[Federal Register Volume 68, Number 16 (Friday, January 24, 2003)]
[Rules and Regulations]
[Pages 3455-3465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1457]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 21 and 101

[ET Docket No. 00-258; FCC 02-304]


Advanced Wireless Services

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document allocates spectrum for advanced services in the 
1710-1755 MHz, 2110-2150-MHz, and 2150-2155 MHz bands. The goal of this 
document is to promote the provision of advanced wireless services to 
the public, which supports the Commission's obligations under section 
706 of the 1996 Telecommunication Act.

DATES: Effective February 24, 2003.

FOR FURTHER INFORMATION CONTACT: Jamison Prime, Office of Engineering 
and Technology, (202) 418-7474.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order, ET Docket No. 00-258, FCC 02-304, adopted November 7, 
2002, and released November 15, 2002. The full text of this document is 
available for inspection and copying during regular business hours in 
the FCC Reference Center (Room CY-A257), 445 12th Street, SW., 
Washington, DC 20554. The complete text of this document also 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: http://www.fcc.gov. Alternative formats 
are available to persons with disabilities by contacting Brian Millin 
at (202) 418-7426 or TTY (202) 418-7365.

Summary of the Second Report and Order

    1. This Second Report and Order allocated 90 MHz of spectrum in the 
1710-1755 MHz and 2110-2155 MHz bands that can be used for Advanced 
Wireless Service (AWS). This spectrum comes from bands that the 
Commission previously identified as candidate bands for the provision 
of AWS, and includes spectrum used by Federal government entities that 
is slated for transfer to non-Federal government use, spectrum 
currently used by fixed microwave services and designated for emerging 
technologies, and spectrum currently used by the Multipoint 
Distribution Service (MDS).

Spectrum for AWS

    2. 1710-1755 MHz--The 1710-1755 MHz band was initially identified 
in 1995 for transfer from Federal government use to mixed Federal 
government/non-Federal government use. At that time, National 
Telecommunications Information Administration (NTIA) determined that 
this band could be made available to non-Federal government users in 
2004. NTIA also identified certain incumbent Federal government 
facilities that may continue to operate in the band and must be 
protected from interference. In its 2002 Viability Assessment, NTIA 
outlined additional steps for reaccommodating existing Federal 
government users in the band segment, including some that have a right 
to remain in the band indefinitely. The NTIA plan offered a mechanism 
that could largely clear the band of Federal government users no later 
than December 31, 2008.
    3. Commenters note that the 1710-1755 MHz band enjoys many 
characteristics that make it suitable for AWS. They note it is already 
being used in many countries for 2G-style wireless services so it is 
likely to promote global spectrum harmonization in the long term, which 
in turn will foster roaming, and economies of scale that can translate 
into lower development costs and manufacturing efficiencies. They 
further state that this band can also help ensure that United States 
residents enjoy the same level of advanced services as in other 
countries. The parties observe that the 1710-1755 MHz band is slated to 
be made available for non-Federal Government commercial use, and that 
the 2002 Viability Assessment offers a plan that can make the band even 
more useful for AWS. Catholic Television Network also states that the 
band ``offers better propagation characteristics,'' than other bands 
under consideration. We also note that the band size--45 megahertz 
would provide flexibility to accommodate a variety of channelization 
plans.
    4. We find that it serves the public interest to allocate the 1710-
1755 MHz band segment for mobile and fixed services on a co-primary 
basis contingent on its becoming available for non-Federal government 
mixed use January 1, 2004. In addition, we are removing the fixed and 
mobile allocations from the Federal government Table in the 1710-1755 
MHz band, except as specified in the new United States footnote US378, 
which codifies Federal government residual rights. We also retain and 
modify footnote US311 in the Table of Frequency Allocations. This 
footnote identifies certain pre-existing radio astronomy activities 
that exist between 1718.8 MHz and 1722.2 MHz at observatories set forth 
in Appendix F of the Notice of Proposed Rule Making (NPRM) 66 FR 7438, 
January 23, 2001. Because radio astronomy facilities in this band 
operate on an unprotected basis, we conclude that it is not necessary 
to add rules setting forth coordination procedures and exclusion zones, 
as the National Academies of Science (NAS) suggests. The footnote, 
modified to update the list of radio astronomy facilities, will serve 
to apprise parties of these operations.
    5. 2110-2150/2150-2155 MHz--Currently, the 2110-2150 band is used 
in the United States primarily for non-Federal Government fixed and 
mobile services licensed under the Fixed Microwave Service in part 101 
of the rules, the Public Mobile Services under part 22 of the rules, 
and the Domestic Public Fixed Radio Services under part 21 of the 
rules. Federal government use of this band is generally on a secondary 
basis and is limited to space research earth stations for earth-to-
space transmissions in the 2110-2120 MHz portion of the band. The 
Commission

