E8-27769. Satellite Licensing Procedures

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Commission adopts new procedures for non-routine earth station applications, and adopts a reasonableness standard for contention protocol usage. These actions are necessary to expedite the licensing of earth stations often used to provide satellite-based broadband Internet access services.

DATES:

Effective December 24, 2008, except for the amendments to §§ 25.115, 25.134, 25.218, and 25.220, which contain information requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date for these rules once OMB approval has been received for the information collection requirements.

FOR FURTHER INFORMATION CONTACT:

Steven Spaeth, International Bureau, telephone [phone] or via the Internet at [e-mail].

SUPPLEMENTARY INFORMATION:

This summary of the Commission's Eighth Report and Order, IB Docket No. 00-248, and Order on Reconsideration, CC Docket No. 95-117, FCC 08-246, adopted October 10, 2008, and released October 17, 2008. The complete text of this Eighth Report and Order and Order on Reconsideration is available for inspection and copying during normal business hours in the FCC Reference Center (Room), 445 12th Street, SW., Washington, DC 20554, and also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. It is also available on the Commission's Web site at http://www.fcc.gov.

Paperwork Reduction Act Analysis: The actions taken in the Eighth Report and Order have been analyzed with respect to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C. 3501-3520), and found to impose new and modified requirements. Implementation of these new and modified requirements will be subject to approval by the Office of Management and Budget (OMB) as prescribed by the PRA, and will go into effect upon announcement in the Federal Register of OMB approval. The Commission will publish a separate notice in the Federal Register inviting comment on the new and revised information collection requirements contained in this document. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), we will also seek specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Third Further Notice of Proposed Rulemaking (Third Further Notice) in IB Docket No. 00-248, 70 FR 33426 (June 8, 2005). The Commission sought written public comment on the proposals in the Third Further Notice, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.^[1]

A. Need for, and Objectives of, the Report and Order

The Telecommunications Act of 1996 requires the Commission in every even-numbered year beginning in 1998 to review all regulations that apply to the operations or activities of any provider of telecommunications service and to determine whether any such regulation is no longer necessary in the public interest due to meaningful economic competition. Our objective is to repeal or modify any rules in part 25 that are no longer necessary in the public interest, as required by section 11 of the Communications Act of 1934, as amended.

We codify streamlined procedures that allow for routine treatment of applications for earth stations that will comply with an off-axis EIRP envelope.

B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

No comments were submitted directly in response to the IRFA in the Third Further Notice.

C. Description and Estimate of the Number of Small Entities to Which Rules Will Apply

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 rules adopted herein.^[2] The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” ^[3] In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.^[4] 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).^[5]

1. Cable Services. The SBA has developed a small business size standard for Cable and Other Program Distribution, which consists of all such firms having $12.5 million or less in annual receipts.^[6] According to Census Bureau data for 1997, in this category there was a total of 1,311 firms that operated for the entire year.^[7] Of this total, 1,180 firms had annual receipts of under $10 million, and an additional fifty-two firms had receipts of $10 million to $24,999,999.^[8] Thus, under this size standard, the majority of firms can be considered small.

The Commission has developed its own small business size standard for a small cable operator for the purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide.^[9] Based on our most recent information, we estimate that there were 1,439 cable operators that qualified as small cable companies at the end of 1995.^[10] Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1,439 small cable companies that may be affected by the proposed rules.

The Communications Act of 1934, as amended, also contains a size standard for a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one 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.” ^[11] The Commission has determined that there are 67,700,000 subscribers in the United States.^[12] Therefore, an operator serving fewer than 677,000 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.^[13] Based on available data, we estimate that the number of cable operators serving 677,000 subscribers or less totals approximately 1,450.^[14] We do not request or collect information on whether cable operators are affiliated with entities whose gross annual revenues exceed $250,000,000,^[15] and therefore are unable to estimate accurately the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

2. Satellite Telecommunications. The rules proposed in the Third Further Notice would affect providers of satellite telecommunications services, if adopted. Satellite telecommunications service providers include satellite operators and earth station operators. The Commission has not developed a definition of small entities applicable to satellite operators. Therefore, the applicable definition of small entity is generally the definition under the SBA rules applicable to Satellite Telecommunications.^[16] This definition provides that a small entity is expressed as one with $12.5 million or less in annual receipts.^[17] 1997 Census Bureau data indicate that, for 1997, 273 satellite communication firms had annual receipts of under $10 million. In addition, 24 firms had receipts for that year of $10 million to $24,999,990.^[18]

3. Auxiliary, Special Broadcast and other program distribution services. 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,^[19] and television broadcasting stations.^[20] These definitions provide that a small entity is one with either $6.0 million or less in annual receipts for a radio broadcasting station or $12.0 million in annual receipts for a TV station.^[21] There are currently 3,237 FM translators and boosters, 4913 TV translators.^[22] 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 $6.0 million for a radio station or $12.0 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.

