[Federal Register Volume 79, Number 134 (Monday, July 14, 2014)]
[Rules and Regulations]
[Pages 40678-40680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16420]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 15

[ET Docket No. 03-201; FCC 14-80]


Unlicensed Devices and Equipment Approval

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document terminates the above captioned proceeding on 
unlicensed transmitter operations. Based on the record and considering 
that the Commission has not received any additional requests in recent 
years advocating the need for a spectrum etiquette requirement for 
unlicensed operations in the requested bands, the Commission concludes 
that adoption of such a requirement does not merit further evaluation 
at this time. In terminating this proceeding, the Commission also 
dismissed a pending petition for reconsideration.

DATES: Effective August 13, 2014.

FOR FURTHER INFORMATION CONTACT: Hugh Van Tuyl, Office of Engineering 
and Technology, 202-418-7506, [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
and Second Memorandum Opinion and Order, ET Docket No. 03-201, FCC 
1480, adopted June 9, 2014 and released June 10, 2014. The full text of 
this document is available for inspection and copying during normal 
business hours in the FCC Reference Center (Room CY-A257), 445 12th 
Street SW., Washington, DC 20554. The complete text of this document 
also may be purchased from the Commission's copy contractor, Best Copy 
and Printing, Inc., 445 12th Street SW., Room, CY-B402, Washington, DC 
20554. The full text may also be downloaded at: www.fcc.gov. People 
with Disabilities: To request materials in accessible formats for 
people with disabilities (braille, large print, electronic files, audio 
format), send an email to [email protected] or call the Consumer & 
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 
(tty).

Summary of Order and Second Memorandum Opinion and Order

    1. By this Order, the Commission terminates the above-captioned 
proceeding on unlicensed transmitter operations. The only substantive 
issues pending in this proceeding concern whether to adopt a specific 
``spectrum etiquette'' requirement for unlicensed transmitters 
operating in the 902-928 MHz band, and whether there might be need for 
a similar requirement with respect to unlicensed operations in the 2.4 
GHz and 5.8 GHz bands. Based on the record before us, and considering 
that the Commission has not received additional requests in recent 
years advocating the need for a spectrum etiquette requirement for 
unlicensed operations in these bands, the Commission concludes that 
adoption of such a requirement in these bands does not merit further 
evaluation at this time. In terminating this proceeding, the Commission 
also dismissed a pending petition for reconsideration.
    2. Part 15 of the Commission's rules governs the operation of 
unlicensed radiofrequency devices, including the technical requirements 
for their use. As a general condition of operation, part 15 devices may 
not cause harmful interference to authorized radio services and must 
accept any interference that they receive.
    3. In 2003, the Commission initiated a Notice of Proposed 
Rulemaking in this proceeding to review and update certain sections of 
parts 2 and 15 of our rules pertaining to technical parameters and 
measurement procedures related to unlicensed device operations in the 
902-928 MHz band, the 2.4 GHz band, and the 5.8 GHz band. The 
Commission also invited comment on whether it should consider any 
methods to ensure efficient spectrum usage by unlicensed devices, 
including the ``spectrum etiquette'' sharing conditions developed by 
the industry for the operation of unlicensed Personal Communications 
Service (PCS) devices operating in the 1920-1930 MHz band. A spectrum 
etiquette establishes a set of steps and protocols that a device must 
follow before it may access the spectrum. Such an etiquette may require 
that a device monitor the spectrum in which it intends to operate and 
begin transmission only if no signal above a specified threshold is 
detected.
    4. In July 2004, the Commission adopted a Report and Order, that 
modified several rules pertaining to these bands. The Commission, 
however, declined to impose any type of spectrum etiquette for any Part 
15 bands. The Commission noted that most commenting parties had 
asserted that a spectrum etiquette requirement would tend to limit 
development of unlicensed operations. It also expressed concern that an 
etiquette requirement applying only to new devices in these heavily 
used unlicensed bands may not be useful in facilitating spectrum 
sharing if the large number of devices already authorized and used in 
the band were not required to follow the etiquette. The Commission also 
noted that the then-existing regulations, which did not require a 
spectrum etiquette, had resulted in very efficient use of unlicensed 
spectrum.
    5. MO&O and Further Notice. In June 2007, the Commission issued its 
MO&O and Further Notice, which addressed Cellnet's petition and the 
spectrum etiquette issue. The Commission dismissed Cellnet's petition 
on the grounds that the petition and Cellnet's subsequent filings did 
not satisfy the Commission's rules for specific relief and timeliness; 
it noted that not until a 2006 ex parte presentation, filed over a year 
past the reconsideration period, did Cellnet describe a specific 
spectrum etiquette that it believed the Commission should require for 
digitally modulated spread spectrum transmitters operating in the 902-
928 MHz band under Sec.  15.247 of the rules.
    6. While the Commission focused the further notice on a spectrum 
etiquette that would apply only to the 902-928 MHz band, the Commission 
also inquired generally about whether there might be a similar need to 
adopt rules for unlicensed devices in the 2.4 GHz and 5.8 GHz bands. 
The Commission stated, however, that industry standards were being 
developed to facilitate sharing in these bands and that it did not 
intend to disrupt this process.

