05-9933. The 4.9 GHz Band Transferred From Federal Government Use

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document the Commission considers a petition for reconsideration filed on July 30, 2003, by the National Public Safety Telecommunications Council (NPSTC). NPSTC requests the Commission to reconsider certain technical rules in which the Commission adopted licensing and service rules for the 4940-4990 MHz (4.9 GHz) band. The Commission endeavors to provide 4.9 GHz band licensees with the maximum operational flexibility practicable and to encourage effective and efficient utilization of the spectrum. The document makes significant strides towards ensuring that agencies involved in the protection of life and property possess the communications resources needed to successfully carry out their mission.

DATES:

Effective July 18, 2005.

FOR FURTHER INFORMATION CONTACT:

Tim Maguire, [e-mail], Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau, [phone], or TTY [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Federal Communications Commission's Memorandum Opinion and Order, FCC 04-265, adopted on November 9, 2004, and released on November 12, 2004. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the FCC's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at [phone] or TTY [phone] or at [e-mail].

1. The 4.9 GHz band was transferred from Federal Government to non-Federal Government use in 1999, in accordance with the provisions of the Omnibus Budget Reconciliation Act. In 2000, the Commission released a Notice of Proposed Rulemaking (65 FR 14230, March 16, 2000) proposing to allocate the 4.9 GHz band to non-Government fixed and mobile services, and to allow flexible use of this band. In 2002, the Commission adopted the fixed and mobile allocation, designated the band for use in support of public safety, and sought comment on the establishment of licensing and service rules for the 4.9 GHz band. In the Third Report and Order, the Commission adopted service rules for use of this band and addressed petitions for reconsideration of its decision to prohibit aeronautical mobile operations in this band.

2. The current NPSTC petition urges us to adopt two different emission masks, one mask for low power operations, the other for high power operations. NPSTC also proposes a technology standard for general and interoperability use in the 4.9 GHz band, and seeks mandatory regional planning and the inclusion of a conflict resolution process in regional plans. We received comments on the NPSTC proposals from equipment manufacturers, standards organizations, public safety licensees and others.

3. In the Second Report and Order, and Further Notice of Proposed Rulemaking (67 FR 17038 April 9, 2002), the Commission sought comment on whether technical standards should be adopted for the 4.9 GHz band, and, if so, what standards would be appropriate. The Commission then adopted a flexible band plan suited to emerging broadband technologies that could enhance public safety operations. It also adopted an emission mask to minimize out-of-band emissions that could result in interference between 4.9 GHz devices. This mask, currently incorporated into § 90.210 of the rules, is referred to herein as the Section 90.210 Mask. The parameters of this mask were derived from recommendations from the two parties commenting on the emission mask, Motorola, Inc. (Motorola) and the Association of Public-Safety Communications Officials-International, Inc. (APCO).

4. In the instant Petition, NPSTC submits that the Section 94.210 Mask is unnecessarily restrictive and would add significantly to the cost of 4.9 GHz equipment, thereby potentially delaying public safety's use of the band. It argues that public safety must leverage currently available (i.e., “commercial-off-the-shelf” (COTS)) technologies used in adjacent bands, such as the 5.4. GHz Unlicensed National Information Infrastructure (U-NII) unlicensed band and the intelligent Transportation System (ITS) band, NPSTC indicates that the current mask would prohibit any significant transfer of technology from the equipment used in these bands. For example, NPSTC contends that the more restrictive mask would hamper the ability of 4.9 GHz equipment to use chipsets employed in equipment designed for the U-NII or ITS bands.

5. As a substitute for the Section 90.210 Mask, NPSTC recommends that the Commission adopt the DSRC-A and DSRC-C masks applicable to ITS equipment. It proposes the DSRC-A mask for low power 4.9 GHz devices with transmitter output power of 20 dBm or less, and recommends the DSRC-C mask for higher power 4.9 GHz devices with transmitter power output greater than 20 dBm. It also contends that adoption of these emission masks could enable manufacture of devices that could operate in the 4.9 GHz band, the ITS band and the U-NII band, thus providing the public safety community access to these bands using a single, low-cost device.

