Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | IB Docket No. 01-185         |
|                                  | *) |                              |
| Flexibility for Delivery of      | ** |                              |
| Communications by Mobile         |    |                              |
| Satellite Service Providers in   | *  |                              |
| the 2 GHz Band, the L-Band, and  | *) |                              |
| the 1.6/2.4 GHz Bands            | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: July 3, 2003 Released: July 3, 2003**

By the Commission:

# Introduction

1.  In this Order on Reconsideration (Order), we reconsider in part,
    *sua sponte*, our January 29, 2003, decision in this proceeding[^1]
    in which we allowed flexibility in the delivery of communications by
    Mobile Satellite Service (MSS) providers. Specifically, we permitted
    authorized MSS systems to integrate ancillary terrestrial components
    (ATCs) into their MSS networks in three sets of radio frequency
    bands, the 2 GHz MSS band,[^2] the L-band,[^3] and the Big LEO
    band,[^4] subject to the authorized MSS system meeting certain
    substantial satellite service and integrated service criteria
    ("gating requirements" or "gating criteria").[^5] In this Order, we
    clarify certain issues relating to the time for filing applications
    to provide ATC, the time in which the Commission may grant such
    applications, the time in which MSS ATC licensees may construct,
    test, and commence commercial ATC operations, and our process for
    placing applications on public notice for comment.[^6]

# background

2.  Because of a concern that establishing the satisfaction of certain
    gating criteria could be complex and time consuming, we decided in
    the *MSS Flexibility* *Decision* to permit planned, authorized MSS
    systems to seek ATC authorization prior to launch and operation, but
    prohibited the provision of commercial ATC service prior to meeting
    the gating criteria and complying with MSS implementation
    milestones.[^7] Following release of the *MSS Flexibility*
    *Decision*, AT&T Wireless Services, Inc., Cingular Wireless LLC, and
    Verizon Wireless (Wireless Carriers) made *ex parte* presentations
    stating that this portion of the *Decision* requires clarification.
    For example, the Wireless Carriers are concerned that paragraphs in
    the *Decision* in which we stated that we would grant MSS operators
    authority to provide ATC "conditioned" upon meeting certain gating
    criteria could be interpreted to mean that we would permit
    *commercial operation* of ATC *prior to* the MSS operator meeting
    the gating requirements.[^8] Based on their *ex parte*
    presentations, it appears, the Wireless Carriers are also concerned
    that the Commission might *authorize* an MSS operator to provide
    ATC, prior to the MSS operator *meeting* the gating requirements,
    although not permitting commercial operations until the MSS operator
    has actually met the gating requirements. To resolve these concerns,
    the Wireless Carriers have asked that the Commission clarify that
    "the Commission will *consider* and *grant* ATC authority only after
    an MSS licensee has met the gating requirements."[^9] In particular,
    the Wireless Carriers suggest that we replace references in the
    *Decision* to ATC authorizations being "conditioned upon" the MSS
    operator's satisfaction of the requirements and rules in the
    *Decision* with the phrase "granted upon."[^10]

3.  In the *MSS Flexibility* *Decision*, we encouraged MSS operators to
    submit integrated service showings as early as possible to allow
    full evaluation without compromising the timing of ATC.[^11] To
    reconcile this suggestion with the Wireless Carriers' desire that we
    not consider or grant ATC authority until an MSS operator has met
    the gating requirements, the Wireless Carriers suggest a procedure
    for establishing satisfaction of the integrated service offering
    gating criteria. In this procedure, MSS operators would, prior to
    satisfying the preconditions for seeking ATC authority, petition the
    Commission for a declaratory ruling that a proposed integrated
    service offering complies with Commission requirements.[^12] The
    Wireless Carriers further suggest that favorable Commission action
    on such a petition could be used by the MSS operator to demonstrate
    satisfaction of the integrated service requirement when the operator
    subsequently applies for ATC authority.[^13]

4.  To avoid compromising the timing for deployment of ATC, in our *MSS
    Flexibility* *Decision*, we permitted construction of ATC facilities
    after physical construction has begun on the MSS system's
    satellites, after an ATC authorization has been issued and at the
    MSS operator's own risk and subject to the conditions specified in
    the *Decision*, but prior to commencement of the provision of MSS
    services.[^14] We also permitted MSS satellite operators to test ATC
    prior to commercial operation of their MSS systems. Specifically,
    during the process of constructing ATC facilities, the MSS operator,
    having obtained ATC authorization, may without further authority
    from the Commission conduct equipment tests for the purpose of
    making such adjustments and measurements as may be necessary to
    assure compliance with the terms of its ATC authorization.[^15] We
    prohibited, however, commercial operation of ATCs until the MSS
    system is commercially operating and noted that such commercial
    operation of ATCs will result in enforcement action, including
    license revocation and/or the imposition of a monetary
    forfeiture.[^16] The Wireless Carriers suggest that the Commission
    reconsider this portion of the *MSS Flexibility* *Decision*.[^17]
    Because the Wireless Carriers would have us not consider or grant
    ATC authorizations prior to an MSS operator's demonstrating that it
    has, in fact, met the gating criteria, the Wireless Carriers suggest
    that we remove our restriction that MSS operators have a conditioned
    ATC authorization before engaging in preoperational construction and
    testing, and permit construction and testing after physical
    construction on the MSS system satellites has begun.[^18]

