[Federal Register Volume 71, Number 119 (Wednesday, June 21, 2006)]
[Rules and Regulations]
[Pages 35550-35553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9592]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 25, and 87

[ET Docket No. 02-305, FCC 06-62]


World Radiocommunication Conferences Concerning Frequency Bands 
above 28 MHz

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document denies a Petition for Partial Reconsideration 
filed by AirTV Limited in response to the Commission's S-Band 
Allocation Order, which, inter alia, deleted the unused Broadcasting 
Satellite Service (BSS) allocation from the band 2500-2690 MHz and 
removed a related footnote from the Table of Frequency Allocations 
(Table). We continue to believe that the decision in the S-Band 
Allocation Order serves the public interest because it will prevent 
terrestrial licensees in the band 2500-2690 MHz from incurring the 
costs of mitigating the interference expected from BSS systems, such as 
the one proposed by AirTV.

DATES: Effective July 21, 2006.

FOR FURTHER INFORMATION CONTACT: Patrick Forster, Office of Engineering 
and Technology, Policy and Rules Division, (202) 418-7061, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, ET Docket No. 02-305, FCC 06-62, adopted May 3, 
2006 and released May 8, 2006. The full text of this document is 
available on the Commission's Internet site at http://www.fcc.gov. It 
is also available for inspection and copying during regular business 
hours in the FCC Reference Center (Room CY-A257), 445 12th Street., 
SW., Washington, DC 20554. The full text of this document also may be 
purchased from the Commission's duplication contractor, Best Copy and 
Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, 
DC 20554; telephone (202) 488-5300; fax (202) 488-5563; e-mail 
[email protected].

Summary of the Order on Reconsideration

    1. In the Order on Reconsideration, the Commission denies a 
Petition for Partial Reconsideration (Petition) filed by AirTV Limited 
(AirTV) in response to the Commission's S-Band Allocation Order, which, 
inter alia, deleted the unused Broadcasting Satellite Service (BSS) 
allocation from the band 2500-

[[Page 35551]]

