[Federal Register Volume 71, Number 60 (Wednesday, March 29, 2006)]
[Proposed Rules]
[Pages 15658-15666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2926]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 06-49; FCC 06-24]


Amendment of the Commission's Part 90 Rules in the 904-909.75 and 
919.75-928 MHz Bands

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) undertakes a reexamination of the Commission's regulations 
governing the licensing and use of frequencies in the 904-909.75 and 
919.75-928 MHz portions of the 902-928 MHz band that are used for the 
provision of multilateration Location and Monitoring Service (M-LMS 
band). The reexamination of the M-LMS band is being conducted in order 
to consider whether M-LMS can be afforded a greater opportunity to 
provide services while ensuring continued access for other licensed and 
unlicensed uses that share this band. The Commission believes it is in 
the public interest to evaluate whether it is possible to revise the 
rules in a way that would promote more efficient and effective use of 
this spectrum.

DATES: Comments due on or before May 30, 2006. Reply comments are due 
on or before June 30, 2006.

ADDRESSES: You may submit comments, identified by WT Docket No. 06-49, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     E-mail: [email protected], and include the following words in 
the body of the message, ``get form.'' A sample form and directions 
will be sent in response.
     Mail: Federal Communications Commission, 445 12th Street, 
SW., Washington, DC 20554.
     Hand Delivery/Courier: 236 Massachusetts Avenue, NE., 
Suite 110, Washington, DC 20002.
     Accessible Formats: Contact the FCC to request reasonable 
accommodations (accessible format documents, sign language 
interpreters, CART, etc.) for filing comments either by e-mail: 
[email protected] or phone: 202-418-0530 or TTY: 202-418-0432.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.fcc.gov/cgb/ecfs including any 
personal information provided.

FOR FURTHER INFORMATION CONTACT: Michael Rowan, Special Counsel, 
Spectrum & Competition Policy Division, Wireless Telecommunications 
Bureau, Federal Communications Commission, 445 12th Street, SW., 
Portals I, Room 6315, Washington, DC 20554. Phone: (202) 418-1883.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM) in WT Docket No. 06-49 released March 7, 
2006. The complete text of the NPRM 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 a.m. on Friday at the FCC Reference Information Center, 
Portals II, 445 12th Street, SW., Room CY-09A257, Washington, DC 20554. 
The NPRM may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th 
Street, SW., Room CY-09B402, 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, FCC 06-24. The NPRM is 
also available on the Internet at the Commission's Web site through its 
Electronic Document Management System (EDOCS): http://hraunfoss.fcc.gov/edocs_public/SilverStream/Pages/edocs.html.
    Initial Paperwork Reduction Act of 1995 Analysis: This document 
does not contain proposed information collection requirements subject 
to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, 
therefore, it does not contain any proposed information collection 
burden ``for small business concerns with fewer than 25 employees,'' 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4).

I. Introduction

    1. This rulemaking proceeding considers possible measures that 
could introduce greater flexibility for licensees in the 
multilateration Location and Monitoring Service (M-LMS) for the purpose 
of enabling greater responsiveness to changing market conditions, and 
more efficient and effective use of the M-LMS Band. M-LMS licensees 
provide service in the 904-909.75 and 919.75-928 MHz portions of the 
902-928 MHz band. Multilateration systems track and locate objects over 
a wide geographic area (e.g., tracking a bus fleet) by measuring the 
difference in time of arrival, or difference in phase, of signals 
transmitted from a unit to a number of fixed points, or from a number 
of fixed points to the unit to be located. This 14 megahertz of 
spectrum has been shared by a variety of part 15 devices and, since 
1995, has been licensed for specified uses by M-LMS defined in part 90 
of the Commission's rules. While the NPRM focuses on part 15 and M-LMS 
operations in the 904-909.75 and 919.75-928 MHz frequency ranges, the 
Commission acknowledges the many other important uses of these 
frequencies, including amateur use, and invites such interested parties 
to comment on the issues raised in the NPRM.
    2. Although the proceeding originates partly in response to a 2002 
Petition for Rulemaking, the Commission initiates this proceeding to 
evaluate the ability of the part 90 M-LMS rules to afford licensed 
service providers greater flexibility to respond to changing market 
conditions. On April 10, 2002, the Wireless Telecommunications Bureau 
(Bureau) issued a public notice seeking comment on the Petition under 
RM No. 10403. The Bureau subsequently extended the comment cycle on the 
Petition. Given the length of time that has passed since the Bureau 
issued its Public Notice, the Commission is terminating RM No. 10403 
and invites interested parties to submit new and/or updated comments 
and reply comments in WT Docket No. 06-49.
    3. While the Commission considers the advantages and disadvantages 
of rule changes that could facilitate higher-valued licensed uses of 
the spectrum in the M-LMS Band, the Commission is mindful that this 
band is shared by a mixture of licensed services (both federal and non-
federal), amateur radio operators, and numerous unlicensed devices 
authorized under part 15 of the

[[Page 15659]]

Commission's rules. The Commission makes clear at the outset of this 
proceeding that the Commission does not seek to alter the rules that 
govern the relationship among the various federal and non-federal 
licensed services in this band. Moreover, the Commission recognizes the 
importance of maintaining the existing accessibility of the band for 
unlicensed devices, which has led to a proliferation of important 
public, private, and consumer applications, and for amateur operators. 
Under 47 CFR 90.361of the Commission's rules, the Commission has 
established a ``safe harbor'' rule providing that part 15 and amateur 
operations that comply with certain technical parameters will not be 
considered to be causing harmful interference to M-LMS systems. The 
safe harbor rule defines technical parameters involving antenna 
location, gain, and height as well as transmitter power. Given the 
public interest benefits associated with these uses, the Commission 
tentatively concludes to retain this safe harbor.
    4. The Commission's goal in the proceeding is to consider whether 
greater opportunity can be afforded M-LMS licensees to provide services 
while ensuring continued access for other licensed and unlicensed uses 
that share this band. This spectrum has desirable propagation 
characteristics for mobile and other applications offered by both 
licensed service providers and certain unlicensed users. The Commission 
therefore believes it is in the public interest to evaluate whether it 
is possible to revise the rules in a way that would promote more 
efficient and effective use of this spectrum. The Commission also views 
this as an opportunity to consider the spectrum access needs of 
multiple users and to evaluate any proposals that may improve access 
and use of the band by both M-LMS and part 15 operations.

