[Federal Register Volume 69, Number 249 (Wednesday, December 29, 2004)]
[Rules and Regulations]
[Pages 77938-77950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28420]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2, 15, 27, 87 and 97

[ET Docket No. 00-258; WT Docket No. 02-8; FCC 04-246]


Advanced Wireless Services

AGENCY: Federal Communications Commission

ACTION: Final rule.

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SUMMARY: This document facilitates the introduction of Advanced 
Wireless

[[Page 77939]]

Service (AWS) in the band 1710-1755 MHz--an integral part of a 90 MHz 
spectrum allocation recently reallocated to allow for such new and 
innovative wireless services. We largely adopt the proposals set forth 
in our recent AWS Fourth NPRM in this proceeding that are designed to 
clear the 1710-1755 MHz band of incumbent Federal Government operations 
that would otherwise impede the development of new nationwide AWS 
services. These actions are consistent with previous actions in this 
proceeding and with the United States Department of Commerce, National 
Telecommunications and Information Administration (``NTIA'') 2002 
Viability Assessment, which addressed relocation and reaccommodation 
options for Federal Government operations in the band.

DATES: Effective January 28, 2005.

FOR FURTHER INFORMATION CONTACT: Ted Ryder, Office of Engineering and 
Technology, (202) 418-2803.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Seventh Report and Order, ET Docket No. 00-258 and WT Docket No. 02-8, 
FCC 04-246, adopted October 14, 2004, and released October 21, 2004. 
The full text of this Commission decision is available on the 
Commission's Internet site at www.fcc.gov. It is available for 
inspection and copying during normal business hours in the FCC 
Reference Information 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, Best Copy and 
Printing, Inc., Room CY-B402, 445 12th Street, SW., Washington, DC 
20554. Alternate formats are available to persons with disabilities by 
contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

Summary of the Report and Order

    1. In the Seventh Report and Order (7th R&O), we undertook a narrow 
and specific task--the reaccommodation of Federal Government users in 
order to make the 1710-1755 MHz band available for AWS use. However, 
the decisions we made are part of a larger and substantially more 
complex proceeding. The quest to make spectrum available for a variety 
of new and innovative wireless services has involved a variety of 
bodies, including this Commission, Federal Government stakeholders as 
represented through NTIA, and Congress.
    2. In the Omnibus Budget Reconciliation Act of 1993 (``OBRA-93''), 
Congress directed the Secretary of Commerce to identify at least 200 
megahertz of spectrum below 5 GHz for transfer to non-Federal 
Government services. NTIA identified 235 megahertz, including the bands 
1710-1755 MHz and 2390-2400 MHz, for such transfer. At that time, the 
band 1710-1755 MHz, which was a Federal Government exclusive band, was 
to be reallocated as a mixed-use band. Specifically, Federal Government 
use of the band 1710-1755 MHz was to remain protected indefinitely at 
333 fixed microwave stations used by Federal power agencies, as 
required by 47 U.S.C. 923(c)(4), and would additionally be protected 
indefinitely at 111 stations used for aviation-related safety 
communications and at 16 sites used by DOD for fixed point-to-point 
microwave, tactical radio relay, aeronautical mobile stations, etc.
    3. The Report and Order accomplishes two main tasks. First, we 
allow Federal Government users access to new frequencies--generally 
grouped into frequencies in the band 2025-2110 MHz (``2 GHz'') and 
frequencies in the band 2360-2400 MHz--that will allow Federal users to 
relocate existing operations in such a way that will ultimately free 
spectrum for these users to relocate operations from the 1710-1755 MHz 
band. Second, we address the relocation procedures and policies that 
are necessary to make these relocations of Federal Government users 
possible.
    4. Specifically, the 7th R&O adopts the following spectrum 
allocation decisions:

--We allow the U.S. Department of Defense (``DOD'') to use the band 
2025-2110 MHz, on a co-equal, primary basis with non-Federal Government 
operations, for earth stations at 11 sites to support military space 
operations (also known as tracking, telemetry, and commanding or 
``TT&C''). This will provide DOD with additional flexibility in the 
band 1755-1850 MHz to accommodate systems displaced from the band 1710-
1755 MHz.
--We permit the DOD to operate stations in the fixed and mobile except 
aeronautical mobile services in the band 2025-2110 MHz on a secondary 
basis at six sites in the southwestern region of the United States.
--We rescind the recently established rules for the Wireless 
Communications Services (``WCS'') at 2385-2390 MHz and no longer make 
the band 2390-2400 MHz available for use by Unlicensed Personal 
Communications Services (``UPCS''). We also allow Federal and non-
Federal Government flight test stations to operate in the band 2385-
2395 MHz, which in turn will permit DOD to relocate all aeronautical 
mobile systems out of the band 1710-1755 MHz. In addition, these 
allocation changes provide needed replacement spectrum for use by DOD 
and commercial flight test stations, which recently lost access to 35 
megahertz of spectrum at 1525-1535 MHz and 2320-2345 MHz.

