01-30304. Redesignation of the 18 GHz Frequency Band, Blanket Licensing of Satellite Earth Stations in the Ka-band, and the Allocation of Additional Spectrum for Broadcast Satellite-Service Use

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document we grant in part and deny in part the petitions for reconsideration of the 18 GHz Order filed by Hughes Electronics Corporation (Hughes), the Fixed Wireless Communications Coalition (FWCC) and Winstar Communications, Inc. (Winstar). We defer for action in a future Commission order certain issues raised by Hughes relating to the band plan adopted in the 18 GHz Order and blanket licensing. We also address a number of issues raised by Teledesic Corporation (Teledesic) in its letter to the Commission and its request for judicial review of the rules adopted by the Commission in the 18 GHz Order.

DATES:

Effective January 7, 2002.

FOR FURTHER INFORMATION CONTACT:

Richard Engelman, Planning & Negotiations Division, International Bureau, [phone] or via electronic mail: [e-mail]. In addition to filing comments with the Office of the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to [e-mail].

SUPPLEMENTARY INFORMATION:

The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257) 445 12th Street, SW., Washington, DC and may also be purchased from the Commission's copy contractor, International Transcription Services (ITS), Inc., [phone], 1231 20th Street, NW., Washington, DC 20036.

Summary of the Order on Reconsideration

1. In this First Order on Reconsideration we addressed issues raised by Hughes, FWCC, Winstar, and Teledesic in petitions to the Commission for reconsideration, and a petition to the United States Court of Appeals for the District of Columbia for judicial review of the 18 GHz Order. The issues generally fall into one of four groups: 18 GHz band plan, licensing, Legacy List, and relocation.

2. With regard to the 18 GHz band plan, this Order gives the NGSO/FSS operators increased flexibility in relocating interfering terrestrial fixed stations by terminating after ten years the co-primary status of existing terrestrial fixed stations in the 19.26-19.3 GHz band, and low-power terrestrial fixed service stations in the 18.8-19.3 GHz band. This Order finds that it is appropriate to treat such operations in the same manner as other operations in the 18 GHz band, and that such treatment necessarily includes the right to compensation for relocation of both parts of a channel pair. Thus, this Order provides that, where it becomes necessary during the ten years to relocate an existing terrestrial fixed station in the 19.26-19.3 GHz band, or low-power terrestrial fixed service station in the 18.8-19.3 GHz band, the FS operator will be able to receive comparable facilities at no cost to the fixed operator.

3. We are persuaded by Hughes and several commenters to reverse the Legacy List policy that we adopted in the 18 GHz Order. As a result, this Order removes § 25.145(i) of our rules and the requirement for a GSO/FSS space station licensee to use of the Legacy List coordination process to alleviate interference to a terrestrial fixed station.

4. This Order also generally affirms our basic findings in the 18 GHz Order with regard to the blanket licensing rules. It changes, however the power flux-density (pfd) value for the 18.3-18.8 GHz frequency band to the values in § 25.208(c) to be consistent with the pfd limit in the Radio Regulations of the International Telecommunication Union and removes § 25.208(d). We also determine that the pfd level in § 25.138(a)(6) of −118 dBW/m2/MHz should apply to all Geostationary Satellite Orbit/Fixed Satellite Service (GSO/FSS) downlink bands in which the Commission permits blanket licensing. We amend § 101.97 to clarify that an incumbent Fixed Service (FS) licensee retains primary status notwithstanding a change in ownership or control. Further, we clarify that an incumbent licensee is entitled to a 12-month trial period after relocation to test the new facilities.

