03-14082. Spectrum Sharing Plan Among Non-Geostationary Satellite Orbit Mobile Satellite Service Systems in the 1.6/2.4 GHz Bands

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

This document solicits comment on redistributing spectrum in the 1.6/2.4 GHz band (Big LEO band). The Commission initiated the notice of proposed rulemaking in this proceeding because recent rule changes, as well as changing traffic patterns and consumer demands, suggest that it is an appropriate time for the Commission to re-examine the Big LEO spectrum. In addition, a licensed Big LEO operator requested access to additional spectrum in this band.

DATES:

Comments are due July 7, 2003, and reply comments are due July 21, 2003.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Room TW-B204, Washington, DC, 20554.

FOR FURTHER INFORMATION:

Trey Hanbury, Breck Blalock, or James Ball, Policy Division, International Bureau, [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's notice of proposed rulemaking in IB Docket No. 02-364, FCC No. 03-15, adopted January 29, 2003, and released on February 3, 2002. The full text of this document is available for public inspection and copying during normal reference room hours at the FCC Reference Information Center, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document is also available for download over the Internet at http://hraunfoss.fcc.gov/​edocs_​public/​attachmatch/​FCC-03-15A1.pdf. The document may be obtained from Qualex International, in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via telephone at [phone], via facsimile at [phone], or via e-mail at [e-mail].

Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/​e-file/​ecfs.html. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to [e-mail], and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. The Commission's contractor, Vistronix, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

Summary of Notice of Proposed Rulemaking

On February 3, 2003, the Commission released a Report and Order and Notice of Proposed Rulemaking (NPRM) in this proceeding. The Report and Order relating to this proceeding is published elsewhere in this issue of the Federal Register. The NPRM seeks comment on proposals for reassigning or reallocating a portion of spectrum in the Big LEO MSS frequency bands. At the time that the Commission developed the Big LEO spectrum sharing plan, it explained that it might be appropriate to re-visit the plan in the future. Since then, two MSS systems deployed and have begun to operate, while several other systems have either surrendered their license or failed to meet the terms of their license. These changes, as well as changing traffic patterns and consumer demands, suggest that now is an appropriate time to re-examine the Big LEO spectrum plan. In addition, Iridium, one of the two licensed Big LEO operators, has requested access to additional spectrum in the Big LEO band. In the NPRM, the Commission tentatively concludes that a rebalancing of spectrum in the Big LEO band would serve the public interest and seeks comment on the proposal in Iridium's petition and on various alternative uses for the Big LEO spectrum, including whether the Commission should reallocate spectrum for unlicensed services, an additional commercial mobile radio service (CMRS) licensee or other services, or initiate a second processing round by which the Commission could authorize new MSS entry.

The Commission seeks specific technical detail and cost-benefit analysis on the current and projected use of the Big LEO band in the NPRM. For example, given Iridium's request for additional spectrum, how is Iridium utilizing its current spectrum allocations and what are its future spectrum requirements? If the Commission were to make more Big LEO spectrum available, exactly how much additional spectrum would be appropriate? What type of system would Iridium deploy in this additional spectrum? How is Globalstar utilizing its currently assigned Big LEO spectrum? What are Globalstar's projected spectrum needs? Will it require additional Big LEO spectrum in the future? If Globalstar does not use or is not permitted to use the entire Big LEO service downlink spectrum, what should the Commission do with any unused spectrum? Will changes to the Big LEO spectrum sharing plan have any effect on GLONASS, the Russian Global Navigation System, and radioastronomy service (RAS) operations in the band? How does the current U.S. Big LEO spectrum sharing plan fit with international band plans for Big LEO operations and what impact will changes to the U.S. plan have on plans in other regions?

The Commission also seeks comment on the possibility of making any returned spectrum available in a second Big LEO processing round. How much spectrum would need to be made available to provide sufficient incentive for applicants to participate in a second Big LEO processing round? Are the current Big LEO processing rules sufficient to handle a second processing round or would the Commission need to conduct a rulemaking to develop appropriate rules for second round applicants and licensees?

In addition, the Commission seeks comment on possibility of re-allocating any returned Big LEO spectrum. Should unlicensed devices be allowed to operate in the band? Should this band be allocated for site-based or critical infrastructure licensees? Alternatively, should the Commission pair spectrum in the uplink and downlink service bands for assignment to a terrestrial CMRS licensee? The Commission seeks comment on implementation of ATC in the portion of the Big LEO bands beyond those authorized for ATC in the Report and Order adopted in this docket, see In the Matter of Flexibility for Delivery of Communications by Mobil Satellite Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz Bands, Report and Order, IB Docket 01-185, FCC No. 03-15. This Report and Order is published elsewhere in this issue of the Federal Register. The Commission asks whether there are any advantages or disadvantages to allowing CDMA or TDMA systems to deploy ATC in particular parts of the unresolved portions of the Big LEO service up and downlink spectrum.