2690 MHz and removed a related footnote from the Table of Frequency 
Allocations (Table). We continue to believe that the decision in the S-
Band Allocation Order is necessary to prevent terrestrial licensees in 
the band 2500-2690 MHz from incurring the costs of mitigating the 
interference expected from BSS systems, such as the one proposed by 
AirTV.
    2. On January 22, 2004, AirTV filed its Petition seeking 
reinstatement of the BSS allocation in the band 2520-2670 MHz and 
expansion of the BSS allocation in that band through deletion of 
footnote NG101. On February 9, 2004, we released a public notice 
seeking comment on AirTV's Petition, 69 FR 7484 February 17, 2004. The 
Wireless Communications Association International, Inc. (WCA) filed an 
opposition (Opposition) to AirTV's Petition on March 3, 2004. In 
addition, both AirTV and WCA submitted additional pleadings in the 
record.
    3. Pursuant to Sec.  1.429(a) of the Commission's rules, any 
interested party may petition for reconsideration of a final action in 
a Commission proceeding. Section 1.429(b) states that a petition for 
reconsideration which relies on facts which have not previously been 
presented to the Commission will be granted only if (1) the facts 
relied on relate to events which have changed since the last 
opportunity to present them to the Commission; (2) the facts relied on 
were unknown to the petitioner until after his last opportunity to 
present them to the Commission, and he could not through the exercise 
of ordinary diligence have learned of the facts in question prior to 
such an opportunity; or (3) the Commission determines that 
consideration of the facts relied on is required in the public 
interest.
    4. We first reject AirTV's apparent position that it bore no 
responsibility for demonstrating in the record that BSS systems, such 
as its proposed Direct-to-Aircraft (DTA) system, would not cause 
interference to terrestrial systems. We distinguish between a burden of 
proof, which AirTV mistakenly believes that we imposed upon it in the 
S-Band Allocation Order, and the burden of persuasion that is an 
integral part of any rulemaking proceeding. In the Notice of Proposed 
Rule Making, (``NPRM''), the Commission sought comment on the proposed 
deletion of an unused BSS allocation, and the record that was 
subsequently developed included pleadings setting forth reasons why we 
should adopt or reject the proposal. Because the Commission must make a 
rational connection between the facts found and the choice made, and 
provide a reasoned analysis to support its determination--and because 
in this case the comments contained conflicting stances--any interested 
party had a responsibility to weigh in with substantive and persuasive 
arguments in order to support its position. Thus, it was incumbent upon 
AirTV to offer substantive and persuasive comments that could counter 
both our tentative conclusion and other parties' pleadings that 
supported the proposed deletion of the allocation. In addition, 
however, we also now agree with WCA that AirTV's suggestion in its 
comments that the Commission should retain the BSS allocation, but 
without footnote NG101, was an inappropriate filing and amounts to the 
equivalent of a waiver request or a petition for further rulemaking. As 
such, it was incumbent on AirTV to show that its proposed DTA system 
would not interfere with terrestrial systems.
    5. In the S-Band Allocation Order, the Commission made the 
determination that deleting the BSS/Fixed Satellite Service (FSS) 
allocation would serve the public interest by preventing the potential 
disruption of Educational Broadband Service (EBS) and Broadband Radio 
Service (BRS) across the country, as well as by avoiding imposing high 
costs on terrestrial licensees to mitigate harmful interference from 
BSS and FSS services to terrestrial services. A review of the record on 
reconsideration gives us no reason to alter our conclusion. We do not 
find persuasive AirTV's argument that we should overturn our decision 
on the grounds that its proposed system would not produce 
``unacceptable interference'' to terrestrial systems because it would 
operate with power flux density (PFD) levels 10 dB below the PFD levels 
specified in International Telecommunication Union (ITU) Table 21-4. As 
the final product of a consultative process that involved input from a 
variety of working groups, ITU Table 21-4 sets forth maximum PFD levels 
at the Earth's surface produced by emissions from a satellite that are 
intended to promote sharing between BSS and terrestrial services in the 
band 2500-2690 MHz. We note, however, that other parties that have 
studied the potential for BSS interference to terrestrial systems in 
the band have discussed the possible interference mitigation measures 
that may be necessary with shared operations in the band. For example, 
in a liaison statement from ITU-R Study Groups Working Party (WP) 6S to 
WP 8F that AirTV did not cite, WP 6S indicates that all BSS systems, 
even if operated at PFD levels 10 dB below the levels specified in ITU 
Table 21-4 as AirTV proposed, will reduce the coverage area of 
terrestrial systems in the band 2630-2655 MHz. Similarly, the United 
Kingdom, within the framework of the European Conference of Postal and 
Telecommunications Administrations Electronic Communications Committee 
Project Team 1 (CEPT ECC/PT1), found that BSS systems, even if operated 
at the lower PFD levels proposed by AirTV, will result in reduced 
coverage area for terrestrial systems using the band 2630-2655 MHz. 
Even one of the Draft Recommendations cited by AirTV in support of its 
Petition expressly assumes that terrestrial stations will be employing 
mitigation techniques to counteract BSS systems' interference. All 
these studies predict the additional interference mitigation costs for 
terrestrial systems subjected to BSS interference would include, for 
example, the need to install additional base stations in order to 
restore any lost coverage area. Furthermore, because the studies by WP 
6S and the United Kingdom only consider BSS systems' interference 
potential to IMT-2000 terrestrial systems, the potential impact to 
existing BRS and EBS systems in the United States is actually greater 
than the impact predicted in those studies. This is due to the fact 
that existing BRS and EBS systems use receiving antennas with higher 
gain than the receiving antennas typically employed in IMT-2000 
systems.
    6. A closer examination of AirTV's proposed system gives us 
additional reason to conclude that it would impose interference 
mitigation burdens on incumbent terrestrial service operators. When we 
compare the interference-to-noise (I/N) ratios AirTV purports its 
system would produce with the ratios reported in the WP 6S and United 
Kingdom studies, we find that AirTV's I/N ratios closely approximate 
the I/N ratios that the WP 6S and the United Kingdom materials indicate 
will result in reduced coverage area and increased interference 
mitigation costs for terrestrial systems. Furthermore, the interference 
study that accompanied AirTV's Petition does not evaluate the 
interference potential of its proposed satellites at 55[deg] West 
Longitude and 96[deg] West Longitude, and does not compute the I/N 
ratios for elevation angles below 20[deg] for its proposed satellite at 
86[deg] West Longitude, where the interference potential from AirTV's 
proposed system to terrestrial systems is greatest. Satellite signals 
received at elevation angles below 20[deg] have the greatest potential 
to cause harmful interference to terrestrial