6. In its comments, PacketHop, Inc. (PacketHop), a supplier of mobile broadband ad hoc networking and applications for public safety, states that adopting NPSTC's recommendations would create incentives for IEEE 802.11 manufacturers to leverage their current technical skills and manufacturing techniques to develop new, low cost, reliable devices built to a nationwide uniform technical standard. These devices, PacketHop claims, would give the public safety community access to affordable and interoperable equipment. The IEEE 802.18 Group submits that the mask identified in the amended rules 90.210(l), 47 CFR 90.210 will explicitly preclude the use of widely available equipment compliant with IEEE 802.11a standards and that to meet the mask as currently specified would require the redesign of existing chipsets and equipment specifically for use in this band, creating a niche market that will result in much higher equipment costs with virtually no benefit to the Public Safety community. It further indicates that the use of the IEEE 802.11a channel mask [which is identical to the DSRC-A mask] will have minimal effect on in-band interference between channels and will permit the use of IEEE 802.11a compliant equipment.

7. Motorola initially favored the use of the DSRC-C mask at power levels of 0 dBm, or more, indicating that there are relatively straightforward and inexpensive ways to meet standards such as the Section 90.210 Mask and the DSRC-C mask, while still being able to take advantage of COTS technology. It offered simulations purporting to show that use of the DSRC-A mask at power levels up to 20 dBm would result in excessive interference when multiple 4.9 GHz devices are used at the site of an incident. Later, however, Motorola reached a consensus with NPSTC that the DSRC-A and DSRC-C masks were a reasonable regulatory substitute for the Section 90.210 Mask, and that the DSRC-A mask should be used for low power devices while the more restrictive DSRC-C mask should be used for high power devices. However, NPSTC and Motorola reached no consensus on the definition of “high power” and “low power” in this context. Motorola argued that devices using powers greater than 8 dBm should be classified as high power, whereas NPSTC maintained that devices should be classified as “low power” if they employed powers of 20 dBm or less.

8. Ultimately, on September 10, 2004, NPSTC filed an ex parte document that included a set of recommended rules that put the “high power” breakpoint at 20 dBm. On the next business day, Motorola filed an ex parte letter stating that while it continued to believe that an 8 dBm breakpoint was more appropriate, “Motorola and NPSTC concur on the rules needed if a 20 dBm breakpoint is used.”

9. We recognize that benefits would accrue to public safety agencies if they could use 4.9 GHz devices adapted from COTS technologies in nearby bands. In particular, leveraging such technologies could result in savings for state and local governments and provide the potential for deployment of dual-band devices that make Internet access available via the U-NII band adjacent to the 4.9 GHz band. We are persuaded by the comments submitted that we may safely adopt the DSRC-A and DSRC-C masks in lieu of the Section 90.210 Mask currently in our Rules, and, therefore, will not burden public safety agencies with unnecessary costs for 4.9 GHz devices.

10. We are encouraged that Motorola and NPSTC reached consensus on the rules proposed by NPSTC. However, after review of the submissions by all parties, we believe that 20 dBm is, in fact, the appropriate breakpoint. This power level strikes a reasonable balance between interference avoidance and 4.9 GHz equipment affordability.

11. Our decision to adopt a 20 dBm breakpoint is also grounded on the fact that even consumer equipment in this frequency range is relatively tolerant of interference. The DSRC-A mask is identical to the mask defined in the widely-used 802.11 “Wi-Fi” standard for equipment used for in-home wireless LANs and found in consumer “hotspots” in businesses ranging from coffee shops to airports. The adjacent channel rejection (ACR) of an 802.11 receiver, using Orthogonal Frequency Division Multiplexing (OFDM), is defined by data throughput as a function of the level of adjacent channel interference. For example, an 802.11 receiver can sustain data throughput of 48 Mbits/s in the presence of an equal-power adjacent channel signal and a throughput of 6 Mbits/s when the adjacent channel signal is 16 dB higher. Thus, adjacent channel interference in these systems is a “graceful degradation” of data throughput, although loss of service can eventually result at higher levels of adjacent channel interference. Moreover, the potential for interference can be anticipated and taken into account in the placement of 4.9 GHz devices at the scene of an incident.

12. In assessing the proper breakpoint for requiring the more restrictive emission mask, we were mindful that, although 4.9 GHz equipment operating at power levels of 8 dBm or less may be adequate for consumer applications, the reliability requirements of public safety communications favor higher power levels, especially given propagation characteristics at these frequencies. Accordingly, were we to preclude use of higher power on affordable units using the DSRC-A mask, such devices could have so few applications that they might be unattractive to public safety agencies, which then would have to resort to specialized higher power units employing the DSRC-C mask—if they could afford such units. By comparison, allowing the DSRC-A mask to be used for low-cost 4.9 GHz devices at power levels up to 20 dBm would provide enhanced reliability—notably when obstructions are present between devices—albeit with the possibility of some degradation in throughput if multiple systems are operated on adjacent channels in close proximity to one another. In sum, technical, economic and operational considerations have informed our decision that the DSRC-A mask should be permitted for power levels of 20 dBm and less, and that the DSRC-C mask should apply to all power levels in excess of 20 dBm.