5.  Finally, in our *MSS Flexibility Decision*, we elected to treat
    applications to add an ancillary terrestrial component to an
    eligible satellite network as a request for a minor modification of
    the applicant's space station license if the particulars of
    operations provided by the applicant comply with the criteria
    specified in section 25.149.[^19] We also stated that as with any
    minor modification if upon our review we deem it in the public
    interest to seek comment on an MSS ATC application, we may at our
    discretion provide public notice and opportunity for comment. On
    June 20, 2003, the Wireless Carriers filed an additional *ex parte*
    letter in this proceeding among other things noting that the *MSS
    Flexibility Decision* provided the Commission with discretion as to
    whether to place an MSS ATC application on notice for public comment
    and requesting that we "exercise our *sua sponte* authority. . . to
    remove the cloud of uncertainty and clarify that all ATC
    applications will be subject to public comment."[^20]

6.  ICO Global Communications (Holdings), Ltd. (ICO) opposes the
    Wireless Carriers' suggested approach.[^21] According to ICO, the
    *MSS Flexibility* *Decision* expressly contemplates that licensing,
    construction and testing activities for ATC can occur prior to
    commencement of mobile satellite service operations.[^22] ICO urges
    the Commission not to reconsider or clarify *sua sponte* its
    *Decision* in a way that would prohibit an authorized MSS provider
    from obtaining ATC authorization prior to commencement of MSS.[^23]
    According to ICO, allowing MSS operators to obtain such
    authorization before the MSS system is commercially operational and
    gating criteria are met will help ensure that the Commission has
    adequate time to review the application and solicit public comment,
    if appropriate, and helps ensure that the MSS operators will not be
    delayed in offering ATC services once their systems are commercially
    operational.[^24] ICO further urges the Commission to retain its
    articulated policy decision to allow an authorized MSS provider a
    degree of flexibility in deciding when to seek ATC authority.[^25]
    ICO states that it acknowledges that ATC services cannot be offered
    commercially until the authorized MSS system is commercially
    operating and the gating criteria are met.[^26]

# discussion

7.  We find, upon reconsideration, that there is benefit to adopting, in
    part, the authorization approach suggested by the Wireless Carriers,
    albeit to address concerns somewhat different from those raised by
    the Wireless Carriers. We will consider ATC applications from
    authorized MSS providers prior to the MSS operator meeting each of
    the gating criteria.[^27] Nevertheless, we will grant ATC authority
    to an operating MSS system in actual compliance with our MSS system
    geographic and temporal coverage, replacement satellite, and
    commercial service gating criteria if the MSS ATC applicant makes a
    satisfactory prospective substantial showing that its ATC operations
    will meet our integrated service and other gating criteria. Because
    we will not grant ATC authorizations prior to an MSS operator
    satisfying the gating requirements, we expect that authorized MSS
    providers will not file ATC applications until they either have met,
    or are very close to meeting, each of the gating requirements. In
    the event an MSS operator anticipates that its proposal will present
    complex or controversial issues that may warrant a longer
    deliberative process, an authorized MSS operator may seek a ruling
    that certain aspects of its operations satisfy particular gating
    criteria. For example, at any time, an MSS operator may seek an
    initial finding from the Commission that its proposed service
    offerings are "integrated" as required by the Commission's Order.
    Nevertheless, we will not grant ATC authority until the applicant
    has demonstrated that it has actually satisfied each of the gating
    criteria. Because we will not grant ATC authorizations prior to an
    MSS operator's demonstrating that it has, in fact, met the gating
    criteria, we remove our requirement that MSS operators have a
    conditioned ATC authorization before engaging in preoperational
    construction and testing. Thus, we will permit construction and
    testing of ATC facilities, at the MSS operator's risk, in compliance
    with our technical rules after physical construction on the MSS
    system satellites has begun. Finally, we find that the public
    interest will be best served by ensuring that applications for ATC
    authority are vetted publicly to ensure the applicant has met our
    gating criteria. Accordingly, we require that the Commission place
    on notice for public comment any initial application for authority
    to add an ATC component to an eligible satellite network.

## Time for Filing ATC Applications 

8.  We will consider ATC applications from authorized MSS operators
    prior to the MSS operator meeting each of the gating criteria. We
    agree with ICO that permitting MSS operators to file ATC
    applications prior to actually meeting all of the gating
    requirements ensures that the Commission has adequate time to review
    the application and solicit public comment, if appropriate, and that
    the MSS operators will not be delayed in offering ATC services once
    their MSS systems are commercially operational. The Wireless
    Carriers have not provided any arguments to persuade us that it is
    in the public interest to restrict our ability to entertain
    applications to provide ATC until after an MSS operator has, in
    fact, satisfied all of the gating criteria. Rather, we find that the
    public interest lies in ensuring that the Commission has adequate
    time to properly process and consider the application without
    unnecessarily delaying the offering of ATC services.

