[Federal Register Volume 64, Number 7 (Tuesday, January 12, 1999)]
[Proposed Rules]
[Pages 1786-1789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-578]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 25

[ET Docket No. 98-206, FCC 98-310]


Fixed Satellite Service and Terrestrial System in the Ku-Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This Notice of Proposed Rulemaking (``NPRM'') proposes to 
establish non-geostationary satellite orbit (``NGSO'') fixed satellite 
service (``FSS'') operations which could provide global broadband 
wireless services. This NPRM seeks to develop appropriate spectrum 
sharing criteria to allow the proposed NGSO FSS operations in the Ku 
band without interfering with incumbent operations. If appropriate 
sharing criteria are adopted, NGSO FSS operations could increase 
spectrum usage, provide a wide variety of broadband wireless services 
and increase competition within the satellite service industry. The 
NPRM also seeks to develop a more extensive record regarding the 
ability of terrestrial based service that would retransmit local 
television signals and provide one-way data services to direct 
broadcast satellite (``DBS'') subscribers in the 12.2-12.7 GHz band.

DATES: Comments are due February 16, 1999, reply comments are due March 
15, 1999. Written comments by the public on the proposed and/or 
modified information collections are due March 15, 1999. Written 
comments must be submitted by the Office of Management and Budget (OMB) 
on the proposed and/or modified information collections on or before 
March 15, 1999.

ADDRESSES: All filings must be sent to the Commission's Secretary, 
Magalie Roman Salas, Office of the Secretary, Federal Communications 
Commission, 445 Twelfth Street, S.W., TW-A325, Washington, DC 20554. In 
addition to filing comments with the Secretary, a copy of any comments 
on the information collections contained herein should be submitted to 
Judy Boley, Federal Communications Commission, Room C-1804, 445 Twelfth 
Street, S.W., Washington, DC 20554 or via internet to [email protected], 
and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, 
N.W., Washington, D.C. 20503 or via the internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Tom Derenge, Office of Engineering and 
Technology, (202) 418-2451. For additional information or copies of the 
information collections contact Judy Boley at (202) 418-0214 or via 
internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rule Making, ET Docket 98-206, FCC 98-310, adopted November 
19, 1998, and released November 24, 1998. The full text of this 
Commission decision is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room CY-C404), 445 
Twelfth Street, S.W., Washington, D.C., and also may be purchased from 
the Commission's duplication contractor, International Transcription 
Service, (202) 857-3800, 1231 20th Street, N.W. Washington, D.C. 20036. 
This Notice of Proposed Rulemaking contains proposed or modified 
information collections subject to the Paperwork Reduction Act of 1995 
(PRA). It has been submitted to the Office of Management and Budget 
(OMB) for review under the PRA. OMB, the general public, and other 
Federal agencies are invited to comment on the proposed or modified 
information collections contained in this proceeding.

Summary of the Notice of Proposed Rulemaking

    1. The Commission takes this action in response to two Petitions 
for Rulemaking filed on July 3, 1997 and March 6, 1998, by SkyBridge 
L.L.C. (``SkyBridge'')(RM-9147) and Northpoint Technology 
(``Northpoint'') (RM-9245), respectively. Additionally, the NPRM 
considers changes to the International Radio Regulations contained in 
the Final Acts of the 1997 World Radiocommunication Conference (``Final 
Acts of WRC-97''), Geneva, 1997.
    2. Skybridge Petition. SkyBridge requests that the Commission amend 
its rules to permit non-geostationary satellite orbit (``NGSO'') fixed 
satellite service (``FSS'') systems to operate in the United States 
(``U.S.'') in the 10.7-12.7 GHz band for NGSO space-to-earth links 
(``downlinks'') (a total of 2 gigahertz) and in the 12.75-13.25 GHz, 
13.75-14.5 GHz, and 17.3-17.8 GHz bands for NGSO earth-to-space links 
(``uplinks'') (a total of 1.75 gigahertz). The requested downlink bands 
are generally used by geostationary-satellite orbit (``GSO'') FSS, DBS 
and fixed services. The requested appliance bands are generally used by 
GSO FSS operations, fixed services, mobile services, and Government 
operations. SkyBridge proposes technical criteria which it claims would 
protect GSO satellite and terrestrial operations in these bands from 
unacceptable interference from NGSO FSS systems. SkyBridge contends 
that its system would provide high-speed Internet and on-line access 
services, video conferencing and telephony, entertainment services, 
interactive video on demand, and a variety of substitutes for 
terrestrial infrastructure links.
    3. WRC-97/2000. To promote spectrum sharing between NGSO systems 
and other services, WRC-97 adopted spectrum sharing criteria for NGSO 
systems in the Ku and Ka-bands (see Notice at paragraphs 4-6 for an 
explanation). However, because the studies justifying the WRC-97 action 
had not gone through the typical International Telecommunications Union 
(``ITU'') study group process for validation, several components of the 
spectrum sharing criteria are deemed provisional, or are subject to 
review and possible modification at WRC-2000 to determine whether they 
adequately protect incumbent operations. Currently, Joint Task Group 
(``JTG'') 4-9-11, in which the U.S. participates, is conducting 
technical analyses of NGSO FSS sharing issues in preparation for WRC-
2000.
    4. Northpoint Petition. Northpoint proposes to provide terrestrial 
retransmission of local television signals and provide one-way data 
services to DBS receivers in the 12.2-12.7 GHz band on a secondary 
basis. Northpoint states that its proposal would allow DBS subscribers 
to receive local television programming and one-way data services with 
minimal additional equipment and thus would permit the DBS service to 
compete more fully with cable television services. Because Northpoint 
is requesting that its technology be permitted to operate in some of 
the same spectrum requested by SkyBridge, we are addressing both 
petitions in this proceeding.
    5. The NPRM proposes to allow NGSO FSS downlink operations on a co-