[[Page 3456]]

originally identified this band for new advanced fixed and mobile 
services in the 1992 Emerging Technologies proceeding and adopted rules 
and procedures to permit new licensees to relocate existing fixed 
service microwave licensees from this spectrum band.
    6. The 2110-2150 MHz band is already allocated to the fixed and 
mobile services on a primary basis, and thus it is not necessary that 
we reallocate this spectrum in order to make it available for AWS use. 
Instead we re-designate the band for new uses consistent with the 
general outline of our Emerging Technologies proceeding. We also note 
that the Balanced Budget Act of 1997 (BBA-97) identifies the 2110-2150 
MHz band for advanced wireless use and specifies that the band must be 
assigned under the competitive bidding procedures.
    7. In addition, we note that the National Aeronautical and Space 
Administration (NASA) operates on a primary basis a station in the 
2110-2120 MHz band at Goldstone, California as part of the Space 
Research service. This station, which is authorized via United States 
footnote US252, is used by NASA's Deep Space Network (DSN) for uplink 
transmissions to interplanetary spacecraft. In the NPRM, we proposed 
not to relocate this facility. Moreover, the DSN earth station 
transmits with a nominal EIRP of 105.5 dBW. In the NPRM, we noted that 
during command link operations it is likely that mobile receivers on 
the 2110-2120 MHz segment (and possibly in adjacent bands above 2120 
MHz) will not be able to operate within the areas surrounding 
Goldstone.
    8. We examined the interference characteristics of the Goldstone 
DSN facility and based on its typical operation pattern, which is 
intermittent, the amount of its signal that would be blocked by terrain 
in many directions, and the low population density in the areas near 
Goldstone, we conclude that a significant amount of interference should 
not occur to AWS. Therefore, we will not formally restrict use of the 
2110-2120 MHz band in the vicinity of Goldstone. However, we anticipate 
that this band will be unusable for advanced services at certain times 
in the immediate vicinity of Goldstone, and expect that potential 
licensees will take this fact into account and will develop their 
business and service plans accordingly. We believe that such an 
approach is practical, given the comments of the AWS proponents that 
discussed Goldstone interference, and we will work cooperatively with 
JPL and other interested parties to insure that our approach does in 
fact achieve its goals.
    9. The 2150-2160 MHz band is allocated internationally to the fixed 
and mobile services on a primary basis and is regulated under part 21 
of our rules as part of MDS. This band is generally operated as two 
channels--Channel 1 (2150-2156 MHz) and Channel 2A (2156-2160 MHz). In 
addition, licensees may use channel 2 (2156-2162 MHz) on a limited 
basis in 50 cities. MDS may also use spectrum in the 2500-2690 MHz 
band.
    10. The Commission concludes that the record supports reallocation 
of 5 megahertz of spectrum at 2150-2155 MHz to add a mobile allocation 
to support the provision of AWS. Because this spectrum is contiguous to 
the 2110-2150 MHz band, this reallocation will allow efficiencies in 
deploying new AWS. For example, there will be only one point where AWS 
and MDS bands are adjacent and interference issues will need to be 
addressed. We note that the 2150-2155 MHz band is part of the 
``worldwide'' IMT-2000 base station transmit band that extends from 
2110 MHz to 2170 MHz. Thus our action here more closely aligns U.S. 
spectrum with allocations in the rest of the world and could lead to 
lower equipment costs and promote global roaming. Furthermore, this 
action will provide two contiguous 45 megahertz blocks of paired 
spectrum (i.e., 1710-1755 MHz paired with 2110-2155 MHz), and provide 
more options for assigning large spectrum blocks suitable for AWS use.
    11. The Commission recognizes that our decision here to reallocate 
the 2150-2155 MHz band from MDS to AWS use requires that we address 
certain issues regarding MDS operations. In particular, we will have to 
consider relocation spectrum and propose relocation procedures for MDS, 
keeping in mind the need to avoid disruption to existing customers. 
Because we do not anticipate licensing the band for new services until 
after we adopt service rules, and because the companion Federal 
government transfer spectrum in the 1710-1755 MHz band will not be 
available until 2004, there is sufficient time for us to identify in a 
separate proceeding to be initiated in the near future any necessary 
relocation spectrum for MDS licensees and to craft appropriate 
relocation procedures. In addressing relocation, however, we recognize 
the importance of avoiding unnecessary delay so as to minimize 
uncertainty to existing licensees.
    12. We now turn to the relocation procedures for incumbent fixed 
microwave service licensees that currently operate in the 2110-2150 MHz 
band. Because this band was identified and reallocated for new uses in 
the Emerging Technologies proceeding, a mechanism already exists to 
clear these incumbent licensees. In the NPRM, we noted that fixed 
microwave service incumbents holding primary status (see Second Report 
and Order, footnote 149), in the 2110-2150 MHz band are entitled to 
compensation for relocation of facilities under these policies. See 
Emerging Technologies Third Report and Order and Memorandum Opinion and 
Order, 8 FCC Rcd 6589 (1993) 58 FR 46547, September 2, 1993. New 
licensees may relocate incumbent licensees' systems at their option. In 
general, a new licensee will relocate an incumbent system if it 
determines that the incumbent system will cause interference to the new 
licensee's system. The main elements of the relocation process include 
a set negotiation period or periods, usually triggered at the request 
of the new licensee; a requirement that the parties negotiate in good 
faith during the mandatory negotiation period; and the right of the 
incumbent to be relocated to comparable facilities at the expense of 
the new licensee. The relocation compensation includes all engineering, 
equipment, site, and FCC fees. The new licensee must complete all 
activities necessary for implementing the replacement facilities, and 
must test the new facilities to ensure comparability with the existing 
facilities. See generally 47 CFR 101.69 through 101.99. We further 
noted that certain fixed microwave incumbents in the 2110-2150 MHz band 
segment consist of links that are paired with frequencies in the 2165-
2200 MHz band, which was previously reallocated to support MSS. 
Moreover, some microwave licensees at 2110-2115 MHz have paired links 
in the 2160-2165 MHz band.
    13. In the NPRM, we noted that it would be possible for both 
relocation procedures to apply to the same new entrant in the 2110-2150 
MHz band--the modified MSS relocation procedure for a link paired 
between the 2110-2150 MHz and 2165-2200 MHz bands and the Emerging 
Technologies procedure for all other relocations (including the 
relocation of a link paired between the 2110-2150 MHz and 2160-2165 MHz 
bands). We thus proposed to use the modified procedure for the 
relocation of any incumbent user in order to provide a single 
relocation process for this band. For microwave links paired in the 
2110-2150 and 2160-2165 MHz bands, a new licensee would be required to 
relocate both paths (if such a relocation had not yet been done), but 
would retain a right

