[Federal Register Volume 69, Number 166 (Friday, August 27, 2004)]
[Proposed Rules]
[Pages 52632-52644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18807]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 2 and 101

[FCC 04-78; ET Docket No. 95-183; RM-8553; PP Docket No. 93-253]


37.0-38.6 GHz and 38.6-40.0 GHz Bands--Competitive Bidding

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission proposes to amend the rules 
for fixed, point-to-point microwave service in the 38.6-40.0 GHz (``39 
GHz'') band, and to adopt a conforming set of new rules for the 
virtually unused 37.0-38.6 GHz (``37 GHz'') band in order to allow for 
the expansion of 39 GHz type service. In this Third Notice of Propose 
Rule Making, (Third NPRM), we propose service rules for the 37 GHz and 
also for the 42.0-42.5 GHz (``42 GHz'') (``37/42 GHz'') bands that 
would substantially conform to the rules adopted for the 39 GHz band in 
the Report and Order and Second Notice of Proposed Rule Making and the 
Second Report and Order in this proceeding. Our goal is to establish a 
flexible regulatory and licensing framework that would promote seamless 
deployment of a host of services and technologies in the 37 GHz and 42 
GHz bands. We seek to enhance opportunities for deployment of broadband 
wireless services, foster effective competition, promote innovation and 
further our efforts for consistent rule application regarding broadband 
wireless services.

DATES: Comments are due on or before October 26, 2004, and reply 
comments are due to be filed by November 26, 2004. Written comments on 
the Paperwork Reduction Act proposed information collection 
requirements must be submitted by the public, Office of Management and 
Budget (OMB), and other interested parties on or before October 26, 
2004.

ADDRESSES: In addition to filing comments with the Secretary, a copy of 
any comments on the Paperwork Reduction Act information collection 
requirements contained herein should be submitted to Judith B. Herman, 
Federal Communications Commission, Room 1-C804, 445 12th Street, SW., 
Washington, DC 20554, or via the Internet to [email protected], 
and to Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th 
Street, NW., Washington, DC 20503, via the Internet to Kristy--L. 
[email protected], or via fax at (202) 395-5167.

FOR FURTHER INFORMATION CONTACT: Charles Oliver (legal) or Michael 
Pollak (engineering), Wireless Telecommunications Bureau, (202) 418-
2487. For additional information concerning the Paperwork Reduction Act 
information collection requirements contained in this document, contact 
Judith B. Herman at (202) 418-0214, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
NPRM, released on May 5, 2004, (FCC 04-78). The full text of the Third 
NPRM is available for inspection and copying during normal business 
hours in the FCC Reference Center, Room CY-A257, 445 12th St., SW., 
Washington DC 20554. The complete text may also be purchased from the 
Commission's duplicating contractor, Best Copy and Printing Inc., 
(BCPI), Portals II, 445 12th St., SW., Room CY-B402, Washington DC. 
Additionally, the complete item is available on the Commission's Web 
site at http://www.fcc.gov/wtb.

I. Summary of Notice of Proposed Rulemaking

    1. In the Notice of Proposed Rule Making and Order that initiated 
the above-captioned proceeding in 1995, we proposed to amend the rules 
for fixed, point-to-point microwave service in the 38.6-40.0 GHz (``39 
GHz'') band, and to adopt a conforming set of new rules for the 
virtually unused 37.0-38.6 GHz (``37 GHz'') band in order to allow for 
the expansion of 39 GHz-type service. In this Third NPRM, we propose 
service rules for the 37 GHz and also for the 42.0-42.5 GHz (``42 
GHz'') (``37/42 GHz'') bands that would substantially conform to the 
rules adopted for the 39 GHz band in the Report and Order and Second 
Notice of Proposed Rule Making and the Second Report and Order in this 
proceeding. We recognize, however, that conditions have changed 
considerably over the past few years, and we are willing to consider 
alternatives if commenters demonstrate that a different regulatory 
framework would be more appropriate for the 37/42 GHz bands. Our goal 
is to establish a flexible regulatory and licensing framework that 
would promote seamless deployment of a host of services and 
technologies in the 37 GHz and 42 GHz bands. We seek to enhance 
opportunities for deployment of broadband wireless services, foster 
effective competition, promote innovation and further our efforts for 
consistent rule application regarding broadband wireless services.

[[Page 52633]]

    2. Significant changes in spectrum allocations, technology, and 
market conditions have occurred since the adoption of the 39 GHz rules 
and auction. Consequently, we invite comments on all of the unresolved 
issues in this proceeding. We do not seek comment on issues that were 
decided in the allocation item in the Second Report and Order, 63 FR 
3075, (January 21, 1998), such as the soft segmentation of the 
frequency bands for satellite and terrestrial services. Accordingly, we 
seek comment on proposed 37/42 GHz band service rules that are affected 
by these proposed changes, and in one case we propose to apply these 
rules to the 39 GHz band as well. Specifically:
     We propose to license the 37/42 GHz bands on a geographic 
basis using Economic Areas ( EAs ), consistent with the licensing 
scheme adopted for the 39 GHz band, but we invite comment on 
alternative approaches as well. Specifically, we invite comment on the 
possibility of authorizing service using a first-in-time site 
registration process.
     We propose to permit point-to-point, point-to-multipoint, 
and future mobile operations.
     We propose to adopt a ``substantial service'' build-out 
requirement if the band is licensed using EA licenses, but we invite 
comment on alternative build-out requirements if we adopt a different 
licensing scheme.
     We propose technical rules designed to provide licensees 
with operational flexibility.
     We propose to permit 37/42 GHz band licensees to partition 
and disaggregate spectrum if the band is licensed by EAs.
     We seek comment on whether to adopt a channeling plan for 
the 37/42 GHz bands, and, if so, what plan to propose.
     We propose to require coordination whenever and wherever 
facilities have optical radio line-of-sight into another licensee's 
geographic area or registered site license.
     We seek comment on the appropriate coordination method to 
employ between adjacent licensees and with the Federal government. We 
propose to apply these changes to the 39 GHz band as well as the 37/42 
GHz bands.
     If we license the bands by EAs when awarding 37/42 GHz 
licenses, we propose to use the competitive bidding procedures set out 
in part 1, subpart Q of our rules.