The Band 2025-2110 MHz (2GHZ)

    5. DOD Co-Primary Use of 2 GHz Band. We adopted, with minor 
changes, the proposals for the 2 GHz band set forth in the AWS Fourth 
NPRM. In so doing, we recognize the concerns of the broadcasting 
community that sharing of that band by TV Broadcast Auxiliary Service 
(``BAS'') stations and DOD TT&C uplink earth stations will be 
challenging in some instances. However, we are confident that such 
sharing is feasible and will promote the public interest, particularly 
in the ultimate provision of AWS to the public, provided that 
coordination procedures adequate to the protection of both incumbent 
BAS stations and DOD TT&C uplink earth stations are imposed. In this 
regard, we are maintaining in the 2 GHz band our longstanding policy 
that first-licensed facilities have the right of protection from later-
licensed facilities operating in the same band. This means that a new 
DOD TT&C uplink earth station seeking to operate at 2 GHz must 
coordinate with all BAS stations that may be affected by the new earth 
station's operation. To ensure that the right of protection of first-
licensed facilities is adequately maintained, we conclude that it is 
necessary to ensure that not too long a period of time elapses between 
the authorization and the commencement of operations of a DOD TT&C 
uplink earth station at 2 GHz. Thus, DOD must coordinate facilities at 
the 11 sites only when construction and/or implementation are 
anticipated, and prior to authorization. To ensure that such 
coordination occurs successfully, prior to authorization, DOD must 
coordinate the DOD TT&C uplink earth station with all potentially 
affected incumbent BAS, Cable Television Relay Service (``CARS''), and 
Local Television Transmission Service (``LTTS'') licensees of stations 
within the coordination contour of the earth station, consistent with 
Appendix 7 of the ITU Radio Regulations, and engage the local BAS 
frequency coordinator(s), where available, in support of achieving such 
coordination. DOD, at the time it submits its application for the 
authorization of a 2 GHz earth station to the Commission through NTIA's

[[Page 77940]]

Frequency Assignment Subcommittee (``FAS''), must provide, with its 
application, a list of the entities with which coordination was 
undertaken. For those rare situations where no reasonable coordination 
can be negotiated, the issue may be raised to the FCC and NTIA to 
jointly arbitrate resolution. We will not concur with authorizing 
operation of any 2 GHz DOD TT&C uplink earth station in the absence of 
successful coordination between DOD and the affected BAS incumbents. 
Once the DOD TT&C uplink earth station has begun coordination, new BAS, 
CARS, and LTTS stations for which coordination begins later must accept 
interference from the DOD earth station, as is normally the case for 
new stations sharing spectrum on a co-primary basis. Finally, to ensure 
that future BAS, CARS, and LTTS licensees have a means for coordinating 
their proposed operations with the DOD TT&C uplink earth station, DOD 
earth stations must maintain a point of contact for coordination.
    6. Accordingly, we adopted revisions generally as proposed for 
footnote US346. Additionally, we have corrected some of the geographic 
coordinates for the 11 DOD earth stations, originally listed in 
proposed footnote US346, and we have made several editorial changes to 
the footnote.
    7. We acknowledge that recent data supplied by the Society of 
Broadcast Engineers, Inc. (``SBE''), indicate that there may be a 
significant potential for interference from DOD TT&C earth stations at 
the 11 sites that may use the 2 GHz band into 2 GHz fixed receive-only 
receivers used in connection with BAS electronic newsgathering 
(``ENG'') mobile TV pick-ups (``TVPUs''). However, as indicated in the 
AWS Fourth NPRM, sharing techniques currently exist that should enable 
2 GHz earth stations to be engineered into the 11 sites without harming 
existing BAS operations. We also acknowledge that some sharing 
situations will be difficult and may require more restrictive 
techniques, such as limiting power, limiting the pointing direction and 
elevation of the DOD earth station, constructing berms or installing RF 
shielding, arranging time-sharing agreements for DOD use during off-
peak hours when TV BAS use is at a minimum, and other mitigation 
techniques. Nonetheless, because these techniques, together with 
coordination with potentially affected licensees, can facilitate 
implementation of the DOD TT&C earth stations at the 11 sites, we see 
no insurmountable technical obstacles that would prevent us from 
implementing the proposed 2 GHz allocation.
    8. We also observe that, as noted by Motorola, interference to 2 
GHz TV BAS stations from DOD earth stations will not be an immediate 
issue because DOD satellites incorporating those frequencies will not 
be available for at least several years. Further, to ensure mission 
success, NTIA anticipates that new satellites will be built with dual 
tracking and command frequencies, i.e., in both the band 1761-1842 MHz 
and the 2 GHz band. As DOD gains experience with TT&C operations in the 
2 GHz band, use of the band 1761-1842 MHz for TT&C is expected to be 
reduced, but DOD requirements in that band may exist until the year 
2030. Therefore, initial DOD use of the 2 GHz band is not expected to 
involve either immediate or full relocation of the current systems. 
However, enabling relocation of DOD operation from the band 1761-1842 
MHz to the 2 GHz band will over time allow DOD the flexibility to 
accommodate additional systems in the band 1755-1850 MHz. Finally, DOD 
may choose not to use the 2 GHz band for some of its 11 existing sites 
that currently operate in the band 1761-1842 MHz due to coordination 
difficulties with incumbent operations.
    9. Additionally, we observe that, by the time DOD earth stations 
begin to use the 2 GHz band, total or near-total conversion to digital 
BAS operations is likely to have occurred. That conversion promises to 
significantly reduce the potential for interference to BAS receivers 
because the digital technology to be used for BAS is far more robust 
than analog technology against undesired signals. As noted by SBE, use 
of digital technology by BAS licensees may permit the BAS desired/
undesired (``D/U'') ratio to be relaxed by several orders of magnitude 
in some cases. While it is not possible to precisely forecast when 
digital BAS operations will be used in a particular geographic area, it 
is also not possible to precisely forecast when a DOD earth station may 
begin to use 2 GHz frequencies in that area. Given the uncertain 
timeframe for DOD implementation of the 2 GHz allocation for the 11 
sites, possibly extending many years into the future, it may be 
appropriate for us to establish the specifics of a coordination process 
that will accommodate future developments, such as the digital 
conversion of BAS operations.
    10. With regard to the specific concern of Gannett Co., Inc. 
(``Gannett''), about the DOD site at Buckley AFB, CO, we will not 
impose a priori conditions that would restrict DOD's options at that 
site. We find that requiring coordination to protect incumbent 
operations and maintaining flexibility on specific technical 
requirements will allow the spectrum sharing situation to be customized 
to meet the requirements at the time when DOD needs to use this 
spectrum.
    11. Regarding the technical characteristics of the DOD TT&C 
operations, we observe that NTIA has updated the NTIA Manual to require 
that DOD TT&C earth stations operating in the band 2025-2110 MHz 
conform to operational limits specified in the ITU Radio Regulations 
for that band. These limits require that an earth station not transmit 
until the mainbeam of its antenna is pointing at least 3[deg] above the 
horizon, unless affected parties have agreed to a lower elevation 
angle. In addition, we observe that NTIA has adopted the ITU limit on 
the effective isotropic radiated power (``EIRP'') transmitted in any 
direction towards the horizon by an earth station. Specifically, these 
limits require that an earth station be:
    (1) Limited to an EIRP of 40 dBW at a 0[deg] elevation angle, in 
any 4 kHz band;
    (2) Permitted to increase its EIRP to 40 dBW plus 3 times their 
elevation angle between 0-5[deg], in any 4 kHz band;
    (3) Unlimited in EIRP at elevation angles above 5[deg]; and
    (4) Restricted from exceeding these EIRP limits by more than 10 dB.