[[Page 3457]]

to seek reimbursement of 50 percent of its relocation costs from the 
licensee that ultimately uses frequencies in the second path. All new 
licensees, regardless of whether they relocate paired or unpaired 
microwave incumbents, would be subject to the modified relocation rules 
(such as the shortened mandatory negotiation period).
    14. We conclude that the modified relocation procedures, as 
proposed, represent the best course. A unified approach to our rules 
and procedures serves the public interest, and can promote the rapid 
development of AWS, which many commenters support. Moreover, if the 
demand for the advanced services is as robust as commenters claim, 
incumbent licensees should find new licensees particularly eager to 
reach relocation agreements so as not to be competitively disadvantaged 
by a delay in their service deployment. Finally, we note that under our 
basic relocation principles, incumbents retain a right to comparable 
facilities. We stress that we are not altering this process, nor an 
incumbent's right to seek relief if it believes the relocation process 
has not been conducted in good faith. We observe, however, that we may 
need to modify the reimbursement provisions if MDS is reassigned to the 
2155-2165 MHz band because Fixed Service microwave operations in the 
2160-2165 MHz band would have to be relocated. Under the current rules, 
for example, MDS would have to reimburse a new AWS entrant who is 
trying to clear paired microwave links at 2110-2115 and 2160-2165 MHz.

Other Bands

    15. 1755-1850 MHz. In the NPRM, we identified the 1755-1850 MHz 
band for consideration for the provision of AWS. The 1755-1770 MHz band 
segment was considered as part of the initial NTIA studies, and was 
again evaluated in the 2002 Viability Assessment. In this most recent 
review, NTIA concluded that the 1755-1850 MHz band is not viable for 
use by AWS due to the extensive and critical Federal Government 
operations in the band, including DOD mobile systems operating in the 
1755-1850 MHz range that ``have recently been elevated in importance 
due [to] the war on terrorism, homeland defense, and possible 
requirements for ballistic missile defense.'' Moreover, NTIA was unable 
to identify alternative spectrum bands that could readily accommodate 
many of these systems, including air combat training systems, the Land 
Warrior systems, and DOD satellite telemetry, tracking and command 
facilities that operate in the 1761-1842 MHz band segment and which 
cannot be easily re-tuned. The 1770-1850 MHz band segment was 
previously rejected by NTIA as incompatible for shared use and was not 
included in the most recent band evaluation process. Throughout the 
evaluation process, Federal Government users have consistently 
expressed skepticism that any portion of the 1755-1850 MHz band segment 
can be made available for advanced commercial wireless systems, either 
through relocation of Federal users or by shared use. Moreover, NTIA 
anticipates that the process that will allow it to relocate Federal 
users from the 1710-1755 MHz band segment will result in system 
relocations to spectrum above 1755 MHz, as well as a generally more 
intensive use of the 1770-1850 MHz band segment for existing, 
relocated, and new systems. We note that some commenters identify 
benefits from the use of this band for AWS, including regional 
harmonization and the possibility that allocation of the 1755-1850 MHz 
band (in conjunction with the 1710-1755 MHz band) would serve as a 
catalyst for making these frequencies as globally accepted as the core 
bands identified in IMT-2000.
    16. Given the statements by NTIA regarding the intense use of this 
band by military users and other Federal Government agencies that 
provide critical safety-of-life operations, and the concern expressed 
by many commenters about clearing existing government users, we 
conclude that this band is too encumbered to be used for the provision 
of AWS. We note that while some comments suggest that we explore a 
combination of sharing and migration for incumbent users, NTIA and 
other commenters do not believe that co-channel sharing is possible. We 
acknowledge the 2002 Viability Assessment's conclusion that ``[a] leap 
forward in technology may permit extensive sharing in all bands below 3 
GHz in the future,'' but that until such developments occur, it appears 
that use of the 1755-1770 MHz band for advanced wireless applications 
is not technically viable. Accordingly, we conclude that the 1755-1850 
MHz band is not suitable for the provision of AWS at this time.
    17. Currently Allocated Spectrum. In the NPRM, we noted that 
currently allocated spectrum may also be suitable for the provision of 
AWS. This spectrum includes television bands that were reallocated to 
commercial fixed, mobile, and broadcast services and are in the process 
of being vacated as part of the transition to digital television. We 
note that the disposition of these bands has taken place in separate 
proceedings. The record in the instant proceeding contains nothing that 
would cause us to revisit these decisions, nor to reassess our general 
conclusion that the reallocated television bands will be available for 
new uses, including AWS. However, we reach an opposite conclusion with 
respect to the 2390-2400 MHz band. The record reflects little support 
for AWS use of this band, which is designated for UPCS and Amateur 
Service use, and the 2002 Viability Assessment identified this spectrum 
as suitable replacement spectrum for some Government systems currently 
operating in the 1710-1755 MHz band. Therefore, we will not further 
examine the possible use of the 2390-2400 MHz band for the provision of 
AWS.
    18. The 90 megahertz of spectrum that has been allocated will 
promote the robust deployment of AWS, and we will continue to strive to 
make allocation decisions that can lead to the widescale deployment of 
innovative new services. Moreover, technological developments may 
foster further efficiencies in the deployment of AWS. These 
technologies include software defined radio (SDR) and adaptive antenna 
technology (increasing directionality) or new modulation or coding 
techniques (more information in the same spectrum) that may allow for 
greater spectral efficiency than that which is typically associated 
with current wireless systems. Finally, we stress that this action is 
part of a continuing effort to identify and evaluate both the current 
and future spectrum needs for AWS. The further decisions that we make 
in this continuing proceeding may well result in the allocation of 
additional spectrum for commercial use, including the provision of AWS.

