**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | ET Docket No. 03-201         |
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| Modification of Parts 2 and 15   | ** |                              |
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| unlicensed devices and equipment | *  |                              |
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**MEMORANDUM OPINION AND ORDER AND**

**FURTHER NOTICE OF PROPOSED RULE MAKING**

**Adopted: June 19, 2007 Released: June 22, 2007**

**Comment Date: (75 days after date of publication in the Federal
Register)**

**Reply Comment Date: (105 days after date of publication in the Federal
Register)**

By the Commission:

# I. INTRODUCTION

1.  By this action, we dismiss two petitions for reconsideration of the
    rules adopted in the *Report and Order* in this proceeding.
    Specifically, we dismiss a petition for reconsideration filed by
    Warren C. Havens and Telesaurus Holdings GB LLC ("Havens")
    requesting that the Commission suspend the rule changes adopted for
    unlicensed devices in the 902-928 MHz (915 MHz) band until such time
    as we complete a formal inquiry with regard to the potential effect
    of such changes to Location and Monitoring Service (LMS) licensees
    in the band. We also dismiss a petition for reconsideration filed by
    Cellnet Technology ("Cellnet") requesting that the Commission adopt
    spectrum sharing requirements in the unlicensed bands, *e.g.*, a
    "spectrum etiquette," particularly in the 915 MHz band. We are,
    however, seeking comment on its recommendations for a spectrum
    etiquette in a Further Notice of Proposed Rule Making (Further NPRM)
    in this proceeding. Specifically, the Further NPRM seeks comment on
    a specific spectrum etiquette for unlicensed transmitters that
    operate under Sections 15.247 and 15.249 of the rules in the 915 MHz
    band.

    **II. BACKGROUND**

2.  Part 15 of the Commission's rules governs the operation of
    unlicensed radiofrequency devices, including the technical
    requirements for their use. As a general condition of operation,
    Part 15 devices may not cause harmful interference to authorized
    radio services and must accept any interference that they
    receive.[^1] Examples of common Part 15 devices include cordless
    telephones, wireless local area networking equipment, baby monitors,
    and garage door openers. Overall, the Part 15 rules have been highly
    successful in fostering the development of new unlicensed devices
    while protecting authorized users of the radio spectrum from harmful
    interference.

3.  On July 12, 2004, the Commission released a *Report and Order* in
    this proceeding.[^2] In that *Report and Order,* the Commission
    modified the Part 15 spread spectrum rules for devices operating in
    the 2.4 GHz band. Specifically, the Commission allowed the use of
    advanced antenna technologies with spread spectrum transmitters in
    the 2.4 GHz band that can enable the provision of service over
    larger areas with reduced infrastructure costs. It also modified the
    channel spacing requirements for spread spectrum transmitters in the
    2.4 GHz band which will accommodate higher data rates. In addition,
    the Commission changed the rules to permit manufacturers and system
    operators to mix various antennas and radio transmitters for
    unlicensed devices in any frequency band without the need to obtain
    a separate equipment authorization for every combination. Further,
    the Commission allowed average output power measurements for
    digitally modulated spread spectrum devices operating in the 915
    MHz, 2.4 GHz and 5.8 GHz frequency bands using the same procedures
    as Unlicensed National Information Infrastructure (U-NII) devices
    that disregard short duration peaks that do not cause increased
    interference to other operations. While the Commission initially
    sought comment on the possibility of adopting a spectrum etiquette,
    it specifically declined to do so in the *Report and Order* because
    the existing unlicensed bands are heavily used.[^3] The Commission's
    concern was that an etiquette requirement that applies to only new
    devices in a heavily used band may not be useful in facilitating
    spectrum sharing if the large number of devices already authorized
    and used in the band were not required to follow the etiquette. The
    Commission also indicated that it did not believe that it was
    necessary to require a spectrum etiquette, stating that the current
    regulations, which do not require a spectrum etiquette, have
    resulted in very efficient use of unlicensed spectrum.

