[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Rules and Regulations]
[Pages 33020-33026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13781]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 97

[ET Docket No. 02-98; FCC 03-105]


Amateur Radio Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document provides access to channels in or near the 5250-
5400 kHz band on a secondary basis for the amateur service, and upgrade 
the existing secondary amateur service allocation to primary status in 
the 2400-2402 MHz band. The rule changes will enhance the ability of 
amateur operators to communicate at 5000 kHz when propagation 
conditions do not permit communication at 3500 or 7000 kHz, and provide 
additional protection for the amateur operators now using the 2400-2402 
MHz band. We are declining to make an allocation to the amateur service 
in the 135.7-137.8 kHz or the 160-190 kHz bands, due to potential 
interference to other operations. We are also declining to add a 
primary allocation to the amateur satellite service in the 2400-2402 
MHz band, due to possible spectrum use conflicts.

DATES: Effective July 3, 2003.

FOR FURTHER INFORMATION CONTACT: Thomas Derenge, Office of Engineering

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and Technology (202) 418-2451, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, ET Docket No. 02-98, FCC 03-105, adopted April 29, 2003, and 
released May 14, 2003. The full text of this document is available on 
the Commission's Internet site at http://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 Report and Order

    1. The amateur radio service, governed by part 97 of the 
Commission's rules, provides spectrum for amateur radio service 
licensees to participate in a voluntary noncommercial communications 
service which provides emergency communications and allows 
experimentation with various radio techniques and technologies to 
further the understanding of radio use and the development of new 
technologies. In the Report and Order (``R&O''), we are providing 
access to 5 channels in or near the 5250-5400 kHz band on a secondary 
basis for the amateur service, and upgrading the existing secondary 
amateur service allocation to primary status in the 2400-2402 MHz band.
    2. On May 2, 2002, the Commission adopted a Notice of Proposed 
Rulemaking (``NPRM'') in response to three Petitions for Rulemaking 
submitted by the National Association for Amateur Radio (``ARRL''). The 
first of these petitions requested that a secondary allocation to the 
amateur service be made in the 135.7-137.8 kHz and 160--190 kHz bands 
to permit experimentation in the Low Frequency (``LF'') range. The 
second petition requested a secondary amateur allocation in the 5250-
5400 kHz band to enhance amateur emergency communications and 
experimentation when propagation conditions are not favorable in the 
3500 kHz and 7000 kHz bands. The third petition requested an upgrade to 
primary status for the existing secondary amateur allocation and a new 
primary allocation for the amateur-satellite service in the 2400-2402 
MHz band to protect existing amateur operations from future commercial 
systems which may utilize the band.

135.7-137.8 kHz and 160--190 kHz Bands (RM-9404)

