[Federal Register Volume 64, Number 7 (Tuesday, January 12, 1999)]
[Proposed Rules]
[Pages 1786-1789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-578]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 2 and 25
[ET Docket No. 98-206, FCC 98-310]
Fixed Satellite Service and Terrestrial System in the Ku-Band
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This Notice of Proposed Rulemaking (``NPRM'') proposes to
establish non-geostationary satellite orbit (``NGSO'') fixed satellite
service (``FSS'') operations which could provide global broadband
wireless services. This NPRM seeks to develop appropriate spectrum
sharing criteria to allow the proposed NGSO FSS operations in the Ku
band without interfering with incumbent operations. If appropriate
sharing criteria are adopted, NGSO FSS operations could increase
spectrum usage, provide a wide variety of broadband wireless services
and increase competition within the satellite service industry. The
NPRM also seeks to develop a more extensive record regarding the
ability of terrestrial based service that would retransmit local
television signals and provide one-way data services to direct
broadcast satellite (``DBS'') subscribers in the 12.2-12.7 GHz band.
DATES: Comments are due February 16, 1999, reply comments are due March
15, 1999. Written comments by the public on the proposed and/or
modified information collections are due March 15, 1999. Written
comments must be submitted by the Office of Management and Budget (OMB)
on the proposed and/or modified information collections on or before
March 15, 1999.
ADDRESSES: All filings must be sent to the Commission's Secretary,
Magalie Roman Salas, Office of the Secretary, Federal Communications
Commission, 445 Twelfth Street, S.W., TW-A325, Washington, DC 20554. In
addition to filing comments with the Secretary, a copy of any comments
on the information collections contained herein should be submitted to
Judy Boley, Federal Communications Commission, Room C-1804, 445 Twelfth
Street, S.W., Washington, DC 20554 or via internet to jboely@fcc.gov,
and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street,
N.W., Washington, D.C. 20503 or via the internet to fain__t@al.eop.gov.
FOR FURTHER INFORMATION CONTACT: Tom Derenge, Office of Engineering and
Technology, (202) 418-2451. For additional information or copies of the
information collections contact Judy Boley at (202) 418-0214 or via
internet at jboley@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rule Making, ET Docket 98-206, FCC 98-310, adopted November
19, 1998, and released November 24, 1998. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC Reference Center (Room CY-C404), 445
Twelfth Street, S.W., Washington, D.C., and also may be purchased from
the Commission's duplication contractor, International Transcription
Service, (202) 857-3800, 1231 20th Street, N.W. Washington, D.C. 20036.
This Notice of Proposed Rulemaking contains proposed or modified
information collections subject to the Paperwork Reduction Act of 1995
(PRA). It has been submitted to the Office of Management and Budget
(OMB) for review under the PRA. OMB, the general public, and other
Federal agencies are invited to comment on the proposed or modified
information collections contained in this proceeding.
Summary of the Notice of Proposed Rulemaking
1. The Commission takes this action in response to two Petitions
for Rulemaking filed on July 3, 1997 and March 6, 1998, by SkyBridge
L.L.C. (``SkyBridge'')(RM-9147) and Northpoint Technology
(``Northpoint'') (RM-9245), respectively. Additionally, the NPRM
considers changes to the International Radio Regulations contained in
the Final Acts of the 1997 World Radiocommunication Conference (``Final
Acts of WRC-97''), Geneva, 1997.
2. Skybridge Petition. SkyBridge requests that the Commission amend
its rules to permit non-geostationary satellite orbit (``NGSO'') fixed
satellite service (``FSS'') systems to operate in the United States
(``U.S.'') in the 10.7-12.7 GHz band for NGSO space-to-earth links
(``downlinks'') (a total of 2 gigahertz) and in the 12.75-13.25 GHz,
13.75-14.5 GHz, and 17.3-17.8 GHz bands for NGSO earth-to-space links
(``uplinks'') (a total of 1.75 gigahertz). The requested downlink bands
are generally used by geostationary-satellite orbit (``GSO'') FSS, DBS
and fixed services. The requested appliance bands are generally used by
GSO FSS operations, fixed services, mobile services, and Government
operations. SkyBridge proposes technical criteria which it claims would
protect GSO satellite and terrestrial operations in these bands from
unacceptable interference from NGSO FSS systems. SkyBridge contends
that its system would provide high-speed Internet and on-line access
services, video conferencing and telephony, entertainment services,
interactive video on demand, and a variety of substitutes for
terrestrial infrastructure links.
