[Federal Register Volume 64, Number 162 (Monday, August 23, 1999)]
[Rules and Regulations]
[Pages 45891-45893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21765]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 101

[FCC 99-179--ET Docket No. 95-183]


37.0-38.6 GHz and 38.6-40.0 GHz Bands

AGENCY: Federal Communications Commission.

ACTION: Final rules.

-----------------------------------------------------------------------

SUMMARY: The Commission concludes that licensing the 39 GHz band by 
Economic Areas (EAs), rather than Basic Trading Areas (BTAs), will 
provide ample population coverage and allow licensees the flexibility 
to provide many different types of services. This action was taken upon 
the Commission's own motion after consideration of Rand McNally's 
copyright interest in BTAs and the possible delays that this might 
cause to the 39 GHz licensing process. The Commission also concludes 
that it is in the public interest to allow licensees to partition along 
any licensee-defined service area. This action was taken in response to 
a petition for reconsideration of the Commission's earlier action in 
this proceeding allowing partitioning according to county boundaries or 
geo-political subdivisions. Finally, the Commission decides to exempt 
39 GHz licensees from a build-out requirement of mandatory operation 
with 18 months from the initial date of grant. This action was taken 
because there is a new performance requirement of a substantial service 
showing for 39 GHz licensees. These amended rules will provide 39 GHz 
licensees with more flexibility in the use of their licenses.

DATES: Effective October 22, 1999. Written comments by the public on 
the proposed information collection are due October 22, 1999. Written 
comments must be submitted to the Office of Management and Budget on 
the proposed information collection on or before October 22, 1999.

ADDRESSES: Federal Communications Commission, 445 Twelfth Street, S.W., 
Room 4-C207, Washington, DC 20554. A copy of any comments on the 
information collection contained herein should be submitted to Judy 
Boley, Federal Communications Commission, 445 Twelfth Street, S.W., 
Room 1-C804, Washington, DC 20554 or via the Internet to 
[email protected]; and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 
Seventeenth Street, N.W., Washington, DC 20503 or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Jennifer Burton, Wireless 
Telecommunications Bureau, Public Safety and Private Wireless Division, 
Policy and Rules Branch, (202) 418-0680. TTY: (202) 418-7233. For 
further information concerning the information collection contained in 
the Memorandum Opinion and Order, contact Judy Boley at (202) 418-0215 
or via the Internet to [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Memorandum Opinion and Order (MO&O), ET Docket No. 95-183, FCC 99-179, 
adopted July 14, 1999, and released on July 29, 1999. This Memorandum 
Opinion and Order reaffirms the Commission's decision to dismiss, 
without prejudice, the following applications: (1) all pending mutually 
exclusive 39 GHz applications where mutual exclusivity was not resolved 
by December 15, 1995; (2) all major modification applications and 
amendments filed on or after November 13, 1995; and (3) all amendments 
to resolve mutual exclusivity filed on or after December 15, 1995. It 
also states that the Commission will process all 39 GHz applications 
that were not mutually exclusive with previously filed applications as 
of December 15, 1995, that conform in all aspects to our rules and all 
associated amendments of right filed before December 15, 1995, where 
such applications have satisfied the 30-day public notice requirement, 
even if they have not been subject to the full 60-day window during 
which competing mutually exclusive applications may be filed. The 
Commission will dismiss, without prejudice, all 39 GHz applications 
that did not meet the 30-day public notice requirement as of November 
13, 1995. This conforms with section 101.37(c) of the Commission's 
Rules, which states

[[Page 45892]]

