[Federal Register Volume 68, Number 155 (Tuesday, August 12, 2003)]
[Rules and Regulations]
[Pages 47856-47860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20325]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 25

[IB Docket No. 01-185, FCC No. 03-162]


Flexibility for Delivery of Communications by Mobile Satellite 
Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz 
Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document is a summary of the Order on Reconsideration 
adopted by the Commission in this proceeding. The Commission 
reconsidered in part, its decision in this proceeding in which it 
allowed flexibility in the delivery of communications by Mobile 
Satellite Service (MSS) providers. On reconsideration, the Commission 
permitted authorized MSS systems to integrate ancillary terrestrial 
components (ATCs) into their MSS networks in three sets of ratio 
frequency bands. The Commission also clarified certain issues. The 
Commission took this action to address concerns raised by the wireless 
carriers.

DATES: Effective September 11, 2003.

FOR FURTHER INFORMATION: Breck Blalock, or James Ball, Policy Division, 
International Bureau, (202) 418-1460.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration in IB Docket No. 01-185, FCC No. 03-162, adopted 
July 3, 2003 and released on July 3, 2003. The full text of this 
Commission decision is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room CY-A257), 445 
12th Street, SW., Washington, DC 20554. The document is also available 
for download over the Internet at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-0-162A1.pdf. The complete text may also be 
purchased from the Commission's copy contractor, Qualex International, 
in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 
via telephone at (202) 863-2893, via facsimile at (202) 863-2898, or 
via e-mail at [email protected].

Summary of Order

    On January 29, 2003, the Commission adopted a Report and Order, 68 
FR 33640 (June 5, 2003), to permit flexibility in the delivery of 
communications by MSS providers that operate in three sets of radio 
frequency bands: the 2GHz MSS band, the L-band and the Big LEO bands. 
In the Report and Order, the Commission permitted MSS licensees to 
integrate ATCs into their MSS networks for the purpose of enhancing 
their ability to offer high-quality, affordable mobile services on 
land, in the air and over the oceans without using any additional 
spectrum resources beyond spectrum already allocated and authorized by 
the Commission for MSS in these bands.
    Following release of the Report and Order, several wireless 
carriers made ex parte presentations stating that certain portions of 
the item required clarification. To resolve the concerns of the 
wireless carriers, the Commission on its own motion reconsidered the 
Report and Order in this proceeding.

[[Page 47857]]

    In the Reconsideration Order, the Commission amended Sec.  25.149 
to clarify that the rule does not preclude an MSS operator from filing 
an ATC application prior to actually meeting all of the gating 
requirements. However, the Commission will not grant an ATC 
authorization prior to an MSS operator's demonstrating that it has, in 
fact, met the gating criteria. This rule change will serve the public 
interest by granting ATC applications only after the Commission is 
satisfied that each of the gating criteria has in fact been met, or 
will be met at the same time the application is granted.
    The Commission adopted a new rule section that requires an MSS 
operator that is granted ATC authority to notify the Commission within 
30 days once it begins providing ATC service. This notification must 
take the form of a letter formally filed with the Commission in the 
appropriate MSS license docket and shall contain a certification that 
the MCC ATC service is consistent with its ATC authority.
    In the event that an MSS operator anticipates that its proposal 
will present complex or controversial issues that may warrant a longer 
deliberative process, the MSS operator may seek an initial finding from 
the Commission that its proposed service offerings are ``integrated'' 
as required by the Commission's Report and Order.
    The Commission revised Sec.  25.143 to eliminate the language that 
required MSS operators have a conditioned ATC authorization before 
engaging in preoperational construction and testing. Rather, the 
Commission will permit such construction and testing, at the operator's 
risk, at any time after an MSS provider has initiated physical 
construction on the MSS system satellites and notified us concerning 
the initiation of MSS system satellite construction and the MSS 
operator's intent to construct and test ATC facilities. The MSS 
operator must notify the Commission in the form of a letter formally 
filed with the Commission in the appropriate MSS license docket. The 
letter shall specify the frequencies on which the MSS licensee proposes 
to engage in pre-operational testing and shall specify the name, 
address, telephone number and other such information as may be 
necessary to contact a MSS licensee representative for the reporting 
and mitigation of any interference that may occur as a result of such 
pre-operational testing and build-out. Upon the filing of such a 
notification letter, the Commission will issue an informational public 
notice stating that such a notification letter has been filed. The 
Commission requires pre-operational construction and testing operations 
be in compliance with all appropriate technical rules including Sec.  
25.255 relating to procedures for resolving possible harmful 
interference. Also, MSS licensees engaging in pre-operational build-out 
and testing are required to comply with Sec. Sec.  5.83, 5.85(c), 5.111 
and 5.117.
    Finally, the Commission modified Sec.  25.117(f) to require that 
any initial application for the modification of a space station license 
to add an ancillary terrestrial component be placed on notice for 
public comment.

