[Federal Register Volume 72, Number 147 (Wednesday, August 1, 2007)]
[Rules and Regulations]
[Pages 41937-41939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14882]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 15

[ET Docket No. 03-201; FCC 07-117]


Unlicensed Devices and Equipment Approval

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document dismisses two petitions for reconsideration of 
the rules adopted in this proceeding. It dismisses a petition filed by 
Warren C. Havens and Telesaurus Holdings GB LLC (``Havens'') requesting 
that the Commission suspend the rule changes adopted for unlicensed 
devices in the 902-928 MHz (915 MHz) band until such time as it 
completes a formal inquiry with regard to the potential effect of such 
changes to Location and Monitoring Service (LMS) licensees in the band. 
This document also dismisses a petition for reconsideration filed by 
Cellnet Technology (``Cellnet'') requesting that the Commission adopt 
spectrum sharing requirements in the unlicensed bands, e.g., a 
``spectrum etiquette,'' particularly in the 915 MHz band.

DATES: Effective August 31, 2007.

FOR FURTHER INFORMATION CONTACT: Hugh L. Van Tuyl, (202) 418-7506, e-
mail: [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Memorandum Opinion and Order, ET Docket No. 03-201, FCC 07-117, adopted 
June 19, 2007 and released June 22, 2007. 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

[[Page 41938]]

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 Memorandum Opinion and Order

    1. The Commission dismissed two petitions for reconsideration of 
the rules adopted in the Report and Order, 69 FR 54027, September 7, 
2004, in this proceeding. It dismissed a petition for reconsideration 
filed by Warren C. Havens and Telesaurus Holdings GB LLC (``Havens'') 
requesting that the Commission suspend the rule changes adopted for 
unlicensed devices in the 902-928 MHz (915 MHz) band until such time as 
it completes a formal inquiry with regard to the potential effect of 
such changes to Location and Monitoring Service (LMS) licensees in the 
band. The Commission also dismissed a petition for reconsideration 
filed by Cellnet Technology (``Cellnet'') requesting that the 
Commission adopt spectrum sharing requirements in the unlicensed bands, 
e.g., a ``spectrum etiquette,'' particularly in the 915 MHz band.
    2. Havens requested that the Commission suspend the rule changes 
adopted in this docket for unlicensed devices in the 915 MHz band until 
such time as the Commission completes a formal inquiry with regard to 
the potential effect of such changes to M-LMS licensees in the band and 
it determines either that there will be no material adverse effects or 
that it will allow counterbalancing changes (e.g., waivers or 
forbearance of LMS rules) to maintain the balance between higher power 
LMS systems and unlicensed devices. Havens does not specify which 
particular rule changes it believes should be suspended. In support of 
this request, Havens asserts that it cannot ``efficiently or 
effectively'' comply with rule Sec.  90.353(d) which requires that M-
LMS licensees design, construct and field test their systems to 
minimize adverse effects on part 15 devices if unlicensed devices 
operating in the band change as a result of the new rules adopted in 
the Report and Order. It claims that the new rules will lead to 
increased spectrum use of the 915 MHz band by unlicensed devices and 
thus will adversely affect M-LMS systems by changing the ``regulatory 
coexistence'' between part 15 and LMS operations (i.e., the balance of 
aggregate M-LMS systems and aggregate unlicensed devices) and by 
altering the premise of the ``safe harbor'' in rule Sec.  90.361 (i.e., 
that unlicensed devices would not operate in close proximity to M-LMS). 
Havens further alleges that the part 15 rule changes violate Sec.  15.5 
of the rules, which requires that unlicensed devices not interfere with 
licensed system operations.
    3. The Commission declines to suspend the part 15 rule changes 
adopted in the Report and Order or consider modifying the M-LMS rules 
as requested by Havens. The Commission notes that Havens did not raise 
any objections to any proposals in the Notice of Proposed Rule Making 
(NPRM), 68 FR 68823, September 17, 2003, during the pendancy of this 
proceeding. A petition for reconsideration that relies on facts not 
previously presented to the Commission will be granted only if: The 
facts relied on relate to events which have occurred or circumstances 
which have changed since the last opportunity to present them to the 
Commission; the facts relied upon were unknown to the petitioner until 
after his last opportunity to present them to the Commission, and he 
could not through the exercise of due diligence have learned of the 
facts in question prior to such opportunity; or the Commission 
determines that consideration of the facts relied on is required in the 
public interest. Havens does not address why it did not previously 
participate in this proceeding or claim that any of these three 
conditions are met in this case.
    4. The Commission's rules also require that a petition for 
reconsideration state with particularity the respects in which the 
petitioner believes the action taken should be changed. The Commission 
modified several part 15 rules that apply to unlicensed devices that 
may operate in the 915 MHz band, in addition to other frequency bands. 
Havens does not identify the particular rule changes that it believes 
should be suspended. Havens provides only a mere statement of belief 
that the rule changes in this proceeding will lead to increased use of 
part 15 devices in the 915 MHz band and thus will result in adverse 
effects on M-LMS operations. It provides no evidence or analysis to 
support this assertion. Finally, the Commission notes that Havens 
raised essentially the same arguments in its petition for 
reconsideration in ET Docket No. 99-231 concerning changes to the part 
15 rules for spread spectrum devices. The Commission rejected these 
same arguments in that proceeding. Accordingly, the Commission 
dismissed the Havens petition.
    5. The Commission recently initiated a proceeding to reexamine the 
rules for the M-LMS operating in the 904-909.75 MHz and 919.75-928 MHz 
portion of the 915 MHz band. See Amendment of the Commission's Part 90 
Rules in the 904-909.75 and 919.75-928 MHz Bands, Notice of Proposed 
Rulemaking in WT Docket No. 06-49, 21 FCC Rcd 2809 (2006), 71 FR 15658, 
March 29, 2006. That proceeding was originated by the Commission partly 
in response to a 2002 petition for rule making filed by Progeny LMS, 
LLC requesting changes to these rules. That proceeding is the 
appropriate forum for Havens to address its concerns about the M-LMS 
rules, including the ``safe harbor'' rule regarding the operational 
relationship between part 15 unlicensed devices and part 90 M-LMS 
devices.
    6. Cellnet requests reconsideration of the Commission's decision 
not to adopt a spectrum etiquette for unlicensed devices. Cellnet 
produces equipment for the automated reading of gas, water, and 
electric meters that uses spread spectrum transmitters operating on an 
unlicensed basis in the 915 MHz band. It states that the Commission 
should: Adopt a duty cycle limitation and other effective spectrum 
etiquette for any newly certified devices using digital modulation that 
operate in the 915 MHz band, and confirm in a public notice the 
obligation of all operators of unlicensed devices in this band 
authorized under part 15 to avoid causing harmful interference to 
licensed and unlicensed devices operating in the band and to work 
cooperatively with operators of any other devices that may be 
experiencing interference to resolve any such incidents. Cellnet states 
that these actions are necessary to assure that users taking advantage 
of newly authorized technical flexibility in this heavily encumbered 
band do not create the type of interference that will deny the 
continued effective use of this band by existing and future users. It 
submits that prior to the Commission's adoption of the new rules on 
which new entrants have relied on to operate at higher power and 
without effective duty cycles, the few problems that arose among 
devices operating in the band were readily resolved with cost effective 
engineering solutions by affected manufacturers and users.
    7. The Commission's rules require that a petition for 
reconsideration and any supplement thereto shall be filed within thirty 
days from the date of public notice of such action. Further, the 
petition must state with particularity the respects in which the 
petitioner

