[Federal Register Volume 65, Number 223 (Friday, November 17, 2000)]
[Rules and Regulations]
[Pages 69451-69458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28819]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 90

[ET Docket No. 98-237; FCC 00-363]


3650-3700 MHz Government Transfer

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document allocates 50 megahertz of spectrum in the 3650-
3700 MHz band to the fixed and mobile (base stations) terrestrial 
services on a primary basis. We are ``grandfathering'' existing fixed 
satellite service (``FSS'') earth station sites in this band and, for a 
limited time, will accept new applications for FSS earth stations in 
the vicinity (i.e., within 10 miles) of these grandfathered sites to 
operate on a co-primary basis in the band. We will also permit 
additional FSS earth station operations on a secondary basis. This will 
ensure the continuity of FSS operations and permit new FSS operations 
to help alleviate congestion in the adjacent 3700-4200 MHz FSS band. 
Finally, to provide for compatibility with both terrestrial fixed 
service and FSS operations in the band, we are limiting the terrestrial 
mobile service use of the band to base station operations.

DATES: Effective February 15, 2001.

FOR FURTHER INFORMATION CONTACT: Rodney Conway, Office of Engineering 
and Technology, (202) 418-2904.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's First 
Report and Order, ET Docket No. 98-237, FCC 00-363 adopted October 12, 
2000, and released October 23, 2000. The full text of this Commission 
decision is available for inspection and copying during normal business 
hours in the FCC Reference Information Center, Room CY-A257, 445 12th 
Street, SW., Washington, DC, and also may be purchased from the 
Commission's duplication contractor, International

[[Page 69452]]

Transcription Service, (202) 857-3800, 1231 20th Street, NW. 
Washington, DC 20036.