    3. While we agree that amateur experimentation in the 135.7-137.8 
kHz and 160-190 kHz portions of the LF spectrum could serve to increase 
the pool of individuals having knowledge of LF transmissions, we 
conclude that such operations would pose the potential for harmful 
interference to systems protecting and controlling the national power 
grid. Therefore, we find that a new amateur allocation in the LF range 
of the radio spectrum is not justified when balanced against the 
greater public interest of an interference-free power grid. Further, we 
find that the opportunity to experiment with LF operations provided to 
amateur radio operators under our part 15 rules and through our 
experimental licensing process, while less attractive to amateur 
operators than their own proposal, provides the appropriate means for 
such use in light of the compelling uses in the band.
    4. We disagree with ARRL's and the amateur operators' assertions 
concerning the consideration we should accord incumbent part 15 use in 
these bands in deciding whether to provide an allocation for amateur 
services. Our decision must be based upon the facts at hand and our 
evaluation of any potential changes to the spectral environment due to 
our decision. In evaluating whether new operations should be added to a 
band, licensed or not, we must consider the potential for interference 
conflicts between the operations. While unlicensed Power Line Carrier 
(``PLC'') operations have no protection status, they provide a vital 
public service. Therefore, we disagree with amateur comments that we 
should not consider the impact on unlicensed operations when making 
spectrum allocation decisions.
    5. We note the significant potential for interference between the 
proposed amateur operations and the incumbent PLCs. ARRL concedes that 
amateur operations and power lines with attached PLCs would have to be 
separated in order to prevent interference. We find that separation 
distances on the order of 950 meters would be necessary to protect the 
PLCs from interference. We also find that this distance, coupled with 
the larger-than-expected number of PLCs potentially impacted by this 
proposed allocation, increases the likelihood that a PLC-equipped 
powerline will be close enough to an amateur station to receive 
interference. We will not jeopardize the reliability of electrical 
service to the public.
    6. We believe that the utility companies have raised a valid 
concern that an allocation to the amateur service could result in the 
need for PLCs to modify or cease their operations to avoid causing 
interference to amateurs. Amateur operators have expressed concern that 
there may be interference to their operations from the power lines and 
from PLC devices. While it appears that other techniques could be used 
to control the power grid, we find that the utility companies have come 
to rely on PLC systems for monitoring and control of the power grid, 
and that the alternatives suggested may not be as effective, and would 
be costly. We are persuaded that the costs of replacing PLC systems 
would be significant, would be disruptive to the public, and are not 
justified merely to open this band to amateur use on a secondary basis.
    7. We decline to make an allocation to the amateur service in the 
LF spectrum at this time. We do believe there is potential for some 
limited operation in these bands under individual experimental 
licenses. Operations at LF under our experimental license program will 
allow amateur use to be coordinated with utility companies on a case-
by-case basis, and allow empirical data to be developed on the sharing 
possibilities in this band for future consideration. In addition, 
amateurs may still make use of the 160-190 kHz band under our part 15 
rules, which are much more restrictive, and therefore more protective 
of PLCs, than the limits proposed in the NPRM.

5250-5400 kHz Band (RM-10209)

    8. We believe that frequencies in the 5250-5400 kHz range may be 
useful for completing disaster communications links at times when the 3 
and 7 MHz bands are not available due to ionospheric conditions, and 
appreciate the desire of the amateur radio community to assist with 
disaster communications. At the same time, since the majority of the 
affected users are Federal government licensees with homeland security 
responsibilities, we give considerable weight to the concerns NTIA has 
expressed about the potential for interference to these users. Thus, we 
conclude that it is not reasonable to grant ARRL's original request for 
the whole of the 5250-5400 kHz band. NTIA has reviewed its assignments 
and has found that five channels are lightly used and could be used on 
a secondary basis by amateur stations. While we recognize that these 
five channels will not give the amateur service the 150

