[Federal Register Volume 62, Number 155 (Tuesday, August 12, 1997)]
[Rules and Regulations]
[Pages 43116-43122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21180]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 2, 15, and 97
[ET Docket No. 97-124; FCC 97-153]
Use of Radio Frequencies Above 40 GHz for New Radio Applications
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission adopts a Second Report and Order designating
the frequency spectrum band between 47.2 and 48.2 GHz for commercial
use on a licensed basis. The Commission decides to permit fixed, fixed-
satellite, and mobile uses consistent with the Table of Frequency
Allocations governing the band. The Commission also decides to define
service rules in a future rulemaking, based on the dominant use of the
spectrum, and finds that the most likely dominant use will be fixed,
point-to-multipoint services delivered through the deployment of fixed
platforms located in the stratosphere. The Commission adopts the
proposal to license operations on an area-wide basis and determines to
divide the spectrum into five pairs of license blocks of 200 megahertz
each pair, with each pair separated by 500 megahertz of spectrum. These
actions are taken to promote the commercial availability of millimeter
wave
[[Page 43117]]
technology in providing the potentially valuable uses of licensed
spectrum above 40 GHz.
EFFECTIVE DATE: October 14, 1997.
ADDRESSES: Room 7002, 2025 M Street, NW., Federal Communications
Commission, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Barbara Reideler, Policy Division,
Wireless Telecommunications Bureau, (202) 418-1310.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Second Report and
Order in ET Docket No. 94-124, FCC 97-153, adopted May 2, 1997, and
released July 21, 1997. The complete text of this decision is available
for inspection and copying during normal business hours in the FCC
Reference Center (Room 239), 1919 M Street, NW., Washington, DC, and
also may be purchased from the Commission's copy contractor,
International Transcription Service, (202) 857-3800, 1231 20th Street,
NW., Washington, DC 20036.
Synopsis of Second Report and Order
1. This action is part of an ongoing proceeding to open for
commercial development portions of the spectrum known as the millimeter
wave bands above 40 GHz.1 The Commission initiated this
proceeding by Notice of Proposed Rulemaking (First NPRM) in 1994 (59 FR
61304, March 1, 1995).
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\1\ The term ``millimeter wave'' refers to the fact that the
wavelength of radio signals for frequencies between 30 GHz and 300
GHz ranges from 10 millimeters down to 1 millimeter.
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2. In this Second Report and Order (Second R&O), the Commission
adopts the proposal contained in the First NPRM to designate for
commercial use on a licensed basis the 47.4-48.2 GHz band, together
with the 47.2-47.4 GHz band made available in the First Report and
Order (61 FR 14041, March 29, 1996) for a total of one gigahertz of
spectrum (47 GHz band). Further, the Commission adopts proposals to
establish a licensing framework that permit the full range of services
allowed under the Table of Frequency Allocations (Allocation Table) in
our rules 2 and to define service rules based on our best
judgment of what the dominant use of the spectrum is likely to be. The
Commission finds that the most likely dominant use will be fixed,
point-to-multipoint services delivered through the deployment of fixed
platforms located in the stratosphere, without foreclosing the other
uses under the Allocation Table. The Commission adopts the proposal to
license operations on an area-wide basis and we determine to divide the
spectrum into five pairs of license blocks of 100 megahertz each, with
each pair separated by 500 megahertz of spectrum.
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\2\ 47 CFR 2.106.
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3. The Commission concludes that opening this spectrum for
commercial licensed use under our licensing framework will stimulate
the development of millimeter wave technology to provide new wireless
communications services that are in demand by consumers. The broad
degree of flexibility regarding the permissible range of services will
ensure the ability of carriers to respond to the market, will promote
competition, and will provide for the most efficient and effective
services. The Commission will initiate a proceeding in the near future
to propose service rules in order to implement our determinations in
this Second R&O for the licensing of the 47 GHz band. The proposed
rules will include proposals relating to auctions. The Commission also
defers to future proceedings our consideration of the additional
frequency bands above 40 GHz that we proposed for licensed use in the
First NPRM, as well as the additional bands proposed for unlicensed use
that were not considered in the First Report and Order.
4. In this Second Report and Order, the Commission limits
consideration of the bands we proposed to designate for commercial,
licensed use in the First NPRM to the 47 GHz band. This band consists
of the 47.4-48.2 GHz segment originally set forth in the First NPRM and
the adjoining 47.2-47.4 GHz segment made available for such use in the
First Report and Order. The Commission did not propose any changes to
this band in the 36-51 GHz Band Plan NPRM in IB Docket No. 97-95 (62 FR
16129, April 4, 1997) where we designated the band for predominantly
wireless terrestrial services. The Commission found that comments had
already been received on this band segment in response to the First
NPRM on which we could proceed to take action without delay. Thus, the
Commission's proposals in the First NPRM as they apply to the 47 GHz
band are ripe for disposition at this time.