4. Microwave Services. Microwave services include common carrier,^[23] private-operational fixed,^[24] and broadcast auxiliary radio services.^[25] At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not yet defined a small business with respect to microwave services. For purposes of this FRFA, we will use the SBA's definition applicable to cellular and other wireless communications companies—i.e., an entity with no more than 1,500 persons.^[26] We estimate that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition for radiotelephone (wireless) companies.

D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

The rules adopted in the Eighth Report and Order are not intended to increase the reporting, recordkeeping and other compliance requirements of any licensee, and we do not anticipate any differential treatment to be received by larger and smaller entities. The reporting requirements associated with the off-axis EIRP envelope method for reviewing earth station applications are the same as the reporting requirements associated with one of the earth station application procedures adopted in the Fifth Report and Order in IB Docket No. 00-248, 70 FR 32249 (June 2, 2005). These requirements will not affect small businesses differently from other non-routine earth station applicants.

E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (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 or reporting requirements under the rule for 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 small entities.^[27]

In this Eighth Report and Order, the Commission considers and rejects a proposal to require analog video earth station operators to comply with an off-axis EIRP envelope. Commenters persuasively argued that such a requirement would have been burdensome for all analog video earth station operators, including small business analog video earth station operators.

F. Report to Congress

The Commission will send a copy of the Eighth Report and Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Eighth Report and Order, including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Eighth Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register. See 5 U.S.C. 604(b).

Summary of Report and Order

The Eighth Report and Order adopts an off-axis equivalent isotropically radiated power (EIRP) approach for licensing non-routine FSS earth stations, thus giving earth station operators greater flexibility to make technical adjustments and request routine application processing. Part 25 specifies technical requirements for “routine” FSS earth station applications. “Routine” applications are those that can be granted without a detailed engineering review. There are many non-routine earth stations that can be licensed without increasing the risk of harmful interference, but determining whether a particular non-routine earth station can be licensed requires a detailed engineering review. Licensing non-routine earth stations is important because they are often used to provide broadband Internet access.

The off-axis EIRP approach is based on a limit on the EIRP of side lobes. Decreasing the diameter of an earth station antenna increases the side lobes. Increasing the power into an earth station antenna also increases the side lobes. Thus, an earth station operator could compensate for a high power level by increasing its antenna diameter, or vice versa. An off-axis EIRP rule would make it easier for earth station license applicants to make these trade-offs, and to obtain Commission authorizations on a more expedited basis.

The Eighth Report and Order also adopts rules based on a study on contention protocols submitted by a commenter in this proceeding. This contention protocol issue is related to very small aperture terminal (VSAT) networks. VSAT networks are generally comprised of a hub station transmitting to a satellite, which then transmits the signal to multiple remote earth stations, or vice versa. VSAT networks use a number of different techniques, or protocols, to prevent or limit interference among the multiple remote earth stations, and to prevent them from interfering with other adjacent satellite networks. Sometimes, the remotes are assigned different frequencies, or transmit times. This is known as Frequency Division Multiple Access (FDMA), and Time Division Multiple Access (TDMA). Other protocols are referred to as “contention protocols.” Under this approach, the VSAT system operator allows simultaneous transmissions to interfere with each other, but uses statistical techniques to keep the intra-VSAT network interference to a minimum.

Simultaneous transmissions in contention protocol usage are called “collisions.” Collisions result in power levels in excess of the levels allowed by the Commission's rules, although for no more than tens of milliseconds. Originally, the Commission assumed that the power levels during “collisions” could increase the likelihood of harmful interference. Therefore, the Commission has requested comment on a number of proposals over the course of this proceeding to limit various aspects of contention protocol usage to reduce the probability and duration of collisions. However, the record in this proceeding includes a technical study that convincingly shows contention protocol usage decreases the likelihood of harmful interference in most areas of the country, and the increases in other areas are de minimis. Based on this study, the Eighth Report and Order decides not to adopt any of the contention protocol proposals considered previously in this proceeding. Instead, contention protocol users are required to be “reasonable,” which is defined as not increasing the likelihood of harmful interference any more than the sample VSAT networks modeled in the study discussed in the Eighth Report and Order.

In addition, the Eighth Report and Order considers and rejects a proposal to revise procedures for licensing earth stations in the Quiet Zone. The “Quiet Zone” is a 13,000 square mile area in Virginia, West Virginia, and Maryland, created to protect radio astronomy. The current procedure, in place since 1958, requires the Commission to notify the National Radio Astronomy Observatory (NRAO) when it receives an application for an earth station in the Quiet Zone. In an earlier phase of this proceeding, NRAO proposed replacing the traditional notification procedure with a coordination procedure. The Eighth Report and Order does not adopt NRAO's proposal, because the current notification requirement has been in place since 1958, and nothing in the record suggests that it has not been sufficient.