13. NPSTC contends that technology standards are necessary to provide roaming capability and requests us to develop a “clear path” toward identification and adoption of a technology standard for general and interoperability use within the 4.9 GHz band. NPSTC believes a standard could be developed within the next eighteen months and that, once the standard is established, users should be given approximately three years, to migrate to the standard.

14. In the Second Report and Order and Further Notice of Proposed Rulemaking, the Commission sought comment on the adoption of two widely contemplated broadband standards available for wireless: LAN-IEEE standard 802.11a, and European Telecommunications Standardization Institute (ETSI) Broadband Radio Access Network (BRAN) High Performance Local Area Network number two (HiperLAN2). In the comments, some parties recommended the adoption of the 802.11a standard because of its utility for mobile applications, and others urged adoption of a flexible band plan that would accommodate other emerging broadband technologies. Previously, the Commission found that considerations of minimal regulation and licensee flexibility outweighed any benefits that adoption of a single standard would confer. It thus declined to adopt technology standards and stated that potential interference between devices using different standards could be minimized if licensees cooperated in the selection and use of channels. NPSTC asks us to revisit that determination because, they maintain, differing technologies operating at the same site could generate interference that could disrupt communications. NPSTC believes this interference could be avoided by use of Internet Protocol-based (IP) applications that would allow users to “roam seamlessly across infrastructures (their own and others), with their traffic routed appropriately to its destination across an Internet-type backbone.”

15. We belive that there is an insufficient record to justify adoption of technical standards that would provide interoperability in the 4.9 GHz band. Moreover, the band is likely to be used for a variety of services that do not readily lend themselves to standardization or interoperability. Thus, for example, users may consider a fixed video camera and a mobile data terminal as distinctly separate applications without a need to interoperate: The video camera cannot display data and the mobile data terminal would not normally be used to display video from the camera. Also, were we to adopt a standard, it likely would cement the 4.9 GHz band in 2004 technology such that public safety would be denied the benefits of emerging broadband technologies. Finally, even were a standard realizable in eighteen months, as NPSTC suggests, we see no point in depriving the public safety community the use of the 4.9 GHz band in the interim in the hope that a useful standard could be adopted by that time. We therefore reaffirm our determination in the Third Report and Order that interoperability technical standards for the 4.9 GHz band would be counterproductive.

16. NPSTC supports mandatory regional planning and the inclusion of a conflict resolution process in regional plans. We disagree and reaffirm our decision in the Third Report and Order. Our primary rationale for rejecting mandatory regional planning lies in the shared-use structure we have established for the 4.9 GHz band. Applicants that meet eligiblity criteria will be granted a geographic area license for the entire fifty MHz of 4.9 GHz spectrum over a geographical area defined by the boundaries of their jurisdiction—city, county, state, etc. Licensees are required to coordinate their operations in the shared band to avoid interference, a common practice when joint operations are conducted.

17. The functions served by Regional Planning Committees (RPCs) in the public safety segments of the 700 MHz and 800 MHz bands entail the long-term planning for the use of specific channels by discrete licensees, in bands where public safety agencies are not granted a blanket license for the entire spectrum. Nontheless, the Commission directed each 700 MHz RPC to consider coordination procedures for the 4.9 GHz band, and that each may submit to the Commission such a plan. It envisioned that the plans would specify best practices for efficient use of the 4.9 GHz band, including, for example, procedures to allow an incident commander to take control of emergency communications pursuant to compacts made with adjacent and overlapping jurisdictions. In the event an RPC does not submit such a plan, licensees must cooperate in the selection and use of channels in order to reduce interference and make the most effective use of authorized facilities.

18. We continue to believe that the technical expertise resident in the RPCs may be quite useful to new 4.9 GHz licensees, and we encourage dialog between them. However, we have not been shown that coordination of 4.9 GHz operations will be facilitated by requiring 4.9 GHz licensees to make mandatory use of the RPCs. The principal task of RPC is to coordinate selection of specific channels for use at static base stations (and their associated mobiles). However, given the whole-band licensing structure that we have established and the likelihood that deployment of 4.9 GHz equipment is likely to be dynamic rather than static, it would appear impractical to formulate, in advance, an optimum distribution of channel assignments that would be universally suitable for each incident. This is not to suggest that agencies should not coordinate use of channels at an incident, or not have a process for doing so. However, we believe that that task is best undertaken by local jurisdictions, and we thus are not prepared to mandate use of RPCs for a purpose markedly different from that for which they were formed.