Discussion

    7. The Commission is not persuaded of the need to adopt a spectrum 
etiquette requirement for unlicensed operations in the 902-928 MHz 
band. In addition to the record before us, subsequent developments 
concerning unlicensed operations in the 902-928 MHz band also counsel 
against adoption of a spectrum etiquette requirement.
    8. Since June 2007, the Commission has approved more than 2,500 
unlicensed devices operating in the 902-928 MHz band. This indicates 
that the band continues to be heavily used under the existing rules for 
unlicensed operations. The Commission observes that manufacturers have 
developed a wide variety of different types of products under the 
current part 15 rules. Consistent with the Commission's decision in 
2004 not to adopt an etiquette requirement, it is not concerned that 
adoption of such a requirement could impede design flexibility and 
innovation of a wide variety of devices that the current rules enable. 
In declining to adopt a spectrum etiquette requirement, the Commission 
also notes that manufacturers and users of part 15 devices can and do 
take various steps when designing and

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deploying their equipment to promote the effective and efficient 
sharing between digitally modulated devices and other part 15 devices 
that operate in the 902-928 MHz band. For example, devices can tune to 
less congested frequencies or hop to a number of different frequencies 
to avoid interference. In addition, device operators can reduce the 
separation distance between the transmitter and receiver in areas where 
the 902-928 MHz spectrum is heavily used.
    9. The Commission agrees with commenters who argued that the large 
number of existing devices in the 902-928 MHz band would limit the 
usefulness of a new etiquette since previously approved devices would 
not be required to comply with an etiquette. Also, no party described 
an etiquette that would be compatible with all types of devices that 
currently operate in the band. Further, as a number of commenters 
noted, an etiquette could potentially stifle innovation or preclude the 
use of certain types of devices in the 902-928 MHz band.
    10. The Commission focused the further notice on whether it should 
adopt a spectrum etiquette requirement for unlicensed operations in the 
902-928 MHz band; only a few commenters commented on a spectrum 
etiquette requirement in either the 2.4 GHz or 5.8 GHz bands. The 
Commissions agrees that there is no need for an etiquette in these 
bands.
    11. The record before us does not establish the need for a spectrum 
etiquette requirement in the 902-928 MHz band. Nor is there any basis 
before us that establishes a need for adoption of a spectrum etiquette 
requirement for either the 2.4 GHz band or 5.8 GHz band. The Commission 
concludes that adoption of this type of requirement in these bands 
would not serve the public interest at this time.