Summary of the Report and Order

    1. Based on the record in this proceeding and the need to balance 
competing demands for this spectrum, we are adopting our proposal to 
allocate the 3650-3700 MHz band for terrestrial fixed service 
operations on a primary basis. As indicated by the commenting parties, 
allocation of this band on a primary basis for fixed service will 
facilitate the operation of a broad range of new advanced services. We 
believe that the 3650-3700 MHz band is situated low enough in the 
radiofrequency spectrum so as to permit favorable transmission 
characteristics which will allow the establishment of service links 
that can cover significant distances. In addition, 50 megahertz will 
provide enough bandwidth to allow for high speed digital data and video 
services. These characteristics should prove useful in establishing 
basic and advanced telecommunications services within rural areas of 
the country.
    The need for advanced services in rural areas has been well 
documented in recent studies. These studies conclude that Americans 
living in rural areas and inner cities do not have access to advanced 
services that are comparable to services available to people living in 
other areas. A lack of broadband infrastructure could limit the 
potential of these communities to attract and retain businesses and 
jobs, especially businesses that are dependent on electronic commerce. 
Lack of infrastructure could also restrict community access to 
education, health care, and recreational services. We conclude that 
allocation of the 3650-3700 MHz band for the fixed service will serve 
the public interest by providing broadband data services to residential 
and business consumers, particularly in rural areas. Additionally, this 
allocation will facilitate an alternative means of providing basic 
telephone service, thus fostering a competitive market structure for 
direct public switched telephone network (``PSTN'') access for rural 
and underserved areas of the U.S. For example, it could be used to 
provide unserved persons with a wireless connection to the PSTN and to 
economically serve high-cost wireline service areas, including rural 
areas.
    2. Given the challenging spectrum sharing environment involving the 
relatively weaker satellite receive signals, we remain concerned about 
mobile station (i.e., roving handset) operations in the 3650-3700 MHz 
band. However, while we note that mobile station operations may raise 
interference concerns, we find that land mobile base stations should be 
allowed to operate within the 3650-3700 MHz band. Mobile base stations 
are fixed and thus do not raise the same interference concerns as 
mobile handset operations. Mobile base stations in the 3650-3700 MHz 
band might operate with land mobile services offered in the 4940-4990 
MHz band.
    Specifically, the land mobile base stations could transmit in the 
3650-3700 MHz band, and the land mobile receivers could use the 4940-
4990 MHz band to transmit back to the land mobile base station. We 
therefore allocate the 3650-3700 MHz band to the mobile service on a 
nationwide co-primary basis with the fixed service. However, we limit 
this allocation to base station operations only. Consistent with the 
international allocation in this band, we are not permitting 
aeronautical mobile operations. Land mobile base stations in the 3650-
3700 MHz band will be subject to the same coordination procedures as FS 
stations concerning grandfathered Government radiolocation and 
grandfathered FSS operations.
    3. In the Notice of Proposed Rule Making and Order (``NPRM and 
Order''), 64 FR 2462, January 14, 1999, we imposed a freeze on the 
acceptance of applications for earth station operations in the 3650-
3700 MHz band. We proposed to permanently implement this action, but 
sought comment on alternative methods to meet the terrestrial fixed 
service needs while minimizing the effect on FSS operations. While some 
satellite providers indicate that sharing on a co-primary basis is 
possible, we decline to adopt such a proposal. We recognize that fixed 
operations and FSS share spectrum in some bands. We will permit sharing 
to the extent it is technically possible and promotes efficient use of 
the spectrum.
    However, in this band, allowing FSS on an unrestrained co-primary 
basis would impede any potential widespread use of the band for 
terrestrial services. Due to the weak signals that are received in the 
FSS, coordination with the higher-powered terrestrial operations would 
result in potentially large geographic areas where terrestrial services 
could not operate to avoid interference to FSS. The size and shape of 
these ``exclusion zones'' may be different for each FSS earth station 
site because factors such as shielding, antenna orientation and terrain 
elevation will vary from site to site. These coordination requirements 
and the presence of exclusion zones would significantly increase 
transaction costs and create a disincentive for deployment of new 
terrestrial operations. Thus, we find that unrestrained deployment of 
FSS earth stations could hinder or greatly inhibit the opportunities 
for terrestrial operations in the band.
    4. Pursuant to the Balanced Budget Act of 1997, the National 
Telecommunications and Information Administration (``NTIA''), 
identified the 3650-3700 MHz band as a possible substitute for 15 
megahertz at 1990-2110 MHz. A statutory condition of the substitution 
requires that alternative spectrum ``better serve the public interest, 
convenience, and necessity'' and that ``the alternative could 
reasonably be expected to produce comparable receipts.'' The other 
bands identified by NTIA as alternatives to the 15 megahertz at 1990-
2110 MHz include: 944-960 MHz, 1390-1400 MHz, 1427-1432 MHz, 1670-1675 
MHz, and 2500-2690 MHz. As noted in our Spectrum Policy Statement, the 
944-960 MHz and 2500-2690 MHz bands are already used extensively for 
non-Government services. We also observe that portions of the 1390-1400 
MHz and 1427-1432 MHz have already been allocated and assigned to non-
Government use. The remaining portions of these bands and the 1670-1675 
MHz band are small, noncontiguous segments and thus we believe are 
unlikely to raise comparable receipts as required by the BBA. Thus, 
with the exception of 3650-3700 MHz, none of the bands identified by 
NTIA is available to satisfy the requirements of the BBA. Because this 
50 megahertz is at a higher frequency than 15 megahertz of spectrum 
identified in the 1990-2110 MHz band, additional bandwidth is required 
to compensate for increased path losses that occur in the 3650-3700 MHz 
band. For these reasons, we find that the 3650-3700 MHz band is an 
equivalent and viable substitute for 15 megahertz of spectrum at 1990-
2110 MHz, taking into account differences in propagation 
characteristics between the two bands.
    5. Because we are substituting the 3650-3700 MHz band for 15 
megahertz of spectrum in the 1990-2110 MHz band, we must assign 
licenses for this spectrum by competitive bidding to satisfy the 
requirements of the BBA. Our allocation to the terrestrial services 
will enable us to establish service rules consistent with the statutory 
mandate to auction licenses for this spectrum.
    6. Recently enacted legislation states that the Commission ``shall 
not assign spectrum used for international or