[[Page 1787]]

primary basis in the 10.7-12.7 GHz band, and allow NGSO FSS appliance 
operations on a co-primary basis in the 12.75-13.25 GHz and 13.8-14.5 
GHz bands. The NPRM does not propose to allow NGSO FSS appliance 
operations in the 13.75-13.8 GHz band due to potential interference 
with Government operations and in the 17.3-17.8 GHz band because of a 
conflict with use of this band for broadcasting satellite services 
(``BSS'') and radiolocation services. The NPRM proposes to use the WRC-
97 power flux density (``pfd'') limits for sharing with the terrestrial 
fixed services and seeks comment on the WRC-97 spectrum sharing 
criteria (e.g., accumulative pfd (``apfd'') and effective pfd 
(``epfd'') limits and off-axis eirp limits) for sharing with other 
services. The NPRM requests further analysis regarding the adequacy of 
the WRC-97 limits, including the impacts of multiple NGSO FSS systems, 
as well as alternative proposals to enable NGSO FSS operations in these 
frequency bands. The NPRM also proposes to adopt coordination 
requirements and other procedures to facilitate NGSO FSS sharing with 
incumbent services. Further, the NPRM proposes to implement the WRC-97 
allocation of the 12.2-12.7 GHz band to the FSS, and proposes initial 
licensing and service rules for NGSO FSS.
    6. The NPRM does not propose to adopt Northpoint's suggested use of 
the 12.2-12.7 GHz band, but seeks to develop a more thorough record to 
determine the spectrum sharing feasibility of its proposed system. 
Specifically, the NPRM requests further analysis regarding Northpoint's 
ability to operate in the DBS band without causing harmful degradation 
of DBS service to customers. Further, the NPRM asks whether the 
SkyBridge and Northpoint proposals could both share spectrum with DBS 
and, if not, whether the band should be segmented to accommodate both 
proposed services (assuming sharing is feasible).
    7. We note that there are other proceedings which could influence 
the spectrum bands requested by these two petitions. Specifically, on 
April 1, 1998, OpTel, Inc. (OpTel), an operator of private cable 
systems, filed a Petition for Rulemaking (RM-9257) with the Commission 
to amend parts 78 and 101 of the Commission's rules to allow licensees 
in the fixed microwave service to use frequencies in the 12.7-13.25 GHz 
band to transmit video programming material to end users. Additionally, 
the Commission has initiated a proceeding to consider the carriage of 
digital broadcast television signals over the cable TV infrastructure 
which may create capacity demands on the CARS frequencies. The NPRM 
requests comment on whether these proceedings would conflict with 
potential NGSO FSS operations in the 12.75-13.25 GHz band.

