[Federal Register Volume 67, Number 68 (Tuesday, April 9, 2002)]
[Rules and Regulations]
[Pages 17009-17013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8482]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 26

[WT Docket No. 00-32; FCC 02-47]


The 4.9 GHz Band Transferred From Federal Government Use

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission allocates 50 megahertz of 
spectrum in the 4940-4990 MHz band (4.9 GHz band) for fixed and mobile 
services (except aeronautical mobile service) and designates this band 
for use in support of public safety. The allocation and designation 
provide public safety users with additional spectrum to support new 
broadband applications. This action is pursuant to statutory 
requirements of the Omnibus Budget Reconciliation Act of 1993. The 
Commission also continues its ongoing effort to streamline rules and 
eliminate redundancy by removing part 26.

DATES: Effective May 9, 2002.

ADDRESSES: Parties who choose to file comments by paper must file an 
original and four copies to William F. Caton, Acting Secretary, Office 
of the Secretary, Federal Communications Commission, 445 12th St., SW., 
Room TW-A325, Washington, DC 20554. Comments may also be filed using 
the Commission's Electronic Filing System, which can be accessed via 
the Internet at www.fcc.gov/e-file/ecfs.html.

FOR FURTHER INFORMATION CONTACT: Genevieve Augustin, Esq., 
[email protected], or Roberto Mussenden, Esq., [email protected], Policy 
and Rules Branch, Public Safety and Private Wireless Division, Wireless 
Telecommunications Bureau, (202) 418-0680, or TTY (202) 418-7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Second Report and Order, FCC 02-47, adopted 
on February 14, 2002, and released on February 27, 2002. The full text 
of this

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document is available for inspection and copying during normal business 
hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., 
Washington, DC 20554. The complete text may be purchased from the 
Commission's copy contractor, Qualex International, 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554. The full text may also be 
downloaded at: www.fcc.gov. Alternative formats are available to 
persons with disabilities by contacting Brian Millin at (202) 418-7426 
or TTY (202) 418-7365.
    1. In this Second Report and Order (Second R&O), the Commission 
allocates 50 megahertz of spectrum in the 4940-4990 MHz band (4.9 GHz 
band) for fixed and mobile services (except aeronautical mobile 
service) and designates this band for use in support of public safety. 
This allocation and designation will provide public safety users with 
additional spectrum to support new broadband applications such as high-
speed digital technologies and wireless local area networks (WLANs) for 
incident scene management. The spectrum will also support dispatch 
operations and vehicular/personal communications. The Commission 
believes this decision aligns with new national priorities focusing on 
homeland security, and will ensure that agencies involved in the 
protection of life and property possess the communications resources 
needed to successfully carry out their mission. Furthermore, we seek to 
transition to an environment in which the public safety community 
enjoys maximum access to emerging broadband technologies. This action 
effectuates the transfer of this spectrum from Federal Government to 
non-Federal Government use pursuant to statutory requirements of the 
Omnibus Budget Reconciliation Act of 1993. We also continue our ongoing 
effort to streamline our Rules and eliminate redundancy by removing 
part 26 of our rules.

A. Allocation of the 4.9 GHz Band

    2. The Commission allocates the 4.9 GHz band to non-Government 
fixed and mobile services, excluding aeronautical mobile service, on a 
co-primary basis. This allocation permits flexibility and a wide range 
of fixed and mobile services. The Commission allows licensees to 
utilize this spectrum for any service permitted within any of the 
allocation categories of fixed and mobile, to include any fixed, land 
mobile, or maritime mobile service. The Commission excludes 
aeronautical mobile service from the entire 4.9 GHz band for the 
protection of radio astronomy operations in the 4950-4990 MHz sub-band 
and the 4990-5000 MHz band. The Commission deletes the Government fixed 
and mobile service allocations from the 4.9 GHz band. The Commission 
concludes that a flexible allocation would be in the public interest. 
Such flexibility would not deter investment in communications and 
services, or technology development; and would not cause harmful 
interference among users.

