[Federal Register Volume 88, Number 130 (Monday, July 10, 2023)]
[Proposed Rules]
[Pages 43502-43514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13501]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 2, 15, 25, 27, and 101
[WT Docket No. 20-443; FCC 23-36; FR ID 148306]
Expanding Flexible Use of the 12.2-12.7 GHz Band
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) seeks further comment on how it could facilitate more
robust terrestrial operations in the 12.2-12.7 GHz (12.2 GHz) band
through additional possible terrestrial uses of the band including one-
way, point-to-point or point-to-multipoint fixed links at higher powers
than current Multichannel Video Distribution and Data Service (MVDDS)
rules permit; two-way, point-to-point fixed links at standard part 101
power limits; two-way, point-to-multipoint links; indoor only underlay
on a licensed by rule basis; unlicensed use; and expanded use through
technology-based sharing using Automated Frequency Coordination. In
their responses to these inquiries, the Commission strongly encourages
commenters to provide specific proposals and detailed technical data to
support their proposals.
DATES: Comments are due on or before August 9, 2023; reply comments on
or before September 8, 2023.
Written comments on the Paperwork Reduction Act proposed
information collection requirements must be submitted by the public,
Office of Management and Budget (OMB), and other interested parties on
or before September 8, 2023.
Written comments on the Initial Regulatory Flexibility Analysis
(IRFA) of this document must have a separate and distinct heading
designating them as responses to the IRFA and must be submitted by the
public on or before August 9, 2023.
ADDRESSES: Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS). See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121 (1998). You may submit comments
identified by WT Docket No. 20-443 by any of the following methods:
Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
Paper Filers:
Parties who choose to file by paper must file an original
and one copy of each filing.
Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mall. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
People with Disabilities: To request materials in accessible
formats (braille, large print, computer diskettes, or audio
recordings), please send an email to [email protected] or call the
Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202)
418-0432 (TTY).
FOR FURTHER INFORMATION CONTACT: Madelaine Maior of the Wireless
Telecommunications Bureau, Broadband Division, at
[[Page 43503]]
[email protected] or 202-418-1466; Simon Banyai of the Wireless
Telecommunications Bureau, at [email protected] or (202) 418-1443;
or Nick Oros of the Office of Engineering and Technology, at
[email protected] or (202) 418-2099. For additional information
concerning the Paperwork Reduction Act proposed information
requirements contained in this document, send an email to [email protected]
or contact Kathy Williams at (202) 418-2918.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking (FNPRM) in WT Docket No. 20-443
included in the Report and Order and Further Notice of Proposed
Rulemaking and Notice of Proposed Rulemaking and Order, FCC 23-36,
adopted on May 18, 2023 and released on May 19, 2023. The full text of
this document is available at https://docs.fcc.gov/public/attachments/FCC-23-36A1.pdf. The Report and Order and the FNPRM (WT Docket No. 20-
443), and the Notice of Proposed Rulemaking and the Order (GN Docket
No. 22-352), i.e., the four FCC actions in FCC 23-36, are published
separately in the Rules and Regulations and the Proposed Rules
sections, as applicable, in this issue of the Federal Register.
Regulatory Flexibility Act: The Regulatory Flexibility Act of 1980,
as amended (RFA), requires that an agency prepare a regulatory
flexibility analysis for notice-and-comment rulemakings, unless the
agency certifies that ``the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' The Commission seeks comment on potential rule and policy
changes contained in the FNPRM, and accordingly, has prepared an
Initial Regulatory Flexibility Analysis (IRFA). The IRFA for the FNPRM
in WT Docket 20-443 is set forth below in this document, and written
public comments are requested. Comments must be filed by the deadlines
for comments on the FNPRM indicated under the DATES section of this
document and must have a separate and distinct heading designating them
as responses to the IRFA. The Commission reminds commenters to file in
the appropriate docket: WT Docket No. 20-443 is for the FNPRM.
Paperwork Reduction Act: This document may contain proposed
modified information collection requirements. Therefore, the Commission
seeks comment on potential new or revised information collections
subject to the Paperwork Reduction Act of 1995. If the Commission
adopts any new or revised information collection requirements, the
Commission will publish a document in the Federal Register inviting the
general public and the Office of Management and Budget to comment on
the information collection requirements, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4)), the Commission seeks specific comments on how it
might further reduce the information collection burden for small
business concerns with fewer than 25 employees.
Ex Parte Rules: This proceeding shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda, or other filings in the
proceeding, the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. In proceedings governed by Sec. 1.49(f) or for which the
Commission has made available a method of electronic filing, written ex
parte presentations and memoranda summarizing oral ex parte
presentations, and all attachments thereto, must be filed through the
electronic comment filing system available for that proceeding, and
must be filed in their native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Documents shown or given to Commission staff during
ex parte meetings are deemed to be written ex parte presentations and
must be filed consistent with Sec. 1.1206(b). Participants in this
proceeding should familiarize themselves with the Commission's ex parte
rules.
Synopsis
I. Further Notice of Proposed Rulemaking 1
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\1\ Record references and citations refer to WT Docket No. 20-
443, unless otherwise noted.
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A. Background
1. 12.2-12.7 GHz Band--500 megahertz
1. The 12.2-12.7 GHz band (12.2 GHz band) band is allocated on a
primary basis for non-Federal use for Broadcasting Satellite Service
(BSS) (referred to domestically as Direct Broadcast Satellite (DBS)),
Fixed Satellite Service (FSS) (space-to-Earth) limited to non-
geostationary orbit systems (NGSO FSS), and Fixed Service.\2\ While the
three services are co-primary, NGSO FSS and Fixed Service are allocated
on a non-harmful interference basis to DBS.\3\ Currently
[[Page 43504]]
there are three services operating in the band: DBS providers operating
under the primary BSS allocation, NGSO FSS licensees operating under
the co-primary NGSO FSS allocation, and Multi-Channel Video and Data
Distribution Service (MVDDS) licensees operating under the co-primary
Fixed Service allocation.\4\
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\2\ See 47 CFR 2.106, United States Table of Frequency
Allocations, non-Federal Table for the band 12.2-12.7 GHz. NGSO FSS
(space-to-Earth) operations are authorized pursuant to international
footnote 5.487A (revised as 47 CFR 2.106(b)(487)(i), at 88 FR 37318,
June 7, 2023, effective July 7, 2023), which provides additional
allocations including in Region 2 as follows: ``[The 12.2-12.7 GHz
is] allocated to the fixed-satellite service (space-to-Earth) on a
primary basis, limited to non-geostationary systems and subject to
application of the provisions of [International Telecommunication
Union (ITU) Radio Regulations] No. 9.12 for coordination with other
non-geostationary-satellite systems in the fixed-satellite service.
Non-geostationary-satellite systems in the fixed-satellite service
shall not claim protection from geostationary-satellite networks in
the broadcasting-satellite service operating in accordance with the
Radio Regulations, irrespective of the dates of receipt by the [ITU
Radiocommunication] Bureau of the complete coordination or
notification information, as appropriate, for the non-geostationary-
satellite systems in the fixed-satellite service and of the complete
coordination or notification information, as appropriate, for the
geostationary-satellite networks, and [ITU Radio Regulations] No.
5.43A does not apply. Non-geostationary-satellite systems in the
fixed-satellite service in the [12 GHz band] shall be operated in
such a way that any unacceptable interference that may occur during
their operation shall be rapidly eliminated.'' 47 CFR 2.106,
n.5.487A (revised as 47 CFR 2.106(b)(487)(i), at 88 FR 37318, June
7, 2023, effective July 7, 2023). When an international footnote is
applicable without modification to non-Federal operations, the
Commission places the footnote on the non-Federal Table. See 47 CFR
2.105(d)(5).
\3\ See 47 CFR 2.106, n.5.490 (International Footnote) (revised
as 47 CFR 2.106(b)(490), at 88 FR 37318, June 7, 2023, effective
July 7, 2023). In Region 2, in the 12.2-12.7 GHz band, existing and
future terrestrial radiocommunication services shall not cause
harmful interference to the space services operating in conformity
with the broadcasting satellite Plan for Region 2 contained in
Appendix 30. ``Harmful Interference'' is defined under the
Commission's rules as ``[i]nterference which endangers the
functioning of a radionavigation service or of other safety services
or seriously degrades, obstructs, or repeatedly interrupts a
radiocommunication service operating in accordance with the ITU
Radio Regulations.'' 47 CFR 2.1(c). See also Annex to the
Constitution of the ITU, 1003 (defining harmful interference).
\4\ 47 CFR 101.147(a) n.31.
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2. While DBS service began in 1994, and NGSO FSS systems were
authorized in the early 2000s, the Commission permitted MVDDS to
operate in the 12.2 GHz band starting in 2004 under technical rules to
ensure that MVDDS stations do not cause harmful interference to DBS or
earlier-in-time NGSO FSS fixed subscriber receivers.\5\ To that end,
MVDDS service was limited to a relatively low power, one-way, digital
fixed non-broadcast service, including one-way direct-to-home/office
wireless service with each proposed transmitter subject to detailed
prior coordination requirements.\6\ In April 2016, a coalition of MVDDS
licensees filed a Petition for Rulemaking requesting reforms to the
12.2 GHz band rules, including permitting MVDDS licensees to use the
band for two-way mobile broadband services.\7\
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\5\ See Amendment of Parts 2 and 25 of the Commission's Rules to
Permit Operation of NGSO FSS Systems Co-Frequency with GSO and
Terrestrial Systems in the Ku-Band Frequency Range, Amendment of the
Commission's Rules to Authorize Subsidiary Terrestrial Use of the
12.2-12.7 GHz Band by Direct Broadcast Satellite Licensees and Their
Affiliates; and Applications of Broadwave USA, PDC Broadband
Corporation, and Satellite Receivers, Ltd. to Provide A Fixed
Service in the 12.2-12.7 GHz Band, ET Docket No. 98-206, First
Report and Order and Further Notice of Proposed Rule Making, 16 FCC
Rcd 4096, 4177, para. 213 (2000) (First Report and Order and FNPRM).