9.  To this end, we clarify that the recently adopted Section 25.149
    does not prohibit an MSS operator from filing an ATC application
    prior to actually meeting all of the gating requirements. We note
    that Section 25.149, which governs the information required to be
    contained in an application for authority to provide ATC, could be
    construed to preclude the filing of ATC applications prior to
    meeting the gating criteria, insofar as the rule requires an
    applicant to certify that it meets the applicable gating
    requirements. To the extent that an applicant might not be able to
    certify it currently meets the gating requirements, it could be
    argued that the ATC application is not acceptable for filing.
    Accordingly, we modify Section 25.149 so that it cannot be read to
    preclude the filing of ATC applications prior to an MSS operator
    meeting all of the gating requirements. Moreover, we do not find any
    benefit in precluding an MSS operator from exercising discretion in
    deciding when it is appropriate to seek Commission approval for ATC
    sufficient for us to alter our decision in the *MSS Flexibility*
    *Decision* to permit MSS providers to file ATC applications prior to
    meeting all of the gating criteria.

## Time for Granting ATC Applications 

10. We reconsider our decision to grant MSS ATC applications prior to,
    and conditioned upon, the MSS operator meeting all of the gating
    criteria. We find that the public interest will best be served by
    not granting an MSS operator's ATC application until we are
    satisfied that the MSS operator is in compliance with each of the
    gating criteria. This decision is not related to a concern that ATC
    "conditioned" upon meeting certain gating criteria could be
    interpreted to mean that we would permit *commercial operation* of
    ATC *prior to* the MSS operator meeting the gating requirements.
    Given the numerous references in the text indicating we would not
    permit such operations, we find that the *MSS Flexibility*
    *Decision* is clear that we intended to prohibit commercial
    operation of ATCs until the MSS system is commercially operating and
    has met all the gating requirements specified in the *Decision*, and
    that an MSS ATC licensee's failure to observe this condition would
    result in severe enforcement action, including license revocations
    and/or the imposition of monetary forfeitures.[^28] Nevertheless, we
    find that the licensing process changes suggested by the Wireless
    Carriers, somewhat modified, would be easier for the Commission to
    administer and would provide greater clarity regarding when an MSS
    operator seeking to provide ATC can engage commercial operation. In
    particular, we note that the date on which commercial ATC operations
    would be permitted would be the date on which the Commission grants
    the MSS ATC applicant's application. We find that providing greater
    clarity would benefit all parties and would benefit the Commission
    by reducing the likelihood of dispute or litigation concerning the
    date on which an MSS ATC applicant/licensee is authorized to
    initiate commercial ATC service. We also find that, because we will
    not grant ATC authorizations prior to an MSS operator's
    demonstrating that it has, in fact, met the gating criteria, an MSS
    ATC applicant will be less likely to file an ATC application until
    it has either met, or is close to meeting, all of the gating
    requirements, and could demonstrate how it is, or will, meet each of
    the gating requirements. We find this result will reduce the
    likelihood that Commission staff will be faced with processing
    speculative, prematurely filed ATC applications. In short,
    administrative efficiency, and consequently the public interest,
    will be served by granting ATC applications only after we are
    satisfied that each of the gating criteria has in fact been met, or
    will be met at the same time that the application is granted.

11. We do not intend, however, for this process to result in unnecessary
    delay or regulatory burden for licensees of MSS systems that are
    operational at the time an ATC application is filed. To this end, we
    adopt a new section 25.149(f). This section clarifies that we will
    grant ATC authority to an operating MSS system in actual compliance
    with our MSS system geographic and temporal coverage, replacement
    satellite, and commercial service gating criteria if the MSS ATC
    applicant makes a satisfactory, prospective, substantial showing
    that its ATC operations will meet our integrated service and other
    gating criteria. We require an MSS operator that is granted ATC
    authority pursuant to section 12.149(f) to notify the Commission
    within 30 days once it begins providing ATC service. This
    notification must take the form of a letter formally filed with the
    Commission in the appropriate MSS license docket and shall contain a
    certification that the MSS ATC service is consistent with its ATC
    authority.

12. Because we will not grant ATC authorizations prior to an MSS
    operator satisfying the gating requirements, we expect that MSS
    providers will not file ATC applications until they either have met,
    or are very close to meeting, each of the gating requirements. In
    the event an MSS operator anticipates that its proposal will present
    complex or controversial issues that may warrant a longer
    deliberative process, we agree with the Wireless Carriers that an
    authorized MSS operator may seek a ruling that certain aspects of
    its operations satisfy particular gating criteria.[^29] For example,
    at any time, an MSS operator may seek an initial finding from the
    Commission that its proposed service offerings are "integrated" as
    required by the Commission's Order. However the Commission will not
    grant ATC authority until the applicant has demonstrated that it has
    actually satisfied each of the gating criteria.