[[Page 69453]]

global satellite services by competitive bidding.'' FSS in this band 
has historically been restricted to international, intercontinental 
services. Given that this band is allocated for space-to-Earth or 
downlink services, this footnote implies that data is being transmitted 
from another country. Even if this restriction were not in place, the 
international inter-continental nature of the satellite systems 
deployed in this band results in a footprint that extends well beyond 
the U.S. border into other countries. Because FSS is, or may be, used 
for the provision of international satellite services in this band, we 
believe that the assignment of FSS licenses by competitive bidding 
would be inconsistent with the ORBIT Act.
    While we do not plan to assign FSS licenses for the 3650-3700 MHz 
band by competitive bidding, we are taking a number of steps to 
continue to accommodate FSS use of the band. Specifically, we are: (1) 
Grandfathering existing FSS earth station sites on a co-primary basis; 
(2) providing a limited opportunity to request additional co-primary 
FSS earth station sites within 10 miles of existing grandfathered FSS 
earth station sites; and (3) allowing other new FSS earth station sites 
on a secondary basis. In addition, we note that the 3600-3650 MHz band 
remains available for FSS earth station operations on a primary basis.
    7. While incumbent FSS operations could relocate to other bands 
that are available for FSS, relocation would necessitate significant 
reconfiguration costs and disrupt continuity of operations. Recognizing 
the importance of providing continuity of service to the public, we 
will grandfather existing FSS earth station sites indefinitely. We also 
believe that the Commission should not mandate relocation of FSS 
operations to other bands because FSS and terrestrial operations, as 
limited by this First Report and Order, are not fundamentally 
incompatible. We are not, however, precluding voluntary negotiations 
between existing FSS licensees and new terrestrial licensees for 
relocation where feasible.
    8. We realize that grandfathering existing FSS earth station sites 
will impose constraints on new terrestrial operations. However, in many 
cases these new terrestrial fixed and mobile operations should be able 
to co-exist with existing FSS earth stations by ``engineering in'' 
facilities to avoid interference. Furthermore, many rural, remote and 
less densely populated areas that could benefit significantly from 
deployment of terrestrial fixed and mobile services are not effected by 
existing grandfathered FSS earth station sites. Thus, we conclude that 
grandfathering existing FSS earth station sites will not unreasonably 
constrain the new terrestrial services.
    9. In the Memorandum Opinion & Order (MO&O), 65 FR 36900, June 12, 
2000, the Commission did not establish a time limit for the filing of 
FSS earth station applications. However, because the new FSS facilities 
permitted by the MO&O could affect the use of the 3650-3700 MHz band by 
the terrestrial services, we now find it necessary to establish a limit 
on the acceptance of such applications and on the construction of FSS 
facilities. Accordingly, applications for FSS earth stations in the 
3650-3700 MHz band within 10 miles of the authorized coordinates of an 
existing grandfathered earth station submitted prior to December 1, 
2000 and subsequently authorized for service by the Commission will be 
co-primary with the terrestrial services. Such FSS earth stations will 
be grandfathered as described above. We consider the filing of an FSS 
earth station application before the cut-off date to be an expression 
of immediate need consistent with the intent of the MO&O. However, 
applicants will be required to complete construction and be operational 