5. Finally, this Order generally denies the requests to reconsider the relocation issues, and reaffirms the Commission decision to adopt the relocation rules codified in §§ 101.89 and 101.91. This is in part because we find that it is appropriate to apply in the 18 GHz band the established policy that the Commission has employed in other similar circumstances. In addition, we find that it is Commission policy to enable an incumbent, that is required to relocate, to construct a comparable replacement system without the additional burden of undue costs. Moreover, this Order finds that the alternative proposals offered by Teledesic for measuring relocation costs are plainly inconsistent with this Commission goal. We further find that, contrary to the allegations made by Teledesic, new entrants benefit from the Commission policy of seeking to ensure that incumbents have every possible reasonable incentive to relocate promptly and voluntarily.

Supplemental Final Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act (RFA), a Final Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities was incorporated in the 18 GHz Order. The Commission sought written public comments on the proposals in the 18 GHz NPRM including comment on the IRFA. This Supplemental Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Rules

In this First Order on Reconsideration, the Commission changes the pfd value for the 18.3-18.8 GHz frequency band to the values in § 25.208(c) to be consistent with the pfd limit in the Radio Regulations of the International Telecommunication Union and remove § 25.208(d). This First Order on Reconsideration also determines that the pfd level in § 25.138(a)(6) of −118 dBW/m2/MHz should apply to all Geostationary Satellite Orbit/Fixed Satellite Service (GSO/FSS) downlink bands in which the Commission permits blanket licensing. It amends § 101.97 to clarify that an incumbent Fixed Service (FS) licensee retains primary status notwithstanding a change in ownership or control. Further, this First Order on Reconsideration clarifies that an incumbent licensee is entitled to a twelve-month trial period after relocation to test the new facilities. Upon reconsideration, this First Order on Reconsideration also concludes that existing terrestrial services operating in the 19.26-19.3 GHz band will not be allowed to recover relocation reimbursement on a permanent basis, and will be subject to the ten year sunset period applicable to other FS operations in the 18 GHz band. This First Order on Reconsideration also takes the following steps to better reconcile the competing interests of the new entrants and the low-power terrestrial fixed service operators in satellite bands: (1) Cuts off any further low-power fixed service applications under § 101.147(r)(10) as of April 1, 2002 (outdoor applications were already cut off in the 18 GHz Order); and (2) permits low-power services authorized pursuant § 101.147(r)(10) to continue to operate on a co-primary basis for a period of ten years, subject to the right of satellite providers to require low-power operators to relocate. Finally, this First Order on Reconsideration removes § 25.145(i) of our rules and reverses the Legacy List policy that the Commission adopted in the 18 GHz Order; thus, the Commission will no longer require the use of the Legacy List coordination process by an FSS space station licensee to alleviate interference to a terrestrial fixed station.

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

No comments were submitted in direct response to the IRFA.

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

The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the adopted rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “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). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 percent) are small entities. Below, we further describe and estimate the number of small entity licensees that may be affected by the adopted rules.

1. International Services

The Commission has not developed a definition of small entities applicable to licensees in the international services. Therefore, the applicable definition of small entity is generally the definition under the SBA rules applicable to Communications Services, Not Elsewhere Classified (NEC). This definition provides that a small entity is one with $11.0 million or less in annual receipts. According to the Census Bureau, there were a total of 848 communications service providers, NEC, in operation in 1992, and a total of 775 had annual receipts of less than $9.999 million. The Census report does not provide more precise data.

2. Fixed Satellite Transmit/Receive Earth Stations

Currently there are no operational fixed satellite transmit/receive earth stations authorized for use in the 17.7-20.2 GHz and 27.5-30 GHz band. However, with 12 GSO/FSS licensees and 1 NGSO/FSS licensee, and our decision to adopt blanket licensing, we expect applications for FSS earth station licenses to be filed in the near future. We do not request or collect annual revenue information, and thus are unable to estimate the number of earth stations that would constitute a small business under the SBA definition.

3. Mobile Satellite Earth Station Feeder Links

We have granted one license for MSS earth station feeder links. We do not request or collect annual revenue information, and thus are unable to estimate of the number of mobile satellite earth stations that would constitute a small business under the SBA definition.