## Time for construction and testing

13. As discussed above, we will not grant ATC authorizations prior to an
    MSS operator's demonstrating that it has, in fact, met all of the
    gating criteria. We agree with ICO that our *MSS Flexibility*
    *Decision* expressly contemplates that construction and testing
    activities for ATC can occur prior to commencement of MSS
    operations, and we do not see any benefit in precluding such
    construction and testing, at the applicant's risk. Accordingly, as
    suggested by the Wireless Carriers, we revise pending rule Section
    25.143(j) to eliminate the language requiring that MSS operators
    have a conditioned ATC authorization before engaging in
    preoperational construction and testing, and instead, clarify that
    we will permit such construction and testing, at the operator's
    risk, at any time after an MSS provider has initiated physical
    construction on the MSS system satellites and notified us concerning
    the initiation of MSS system satellite construction and the MSS
    operator's intent to construct and test ATC facilities. This
    notification must take the form of a letter formally filed in with
    the Commission in the appropriate MSS license docket. The letter
    shall specify the frequencies on which the MSS licensee proposes to
    engage in pre-operational testing and shall specify the name,
    address, telephone number and other such information as may be
    necessary to contact a MSS licensee representative for the reporting
    and mitigation of any interference that may occur as a result of
    such pre-operational testing and build-out. Upon the filing of such
    a notification letter, the Commission will issue an informational
    public notice stating that such a notification letter has been filed
    with the Commission and listing the appropriate technical and
    contact information. We require pre-operational construction and
    testing operations be in compliance with all appropriate technical
    rules including section 25.255 relating to procedures for resolving
    possible harmful interference. In addition, we require MSS licensees
    engaging in pre-operational build-out and testing to comply with
    sections 5.83, 5.85(c), 5.111 and 5.117 of the Commissions rules
    relating to experimental operations.

## Public notice requirement

14. Finally, we require that the Commission place on notice for public
    comment any initial application for authority to add an ATC
    component to an eligible satellite network. We find that the public
    interest is best served by ensuring that applications for ATC
    authority are subject to transparent public process including the
    opportunity for comment to ensure the applicant has met our gating
    criteria. Accordingly, we modify Section 25.117(f) to require that
    notwithstanding the treatment of such an application as a minor
    modification, the Commission shall place any initial application for
    the modification of a space station license to add an ancillary
    terrestrial component on notice for public comment. We do not,
    however, intend to create an opportunity for abuse of process. In
    the event an ATC application relies on a certification that the
    applicant is in compliance with a previously issued favorable
    Commission ruling concerning the applicant's meeting of ATC gating
    criteria, any public notice issued by the Commission pursuant to
    Section 25.117(f) shall contain a statement that any party objecting
    to the portion of the application relating to the initial ruling
    bears the burden of demonstrating that the applicant's proposed use
    of ATC is not consistent with the initial ruling. We caution parties
    that when we have resolved issues raised by objecting parties in an
    initial ruling process concerning the satisfaction of gating
    criteria, we will not entertain the same objections in the context
    of an ATC application relying in part on the initial ruling. To
    consider such issues in the application process would in essence
    give parties opposing an MSS operator's efforts to initiate ATC
    services two bites at the regulatory apple, could result in
    unnecessary delay in the provision of important communications
    services to the public, and would unnecessarily consume additional
    Commission resources.

# ordering clauses

15. IT IS ORDERED that, pursuant to sections 4(i), 7, 302, 303(c),
    303(e), 303(f) and 303(r) of the Communications Act of 1934, as
    amended, 47 U.S.C. sections 154(i), 157, 302, 303(c), 303(e), 303(f)
    and 303(r), this Order on Reconsideration IS ADOPTED and that Part
    25 of the Commission's Rules IS AMENDED, as specified in Appendix A,
    effective 30 days after publication in the Federal Register.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

Appendix A: Final Rules

For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR parts 2 and 25 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 sec. 303, 47 U.S.C.
303. 47 U.S.C. sections 154, 301, 302, 303, 307, 309 and 332, unless
otherwise noted.

2.  Section 25.117 is amended to read as follows:

**[§ 25.117 Modification of station license.]{.underline}**

\* \* \* \* \*

\(f\) An application for modification of a space station license to add
an ancillary terrestrial component to an eligible satellite network will
be treated as a request for a minor modification if the particulars of
operations provided by the applicant comply with the criteria specified
in § 25.149. Notwithstanding the treatment of such an application as a
minor modification, the Commission shall place any initial application
for the modification of a space station license to add an ancillary
terrestrial component on notice for public comment. Except as provided
for in § 25.149(f), no application for authority to add an ancillary
terrestrial component to an eligible satellite network shall be granted
until the applicant has demonstrated actual compliance with the criteria
specified in § 25.149(b).

\* \* \* \* \*

3.  Section 25.136 is amended to read as follows:

**[§ 25.136 Licensing provisions for the L-Band mobile-satellite
service.]{.underline}**

\* \* \* \* \*

\(f\) [Incorporation of ancillary terrestrial component base station
into an L-band Mobile-Satellite Service System.]{.underline} Any
licensee authorized to construct and launch an L-band mobile-satellite
system may construct ancillary terrestrial component (ATC) base stations
as defined in § 25.201 of this part at its own risk and subject to the
conditions specified in this subpart any time after commencing
construction of the mobile-satellite service system.

\(g\) [Pre-Operational Build-out and Testing]{.underline}*.* An MSS
licensee may, without further authority from the Commission and at its
own risk engage in pre-operational build-out and, conduct equipment
tests for the purpose of making such adjustments and measurements as may
be necessary to assure compliance with the terms of the technical
provisions of its MSS license, ATC operation requirements, the rules and
regulations in this Part and the applicable engineering standards. Prior
to engaging in such pre-operational build-out and testing, an MSS
licensee must notify the Commission concerning the initiation of MSS
system satellite construction and the MSS operator's intent to construct
and test ATC facilities. This notification must take the form of a
letter formally filed with the Commission in the appropriate MSS license
docket. Such letter shall specify the frequencies on which the MSS
licensee proposes to engage in pre-operational testing and shall specify
the name, address, telephone number and other such information as may be
necessary to contact a MSS licensee representative for the reporting and
mitigation of any interference that may occur as a result of such
pre-operational testing and build-out. MSS licensees engaging in
pre-operational build-out and testing must also comply with sections
5.83, 5.85(c), 5.111 and 5.117 relating to experimental operations. An
MSS licensee may not offer ATC service to the public for compensation
during pre-operational testing. In order to operate any ATC base
stations, such a licensee must meet all the requirements set forth in §
25.147 and must have been granted ATC authority.