\6\ See 47 CFR 101.1407 (two-way services can be provided using
spectrum in other bands for the return link). See also Amendment of
Parts 2 and 25 of the Commission's Rules to Permit Operation of NGSO
FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku-
Band Frequency Range, Memorandum Opinion and Order and Second Report
and Order, 17 FCC Rcd 9614 (2002) (MVDDS Second Report and Order)
(aff'd Northpoint Technology, LTD et al. v. FCC, 414 F.3d 61 (D.C.
Cir. 2005)).
\7\ Petition of MVDDS 5G Coalition Petition for Rulemaking, RM-
11768, at 17-18 (filed Apr. 26, 2016), https://www.fcc.gov/ecfs/document/60001658886/1 (MVDDS 5G Coalition Petition). See also
Petition for Rulemakings Filed, Public Notice, Report No. 3042, at
8, 17-18 (May 9, 2016) (Petition Public Notice).
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3. Later in 2016, the International Bureau opened a processing
round to accept NGSO FSS applications and petitions for market access
in several frequency bands \8\ and the Commission reformed its NGSO FSS
rules.\9\ In 2017, the Commission granted the first of the new
generation NGSO FSS requests--a petition for market access by WorldVu
Satellites Limited (OneWeb) for a planned Low Earth Orbit (LEO) NGSO
FSS satellite system of 720 satellites authorized by the United Kingdom
in the 10.7-12.7 GHz Band (in addition to several other bands).\10\ The
Commission concluded that ``the pendency of the MVDDS 5G Coalition's
Petition for Rulemaking was not a sufficient reason to delay or deny
these requests to use the band under the existing NGSO FSS allocation
and service rules.'' \11\ In granting this request, however, the
Commission conditioned access to the 12 GHz band on the outcome of the
MVDDS 5G Coalition's Petition and any other rulemaking initiated on the
Commission's own motion.\12\ The Commission also agreed with comments
of the MVDDS 5G Coalition that MVDDS should not have to protect any
NGSO FSS earth stations in motion operations in the band, if authorized
in the future, because such operations had not been contemplated under
the longstanding first-in-time MVDDS/NGSO FSS sharing approach.\13\ The
NGSO FSS Report and Order adopted, among other things, spectrum sharing
rules and a more flexible milestone schedule for NGSO FSS systems.\14\
The Commission subsequently granted five additional NGSO FSS requests
to use bands that include the 12.2 GHz band (among others).\15\
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\8\ See Satellite Policy Branch Information; OneWeb Petition
Accepted for Filing (IBFS File No. SAT-LOI-20160428-00041), Cut-Off
Established for Additional NGSO-Like Satellite Applications or
Petitions for Operations in the 10.7-12.7 GHz, 14.0-14.5 GHz, 17.8-
18.6 GHz, 18.8-19.3 GHz, 27.5-28.35 GHz, 28.35-29.1 GHz, and 29.5-
30.0 GHz Bands, Public Notice, 31 FCC Rcd 7666 (IB July 15, 2016).
\9\ In September 2017, the Commission adopted the NGSO FSS
Report and Order, updating several rules and policies governing NGSO
FSS systems. See Update to Parts 2 and 25 Concerning Non-
Geostationary, Fixed-Satellite Service Systems and Related Matters,
Report and Order (82 FR 59972 (Dec. 18, 2017)) and Further Notice of
Proposed Rulemaking (82 FR 52869 (Nov. 15, 20217)), 32 FCC Rcd 7809
(2017) (NGSO FSS Report and Order).
\10\ See WorldVu Satellites Limited, Petition for Declaratory
Ruling Granting Access to the U.S. Market for the OneWeb NGSO FSS
System, Order and Declaratory Ruling, 32 FCC Rcd 5366 (2017) (OneWeb
Order).
\11\ Id. at 5369, para. 6.
\12\ Id. at 5378, para. 26 (``This grant of U.S. market access
and any earth station licenses granted in the future are subject to
modification to bring them into conformance with any rules or
policies adopted by the Commission in the future.''). See also id.
at 5369, para. 6 (``Accordingly, any investment made toward
operations in this band by OneWeb in the United States assume the
risk that operations may be subject to additional conditions or
requirements as a result of such Commission actions.'').
\13\ Id. at 5370, para. 8.
\14\ See NGSO FSS Report and Order, 32 FCC Rcd at 7821-31,
paras. 37-68.
\15\ Space Norway AS, Petition for a Declaratory Ruling Granting
Access to the U.S. Market for the Arctic Satellite Broadband
Mission, Order and Declaratory Ruling, 32 FCC Rcd 9649 (2018) (Space
Norway Order); Karousel Satellite LLC, Application for Authority to
Launch and Operate a Non-Geostationary Earth Orbit Satellite System
in the Fixed Satellite Service, Memorandum Opinion, Order and
Authorization, 33 FCC Rcd 8485 (2018) (Karousel Order), Space
Exploration Holdings, LLC Application For Approval for Orbital
Deployment and Operating Authority for the SpaceX NGSO Satellite
System, Memorandum Opinion Order and Authorization, 33 FCC Rcd 3391
(2018) (SpaceX Order), Kepler Communications Inc. Petition for
Declaratory Ruling to Grant Access to the U.S. Market for Kepler's
NGSO FSS System, Order, 33 FCC Rcd 11453, (2018) (Kepler Order),
Theia Holdings A, Inc. Request for Authority to Launch and Operate a
Non-Geostationary Satellite Orbit System in the Fixed-Satellite
Service, Mobile-Satellite Service, and Earth-Exploration Satellite
Service, Memorandum, Opinion and Authorization, 34 FCC Rcd 3526
(2019) (Theia Order).
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4. NGSO FSS systems have continued to deploy. In particular, SpaceX
received modified authority for its first generation (Gen 1) system to
decrease the altitude from the 1,100-1,300 km to the 540-570 km range
for 2,814 satellites as well as approval of its updated orbital debris
mitigation plan.\16\ To date, SpaceX has deployed approximately 4,000
satellites.\17\ We also recently issued a partial grant to SpaceX to
begin deploying its second generation (Gen 2) system, with a grant
approving up to 7,500 satellites to operate in the Ka- and Ku-frequency
bands.\18\ OneWeb also recently received modified authority for its
constellation \19\ and, to date, it has
[[Page 43505]]
deployed over 580 satellites.\20\ On June 30, 2022, the International
Bureau authorized SpaceX and Kepler to serve earth stations in motion
(ESIMs) in the 12.2 GHz band on an unprotected, non-harmful
interference basis.\21\
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\16\ Space Exploration Holdings, LLC, Request for Modification
of the Authorization for the SpaceX NGSO Satellite System, Order and
Authorization, 36 FCC Rcd 7995 (2021).
\17\ See, e.g., Mike Wall, SpaceX launches 56 Starlink
satellites, lands rocket at sea, space.com (``SpaceX has now lofted
more than 4,200 Starlink satellites overall, according to
astrophysicist and satellite tracker Jonathan McDowell.'') (Mar. 29,
2023), https://www.space.com/spacex-starlink-group-5-10-
launch#:~:text=SpaceX%20launched%20another%20big%20batch,p.m.%20EDT%2
0(2001%20GMT).
\18\ Space Exploration Holdings, LLC, Request for Orbital
Deployment and Operating Authority for the SpaceX Gen2 NGSO
Satellite System, IBFS File No. SAT-LOA-20200526-00055 and SAT-AMD-
20210818-00105, Order and Authorization, FCC 22-91, 2022 WL
17413767, at *54, para. 135(ii) (Dec. 1, 2022) (SpaceX Gen2 Order)
(stating that the ``authorization is subject to modification to
bring it into conformance with any rules or policies adopted by the
Commission in the future. [And, that] . . . any investments made
toward operations in the bands authorized [by the] Order by SpaceX
in the United States assume the risk that operations may be subject
to additional conditions or requirements as a result of any future
Commission actions . . . [including, but not limited to] . . . any
conditions or requirements resulting from any action in the
proceedings associated with . . . WTB Docket 20-443 . . .'').
\19\ WorldVu Satellites Limited, Petition for Declaratory Ruling
to Modify the U.S. Market Access Grant for the OneWeb Ku-band and
Ka-Band NGSO FSS System, Order and Declaratory Ruling, DA 22-970
(IB, rel. Sept. 16, 2022) (petition to modify grant of U.S. market
access granted in part and deferred in part to approve minor
adjustments to number of satellites per plane without exceeding
previously-approved total of 720 satellites).
\20\ See, e.g., Letter from Kimberly M. Baum, Vice President,
Spectrum Engineering & Strategy, WorldVu Satellites Limited, to
Marlene H. Dortch, Secretary, FCC, WT Docket Nos. 20-443 et al. at 1
(filed Mar. 20, 2023); https://oneweb.net/resources/oneweb-confirms-successful-deployment-40-satellites-launched-spacex-1 (``OneWeb
confirms successful deployment of 40 satellites launched with
SpaceX. Launch 17 brings the total OneWeb constellation to 582
satellites. Third launch with SpaceX makes penultimate mission to
achieving global coverage.'').
\21\ SpaceX Services, Inc. Application for Blanket Authorization
of Next- Generation Ku-Band Earth Stations in Motion et al.; Kepler
Communications Inc. Application for Blanket Authorization of Ku-Band
Earth Stations on Vessels, Order and Authorization, DA 22-695 (IB
June 30, 2022) (ESIMs Authorizations). DISH and RS Access had argued
that granting these applications would constrain the Commission's
decision-making in the instant 12.2 GHz band rulemaking proceeding
by injecting new ESIM encumbrances into the 12.2 GHz band. ESIMs
Authorizations at 11-12, para. 22. DISH and RS Access also argued
that authorizing ESIMs in the band on an unprotected basis would
likely result in primary users in the band being required to assume
the costs to prevent service interruptions to SpaceX customers. Id.
at 11, para. 18. The International Bureau found that granting the
applications served the public interest but also recognized that the
introduction of a potentially significant number of additional end
users in motion could affect the 12 GHz spectrum environment.