4.  Havens and Cellnet each filed a petition seeking reconsideration of
    various aspects of the Commission's decisions in the *Report and
    Order* as they pertain to the 915 MHz band.[^4] Itron filed comments
    in support of Cellnet's petition, while Motorola filed comments in
    opposition.[^5] No comments were filed in response to the Havens
    petition. These petitions are discussed in detail below.

5.  The 915 MHz band is shared by a variety of users under a hierarchy
    of spectrum usage rights. The band is allocated for primary use by
    Industrial, Scientific and Medical (ISM) equipment and Federal
    Government radiolocation systems.[^6] Federal Government fixed and
    mobile services are secondary to both of these primary uses.[^7] LMS
    licensees are next in order of priority and may not cause
    interference to and must tolerate interference from all Federal
    Government uses and ISM devices.[^8] Amateur radio operations, in
    turn, are secondary to all Federal Government users and LMS
    licensees and must accept any interference caused by ISM
    equipment.[^9] Finally, unlicensed devices authorized under Part 15
    are not entitled to interference protection from and may not cause
    harmful interference to any authorized services in the band.[^10]
    Nonetheless, in recognition of the important contributions to the
    public that both Part 15 technologies and amateur operators provide
    in the 915 MHz band, the Commission adopted a "safe harbor"
    provision, whereby unlicensed devices and amateur services operating
    pursuant to specific Commission technical rules are deemed not to be
    causing harmful interference to LMS operations.[^11] Further, LMS
    licensees are required to demonstrate through actual field tests
    that their systems do not cause unacceptable levels of interference
    to unlicensed devices in this band.[^12] The Commission's rules for
    spectrum sharing between LMS operations and Part 15 devices in the
    915 MHz band were originally adopted in 1995, and were thus known to
    prospective applicants prior to the M-LMS auctions in 1999 and
    2001.[^13]

6.  There are two types of LMS systems that operate in the 915 MHz band
    under Part 90 of the rules: non-multilateration systems and
    multilateration systems. Non-multilateration systems transmit data
    to and from objects passing through particular locations (*e.g.*,
    automated tolls, monitoring of railway cars). There are over 2000
    non-multilateration LMS sites in operation. Multilateration (M-LMS)
    systems track and locate objects over a wide geographic area
    (*e.g.*, tracking a bus fleet) by measuring the difference in time
    of arrival, or difference in phase, of signals transmitted from a
    unit to a number of fixed points, or from a number of fixed points
    to the unit to be located. The Commission auctioned a total of 452
    M-LMS licenses which are currently held by six entities. Warren C.
    Havens and Telesaurus Holdings GB LLC together hold 95 of these
    licenses. None of the six M-LMS license holders that obtained
    spectrum through auction are providing any M-LMS service with their
    spectrum.[^14]

7.  Spread spectrum transmitters are permitted to operate in the 915
    MHz, 2.4 GHz, and 5.8 GHz bands under Section 15.247 of the
    rules.[^15] Operation under these rules is limited to frequency
    hopping systems and systems using digital modulation. In frequency
    hopping systems, an information signal, usually a data stream,
    modulates a radio frequency carrier that is hopped among a number of
    frequencies in concert with a receiver. Digitally modulated systems
    must use a minimum bandwidth of 500 kHz but are not required to hop
    frequencies. There is no maximum bandwidth limit for digitally
    modulated systems other than the requirement to stay within the
    designated bands of operation, and there is no limit on the duration
    of transmissions. Both frequency hopping and digitally modulated
    systems are permitted to use output powers of up to 1 watt in the
    above bands, however, most devices use lower power for various
    design reasons, such as conserving battery life. Spread spectrum
    modulation reduces the power density of the transmitted signal at
    any frequency, thereby reducing the possibility of causing
    interference to other signals occupying the same spectrum.
    Similarly, at the receiver end, the power density of interfering
    signals is minimized, making spread spectrum systems relatively
    immune to interference from outside sources.

