[Federal Register Volume 68, Number 104 (Friday, May 30, 2003)]
[Rules and Regulations]
[Pages 32406-32409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13513]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 25, 74, and 78

[ET Docket No. 98-142; FCC 03-69]


Mobile-Satellite Service Above 1 GHz

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition for reconsideration.

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SUMMARY: This document denies two petitions for reconsideration of the 
Report and Order (``R&O''), which allocated spectrum for certain 
satellite ``feeder links'' and provided rules for sharing these feeder 
links with certain incumbent terrestrial operations. These petitions, 
filed by Globalstar, L.P. and Globalstar USA, LLC (``Globalstar'') and 
by the Society of Broadcast Engineers, Inc. (``SBE''), request 
reconsideration of the Commission's decisions in the R&O with respect 
to the 6700-7075 MHz (``7 GHz'') band. Globalstar requests that the 
6700-7025 MHz Non-Geostationary Satellite Orbit Mobile-Satellite 
Service (``NGSO MSS'') feeder downlink band in the Fixed Satellite 
Service (``FSS'') be extended from 6700-7025 MHz to 6700-7075 MHz, and 
SBE requests various rule changes pertaining to share use of the 7 GHz 
band between television broadcast auxiliary service (``TV BAS'') and 
NGSO MSS.

FOR FURTHER INFORMATION CONTACT: Rodney Small, Office of Engineering 
and Technology, (202) 418-2452, TTY (202) 418-2989, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Memorandum Opinion and Order, ET Docket No. 98-142, FCC 03-69, adopted 
March 27, 2003 and released April 2, 2003. The full text of this 
document is available on the Commission's Internet site at www.fcc.gov. 
It is also 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 full text of this document also may be 
purchased from the Commission's duplication contractor, Qualex 
International, Portals II, 445 12th St., SW., Room CY-B402, Washington, 
DC 20554; telephone (202) 863-2893; fax (202) 863-2898; e-mail 
[email protected].

Summary of the Memorandum Opinion and Order

Globalstar Petition for Reconsideration

    1. We find Globalstar's concerns regarding the possibility of NGSO 
MSS systems being constrained by a shortage of feeder downlink spectrum 
to be unfounded for the reasonably foreseeable future. Globalstar's 
NGSO MSS system in the 1610-1626.5/2483.5-2500 MHz bands (``Big LEO'' 
system) is authorized to use the 6875-7055 MHz band for feeder 
downlinks. At the time Globalstar filed its petition, its feeder 
downlink band was potentially subject to significant sharing with other 
NGSO MSS systems that were authorized overlapping feeder downlink 
spectrum. The need to share the majority of that band with those NGSO 
MSS systems in the foreseeable future has been reduced as a result of 
license cancellations. Thus, Globalstar's Big LEO system, which 
previously faced the immediate need to share the 6875-6975 MHz band 
with three competing NGSO MSS systems, is currently the only feeder 
downlink user of that 100 megahertz of spectrum. In addition, 
Globalstar will

[[Page 32407]]

have the option of using the 6975-7025 MHz band on a shared basis with 
ICO Global Communications (Holdings) Ltd.'s (``ICO's'') NGSO MSS system 
in the 1990-2025/2165-2200 MHz bands (``2 GHz MSS'' system), along with 
Globalstar's grandfathered use of the 7025-7055 MHz band from its two 
currently-operational gateways. Under these circumstances, we affirm 
our statement in the R&O, 67 FR 17288, April 10, 2002, that ``325 
megahertz of primary spectrum, along with 50 megahertz of primary 
spectrum limited to grandfathered systems, will accommodate the 
existing need for feeder downlink spectrum.''
    2. Thus, we deny Globalstar's reconsideration petition to allocate 
the 7025-7075 MHz band to FSS downlink operations and its request for 
use of the 7025-7075 MHz band for any purpose other than gateway use by 
Globalstar's two existing earth stations, particularly given the 
availability of spectrum allocated for gateway use below 7025 MHz. We 
further find no need to permit ICO's 2 GHz MSS system to use the 7025-
7075 MHz band for any purpose other than gateway use by its one 
existing earth station.

