03-13781. Amateur Radio Service

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document provides access to channels in or near the 5250-5400 kHz band on a secondary basis for the amateur service, and upgrade the existing secondary amateur service allocation to primary status in the 2400-2402 MHz band. The rule changes will enhance the ability of amateur operators to communicate at 5000 kHz when propagation conditions do not permit communication at 3500 or 7000 kHz, and provide additional protection for the amateur operators now using the 2400-2402 MHz band. We are declining to make an allocation to the amateur service in the 135.7-137.8 kHz or the 160-190 kHz bands, due to potential interference to other operations. We are also declining to add a primary allocation to the amateur satellite service in the 2400-2402 MHz band, due to possible spectrum use conflicts.

DATES:

Effective July 3, 2003.

FOR FURTHER INFORMATION CONTACT:

Thomas Derenge, Office of Engineering and Technology [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Report and Order, ET Docket No. 02-98, FCC 03-105, adopted April 29, 2003, and released May 14, 2003. The full text of this document is available on the Commission's Internet site at http://www.fcc.gov. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Qualex International, Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone [phone]; fax [phone]; e-mail [e-mail].

Summary of the Report and Order

1. The amateur radio service, governed by part 97 of the Commission's rules, provides spectrum for amateur radio service licensees to participate in a voluntary noncommercial communications service which provides emergency communications and allows experimentation with various radio techniques and technologies to further the understanding of radio use and the development of new technologies. In the Report and Order (“R&O”), we are providing access to 5 channels in or near the 5250-5400 kHz band on a secondary basis for the amateur service, and upgrading the existing secondary amateur service allocation to primary status in the 2400-2402 MHz band.

2. On May 2, 2002, the Commission adopted a Notice of Proposed Rulemaking (“NPRM”) in response to three Petitions for Rulemaking submitted by the National Association for Amateur Radio (“ARRL”). The first of these petitions requested that a secondary allocation to the amateur service be made in the 135.7-137.8 kHz and 160—190 kHz bands to permit experimentation in the Low Frequency (“LF”) range. The second petition requested a secondary amateur allocation in the 5250-5400 kHz band to enhance amateur emergency communications and experimentation when propagation conditions are not favorable in the 3500 kHz and 7000 kHz bands. The third petition requested an upgrade to primary status for the existing secondary amateur allocation and a new primary allocation for the amateur-satellite service in the 2400-2402 MHz band to protect existing amateur operations from future commercial systems which may utilize the band.

135.7-137.8 kHz and 160—190 kHz Bands (RM-9404)

3. While we agree that amateur experimentation in the 135.7-137.8 kHz and 160-190 kHz portions of the LF spectrum could serve to increase the pool of individuals having knowledge of LF transmissions, we conclude that such operations would pose the potential for harmful interference to systems protecting and controlling the national power grid. Therefore, we find that a new amateur allocation in the LF range of the radio spectrum is not justified when balanced against the greater public interest of an interference-free power grid. Further, we find that the opportunity to experiment with LF operations provided to amateur radio operators under our part 15 rules and through our experimental licensing process, while less attractive to amateur operators than their own proposal, provides the appropriate means for such use in light of the compelling uses in the band.

4. We disagree with ARRL's and the amateur operators' assertions concerning the consideration we should accord incumbent part 15 use in these bands in deciding whether to provide an allocation for amateur services. Our decision must be based upon the facts at hand and our evaluation of any potential changes to the spectral environment due to our decision. In evaluating whether new operations should be added to a band, licensed or not, we must consider the potential for interference conflicts between the operations. While unlicensed Power Line Carrier (“PLC”) operations have no protection status, they provide a vital public service. Therefore, we disagree with amateur comments that we should not consider the impact on unlicensed operations when making spectrum allocation decisions.

5. We note the significant potential for interference between the proposed amateur operations and the incumbent PLCs. ARRL concedes that amateur operations and power lines with attached PLCs would have to be separated in order to prevent interference. We find that separation distances on the order of 950 meters would be necessary to protect the PLCs from interference. We also find that this distance, coupled with the larger-than-expected number of PLCs potentially impacted by this proposed allocation, increases the likelihood that a PLC-equipped powerline will be close enough to an amateur station to receive interference. We will not jeopardize the reliability of electrical service to the public.