Final Regulatory Flexibility Analysis

    19. As required by the Regulatory Flexibility Act (RFA)\1\ an 
Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the 
Notice of Proposed Rulemaking and Order (NPRM),\2\ as well as the 
Memorandum Opinion and Order and Further Notice of Proposed Rule Making 
(Further NPRM), 66 FR 47591, September 13,

[[Page 3458]]

2001.\3\ The Commission sought written public comments on the proposals 
in the NPRM and Further NPRM, including comment on each IRFA. This 
present Final Regulatory Flexibility Analysis (FRFA) conforms to the 
RFA.\4\
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    \1\ See 5 U.S.C. 603. The RFA (codified at 5 U.S.C. 601-612) has 
been amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA), Public Law 104-121, title II, 110 Stat. 857 
(1996).
    \2\ Amendment of part 2 of the Commission's rules to Allocate 
Spectrum Below 3 GHz for Mobile and Fixed Services to Support the 
Introduction of New Advanced Wireless Services, Including Third 
Generation Wireless Systems, ET Docket No. 00-258, Notice of 
Proposed Rulemaking and Order, 16 FCC Rcd 596 (2001).
    \3\ Amendment of part 2 of the Commission's rules to Allocate 
Spectrum Below 3 GHz for Mobile and Fixed Services to Support the 
Introduction of New Advanced Wireless Services, including Third 
Generation Wireless Systems, ET Docket No. 00-258, ET Docket No. 95-
18, and IB Docket No. 99-81, Memorandum Opinion and Order and 
Further Notice of Proposed Rule Making, 16 FCC Rcd 16043 (2001) 66 
FR 47591, September 13, 2001.
    \4\ See 5 U.S.C. 604.
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Need for, and Objectives of, the Second Report and Order

    20. The goal of the Second Report and Order (Second R&O) is to 
promote the provision of advanced wireless services (AWS) to the 
public, which in turn supports our obligations under section 706 of the 
1996 Telecommunication Act \5\ and, more generally, serves the public 
interest by promoting rapid and efficient radio communication 
facilities.
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    \5\ Section 706 of the Communications Act of 1934, as amended, 
codified at 47 U.S.C. 157.
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    21. The Second R&O discusses the need for spectrum allocations of 
sufficient size and with particular characteristics so as to allow for 
the provision of AWS, and evaluates spectrum that could be allocated to 
support these services. Specifically, the Second R&O allocates spectrum 
that is suitable for advanced services in the 1710-1755 MHz, 2110-2150 
MHz, and 2150-2155 MHz bands.