8.  Any type of operation is permitted in the 915 MHz, 2.4 GHz and 5.8
    GHz bands under Section 15.249 of the rules, subject to the field
    strength limits in this section.[^16] The limit for transmitters in
    these bands is 50,000 microvolts per meter in-band, and 500
    microvolts per meter out-of-band, measured at a distance of three
    meters. This in-band signal level is nearly 100 times lower than the
    maximum level permitted for spread spectrum transmitters.[^17] There
    are no requirements for devices operating under Section 15.249 to
    hop frequencies or use a minimum transmit bandwidth, and there are
    no maximum bandwidth or transmission duration limits. Many types of
    devices operate under this rule section including cordless
    telephones, video transmitters, wireless speaker and headphone
    systems, and automated utility meter reading equipment.

    **III. MEMORANDUM OPINION AND ORDER**

9.  [Havens Petition]{.underline}. Havens requests that the Commission
    suspend the rule changes adopted in this docket for unlicensed
    devices in the 915 MHz band until such time as the Commission
    completes a formal inquiry with regard to the potential effect of
    such changes to M-LMS licensees in the band and it determines either
    that there will be no material adverse effects or that it will allow
    counterbalancing changes (*e.g*., waivers or forbearance of LMS
    rules) to maintain the balance between higher power LMS systems and
    unlicensed devices. Havens does not specify which particular rule
    changes it believes should be suspended. In support of this request,
    Havens asserts that it cannot "efficiently or effectively" comply
    with rule Section 90.353(d) which requires that M-LMS licensees
    design, construct and field test their systems to minimize adverse
    effects on Part 15 devices if unlicensed devices operating in the
    band change as a result of the new rules adopted in the *Report and
    Order*. It claims that the new rules will lead to increased spectrum
    use of the 915 MHz band by unlicensed devices and thus will
    adversely affect M-LMS systems by changing the "regulatory
    coexistence" between Part 15 and LMS operations (*i.e*., the balance
    of aggregate M-LMS systems and aggregate unlicensed devices) and by
    altering the premise of the "safe harbor" in rule section 90.361
    (*i.e*., that unlicensed devices would not operate in close
    proximity to M-LMS). Havens further alleges that the Part 15 rule
    changes violate Section 15.5 of the rules, which requires that
    unlicensed devices not interfere with licensed system operations.

10. *Decision*. We decline to suspend the Part 15 rule changes adopted
    in the *Report and Order* or consider modifying the M-LMS rules as
    requested by Havens. We first note that Havens did not raise any
    objections to any proposals in the *Notice* during the pendancy of
    this proceeding. A petition for reconsideration that relies on facts
    not previously presented to the Commission will be granted only
    if: 1) the facts relied on relate to events which have occurred or
    circumstances which have changed since the last opportunity to
    present them to the Commission; 2) the facts relied upon were
    unknown to the petitioner until after his last opportunity to
    present them to the Commission, and he could not through the
    exercise of due diligence have learned of the facts in question
    prior to such opportunity; or 3) the Commission determines that
    consideration of the facts relied on is required in the public
    interest.[^18] Havens does not address why it did not previously
    participate in this proceeding or claim that any of these three
    conditions are met in this case.

11. The Commission's rules also require that a petition for
    reconsideration state with particularity the respects in which the
    petitioner believes the action taken should be changed. [^19] We
    note that the Commission modified several Part 15 rules that apply
    to unlicensed devices that may operate in the 915 MHz band, in
    addition to other frequency bands. Havens does not identify the
    particular rule changes that it believes should be suspended. Havens
    provides only a mere statement of belief that the rule changes in
    this proceeding will lead to increased use of Part 15 devices in the
    915 MHz band and thus will result in adverse effects on M-LMS
    operations. It provides no evidence or analysis to support this
    assertion. Finally, we note that Havens raised essentially the same
    arguments in its petition for reconsideration in ET Docket No.
    99-231 concerning changes to the Part 15 rules for spread spectrum
    devices.[^20] The Commission rejected these same arguments in that
    proceeding.[^21] Accordingly, we dismiss the Havens petition.

