[Federal Register Volume 69, Number 12 (Tuesday, January 20, 2004)]
[Rules and Regulations]
[Pages 2677-2688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1126]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 15

[ET Docket No. 03-122; FCC 03-287]


Unlicensed Devices in the 5 GHz Band

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document amends the Commission's rules to make an 
additional 255 megahertz of spectrum available in the 5.470-5.725 GHz 
band for unlicensed National Information Infrastructure (U-NII) 
devices, including Radio Local Area Networks (RLANs). This action will 
align the frequency bands used by U-NII devices in the United States 
with bands in other parts of the world, thus decreasing development and 
manufacturing costs for U.S. manufacturers by allowing for the same 
products to be used in most parts of the world. We believe that the 
increased demand that will result from expanding the markets for U-NII 
devices, coupled with the operational flexibility provided by the U-NII 
rules, will lead manufacturers to develop a wide range of new and 
innovative unlicensed devices and thereby increase wireless broadband 
access and investment.

DATES: Effective February 19, 2004.

FOR FURTHER INFORMATION CONTACT: Ahmed Lahjouji, Office of Engineering 
and Technology, (202) 418-2061, TTY (202) 418-2989, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, ET Docket 03-122, FCC 03-287, adopted November 12, 2003, and 
released November 18, 2003. 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. To request materials in 
accessible formats for people with disabilities (Braille, large print, 
electronic files, audio format), send an e-mail to [email protected] or 
call the FCC Consumer & Governmental Affairs Bureau at (202) 418-0531 
(voice), (202) 418-7365 (TTY).

Summary of the Report and Order

    1. The Report amends part 15 of our rules to make an additional 255 
megahertz of spectrum available in the 5.470--5.725 GHz band for 
unlicensed National Information Infrastructure (U-NII) devices, 
including Radio Local Area Networks (RLANs). This action aligns the 
frequency bands used by U-NII devices in the United States with bands 
in other parts of the world, thus decreasing development and 
manufacturing costs for U.S. manufacturers by allowing for the same 
products to be used in most parts of the world. We believe that the 
increased demand that will result from expanding the markets for U-NII 
devices, coupled with the operational flexibility provided by the U-NII 
rules, will lead manufacturers to develop a wide range of new and 
innovative unlicensed devices and thereby increase wireless broadband 
access and investment.
    2. There has been tremendous growth in demand for unlicensed 
wireless devices in recent years, particularly for devices used for 
wireless local area networking and broadband access to the internet. 
Sales of wireless local area network equipment have grown more than 
150% since the year 2000. Companies are now offering broadband

[[Page 2678]]

access at ``hot-spots'' in restaurants, hotels, airports and other 
public gathering places by using unlicensed wireless devices. In cities 
across the nation, new start-up businesses are offering broadband 
services using unlicensed wireless devices. In rural areas, 
entrepreneurs and small businesses have introduced broadband service 
using unlicensed devices where no service was available before. We 
anticipate that the additional spectrum we are making available for U-
NII devices will allow the continued growth in marketing, deployment 
and use of unlicensed devices. It will help meet the needs of 
businesses and consumers for fixed and mobile high-speed digital 
communications. We believe it will also stimulate the availability of 
broadband service to those who do not yet have it, and will increase 
competitive choices for those who do.
    3. In addition to making more spectrum available for use by U-NII 
devices, we are taking steps to minimize the potential for these 
devices to cause interference to existing operations. Specifically, we 
are amending the Table of Frequency Allocations in Part 2 of the rules 
by: (1) Upgrading the Federal Government Radiolocation Service in the 
5.46-5.65 GHz band and the non-Federal Government Radiolocation Service 
in the 5.47-5.65 GHz band to primary status; and (2) adding primary 
Federal Government allocations and secondary non-Federal Government 
allocations for the Space Research Service (active) (SRS) in the 5.35-
5.57 GHz band and for the Earth Exploration-Satellite Service (active) 
(EESS) in the 5.46-5.57 GHz band. In addition, we are modifying certain 
technical requirements for U-NII devices. The amendments made herein 
are generally consistent with the U.S. proposals for the World 
Radiocommunication Conference 2003 (WRC-03), and with the resolutions 
adopted at WRC-03, pertaining to these bands.

Discussion

    4. We continue to believe, and the comments support, our position 
in the Notice, that the spectrum currently available for U-NII devices 
is insufficient to support long-term growth for unlicensed wireless 
broadband devices and networks. We believe that the additional spectrum 
we are making available for unlicensed wireless broadband devices and 
networks should provide sufficient spectrum to meet consumers' needs, 
thereby stimulating investment. Ample evidence exists of the enormous 
growth in the demand for such devices and services. For example, a 
number of service providers are currently offering or have announced 
plans to deploy commercial unlicensed wireless broadband networks. Such 
networks offer significant benefits for American consumers and 
businesses, including increased competition with other providers of 
broadband service, such as cable and digital subscriber line (DSL) 
broadband services, and additional options in areas unserved by other 
broadband providers. We also believe that additional spectrum will give 
U-NII devices and networks more flexibility to avoid interference with 
other services sharing the existing U-NII bands, thereby improving the 
quality of service experienced by consumers. For these reasons, we are 
making an additional 255 megahertz available under the U-NII rules to 
meet the growing demand for new high data rate devices and services and 
to enable equipment to use spectrum that is harmonized internationally.