II. Background

    5. In 1995, the Commission issued a Report and Order, 60 FR 15248-
02, March 23, 1995, which established the Location and Monitoring 
Service (LMS) as a new radio service to be licensed in the 902-928 MHz 
spectrum band. This band is shared by a variety of users under a 
hierarchy of spectrum usage rights. Specifically, this band is 
allocated on a primary basis to federal radiolocation systems and 
Industrial, Scientific, and Medical (ISM) equipment. Federal fixed and 
mobile services are allocated on a secondary basis to federal 
radiolocation systems and ISM equipment. LMS licensees are allocated on 
a secondary basis to federal users and ISM devices and may not cause 
interference to and must tolerate interference from these users and 
devices. Amateur radio operations are allocated on a secondary basis to 
LMS. Finally, unlicensed devices are authorized under part 15 to use 
the 902-928 MHz band, but such devices are not afforded interference 
protection rights and may not cause harmful interference to LMS 
licensees, amateur operations, or other licensed systems. These 
unlicensed part 15 devices, which number in the millions, use this 
spectrum for a variety of purposes, including remote meter reading, 
utility load management, cordless telephones, wireless local area 
networks, and other diverse applications.
    6. To facilitate sharing of the band by multiple licensed services 
as well as unlicensed devices, the Commission placed certain 
limitations on M-LMS operations, including restrictions on the types of 
services that could be provided, in part to make for less-intensive 
location-based applications. The Commission anticipated that these M-
LMS service restrictions would spur the provision of new vehicle and 
other location services while also limiting the potential disruption to 
existing part 15 operations and other users from unrestricted M-LMS 
system operations. Specifically, the part 90 rules circumscribe the 
scope of permissible M-LMS service offerings such that licensees may 
only use non-voice radio techniques to determine the location and 
status of mobile radio units and may transmit status and instructional 
messages, either voice or non-voice, only so long as they relate to the 
location or monitoring functions of the system. In addition, M-LMS 
licensees are prohibited from using real-time interconnection with the 
public switched telephone network (PSTN), except for emergency 
communications sent to or received from a system dispatch point or 
public safety answering points. The Commission reasoned that these 
restrictions would ensure that LMS systems are utilized primarily for 
location service and not as a general messaging or interconnected voice 
or data service.
    7. Apart from restrictions designed to limit the scope and 
intensity of M-LMS services, and thereby maintain the coexistence of 
the many varied users of the band, other part 90 provisions also seek 
to facilitate spectrum sharing by regulating potential interference 
between M-LMS operations and part 15 devices. Thus, while unlicensed 
devices must generally avoid harmful interference to licensed services, 
the Commission adopted a safe harbor rule for unlicensed devices and 
amateur operations operating in the band. This rule provides that 
amateur and part 15 operations conforming to specified technical 
standards are insulated from claims that such devices cause harmful 
interference to M-LMS systems. Also, to facilitate coexistence of 
licensed and unlicensed uses, and in recognition of extensive existing 
part 15 use of the band, the Commission adopted a rule, 47 CFR 90.361, 
which requires M-LMS licensees to demonstrate through field tests that 
their systems do not cause unacceptable levels of interference to part 
15 devices. The Commission, however, did not adopt a uniform testing 
method given the varied technologies, and anticipated that M-LMS 
licensees and unlicensed users of part 15 devices would collaborate to 
establish consensus on testing guidelines.
    8. Although M-LMS services have not developed as anticipated in the 
M-LMS Band, users of unlicensed part 15 devices continue to find the 
902-928 MHz environment well suited for important applications that 
benefit consumers. Since adoption of the LMS rules, there has been 
continued growth in the use of unlicensed devices in this spectrum. 
Consumers and businesses benefit greatly from their ability to use 
unlicensed devices in the 902-928 MHz band, and such devices continue 
to operate effectively despite the assignment of higher-priority 
spectrum usage rights to M-LMS and other licensed uses of the band.

III. Discussion

    9. Since 1995, the Commission has sought to provide for, and 
encourage, the coexistence of both licensed and unlicensed uses in the 
M-LMS Band. While the unlicensed use of this band has successfully 
provided consumers with numerous spectrum-based products, the licensed 
plan for this band has not similarly led to the development of new 
services. In the NPRM, the Commission seeks comment on whether the 
Commission can take steps to provide M-LMS licensees additional 
flexibility to respond to changing market conditions while protecting 
other licensed applications and federal applications and minimizing 
interference to unlicensed users.
    10. The Commission seeks comment on the feasibility of modifying 
the part 90 LMS rules in ways that would provide greater flexibility to 
M-LMS licensees while maintaining continued access for unlicensed 
devices and other users in this band. The current M-LMS rules place 
significant restrictions on M-LMS operations that were designed

[[Page 15660]]

in large measure to limit interference among the variety of users 
within this band. The Commission inquires whether these restrictions 
might unnecessarily restrict the use of the band and impede more 
efficient use of spectrum. The Commission notes that these restrictions 
were in place at the time the licensees decided to acquire the M-LMS 
spectrum at auction. A consequence of these restrictions, however, has 
been that M-LMS licensees may be unnecessarily prevented from providing 
other services, even as technical advances and market demands change 
what may be feasible within the interference parameters established for 
this band. The Commission seeks comment on whether the existing 
restrictions may be impeding the development of more services of 
greater value to the public, as well as comment on the feasibility of 
changing certain rules to provide licensees additional flexibility.