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believes the action taken should be changed. Cellnet's petition does 
not describe any specific rule changes that it wishes the Commission to 
make. It simply requests that the Commission adopt ``a duty cycle 
limitation and other effective spectrum etiquette,'' but does not 
recommend any specific duty cycle limitation or provide any technical 
details of what it believes would constitute an ``effective spectrum 
etiquette.'' After the 30 day reconsideration period, Cellnet made an 
ex-parte presentation to the Commission's staff describing a spectrum 
etiquette that it believes the Commission should require for digitally 
modulated spread spectrum transmitters operating in the 915 MHz band 
under Sec.  15.247 of the rules. Because Cellnet's petition and 
subsequent filings do not satisfy the Commission's rules for specific 
relief and timeliness, the Commission dismissed its petition. Although 
the Commission dismissed Cellnet's petition, it is seeking comment on 
ideas for a spectrum etiquette in the 915 MHz band, in a Further Notice 
of Proposed Rule Making. This action will allow the Commission to fully 
consider Cellnet's suggestion to develop a spectrum etiquette that is a 
trade-off between transmission duration and output power, and also to 
address certain related issues that Cellnet did not discuss such as 
transition dates by which new equipment would have to comply.

Ordering Clauses

    9. The petition for reconsideration filed by Havens is hereby 
dismissed. This action is taken pursuant to the authority contained in 
sections 4(i), 301, 302, 303(e), 303(f), and 303(r) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 
303(e), 303(f), and 303(r).
    10. The petition for reconsideration filed by Cellnet Technology is 
hereby dismissed. This action is taken pursuant to the authority 
contained in sections 4(i), 301, 302, 303(e), 303(f), and 303(r) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 
303(e), 303(f), and 303(r).

Congressional Review Act

    8. The Commission will not send a copy of the Memorandum Opinion 
and Order, pursuant to the Congressional Review Act. See 5 U.S.C. 
801(a)(1)(A). The Congressional Review Act (CRA) was addressed in the 
Report and Order released in this proceeding, FCC 04-165, 69, FR 54027, 
September 7, 2004. The Memorandum Opinion and Order dismisses the 
petitions for reconsideration of the Report and Order.

List of Subjects in 47 CFR Part 15

    Communications equipment.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
 [FR Doc. E7-14882 Filed 7-31-07; 8:45 am]
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