5. The comments filed in this docket consist of two sets, the
comments filed in direct response to the Commission's proposals in the
First NPRM (to the extent those comments are pertinent to the issues we
resolve in this Second Report Order), and the comments filed in
response to the respective public notices accepting the Request To
Establish New GSTS Service, Additional Comments, and Petition for
Rulemaking (hereinafter cited as Request and Petition) and the
Application, filed by Sky Station International, Inc. (Sky Station) on
March 20, 1996, in this docket. Both the filings by Sky Station and the
responsive pleadings concern the Commission's proposals to license the
47 GHz band, but were filed after the comment period to the First NPRM
closed and raise issues not addressed in our proposals. Because the Sky
Station filings and responsive pleadings are pertinent to the issues
before us, the Commission has decided to take these filings and
pleadings into account in connection with the decisions we make in this
Second Report and Order.
6. In the Request and Petition, Sky Station requests that the
Commission authorize use of the spectrum at 47.2-47.5 GHz and 47.9-48.2
GHz for a new commercial, licensed service described as the Global
Stratospheric Telecommunications Service (GSTS), and that the
Commission adopt service rules either in this proceeding or a separate
rulemaking to implement the service. Sky Station filed concurrently an
application (hereinafter cited as Application) for authorization to
construct and operate its proposed service to provide a global network
of wireless communications services, subject to amendment pending the
outcome of its Request and Petition. A public notice was issued
accepting the Application for filing and accepting petitions,
oppositions, and other pleadings filed in response to that public
notice. (FCC Public Notice, Sky Station International, Inc., File No.
96-SAT-P/LA-96, released April 22, 1996.) Comments to the request and
petition, and to the Application, are listed in Appendix A in the full
text of this decision.
7. Sky Station, in its Request and Petition, states that it has
developed a new technology for delivery of a new paradigm of wireless
telecommunications services that it identifies as GSTS, to compete with
existing satellite and terrestrial wireless services. Sky Station
explains that GSTS is based on the concept of using a network of
platforms in the stratosphere that are kept aloft in fixed positions by
hydrogen or helium elements at an altitude of 30 kilometers, or 18
miles, above 99 percent of the atmosphere. Unlike satellite services,
these platforms are not launched into orbit in space, but rather are
lifted by balloons similar to dirigibles to an area in the stratosphere
above flight patterns and below satellite orbits.
8. In the request and petition, Sky Station argues that opening up
a portion of the 47 GHz band for the proposed system will promote the
policy goals we established in the First NPRM and meet
[[Page 43118]]
numerous environmental, economic, and social public interest
objectives. It requests that the Commission adopt proposed technical,
financial, implementation, and licensing standards that encourage
commercial development of the unused 47 GHz band and promote
competition consistent with the flexible framework proposed in the
First NPRM. The service rules advocated by Sky Station in its Request
and Petition would enable all qualified applicants to construct and
operate their own systems as part of the entire GSTS, and the GSTS
would be designed to cover 80 percent of the world's population by a
certain date.
9. Sky Station requests that the Commission dedicate exclusively
for GSTS that portion at 47.2-47.5 GHz for earth-to-stratosphere
communications and 47.9-48.2 GHz for stratosphere-to-earth
communications. Sky Station argues that its service is covered by the
Allocation Table, which provides for fixed and mobile service. However,
it requests that the Commission modify the Table to permit only fixed
and mobile GSTS stations to operate in the two portions of the 47 GHz
band, inasmuch as it contends that the service cannot share co-channel
frequencies with conventional fixed, mobile, or fixed satellite
services. It also requests that International footnote 901 be modified,
as well as U.S. footnote 297, in order to eliminate sharing with
broadcasting-satellite service feeder links, which also could interfere
with GSTS and could operate elsewhere.
10. Sky Station requests authorization in the Application to
implement its proposed service. It argues that the Application
demonstrates that Sky Station is in compliance with the technical,
financial, licensing, and other regulations it has requested we adopt
in the Request and Petition. Sky Station reserves the right to amend
this application to comply with any future rules the Commission may
adopt for its proposed service. The Application includes a request for
a pioneer preference in the event that mutually-exclusive applications
are filed.