3. WRC-97/2000. To promote spectrum sharing between NGSO systems
and other services, WRC-97 adopted spectrum sharing criteria for NGSO
systems in the Ku and Ka-bands (see Notice at paragraphs 4-6 for an
explanation). However, because the studies justifying the WRC-97 action
had not gone through the typical International Telecommunications Union
(``ITU'') study group process for validation, several components of the
spectrum sharing criteria are deemed provisional, or are subject to
review and possible modification at WRC-2000 to determine whether they
adequately protect incumbent operations. Currently, Joint Task Group
(``JTG'') 4-9-11, in which the U.S. participates, is conducting
technical analyses of NGSO FSS sharing issues in preparation for WRC-
2000.
4. Northpoint Petition. Northpoint proposes to provide terrestrial
retransmission of local television signals and provide one-way data
services to DBS receivers in the 12.2-12.7 GHz band on a secondary
basis. Northpoint states that its proposal would allow DBS subscribers
to receive local television programming and one-way data services with
minimal additional equipment and thus would permit the DBS service to
compete more fully with cable television services. Because Northpoint
is requesting that its technology be permitted to operate in some of
the same spectrum requested by SkyBridge, we are addressing both
petitions in this proceeding.
5. The NPRM proposes to allow NGSO FSS downlink operations on a co-
[[Page 1787]]
primary basis in the 10.7-12.7 GHz band, and allow NGSO FSS appliance
operations on a co-primary basis in the 12.75-13.25 GHz and 13.8-14.5
GHz bands. The NPRM does not propose to allow NGSO FSS appliance
operations in the 13.75-13.8 GHz band due to potential interference
with Government operations and in the 17.3-17.8 GHz band because of a
conflict with use of this band for broadcasting satellite services
(``BSS'') and radiolocation services. The NPRM proposes to use the WRC-
97 power flux density (``pfd'') limits for sharing with the terrestrial
fixed services and seeks comment on the WRC-97 spectrum sharing
criteria (e.g., accumulative pfd (``apfd'') and effective pfd
(``epfd'') limits and off-axis eirp limits) for sharing with other
services. The NPRM requests further analysis regarding the adequacy of
the WRC-97 limits, including the impacts of multiple NGSO FSS systems,
as well as alternative proposals to enable NGSO FSS operations in these
frequency bands. The NPRM also proposes to adopt coordination
requirements and other procedures to facilitate NGSO FSS sharing with
incumbent services. Further, the NPRM proposes to implement the WRC-97
allocation of the 12.2-12.7 GHz band to the FSS, and proposes initial
licensing and service rules for NGSO FSS.
6. The NPRM does not propose to adopt Northpoint's suggested use of
the 12.2-12.7 GHz band, but seeks to develop a more thorough record to
determine the spectrum sharing feasibility of its proposed system.
Specifically, the NPRM requests further analysis regarding Northpoint's
ability to operate in the DBS band without causing harmful degradation
of DBS service to customers. Further, the NPRM asks whether the
SkyBridge and Northpoint proposals could both share spectrum with DBS
and, if not, whether the band should be segmented to accommodate both
proposed services (assuming sharing is feasible).
7. We note that there are other proceedings which could influence
the spectrum bands requested by these two petitions. Specifically, on
April 1, 1998, OpTel, Inc. (OpTel), an operator of private cable
systems, filed a Petition for Rulemaking (RM-9257) with the Commission
to amend parts 78 and 101 of the Commission's rules to allow licensees
in the fixed microwave service to use frequencies in the 12.7-13.25 GHz
band to transmit video programming material to end users. Additionally,
the Commission has initiated a proceeding to consider the carriage of
digital broadcast television signals over the cable TV infrastructure
which may create capacity demands on the CARS frequencies. The NPRM
requests comment on whether these proceedings would conflict with
potential NGSO FSS operations in the 12.75-13.25 GHz band.
Initial Regulatory Flexibility Analysis
8. As required by the Regulatory Flexibility Act
(``RFA''),1 the Commission has prepared this Initial
Regulatory Flexibility Analysis (``IRFA'') of the possible significant
economic impact on small entities by the policies and rules proposed in
this Notice of Proposed Rulemaking (``NPRM''). Written public comments
are requested on this IRFA. Comments must be identified as responses to
the IRFA and must be filed by the deadlines for comments on the NPRM
provided above. The Commission will send a copy of the NPRM, including
this IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration. See 5 U.S.C. 603(a). In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.