A. Restrictions on Permissible Communications and Interconnection

    11. The Commission seeks comment on whether restricting M-LMS use 
to vehicle location and other location-based services continues to 
serve the public interest. Recent actions by the Commission have 
advanced the broader development of location-based services in other 
bands. Shortly after adoption of the M-LMS rules, the Commission 
adopted its initial E-911 rules, requiring all commercial mobile radio 
service (CMRS) carriers to meet standards for identifying the location 
of emergency callers and passing this information to the relevant 
public safety entities. In addition, there are several non-LMS service 
providers that offer location service to consumers and businesses. 
Under these circumstances, the Commission seeks comment on whether 
there is any public interest benefit associated with continuing to 
limit M-LMS service flexibility to promote vehicle and other location-
based services in the nation's transportation infrastructure? 
Alternatively, should the Commission maintain these restrictions to 
preserve M-LMS as essentially a location-based service, but provide 
licensees with some additional flexibility to offer their location-
based services by, e.g., eliminating spectrum aggregation constraints, 
testing conditions, or limits on non-vehicular offerings?
    12. Commenters should consider whether it is possible to replace 
some or all of the M-LMS service restrictions with more flexible rules 
that would allow licensees to provide additional services, provided 
they would not cause any significant increase in interference to other 
users in the band. Specifically, the Commission seeks comment on the 
extent to which stricter power limits or other technical restrictions, 
could limit the potential for interference between more flexible 
licensed use and existing unlicensed use of the M-LMS Band. Should M-
LMS licensees be permitted to provide any type of service, whether or 
not it is location-based, provided they comply with such limits? Would 
such an approach be more effective than existing use restrictions in 
promoting flexibility for M-LMS licensees, protecting other licensed 
and federal users, and minimizing interference to part 15 users? In 
addition, should the Commission eliminate limits on real time 
interconnection limiting such applications to emergency communications 
only?
    13. Assuming it is technically feasible to afford flexibility 
without major consequences to part 15 devices, are there reasons why 
the Commission should not extend to M-LMS additional flexibility to 
meet market demands? To what extent do existing restrictions impair (or 
not impair) the ability of M-LMS licensees to provide services that may 
be desired by the public? The Commission directs commenters to consider 
whether the interference environment in the M-LMS Band has changed 
since adoption of the M-LMS rules in 1995 and whether there are new 
technologies (such as innovations in frequency agility) that obviate 
the need for the M-LMS service or interconnection restrictions.
    14. Alternatively, if commenters believe that it would not be in 
the public interest to completely eliminate the restrictions on the 
types of services that may be offered, the Commission asks them to 
comment on the degree to which the Commission could or should relax the 
restrictions on permissible communications and type of interconnection. 
Should the Commission permit any type of location or location-based 
service? Or, should the Commission continue to limit M-LMS to vehicle 
location as a primary service and non-vehicular location only on an 
ancillary basis? Should the Commission afford M-LMS licensees the 
additional flexibility to provide new non-location based services, but 
not permit unrestricted real time interconnection? Could limits on real 
time interconnection be modified, if not eliminated, such that 
licensees could provide additional PSTN-oriented services while not 
increasing the potential for interference to users of part 15 devices 
in the band? If parties believe that any alteration of the status quo 
would create an unacceptable increase in the risk of interference, they 
should support their position with specific analysis demonstrating the 
degree to which other alternatives (presented here or by other parties) 
would impact their operations.
    15. The Commission notes that the part 2 Table of Allocations for 
the 902-928 MHz Band does not contain a general non-federal allocation, 
but a footnote to the table specifically references LMS. Note US218 to 
the U.S. Table of Allocations provides that the 902-928 MHz band is 
available for LMS provided that LMS systems do not cause harmful 
interference to federal stations, and that they tolerate interference 
from ISM devices and federal stations in the band. In this context, the 
Commission seeks comment on whether affording M-LMS licensees 
additional flexibility would require it to clarify or redefine the 
range of permissible communications by M-LMS licensees in the Table of 
Allocations. The Commission stresses that if this is required, the 
Commission does not propose to change the fundamental relationship 
between ISM and federal users, on the one hand, and M-LMS licensees on 
the other. Rather, the Commission only considers modification of 
Commission rules to promote additional flexibility for M-LMS while 
maintaining its allocation on a secondary basis to ISM devices and 
federal operations.
    16. The Commission also seeks comment regarding whether provisions 
of other rule parts should govern the provision of M-LMS services. For 
example, if the Commission decides to provide licensees the flexibility 
to provide a variety of services (e.g., fixed, mobile, etc.) under more 
than one regulatory status (i.e., common carrier, non-common carrier, 
private internal), should a M-LMS licensee then be subject to other 
regulatory requirements? The Commission seeks comment on any provisions 
in existing, part 90 M-LMS rules that may require specific recognition 
or adjustment to comport with the potential definition of an expanded 
scope of permitted M-LMS services. In addition, the Commission seeks 
comment on part 1 and any other wireless radio services rules that 
should be modified or updated to reflect a service-neutral approach to 
permissible M-LMS communications.

