[Federal Register Volume 66, Number 236 (Friday, December 7, 2001)]
[Rules and Regulations]
[Pages 63512-63516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30304]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 25 and 101

[IB Docket No. 98-172; FCC-01-323]


Redesignation of the 18 GHz Frequency Band, Blanket Licensing of 
Satellite Earth Stations in the Ka-band, and the Allocation of 
Additional Spectrum for Broadcast Satellite-Service Use

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document we grant in part and deny in part the 
petitions for reconsideration of the 18 GHz Order filed by Hughes 
Electronics Corporation (Hughes), the Fixed Wireless Communications 
Coalition (FWCC) and

[[Page 63513]]

Winstar Communications, Inc. (Winstar). We defer for action in a future 
Commission order certain issues raised by Hughes relating to the band 
plan adopted in the 18 GHz Order and blanket licensing. We also address 
a number of issues raised by Teledesic Corporation (Teledesic) in its 
letter to the Commission and its request for judicial review of the 
rules adopted by the Commission in the 18 GHz Order.

DATES: Effective January 7, 2002.

FOR FURTHER INFORMATION CONTACT: Richard Engelman, Planning & 
Negotiations Division, International Bureau, (202) 418-2150 or via 
electronic mail: [email protected]. In addition to filing comments with 
the Office of the Secretary, a copy of any comments on the information 
collections contained herein should be submitted to Judy Boley, Federal 
Communications Commission, Room 1-C804, 445 12th Street, SW., 
Washington, DC 20554, or via the Internet to [email protected].

SUPPLEMENTARY INFORMATION: The full text of this Commission decision is 
available for inspection and copying during normal business hours in 
the FCC Reference Center (Room CY-A257) 445 12th Street, SW., 
Washington, DC and may also be purchased from the Commission's copy 
contractor, International Transcription Services (ITS), Inc., (202) 
857-3800, 1231 20th Street, NW., Washington, DC 20036.

Summary of the Order on Reconsideration

    1. In this First Order on Reconsideration we addressed issues 
raised by Hughes, FWCC, Winstar, and Teledesic in petitions to the 
Commission for reconsideration, and a petition to the United States 
Court of Appeals for the District of Columbia for judicial review of 
the 18 GHz Order. The issues generally fall into one of four groups: 18 
GHz band plan, licensing, Legacy List, and relocation.
    2. With regard to the 18 GHz band plan, this Order gives the NGSO/
FSS operators increased flexibility in relocating interfering 
terrestrial fixed stations by terminating after ten years the co-
primary status of existing terrestrial fixed stations in the 19.26-19.3 
GHz band, and low-power terrestrial fixed service stations in the 18.8-
19.3 GHz band. This Order finds that it is appropriate to treat such 
operations in the same manner as other operations in the 18 GHz band, 
and that such treatment necessarily includes the right to compensation 
for relocation of both parts of a channel pair. Thus, this Order 
provides that, where it becomes necessary during the ten years to 
relocate an existing terrestrial fixed station in the 19.26-19.3 GHz 
band, or low-power terrestrial fixed service station in the 18.8-19.3 
GHz band, the FS operator will be able to receive comparable facilities 
at no cost to the fixed operator.
    3. We are persuaded by Hughes and several commenters to reverse the 
Legacy List policy that we adopted in the 18 GHz Order. As a result, 
this Order removes Sec. 25.145(i) of our rules and the requirement for 
a GSO/FSS space station licensee to use of the Legacy List coordination 
process to alleviate interference to a terrestrial fixed station.
    4. This Order also generally affirms our basic findings in the 18 
GHz Order with regard to the blanket licensing rules. It changes, 
however the power flux-density (pfd) value for the 18.3-18.8 GHz 
frequency band to the values in Sec. 25.208(c) to be consistent with 
the pfd limit in the Radio Regulations of the International 
Telecommunication Union and removes Sec. 25.208(d). We also determine 
that the pfd level in Sec. 25.138(a)(6) of -118 dBW/m2/MHz should apply 
to all Geostationary Satellite Orbit/Fixed Satellite Service (GSO/FSS) 
downlink bands in which the Commission permits blanket licensing. We 
amend Sec. 101.97 to clarify that an incumbent Fixed Service (FS) 
licensee retains primary status notwithstanding a change in ownership 
or control. Further, we clarify that an incumbent licensee is entitled 
to a 12-month trial period after relocation to test the new facilities.
    5. Finally, this Order generally denies the requests to reconsider 
the relocation issues, and reaffirms the Commission decision to adopt 
the relocation rules codified in Secs. 101.89 and 101.91. This is in 
part because we find that it is appropriate to apply in the 18 GHz band 
the established policy that the Commission has employed in other 
similar circumstances. In addition, we find that it is Commission 
policy to enable an incumbent, that is required to relocate, to 
construct a comparable replacement system without the additional burden 
of undue costs. Moreover, this Order finds that the alternative 
proposals offered by Teledesic for measuring relocation costs are 
plainly inconsistent with this Commission goal. We further find that, 
contrary to the allegations made by Teledesic, new entrants benefit 
from the Commission policy of seeking to ensure that incumbents have 
every possible reasonable incentive to relocate promptly and 
voluntarily.