Procedural Matters

Supplemental Final Regulatory Flexibility Certification

    The Regulatory Flexibility Act of 1980, as amended (RFA), requires 
that a 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.'' (The RFA, 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).) 
The RFA generally defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction.'' In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act. See 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.'' 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 
U.S. Small Business Administration (SBA). See 15 U.S.C. 632. The SBA 
has developed a small business size standard for Satellite 
Telecommunications, which consists of all such companies having $12.5 
million or less in annual revenue. See 13 CFR 121.201, NAICS code 
517410.
    Pursuant to the RFA, the Commission incorporated a Final Regulatory 
Flexibility Certification into the Report and Order. For the reasons 
described below, we now incorporate this supplemental final 
certification into the Order on Reconsideration and certify that the 
policies and rules adopted in the Order on Reconsideration will not 
have a significant economic impact on a substantial number of small 
entities.
    The Order on Reconsideration will allow MSS operators to file 
applications prior to meeting the gating requirements. MSS operators 
that have been granted authorization will be required to notify the 
Commission within thirty days once the MSS operator begins providing 
ATC service. Finally, the rules will permit an MSS provider to 
construct and test, at the operator's risk, at any time after an MSS 
provider has initiated physical construction on the MSS system 
satellites and notified the Commission concerning the initiation of MSS 
system satellite construction and the MSS operator's intent to 
construct and test ATC facilities. The rule changes adopted in the 
Order on Reconsideration will have no significant economic impact on 
small entities because the MSS operators will not be required to make 
use of the additional capability. Under the rules adopted in the Order 
on Reconsideration, the Commission has permitted additional flexibility 
that will enhance the ability of MSS operators to offer American 
consumers high quality, affordable mobile services on land, in the air, 
and over the oceans without using spectrum resources beyond the 
spectrum already allocated and authorized for MSS use in these bands.
    The Commission also finds that this Order on Reconsideration--which 
brings additional flexibility to existing MSS licensees--will not 
affect a substantial number of small entities. There are currently five 
2 GHz MSS licensees, two Big LEO MSS licensees and three L-band MSS 
licensees authorized to provide service in the United States. Although 
at least one of the 2 GHz MSS system licensees and one of the Big LEO 
licensees are small businesses, small businesses often do not have the 
financial ability to become MSS system operators because of the high 
implementation costs associated with satellite systems and services. We 
expect that, by the time of MSS ATC system implementation, these 
current small businesses will no longer be considered small due to the 
capital requirements for launching and operating a proposed system.

[[Page 47858]]

Ordering Clauses

    Pursuant to sections 4(i), 7, 302, 303(c), 303(e), 303(f) and 
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 
sections 154(i), 157, 302, 303(c), 303(e), 303(f) and 303(r), this 
Order on Reconsideration is adopted and that part 25 of the rules is 
amended, as specified in the rule changes, effective September 11, 
2003.

List of Subjects in 47 CFR Part 25

    Radio, Satellites, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

PART 25--SATELLITE COMMUNICATIONS

0
1. The authority citation for part 25 continues to read as follows:

    Authority: 47 U.S.C. 701-744. Interprets or applies Sections 4, 
301, 302, 303, 307, 309 and 322 of the Communications Act, as 
amended, 47 U.S.C. 154, 301, 302, 303, 307, 309 and 332, unless 
otherwise noted.


0
2. Section 25.117 is amended by revising paragraph (f) to read as 
follows:


Sec.  25.117  Modification of station license.

* * * * *
    (f) An application for modification of a space station license to 
add an ancillary terrestrial component to an eligible satellite network 
will be treated as a request for a minor modification if the 
particulars of operations provided by the applicant comply with the 
criteria specified in Sec.  25.149. Notwithstanding the treatment of 
such an application as a minor modification, the Commission shall place 
any initial application for the modification of a space station license 
to add an ancillary terrestrial component on notice for public comment. 
Except as provided for in Sec.  25.149(f), no application for authority 
to add an ancillary terrestrial component to an eligible satellite 
network shall be granted until the applicant has demonstrated actual 
compliance with the criteria specified in Sec.  25.149(b).

0
3. Section 25.136 is amended by revising paragraphs (f), (g), and (h) 
to read as follows:


Sec.  25.136  Licensing provisions for the L-Band mobile-satellite 
service.