While these technical characteristics give an idea of how DOD TT&C 
operations might operate if they were constructed today, the situation 
may change before the operations are ready to be constructed for the 2 
GHz band. Therefore, we find that a flexible approach regarding 
technical requirements backed up with coordination to protect incumbent 
operations is the best approach to sharing the 2 GHz band. This will 
allow DOD to take advantage of the latest technological capabilities to 
achieve sharing with BAS operations and will allow them to consider any 
changes in BAS equipment or use that might occur between now and when 
DOD needs access to this spectrum.
    12. Adjacent Band Services. We reject the suggestion of Cingular 
Wireless LLC (``Cingular'') that DOD operations be limited to the 
central portion of the 2 GHz band because we find that it is 
technically feasible for those operations to use the entire band 
without causing interference to adjacent band fixed and mobile 
services. In this regard, we find that techniques such as power 
control, operation of earth stations at higher elevation angles, 
baseband filtering, berms or RF shielding, and other

[[Page 77941]]

techniques, as well as frequency offsets, can mitigate interference 
from 2 GHz DOD earth stations to adjacent band fixed and mobile 
services at 1930-2025 MHz and 2110-2155 MHz. We also reject the 
recommendations of Motorola, Inc. (``Motorola''), that we add AWS in 
the upper adjacent band 2110-2120 MHz to the list of services that 
require coordination in footnote US346, or increase out-of-band 
emission (``OOBE'') limits for DOD 2 GHz earth stations. NTIA and DOD 
state that DOD 2 GHz earth stations' compliance with the OOBE limits in 
the NTIA Manual should provide adequate protection to out-of-band 
users. However, we recognize the likelihood that a variety of factors--
such as high power operation on a frequency close to the adjacent band, 
combined with a momentarily low beam elevation angle to acquire or 
maintain communications with a non-geostationary satellite orbit 
(``NGSO'') satellite as it passes through elevation angles just above 
the horizon in a certain direction--may occur, increasing the potential 
for interference to AWS users in that direction. We accept NTIA's and 
DOD's position that additional measures will not generally be needed. 
However, we expect that DOD will be cognizant of the potential for 
interference into AWS operations in the adjacent band 2120-2155 MHz and 
take appropriate steps to control such interference for specific 
situations at DOD TT&C earth stations. In this regard, we note that the 
same measures exercised by the DOD 2 GHz earth station to protect BAS 
facilities, such as maintaining high elevation angles and erecting 
berms as described, should similarly mitigate against adjacent band 
interference with AWS operating in the same areas. We will address 
protection of new services in the lower adjacent band 2020-2025 MHz, 
which has been allocated for use by Fixed and Mobile services on a 
primary basis, in a future decision.
    13. Finally, with regard to the potential for 2 GHz DOD earth 
stations to cause overload interference to adjacent band receivers, we 
recognize this potential but note that at present it is unclear what 
type of receivers will be used in these adjacent bands when DOD 
transmitters commence operations in several years. Further, as 
suggested by Cingular, the record in this proceeding is not 
sufficiently developed to warrant the adoption of receiver interference 
immunity standards at this time. However, we urge industry to 
contemplate the future development of such standards and will revisit 
this issue if the situation warrants.
    14. Secondary DOD Use of 2 GHz Band. We find that permitting DOD to 
operate 2 GHz stations in the fixed and mobile except aeronautical 
mobile services on a secondary basis at six sites is in the public 
interest. These sites are all at remote locations in the southwestern 
United States and can operate without hindering 2 GHz BAS fixed and 
mobile operations. We are adopting Motorola's recommendation that we 
modify the wording of our proposed new footnote to clarify the status 
of the military operations and make some other minor editorial changes 
to the footnote.
    15. EESS Use of 2 GHz Band. We are not requiring DOD to frequency 
coordinate its new 2 GHz uplink earth stations with existing 2 GHz EESS 
uplinks that operate under US347. While we concur with Space Imaging 
LLC that it and other commercial remote-sensing operators use the 2 GHz 
band for important purposes, their operations are on a non-interference 
basis, and such users of a frequency band do not have the right to be 
protected from interference caused by new, primary users of that same 
band. However, we urge DOD, prior to commencing 2 GHz operations, to 
consult with remote-sensing licensees that operate under US347. We 
observe that it is in DOD's self-interest to do so because these remote 
sensing licensees perform significant defense and intelligence work.