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\1\ See 5 U.S.C. 603. The RFA, see, 5 U.S.C. 601 et seq., has
been amended by the Contract With America Advancement Act of 1996,
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the
CWAAA is the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA).
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Need for, and Objectives of, the Proposed Rules
9. We undertake this proceeding to address the spectrum sharing
issues presented by SkyBridge's and Northpoint's proposed use of
spectrum in the Ku-band frequency range. These proposals could increase
competition and provide new advanced services to the public.
Specifically, SkyBridge's proposal could provide new high-speed data
services and offer additional competition to other satellite services,
and terrestrial wireless and wireline services. Similarly, Northpoint's
proposal could provide local video and new data services and facilitate
competition to cable television systems. There is, however, extensive
use of the requested frequency bands in the U.S. and these incumbent
operations provide important and valuable services to the public. While
we desire to promote competition and innovation by allowing for new
services or additional spectrum use, we also need to consider the
competing interests of the incumbent services in these bands.
10. Therefore, we propose to permit non-geostationary satellite
orbit (``NGSO'') fixed-satellite service (``FSS'') operations
2 in certain segments of the Ku-band 3 and
propose rules and policies to govern such operations. We also propose
or ask for comment on technical criteria to ensure that such NGSO FSS
operations do not cause harmful interference to existing users or do
not unduly constrain future growth of incumbent services. Specifically,
we ask whether the spectrum sharing criteria developed at the 1997
International Telecommunication Union (``ITU'') World
Radiocommunication Conference (``WRC-97'') 4 are adequate to
permit NGSO FSS operations in various segments of the Ku-band or
whether other criteria are needed to protect incumbent users. In
addition, we ask for comment on a proposal to permit terrestrial use of
the 12.2-12.7 GHz band for the retransmission of local television and
provision of one-way data services by direct broadcast satellite
(``DBS'') service operators and their affiliates.
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\2\ NGSO satellite systems, such as proposed by SkyBridge, are
characterized by a constellation of satellites continuously orbiting
the earth, rather than appearing to remain stationary relative to a
user as a geostationary satellite does. NGSO satellites operate at
lower altitudes and therefore appear to move from horizon to
horizon. As the NGSO satellites move through their orbit, they
transmit to and receive from earth stations that are in view of the
satellite. Geostationary satellites orbit 22,300 miles above the
Earth in the plane of the Earth's equator. At this altitude, the
geostationary satellite's position appears fixed relative to an
observer on the Earth.
\3\ The Ku-band generally refers to frequencies within the 12
GHz to 18 GHz range. The specific bands subject to this proceeding
are the 10.7-12.7 GHz, 12.75-13.25 GHz, 13.75-14.5 GHz, and 17.3-
17.8 GHz bands. For the purposes of this proceeding, we use the term
``Ku-band'' to refer generally to all of the frequency bands listed
above that are under consideration in this proceeding.
\4\ See Final Acts of the 1997 World Radiocommunication
Conference (``Final Acts of WRC-97''); Article S21, Article S22,
Resolution 130, Resolution 131, Resolution 538 (Geneva, 1997).
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Legal Basis
11. The proposed action is authorized under sections 4(i), 7(a),
303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and
303(r).
Description and Estimate of the Number of Small Entities To Which the
Proposed Rules May Apply
12. Skybridge has requested that the Commission amend Parts 2 and
25 of its rules to permit NGSO FSS systems to operate in the United
States (``U.S.'') in the 10.7-12.7 GHz band for NGSO space-to-earth
links (``downlinks'') (a total of 2 gigahertz) and in the 12.75-13.25
GHz, 13.75-14.5 GHz, and 17.3-17.8 GHz bands for NGSO earth-to-space
links (``uplinks'') (a total of 1.75 gigahertz). The requested downlink
bands are generally used by
[[Page 1788]]
geostationary-satellite orbit (``GSO'') FSS, DBS and fixed services.
The requested appliance bands are used by GSO FSS operations, fixed
services, mobile services, and Government operations.
13. The RFA generally defines the term ``small entity `` as having
the same meaning as the terms ``small business,'' ``small
organization,'' and ``small governmental jurisdiction.'' 5
In addition, the term ``small business'' has the same meaning as the
term ``small business concern'' under the Small Business
Act.6 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 additional criteria established by the
Small Business Administration (``SBA'').7 A small
organization is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
8
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\5\ Id. Sec. 601(6).