Second Memorandum Opinion and Order

    12. The 2004 Report and Order in this proceeding made several 
changes to part 15 of the rules regarding unlicensed operations in the 
902-928 MHz band, the 2.4 GHz band, and the 5.8 GHz band. In 2004, 
Warren C. Havens and Telesaurus Holdings GB LLC (Havens), which are 
licensees in the Multilateration Location and Monitoring Service (M-
LMS) in portions of the 902-928 MHz band, filed a petition for 
reconsideration of that order. Havens requested that the Commission 
suspend the rule changes adopted for unlicensed devices for operation 
in the 902-928 MHz band until such time as the Commission commenced and 
completed a formal inquiry, including notice and comment, with regard 
to the potential effect of such changes to M-LMS licensees that operate 
in portions of the band. Havens claimed that the revised part 15 rules 
would lead to increased spectrum use of the 902-928 MHz band by 
unlicensed devices and thus would adversely affect M-LMS systems by 
changing the ``regulatory coexistence'' between part 15 and M-LMS 
operations. Havens asserted that the Commission should have made no 
changes in the part 15 rules regarding with 902-928 MHz band without a 
rulemaking on part 90 M-LMS rules.
    13. In the 2007 MO&O and Further Notice, the Commission dismissed 
the Havens petition, declining to suspend the part 15 rule changes. The 
Commission first noted that Havens did not raise any objections to any 
proposals for revising part 15 rules in the Notice of Proposed 
Rulemaking prior to the filing of the Havens petition. The Commission 
explained that, pursuant to Sec.  1.429(b) of its rules, a petition for 
reconsideration that relies on facts not previously presented to the 
Commission will be granted only if: (1) 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; (2) 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 (3) the Commission determines that 
consideration of the facts relied on is required in the public 
interest. The Commission concluded that Havens failed to address why it 
did not previously participate in this proceeding or claim that any of 
these three conditions were met. In addition, the Commission noted that 
Sec.  1.429(c) of the Commission rules require that a petition for 
reconsideration state with particularity the respects in which the 
petitioner believes the action taken should be changed. The Commission 
pointed out that Havens did not identify the particular rule changes 
that should be suspended, and instead provided only a mere statement of 
belief that the part 15 rule changes in this proceeding would lead to 
increased use of part 15 devices in the 902-928 MHz band and thus would 
result in adverse effects on M-LMS operations that also operate in the 
portions of the band. The Commission found that Havens had provided no 
evidence or analysis to support this assertion. The Commission also 
noted that Havens had 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, which the Commission 
had rejected in that proceeding. Accordingly, the Commission dismissed 
the Havens petition.
    14. The Commission also noted that a proceeding had been initiated 
in 2006 to reexamine the rules for the M-LMS operating in the 902-928 
MHz band (WT Docket No. 06-49), and that proceeding had been prompted 
partly in response to a petition for rulemaking by Progeny LMS, LLC 
(Progeny), another M-LMS licensee. The Commission stated that the M-LMS 
proceeding was the appropriate forum for addressing concerns raised by 
Havens about the M-LMS rules, including the operational relationship 
between Part 90 M-LMS devices and part 15 unlicensed devices. The 
Commission also noted that Havens had already participated in the 
proceeding to consider Progeny's earlier petition for rulemaking.
    15. In July 2007, on behalf of Telesaurus, Warren Havens filed a 
petition for reconsideration of the Commission's dismissal of the 
Havens petition for reconsideration in the MO&O and Further Notice. 
Havens asserts that the Commission's decision dismissing the previous 
Havens petition for reconsideration should be reversed and that the 
relief that Havens had requested in the previous petition challenging 
the 2004 Report and Order should now be granted on the basis of the new 
petition. Havens claims that the 2007 petition for reconsideration is 
based on ``new facts.'' The arguments raised by Havens in the petition 
for reconsideration of the Commission's dismissal of the earlier 
petition for reconsideration raise no new relevant facts, and do not 
provide grounds for our reconsideration of the Commission's prior 
decision dismissing Havens earlier petition. The Commission dismisses 
the pending Havens petition as repetitious.
    16. In dismissing this latest petition, the Commission relies on 
Sec.  1.429 of the Commission's rules, as had the earlier Commission 
when dismissing the previous Havens petition for reconsideration in 
this proceeding. To the extent a petitioner seeks reconsideration of 
final orders in a rulemaking proceeding, the petitioner may rely on new 
facts and arguments not previously presented to the Commission. The 
Commission may grant such a petition only if: (1) 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; 
(2)