11. On December 24, 1996, Sky Station submitted further comments to
clarify its request and petition. Sky Station argues that the
Commission should grant its alternative request in the request and
petition to treat the filing as additional comments in response to the
First NPRM, and that a new rulemaking proceeding to adopt separate
service rules for its proposed stratospheric service is neither
necessary nor appropriate. It requests that the Commission hold the
Application in abeyance. Sky Station argues that the Commission's
proposal for the commercial, licensed use of the 47 GHz band has been
open for comment since the First NPRM and that its comments on the
pending issues together with the other comments in this docket provide
an adequate record on which to resolve the issues to be determined in
this Order.
12. In its further comments, Sky Station argues that its proposed
service is a fixed terrestrial service and that we need not allocate
the requested spectrum to a new global stratospheric service, apart
from other fixed service millimeter wave uses. It argues that a generic
terrestrial allocation for a flexible fixed (non-satellite) service
would suffice, so that it would compete with other aspiring fixed
service providers in auctions for this spectrum. Sky Station argues
that its proposed operations generally fit well within the service
rules the Commission proposed in the First NPRM to adopt for licensed
services above 40 GHz, including the 47 GHz band, which rules are now
contained in Part 101. (See Reorganization and Revision of Parts 1, 2,
21, and 94 of the Rules To Establish a New Part 101 Governing
Terrestrial Microwave Fixed Radio Services, WT Docket No. 94-148,
Amendment of Part 21 of the Commission's Rules for the Domestic Public
Fixed Radio Services, CC Docket No. 93-2, and McCaw Cellular
Communications, Inc., Petition for Rulemaking, RM-7681, Report and
Order, 61 FR 26670, May 28, 1996.) Sky Station submits modifications to
the proposed rules that it argues are minor but necessary to
accommodate its proposed service in the 47 GHz band, including
segmentation of the band to prevent sharing with other services,
license blocks of 100 megahertz paired blocks separated by 500
megahertz, and larger area-wide licensing, among other operating and
technical rules.
13. The Commission grants Sky Station's alternative request to
accept its request and petition as late-filed comments in this
proceeding. In addition, the Commission will also accept the
Application as part of the comments, inasmuch as Sky Station
acknowledges that the Application is filed preliminarily and is
intended to illustrate the service it could provide under its proposals
in the request and petition. As discussed more fully in the text of
this Second R&O, petitioners filing in response to request and petition
do not raise issues that prevent the Commission from including the Sky
Station filings for consideration together with other comments filed in
response to the First NPRM to open the 47 GHz band for commercial,
licensed use.
14. Fixed Point-to-Point Communications Section, Network Equipment
Division of the Telecommunications Industry Association (TIA), Motorola
Satellite Communications, Inc. (Motorola), and Harris Corporation-
Farinon Division (Harris) argue that the nature of Sky Station's
service proposal as terrestrial or satellite service is not clear, and
that it does not fit existing definitions. They request that the
Commission establish a separate allocation category for any airborne
terrestrial wireless communications service.
15. TIA argues that the nature of Sky Station's proposed service
must be identified to determine how to classify the service and find
the appropriate regulatory niche before we may adopt its proposals. TIA
contends that the filings are contradictory regarding whether the
service is terrestrial or satellite, fixed or mobile. It contends that
the service does not fit the international service definition that
defines Radio-Relay Systems to be fixed services operating via
terrestrial stations. TIA argues that the proposed service would be
similar to a satellite based system as an interference source, that the
platform qualifies as a Space Station under the definitions, and that
it should be considered to be a Mobile-Satellite System.
16. TIA proposes that the Commission and the 1997 World Radio
Conference (WRC-97) establish a new service category for any airborne
service operating in the stratosphere or below, apart from aviation
services, that would be defined as a Global Airborne Telecommunications
Service. The category would stimulate innovative airborne services and
would be consistent with allocation requirements. Harris agrees that
the nature of the service should be clarified and that the Global
Airborne category might be the solution to accommodating various
airborne services that will have characteristics similar to the Sky
Station proposal.
17. Motorola also argues that the proposed service requires a new
allocation. It contends that terrestrial fixed and mobile service
allocations do not contemplate stratosphere-to-earth and earth-to-
stratosphere communications provided by means of stratospheric balloon-
supported platforms. It asserts that the platforms should be
disqualified as fixed or mobile terrestrial services because of their
placement above the earth's atmosphere, and should instead be defined
as spacecraft. Motorola further argues that the platforms would lie
within sovereign airspace, and that
[[Page 43119]]
countries may view the proposed service as an infringement of their
rights. It contends that we should refrain from pursuing an
international allocation for the proposed service.