B. Power and Other Technical Limitations

    17. The Commission seeks comment on whether, by adopting stricter 
power limits for M-LMS licensees, the Commission can better serve the 
goal of

[[Page 15661]]

providing these licensees more flexibility while minimizing 
interference to these unlicensed devices. The Commission also solicits 
comment on any other technical approaches that could be used 
independently, or with a reduced M-LMS power limit, including possible 
technical approaches that are similar to the Commission's frequency 
hopping and digital modulation rules set forth in 47 CFR 15.247.
    18. The Commission believes any proposal to provide more 
flexibility to M-LMS licensees in terms of permissible services 
requires consideration of other rule revisions that may be necessary to 
minimize the potential for interference to part 15 devices in the M-LMS 
Band. The Commission seeks comment on whether revising existing power 
limits applicable to M-LMS licensees would achieve this goal. One 
factor in the potential for interference from M-LMS to part 15 
operations results from the difference in power between the potentially 
competing uses. Currently, M-LMS licensees are permitted a maximum of 
30 Watts effective radiated power (ERP), which equals 49.2 Watts 
equivalent isotropically radiated power (EIRP). Part 15 devices 
(utilizing spread-spectrum or wide digital emissions) may operate with 
parameters that result in a maximum permitted EIRP of 4 Watts in the 
902-928 MHz band. Because existing M-LMS licensees may operate with 
12.3 times as much power as part 15 devices, more flexible M-LMS 
operations could result in a significant increase in interference to 
nearby part 15 devices. Thus, reducing the maximum permitted M-LMS 
transmitter power across some minimum bandwidth could reduce the 
potential area around an individual M-LMS station where interference to 
part 15 devices is most likely.
    19. The Commission therefore seeks comment on the consequences of 
reducing the maximum permitted transmitter power in the three primary 
M-LMS band segments: 904.000-909.750 MHz, 919.750-921.750 MHz, and 
921.750-927.250 MHz. The Commission seeks specific comment on whether 
reducing the maximum permitted transmitter power of M-LMS in these 
segments, from the current limit of 30 Watts ERP to a new lower limit 
of 6.1 Watts ERP (which equals 10 Watts EIRP), would result in an 
environment where M-LMS stations operate on far more comparable power 
levels with part 15 devices, provided an appropriate minimum bandwidth 
or methodology is specified on how power would be measured for new 
flexible M-LMS operations. In this regard, the Commission notes the 
possibility of imposing a power spectral density requirement. In 
commenting on reduced M-LMS power limits, commenters should raise and 
discuss minimum bandwidths or other appropriate methodologies 
underlying the degree of power differentials. Under such a rule change, 
M-LMS licensees would be allowed to operate their stations with only 
2.5 times as much power as part 15 device users, rather than the 12.3 
times now permitted under Commission rules. The Commission seeks 
comment on whether this would sufficiently minimize the potential for 
interference to part 15 users, if the M-LMS service-based restrictions 
were modified or eliminated. Would reducing the maximum power from 30 
Watts ERP to 6.1 Watts ERP be sufficient by itself to mitigate the 
potential for interference? Is such a limitation more or less 
restrictive than the status quo, especially since M-LMS licensees may 
be permitted under current rules to provide packet-based, voice and 
other services that bypass the PSTN? If a commenting party believes 
that lowering the transmitter power limit to 6.1 Watts ERP is 
insufficient to address potential interference, or too great for M-LMS 
licensees to provide economically viable services to the public, it 
should specifically state what an appropriate power limit would be.
    20. Each of the three M-LMS block licenses has an associated 0.25 
megahertz channel (located in the 927.25 to 928 MHz portion of the 
band), which is subject to a current 300 Watts ERP (which equals 492 
Watts EIRP) power limit per transmitter. The Commission seeks comment 
on reducing these limits to a maximum 10 Watts ERP power limit for each 
channel to mitigate the potential for unreasonable interference to 
existing part 15 devices. The Commission also seeks comment on whether 
more flexible M-LMS operations could be provided at a power level 
higher than 10 Watts ERP on these channels without impairing the 
viability of unlicensed operations. In addition, the Commission seeks 
comment on whether the current field strength limit of 47 dBuV/m at the 
M-LMS licensee's EA boundary would continue to be reasonable, if the 
Commission adopts changes to the technical rules as contemplated 
herein.
    21. The Commission also seeks comment on other technical approaches 
that could be used independently or with these reduced M-LMS power 
limits. For example, the Commission seeks comment on whether to adopt 
technical rules for M-LMS operations that are similar to the frequency 
hopping and digital modulation rules set forth in section 15.247 of the 
Commission's regulations. Section 15.247 generally permits a higher 
than normal transmitting power for part 15 devices that use frequency 
hopping or digital emissions which cause the transmitted energy to be 
spread out across the band rather than concentrated in a relatively 
narrow bandwidth. Spread spectrum emissions mitigate potential 
interference, particularly to narrowband operations in the same 
spectrum, because not only do they cause less interference by inducing 
less energy into the receivers of such operations, but also because 
spread spectrum receivers have a much greater immunity to interfering 
signals. Commenters should address whether the Commission could allow 
the greater M-LMS service flexibility if stations were required to use 
spread spectrum or broadband digital emissions.
    22. If the Commission were to adopt rules similar to those set 
forth in section 15.247 and apply them to M-LMS, these licensees (with 
their 10.9 dB greater power than part 15 operations) could possibly use 
the same equipment (only with more power), be interoperable with part 
15-based services, and have common subscribers. The Commission seeks 
comment on the advantages or disadvantages of permitting M-LMS stations 
to provide the same types of services using the same technologies that 
part 15 devices already are permitted to use in the M-LMS Band. To the 
extent that a subset or all of the spectrum in this band could be used 
to accelerate the deployment of broadband through new technical 
provisions, the Commission seeks comment generally whether the public 
interest would be served.
    23. Under such an adaptation to the M-LMS rules, the Commission 
seeks comment on whether the spectral power density limit of section 
15.247, adjusted for the power levels for M-LMS stations (i.e., a 10 
Watt EIRP limit for M-LMS stations, which represents a 4 dB increase 
over the existing 4 Watt EIRP limit for part 15 devices), would 
satisfactorily eliminate unreasonable interference to part 15 
operations. Specifically, would a spectral power density limit of 12 
dBm per 3 kHz be technically reasonable and appropriate? The Commission 
also seeks comment on a minimum bandwidth for digital modulation 
(including direct sequence spread spectrum). Would the 6 dB emission 
bandwidth of 500 kHz used in section 15.247 also be technically 
reasonable and appropriate for M-LMS and permit part 15 devices to 
continue to use the M-LMS Band without unreasonable interference? 
Section