Changes to the Table of Frequency Allocations

    5. Proposals. As noted in the NPRM, no change is needed to the 
Table of Frequency Allocations to make an additional 255 megahertz of 
spectrum available under the U-NII rules. However, we proposed several 
changes to the Table of Frequency Allocations to accommodate the 
spectrum requirements of other radio services. Specifically, we 
proposed to upgrade the allocations for the Federal Government 
Radiolocation Service in the 5.46-5.65 GHz band and the non-Federal 
Government Radiolocation Service in the 5.47-5.65 GHz band from 
secondary to primary. We further proposed to add primary Federal 
Government allocations and secondary non-Federal Government allocations 
for the SRS in the 5.35-5.57 GHz band and for the EESS in the 5.46-5.57 
GHz band.
    6. Decision. Consistent with the outcome of WRC-03, we are adopting 
the allocations proposed in the NPRM. These allocations are needed to 
meet the Federal Government's requirements for increased interference 
protection and additional spectrum for certain services. First, we 
modify the U.S. Table of Frequency Allocations in part 2 of the rules 
to upgrade the Federal Government Radiolocation service to primary in 
the 5.46-5.65 GHz band. We similarly upgrade the non-Federal Government 
Radiolocation Service to co-primary in the 5.47-5.65 GHz band. We note 
that the Federal Government Radiolocation Service already has a primary 
allocation in the 5.35-5.46 GHz band. The elevation in status of the 
Radiolocation Service along with the technical rules adopted will 
protect operations in that service against interference from U-NII 
devices. Further, we are adding primary Federal Government allocations 
and secondary non-Federal Government allocations for the SRS in the 
5.35-5.57 GHz band and the EESS in the 5.46-5.57 GHz band. In making 
these changes to the Table of Frequency Allocations, we are also 
adopting the additional and modified international, Government, and 
U.S. footnotes, as generally recommended by NTIA.

Technical Requirements

Additional Spectrum for U-NII Devices
    7. Proposals. In the NPRM, we proposed to modify our part 15 rules 
by adding the 5.470-5.725 GHz band to the U-NII bands with the same 
technical requirements that apply to the existing 5.250-5.350 GHz U-NII 
band. U-NII devices operating in the 5.25-5.35 GHz band may be used 
indoors and outdoors and are limited to 1 watt equivalent isotropically 
radiated power (e.i.r.p.). This proposal was consistent with the U.S. 
position for the WRC-03.
    Decision. We continue to believe, as evidenced by the support in 
the record, that there is need to make the 5.470-5.725 GHz band 
available for unlicensed U-NII devices. This additional spectrum will 
relieve the developing congestion in the existing 5.725-5.825 GHz band 
and provide opportunities for further development of U-NII technologies 
and system capabilities. We therefore are adopting our proposal to 
modify the Part 15 rules to allow U-NII devices to operate in the 
5.470-5.725 GHz band with 1 watt e.i.r.p. This is consistent with the 
outcome of WRC-03. We decline to adopt a mobile allocation, as 
suggested by IEEE 802 and instead will treat these devices similar to 
all other unlicensed intentional radiators (i.e., they will operate on 
a non-interference basis under Section 15.15(c) of the rules). Based on 
the growth of similar unlicensed mobile devices operating in the 2.4 
GHz band which also operate on a non-interference basis, we do not 
believe that such treatment will hinder the development or deployment 
of U-NII devices. In addition, as this action is consistent with the 
adoption of a mobile allocation by the ITU, manufacturers will benefit 
from economies of scale and consumers will benefit by having mobile, 
interoperable devices on a global basis.
    8. We are not persuaded that we should either add or modify our 
proposed rules as requested by ARRL. As recognized by ARRL, our DFS and 
TPC requirements, while not specifically designed to protect amateur

[[Page 2679]]

operations, will in fact protect amateur operations. In addition, 
because of the large amount of spectrum we are adding for U-NII devices 
along with the existing 300 MHz of U-NII spectrum, we expect the 
density of devices throughout the spectrum to be relatively low. We 
believe that this low density of devices coupled with our technical 
requirements will provide adequate protection to all incumbent systems 
in the band, including amateur satellite uplink systems.