18. In the 36-51 GHz Band Plan NPRM, the Commission determined that
Sky Station's proposed use of spectrum in the 47 GHz band for its
stratospheric radio relay repeater system is considered to be a
terrestrial service. In its Further Comments, Sky Station has clarified
its previous filings, which TIA points out are contradictory, in order
to demonstrate that the proposed service is a terrestrial, fixed
operation. Users permanently mount their terminals or antennas, which
communicate with the repeaters located on the platforms. The Commission
disagrees with TIA and Motorola that the platform qualifies as a space
station and that the proposed service should be considered to be a
satellite service. The platforms proposed for use by Sky Station
clearly are not satellites and, unlike satellites, will not be in earth
orbit. Although the platforms will be located 30 kilometers above the
earth's surface, they still will be within the earth's atmosphere and
will rely on atmospheric lift to keep them at that fixed altitude,
which is far below the location of the lowest satellite orbit.
19. Motorola and TIA point out that there are international
definitions and other international concerns that require that Sky
Station's proposed service be considered in the appropriate
international forums. In that context, the Commission further points
out that world spectrum management experts recently participated in the
work of ITU-R WP4-9S and WP 9B and concluded that a radio-relay service
like Sky Station's proposed service that uses stratospheric-based
repeaters is in the fixed service. The groups developed two Proposed
Draft New Recommendations relating to platform-based stratospheric
radio relay repeaters in the fixed service.3 Moreover, in
the 36-51 GHz Band Plan NPRM the Commission noted that the Ad Hoc
Millimeter Wave group of the Commission's WRC-97 Advisory Committee had
discussed, among other things, the possibility of satellite and fixed
terrestrial services, as well as other terrestrial services operating
from alternative delivery platforms, sharing spectrum in the band.
Thus, the use of such stratospheric-based platforms for a global
service is being addressed in the appropriate forums, where issues of
sovereignty and other concerns will be examined. The Commission denies
the requests of Motorola, Harris, and TIA to establish a separate
allocation category for any airborne terrestrial wireless
communications service as unnecessary and inefficient, inasmuch as the
spectrum Sky Station seeks to use is the subject of this proceeding in
which rules can be proposed to accommodate its service, as well as
other terrestrial services in 47 GHz. The Commission finds these
requests unnecessary and inefficient, inasmuch as the spectrum Sky
Station seeks to use is the subject of this proceeding in which rules
can be proposed to accommodate its service, as well as other
terrestrial services in 47 GHz.
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\3\ Doc. 4-9S/TEMP/30(Rev.1) and Doc. 9B/TEMP/38(Rev.1).
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20. HCI and Motorola argue that the Application and the Request and
Petition leave open many technical, financial, and safety concerns that
must be addressed before the Commission can act on Sky Station's
request and allocate the spectrum it requests. The Commission intends
to solicit comment on the necessary technical and financial
requirements for platform-based stratospheric services at the time we
consider service rules, in a separate Notice of Proposed Rulemaking. At
the same time the Commission will seek comment on the safety concerns
that the platforms raise. These matters are important features of the
service rules that the Commission must adopt before any service in the
47 GHz band can be implemented. They need not be considered in this
Second R&O, however, which is limited to deciding whether to open the
band to commercial, licensed use under a flexible licensing framework.
The matters that HCI and Motorola ask the Commission to address now are
not factors in that decision.
21. HCI, Lockheed Martin Corporation, and Motorola express concern
that, as members of the satellite community, they will not be able to
share the 47 GHz band with Sky Station's proposed service. Since the
filings of these pleadings, the Commission has initiated a spectrum
plan in the 36-51 GHz Band Plan NPRM in order to address the competing
demands between satellite and terrestrial interests for spectrum
allocations for provision of commercial services. Although the
Commission maintained the 47 GHz band for predominantly wireless
services, we identified additional bands for predominantly satellite
services that include the adjacent 48.2-50.2 GHz bands, among others.
Thus, the spectrum management issues raised by petitioners here are
matters addressed in that proceeding and are not a basis for delaying
this proceeding. As for the additional matters the parties seek to
raise here concerning licensed uses of the band, the Commission will
include those comments in our consideration of licensing issues in the
full text of this Second R&O.
22. The Second R&O adopts the proposal to open the 47 GHz band for
commercial applications and technologies. As stated in the First NPRM,
the millimeter wave bands such as 47 GHz are a major resource that
essentially is undeveloped and unavailable today for commercial use.
The Commission finds that there is broad consensus that our proposal to
open frequency bands above 40 GHz to commercial development will
provide the public with access to new products and communications
services and provide new opportunities for business and economic
growth.