[[Page 15662]]

15.247 of the Commission's rules, 47 CFR 15.247, also includes 
provisions regarding occupancy time, and separate power limits based on 
the number of hopping channels used for frequency hopping spread 
spectrum devices. If the Commission were to adopt spread spectrum rules 
for M-LMS that are similar to those in section 15.247 should M-LMS 
licensees be permitted to use frequency hopping spread spectrum 
modulation? If so, what power and other technical limits would be 
appropriate and enable users of part 15 devices to continue to operate 
in the band without unreasonable interference?
    24. In order to ensure that existing part 15 devices do not suffer 
any significant increase in interference from a flexible M-LMS service, 
the Commission asks parties to come forward with any other technical 
solutions that they would support in this context. The Commission notes 
ideas such as limiting the number of simultaneous M-LMS spread spectrum 
users to reduce the potential for interference to unlicensed users of 
the M-LMS Band, as well as limiting the duty cycle of non-spread 
spectrum emissions to reduce the potential for interference to 
unlicensed users. Would such limits protect primary band users (e.g., 
ISM devices and federal radiolocation service) while limiting adverse 
effects on users/services allocated on a secondary basis? The 
Commission invites comment on these and any other proposals. Besides 
power-related limits and measures, the Commission will consider any 
other proposals that would provide more flexibility to M-LMS than 
current rules. The Commission also seeks comment on whether allowing 
these stations to operate using such technologies at higher power 
levels than permitted generally under section 15.247 would raise any 
questions related to human exposure to electromagnetic radiation and 
whether they therefore should be subject to sections 2.1091 and 2.1093 
of the Commission rules, 47 CFR 2.1091, 2.1093.

C. M-LMS Spectrum Aggregation Limit

    25. The Commission's part 90 M-LMS rules provide that within an EA, 
a licensee may aggregate M-LMS spectrum in Blocks B (2.25 megahertz) 
and C (5.75 megahertz), for a total of 8 megahertz, but spectrum Block 
A (6 megahertz) may not be aggregated with these other blocks. The 
Commission notes that when adopting this aggregation restriction in 
1995, the Commission reasoned that the restriction would foster 
multiple M-LMS location service providers and technologies. Today, 
numerous types of location services exist using a variety of bands and 
technologies. The Commission therefore seeks comment on whether the 
original rationale for restricting aggregation of M-LMS licenses 
remains valid in the current communications marketplace.
    26. The Commission also seeks comment on whether eliminating the M-
LMS aggregation limits has the potential to reduce interference to 
other users of the M-LMS Band and facilitate the provision of new M-LMS 
services. For example, would eliminating this restriction increase the 
potential for unlicensed use and reduce the potential for interference 
by giving M-LMS licensees greater flexibility to choose among a greater 
pool of available frequencies? Or would permitting one provider to 
control all 14 megahertz of M-LMS spectrum in an EA make access for 
unlicensed devices in the 902-928 MHz band more difficult? For example, 
would it be more difficult for unlicensed users to frequency-hop, 
especially if PSTN interconnection by the M-LMS licensee were 
permitted? Finally, in considering whether to allow M-LMS aggregation, 
to what degree should the continued availability to part 15 operations 
of the 12 megahertz of non-multilateration LMS spectrum be a factor in 
the Commission's analysis?

D. Part 90 Safe Harbor for Secondary Operations

    27. As stated at the outset of the NPRM, the Commission tentatively 
concludes that the section 90.361 safe harbor provision should be 
retained. The Commission believes this rule effectively delineates 
rights and responsibilities such that the efficient sharing of the band 
can occur with limited potential for interference. The safe harbor 
provides a bright line for all parties, licensed and unlicensed, 
operating in this band. The Commission believes that defining the scope 
of unlicensed operations legally protected from claims of harmful 
interference by M-LMS licensees has served the public interest. In 
originally adopting this standard, the Commission explained that the 
safe harbor rule was the result of an extensive rulemaking record and 
careful consideration of all parties' interests. The Commission does 
not believe that there have been sufficient changes in the 902-928 MHz 
interference environment, or the Commission's policy objectives 
regarding use of the band by unlicensed part 15 devices and amateur 
radio licensees, to support a repeal of the safe harbor.
    28. Moreover, to provide M-LMS licensees with the flexibility of 
use, the Commission does not believe it is necessary to eliminate a 
provision that adds certainty for the multitude of users of part 15 
devices in this band. The Commission is cognizant of the competitive 
impact that elimination, or substantial modification, of the safe 
harbor standard could have on the large number of manufacturers and 
users of existing part 15 devices in the M-LMS Band. Elimination of the 
safe harbor provision could come at great cost to part 15 manufacturers 
and systems that have made investments in developing and deploying 
equipment within the safe harbor provision.
    29. Thus, the Commission proposes to retain the section 90.361 safe 
harbor provision as an effective standard that precisely defines part 
15 and amateur radio operators' rights relative to M-LMS licensees. The 
Commission seeks comment on this tentative conclusion. Parties who 
oppose this tentative conclusion should provide arguments that identify 
specific, alternative mechanisms that would provide the existing level 
of access for part 15 and amateur operations in this band, and they 
should provide specific economic and technological evidence supporting 
their proposals and views. In addition, parties supporting any 
modifications to the safe harbor that would be based on proximity to M-
LMS sites or other factors should offer proposed rules and specifically 
explain how such provisions would ensure the same degree of access for 
part 15 devices that exists today.