The Band 2360-2400 MHz

    16. We are adopting our proposals for the band 2360-2400 MHz. 
Commenters generally support these proposals and we find that their 
adoption will play a major role in facilitating the introduction of AWS 
by permitting DOD to relocate essential aeronautical mobile systems to 
the band 2360-2395 MHz from the band 1710-1755 MHz. With regard to the 
concerns voiced by the Aerospace and Flight Test Radio Coordinating 
Council (``AFTRCC''), that new amateur use of the band 2390-2395 MHz 
should be precluded and existing amateur use of that band should be 
grandfathered, we decline to adopt such measures. We believe that 
shared use should not impose an undue constraint on either service. 
Amateur access to the band on a primary basis was established 
relatively recently--in 1995--and we note that amateur use of the band 
appears to be relatively light. Moreover, aeronautical mobile use of 
the band will likely be predominantly at remote facilities. We also 
will not impose coordination requirements between amateur and 
aeronautical flight testing operations. We observe that the potential 
for interference from amateur operations, even directional point-to-
point operations, to flight testing operations, would be small, due to 
the high altitudes of aeronautical mobile flight testing transmitters, 
and the correspondingly high elevation and off-axis attenuation of high 
gain flight testing receive antennas on the ground. Although, as noted 
by AFTRCC, low antenna elevation angle and off-axis attenuation of 
flight testing receive antennas, and line-of-site conditions, could 
occur, and thus we cannot rule out the possibility of interference to 
flight testing from amateur operations, we believe the likelihood of 
such an occurrence is limited by the remoteness of flight testing 
facilities, and the relatively light use of the band 2390-2395 MHz band 
by amateurs. Also, as indicated by the current lack of agreement 
regarding coordination between the National Association for Amateur 
Radio (also known as the American Radio Relay League or ``ARRL'') and 
AFTRRC, and especially given the flexibility of amateurs to operate 
without specific station authorization or registration on the 
Commission's database, it appears impractical to establish an effective 
coordination requirement at this time. We also conclude that, because 
most flight testing is conducted at high altitudes with low output 
power at remote facilities, the reverse potential for interference from 
flight testing operations into amateur operations is also small. 
Therefore, we will not require that flight testing operations be 
coordinated with amateur operations. Recognizing that this is a unique 
approach to shared use of the band, in the unlikely event that 
interference occurs to either flight testing or amateur operations, we 
expect that both parties will work together to identify and resolve the 
interference or find a mutually acceptable solution. Should these 
efforts not succeed, the matter should be referred to the FCC or NTIA 
for resolution.
    17. We decline to adopt the recommendation of Sirius Satellite 
Radio Inc. and XM Radio, Inc. (``Sirius/XM''), that all new Government 
and non-Government aeronautical mobile operators in the band 2360-2395 
MHz meet the OOBE limits that apply to WCS licensees at 2305-2320/2345-
2360 MHz to protect Satellite Digital Audio Radio Service (``DARS'') 
receivers in the band 2320-2345 MHz from interference. We find those 
limits to be inappropriate for aeronautical mobile services at 2360-
2395 MHz. It is extremely unlikely that aeronautical mobile 
transmitters would

[[Page 77942]]

be in close enough proximity to Satellite DARS receivers so as to 
create a potential for harmful interference to those receivers. In this 
regard, we observe that aeronautical mobile operations will not be 
widespread and will often occur in the vicinity of test ranges. Thus, 
it is expected that there normally would be large separation distances 
between aeronautical mobile transmitters and Satellite DARS receivers. 
We also observe that Satellite DARS signal strength is generally 
sufficiently high to overcome potential interference from aeronautical 
mobile transmitters even in an unusual case where the DARS receiver is 
relatively close to the aeronautical transmitter. Further, Sirius/XM 
have provided no analysis or other information demonstrating that 
tighter emission limits are necessary to ensure that spurious emissions 
from aeronautical transmitters do not cause harmful interference to 
Satellite DARS receivers. We find that Sirius/XM have not established 
any basis or need for applying the WCS OOBE limits to aeronautical 
mobile services at 2360-2395 MHz. Accordingly, we will apply the OOBE 
limits specified in Sec.  87.139 of our Rules to aeronautical mobile 
operations in the band 2360-2395 MHz.
    18. Finally, no commenting party opposed the removal of the WCS 
from the band 2385-2390 MHz or UPCS from the band 2390-2400 MHz. 
Therefore, we adopt those proposals to help clear the spectrum for new 
uses.
    19. Accordingly, as proposed in the AWS Fourth NPRM, we adopt 
footnote US276 to clearly indicate the allocations for the band 2360-
2395 MHz.
    20. In Appendix A to the AWS Fourth NPRM, we proposed changes to 
Sec. Sec.  15.301, 15.303, 15.319, and 15.321 of our Rules. In those 
proposed rule sections, we erroneously deleted references to the 
asynchronous 1910-1920 MHz portion of the greater 1910-1930 MHz UPCS 
band. In the interim, in the 800 MHz/Nextel Order, we have adopted 
rules redesignating the 1910-1915 MHz lower half of the 1910-1920 MHz 
band for Nextel. We have also adopted rules redesignating the 1915-1920 
MHz upper half of the 1910-1920 MHz band, See AWS 6th R&O, 69 FR 62615, 
October 27, 2004. The UPCS rules we adopt reflect those decisions.