Initial Regulatory Flexibility Analysis

    8. As required by the Regulatory Flexibility Act 
(``RFA''),1 the Commission has prepared this Initial 
Regulatory Flexibility Analysis (``IRFA'') of the possible significant 
economic impact on small entities by the policies and rules proposed in 
this Notice of Proposed Rulemaking (``NPRM''). Written public comments 
are requested on this IRFA. Comments must be identified as responses to 
the IRFA and must be filed by the deadlines for comments on the NPRM 
provided above. The Commission will send a copy of the NPRM, including 
this IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration. See 5 U.S.C. 603(a). In addition, the NPRM and IRFA (or 
summaries thereof) will be published in the Federal Register.
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    \1\ See 5 U.S.C. 603. The RFA, see, 5 U.S.C. 601 et seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the 
CWAAA is the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA).
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Need for, and Objectives of, the Proposed Rules

    9. We undertake this proceeding to address the spectrum sharing 
issues presented by SkyBridge's and Northpoint's proposed use of 
spectrum in the Ku-band frequency range. These proposals could increase 
competition and provide new advanced services to the public. 
Specifically, SkyBridge's proposal could provide new high-speed data 
services and offer additional competition to other satellite services, 
and terrestrial wireless and wireline services. Similarly, Northpoint's 
proposal could provide local video and new data services and facilitate 
competition to cable television systems. There is, however, extensive 
use of the requested frequency bands in the U.S. and these incumbent 
operations provide important and valuable services to the public. While 
we desire to promote competition and innovation by allowing for new 
services or additional spectrum use, we also need to consider the 
competing interests of the incumbent services in these bands.
    10. Therefore, we propose to permit non-geostationary satellite 
orbit (``NGSO'') fixed-satellite service (``FSS'') operations 
2 in certain segments of the Ku-band 3 and 
propose rules and policies to govern such operations. We also propose 
or ask for comment on technical criteria to ensure that such NGSO FSS 
operations do not cause harmful interference to existing users or do 
not unduly constrain future growth of incumbent services. Specifically, 
we ask whether the spectrum sharing criteria developed at the 1997 
International Telecommunication Union (``ITU'') World 
Radiocommunication Conference (``WRC-97'') 4 are adequate to 
permit NGSO FSS operations in various segments of the Ku-band or 
whether other criteria are needed to protect incumbent users. In 
addition, we ask for comment on a proposal to permit terrestrial use of 
the 12.2-12.7 GHz band for the retransmission of local television and 
provision of one-way data services by direct broadcast satellite 
(``DBS'') service operators and their affiliates.
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    \2\ NGSO satellite systems, such as proposed by SkyBridge, are 
characterized by a constellation of satellites continuously orbiting 
the earth, rather than appearing to remain stationary relative to a 
user as a geostationary satellite does. NGSO satellites operate at 
lower altitudes and therefore appear to move from horizon to 
horizon. As the NGSO satellites move through their orbit, they 
transmit to and receive from earth stations that are in view of the 
satellite. Geostationary satellites orbit 22,300 miles above the 
Earth in the plane of the Earth's equator. At this altitude, the 
geostationary satellite's position appears fixed relative to an 
observer on the Earth.
    \3\ The Ku-band generally refers to frequencies within the 12 
GHz to 18 GHz range. The specific bands subject to this proceeding 
are the 10.7-12.7 GHz, 12.75-13.25 GHz, 13.75-14.5 GHz, and 17.3-
17.8 GHz bands. For the purposes of this proceeding, we use the term 
``Ku-band'' to refer generally to all of the frequency bands listed 
above that are under consideration in this proceeding.
    \4\ See Final Acts of the 1997 World Radiocommunication 
Conference (``Final Acts of WRC-97''); Article S21, Article S22, 
Resolution 130, Resolution 131, Resolution 538 (Geneva, 1997).
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Legal Basis

    11. The proposed action is authorized under sections 4(i), 7(a), 
303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, 
as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and 
303(r).

Description and Estimate of the Number of Small Entities To Which the 
Proposed Rules May Apply

    12. Skybridge has requested that the Commission amend Parts 2 and 
25 of its rules to permit NGSO FSS systems to operate in the United 
States (``U.S.'') in the 10.7-12.7 GHz band for NGSO space-to-earth 
links (``downlinks'') (a total of 2 gigahertz) and in the 12.75-13.25 
GHz, 13.75-14.5 GHz, and 17.3-17.8 GHz bands for NGSO earth-to-space 
links (``uplinks'') (a total of 1.75 gigahertz). The requested downlink 
bands are generally used by