19. Our decision essentially renders moot NPSTC's request that we require RPCs to establish procedures for resolving disputes over the use of 4.9 GHz frequencies. However, we are aware that 700 MHz and 800 MHz RPCs do have procedures for resolution of disputes among licensees using those bands. Accordingly, these RPCs may be well-equipped to mediate disputes arising between 4.9 GHz licensees, should such licensees voluntarily elect to submit such disputes to mediation. We do not believe, however, that the possibility of such requests for voluntary mediation is a sufficient reason to require RPCs to develop 4.9 GHz dispute resolution procedures and, accordingly, we decline NPSTC's request to do so.

I. Procedural Matters

A. Final Regulatory Flexibility Certification

20. As required by the Regulatory Flexibility Act (RFA), a Final Regulatory Flexibility Analysis (FRFA) was incorporated in the Third Report and Order. In view of the fact that we have adopted further rule amendments in this Memorandum Opinion and Order, we have included this Final Regulatory Flexibility Certification. This Certification conforms to the RFA.

21. The RFA requires that regulatory flexibility analysis be prepared for rulemaking proceedings unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business ” has the same meaning as the term “small business concern” under the Small Business Act. 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).

22. This Memorandum Opinion and Order relaxes the technical emission limits adopted in the Third Report and Order for devices operating in the band 4940-4990 MHz, to be used exclusively for public safety services. Our action may affect equipment manufacturers since technical equipment parameters are being changed. However, as service rules for the 4.9 GHz band have been recently adopted, equipment has not yet been developed and certified under the Commission's rules.

23. Therefore, we certify that the requirements of this Memorandum Opinion and Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Memorandum Opinion and Order, including a copy of this final certification, in a report to Congress pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A). In addition, the Memorandum Opinion and Order and this certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration, and will be published in the Federal Register. See U.S.C. 605(b).

II. Ordering Clauses

24. Part 90 of the commission's rules is amended as specified in appendix B, effective July 18, 2005.

25. Pursuant to Sections 4(i), 303(r), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 405, and § 1.429 of the commission's Rules, 47 CFR 1.429, that the petition for reconsideration filed by the National Public Safety Telecommunications Council is granted in part and denied in part, to the extend set forth above.

26. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Memorandum Opinion and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subject in 47 CFR Part 90

• Communications equipment
• Radio
• Reporting and recordkeeping requirements

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

Final Rule

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:

PART 90—PRIVATE LAND MOBILE RADIO SERVICES

1. The authority citation for part 90 continues to read as follows:

Authority: Sections 4(i), 11, 303(g), 303(r) and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).

2. Section 90.210 is amended by revising the entry in the table for the 4940-4990 MHz frequency band in the undesignated paragraph, by revising paragraph (l), redesignating paragraphs (m) and (n) as paragraphs (n) and (o) and by adding a new paragrah (m) to read as follows:

§ 90.210

Emission masks.

* * * * *

Frequency band (MHz)	Mask for equipment with audio low pass filter	Mask for equipment without audio low pass filter
*    *    *    *    *
4940-4990 MHz	L or M	L or M.
*    *    *    *    *

* * * * *

(l) Emission Mask L. For low power transmitters (20 dBm or less) operating in the 4940-4990 MHz frequency band, the power spectral density of the emissions must be attenuated below the output power of the transmitter as follows:

(1) On any frequency removed from the assigned frequency between 0-45% of the authorized bandwidth (BW): 0 dB.

(2) On any frequency removed from the assigned frequency between 45-50% of the authorized bandwidth: 219 log (% of (BW)/45) dB.

(3) On any frequency removed from the assigned frequency between 50-55% of the authorized bandwidth: 10 + 242 log (% of (BW)/50) dB.

(4) On any frequency removed from the assigned frequency between 55-100% of the authorized bandwidth: 20 + 31 log (% of (BW)/55) dB attenuation.

(5) On any frequency removed from the assigned frequency between 100-150% of the authorized bandwidth: 28 + 68 log (% of (BW)/100) dB attenuation.

(6) On any frequency removed from the assigned frequency above 150% of the authorized bandwidth: 50 dB.

(7) The zero dB reference is measured relative to the highest average power of the fundamental emission measured across the designated channel bandwidth using a resolution bandwidth of at least one percent of the occupied bandwidth of the fundamental emission and a video bandwidth of 30 kHz. The power spectral density is the power measured within the resolution bandwidth of the measurement device divided by the resolution bandwidth of the measurement device. Emission levels are also based on the use of measurement instrumentation employing a resolution bandwidth of at least one percent of the occupied bandwidth.