Procedural Matters

Paperwork Reduction Analysis

A. Regulatory Flexibility Analysis
    As required by the Regulatory Flexibility Act (``RFA'') of 1980, 
the Commission has prepared an Initial Regulatory Flexibility Analysis 
(``IRFA''), with respect to this Third Notice of Proposed Rule Making, 
of the possible significant economic impact on small entities of the 
policies and rules proposed in this document. The IRFA is set out 
further. We request written public comment on the IRFA. Comments must 
be filed in accordance with the same filing deadlines as comments filed 
in this rulemaking proceeding and must have a separate and distinct 
heading designating them as responses to the Initial Regulatory 
Flexibility Analysis.
B. Paperwork Reduction Analysis
    This document contains proposed information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Public and agency comments 
are due October 26, 2004. Comments should address: (a) Whether the 
proposed collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology. In addition, pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we seek specific comment on how we might ``further 
reduce the information collection burden for small business concerns 
with fewer than 25 employees.''
    OMB Control Number: 3060-0690.
    Title: Amendment of the Commission's Rules Regarding the 37.0-38.6 
GHz and 38.6-40.0 GHz Bands, Third Notice of Proposed Rulemaking.
    Form No.: N/A.
    Type of Review: Revision a currently approved collection.
    Respondents: Business or other for-profit, not-for-profit 
institutions, Federal government, and State, local or tribal 
government.
    Number of Respondents: 10,000.
    Estimated Time Per Response: .5-11 hours.
    Frequency of Response: Every 10 years.
    Total Annual Burden: 169,626 hours.
    Total Annual Costs: $55,000,000.
    Needs and Uses: The Commission proposes to issue geographic area 
licenses for the 37.0-38.6 GHz band, or in the alternative, seeks 
comment on the possibility of using a first-come, first-served link-by-
link registration approach comparable to the regulations that the 
Commission recently applied to the 70/80/90 GHz Report and Order. In 
that proceeding, the Commission decided to issue non-exclusive 
nationwide licenses conditioned upon site and path-specific 
coordination wherein many service providers would engineer their 
systems to operate in close proximity, without causing mutual 
interference. In order to facilitate such coordination, the Commission 
adopted non-interference requirements and required all licensees to 
register their facilities in a database accessible to other licensees 
on a first-come, first-served basis. Although the Commission determined 
not to impose a limit to the number of non-exclusive nationwide 
licenses, licensees would be required to construct individual links 
within 12 months after registering them.
C. Ex Parte Presentations
    1. For purposes of this permit-but-disclose notice and comment 
rulemaking proceeding, members of the public are advised that ex parte 
presentations are permitted, provided they are disclosed under the 
Commission's rules.
D. Comment Dates
    1. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, 1.419, interested parties may file comments on or 
before September 27, 2004, and reply comments on or before October 12, 
2004. Comments may be filed using the Commission's Electronic Comment 
Filing System (``ECFS'') or by filing paper copies.
    2. Comments filed through the ECFS can be sent as an electronic 
file via the Internet to http://www.fcc.gov/e-file/ecfs.html. 
Generally, only one copy of an electronic submission must be filed. If 
multiple docket or rulemaking numbers appear in the caption of this 
proceeding, i.e., PP Docket No. 93-253, however, commenters must 
transmit one electronic copy of the comments to each docket or 
rulemaking number referenced in the caption. In completing

[[Page 52634]]

the transmittal screen, commenters should include their full name, 
Postal Service mailing address, and the applicable docket or rulemaking 
number. Parties may also submit an electronic comment by Internet e-
mail. To get filing instructions for e-mail comments, commenters should 
send an e-mail to [email protected], and should include the following words 
in the body of the message, ``get form .'' A 
sample form and directions will be sent in reply. Parties who choose to 
file by paper must file an original and four copies of each filing. If 
more than one docket or rulemaking number appears in the caption of 
this proceeding, commenters must submit two additional copies for each 
additional docket or rulemaking number. Filings can be sent by hand or 
messenger delivery, by commercial overnight courier, or by first-class 
or overnight U.S. Postal Service mail (although we continue to 
experience delays in receiving U.S. Postal Service mail). The 
Commission's contractor, Natek, Inc., will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building. Commercial overnight mail 
(other than U.S. Postal Service Express Mail and Priority Mail) must be 
sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal 
Service first-class mail, Express Mail, and Priority Mail should be 
addressed to 445 12th Street, SW, Washington, DC 20554. All filings 
must be addressed to the Commission's Secretary, Office of the 
Secretary, Federal Communications Commission.
E. Further Information
    1. For further information concerning this rulemaking proceeding, 
contact Charles Oliver (legal) or Michael Pollak (engineering) at (202) 
418-2487, TTY (202) 418-7233, Wireless Telecommunications Bureau, 
Federal Communications Commission, Washington, DC 20554.
    2. Alternative formats (computer diskette, large print, audio 
cassette, and Braille) are available to persons with disabilities by 
contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via 
e-mail to [email protected]. This Notice of Proposed Rulemaking can be 
downloaded at http://www.fcc.gov/Wireless/Orders/2003/.

II. Initial Regulatory Flexibility Analysis

    4. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (IRFA) of the possible significant 
economic impact on a substantial number of small entities by the 
policies and rules proposed in this Third NPRM. Written public comments 
are requested on this IRFA. Comments must be identified as responses to 
the IRFA and must be filed by the deadlines for comments on this Third 
NPRM provided in Section IV, (Procedural Matters), of the item. The 
Commission will send a copy of the Third NPRM, including this IRFA, to 
the Chief Counsel for Advocacy of the Small Business Administration. In 
addition, the Third NPRM and IRFA (or summaries thereof) will be 
published in the Federal Register.

A. Need for, and Objectives of, the Third NPRM

    5. This rulemaking action is being undertaken to propose a 
licensing plan, a channeling plan, certain technical rules, and 
competitive bidding procedures for the 37.0-38.6 and 42.0-42.5 (``37/
42'') GHz spectrum bands. Currently, there are no such rules in place 
for these bands. Our objective is to facilitate spectrum aggregation, 
equipment development and service planning, and otherwise to create 
rules that will maximize efficient use of these bands, and that are in 
the public interest. We note specifically that, as described below, we 
propose to provide bidding credits to small and very small businesses.

B. Legal Basis for Proposed Rules

    6. The proposed action is authorized under Sections 1, 4(i), 7, 
301, 303, 308 and 309(j) of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154(i), 157, 301, 303, 308, 309(j).

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

    7. The RFA requires that an initial regulatory flexibility analysis 
be prepared for notice and comment rulemaking proceedings, unless the 
Agency certifies that ``the rule will not, if promulgated, have a 
significant impact on a substantial number of small entities. 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. A ``small business concern'' is one which: (i) Is 
independently owned and operated; (ii) is not dominant in its field of 
operation; and (iii) satisfies any additional criteria established by 
the Small Business Administration (SBA). A small organization is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' This IRFA describes 
and estimates the number of small entity licensees that may be affected 
if the proposals in this Third NPRM are adopted.
    8. When identifying small entities that could choose to participate 
in an auction and be affected by our new rules, we provide information 
describing auctions results, including the number of small entities 
that are winning bidders. We note, however, that the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily reflect the total number of small entities 
currently in a particular service. The Commission does not generally 
require, post-auction, that applicants provide business size 
information, except in the context of an assignment or transfer of 
control application where unjust enrichment issues are implicated. 
Consequently, to assist the Commission in analyzing the total number of 
potentially affected small entities, we request commenters to estimate 
the number of small entities that may be affected by any rule changes 
resulting from this Third NPRM.
National Figures
    9. Small Businesses. Nationwide, there are a total of 22.4 million 
small businesses, according to SBA data.
    10. Small Organizations. Nationwide, there are approximately 1.6 
million small organizations.
    11. Small Governmental Jurisdictions. The term ``small governmental 
jurisdiction'' is defined as ``governments of cities, towns, townships, 
villages, school districts, or special districts, with a population of 
less than fifty thousand.'' As of 1997, there were approximately 87,453 
governmental jurisdictions in the United States. This number includes 
39,044 county governments, municipalities, and townships, of which 
37,546 (approximately 96.2%) have populations of fewer than 50,000, and 
of which 1,498 have populations of 50,000 or more. Thus, we estimate 
the number of small governmental jurisdictions overall to be 84,098 or 
fewer.
Wireless Service Providers
    12. The SBA has developed a small business size standard for 
wireless small

[[Page 52635]]

businesses within the two separate categories of Paging and Cellular 
and Other Wireless Telecommunications. Under both SBA categories, a 
wireless business is small if it has 1,500 or fewer employees. 
According to Commission data, 1,387 companies reported that they were 
engaged in the provision of wireless service. Of these 1,387 companies, 
an estimated 945 have 442 or fewer employees and 586 have more than 
1,500 employees. Consequently, the Commission estimates that most 
wireless service providers are small entities that may be affected by 
the rules and policies adopted herein.
39 GHz Service
    13. The Commission created a special small business size standard 
for 39 GHz licenses `` an entity that has average gross revenues of $40 
million or less in the three previous calendar years. An additional 
size standard for ``very small business'' is: an entity that, together 
with affiliates, has average gross revenues of not more than $15 
million for the preceding three calendar years. The SBA has approved 
these small business size standards. The auction of the 2,173 39 GHz 
licenses began on April 12, 2000 and closed on May 8, 2000. The 18 
bidders who claimed small business status won 849 licenses. 
Consequently, the Commission estimates that 18 or fewer 39 GHz 
licensees are small entities that may be affected by the rules and 
polices proposed herein.

D. Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    14. Generally, all applicants are required to seek authorizations 
to construct and operate and to adhere to the technical criteria set 
out in the final rules. However, this Third NPRM proposes service rules 
and auction rules for the 37.0-38.6 GHz band and the 42.0-42.5 GHz band 
(``37/42 GHz bands'') either by a geographic area licensing approach or 
the first-come, first-served link-by-link registration approach, in 
order to coordinate spectrum use that will affect reporting, 
recordkeeping and other compliance requirements. Each of these changes 
is described below:
    15. The Third NPRM proposes to require users in the 37/42 GHz bands 
to coordinate procedures with the National Telecommunications and 
Information Administration (NTIA) in negotiations with non-Government 
and Government stations in the band and that these negotiations would 
apply the geographic area licensing regulatory framework. However, 
independent of the licensing approach the Commission chooses, the basic 
coordination procedures with NTIA will be the same because they are 
based on a site-by-site method, consistent with Section IV(6) of the 
Memorandum of Understanding (MOU) between the Commission and NTIA dated 
January 31, 2003, wherein the Commission and NTIA would maintain 
current lists of authorized frequency assignments on the ULS and the 
Government Master File (GMF) and exchange information as appropriate to 
coordinate spectrum use. Also, the site-based coordination procedures 
proposed here involve coordination between the Interdepartment Radio 
Advisory Committee (IRAC), Commission licensees, and Government 
agencies through the Commission, which represents the non-Government 
facilities, and the NTIA, which represents the Government agencies. 
Problems would be referred by the Commission back to its licensees/
applicants and by the NTIA to Government agencies for resolution.
    16. The Third NPRM proposes to require non-Government operators/
licensees in the 37.0-38.6 GHz frequency band to maintain databases of 
their fixed stations, including sufficient data for other licensees, 
coordinators, and the Government to make a determination of potential 
interference. Non-Government licensees would have the option of 
maintaining their own databases for their facilities or of selecting 
third-party database managers, frequency coordinators, or other 
entities to maintain their database of facilities. The database manager 
would be responsible to the licensee and would share the technical data 
with the Commission and other database managers as needed for proper 
coordination, and retain records of the coordination agreements with 
other parties. All coordination agreements would remain in force in the 
event the licensee transfers its license, partitions its service area, 
or disaggregates its spectrum, until new agreements are reached.
    17. The Third NPRM proposes to require the non-Government 
operators/licensees to make available all necessary technical database 
information to the Commission in a timely and convenient manner 
sufficient for resolving interference complaints with NTIA in the event 
of disputes. The Third NPRM also proposes to require non-Government 
licensees to register their technical data electronically into the ULS 
for each station in their authorized service areas in order to make 
available accurate information with Government facilities such as, the 
date of the initial operating capability of each station, specific 
information identifying the station locations, technical operating 
capabilities of the stations, and, if known, whether the station has 
optical line-of-site to another facility with which it is being 
coordinated. This site-based information would be entered into the 
record of the area license in the ULS database by electronically 
registering notifications to the initial Commission Form 601 using 
Schedule I, but not more than twelve (12) months before operations are 
scheduled to begin. The Third NPRM also proposes that notification and 
response for site-by-site coordination for geographic area licensees 
requires variations in the general coordination procedures as given in 
Section 101.103 of our rules. The Third NPRM further proposes that 
geographic area licensees must select site frequencies within their 
assignment blocks of spectrum and initiate the coordination process by 
notifying the other parties with whom they must coordinate and that 
registrations of licensee sites on Schedule I of Form 601 must include 
the licensees determination of whether possible optical line-of-site 
exists to relevant (future) Government facilities. If it is determined 
that optical line-of-site does not exists, the applicant is required to 
explain the determination. Coordination involving existing and future 
Government facilities would require licensees and applicants to ensure 
that their data is accurately reflected in ULS.
    18. The Third NPRM also proposes that licensees would be required 
to follow existing practices and precedents regarding fees associated 
with initial licenses, and to file notifications in the ULS to supply 
the technical information needed to coordinate each station with 
Government facilities. When revisions to ULS are developed for adding 
the capability to handle licensees in the 37.0-38.6 GHz band, the 
capability to collect this additional site-based information for 
notifications would be added to the capability to handle ``initial'' 
auction winners as licensees.
    19. The Third NPRM proposes to conduct an auction of initial 
exclusive area licenses in the 37/42 GHz band which would be required 
to conform with general competitive bidding rules set out in part 1, 
subpart Q, of our rules, substantially consistent with the bidding 
procedures that have been employed in previous auctions, and 
specifically, rules governing competitive bidding design, designated 
entities, application and payment procedures, reporting requirements, 
collusion issues, and unjust enrichment. In this connection, the Third 
NPRM also would

[[Page 52636]]

require, pursuant to Section 309(j) of the Communications Act, 
resolution of such applications by competitive bidding.