\(h\) [Aircraft.]{.underline} All portable or hand-held transceiver
units (including transceiver units installed in other devices that are
themselves portable or hand-held) having operating capabilities in the
1626.5-1660.5 MHz and 1525-1559 MHz bands shall bear the following
statement in a conspicuous location on the device: "This device may not
be operated while on board aircraft. It must be turned off at all times
while on board aircraft."

4.  Section 25.143 is amended to read as follows:

**[§ 25.143 Licensing provisions for the 1.6/2.4 GHz mobile-satellite
service and the 2 GHz mobile-satellite service.]{.underline}**

\* \* \* \* \*

\(i\) [Incorporation of ancillary terrestrial component base stations
into a 1.6/2.4 GHz mobile-satellite service network or a 2 GHz
mobile-satellite service network.]{.underline} Any licensee authorized
to construct and launch a 1.6/2.4 GHz or a 2 GHz mobile-satellite system
may construct ancillary terrestrial component (ATC) base stations as
defined in § 25.201 of this part at its own risk and subject to the
conditions specified in this subpart any time after commencing
construction of the mobile-satellite service system.

\(j\) [Pre-Operational Build-out and Testing.]{.underline} An MSS
licensee may, without further authority from the Commission and at its
own risk, engage in pre-operational build-out and conduct equipment
tests for the purpose of making such adjustments and measurements as may
be necessary to assure compliance with the terms of the technical
provisions of its MSS license, ATC operation requirements, the rules and
regulations in this Part and the applicable engineering standards. Prior
to engaging in such pre-operational build-out and testing, an MSS
licensee must notify the Commission concerning the initiation of MSS
system satellite construction and the MSS operator's intent to construct
and test ATC facilities. This notification must take the form of a
letter formally filed with the Commission in the appropriate MSS license
docket. Such letter shall specify the frequencies on which the MSS
licensee proposes to engage in pre-operational testing and shall specify
the name, address, telephone number and other such information as may be
necessary to contact a MSS licensee representative for the reporting and
mitigation of any interference that may occur as a result of such
pre-operational testing and build-out. MSS licensees engaging in
pre-operational build-out and testing must also comply with sections
5.83, 5.85(c), 5.111 and 5.117 relating to experimental operations. An
MSS licensee may not offer ATC service to the public for compensation
during pre-operational testing. In order to operate any ATC base
stations, such a licensee must meet all the requirements set forth in §
25.149 and must have been granted ATC authority.

\(k\) [Aircraft.]{.underline} ATC mobile terminals must be operated in
accordance with 25.136(a). All portable or hand-held transceiver units
(including transceiver units installed in other devices that are
themselves portable or hand-held) having operating capabilities in the
2000-2020/2180-2200 MHz or 1610-1626.5 MHz/2483.5-2500 MHz bands shall
bear the following statement in a conspicuous location on the device:
"This device may not be operated while on board aircraft. It must be
turned off at all times while on board aircraft."

\* \* \* \* \*

5.  Section 25.146 is reinstated to read as follows:

**§ 25.146 Licensing and operating authorization provisions for the
non-geostationary satellite orbit fixed-satellite service (NGSO FSS) in
the bands 10.7 GHz to 14.5 GHz.**

\[Text to be reinstated as established by 66 FR 10619 (Feb. 16, 2001);
67 FR 53510 (Aug. 16, 2002); and 68 FR 16447 (April 4, 2003). All
changes to §25.146 made in 68 FR 33649 (June 5, 2003) to be
disregarded.\]

6.  Section 25.149 is amended to read as follows:

**[§ 25.149 Application requirements for ancillary terrestrial
components in the mobile-satellite service networks operating in the
1.5./1.6 GHz, 1.6/2.4 GHz and 2 GHz mobile-satellite
service.]{.underline}**

\(a\) Applicants for ancillary terrestrial component authority shall
demonstrate that the applicant does or will comply with the following
through certification or explanatory technical exhibit, as appropriate:

> \(1\) ATC shall be deployed in the forward-band mode of operation
> whereby the ATC mobile terminals transmit in the MSS uplink bands and
> the ATC base stations transmit in the MSS downlink bands in portions
> of the 2000-2020 MHz/2180-2200 MHz bands (2 GHz band), the
> 1626.5-1660.5 MHz/1525-1559 MHz bands (L-band), and the 1610-1626.5
> MHz/2483.5-2500 MHz bands (Big LEO band).

