[Federal Register Volume 61, Number 211 (Wednesday, October 30, 1996)]
[Rules and Regulations]
[Pages 55924-55926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27818]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 15 and 97
[ET Docket No. 94-32; FCC 96-390]
Allocation of Spectrum Below 5 GHz Transferred From Federal
Government Use
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission declines to adopt additional service rules or
coordination procedures for the amateur service and Data-PCS devices or
for the amateur service. The Commission also prohibits airborne use of
all unlicensed devices in the 2390-2400 MHz band in order to protect
space research conducted at the National Astronomy and Ionospheric
Center Observatory (NAIC) at Arecibo, Puerto Rico. In addition, the
Commission declines to combine the 2390-2400 MHz and 2400-2483.5 MHz
bands for use by both Data-PCS and other unlicensed devices. It
reaffirms that as long as the unlicensed device satisfies the technical
standards of the band in which it is operating, the device would be
permitted to transmit in either band. This action permits immediate use
of the 2390-2400 MHz and 2402-2417 MHz bands by the amateur service,
Data-PCS devices, and other unlicensed devices under existing rules.
Finally the new and enhanced services and uses permitted by this action
will create new jobs, foster economic growth, and improve access to
communications by industry and the American public.
EFFECTIVE DATE: November 29, 1996.
FOR FURTHER INFORMATION CONTACT: Sean White (202) 418-2453 and Tom
Derenge (202) 418-2451, Office of Engineering and Technology.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth
Report and Order, ET Docket 94-32, FCC 96-390, adopted September 20,
1996, and released October 18, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, N.W.,
Washington, D.C., and also may be purchased from the Commission's
duplication contractor, International Transcription Service, (202) 857-
3800, 2100 M Street, N.W., Suite 140, Washington, D.C. 20037.
Summary of the Report and Order
1. By this action, the Commission addresses issues raised in the
First Report and Order and Second Notice of Proposed Rule Making (First
R&O and Second NPRM), 60 FR 13102, March 10, 1995, 10 FCC Rcd 4769
(1995) in this proceeding regarding sharing of the 2390-2400 MHz and
2402-2417 MHz bands by the Amateur Radio Service and unlicensed
devices. On February 7, 1995, the Commission adopted the First R&O and
Second NPRM. In that action, the Commission made the 2390-2400 MHz band
available for use by unlicensed Data Personal Communications Services
(Data-PCS) devices on a non-interference basis, provided for continued
use of the 2402-2417 MHz band by other, non-Data-PCS, Part 15 devices,
upgraded the allocation for both of these bands for use by the Amateur
Radio Service from secondary to primary, and allocated the 4660-4685
MHz band for use by the Fixed and Mobile Services. Additionally, we
extended the existing rules governing Data-PCS at 1910-1920 MHz to the
2390-2400 MHz band and decided that both the amateur service and non-
Data-PCS Part 15 operations at 2402-2417 MHz would continue to be
governed in accordance with currently applicable technical and
operational rules.
2. In the First R&O and Second NPRM, we also requested comment on
any rule changes that might be necessary for the amateur service and
non-Data-PCS Part 15 devices to share the spectrum more efficiently. In
addition, we stated that Data-PCS and amateur use of 2390-2400 MHz
would generally be compatible and that it was unnecessary to propose
any formal standards for sharing between these services in this band.
However, we requested comment on whether formal sharing requirements
would be needed or whether formal coordination procedures should be
developed for amateur/Data-PCS use.
3. We also proposed to prohibit airborne use of all unlicensed
devices operating at 2390-2400 MHz in order to protect space research
operations at 2380 MHz in the vicinity of the National Astronomy and
Ionospheric Center Observatory (NAIC) at Arecibo, Puerto Rico. Noting
that we were not proposing similarly to prohibit the terrestrial use of
unlicensed devices in the vicinity of the NAIC, we sought comment on
whether the proposed ban on airborne use would provide adequate
protection to space research operations and, if not, what additional
steps we should take to provide greater protection. In addition, we
sought comment on whether the 2390-2400 MHz band and the superjacent
2400-2483.5 MHz band, where Part 15 operations are currently
authorized, should be combined for use as a single, large Part 15 band.
4. In addition to commenting on these proposals, several commenters
requested that we allocate the 2390-2400 MHz and 2402-2417 MHz bands to
unlicensed devices on a primary basis. Currently, unlicensed devices
have no allocation status, but are permitted to operate on a non-
interference basis to other users of the bands.