6. We believe that the utility companies have raised a valid concern that an allocation to the amateur service could result in the need for PLCs to modify or cease their operations to avoid causing interference to amateurs. Amateur operators have expressed concern that there may be interference to their operations from the power lines and from PLC devices. While it appears that other techniques could be used to control the power grid, we find that the utility companies have come to rely on PLC systems for monitoring and control of the power grid, and that the alternatives suggested may not be as effective, and would be costly. We are persuaded that the costs of replacing PLC systems would be significant, would be disruptive to the public, and are not justified merely to open this band to amateur use on a secondary basis.

7. We decline to make an allocation to the amateur service in the LF spectrum at this time. We do believe there is potential for some limited operation in these bands under individual experimental licenses. Operations at LF under our experimental license program will allow amateur use to be coordinated with utility companies on a case-by-case basis, and allow empirical data to be developed on the sharing possibilities in this band for future consideration. In addition, amateurs may still make use of the 160-190 kHz band under our part 15 rules, which are much more restrictive, and therefore more protective of PLCs, than the limits proposed in the NPRM.

5250-5400 kHz Band (RM-10209)

8. We believe that frequencies in the 5250-5400 kHz range may be useful for completing disaster communications links at times when the 3 and 7 MHz bands are not available due to ionospheric conditions, and appreciate the desire of the amateur radio community to assist with disaster communications. At the same time, since the majority of the affected users are Federal government licensees with homeland security responsibilities, we give considerable weight to the concerns NTIA has expressed about the potential for interference to these users. Thus, we conclude that it is not reasonable to grant ARRL's original request for the whole of the 5250-5400 kHz band. NTIA has reviewed its assignments and has found that five channels are lightly used and could be used on a secondary basis by amateur stations. While we recognize that these five channels will not give the amateur service the 150 kilohertz of spectrum in the 5000 kHz range it originally asked for or the flexibility to use multiple transmission modes, this appears to be the best compromise available to give the amateur service access to new spectrum while assuring the Federal government agencies that their use is protected. We also concur with NTIA's basic proposals that amateur service operations on these channels be limited to SSB-SC modulation, upper sideband voice transmissions only, with power not to exceed the equivalent of 50 W PEP transmitter output power into an antenna with a gain of 0 dBd, or 50 W effective radiated power (“e.r.p”). These operating rules will decrease the interference potential between amateur stations and Federal government users. We have amended §§ 2.106, and 97.303 of our rules to provide a secondary allocation to the amateur service on the channels 5332 kHz, 5348 kHz, 5368 kHz, 5373 kHz and 5405 kHz as specified by NTIA, and to require that amateur operations be limited to an (e.r.p.) of 50 W and emission type 2K8J3E, upper sideband voice transmissions only centered on each frequency. For the purpose of computing e.r.p., the transmitter peak envelope power will be multiplied with the antenna gain relative to a dipole or the equivalent calculation in decibels. A half wave dipole antenna will be presumed to have a gain of 0 dBd. Licensees using other antennas must maintain in their station records either manufacturer data on the antenna gain or calculations of the antenna gain. In addition, because we have permitted amateur stations to transmit on five discrete frequencies and are limiting the transmission mode to single sideband only, dividing the band into smaller sub-bands to be used for other emission types is not practical or necessary. Lastly, we have permitted these frequencies to be used by amateur service licensees with a General Class, Advanced Class, or Amateur Extra Class operator license. We believe that the limited number of frequencies and the emission restriction will protect against interference to primary service operations.

9. Because the broadband PLCs would be new services operating in new frequency bands and are not yet deployed, we do not have the same concerns as with the incumbent PLC systems in the 160-190 kHz band. Because these new PLC systems are still in development, we expect that they can be designed to be compatible with the other operations in this band, and we deny the United Power Line Council (“UPLC”) and Power Line Carrier Association (“PLCA”) request to delay action in this proceeding. The power levels we are adopting are 1/30th of the power levels supported by the UPLC and the e.r.p. restriction provides a limit to the antenna height. We believe that the permitted e.r.p limitation will significantly reduce the possibility of interference to and from broadband PLCs. Because the allowable power level will be very low, we do not believe that we need additional out-of-band emission limits for amateur operations in this band.

10. We deny Homeplug's request for a 10-year safe harbor. Unlicensed devices operated in accordance with the part 15 rules should not cause interference to licensed, allocated services. It is not apparent that there will be significant interference from Homeplug devices, whose signals attenuate quickly, to ARRL operations on these frequencies, which are expected to be sporadic. There is ample alternative spectrum on which Homeplug devices can operate. As a practical matter, we would expect amateur services to take into account the extant Homeplug devices, although they are not required to do so.