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

    20. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed approach, which may include the following three 
alternatives (among others): ``(i) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (ii) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (iii) the use 
of performance, rather than design, standards; and (iv) an exemption 
from coverage of the rule, or any part thereof, for small entities.''
    21. In the Third NPRM, we propose service and auction rules for the 
37/42 GHz bands in order to establish a flexible regulatory and 
licensing framework that would promote seamless deployment of a host of 
services and technologies. We seek comment on the possibility of 
conducting an auction--where applications are mutually exclusive and 
issuing exclusive licenses for the 37/42 GHz bands on a geographic 
basis. We believe that our proposed approach would provide a variety of 
businesses with the opportunity to participate in an auction of 
licenses in this band and afford licensees substantial flexibility for 
the provision of services with varying capital costs. We also believe 
that geographic area licensees in these bands would be presented with 
issues and costs similar to those presented to 39 GHz band licensees, 
including those involved in developing markets, technologies, and 
services. Smaller service areas make it easier for small businesses to 
bid successfully for licenses, but viable businesses may require larger 
service areas. We believe that the technical rules that apply to the 39 
GHz band would also be appropriate for the 37/42 GHz bands, if we 
decide to adopt a geographic area licensing approach. It would be 
inappropriate to apply the 70/80/90 GHz technical rules to the 37/42 
GHz bands because the bands differ significantly from each other. 
Because the 37/42 GHz band has such a large amount of spectrum, license 
portions of these blocks by Economic Areas (EAs) or other portions on a 
site-by-site basis could be other alternatives. By using this combined 
approach to licensing, the Commission may address the needs of large 
entities, as well as smaller businesses, including public safety 
entities. Therefore, we also seek comment on the benefits of having 
some spectrum licensed by geographic areas and some spectrum licensed 
on a site-by-site basis. As an alternative, we could also pair some of 
the channels in the 37.0-38.6 GHz portion with some of the channels in 
the 42.0-42.5 GHz portion or allocate channel sizes of 30 or 40 
megahertz or even smaller. Perhaps smaller channels might allow for 
smaller businesses and private entities to effectively compete for 
spectrum needed for more limited applications without needing to obtain 
a larger amount of spectrum that would require substantial outlays of 
initial investment. We hope that these alternatives, which might 
especially affect small entity participation in the auction, will be 
addressed by commenters.
    22. We note that if we adopt a geographic area licensing framework, 
we propose to permit 37/42 GHz licensees to partition and disaggregate 
spectrum freely within those bands. These options tend to assist small 
entities. For the geographic area approach, we propose to allow 
partitioning of any licensee-defined service area, disaggregation of 
any amount of spectrum and combined partitioning and disaggregation. 
The Third NPRM proposes to permit the 37/42 GHz bands to partition and 
disaggregate spectrum if the Commission adopts a geographic area 
licensing framework using EAs by competitive bidding and through 
private negotiation and agreement. Our Part 1 unjust enrichment 
provisions would govern partitioning and disaggregation arrangements 
involving licenses authorized to small businesses afforded a bidding 
credit, including those that later elect to partition or disaggregate 
their licenses to an entity that is not eligible for the same bidding 
credit. In addition, Section 309(j)(3)(B) of the Communications Act 
provides that, in establishing eligibility criteria and bidding 
methodologies, the Commission shall promote ``economic opportunity and 
competition * * * by avoiding excessive concentration of licenses and 
by disseminating licenses among a wide variety of applicants, including 
small businesses, rural telephone companies, and businesses owned by 
members of minority groups and women.'' The Commission concluded in the 
First NPRM and Order, that it should make partitioning and 
disaggregation available to all 39 GHz licensees, because these 
capabilities would promote flexibility both in system design and 
service, and encourage new entrants into the market by creating 
smaller, less capital-intensive service areas that may be more 
accessible to small entities.
    23. In contrast, in the 70/80/90 GHz Report and Order, the 
Commission noted that the use of partitioning and disaggregation is 
pertinent only in geographic licensing settings, where the licensee has 
exclusive use of a particular area. It determined that its decision to 
authorize the 70/80/90 GHz bands on the basis of nationwide non-
exclusive licensing obviated the need for partitioning and 
disaggregation. A viable alternative to the geographic area licensing 
approach would be to issue an unlimited number of non-exclusive 
nationwide licenses, with licensees authorized to deploy point-to-point 
``pencil beam'' links on a first-come-first-served basis. Thus, there 
will be no need for partitioning and disaggregation if we adopt a non-
exclusive link-by-link registration approach. We seek comment on all of 
these proposals.
    24. Also, as an alternative, and in the interest of regulatory 
certainty, if we adopt a geographic area licensing structure, we 
propose to adopt a rule specifically permitting spectrum aggregation. 
The Commission has also concluded that permitting aggregation of 
channels might benefit the public through efficiencies and flexibility 
in the types of services this would allow, and might provide for lower 
costs or greater ability to compete with established service providers 
with large transmission capacity. We also propose that 37/42 GHz 
licensees be allowed to aggregate their spectrum in order to provide 
greater flexibility of service. In other services, the Commission has 
adopted a rule expressly permitting aggregation.
    25. The Third NPRM proposes competitive bidding procedures if we 
license bands by EAs when awarding 37/42 GHz licensees set out in part 
1, subpart Q of our rules. Small businesses that choose to participate 
in the competitive bidding for these services and utilize a bidding 
credit are required to demonstrate that they meet the criteria set out 
to qualify as small businesses, as required under part 1, subpart Q of 
the Commission's rules, 47 CFR part 1, subpart Q. We believe that the 
small business size standards and corresponding bidding credits 
proposed would provide a variety of businesses with opportunities to 
participate in the auction of licenses for the 37/42 GHz band and 
afford licensees substantial flexibility for the provision of services 
with varying capital costs. We further

[[Page 52637]]

propose to provide small businesses with a bidding credit of fifteen 
percent and very small businesses with a bidding credit of twenty-five 
percent. The bidding credits we propose here are those set out in the 
standardized schedule in part 1 of our rules. We also seek comment on 
the use of these standards and associated bidding credits for 
applicants to be licensed in the 37/42 GHz band, with particular focus 
on the appropriate definitions of small and very small businesses as 
they relate to the size of the geographic area to be covered and the 
spectrum allocated to each license. In developing these proposals, 
however, we acknowledge the difficulty in accurately predicting the 
market forces that will exist at the time we license these frequencies. 
Thus, our forecasts of types of services that licensees will offer over 
these bands may require adjustment depending upon ongoing technological 
developments and changes in market conditions. Accordingly, to the 
extent commenters support a different bidding credit regime, or believe 
that there are any distinctive characteristics to the 37/42 GHz band 
that suggest we should not employ bidding credits in this instance, 
commenters should support their proposals with relevant information. 
For example, commenters should provide information on the types of 
system architecture that licensees are likely to deploy in these bands, 
the availability of equipment, market conditions, and other factors 
that may affect the capital requirements or the types of services that 
licensees may provide.

F. Federal Rules That Overlap, Duplicate, or Conflict With These 
Proposed Rules

    None.

Ordering Clauses

    Pursuant to sections 1, 4(i), 7, 301, 303, 308 and 309(j) of the 
Communications Act of 1934, 47 U.S.C. 151, 154(i), 157, 301, 303, 308, 
309(j), notice is hereby given of the proposed regulatory changes 
described above and as specified in Rule Changes, and that comment is 
sought on these proposals.
    The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this (Third NPRM), 
including the Initial Regulatory Flexibility Analysis to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 0

    Reporting and recordkeeping.

47 CFR Part 2

    Communications Equipment, Radio, and Reporting and recordkeeping.

47 CFR Part 101

    Communications Equipment, Radio, Reporting and recordkeeping, 
Satellites, Telecommunications.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR parts 0, 2, and 101 
as follows:

PART 0--COMMISSION ORGANIZATION

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

    Authority: Sec. 5, 48 Stat 1068, as amended; 47 U.S.C. 155, 225 
unless otherwise noted.

    2. Section 0.331(d) is amended by revising paragraph (d) 
introductory text to read as follows:


Sec.  0.331  Authority delegated.

* * * * *
    (d) Authority concerning rulemaking proceedings. The Chief, 
Wireless Telecommunications Bureau shall not have the authority to act 
upon notices of proposed rulemaking and inquiry, final order in 
rulemaking proceedings and inquiry proceedings, and reports arising 
from any of the foregoing except such orders involving ministerial 
conforming amendments to rule parts, or order conforming any of the 
applicable rules to formally adopted international conventions or 
agreements where novel question of fact, law, or policy are not 
involved. Updates to the list of NTIA facilities in Sec.  101.147 of 
this chapter need not be referred to the Commission if they do not 
involve novel questions of fact, policy or law. Also the addition of 
new Marine VHF frequency coordination committee(s) to Sec.  80.514 of 
this chapter need not be referred to the Commission if they do not 
involve novel questions of fact, policy or law, as well as requests by 
the United States Coast Guard to:
* * * * *

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

    1. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise 
noted.

    2. Section 2.106, is amended as follows:
    a. Revise pages 76 and 77 of the Table.
    b. In the list of United States footnotes, add footnote USxxx.
    c. In the list of non-Federal government footnotes, add footnote 
NGxxx.
    The revisions and additions read as follows:


Sec.  2.106  Table of Frequency Allocations.

* * * * *
BILLING CODE 6712-01-P

[[Page 52638]]

[GRAPHIC] [TIFF OMITTED] TP27AU04.001

BILLING CODE 6712-01-C

[[Page 52639]]

* * * * *

United States (U.S.) Footnotes

* * * * *
    U.S.xxx In the band 37-38 GHz, the following Government 
receiving earth stations have been coordinated with the FCC and 
shall be protected from non-operations in the fixed and mobile 
services in the band 37-38 GHz and from non-Government earth 
stations in the fixed-satellite service (space-to-Earth) in the sub-
band 37.5-38 GHz. Non-Government applications for fixed and mobile 
service use of frequencies in the band 37-38 GHz shall be 
coordinated with NTIA through the Frequency Assignment Subcommittee 
within the following coordination areas/distances. The coordinates 
listed below are specified in terms of the North American Datum of 
1983.
    In the band 37-38 GHz, the following stations in the space 
research service (space-to-Earth) have been coordinated:

------------------------------------------------------------------------
                   Site                           Coordination area
------------------------------------------------------------------------
NASA Goldstone Deep Space Communications    30 kilometer (18.64 mile)
 Complex, Goldstone, California.             radius centered on latitude
                                             35[deg] 9'00'' N, longitude
                                             116[deg] 50'06'' W.
National Radio Astronomy Observatory,       Rectangle between latitudes
 Green Bank, West Virginia.                  37[deg] 30' N and 39[deg]
                                             15' N and between
                                             longitudes 78[deg] 30' W
                                             and 80[deg] 30' W (National
                                             Radio Quite Zone).
------------------------------------------------------------------------

Non-Federal Government (NG) Footnotes

* * * * *
    NGxxx The use of the band 37.5-40 GHz by the fixed-satellite 
service (space-to-Earth) is limited to gateway earth station 
operations as set out in 47 CFR part 25.
* * * * *

PART 101--FIXED MICROWAVE SERVICES

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

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

    2. Section 101.17 is revised to read as follows:


Sec.  101.17  Performance requirements for the 37.0-40.0 GHz and 42.0-
42.5 GHz frequency bands.