\(2\) ATC operations shall be limited to certain frequencies:

> \(i\) In the 2000-2020 MHz/2180-2200 MHz bands (2 GHz MSS band), ATC
> operations are limited to the selected assignment of the 2 GHz MSS
> licensee that seeks ATC authority.
>
> \(ii\) In the 1626.5-1660.5 MHz/1525-1559 MHz bands (L-band), ATC
> operations are limited to the frequency assignments authorized and
> internationally coordinated for the MSS system of the MSS licensee
> that seeks ATC authority.
>
> \(iii\) In the 1610-1626.5 MHz/2483.5-2500 MHz bands (Big LEO band),
> ATC operations are limited to the 1610-1615.5 MHz, 1621.35-1626.5 MHz,
> and 2492.5-2498.0 MHz bands and to the specific frequencies authorized
> for use by the MSS licensee that seeks ATC authority.

(3) ATC operations shall not exceed the geographical coverage area of
    the mobile-satellite service network of the applicant for ATC
    authority.

(4) ATC base stations shall comply with all applicable antenna and
    structural clearance requirements established in Part 17 of the
    Commission's rules.

(5) ATC base stations and mobile terminals shall comply with Part 1 of
    the Commission's rules, Subpart I -- Procedures Implementing the
    National Environmental Policy Act of 1969, including the guidelines
    for human exposure to radio frequency electromagnetic fields as
    defined in §§ 1.1307(b) and 1.1310 of the Commission's rules for PCS
    networks.

(6) ATC base station operations shall use less than all available MSS
    frequencies when using all available frequencies for ATC base
    station operations would exclude otherwise available signals from
    MSS space-stations.

\(b\) Applicants for an ancillary terrestrial component shall
demonstrate that the applicant does or will comply with the following
criteria through certification:

> \(1\) Geographic and Temporal Coverage.
>
> \(i\) For the 2 GHz MSS band, an applicant must demonstrate that it
> can provide space-segment service covering all 50 states, Puerto Rico,
> and the U.S. Virgin Islands one-hundred percent of the time,
> consistent with the coverage requirements for 2 GHz MSS GSO operators.
>
> \(ii\) For the L-band, an applicant must demonstrate that it can
> provide space-segment service covering all 50 states, Puerto Rico, and
> the U.S. Virgin Islands one-hundred percent of the time, unless it is
> not technically possible for the MSS operator to meet the coverage
> criteria from its orbital position.
>
> \(iii\) For the Big LEO band, an applicant must demonstrate that it
> can provide space-segment service (i) to all locations as far north as
> 70º North latitude and as far south as 55º South latitude for at least
> seventy-five percent of every 24-hour period, i.e., that at least one
> satellite will be visible above the horizon at an elevation angle of
> at least 5º for at least 18 hours each day, and (ii) on a continuous
> basis throughout the fifty states, Puerto Rico and the U.S. Virgin
> Islands, [i.e.]{.underline}, that at least one satellite will be
> visible above the horizon at an elevation angle of at least 5º at all
> times.

(2) Replacement Satellites.

> \(i\) Operational NGSO MSS ATC systems shall maintain an in-orbit
> spare satellite.
>
> \(ii\) Operational GSO MSS ATC systems shall maintain a spare
> satellite on the ground within one year of commencing operations and
> launch it into orbit during the next commercially reasonable launch
> window following a satellite failure.
>
> \(iii\) All MSS ATC licensees must report any satellite failures,
> malfunctions or outages that may require satellite replacement within
> ten days of their occurrence.

(3) Commercial availability. Mobile-satellite service must be
    commercially available (*viz.*, offering services for a fee) in
    accordance with the coverage requirements that pertain to each band
    as a prerequisite to an MSS licensee's offering ATC service.

(4) Integrated Services. MSS ATC licensees shall offer an integrated
    service of MSS and MSS ATC. Applicants for MSS ATC may establish an
    integrated service offering by affirmatively demonstrating that:

> \(i\) The MSS ATC operator will use a dual-mode handset that can
> communicate with both the MSS network and the MSS ATC component to
> provide the proposed ATC service; or
>
> \(ii\) Other evidence establishing that the MSS ATC operator will
> provide an integrated service offering to the public.

(5) In-band Operation.

> \(i\) In the 2 GHz MSS band, MSS ATC is limited to an MSS licensee's
> selected assignment. MSS ATC operations on frequencies beyond the MSS
> licensee's selected assignment are prohibited.
>
> \(ii\) In the Big LEO band, MSS ATC is limited to no more than 5.5 MHz
> of spectrum in each direction of operation. Licensees in these bands
> may implement ATC only on those channels on which MSS is authorized,
> consistent with the Big LEO band-sharing arrangement.
>
> \(iii\) In the L-band, MSS ATC is limited to those frequency
> assignments available for MSS use in accordance with the Mexico City
> Memorandum of Understanding, its successor agreements or the result of
> other organized efforts of international coordination.

\(c\) Equipment certification.

(1) Each ATC MET utilized for operation under this part and each
    transmitter marketed, as set forth in Sec. 2.803 of this chapter,
    must be of a type that has been authorized by the Commission under
    its certification procedure for use under this part.

(2) Any manufacturer of radio transmitting equipment to be used in these
    services may request equipment authorization following the
    procedures set forth in subpart J of part 2 of this chapter.
    Equipment authorization for an individual transmitter may be
    requested by an applicant for a station authorization by following
    the procedures set forth in part 2 of this chapter.