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

    22. There were no comments filed that specifically addressed the 
rules and policies proposed in the IRFA.

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

    23. 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 rules adopted herein.\6\ The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.''\7\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\8\ 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).\9\
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    \6\ 5 U.S.C. 604(a)(3).
    \7\ 5 U.S.C. 601(6).
    \8\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \9\ 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.''\10\ Nationwide, as of 1992, there were 
approximately 275,801 small organizations.\11\ ``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.''\12\ As of 1992, there were 
approximately 85,006 governmental entities in the United States.\13\ 
This number includes 38,978 counties, cities, and towns; of these, 
37,566, or 96%, have populations of fewer than 50,000.\14\ 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 (96%) are small entities.
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    \10\ 5 U.S.C. 601(4).
    \11\ 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).
    \12\ 5 U.S.C. 601(5).
    \13\ U.S. Dept. of Commerce, Bureau of the Census, ``1992 Census 
of Governments.''
    \14\ Id.
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    25. Fixed Microwave Services. Microwave services include common 
carrier,\15\ private-operational fixed,\16\ and broadcast auxiliary 
radio services.\17\ At present, there are approximately 22,015 common 
carrier fixed licensees and 61,670 private operational-fixed licensees 
and broadcast auxiliary radio licensees in the microwave services. The 
Commission has not yet defined a small business with respect to 
microwave services. For purposes of this FRFA, we will use the SBA's 
definition applicable to wireless and other telecommunications 
companies--i.e., an entity with no more than 1,500 persons.\18\ 
According to Census Bureau data for 1997, there were 977 firms in this 
category, total, that operated for the entire year.\19\ Of this total, 
965 firms had employment of 999 or fewer employees, and an additional 
12 firms had employment of 1,000 employees or more.\20\ Thus, under 
this size standard, the great majority of firms can be considered 
small.
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    \15\ 47 CFR 101 et seq. (formerly, part 21 of the Commission's 
rules).
    \16\ Persons eligible under parts 80 and 90 of the Commission's 
rules can use Private Operational-Fixed Microwave services. See 47 
CFR parts 80 and 90. Stations in this service are called 
operational-fixed to distinguish them from common carrier and public 
fixed stations. Only the licensee may use the operational-fixed 
station, and only for communications related to the licensee's 
commercial, industrial, or safety operations.
    \17\ Auxiliary Microwave Service is governed by part 74 of title 
47 of the Commission's rules. See 47 CFR part 74 et seq. Available 
to licensees of broadcast stations and to broadcast and cable 
network entities, broadcast auxiliary microwave stations are used 
for relaying broadcast television signals from the studio to the 
transmitter, or between two points such as a main studio and an 
auxiliary studio. The service also includes mobile TV pickups, which 
relay signals from a remote location back to the studio.
    \18\ 13 CFR 121.201, NAICS code 517212 (formerly 513322).
    \19\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Employment Size of Firms Subject to Federal Income 
Tax: 1997,'' Table 5, NAICS code 517212 (issued Oct. 2000).
    \20\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is ``Firms with 1,000 
employees or more.''
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    26. We note that the number of firms does not necessarily track the 
number of licensees. We estimate that all of the Fixed Microwave 
licensees (excluding broadcast auxiliary licensees) would qualify as 
small entities under the SBA definition. Of these licenses, 
approximately 8,210 are issued for frequencies in the Emerging 
Technologies bands affected by this proceeding. In addition, these 
bands contain approximately 70 licenses in the paging and 
radiotelephone service and the general aviation and air-ground radio 
telephone services. Thus, assuming that these entities also qualify as 
small businesses, as many as 8,280 small business licensees could be 
affected by the rules we adopt. We note that these entities have been 
subject to relocation under rules originally adopted ten years ago in 
the Commission's Emerging Technologies proceeding. The Second Report 
and Order anticipates that these general relocation rules will continue 
to apply to FS microwave licensees and does not modify the class of 
licensees that are subject to these relocation provisions.
    27. Multipoint Distribution Service (MDS). This service has 
historically provided primarily point-to-multipoint, one-way video 
services to subscribers, and Local Multipoint Distribution Service 
(LMDS).\21\ The Commission

[[Page 3459]]