    (a) All 37.0-40.0 GHz and 42.0-42.5 GHz band licensees must 
demonstrate substantial service at the time of license renewal. A 
licensee's substantial service showing should include, but not be 
limited to, the following information for each channel for which they 
hold a license, in each EA or portion of an EA covered by their 
license, in order to qualify for renewal of that license. The 
information provided will be judged by the Commission to determine 
whether the licensee is providing service which rises to the level of 
``substantial.'' Licensees, whether the license was obtained through 
competitive bidding or partitioning/aggregation/disaggregation, may 
build facilities anywhere within the authorized service area without 
further authority from the Commission, provided that they have complied 
with applicable Commission requirements. The Commission does not 
require individual licenses for each terrestrial fixed facility.
    (1) A description of the 37.0-40.0 GHz, or 42.0-42.5 GHz band 
licensee's current service in terms of geographic coverage;
    (2) A description of the 37.0-40.0 GHz, or 42.0-42.5 GHz band 
licensee's current service in terms of population served, as well as 
any additional service provided during the license term;
    (3) A description of the 37.0-40.0 GHz, or 42.0-42.5 GHz band 
licensee's investments in its system(s) (type of facilities constructed 
and their operational status is required);
    (b) Any 37.0-40.0 GHz and 42.0-42.5 GHz band licensees adjudged not 
to be providing substantial service will not have their licenses 
renewed.
    3. Sections 101.56 is amended by revising paragraphs (a)(1), 
(a)(2)(ii), (b), (f), (g), (h) and (i) to read as follows:


Sec.  101.56  Partitioned services areas (PSAs) and disaggregated 
spectrum.

    (a)(1) The holder of an EA authorization to provide service 
pursuant to the competitive bidding process areas in the 37.0-40.0 GHz 
and 42.0-42.5 GHz bands and any incumbent licensee of rectangular 
service areas in the 38.6-40.0 GHz band may enter into agreements with 
eligible parties to partition any portion of its service area as 
defined by the partitioner and partitionee. Alternatively, licensees 
may enter into agreements or contracts to aggregate/disaggregate any 
amount of spectrum, provided acquired spectrum is aggregated/
disaggregated in frequency pairs.
    (2) * * *
    (a)(2)(ii) The contracts must include descriptions of the areas 
being partitioned or spectrum being aggregated/disaggregated. The 
partitioned service area shall be defined by coordinate points at every 
3 seconds along the partitioned service area unless an FCC recognized 
service area is utilized (i.e., Metropolitan Service Area or Rural 
Service Area) or county lines are followed. If geographic coordinate 
points are used, they must be specified in degrees, minutes, and 
seconds to the nearest second of latitude and longitude and must be 
based upon the 1983 North American Datum (NAD83). In the case where an 
FCC recognized service area or county lines are utilized, applicants 
need only list the specific area(s) (through use of FCC designations or 
county names) that constitute the partitioned area.
    (b) The eligibility requirements applicable to EA authorization 
holders also apply to those individuals and entities seeking 
partitioned or aggregated/disaggregated spectrum authorizations.
* * * * *
    (f) The duties and responsibilities imposed upon EA authorization 
holders in this part, apply to those licensees obtaining authorizations 
by partitioning or spectrum aggregation/disaggregation.
    (g) The build out requirements for the partitioned service area or 
aggregated/disaggregated spectrum shall be the same as applied to the 
EA authorization holder.
    (h) The license term for the partitioned service area or 
aggregated/disaggregated spectrum shall be the remainder of the period 
that would apply to the EA authorization holder.
    (i) Licensees, including those using bidding credits in a 
competitive bidding procedure, shall have the authority to partition 
service areas or aggregated/disaggregated spectrum.
    4. Subpart B is amended by adding Sec.  101.58 to read as follows:


Sec.  101.58  System operations.

    (a) The licensee in the 37.0-40.0 GHz and 42.0-42.5 GHz bands may 
construct and operate any number of fixed stations anywhere within the 
area authorized by the license without prior authorization, except as 
follows:
    (1) A station is required to be individually licensed under part 
101 if:
    (i) International agreements require coordination;
    (ii) Submission of an Environmental Assessment is required under 
Sec.  1.1307 of this chapter.
    (iii) The station would affect the radio quiet zones under Sec.  
1.924 of this chapter.
    (2) Any antenna structure that requires notification to the Federal 
Aviation Administration (FAA) must be registered with the Commission 
prior to construction under Sec.  17.4 of this chapter.
    (3) Frequencies in the 37.0-38.6 GHz band are co-primary and shared 
with the Government. All parties concerned should complete coordination 
based on a first in time sharing basis and obtain coordination 
agreements with prior licensed facility operators before operating.
    (b) Whenever a licensee constructs or makes system changes as 
described in

[[Page 52640]]

paragraph (a) of this section, the licensee is required to notify the 
Commission within 30 days of the change under Sec.  1.947 of this 
chapter and include a statement of the technical parameters of the 
changed station.
    5. Section 101.63 is amended by revising paragraph (a) to read as 
follows:


Sec.  101.63  Period of construction; certification of completion of 
construction.

    (a) Each station, except in Local Multipoint Distribution Services, 
24 GHz Service, the 37.0-40.0 GHz and 42.0-42.5 GHz bands, authorized 
under this part must be in operation within 18 months from the initial 
date of grant. For the 70 GHz, 80 GHz, and 90 GHz bands, each 18-month 
construction period will commence on the date of each registration of 
each individual link; adding links will not change the overall renewal 
period of the license.
* * * * *
    6. Section 101.64 is revised to read as follows:


Sec.  101.64  Service areas.

    Service areas for 37.0-40.0 GHz and 42.0-42.5 GHz service are 
Economic Areas (EAs) as defined below and in effect as of April 12, 
2000. EAs are delineated by the Regional Economic Analysis Division, 
Bureau of Economic Analysis, U.S. Department of Commerce, 1995. The 
Commerce Department organizes the 50 States and the District of 
Columbia into 172 EAs. Additionally, there are four EA-like areas: Guam 
and Northern Mariana Islands; Puerto Rico and the U.S. Virgin Islands; 
American Samoa and the Gulf of Mexico. A total of 175 authorizations 
(excluding the Gulf of Mexico EA-like area) will be issued for each 
channel block in the 37.0-40.0 GHz and 42.0-42.5 GHz bands.
    7. Section 101.101 is amended by adding in numerical order to the 
table entries for ``37,000-38,600 MHz'' and ``42,000-42,500 MHz'' and 
by revising the entry for ``38,600-40,000 MHZ'' to read as follows:


Sec.  101.101  Frequency availability.