that the Commission may process an application no earlier than 30 days 
after it has been placed on public notice. In this Memorandum Opinion 
and Order, the Commission reconsiders the service area definitions for 
the 39 GHz band and decides to license all channel blocks in the 39 GHz 
band using Economic Areas (EAs). The use of EAs will provide ample 
population coverage and allow licensees the flexibility to provide many 
different types of services. The Commission states that it will retain 
the channelization plan set forth earlier in this proceeding. The 
current allocation for the 39 GHz segment of the band contains both 
fixed and satellite services. The Commission also states that 
consistent with the new Part 1 rules governing applications for license 
renewal provided in section 1.949 of the Commission's Rules, 39 GHz 
licensees seeking renewal of station authorizations must file 
applications no later than the expiration date of the authorization for 
which renewal is sought, and no sooner than 90 days prior to the date 
of license expiration. The Commission reiterates that various types of 
antennas may be used in the 39 GHz band because Category A directional 
antenna may be too restrictive to fulfill the requirements of diverse 
system configurations in the 39 GHz band. It clarifies that Category A 
and B radiation pattern requirements do not apply to wide-beam 
antennas, such as omni-directional and sectored antennas. The 
Commission decides that it is in the public interest to retain the 
interim rule that (1) neighboring co-channel and adjacent channel 
licensees must coordinate within 16 kilometers of an adjacent service 
area boundary, and (2) licensees that receive coordination 
notifications must respond within ten days. It will amend section 
101.56(a)(1) of the Commission's Rules to allow licensees to partition 
along any licensee defined service area. The Commission decided that 
allowing partitioning according to county boundaries or geo-political 
subdivisions was too restrictive. In this Memorandum Opinion and Order, 
the Commission also states that consistent with the Part 1 competitive 
bidding provision contained in section 1.2111(e) of the Commission's 
Rules, unjust enrichment payments for 39 GHz licensees that obtain a 
bidding credit at auction, and subsequently partition or disaggregate 
to an entity that would not have qualified for such a credit, will be 
calculated on a pro rata basis, using population to determine the 
relative value of the partitioned area, the amount of spectrum 
disaggregated to determine the relative value of the disaggregated 
spectrum, and some combination thereof for combined partitioning and 
disaggregation. Finally, the Commission dismisses as moot the Emergency 
Request for Stay that was filed in connection with one of the petitions 
for reconsideration. The complete text of this Memorandum Opinion and 
Order may be purchased from the Commission's copy contractor, 
International Transcription Services, 1231 20th Street, N.W., 
Washington, DC 20036, telephone (202) 857-3800, facsimile (202) 857-
3805. Alternative formats (computer diskette, large print, audio 
cassette, and Braille) are available to persons with disabilities by 
contacting Martha Contee at (202) 418-0260, TTY (202) 418-2555, or at 
[email protected]. The full text of the Memorandum Opinion and Order is 
available for inspection and copying during normal business hours in 
the FCC Reference Center, 445 Twelfth Street, S.W., Room CY-A257, 
Washington, D.C. 20554. The full text of the Memorandum Opinion and 
Order can also be downloaded at: http://www.fcc.gov/Bureaus/Wireless/
Orders/1999/fcc99138.txt or http://www.fcc.gov/Bureaus/Wireless/Orders/
1999/fcc99138.wp.

Paperwork Reduction Act Analysis

    This Memorandum Opinion and Order contains either a new or modified 
information collection. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public to 
comment on the information collections contained in this Memorandum 
Opinion and Order as required by the Paperwork Reduction Act of 1995, 
Pub. L. No. 104-13. Public and agency comments are due 60 days from 
date of publication of this Memorandum Opinion and Order in the Federal 
Register. Comments should address: (a) whether the new or modified 
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 Approval Number: 3060-0690.
    Title: Rules regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands.
    Form No.: Forms 415/415T.
    Type of Review: Revision of currently approved collection.
    Respondents: Businesses.
    Number of Respondents: 5000.
    Estimated time per response: 15.125.
    Total annual burden: 75,625.
    Total annual cost: 5,000,000.
    Needs and Uses: The collection of information is necessary because 
of the amendments of the Commission's Rules regarding the 37.0-38.6 GHz 
and 38.6-40.0 GHz bands in ET Dck No. 95-183. The rules implement use 
of a channeling plan, and licensing and technical rules for fixed 
point-to-point microwave operations in these bands, while also 
modifying the rules to make the technical rules consistent in both 
bands. The information is used by the Commission staff to provide 
adequate point-to-point microwave spectrum, which will facilitate 
provision of communications infrastructure for commercial and private 
mobile radio operation and competitive wireless local telephone 
service. Without this information, the Commission would not be able to 
carry out its statutory responsibilities.

List of Subjects in 47 CFR Parts 1 and 101

    Radio, communications equipment.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR Parts 1 and 101 as follows:

PART 1--PRACTICE AND PROCEDURE

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

    Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended: 47 
U.S.C. Sections 154, 303: Implement, 5 U.S.C. Sections 552 and 21 
U.S.C. 853a, unless otherwise noted.

PART 101--FIXED MICROWAVE SERVICES

    2. The authority citation for Part 101 continues to read as 
follows:

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

    3. Sec. 101.17 is amended by revising paragraph (a) to read as 
follows:


Sec. 101.17  Performance requirements for the 38.6-40.0 GHz frequency 
band.