recently amended its rules to allow MDS licensees to provide a wide 
range of high-speed, two-way services to a variety of users.\22\ In 
connection with the 1996 MDS auction, the Commission defined small 
businesses as entities that had annual average gross revenues for the 
three preceding years not in excess of $40 million.\23\ The Commission 
established this small business definition in the context of this 
particular service and with the approval of the SBA.\24\ The MDS 
auction resulted in 67 successful bidders obtaining licensing 
opportunities for 493 Basic Trading Areas (BTAs).\25\ Of the 67 auction 
winners, 61 met the definition of a small business. At this time, we 
estimate that of the 61 small business MDS auction winners, 48 remain 
small business licensees. In addition to the 48 small businesses that 
hold BTA authorizations, there are approximately 392 incumbent MDS 
licensees that are considered small entities.\26\ After adding the 
number of small business auction licensees to the number of incumbent 
licensees not already counted, we find that there are currently 
approximately 440 MDS licensees that are defined as small businesses 
under either the SBA or the Commission's rules. Because the 
Commission's action only affects MDS operations in the 2150-2155 MHz 
band, the actual number of MDS providers who will be affected by the 
Second Report and Order will only represent a small fraction of those 
440 small business licensees.
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    \21\ For purposes of this item, MDS includes single channel 
Multipoint Distribution Service (MDS) and the Multichannel 
Multipoint Distribution Service (MMDS). See 66 FR 36177.
    \22\ Amendment of parts 21 and 74 to Enable Multipoint 
Distribution Service and Instructional Television Fixed Service 
Licensees to Engage in Fixed Two-Way Transmissions, MM Docket No. 
97-217, Report and Order, 13 FCC Rcd 19112 (1998), recon., 14 FCC 
Rcd 12764 (1999), further recon., 15 FCC Rcd 14566 (2000).
    \23\ 47 CFR 21.961 and 1.2110.
    \24\ Amendment of parts 21 and 74 of the Commission's Rules with 
Regard to Filing Procedures in the Multipoint Distribution Service 
and in the Instructional Television Fixed Service and Implementation 
of Section 309(j) of the Communications Act--Competitive Bidding, MM 
Docket No. 94-131, Report and Order, 10 FCC Rcd 9589, 9670 (1995), 
60 FR 36524 (July 17, 1995).
    \25\ Basic Trading Areas (BTAs) were designed by Rand McNally 
and are the geographic areas by which MDS was auctioned and 
authorized. See id. at 9608.
    \26\ 47 U.S.C. 309(j). (Hundreds of stations were licensed to 
incumbent MDS licensees prior to implementation of section 309(j) of 
the Communications Act of 1934, 47 U.S.C. 309(j)). For these pre-
auction licenses, the applicable standard is SBA's small business 
size standard for ``other telecommunications'' (annual receipts of 
$12.5 million or less). See 13 CFR 121.201.
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Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    28. The Second R&O addressed the possible use of frequency bands 
below 3 GHz to support the introduction of new AWS, but does not 
propose service rules. Thus, the item contains no new reporting, 
recordkeeping, or other compliance requirements. Because the item does 
not establish procedures for the relocation of MDS incumbents from the 
2150-2155 MHz band, there are no new compliance requirements for MDS at 
this time.

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

    29. The RFA requires an agency to describe any significant 
alternatives that it has considered in developing its approach, which 
may include the following four alternatives (among others): ``(1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
such small entities.''\27\
---------------------------------------------------------------------------

    \27\ 5 U.S.C. 603(c)(1) through (c)(4).
---------------------------------------------------------------------------

    30. Providing spectrum to support the introduction of new advanced 
mobile and fixed terrestrial wireless services is critical to the 
continuation of technological advancement. First and foremost, the 
Commission believes that our proposal to explore the possible use of 
several frequency bands that could offer a wide range of voice, data, 
and broadband services over a variety of mobile and fixed networks may 
provide substantial new opportunities for small entities.
    31. However, we realize that some entities must be displaced to 
clear a sufficient quantity of contiguous spectrum to support new 
services. We endeavored to avoid this effect by identifying 
unencumbered spectrum, but spectrum in the suitable frequency range is 
heavily used already and a sufficient amount of unencumbered spectrum 
simply does not exist. We have therefore sought to minimize an adverse 
impact by proposing to reallocate frequency bands for those incumbents, 
including small entities, which might be accommodated in other spectrum 
and could be relocated more easily. The spectrum we allocate in the 
1710-1755 MHz band is currently used for Federal government services, 
and therefore there are no non-Federal government incumbent small 
entities that will be displaced by the reallocation of this band. 
Similarly, as noted in paragraph 28 of the Second R&O, the 2110-2150 
MHz band was previously identified as an Emerging Technology band, and 
relocation procedures already exist for incumbents in this band. These 
existing procedures (as modified in the Second R&O) should serve to 
ease the relocation of small entity incumbents in the 2110-2150 MHz 
band, and make reallocation of this band preferable to the reallocation 
of other bands where we would have to establish new relocation rules.
    32. Finally, the Commission has already received extensive comments 
in this proceeding on issues related to the possible reallocation of 
the 2150-2160 MHz (2.1 GHz) spectrum for advanced wireless purposes. 
Comments filed by the multipoint distribution/instructional television 
fixed services industry and several equipment manufacturers argue that 
the 2.1 GHz band is necessary for the continued roll-out of fixed 
wireless services across the country. Other commenters support the use 
of 2.1 GHz for advanced wireless services. Although many commenters ask 
that we reallocate a large contiguous spectrum block to include the 
entire 2150-2160 MHz band, we instead decide to reallocate 5 megahertz 
in the 2150-2160 MHz band as part of a 45 megahertz block of contiguous 
spectrum that can be used to provide advanced services. By doing so, we 
satisfy the need to designate a large block of contiguous spectrum that 
can be paired in order to allow for the deployment of advanced services 
(and thus, serve the goals of this proceeding). However, by allocating 
5 megahertz of existing MDS spectrum, we retain greater flexibility to 
accommodate small entities that are MDS licensees than had we 
redesignated the entire 2.1 GHz MDS spectrum. For example, paragraph 39 
of the Second Report and Order, notes that we retain the option to 
realign MDS spectrum to a 10 megahertz block in the 2155-2165 MHz band. 
Had we reallocated the entire 2.1 GHz MDS spectrum, as some commenters 
had suggested, this option would not have been available.