(3) Licensees and manufacturers are subject to the radiofrequency
    radiation exposure requirements specified in 1.1307(b), 2.1091 and
    2.1093 of this chapter, as appropriate. MSS ATC base stations must
    comply with the requirements specified in 1.1307(b) for PCS base
    stations. MSS ATC mobile terminals must comply with the requirements
    specified for mobile and portable PCS transmitting devices in
    1.1307(b). MSS ATC mobile terminals must also comply with the
    requirements in 2.1091 and 2.1093 for Satellite Communications
    Services devices. Applications for equipment authorization of mobile
    or portable devices operating under this section must contain a
    statement confirming compliance with these requirements for both
    fundamental emissions and unwanted emissions. Technical information
    showing the basis for this statement must be submitted to the
    Commission upon request.

\(d\) Applicants for an ancillary terrestrial component authority shall
demonstrate that the applicant does or will comply with the provisions
of §§ 1.924 and 25.203(e)-(g) and with §§ 25.252, 25.253, or 25.254, as
appropriate, through certification or explanatory technical exhibit.

\(e\) Except as provided for in paragraph (f) of this section, no
application for an ancillary terrestrial component shall be granted
until the applicant has demonstrated actual compliance with the
provisions of subsection (b) of this section. Upon receipt of ATC
authority, all ATC licensees must ensure continued compliance with this
section and §§ 25.252, 25.253, or 25.254, as appropriate.

\(f\) Special Provision for Operational MSS Systems. Applicants for MSS
ATC authority with operational MSS systems that are in actual compliance
with the requirements prescribed in subparagraphs (b)(1), (b)(2), and
(b)(3) of this section at the time of application may elect to satisfy
the requirements of subparagraphs (b)(4) and (b)(5) of this section
prospectively by providing a substantial showing in its certification
regarding how the applicant will comply with the requirements of
subparagraphs (b)(4) and (b)(5). Notwithstanding §25.117(f) and
paragraph (e) of this section, the Commission may grant an application
for ATC authority based on such a prospective substantial showing if the
Commission finds that operations consistent with the substantial showing
will result in actual compliance with the requirements prescribed in
subparagraphs (b)(4) and (b)(5) of this section. An MSS ATC applicant
that receives a grant of ATC authority pursuant to this paragraph (f)
shall notify the Commission within 30 days once it begins providing ATC
service. This notification must take the form of a letter formally filed
with the Commission in the appropriate MSS license docket and shall
contain a certification that the MSS ATC service is consistent with its
ATC authority.

[^1]: *Flexibility for Delivery of Communications by Mobile Satellite
    Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz
    Bands*, Report and Order and Notice of Proposed Rulemaking, FCC
    03-15, 18 FCC Rcd 1962 (2003) (*Decision* or *MSS Flexibility
    Decision*).

[^2]: The term "2 GHz MSS band" is used in this Order to refer to the
    2000-2020 MHz uplink (Earth-to-space transmissions) and 2180-2200
    MHz downlink (space-to-Earth transmissions) frequencies.

[^3]: The "L-band" is a general designation for frequencies from 1 to 2
    GHz. In the United States, the Commission has allocated L-band
    spectrum for MSS downlinks in the 1525-1544 MHz and 1545-1559 MHz
    bands and for MSS uplinks in the 1626.5-1645.5 MHz and 1646.5-1660.5
    MHz bands. *See* 47 C.F.R. § 2.106.

[^4]: The term "Big LEO band" is used in this Order to refer to the
    1.6/2.4 GHz bands. In general, the Big LEO MSS systems rely on
    uplinks within the 1610-1626.5 MHz band and downlinks in the
    2483.5-2500 MHz band.

[^5]: For a full discussion of the gating criteria see *MSS Flexibility*
    *Decision,* 18 FCC Rcd at 1999-2009, ¶¶ 66-88.

[^6]: We also correct a numbering error to Part 25 of our rules
    contained in Appendix B of our *MSS Flexibility Decision*. In the
    *MSS Flexibility Decision*, we errantly included in Section 25.146
    certain provisions relating to ATC licensing for L-Band MSS systems
    that should have been incorporated in Section 25.136. *See MSS
    Flexibility Decision,* 18 FCC Rcd at 2105-06. Accordingly, we revise
    our rules to place these provisions in the proper rules section,
    Section 25.136, and reinstate prior Section 25.146.

[^7]: *MSS Flexibility* *Decision* at ¶ 3.

[^8]: *See* Letter from Kathryn A. Zachem, Counsel for the Wireless
    Carriers to Marlene Dortch, Secretary, Federal Communications
    Commission, IB Docket No. 01-185 at 1 (filed March 6, 2003)
    (Wireless Carriers March 6, 2003, *Ex Parte* Letter). We note that
    while the Wireless Carriers March 6, 2003, *Ex Parte* Letter seeks
    clarification and reconsideration of certain aspects of the *MSS
    Flexibility* *Decision*, the opportunity to file formal petitions
    for reconsideration has not yet expired. Accordingly, the decisions
    that we reach today are without prejudice with respect to the filing
    of formal petitions for reconsideration and the parties remain free
    to include issues addressed in this Order in such formal petitions
    for reconsideration.

[^9]: Wireless Carriers March 6, 2003, *Ex Parte* Letter at 1 (emphasis
    added).

[^10]: Wireless Carriers March 6, 2003, *Ex Parte* Letter at 2.

