization plan and instead 
revise the subdivision of the spectrum to reflect the proposed uses, as 
P-Com requests. We agree with Sky Station to divide the bands into five 
pairs of 100 megahertz channels, with each pair separated by 500 
megahertz. This provides adequate bandwidth to accommodate the 
predominant uses.

VI. Report to Congress

    52. We will submit a copy of this Final Regulatory Flexibility 
Analysis, along with the Order, in a report to Congress pursuant to 5 
U.S.C. 801(a)(1)(A).
    53. It is ordered that the actions of the Commission herein are 
taken pursuant to sections 4(i), 257, 303(r), and 309(j) of the 
Communications Act of 1934, 47 U.S.C. 154(i), 257, 303(r), 309(j).
    54. It is further ordered that these actions shall take effect 
October 14, 1997.
    55. It is further ordered that the Request and Petition and 
Application filed by Sky Station, the Further Comments filed by Sky 
Station, and the comments and reply comments filed in response thereto, 
are accepted in this record as late-filed comments.
    56. It is further ordered that the spectrum 47.2-48.2 GHz (47 GHz 
band) is designated for licensed, commercial use on the basis of area-
wide licenses in accordance with the terms of this Second R&O.
    57. It is further ordered that a division of the spectrum for 
license blocks is adopted for the 47 GHz band that divides the band 
into five spectrum blocks of 200 megahertz each for licensing, with 
each block consisting of a pair of 100 megahertz channels separated by 
500 megahertz.

List of Subjects

47 CFR Part 2

    Communications equipment.

47 CFR Part 15

    Communications equipment, Radio.

47 CFR Part 97

    Communications equipment, Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-21180 Filed 8-11-97; 8:45 am]
BILLING CODE 6712-01-P