Procedural Issues

Regulatory Flexibility Act Analysis

The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice-and-comment 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.” In the NPRM, the Commission certified that the proposed rules would not have a significant economic impact on a substantial number of small entities. Pursuant to the RFA, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) on the possible significant economic impact on small entities by the policies and actions considered in the NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM. Comments are due July 7, 2003. The Commission will send a copy of the document, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this NPRM. See 5 U.S.C. 603. The RFA has been amended by the Contract With America Advancement Act of 1996, Public Law No. 104-121, 110 Stat. 847 (1996) (CWAAA). See 5 U.S.C. 601 et seq., title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

Need for and Objectives of the Proposed Rules

This NPRM seeks comment on proposals for reassigning or reallocating a portion of spectrum in the Big LEO MSS frequency bands. Given the state of the Big LEO MSS industry including changing traffic patterns, consumer demand and a recent request for additional spectrum by Iridium, one of the Big LEO operators, the NPRM seeks comment on: (1) the Commission's original spectrum sharing plan, (2) the proposal of Iridium for additional spectrum and (3) other possible uses of the band.

Legal Basis

This action is taken pursuant to sections 1, and 4(i) and (j) of the Communications Act, as amended, 47 U.S.C. 151, 154(i), 154(j), and section 201(c)(11) of the Communications Satellite Act of 1962, as amended, 47 U.S.C. 721(c)(11), and section 553 of the Administrative Procedure Act, 5 U.S.C. 553.

Description and Estimate of the Number of Small Entities to Which the Proposed Rules Would 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 proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction” under section 3 of 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 SBA. Id. section 632

The Commission has not developed a definition of small entities applicable to geostationary or non-geostationary orbit fixed-satellite or mobile satellite service operators. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to Communications Services, Not Elsewhere Classified. See 13 CFR 121.201, NAICS Code 51334. This definition provides that a small entity is one with $11.0 million or less in annual receipts. According to Census Bureau data, there are 848 firms that fall under the category of Communications Services, Not Elsewhere Classified which could potentially fall into the L-band, Big LEO or 2 GHz MSS category. Of those, approximately 775 reported annual receipts of $11 million or less and qualify as small entities. The options proposed in this NPRM apply only to entities providing Big LEO MSS. Small businesses may not have the financial ability to become MSS system operators because of the high implementation costs associated with satellite systems and services. At least one of the Big LEO licensees may be considered a small business at this time. We expect, however, that by the time of implementation they will no longer be considered small businesses due to the capital requirements for launching and operating their proposed systems. Therefore, because of the high implementation costs and the limited spectrum resources, we do not believe that small entities will be impacted by this rulemaking to a great extent.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

The proposed action in this NPRM would affect those entities applying for Big LEO MSS space station authorizations and those applying to participate in assignment of Big LEO MSS spectrum, including through potential re-allocation. In this NPRM, we tentatively conclude that a re-balancing of the Big LEO MSS band will serve the public interest. We seek comment on the current use of the Big LEO MSS uplink band (1610-1626.5 MHz) by the current licensees, Iridium and Globalstar, any potential impact on GLONASS, the Russian Global Navigation Satellite System, and radioastronomy, and Big LEO MSS service downlink (2483.5-2500 MHz) spectrum uses. We also seek comment on the possibility of making Big LEO MSS spectrum available in a second Big LEO processing round, re-allocating a portion of the Big LEO spectrum for other uses, including unlicensed devices, site-based or critical infrastructure licensees, or assignment to terrestrial commercial mobile radio service licensees. We do not propose any other reporting, recordkeeping or compliance requirements in the NPRM.

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.

In developing the tentative conclusion and the proposals contained in this NPRM, we have attempted to allow flexibility for efficient operations in the Big LEO MSS market, regardless of size, consistent with our other objectives. We have also sought comment on other uses of the spectrum that may enhance service to the public. We believe that our tentative conclusion that the Big LEO MSS band should be re-balanced, our request for comment on the current use of the band by the Big LEO licensees, and our request for comment on other uses of the band will not impose a significant economic impact on small entities because: (1) The information sought is reasonable and not overly burdensome; and (2) as mentioned above, we do not expect small entities to be impacted by this NPRM due to the substantial implementation costs involved to use the spectrum at issue in this NPRM. Nonetheless, we seek comment on the impact of our proposals on small entities and on any possible alternatives that could minimize any such impact.

Federal Rules and May Duplicate, Overlap, or Conflict With Proposed Rules

None.

Ordering Clauses

It is ordered that, pursuant to sections 1, 4(i)-4(j), 201-205, 214, 303(r), and 309 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-154(j), 201-205, 214, 303(r), 309, this notice of proposed rulemaking is hereby adopted.

It is ordered that, the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center shall send a copy of this notice of proposed rulemaking, including the initial regulatory flexibility analysis, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. (1981).

Federal Communications Commission.

Marlene H. Dortch,

Secretary.