within one year from the date of initial authorization. If a license 
for an FSS earth station at a grandfathered site is assigned or 
transferred, the earth station will retain its grandfathered status, 
provided there is no change in the site coordinates. In addition, 
certain modifications are permitted to the extent there is no change in 
the site coordinates. Such modifications should be minor in nature and 
can include changes in the polarization and antenna orientation. 
However, changes such as an increase in the height of the center line 
of the dish or a change in geographical coordinates of greater than one 
second in either latitude or longitude would not be considered minor. 
Further, any change in the earth station antenna dish size that 
increases the likelihood of receiving interference will not be 
considered a minor change in facilities. If a license for a 
grandfathered FSS station is forfeited pursuant to section 25.161(c) of 
the Commission's rules, the site will no longer be considered primary 
and will lose its grandfathered status.
    10. Subsequent to the end of the filing window, we will continue to 
accept applications for additional FSS earth stations. These 
authorizations, however, will be provided on a secondary basis only in 
the 3650-3700 MHz band. Secondary status will apply for new earth 
station sites located both inside and outside the coordination zones. 
We note that FSS earth stations only receive signals in this band, and 
thus cannot cause interference. We also note that secondary FSS earth 
stations are not entitled to protection from primary terrestrial 
operations. We find that allowing additional FSS expansion on a 
secondary basis will help alleviate congestion in the adjacent C-band 
(3700-4200 MHz) and allow FSS providers to market available capacity, 
while preserving opportunities for a viable terrestrial services. In 
addition, allowing additional FSS earth stations on a secondary basis 
may enable FSS providers licensed under Part 25 to enter into private 
arrangements with terrestrial service licensees in the secondary market 
for access to this spectrum. We note, however, that an agreement 
between a terrestrial service licensee and an FSS operator would not 
elevate an FSS earth station in this band to primary status relative to 
other FS licensees.
    11. Consistent with our regulatory treatment of existing FSS earth 
stations, we will grandfather the sites currently used to provide TT&C 
operations. As a result those sites will receive the same protections 
as the other grandfathered FSS earth stations in the 3650-3700 MHz 
band, except that they will be protected only for the frequencies they 
are authorized to use for TT&C operations. Any other TT&C operations 
site that receives grandfathering protection in the 3650-3700 MHz band 
will also be protected only for the specific frequencies the site is 
authorized to operate on pursuant to the license it holds.
    12. We deny the TT&C petition's request for a reservation of 10 MHz 
of spectrum in the 3650-3700 MHz band for TT&C operations, See Public 
Notice, Report Number 2306, dated November 23, 1998. We find that 
reserving 10 MHz of spectrum for TT&C operations for a few earth 
station sites would be an inefficient use of limited spectrum 
resources. We have determined that the public interest will be best 
served by adopting a regulatory framework that will foster the 
development and deployment of terrestrial services in the 3650-3700 MHz 
band. Nothing in part 2 of the Commission's rules prohibits TT&C 
operations under the FSS allocation in this band, or from grandfathered 
FSS earth station locations, provided the non-TT&C operations of the 
satellite system include operations in the fixed satellite service.
    13. In the NPRM and Order, the Commission requested comment on a 
proposal to delete the unused secondary