Finally, the Commission considers several miscellaneous issues raised in petitions for reconsideration of the Fifth Report and Order in IB Docket No. 00-248, 70 FR 32249 (June 2, 2005), the Sixth Report and Order in IB Docket No. 00-248, 70 FR 33373 (June 8, 2005), and the 1996 Streamlining Order, 62 FR 5924 (Feb. 10, 1997). Based on those petitions for reconsideration, the Commission clarified, among other things, that non-routine earth stations need not be afforded more protection from interference than a routine earth station would. The Commission also clarified the satellites with whom a target satellite operator must coordinate prior to the time a non-routine earth station operator communicating with that target satellite operator plans to begin operations. All other issues raised in these petitions for reconsideration were dismissed as moot, denied because they were outside the scope of the proceeding, or denied because the Commission had considered and rejected the petitioner's proposal in a previous Order.

Ordering Clauses

Accordingly, it is ordered, pursuant to 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), 303(r), that this Eighth Report and Order in IB Docket No. 00-248 is hereby adopted.

It is further ordered that part 25 of the Commission's rules is amended as set forth below. An announcement of the effective date of these rule revisions will be published in the Federal Register.

It is further ordered that the Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

It is further ordered, pursuant to § 1.106 of the Commission's rules, 47 CFR 1.106, that the Petition for Reconsideration of the Fifth Report and Order filed by the Satellite Industry Association (SIA) is granted in part and denied in part.

It is further ordered, pursuant to § 1.106 of the Commission's rules, 47 CFR 1.106, that the Petition for Reconsideration of the Sixth Report and Order filed by SIA is Granted.

It is further ordered, pursuant to § 1.106 of the Commission's rules, 47 CFR 1.106, that the Petition for Reconsideration of the Sixth Report and Order filed by Boeing is dismissed as moot.

It is further ordered, pursuant to § 1.106 of the Commission's rules, 47 CFR 1.106, that the Petitions for Reconsideration of the 1996 Streamlining Order filed by EDS Corporation (EDS) and GE American Communications, Inc. (GE Americom) are dismissed as moot.

It is further ordered, pursuant to § 1.106 of the Commission's rules, 47 CFR 1.106, that the Petition for Reconsideration of the 1996 Streamlining Order filed by Telquest Ventures, Inc. (Telquest) is denied.

List of Subjects in 47 CFR Part 25

• Satellites

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 25 as follows:

PART 25—SATELLITE COMMUNICATIONS

1. The authority citation for part 25 continues to read as follows:

Authority: 47 U.S.C. 701-744. Interprets or applies Sections 4, 301, 302, 303, 307, 309, and 332 of the Communications Act, as amended, 47 U.S.C. Sections 154, 301, 302, 303, 307, 309, and 332, unless otherwise noted.

2. Section 25.115 is amended by adding paragraphs (h) and (i) to read as follows:

§ 25.115

Application for earth station authorizations.

* * * * *

(h) Any earth station applicant filing an application pursuant to § 25.218 of this chapter must file three tables showing the off-axis EIRP level of the proposed earth station antenna of the plane of the geostationary orbit, the elevation plane, and towards the horizon. In each table, the EIRP level must be provided at increments of 0.1° for angles between 0° and 10° off-axis, and at increments of 5° for angles between 10° and 180° off-axis.

(1) For purposes of the off-axis EIRP table in the plane of the geostationary orbit, the off-axis angle is the angle in degrees from the line connecting the focal point of the antenna to the target satellite, within the plane determined by the focal point of the antenna and the line tangent to the arc of the geostationary satellite orbit at the position of the target satellite.

(2) For purposes of the off-axis EIRP table in the elevation plane, the off-axis angle is the angle in degrees from the line connecting the focal point of the antenna to the target satellite, within the plane perpendicular to the plane determined by the focal point of the antenna and the line tangent to the arc of the geostationary satellite orbit at the position of the target satellite.

(3) For purposes of the off-axis EIRP table towards the horizon, the off-axis angle is the angle in degrees from the line determined by the intersection of the horizontal plane and the elevation plane described in paragraph (h)(2) of this section, in the horizontal plane. The horizontal plane is the plane determined by the focal point of the antenna and the horizon.

(4) In addition, in an attachment to its application, the earth station applicant must certify that it will limit its pointing error to 0.5°, or demonstrate that it will comply with the applicable off-axis EIRP envelopes in § 25.218 of this part when the antenna is mispointed at its maximum pointing error.

(i) Any earth station applicant filing an application for a VSAT network made up of FSS earth stations and planning to use a contention protocol must include in its application a certification that it will comply with the requirements of § 25.134(g)(4).

3. Section 25.134 is amended by adding paragraph (g)(4) to read as follows:

§ 25.134

Licensing provisions of Very Small Aperture Terminal (VSAT) and C-band Small Aperture Terminal (CSAT) networks.

