E7-14882. Unlicensed Devices and Equipment Approval

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

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

DATES:

Effective August 31, 2007.

FOR FURTHER INFORMATION CONTACT:

Hugh L. Van Tuyl, [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Memorandum Opinion and Order, ET Docket No. 03-201, FCC 07-117, adopted June 19, 2007 and released June 22, 2007. The full text of this document is available on the Commission's Internet site at http://www.fcc.gov. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street., SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone [phone]; fax [phone]; e-mail [e-mail].

Summary of the Memorandum Opinion and Order

1. The Commission dismissed two petitions for reconsideration of the rules adopted in the Report and Order, 69 FR 54027, September 7, 2004, in this proceeding. It dismissed a petition for reconsideration filed by Warren C. Havens and Telesaurus Holdings GB LLC (“Havens”) requesting that the Commission suspend the rule changes adopted for unlicensed devices in the 902-928 MHz (915 MHz) band until such time as it completes a formal inquiry with regard to the potential effect of such changes to Location and Monitoring Service (LMS) licensees in the band. The Commission also dismissed a petition for reconsideration filed by Cellnet Technology (“Cellnet”) requesting that the Commission adopt spectrum sharing requirements in the unlicensed bands, e.g., a “spectrum etiquette,” particularly in the 915 MHz band.

2. Havens requested that the Commission suspend the rule changes adopted in this docket for unlicensed devices in the 915 MHz band until such time as the Commission completes a formal inquiry with regard to the potential effect of such changes to M-LMS licensees in the band and it determines either that there will be no material adverse effects or that it will allow counterbalancing changes (e.g., waivers or forbearance of LMS rules) to maintain the balance between higher power LMS systems and unlicensed devices. Havens does not specify which particular rule changes it believes should be suspended. In support of this request, Havens asserts that it cannot “efficiently or effectively” comply with rule § 90.353(d) which requires that M-LMS licensees design, construct and field test their systems to minimize adverse effects on part 15 devices if unlicensed devices operating in the band change as a result of the new rules adopted in the Report and Order. It claims that the new rules will lead to increased spectrum use of the 915 MHz band by unlicensed devices and thus will adversely affect M-LMS systems by changing the “regulatory coexistence” between part 15 and LMS operations (i.e., the balance of aggregate M-LMS systems and aggregate unlicensed devices) and by altering the premise of the “safe harbor” in rule § 90.361 (i.e., that unlicensed devices would not operate in close proximity to M-LMS). Havens further alleges that the part 15 rule changes violate § 15.5 of the rules, which requires that unlicensed devices not interfere with licensed system operations.

3. The Commission declines to suspend the part 15 rule changes adopted in the Report and Order or consider modifying the M-LMS rules as requested by Havens. The Commission notes that Havens did not raise any objections to any proposals in the Notice of Proposed Rule Making (NPRM), 68 FR 68823, September 17, 2003, during the pendancy of this proceeding. A petition for reconsideration that relies on facts not previously presented to the Commission will be granted only if: The facts relied on relate to events which have occurred or circumstances which have changed since the last opportunity to present them to the Commission; the facts relied upon were unknown to the petitioner until after his last opportunity to present them to the Commission, and he could not through the exercise of due diligence have learned of the facts in question prior to such opportunity; or the Commission determines that consideration of the facts relied on is required in the public interest. Havens does not address why it did not previously participate in this proceeding or claim that any of these three conditions are met in this case.

4. The Commission's rules also require that a petition for reconsideration state with particularity the respects in which the petitioner believes the action taken should be changed. The Commission modified several part 15 rules that apply to unlicensed devices that may operate in the 915 MHz band, in addition to other frequency bands. Havens does not identify the particular rule changes that it believes should be suspended. Havens provides only a mere statement of belief that the rule changes in this proceeding will lead to increased use of part 15 devices in the 915 MHz band and thus will result in adverse effects on M-LMS operations. It provides no evidence or analysis to support this assertion. Finally, the Commission notes that Havens raised essentially the same arguments in its petition for reconsideration in ET Docket No. 99-231 concerning changes to the part 15 rules for spread spectrum devices. The Commission rejected these same arguments in that proceeding. Accordingly, the Commission dismissed the Havens petition.

5. The Commission recently initiated a proceeding to reexamine the rules for the M-LMS operating in the 904-909.75 MHz and 919.75-928 MHz portion of the 915 MHz band. See Amendment of the Commission's Part 90 Rules in the 904-909.75 and 919.75-928 MHz Bands, Notice of Proposed Rulemaking in WT Docket No. 06-49, 21 FCC Rcd 2809 (2006), 71 FR 15658, March 29, 2006. That proceeding was originated by the Commission partly in response to a 2002 petition for rule making filed by Progeny LMS, LLC requesting changes to these rules. That proceeding is the appropriate forum for Havens to address its concerns about the M-LMS rules, including the “safe harbor” rule regarding the operational relationship between part 15 unlicensed devices and part 90 M-LMS devices.

6. Cellnet requests reconsideration of the Commission's decision not to adopt a spectrum etiquette for unlicensed devices. Cellnet produces equipment for the automated reading of gas, water, and electric meters that uses spread spectrum transmitters operating on an unlicensed basis in the 915 MHz band. It states that the Commission should: Adopt a duty cycle limitation and other effective spectrum etiquette for any newly certified devices using digital modulation that operate in the 915 MHz band, and confirm in a public notice the obligation of all operators of unlicensed devices in this band authorized under part 15 to avoid causing harmful interference to licensed and unlicensed devices operating in the band and to work cooperatively with operators of any other devices that may be experiencing interference to resolve any such incidents. Cellnet states that these actions are necessary to assure that users taking advantage of newly authorized technical flexibility in this heavily encumbered band do not create the type of interference that will deny the continued effective use of this band by existing and future users. It submits that prior to the Commission's adoption of the new rules on which new entrants have relied on to operate at higher power and without effective duty cycles, the few problems that arose among devices operating in the band were readily resolved with cost effective engineering solutions by affected manufacturers and users.

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

Ordering Clauses

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

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

Congressional Review Act

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

List of Subjects in 47 CFR Part 15

• Communications equipment

Federal Communications Commission.

Marlene H. Dortch,

Secretary.