Supplemental Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act (RFA), a Final 
Regulatory Flexibility Analysis (IRFA) of the possible significant 
economic impact on small entities was incorporated in the 18 GHz Order. 
The Commission sought written public comments on the proposals in the 
18 GHz NPRM including comment on the IRFA. This Supplemental Final 
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Rules

    In this First Order on Reconsideration, the Commission changes the 
pfd value for the 18.3-18.8 GHz frequency band to the values in 
Sec. 25.208(c) to be consistent with the pfd limit in the Radio 
Regulations of the International Telecommunication Union and remove 
Sec. 25.208(d). This First Order on Reconsideration also determines 
that the pfd level in Sec. 25.138(a)(6) of -118 dBW/m2/MHz should apply 
to all Geostationary Satellite Orbit/Fixed Satellite Service (GSO/FSS) 
downlink bands in which the Commission permits blanket licensing. It 
amends Sec. 101.97 to clarify that an incumbent Fixed Service (FS) 
licensee retains primary status notwithstanding a change in ownership 
or control. Further, this First Order on Reconsideration clarifies that 
an incumbent licensee is entitled to a twelve-month trial period after 
relocation to test the new facilities. Upon reconsideration, this First 
Order on Reconsideration also concludes that existing terrestrial 
services operating in the 19.26-19.3 GHz band will not be allowed to 
recover relocation reimbursement on a permanent basis, and will be 
subject to the ten year sunset period applicable to other FS operations 
in the 18 GHz band. This First Order on Reconsideration also takes the 
following steps to better reconcile the competing interests of the new 
entrants and the low-power terrestrial fixed service operators in 
satellite bands: (1) Cuts off any further low-power fixed service 
applications under Sec. 101.147(r)(10) as of April 1, 2002 (outdoor 
applications were already cut off in the 18 GHz Order); and (2) permits 
low-power services authorized pursuant Sec. 101.147(r)(10) to continue 
to operate on a co-primary basis for a period of ten years, subject to 
the right of satellite providers to require low-power operators to 
relocate. Finally, this First Order on Reconsideration removes 
Sec. 25.145(i) of our rules and reverses the Legacy List policy that 
the Commission adopted in the 18 GHz Order; thus, the

[[Page 63514]]

Commission will no longer require the use of the Legacy List 
coordination process by an FSS space station licensee to alleviate 
interference to a terrestrial fixed station.

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

    No comments were submitted in direct response to the IRFA.