Therefore the Bureau imposed conditions to ensure grant of those
applications would not materially impact the outcome of the 12 GHz
rulemaking proceeding. ESIMs Authorizations at 12-13, paras. 23-27.
The Bureau imposed conditions on the grants related to the 12.2 GHz
band including: (1) requiring operations to be on a non-interference
basis; (2) subjecting the operations to the outcome of any future
rulemaking including the instant 12.2 GHz band GHz proceeding, with
the understanding that the presence of ESIMs is not anticipated to
materially affect the analysis therein, and subject to modification
to conform to any rules or policies adopted, including in the
instant 12.2 GHz band proceeding, and assumption of this risk; (3)
subjecting the grant to the applicants' representations, including
that their NGSO systems have been engineered to achieve a high
degree of flexibility to facilitate spectrum sharing with other
authorized satellite and terrestrial systems. Id. In addition, the
Bureau explained that its case-by-case analysis was limited to the
applications before it and have no broader applicability. See id.
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5. On January 15, 2021, the Commission released a notice of
proposed rulemaking (12.2 NPRM) (86 FR 13266 (March 8, 2021)) to allow
interested parties to address whether it could add a mobile allocation
and make other changes to expand terrestrial use of the 12.2 GHz band
without causing harmful interference to incumbent licensees and, if so,
whether such action would promote or hinder the delivery of next-
generation services in the 12.2 GHz band given the existing and
emergent services offered by incumbent licensees.\22\
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\22\ See Expanding Flexible Use of the 12.2-12.7 GHz Band, WT
Docket Nos. 20-443 et al., Notice of Proposed Rulemaking, 36 FCC Rcd
606 (2021) (12.2 NPRM).
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6. In the Report and Order in WT Docket No. 20-443 (FR 2023-13503),
published elsewhere in this issue of the Federal Register, the
Commission declines to add a mobile allocation or adopt service rules
for expanded terrestrial, high-powered, two-way mobile operations in
the 12.2-12.7 GHz band. However, the Commission remains interested in
potential expanded terrestrial use of the band. Although the 12.2 NPRM
focused on 5G service coexistence with the incumbents in the band, the
Commission also asked how it could facilitate more robust terrestrial
operations if it chose to maintain the existing regulatory framework,
rather than permitting 5G in the band.\23\ Based on comments in
response to this question, below the Commission seeks further comment
on several potential approaches the Commission could take to facilitate
such robust use. In their responses to these inquiries, the Commission
strongly encourages commenters to provide specific proposals and
detailed technical data to support their proposals. The Commission
notes that several commenters suggest providing priority access to
spectrum over Tribal lands to Tribal entities.\24\ For each of the
possible scenarios below that could involve assigning new, initial
licenses, the Commission seeks comment on such a suggestion.
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\23\ See Expanding Flexible Use of the 12.2-12.7 GHz Band, et
al., WT Docket No. 20-443, Notice of Proposed Rulemaking, FCC 21-13,
36 FCC Rcd 606, 629 Para. 60 (Jan. 15, 2021) (12.2 NPRM).
\24\ See Letter from Joe Valandra, President & CEO, Tribal
Ready, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 22-352 et
al. (filed May 10, 2023) (Tribal Ready May 10, 2023 Ex Parte)
(``Tribal Ready respectfully requests that the 12 GHz band FNPRM, as
well as any final rules for the band, provide for a set aside for
Tribal entities to accelerate [fixed wireless broadband] on Tribal
lands. The Commission has previously recognized the value of Tribal
set asides in promoting deployment as recently as the 2.5 GHz band.
The 12 GHz band can and should also be an option to help Native
Americans close the digital divide.''). See also Letter from Michael
Calabrese, Director, Wireless Future Program, New America's Open
Technology Institute, and Harold Feld, Senior Vice President, Public
Knowledge, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 22-
352 et al. at 3 (filed May 10, 2023) (Open Technology Institute and
Public Knowledge May 10, 2023 Ex Parte) (``our groups suggested that
the Commission explicitly notice the possibility of opening a rural
Tribal window in both the FNPRM and the NPRM. The Commission should
ask whether to permit point-to-point or point-to-multipoint
operations on tribal lands in 12.2 GHz on terms similar to those
authorized to MVDDS licensees. This would require modification of
the existing MVDDS licenses, but such modification would be a
reasonable tradeoff for the expanded spectrum rights provided to the
MVDDS licensees.'').
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B. Expanded Licensed and Unlicensed Fixed Terrestrial Use of the 12.2-
12.7 GHz Band
7. Expanded Licensed Use. The Commission seeks comment on the
potential to expand terrestrial fixed use of the 12.2 GHz band. For
example, should the Commission consider permitting one-way, point-to-
point or point-to-multipoint fixed links at a higher power than the
current MVDDS rules allow? The Commission seeks comment on the
following issues related to an updated one-way point-to-point or point-
to-multipoint fixed link service. Is sharing between point-to-point or
point-to-multipoint fixed links possible with NGSO systems whose
receivers, unlike those in the DBS service, are not pointed exclusively
at the geostationary satellite arc? \25\ What power limit would be
appropriate to allow for better expanded terrestrial use of this band
while still protecting incumbent licensees? Should such expanded
terrestrial rights be conferred on the existing incumbent MVDDS
licensees, or are there alternative approaches for expanding
terrestrial use opportunities in this band, such as site-based,
individually coordinated operations relative to existing MVDDS
operations? How should these operations be licensed, what technical
data should be collected, and what type of technical limits and
coordination requirements should be considered to allow necessary
protections and coexistence with incumbent services in the band? Are
there use cases or technologies that could be provided in a one-way
point-to-multipoint type configuration, subject to higher power limits
than MVDDS? To what extent would potential deployments of this type
provide substantial benefits to the public? What would be the benefits
to consumers and businesses of expanded one-way use, as compared to the
benefits of other types or potential expanded terrestrial use cases or
architectures?
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\25\ See Letter from Daniel C.H. Mah, SES Americom, Inc., W. Ray
Rutngamlug, Associate General Counsel, Intelsat US, LLC, to Marlene
H. Dortch, Secretary, FCC, GN Docket No. 22-352, at B-1 (filed May
12, 2023) (citing MVDDS 5G Coalition, Comments, RM-11768, Attach. 1,
MVDDS 12.2-12.7 GHz Co-Primary Service Coexistence (rec. June 8,
2016) (Coexistence 1) and MVDDS 5G Coalition, Reply, Appx. A, MVDDS
12.2-12.7 GHZ Co-Primary Service Coexistence II (June 24, 2016)
(Coexistence 2) (collectively, Coexistence Studies)).
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8. The Commission also seeks comment on the possibility of allowing
[[Page 43506]]
for two-way, point-to-point fixed links at a standard part 101 higher
power limit.\26\ Allowing this type of use could expand backhaul to
support advanced broadband capacity. Should higher power two-way point-
to-point type terrestrial rights be conferred on the existing incumbent
geographic service area licensees? Or should the Commission consider
alternative approaches, such as site-based, individually coordinated
operations relative to existing MVDDS operations? The Commission notes
that several other similar bands are shared between NGSO FSS and two-
way point-to-point operations, based on successful coordination of
later-in-time operations.\27\ Given the nature of highly directional
point-to-point two-way operations, the Commission asks whether
terrestrial operations may be able to successfully co-exist with new
and incumbent DBS and NGSO FSS operations? What would the interference
protection status of NGSO FSS ESIMs be vis-[agrave]-vis these newly
proposed services? Would it be manageable if rights were conferred on a
first-in-time basis, since under the current authorization NGSO FSS
ESIMs are not afforded protection? As a baseline, would consideration
of the current technical standards in similar part 101 bands (11 GHz,
13 GHz) provide a basis for technical rules for two-way point-to-point
operations in the 12.2 GHz band? If not, to what degree should they be
limited or modified? How should two-way, point-to-point operations be
licensed, what technical data should be collected, and what type of
technical limits and coordination requirements should be considered to
allow necessary protections and coexistence with incumbent services in
the band? In particular, how should the burden of protecting new or
modified DBS subscribers be assigned after a point-to-point link is
successfully coordinated with existing DBS customers of record? How
would new or modified NGSO FSS earth stations be protected?
Additionally, should the Commission consider the possibility of
relocating point-to-point operations from the 12.7-13.25 GHz band (the
12.7 GHz band) to the 12.2 GHz band and, if so, how would this best be
accomplished? Alternatively, would allowing expanded opportunities for
disaggregation and partitioning promote more intensive use of the
spectrum? Currently, the MVDDS rules do not allow disaggregation and
limit partitioning to counties.\28\ Should the Commission revisit those
rules to allow the option for 12.7 GHz point-to-point operators to
lease spectrum larger in the 12.2 GHz band through partitioning and
disaggregation?
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\26\ See, e.g., Expanding Flexible Use of the 12.2-12.7 GHz
Band, WT Docket Nos. 20-443 et al., Notice of Proposed Rulemaking,
36 FCC Rcd 606, 629, para. 60 (2021) (12.2 Notice) (citing Wireless
Telecommunications Bureau Seeks Comment on Petitions of Seven
Licensees for Waiver of Multichannel Video Distribution and Data
Service Technical Rules, WT Docket No. 15-218, Public Notice, 30 FCC
Rcd 9953 (WTB 2015) (petitioners seek waivers of 47 CFR 101.113 note
11, 101.147(p), 101.1407, and 101.1411(a), to use the 12 GHz band
for two-way, point-to-point operation at an EIRP up to 55 dBm)).
\27\ See, e.g., Amendment of Parts 2 and 25 of the Commission's
Rules to Enable GSO Fixed-Satellite Service (Space-to-Earth)
Operations in the 17.3-17.8 GHz Band, to Modernize Certain Rules
Applicable to 17/24 GHz BSS Space Stations, and to Establish Off-
Axis Uplink Power Limits for Extended Ka-Band FSS Operations, IB
Docket Nos. 20-330 and 22-273, Report and Order and Notice of
Proposed Rulemaking, FCC 22-63, 2022 WL 3138555 (Aug. 3, 2022).