12. The Commission recently initiated a proceeding to reexamine the
    rules for the M-LMS operating in the 904-909.75 MHz and 919.75-928
    MHz portion of the 915 MHz band.[^22] That proceeding was originated
    by the Commission partly in response to a 2002 petition for rule
    making filed by Progeny LMS, LLC requesting changes to these rules.
    That proceeding is the appropriate forum for Havens to address its
    concerns about the M-LMS rules, including the "safe harbor" rule
    regarding the operational relationship between Part 15 unlicensed
    devices and Part 90 M-LMS devices.[^23]

13. [Cellnet Petition]{.underline}. In the *Notice,* the Commission
    invited comment on whether it should consider any methods to ensure
    efficient spectrum usage by unlicensed devices and pointed to the
    spectrum etiquette, or sharing conditions, developed by the industry
    for the operation of unlicensed PCS devices operating in the
    1920-1930 MHz band under Part 15 of its rules as one possible
    approach.[^24] A spectrum etiquette establishes a set of steps and
    protocols that a device must follow before it may access the
    spectrum.[^25] Such an etiquette may require that a device monitor
    the spectrum in which it intends to operate and begin transmission
    only if no signal above a specified threshold is detected.[^26] The
    Commission invited comment on a number of issues regarding the
    possibility of implementing a spectrum sharing etiquette for devices
    that operate on an unlicensed basis in bands other than the
    unlicensed PCS band, including who should develop any such
    etiquette, the bands to which an etiquette would apply, and how
    effective an etiquette imposed on new entrants would be in improving
    spectrum sharing. In the *Report and Order,* the Commission declined
    to impose any type of spectrum etiquette for any of the Part 15
    bands that are the subject of this proceeding.

14. In its petition, Cellnet requests reconsideration of the
    Commission's decision not to adopt a spectrum etiquette for
    unlicensed devices. Cellnet produces equipment for the automated
    reading of gas, water, and electric meters that uses spread spectrum
    transmitters operating on an unlicensed basis in the 915 MHz
    band.[^27] It states that the Commission should: 1) adopt a duty
    cycle limitation and other effective spectrum etiquette for any
    newly certified devices using digital modulation that operate in the
    915 MHz band, and 2) confirm in a public notice the obligation of
    all operators of unlicensed devices in this band authorized under
    Part 15 to avoid causing harmful interference to licensed and
    unlicensed devices operating in the band and to work cooperatively
    with operators of any other devices that may be experiencing
    interference to resolve any such incidents. Cellnet states that
    these actions are necessary to assure that users taking advantage of
    newly authorized technical flexibility in this heavily encumbered
    band do not create the type of interference that will deny the
    continued effective use of this band by existing and future users.
    It submits that prior to the Commission's adoption of the new rules
    on which new entrants have relied on to operate at higher power and
    without effective duty cycles, the few problems that arose among
    devices operating in the band were readily resolved with cost
    effective engineering solutions by affected manufacturers and users.
    Cellnet states that it did not file comments on this issue in
    response to the *Notice of Proposed Rule Making* in this docket[^28]
    because it did not believe at the time that a government-imposed
    spectrum etiquette was necessary. It states that it has seen an
    increase in the number of digitally modulated devices using the 915
    MHz band over the past year, including devices operating without any
    duty cycle limitation, and now believes that these devices present a
    threat of interference that requires Commission action. Cellnet also
    states that these devices operate at the maximum permitted limits
    without regard to the Part 15 requirements to use good engineering
    design, suppress emissions as much as practicable, and use the
    minimum field strength necessary and the maximum attenuation of
    unwanted emissions. It further states that as a result, new entrants
    to the band are creating emissions at interfering levels that are
    virtually unavoidable by incumbent devices, no matter how well the
    incumbent devices may have been designed to operate in the presence
    of other low power users. Cellnet states that the absence of any
    duty cycle limitation on digitally modulated devices threatens to
    destroy the effective use of the band in many areas where newly
    installed systems are operating continuously at power levels and
    across bandwidths that simply cannot be avoided by incumbent
    transceivers.

15. Itron filed comments in support of Cellnet's petition. Itron also
    believes that the Commission should require digitally modulated
    devices to employ duty cycle limits and/or an appropriate spectrum
    etiquette in the 915 MHz band. It states that this band was
    initially populated with low power devices, many with limited duty
    cycles, but that recently, digitally modulated devices are entering
    the band with maximum power and "always on" duty cycles. It submits
    that these new devices have limited compatibility with existing
    users. Itron states that rule changes requiring a spectrum etiquette
    would allow users to take advantage of the propagation
    characteristics of the band while protecting incumbent users.