23. The Second R&O also adopts the proposal to license the 47 GHz
band for commercial service and finds that our proposal to allow any
use under the Allocation Table reflects the best approach to licensing
this band. As a ``frontier'' band located in the frequencies above 40
GHz that are yet to be opened for commercial development, the exact
nature of the services to emerge from the development of the 47 GHz
band cannot be predicted in the comments. The Commission concludes that
all identified uses of the 47 GHz band may be valuable and should be
permitted. The record also confirms that both the technology and
potential applications of millimeter wave spectrum will continue to
evolve rapidly. Since the Commission initiated this proceeding we have
seen important new technologies proposed for the millimeter wave
spectrum, and it is likely that other technologies also will be
developed. Under the circumstances, the Commission decides not to limit
the types of services that can be offered in the band.
24. Accordingly, the Commission will license the 47 GHz band based
on the services currently allowed under the Allocation Table. The
spectrum from 47.2 to 50.2 GHz is allocated domestically for Government
and non-Government Fixed, Fixed-Satellite, and Mobile uses, and
internationally for the same uses. The Commission finds that the range
of services covers all of the services identified as potential uses of
the 47 GHz band. The Commission confirms the view expressed in the
First NPRM that a broadly defined service allocation coupled with the
licensing, technical, and operating rules to be proposed in a
subsequent rulemaking will provide the best means of assuring that this
spectrum will be used to the greatest benefit of the public.
[[Page 43120]]
25. The Commission denies the requests of AT&T Corp, Hewlett-
Packard, Millimeter Wave Advisory Group, Alcatel Network Systems,
Harris, and TIA to expand the band to include spectrum up to 51 GHz in
order to provide for point-to-point services. That additional spectrum
in the adjacent bands will be addressed in response to the 36-51 GHz
Band Plan NPRM, in which the Commission proposes to designate the
portion 48.2-50.2 GHz for predominantly satellite use. The Commission
points out that point-to-point services may be provided in the 47 GHz
band under the allocations for that band.
26. The Commission disagrees with TIA's assertion that licensing on
such an ``open-market'' basis, which provides licensees with broad
flexibility to engage in any uses under the Allocation Table, evades
our statutory responsibilities under section 303(c) and, in light of
the Commission's proposal to auction the spectrum, is inconsistent with
Section 309(j) of the Communications Act. The Commission has broad
authority under the Communications Act to designate spectrum usage, as
well as the authority to perform any and all acts necessary in the
execution of our functions.4 In light of the range of
possible uses, the likelihood that new uses can be developed in the
future, and the lack of a record for specific service designations that
would better serve the public interest and the goals of the
Communications Act, our broad service designation comports with the
public interest and with our statutory authority. The Commission's
decision to designate this spectrum in this manner is unrelated to the
proposal in the First NPRM to award licenses through competitive
bidding.
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\4\ See Section 4(i) of the Communications Act, 47 U.S.C.
154(i).
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The designation is not entirely open-ended and will be subject to
technical rules we will adopt. Therefore, the Commission has not
delegated to private parties our responsibility to allocate spectrum
and adopt appropriate technical standards.
27. The Commission finds that, when we propose licensing and other
service rules for the 47 GHz band, we will follow the approach proposed
in the First NPRM to tailor the rules to reflect what we expect will
likely be the dominant use of this spectrum, while retaining the
flexibility allowed under the Allocation Table. Especially for
``frontier'' bands such as those above 40 GHz, this approach should set
allocation and licensing rules that promote rapid, efficient use of
this spectrum to meet all the communications needs advanced by
commenters, while allowing the market to adjust to changing needs and
technologies and providing scope for innovative uses. It will also
minimize regulatory barriers and requirements that might otherwise
hamper entrepreneurial efforts to develop effective commercial uses of
this spectrum.
28. However, the Commission does not find that the dominant use of
spectrum in the 47 GHz band is likely to be similar to LMDS in the 28
GHz band, as we proposed. As Avant-Garde Telecommunications, Inc.
requests, the Commission has reexamined our proposal, and we have taken
into account the anticipated uses and changed circumstances reflected
in the record for purposes of determining whether another licensing
methodology would better meet the needs posed by those anticipated
uses. The Commission finds that the dominant use of the 47 GHz band is
likely to be a fixed, point-to-multipoint service that employs
stratospheric platforms at fixed locations.
29. The Commission emphasizes, however, that we anticipate that
ongoing technological developments can be expected to generate other
types of delivery systems for fixed, point-to-multipoint services in
the band. Thus, while the Commission will seek to tailor our licensing
rules to accommodate the likely dominant use we have identified based
on the current record, we will not foreclose other uses permitted by
the Allocation Table, including new and innovative uses and
technologies.