\28\ 47 CFR 101.1415.
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9. Further, the Commission also seeks comment on the possibility of
allowing two-way point-to-multipoint links. Specifically, the
Commission seeks comment on the following issues related to an updated
two-way point-to-multipoint fixed link service in the 12.2 GHz band.
What power limit would be appropriate to allow for better expanded
terrestrial use of this band while still protecting incumbent
licensees? Should such expanded terrestrial rights be conferred on the
existing incumbent MVDDS licensees, or are there alternative approaches
for expanding terrestrial use opportunities in this band, such as site-
based, individually coordinated operations relative to existing MVDDS
operations? How should these operations be licensed, what technical
data should be collected, and what type of technical limits and
coordination requirements should be considered to allow necessary
protections and coexistence with incumbent services in the band? Is
there any adjustment necessary for the interference protection criteria
of power flux density (PFD) and equivalent power flux density (EPFD)?
If so, how should these metrics be calculated for an updated two-way
point-to-point or point-to-multipoint fixed link service? Given that
EPFD was originally conceived to promote sharing between NGSO FSS and
GSO BSS and FSS systems,\29\ is this the right metric for the present
application? Is it appropriate to reconsider the underlying free space
propagation assumption regarding the interference protection criteria?
The Commission has previously determined that a combination of
different propagation models is most appropriate for the determination
of sharing metrics between fixed microwave links and unlicensed
devices.\30\ Given the terrestrial nature of both interferer and
victim, is a combination of different propagation models more suitable
than relying only on a free space model? If so, what are the
appropriate combinations of propagation models and their respective
ranges of applicability? Please provide the necessary justification for
use of the models. How is the definition of PFD and EPFD changed for
the path-loss model other than the free space? \31\ Are there any other
impacts to consider as a result of using models other than the free
space propagation model? For example, should the Commission also
consider changing the maximum equivalent isotropic radiated power
(EIRP) allowed? If so, what is the maximum EIRP? Please provide the
necessary justification for use of higher EIRP. Should there be
multiple categories for the maximum EIRP? For example, should there be
a maximum EIRP for the urban environment and another maximum EIRP for
the rural environment? Are there use cases or technologies that could
be provided in a two-way point-to-multipoint type configuration,
subject to higher power limits than MVDDS? To what extent would
potential deployments of this type provide substantial benefits to the
public? What would be the benefits to consumers and businesses of
expanded two-way use, as compared to the benefits of other types or
potential expanded terrestrial use cases or architectures?
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\29\ See Amendment of Parts 2 and 25 of the Commission's Rules
to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and
Terrestrial Systems in the Ku-Band Frequency Range, Amendment of the
Commission's Rules to Authorize Subsidiary Terrestrial Use of the
12.2-12.7 GHz Band by Direct Broadcast Satellite Licensees and Their
Affiliates; and Applications of Broadwave USA, PDC Broadband
Corporation, and Satellite Receivers, Ltd. to Provide A Fixed
Service in the 12.2-12.7 GHz Band, ET Docket No. 98-206, First
Report and Order and Further Notice of Proposed Rulemaking, 16 FCC
Rcd 4096, 4106, paras. 12-14 (2000).
\30\ See Unlicensed Use of the 6 GHz Band, ET Docket No. 18-295,
Report and Order and Further Notice of Proposed Rulemaking, 35 FCC
Rcd 3852, 3874., Para. 63 (2020), aff'd in part, remanded in part
sub nom. AT&T Services, Inc. v. FCC, 21 F.4th 841 (D.C. Cir. 2021).
\31\ PFD for general path-loss can be defined as PFD = EIRP-PL +
10 * log10(4 * [pi];)-20 * log10([lgr]). Also
EPFD can be expressed in terms of PFD as EPFD = PFD * Ge(ue,qe) I/
Ge,max, where PFD is defined in the previous sentence.
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10. Alternatively, adding indoor-only underlay use of the band
could allow for greater control and access assurances that could help
stimulate Internet of Things (IoT), private Long Term Evolution (LTE)
or New Radio (NR)
[[Page 43507]]
market in the band.\32\ If the Commission was to consider such expanded
terrestrial authorization in the band, should that authorization be
awarded to the existing incumbent MVDDS licensees, or should this type
of authorization be available to businessowners/landowners for the
operation of private networks/IoT such as on physical campuses or
industrial complexes? If such authorizations were conveyed to
businessowners/landowners, how would they intersect with the
authorizations held by existing MVDDS incumbent licensees, and should
the MVDDS authorizations also be expanded? If such rights for a
different type of terrestrial use were afforded to businessowners/
landowners, should they be licensed-by-rule? What type of coordination
mechanism might allow for such use, e.g. standard coordination
notifying incumbent services within a specific distance of the proposed
facilities of the planned technical parameters of the proposed
operation? What interference thresholds or limitations would such
indoor-only unlicensed operations need to observe to adequately protect
MVDDS, DBS, and NGSO FSS operations from harmful interference? Should
rights be conveyed to terrestrial licensees on a first-in-time basis,
similar to those that currently exist in the Commission's rules, or
with proposed modifications, in order to provide certainty for
licensees that invest in and operate these systems?
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\32\ See 12.2 Notice, 36 FCC Rcd at 622, para. 39 (stating that
in an underlay approach any additional terrestrial operations likely
would need to be authorized at low power and would need to operate
on an opportunistic basis, not causing harmful interference to--nor
seeking protection from harmful interference by--the incumbent
primary services in the band.).
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11. Unlicensed Use. The Commission seeks comment on whether, and,
if so, how, to permit unlicensed use of the 12.2 GHz band, a step that
multiple parties advocate.\33\ The unlicensed advocates claim that a
low-power, indoor-only unlicensed underlay in the 12.2 GHz band would
create additional capacity for IoT uses.\34\ Part 15 sets out the
regulations under which an intentional, unintentional, or incidental
radiator may be operated without an individual license.\35\ Under the
rules for unlicensed intentional radiators,\36\ the 10.6-12.7 GHz band
is designated as ``restricted.'' \37\ Unless expressly permitted by
rule or waiver, unlicensed devices are not allowed to intentionally
radiate energy into a restricted band, in order to protect sensitive
radio services from harmful interference.\38\ The Commission seeks
comment on the benefits and costs of removing the 12.2 GHz band from
the list of restricted bands. What type of applications (e.g. IoT,
local networking, etc.) and from what types of devices (e.g. indoor
access points, mobile client devices, etc.) would unlicensed operations
most benefit in the 12.2 GHz band?
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\33\ Boeing Reply at 10; NCTA Reply at 2; Letter from Chip
Pickering, CEO, Incompas, and Joe Lockhart, Partner, Rational 360,
to Acting Chairwoman Rosenworcel and Commissioners, FCC, Docket No.
20-443, Attach. A, Ensuring U.S. Leadership in 5G, at 4 (filed Apr.
28, 2021); Dynamic Spectrum Alliance Comment at 6-7; Federated
Wireless Comment at 3.
\34\ Comments of Public Interest Organizations (New America's
Open Technology Institute, et al.), at 2, 17.
\35\ See 47 CFR 15.1(a).
\36\ See 47 CFR part 15, subpart C.
\37\ 47 CFR 15.205(a) (designates bands of operation in which
only spurious emissions are permitted under part 15).
\38\ See, e.g., Amendment of Part 15 of the Commission's Rules
to Establish Regulations for Tank Level Probing Radars in the
Frequency Band 77-81 GHz; Amendment of Part 15 of the Commission's
Rules To Establish Regulations for Level Probing Radars and Tank
Level Probing Radars in the Frequency Bands 5.925 7.250 GHz, 24.05
29.00 GHz and 75 85 GHz, ET Docket No. 10-23, Report and Order, (FCC
14-2) 29 FCC Rcd 761, 773 para. 26, n.73 (2014) (citing Revision of
the Rules Regarding Operation of Radio Frequency Devices Without an
Individual License, First Report and Order, GEN Docket 87-389, 4 FCC
Rcd 3493 (1989), 47 CFR 15.205(a)).
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12. The Commission invites commenters to discuss whether unlicensed
use may be permitted within the 12.2-12.7 GHz band under provisions
that could be implemented under the Commission's part 15 rules. Those
rules require that unlicensed devices protect the licensed incumbent
services \39\ which, in this case, includes DBS, NGSO FSS, and MVDDS.
The Commission notes that it has rules for unlicensed low power indoor
devices in the 6 GHz band that could serve as a model for unlicensed
use in this band. Under those rules, the Commission found that low-
power indoor devices could take advantage of building entry loss to
protect incumbent fixed service users.\40\ Would these rules provide an
appropriate model for indoor devices in the 12.2 GHz band? \41\ Under
the 6 GHz low power indoor rules, unlicensed access points may operate
at 5 dBm/MHz EIRP while client devices are limited to -1 dBm/MHz. The
unlicensed access points must be supplied power from a wired
connection, may not be weatherized, must use an integrated antenna, and
must have a label indicating that use is restricted to indoors. The
client devices must operate only under the control of an access point.
If the Commission allowed indoor unlicensed use in the 12.2 GHz band,
what rules should be adopted to mitigate the risk of harmful
interference from indoor unlicensed devices to incumbent services? For
example, would the same rules that the Commission relies on to keep 6
GHz low-power indoor devices inside be replicated here to provide
signal attenuation between indoor unlicensed devices and outdoor DBS,
NGSO FSS, and MVDDS receive antennas? Noting that the incumbent
services are generally trying to receive a weak signal from a
satellite, would the expected building entry loss be adequate to
protect those services? What technical limitations such as power
levels, bandwidth restrictions, or out-of-band emission limits would be
appropriate in conjunction with an indoor-only requirement to protect
the incumbent services? Could the Commission permit less restrictive
unlicensed use (e.g., higher indoor power levels, outdoor use, etc.)
with a label warning to alert consumers that use near a DBS, NGSO FSS,
or MVDDS receive site could result in harmful interference to the
consumer device? For example, this would allow DBS subscribers to
decide about whether to use such a device in their homes knowing there
is a potential interference risk. Are there other potential
interference mitigation techniques or system design requirements the
Commission should
[[Page 43508]]
consider to protect incumbent services, such as geofencing capability?