SBE Petition for Reconsideration

    3. In the R&O, we concluded that NGSO MSS gateway earth stations 
could share part of the 7 GHz band with TV BAS operations because such 
earth stations would be limited in number and because coordination 
between those co-primary operations should ensure successful spectrum 
sharing. The R&O noted that parts 74 and 78 of the Commission's rules, 
which govern TV BAS, do not have coordination procedures for sharing 
with satellite operations, but concluded that parts 25 and 101 
coordination procedures would serve to protect such earth stations from 
fixed BAS operations as an interim measure until uniform coordination 
procedures could be adopted in a separate proceeding. The R&O further 
noted that, while existing coordination procedures are inadequate to 
address NGSO MSS gateway earth station sharing with mobile TV pickup 
(``TVPU'') BAS operations, sharing is nonetheless possible because 
gateway earth station and TVPU use of the 7 GHz band are both limited, 
and because TVPU stations can use two BAS channels that are not 
overlapped by the new NGSO MSS allocation. Therefore, the R&O placed ad 
hoc coordination requirements on NGSO MSS gateway earth stations with 
both fixed and mobile TV BAS operations, until completion of a 
Commission proceeding to establish coordination rules specific to TV 
BAS/gateway sharing.
    4. In seeking reconsideration, SBE requests that the Commission: 
(1) Require use of the part 101 frequency coordination protocol by a 7 
GHz TV BAS fixed station with an NGSO MSS gateway earth station only if 
that TV BAS station is located within 145 kilometers (``km'') of the 
earth station; (2) require 7 GHz TV BAS stations to protect only the 
portion of the 7 GHz feeder downlink band that is being used by an NGSO 
MSS provider at the time of frequency coordination; and (3) establish 
the release date of the R&O (February 7, 2002) as the benchmark date to 
grandfather 7 GHz TVPU stations; i.e., provide that TVPU stations 
authorized by February 7, 2002 would not be required to protect the 
three incumbent NGSO MSS gateway earth stations. SBE also challenges 
the R&O's Final Regulatory Flexibility Certification 
(``Certification'').
    5. Coordination Distance. The record indicates that different 
coordination distances are required to protect each existing NGSO MSS 
gateway earth station from harmful interference caused by 7 GHz TV BAS 
fixed stations. Further, we agree with ICO's assertion that the 
necessary coordination distance between TV BAS stations and earth 
stations depends on a number of parameters particular to each earth 
station. According to ICO, these include rain climatic zone, the gain 
of the earth station antenna toward the horizon, and the maximum 
permissible interference that the earth station will tolerate for a 
given percentage of the time. To specify in this proceeding the same 
coordination distance for existing and future earth stations without 
examining the particulars of each earth station would be arbitrary and 
could lead to instances of inadequate interference protection or 
unnecessarily large coordination distances. Indeed, we intend to 
explore further issues relating to the appropriate coordination 
distances and procedures for TV BAS stations and NGSO MSS gateway earth 
stations in a forthcoming Notice of Proposed Rule Making in ET Docket 
No. 98-206. Accordingly, only as an interim measure pending a final 
decision in our forthcoming proceeding, we are specifying for 7 GHz TV 
BAS fixed stations coordination with the three existing NGSO MSS 
gateway earth stations, but do so using the maximum coordination 
distances found to be required by the Comsearch studies presented in 
the record of this proceeding; i.e., we specify a maximum coordination 
distance of 145 km from Globalstar's Clifton, TX earth station, a 
maximum coordination distance of 519 km from Globalstar's Finca 
Pascual, PR earth station, and a maximum coordination distance of 319 
km from ICO's Brewster, WA earth station.
    6. Frequencies Protected. We find that fixed TV BAS and mobile TV 
BAS (TVPU) require distinct considerations. As pointed out by ICO, the 
Commission recently addressed the issue of protecting earth stations 
from potential harmful interference caused by fixed TV BAS use by 
deciding that such protection should be based on the earth station 
spectrum assignment, rather than the spectrum actually used by earth 
stations. In IB Docket No. 00-203, the Fixed Wireless Communications 
Coalition (``FWCC'') argued that the Commission was according FSS earth 
stations preferential access to several bands, including 6425-7125 MHz, 
that are shared with terrestrial fixed services. Specifically, FWCC 
argued that interference protection to FSS earth stations should be 
based upon FSS spectrum use, just as interference protection to fixed 
services is based upon fixed spectrum use. However, the Commission 
denied FWCC's petition, finding that fixed and satellite services have 
significantly different requirements for access to the spectrum in 
order to meet their business needs, and further finding that there was 
insufficient evidence that terrestrial fixed users have been harmed by 
frequency sharing with the FSS. We find no need to revisit that recent 
decision, as we see no evidence that circumstances have changed since 
that time. Accordingly, regarding fixed TV BAS use, we deny SBE's 
request that coordination and protection of NGSO MSS gateway earth 
stations be based upon current spectrum use.
    7. With regard to protecting the entire NGSO MSS gateway earth 
station spectrum assignment from potential harmful interference caused 
by mobile TV BAS use, rather than the spectrum actually used by the 
earth stations, we find it necessary that mobile TV BAS users protect 
the entire NGSO MSS gateway earth station spectrum assignment as an 
interim measure, pending the outcome of the forthcoming Notice of 
Proposed Rule Making referenced in paragraph 5, herein. We note that 
certain characteristics of mobile TV BAS may permit some flexibility in 
coordination and interference protection. Specifically, we note that 
mobile TV BAS is often used to cover ``breaking news'' on a short-term, 
temporary basis. While a NGSO MSS gateway earth station licensee may 
resist giving up a portion of its authorized spectrum for a new