30. The Commission denies Sky Station's request that we dedicate to
its exclusive use two portions of the 47 GHz band for its service and
modify the Allocation Table to that effect. Sky Station is concerned
about interference to its stratospheric signal when it is in the main
path of a conventional fixed co-channel signal of greater power. The
problems of interference do not necessarily require a change in the
service allocation, but rather are the subject of operational and
technical mitigation techniques that can be included in the
Commission's service rules to be used to reduce or eliminate these
types of interference problems. Accordingly, Sky Station should ensure
that its concerns are addressed when the Commission seeks to adopt
appropriate service rules in a subsequent proceeding to implement
services under the Allocation Table.
31. Similarly, the Commission defers the request of United States
Satellite Broadcasting Company (USSB) that we accept a service rule
requirement submitted by Sky Station to protect DBS-TV from
interference from Sky Station's service. USSB requested that the
Commission consider the impact of Sky Station's proposed platform-based
service on the operations of other telecommunications services and, in
particular, on the reception of DBS signals on the surface of the
earth. The Commission will consider the requested restriction when we
consider the need for other use restrictions to ensure the performance
of the authorized services under appropriate service rules.
32. The Commission also denies the request of TIA for a guardband
of 500 MHz to ensure adequate signal selectivity between the licensed
services in the 47 GHz band and the fixed point-to-point services that
TIA requests we designate for use in the adjacent band at 48.5-51.4
GHz. The adjacent band is under consideration in the 36-51 GHz Band
Plan NPRM and TIA's request can be addressed there. The Commission will
consider the need for protections of licensed users from interference
in developing service rules that govern the uses of 47 GHz.
33. The Second R&O adopts the Commission's proposal to issue area-
wide licenses for services in the 47 GHz band as a necessary component
of the flexible licensing framework we are adopting. The Commission has
found that the predominant use of the band is a fixed point-to-
multipoint service, which is a service provided on a point-radius basis
within an area and not on a fixed point-to-point basis. However, fixed
point-to-point service is not precluded and may be provided within the
area. Moreover, authorization of a geographic area is consistent with
the Allocation Table for the 47 GHz band, which also provides for
mobile services in addition to fixed services. The Commission does not
decide the size of the geographic area in this Second R&O, inasmuch as
that is a matter for the service rules.
34. The Second R&O also adopts the Commission's plan to divide the
spectrum into license blocks for exclusive assignment in each area.
However, we modify our proposal to divide the entire band into only one
contiguous pair and instead divide it into five separated pairs. Based
on the comments filed in response to the Commission's inquiry into
whether the licensed blocks should be contiguous or further subdivided
into paired blocks to facilitate two-way transmission, the Commission
finds that our original proposed division into one paired block would
not be appropriate and would inhibit the most efficient and effective
[[Page 43121]]
use of the 47 GHz band. The Commission believes that Sky Station's
proposal to divide the entire block into five pairs of 200 MHz channels
each pair, separated by 500 megahertz, effectively accommodates the
predominant use as well as the other likely uses of the band. The
Commission further believes that paired 100-MHz channels would provide
adequate bandwidth for the dominant use, while fostering competition
and diversity of uses among licensees.
35. Finally, in the First NPRM, the Commission proposed to impose a
spectrum cap and limit each licensee to a single spectrum block in each
band in the same area, so that the licensee would not be permitted to
own both licenses in the same band in any area. The Commission will
address any spectrum limitation in the proceeding to establish the
service rules to implement the framework we adopt here, which
proceeding we will initiate shortly.
36. It is the Commission intent to complete the licensing of the 47
GHz band as quickly as possible to achieve our goal as stated in the
First NPRM--to promote the commercial availability of millimeter wave
technologies in providing the potentially valuable uses of licensed
spectrum above 40 GHz.
Procedural Matters and Ordering Clauses
Final Regulatory Flexibility Analysis
37. As required by the Regulatory Flexibility Act, 5 U.S.C. 603
(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the First NPRM in this proceeding. The Commission
sought written public comments on the proposals in the First NPRM,
including on the IRFA. The Commission's Final Regulatory Flexibility
Analysis (FRFA) in this Second R&O conforms to the RFA, as amended by
the Contract with America Advancement Act of 1996 (CWAAA), Pub. L. 104-
121, 110 Stat. 846 (1996).
I. Need for and Objectives of Action
38. We proposed in the First NPRM to open spectrum in the 47.4-48.2
GHz band for commercial, licensed use on an area-wide basis in a paired
license block in order to promote the use of the millimeter wave region
of the spectrum above 40 GHz. We adopt our proposals, with modification
to the licensing blocks, for the entire 47.2-48.2 GHz band (47 GHz
band) in order to achieve our goal to expedite the commercial
development of this spectrum.