E. M-LMS Testing Condition

    30. Section 90.353(d) of the Commission's rules, 47 CFR 90.353(d), 
requires M-LMS licensees to ``demonstrate through actual field tests 
that their systems do not cause unacceptable levels of interference to 
47 CFR 15 devices.'' The Commission seeks comment on modifying or 
eliminating this part 90 regulation.
    31. Given the Commission's proposals discussed above to consider 
revisions to the M-LMS rules designed to facilitate shared use of the 
band, as well as the Commission's tentative conclusion to retain the 
part 15 safe harbor, the Commission seeks comment on whether the 
interference-testing requirement is necessary. Can reliance on well-
defined technical limits, instead of the testing requirement, 
facilitate the introduction of new services by M-LMS licensees without 
jeopardizing the ability of users of part 15 devices to continue to 
operate in the M-LMS Band? To what extent can technologies such as 
dynamic

[[Page 15663]]

frequency selection, spread spectrum, and others be adequate to avoid 
interference instead of field tests? Given these considerations, what 
would be the impact to part 15 operations of repealing the testing 
requirement? If the Commission decided to repeal the testing 
requirement, are there other technical limits (other than those 
described above) that the Commission should consider to mitigate 
interference concerns?
    32. The Commission also seeks comment on the costs and benefits of 
developing a more specific rule in place of the part 15 interference-
testing requirement. The testing requirement requires M-LMS licensees 
to consider existing systems of part 15 devices when designing and 
constructing their systems to minimize interference. Is this burden 
warranted given that users of part 15 devices do not have priority over 
M-LMS operations, and there is no database identifying the actual 
unlicensed users and operators? What effect would a modified and more 
specific testing condition have on the development and deployment of 
more flexible M-LMS equipment and services? Parties who favor retention 
of the testing requirement should explain why it remains necessary, and 
how it could be defined so that M-LMS licensees could readily assess 
whether they would cause unacceptable levels of interference to part 15 
devices.

F. Other Issues and Measures

    33. The Commission seeks comment generally on any further proposals 
that could allow greater flexibility while avoiding any significant 
increase in interference to part 15 operations. The Commission notes 
that the technical limitations are specifically intended to reduce the 
potential for interference in the band. Nonetheless, the potential 
remains, and conflicts among competing uses could result, because no 
one technical rule can guard against all interference, whether or not 
it is classified as legally harmful.
    34. Thus, the Commission seeks comment on how to maintain, and 
clarify or augment if necessary, the ability of M-LMS licensees and 
operators of part 15 devices to coexist in the M-LMS Band. Given the 
Commission's belief that the best course is to facilitate objective 
measurement of currently subjective assessments as to what may be 
``harmful,'' the Commission seeks comment generally on any other 
proposals that would be appropriate to reach an appropriate balance 
between multiple users. Would prior notification or other coordination 
measures be beneficial and appropriate to reach a balancing of 
interests? What about industry-run solutions or additional safe 
harbors? For example, should the Commission adopt a reciprocal safe 
harbor for M-LMS whereby M-LMS licensees would have some assurances 
against objections from operators of part 15 devices, yet included in 
the safe harbor could be certain conditions that M-LMS licensees would 
have to meet to ensure that they considered existing part 15 devices 
before deploying new services?
    35. In addressing the possible rule changes in the NPRM, the 
Commission asks parties to comment on the degree to which the part 15 
devices of interest here are operating in the 14 megahertz of spectrum 
in the M-LMS Band compared to operations in other portions of the band. 
The Commission intended to assign the 12 megahertz of non-
multilateration spectrum to portions of the band where amateur, 
federal, and part 15 use of the band is the greatest. Accordingly, the 
Commission requests information (e.g., including data points and 
relevant percentages of use where available) from interested parties 
using or manufacturing part 15 devices for operation in the M-LMS Band. 
For example, what percentage of a party's part 15 devices used to read 
meters, support WISP operations, etc. are designed or programmed to 
operate on the 904-909.75 and 919.75-928 MHz portions of the 902-928 
MHz band? If such data is available, it would also be helpful if 
parties, including those parties using authorized frequency-hopping 
devices, could provide information regarding the intensity, duration, 
etc. of actual operations on the 904-909.75 and 919.75-928 MHz as 
compared to other portions of the 902-928 MHz band.

IV. Procedural Matters

A. Regulatory Flexibility

    36. As required by the Regulatory Flexibility Act, 5 U.S.C. 603, 
the Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities of 
the policies and rules addressed in the NPRM. The IRFA is set forth in 
the Appendix. Written public comments are requested on the IRFA. These 
comments must be filed in accordance with the same filing deadlines as 
comments filed in response to the NPRM, and must have a separate and 
distinct heading designating them as responses to the IRFA.

B. Paperwork Reduction Act of 1995

    37. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. It does not, therefore, contain any new or modified 
``information collection burden for small business concerns with fewer 
than 25 employees,'' pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198. See 44 U.S.C. 3506(c)(4).

C. Ex Parte Presentations

    38. The rulemaking the NPRM initiates shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. Persons making oral ex parte presentations are reminded 
that memoranda summarizing the presentations must contain summaries of 
the substance of the presentations and not merely a listing of the 
subjects discussed. More than a one or two sentence description of the 
views and arguments presented generally is required. Other requirements 
pertaining to oral and written presentations are set forth in section 
1.1206(b) of the Commission's rules.

V. Initial Regulatory Flexibility Analysis

    39. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
considered in the NPRM, WT Docket No. 06-49. 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 the NPRM 
provided on page one of the NPRM. The Commission will send a copy of 
the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration (SBA). In addition, the NPRM and IRFA (or 
summaries thereof) will be published in the Federal Register.