Dynamic Frequency Selection

    9. Proposals. To ensure protection of Federal Government radar 
systems, we proposed to require that U-NII devices operating in the 
5.25-5.35 GHz and 5.470-5.725 GHz bands employ Dynamic Frequency 
Selection. DFS is a feature that dynamically instructs a transmitter to 
switch to another channel whenever a particular condition (such as, for 
example, the prevailing ambient interference level on a channel) is 
met. Prior to initiating a transmission, a U-NII device's DFS mechanism 
would monitor the available spectrum in which it could operate for a 
radar signal. If a signal is detected, the channel associated with the 
radar signal would either be vacated and/or flagged as unavailable for 
use by the U-NII device.
    10. We proposed to require that U-NII devices continuously monitor 
their environment for the presence of radar both prior to and during 
operation. We further proposed to require that U-NII devices use two 
detection thresholds to ascertain whether radar signals are present. 
The proposed threshold levels were -62 dBm for devices with a maximum 
e.i.r.p less than 200 mW and -64 dBm for devices with a maximum e.i.r.p 
between 200 mW and 1 W averaged, over 1 [mu]s. Because these levels are 
referenced to a 1 megahertz bandwidth, we also proposed to require that 
U-NII devices with less than a 1 megahertz bandwidth use a correction 
factor when determining whether signals are over or below the 
threshold. In addition, we sought comment on the minimum number of 
radar pulses necessary, and the observation time required, for reliable 
detection of a radar signal. We also proposed a definition of DFS that 
would require a uniform spreading of loading over all available 
channels. Our proposals were based on an agreement on the use of DFS 
that was reached by industry, the National Telecommunications and 
Information Administration (NTIA), and the Department of Defense prior 
to WRC-03.
    11. We also sought comment on the proper treatment of U-NII systems 
where multiple devices operate under the control of a central 
controller or ``master''. Specifically, we proposed to require only the 
central controller to have DFS capability. We also requested comment on 
how to identify remote units that operate only under the control of a 
central controller and whether DFS should be required for devices that 
operate in absence of controller, i.e., on an ad hoc basis.
    12. Decision. We are adopting our proposal to require that U-NII 
devices operating in the 5.25-5.35 GHz and 5.470-5.725 GHz bands employ 
DFS at the threshold levels proposed in the NPRM. We agree with the 
commenters that DFS is a key element in enabling unlicensed U-NII 
devices to share spectrum with important U.S. Government radar 
operations. It is also an ITU accepted mechanism that will allow U-NII 
devices to be globally marketed. With respect to Arcwave's objection to 
the DFS requirement on DOCSIS compatibility grounds, we are providing, 
as explained below, a transition period for implementing the DFS 
requirement in U-NII devices that operate in the 5.25-5.35 GHz band. 
Thus, all of Arcwave's existing products that have been certified to be 
used in the 5.25-5.35 GHz band can continue to be sold during this 
period and can be used indefinitely, which minimizes many of the 
potential economic hardships asserted by Arcwave. Moreover, the 
voluntary standards-making bodies, like IEEE, routinely update their 
standards to reflect Commission requirements. Thus, Arcwave can pursue 
changing the DOCSIS standard through the relevant standard-making body, 
Cable Television Laboratories. Also, we disagree with Works D'Arndt's 
characterization of the effects of DFS implementation. DFS will 
determine the RLANs' transmit frequency, but will not incrementally 
impair the reliability of RLAN communications. Moreover, we note that, 
as unlicensed devices, RLANs operate on a non-interference basis and 
must cease their operations should they interfere with other licensed 
or authorized services.
    13. We are not requiring U-NII devices to have bandwidths of 1 
megahertz or greater as requested by some commenters. The current rules 
for U-NII operations in the 5.25-5.35 GHz band, which will now extend 
to the new 5.470-5.725 GHz band, allow U-NII operations with bandwidths 
of less than 1 megahertz with a penalty in the form of reduced power 
levels for such devices. This approach provides incentives for 
manufacturers to develop broadband applications as was intended, but 
does not foreclose the ability for manufacturers to produce U-NII 
devices having bandwidths less than 1 MHz. The requirement that such 
devices operate with reduced power also diminishes their ability to 
cause interference.
    14. We are adopting our proposal to exempt remote devices that are 
under the control of a central controller from the DFS requirement. The 
exclusion of such ``client'' devices from the radar detection and DFS 
functions is an integral part of the industry/Government pre-WRC-03 
agreement and is also consistent with the final ITU Recommendation. 
However, we are not exempting controller devices or ``masters'' from 
the DFS requirement. We note that exempting a controller device from 
the DFS requirement would be both inconsistent with both pre-WRC-03 
agreements and WRC-03 resolutions. We also agree with Proxim that it 
shouldn't be necessary to identify remote devices operating under 
control of a master other than at the time of product certification, 
since any devices operating without the control of a master will have 
the DFS capability as required for product certification. With respect 
to ad hoc U-NII devices, we agree with commenters that these devices 
should not be exempt from the DFS requirement in the 5.25-5.35 GHz and 
5.470-5.725 GHz bands at this time because no analyses have been 
performed to determine the impact this may have on radio services in 
this spectrum.
    15. Finally, we agree with Cisco that codifying requirements for a 
minimum number of pulses and observation time required to reliably 
detect the radar signals before the work on compliance testing 
procedures is completed could be overly burdensome and limit the 
flexibility for DFS implementations in particular devices. These 
parameters will be addressed under the compliance test procedures, as 
described below. Additionally, several commenters also requested that 
we distinguish between the DFS ``mechanism'' and the ``radar 
detection'' function. We are clarifying the rules to indicate that 
radar detection (sub-function) is part of the overall DFS function. 
Finally, we are adopting rules to clarify DFS detection that require a 
master device and associated client devices to dedicate periods of no 
transmissions before, during, or after each packet or frame. During 
these listen periods, successive averaging periods, not to exceed 1 
microsecond, will be used and any power level above the detection 
threshold found in any one of these averaging periods will trigger the 
DFS detection circuit.

[[Page 2680]]

Transmit Power Control

    16. Proposals. TPC can generally be defined as a mechanism that 
regulates a device's transmit power in response to an input signal or a 
condition (e.g., a command signal is issued by a controller when the 
received signal falls below a predetermined threshold). In the NPRM, we 
proposed to require U-NII devices operating in the 5.470-5.725 GHz band 
to employ a transmit power control (TPC) mechanism to further protect 
EESS and SRS operations. We also proposed to require that when TPC is 
triggered, the U-NII device's power level be reduced by 6 dB and 
requested comments on identifying a suitable triggering mechanism for 
TPC. In addition, we requested comments on whether TPC is necessary for 
U-NII devices that operate at maximum e.i.r.p less than or equal to 500 
mW, i.e., =3 dB below maximum e.i.r.p. of 1 Watt. Further, 
we requested comments on how TPC should be applied to system 
configurations where multiple devices may operate under the control of 
a central device.
    17. Decision. We will require TPC for U-NII devices operating in 
the 5.250-5.350 GHz and 5.470-5.725 GHz bands. Although we did not 
propose applying the TPC requirement to the 5.250-5.350 GHz band in the 
NPRM, we believe that this requirement is also appropriate for U-NII 
devices in that band. At the time the NPRM was issued, there was no 
call to require TPC for the 5.25-5.35 GHz band. However, at WRC-03, 
there was strong support to require TPC for this band and the United 
States partners agreed to support this new requirement after consulting 
with their representatives from industry and Government who were 
present at the conference. The current 802.11 standards require TPC in 
the 5 GHz band. We are therefore adopting a requirement that U-NII 
devices operating in the 5.25-5.35 GHz band have TPC. We believe that 
the majority of devices that will be affected by this rule will already 
have the TPC feature built into them, since only TPC equipped devices 
will be able to take advantage of the new band. Also, requiring TPC for 
the 5.25-5.35 GHz band is also consistent with some commenters' call 
for uniform rules for the U-NII bands both domestically and 
internationally. We agree with the commenters arguments that there is 
no need to require TPC for low-power U-NII devices and therefore will 
only require TPC for U-NII operating at power levels higher than 500mW.
    18. We recognize that the benefits of requiring a well defined TPC 
algorithm must be weighed against the burden it would impose. We agree 
with commenters that codifying a specific TPC algorithm into our rules 
is likely to hinder innovation, and therefore, eventually, increase 
equipment costs. We, therefore, decline to adopt requirements for a 
specific TPC triggering mechanism into our rules. Instead, we will 
require applicants seeking equipment authorization for U-NII devices to 
provide a statement in their certification application explaining how 
the equipment complies with our TPC rules.