5. In this Fourth Report and Order (Fourth R&O) the Commission
declines to adopt additional service rules or coordination procedures
for the amateur service and Data-PCS devices or for the amateur service
and other Part 15 devices. We find that the existing technical rules
governing use of these bands are adequate and that no additional rules
are needed. We also prohibit airborne use of all unlicensed devices in
the 2390-2400 MHz band in order to protect space research conducted at
the NAIC. In addition, we decline to combine the 2390-2400 MHz and
2400-2483.5 MHz bands for use by both Data-PCS and other Part 15
devices. Instead, the item reaffirms that as long as the unlicensed
device satisfies the technical standards of the band in which it is
operating, the device would be permitted to transmit in either band.
Finally, the Commission concludes that this is not the appropriate
proceeding to address requests for a primary allocation for unlicensed
devices in the 2390-2400 MHz and 2402-2417 MHz bands.
[[Page 55925]]
Final Regulatory Flexibility Analysis
6. As required by Section 603 of the Regulatory Flexibility Act, 5
U.S.C. 603 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the First Report and Order and Second Notice of
Proposed Rule Making, (First R&O and Second NPRM), ET Docket No. 94-
32.\1\ The Commission sought written public comments on proposals in
the First R&O and Second NPRM, including the IRFA. The Commission's
Final Regulatory Flexibility Analysis (FRFA) in this Fourth Report and
Order conforms to the RFA, as amended by the Contract With America
Advancement Act of 1996 (CWAAA), Public Law 104-121, 110 Stat. 847
(1996).\2\
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\1\ See 10 FCC Rcd 4769 (1995).
\2\ Subtitle II of the CWAAA is ``The Small Business Regulatory
Enforcement Fairness Act of 1996'' (SBREFA), codified at 5 U.S.C.
601 et seq.
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7. Need for and Objectives of the Rule: This action is taken in
response to the Reconciliation Act,\3\ which required the Secretary of
Commerce to identify 200 megahertz of spectrum, currently allocated for
use by Federal Government agencies, that could be transferred for
private sector use, and in response to the ensuing Preliminary Spectrum
Reallocation Report published by the Department of Commerce,\4\ which
identified such spectrum. The First R&O and Second NPRM in this
proceeding allocated the 2390-2400 MHz band to the Amateur Radio
Service and Data-PCS, the 2402-2417 MHz band to the Amateur Radio
Service, and the 4660-4685 MHz band to the Fixed and Mobile Services.
It also inquired as to whether we should prohibit aeronautical use of
Data-PCS or other unlicensed devices to protect space research
operations at the National Astronomy and Ionospheric Center (NAIC) at
Arecibo, Puerto Rico, as well as whether we should allow Data-PCS
devices to operate in the 2400-2483.5 MHz band where other unlicensed
devices operate, and vice versa. The allocation of Data-PCS spectrum is
intended to provide enhanced communication service to the American
public, while also creating new jobs, fostering economic growth, and
increasing access to communications for industry and the public. The
upgrade to primary status of the amateur allocation in this spectrum
will encourage amateur operators to use this spectrum. The Commission's
adoption of rules to prohibit the use of Data-PCS devices in the 2390-
2400 MHz band while airborne, is intended to protect space research
operations at the NAIC.
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\3\ Omnibus Budget Reconciliation Act of 1993, Pub. L. 103-66,
107 Stat 312 (enacted August 10, 1993).
\4\ See Spectrum Reallocation Final Report, U.S. Department of
Commerce, NTIA, Special Publication 95-32, February 1995.
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8. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA: No comments directly responded to the IRFA. In
general comments on the First R&O and Second NPRM, however, some
commenters raised an issue that might affect small entities. Some
commenters argued that merging the 2390-2400 MHz band with the
superjacent 2400-2483.5 MHz band into a single, large band for non-
Data-PCS devices would make the spectrum more useful to manufacturers
and users of unlicensed spread spectrum equipment, some of whom may be
small entities. Because Data-PCS devices are asynchronous devices and
follow a special spectrum sharing etiquette, while other Part 15
unlicensed devices are typically isochronous and do not adhere to a
spectrum sharing etiquette, the Commission determined that combining
the bands presented a significant danger of delaying or hampering the
growth of Data-PCS through interference from other unlicensed devices.
Manufacturers and users of Data-PCS devices may also be small entities,
and the Commission declined to combine the bands because of the
potential for mutual harmful interference between Data-PCS devices and
other unlicensed devices.