\42\ The Commission invites commenters to submit engineering analysis
or measurement data addressing the potential for such indoor unlicensed
devices to cause harmful interference to DBS, NGSO FSS, and MVDDS
receivers.
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\39\ 47 CFR 15.5(b).
\40\ See Unlicensed Use of the 6 GHz Band and Expanding Flexible
Use in Mid-Band Spectrum Between 3.7 and 24 GHz, ET Docket No. 18-
295; GN Docket No. 17-183, Report and Order and Further Notice of
Proposed Rulemaking, 35 FCC Rcd 3852, 3888, para. 96, et seq.
(2020), aff'd in part, remanded in part sub nom. AT&T Services, Inc.
v. FCC, 21 F.4th 841 (D.C. Cir. 2021).
\41\ The Commission notes that in advocating for 5G
authorization in the 12.2 GHz band, the MVDDS Coalition's first
Coexistence study argued that losses as signals in the 12.2-12.7 GHz
band travel through one or more building walls generally provide
sufficient attenuation to ensure EPFD limits remain below current
limits. Coexistence 1 at 27. Where building attenuation alone might
prove insufficient, the Coexistence study stated that ``careful
placement and power control can prevent the maximum EPFD levels from
being exceeded outside of the building envelope to ensure protection
of DBS receive antennas.'' Coexistence 1 at 27. Specifically, the
Coexistence study asserted that signals from base stations placed
inside one interior wall would have 50 dB attenuation resulting from
passing through an interior and exterior wall, while mobile units
more likely to travel toward building edges would experience 30 dB.
Coexistence 1 at 26. Furthermore, the study noted that 5G network
operators could manage interference through controlling the
transmission location of 5G mobile devices through ``geofencing,''
which involves the use of location information from the device to
assign unit geographical boundaries to the permitted area of
operation. Coexistence 1 at 26-27. These mitigation techniques would
allow the broadband operator to prevent 5G MVDDS mobile devices from
venturing into areas that might offer insufficient attenuation to
one or more DBS receivers outside of the building exterior.''
Coexistence 1 at 27.
\42\ Coexistence 1 at 26-27.
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13. Other Technology-based Sharing. In addition, the Commission
seeks comment on whether there may be opportunities to take advantage
of technological advancements to accommodate expanded terrestrial
capabilities in the 12.2 GHz band. For example, could dynamic,
database-driven coordination capabilities such as have been implemented
in other frequency bands (e.g., 6 GHz unlicensed and 3.5 GHz Citizens
Broadband Radio Service) be implemented in the 12.2 GHz band? Would
another type of frequency management system allow for a greater
opportunity for expanded terrestrial services to develop within the
band while affording protection to incumbent satellite and terrestrial
services? What technical data would need to be collected to support
such a system? DBS operators are currently required to maintain data on
current subscriber locations; NGSO FSS operators have no similar
requirement to track consumer terminal location data, and deployments
in the band continue to increase. Would additional technical data need
to be collected or shared among the licensees so that an advanced
frequency management system could effectively manage shared use and
prevent interference exceedance to the different services in the band?
What parameters should the Commission put in place to ensure that any
obligations for a new managed sharing regime in the band would not be
overly cumbersome, particularly to the DBS and NGSO FSS incumbents? The
Commission seeks comment on what type of frequency management system
might be used to control access to, and manage potential interference
in, the 12.2 GHz band. Who should have ownership or oversight of such
systems? How should frequency management system or database operators
be selected, and what should be the requirements for such roles? Would
there be any interest in operating such systems or databases? What type
of testing requirements should there be on these types of systems? How
might the associated costs be addressed, and who should bear the burden
of those costs? For instance, should new terrestrial fixed services
bear all the costs, or should part of this cost be shared by the NGSO
FSS and DBS incumbents in the band?
14. The Commission specifically seeks comment on the use of
Automated Frequency Coordination (AFC) systems, which were adopted for
unlicensed outdoor deployments in the 6 GHz band based on several
considerations that were specific to that band. Accordingly, the
Commission seeks comment on whether similar, or otherwise compelling,
considerations would support use of an AFC system in the 12.2 GHz band,
and also seeks comment about the extent to which these considerations
may also be applicable to other frequency coordination management and
database system concepts. Among the most relevant considerations are
what types of propagation models are the most appropriate, considering
the incumbents in this band, including DBS and NGSO FSS satellite
systems? What protection criteria would be required specific to each
service, i.e., DBS, NGSO FSS, and MVDDS? How can modelling of the
incumbent services be adequately accomplished, particularly considering
the potential complexity of NGSO FSS systems, and their associated
Earth stations that track satellites that are in motion? What device
location information might be required, and what method would be
appropriate to obtain such information? For instance, should the
Commission consider requiring automated entry of some or all of the
information, or permit manually entered information by a certified
installer of the device? How would AFC systems be able to periodically
verify frequency availability considering the incumbent DBS and NGSO
FSS satellite operators and the lack of information as discussed above?
Moreover, is a periodic re-check interval an appropriate method to
determine changes in frequency availability information and, if so,
what should be the maximum permissible interval for verifying frequency
availability? If not, the Commission seeks comment on other
alternatives that could identify frequency availability. Should
aggregate interference be calculated by an AFC system or is it
sufficient to just consider individual devices? How should devices be
registered, and what collected information should be required? Should
an AFC system be able to give commands to shut down devices when
changes in spectrum use occur? What system security concerns would need
to be addressed? If this concept were to be considered sufficient,
technical information would need to be available to such frequency
management systems--specifically the technical information that is not
currently sufficiently collected, or collected at all, from DBS and
NGSO FSS respectively. If this concept was to be considered at what
future date should DBS and NGSO FSS be required to provide the required
data? The Commission seeks comment on these possible alternatives.
C. Promoting Digital Equity and Inclusion
15. The Commission, as part of its continuing effort to advance
digital equity for all,\43\ including people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, invites comments on any
equity-related considerations \44\ and benefits (if any) that may be
associated with the proposals and issues discussed herein.
Specifically, the Commission seeks comment on how its proposals may
promote or inhibit advances in diversity, equity, inclusion, and
accessibility, as well the scope of the Commission's relevant legal
authority.
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\43\ Section 1 of the Communications Act of 1934 as amended
provides that the FCC ``regulat[es] interstate and foreign commerce
in communication by wire and radio so as to make [such service]
available, so far as possible, to all the people of the United
States, without discrimination on the basis of race, color,
religion, national origin, or sex.'' 47 U.S.C. 151.
\44\ The term ``equity'' is used here consistent with Executive
Order 13985 as the consistent and systematic fair, just, and
impartial treatment of all individuals, including individuals who
belong to underserved communities that have been denied such
treatment, such as Black, Latino, and Indigenous and Native American
persons, Asian Americans and Pacific Islanders and other persons of
color; members of religious minorities; lesbian, gay, bisexual,
transgender, and queer (LGBTQ+) persons; persons with disabilities;
persons who live in rural areas; and persons otherwise adversely
affected by persistent poverty or inequality. See Exec. Order No.
13985, 86 FR 7009, Executive Order on Advancing Racial Equity and
Support for Underserved Communities Through the Federal Government
(Jan. 20, 2021).
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II. Initial Regulatory Flexibility Analysis
16. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA) \45\ the Commission has prepared an Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in the FNPRM. Written public comments are requested on this
IRFA. Comments must be identified as responses to the IRFA
[[Page 43509]]
and must be filed by the deadlines for comments on the FNPRM. The
Commission will send a copy of the FNPRM, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration
(SBA).\46\ In addition, the FNPRM and IRFA (or summaries thereof) will
be published in the Federal Register.\47\
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\45\ See 5 U.S.C. 603. The RFA, 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, (SBREFA) Public Law 104-121, Title II, 110 Stat. 857 (1996).
\46\ 5 U.S.C. 603(a).
\47\ Id.
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A. Need for, and Objectives of, the Proposed Rules
17. Although the Commission declines to add a mobile allocation or
adopt service rules for expanded terrestrial, high-powered, two-way
mobile operations in the 12.2-12.7 GHz band (12.2 GHz band) the FNPRM
seeks additional comment on other possible fixed terrestrial uses of
the band. The FNPRM explores expanded licensed fixed uses as well as
unlicensed opportunities in the band. The potential rule changes seek
to facilitate more robust terrestrial fixed or unlicensed use while
protecting incumbent operations in the bands. The FNPRM pursues the
Commission's joint goals of maximizing the use of these 500 MHz of
spectrum, while balancing desired speed to the market, efficiency of
use, and effectively accommodating incumbent operations in the band.
18. In the United States, the 12.2 GHz band is allocated on a
primary basis for non-Federal use for the Broadcasting Satellite
Service (BSS) (referred to domestically in the band as Direct Broadcast
Satellite (DBS); the Fixed Satellite Service (space-to-Earth) limited
to non-geostationary orbit systems (NGSO FSS); and the Fixed
Service.\48\ While these three services are co-primary, the NGSO FSS
and Fixed Service are allocated on a non-harmful interference basis
with respect to BSS.\49\ Currently there are three services authorized
and operating in the band: DBS providers operating under the primary
BSS allocation, Multi-Channel Video and Data Distribution Service
(MVDDS) licensees operating on a non-harmful interference basis to DBS
under the co-primary Fixed Service allocation, and NGSO FSS licensees
operating on a non-harmful interference basis to DBS under the co-
primary NGSO FSS allocation. This proceeding is predicated in part on
the MVDDS 5G Coalition petition for rulemaking,\50\ however alternative
uses for the band were raised by various commenters. Incumbent NGSO and
some DBS interests seek to continue to use the band without ceding
rights to MVDDS licensees. To facilitate further consideration of the
various proposals in the FNPRM the Commission seeks comment on how to
weigh public interest considerations associated with allowing,
prohibiting and prioritizing uses and on the costs and benefits of
allowing new uses of the 12 GHz bands.