[[Page 69454]]

non-Government radiolocation service allocation in the 3650-3700 MHz 
band. No comments were filed supporting the continued secondary 
allocation for the unused non-Government radiolocation service and we 
find no sufficient reason to maintain the secondary unused allocation. 
Accordingly, we adopt the proposal and delete the unused secondary non-
Government radiolocation allocation to preserve the availability of the 
spectrum for use by the terrestrial services and FSS operations. We 
note that sufficient spectrum remains available within the 2900-3650 
MHz band, on a secondary basis, to accommodate non-Government 
radiolocation service needs.
    14. In the NPRM and Order, we noted that, as a condition of the 
transfer of the 3650-3700 MHz band to a mixed-use status, three 
Government radiolocation sites would be allowed to operate indefinitely 
in the band within an 80-kilometer ``radius of operation'' surrounding 
each site. NTIA indicates that a coordination distance of 80 kilometers 
around these three sites will provide adequate identification of 
spectrum conflicts, and that the Commission should coordinate any non-
Government terrestrial service or FSS station within 80 kilometers of 
these sites with NTIA's Frequency Assignment Committee on a case-by-
case basis. In the NPRM and Order, we requested comment on what actions 
should be taken to achieve this coordination in a manner to promote the 
ability of new non-Government services to co-exist with extremely high 
powered Government mobile radar systems in the adjacent 3300-3650 MHz 
band as well as with occassional high powered in-band use at three 
grandfathered Government radiolocation sites.
    15. Because the requirement to protect the three grandfathered 
Government radiolocation sites at an 80 kilometer distance is a 
condition of the transfer of this spectrum, we adopt NTIA's proposal 
for an 80 kilometer coordination radius to ensure that these sites will 
be protected from interference. This requirement means that non-
Government terrestrial service and FSS stations located within 80 
kilometers of the three grandfathered Government radiolocation stations 
may not cause interference to the grandfathered Government 
radiolocation operations, that they must accept any interference 
received from such operations, and that they must be coordinated before 
commencing operation. The coordination requirement will apply to all 
non-Government stations, not just base station operations, because any 
station within the coordination zone could potentially cause 
interference to the protected Government operations.
    Given that coordination is required only for areas within 80 
kilometers of three grandfathered Government radiolocation sites, we 
find that this should affect a limited number of non-Government 
stations. We adopt this coordination requirement in a footnote to the 
Table of Allocations contained in Section 2.106 of the Commission's 
rules. The coordination procedures are addressed as part of the service 
rules in the Second NPRM, adopted simultaneously with the First Report 
and Order and published elsewhere in this issue of the Federal 
Register.
    16. In the NPRM and Order, the Commission proposed to delete the 
Government radiolocation service allocation from the 3650-3700 MHz 
band, except for grandfathering three Government radio location sites 
that would continue operations in the band. The Commission also 
proposed to permit Government radiolocation operations in the 3650-3700 
MHz band on Naval vessels at an appropriate distance from the shore. 
NTIA recommends the inclusion of a footnote to the Table of Frequency 
Allocations indicating that off-shore Government radiolocation 
operations may operate on a noninterference basis with authorized non-
Government operations, and may not hinder the implementation of any 
non-Government operations. NTIA recommends that a distance of 30 
nautical miles (55.5 kilometers) from shore be specified. It notes that 
this recommended distance is based upon limited information, and that a 
different distance may later be found appropriate after further 
measurements and experience with non-Government use of the 3650-3700 
MHz band.
    17. After carefully reviewing the comments concerning this issue, 
we find that NTIA's recommended distance of 30 nautical miles from the 
shore of the U.S. or its territories may be insufficient to protect 
non-Government services that will operate in the band. We note that 
NTIA has indicated previously that the operational radius of the three 
grandfathered Government radiolocation operations is 80 kilometers. We 
note that 80 kilometers is approximately equal to 44 nautical miles. We 
are concerned that allowing operation of Government radiolocation 
stations any closer than 44 nautical miles (80 kilometers) to the U.S. 
or its territories will have the potential to cause interference to 
non-Government operations in the band. Therefore, we specify a distance 
of 44 nautical miles, which is equivalent to the 80 kilometers 
grandfathered Government radiolocation ``radius of operation'' as 
described in the NPRM and Order. NTIA's request to include the 
Government radiolocation allocation via a footnote, as described, will 
not hinder the introduction of non-Government services in the band, 
given the 80-kilometer protection limit.
    Additionally, offshore Government radiolocation stations will not 
be allowed to cause interference to non-Government stations, 
irrespective of their location. Further, if additional technical 
information and analysis is made available to us concerning any change 
in the distance requirements, we will consider altering the distance as 
appropriate.
    18. In the NPRM and Order, we proposed to delete the unused 
Government aeronautical radionavigation service (ground based) 
allocation in the 3650-3700 MHz band. We see no useful purpose in 
continuing this allocation. Therefore, for the reasons set forth in the 
NPRM and Order, we adopt our proposal to delete the Government 
aeronautical radionavigation service (ground based) allocation from the 
3650-3700 MHz band to preserve the band for non-Government use.

Final Regulatory Flexibility Analysis

    19. As required by the Regulatory Flexibility Act (RFA),\1\ an 
Initial Regulatory Flexibility Analysis (IRFA) was incorporated into 
the Notice of Proposed Rule Making and Order, in ET Docket 98-237.\2\ 
The Commission sought written public comments on the proposals in the 
NPRM and Order, including the IRFA. The Final Regulatory Flexibility 
Analysis (``FRFA'') in this First Report and Order, conforms to the 
RFA.\3\
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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).
    \2\ See 14 FCC Rcd 1295 (1999), 64 FR 2462, January 14, 1999.
    \3\ See 5 U.S.C. 604.
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A. Need for and Objective of This Report and Order

    20. These rules allocate the 3650-3700 MHz band to the fixed, 
mobile (base stations only), and grandfathered fixed satellite services 
on a co-primary basis and for non-grandfathered fixed satellite service 
earth station operations on a secondary basis. These actions are taken 
in order to make this transfer spectrum available for commercial 
services, including those of any small businesses. The adoption of this 
First

[[Page 69455]]

Report and Order will provide additional spectrum to be used in meeting 
the growing demand for fixed, mobile (base station only) and fixed 
satellite services among all sizes of providers.