Final Regulatory Flexibility Analysis

    21. As required by the Regulatory Flexibility Act (``RFA''),\1\ an 
Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in 
the Fourth Notice of Proposed Rule Making (``AWS Fourth NPRM'') in this 
proceeding. The Commission sought written comment on the proposals in 
the AWS Fourth NPRM, including comments on the IRFA.\2\ The present 
Final Regulatory Flexibility Analysis (``FRFA'') conforms to the RFA.
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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 
1966 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \2\ AWS Fourth NPRM, 18 FCC Rcd 13235 (2003) ] 64 and Appendix 
B.
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A. Need for, and Objectives of, the Adopted Rules

    22. In this Seventh Report and Order, we allow the Department of 
Defense (``DOD'') to use the band 2025-2110 MHz (``2 GHz'') on a co-
equal, primary basis with non-Federal Government operations for DOD 
earth stations at 11 sites that support DOD space operations. DOD 
access to the 2 GHz band may make more spectrum available in the band 
1755-1850 MHz for absorbing certain DOD systems displaced from the band 
1710-1755 MHz. In addition, we permit the DOD to operate stations in 
the fixed and mobile services in the 2 GHz band on a secondary (non-
interference) basis at six sites in the southwestern region of the 
United States.
    23. We also make numerous allocation changes to the band 2360-2400 
MHz, the most significant of which rescinds the recent establishment of 
Wireless Communications Services at 2385-2390 MHz, allows Federal and 
non-Federal Government flight test stations to operate in the band 
2385-2395 MHz, and no longer permits the band 2390-2400 MHz to be used 
by Unlicensed Personal Communications Services (``UPCS'') applications. 
These allocation changes permit DOD to relocate all aeronautical mobile 
systems out of the band 1710-1755 MHz, which is a major objective for 
facilitating the introduction of Advanced Wireless Services (``AWS''). 
In addition, these allocation changes provide needed replacement 
spectrum for use by DOD and commercial flight test stations, which 
recently lost access to the 35 megahertz of spectrum at 1525-1535 MHz 
and 2320-2345 MHz. Thus, these actions are a significant step forward 
toward the introduction of AWS while ensuring that the provision of 
important military services is not compromised.

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

    24. We received no comments directly in response to the IRFA. We 
did, however, consider the potential impact of the proposed rules on 
smaller entities, and conclude that any impact will not be adverse. 
While new DOD use of the 2 GHz band will require coordination between 
DOD and existing TV Broadcasting Auxiliary Services (``BAS'') 
licensees, the burden will be on DOD to demonstrate that its new use 
can be accomplished on a non-interference basis.

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

    25. 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 proposed rules, if adopted. The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \3\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\4\ A ``small business concern'' is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria 
established by the Small Business Administration (SBA).\5\
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    \3\ 5 U.S.C. 601(6).
    \4\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \5\ 15 U.S.C. 632.
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    26. A small organization is generally ``any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.'' \6\ Nationwide, there are approximately 1.6 
million small organizations.\7\ ``Small governmental jurisdiction'' 
generally means ``governments of cities, counties, towns, townships, 
villages, school districts, or special districts, with a population of 
less than 50,000.'' \8\ As of 1997, there were approximately 87,453 
governmental entities in the United States.\9\ This number includes 
39,044 county governments, municipalities, and townships, of which 
37,546 (approximately 96.2%) have populations of fewer then 50,000 and

[[Page 77943]]

1,498 have populations of 500,000 or more. Thus, we estimate the number 
of small governmental jurisdictions overall to be approximately 84,098 
or fewer.
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    \6\ 5 U.S.C. 601(4).
    \7\ Independent Sector, The New Nonprofit Almanac and Desk 
Reference (2002).
    \8\ 5 U.S.C. 601(5).
    \9\ U.S. Census Bureau, Statistical Abstract of the United 
States: 2000, Section 9, pages 299-300, Tables 490 and 492.
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    27. In the 2 GHz band, the rules adopted in this Report and Order 
affect licensees in the Television BAS, the Local Television 
Transmission Service (``LTTS''), and the Cable Television Relay Service 
(``CARS'').
    BAS. This service uses a variety of transmitters to relay broadcast 
programming to the public (through translator and booster stations) or 
within the program distribution chain (from a remote news gathering 
unit back to the stations). There are approximately 712 TV BAS 
licensees in the 1990-2110 MHz band, and these licensees will 
ultimately be required to use only the 2 GHz portion of that band.\10\ 
It is unclear how many of these will be affected by our new rules.
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    \10\ The IRFA mistakenly listed the number of TV BAS licensees 
for the sub-band 1990-2025 MHz rather than for the entire band 1990-
2110 MHz. There are approximately 144 more licensees in the entire 
band than in the sub-band.
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    The Commission has not developed a definition of small entities 
specific to BAS licensees. The U.S. Small Business Administration (SBA) 
has developed small business size standards, as follows: For TV BAS, we 
use the size standard for Television Broadcasting, which consists of 
all such companies having annual receipts of no more than $12.0 
million.\11\ According to Census Bureau data for 1997, there were 906 
Television Broadcasting firms, total that operated for the entire 
year.\12\ Of this total, 734 firms had annual receipts of $9,999,999.00 
or less and an additional 71 had receipts of $10 million to 
$24,999,999.00.\13\ Thus, under this standard, the majority of firms 
can be considered small.
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    \11\ 13 CFR 121.201, NAICS code 515120.
    \12\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Receipts Size of Firms Subject to Federal Income Tax; 
1997,'' Table 4, NAICS code 515120 (issued Oct. 2000).
    \13\ Id. The census data do not provide a more precise estimate.
---------------------------------------------------------------------------

    CARS. There are nine CARS mobile licensees in the 1990-2110 MHz 
band, and these licensees will ultimately be required to use only the 2 
GHz portion of that band.\14\ It is unclear how many of these will be 
affected by our new rules. The SBA has developed a small business size 
standard for Cable and other Program Distribution, which consists of 
all such companies having annual receipts of no more than $12.5 
million.\15\ According to Census Bureau data for 1997, there were 1,311 
firms within the industry category Cable and Other Program 
Distribution, total, that operated for the entire year.\16\ Of this 
total, 1,180 firms had annual receipts of $9,999,999.00 or less, and an 
additional 52 firms had receipts of $10 million to $24,999,999.00.\17\ 
Thus, under this standard, the majority of firms can be considered 
small.
---------------------------------------------------------------------------