* * * * *

(g) * * *

(4) Any earth station applicant filing an application to operate a VSAT network after December 24, 2008 in the Ku-band and planning to use a contention protocol must certify that its contention protocol usage will be reasonable.

* * * * *

4. Section 25.138 is amended by revising paragraph (a)(4) to read as follows:

§ 25.138

Blanket Licensing provisions of GSO FSS Earth Stations in the 18.3-18.8 GHz (space-to-Earth), 19.7-20.2 GHz (space-to-Earth), 28.35-28.6 GHz (Earth-to-space), and 29.25-30.0 GHz (Earth-to-space) bands.

(a) * * *

(4) GSO FSS earth station antenna off-axis EIRP spectral density for cross-polarized signals shall not exceed the following values, in all directions relative to the GSO arc, under clear sky conditions:

8.5-25log(θ)-10log(N)	dBW/40 kHz	For	2.0° < θ ≤ 7.0°
−12.63-10log(N)	dBW/40 kHz	For	7.0° < θ ≤ 9.23°

where θ is the angle in degrees from the axis of the main lobe. For systems where more than one earth station is expected to transmit simultaneously in the same bandwidth, e.g., CDMA systems, N is the likely maximum number of simultaneously transmitting co-frequency earth stations in the receive beam of the satellite. N=1 for TDMA and FDMA systems.

* * * * *

5. Section 25.209 is amended by revising paragraphs (a), (b), and (c)(1), removing and reserving paragraph (d), revising paragraph (f), and removing and reserving paragraph (g), to read as follows:

§ 25.209

Antenna performance standards.

(a) The gain of any antenna to be employed in transmission from an earth station in the fixed-satellite service shall lie below the envelope defined below:

(1) In the plane of the geostationary satellite orbit as it appears at the particular earth station location, for earth stations not operating in the Ka-band or conventional Ku-band:

29-25log10θ	dBi	For	1.5° ≤ θ ≤ 7°
8	dBi	For	7° < θ ≤ 9.2°
32-25log10θ	dBi	For	9.2° < θ ≤ 48°
−10	dBi	For	48° < θ ≤ 180°

where θ is the angle in degrees from the axis of the main lobe, and dBi refers to dB relative to an isotropic radiator. For the purposes of this section, the peak gain of an individual sidelobe may not exceed the envelope defined above for θ between 1.5 and 7.0 degrees. For θ greater than 7.0 degrees, the envelope may be exceeded by no more than 10% of the sidelobes, provided no individual sidelobe exceeds the gain envelope given above by more than 3 dB.

(2) In the plane of the geostationary satellite orbit as it appears at the particular earth station location, for earth stations operating in the Ka-band or conventional Ku-band:

29-25log10θ	dBi	For	1.5° ≤ θ ≤ 7°
8	dBi	For	7° < θ ≤ 9.2°
32-25log10θ	dBi	For	9.2° < θ ≤ 48°
−10	dBi	For	48° < θ ≤ 85°
0	dBi	For	85° < θ ≤ 180°

(3) In all other directions, or in the plane of the horizon including any out-of-plane potential terrestrial interference paths, for all earth stations not operating in the Ka-band or conventional Ku-band:

Outside the main beam, the gain of the antenna shall lie below the envelope defined by:

32-25log10θ	dBi	For	3° < θ ≤ 48°
−10	dBi	For	48° < θ ≤ 180°

where θ and dBi are defined above. For the purposes of this section, the envelope may be exceeded by no more than 10% of the sidelobes provided no individual sidelobe exceeds the gain envelope given above by more than 6 dB. The region of the main reflector spillover energy is to be interpreted as a single lobe and shall not exceed the envelope by more than 6 dB.

(4) In all other directions, or in the plane of the horizon including any out-of-plane potential terrestrial interference paths, for all earth stations operating in the Ka-band or conventional Ku-band:

Outside the main beam, the gain of the antenna shall lie below the envelope defined by:

32-25log10θ	dBi	For	3° < θ ≤ 48°
−10	dBi	For	48° < θ ≤ 85°
0	dBi	For	85° < θ ≤ 180°

where θ and dBi are defined above. For the purposes of this section, the envelope may be exceeded by no more than 10% of the sidelobes provided no individual sidelobe exceeds the gain envelope given above by more than 6 dB. The region of the main reflector spillover energy is to be interpreted as a single lobe and shall not exceed the envelope by more than 6 dB.

(5) Elliptical earth station antennas may be operated only when the major axis of the antenna is aligned with the plane of the geostationary satellite orbit as it appears at the particular earth station location.

(b) The off-axis cross-polarization gain of any antenna to be employed in transmission from an earth station to a space station in the domestic fixed-satellite service shall be defined as follows:

(1) In the plane of the geostationary satellite orbit as it appears at the particular earth station location:

19-25log10θ	dBi	For	1.8° < θ ≤ 7°
−2	dBi	For	7° < θ ≤ 9.2°

where θ is the angle in degrees from the axis of the main lobe, and dBi refers to dB relative to an isotropic radiator.