9. Description and Estimate of the Number of Small Entities to
Which the Rules Will Apply: The rule adopted in this Fourth Report and
Order will apply to any small entity using Data-PCS devices while
airborne in the continental United States. Because Data-PCS is as yet
undeveloped, no meaningful estimate of the number or description of
such small entities is possible. Since the Regulatory Flexibility Act
amendments were not in effect until the record in this proceeding was
closed, the Commission was unable to request an estimate of the number
of small businesses that may be affected.
However, as Data-PCS service evolves, and until the Commission
establishes a pertinent definition of small entities, the applicable
definition will be under the Small Business Association (SBA) rules
applicable to Communications Services, Not Elsewhere Classified. This
definition provides that a small entity is expressed as one with $11.0
million or less in annual receipts.\5\ According to Census Bureau data,
there are 848 firms that fall under the category of Communications
Services, Not Elsewhere Classified. Of those, approximately 775
reported annual receipts of $11 million or less and qualify as small
entities.\6\
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\5\ 13 CFR 121.201, Standard Industrial Classification (SIC)
Code 4899.
\6\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992
Census of Transportation, Communications, and 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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10. Summary of Projected Reporting, Recordkeeping, and Other
Compliance Requirements: The rule adopted in this Fourth Report and
Order imposes no reporting or recordkeeping requirements. The rule also
requires no affirmative compliance action by any entity to which it
applies. Rather, the rule operates as a prohibition on the use of Data-
PCS devices in the 2390-2400 MHz band while airborne in the continental
United States. We do not predict that any compliance costs,
administrative or otherwise, will be imposed on entities subject to
this rule.
11. Significant Alternatives and Steps Taken to Minimize the
Economic Impact on a Substantial Number of Small Entities Consistent
with the Stated Objectives: The Commission believes that this
allocation of Data-PCS spectrum will facilitate the creation of new
jobs and economic growth. At the suggestion of commenters, the
Commission considered and rejected a complete ban on all use of
unlicensed devices in the vicinity of the NAIC. The Commission rejected
this alternative as excessively burdensome to small entities using
Data-PCS, while of little benefit in protecting space research
operations at the NAIC. The Commission also considered and agreed with
a recommendation by Apple that manufacturers should not be held
responsible for designing Data-PCS devices to cease operations while
traveling in aircraft.\7\ We believe that this would place an
unnecessary burden on the manufacturer and we believe that it will be
the responsibility of the user to control when and where the device is
used. Data-PCS is a nascent service, and it is not possible to
determine the impact this action will have on small businesses, because
we have no data on the number of small businesses likely to use Data-
PCS.
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\7\ See, decision at para. 22.
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12. Report to Congress: The Commission shall send a copy of this
Final Regulatory Flexibility Analysis, along with this Fourth Report
and Order, in a report to Congress pursuant to the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801(a)(1)(A).
[[Page 55926]]
List of Subjects
47 CFR Part 15
Communications equipment, Radio.
47 CFR Part 97
Communications equipment, Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Parts 15 and 97 of Title 47 of the Code of Federal Regulation are
amended as follows:
PART 15--RADIO FREQUENCY DEVICES
1. The authority citation for Part 15 continues to read as follows:
Authority: 47 U.S.C. 154, 302, 303, 304, 307 and 544A.
2. Section 15.321 is amended by adding paragraph (g) to read as
follows:
Sec. 15.321 Specific requirements for asynchronous devices operating
in the 1910-1920 MHz and 2390-2400 MHz bands.
* * * * *
(g) Operation of devices in the 2390-2400 MHz band from aircraft
while airborne is prohibited, in order to protect space research
operations at the National Astronomy and Ionospheric Center at Arecibo,
Puerto Rico.
PART 97--AMATEUR RADIO SERVICE
1. The authority citation for Part 97 continues to read as follows:
Authority: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303.
Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47
U.S.C. 151-155, 301-609, unless otherwise noted.
2. Section 97.303(j)(2) is revised to read as follows:
Sec. 97.303 Frequency sharing requirements.
* * * * *
(j) * * *
(2) In the United States, the 2300-2310 MHz segment is allocated to
the amateur service on a co-secondary basis with the Government fixed
and mobile services. In this segment, the fixed and mobile services
must not cause harmful interference to the amateur service. The 2390-
2400 MHz and 2402-2417 MHz segments are allocated to the amateur
service on a primary basis. No amateur station transmitting in the
2400-2450 MHz segment is protected from interference due to the
operation of industrial, scientific, and medical devices on 2450 MHz.
* * * * *
[FR Doc. 96-27818 Filed 10-29-96; 8:45 am]
BILLING CODE 6712-01-P