\6\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in 15 U.S.C. 632). Pursuant to the
RFA, 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.'' 5 U.S.C. 601(3).
\7\ Small Business Act, 15 U.S.C. 632 (1996).
\8\ 5 U.S.C. 601(4).
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14. Regarding incumbent cable television operations in the 12.75-
13.25 GHz band, the SBA has developed a definition of small entities
for cable and other pay television services, which includes all such
companies generating $11 million or less in revenue annually. This
definition includes cable systems operators, closed circuit television
services, direct broadcast satellite services, multipoint distribution
systems, satellite master antenna systems and subscription television
services. According to the Census Bureau, there were 1,788 total cable
and other pay television services and 1,423 had less than $11 million
in revenue.
15. The Communications Act also contains a definition of a small
cable system operator, which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than 1 percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' The Commission has determined that there are 61,700,000
subscribers in the United States. Therefore, we found that an operator
serving fewer than 617,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all of its affiliates, do not exceed $250 million in the
aggregate. Based on available data, we find that the number of cable
operators serving 617,000 subscribers or less totals 1,450. We do not
request nor do we collect information concerning whether cable system
operators are affiliated with entities whose gross annual revenues
exceed $250,000,000, and thus are unable at this time to estimate with
greater precision the number of cable system operators that would
qualify as small cable operators under the definition in the
Communications Act.
16. Regarding incumbent DBS operations in the 12.2-12.7 GHz band,
because DBS provides subscription services, DBS falls within the SBA
definition of Cable and Other Pay Television Services (SIC 4841). This
definition provides that a small entity is expressed as one with $11.0
million or less in annual receipts. As of December 1996, there were
eight DBS licensees. However, the Commission does not collect annual
revenue data for DBS and, therefore, is unable to ascertain the number
of small DBS licensees that could be impacted by these proposed rules.
Although DBS service requires a great investment of capital for
operation, we acknowledge that there are several new entrants in this
field that may not yet have generated more than $11 million in annual
receipts, and therefore may be categorized as a small business, if
independently owned and operated.
17. Regarding incumbent GSO FSS satellite use and the proposed NGSO
FSS use in these requested bands, the Commission has not developed a
definition of small entities applicable to geostationary or non-
geostationary orbit fixed-satellite service applicants or licensees.
Therefore, the applicable definition of small entity is the definition
under the Small Business Administration (SBA) rules applicable to
Communications Services, Not Elsewhere Classified. This definition
provides that a small entity is one with $11.0 million or less in
annual receipts.9 According to Census Bureau data, there are
848 firms that fall under the category of Communications Services, Not
Elsewhere Classified which could potentially fall into the
geostationary or non-geostationary orbit fixed-satellite service
category. Of those, approximately 775 reported annual receipts of $11
million or less and qualify as small entities.10 Generally,
these NGSO and GSO FSS systems cost several millions of dollars to
construct and operate. Therefore the NGSO and GSO FSS companies, or
their parent companies, rarely qualify under this definition as a small
entity.
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\9\ 13 CFR 121.201, Standard Industrial Classification (SIC)
Code 4899.
\10\ U.S. Bureau of Census, U.S. Department of Commerce, 1992
Census of Transportation, Communications, Utilities, UC92-S-1,
Subject Series, Establishment and Firm Size, Table 2D, Employment
Size of Firms: 1992, SIC Code 4899 (issued May 1995).
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18. Regarding Auxiliary, Special Broadcast and other program
distribution services in the Ku-band. This service involves a variety
of transmitters, generally used to relay broadcast programming to the
public (through translator and booster stations) or within the program
distribution chain (from a remote news gathering unit back to the
station). The Commission has not developed a definition of small
entities applicable to broadcast auxiliary licensees. Therefore, the
applicable definition of small entity is the definition under the Small
Business Administration (SBA) rules applicable to radio broadcasting
stations (SIC 4832) and television broadcasting stations (SIC 4833).