Test Procedures

    19. Proposals. In the NPRM, we requested comments on the test 
procedures needed to ensure compliance with the DFS and TPC 
requirements adopted herein. Specifically, we requested comments on how 
U-NII devices can be tested for compliance with TPC requirements to 
implement reduced power without placing unnecessary restrictions on 
device design. In addition, we requested comments on the extent to 
which devices under development may have unique or novel transmission 
waveforms that may require special measurement instrumentation 
settings, e.g., integration times, that differ from those used for 
measuring compliance of previous U-NII band devices.
    20. Decision. In order to allow the immediate implementation of U-
NII devices in accordance with the rules adopted in the R&On, we are 
providing an interim test procedure drafted by the 5 GHz Project Team 
to be used in obtaining equipment certifications for U-NII devices. We 
have reviewed this draft procedure and believe its provisions are 
adequate to provide satisfactory testing and certification of U-NII 
devices containing DFS capabilities. We recognize that this procedure 
may need to be modified as equipment is developed and as the testing 
methodologies are refined. Therefore, consistent with existing 
practice, our Laboratory may issue updated measurement procedures in 
the future. The interim test procedure is set forth in Appendix C of 
the R&O.

Transition Period

    21. Proposals. In the NPRM, we proposed transition rules for the U-
NII equipment operating in the 5.250-5.350 GHz and 5.470-5.725 GHz 
bands. Specifically, we proposed to require that U-NII equipment, 
operating in the new 5.470-5.725 GHz band meet all of the technical 
requirements, including DFS and TPC, on the effective date of these 
rules. In addition, we proposed that in the 5.25-5.35 GHz band, U-NII 
equipment comply with the DFS requirement effective one year from the 
date of publication of the Report and Order in this proceeding in the 
Federal Register. We also proposed that all U-NII devices operating in 
the 5.25-5.35 GHz band that are imported or shipped in interstate 
commerce on or after two years from the date of publication in the 
Federal Register comply with these standards. We requested comments on 
our proposed transition provisions.
    22. Decision. We are requiring that any product that has the 
capability to operate in the new spectrum at the 5.470-5.725 GHz band, 
including equipment designed to operate in both the 5.25-5.35 GHz and 
5.470-5.725 GHz band, must meet all the rules contained in this Report 
and Order in accordance with the specified measurement procedures to 
obtain equipment certification. For all other equipment, we will 
provide a transition period. This will minimize economic hardships on 
manufacturers by allowing them, during the transition period, to 
continue producing and selling existing equipment while modifying their 
products to meet the new requirements. Thus, we are adopting our 
proposal to implement a cut-off date of one year from date of 
publication of this Report and Order in the Federal Register for 
applications for equipment certification of products that operate under 
the current rules in only the 5.25-5.35 GHz band. That is, equipment 
designed to operate in only the 5.25-5.35 GHz band may continue to 
obtain certification without having DFS and TPC so long as the 
application for equipment certification is filed prior to the cut-off 
date of one year. After that time, all devices for which an application 
for equipment certification is filed for U-NII equipment operating in 
the 5.25-5.35 GHz band must meet the rules adopted in the Report and 
Order. In addition, we are adopting a two-year cutoff date for 
marketing and importation of equipment designed to operate in only the 
5.23-5.35 GHz band. This will prevent equipment that may be built in 
countries which do not have DFS and TPC requirements from continuing to 
be imported and marketed indefinitely. Finally, we note that users who 
obtain equipment prior to any of these cut-off dates may continue to 
use that equipment indefinitely.

Final Regulatory Flexibility Analysis

    23. As required by the Regulatory Flexibility Act of 1980 as 
amended,\1\ an

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Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the 
Notice of Proposed Rule Making, Revision of Parts 2 and 15 of the 
Commission's Rules to Permit Unlicensed National Information 
Infrastructure (U-NII) devices in the 5 GHz band.\2\ The Commission 
sought written public comment on the proposals in the Notice, including 
comment on the IRFA. The comments received are discussed below. This 
Final Regulatory Flexibility Analysis conforms to the RFA.\3\
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    \1\ See 5 U.S.C. 603. 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, Stat. 857 (1996).
    \2\ See Notice of Proposed Rulemaking, ET Docket No. 03-122, 18 
FCC Rcd 11581 (2003).
    \3\ See 5 U.S.C. 604(a).
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A. Need for, and Objectives of, the Report and Order