C. Description and Estimate of the Number of Small Entities To Which 
the Rules Will Apply

    The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the adopted rules. The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. 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). A small organization is generally ``any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.'' Nationwide, as of 1992, there were 
approximately 275,801 small organizations. ``Small governmental 
jurisdiction'' generally means ``governments of cities, counties, 
towns, townships, villages, school districts, or special districts, 
with a population of less than 50,000.'' As of 1992, there were 
approximately 85,006 such jurisdictions in the United States. This 
number includes 38,978 counties, cities, and towns; of these, 37,566, 
or 96 percent, have populations of fewer than 50,000. The Census Bureau 
estimates that this ratio is approximately accurate for all 
governmental entities. Thus, of the 85,006 governmental entities, we 
estimate that 81,600 (91 percent) are small entities. Below, we further 
describe and estimate the number of small entity licensees that may be 
affected by the adopted rules.
1. International Services
    The Commission has not developed a definition of small entities 
applicable to licensees in the international services. Therefore, the 
applicable definition of small entity is generally the definition under 
the SBA rules applicable to Communications Services, Not Elsewhere 
Classified (NEC). This definition provides that a small entity is one 
with $11.0 million or less in annual receipts. According to the Census 
Bureau, there were a total of 848 communications service providers, 
NEC, in operation in 1992, and a total of 775 had annual receipts of 
less than $9.999 million. The Census report does not provide more 
precise data.
2. Fixed Satellite Transmit/Receive Earth Stations
    Currently there are no operational fixed satellite transmit/receive 
earth stations authorized for use in the 17.7-20.2 GHz and 27.5-30 GHz 
band. However, with 12 GSO/FSS licensees and 1 NGSO/FSS licensee, and 
our decision to adopt blanket licensing, we expect applications for FSS 
earth station licenses to be filed in the near future. We do not 
request or collect annual revenue information, and thus are unable to 
estimate the number of earth stations that would constitute a small 
business under the SBA definition.
3. Mobile Satellite Earth Station Feeder Links
    We have granted one license for MSS earth station feeder links. We 
do not request or collect annual revenue information, and thus are 
unable to estimate of the number of mobile satellite earth stations 
that would constitute a small business under the SBA definition.
4. Space Stations (Geostationary)
    Commission records reveal that there are 12 space station 
licensees. We do not request nor collect annual revenue information, 
and thus are unable to estimate of the number of geostationary space 
stations that would constitute a small business under the SBA 
definition, or apply any rules providing special consideration for 
Space Station (Geostationary) licensees that are small businesses.
5. Space Stations (Non-Geostationary)
    There is one Non-Geostationary Space Station licensee and that 
licensee is operational. We do not request or collect annual revenue 
information, and thus are unable to estimate of the number of non-
geostationary space stations that would constitute a small business 
under the SBA definition.
6. Direct Broadcast Satellites
    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.
7. Auxiliary, Special Broadcast and Other Program Distribution Services
    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). At the frequencies 
under consideration in this proceeding there are no transmissions of 
this type directly to the public. 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. The numbers of these stations are 
very small. 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 by themselves most, if not all, of these 
auxiliary facilities could be classified as small businesses. We also 
recognize that most of these types of services 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.
8. Microwave Services
    Microwave services includes common carrier, private operational 
fixed, and

[[Page 63515]]

broadcast auxiliary radio services. At present, there are 22,015 common 
carrier licensees, approximately 61,670 private 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.

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

    The Commission has adopted rules in this First Order on 
Reconsideration that involve no reporting requirements.

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

    The changes made by this First Order on Reconsideration do not 
affect small entities disproportionately and it is likely no additional 
outside professional skills will be necessary to comply with the rules 
and requirements here listed. The 18 GHz NPRM solicited comment on 
several alternatives for spectrum sharing blanket licensing, and band 
segmentation. This First Order on Reconsideration considered comments 
offering alternatives, and has acted in response to stated concerns and 
suggestions, particularly those representing significant agreement or 
consensus by commenters. The decisions of this First Order on 
Reconsideration should positively impact both large and small 
businesses by providing a faster, more efficient, and less economically 
burdensome coordination and licensing procedure.

F. Report to Congress

    The Commission will send a copy of this First Order on 
Reconsideration including this Supplemental FRFA, in a report to be 
sent to Congress pursuant to the Small Business Regulatory Enforcement 
Fairness Act of 1966, see 5 U.S.C. 801 (a)(1)(A). In addition, the 
Commission will send a copy of this First Order on Reconsideration, 
including this Supplemental FRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration. A copy of this First Order on 
Reconsideration and Supplemental FRFA (or summaries thereof) will also 
be published in the Federal Register. See 5 U.S.C. 604(b).