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\48\ See 47 CFR 2.106, United States Table of Frequency
Allocations, non-Federal Table for the band 12.2-12.7 GHz. NGSO FSS
(space-to-Earth) operations are authorized pursuant to international
footnote 5.487A (revised as 47 CFR 2.106(b)(487)(i), at 88 FR 37318,
June 7, 2023, effective July 7, 2023), which provides additional
allocations including in Region 2 as follows: ``[The 12.2-12.7 GHz
is] allocated to the fixed-satellite service (space-to-Earth) on a
primary basis, limited to non-geostationary systems and subject to
application of the provisions of [ITU Radio Regulations] No. 9.12
for coordination with other non-geostationary-satellite systems in
the fixed-satellite service. Non-geostationary-satellite systems in
the fixed-satellite service shall not claim protection from
geostationary-satellite networks in the broadcasting-satellite
service operating in accordance with the Radio Regulations,
irrespective of the dates of receipt by the [ITU Radiocommunication]
Bureau of the complete coordination or notification information, as
appropriate, for the non-geostationary-satellite systems in the
fixed-satellite service and of the complete coordination or
notification information, as appropriate, for the geostationary-
satellite networks, and [ITU Radio Regulations] No. 5.43A does not
apply. Non-geostationary-satellite systems in the fixed-satellite
service in the [12 GHz band] shall be operated in such a way that
any unacceptable interference that may occur during their operation
shall be rapidly eliminated.''
47 CFR 2.106, footnote 5.487A (revised as 47 CFR
2.106(b)(487)(i), at 88 FR 37318, June 7, 2023, effective July 7,
2023). When an international footnote is applicable without
modification to non-Federal operations, the Commission places the
footnote on the non-Federal Table. See 47 CFR 2.105(d)(5).
\49\ See 47 CFR 2.106, n.5.490 (International Footnote) (revised
as 47 CFR 2.106(b)(490), at 88 FR 37318, June 7, 2023, effective
July 7, 2023). In Region 2, in the band 12.2-12.7 GHz, existing and
future terrestrial radiocommunication services shall not cause
harmful interference to the space services operating in conformity
with the broadcasting satellite Plan for Region 2 contained in
Appendix 30.
\50\ MVDDS 5G Coalition Petition. See also Petition Public
Notice. In its most recent filing, the Coalition's members were
reported to be: Cass Cable TV, Inc., DISH Network L.L.C., Go Long
Wireless LTD., MDS Operations, Inc., MVD Number 53 Partners,
Satellite Receivers, Ltd., SOUTH.COM LLC, Story Communications, LLC,
and Vision Broadband, LLC. See Letter from MVDDS 5G Coalition, to
Marlene H. Dortch, Secretary, FCC, Docket No. RM-11768, at 1 (filed
May 28, 2019). The Commission notes that MDS Operations subsequently
assigned its remaining 60 MVDDS licenses to RS Access.
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19. The Commission's rules currently enable sharing between co-
primary NGSO FSS and MVDDS using a combination of technical
limitations, information sharing, and first-in-time procedures.\51\
While the Commission declines to add a mobile allocation or adopt
service rules for expanded terrestrial, high-powered, two-way mobile
operations in the 12.2-12.7 GHz band, the Commission remains interested
in potential expanded terrestrial use of the band. The Commission
therefore seeks comment on additional possible terrestrial uses of the
12.2-12.7 GHz band including one-way, point-to-point or point-to-
multipoint fixed links at higher powers than current MVDDS rules; two-
way, point-to-point fixed links at standard part 101 power limits; two-
way, point-to-multipoint links; indoor only underlay on a licensed by
rule basis; unlicensed use; and expanded use through technology-based
share using Automated Frequency Coordination (AFC).
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\51\ See 47 CFR 101.113(a) n.11; 101.147(p).
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20. By modifying the Commission's rules and implementing policies
designed to provide for more robust use of the 12 GHz band, the
Commission hopes to ensure that this spectrum is efficiently utilized
and will foster the development of new and innovative technologies and
services, as well as encourage the growth and development of a wide
variety of services, ultimately leading to greater benefits to
consumers.
B. Legal Basis
21. The proposed action is authorized pursuant to sections 1, 2, 4,
5, 301, 302, 303, 304, 307, 309, 310, and 316 of the Communications Act
of 1934, 47 U.S.C. 151, 152, 154, 155, 301, 302a, 303, 304, 307, 309,
310, 316, and Sec. 1.411 of the Commission's rules, 47 CFR 1.411.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
22. 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.\52\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \53\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.'' \54\ 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
[[Page 43510]]
additional criteria established by the SBA.\55\
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\52\ 5 U.S.C. 603(b)(3).
\53\ 5 U.S.C. 601(6).
\54\ Id. Section 601(3) (incorporating the definition of
``small-business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\55\ 15 U.S.C. 632.
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23. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. The Commission's actions, over time, may affect small
entities that are not easily categorized at present. The Commission
therefore describes, at the outset, three broad groups of small
entities that could be directly affected herein.\56\ First, while there
are industry specific size standards for small businesses that are used
in the regulatory flexibility analysis, according to data from the
Small Business Administration's (SBA) Office of Advocacy, in general a
small business is an independent business having fewer than 500
employees.\57\ These types of small businesses represent 99.9% of all
businesses in the United States, which translates to 32.5 million
businesses.\58\
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\56\ 5 U.S.C. 601(3)-(6).
\57\ See SBA, Office of Advocacy, Frequently Asked Questions,
``What is a small business?,'' https://cdn.advocacy.sba.gov/wp-content/uploads/2021/11/03093005/Small-Business-FAQ-2021.pdf. Nov
2021.
\58\ Id.
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24. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
\59\ The Internal Revenue Service (IRS) uses a revenue benchmark of
$50,000 or less to delineate its annual electronic filing requirements
for small exempt organizations.\60\ Nationwide, for tax year 2020,
there were approximately 447,689 small exempt organizations in the U.S.
reporting revenues of $50,000 or less according to the registration and
tax data for exempt organizations available from the IRS.\61\
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\59\ 5 U.S.C. 601(4).
\60\ The IRS benchmark is similar to the population of less than
50,000 benchmark in 5 U.S.C. 601(5) that is used to define a small
governmental jurisdiction. Therefore, the IRS benchmark has been
used to estimate the number of small organizations in this small
entity description. See Annual Electronic Filing Requirement for
Small Exempt Organizations--Form 990-N (e-Postcard), ``Who must
file,'' https://www.irs.gov/charities-non-profits/annual-electronic-filing-requirement-for-small-exempt-organizations-form-990-n-e-postcard. The Commission notes that the IRS data does not provide
information on whether a small exempt organization is independently
owned and operated or dominant in its field.
\61\ See Exempt Organizations Business Master File Extract (E.O.
BMF), ``CSV Files by Region,'' https://www.irs.gov/charities-non-profits/exempt-organizations-business-master-file-extract-eo-bmf.
The IRS Exempt Organization Business Master File (E.O. BMF) Extract
provides information on all registered tax-exempt/non-profit
organizations. The data utilized for purposes of this description
was extracted from the IRS E.O. BMF data for businesses for the tax
year 2020 with revenue less than or equal to $50,000 for Region 1--
Northeast Area (58,577), Region 2--Mid-Atlantic and Great Lakes
Areas (175,272), and Region 3--Gulf Coast and Pacific Coast Areas
(213,840) that includes the continental U.S., Alaska, and Hawaii.
This data does not include information for Puerto Rico.
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25. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' \62\ U.S.
Census Bureau data from the 2017 Census of Governments \63\ indicate
there were 90,075 local governmental jurisdictions consisting of
general purpose governments and special purpose governments in the
United States.\64\ Of this number, there were 36,931 general purpose
governments (county,\65\ municipal, and town or township \66\) with
populations of less than 50,000 and 12,040 special purpose
governments--independent school districts \67\ with enrollment
populations of less than 50,000.\68\ Accordingly, based on the 2017
U.S. Census of Governments data, the Commission estimates that at least
48,971 entities fall into the category of ``small governmental
jurisdictions.'' \69\
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\62\ 5 U.S.C. 601(5).
\63\ See 13 U.S.C. 161. The Census of Governments survey is
conducted every five (5) years compiling data for years ending with
``2'' and ``7''. See also Census of Governments, https://www.census.gov/programs-surveys/cog/about.html.
\64\ See U.S. Census Bureau, 2017 Census of Governments--
Organization Table 2. Local Governments by Type and State: 2017
[CG1700ORG02], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. Local governmental jurisdictions are made up
of general purpose governments (county, municipal and town or
township) and special purpose governments (special districts and
independent school districts). See also tbl.2. CG1700ORG02 Table
Notes_Local Governments by Type and State_2017.
\65\ See id. at tbl.5. County Governments by Population-Size
Group and State: 2017 [CG1700ORG05], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. There were 2,105 county
governments with populations less than 50,000. This category does
not include subcounty (municipal and township) governments.
\66\ See id. at tbl.6. Subcounty General-Purpose Governments by
Population-Size Group and State: 2017 [CG1700ORG06], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html.
There were 18,729 municipal and 16,097 town and township governments
with populations less than 50,000.
\67\ See id. at tbl.10. Elementary and Secondary School Systems
by Enrollment-Size Group and State: 2017 [CG1700ORG10], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html.
There were 12,040 independent school districts with enrollment
populations less than 50,000. See also tbl.4. Special-Purpose Local
Governments by State Census Years 1942 to 2017 [CG1700ORG04],
CG1700ORG04 Table Notes_Special Purpose Local Governments by
State_Census Years 1942 to 2017.
\68\ While the special purpose governments category also
includes local special district governments, the 2017 Census of
Governments data does not provide data aggregated based on
population size for the special purpose governments category.