4. Space Stations (Geostationary)

Commission records reveal that there are 12 space station licensees. We do not request nor collect annual revenue information, and thus are unable to estimate of the number of geostationary space stations that would constitute a small business under the SBA definition, or apply any rules providing special consideration for Space Station (Geostationary) licensees that are small businesses.

5. Space Stations (Non-Geostationary)

There is one Non-Geostationary Space Station licensee and that licensee is operational. We do not request or collect annual revenue information, and thus are unable to estimate of the number of non-geostationary space stations that would constitute a small business under the SBA definition.

6. Direct Broadcast Satellites

Because DBS provides subscription services, DBS falls within the SBA definition of Cable and Other Pay Television Services (SIC 4841). This definition provides that a small entity is expressed as one with $11.0 million or less in annual receipts. As of December 1996, there were eight DBS licensees. However, the Commission does not collect annual revenue data for DBS and, therefore, is unable to ascertain the number of small DBS licensees that could be impacted by these proposed rules. Although DBS service requires a great investment of capital for operation, we acknowledge that there are several new entrants in this field that may not yet have generated more than $11 million in annual receipts, and therefore may be categorized as a small business, if independently owned and operated.

7. Auxiliary, Special Broadcast and Other Program Distribution Services

This service involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit back to the station). At the frequencies under consideration in this proceeding there are no transmissions of this type directly to the public. The Commission has not developed a definition of small entities applicable to broadcast auxiliary licensees. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to radio broadcasting stations (SIC 4832) and television broadcasting stations (SIC 4833). These definitions provide, respectively, that a small entity is one with either $5.0 million or less in annual receipts or $10.5 million in annual receipts. 13 CFR 121.201, SIC CODES 4832 and 4833. The numbers of these stations are very small. The FCC does not collect financial information on any broadcast facility and the Department of Commerce does not collect financial information on these auxiliary broadcast facilities. We believe, however, that by themselves most, if not all, of these auxiliary facilities could be classified as small businesses. We also recognize that most of these types of services are owned by a parent station which, in some cases, would be covered by the revenue definition of small business entity discussed above. These stations would likely have annual revenues that exceed the SBA maximum to be designated as a small business (as noted, either $5 million for a radio station or $10.5 million for a TV station). Furthermore, they do not meet the Small Business Act's definition of a “small business concern” because they are not independently owned and operated.

8. Microwave Services

Microwave services includes common carrier, private operational fixed, and broadcast auxiliary radio services. At present, there are 22,015 common carrier licensees, approximately 61,670 private operational fixed licensees and broadcast auxiliary radio licensees in the microwave services. Inasmuch as the Commission has not yet defined a small business with respect to microwave services, we will utilize the SBA's definition applicable to radiotelephone companies—i.e., an entity with no more than 1,500 persons. 13 CFR 121.201, SIC CODE 4812. We estimate, for this purpose, that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition for radiotelephone companies.

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

The Commission has adopted rules in this First Order on Reconsideration that involve no reporting requirements.

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

The changes made by this First Order on Reconsideration do not affect small entities disproportionately and it is likely no additional outside professional skills will be necessary to comply with the rules and requirements here listed. The 18 GHz NPRM solicited comment on several alternatives for spectrum sharing blanket licensing, and band segmentation. This First Order on Reconsideration considered comments offering alternatives, and has acted in response to stated concerns and suggestions, particularly those representing significant agreement or consensus by commenters. The decisions of this First Order on Reconsideration should positively impact both large and small businesses by providing a faster, more efficient, and less economically burdensome coordination and licensing procedure.

F. Report to Congress

The Commission will send a copy of this First Order on Reconsideration including this Supplemental FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1966, see 5 U.S.C. 801 (a)(1)(A). In addition, the Commission will send a copy of this First Order on Reconsideration, including this Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this First Order on Reconsideration and Supplemental FRFA (or summaries thereof) will also be published in the Federal Register. See 5 U.S.C. 604(b).

