[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?
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.).
---------------------------------------------------------------------------

    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?
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \51\ See 47 CFR 101.113(a) n.11; 101.147(p).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \118\ 5 U.S.C. 603(c)(1)-(4).
---------------------------------------------------------------------------

    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