A. Need for, and Objective of, the Proposed Rules

    40. This rulemaking proceeding considers possible measures that 
could introduce greater flexibility for licensees in the 
multilateration Location and Monitoring Service (M-LMS) for the purpose 
of enabling greater responsiveness to changing market conditions, more 
efficient and effective use of the M-LMS Band, and more robust 
secondary markets in radio spectrum usage rights. M-LMS licensees

[[Page 15664]]

provide service in the 904-909.75 and 919.75-928 MHz portions of the 
902-928 MHz band. This 14 megahertz of spectrum has been shared by a 
variety of part 15 devices and, since 1995, has been licensed for 
specified uses by M-LMS defined in part 90 of the Commission's rules. 
Multilateration systems track and locate objects over a wide geographic 
area (e.g., tracking a bus fleet) by measuring the difference in time 
of arrival, or difference in phase, of signals transmitted from a unit 
to a number of fixed points, or from a number of fixed points to the 
unit to be located.
    41. In the decade since M-LMS was established there has been very 
limited development of M-LMS under the existing rules. Specifically, 
when the Commission adopted its LMS rules in 1995, it expected that 
both M-LMS and non-multilateration LMS systems would play an integral 
role in the development and implementation of advanced radio 
transportation-related services. However, only two M-LMS licensees, 
Teletrac and Ituran, operate M-LMS systems, and these exist in only a 
small number of markets. Given these present circumstances, the 
Commission initiates this proceeding to determine whether new 
approaches could produce more efficient and effective use of the 904-
909.75 and 919.75-928 MHz spectrum band by LMS licensees.
    42. Through the NPRM, the Commission seeks to determine whether 
current M-LMS rules are limiting licensees from providing services that 
are desired in the market and that could be profitably deployed without 
causing harmful interference to other users. Specifically, the part 90 
rules circumscribe the scope of permissible M-LMS service offerings 
such that licensees may only use non-voice radio techniques to 
determine the location and status of mobile radio units and may 
transmit status and instructional messages, either voice or non-voice, 
only so long as they relate to the location or monitoring functions of 
the system. In addition, M-LMS licensees are prohibited from using 
real-time interconnection with the public switched telephone network 
(PSTN), except for emergency communications sent to or received from a 
system dispatch point or public safety answering points.
    43. The Commission seeks comment on whether it can promote more 
efficient use of the M-LMS Band by modifying or eliminating M-LMS 
restrictions on types of communication and interconnection, while 
avoiding any significant increase in interference to unlicensed users. 
The Commission also seeks comment on whether interference that might 
result from expanded service M-LMS offerings could be mitigated by 
adopting stricter power limits for M-LMS licensees, introducing 
frequency hopping, or altering digital modulation rules.
    44. In addition, the Commission seeks comment on whether 
eliminating the M-LMS aggregation limits has the potential to reduce 
interference to other users of the M-LMS Band and facilitate the 
provision of new M-LMS services. The Commission also seeks comment on 
its tentative conclusion that it should retain the part 90 safe harbor 
provision. Furthermore, the Commission seeks comment on whether 
reliance on well-defined technical limits, instead of the testing 
requirement, can facilitate the introduction of new services by M-LMS 
licensees without jeopardizing the ability of users of part 15 devices 
to continue to operate in the M-LMS Band.
    45. The Commission makes clear at the outset of this proceeding 
that it does not seek to alter the rules that govern the relationship 
among the various federal and non-federal licensed services in this 
band. It also recognizes the importance of maintaining the existing 
accessibility of the band for unlicensed devices and for amateur 
operators. The Commission's goal in this proceeding is to consider 
whether greater opportunity can be afforded M-LMS licensees to provide 
services while ensuring continued access for other licensed and 
unlicensed uses that share this band. In the following paragraphs, the 
Commission discusses the potential impact on small entities of 
proposals made in the NPRM to accomplish this goal.

B. Legal Basis

    46. The potential actions about which comment is sought in the NPRM 
would be authorized pursuant to the authority contained in sections 1, 
4(i), and 303(r) of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 154(i), and 303(r).

C. Description and Estimate of the Number of Small Entities Subject to 
the Rules

    47. 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.'' 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: (1) is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    48. The NPRM could result in rule changes that, if adopted, would 
create new opportunities and obligations for M-LMS licensees as well as 
operators and manufacturers of part 15 devices for unlicensed uses on 
the fourteen megahertz of spectrum that is shared with M-LMS in the 
902-928 MHz band.
    49. Multilateration Location and Monitoring Service (M-LMS). For 
purposes of auctioning LMS licenses, the Commission has defined a 
``small business'' as an entity that, together with controlling 
interests and affiliates, has average annual gross revenues for the 
preceding three years not exceeding $15 million. A ``very small 
business'' is defined as an entity that, together with controlling 
interests and affiliates, has average annual gross revenues for the 
preceding three years not exceeding $3 million. These definitions have 
been approved by the SBA. The Commission auctioned M-LMS licenses in 
1999 (Auction 21) and 2001 (Auction 39). As a result of the two 
auctions, six entities currently hold a total of 452 M-LMS licenses. 
Each one of these entities qualified as either a small business or a 
very small business.
    50. Part 15 Device Operators. The SBA has developed a small 
business size standard for ``Cellular and Other Wireless 
Telecommunications'' (CWT), which consists of firms having 1,500 or 
fewer employees. According to the latest Census Bureau data for this 
category, there are a total of 1,378 firms that have 999 or fewer 
employees. The Census does not provide data for the number of firms 
with 1,500 or fewer employees, but does indicate that nineteen firms 
have 1,000 or more employees. Consequently, even if all nineteen of 
these firms are part 15 device operators and have more than 1,500 
employees, the Commission estimates that the majority of businesses in 
the CWT category are small businesses that may be affected by rules and 
policies that could be adopted in this rulemaking.
    51. Part 15 Device Manufacturers. The SBA has developed small 
business size standards for two pertinent Economic Census categories, 
``Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing'' (RTB) and ``Other Communications Equipment 
Manufacturing,'' (OCE) (NAICS code 334290), both of which consist of 
all such companies having 750 or fewer

