[Federal Register Volume 70, Number 247 (Tuesday, December 27, 2005)]
[Rules and Regulations]
[Pages 76411-76414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24485]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 22

[WT Docket Nos. 03-103, 05-42; FCC 05-202]


Air-Ground Telecommunications Services

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission (``Commission'') resolves two 
petitions for reconsideration in this proceeding. Further, the 
Commission adopts certain reporting requirements that will require 
licensees who win an exclusive 3 MHz license to report to the 
Commission in order to enable the Commission to monitor the migration 
of their narrowband subscribers to a new broadband system.

DATES: Effective February 27, 2006.

FOR FURTHER INFORMATION CONTACT: Richard Arsenault, Chief Counsel, 
Mobility Division, Wireless Telecommunications Bureau, at 202-418-0920 
or via e-mail at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Order on 
Reconsideration portion (Order on Reconsideration) of the Commission's 
Order on Reconsideration and Report and Order, FCC 05-202, in WT Docket 
Nos. 03-103 and 05-42, adopted December 8, 2005, and released December 
9, 2005. Contemporaneous with this document, the Commission issues a 
Report and Order (published elsewhere in this publication). The 
complete text of this document is available for public inspection and 
copying from 8 a.m. to 4:30 p.m. Monday through Thursday or from 8 a.m. 
to 11:30 p.m. on Friday at the FCC Reference Information Center, 
Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. 
This document and all related Commission documents may also be 
purchased from the Commission's duplicating contractor, Best Copy and 
Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, 
or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When 
ordering documents from BCPI please provide the appropriate FCC 
document number (for example, FCC 05-202, Order on Reconsideration). 
The full text may also be downloaded at: http://www.fcc.gov. 
Alternative formats are available to persons with disabilities by 
sending an e-mail to [email protected] or call the Consumer & Governmental 
Affairs Bureau at 202-418-0530 (voice), or 202-418-0432 (tty).

Paperwork Reduction Act

    This Order on Reconsideration does not contain any new or modified 
information collections.

Synopsis of the Order on Reconsideration

    1. In the Report and Order in this proceeding, 70 FR 19293, April 
13, 2005, the Commission, inter alia, amended its 800 MHz commercial 
Air-Ground Radiotelephone Service band plan and service rules. Based on 
the band configuration proposals submitted by interested parties in the 
proceeding, the Commission decided to assign nationwide air-ground 
licenses under one of three alternative band configurations: (1) Band 
Plan 1, comprised of two overlapping, shared, cross-polarized 3 MHz 
licenses (licenses A and B, respectively), (2) Band Plan 2, comprised 
of an exclusive 3 MHz license and an exclusive 1 MHz license (licenses 
C and D, respectively), and (3) Band Plan 3, comprised of an exclusive 
1 MHz license and an exclusive 3 MHz license (licenses E and F, 
respectively), with the blocks at opposite ends of the band from the 
second configuration. Each of these band plans includes at least one 3 
MHz license, which the Commission determined would enable a new 
licensee to provide broadband service to the flying public.
    2. The Commission will award licenses to winning bidders for the 
licenses comprising the band plan that receives the highest aggregate 
gross bid, subject to long-form license application review. In order to 
further competition and ensure maximum use of this frequency band for 
air-ground services, no party will be eligible to hold more than one of 
the spectrum licenses being made available. We note that current 
bilateral agreements between the United States, Canada, and Mexico 
provide for coordinated use of air-ground frequencies over North 
American airspace and are based on a narrow bandwidth channel scheme, 
and therefore may need to be renegotiated to provide for more flexible 
use of this spectrum. The Commission decided not to permit a licensee 
to provide ancillary land mobile or fixed services in the 800 MHz air-
ground spectrum.
    3. Verizon Airfone Inc. (Verizon Airfone or Airfone) is the sole 
incumbent currently operating in the 800 MHz air-ground band. The 
Commission granted Verizon Airfone a non-renewable license for a five-
year term commencing on the effective date of the Report and Order. The 
Commission determined that in order to ensure that the air-ground 
spectrum can be used to provide broadband air-ground services to the 
public in the near future, it is imperative to clear the incumbent 
narrowband system from a minimum of three megahertz of spectrum as soon 
as reasonably practicable. The Commission concluded that Verizon 
Airfone's incumbent system must cease operations in the lower 1.5 MHz 
portion of each 2 MHz air-ground band within 24 months of the initial 
date of grant of any license, if band plan 1 or 2 is implemented; 
Verizon Airfone may relocate its incumbent operations to the upper 0.5 
MHz portion of each 2 MHz band and may continue to operate under the 
renewal authorization until the end of the five-year license term. If 
band plan 3 is implemented, Verizon Airfone's incumbent system must 
cease operations in the upper 1.5 MHz portion