39. Advances in millimeter wave technology will enable new
commercial uses to be achieved and will help meet consumer demand for a
wide range of potential commercial services, which would stimulate
research and the growth of technology. We adopt a licensing framework
that allows the full range of services in the Table of Frequency
Allocations to provide licensees the flexibility to provide the most
efficient and effective services. We identify the potential dominant
use of the 47 GHz band to ensure that the service rules we will propose
in a future proceeding are adequate and appropriate. Licensing on the
basis of a geographic area will ensure that licensees have the
flexibility to provide new services in the most rapid and efficient
manner. Dividing the spectrum into five separated pairs of spectrum
blocks for licensing ensures that licensees in the 47 GHz bands are
able to offer the predominant service, as well as other potential
services, in the most efficient manner.
II. Summary of Significant Issues Raised by the Public Comments in
Response to Initial Regulatory Flexibility Statement
40. Avant-Garde and M/A-Com, Inc. (MACOM) are small entities that
generally support opening the bands above 40 GHz for commercial use to
take advantage of the developments in millimeter wave technology. They
argue that the technology is available for commercial uses and that we
should designate any of the bands for commercial use in order to
stimulate market demand for their products. Sky Station argues that its
proposal to provide a fixed, terrestrial, global service in the 47 GHz
band using stratospheric-based platforms will meet many commercial uses
and promote the growth of a new stratospheric-based technology, rather
than traditional tower-based technology, for delivery of service.
41. Metricom, Inc. (Metricom) requests that we adopt a flexible
regulatory approach for licensed operations that includes very broad
and general rules to encourage the development of equipment and
services. Avant-Garde argues that the spectrum to be made available for
licensing should not be artificially constrained in the manner in which
it is licensed or used. It requests that we reexamine our proposal to
use the LMDS service rules to govern the predominant uses of the bands
above 40 GHz in light of the anticipated uses and changed circumstances
reflected in the filings. It questions whether the licensing scheme we
proposed remains appropriate or whether some other methodology would
better meet the needs of commercial service providers.
42. Sky Station argues that its stratospheric-based platforms would
deliver point-to-multipoint services that can be licensed under the
terrestrial, flexible rules we proposed to adopt for 47 GHz. It argues
that its technology is uniquely suited to take advantage of the
characteristics of the 47 GHz band and will promote the maximum use of
that spectrum. Sky Station argues that the service cannot share co-
channel frequencies with other services and requests we dedicate the
segments of the band at 47.2-47.5 Ghz and 47.9-48.2 GHz to its
exclusive use and modify the Table of Frequency Allocations
accordingly.
43. Sky Station supports the use of area-wide licensing and
requests that we adopt large service areas that are super-regional in
size. Sky Station opposes our proposal to adopt a single pair of
contiguous license blocks, and argues that the spectrum should be
divided into five pairs of 100 MHz each that are separated by 500 MHz
to ensure flexibility. P-Com, Inc. argues that we should be careful to
divide the spectrum to reflect the proposed use, and that paired blocks
with maximum frequency separation are required for fixed service, two-
way links such as point-to-multipoint operations.
III. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
44. The determinations we adopt to open 47 GHZ for commercial use
under a flexible licensing framework authorizing any service under the
Table of Frequency Allocations on an area-wide basis would apply to all
entities that apply for a license, including small entities.
45. The definition that SBA has developed that approximates most
closely the services that may be provided by the licensees would be the
definition applicable to radiotelephone companies. The definition of
radiotelephone companies provides that a small entity is a
radiotelephone company employing 1,500 or fewer persons.5
The size data provided by SBA do not enable us to make an accurate
estimate of the number of telecommunications providers which are small
entities because it combines all radiotelephone companies with 500 or
more employees.6 We therefore use the 1992 Census of
Transportation,
[[Page 43122]]
Communications, and Utilities, conducted by the Bureau of the Census,
which is the most recent information available. This document shows
that only 12 radiotelephone firms out of a total of 1,178 such firms
which operated during 1992 had 1,000 or more employees.7
Therefore, the majority of entities to provide telecommunications
services in the 47 GHz band may be small businesses under SBA's
definition.
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\5\ 13 CFR 121.201, Standard Industrial Classification (SIC)
4812.
\6\ U.S. Small Business Administration 1992 Economic Census
Employment Report, Bureau of the Census, U.S. Department of
Commerce, Table 3, SIC 4812 (radiotelephone communications industry
data adopted by the SBA Office of Advocacy).
\7\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992
Census of Transportation, Communications, and Utilities, UC92-S-1,
Subject Series, Establishment and Firm Size, Table 5, Employment
Size of Firms: 1992, SIC 4812 (issued May 1995).