[[Page 15665]]

employees. According to the latest Census Bureau data, there are a 
total of 1,041 establishments in the RTB category. Of this total, 1,010 
establishments have 499 or fewer employees, thirteen establishments 
have between 500 and 999 employees, and eighteen establishments have 
1000 or more employees. Consequently, even if all thirteen 
establishments with between 500 to 999 employees have more than 750 
employees, the Commission estimates that the majority of businesses in 
the RTB category are small businesses that may be affected by the rules 
and policies that could be adopted in this rulemaking. Concerning the 
OCE category, the latest Census Data show that there are a total of 503 
establishments. Of this total, 493 establishments have 499 or fewer 
employees, seven establishments have between 500 and 999 employees, and 
three establishments have from 500 to 2,499 employees. Consequently, 
even if all seven establishments with 500-999 employees have more than 
750 employees, the Commission estimates that the majority of businesses 
in the OCE category are small businesses that may be affected by rules 
and policies that could be adopted in this rulemaking.
    52. Amateur Radio Operators. Amateur radio operators are not small 
businesses or small entities as defined by the RFA and the Commission's 
rules.

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

    53. The Commission seeks comment on reducing or eliminating certain 
recordkeeping obligations for M-LMS operators. Section 90.353(d)-(g) of 
the Commission's rules, 47 CFR 90.353(d)-(g), requires that M-LMS 
licensees operating in the 902-928 MHz band ``maintain whatever records 
are necessary'' and make such records ``available to the Commission 
upon request'' that demonstrate compliance with specified operating 
parameters designed to limit interference with part 15 devices. In 
particular, section 90.353(d) of the Commission's rules, 47 CFR 
90.353(d), requires M-LMS licensees to demonstrate through actual field 
tests that their systems do not cause unacceptable levels of 
interference to 47 CFR 15 devices. The Commission seeks comment on 
whether such testing and associated recordkeeping and reporting 
requirements are necessary if well-defined technical limits are put in 
place and the part 15 safe harbor provision is retained. The Commission 
does not seek comment on specific reporting or recordkeeping 
requirements, but, it seeks comment on whether M-LMS licensees should 
adhere to stricter power limits as a condition for relaxing the 
restrictions on the scope of services that M-LMS providers are 
permitted to offer.

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

    54. 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 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 and 
reporting requirements under the rule for such 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 such small 
entities.''
    55. The Commission invites comment on a number of alternatives to 
the current LMS rules that could modify or eliminate certain 
restrictions on the M-LMS service in order to provide M-LMS licensees 
greater flexibility to respond to changing market conditions. The 
Commission addresses alternative approaches to flexibility. These 
alternatives have been grouped according to five aspects of the current 
M-LMS service rules that affect flexible use for M-LMS licensees: (1) 
Restrictions on the scope of permissible communications and 
interconnection; (2) power and other technical limitations; (3) the M-
LMS spectrum aggregation limit; (4) the part 90 safe harbor for 
operations under parts 15 and 97; and (5) the M-LMS testing requirement 
and associated recordkeeping obligations.
    56. With respect to the limits on the scope of M-LMS services, the 
Commission seeks comment on whether there are any public interest 
benefits associated with relaxing or eliminating M-LMS restrictions on 
permissible communications (e.g., vehicle location as primary 
operation) and interconnection. The Commission seeks comment on 
alternatives ranging from partial to complete replacement of M-LMS 
service restrictions that prevent the provision of additional services. 
In particular, the Commission seeks comment on the benefit that each 
alternative could provide to M-LMS licensees (all of which qualify as 
small businesses), and how each alternative might impact small 
businesses that use or manufacture part 15 devices.
    57. The Commission seeks comment on alternative approaches to 
satisfying an expanded range of M-LMS service offerings while avoiding 
any significant increases in interference. For example, the Commission 
seeks comment on whether any such interference could be mitigated by 
reducing the allowable power levels at which M-LMS services could be 
offered. Another alternative to increase M-LMS licensee flexibility 
while reducing the likelihood of accompanying interference might be a 
relaxation or elimination of the M-LMS aggregation limit. The 
Commission seeks comment on the likely effect of this alternative on M-
LMS licensees (all of which qualify as small businesses), and any 
impact to small businesses that use or manufacture part 15 devices.
    58. Regarding the part 90 safe harbor provision, within which 
authorized operations under parts 15 and 97 of the Commission's rules 
will not be considered to be causing interference to an M-LMS operator, 
the Commission seeks comment on its tentative decision to retain this 
provision. The Commission states in the NPRM that it tentatively 
concludes that the safe harbor fosters efficient sharing of the band 
with limited interference, and it asks all parties that disagree to 
provide arguments that identify specific, alternative mechanisms that 
would provide the existing level of certainty in this band, and to 
provide specific economic and technological evidence supporting their 
proposals.
    59. Another alternative approach to increasing flexibility for M-
LMS licensees is to eliminate the testing and recordkeeping obligations 
associated with demonstrating that there is no unacceptable 
interference to part 15 devices. While these obligations previously 
have been deemed essential, the Commission seeks comment on whether 
they would be necessary if the testing rules were replaced by well-
defined technical limits while retaining the safe harbor provision.
    60. In addition to specific alternative approaches for expanding 
flexibility to M-LMS licensees while avoiding any significant increases 
in interference to part 15 devices, the Commission seeks comment on any 
additional approaches to accomplishing these dual goals. These include 
any other techniques and approaches that would better optimize the 
goals of this proceeding.

[[Page 15666]]

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

    61. None.

VI. Ordering Clauses

    62. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 4(i), and 303(r) of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 154(i), and 303(r), the notice of 
proposed rulemaking is hereby adopted.
    63. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the notice of proposed rulemaking, including the Initial 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 06-2926 Filed 3-28-06; 8:45 am]
BILLING CODE 6712-01-P