    \14\ The IRFA mistakenly listed the number of CARS licensees for 
the sub-band 1990-2025 MHz rather than for the entire band 1990-2110 
MHz. However, the number of CARS licensees is the same in the sub-
band as in the entire band.
    \15\ Id. at NAICS code 515120.
    \16\ Id.
    \17\ Id. The census data do not provide a more precise estimate.
---------------------------------------------------------------------------

    LTTS. There are 34 LTTS licensees in the 1990-2110 MHz band, and 
these licensees will ultimately be required to use only the 2 GHz 
portion of that band.\18\ It is unclear how many of these will be 
affected by our new rules. The Commission has not yet defined a small 
business with respect to local television transmission services. For 
purposes of this FRFA, we will use the SBA's definition applicable to 
Cellular and Other Wireless Telecommunications--i.e., an entity with no 
more than 1,500 persons.\19\ According to Census Bureau data for 1997, 
there were 977 firms in this category, total, that operated for the 
entire year.\20\ Of this total, 965 firms had employment of 999 or 
fewer employees, and an additional 12 firms had employment of 1,000 
employees or more.\21\ Thus, under this size standard, the majority of 
firms can be considered small.
---------------------------------------------------------------------------

    \18\ The IRFA mistakenly listed the number of LTTS licensees for 
the sub-band 1990-2025 MHz rather than for the entire band 1990-2110 
MHz. However, the number of LTTS licensees in each band differs by 
only one.
    \19\ 13 CFR 121.201, NAICS code 517212.
    \20\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Employment Size of Firms Subject to Federal Income 
Tax: 1997,'' Table 5, NAICS code 517212 (issued Oct. 2000).
    \21\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is ``Firms with 1,000 
employees or more.''
---------------------------------------------------------------------------

    In the band 2360-2390 MHz, the rules adopted in this Report and 
Order are not expected to impact licensees of flight test stations, 
except to provide those licensees continued access to the sub-band 
2385-2390 MHz. That is, Federal and non-Federal Government licensees of 
flight test stations have long shared the band 2360-2390 MHz and our 
new rules essentially return the sub-band 2385-2390 MHz to its state 
prior to reallocation. The additional flexibility given to Federal 
Government users is not expected to impact licensees of flight test 
stations because this use would be on a secondary basis.
    In the band 2390-2400 MHz, the rules adopted in this Report and 
Order are not expected to greatly impact licensees in the amateur 
service. Federal and non-Federal Government use of the band 2390-2395 
MHz is expected to occur at only a limited number of aeronautical 
telemetry ranges in remote areas. We have reviewed our files and have 
found that no unlicensed PCS device has been authorized in the band 
2390-2400 MHz.

D. Description of Reporting, Recordkeeping, and Other Compliance 
Requirements for Small Entities

    28. The new rules require that DOD coordinate a request for use of 
frequencies in the 2 GHz band prior to submitting an application to the 
Commission through the Frequency Assignment Subcommittee of the 
Interdepartment Radio Advisory Committee of the National 
Telecommunications and Information Administration. Commission licensees 
may choose to conduct studies or incur other expenses during the 
coordination process.\22\ This will entail costs typically associated 
with the coordination process. In addition, we observe that DOD will be 
the party initiating coordination.
---------------------------------------------------------------------------

    \22\ See Seventh Report and Order ] 27.
---------------------------------------------------------------------------

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

    29. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed 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.\23\
---------------------------------------------------------------------------

    \23\ 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    30. We are requiring that the 11 DOD earth stations that will 
operate in the 2 GHz band prior coordinate their frequency use with 
existing TV BAS licensees. Such a requirement will ensure that these 
earth stations operate in a manner that minimizes the potential of 
causing harmful interference. This action is expected to protect 
incumbent BAS, LTTS, and CARS systems from service disruptions caused 
by receiving harmful interference. Some commenters recommended that we 
not relocate these

[[Page 77944]]

earth stations to the 2 GHz band,\24\ but we find that such relocation 
will not adversely impact incumbents and is essential to facilitate the 
introduction of AWS.
---------------------------------------------------------------------------

    \24\ See, e.g., comments of the Society of Broadcast Engineers, 
Inc., as described in the Seventh Report and Order ] 20.
---------------------------------------------------------------------------

F. Report to Congress

    31. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, SHALL SEND a copy of this Report and 
Order, including the Final Regulatory Flexibility Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.

Ordering Clauses

    32. Pursuant to Sections 1, 4(i), 7(a), 302(a), 303(f), and 303(g) 
of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 
157(a), 302(a), 303(f), and 303(g), this Seventh Report and Order IS 
ADOPTED and that parts 1, 2, 15, 27, 87, and 97 of the Commission's 
Rules ARE AMENDED as specified in rules section, effective 30 days 
after publication in the Federal Register.

Congressional Review Act

    33. The Commission will send a copy of the Seventh Report and Order 
including FRFA, in a report to be sent to Congress and the Government 
Accountability Office (GAO) pursuant to the Congressional Review Act, 
see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Parts 1, 2, 15, 27, 87, and 97

    Radio.

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 1, 2, 15, 27, 87, and 97 to read as 
follows:

PART 1--PRACTICE AND PROCEDURE

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

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309, 
and 325(e).


Sec.  1.948  [Amended]

0
2. Section 1.948 is amended by removing and reserving paragraph 
(j)(1)(xiv).

0
3. Section 1.1307(b)(1) is amended by revising the entry for ``Wireless 
Communications Service (part 27)'' to read as follows:


Sec.  1.1307  Actions that may have a significant environmental effect, 
for which Environmental Assessments (EAs) must be prepared.