B. Sharing With Passive Operations

    3. Regarding radio astronomy use of the 4.9 GHz band, the 
Commission deletes footnote US257 from the Table of Frequency 
Allocations and merges it into a revised footnote US311, requiring that 
every practical effort be made to protect radio astronomy observations 
in the 4950-4990 MHz band, which operate on an unprotected basis at 
certain Radio Astronomy Observatories listed. The Commission declines 
the exclusion of non-aeronautical mobile operation and the imposition 
of frequency coordination procedures on fixed or non-aeronautical 
mobile operation within the radio astronomy zones.

C. Removal of Part 26 of the Commission's Rules

    4. Inasmuch as there are no part 26 licensees, and the Commission 
no longer has jurisdiction over the frequencies to which these rules 
are applicable, the Commissions removes this part from its rules.

D. Designation of the 4.9 GHz Band for Use in Support of Public 
Safety

    5. The Commission concludes that the 4.9 GHz band should be 
designated for use in support of public safety providing public safety 
users with access to state of the art technologies that will enhance 
their critical operations capabilities. The acts of terrorism committed 
against the United States on September 11, 2001 reinforce the critical 
nature of the public safety community's responsibilities to our 
Nation's safety and well being. nevertheless, then numerous public 
safety entities have filed in this proceeding supporting public safety 
use of the 4.9 GHz band to implement and utilize the technologies 
described previously. The record does not support the Commission's 
previous tentative conclusion, set forth, that the designation of 
spectrum in the 700 MHz band for public safety use obviates a need to 
allocate spectrum in the 4.9 GHz band for use in support of public 
safety. Finally, we agree with Motorola that the Commission is not 
statutorily required to use competitive bidding to license the 4.9 GHz 
band and therefore licensing this band for public safety is fully 
consistent with the Communications Act.

II. Final Regulatory Flexibility Certification (Second Report and 
Order)

    6. The Regulatory Flexibility Act (RFA) requires that a regulatory 
flexibility analysis be prepared for notice and comment rulemaking 
proceedings, unless the agency certifies that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' The RFA generally defines ``small entity'' as 
having the same meaning as the term ``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).
    7. This Second R&O allocates the band 4940-4990 MHz to the fixed 
and mobile, except aeronautical mobile, services on a co-primary basis, 
to be used exclusively by public safety. This allocation affects public 
safety users by providing them with additional spectrum to support new 
broadband applications such as high-speed digital technologies and 
wireless local area networks for incident scene management, dispatch 
operations, and vehicular/personal communications, and thus enables 
public safety providers to more effectively, efficiently and safely 
serve their communities. In addition, our action may affect indirectly 
equipment manufacturers by ultimately potentially increasing the demand 
for their goods and services. Both of these effects are positive 
benefits, with no associated additional compliance burdens. Also, an 
indirect affect of this allocation on some small entities is the 
potential enhancement of their protection from crime and hazards, and 
of their receipt of emergency services.
    8. Therefore, we certify that the requirements of this Second R&O 
will not have a significant economic impact on a substantial number of 
small entities. The Commission will send a copy of the Second R&O, 
including a copy of this final certification, in a report to Congress 
pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A). In 
addition, the Second R&O and this certification will be sent

[[Page 17011]]

to the Chief Counsel for Advocacy of the Small Business Administration, 
and will be published in the Federal Register. See U.S.C. 605(b).

III. Ordering Clauses

    9. Pursuant to sections 4(i), 303(r), and 403 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, this Report and 
Order is hereby adopted.
    10. Part 2 of the Commission's rules is amended as specified in 
rule changes and such rule amendments shall be effective May 9, 2002.
    11. Pursuant to section 4(i) of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), that Part 26 of the Commission's rules, 47 
CFR part 26, is no longer in the public interest, and therefore is 
Removed, effective May 9, 2002.

List of Subjects

47 CFR Part 2

    Communications equipment, Radio.

47 CFR Part 26

    Communications common carrier, Radio.

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

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 2 as follows:

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

    1. The authority citation for part 2 continues to read as follows:

    Authority:  47 U.S.C. 154, 302(a), 303, and 336, unless 
otherwise noted.