These definitions provide, respectively, that a small entity is one
with either $5.0 million or less in annual receipts or $10.5 million in
annual receipts. 13 CFR 121.201, SIC CODES 4832 and 4833. There are
currently 2,720 FM translators and boosters, 4,952 TV translators. The
FCC does not collect financial information on any broadcast facility
and the Department of Commerce does not collect financial information
on these auxiliary broadcast facilities. We believe, however, that
most, if not all, of these auxiliary facilities could be classified as
small businesses by themselves. We also recognize that most translators
and boosters are owned by a parent station which, in some cases, would
be covered by the revenue definition of small business entity discussed
above. These stations would likely have annual revenues that exceed the
SBA maximum to be designated as a small business (as noted, either $5
million for a radio station or $10.5 million for a TV station).
Furthermore, they do not meet the Small Business Act's definition of a
``small business concern'' because they are not independently owned and
operated.
19. Incumbent microwave services in the 10.7-11.7 GHz and 12.75-
13.25 GHz bands, include common carrier, private operational fixed, and
broadcast auxiliary radio services. At present, there are 22,015 common
carrier licensees, approximately 61,670 private
[[Page 1789]]
operational fixed licensees and broadcast auxiliary radio licensees in
the microwave services. Inasmuch as the Commission has not yet defined
a small business with respect to microwave services, we will utilize
the SBA's definition applicable to radiotelephone companies--i.e., an
entity with no more than 1,500 persons. 13 CFR 121.201, SIC CODE 4812.
We estimate, for this purpose, that all of the Fixed Microwave
licensees (excluding broadcast auxiliary licensees) would qualify as
small entities under the SBA definition for radiotelephone companies.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
20. We propose to apply the part 25 rules governing reporting
requirements for FSS systems. Specifically, licensees are required to
file an annual report with the Commission describing: the status of
satellite construction and anticipated launch dates, including any
major delays or problems encountered; a listing of any unscheduled
satellite outages for more than 30 minutes including the cause(s) of
any such outages; and a detailed description of the utilization made of
each satellite on each of the in-orbit satellites.
Steps Taken to Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
21. We propose to adopt or seek comment on adequate spectrum
sharing criteria to minimize the potential for interference of these
new NGSO FSS operations on incumbent operations, many of which qualify
as small entities. Further, to promote system growth for the fixed
microwave service (which includes most of the small entities under
consideration in this proceeding), we are proposing to establish
exclusion areas around the top 50 cities in the U.S. which would not
permit NGSO earth stations to construct in these areas for several
years. This proposal should permit fixed service small entities some
level of assurance that future fixed links could be established without
hinderance from NGSO FSS earth stations. We request comment on other
alternatives that could minimize the impact of this action on small
entities.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
22. None.
23. The Commission's Office of Public Affairs, Reference Operations
Division will send a copy of this NPRM to the Chief Counsel for
Advocacy of the Small Business Administration.
24. Paperwork Reduction Act. This Notice of Proposed Rulemaking
contains either a proposed or modified information collection. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and the Office of Management and
Budget (OMB) to comment on the information collections contained in
this Notice of Proposed Rulemaking, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments
are due at the same time as other comments on the NPRM; OMB comments
are due March 15, 1999. Comments should address: (a) whether the
proposed collection of information is necessary for the proper
performance of the functions of the Commission, including whether the
information shall have practical utility; (b) the accuracy of the
Commission's burden estimates; (c) ways to enhance the quality,
utility, and clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
OMB Control Number: N.A.
Title: Fixed Satellite Service and NGSO Sharing in Ku-Band.
Form No.: N/A.
Type of Review: New collection.
Respondents: Business or other for-profit entities.
Number of Respondents: 5.
Estimated time per response: 22 hours.
Total Annual Burden: 110 hours.
Total Annual Cost: This includes the charges for hiring an
attorney, legal assistant, or engineer at $150 an hour to complete the
submissions. The estimated average time to complete space station
submissions is 20 hours per response. Based on the assumption that
applicants will hire outside counsel at an approximate cost of $150 per
hour, it is estimated that the cost per submission will be $3,300.00.
Needs and Uses: In accordance with the Communications Act, the
information collected will be used by the Commission in evaluating
applications requesting authority to operate pursuant to part 25 of the
Commission's rules. The information will be used to determine the
legal, technical, and financial ability of the applicants and will
assist the Commission in determining whether grant of such
authorizations are in the public interest.
List of Subjects
47 CFR Part 2
Communications equipment, Radio.
47 CFR Part 25
Communications equipment, Radio, Satellites.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 99-578 Filed 1-11-99; 8:45 am]
BILLING CODE 6712-01-P