(2) In all other directions, or in the plane of the horizon including any out-of-plane potential terrestrial interference paths:

19-25log10θ	dBi	For	3° < θ ≤ 7°
−2	dBi	For	7° < θ ≤ 9.2°

where θ and dBi are defined above.

(c)(1) Earth station antennas licensed for reception of radio transmissions from a space station in the fixed-satellite service are protected from radio interference caused by other space stations only to the degree to which harmful interference would not be expected to be caused to an earth station employing an antenna conforming to the referenced patterns defined in paragraphs (a) and

(b) of this section, and protected from radio interference caused by terrestrial radio transmitters identified by the frequency coordination process only to the degree to which harmful interference would not be expected to be caused to an earth station conforming to the reference pattern defined in paragraphs (a)(3) and (a)(4) of this section. 0

* * * * *

(f) An earth station with an antenna not conforming to the standards of paragraphs (a) and (b) of this section will be authorized only if the applicant meets its burden of demonstrating that its antenna will not cause unacceptable interference. For ESVs in the C-band, this demonstration must comply with the procedures set forth in § 25.221. For ESVs in the Ku-band, this demonstration must comply with the procedures set forth in § 25.222. For feeder-link earth stations in the 17/24 GHz BSS, this demonstration must comply with the procedures set forth in § 25.223. For other FSS earth stations, this demonstration must comply with the procedures set forth in §§ 25.218 or 25.220. In any case, the Commission will impose appropriate terms and conditions in its authorization of such facilities and operations.

* * * * *

6. Section 25.212 is amended by revising paragraph (c) to read as follows:

§ 25.212

Narrowband analog transmissions, digital transmissions, and video transmissions in the GSO Fixed-Satellite Service.

* * * * *

(c) In the 14.0 through 14.5 GHz band, an earth station with an antenna equivalent diameter of 1.2 meters or greater may be routinely licensed for transmission of narrowband analog services with bandwidths up to 200 kHz if the maximum input power spectral density into the antenna does not exceed −8 dBW/4 kHz and the maximum transmitted satellite carrier EIRP density does not exceed 17 dBW/4 kHz. Such earth stations may be routinely licensed for transmission of narrowband and/or wideband digital services, including digital video services, if the maximum input spectral power density into the antenna does not exceed −14 dBW/4 kHz, and the maximum transmitted satellite carrier EIRP density does not exceed +10.0 dBW/4 kHz. Antennas transmitting in the 14.0 through 14.5 GHz band with a major and/or minor axis smaller than 1.2 meters are subject to the provisions of § 25.220, which may include power reduction requirements.

* * * * *

7. Section 25.218 is added to read as follows:

§ 25.218

Off-axis EIRP envelopes for FSS earth station operations.

(a) This section applies to all earth station applications, except for:

(1) ESV applications,

(2) Analog video earth station applications,

(3) Applications for feeder-link earth stations in the 17/24 GHz BSS.

(b) Earth station applications subject to this section are eligible for routine processing if they meet the applicable off-axis EIRP envelope set forth in this section below. For purposes of this section, the term “extended Ku-band” is the 10.7 through 11.7 GHz, 12.75 through 13.25 GHz, and 13.75 through 14.0 GHz band. The term “conventional Ku-band” is defined in § 25.201 of this chapter.

(c) C-band analog earth station operations. (1) In the plane of the geostationary satellite orbit as it appears at the particular earth station location:

29.5-25log10θ	dBW/4 kHz	For	1.5° ≤ θ ≤ 7°
8.5	dBW/4 kHz	For	7° < θ ≤ 9.2°
32.5-25log10θ	dBW/4 kHz	For	9.2° < θ ≤ 48°
−9.5	dBW/4 kHz	For	48° < θ ≤ 180°

where θ is the angle in degrees from the line connecting the focal point of the antenna to the target satellite, and the geostationary orbit plane is determined by the focal point of the antenna and the line tangent to the arc of the geostationary satellite orbit at the position of the target satellite. For the purposes of this section, the peak EIRP of an individual sidelobe may not exceed the envelope defined above for θ between 1.5° and 7.0°. For θ greater than 7.0°, the envelope may be exceeded by no more than 10% of the sidelobes, provided no individual sidelobe exceeds the envelope given above by more than 3 dB.

(2) In all other directions, or in the plane of the horizon including any out-of-plane potential terrestrial interference paths:

32.5-25log10θ	dBW/4 kHz	For	3° ≤ θ ≤ 48°
−9.5	dBW/4 kHz	For	48° < θ ≤ 180°

where θ is the angle in degrees from the line connecting the focal point of the antenna to the target satellite, within any plane that includes that line, with the exception of the plane determined by the focal point of the antenna and the line tangent to the arc of the geostationary satellite orbit at the position of the target satellite. For the purposes of this section, the envelope may be exceeded by no more than 10% of the sidelobes provided no individual sidelobe exceeds the envelope given above by more than 6 dB. The region of the main reflector spillover energy is to be interpreted as a single lobe and shall not exceed the envelope by more than 6 dB.