    24. This Report and Order amends part 15 of our rules governing the 
operation of unlicensed National Information Infrastructure (U-NII) 
devices, including Radio Local Area Networks (RLANs), to make available 
an additional 255 megahertz of spectrum in the 5.47-5.725 GHz band for 
the growth and development of unlicensed wireless broadband networks. 
This action responds to the petition for rule making submitted by the 
Wireless Ethernet Compatibility Alliance (WECA--now known as Wi-Fi 
Alliance).\4\
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    \4\ See WECA Petition for Rulemaking, RM-10371, filed on January 
15, 2002, Public Notice Report No. 2527, January 29, 2002.
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    25. In addition to making more spectrum available for use by U-NII 
devices, the Report and Order also makes several other rule changes in 
the 5 GHz band that will further facilitate the use of this band for U-
NII devices, while at the same time ensuring sufficient protection for 
various incumbents in the band. Specifically, it modifies the U.S. 
Table of Frequency Allocations in part 2 of the rules to upgrade the 
status of the Federal Government Radiolocation service to primary in 
the 5.46-5.65 GHz band. It similarly upgrades the non-Federal 
Government radiolocation service to primary in the 5.47-5.65 GHz band. 
It further adds primary allocations for the Federal Government and the 
non-Federal Government Space Research Service (active) (SRS) in the 
5.35-5.46 GHz band and the Earth Exploration-Satellite Service (active) 
(EESS) and SRS (active) in the 5.46-5.57 GHz band.
    26. The Report and Order also modified certain technical 
requirements for U-NII devices in the part 15 rules. In addition to 
applying the existing technical requirements for the 5.250-5.350 GHz 
sub-band to the new 5.470-5.725 GHz band, it requires that U-NII 
devices operating in both the existing 5.25-5.35 GHz sub-band and the 
new 5.470-5.725 GHz sub-band employ a listen-before-talk mechanism 
called dynamic frequency selection (DFS). DFS is an interference 
avoidance mechanism. Prior to the start of any transmissions, and 
through constant monitoring, the device (e.g., RLAN) equipped with such 
a mechanism monitors the radio environment for the presence of radar. 
If the U-NII device determines that a radar signal is present, it 
either moves to another channel or enters a sleep mode if no channels 
are available.
    27. The Report and Order also requires a transmit power control 
(TPC) mechanism in both the existing 5.25-5.35 GHz sub-band and the new 
5.470-5.725 GHz sub-band to further reduce the potential for impact on 
EESS and SRS operations. TPC can generally be defined as a mechanism 
that regulates a device's transmit power in response to an input signal 
or a condition (e.g., a command signal may be issued by a controller 
when the received signal falls below a predetermined threshold). TPC 
will allow the transmitter to operate at less than the maximum power 
for most of the time. As the signal level at the receiver rises or 
falls, the transmit power will be decreased or increased as needed. 
Because TPC equipped devices adjust their transmit power to the minimum 
necessary to achieve the desired performance, the average interference 
power from a large number of devices is reduced, the power consumption 
is minimized and network capacity is increased.
    28. U-NII devices currently operate in the 5.25-5.35 GHz band 
without DFS capability. As a result, some period of time will be needed 
to implement the new DFS requirement for U-NII equipment operating in 
the 5.25-5.35 GHz band. The Report and Order requires U-NII equipment 
operating in the 5.25-5.35 GHz band that are authorized under the 
certification procedures on or after January 20, 2005 to comply with 
the DFS and TPC requirements specified in Sec.  15.407 of the rules. U-
NII equipment operating in the 5.25-5.35 GHz band that are imported or 
marketed January 20, 2006 shall comply with the DFS and TPC 
requirements in Sec.  15.407 of the rules.

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

    29. We received no comments directly in response to the IRFA in 
this proceeding. We did, however, receive a comment from one small 
business, ArcWave, which stated that its use of the DOCSIS protocol 
will be compromised by the imposition of the DFS feature.\5\ On 
consideration of ArcWave's comment regarding DFS and DOCSIS, we find 
their comment is unpersuasive. We believe that the beneficial value of 
DFS far outweighs the possible, but unproven, negative impact of DFS on 
a single commenter, ArcWave. However, as explained in the text and 
below, we have taken action in the form of a transition period that 
will ease any economic impact to entities, including small entities, 
that develop products in the 5.25-5.35 GHz band.\6\
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    \5\ See ] 25 of the R&O.
    \6\ See ] 36 of this FRFA, supra.
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C. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply

    30. 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.\7\ The RFA defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \8\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\9\ 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).\10\
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    \7\ See U.S.C. 604(a)(3).
    \8\ Id. 601(6).
    \9\ 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.''
    \10\ Id. 632.
---------------------------------------------------------------------------

    31. The Commission has not developed a definition of small entities 
applicable to unlicensed communications devices manufacturers. 
Therefore, we will utilize the SBA definition application to 
manufacturers of Radio and Television Broadcasting and Communications 
Equipment. According to the SBA regulations, unlicensed transmitter 
manufacturers must have 750 or fewer employees in order to qualify as a 
small business concern.\11\ Census Bureau indicates that

[[Page 2682]]

there are 858 U.S. companies that manufacture radio and television 
broadcasting and communications equipment, and the 778 of these firms 
have fewer than 750 employees and would be classified as small 
entities.\12\ We do not believe this action would have a negative 
impact on small entities that manufacture unlicensed U-NII devices. 
Indeed, we believe the actions should benefit small entities because it 
should make available increased business opportunities to small 
entities.
---------------------------------------------------------------------------

    \11\ See 13 CFR 121.201, NAICS Code 334220 (SIC Code 3663). 
Although SBA now uses the NAICS classifications, instead of SIC, the 
size standard remains the same.
    \12\ See U.S. Dept. of Commerce, 1992 Census of Transportation, 
Communications and Utilities (issued May 1995), SIC category 3663 
(NAICS Code 334220).
---------------------------------------------------------------------------

D. Description of Projected Reporting, Record Keeping and Other 
Compliance Requirements for Small Entities

    32. Part 15 transmitters are already required to be authorized 
under the Commission's certification procedures as a prerequisite to 
marketing and importation. Under the amendments in the NPRM, 
manufacturers will be required to demonstrate that U-NII devices 
operating in the bands 5.250-5.350 GHz and 5.470-5.725 GHz have Dynamic 
Frequency Selection (DFS) Capabilities and transmit power control (TPC) 
capabilities. The reporting and recordkeeping requirements associated 
with these equipment authorizations would not be changed by the rule 
revisions in the Report and Order.