* * * * *
    (f) Incorporation of ancillary terrestrial component base station 
into an L-band mobile-satellite service system. Any licensee authorized 
to construct and launch an L-band mobile-satellite system may construct 
ancillary terrestrial component (ATC) base stations as defined in Sec.  
25.201 at its own risk and subject to the conditions specified in this 
subpart any time after commencing construction of the mobile-satellite 
service system.
    (g) Pre-operational build-out and testing. An MSS licensee may, 
without further authority from the Commission and at its own risk 
engage in pre-operational build-out and, conduct equipment tests for 
the purpose of making such adjustments and measurements as may be 
necessary to assure compliance with the terms of the technical 
provisions of its MSS license, ATC operation requirements, the rules 
and regulations in this Part and the applicable engineering standards. 
Prior to engaging in such pre-operational build-out and testing, an MSS 
licensee must notify the Commission concerning the initiation of MSS 
system satellite construction and the MSS operator's intent to 
construct and test ATC facilities. This notification must take the form 
of a letter formally filed with the Commission in the appropriate MSS 
license docket. Such letter shall specify the frequencies on which the 
MSS licensee proposes to engage in pre-operational testing and shall 
specify the name, address, telephone number and other such information 
as may be necessary to contact a MSS licensee representative for the 
reporting and mitigation of any interference that may occur as a result 
of such pre-operational testing and build-out. MSS licensees engaging 
in pre-operational build-out and testing must also comply with 
Sec. Sec.  5.83, 5.85(c), 5.111, and 5.117 of this chapter relating to 
experimental operations. An MSS licensee may not offer ATC service to 
the public for compensation during pre-operational testing. In order to 
operate any ATC base stations, such a licensee must meet all the 
requirements set forth in Sec.  25.147 and must have been granted ATC 
authority.
    (h) Aircraft. All portable or hand-held transceiver units 
(including transceiver units installed in other devices that are 
themselves portable or hand-held) having operating capabilities in the 
1626.5-1660.5 MHz and 1525-1559 MHz bands shall bear the following 
statement in a conspicuous location on the device: ``This device may 
not be operated while on board aircraft. It must be turned off at all 
times while on board aircraft.''

0
4. Section 25.143 is amended by revising paragraphs (i), (j), and (k) 
to read as follows:


Sec.  25.143  Licensing provisions for the 1.6/2.4 GHz mobile-satellite 
service and the 2 GHz mobile-satellite service.

* * * * *
    (i) Incorporation of ancillary terrestrial component base stations 
into a 1.6/2.4 GHz mobile-satellite service network or a 2 GHz mobile-
satellite service network. Any licensee authorized to construct and 
launch a 1.6/2.4 GHz or a 2 GHz mobile-satellite system may construct 
ancillary terrestrial component (ATC) base stations as defined in Sec.  
25.201 at its own risk and subject to the conditions specified in this 
subpart any time after commencing construction of the mobile-satellite 
service system.
    (j) Pre-operational build-out and testing. An MSS licensee may, 
without further authority from the Commission and at its own risk, 
engage in pre-operational build-out and conduct equipment tests for the 
purpose of making such adjustments and measurements as may be necessary 
to assure compliance with the terms of the technical provisions of its 
MSS license, ATC operation requirements, the rules and regulations in 
this Part and the applicable engineering standards. Prior to engaging 
in such pre-operational build-out and testing, an MSS licensee must 
notify the Commission concerning the initiation of MSS system satellite 
construction and the MSS operator's intent to construct and test ATC 
facilities. This notification must take the form of a letter formally 
filed with the Commission in the appropriate MSS license docket. Such 
letter shall specify the frequencies on which the MSS licensee proposes 
to engage in pre-operational testing and shall specify the name, 
address, telephone number and other such information as may be 
necessary to contact a MSS licensee representative for the reporting 
and mitigation of any interference that may occur as a result of such 
pre-operational testing and build-out. MSS licensees engaging in pre-
operational build-out and testing must also comply with Sec. Sec.  
5.83, 5.85(c), 5.111, and 5.117 of this chapter relating to 
experimental operations. An MSS licensee may not offer ATC service to 
the public for compensation during pre-operational testing. In order to 
operate any ATC base stations, such a licensee must meet all the 
requirements set forth in Sec.  25.149 and must have been granted ATC 
authority.
    (k) Aircraft. ATC mobile terminals must be operated in accordance 
with 25.136(a). All portable or hand-held transceiver units (including 
transceiver units installed in other devices that are themselves 
portable or hand-held)

[[Page 47859]]

having operating capabilities in the 2000-2020/2180-2200 MHz or 1610-
1626.5 MHz/2483.5-2500 MHz bands shall bear the following statement in 
a conspicuous location on the device: ``This device may not be operated 
while on board aircraft. It must be turned off at all times while on 
board aircraft.''
* * * * *

0
5. Section 25.149 is revised to read as follows:


Sec.  25.149  Application requirements for ancillary terrestrial 
components in the mobile-satellite service networks operating in the 
1.5./1.6 GHz, 1.6/2.4 GHz and 2 GHz mobile-satellite service.