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kilohertz of spectrum in the 5000 kHz range it originally asked for or 
the flexibility to use multiple transmission modes, this appears to be 
the best compromise available to give the amateur service access to new 
spectrum while assuring the Federal government agencies that their use 
is protected. We also concur with NTIA's basic proposals that amateur 
service operations on these channels be limited to SSB-SC modulation, 
upper sideband voice transmissions only, with power not to exceed the 
equivalent of 50 W PEP transmitter output power into an antenna with a 
gain of 0 dBd, or 50 W effective radiated power (``e.r.p''). These 
operating rules will decrease the interference potential between 
amateur stations and Federal government users. We have amended 
Sec. Sec.  2.106, and 97.303 of our rules to provide a secondary 
allocation to the amateur service on the channels 5332 kHz, 5348 kHz, 
5368 kHz, 5373 kHz and 5405 kHz as specified by NTIA, and to require 
that amateur operations be limited to an (e.r.p.) of 50 W and emission 
type 2K8J3E, upper sideband voice transmissions only centered on each 
frequency. For the purpose of computing e.r.p., the transmitter peak 
envelope power will be multiplied with the antenna gain relative to a 
dipole or the equivalent calculation in decibels. A half wave dipole 
antenna will be presumed to have a gain of 0 dBd. Licensees using other 
antennas must maintain in their station records either manufacturer 
data on the antenna gain or calculations of the antenna gain. In 
addition, because we have permitted amateur stations to transmit on 
five discrete frequencies and are limiting the transmission mode to 
single sideband only, dividing the band into smaller sub-bands to be 
used for other emission types is not practical or necessary. Lastly, we 
have permitted these frequencies to be used by amateur service 
licensees with a General Class, Advanced Class, or Amateur Extra Class 
operator license. We believe that the limited number of frequencies and 
the emission restriction will protect against interference to primary 
service operations.
    9. Because the broadband PLCs would be new services operating in 
new frequency bands and are not yet deployed, we do not have the same 
concerns as with the incumbent PLC systems in the 160-190 kHz band. 
Because these new PLC systems are still in development, we expect that 
they can be designed to be compatible with the other operations in this 
band, and we deny the United Power Line Council (``UPLC'') and Power 
Line Carrier Association (``PLCA'') request to delay action in this 
proceeding. The power levels we are adopting are 1/30th of the power 
levels supported by the UPLC and the e.r.p. restriction provides a 
limit to the antenna height. We believe that the permitted e.r.p 
limitation will significantly reduce the possibility of interference to 
and from broadband PLCs. Because the allowable power level will be very 
low, we do not believe that we need additional out-of-band emission 
limits for amateur operations in this band.
    10. We deny Homeplug's request for a 10-year safe harbor. 
Unlicensed devices operated in accordance with the part 15 rules should 
not cause interference to licensed, allocated services. It is not 
apparent that there will be significant interference from Homeplug 
devices, whose signals attenuate quickly, to ARRL operations on these 
frequencies, which are expected to be sporadic. There is ample 
alternative spectrum on which Homeplug devices can operate. As a 
practical matter, we would expect amateur services to take into account 
the extant Homeplug devices, although they are not required to do so.

2400-2402 MHz Band (RM-9949)

    11. We have upgraded the existing amateur service (except amateur-
satellite service) allocation at 2400-2402 MHz from secondary to 
primary status. This modification will provide additional protection to 
the amateur service in this band from future licensed operations. The 
allocation changes we are making will not alter the interference 
protection rights among the current users of the band. Even under the 
current secondary allocation, amateur services are entitled to 
interference protection from part 15 devices, and ISM devices are 
entitled to protection from both amateur operations and part 15 
devices. These relationships will remain the same under the amateur 
service primary allocation. We observe that the amateur operators have 
successfully shared this band with part 15 and part 18 operations and 
we have no reason to believe that this sharing will not continue to be 
successful. Part 15 devices are limited in power and this interference 
potential from them is limited to an area very close to their transmit 
location. We therefore modify rule Sec. Sec.  2.106, 97.303(j)(2)(iii) 
and 97.303 (j)(2)(iv) to provide a primary allocation for the amateur 
service (except amateur-satellite service), consistent with our 
decision.
    12. Our analysis regarding an amateur-satellite service allocation 
at 2400-2402 MHz differs from the case of terrestrial use in this band. 
The amateur-satellite service currently operates on a non-interference 
basis (``NIB'') to other services under international footnote 5.282, 
not on a secondary basis as some parties suggest. This means that these 
operations are on an equal footing with part 15 devices. As both the 
amateur and unlicensed proponents recognize, the sensitivity of amateur 
satellite receivers makes them more vulnerable to aggregate 
interference from other users in this band. The 2400-2402 MHz band is 
heavily used by both part 15 and part 18 devices, and, unlike 
terrestrial amateur operations, amateur satellite receivers are at 
greater risk from aggregate interference. We thus conclude that an 
allocation for the amateur-satellite service would be impractical and 
difficult to implement, given the protection status afforded ISM 
devices and the large number of part 15 devices that operate in the 
band. Further, maintaining NIB status for the amateur-satellite service 
in this 2 megahertz band is consistent with the NIB status that an 
amateur satellite system would operate under in the 2400-2450 MHz band, 
so amateur satellite use of this 2 megahertz band is not prejudiced by 
our decision. Because we are maintaining NIB status for the amateur-
satellite service, we will not place any restrictions on these 
operations (e.g., down-link only operation as some parties suggest).
    13. Although ARRL is correct that unlicensed users do not have 
protection rights vis-a-vis licensed users in a band, it is incorrect 
when it asserts that we need not consider unlicensed use of this band 
when deciding whether to modify the allocation. The issue here is 
whether different uses are compatible and promote efficient use of 
spectrum. This analysis requires that we consider both licensed and 
unlicensed use. We conclude that, in the 2400-2402 MHz band, the status 
quo provides the best mix of uses to promote spectrum efficiency. The 
extensive use of the band to date by parts 15 and 18 and amateur users 
under the existing rules supports this conclusion. ARRL's suggestion to 
license those devices that have the potential to cause interference to 
licensed services does not alter our analysis. Even among licensed 
services, we consider whether uses are compatible and promote efficient 
use of spectrum. ARRL's approach would merely have us identify the 
priority between the amateur service and another licensed service.
    14. We also conclude that, because we are maintaining the relative 
allocation