Ordering Clauses

    Pursuant to sections 1, 4(i), 4(j), 301, 302, 303(c), 303(e), 
303(f), 303(r) and 403 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154 (i), 154(j), 301, 302, 303(c), 303(e), 303(f), 303 
(r), and 403, this First Order on Reconsideration is adopted and that 
parts 25 and 101 of the Commission's rules ARE AMENDED, as specified in 
the rules, Effective January 7, 2002.
    The Regulatory Flexibility Analysis as required by section 604 of 
the Regulatory Flexibility Act and as set forth is adopted.
    The Commission's Consumer Information Bureau SHALL SEND a copy of 
this First Order on Reconsideration, including the Supplemental Final 
Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of 
the Small Business Administration.
    This proceeding is terminated pursuant to sections 4(i) and 4(j) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and 154 
(j).

List of Subjects

47 CFR Part 25

    Communications common carriers, communications equipment, Radio, 
Satellites, Telecommunications.

47 CFR Part 101

    Communications equipment, Radio.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Rule Changes

    For the reasons set forth in the preamble, parts 25, and 101 of 
title 47 of the Code of Federal Regulations are amended as follows:

PART 25--SATELLITE COMMUNICATIONS

    1. The authority citation for part 25 continues to read as follows:

    Authority: 47 U.S.C. 701-744. Interprets or applies Sec. 303, 47 
U.S.C. 303. 47 U.S.C. Secs. 154, 301, 302, 303, 307, 309 and 332, 
unless otherwise noted.

    2. Section 25.138 is amended by revising paragraph (a)(6) to read 
as follows:


Sec. 25.138  Blanket licensing provisions of GSO FSS Earth Stations in 
the 18.58-18.8 GHz (space-to-Earth), 19.7-20.2 GHz (space-to-Earth), 
28.35-28.6 GHz (Earth-to-space) and 29.5-30.0 GHz (Earth-to-space) 
bands.

    (a) * * *
    (6) Power flux-density (PFD) at the Earth's surface produced by 
emissions from a space station for all conditions, including clear sky, 
and for all methods of modulation shall not exceed a level of -118 dBW/
m\2\/MHz, in addition to the limits specified in Sec. 25.208 (d).
* * * * *

    3. Section 25.145 is amended by revising paragraph (h) and removing 
paragraph (i) to read as follows:


Sec. 25.145  Licensing Conditions for the Fixed-Satellite Service in 
the 20/30 GHz Bands.

* * * * *
    (h) Policy governing the relocation of terrestrial services from 
the 18.58 to 19.3 GHz band. Frequencies in the 18.58-19.3 GHz band 
listed in parts 21, 74, 78, and 101 of this chapter have been 
reallocated for primary use by the Fixed-Satellite Service, subject to 
various provisions for the existing terrestrial licenses. Fixed-
Satellite Service operations are not entitled to protection from the 
co-primary operations until after the period during which terrestrial 
stations remain co-primary has expired. (see Secs. 21.901(e), 
74.502(c), 74.602(g), 78.18(a)(4), and 101.147(r) of this chapter).

    4. In Sec. 25.202, footnote 7 of the table following paragraph 
(a)(1) is revised to read as follows:


Sec. 25.202  Frequencies, frequency tolerance and emission limitations.

* * * * *
    \7\ The band 18.8-19.3 GHz is shared co-equally with terrestrial 
radiocommunications services until June 8, 2010.
* * * * *

    5. Section 25.208 is amended by revising paragraph (c), removing 
paragraph (d), and redesignating paragraph (e) as paragraph (d) and 
paragraph (f) as paragraph (e) to read as follows:


Sec. 25.208  Power flux-density limits.

* * * * *
    (c) In the 18.3-18.8 GHz, 19.3-19.7 GHz, 22.55-23.00 GHz, 23.00-
23.55 GHz, and 24.45-24.75 GHz frequency bands, the power flux-density 
at the Earth's surface produced by emissions from a space station for 
all conditions and for all methods of modulation shall not exceed the 
following values:
    (1) -115 dB (W/m\2\) in any 1 MHz band for angles of arrival 
between 0 and 5 degrees above the horizontal plane.
    (2) -115+0.5 (d-5) dB (W/m\2\) in any 1 MHz band for angles of 
arrival d (in degrees) between 5 and 25 degrees above the horizontal 
plane.
    (3) -105 dB (W/m\2\) in any 1 MHz band for angles of arrival 
between 25

[[Page 63516]]

and 90 degrees above the horizontal plane.
* * * * *

PART 101--FIXED MICROWAVE SERVICES

    6. The authority citation for part 101 continues to read as 
follows:

    Authority: 47 U.S.C. 154, and 303.


