[Federal Register Volume 63, Number 183 (Tuesday, September 22, 1998)]
[Rules and Regulations]
[Pages 50538-50539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25271]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 2
[ET Docket 97-99; FCC 98-155]
Relocation of the Digital Electronic Message Service
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: With this Memorandum Opinion and Order, the Commission denies
Petitions for reconsideration of the Commission's order relocating the
Digital Electronic Message Service (DEMS) from the 18 GHz band to the
24 GHz band. In its decision, the Commission rejects petitioners
arguments that the Commission improperly applied the military and good
cause exemptions from notice and comment rulemaking, failed to address
the validity of the under DEMS licenses, failed to specify sufficient
reason to increase the amount of spectrum allocated for DEMS in the 24
GHz band and failed to consider the potential use of the 24 GHz band
for feeder links in conjunction with the Broadcast Satellite Service.
The Commission also amends Footnote US341 of the U.S. Table of
Allocations to reflect the current status of relevant radionavigation
facilities.
EFFECTIVE DATE: November 23, 1998.
FOR FURTHER INFORMATION CONTACT: James Taylor (202) 418-2113 of the
International Bureau.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Memorandum Opinion and Order in ET Docket No. 97-99; FCC 98-155,
adopted July 9, 1998 and released July 17, 1998. The complete text of
this Memorandum Opinion and Order 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 copy contractor, International Transcription
Service, Inc., 1231 20th Street, NW, Washington, DC 20036, telephone:
202-857-3800, facsimile: 202-857-3805.
Summary of Memorandum Opinion and Order
1. This Memorandum Opinion and Order denies petitions for
reconsideration of the Commission's Order, FCC 97-95, 12 FCC Rcd. 4990
(1997), modifying Commission rules without public notice and comment
and relocating the Digital Electronic Message Service (DEMS), a
terrestrial point-to-multipoint microwave service, from the 18.82-18.92
GHz and 19.16-19.26 GHz bands (18 GHz band) to the 24 GHz band
(Relocation Order).
2. In January and March 1997, the National Telecommunications and
Information Agency (NTIA), acting on behalf of the Department of
Defense, requested that the Commission protect military satellite
communications systems operating in the 18 GHz band in the Washington,
D.C. and Denver, CO areas from interference. NTIA stated that DEMS
licensees could cause interference to the Government systems and that
the relocation was essential to fulfill requirements for Government
military systems to perform satisfactorily. To facilitate a solution to
the interference problem, NTIA made 400 Megahertz of replacement
spectrum available at the 24.25-24.45 GHz and 25.05-25.25 GHz bands,
and suggested that the Commission expeditiously relocate DEMS without
notice and comment based upon the military and good cause exemptions to
the Administrative Procedure Act.
3. Petitioners argue that the Commission improperly applied the
military and good cause exemptions from notice and comment rulemaking,
failed to address the validity of the underlying DEMS licenses, failed
to specify sufficient reason to increase the amount of spectrum
allocated for DEMS in the 24 GHz band and failed to consider the
potential use of the 24 GHz band for feeder links in conjunction with
the Broadcast Satellite Service.
4. The Commission found that the decision to move all of DEMS from
the 18 GHz to the 24 GHz band nationwide was within the scope of the
military exemption to the notice and comment requirement because NTIA,
on the behalf of DOD, specifically requested that the Commission
protect government systems and relocate DEMS without notice and
comment. The Commission found that the exemption encompasses relocation
actions outside of Washington D.C. and Denver, CO. and that addressing
the interference problems in those two areas alone would preclude DEMS
in those areas because it is unlikely that 24 GHz equipment could be
manufactured at economic prices solely for the Washington, D.C. and
Denver, CO markets. Additionally, the Commission found that the good
cause exemption to the APA's notice and comment requirements provides
an independent source for the Commission's actions in the 18 GHz
Relocation Order and that the Relocation Order includes a sufficient
statement of ``good cause.''
5. WebCel asserts the Commission failed to address issues raised in
Teledesic's withdrawn pleading, initially filed in September, 1996 but
withdrawn in March 1997, concerning the status of DEMS licenses now
relocated to 24 GHz pursuant to the Relocation Order. The Wireless
Telecommunications Bureau, Enforcement Division, investigated the
validity of the DEMS licenses issued to DSC and MSI and found no
violations of DEMS construction and operating requirements.
6. When the Commission relocated DEMS from the 18 GHz band to the
24 GHz band, it allocated on a per channel basis four times the amount
of spectrum at 24 GHz as was allocated at 18 GHz. Petitioners
challenged this determination, arguing that the Commission's
assumptions regarding
[[Page 50539]]
typical cell size, service reliability, transmitter power and other
technical parameters were improper. The Memorandum Opinion and Order
rejects these technical contentions. Using comparable technology, DEMS
requires at least four times the amount of spectrum at 24 GHz to
provide equivalent service due primarily to less favorable radio
propagation characteristics.