Report to Congress

    33. The Commission will send a copy of the Second Report and Order 
including this FRFA, in a report to be sent to Congress pursuant to the

[[Page 3460]]

Congressional Review Act.\28\ In addition, the Commission will send a 
copy of the Second Report and Order, including this FRFA, to the Chief 
Counsel for Advocacy of the SBA.
---------------------------------------------------------------------------

    \28\ See 5 U.S.C. 801(a)(1)(A).
---------------------------------------------------------------------------

Ordering Clauses

    34. Pursuant to sections 1, 4(i), 7(a), 301, 302(a), 303(f), 
303(g), 303(r), 307, 308, 309(j), 316, and 332 of the Communications 
Act of 1934, as amended, 47 U.S.C. sections 151, 154(i), 157(a), 301, 
302(a), 303(f), 303(g), 303(r), 307, 308, 309(j), 316, and 332 the 
Second Report and Order is hereby adopted. The rules set forth will 
become effective February 24, 2003.
    35. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Second Report 
and Order, including the Final Regulatory Flexibility Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 2

    Communications equipment.

47 CFR Part 21

    Communications equipment, Radio.

47 CFR Part 101

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 2, 21, and 101 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. Revise pages 47 and 49.
    b. In the list of United States (US) Footnotes, remove footnote 
US256, revise footnote US311, and add footnote US378.
    c. In the list of non-Federal Government (NG) Footnotes, revise 
footnote NG153 and add footnote NG176.


Sec.  2.106  Table of Frequency Allocations.

    The revisions and additions read as follows:
* * * * *

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* * * * *

United States (US) Footnotes

* * * * *
    US311 Radio astronomy observations may be made in the bands 1350-
1400 MHz, 1718.8-1722.2 MHz, and 4950-4990 MHz on an unprotected basis 
at the following radio astronomy observatories:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Allen Telescope Array, Hat       Rectangle between latitudes 40[deg] 00'
 Creek, California.                   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) radius centered
 Communications Complex,           on latitude 35[deg] 18' N, longitude
 Goldstone, California.                       116[deg] 54' W.
--------------------------------
National Astronomy and           Rectangle between latitudes 17[deg] 30'
 Ionosphere Center, Arecibo,          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] 30'
 Observatory, Socorro, New            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] 30'
 Observatory, Green Bank, West        N and 39[deg] 15' N and between
 Virginia.                         longitudes 78[deg] 30' W and 80[deg]
                                                  30' W.
--------------------------------
National Radio Astronomy             80 kilometer radius centered on:
 Observatory, Very 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.
------------------------------------------------------------------------

    In the bands 1350-1400 MHz and 4950-4990 MHz, every practicable 
effort will be made to avoid the assignment of frequencies 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.
* * * * *
    US378 In the band 1710-1755 MHz, Federal government stations in the 
fixed and mobile services shall operate on a primary basis until 
reaccommodated in accordance with the Strom Thurmond National Defense 
Authorization Act for Fiscal Year 1999. Further, Federal government 
stations may continue to operate in the band 1710-1755 MHz as provided 
below:
    (a) Federal fixed microwave and tactical radio relay stations may 
operate indefinitely on a primary basis at the sites listed below:

------------------------------------------------------------------------
                                                              Radius of
           Location                     Coordinates           operation
                                                                 (km)
------------------------------------------------------------------------
Cherry Point, NC.............  34[deg] 58' N 076[deg] 56' W           80
Yuma, AZ.....................  32[deg] 32' N 113[deg] 58' W           80
------------------------------------------------------------------------

    (b) Federal fixed microwave and tactical radio relay stations may 
operate on a secondary basis, and shall not cause harmful inference to, 
and must accept harmful interference from, primary non-Federal 
government operations at the sites listed below:

------------------------------------------------------------------------
                                                              Radius of
           Location                     Coordinates           operation
                                                                 (km)
------------------------------------------------------------------------
China Lake, CA...............  35[deg] 41' N 117[deg] 41' W           80
Eglin AFB, FL................  30[deg] 29' N 086[deg] 31' W           80

[[Page 3464]]

 
Pacific Missile Test Range/    34[deg] 07' N 119[deg] 30' W           80
 Point Mugu, CA.
Nellis AFB, NV...............  36[deg] 14' N 115[deg] 02' W           80
Hill AFB, UT.................  41[deg] 07' N 111[deg] 58' W           80
Patuxent River, MD...........  38[deg] 17' N 076[deg] 25' W           80
White Sands Missile Range, NM  33[deg] 00' N 106[deg] 30' W           80
Fort Irwin, CA...............  35[deg] 16' N 116[deg] 41' W           50
Fort Rucker, AL..............  31[deg] 13' N 085[deg] 49' W           50
Fort Bragg, NC...............  35[deg] 09' N 079[deg] 01' W           50
Fort Campbell, KY............  36[deg] 41' N 087[deg] 28' W           50
Fort Lewis, WA...............  47[deg] 05' N 122[deg] 36' W           50
Fort Benning, GA.............  32[deg] 22' N 084[deg] 56' W           50
Fort Stewart, GA.............  31[deg] 52' N 081[deg] 37' W           50
------------------------------------------------------------------------