[[Page 76412]]

of each 2 MHz air-ground band within 24 months of the initial date of 
grant of any new license; Verizon Airfone may relocate its incumbent 
operations to the lower 0.5 MHz portion of each 2 MHz band and may 
continue to operate under the renewal authorization until the end of 
the five-year license term.
    4. In this Order on Reconsideration, we address the Petition for 
Clarification and Reconsideration of the Report and Order in this 
proceeding, 70 FR 19293, April 13, 2005, filed by Space Data 
Corporation (Space Data). We deny Space Data's request to permit the 
provision of ancillary land mobile and fixed service in the 800 MHz 
air-ground band on a secondary basis. We grant Space Data's request to 
clarify that stratospheric platforms, such as high-altitude balloons, 
may be used to provide air-ground services in the band.
    5. In the Report and Order, the Commission prohibited the provision 
of ancillary land mobile and fixed services in the 800 MHz air-ground 
band. The Commission determined that, in light of the small amount of 
spectrum dedicated for commercial air-ground service (only four 
megahertz), the public interest would be best served by ensuring that 
the band is devoted to the provision of air-ground service. Space Data 
requests that we revisit this determination and permit licensees to 
provide ancillary land mobile and fixed service on a secondary basis in 
the band.
    6. We conclude that Space Data has failed to demonstrate sufficient 
grounds for revisiting the Commission's proscription on ancillary land 
mobile and fixed service use of the 800 MHz air-ground band. Ancillary 
use of the air-ground band could create the potential for harmful 
interference with users of adjacent spectrum bands. Space Data claims 
that because it proposes ancillary use of the band on a secondary 
basis, the potential for harmful interference can be readily addressed. 
We find that it is unnecessary to resolve the parties' claims regarding 
the potential for interference arising from ancillary land mobile and 
fixed operations. Rather, we conclude that the Commission's goal to 
promote the provision of new and innovative wireless services to the 
flying public, including broadband services, will be best served by 
requiring that the four megahertz of spectrum in the band be devoted to 
the provision of air-ground service.
    7. Space Data also requests clarification that balloon-borne 
stratospheric platforms may be used to provide air-ground 
communications services in the 800 MHz air-ground band. We confirm that 
stratospheric platforms, as described by Space Data, may be used to 
provide service in the 800 MHz air-ground band so long as licensees 
comply with the rules adopted in the Air-Ground Report and Order and 
other applicable rules.
    8. We also grant Space Data's request that we clarify that, if a 
licensee were to deploy stratospheric platforms in the band, those 
operations would be subject to the 12 watt peak effective radiated 
power limit for airborne mobile station transmitters set forth in new 
Section 22.867(a) of the Commission's rules. Together, these rules 
should ensure that any stratospheric operations in the band would not 
cause harmful interference to operations in adjacent spectrum bands.
    9. In addition, in this Order on Reconsideration, we deny the 
Petition for Partial Reconsideration of the Report and Order, filed by 
AirCell, Inc. (AirCell). Specifically, we deny AirCell's request to 
shorten from five to two years the term of the nonrenewable license 
granted to Verizon Airfone Inc. We also deny AirCell's request to 
abbreviate from two years to six months the transition period that the 
Commission adopted in order for Verizon Airfone to move its incumbent 
narrowband operations to one megahertz of spectrum in the 800 MHz air-