[[Page 35552]]

systems because the gain of the receiving antennas in these terrestrial 
systems increases as the elevation angle decreases below this angle. In 
this regard, the potential for interference from AirTV's system is most 
prevalent where AirTV's satellite signals would be received by 
terrestrial systems' receiving antennas at elevation angles less than 
20[deg], as WCA asserts, in Alaska and Hawaii, but also in portions of 
the Continental United States, including locations in Arizona, 
California, Nevada, Oregon, Washington, Idaho, Montana, North and South 
Dakota, Wyoming, Colorado, and Utah. An evaluation of the interference 
potential of AirTV's proposed system at elevation angles less than 
20[deg] shows that it would produce I/N ratios that exceed -6dB, which 
all parties have indicated will affect terrestrial operations in the 
band.
    7. For the foregoing reasons, we continue to believe that the 
Commission properly and rationally concluded that BSS systems will 
affect the coverage area and introduce potential interference 
mitigation costs for terrestrial systems. Although AirTV may plan to 
operate a system that generates PFD levels ``significantly below'' the 
maximum levels in Table 21-4 of the ITU Radio Regulations, that in 
itself does not mean that such operations will not have a significant 
effect on terrestrial users in the band. While Table 21-4 and the 
studies we discuss, above, set forth ways in which the band may be 
shared, it is a different matter to conclude that such shared use best 
serves the public interest here. In balancing the effect of such 
burdens on terrestrial licensees against the currently unused BSS 
allocation, the prospect of interference to terrestrial licensees that 
would affect their planning and deployment of systems weighs strongly 
against reinstating the unused BSS allocation. Accordingly, we continue 
to believe that it best serves the public interest to remove the 
allocation.
    8. Because we have determined that BSS systems will impose 
interference mitigation costs that we find unacceptable for terrestrial 
systems, we also reject AirTV's suggestion that the Commission could 
consider individual BSS applications on a case-by-case basis as 
impractical. This is especially relevant in light of the Commission's 
decisions to reband and add a mobile allocation to the band 2500-2690 
MHz that are anticipated to promote increased mobile use in these 
frequencies. Our restructuring of the band, with the enhanced 
flexibility targeted to facilitate new mobile and wireless broadband 
applications, is likely to make it more, rather than less, difficult to 
avoid interference from BSS systems to terrestrial systems. Moreover, 
based on our evaluation of AirTV's proposed system, we conclude that a 
BSS system will have minimal likelihood of success in overcoming these 
interference challenges. Were we to implement AirTV's suggestion to 
examine specific BSS system proposals on a case-by-case basis and 
address the appropriate terrestrial mitigation remedy for the 
interference such BSS systems would be expected to cause to terrestrial 
systems, we would introduce complexity, uncertainty, and the likelihood 
of increased costs for terrestrial operators in the band 2500-2690 MHz 
to build their systems with capabilities for mitigating possible 
interference from BSS operations. In exchange, we would introduce the 
prospect that, under certain circumstances that would have not been 
clearly demonstrated as of yet, it might be possible, at some point in 
the future, to deploy a BSS operation in the band that would not impose 
unacceptable interference mitigation costs on existing terrestrial 
systems.
    9. We also find AirTV's other arguments unpersuasive. We reject the 
argument that, in order to delete the unused BSS allocation, we need an 
affirmative showing from terrestrial licensees in the band that the BSS 
cannot coexist with existing terrestrial services. Our election in the 
Multichannel Video Distribution and Data Service (MVDDS) proceeding to 
require such an analysis does not mandate such an analysis every time 
we consider adding a new service. In addition, this is a case in which 
the Commission deleted, rather than added, a service allocation from a 
frequency band. Furthermore, the respective services contemplated by 
the parties would both involve ubiquitous mobile receivers. Given the 
challenges inherent in arranging compatible uses of such receivers, we 
see no point in requiring or reviewing further technical studies. The 
sharing scenario proposed is, in this case, not practicable. 
Consequently, we see no purpose in maintaining an allocation for BSS 
when we are not in a position to adequately protect BSS earth stations 
from interference.
    10. AirTV also contends for the first time, at this late date, that 
Sec.  7 of the Communications Act of 1934, as amended, requires parties 
that oppose the introduction of a new service in the band (and thus 
support the Commission's deletion of the BSS allocation in the band 
2500-2690 MHz) to demonstrate that the BSS was inconsistent with the 
public interest. As an initial matter, we note that that portion of the 
Act has been characterized as a broad policy statement reflecting 
congressional delegation on policy matters to the Commission's 
discretion. Furthermore, even if section 7 should be read to apply to 
the instant situation involving the deletion of an unused allocation, 
we nevertheless find that our decision is consistent with the 
provision's intent. Specifically, because we think that the BRS/EBS 
band, as recently restructured, holds great potential for the 
development of new services and technologies, it was consistent with 
the public interest for us to remove an allocation for a service (in 
this case, the BSS) that was not presently being offered and that, if 
deployed, could impose limitations on the rapid and robust deployment 
of new BRS and EBS technologies. Thus, our decision serves to encourage 
the provision of new technologies and services to the public, in 
furtherance of section 7's broad and general policies.
    11. We maintain our conclusion that deletion of the BSS allocation 
was not violative of international requirements, notwithstanding 
AirTV's arguments to the contrary. We note that the U.S. Schedule of 
Specific Commitments to the World Trade Organization (WTO) Basic 
Telecommunications Agreement includes an exemption from most-favored-
nation obligations for the Direct-to-Home Fixed-Satellite Service (DTH-
FSS), Direct Broadcast Satellite (DBS) service, and Digital Audio Radio 
Service (DARS). Under this exemption, the U.S. is not required to 
extend most-favored-nation treatment for these satellite services in 
evaluating coordination requests from foreign administrations for 
applications to transmit into the territory of the U.S. by non-U.S. 
satellite systems. In addition, nothing in the U.S. Schedule of 
Specific Commitments or in the Commission's decision implementing the 
WTO decision, however, limits the exempted satellite services to a 
specific frequency band, in particular the DBS frequency band. For this 
reason, the exemption applies to all signals transmitted or 
retransmitted by satellites that are intended for direct reception by 
the general public. Thus, we reject AirTV's assertion that, because BSS 
systems at 2500-2690 MHz are not part of the Commission's definition of 
DBS services in Sec.  25.201, the Commission's deletion of the BSS 
allocation from the band 2500-2690 MHz was precluded by the commitments 
the U.S. has under the WTO's General Agreement on Trade in Services 
(GATS). In addition, as we previously determined, under the