2400-2402 MHz Band (RM-9949)

11. We have upgraded the existing amateur service (except amateur-satellite service) allocation at 2400-2402 MHz from secondary to primary status. This modification will provide additional protection to the amateur service in this band from future licensed operations. The allocation changes we are making will not alter the interference protection rights among the current users of the band. Even under the current secondary allocation, amateur services are entitled to interference protection from part 15 devices, and ISM devices are entitled to protection from both amateur operations and part 15 devices. These relationships will remain the same under the amateur service primary allocation. We observe that the amateur operators have successfully shared this band with part 15 and part 18 operations and we have no reason to believe that this sharing will not continue to be successful. Part 15 devices are limited in power and this interference potential from them is limited to an area very close to their transmit location. We therefore modify rule §§ 2.106, 97.303(j)(2)(iii) and 97.303 (j)(2)(iv) to provide a primary allocation for the amateur service (except amateur-satellite service), consistent with our decision.

12. Our analysis regarding an amateur-satellite service allocation at 2400-2402 MHz differs from the case of terrestrial use in this band. The amateur-satellite service currently operates on a non-interference basis (“NIB”) to other services under international footnote 5.282, not on a secondary basis as some parties suggest. This means that these operations are on an equal footing with part 15 devices. As both the amateur and unlicensed proponents recognize, the sensitivity of amateur satellite receivers makes them more vulnerable to aggregate interference from other users in this band. The 2400-2402 MHz band is heavily used by both part 15 and part 18 devices, and, unlike terrestrial amateur operations, amateur satellite receivers are at greater risk from aggregate interference. We thus conclude that an allocation for the amateur-satellite service would be impractical and difficult to implement, given the protection status afforded ISM devices and the large number of part 15 devices that operate in the band. Further, maintaining NIB status for the amateur-satellite service in this 2 megahertz band is consistent with the NIB status that an amateur satellite system would operate under in the 2400-2450 MHz band, so amateur satellite use of this 2 megahertz band is not prejudiced by our decision. Because we are maintaining NIB status for the amateur-satellite service, we will not place any restrictions on these operations (e.g., down-link only operation as some parties suggest).

13. Although ARRL is correct that unlicensed users do not have protection rights vis-a-vis licensed users in a band, it is incorrect when it asserts that we need not consider unlicensed use of this band when deciding whether to modify the allocation. The issue here is whether different uses are compatible and promote efficient use of spectrum. This analysis requires that we consider both licensed and unlicensed use. We conclude that, in the 2400-2402 MHz band, the status quo provides the best mix of uses to promote spectrum efficiency. The extensive use of the band to date by parts 15 and 18 and amateur users under the existing rules supports this conclusion. ARRL's suggestion to license those devices that have the potential to cause interference to licensed services does not alter our analysis. Even among licensed services, we consider whether uses are compatible and promote efficient use of spectrum. ARRL's approach would merely have us identify the priority between the amateur service and another licensed service.

14. We also conclude that, because we are maintaining the relative allocation status in this band, it is not necessary to implement a “safe harbor” for part 15 devices. Unlicensed devices operated in accordance with the part 15 rules should not cause interference to the amateur service, and amateur services can take into account these well known technical characteristics used by unlicensed devices as they operate in the band. The amateur service and unlicensed devices have successfully shared this band in the past, and we have no reason to conclude that these sharing arrangements will not continue to be successful.

Final Regulatory Flexibility Certification

15. The Regulatory Flexibility Act of 1980, as amended (RFA),^[1] requires that an initial regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.”^[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]

16. In the R&O, we make five channels in or near the 5250-5400 kHz frequency band available on a secondary basis and upgrade the allocation of the 2400-2402 MHz frequency band to the amateur service. The amateur radio service is a voluntary non-commercial communications service comprised of individuals or groups of individuals holding amateur radio licenses issued by the Commission.^[6] These individuals are prohibited from using spectrum allocated to the amateur service for communications for hire or for material compensation, or for communications in which the amateur radio operator has a pecuniary interest.^[7] Therefore, amateur radio operators do not fit any part of the definition of “small entities” described above, and thus are not classified as such.