ground band, which period will commence on the grant date of the first 
new license in the band.
    10. AirCell claims that based on its experience as an air-ground 
service provider, relocation of Airfone's incumbent operations from 
four to one megahertz of spectrum could be concluded in six months. 
AirCell believes that Airfone's ground stations could be remotely 
retuned to operate on one megahertz in the band. According to Airfone, 
however, the software controlling each of its ground stations must be 
modified, tested, and deployed on-site, and each location needs to be 
evaluated for the possible installation of customized emission filters. 
AirCell assumes that moving Airfone's narrowband operations to one 
megahertz in the band would not require modification of end user 
equipment. Airfone's service, however, is installed on over 3,000 
general aviation, military, and Federal Government aircraft that cannot 
be remotely contacted for reprogramming and therefore would require a 
maintenance visit. In view of the foregoing, we find that there is no 
basis in the record to shorten the two-year transition period.
    11. AirCell also argues that the possibility that it could 
construct an air-ground system and begin to provide broadband service 
shortly after obtaining a license in the band warrants reducing the 
transition period to six months. Even if a new entrant could launch 
broadband service within a few months of obtaining a license in the 
band, the transition of Airfone's system to one megahertz in the band 
may be far more complex than envisioned by AirCell. In establishing the 
two-year transition period, the Commission carefully balanced the goal 
in this proceeding of enabling new entrants to deploy innovative 
wireless services to the flying public in the near future with the need 
for an orderly transition of Airfone's legacy narrowband system. We 
find no basis in the record to revisit the reasonableness of the 
decision reached in the Report and Order in weighing these competing 
public interest objectives.
    12. We also reject AirCell's assertion that the two-year transition 
period would somehow act as a perverse bidding credit for Airfone by 
allowing the company to bid on a ten-year license, while other auction 
participants would be bidding on licenses with an effective eight-year 
term. Even if Airfone were to obtain a new 3 MHz air-ground license, 
the company would have to move its incumbent narrowband operations from 
four to one megahertz of spectrum in the band before it could commence 
broadband operations. Moreover, if Airfone were to obtain either of the 
non-exclusive 3 MHz licenses comprising band plan 1, it and the other 
non-exclusive 3 MHz licensee would both have to wait the same interlude 
(the period it takes Airfone to move its incumbent operations) to 
commence service. Accordingly, we deny AirCell's request to reduce the 
transition period.
    13. Lastly, we note that AirCell has more recently urged the 
Commission to shorten the transition period to one year rather than six 
months. For all of the foregoing reasons, we also deny AirCell's 
request to reduce the transition period to one year.
    14. AirCell also argues that grant of the five-year license to 
Verizon Airfone is antithetical to the Commission's goal in this 
proceeding to promote competition in the 800 MHz air-ground band. To 
the contrary, the Commission granted Airfone a nonrenewable five-year 
license, rather than a renewable ten-year license, in order to promote 
the introduction of competition and new services in the 800 MHz air-
ground band.
    15. AirCell claims that if Airfone were to obtain an exclusive 3 
MHz license, the winner of the corresponding 1 MHz license could be 
prevented from commencing operations until the end of