    (a) Applicants for ancillary terrestrial component authority shall 
demonstrate that the applicant does or will comply with the following 
through certification or explanatory technical exhibit, as appropriate:
    (1) ATC shall be deployed in the forward-band mode of operation 
whereby the ATC mobile terminals transmit in the MSS uplink bands and 
the ATC base stations transmit in the MSS downlink bands in portions of 
the 2000-2020 MHz/2180-2200 MHz bands (2 GHz band), the 1626.5-1660.5 
MHz/1525-1559 MHz bands (L-band), and the 1610-1626.5 MHz/2483.5-2500 
MHz bands (Big LEO band).
    (2) ATC operations shall be limited to certain frequencies:
    (i) In the 2000-2020 MHz/2180-2200 MHz bands (2 GHz MSS band), ATC 
operations are limited to the selected assignment of the 2 GHz MSS 
licensee that seeks ATC authority.
    (ii) In the 1626.5-1660.5 MHz/1525-1559 MHz bands (L-band), ATC 
operations are limited to the frequency assignments authorized and 
internationally coordinated for the MSS system of the MSS licensee that 
seeks ATC authority.
    (iii) In the 1610-1626.5 MHz/2483.5-2500 MHz bands (Big LEO band), 
ATC operations are limited to the 1610-1615.5 MHz, 1621.35-1626.5 MHz, 
and 2492.5-2498.0 MHz bands and to the specific frequencies authorized 
for use by the MSS licensee that seeks ATC authority.
    (3) ATC operations shall not exceed the geographical coverage area 
of the mobile satellite service network of the applicant for ATC 
authority.
    (4) ATC base stations shall comply with all applicable antenna and 
structural clearance requirements established in part 17 of this 
chapter.
    (5) ATC base stations and mobile terminals shall comply with part 1 
of this chapter, Subpart I--Procedures Implementing the National 
Environmental Policy Act of 1969, including the guidelines for human 
exposure to radio frequency electromagnetic fields as defined in 
Sec. Sec.  1.1307(b) and 1.1310 of this chapter for PCS networks.
    (6) ATC base station operations shall use less than all available 
MSS frequencies when using all available frequencies for ATC base 
station operations would exclude otherwise available signals from MSS 
space-stations.
    (b) Applicants for an ancillary terrestrial component shall 
demonstrate that the applicant does or will comply with the following 
criteria through certification:
    (1) Geographic and temporal coverage. (i) For the 2 GHz MSS band, 
an applicant must demonstrate that it can provide space-segment service 
covering all 50 states, Puerto Rico, and the U.S. Virgin Islands one-
hundred percent of the time, consistent with the coverage requirements 
for 2 GHz MSS GSO operators.
    (ii) For the L-band, an applicant must demonstrate that it can 
provide space-segment service covering all 50 states, Puerto Rico, and 
the U.S. Virgin Islands one-hundred percent of the time, unless it is 
not technically possible for the MSS operator to meet the coverage 
criteria from its orbital position.
    (iii) For the Big LEO band, an applicant must demonstrate that it 
can provide space-segment service to all locations as far north as 
70[deg] North latitude and as far south as 55[deg] South latitude for 
at least seventy-five percent of every 24-hour period, i.e., that at 
least one satellite will be visible above the horizon at an elevation 
angle of at least 5[deg] for at least 18 hours each day, and on a 
continuous basis throughout the fifty states, Puerto Rico and the U.S. 
Virgin Islands, i.e., that at least one satellite will be visible above 
the horizon at an elevation angle of at least 5[deg] at all times.
    (2) Replacement satellites. (i) Operational NGSO MSS ATC systems 
shall maintain an in-orbit spare satellite.
    (ii) Operational GSO MSS ATC systems shall maintain a spare 
satellite on the ground within one year of commencing operations and 
launch it into orbit during the next commercially reasonable launch 
window following a satellite failure.
    (iii) All MSS ATC licensees must report any satellite failures, 
malfunctions or outages that may require satellite replacement within 
ten days of their occurrence.
    (3) Commercial availability. Mobile-satellite service must be 
commercially available (viz., offering services for a fee) in 
accordance with the coverage requirements that pertain to each band as 
a prerequisite to an MSS licensee's offering ATC service.
    (4) Integrated services. MSS ATC licensees shall offer an 
integrated service of MSS and MSS ATC. Applicants for MSS ATC may 
establish an integrated service offering by affirmatively demonstrating 
that:
    (i) The MSS ATC operator will use a dual-mode handset that can 
communicate with both the MSS network and the MSS ATC component to 
provide the proposed ATC service; or
    (ii) Other evidence establishing that the MSS ATC operator will 
provide an integrated service offering to the public.
    (5) In-band operation. (i) In the 2 GHz MSS band, MSS ATC is 
limited to an MSS licensee's selected assignment. MSS ATC operations on 
frequencies beyond the MSS licensee's selected assignment are 
prohibited.
    (ii) In the Big LEO band, MSS ATC is limited to no more than 5.5 
MHz of spectrum in each direction of operation. Licensees in these 
bands may implement ATC only on those channels on which MSS is 
authorized, consistent with the Big LEO band-sharing arrangement.
    (iii) In the L-band, MSS ATC is limited to those frequency 
assignments available for MSS use in accordance with the Mexico City 
Memorandum of Understanding, its successor agreements or the result of 
other organized efforts of international coordination.
    (c) Equipment certification. (1) Each ATC MET utilized for 
operation under this part and each transmitter marketed, as set forth 
in Sec.  2.803 of this chapter, must be of a type that has been 
authorized by the Commission under its certification procedure for use 
under this part.
    (2) Any manufacturer of radio transmitting equipment to be used in 
these services may request equipment authorization following the 
procedures set forth in subpart J of part 2 of this chapter. Equipment 
authorization for an individual transmitter may be requested by an 
applicant for a station authorization by following the procedures set 
forth in part 2 of this chapter.
    (3) Licensees and manufacturers are subject to the radiofrequency 
radiation exposure requirements specified in Sec. Sec.  1.1307(b), 
2.1091 and 2.1093 of this chapter, as appropriate. MSS ATC base 
stations must comply with the requirements specified in Sec.  1.1307(b) 
of this chapter for PCS base stations. MSS ATC mobile terminals must 
comply with the requirements specified for mobile and portable PCS 
transmitting devices in Sec.  1.1307(b) of this chapter. MSS ATC mobile 
terminals must also