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the facts relied upon were unknown to the petitioner until after its 
last opportunity to present them to the Commission, and it could not 
through the exercise of due diligence have learned of the facts in 
question prior to such opportunity; or (3) the Commission determines 
that consideration of the facts relied on is required in the public 
interest. 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. Except in 
circumstances where the Commission has modified rules in response to a 
petition for reconsideration, a second petition for reconsideration may 
be dismissed as repetitious.
    17. In the pending petition, Havens argues that the Commission 
erred in 2007 when dismissing the previous petition, and asserts 
alleged ``new facts'' as bases for its petition. In particular, Havens 
repeats arguments made in the earlier petition for reconsideration--
namely that the Commission could not properly make any part 15 rule 
changes applicable to the 902-928 MHz band that were potentially 
adverse to M-LMS operations without a notice and comment proceeding on 
M-LMS. Havens again asserts that any rule part 15 rule changes are 
changes to the M-LMS rules. Havens also reasserts that there was no 
obligation for Havens to participate earlier in this part 15 
proceeding. As for alleged ``new facts,'' Havens first asserts that the 
Commission's initiation in 2006 of the proceeding seeking comment on 
possible changes to the M-LMS rules for operation in the 902-928 MHz 
band, which could affect part 15 operations in the band, demonstrates 
the validity of its argument in its petition that the M-LMS rules 
affect part 15 and vice versa. Havens argues that since this new 
proceeding occurred following the release of the 2004 Report and Order, 
this constitutes a new fact. Havens also asserts that the Commission 
ignored all of the arguments that Havens had raised in response to a 
2002 petition by an M-LMS licensee to change rules in 902-928 MHz band, 
which ultimately led to the Commission's initiation of the 2006 M-LMS 
rulemaking, and that this constitutes a new fact showing the 
Commission's prejudice towards Havens (and Telesaurus) and an 
abrogation of the Commission's duty to be impartial.
    18. Havens has not demonstrated any basis for our reconsideration 
of the Commission's earlier dismissal. The Commission previously 
concluded that the initial Havens petition for reconsideration was 
procedurally defective and failed to establish a basis for relief. The 
so-called ``new facts'' alleged by Havens, and which are only 
unsupported assertions, do not constitute the kinds of facts 
contemplated under Sec.  1.429 that would provide a basis for granting 
a petition for reconsideration. Further, nothing prevented Havens from 
participating in the rulemaking that revised part 15 rules in this 
proceeding. Moreover, Havens did not identify any particular rule that 
should be changed, nor specify how he would propose revising any 
particular rule. In addition, the arguments raised in the pending 
Havens petition for reconsideration are repetitious. For all of these 
reasons, the Commission dismisses the petition.
    19. Finally, as the Commission noted in the MO&O and Further 
Notice, Havens has had the opportunity to present his concerns relating 
to potential revisions to the M-LMS rules, including the operational 
relationship between M-LMS devices and part 15 unlicensed devices, in 
the M-LMS rulemaking (WT Docket No. 06-49). Havens has been an active 
participant in that rulemaking.

Conclusion

    20. The remaining issues raised in the this proceeding, which 
concern whether the Commission should adopt a spectrum etiquette 
requirement for unlicensed transmitters that operate under Sec. Sec.  
15.247 and 15.249 of the rules in the 902-928 MHz band, or possibly 
also for the 2.4 GHz or 5.8 GHz bands, do not merit further 
consideration at this time. The Commission also dismisses the pending 
petition for reconsideration. With these actions, the Commission 
terminates this proceeding.

Ordering Clauses

    21. Pursuant to sections 4(i), 5(c), and 405 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 155(c), and 405(a), and 
Sec.  1.429 of the Commission's Rules, 47 CFR 1.429, that the Petition 
for Reconsideration filed by Telesaurus GB LLC on July 23, 2007 IS 
dismissed.
    22. Pursuant to the authority contained in Sections 4(i) and 4(j) 
of the Communications Act, as amended, 47 U.S.C. 154(i) and (j), that 
the proceeding in ET Docket No. 03-201 is hereby terminated.
    23. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Order and 
Second Memorandum Opinion and Order, including the Final Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
Small Business Administration.

Report to Congress

    24. The Commission will not send a copy of this Second Memorandum 
Opinion and Order pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A), because the Commission did not adopt any new rules 
here.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2014-16420 Filed 7-11-14; 8:45 am]
BILLING CODE 6712-01-P