Therefore, only data from independent school districts is included
in the special purpose governments category.
\69\ This total is derived from the sum of the number of general
purpose governments (county, municipal and town or township) with
populations of less than 50,000 (36,931) and the number of special
purpose governments--independent school districts with enrollment
populations of less than 50,000 (12,040), from the 2017 Census of
Governments--Organizations tbls.5, 6 & 10.
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26. Radio Frequency Equipment Manufacturers (RF Manufacturers).
There are several analogous industries with an SBA small business size
standard that are applicable to RF Manufacturers. These industries are
Fixed Microwave Services, Other Communications Equipment Manufacturing,
Radio and Television Broadcasting and Wireless Communications Equipment
Manufacturing. A description of these industries and the SBA small
business size standards are detailed below.
27. Fixed Microwave Services. Fixed microwave services include
common carrier,\70\ private-operational fixed,\71\ and broadcast
auxiliary radio services.\72\ They also include the Upper Microwave
Flexible Use Service (UMFUS),\73\ Millimeter Wave Service (70/80/90
GHz),\74\ Local Multipoint Distribution Service (LMDS),\75\ the Digital
Electronic Message Service (DEMS),\76\ 24 GHz Service,\77\ Multiple
Address Systems (MAS),\78\ and Multichannel Video Distribution and Data
Service (MVDDS),\79\ where in some bands licensees can choose between
common carrier and non-common carrier status.\80\ Wireless
Telecommunications Carriers (except Satellite) \81\ is the closest
industry with an SBA small business size standard applicable to
[[Page 43511]]
these services. The SBA small size standard for this industry
classifies a business as small if it has 1,500 or fewer employees.\82\
U.S. Census Bureau data for 2017 show that there were 2,893 firms that
operated in this industry for the entire year.\83\ Of this number,
2,837 firms employed fewer than 250 employees.\84\ Thus, under the SBA
size standard, the Commission estimates that a majority of fixed
microwave service licensees can be considered small.
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\70\ See 47 CFR part 101, subparts C and I.
\71\ See id. subparts C and H.
\72\ Auxiliary Microwave Service is governed by part 74 of title
47 of the Commission's Rules. See 47 CFR part 74. Available to
licensees of broadcast stations and to broadcast and cable network
entities, broadcast auxiliary microwave stations are used for
relaying broadcast television signals from the studio to the
transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes mobile TV pickups, which
relay signals from a remote location back to the studio.
\73\ See 47 CFR part 30.
\74\ See 47 CFR part 101, subpart Q.
\75\ See id. subpart L.
\76\ See id. subpart G.
\77\ See id.
\78\ See id. subpart O.
\79\ See id. subpart P.
\80\ See 47 CFR 101.533, 101.1017.
\81\ See U.S. Census Bureau, 2017 NAICS Definition, ``517312
Wireless Telecommunications Carriers (except Satellite),'' https://www.census.gov/naics/?input=517312&year=2017&details=517312.
\82\ See 13 CFR 121.201, NAICS Code 517312 (as of 10/1/22, NAICS
Code 517112).
\83\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Employment Size of Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 517312, https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\84\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
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28. The Commission does not generally track subsequent business
size unless, in the context of assignments or transfers, unjust
enrichment issues are implicated. Additionally, since the Commission
does not collect data on the number of employees for licensees
providing these services, at this time the Commission is not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
29. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired communications networks.\85\ Transmission
facilities may be based on a single technology or a combination of
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including Voice
over Internet Protocol (VoIP) services, wired (cable) audio and video
programming distribution, and wired broadband internet services.\86\ By
exception, establishments providing satellite television distribution
services using facilities and infrastructure that they operate are
included in this industry.\87\ Wired Telecommunications Carriers are
also referred to as wireline carriers or fixed local service
providers.\88\
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\85\ See U.S. Census Bureau, 2017 NAICS Definition, ``517311
Wired Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
\86\ Id.
\87\ Id.
\88\ Fixed Local Service Providers include the following types
of providers: Incumbent Local Exchange Carriers (ILECs), Competitive
Access Providers (CAPs) and Competitive Local Exchange Carriers
(CLECs), Cable/Coax CLECs, Interconnected VOIP Providers, Non-
Interconnected VOIP Providers, Shared-Tenant Service Providers,
Audio Bridge Service Providers, and Other Local Service Providers.
Local Resellers fall into another U.S. Census Bureau industry group
and therefore data for these providers is not included in this
industry.
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30. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small.\89\ U.S. Census Bureau data for 2017 show that
there were 3,054 firms that operated in this industry for the entire
year.\90\ Of this number, 2,964 firms operated with fewer than 250
employees.\91\ Additionally, based on Commission data in the 2022
Universal Service Monitoring Report, as of December 31, 2021, there
were 4,590 providers that reported they were engaged in the provision
of fixed local services.\92\ Of these providers, the Commission
estimates that 4,146 providers have 1,500 or fewer employees.\93\
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
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\89\ See 13 CFR 121.201, NAICS Code 517311 (as of 10/1/22, NAICS
Code 517111).
\90\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Employment Size of Firms for the U.S.:
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\91\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
\92\ Federal-State Joint Board on Universal Service, Universal
Service Monitoring Report at 26, Table 1.12 (2022), https://docs.fcc.gov/public/attachments/DOC-391070A1.pdf. https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf.
\93\ Id.
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31. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves.\94\ Establishments in this industry have spectrum licenses
and provide services using that spectrum, such as cellular services,
paging services, wireless internet access, and wireless video
services.\95\ The SBA size standard for this industry classifies a
business as small if it has 1,500 or fewer employees.\96\ U.S. Census
Bureau data for 2017 show that there were 2,893 firms in this industry
that operated for the entire year.\97\ Of that number, 2,837 firms
employed fewer than 250 employees.\98\ Additionally, based on
Commission data in the 2022 Universal Service Monitoring Report, as of
December 31, 2021, there were 594 providers that reported they were
engaged in the provision of wireless services.\99\ Of these providers,
the Commission estimates that 511 providers have 1,500 or fewer
employees.\100\ Consequently, using the SBA's small business size
standard, most of these providers can be considered small entities.
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\94\ See U.S. Census Bureau, 2017 NAICS Definition, ``517312
Wireless Telecommunications Carriers (except Satellite),'' https://www.census.gov/naics/?input=517312&year=2017&details=517312.
\95\ Id.
\96\ See 13 CFR 121.201, NAICS Code 517312 (as of 10/1/22, NAICS
Code 517112).
\97\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Employment Size of Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 517312, https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
\98\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
\99\ Federal-State Joint Board on Universal Service, Universal
Service Monitoring Report at 26, Table 1.12 (2022), https://docs.fcc.gov/public/attachments/DOC-391070A1.pdf.
\100\ Id.
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32. Satellite Telecommunications. This industry comprises firms
``primarily engaged in providing telecommunications services to other
establishments in the telecommunications and broadcasting industries by
forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications.'' \101\ Satellite
telecommunications service providers include satellite and earth
station operators. The SBA small business size standard for this
industry classifies a business with $38.5 million or less in annual
receipts as small.\102\ U.S. Census Bureau data for 2017 show that 275
firms in this industry operated for the entire year.\103\ Of this
number, 242 firms had revenue of less than $25 million.\104\
[[Page 43512]]
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 71 providers
that reported they were engaged in the provision of satellite
telecommunications services.\105\ Of these providers, the Commission
estimates that approximately 48 providers have 1,500 or fewer
employees.\106\ Consequently, using the SBA's small business size
standard, a little more than half of these providers can be considered
small entities.
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\101\ See U.S. Census Bureau, 2017 NAICS Definition, ``517410
Satellite Telecommunications,'' https://www.census.gov/naics/?input=517410&year=2017&details=517410.
\102\ See 13 CFR 121.201, NAICS Code 517410.
\103\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Sales, Value of Shipments, or Revenue Size
of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code
517410, https://data.census.gov/cedsci/table?y=2017&n=517410&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false.
\104\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard. The Commission also notes that according to the U.S.
Census Bureau glossary, the terms receipts and revenues are used
interchangeably, see https://www.census.gov/glossary/#term_ReceiptsRevenueServices.
\105\ Federal-State Joint Board on Universal Service, Universal
Service Monitoring Report at 26, Table 1.12 (2021), https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf.
\106\ Id.
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33. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation.\107\ This industry also
includes establishments primarily engaged in providing satellite
terminal stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems.\108\
Providers of internet services (e.g. dial-up ISPs) or Voice over
Internet Protocol (VoIP) services, via client-supplied
telecommunications connections are also included in this industry.\109\
The SBA small business size standard for this industry classifies firms
with annual receipts of $35 million or less as small.\110\ U.S. Census
Bureau data for 2017 show that there were 1,079 firms in this industry
that operated for the entire year.\111\ Of those firms, 1,039 had
revenue of less than $25 million.\112\ Based on this data, the
Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.
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\107\ See U.S. Census Bureau, 2017 NAICS Definition, ``517919
All Other Telecommunications,'' https://www.census.gov/naics/?input=517919&year=2017&details=517919.
\108\ Id.
\109\ Id.
\110\ See 13 CFR 121.201, NAICS Code 517919 (as of 10/1/22,
NAICS Code 517810).
\111\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Sales, Value of Shipments, or Revenue Size
of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code
517919, https://data.census.gov/cedsci/table?y=2017&n=517919&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false.
\112\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard. The Commission also notes that according to the U.S.
Census Bureau glossary, the terms receipts and revenues are used
interchangeably, see https://www.census.gov/glossary/#term_ReceiptsRevenueServices.
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34. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. This industry comprises establishments
primarily engaged in manufacturing radio and television broadcast and
wireless communications equipment.\113\ Examples of products made by
these establishments are: transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.\114\ The SBA small business size standard for
this industry classifies businesses having 1,250 employees or less as
small.\115\ U.S. Census Bureau data for 2017 show that there were 656
firms in this industry that operated for the entire year.\116\ Of this
number, 624 firms had fewer than 250 employees.\117\ Thus, under the
SBA size standard, the majority of firms in this industry can be
considered small.