Ordering Clauses

Pursuant to sections 1, 4(i), 4(j), 301, 302, 303(c), 303(e), 303(f), 303(r) and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154 (i), 154(j), 301, 302, 303(c), 303(e), 303(f), 303 (r), and 403, this First Order on Reconsideration is adopted and that parts 25 and 101 of the Commission's rules ARE AMENDED, as specified in the rules, Effective January 7, 2002.

The Regulatory Flexibility Analysis as required by section 604 of the Regulatory Flexibility Act and as set forth is adopted.

The Commission's Consumer Information Bureau SHALL SEND a copy of this First Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.

This proceeding is terminated pursuant to sections 4(i) and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and 154 (j).

List of Subjects

47 CFR Part 25

• Communications common carriers, communications equipment
• Radio
• Satellites
• Telecommunications

47 CFR Part 101

• Communications equipment
• Radio

Federal Communications Commission.

William F. Caton,

Deputy Secretary.

Rule Changes

For the reasons set forth in the preamble, parts 25, and 101 of title 47 of the Code of Federal Regulations are amended as follows:

PART 25—SATELLITE COMMUNICATIONS

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

Authority: 47 U.S.C. 701-744. Interprets or applies § 303, 47 U.S.C. 303. 47 U.S.C. §§ 154, 301, 302, 303, 307, 309 and 332, unless otherwise noted.

2. Section 25.138 is amended by revising paragraph (a)(6) to read as follows:

§ 25.138

Blanket licensing provisions of GSO FSS Earth Stations in the 18.58-18.8 GHz (space-to-Earth), 19.7-20.2 GHz (space-to-Earth), 28.35-28.6 GHz (Earth-to-space) and 29.5-30.0 GHz (Earth-to-space) bands.

(a) * * *

(6) Power flux-density (PFD) at the Earth's surface produced by emissions from a space station for all conditions, including clear sky, and for all methods of modulation shall not exceed a level of −118 dBW/m²/MHz, in addition to the limits specified in § 25.208 (d).

* * * * *

3. Section 25.145 is amended by revising paragraph (h) and removing paragraph (i) to read as follows:

§ 25.145

Licensing Conditions for the Fixed-Satellite Service in the 20/30 GHz Bands.

* * * * *

(h) Policy governing the relocation of terrestrial services from the 18.58 to 19.3 GHz band. Frequencies in the 18.58-19.3 GHz band listed in parts 21, 74, 78, and 101 of this chapter have been reallocated for primary use by the Fixed-Satellite Service, subject to various provisions for the existing terrestrial licenses. Fixed-Satellite Service operations are not entitled to protection from the co-primary operations until after the period during which terrestrial stations remain co-primary has expired. (see §§ 21.901(e), 74.502(c), 74.602(g), 78.18(a)(4), and 101.147(r) of this chapter).

4. In § 25.202, footnote 7 of the table following paragraph (a)(1) is revised to read as follows:

§ 25.202

Frequencies, frequency tolerance and emission limitations.

* * * * *

⁷ The band 18.8-19.3 GHz is shared co-equally with terrestrial radiocommunications services until June 8, 2010.

* * * * *

5. Section 25.208 is amended by revising paragraph (c), removing paragraph (d), and redesignating paragraph (e) as paragraph (d) and paragraph (f) as paragraph (e) to read as follows:

§ 25.208

Power flux-density limits.

* * * * *

(c) In the 18.3-18.8 GHz, 19.3-19.7 GHz, 22.55-23.00 GHz, 23.00-23.55 GHz, and 24.45-24.75 GHz frequency bands, the power flux-density at the Earth's surface produced by emissions from a space station for all conditions and for all methods of modulation shall not exceed the following values:

(1) −115 dB (W/m²) in any 1 MHz band for angles of arrival between 0 and 5 degrees above the horizontal plane.