    2. Amend Sec. 2.106, as follows:
    a. Revise page 55.
    b. In the list of United States (US) footnotes, remove footnote 
US257 and revise footnote US311.
    c. In the list of Federal Government (G) Footnotes, revise footnote 
G122.
    The revisions read as follows:


Sec. 2.106  Table of Frequency Allocations.

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United States (US) Footnotes

* * * * *
    US311  Radio astronomy observations may be made in the bands 1350-
1400 MHz and 4950-4990 MHz on an unprotected basis at the following 
radio astronomy observatories:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Allen Telescope Array, Hat          Rectangle between latitudes 40 deg.
 Creek, California.                 00' N and 42 deg. 00' N and between
                                  longitudes 120 deg. 15' W and 122 deg.
                                                  15' W.
NASA Goldstone Deep Space                      80 kilometers (50 mile)
 Communications Complex,            radius centered on latitude 35 deg.
 Goldstone, California.              18' N, longitude 116 deg. 54' W.
National Astronomy and              Rectangle between latitudes 17 deg.
 Ionosphere Center, Arecibo,        30' N and 19 deg. 00' N and between
 Puerto Rico.                      longitudes 65 deg. 10' W and 68 deg.
                                                  00' W.
National Radio Astronomy            Rectangle between latitudes 32 deg.
 Observatory, Socorro, New          30' N and 35 deg. 30' N and between
 Mexico.                          longitudes 106 deg. 00' W and 109 deg.
                                                  00' W.
National Radio Astronomy            Rectangle between latitudes 37 deg.
 Observatory, Green Bank, West      30' N and 39 deg. 15' N and between
 Virginia.                         longitudes 78 deg. 30' W and 80 deg.
                                                  30' W.
                                ----------------------------------------
    National Radio Astronomy                   80 kilometers (50 mile)
       Observatory, Very                    radius centered on:
                                ----------------------------------------
  Long Baseline Array Stations     Latitude (North)    Longitude (West)
------------------------------------------------------------------------
Brewster, WA...................  48 deg. 08'          119 deg. 41'
Fort Davis, TX.................  30 deg. 38'          103 deg. 57'
Hancock, NH....................  42 deg. 56'          71 deg. 59'
Kitt Peak, AZ..................  31 deg. 57'          111 deg. 37'
Los Alamos, NM.................  35 deg. 47'          106 deg. 15'
Mauna Kea, HI..................  19 deg. 48'          155 deg. 27'
North Liberty, IA..............  41 deg. 46'          91 deg. 34'
Owens Valley, CA...............  37 deg. 14'          118 deg. 17'
Pie Town, NM...................  34 deg. 18'          108 deg. 07'
Saint Croix, VI................  17 deg. 46'          64 deg. 35'
------------------------------------------------------------------------
Owens Valley Radio Observatory,   Two contiguous rectangles, one between
      Big Pine, California          latitudes 36 deg. 00' N and 37 deg.
                                   00' N and between longitudes 117 deg.
                                     40' W and 118 deg. 30' W and the
                                  second between latitudes 37 deg. 00' N
                                       and 38 deg. 00' N and between
                                  longitudes 118 deg. 00' W and 118 deg.
                                                  50' W.
------------------------------------------------------------------------


Every practicable effort will be made to avoid the assignment of 
frequencies in the bands 1350-1400 MHz and 4950-4990 MHz to stations in 
the fixed and mobile services that could interfere with radio astronomy 
observations within the geographic areas given above. In addition, 
every practicable effort will be made to avoid assignment of 
frequencies in these bands to stations in the aeronautical mobile 
service which operate outside of those geographic areas, but which may 
cause harmful interference to the listed observatories. Should such 
assignments result in harmful interference to these observatories, the 
situation will be remedied to the extent practicable.
* * * * *

Government (G) Footnotes

* * * * *
    G122  In the bands 2390-2400 MHz, 2402-2417 MHz, and 4940-4990 MHz, 
Government operations may be authorized on a non-interference basis to 
authorized non-Government operations, but shall not hinder the 
implementation of any non-Government operations.
* * * * *

PART 26--[Removed]

    3. Under the authority 47 U.S.C. 154, amend 47 CFR chapter I by 
removing part 26.

[FR Doc. 02-8482 Filed 4-8-02; 8:45 am]
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