    (c) In the sub-band 1710-1720 MHz, precision guided munitions shall 
operate on a primary basis until inventory is exhausted or until 
December 31, 2008, whichever is earlier.
* * * * *

Non-Federal Government (NG) Footnotes

* * * * *
    NG153 The band 2160-2165 MHz is reserved for future emerging 
technologies on a co-primary basis with the fixed and mobile services. 
Allocations to specific services will be made in future proceedings. 
Authorizations in the band 2160-2162 MHz for stations in the Multipoint 
Distribution Service applied for after January 16, 1992, shall be on a 
secondary basis to emerging technologies.
* * * * *
    NG176 The allocations to the fixed and mobile services in the band 
1710-1755 MHz shall come into effect on January 1, 2004.

PART 21--DOMESTIC PUBLIC FIXED RADIO SERVICES

    3. The authority citation for part 21 continues to read as follows:

    Authority: Secs. 1, 2, 4, 201-205, 208, 215, 218, 303, 307, 313, 
403, 404, 410, 602, 48 Stat. as amended, 1064, 1066, 1070-1073, 
1076, 1077, 1080, 1082, 1083, 1087, 1094, 1098, 1102, 47 U.S.C. 151, 
154, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 404, 602, 47 
U.S.C. 552, 554.


Sec.  21.50  [Removed and reserved]

    4. Remove and reserve Sec.  21.50.

PART 101--FIXED MICROWAVE SERVICES

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

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


    6. Section 101.69 is amended by revising paragraph (d) introductory 
text to read as follows:


Sec.  101.69  Transition of the 1850-1990 MHz, 2110-2150 MHz, and 2160-
2200 MHz bands from the fixed microwave services to personal 
communications services and emerging technologies.

* * * * *
    (d) Relocation of FMS licensees in the 2110-2150 and 2160-2200 MHz 
bands will be subject to mandatory negotiations only. Mandatory 
negotiation periods are defined as follows:
* * * * *

    7. Section 101.73 is amended by revising the first and second 
sentences in paragraph (d) introductory text and the first and second 
sentences in paragraph (d)(3) to read as follows:


Sec.  101.73  Mandatory negotiations.

* * * * *
    (d) Provisions for Relocation of Fixed Microwave Licensees in the 
2110-2150 and 2160-2200 MHz bands. Mandatory negotiations will commence 
when the ET licensee informs the fixed microwave licensee in writing of 
its desire to negotiate. * * *
* * * * *
    (3) Operating Costs. Operating costs are the cost to operate and 
maintain the FMS system. ET licensees would compensate FMS licensees 
for any increased recurring costs associated with the replacement 
facilities (e.g., additional rental payments, and increased utility 
fees) for five years after relocation. ET licensees could satisfy this 
obligation by making a lump-sum payment based on present value using 
current interest rates. * * *
* * * * *

    8. Section 101.75 is amended by revising paragraph (d) to read as 
follows:


Sec.  101.75  Involuntary relocation procedures.

* * * * *
    (d) Twelve-month trial period. If, within one year after the 
relocation to new facilities, the FMS licensee demonstrates that the 
new facilities are not comparable to the former facilities, the ET 
licensee must remedy the defects or pay to relocate the microwave 
licensee to one of the following: its former or equivalent 2 GHz 
channels, another comparable frequency band, a land-line system, or any 
other facility that satisfies the requirements specified in paragraph 
(b) of this section. This trial period commences on the date that the 
FMS licensee begins full operation of the replacement link. If the FMS 
licensee has retained its 2 GHz authorization during the trial period, 
it must return the license to the Commission at the end of the twelve 
months. FMS licensees relocated from the 2110-2150 and 2160-2200 MHz 
bands may not be returned to their former 2 GHz channels. All other 
remedies specified in paragraph (d) are available to FMS licensees 
relocated from the 2110-2150 MHz and 2160-2200 MHz bands, and may be 
invoked whenever the FMS licensee demonstrates that its replacement 
facility is not comparable, subject to no time limit.

    9. Section 101.99 is amended by revising the section heading and 
paragraph (a) to read as follows:


Sec.  101.99  Reimbursement and relocation expenses in the 2110-2150 
MHz and 2160-2200 MHz bands.

    (a) Whenever an ET licensee (including Mobile-Satellite Service 
licensees) in the 2110-2150 or 2160-2200 MHz bands relocates an 
incumbent paired microwave link with one path in the 2110-2150 MHz band 
and the paired path in the 2160-2200 MHz band, the ET licensee is 
entitled to reimbursement of 50% of its relocation costs from any 
subsequently entering ET

[[Page 3465]]

licensee which would have been required to relocate the same fixed 
microwave link.
* * * * *
[FR Doc. 03-1457 Filed 1-23-03; 8:45 am]
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