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\113\ See U.S. Census Bureau, 2017 NAICS Definition, ``334220
Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing,'' https://www.census.gov/naics/?input=334220&year=2017&details=334220.
\114\ Id.
\115\ See 13 CFR 121.201, NAICS Code 334220.
\116\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Employment Size of Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 334220, https://data.census.gov/cedsci/table?y=2017&n=334220&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false. https://factfinder.census.gov/bkmk/table/1.0/en/ECN/
2012_US/31SG2//naics~334220.
\117\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
35. The Commission expects the various proposals seeking to change
rules to permit expanded fixed use of the 12.2 GHz band considered in
the FNPRM may impose new or additional reporting or recordkeeping and/
or other compliance obligations on small entities, as well as on other
licensees and applicants if adopted. In particular, potential rule
changes involving licensing, registration, and coordination could
increase recordkeeping, reporting, or other operational obligations for
small entities and for other licensees and applicants. There may also
be new compliance obligations created by required equipment upgrades.
As a result of these potential additional obligations, small entities
may need to hire outside consulting or other professional services for
compliance purposes and therefore, the Commission has requested cost-
benefit analyses in the FNPRM. The Commission expects to make a
determination as to whether small entities will incur additional costs
for complying with the rules upon its review of any comments filed.
36. The Commission is also considering adopting rules that will
promote shared access to the 12.2 GHz band that may lead to additional
compliance requirements. For example, should expanded terrestrial use
be authorized in the band, the Commission has requested comment on
whether the burden of avoiding or correcting for interference to
existing or future DBS subscribers should be revised, or whether new
terrestrial operations should be subject to the same requirements for
protecting DBS subscribers that currently apply to other services in
the band. Another proposed approach for comment aimed at protecting
incumbents raised in the FNPRM is whether new terrestrial operations
should be required to disclose certain technical data to facilitate
coordination, which would impact small entities providing new service
within the band.
37. The Commission's assigning of new terrestrial service rights
could also result in new or modified compliance obligations. For
example, the Commission seeks comment as to whether it should modify
existing licenses using the Commission's section 316 authority to
conform to new service rules designed to allow increased operational
flexibility when considering any new fixed service in the band. The
Commission is also considering alternative approaches, such as site-
based, individually coordinated operations relative to existing MVDDS
operations, or whether to allow expanded opportunities for
disaggregation and partitioning to promote more intensive use of the
spectrum.
38. Additionally, potential approaches to facilitate sharing in the
12.2 GHz band upon which the Commission seeks comment in the FNPRM--
both expanded unlicensed use and technology-based sharing approaches
such as Automated Frequency Coordination--could also impact compliance
obligations if adopted. For example, the Commission invites small
entity and other commenters to discuss whether unlicensed use may be
permitted within
[[Page 43513]]
the 12.2-12.7 GHz band under provisions that could be implemented under
the Commission's part 15 rules (47 CFR part 15). The Commission also
seeks comment as to whether the Commission could permit less
restrictive unlicensed use (e.g., higher indoor power levels, outdoor
use, etc.) with a label warning to alert consumers that use near a DBS,
NGSO FSS, or MVDDS receive site could result in harmful interference to
the consumer device. Alternatively, the Commission asks for comment as
to whether dynamic, database-driven coordination capabilities such as
have been implemented in other frequency bands (e.g., 6 GHz unlicensed
and 3.5 GHz Citizens Broadband Radio Service) should be implemented in
the 12.2 GHz band or if another type of frequency management system
would allow for a greater opportunity for expanded terrestrial services
to develop within the band.
39. Other potential impacts to compliance obligations center around
the maintenance of technical data as a means of supporting such a
system. For example, DBS operators are currently required to maintain
data on current subscriber locations; NGSO FSS operators have no
similar requirement to track consumer terminal location data, and
deployments in the band continue to increase. If this system were to be
implemented, the Commission seeks comment as to whether additional
technical data would need to be collected or shared among the licensees
so that an advanced frequency management system could effectively
manage shared use and prevent interference exceedance to the different
services in the band. In the Commission's discussion of these proposals
in the FNPRM, the Commission has requested comments from the parties in
the proceeding and requested cost-benefit analyses, which may help the
Commission identify and evaluate relevant matters for small entities,
including any compliance costs and burdens that may result in the
proceeding.
E. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
40. The RFA requires an agency to describe any significant,
specifically small business, alternatives for small businesses 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.'' \118\
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\118\ 5 U.S.C. 603(c)(1)-(4).
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41. In the FNPRM, the Commission continues to explore how to best
protect current usage of the 12.2 GHz band, while simultaneously
seeking ways to increase innovation in the band by expanding further
terrestrial uses that could benefit millions of people across the
country, as well as small and other entities utilizing those services.
While doing so, the Commission is also mindful that small and other
entities may incur costs should the proposals the Commission makes, and
the alternatives upon which the Commission seeks comment in the FNPRM,
be adopted. Below, the Commission discusses some specific actions taken
and alternatives considered by the Commission in the FNPRM.
42. In the FNPRM, the Commission considers different ways in which
to potentially expand licensed use of terrestrial fixed services in the
12.2 GHz band. For example, expansion of licensed use for incumbent
MVDDS licensees could include increasing power limits or expanding
terrestrial rights for incumbent MVDDS licensees. Incumbent MVDDS
licensees that are small entities may benefit from the expansion of
licensed use. At present, eight companies (10 legal entities) hold 191
MVDDS licenses: two DISH subsidiaries hold 82 licenses; RS Access, a
subsidiary of a Dell investment fund, holds 60 licenses; two Go Long
Wireless entities hold a total of 25 licenses; and five smaller
companies hold a total of 24 licenses.\119\
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\119\ The remaining 23 licenses automatically terminated for
failure to meet the buildout requirement. See Requests of Three
Licensees of 22 Licenses in the Multichannel Video and Data
Distribution Service for Extension of Time to Meet the Final
Buildout Requirement for Providing Substantial Service under Sec.
101.1413 of the Commission's Rules, Applications of Three Licensees
for Renewal of 22 Licenses in the Multichannel Video and Data
Distribution Service, Order, 33 FCC Rcd 10757 (WTB BD 2018), recons.
pending. See also Blumenthal DTV LLC, Call Sign WQAR709 (Terminated
July 26, 2014).
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43. Additionally, in the FNPRM among other things, the Commission
considers what types of technical data reporting requirements should be
considered. More specifically, different technical data reporting
requirements or timetables that take into account their limited
resources; simplification or consolidation of reporting requirements
for small entities; or an exemption from any reporting requirements
considered as potential steps the Commission could take to the benefit
of small entities. The Commission also considers the expansion of
unlicensed use of the band, as a means of potentially creating
additional capacity for Internet of Things (IoT) use,\120\ or
alternatively, other types of applications. As a means of accommodating
this expansion, the Commission considers whether its rules for
unlicensed low power indoor devices in the 6 GHz band could serve as a
model for unlicensed use in the 12.2 GHz band. The use of existing
rules as a model could make the compliance obligations the Commission
adopts for the 12.2 GHZ band easier to meet for those small entities
already complying with similar requirements in the 6 GHz band. In the
FNPRM the Commission seeks comment on this matter.
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\120\ Comments of Public Interest Organizations (New America's
Open Technology Institute, et al.), at 2, 17.
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44. Lastly, the Commission considers whether there may be
opportunities to take advantage of technological advancements to
accommodate expanded terrestrial capabilities in the 12.2 GHz band. For
example, services providing potentially dynamic, database-driven
coordination capabilities, such as those that have been implemented in
other frequency bands (e.g., 6 GHz unlicensed and 3.5 GHz Citizens
Broadband Radio Service) could be implemented in the 12.2 GHz band.
Alternatively, the Commission considers whether perhaps another type of
frequency management system would allow for a greater opportunity for
expanded terrestrial services to develop within the band while
affording protection to incumbent satellite and terrestrial services.
The type of frequency management system adopted could make compliance
easier to meet for small entities providing those services.
Accordingly, in the FNPRM the Commission seeks additional comment on
this issue.
45. The Commission expects to more fully consider the economic
impact and alternatives for small entities following the review of
comments, including cost-benefit analyses, filed in response to the
FNPRM. The Commission's evaluation of this information will shape the
final alternatives it considers to minimize any significant economic
impact that may occur on small entities, the final conclusions it
reaches, and any final rules it promulgates in this proceeding.
[[Page 43514]]
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
46. None.
III. Ordering Clauses
47. It is ordered that, pursuant to sections 1, 2, 4, 5, 301, 302,
303, 304, 307, 309, 310, and 316 of the Communications Act of 1934, 47
U.S.C. 151, 152, 154, 155, 301, 302a, 303, 304, 307, 309, 310, 316, and
Sec. 1.411 of the Commission's rules, 47 CFR 1.411, the Report and
Order and Further Notice of Proposed Rulemaking and Notice of Proposed
Rulemaking and Order in the captioned dockets is adopted.
48. The inquiry in Expanding Flexible Use in Mid-Band Spectrum
Between 3.7-24 GHz, GN Docket No. 17-183, is terminated as to the mid-
band spectrum between 12.2 GHz and 13.25 GHz.
49. It is further ordered that, pursuant to applicable procedures
set forth in Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments on the FNPRM in
WT Docket No. 20-443 and the Notice of Proposed Rulemaking in GN Docket
No. 22-352 on or before the number of days shown on the first page of
this document after publication in the Federal Register, and reply
comment on or before the number of days shown on the first page of this
document after publication in the Federal Register.
50. It is further ordered that the Commission's Office of the
Secretary, Reference Information Center, shall send a copy of the
Report and Order and Further Notice of Proposed Rulemaking and Notice
of Proposed Rulemaking and Order, including the associated Initial
Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of
the Small Business Administration.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2023-13501 Filed 7-7-23; 8:45 am]
BILLING CODE 6712-01-P