[[Page 1788]]

geostationary-satellite orbit (``GSO'') FSS, DBS and fixed services. 
The requested appliance bands are used by GSO FSS operations, fixed 
services, mobile services, and Government operations.
    13. The RFA generally defines the term ``small entity `` as having 
the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' 5 
In addition, the term ``small business'' has the same meaning as the 
term ``small business concern'' under the Small Business 
Act.6 A small business concern is 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'').7 A small 
organization is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
8
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    \5\ Id. Sec. 601(6).
    \6\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to the 
RFA, the statutory definition of a small business applies ``unless 
an agency, after consultation with the Office of Advocacy of the 
Small Business Administration and after opportunity for public 
comment, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \7\ Small Business Act, 15 U.S.C. 632 (1996).
    \8\ 5 U.S.C. 601(4).
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    14. Regarding incumbent cable television operations in the 12.75-
13.25 GHz band, the SBA has developed a definition of small entities 
for cable and other pay television services, which includes all such 
companies generating $11 million or less in revenue annually. This 
definition includes cable systems operators, closed circuit television 
services, direct broadcast satellite services, multipoint distribution 
systems, satellite master antenna systems and subscription television 
services. According to the Census Bureau, there were 1,788 total cable 
and other pay television services and 1,423 had less than $11 million 
in revenue.
    15. The Communications Act also contains a definition of a small 
cable system operator, which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than 1 percent of 
all subscribers in the United States and is not affiliated with any 
entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' The Commission has determined that there are 61,700,000 
subscribers in the United States. Therefore, we found that an operator 
serving fewer than 617,000 subscribers shall be deemed a small 
operator, if its annual revenues, when combined with the total annual 
revenues of all of its affiliates, do not exceed $250 million in the 
aggregate. Based on available data, we find that the number of cable 
operators serving 617,000 subscribers or less totals 1,450. We do not 
request nor do we collect information concerning whether cable system 
operators are affiliated with entities whose gross annual revenues 
exceed $250,000,000, and thus are unable at this time to estimate with 
greater precision the number of cable system operators that would 
qualify as small cable operators under the definition in the 
Communications Act.
    16. Regarding incumbent DBS operations in the 12.2-12.7 GHz band, 
because DBS provides subscription services, DBS falls within the SBA 
definition of Cable and Other Pay Television Services (SIC 4841). This 
definition provides that a small entity is expressed as one with $11.0 
million or less in annual receipts. As of December 1996, there were 
eight DBS licensees. However, the Commission does not collect annual 
revenue data for DBS and, therefore, is unable to ascertain the number 
of small DBS licensees that could be impacted by these proposed rules. 
Although DBS service requires a great investment of capital for 
operation, we acknowledge that there are several new entrants in this 
field that may not yet have generated more than $11 million in annual 
receipts, and therefore may be categorized as a small business, if 
independently owned and operated.
    17. Regarding incumbent GSO FSS satellite use and the proposed NGSO 
FSS use in these requested bands, the Commission has not developed a 
definition of small entities applicable to geostationary or non-
geostationary orbit fixed-satellite service applicants or licensees. 
Therefore, the applicable definition of small entity is the definition 
under the Small Business Administration (SBA) rules applicable to 
Communications Services, Not Elsewhere Classified. This definition 
provides that a small entity is one with $11.0 million or less in 
annual receipts.9 According to Census Bureau data, there are 
848 firms that fall under the category of Communications Services, Not 
Elsewhere Classified which could potentially fall into the 
geostationary or non-geostationary orbit fixed-satellite service 
category. Of those, approximately 775 reported annual receipts of $11 
million or less and qualify as small entities.10 Generally, 
these NGSO and GSO FSS systems cost several millions of dollars to 
construct and operate. Therefore the NGSO and GSO FSS companies, or 
their parent companies, rarely qualify under this definition as a small 
entity.
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    \9\ 13 CFR 121.201, Standard Industrial Classification (SIC) 
Code 4899.
    \10\ U.S. Bureau of Census, U.S. Department of Commerce, 1992 
Census of Transportation, Communications, Utilities, UC92-S-1, 
Subject Series, Establishment and Firm Size, Table 2D, Employment 
Size of Firms: 1992, SIC Code 4899 (issued May 1995).
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    18. Regarding Auxiliary, Special Broadcast and other program 
distribution services in the Ku-band. This service involves a variety 
of transmitters, generally used to relay broadcast programming to the 
public (through translator and booster stations) or within the program 
distribution chain (from a remote news gathering unit back to the 
station). The Commission has not developed a definition of small 
entities applicable to broadcast auxiliary licensees. Therefore, the 
applicable definition of small entity is the definition under the Small 
Business Administration (SBA) rules applicable to radio broadcasting 
stations (SIC 4832) and television broadcasting stations (SIC 4833). 
These definitions provide, respectively, that a small entity is one 
with either $5.0 million or less in annual receipts or $10.5 million in 
annual receipts. 13 CFR 121.201, SIC CODES 4832 and 4833. There are 
currently 2,720 FM translators and boosters, 4,952 TV translators. The 
FCC does not collect financial information on any broadcast facility 
and the Department of Commerce does not collect financial information 
on these auxiliary broadcast facilities. We believe, however, that 
most, if not all, of these auxiliary facilities could be classified as 
small businesses by themselves. We also recognize that most translators 
and boosters are owned by a parent station which, in some cases, would 
be covered by the revenue definition of small business entity discussed 
above. These stations would likely have annual revenues that exceed the 
SBA maximum to be designated as a small business (as noted, either $5 
million for a radio station or $10.5 million for a TV station). 
Furthermore, they do not meet the Small Business Act's definition of a 
``small business concern'' because they are not independently owned and 
operated.
    19. Incumbent microwave services in the 10.7-11.7 GHz and 12.75-
13.25 GHz bands, include common carrier, private operational fixed, and 
broadcast auxiliary radio services. At present, there are 22,015 common 
carrier licensees, approximately 61,670 private