[[Page 76413]]

the five-year license term. The Commission recognized this possibility 
in the Report and Order and noted that the holder of a 1 MHz license 
might have to share spectrum with Airfone's incumbent system until the 
end of the company's five-year license term.
    16. AirCell also argues that we should shorten the term of 
Airfone's license because, if band plan 1 is implemented (i.e., two 
overlapping 3 MHz licenses), the licensees would have to overlap their 
systems 100 percent while the incumbent system operates in one 
megahertz of the band. AirCell claims that, with 100 percent spectrum 
overlap, isolation between two 3 MHz networks would be degraded and the 
licensees would have to extensively coordinate site locations. The 
Commission granted Airfone a five-year license term (which commenced on 
May 13, 2005), rather than a ten-year license term, to promote the 
introduction of new services in the 800 MHz air-ground band. The 
possibility that full spectrum sharing--during the period from when 
Airfone transitions to one megahertz in the band and the end of 
Airfone's license term--may not be optimal does not cause us to 
reconsider this decision. We therefore reject AirCell's request to 
shorten the license term.
    17. AirCell states that, in order to help ensure that Airfone will 
timely conclude the transition of its incumbent narrowband operations 
from four to one megahertz of the 800 MHz air-ground band, we should 
establish milestones or benchmarks that Airfone must meet during the 
transition period and that we should require the company to regularly 
file reports regarding the status of the transition process. The 
process of transitioning Airfone's incumbent system and its general 
aviation subscribers to operate on one megahertz of the band will be 
more complex than envisioned by AirCell. We therefore conclude that 
imposing transition benchmarks or milestones that Airfone would have to 
meet by target dates would be impracticable and potentially burdensome.
    18. We agree with AirCell that we should require Airfone to file 
regular transition status reports. We find that such reports will serve 
the public interest by enabling the Commission to closely monitor the 
transition of Airfone's narrowband system and to ensure that the 
transition is timely effected. We hereby delegate authority to the 
Commission's Wireless Telecommunications Bureau to adopt specific 
reporting requirements and direct it to issue a Public Notice 
enumerating such requirements within 60 calendar days of the adoption 
of this Order on Reconsideration. We envision that each report will 
provide specific details regarding the status of Airfone's transition 
of its base stations and its subscribers' aircraft so that they may 
operate on one megahertz of the 800 MHz air-ground band. At a minimum, 
each report should provide the number and percentage of each type of 
aircraft (commercial, general aviation, and government) and base 
stations that have been transitioned to operate in the one megahertz 
portion of the band. Airfone must file its initial transition status 
report with the Commission six months from the date of the grant of any 
new license in the band and at each of the three six-month intervals 
thereafter. Airfone is not required to submit any classified 
information regarding government aircraft in its reports.
    19. In addition, if Verizon Airfone, or one of its affiliates, wins 
an exclusive 3 MHz license at auction, it shall include in each status 
report--and file additional reports at six-month intervals from the 
conclusion of the two-year transition period until the expiration of 
its five-year nonrenewable license--information regarding the 
transition of its existing subscribers from its narrowband system to a 
broadband system. We hereby delegate authority to the Commission's 
Wireless Telecommunications Bureau to adopt specific reporting 
requirements and direct it to issue a Public Notice enumerating such 
requirements within 60 calendar days of the grant of an exclusive 3 MHz 
license to Airfone. At a minimum, Airfone must specify the number and 
percentage of each type of aircraft (commercial, general aviation, and 
government) and base stations that have been configured to operate in 
the three megahertz portion of the band. The report must also delineate 
which aircraft have been transitioned from Airfone's 4 MHz narrowband 
system directly to a 3 MHz broadband system, and which aircraft have 
been transitioned from the 4 MHz narrowband system to a 1 MHz 
narrowband system and then to a 3 MHz broadband system. Airfone is not 
required to submit any classified information regarding government 
aircraft in its reports.

Ordering Clauses

    20. Pursuant to the authority contained in sections 1, 4(i), 11, 
303(r) and (y), 308, 309, and 332 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 161, 303(r), 303(y), 308, 309, and 332, 
this Order on Reconsideration and Report and Order is hereby Adopted.
    21. Pursuant to sections 1, 4(i), and 4(j) of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 154(j), and section 
1.429 of the Commission's rules, 47 CFR 1.429, that the Petition for 
Clarification and Reconsideration, filed by Space Data Corporation on 
May 13, 2005, Is granted in part and denied in part, to the extent 
indicated herein.
    22. Pursuant to sections 1, 4(i), and 4(j) of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 154(j), and section 
1.429 of the Commission's rules, 47 CFR 1.429, that the Petition for 
Partial Reconsideration, filed by AirCell, Inc. on May 13, 2005, Is 
denied.
    23. Pursuant to sections 1, 4(i), and 4(j) of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 154(j), and 
sections 0.201 and 0.331 of the Commission's rules, 47 CFR 0.201 and 
0.331, that the Wireless Telecommunications Bureau shall, within 60 
calendar days of the date of the adoption of this order, issue a Public 
Notice that specifies the reporting requirements imposed on Verizon 
Airfone pursuant to paragraph 21 of the Order on Reconsideration.
    24. Pursuant to sections 1, 4(i), and 4(j) of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 154(j), and 
sections 0.201 and 0.331 of the Commission's rules, 47 CFR 0.201 and 
0.331, that in the event an exclusive 3 MHz license is granted to 
Verizon Airfone, or an affiliate of Verizon Airfone, the Wireless 
Telecommunications Bureau shall, within 60 calendar days of the grant 
thereof, issue a Public Notice that specifies the reporting 
requirements imposed on Verizon Airfone pursuant to paragraph 22 of the 
Order on Reconsideration.
    25. Pursuant to sections 4(i), 303(c), 303(r), and 309(j) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(c), 
303(r) and 309(j), that part 22 of the Commission's rules Are amended 
as specified in Appendix B of the Report and Order, effective 60 days 
after publication in the Federal Register.
    26. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, Shall send a copy of the Order on 
Reconsideration and Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.


[[Page 76414]]


Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-24485 Filed 12-23-05; 8:45 am]
BILLING CODE 6712-01-P