B. Legal Basis for Adopted Rules

    21. The adopted rule changes are authorized pursuant to Sections 4, 
4(i), 157, 303, 303(g), 303(r), 307, and 332(c)(7) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154, 154(i), 157, 
303, 303(g), 303(r), 307, and 332(c)(7).

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

    22. No comments were filed in response to the IRFA that was 
contained in the NPRM and Order in this proceeding.

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

    23. For purposes of this First Report and Order, the RFA defines a 
``small business'' to be the same as a ``small business concern'' under 
the Small Business Act, 15 U.S.C. 632, unless the Commission has 
developed one or more definitions that are appropriate to its 
activities.\4\ Under the Small Business Act, a ``small business 
concern'' is one that: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) meets any additional 
criteria established by the Small Business Administration (``SBA'').\5\
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    \4\ See 5 U.S.C. 601(3) (incorporating by reference the 
definition of ``small business concern'' in 5 U.S.C. 632).
    \5\ See 15 U.S.C. 632.
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    24. A small organization is generally ``any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.'' \6\ Nationwide, as of 1992, there were 
approximately 275,801 small organizations.\7\ The definition of ``small 
governmental jurisdiction'' is one with populations of fewer than 
50,000.\8\ There are 85,006 governmental jurisdictions in the 
nation.\9\ This number includes such entities as states, counties, 
cities, utility districts and school districts. There are no figures 
available on what portion of this number has populations of fewer than 
50,000. However, this number includes 38,978 counties, cities and 
towns, and of those, 37,556, or 96 percent, have populations of fewer 
than 50,000.\10\ The Census Bureau estimates that this ratio is 
approximately accurate for all government entities. Thus, of the 85,006 
governmental entities, we estimate that 96 percent, or about 81,600, 
are small entities that may be affected by our rules. Nationwide, there 
are 4.44 million small business firms, according to SBA reporting 
data.\11\
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    \6\ Id. Section 601(4).
    \7\ Department of Commerce, U.S. Bureau of the Census, 1992 
Economic Census, Table 6 (special tabulation of data under contract 
to Office of Advocacy of the U.S. Small Business Administration).
    \8\ 5 U.S.C. 601(5).
    \9\ 1992 Census of Governments, U.S. Bureau of the Census, U.S. 
Department of Commerce.
    \10\ Id.
    \11\ See 1992 Economic Census, U.S. Bureau of the Census, Table 
6 (special tabulation of data under contract to the Office of 
Advocacy of the U.S. Small Business Administration).
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    25. The Commission has not developed a definition of small entities 
applicable to fixed satellite service licensees. Therefore, the 
applicable definition of small entity is the definition under the SBA 
rules applicable to Communications Services, Not Elsewhere Classified. 
This definition provides that a small entity is one with no more than 
11.0 million in annual receipts.\12\ According to Census Bureau data, 
there are 848 firms that fall under the category of Communications 
Services, Not Elsewhere Classified. Of those, approximately 775 
reported annual receipts of 11 million or less and qualify as small 
entities.\13\
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    \12\ See 13 CFR 121.201, Standard Industrial Classification 
(SIC) Code 4899.
    \13\ See 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 2D, 
Employment Size of Firms, 1992, SIC Code 4899 (issued May 1995).
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    26. As described, the designations we hereby adopt will permit 
wireless services, as broadly defined to include fixed and mobile base 
station operations. Neither the Commission nor the SBA has developed a 
definition of small entities applicable to wireless services licensees. 
Therefore, the applicable definition of small entity is the definition 
under the SBA rules applicable to radiotelephone (wireless) companies.
    27. The rules adopted by the First Report and Order will affect 
applicants who wish to provide fixed, mobile (base stations only) and/
or fixed satellite services in the 3650-3700 MHz band. Pursuant to 47 
CFR 24.702(b) the Commission has defined ``small entity'' for Blocks C 
and F broadband licensees as firms that had average gross revenues of 
less than $40 million dollars in the three previous calendar years. 
This Commission regulation defining ``small entity'' in the context of 
broadband PCS auctions has been approved by the SBA.\14\ With respect 
to the 3650-3700 MHz license applicants, we propose to use the small 
entity definition adopted in the Broadband PCS proceeding.
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    \14\ See Implementation of Section 309(j) of the Communications 
Act, Competitive Bidding, PP Docket 93-253, Fifth Report and Order, 
9 FCC Rcd 5532, 5581-82 (para. 115) (1994), 59 FR 37566, July 22, 
1994.
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    28. The Commission has not yet determined how many licenses will be 
awarded, nor will it know how many licensees will be small businesses 
until the auction is held. Even after that, the Commission will not 
know how many licensees will partition their license areas or 
disaggregate their spectrum blocks, if partitioning and disaggregation 
are allowed which may result in additional small entities. In view of 
our lack of knowledge of the entities which will seek licenses in the 
3650-3700 MHz band, we will assume that, for the purposes of our 
evaluations and conclusions in the FRFA, all of the prospective 
licensees are small entities, as that term is defined by the SBA or our 
definitions for the 3650-3700 MHz band. We invite comment on this 
analysis.