(d) C-band digital earth station operations. (1) In the plane of the geostationary satellite orbit as it appears at the particular earth station location:

26.3-10log10 (N)-25log10θ	dBW/4 kHz	For	1.5° ≤ θ ≤ 7°
5.3-10log10 (N)	dBW/4 kHz	For	7° < θ ≤ 9.2°
29.3 -10log10 (N)-25log10θ	dBW/4 kHz	For	9.2° < θ ≤ 48°
−12.7-10log10 (N)	dBW/4 kHz	For	48° < θ ≤ 180°

where θ and the plane of the geostationary satellite orbit are defined in paragraph (c)(1) of this section, and N is defined below. For the purposes of this section, the peak EIRP of an individual sidelobe may not exceed the envelope defined above for θ between 1.5° and 7.0°. For θ greater than 7.0°, the envelope may be exceeded by no more than 10% of the sidelobes, provided no individual sidelobe exceeds the envelope given above by more than 3 dB. For digital SCPC using frequency division multiple access (FDMA) or time division multiple access (TDMA) technique, N is equal to one. For digital SCPC using code division multiple access (CDMA) technique, N is the maximum number of co-frequency simultaneously transmitting earth stations in the same satellite receiving beam.

(2) In all other directions, or in the plane of the horizon including any out-of-plane potential terrestrial interference paths:

29.3-10log10 (N)-25log10θ	dBW/4 kHz	For	3° ≤ θ ≤ 48°
−12.7-10log10 (N)	dBW/4 kHz	For	48° < θ ≤ 180°

where θ is defined in paragraph (c)(2) of this section, and N is defined in paragraph (d)(1) of this section. For the purposes of this section, the envelope may be exceeded by no more than 10% of the sidelobes provided no individual sidelobe exceeds the envelope given above by more than 6 dB. The region of the main reflector spillover energy is to be interpreted as a single lobe and shall not exceed the envelope by more than 6 dB.

(e) Conventional Ku-band analog earth station operations. (1) In the plane of the geostationary satellite orbit as it appears at the particular earth station location:

21-25log10θ	dBW/4 kHz	For	1.5° ≤ θ ≤ 7°
0	dBW/4 kHz	For	7° < θ ≤ 9.2°
24-25log10θ	dBW/4 kHz	For	9.2° < θ ≤ 48°
−18	dBW/4 kHz	For	48° < θ ≤ 85°
−8	dBW/4 kHz	For	85° < θ ≤ 180°

where θ and the plane of the geostationary satellite are defined in paragraph (c)(1) of this section. For the purposes of this section, the peak EIRP of an individual sidelobe may not exceed the envelope defined above for θ between 1.5° and 7.0°. For θ greater than 7.0°, the envelope may be exceeded by no more than 10% of the sidelobes, provided no individual sidelobe exceeds the envelope given above by more than 3 dB.

(2) In all other directions, or in the plane of the horizon including any out-of-plane potential terrestrial interference paths:

24-25log10θ	dBW/4 kHz	For	3° ≤ θ ≤ 48°
−18	dBW/4 kHz	For	48° < θ ≤ 85°
−8	dBW/4 kHz	For	85° < θ ≤ 180°

where θ is defined in paragraph (c)(2) of this section. For the purposes of this section, the envelope may be exceeded by no more than 10% of the sidelobes provided no individual sidelobe exceeds the envelope given above by more than 6 dB. The region of the main reflector spillover energy is to be interpreted as a single lobe and shall not exceed the envelope by more than 6 dB.

(f) Conventional Ku-band digital earth station operations. (1) In the plane of the geostationary satellite orbit as it appears at the particular earth station location:

15-10log10 (N)-25log10θ	dBW/4 kHz	For	1.5° ≤ θ ≤ 7°
−6-10log10 (N)	dBW/4 kHz	For	7° < θ ≤ 9.2°
18-10log10 (N)-25log10θ	dBW/4 kHz	For	9.2° < θ ≤ 48°
−24-10log10 (N)	dBW/4 kHz	For	48° < θ ≤ 85°
−14-10log10 (N)	dBW/4 kHz	For	85° < θ ≤ 180°

where θ and the plane of the geostationary satellite orbit are defined in paragraph (c)(1) of this section, and N is defined below. For the purposes of this section, the peak EIRP of an individual sidelobe may not exceed the envelope defined above for θ between 1.5° and 7.0°. For θ greater than 7.0°, the envelope may be exceeded by no more than 10% of the sidelobes, provided no individual sidelobe exceeds the envelope given above by more than 3 dB. For digital SCPC using frequency division multiple access (FDMA) or time division multiple access (TDMA) technique, N is equal to one. For digital SCPC using code division multiple access (CDMA) technique, N is the maximum number of co-frequency simultaneously transmitting earth stations in the same satellite receiving beam.