[[Page 35553]]

WTO's GATS, the U.S. may also limit new satellite authorizations when 
incumbent operations face potential interference. Furthermore, we agree 
with WCA's assertion that the Commission's decision to delete the BSS 
allocation does not discriminate against foreign licensees, because the 
decision affects both domestic and foreign systems in a non-
discriminatory fashion. This conforms to the WTO's GATS non-
discrimination policies.

Conclusion

    12. Having reexamined our allocation decision, we remain convinced 
that it was properly decided based on interference mitigation concerns. 
We continue to believe, that simultaneous operation of BSS and 
terrestrial systems at 2520-2670 MHz would require parties to address 
matters of technical compatibility in order to make use of the band. 
Thus, we continue to find that the public interest is served by our 
deletion of the unused BSS allocation, and that our decision will 
prevent terrestrial licensees from incurring the costs of evaluating 
and mitigating the interference that any proposed BSS deployment--
including the AirTV system examined herein--would be expected to cause 
to terrestrial systems.

Procedural Matters

    13. A Regulatory Flexibility Act analysis or certification, see 
generally 5 U.S.C 604-605, is not required because this order does not 
promulgate or revise any rules.

Ordering Clauses

    14. Pursuant to sections 4(i), 303(r), and 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 
405, and Sec.  1.429 of the Commission's Rules, 47 CFR 1.429, the 
Petition for Partial Reconsideration filed by AirTV Limited, is denied.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E6-9592 Filed 6-20-06; 8:45 am]
BILLING CODE 6712-01-P