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

    29. The rules adopted in the First Report and Order allocate the 
3650-3700 MHz band to the fixed, mobile (base station operation, and 
grandfathered fixed satellite services on a co-primary basis and for 
non-grandfathered fixed satellite service earth station operations on a 
secondary basis. These adopted rules do not require any additional 
reporting, recordkeeping or other compliance requirements. Rules that 
may apply to the auctioning and licensing of these operations or other 
operating requirements will be addressed in the Second Notice of 
Proposed Rule Making in this proceeding and any reporting, 
recordkeeping and other compliance requirements will be addressed then.

F. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    30. No petition for rule making was filed to initiate this 
proceeding and there are no comments in this proceeding that suggest 
alternatives to the adopted allocation. We requested comment on 
alternatives that might minimize the amount of economic impact on small 
entities and no alternatives were offered. The allocation adopted in 
this First Report and Order represents the most efficient and least

[[Page 69456]]

restrictive method to accomplish the Commission's policies and 
objectives.

G. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Rules

    31. None.

H. Report to Congress

    32. The Commission will send a copy of the First Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
Small Business Regulatory Enforcement Fairness Act of 1996, see 5 
U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of 
the First Report and Order, including FRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration. See 5 U.S.C. 604(b).

List of Subjects in 47 CFR Parts 2 and 90

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 2 and 90 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, 302a, 303, and 336, unless otherwise 
noted.

    2. Section 2.106, the Table of Frequency Allocations, is amended as 
follows:
    a. Page 54 is revised.
    b. In the list of United States (US) Footnotes, footnote US110 is 
revised and footnotes US348 and US349 are added.
    c. In the list of Non-Federal Government (NG) Footnotes, footnotes 
NG169 and NG170 are added.
    d. In the list of Federal Government (G) Footnotes, footnotes G59 
and G110 are revised.
    The revisions and additions read as follows:


Sec. 2.106  Table of Frequency Allocations.