(2) In all other directions, or in the plane of the horizon including any out-of-plane potential terrestrial interference paths:

18-10log10 (N)-25log10θ	dBW/4 kHz	For	3° ≤ θ ≤ 48°
−24-10log10 (N)	dBW/4 kHz	For	48° < θ ≤ 85°
−14-10log10 (N)	dBW/4 kHz	For	85° < θ ≤ 180°

where θ is defined in paragraph (c)(2) of this section, and N is defined in paragraph (f)(1) of this section. For the purposes of this section, the envelope may be exceeded by no more than 10% of the sidelobes provided no individual sidelobe exceeds the envelope given above by more than 6 dB. The region of the main reflector spillover energy is to be interpreted as a single lobe and shall not exceed the envelope by more than 6 dB.

(g) Extended Ku-band analog earth station operations. (1) In the plane of the geostationary satellite orbit as it appears at the particular earth station location:

21-25log10θ	dBW/4 kHz	For	1.5° ≤ θ ≤ 7°
0	dBW/4 kHz	For	7° < θ ≤ 9.2°
24-25log10θ	dBW/4 kHz	For	9.2° < θ ≤ 48°
−18	dBW/4 kHz	For	48° < θ ≤ 180°

where θ and the plane of the geostationary satellite orbit are defined in paragraph (c)(1) of this section. For the purposes of this section, the peak EIRP of an individual sidelobe may not exceed the envelope defined above for θ between 1.5° and 7.0°. For θ greater than 7.0°, the envelope may be exceeded by no more than 10% of the sidelobes, provided no individual sidelobe exceeds the envelope given above by more than 3 dB.

(2) In all other directions, or in the plane of the horizon including any out-of-plane potential terrestrial interference paths:

24-25log10θ	dBW/4 kHz	For	3° ≤ θ ≤ 48°
−18	dBW/4 kHz	For	48° < θ ≤ 180°

where θ is defined in paragraph (c)(2) of this section. For the purposes of this section, the envelope may be exceeded by no more than 10% of the sidelobes provided no individual sidelobe exceeds the envelope given above by more than 6 dB. The region of the main reflector spillover energy is to be interpreted as a single lobe and shall not exceed the envelope by more than 6 dB.

(h) Extended Ku-band digital earth station operations. (1) In the plane of the geostationary satellite orbit as it appears at the particular earth station location:

15-10log10 (N)-25log10θ	dBW/4 kHz	For	1.5° ≤ θ ≤ 7°
−6-10log10 (N)	dBW/4 kHz	For	7° < θ ≤ 9.2°
18-10log10 (N)-25log10θ	dBW/4 kHz	For	9.2° < θ ≤ 48°
−24-10log10 (N)	dBW/4 kHz	For	48° < θ ≤ 180°

where θ and the plane of the geostationary satellite orbit are defined in paragraph (c)(1) of this section, and N is defined below. For the purposes of this section, the peak EIRP of an individual sidelobe may not exceed the envelope defined above for θ between 1.5° and 7.0°. For θ greater than 7.0°, the envelope may be exceeded by no more than 10% of the sidelobes, provided no individual sidelobe exceeds the envelope given above by more than 3 dB. For digital SCPC using frequency division multiple access (FDMA) or time division multiple access (TDMA) technique, N is equal to one. For digital SCPC using code division multiple access (CDMA) technique, N is the maximum number of co-frequency simultaneously transmitting earth stations in the same satellite receiving beam.

(2) In all other directions, or in the plane of the horizon including any out-of-plane potential terrestrial interference paths:

18-10log10 (N)-25log10θ	dBW/4 kHz	For	3° ≤ θ ≤ 48°
−24-10log10 (N)	dBW/4 kHz	For	48° < θ ≤ 85°

where θ is defined in paragraph (c)(2) of this section and N is defined in paragraph (h)(1) of this section. For the purposes of this section, the envelope may be exceeded by no more than 10% of the sidelobes provided no individual sidelobe exceeds the envelope given above by more than 6 dB. The region of the main reflector spillover energy is to be interpreted as a single lobe and shall not exceed the envelope by more than 6 dB.

8. Section 25.220 is amended by revising paragraphs (a) and (d), and removing and reserving paragraphs (c), (e), and (f), to read as follows:

§ 25.220

Non-conforming transmit/receive earth station operations.

(a)(1) This section applies to earth station applications, other than ESV applications and 17/24 GHz BSS feeder link applications, in which the proposed earth station operations do not fall within the applicable off-axis EIRP envelope specified in Section 25.218 of this chapter.

(2) The requirements for petitions to deny applications filed pursuant to this section are set forth in § 25.154.