[[Page 47860]]

comply with the requirements in Sec. Sec.  2.1091 and 2.1093 of this 
chapter for Satellite Communications Services devices. Applications for 
equipment authorization of mobile or portable devices operating under 
this section must contain a statement confirming compliance with these 
requirements for both fundamental emissions and unwanted emissions. 
Technical information showing the basis for this statement must be 
submitted to the Commission upon request.
    (d) Applicants for an ancillary terrestrial component authority 
shall demonstrate that the applicant does or will comply with the 
provisions of Sec. Sec.  1.924 and 25.203(e) through 25.203(g) and with 
Sec. Sec.  25.252, 25.253, or 25.254, as appropriate, through 
certification or explanatory technical exhibit.
    (e) Except as provided for in paragraph (f) of this section, no 
application for an ancillary terrestrial component shall be granted 
until the applicant has demonstrated actual compliance with the 
provisions of paragraph (b) of this section. Upon receipt of ATC 
authority, all ATC licensees must ensure continued compliance with this 
section and Sec. Sec.  25.252, 25.253, or 25.254, as appropriate.
    (f) Special provision for operational MSS systems. Applicants for 
MSS ATC authority with operational MSS systems that are in actual 
compliance with the requirements prescribed in paragraphs (b)(1), 
(b)(2), and (b)(3) of this section at the time of application may elect 
to satisfy the requirements of paragraphs (b)(4) and (b)(5) of this 
section prospectively by providing a substantial showing in its 
certification regarding how the applicant will comply with the 
requirements of paragraphs (b)(4) and (b)(5) of this section. 
Notwithstanding Sec.  25.117(f) and paragraph (e) of this section, the 
Commission may grant an application for ATC authority based on such a 
prospective substantial showing if the Commission finds that operations 
consistent with the substantial showing will result in actual 
compliance with the requirements prescribed in paragraphs (b)(4) and 
(b)(5) of this section. An MSS ATC applicant that receives a grant of 
ATC authority pursuant to this paragraph (f) shall notify the 
Commission within 30 days once it begins providing ATC service. This 
notification must take the form of a letter formally filed with the 
Commission in the appropriate MSS license docket and shall contain a 
certification that the MSS ATC service is consistent with its ATC 
authority.

[FR Doc. 03-20325 Filed 8-11-03; 8:45 am]
BILLING CODE 6712-01-P