----------------------------------------------------------------------------------------------------------------
                                                                 Radio service
                              ----------------------------------------------------------------------------------
                                                                                     Other  (parts
     Frequency band (MHz)       Common carrier    Private radio       Broadcast       15, 21, 22,
                                  (part 101)       (part 101)     auxiliary  (part  24, 25, 74, 78      Notes
                                                                         74)            & 100)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
37,000-38,600................  CC.............  OFS.............  ................              25  F/M/TF
38,600-40,000................  CC.............  OFS.............  TV BAS..........              25  F/M/TF
42,000-42,500................  CC.............  OFS.............  ................  ..............  F/M/TF
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    8. Section 101.103 is amended by revising paragraph (i) and by 
adding paragraphs (j) and (k) to read as follows:


Sec.  101.103  Frequency coordination procedures.

* * * * *
    (i)(1) When fixed microwave or fixed satellite earth station 
facilities licensed under Part 101 are to be operated in the band 
37,000 MHz to 40,000 MHz or 42,000 MHz to 42,500 MHz, the following 
coordination procedures shall apply:
    (i) All harmful interference to other users and blocking of 
adjacent channel use in the same or adjacent geographical area is 
prohibited. In areas near the border between two licensees' service 
areas, careful consideration should be given to minimum power 
requirements and to the location, height, and radiation pattern of the 
transmitting antenna. Licensees are expected to cooperate fully in 
attempting to resolve problems of potential interference before 
bringing the matter to the attention of the Commission.
    (ii) Each licensee must engineer its system to be reasonably 
compatible with adjacent and co-channel operations in the same or 
adjacent areas, and cooperate fully and in good faith to resolve 
whatever potential interference and transmission security problems may 
be present in adjacent and co-channel operations.
    (iii) A licensee shall coordinate its facilities whenever the 
facilities have optical line-of-sight (calculated using the formula d = 
3.57[radic]h, where d is the distance between the antenna and the 
horizon in kilometers and h is the antenna height in meters) into 
another licensee s geographic area where that licensee's facilities may 
be located or into another licensee's facilities within the same or 
adjacent geographic area, and the power flux density of the licensee's 
system calculated at the service area boundary of the neighboring 
service area(s) exceeds -125 dBW/m\2\ in any 1 megahertz band. This 
line of site should take into consideration all the possible relevant 
heights of the other licensee's antenna(s). Power flux density is 
calculated using accepted engineering practices, taking into account 
such factors as propagation loss, atmospheric loss, curvature of the 
Earth, and gain of the antenna in the direction of the service area 
boundary. Licensees are encouraged to develop operational agreements 
with relevant licensees in the same or adjacent areas.
    (iv) In the event no licensee in the bands 37,000 MHz to 40,000 MHz 
or 42,000 MHz to 42,500 MHz is immediately available in an adjacent or 
same area, the first-in-time licensee would have to coordinate its 
stations when future licensees appear in order to accommodate other 
licensees' rights and to ensure cooperative and effective use of the 
spectrum in each area. This may include reducing powers to levels which 
are agreeable to both parties.
    (i)(2) Response to notification should be made as quickly as 
possible, even if no technical problems are anticipated. Any response 
to notification indicating potential interference must specify the 
technical details and must be provided to the licensee, either 
electronically or in writing, within 10 days of notification. Every 
reasonable effort should be made by all licensees to eliminate all 
problems and conflicts. If no response to notification is received 
within 10 days, the licensee will be deemed to have made reasonable 
efforts to coordinate and may commence operation without a response. 
The beginning of the 10-day period is determined pursuant to Sec.  
101.103(d)(2)(v).
    (i)(3) Licensees shall comply with the appropriate coordination 
agreements between the United States and Canada and the United States 
and Mexico concerning cross-border sharing and use

[[Page 52641]]

of the 37.0-40. GHz and 42.0-42.5 GHz bands.
    (j) Special consideration for coordinating with Government stations 
in the 37-38.6 GHz band:
    (1) In the band 37-38 GHz, use of the space research service 
(space-to-Earth) shall be on a primary basis only at Goldstone, 
California. Stations in the fixed and mobile services within 80 
kilometers (50 miles) of 35[deg] 18[min] North Latitude and 116[deg] 
54[min] West Longitude shall be coordinated through contacting the 
facility directly. Stations in the 37.0-38.6 GHz band in the vicinity 
of Green Bank, West Virginia must also coordinate as required by 
Section 1.924. The interference protection criterion to these 
facilities is -130 dBW/m\2\ in any 1 MHz, and licensees must obtain 
letters of approval for their operations from the relevant Government 
facility. Other uses of the space research service (space-to-Earth) in 
the band 37-38 GHz shall be on a secondary basis.
    (2) Non-Government licensees in the 37-38.6 GHz band must register 
their technical data electronically into the ULS for each station in 
each of their geographic areas in order to make available accurate 
information on the use of the facilities and also to implement the 
``first-in-time'' principle for coordination with Government 
facilities. This data shall include: 1) the date of the initial 
operating capability (IOC) of each station, 2) specific information 
identifying the station locations, 3) technical operating capabilities 
of the stations, including all of the power and antenna characteristics 
specified in Section 101.103(d)(2)(ii) of this section, and 4) whether 
the station has optical line-of-site to another facility with which it 
is being coordinated, if known at the time. If it is determined that 
optical line-of-site does not exist, the applicant should explain the 
determination. This site-based information shall be entered into the 
record of the area license in the ULS database by electronically 
registering notifications to the initial FCC Form 601 using Schedule I, 
but not more than twelve (12) months before operations are scheduled to 
begin.
    (3) The FCC will note the activation date of the station, but will 
not make a determination that any of the information is correct or 
acceptable for filing. Coordination involving current and future 
Government facilities will require licensees and applicants to ensure 
that their data is accurately reflected in the ULS.
    (4) Government operators with existing facilities in the 37.0-38.6 
GHz band should cooperate in the coordination process by responding to 
non-Government coordination notifications. Government operators with 
new stations to coordinate can identify and directly access the 
technical information of the non-Government licensees through the ULS. 
Examining the data in the ULS before formally coordinating with the FCC 
in the appropriate frequency band and geographic service area may speed 
up the frequency selection process. Government operators with new 
stations should notify the FCC through the IRAC process with sufficient 
technical detail to determine whether potential interference is 
possible with facilities of our licensees/applicants.
    (5) Non-Government Operations Coordinating with Existing Government 
Operations. Non-Government terrestrial users in the band 37.0-38.6 GHz, 
and also operators who wish to protect an FSS (downlink) earth station 
in the band 37.5-38.6 GHz, shall coordinate with the existing military 
terrestrial Government facilities in 37.0-38.6 GHz (existing stations 
are identified in Appendix E) through the ULS and IRAC process. The 
proposed coordination triggers for non-Government stations are that the 
antenna must have optical line-of-sight to the Government facilities 
and that the PFD at the site exceeds a threshold of -125 dBW/m\2\ in 
any 1 MHz band. Harmful interference is not anticipated if neither of 
these conditions exist. The FCC and NTIA will resolve interference 
problems referred to them to their mutual satisfaction based on first-
in-time sharing basis.
    (6) Non-Government Operations Coordinating with Future Government 
Operations. Government terrestrial users in the band 37.0-38.6 GHz, and 
also operators who are required to protect an FSS (downlink) earth 
station in the band 37.5-38.6 GHz, are required to coordinate with 
future Government SRS (downlink space research antennas) operations and 
Government terrestrial facilities in the band 37.0-38.6 GHz at 
locations not identified at this time. The coordination triggers for 
non-Government stations are that the antenna must be within optical 
line-of-sight of an authorized Government site and that the station 
have a PFD at the site exceeding a threshold of -130 dBW/m\2\ in any 1 
MHz band for the SRS (downlink) operations and -125 dBW/m\2\ in any 1 
MHz band for the terrestrial facilities. Harmful interference is not 
anticipated if neither of these conditions exist. The coordinating 
parties are expected to resolve interference protection to their mutual 
satisfaction based on first-in-time sharing or to derive written 
sharing agreements.
    (7) Government Operations Coordinating with Future Non-Government 
Operations. Government SRS (downlink space research antennas) users and 
Government terrestrial users in the 37.0-38.6 GHz band are expected to 
coordinate with existing and future non-Government operations. The 
coordination triggers for Government SRS stations are that the antenna 
have optical line-of-sight to an authorized non-Government site and 
have a vulnerability threshold PFD at the SRS receiver of -130 dBW/m\2\ 
in any 1 MHz band. The coordinating parties are expected to resolve 
interference protection to their mutual satisfaction based on first-in-
time sharing. The coordination triggers for Government terrestrial 
stations are that the transmitting antenna have optical line-of-sight 
to the site of an authorized non-Government facility and have a PFD at 
the non-Government site exceeding a threshold of -125 dBW/m\2\ in any 1 
MHz band. The FCC and NTIA will resolve interference problems referred 
to them to their mutual satisfaction based on first-in-time sharing.
    (k) Special consideration for coordinating Government stations in 
the 39.5-40.06 GHz band. Government operators who are required to 
coordinate and protect non-Government terrestrial stations or FSS 
(downlink) earth stations in the band 39.5-40.061 GHz shall coordinate 
directly with the existing non-Government licensee for any earth 
stations located on military bases, and with the non-Government 
terrestrial licensee in whose service area the Government earth station 
is to be located. All parties concerned should resolve the coordination 
problems based on a first in time sharing basis and obtain coordination 
agreements with prior licensed facility operators.
    9. Section 101.107 is amended by adding footnote 9 to the table in 
paragraph (a) to read as follows:


Sec.  101.107  Frequency tolerance.

    (a) * * *

------------------------------------------------------------------------
                                                              Frequency
                      Frequency (MHz)                         tolerance
                                                              (percent)
------------------------------------------------------------------------
 
                                * * * * *
31,300 to 40,000 \4\, \9\..................................         0.03
71,000 to 76,000 \8\, \9\..................................  ...........
81,000 to 86,000 \8\, \9\..................................  ...........
92,000 to 95,000 \8\, \9\..................................  ...........
 

[[Page 52642]]

 
                               * * * * *
------------------------------------------------------------------------
\9\ Equipment authorized to be operated in the 37,000-40,000 MHz, 42,000-
  42,500 MHz, 71,000-76,000 MHz, 81,000-86,000 MHz, 92,000-94,000 MHz
  and 94,100-95,000 MHz bands is exempt from the frequency tolerance
  requirement noted in the above table.

* * * * *
    10. Section 101.109 is amended by removing the entry for ``38,600-
40,000 MHz'' and adding in numerical order entries for ``37,000-40,000 
MHz'' and ``42,000-42,500 MHz'' in the table in paragraph (c) and by 
revising footnote 7 to read as follows:


Sec.  101.109  Bandwidth.

* * * * *
    (c) * * *

------------------------------------------------------------------------
                                                               Maximum
                    Frequency band (MHz)                      authorized
                                                              bandwidth
------------------------------------------------------------------------
 
                                * * * * *
37,000 to 40,000...........................................   50 MHz \7\
42,000 to 42,500...........................................   50 MHz \7\
 
                               * * * * *
------------------------------------------------------------------------
\7\ For channel block assignments in the 24,250-25,250 MHz, 37,000-
  40,000 MHz, and 42,200-42,500 MHz bands, the authorized bandwidth is
  equivalent to an unpaired channels block assignment or to either half
  of a symmetrical paired channel block assignment. When adjacent
  channels are aggregated, equipment is permitted to operate over the
  full channel block aggregation without restriction.

* * * * *
    11. Section 101.113(a) is amended by removing the entry for 
``38,600-40,000 MHz'' and by adding in numerical order entries in the 
table for ``37,000-40,000 MHz'' and for ``42,000-42,500 MHz'' to read 
as follows:


Sec.  101.113  Transmitter power limitations.

    (a) * * *

------------------------------------------------------------------------
                                                  Maximum allowable EIRP
                                                          \1\ \2\
              Frequency band (MHz)               -----------------------
                                                     Fixed      Mobile
                                                     (dBW)       (dBW)
------------------------------------------------------------------------
 
                                * * * * *
37,000 to 40,000................................         +55  ..........
42,000 to 42,500................................         +55  ..........
 
                                * * * * *
------------------------------------------------------------------------

* * * * *
    12. Section 101.115 is amended by removing the entry for ``38, 600-
40,00 MHz'', adding in numerical order entries in the table for 
``37,000-40,000 MHz'' and 42,000-42,500 MHz'', and by revising footnote 
14 in paragraph (b) to read as follows:


Sec.  101.115  Directional antennas.

* * * * *
    (b) * * *

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
37,000 to 40,000 \14\...................      A     n/a      38     25     29     33     36     42     55     55
                                              B     n/a      38     20     24     28     32     35     36     36
42,000 to 42,500 \14\...................      A     n/a      38     25     29     33     36     42     55     55
                                              B     n/a      38     20     24     28     32     35     36     36
 
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
\14\ Stations authorized to operate in these bands may use antennas other than those meeting the Category A
  standard. However, the Commission may require the use of higher performance antennas where interference
  problems can be resolved by the use of such antennas.

* * * * *
    13. Section 101.147 is amended by revising paragraph (v) to read as 
follows:


Sec.  101.147  Frequency assignments.

* * * * *
    (v)(1) Assignments in the bands 37,000-40,000 MHz and 42,000-42,500 
MHz must be according to the following frequency plan:

                                                    Option 1
                              [Unpaired channels are at lower end of 37.0-38.6 GHz]
----------------------------------------------------------------------------------------------------------------
                                              Paired channel blocks
-----------------------------------------------------------------------------------------------------------------
                        Channel Group A                                          Channel Group B
----------------------------------------------------------------------------------------------------------------
                                              Frequency block                                   Frequency block
                Channel No.                        (MHz)                 Channel No.                 (MHz)
----------------------------------------------------------------------------------------------------------------
1-A........................................     38,600-38,650   1-B..........................     39,300-39,350
2-A........................................     38,650-38,700   2-B..........................     39,350-39,400
3-A........................................     38,700-38,750   3-B..........................     39,400-39,450
4-A........................................     38,750-38,800   4-B..........................     39,450-39,500
5-A........................................     38,800-38,850   5-B..........................     39,500-39,550
6-A........................................     38,850-38,900   6-B..........................     39,550-39,600
7-A........................................     38,900-38,950   7-B..........................     39,600-39,650
8-A........................................     38,950-39,000   8-B..........................     39,650-39,700
9-A........................................     39,000-39,050   9-B..........................     39,700-39,750
10-A.......................................     39,050-39,100   10-B.........................     39,750-39,800
11-A.......................................     39,100-39,150   11-B.........................     39,800-39,850
12-A.......................................     39,150-39,200   12-B.........................     39,850-39,900
13-A.......................................     39,200-39,250   13-B.........................     39,900-39,950
14-A.......................................     39,250-39,300   14-B.........................     39,950-40,000
19-A.......................................     37,200-37,250   19-B.........................     37,900-37,950
20-A.......................................     37,250-37,300   20-B.........................     37,950-38,000
21-A.......................................     37,300-37,350   21-B.........................     38,000-38,050
22-A.......................................     37,350-37,400   22-B.........................     38,050-38,100

[[Page 52643]]