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status in this band, it is not necessary to implement a ``safe harbor'' 
for part 15 devices. Unlicensed devices operated in accordance with the 
part 15 rules should not cause interference to the amateur service, and 
amateur services can take into account these well known technical 
characteristics used by unlicensed devices as they operate in the band. 
The amateur service and unlicensed devices have successfully shared 
this band in the past, and we have no reason to conclude that these 
sharing arrangements will not continue to be successful.

Final Regulatory Flexibility Certification

    15. The Regulatory Flexibility Act of 1980, as amended (RFA),\1\ 
requires that an initial regulatory flexibility analysis be prepared 
for notice and comment rule making proceedings, unless the agency 
certifies that ``the rule will not, if promulgated, have a significant 
economic impact on a substantial number of small entities.''\2\ The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.''\3\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\4\ 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).\5\
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    \1\ The RFA, see 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\ 5 U.S.C. 605(b).
    \3\ 5 U.S.C. 601(6).
    \4\ 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.''
    \5\ 15 U.S.C. 632.
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    16. In the R&O, we make five channels in or near the 5250-5400 kHz 
frequency band available on a secondary basis and upgrade the 
allocation of the 2400-2402 MHz frequency band to the amateur service. 
The amateur radio service is a voluntary non-commercial communications 
service comprised of individuals or groups of individuals holding 
amateur radio licenses issued by the Commission. \6\ These individuals 
are prohibited from using spectrum allocated to the amateur service for 
communications for hire or for material compensation, or for 
communications in which the amateur radio operator has a pecuniary 
interest.\7\ Therefore, amateur radio operators do not fit any part of 
the definition of ``small entities'' described above, and thus are not 
classified as such.
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    \6\ See 47 CFR 97.1 and 97.3(a).
    \7\ See 47 CFR 97.113(a)(2).
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    17. In addition, even if the amateur radio licensees were 
hypothetically considered as ``small entities,'' the rule changes 
promulgated in this R&O simply make spectrum available for the amateur 
radio operations and impose no additional fees, costs, or compliance 
burdens on an operator. Since the amateur radio service is a voluntary 
service, it would be up to each individual amateur to purchase or 
modify equipment to use the new bands. There is no cost associated with 
the upgrade of the allocation. On the contrary, the amateur radio 
service receives the positive benefits of access to additional 
spectrum.
    18. Lastly, the use of these five new frequencies in or near the 
5250-5400 kHz band on a secondary basis by the amateur service does not 
impact any small entities because it is primarily used by the Federal 
Government. The allocation upgrade in the 2400-2402 MHz band also does 
not impact any small entities because there are currently only part 15 
and part 18 operations in that frequency band. The part 18 operations 
maintain their right to operate under international footnote 5.150.\8\ 
The current amateur service allocation status is higher than the status 
of part 15 operations, so that there will be no additional impact due 
to this action.
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    \8\ See 47 CFR 2.106, footnote 5.150.
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    19. Therefore, we certify that the rules in this R&O will not have 
a significant economic impact on a substantial number of small 
entities. The Commission will send a copy of the Report and Order, 
including a copy of this Final Regulatory Flexibility Certification, in 
a report to Congress pursuant to the Congressional Review Act.\9\ In 
addition, the Report and Order and this Final Certification will be 
sent to the Chief Counsel for Advocacy of the SBA.\10\
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    \9\ See 5 U.S.C. 801(a)(1)(A).
    \10\ See 5 U.S.C. 605(b).
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Ordering Clauses