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United States (US) Footnotes

* * * * *
    US110  In the bands 3100-3300 MHz, 3500-3650 MHz, 5250-5350 MHz, 
8500-9000 MHz, 9200-9300 MHz, 9500-10000 MHz, 13.4-14.0 GHz, 15.7-
17.3 GHz, 24.05-24.25 GHz and 33.4-36.0 GHz, the non-Government 
radiolocation service shall be secondary to the Government 
radiolocation service and to airborne doppler radars at 8800 MHz, 
and shall provide protection to airport surface detection equipment 
(ASDE) operating between 15.7-16.2 GHz.
* * * * *
    US348  The band 3650-3700 MHz is also allocated to the 
Government radiolocation service on a primary basis at the following 
sites: St. Inigoes, MD (38 deg. 10' N., 76 deg. 23' W.); Pascagoula, 
MS (30 deg. 22' N., 88 deg. 29' W.); and Pensacola, FL (30 deg. 21' 
28" N., 87 deg. 16' 26" W.). All fixed and fixed satellite 
operations within 80 kilometers of these sites shall be coordinated 
through the Frequency Assignment Subcommittee of the 
Interdepartmental Radio Advisory Committee on a case-by-case basis.
    US349  The band 3650-3700 MHz is also allocated to the 
Government radiolocation service on a non-interference basis for use 
by ship stations located at least 44 nautical miles in off-shore 
ocean areas on the condition that harmful interference is not caused 
to non-Government operations.
* * * * *

Non-Federal Government (NG) Footnotes

* * * * *
    NG169  After December 1, 2000, operations on a primary basis by 
the fixed-satellite service (space-to-Earth) in the band 3650-3700 
MHz shall be limited to grandfathered earth stations. All other 
fixed-satellite service earth station operations in the band 3650-
3700 MHz shall be on a secondary basis. Grandfathered earth stations 
are those authorized prior to December 1, 2000, or granted as a 
result of an application filed prior to December 1, 2000, and 
constructed within 12 months of initial authorization. license 
applications for primary operations for new earth stations, major 
amendments to pending earth station applications, or applications 
for major modifications to earth station facilities filed on or 
after December 18, 1998, and prior to December 1, 2000, shall not be 
accepted unless the proposed facilities are in the vicinity (i.e., 
within 10 miles) of an authorized primary earth station operating in 
the band 3650-3700 MHz. License applications for primary operations 
by new earth stations, major amendments to pending earth station 
applications, and applications for major modifications to earth 
station facilities, filed after December 1, 2000, shall not be 
accepted, except for changes in polarization, antenna orientation or 
ownership of a grandfathered earth station.
    NG170  In the band 3650-3700 MHz, the mobile except aeronautical 
mobile service is limited to base station operations. These base 
stations are subject to the same coordination procedures as fixed 
service operations in the band 3650-3700 MHz.

Federal Government (G) Footnotes

* * * * *
    G59  In the bands 902-928 MHz, 3100-3300 MHz, 3500-3650 MHz, 
5250-5350 MHz, 8500-9000 MHz, 9200-9300 MHz, 13.4-14.0 GHz, 15.7-
17.7 GHz and 24.05-24.25 GHz, all Government non-military 
radiolocation shall be secondary to military radiolocation, except 
in the sub-band 15.7-16.2 GHz airport surface detection equipment 
(ASDE) is permitted on a co-equal basis subject to coordination with 
the military departments.
* * * * *
    G110  Government ground-based stations in the aeronautical 
radionavigation service may be authorized between 3500-3650 MHz when 
accommodation in the band 2700-2900 MHz is not technically and/or 
economically feasible.
* * * * *

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

    3. The authority citation for part 90 continues to read as follows:

    Authority: Sections 4(i), 11, 303(g), 303(r) and 332(c)(7) of 
the Communications Act of 1934 as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), 332(c)(7).

    4. Section 90.103(b) is amended by removing the entry 3500 to 3700 
under the heading ``megahertz'' in the frequency table and adding in 
numerical order the entry 3500 to 3650 to read as follows:


Sec. 90.103  Radiolocation Service.

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    (b) * * *

                  Radiolocation Service Frequency Table
------------------------------------------------------------------------
          Frequency of band             Class of station(s)   Limitation
------------------------------------------------------------------------
 
                  *        *        *        *        *
------------------------------------------------------------------------
                                Megahertz
------------------------------------------------------------------------
 
                  *        *        *        *        *
3500 to 3650........................  do....................        12
 
                  *        *        *        *        *
------------------------------------------------------------------------

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[FR Doc. 00-28819 Filed 11-16-00; 8:45 am]
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