(m) Emission Mask M. For high power transmitters (greater that 20 dBm) operating in the 4940-4990 MHz frequency band, the power spectral density of the emissions must be attenuated below the output power of the transmitter as follows:

(1) On any frequency removed from the assigned frequency between 0-45% of the authorized bandwidth (BW): 0 dB.

(2) On any frequency removed from the assigned frequency between 45-50% of the authorized bandwidth: 568 log (% of (BW)/45) dB.

(3) On any frequency removed from the assigned frequency between 50-55% of the authorized bandwidth: 26 + 145 log (% of BW/50) dB.

(4) On any frequency removed from the assigned frequency between 55-100% of the authorized bandwidth: 32 + 31 log (% of (BW)/55) dB.

(5) On any frequency removed from the assigned frequency between 100-150% of the authorized bandwidth: 40 + 57 log (% of (BW)/100) dB.

(6) On any frequency removed from the assigned frequency between above 150% of the authorized bandwidth: 50 dB or 55 + 10 log (P) dB, whichever is the lesser attenuation.

(7) The zero dB reference is measured relative to the highest average power of the fundamental emission measured across the designated channel bandwidth using a resolution bandwidth of at least one percent of the occupied bandwidth of the fundamental emission and a video bandwidth of 30 kHz. The power spectral density is the power measured within the resolution bandwidth of the measurement device divided by the resolution bandwidth of the measurement device. Emission levels are also based on the use of measurement instrumentation employing a resolution bandwidth of at least one percent of the occupied bandwidth.

Note to paragraph m:

Low power devices may as an option, comply with paragraph (m).

* * * * *

3. Section 90.1215 is revised to read as follows:

§ 90.1215

Power limits.

The transmitting power of stations operating in the 4940-4990 MHz band must not exceed the maximum limits in this section.

(a) The peak transmit power should not exceed:

Channel bandwidth (MHz)	Low power peak transmitter power (dBm)	High power peak transmitter power (dBm)
1	7	20
5	14	27
10	17	30
15	18.8	31.8
20	20	33

High power devices are also limited to a peak power spectral density of 21 dBm per one MHz. High power devices using channel bandwidths other than those listed above are permitted; however, they are limited to a peak power spectral density of 21 dBm/MHz. If transmitting antennas of directional gain greater than 9 dBi are used, both the peak transmit power and the peak power spectral density should be reduced by the amount in decibels that the directional gain of the antenna exceeds 9 dBi. However, high power point-to-point or point-to-multipoint operation (both fixed and temporary-fixed rapid deployment) may employ transmitting antennas with directional gain up to 26 dBi without any corresponding reduction in the transmitter power or spectral density. Corresponding reduction in the peak transmit power and peak power spectral density should be the amount in decibels that the directional gain of the antenna exceeds 26 dBi.

(b) Low power devices are also limited to a peak power spectral density of 8 dBm per one MHz. Low power devices using channel bandwidths other than those listed above are permitted; however, they are limited to a peak power spectral density of 8 dBm/MHz. If transmitting antennas of directional gain greater than 9 dBi are used, both the peak transmit power and the peak power spectral density should be reduced by the amount in decibels that the directional gain of the antenna exceeds 9 dBi.

(c) The peak transmit power is measured as a conducted emission over any interval of continuous transmission calibrated in terms of an RMS-equivalent voltage. If the device cannot be connected directly, alternative techniques acceptable to the Commission may be used. The measurement results shall be properly adjusted for any instrument limitations, such as detector response times, limited resolution bandwidth capability when compared to the emission bandwidth, sensitivity, etc., so as to obtain a true peak measurement conforming to the definitions in this paragraph for the emission in question.

(d) The peak power spectral density is measured as conducted emission by direct connection of a calibrated test instrument to the equipment under test. If the device cannot be connected directly, alternative techniques acceptable to the Commission may be used. Measurements are made over a bandwidth of one MHz or the 26 dB emission bandwidth of the device, whichever is less. A resolution bandwidth less than the measurement bandwidth can be used, provided that the measured power is integrated to show total power over the measurement bandwidth. If the resolution bandwidth is approximately equal to the measurement bandwidth, and much less than the emission bandwidth of the equipment under test, the measured results shall be corrected to account for any difference between the resolution bandwidth of the test instrument and its actual noise bandwidth.