* * * * *
    (b) * * *
    (1) * * *

  Table 1.--Transmitters, Facilities and Operations Subject to Routine
                        Environmental Evaluation
------------------------------------------------------------------------
    Service (title 47 CFR rule part)        Evaluation requirement if:
------------------------------------------------------------------------
 
                              * * * * * * *
Wireless Communications Service (part    (1) for the 1390-1392 MHz, 1392-
 27).                                     1395 MHz, 1432-1435 MHz, and
                                          1670-1675 MHz bands:
                                         Non-building-mounted antennas:
                                          height above ground level to
                                          lowest point of antenna < 10 m
                                          and total power of all
                                          channels > 2000 W ERP (3280 W
                                          EIRP).
                                         Building-mounted antennas:
                                          total power of all channels >
                                          2000 W ERP (3280 W EIRP).
                                         (2) for the 746-764 MHz, 776-
                                          794 MHz, 2305-2320 MHz, and
                                          2345-2360 MHz bands
                                         Total power of all channels >
                                          1000 W ERP (1640 W EIRP).
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *


Sec.  1.9005  [Amended]

0
4. Section 1.9005 is amended by removing and reserving paragraph (p).

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

0
5. 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
6. Section 2.106, the Table of Frequency Allocations, is amended as 
follows:
0
a. Revise pages 47, 48, 49 and 51.
0
b. In the list of United States (US) footnotes, revise footnotes US276 
and US346, remove US363, and add footnote US393.
0
c. In the list of non-Federal Government (NG) footnotes, remove 
footnote NG174.
0
d. In the list of Federal Government (G) footnotes, revise footnotes 
G2, G120, and G122.
    The revisions and additions read as follows:


Sec.  2.106  Table of Frequency Allocations.

* * * * *
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[[Page 77946]]


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[[Page 77947]]


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[[Page 77948]]


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* * * * *

United States (US) Footnotes

* * * * *
    US276 Except as otherwise provided for herein, use of the band 
2360-2395

[[Page 77949]]

MHz by the mobile service is limited to aeronautical telemetering and 
associated telecommand operations for flight testing of aircraft, 
missiles or major components thereof. The following three frequencies 
are shared on a co-equal basis by Federal and non-Federal stations for 
telemetering and associated telecommand operations of expendable and 
reusable launch vehicles whether or not such operations involve flight 
testing: 2364.5 MHz, 2370.5 MHz, and 2382.5 MHz. All other mobile 
telemetering uses shall be secondary to the above uses.
* * * * *
    US346 Except as provided for below and by footnote US222, Federal 
use of the band 2025-2110 MHz by the space operation service (Earth-to-
space), Earth exploration-satellite service (Earth-to-space), and space 
research service (Earth-to-space) shall not constrain the deployment of 
the Television Broadcast Auxiliary Service, the Cable Television Relay 
Service, or the Local Television Transmission Service. To facilitate 
compatible operations between non-Federal terrestrial receiving 
stations at fixed sites and Federal earth station transmitters, 
coordination is required. To facilitate compatible operations between 
non-Federal terrestrial transmitting stations and Federal spacecraft 
receivers, the terrestrial transmitters in the band 2025-2110 MHz shall 
not be high-density systems (see Recommendations ITU-R SA.1154 and ITU-
R F.1247). Military satellite control stations at the following sites 
shall operate on a co-equal, primary basis with non-Federal operations:

------------------------------------------------------------------------
                 Facility                            Coordinates
------------------------------------------------------------------------
Naval Satellite Control Network, Prospect   44[deg] 24' 16'' N 068[deg]
 Harbor, ME.                                 00' 46'' W
New Hampshire Tracking Station, New Boston  42[deg] 56' 52'' N 071[deg]
 AFS, NH.                                    37' 36'' W
Eastern Vehicle Check-out Facility & GPS    28[deg] 29' 09'' N 080[deg]
 Ground Antenna & Monitoring Station, Cape   34' 33'' W
 Canaveral, FL.
Buckley AFB, CO...........................  39[deg] 42' 55'' N 104[deg]
                                             46' 36'' W
Colorado Tracking Station, Schriever AFB,   38[deg] 48' 21'' N 104[deg]
 CO.                                         31' 43'' W
Kirtland AFB, NM..........................  34[deg] 59' 46'' N 106[deg]
                                             30' 28'' W
Camp Parks Communications Annex,            37[deg] 43' 51'' N 121[deg]
 Pleasanton, CA.                             52' 50'' W
Naval Satellite Control Network, Laguna     34[deg] 06' 31'' N 119[deg]
 Peak, CA.                                   03' 53'' W
Vandenberg Tracking Station, Vandenberg     34[deg] 41' 21'' N 120[deg]
 AFB, CA.                                    30' 07'' W
Hawaii Tracking Station, Kaena Pt, Oahu,    21[deg] 33' 44'' N 158[deg]
 HI.                                         14' 31'' W
Guam Tracking Stations, Anderson AFB, and   13[deg] 36' 54'' N 144[deg]
 Naval CTS, Guam.                            51' 18'' E
------------------------------------------------------------------------

* * * * *
    US393 In the band 2025-2110 MHz, the military services may operate 
stations in the fixed and mobile except aeronautical mobile services on 
a secondary and coordinated basis at the following sites:

 
------------------------------------------------------------------------
                                                           Radius of
              Site                    Coordinates       operation (km)
------------------------------------------------------------------------
Nellis AFB, NV..................  36[deg] 14' N       80
                                   115[deg] 02' W.
China Lake, CA..................  35[deg] 41' N       50
                                   117[deg] 41' W.
Ft. Irwin, CA...................  35[deg] 16' N       50
                                   116[deg] 41' W.
Pacific Missile Test Range/Pt.    34[deg] 07' N       80
 Mugu, CA.                         119[deg] 30' W.
Yuma, AZ........................  32[deg] 32' N       80
                                   113[deg] 58' W.
White Sands Missile Range, NM...  33[deg] 00' N       80
                                   106[deg] 30' W.
------------------------------------------------------------------------