17. In addition, even if the amateur radio licensees were hypothetically considered as “small entities,” the rule changes promulgated in this R&O simply make spectrum available for the amateur radio operations and impose no additional fees, costs, or compliance burdens on an operator. Since the amateur radio service is a voluntary service, it would be up to each individual amateur to purchase or modify equipment to use the new bands. There is no cost associated with the upgrade of the allocation. On the contrary, the amateur radio service receives the positive benefits of access to additional spectrum.

18. Lastly, the use of these five new frequencies in or near the 5250-5400 kHz band on a secondary basis by the amateur service does not impact any small entities because it is primarily used by the Federal Government. The allocation upgrade in the 2400-2402 MHz band also does not impact any small entities because there are currently only part 15 and part 18 operations in that frequency band. The part 18 operations maintain their right to operate under international footnote 5.150.^[8] The current amateur service allocation status is higher than the status of part 15 operations, so that there will be no additional impact due to this action.

19. Therefore, we certify that the rules in this R&O will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Report and Order, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act.^[9] In addition, the Report and Order and this Final Certification will be sent to the Chief Counsel for Advocacy of the SBA.^[10]

Ordering Clauses

20. Pursuant to sections 1, 4, 301, 302(a), and 303(c) and (f), of the Communications Act of 1934, as amended, 47 U.S.C. sections 151, 154, 301, 302(a), and 303(c) and (f), parts 2 and 97 of the Commission's rules have been amended and will be effective July 3, 2003.

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

List of Subjects in 47 CFR Parts 2 and 97

• Communications equipment
• Radio

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 97 as follows:

PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS

1. The authority citation for part 2 continues to read as follows:

Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.

2. Section 2.106, the Table of Frequency Allocations, is amended by revising pages 11 and 51 and in the list of United States footnotes, add footnote US 381 to read as follows:

§ 2.106

Table of Frequency Allocations.

* * * * *

* * * * *

United States (US) Footnotes

* * * * *

US381 The frequencies 5332 kHz, 5348 kHz, 5368 kHz, 5373 kHz, and 5405 kHz are allocated to the amateur service on a secondary basis. Amateur use of these frequencies shall be limited to: (1) A maximum effective radiated power (e.r.p.) of 50 W; and, (2) single sideband suppressed carrier modulation (emission designator 2K8J3E), upper sideband voice transmissions only.

PART 97—AMATEUR RADIO SERVICE

3. 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.

4. Section 97.303 is amended by revising paragraphs (j)(2)(iii), (j)(2)(iv), and adding paragraph (s) to read as follows:

§ 97.303

Frequency sharing requirements.

* * * * *

(j) * * *

(2) * * *

(iii) The 2390-2417 MHz segment is allocated to the amateur service on a primary basis, and amateur stations operating within the 2400-2417 MHz segment must accept harmful interference that may be caused by the proper operation of industrial, scientific, and medical devices operating within the band.

(iv) The 2417-2450 MHz segment is allocated to the amateur service on a co-secondary basis with the Federal Government radiolocation service. Amateur stations operating within the 2417-2450 MHz segment must accept harmful interference that may be caused by the proper operation of industrial, scientific, and medical devices operating within the band.

* * * * *

(s) An amateur station having an operator holding a General, Advanced or Amateur Extra Class license may only transmit single sideband, suppressed carrier, (emission type 2K8J3E) upper sideband on the channels 5332 kHz, 5348 kHz, 5368 kHz, 5373 kHz, and 5405 kHz. Amateur operators shall ensure that their transmission occupies only the 2.8 kHz centered around each of these frequencies. Transmissions shall not exceed an effective radiated power (e.r.p) of 50 W PEP. For the purpose of computing e.r.p. the transmitter PEP will be multiplied with the antenna gain relative to a dipole or the equivalent calculation in decibels. A half wave dipole antenna will be presumed to have a gain of 0 dBd. Licensees using other antennas must maintain in their station records either manufacturer data on the antenna gain or calculations of the antenna gain. No amateur station shall cause harmful interference to stations authorized in the mobile and fixed services; nor is any amateur station protected from interference due to the operation of any such station.

Footnotes

1.  The RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, title II, 110 Stat. 857 (1996).

2.  5 U.S.C. 605(b).

3.  5 U.S.C. 601(6).

4.  5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), 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.  15 U.S.C. 632.

6.  See 47 CFR 97.1 and 97.3(a).

7.  See 47 CFR 97.113(a)(2).

8.  See 47 CFR 2.106, footnote 5.150.

9.  See 5 U.S.C. 801(a)(1)(A).

10.  See 5 U.S.C. 605(b).