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46. The Commission has not developed a definition of small entities
applicable to licensees in the 47 GHz band, because the band is being
opened for the first time for commercial, licensed use in this Second
R&O and has not been subject to licensing. The RFA amendments were not
in effect when the First NPRM was released, and no data has been
received establishing the number of small businesses to be associated
with services in the band. Although we proposed to auction the spectrum
for assignment, we did not request information regarding the potential
number of small businesses interested in obtaining licenses. We do not
adopt in the Second R&O our proposal to auction the spectrum, and
instead will seek additional comment in a future Notice of Proposed
Rulemaking in which we will also propose the service rules to implement
services in the 47 GHz band. Thus, we are unable to estimate the
potential number of entities that may apply for a license that may be
small businesses.
IV. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
47. We do not adopt any rules that entail reporting, recordkeeping,
and third party consultation. Until we adopt service rules to govern
the licensing, operating, and technical aspects of our decision, there
are no requirements to impose on any entities.
V. Significant Alternatives to Proposed Rules Which Minimize
Significant Economic Impact on Small Entities and Accomplish Stated
Objectives
48. We agree with many small entities that opening up the 47 GHz
band for commercial uses is timely and feasible, and would be in the
public interest. Small entities, such as Avant-Garde and MACOM, see
many future market opportunities and have developed equipment, or
expect to readily modify equipment, to meet consumer demand for the
kinds of services to be provided. Sky Station has developed an
innovative technology that uses platforms fixed in the stratosphere to
deliver services in an efficient and effective manner. They and other
small or new entities will benefit from the demand for commercial
applications of their technologies.
49. We agree with commenters, such as Avant-Garde and Metricom, to
adopt the flexible licensing framework we proposed that authorizes any
service allowed under the Table of Frequency Allocations. We find that
a broadly defined service allocation assures that the 47 GHz band will
be used to the greatest benefit of the public by giving licensees,
including small entities, the flexibility to meet demands. We also
adopt our proposal to prescribe service rules for the licensing of the
band based on what the dominant use is likely to be, as demonstrated by
the comments. We agree with Avant-Garde to reexamine the likely uses
and find that, while the predominant uses are the fixed point-to-
multipoint uses we predicted, they would not be based on LMDS-type
technology but rather on millimeter wave technology based on
stratospheric platforms for delivery of service as proposed for the 47
GHz band by Sky Station. We deny Sky Station's request to modify the
Table of Frequency Allocations to protect its service, and find that
its need for protection from interference is properly addressed in the
future proceeding in which we will establish the technical and
operational service rules to govern the authorized services in the
band.
50. We decide to adopt our proposal to license on the basis of
geographic areas in order to enable the broadest range of uses for the
band and ensure efficient and effective operations. Area-based
licensing provides greater operational flexibility and ease of
administration that is particularly beneficial to small entities. We
defer questions about the appropriate size of the area as raised by Sky
Station to our consideration of service rules in a future proceeding.
51. Because of the change in the potential predominant use for the
band, we do not adopt our proposed channelization plan and instead
revise the subdivision of the spectrum to reflect the proposed uses, as
P-Com requests. We agree with Sky Station to divide the bands into five
pairs of 100 megahertz channels, with each pair separated by 500
megahertz. This provides adequate bandwidth to accommodate the
predominant uses.
VI. Report to Congress
52. We will submit a copy of this Final Regulatory Flexibility
Analysis, along with the Order, in a report to Congress pursuant to 5
U.S.C. 801(a)(1)(A).
53. It is ordered that the actions of the Commission herein are
taken pursuant to sections 4(i), 257, 303(r), and 309(j) of the
Communications Act of 1934, 47 U.S.C. 154(i), 257, 303(r), 309(j).
54. It is further ordered that these actions shall take effect
October 14, 1997.
55. It is further ordered that the Request and Petition and
Application filed by Sky Station, the Further Comments filed by Sky
Station, and the comments and reply comments filed in response thereto,
are accepted in this record as late-filed comments.
56. It is further ordered that the spectrum 47.2-48.2 GHz (47 GHz
band) is designated for licensed, commercial use on the basis of area-
wide licenses in accordance with the terms of this Second R&O.
57. It is further ordered that a division of the spectrum for
license blocks is adopted for the 47 GHz band that divides the band
into five spectrum blocks of 200 megahertz each for licensing, with
each block consisting of a pair of 100 megahertz channels separated by
500 megahertz.
List of Subjects
47 CFR Part 2
Communications equipment.
47 CFR Part 15
Communications equipment, Radio.
47 CFR Part 97
Communications equipment, Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-21180 Filed 8-11-97; 8:45 am]
BILLING CODE 6712-01-P