[[Page 32408]]

permanent TV BAS operation, we expect that the NGSO MSS gateway earth 
station licensee will be able to accommodate a temporary mobile TV BAS 
operation if it is not operating across the whole authorized bandwidth 
at the time of the request. As long as the temporary mobile TV BAS does 
not cause interference to the gateway earth station, TV BAS use would 
not constrain the growth and long-term functionality of the gateway 
earth station. Accordingly, regarding mobile BAS use, we deny here 
SBE's request that coordination and protection of NGSO MSS gateway 
earth stations be based on current spectrum use, but we will explore 
whether, and under what circumstances, temporary mobile TV BAS use of 
the 7 GHz band within interference range of such earth stations could 
be permitted in the Notice of Proposed Rulemaking referenced in 
paragraph 5, herein.
    8. Grandfathered TVPU. Grant of SBE's request to permit TVPU 
stations authorized after Globalstar's and ICO's three existing NGSO 
MSS gateway earth stations to operate without regard to harmful 
interference to those earth stations would disregard the Commission's 
long-standing policy that authorized and coordinated stations have 
rights to protection from subsequently authorized stations of the same 
status (primary or secondary). SBE's request appears to be based on the 
premise that, because Globalstar's and ICO's NGSO MSS feeder downlink 
spectrum assignments were conditioned on the outcome of the allocation 
decision in this proceeding, their earth stations' interference 
protection rights do not commence until the date of release of the R&O. 
However, the waiver grants to Globalstar and ICO authorized primary 
feeder downlink use of the 6875-7055 MHz and 6975-7075 MHz bands, 
respectively, as of the dates of the waivers, which are November 18, 
1996 and July 17, 2001, respectively. Subsequently, Globalstar's and 
ICO's earth stations were individually authorized. The R&O allocated 
the 6700-7025 MHz band for NGSO MSS feeder downlinks and grandfathered 
the three existing Globalstar and ICO earth stations in the 7025-7075 
MHz band, including facilities in the process of being built, but did 
not modify the waiver grants or earth station authorizations. 
Accordingly, those earth stations have maintained primary status since 
the grant of the waivers. Therefore, we deny SBE's petition for 
reconsideration with respect to this issue.
    9. Final Regulatory Flexibility Certification. We find that SBE has 
presented no evidence to contradict our finding that there would be a 
de minimis burden on TV BAS stations in the 7 GHz band. SBE simply 
cites the number of TV translator, LPTV, Class A TV, and full service 
TV stations within 145 km of Globalstar's and ICO's three existing NGSO 
MSS gateway earth stations that might use 7 GHz TV BAS stations that 
might be subject to protecting the three earth stations from harmful 
interference. However, SBE fails to recognize that only those 7 GHz TV 
BAS stations located in relatively close proximity to an NGSO MSS 
gateway earth station and that were authorized after the earth station 
would have to bear the cost of frequency coordination with the earth 
station, nor does SBE recognize that new TV BAS stations must already 
coordinate with all existing primary licensees in the band, including 
other TV BAS stations and FSS uplinks. SBE does not estimate the number 
of 7 GHz TV BAS stations likely to be affected by coordination with 
existing or future NGSO MSS downlinks, nor does it estimate the cost 
burden on the affected TV BAS stations attributable to such 
coordination.
    10. Because the 7 GHz FSS downlink allocation is limited to serving 
the feeder link needs of NGSO MSS systems, the number of gateway earth 
stations constructed will be very small and most likely will be 
deployed away from major populated areas where the 7 GHz TV BAS band is 
used most. Further, it is incumbent upon the new entrant in any shared 
band to perform coordination, so that a coordination burden on TV BAS 
stations located in the vicinity of an existing NGSO MSS gateway earth 