7. The Relocation Order allocated 5 channel pairs of 40 Megahertz
(400 Megahertz total) for DEMS at 24 GHz. MWCA asserts the incumbent
DEMS licensees would have a de facto monopoly because the DEMS
licensees have, or are requesting, virtually all of the available
channel pairs in each SMSA. The Memorandum Opinion and Order rejects
this claim, noting that the relocations did not alter the competitive
status quo but simply changed the frequency bands at which DEMS
operates. Further, additional channels remain to be licensed in many
areas
8. Several petitioners question whether Section 309(j) of the
Communications Act requires the Commission to conduct competitive
bidding for the 24 GHz band. The Commission found that auctions are not
required, nor in the public interest, with respect to the licenses
affected by the 18 GHz Relocation Order. The DEMS licensees are
previously licensed service providers forced to relocate from 18 GHz to
24 GHz. Consequently, the Commission did not grant the DEMS licensees
initial licenses but instead modified existing licenses. The Commission
expects to address separately, through a future notice of proposed
rulemaking, the disposition by auction of unassigned DEMS spectrum at
24 GHz.
9. Finally, at the time of the Relocation Order, the only
operations in the 24 GHz band in the United States were two
radionavigation radar facilities operated by the Federal Aviation
Administration. The facilities, located near Washington, D.C. and
Newark, New Jersey, were scheduled to be decommissioned January 1, 1998
and January 1, 2000, respectively. The Relocation Order added U.S.
Footnote US341 to the U.S. Table of Allocations to protect the FAA
operation in these two areas until decommissioning. Consistent with
this schedule, the facility in Washington, D.C. has been decommissioned
and the decommissioning date for the Newark, New Jersey station has
been advanced. In order to accurately reflect the current status we
amend US341 to state:
Non-Government operations in the 24.25-24.45 GHz band must
provide protection to the FAA radionavigation radar facility at the
Newark International Airport, New Jersey, until the facility is
decommissioned. The Newark radar facility is scheduled to be
decommissioned by January 1, 1998. Protection will be afforded in
accordance with criteria developed by the NTIA and FCC.
Ordering Clauses
10. Accordingly, It is ordered that the Petitions for
Reconsideration of WebCel Communications, Inc., DirecTV Enterprises,
Inc. and BellSouth Corporation of the March 14, 1997 Relocation Order
are denied.
11. It is further ordered that the Petition for Partial
Reconsideration filed by the Millimeter Wave Carrier Association, Inc.
is denied.
12. It is further ordered that the Petitions for Reconsideration of
DirecTV Enterprises, Inc. and Bellsouth Corporation of the June 24,
1997 Modification Order are denied.
13. It is further ordered that the Applications for Review of
WebCel Communications, Inc., and Millimeter Wave Carrier Association,
Inc., of the June 24, 1997 Modification Order are denied.
14. It is further ordered that the Joint Motion for Leave to File
Surreply of Digital Services Corporation, Microwave Services Inc. and
Teligent, L.L.C., ET Docket No. 97-99, is granted and that WebCel
Communications, Inc., Opposition to Joint Motion for Leave to File
Surreply, ET Docket No. 97-99, is denied.
15. It is further ordered that the Motion of WinStar
Communications, Inc. to withdraw its Petition for Clarification and its
Reply is granted.
16. It is further ordered that Teledesic Corporation's request to
withdraw its Petition to Deny and Determine Status of Licenses, File
No. 9607682 et. al., is granted.
17. It is further ordered that the Motions for Expedited Resolution
filed by Millimeter Wave Carrier Association, Inc. and WebCel
Communications, Inc., ET Docket No. 97-99, are dismissed.
List of Subjects in 47 CFR Part 2
Communications equipment, Fixed service, Satellite.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 2 as follows:
PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS
1. The authority citation for part 2 continues to read as follows:
Authority: 47 U.S.C. 154, 302, 303, 307 and 336, unless
otherwise noted.
Sec. 2.106 [Amended]
2. Amend Sec. 2.106 by revising the footnote following the table in
US341 to read as follows:
* * * * *
US341 Non-Government operations in the 24.25-24.45 GHz band must
provide protection to the FAA radionavigation radar facility at the
Newark International Airport, New Jersey, until the facility is
decommissioned. The Newark radar facility is scheduled to be
decommissioned by January 1, 1998. Protection will be afforded in
accordance with criteria developed by the NTIA and FCC.
* * * * *
[FR Doc. 98-25271 Filed 9-21-98; 8:45 am]
BILLING CODE 6712-01-P