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

    33. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching 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 or reporting requirements under the rule for 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 small 
entities.\13\
---------------------------------------------------------------------------

    \13\ See 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    34. We have taken a significant step to minimize economic impact to 
small entities. As described in the Report and Order, we have provided 
a transition period for the U-NII devices operating in the 5.25-5.35 
GHz band.\14\ This period will provide entities with time to redesign 
existing products to comply with the rules while permitting them to 
continue manufacturing and marketing existing products. In addition, we 
note that one commenter, Works D'Arndt opposed the adoption of a 
requirement that equipment possess a DFS and a TPC requirement. We 
rejected this alternative because the DFS and TPC requirement will 
ensure that all entities can share the band with a minimal risk of 
causing harmful interference. All entities, including small entities, 
having an interest in this band will benefit from this requirement.
---------------------------------------------------------------------------

    \14\ See ] 1 of the FRFA, supra.
---------------------------------------------------------------------------

F. Report to Congress

    35. The Commission will send a copy of the Report and Order, 
including the FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the 
Commission will send a copy of the Report and Order, including the 
FRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration. See 5 U.S.C. 604(b).

Ordering Clauses

    36. Pursuant to sections 1, 4, 301, 302(a), 303, 307, 309, 316, and 
332 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 
151, 154, 301, 302(a), 303, 307, 309, 316, 332, 334, and 336, the 
Report and Order is hereby adopted.
    37. 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 Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Parts 2 and 15

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 2 and 15 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 as 
follows:
0
a. Revise pages 56, 57, and 58.
0
b. In the list of International footnotes, add footnotes 5.446A, 
5.446B, 5.447E, 5.447F, 5.448C, 5.448D, 5.450A, and 5.450B; and revise 
footnotes 5.447, 5.448, 5.448A, 5.448B, 5.450, 5.453, 5.454, and 5.455.
0
c. In the list of United States (US) footnotes, add footnote US390.
0
d. In the list of Federal Government (G) footnotes, revise footnotes 
US50 and US51; and add footnotes G130 and G131.


Sec.  2.106  Table of Frequency Allocations.

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

* * * * *
    5.446A The use of the bands 5150-5350 MHz and 5470-5725 MHz by 
the stations in the mobile service shall be in accordance with 
Resolution 229 (WRC-03).
    5.446B In the band 5150-5250 MHz, stations in the mobile service 
shall not claim protection from earth stations in the fixed-
satellite service. No. 5.43A does not apply to the mobile service 
with respect to fixed-satellite service earth stations.
    5.447 Additional allocation: In Israel, Lebanon, Pakistan, the 
Syrian Arab Republic and Tunisia, the band 5150-5250 MHz is also 
allocated to the mobile service, on a primary basis, subject to 
agreement obtained under No. 9.21. In this case, the provisions of 
Resolution 229 (WRC-03) do not apply.
* * * * *
    5.447E Additional allocation: The band 5250-5350 MHz is also 
allocated to the fixed service on a primary basis in the following 
countries in Region 3: Australia, Korea (Rep. of), India, Indonesia, 
Iran (Islamic Republic of), Japan, Malaysia, Papua New Guinea, 
Philippines, Sri Lanka, Thailand and Viet Nam. The use of this band 
by the fixed service is intended for the implementation of fixed 
wireless access (FWA) systems and shall comply with Recommendation 
ITU-R F.1613. In addition, the fixed service shall not claim 
protection from the radiodetermination, Earth exploration-satellite 
(active) and space research (active) services, but the provisions of 
No. 5.43A do not apply to the fixed service with respect to the 
Earth exploration-satellite (active) and space research (active) 
services. After implementation of FWA systems in the fixed service 
with protection for the existing radiodetermination systems, no more 
stringent constraints should be imposed on the FWA systems by future 
radiodetermination implementations.
    5.447F In the band 5250-5350 MHz, stations in the mobile service 
shall not claim protection from the radiolocation service, the Earth 
exploration-satellite service (active) and the space research 
service (active). These services shall not impose on the mobile 
service more stringent protection criteria, based on system 
characteristics and interference criteria, than those stated in 
Recommendations ITU-R M.1638 and ITU-R SA.1632.
    5.448 Additional allocation: In Azerbaijan, Libyan Arab 
Jamahiriya, Mongolia, Kyrgyzstan, Slovakia, Romania and 
Turkmenistan, the band 5250-5350 MHz is also allocated to the 
radionavigation service on a primary basis.
    5.448A The Earth exploration-satellite (active) and space 
research (active) services in the frequency band 5250-5350 MHz shall 
not claim protection from the radiolocation service. No. 5.43A does 
not apply.
    5.448B The Earth exploration-satellite service (active) 
operating in the band 5350-5570 MHz and space research service 
(active) operating in the band 5460-5570 MHz shall not cause harmful 
interference to the aeronautical radionavigation service in the band 
5350-5460 MHz, the radionavigation service in the band 5460-5470 MHz 
and the maritime radionavigation service in the band 5470-5570 MHz.
    5.448C The space research service (active) operating in the band 
5350-5460 MHz shall not cause harmful interference to nor claim 
protection from other services to which this band is allocated.
    5.448D In the frequency band 5350-5470 MHz, stations in the 
radiolocation service shall not cause harmful interference to, nor 
claim protection from, radar systems in the aeronautical 
radionavigation service operating in accordance with No. 5.449.
* * * * *
    5.450 Additional allocation: In Austria, Azerbaijan, Iran 
(Islamic Republic of), Mongolia, Kyrgyzstan, Romania, Turkmenistan 
and Ukraine, the band 5470-5650 MHz is also allocated to the 
aeronautical radionavigation service on a primary basis.
    5.450A In the band 5470-5725 MHz, stations in the mobile service 
shall not claim protection from radiodetermination services. 
Radiodetermination services shall not impose on the mobile service 
more stringent protection criteria, based on system characteristics 
and interference criteria, than those stated in Recommendation ITU-R 
M.1638.
    5.450B In the frequency band 5470-5650 MHz, stations in the 
radiolocation service, except ground-based radars used for 
meteorological purposes in the band 5600-5650 MHz, shall not cause 
harmful interference to, nor claim protection from, radar systems in 
the maritime radionavigation service.
* * * * *
    5.453 Additional allocation: In Saudi Arabia, Bahrain, 
Bangladesh, Brunei Darussalam, Cameroon, China, Congo, C[ocirc]te 
d'Ivoire, Korea (Rep. of), Egypt, the United Arab Emirates, Gabon, 
Guinea, Equatorial Guinea, India, Indonesia, Iran (Islamic Republic 
of), Iraq, Israel, Japan, Jordan, Kenya, Kuwait, Lebanon, the Libyan 
Arab Jamahiriya, Madagascar, Malaysia, Nigeria, Oman, Pakistan, the 
Philippines, Qatar, the Syrian Arab Republic, the Dem. People's Rep. 
of Korea, Singapore, Sri Lanka, Swaziland, Tanzania, Chad, Thailand, 
Togo, Viet Nam and Yemen, the band 5650-5850 MHz is also allocated 
to the fixed and mobile services on a primary basis. In this case, 
the provisions of Resolution 229 (WRC-03) do not apply.
    5.454 Different category of service: In Azerbaijan, Georgia, 
Mongolia, Uzbekistan, Kyrgyzstan, the Russian Federation, Tajikistan 
and Turkmenistan, the allocation of the band 5670-5725 MHz to the 
space research service is on a primary basis (see No. 5.33).
    5.455 Additional allocation: In Armenia, Azerbaijan, Belarus, 
Cuba, Georgia, Hungary, Kazakhstan, Latvia, Moldova, Mongolia, 
Uzbekistan, Kyrgyzstan, the Russian Federation, Tajikistan, 
Turkmenistan and Ukraine, the band 5670-5850 MHz is also allocated 
to the fixed service on a primary basis.
* * * * *