    (a) All 38.6-40.0 GHz band licensees must demonstrate substantial 
service at the time of license renewal. A licensee's substantial 
service showing should

[[Page 45893]]

include, but not be limited to, the following information for each 
channel for which they hold a license, in each EA or portion of an EA 
covered by their license, in order to qualify for renewal of that 
license. The information provided will be judged by the Commission to 
determine whether the licensee is providing service which rises to the 
level of ``substantial.''
* * * * *
    4. Sec. 101.56 is amended by revising paragraphs (a)(1), (b), (d), 
(f), (g), (h), and (i) to read as follows:


Sec. 101.56  Partitioned Services Areas (PSAs) and Disaggregated 
Spectrum

    (a)(1) The holder of an EA authorization to provide service 
pursuant to the competitive bidding process and any incumbent licensee 
of rectangular service areas in the 38.6-40.0 GHz band may enter into 
agreements with eligible parties to partition any portion of its 
service area as defined by the partitioner and partitionee. 
Alternatively, licensees may enter into agreements or contracts to 
disaggregate any portion of spectrum, provided acquired spectrum is 
disaggregated according to frequency pairs.
* * * * *
    (b) The eligibility requirements applicable to EA authorization 
holders also apply to those individuals and entities seeking 
partitioned or disaggregated spectrum authorizations.
* * * * *
    (d)(1) When any area within an EA becomes a partitioned service 
area, the remaining counties and geopolitical subdivision within that 
EA will be subsequently treated and classified as a partitioned service 
area.
    (2) At the time an EA is partitioned, the Commission shall cancel 
the EA authorization initially issued and issue a partitioned service 
area authorization to the former EA authorization holder.
* * * * *
    (f) The duties and responsibilities imposed upon EA authorization 
holders in this part, apply to those licensees obtaining authorizations 
by partitioning or spectrum disaggregation.
    (g) The build-out requirements for the partitioned service area or 
disaggregated spectrum shall be the same as applied to the EA 
authorization holder.
    (h) The license term for the partitioned service area or 
disaggregated spectrum shall be the remainder of the period that would 
apply to the EA authorization holder.
    (i) Licensees, except those using bidding credits in a competitive 
bidding procedure, shall have the authority to partition service areas 
or disaggregate spectrum.
    5. Sec. 101.63 is amended by revising paragraph (a) to read as 
follows:


Sec. 101.63  Period of construction; certification of completion of 
construction

    (a) Each Station, except in Local Multipoint Distribution Services 
and the 38.6-40.0 GHz band, authorized under this part must be in 
operation within 18 months from the initial date of grant.
* * * * *
    6. Sec. 101.64 is revised to read as follows:


Sec. 101.64  Service areas.

    Service areas for 38.6-40.0 GHz service are Economic Areas (EAs) as 
defined below. EAs are delineated by the Regional Economic Analysis 
Division, Bureau of Economic Analysis, U.S. Department of Commerce. The 
Commerce Department organizes the 50 States and the District of 
Columbia into 172 EAs. Additionally, there are four EA-like areas: Guam 
and Northern Mariana Islands; Puerto Rico and the U.S. Virgin Islands; 
American Samoa and the Gulf of Mexico. A total of 175 authorizations 
(excluding the Gulf of Mexico EA-like area) will be issued for each 
channel block in the 39 GHz band.
* * * * *
    7. Sec. 101.103 is amended by revising paragraph (i)(1) to read as 
follows:


Sec. 101.103  Frequency coordination procedures.

* * * * *
    (i)(1) When the licensed facilities are to be operated in the band 
38,600 MHz to 40,000 MHz and the facilities are located within 16 
kilometers of the boundaries of an Economic Area, each licensee must 
complete the frequency coordination process of subsection 101.103(d) 
with respect to neighboring EA licensees and existing licensees within 
its EA service area that may be affected by its operation prior to 
initiating service. In addition to the technical parameters listed in 
subsection 101.103(d), the coordinating licensee must also provide 
potentially affected parties technical information related to its 
subchannelization plan and system geometry.
* * * * *
    8. Sec. 101.147 is amended by revising paragraph (u)(2) to read as 
follows:


Sec. 101.147  Frequency assignments.

* * * * *
    (u)(2) Applications filed pursuant to Section 101.1206 shall 
identify any pre-existing rectangular service area authorizations that 
are located within, or are overlapping with, the EA for which the 
license is sought, and the provisions of Section 101.103 shall apply 
for purposes of frequency coordination between any authorized 
rectangular service area(s) and EA service area(s) that are 
geographically adjoining and overlapping.
* * * * *
[FR Doc. 99-21765 Filed 8-20-99; 8:45 am]
BILLING CODE 6712-01-U