* * * * *

Federal Government (G) Footnotes

* * * * *
    G2 In the bands 216-225 MHz, 420-450 MHz (except as provided by 
US217 and G129), 890-902 MHz, 928-942 MHz, 1300-1390 MHz, 2310-2390 
MHz, 2417-2450 MHz, 2700-2900 MHz, 5650-5925 MHz, and 9000-9200 MHz, 
the Federal radiolocation service is limited to the military services.
* * * * *
    G120 Development of airborne primary radars in the band 2360-2390 
MHz with peak transmitter power in excess of 250 watts for use in the 
United States is not permitted.
    G122 In the bands 2395-2400 MHz, 2402-2417 MHz, and 4940-4990 MHz, 
Federal operations may be authorized on a non-interference basis to 
authorized non-Federal operations, but shall not hinder the 
implementation of any non-Federal operations.
* * * * *

PART 15--RADIO FREQUENCY DEVICES

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

    Authority: 47 U.S.C. 154, 302a, 303, 304, 307, 336, and 544a.


0
8. Section 15.301 is revised to read as follows:


Sec.  15.301  Scope.

    This subpart sets out the regulations for unlicensed personal 
communications services (PCS) devices operating in the 1920-1930 MHz 
band.

0
9. Section 15.303 is amended by revising paragraph (g) to read as 
follows:


Sec.  15.303  Definitions.

* * * * *
    (g) Personal Communications Services (PCS) Devices [Unlicensed]. 
Intentional radiators operating in the frequency band 1920-1930 MHz 
that provide a wide array of mobile and ancillary fixed communication 
services to individuals and businesses.
* * * * *


Sec.  15.319  [Amended]

0
10. Section 15.319 is amended by removing and reserving paragraph (a).


Sec.  15.321  [Removed and Reserved]

0
11. Section 15.321 is removed and reserved.

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
12. The authority citation for part 27 continues to read as follows:

    Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 
337, unless otherwise noted.


Sec.  27.1  [Amended]

0
13. Section 27.1 is amended by removing and reserving paragraph (b)(7).

[[Page 77950]]

Sec.  27.5  [Amended]

0
14. Section 27.5 is amended by removing and reserving paragraph (g).


Sec.  27.6  [Amended]

0
15. Section 27.6 is amended by removing and reserving paragraph (g).


Sec.  27.11  [Amended]

0
16. Section 27.11 is amended by removing and reserving paragraph (h).


Sec.  27.13  [Amended]

0
17. Section 27.13 is amended by removing and reserving paragraph (f).


Sec.  27.50  [Amended]

0
18. Section 27.50 is amended by removing and reserving paragraph (g).


Sec.  27.53  [Amended]

0
19. Section 27.53 is amended by removing and reserving paragraph (k).

Subpart K--[Removed]

0
20. Subpart K is removed and reserved.

PART 87--AVIATION SERVICES

0
21. The authority citation for part 87 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 307(e) unless otherwise noted.


0
22. Section 87.173 is amended by revising the entry in the table in 
paragraph (b) for ``2310-2390 MHz'' to read as follows:


Sec.  87.173  Frequencies.

* * * * *
    (b) Frequency table:

----------------------------------------------------------------------------------------------------------------
                                                                    Class of
             Frequency or frequency band                 Subpart     station                Remarks
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
2310-2395 MHz........................................          J      MA,FAT   Aeronautical telemetry and
                                                                                telecommand operations.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
23. Section 87.303 is amended by revising paragraph (d)(1) to read as 
follows:


Sec.  87.303  Frequencies.

* * * * *
    (d)(1) Frequencies in the bands 1435-1525 MHz and 2360-2395 MHz are 
assigned primarily for telemetry and telecommand operations associated 
with the flight testing of aircraft and missiles, or their major 
components. The bands 1525-1535 MHz and 2310-2360 MHz are also 
available for these purposes on a secondary basis. Permissible uses of 
these bands include telemetry and telecommand transmissions associated 
with the launching and reentry into the Earth's atmosphere, as well as 
any incidental orbiting prior to reentry, of objects undergoing flight 
tests. In the band 1435-1530 MHz, the following frequencies are shared 
with flight telemetry mobile stations: 1444.5, 1453.5, 1501.5, 1515.5, 
1524.5, and 1525.5 MHz. In the band 2360-2390 MHz, the following 
frequencies may be assigned on a co-equal basis for telemetry and 
associated telecommand operations in fully operational or expendable 
and re-usable launch vehicles, whether or not such operations involve 
flight testing: 2364.5, 2370.5 and 2382.5 MHz. In the band 2360-2395 
MHz, all other mobile telemetry uses are secondary to the above stated 
launch vehicle uses.
* * * * *

PART 97--AMATEUR RADIO SERVICE

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

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


0
25. Section 97.303(j)(2)(iii) is revised to read as follows:


Sec.  97.303  Frequency sharing requirements.

* * * * *
    (j) * * *
    (2) * * *
    (iii) The 2390-2417 MHz segment is allocated to the amateur service 
on a primary basis.
    (A) The 2390-2395 MHz segment is shared with Federal and non-
Federal Government mobile services on a co-equal basis. See 47 CFR 
2.106, footnote US276.
    (B) Amateur stations operating in the 2400-2417 MHz segment must 
accept harmful interference that may be caused by the proper operation 
of industrial, scientific and medical equipment.
* * * * *
[FR Doc. 04-28420 Filed 12-28-04; 8:45 am]
BILLING CODE 6712-01-C