* * * * *

(d)(1) The applicant must submit the certifications listed in paragraphs (d)(1)(i) through (d)(1)(iv) of this section. The applicant will be authorized to transmit only to the satellite systems included in the coordination agreements referred to in the certification required by paragraph (d)(1)(ii) of this section. The applicant will be granted protection from receiving interference only with respect to the satellite systems included in the coordination agreements referred to in the certification required by paragraph (d)(1)(ii) of this section, and only to the extent that protection from receiving interference is afforded by those coordination agreements.

(i) A statement from the satellite operator acknowledging that the proposed operation of the subject non-conforming earth station with its satellite(s) has the potential to receive interference from adjacent satellite networks that may be unacceptable.

(ii) A statement from the satellite operator that it has coordinated the operation of the subject non-conforming earth station accessing its satellite(s), including its required downlink power density based on the information contained in the application, with all adjacent satellite networks within 6° of orbital separation from its satellite(s), and the operations will operate in conformance with existing coordination agreement for its satellite(s) with other satellite systems, except as set forth in paragraph (d)(4) of this section.

(iii) A statement from the satellite operator that it will include the subject non-conforming earth station operations in all future satellite network coordinations, and

(iv) A statement from the earth station applicant certifying that it will comply with all coordination agreements reached by the satellite operator(s).

(2) A license granted pursuant to paragraph (d)(1) of this section will include, as a condition on that license, that if a good faith agreement cannot be reached between the satellite operator and the operator of a future 2° compliant satellite, the earth station operator shall accept the power density levels that would accommodate the 2° compliant satellite.

(3) In the event that a coordination agreement discussed in paragraph (d)(1)(ii) of this section is reached, but that coordination agreement does not address protection from interference for the earth station, that earth station will be protected from interference to the same extent that an earth station that meets the requirements of § 25.209 of this title would be protected from interference.

(4) Notwithstanding paragraph (d)(1)(ii) of this section, a party applying for an earth station license pursuant to this section will not be required to certify that its target satellite operator has reached a coordination agreement with another satellite operator whose satellite is within 6° of orbital separation from its satellite in cases where the off-axis EIRP density level of the proposed earth station operations will be less than or equal to the levels specified by the applicable off-axis EIRP envelope set forth in § 25.218 of this chapter in the direction of the part of the geostationary orbit arc within 1° of the nominal orbit location of the adjacent satellite.

* * * * *

Footnotes

1.  See 5 U.S.C. 604.

2.  5 U.S.C. 604(a)(3).

3.  5 U.S.C. 601(6).

4.  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).

5.  15 U.S.C. 632.

6.  13 CFR 121.201, NAICS code 517510.

7.  U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4, NAICS code 513220 (issued October 2000).

8.  Id.

9.  47 CFR 76.901(e). The Commission developed this definition based on its determinations that a small cable company is one with annual revenues of $100 million or less. See Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, MM Doc. Nos. 92-266 and 93-215, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408-7409 (paras. 28-30) (1995).

10.  Paul Kagan Assocs., Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995).

11.  47 U.S.C. 543(m)(2).

12.  See FCC Announces New Subscriber Count for the Definition of Small Cable Operator, Public Notice, 16 FCC Rcd 2225 (2001).

13.  47 CFR 76.1403(b).

14.  See FCC Announces New Subscriber Count for the Definition of Small Cable Operator, Public Notice, 16 FCC Rcd 2225 (2001).

15.  We do receive such information on a case-by-case basis only if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to section 76.901(f) of the Commission's rules. See 47 CFR 76.990(b).

16.  “This industry comprises establishments primarily engaged in providing point-to-point 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.” Small Business Administration, NAICS code 517310.

17.  13 CFR 120.121, NAICS code 517310.

18.  U.S. Census Bureau, 1997 Economic Census, Subject Service: Information, “Establishment and Firm Size,” Table 4, NAICS 513340 (Issued Oct. 2000).

19.  13 CFR 121.201, NAICS code 515112.

20.  13 CFR 121.201, NAICS code 515120.

21.  13 CFR 121.201.

22.  FCC News Release, Broadcast Station Totals as of September 30, 1999, No. 71831 (Jan. 21, 1999).

23.  See 47 CFR 101 et seq. (formerly, part 21 of the Commission's Rules).

24.  Persons eligible under parts 80 and 90 of the Commission's rules can use Private Operational-Fixed Microwave services. See 47 CFR parts 80 and 90. Stations in this service are called operational-fixed to distinguish them from common carrier and public fixed stations. Only the licensee may use the operational-fixed station, and only for communications related to the licensee's commercial, industrial, or safety operations.

25.  Auxiliary Microwave Service is governed by part 74 of Title 47 of the Commission's Rules. See 47 CFR part 74 et seq. 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.

26.  See 13 CFR 121.201, NAICS code 517212.

27.  5 U.S.C. 603(c)(1)-(c)(4).