    7. Section 101.85 is amended by revising paragraph (b) to read as 
follows:


Sec. 101.85  Transition of the 18.58-19.3 GHz band from the terrestrial 
fixed services to the fixed-satellite service (FSS).

* * * * *
    (b) FS operations in the 18.58-19.30 GHz band that remain co-
primary under the provisions of Secs. 21.901(e), 74.502(c), 74.602(d), 
78.18(a)(4) of this chapter, and Sec. 101.147(r) will continue to be 
co-primary with the FSS users of this spectrum until June 8, 2010 or 
until the relocation of the fixed service operations, whichever occurs 
sooner, except for operations in the band 19.26-19.3 GHz and low power 
systems operating pursuant to Sec. 101.47(r) (10), which shall operate 
on a co-primary basis until October 31, 2011. If no agreement is 
reached during the negotiations, an FSS licensee may initiate 
relocation procedures. Under the relocation procedures, the incumbent 
is required to relocate, provided that the FSS licensee meets the 
conditions of Sec. 101.91.
* * * * *

    8. Section 101.91 is amended by adding a sentence to the end of 
paragraph (c) to read as follows:


Sec. 101.91  Involuntary relocation procedures.

* * * * *
    (c) * * * The FS licensee may take up to 12 months to make such 
adjustments and perform such testing.
* * * * *

    9. Section 101.95 is amended by revising the section heading to 
read as follows:


Sec. 101.95  Sunset provisions for licensees in the 18.58-19.30 GHz 
band.

* * * * *

    10. Section 101.97 is amended by adding a new paragraph (a)(9) to 
read as follows:


Sec. 101.97  Future licensing in the 18.58-19.30 GHz band.

    (a) * * *
    (9) Changes in ownership or control.
* * * * *

    11. Section 101.147 is amended by revising paragraph (r) 
introductory text and by adding a sentence at the end of paragraph 
(r)(10)(iv) to read as follows:


Sec. 101.147  Frequency assignments.

* * * * *
    (r) 17,700 to 19,700 and 24,250 to 25,250 MHz: Stations operating 
on the following frequencies in the band 18.58-18.8 GHz that were 
licensed or had applications pending before the Commission as of June 
8, 2010 may continue those operations on a shared co-primary basis with 
other services under parts 21, 25, and 74 of the Commission's rules 
until June 8, 2010, except for operations in the band 19.26-19.3 GHz 
and low power systems operating pursuant to paragraph (r)(10) of this 
section, which shall operate on a co-primary basis until October 31, 
2011. Those stations operating on the following frequencies in the band 
18.8-19.3 GHz that were licensed or had applications pending before the 
Commission as of September 18, 1998 may continue those operations on a 
shared co-primary basis with other services under parts 21, 25, and 74 
of the Commission's rules until June 8, 2010. After this date, 
operations in the 18.58-19.30 GHz band are not entitled to protection 
from fixed-satellite service operations and must not cause unacceptable 
interference to fixed-satellite service station operations. No new part 
101 licenses will be granted in the 18.58-19.3 GHz band after June 8, 
2010, except for certain low power operations authorized under 
paragraph (r)(10) of this section, which may continue to be licensed 
until April 1, 2002. Licensees may use either a two-way link or one 
frequency of a frequency pair for a one-way link and must coordinate 
proposed operations pursuant to the procedures required in 
Sec. 101.103. (Note, however, that stations authorized as of September 
9, 1983, to use frequencies in the band 17.7-19.7 GHz may, upon proper 
application, continue to be authorized for such operations, consistent 
with the conditions related to the 18.58-19.3 GHz band.)
* * * * *
    (10) * * *
    (iv) * * * No new licenses will be authorized for applications 
received after April 1, 2002.
* * * * *
[FR Doc. 01-30304 Filed 12-6-01; 8:45 am]
BILLING CODE 6712-01-P