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operational fixed licensees and broadcast auxiliary radio licensees in 
the microwave services. Inasmuch as the Commission has not yet defined 
a small business with respect to microwave services, we will utilize 
the SBA's definition applicable to radiotelephone companies--i.e., an 
entity with no more than 1,500 persons. 13 CFR 121.201, SIC CODE 4812. 
We estimate, for this purpose, that all of the Fixed Microwave 
licensees (excluding broadcast auxiliary licensees) would qualify as 
small entities under the SBA definition for radiotelephone companies.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    20. We propose to apply the part 25 rules governing reporting 
requirements for FSS systems. Specifically, licensees are required to 
file an annual report with the Commission describing: the status of 
satellite construction and anticipated launch dates, including any 
major delays or problems encountered; a listing of any unscheduled 
satellite outages for more than 30 minutes including the cause(s) of 
any such outages; and a detailed description of the utilization made of 
each satellite on each of the in-orbit satellites.

Steps Taken to Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered

    21. We propose to adopt or seek comment on adequate spectrum 
sharing criteria to minimize the potential for interference of these 
new NGSO FSS operations on incumbent operations, many of which qualify 
as small entities. Further, to promote system growth for the fixed 
microwave service (which includes most of the small entities under 
consideration in this proceeding), we are proposing to establish 
exclusion areas around the top 50 cities in the U.S. which would not 
permit NGSO earth stations to construct in these areas for several 
years. This proposal should permit fixed service small entities some 
level of assurance that future fixed links could be established without 
hinderance from NGSO FSS earth stations. We request comment on other 
alternatives that could minimize the impact of this action on small 
entities.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    22. None.
    23. The Commission's Office of Public Affairs, Reference Operations 
Division will send a copy of this NPRM to the Chief Counsel for 
Advocacy of the Small Business Administration.
    24. Paperwork Reduction Act. This Notice of Proposed Rulemaking 
contains either a proposed or modified information collection. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and the Office of Management and 
Budget (OMB) to comment on the information collections contained in 
this Notice of Proposed Rulemaking, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Public and agency comments 
are due at the same time as other comments on the NPRM; OMB comments 
are due March 15, 1999. Comments should address: (a) whether the 
proposed collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology.
    OMB Control Number: N.A.
    Title: Fixed Satellite Service and NGSO Sharing in Ku-Band.
    Form No.: N/A.
    Type of Review: New collection.
    Respondents: Business or other for-profit entities.
    Number of Respondents: 5.
    Estimated time per response: 22 hours.
    Total Annual Burden: 110 hours.
    Total Annual Cost: This includes the charges for hiring an 
attorney, legal assistant, or engineer at $150 an hour to complete the 
submissions. The estimated average time to complete space station 
submissions is 20 hours per response. Based on the assumption that 
applicants will hire outside counsel at an approximate cost of $150 per 
hour, it is estimated that the cost per submission will be $3,300.00.
    Needs and Uses: In accordance with the Communications Act, the 
information collected will be used by the Commission in evaluating 
applications requesting authority to operate pursuant to part 25 of the 
Commission's rules. The information will be used to determine the 
legal, technical, and financial ability of the applicants and will 
assist the Commission in determining whether grant of such 
authorizations are in the public interest.

List of Subjects

47 CFR Part 2

    Communications equipment, Radio.

47 CFR Part 25

    Communications equipment, Radio, Satellites.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 99-578 Filed 1-11-99; 8:45 am]
BILLING CODE 6712-01-P