    20. Pursuant to sections 1, 4, 301, 302(a), and 303(c) and (f), of 
the Communications Act of 1934, as amended, 47 U.S.C. sections 151, 
154, 301, 302(a), and 303(c) and (f), parts 2 and 97 of the 
Commission's rules have been amended and will be effective July 3, 
2003.
    21. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of the Report and 
Order, including the Final Regulatory Flexibility Certification, to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Parts 2 and 97

    Communications equipment, Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 2 and 97 as follows:

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

0
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.

0
2. Section 2.106, the Table of Frequency Allocations, is amended by 
revising pages 11 and 51 and in the list of United States footnotes, 
add footnote US 381 to read as follows:


Sec.  2.106  Table of Frequency Allocations.

* * * * *
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* * * * *

United States (US) Footnotes

* * * * *
    US381 The frequencies 5332 kHz, 5348 kHz, 5368 kHz, 5373 kHz, and 
5405 kHz are allocated to the amateur service on a secondary basis. 
Amateur use of these frequencies shall be limited to: (1) A maximum 
effective radiated power (e.r.p.) of 50 W; and, (2) single sideband 
suppressed carrier modulation (emission designator 2K8J3E), upper 
sideband voice transmissions only.

PART 97--AMATEUR RADIO SERVICE

0
3. The authority citation for part 97 continues to read as follows:

    Authority: 48 Stat. 1066, 1082, as amended: 47 U.S.C. 154, 303. 
Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 
U.S.C. 151-155, 301-609, unless otherwise noted.

0
4. Section 97.303 is amended by revising paragraphs (j)(2)(iii), 
(j)(2)(iv), and adding paragraph (s) to read as follows:


Sec.  97.303  Frequency sharing requirements.

* * * * *
    (j) * * *
    (2) * * *
    (iii) The 2390-2417 MHz segment is allocated to the amateur service 
on a primary basis, and amateur stations operating within the 2400-2417 
MHz segment must accept harmful interference that may be caused by the 
proper operation of industrial, scientific, and medical devices 
operating within the band.
    (iv) The 2417-2450 MHz segment is allocated to the amateur service 
on a co-secondary basis with the Federal Government radiolocation 
service. Amateur stations operating within the 2417-2450 MHz segment 
must accept harmful interference that may be caused by the proper 
operation of industrial, scientific, and medical devices operating 
within the band.
* * * * *
    (s) An amateur station having an operator holding a General, 
Advanced or Amateur Extra Class license may only transmit single 
sideband, suppressed carrier, (emission type 2K8J3E) upper sideband on 
the channels 5332 kHz, 5348 kHz, 5368 kHz, 5373 kHz, and 5405 kHz. 
Amateur operators shall ensure that their transmission occupies only 
the 2.8 kHz centered around each of these frequencies. Transmissions 
shall not exceed an effective radiated power (e.r.p) of 50 W PEP. For 
the purpose of computing e.r.p. the transmitter PEP will be multiplied 
with the antenna gain relative to a dipole or the equivalent 
calculation in decibels. A half wave dipole antenna will be presumed to 
have a gain of 0 dBd. Licensees using other antennas must maintain in 
their station records either manufacturer data on the antenna gain or 
calculations of the antenna gain. No amateur station shall cause 
harmful interference to stations authorized in the mobile and fixed 
services; nor is any amateur station protected from interference due to 
the operation of any such station.

[FR Doc. 03-13781 Filed 6-2-03; 8:45 am]
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