United States (US) Footnotes

* * * * *
    US50 In the band 5470-5650 MHz, the radiolocation service may be 
authorized for non-Federal Government use on the condition that 
harmful interference is not caused to the maritime radionavigation 
service or to the Federal Government radiolocation service.
    US51 In the band 9300-9500 MHz, the radiolocation service may be 
authorized for non-Federal Government use on the condition that 
harmful interference is not caused to the Federal Government 
radiolocation service.
    US390 Federal Government stations in the space research service 
(active) operating in the band 5350-5460 MHz shall not cause harmful 
interference to, nor claim protection from, Federal and non-Federal 
Government stations in the aeronautical radionavigation service nor 
Federal Government stations in the radiolocation service.
* * * * *

Government (G) Footnotes

* * * * *
    G130 Federal Government stations in the radiolocation service 
operating in the band 5350-5470 MHz, shall not cause harmful 
interference to, nor claim protection from, Federal stations in the 
aeronautical radionavigation service operating in accordance with 
ITU Radio Regulation No. 5.449.
    G131 Federal Government stations in the radiolocation service 
operating in the band 5470-5650 MHz, with the exception of ground-
based radars used for meteorological purposes operating in the band 
5600-5650 MHz, shall nor cause harmful interference to, nor claim 
protection from, Federal Government stations in the maritime 
radionavigation service.

PART 15--RADIO FREQUENCY DEVICES

0
3. The authority citation for part 15 continues to read as follows:

    Authority: 47 U.S.C. 154, 302, 303, 304, 307 and 544A.


0
4. Section 15.37 is amended by adding paragraph (l), to read as 
follows:


Sec.  15.37  Transition provisions for compliance with the rules.

* * * * *
    (l) U-NII equipment operating in the 5.25-5.35 GHz band for which 
applications for certification are filed on or after January 20, 2005 
shall comply with the DFS and TPC requirements specified in Sec.  
15.407. U-NII equipment operating in the 5.25-5.35 GHz band that are 
imported or marketed January 20, 2006 shall comply with the DFS and TPC 
requirements in Sec.  15.407.
0
5. Section 15.401 is revised to read as follows:


Sec.  15.401  Scope.

    This subpart sets out the regulations for unlicensed National 
Information Infrastructure (U-NII) devices operating

[[Page 2687]]

in the 5.15-5.35 GHz, 5.47-5.725 GHz and 5.725-5.825 GHz bands.

0
6. Section 15.403 is revised to read as follows:


Sec.  15.403  Definitions.