 
23-A.......................................     37,400-37,450   23-B.........................     38,100-38,150
24-A.......................................     37,450-37,500   24-B.........................     38,150-38,200
25-A.......................................     37,500-37,550   25-B.........................     38,200-38,250
26-A.......................................     37,550-37,600   26-B.........................     38,250-38,300
27-A.......................................     37,600-37,650   27-B.........................     38,300-38,350
28-A.......................................     37,650-37,700   28-B.........................     38,350-38,400
29-A.......................................     37,700-37,750   29-B.........................     38,400-38,450
30-A.......................................     37,750-37,800   30-B.........................     38,450-38,500
31-A.......................................     37,800-37,850   31-B.........................     38,500-38,550
32-A.......................................     37,850-37,900   32-B.........................     38,550-38,600
33-A.......................................     42,000-42,050   33-B.........................     42,250-42,300
34-A.......................................     42,050-42,100   34-B.........................     42,300-42,350
35-A.......................................     42,100-42,150   35-B.........................     42,350-42,400
36-A.......................................     42,150-42,200   36-B.........................     42,400-42,450
37-A.......................................     42,200-42,250   37-B.........................     42,450-42,500
----------------------------------------------------------------------------------------------------------------


------------------------------------------------------------------------
                         Unpaired channel blocks
-------------------------------------------------------------------------
                                                        Frequency block
                     Channel No.                             (MHz)
------------------------------------------------------------------------
15...................................................     37,000-37,050
16...................................................     37,050-37,100
17...................................................     37,100-37,150
18...................................................     37,150-37,200
------------------------------------------------------------------------


                                                    Option 2
                              [Unpaired channels are at upper end of 37.0-38.6 GHz]
----------------------------------------------------------------------------------------------------------------
                                              Paired channel blocks
-----------------------------------------------------------------------------------------------------------------
                        Channel Group A                                          Channel Group B
----------------------------------------------------------------------------------------------------------------
                                              Frequency block                                   Frequency block
                Channel No.                        (MHz)                 Channel No.                 (MHz)
----------------------------------------------------------------------------------------------------------------
1-A........................................     38,600-38,650   1-B..........................     39,300-39,350
2-A........................................     38,650-38,700   2-B..........................     39,350-39,400
3-A........................................     38,700-38,750   3-B..........................     39,400-39,450
4-A........................................     38,750-38,800   4-B..........................     39,450-39,500
5-A........................................     38,800-38,850   5-B..........................     39,500-39,550
6-A........................................     38,850-38,900   6-B..........................     39,550-39,600
7-A........................................     38,900-38,950   7-B..........................     39,600-39,650
8-A........................................     38,950-39,000   8-B..........................     39,650-39,700
9-A........................................     39,000-39,050   9-B..........................     39,700-39,750
10-A.......................................     39,050-39,100   10-B.........................     39,750-39,800
11-A.......................................     39,100-39,150   11-B.........................     39,800-39,850
12-A.......................................     39,150-39,200   12-B.........................     39,850-39,900
13-A.......................................     39,200-39,250   13-B.........................     39,900-39,950
14-A.......................................     39,250-39,300   14-B.........................     39,950-40,000
15-A.......................................     37,000-37,050   15-B.........................     37,700-37,750
16-A.......................................     37,050-37,100   16-B.........................     37,750-37,800
17-A.......................................     37,100-37,150   17-B.........................     37,800-37,850
18-A.......................................     37,150-37,200   18-B.........................     37,850-37,900
19-A.......................................     37,200-37,250   19-B.........................     37,900-37,950
20-A.......................................     37,250-37,300   20-B.........................     37,950-38,000
21-A.......................................     37,300-37,350   21-B.........................     38,000-38,050
22-A.......................................     37,350-37,400   22-B.........................     38,050-38,100
23-A.......................................     37,400-37,450   23-B.........................     38,100-38,150
24-A.......................................     37,450-37,500   24-B.........................     38,150-38,200
25-A.......................................     37,500-37,550   25-B.........................     38,200-38,250
26-A.......................................     37,550-37,600   26-B.........................     38,250-38,300
27-A.......................................     37,600-37,650   27-B.........................     38,300-38,350
28-A.......................................     37,650-37,700   28-B.........................     38,350-38,400
33-A.......................................     42,000-42,050   33-B.........................     42,250-42,300
34-A.......................................     42,050-42,100   34-B.........................     42,300-42,350
35-A.......................................     42,100-42,150   35-B.........................     42,350-42,400
36-A.......................................     42,150-42,200   36-B.........................     42,400-42,450

[[Page 52644]]

 
37-A.......................................     42,200-42,250   37-B.........................     42,450-42,500
----------------------------------------------------------------------------------------------------------------


------------------------------------------------------------------------
                         Unpaired channel blocks
-------------------------------------------------------------------------
                                                        Frequency block
                     Channel No.                             (MHz)
------------------------------------------------------------------------
29...................................................     38,400-38,450
30...................................................     38,450-38,500
31...................................................     38,500-38,550
32...................................................     38,550-38,600
------------------------------------------------------------------------

    (v)(2) Channel Blocks 1 through 37 are assigned for use within 
Economic Areas (EAs). Applicants are to apprise themselves of any 
licensed rectangular service areas in the band 38,6000-40,000 MHz 
within the EA for which they seek a license and comply with the 
requirements set out in Sec.  101.103. All of the channel blocks may be 
subdivided as desired by the licensee as frequency pairs and used 
within its service area as desired without further authorization 
subject to the terms and conditions set out in Sec.  101.149.
* * * * *
    14. Section 101.149 is amended by revising introductory text and by 
adding paragraphs (d) and (e) to read as follows:


Sec.  101.149  Special requirements for operation in the bands 37,000-
40,000 MHz, and 42,000-42,500 MHz.

    Assigned frequency channels in the bands 37,000-40,000 MHz, and 
42,000-42,500 MHz may be aggregated/disaggregated with no limits and 
used anywhere in the authorized service area, subject to the following 
terms and conditions:
* * * * *
    (d) Point-to-point, point-to-multipoint, fixed and mobile 
terrestrial operations (upon adoption of interference protection 
criteria for mobile operations) shall be permitted in the bands 37,000-
40,000 MHz, and 42,000-42,500 MHz. Fixed satellite earth station 
operations may also be permitted if the license is obtained through 
competitive bidding, partitioning, and/or aggregation/disaggregation 
under part 101.
    (e) For the frequency bands 37,000-40,000 MHz, and 42,000-42,500 
MHz, spectrum must be aggregated/disaggregated by frequency pairs.
    15. Subpart N of part 101 is amended by revising the subpart 
heading to read as follows:

Subpart N--Competitive Bidding Procedures for the 37.0-40.0 GHz and 
42.0-42.5 GHz Bands

* * * * *
    16. Section 101.1201 is revised to read as follows:


Sec.  101.1201  37.0-40.0 GHz and 42.0-42.5 GHz subject to competitive 
bidding.

    Mutually exclusive initial applications for 37.0-40.0 GHz and 42.0-
42.5 GHz band licenses are subject to competitive bidding. The general 
competitive bidding procedures set forth in 47 CFR part 1, subpart Q 
will apply unless otherwise provided in this subpart.
    17. Subpart N is amended by adding Sec.  101.1212 to read as 
follows:


Sec.  101.1212  Designated entities.

    (a) Eligibility for small business provisions. (1) A small business 
is an entity that, together with its affiliates, its controlling 
interests and the affiliates of its controlling interests, has average 
gross revenues that are not more than $40 million for the preceding 
three years.
    (2) A very small business is an entity that, together with its 
affiliates, its controlling interests and the affiliates of its 
controlling interests, has average gross revenues that are not more 
than $15 million for the preceding three years.
    (b) Bidding credits. (1) A winning bidder that qualifies as a small 
business, as defined in this section, or a consortium of small 
businesses may use a bidding credit of 15 percent, as specified in 
Sec.  1.2110(f)(2)(iii), to lower the cost of its winning bid on any of 
the licenses in this part.
    (2) A winning bidder that qualifies as a very small business, as 
defined in this section, or a consortium of very small businesses may 
use a bidding credit of 25 percent, as specified in Sec.  
1.2110(f)(2)(ii), to lower the cost of its winning bid on any of the 
licenses in this part.
[FR Doc. 04-18807 Filed 8-26-04; 8:45 am]
BILLING CODE 6712-01-P