station would affect only new TV BAS stations, and SBE has not 
demonstrated that we should expect a substantial number of small 
entities to have new TV BAS stations. Moreover, because of the existing 
co-primary FSS uplink allocation in the 7 GHz band, any new TV BAS 
station would already have to coordinate with FSS operations and bear 
the associated costs. Therefore, new 7 GHz TV BAS stations locating 
near an NGSO MSS gateway earth station will not be confronted with a 
significant additional satellite coordination requirement as a result 
of our action.
    11. We also note that, typically, a frequency coordinator will 
charge a fee to a new TV BAS station based on the number of existing 
station links that must be coordinated. It is unclear how much 
coordination with an NGSO MSS gateway earth station would add to that 
cost, but in reply comments in ET Docket No. 01-75, Viacom, Inc. 
indicates that a single coordination costs no more than $1,000 per 
frequency to a BAS station. This relatively low cost combined with the 
limiting factors discussed above leads us to affirm our conclusion that 
the impact of our action is de minimis on TV BAS operations as a whole.
    12. In summary, we find that only a relatively small number of TV 
BAS stations in the 7 GHz band will be affected by the R&O's decision 
to authorize NGSO MSS feeder downlink use of that band because only a 
new 7 GHz TV BAS station locating in the vicinity of an NGSO MSS 
gateway earth station will have to protect the earth station from 
harmful interference attributable to the operation of the new TV BAS 
station. A 7 GHz TV BAS station authorized prior to the authorization 
of an NGSO MSS gateway earth station will not be affected. The majority 
of TV BAS stations are, or will be, located at a sufficient distance 
from the small number of NGSO MSS gateway earth stations to have no 
additional burden. Even with respect to the relatively limited number 
of 7 GHz TV BAS stations in the vicinity of an NGSO MSS gateway earth 
station authorized, or that will be authorized, subsequent to the 
authorization of that earth station, it is unclear whether coordination 
costs attributable to the existence of the earth station will be 
significant relative to coordination costs attributable to the 
existence of other authorized 7 GHz stations. Finally, new BAS stations 
locating in an NGSO MSS gateway earth station area will not be 
confronted with an unprecedented satellite coordination requirement. 
Taking into account all of these factors, we find that the R&O's 
decision authorizing NGSO MSS gateway earth stations in the 7 GHz band 
does not impose on TV BAS stations as a whole a coordination burden 
that will be more than de minimis, as stated in the Certification.
    13. Accordingly, we are persuaded by only one of SBE's contentions 
set forth in its petition for reconsideration--namely, that 7 GHz TV 
BAS licensees located in the vicinity of Globalstar's Clifton, TX NGSO 
MSS gateway earth station need to coordinate with that earth station 
only if they are located within 145-km of it. That coordination 
distance, and the other coordination distances specified in paragraph 
5, herein, will be used as an interim measure pending a final decision 
in the forthcoming proceeding. In all other respects, we deny SBE's 
petition for reconsideration.

[[Page 32409]]

Ordering Clauses

    14. Pursuant to sections 1, 4(i), 303(f), 303(g), and 303(r) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), 
303(g), and 303(r), this Memorandum Opinion and Order is adopted.
    15. The petitions for reconsideration of the Report and Order in 
the proceeding, filed by Globalstar, L.P. and Globalstar USA, LLC and 
by the Society of Broadcast Engineers, Inc., are denied, except to the 
extent that SBE's petition is granted with respect to the coordination 
distances.
    16. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of the Memorandum 
Opinion and Order to the Chief Counsel for Advocacy of the Small 
Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-13513 Filed 5-29-03; 8:45 am]
BILLING CODE 6712-01-P