    (a) Access Point (AP). A U-NII transceiver that operates either as 
a bridge in a peer-to-peer connection or as a connector between the 
wired and wireless segments of the network.
    (b) Available Channel. A radio channel on which a Channel 
Availability Check has not identified the presence of a radar.
    (c) Average Symbol Envelope Power. The average symbol envelope 
power is the average, taken over all symbols in the signaling alphabet, 
of the envelope power for each symbol.
    (d) Channel Availability Check. A check during which the U-NII 
device listens on a particular radio channel to identify whether there 
is a radar operating on that radio channel.
    (e) Channel Move Time. The time needed by a U-NII device to cease 
all transmissions on the current channel upon detection of a radar 
signal above the DFS detection threshold.
    (f) Digital modulation. The process by which the characteristics of 
a carrier wave are varied among a set of predetermined discrete values 
in accordance with a digital modulating function as specified in 
document ANSI C63.17-1998.
    (g) Dynamic Frequency Selection (DFS) is a mechanism that 
dynamically detects signals from other systems and avoids co-channel 
operation with these systems, notably radar systems.
    (h) DFS Detection Threshold. The required detection level defined 
by detecting a received signal strength (RSS) that is greater than a 
threshold specified, within the U-NII device channel bandwidth.
    (i) Emission bandwidth. For purposes of this subpart the emission 
bandwidth shall be determined by measuring the width of the signal 
between two points, one below the carrier center frequency and one 
above the carrier center frequency, that are 26 dB down relative to the 
maximum level of the modulated carrier. Determination of the emissions 
bandwidth is based on the use of measurement instrumentation employing 
a peak detector function with an instrument resolution bandwidth 
approximately equal to 1.0 percent of the emission bandwidth of the 
device under measurement.
    (j) In-Service Monitoring. A mechanism to check a channel in use by 
the U-NII device for the presence of a radar.
    (k) Non-Occupancy Period. The required period in which, once a 
channel has been recognized as containing a radar signal by a U-NII 
device, the channel will not be selected as an available channel.
    (l) Operating Channel. Once a U-NII device starts to operate on an 
Available Channel then that channel becomes the Operating Channel.
    (m) Peak Power Spectral Density. The peak power spectral density is 
the maximum power spectral density, within the specified measurement 
bandwidth, within the U-NII device operating band.
    (n) Peak Transmit Power. The maximum transmit power as measured 
over an interval of time of at most 30/B (where B is the 26 dB emission 
bandwidth of the signal in hertz) or the transmission pulse duration of 
the device, whichever is less, under all conditions of modulation. The 
peak transmit power may be averaged across symbols over an interval of 
time equal to the transmission pulse duration of the device or over 
successive pulses. The averaging must include only time intervals 
during which the transmitter is operating at its maximum power and must 
not include any time intervals during which the transmitter is off or 
is transmitting at a reduced power level.
    (o) Power Spectral Density. The power spectral density is the total 
energy output per unit bandwidth from a pulse or sequence of pulses for 
which the transmit power is at its peak or maximum level, divided by 
the total duration of the pulses. This total time does not include the 
time between pulses during which the transmit power is off or below its 
maximum level.
    (p) Pulse. A pulse is a continuous transmission of a sequence of 
modulation symbols, during which the average symbol envelope power is 
constant.
    (q) RLAN. Radio Local Area Network.
    (r) Transmit Power. The total energy transmitted over a time 
interval of at most 30/B (where B is the 26 dB emission bandwidth of 
the signal in hertz) or the duration of the transmission pulse, 
whichever is less, divided by the interval duration.
    (s) Transmit Power Control (TPC). A feature that enables a U-NII 
device to dynamically switch between several transmission power levels 
in the data transmission process.
    (t) U-NII devices. Intentional radiators operating in the frequency 
bands 5.15-5.35 GHz and 5.470-5.825 GHz that use wideband digital 
modulation techniques and provide a wide array of high data rate mobile 
and fixed communications for individuals, businesses, and institutions.

0
7. Section 15.407 is amended by revising paragraphs (a)(2), by 
redesignating paragraphs (b)(3) through (7) as paragraphs (b)(4) 
through (8), by adding a new paragraph (b)(3), and by adding paragraph 
(h) to read as follows:


Sec.  15.407  General technical requirements.

    (a) * * *
    (2) For the 5.25-5.35 GHz and 5.47-5.725 GHz bands, the peak 
transmit power over the frequency bands of operation shall not exceed 
the lesser of 250 mW or 11 dBm + 10log B, where B is the 26 dB emission 
bandwidth in megahertz. In addition, the peak power spectral density 
shall not exceed 11 dBm in any 1 megahertz band. If transmitting 
antennas of directional gain greater than 6 dBi are used, both the peak 
transmit power and the peak power spectral density shall be reduced by 
the amount in dB that the directional gain of the antenna exceeds 6 
dBi.
* * * * *
    (b) * * *
    (3) For transmitters operating in the 5.47-5.725 GHz band: all 
emissions outside of the 5.47-5.725 GHz band shall not exceed an EIRP 
of -27 dBm/MHz.
* * * * *
    (h) Transmit Power Control (TPC) and Dynamic Frequency Selection 
(DFS).
    (1) Transmit power control (TPC). U-NII devices operating in the 
5.25-5.35 GHz band and the 5.47-5.725 GHz band shall employ a TPC 
mechanism. The U-NII device is required to have the capability to 
operate at least 6 dB below the mean EIRP value of 30 dBm. A TPC 
mechanism is not required for systems with an e.i.r.p. of less than 500 
mW.
    (2) Radar Detection Function of Dynamic Frequency Selection (DFS). 
U-NII devices operating in the 5.25-5.35 GHz and 5.47-5.725 GHz bands 
shall employ a DFS radar detection mechanism to detect the presence of 
radar systems and to avoid co-channel operation with radar systems. The 
minimum DFS detection threshold for devices with a maximum e.i.r.p. of 
200 mW to 1 W is -64 dBm. For devices that operate with less than 200 
mW e.i.r.p. the minimum detection threshold is -62 dBm. The detection 
threshold is the received power averaged over 1 microsecond referenced 
to a 0 dBi antenna. The DFS process shall be required to provide a 
uniform spreading of the loading over all the available channels.
    (i) Operational Modes. The DFS requirement applies to the following 
operational modes:

[[Page 2688]]

    (A) The requirement for channel availability check time applies in 
the master operational mode.
    (B) The requirement for channel move time applies in both the 
master and slave operational modes.
    (ii) Channel Availability Check Time. A U-NII device shall check if 
there is a radar system already operating on the channel before it can 
initiate a transmission on a channel and when it has to move to a new 
channel. The U-NII device may start using the channel if no radar 
signal with a power level greater than the interference threshold 
values listed in paragraph (h)(2) of this part, is detected within 60 
seconds.
    (iii) Channel Move Time. After a radar's presence is detected, all 
transmissions shall cease on the operating channel within 10 seconds. 
Transmissions during this period shall consist of normal traffic for a 
maximum of 200 ms after detection of the radar signal. In addition, 
intermittent management and control signals can be sent during the 
remaining time to facilitate vacating the operating channel.
    (iv) Non-occupancy Period. A channel that has been flagged as 
containing a radar system, either by a channel availability check or 
in-service monitoring, is subject to a non-occupancy period of at least 
30 minutes. The non-occupancy period starts at the time when the radar 
system is detected.

[FR Doc. 04-1126 Filed 1-16-04; 8:45 am]
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