[^11]: *MSS Flexibility* *Decision,* 18 FCC Rcd at 1965, ¶ 3.

[^12]: Wireless Carriers March 6, 2003, *Ex Parte* Letter at 4.

[^13]: Wireless Carriers March 6, 2003, *Ex Parte* Letter at 4.

[^14]: *MSS Flexibility* *Decision,* 18 FCC Rcd at 2082-83, ¶ 250.

[^15]: *MSS Flexibility* *Decision,* 18 FCC Rcd at 2082-83, ¶ 250.

[^16]: *MSS Flexibility* *Decision,* 18 FCC Rcd at 2082-83, ¶ 250.

[^17]: Wireless Carriers March 6, 2003, *Ex Parte* Letter at 2-3.

[^18]: Wireless Carriers March 6, 2003, *Ex Parte* Letter at 2-3.

[^19]: *MSS Flexibility* *Decision* 18 FCC Rcd at 2077, ¶ 240; 47 C.F.R.
    § 25.117(f).

[^20]: *See* Letter from Kathryn A. Zachem, Counsel for the Wireless
    Carriers to Marlene Dortch, Secretary, Federal Communications
    Commission, IB Docket No. 01-185 at 1 (filed June 20, 2003)
    (Wireless Carriers June 20, 2003, *Ex Parte* Letter).

[^21]: Letter from Suzanne Hutchings, ICO Global Communications
    (Holdings) Ltd. to Marlene Dortch, Secretary, Federal Communications
    Commission, IB Docket No. 01-185 at 1 (filed March 13, 2003) (ICO
    March 13, 2003, *Ex Parte* Letter).

[^22]: ICO March 13, 2003, *Ex Parte* Letter at 1.

[^23]: ICO March 13, 2003, *Ex Parte* Letter at 1.

[^24]: ICO March 13, 2003, *Ex Parte* Letter at 2.

[^25]: ICO March 13, 2003, *Ex Parte* Letter at 2.

[^26]: ICO March 13, 2003, *Ex Parte* Letter at 1.

[^27]: In order to ensure that there is not unnecessary regulatory delay
    associated with the ATC application process, for all parties not
    filing pursuant to 25.149(f), the Commission will endeavor to act on
    each perfected ATC application no longer than 90 days after the
    relevant ATC applicant actually meets all ATC gating criteria
    contained in our rules. See 47 C.F.R. § 25.149(b).

[^28]: *See, e.g.*, *MSS Flexibility* *Decision,* 18 FCC Rcd 1962 at: ¶
    1 ("We will authorize MSS ATC subject to conditions that ensure that
    the added terrestrial component remains ancillary to the principal
    MSS offering. We do not intend, nor will we permit, the terrestrial
    component to become a stand-alone service."); n.5 ("As we have
    repeatedly indicated, we intend to authorize ATC *only* as an
    ancillary service to the provision of the principal service, MSS. We
    have established a number of gating requirements to ensure that ATC
    may only operate after the provision of MSS has commenced and during
    the period in which MSS continues to operate."); ¶ 3 ("For planned,
    licensed MSS systems, licensees may seek ATC authorization prior to
    launch and operation, but shall not provide ATCs prior to meeting
    the above criteria, and must have complied with MSS implementation
    milestones imposed on licensees at the time of seeking authority.");
    n.32 ("MSS ATC may not commence operation without a grant of
    authority pursuant to the licensing and service rules we adopt
    today, which, among other things, require the MSS ATC applicant to
    demonstrate that it provides substantial satellite service to the
    public."); ¶ 34 ("ATC cannot be provided without continued provision
    of MSS under the terms specified in this *Decision* and can only be
    provided in the MSS licensees' authorized frequency bands. If an MSS
    licensee using ATC were to disregard the rules and conditions
    adopted in this Order, we would cancel its ATC authorization and, if
    circumstances warrant, cancel its MSS license as well. We also have
    the authority to impose monetary forfeitures and other penalties.
    ATC authority wholly depends on MSS licensees' fulfillment of their
    construction, launch and operation requirements, and the continuing
    provision of substantial satellite service to the public."); ¶ 75
    ("Thus, an eligible MSS licensee that wishes to implement ATC must
    provide space-segment service across the entire geographic area
    stipulated in our rules and policies for that operator's particular
    space-station system geometry and frequency band. We incorporate
    into Part 25 of our rules the specific geographic coverage
    requirements applicable to each type MSS system under consideration
    in this Order as a prerequisite for the provision of ATC."); ¶ 85
    ("We require MSS to be commercially available in accordance with the
    coverage requirements that pertain to each band as a prerequisite to
    an MSS licensee's offering ATC service."); ¶ 86 ("Therefore,
    authorizations to provide MSS ATC shall be conditioned upon the
    commercial availability of MSS in accordance with the requirements
    of this Order prior to or at the same time ATC operations are
    initiated."); ¶ 250 ("We prohibit, however, commercial operation of
    ATCs before or until the MSS system is commercially operating as
    specified in this Order, and such commercial operation of ATCs will
    result in enforcement action, including license revocation and/or
    the imposition of a monetary forfeiture.").

[^29]: 47 C.F.R. § 1.2. We will place any such request for an initial
    ruling concerning an MSS licensee\'s meeting the ATC gating criteria
    on public notice for a comment period of not less than 30 days.