(2) −115+0.5 (d-5) dB (W/m²) in any 1 MHz band for angles of arrival d (in degrees) between 5 and 25 degrees above the horizontal plane.

(3) −105 dB (W/m²) in any 1 MHz band for angles of arrival between 25 and 90 degrees above the horizontal plane.

* * * * *

PART 101—FIXED MICROWAVE SERVICES

6. The authority citation for part 101 continues to read as follows:

Authority: 47 U.S.C. 154, and 303.

7. Section 101.85 is amended by revising paragraph (b) to read as follows:

§ 101.85

Transition of the 18.58-19.3 GHz band from the terrestrial fixed services to the fixed-satellite service (FSS).

* * * * *

(b) FS operations in the 18.58-19.30 GHz band that remain co-primary under the provisions of §§ 21.901(e), 74.502(c), 74.602(d), 78.18(a)(4) of this chapter, and § 101.147(r) will continue to be co-primary with the FSS users of this spectrum until June 8, 2010 or until the relocation of the fixed service operations, whichever occurs sooner, except for operations in the band 19.26-19.3 GHz and low power systems operating pursuant to § 101.47(r) (10), which shall operate on a co-primary basis until October 31, 2011. If no agreement is reached during the negotiations, an FSS licensee may initiate relocation procedures. Under the relocation procedures, the incumbent is required to relocate, provided that the FSS licensee meets the conditions of § 101.91.

* * * * *

8. Section 101.91 is amended by adding a sentence to the end of paragraph (c) to read as follows:

§ 101.91

Involuntary relocation procedures.

* * * * *

(c) * * * The FS licensee may take up to 12 months to make such adjustments and perform such testing.

* * * * *

9. Section 101.95 is amended by revising the section heading to read as follows:

§ 101.95

Sunset provisions for licensees in the 18.58-19.30 GHz band.

* * * * *

10. Section 101.97 is amended by adding a new paragraph (a)(9) to read as follows:

§ 101.97

Future licensing in the 18.58-19.30 GHz band.

(a) * * *

(9) Changes in ownership or control.

* * * * *

11. Section 101.147 is amended by revising paragraph (r) introductory text and by adding a sentence at the end of paragraph (r)(10)(iv) to read as follows:

§ 101.147

Frequency assignments.

* * * * *

(r) 17,700 to 19,700 and 24,250 to 25,250 MHz: Stations operating on the following frequencies in the band 18.58-18.8 GHz that were licensed or had applications pending before the Commission as of June 8, 2010 may continue those operations on a shared co-primary basis with other services under parts 21, 25, and 74 of the Commission's rules until June 8, 2010, except for operations in the band 19.26-19.3 GHz and low power systems operating pursuant to paragraph (r)(10) of this section, which shall operate on a co-primary basis until October 31, 2011. Those stations operating on the following frequencies in the band 18.8-19.3 GHz that were licensed or had applications pending before the Commission as of September 18, 1998 may continue those operations on a shared co-primary basis with other services under parts 21, 25, and 74 of the Commission's rules until June 8, 2010. After this date, operations in the 18.58-19.30 GHz band are not entitled to protection from fixed-satellite service operations and must not cause unacceptable interference to fixed-satellite service station operations. No new part 101 licenses will be granted in the 18.58-19.3 GHz band after June 8, 2010, except for certain low power operations authorized under paragraph (r)(10) of this section, which may continue to be licensed until April 1, 2002. Licensees may use either a two-way link or one frequency of a frequency pair for a one-way link and must coordinate proposed operations pursuant to the procedures required in § 101.103. (Note, however, that stations authorized as of September 9, 1983, to use frequencies in the band 17.7-19.7 GHz may, upon proper application, continue to be authorized for such operations, consistent with the conditions related to the 18.58-19.3 GHz band.)

* * * * *

(10) * * *

(iv) * * * No new licenses will be authorized for applications received after April 1, 2002.

* * * * *