16. Motorola opposes Cellnet's Petition for reconsideration. It states
    that spectrum etiquette and duty cycle limitations would have a
    negligible impact on the RF environment of unlicensed operations
    given the current crowded use of this band by licensed, ISM, and
    unlicensed devices. Motorola claims that the risk of interference to
    unlicensed devices from other Part 15 devices is less than the risk
    of interference from high-powered licensed and ISM operations. It
    believes that additional regulatory burdens would not promote design
    flexibility or provide the ability to develop expanded unlicensed
    wireless applications and that there is a risk that spectrum
    etiquette and duty cycle requirements in the 915 MHz band would
    stifle unlicensed product development and innovations and would
    outweigh any unproven benefits. In its reply, Cellnet states that
    Motorola is developing equipment that takes full advantage of
    maximum permitted Part 15 technical limits and therefore provides an
    even more compelling reason to adopt a regulatory etiquette or duty
    cycle limit for future viability of the band. Cellnet also states
    that Motorola does not address the intolerance of currently
    operating devices against devices operating at continuous maximum
    power levels, with essentially 100% duty cycle, and antennas located
    at the tallest available height.[^29]

17. The Commission's rules require that a petition for reconsideration
    and any supplement thereto shall be filed within thirty days from
    the date of public notice of such action.[^30] Further, the petition
    must state with particularity the respects in which the petitioner
    believes the action taken should be changed.[^31] Cellnet's petition
    does not describe any specific rule changes that it wishes the
    Commission to make. It simply requests that the we adopt "a duty
    cycle limitation and other effective spectrum etiquette," but does
    not recommend any specific duty cycle limitation or provide any
    technical details of what it believes would constitute an "effective
    spectrum etiquette." After the 30 day reconsideration period,
    Cellnet made an *ex-parte* presentation to the Commission's staff
    describing a spectrum etiquette that it believes the Commission
    should require for digitally modulated spread spectrum transmitters
    operating in the 915 MHz band under Section 15.247 of the
    rules.[^32] Because Cellnet's petition and subsequent filings do not
    satisfy the Commission's rules for specific relief and timeliness,
    we dismiss its petition. Although we are dismissing its petition, we
    are seeking comment on ideas for a spectrum etiquette in the 915 MHz
    band, including those suggested by Cellnet, in a Further Notice of
    Proposed Rule Making, discussed below. This action will allow us to
    fully consider Cellnet's suggestion to develop a spectrum etiquette
    that is a trade-off between transmission duration and output power,
    and also to address certain related issues that Cellnet did not
    discuss such as transition dates by which new equipment would have
    to comply.

    **IV. FURTHER NOTICE OF PROPOSED RULE MAKING**

18. By this Further NPRM, we seek comment on whether there is a need to
    require unlicensed transmitters operating in the 915 MHz band under
    Sections 15.247 and 15.249 of the rules to comply with a spectrum
    etiquette requirement, and the impact that requiring an etiquette
    would have on the development and operation of unlicensed 915 MHz
    devices operating under those rule sections. As an initial matter,
    we also seek comment on the particular etiquette suggested by
    Cellnet that would require digitally modulated spread spectrum
    transmitters operating in the 915 MHz band under Section 15.247 of
    the rules to operate at less than the 1 Watt maximum power if they
    are continuously silent less than 90% of the time within a 0.4
    second interval. This etiquette would require that the maximum
    permitted power level decrease in accordance with a specified
    formula as the silent interval between transmission decreases. We
    further seek comment on alternatives to the etiquette suggested by
    Cellnet.

19. *Need for a spectrum etiquette.* The Commission concluded in the
    *Report and Order* that design flexibility has helped industry to
    develop efficient sharing and modulation schemes and that the
    existing regulations with no etiquette requirements have resulted in
    very efficient use of available unlicensed spectrum.[^33] However,
    we note Cellnet's observations regarding emerging products and its
    concern that digitally modulated 915 MHz devices operating under
    Section 15.247 have no duty cycle limitation and may therefore
    transmit continuously at the maximum power permitted by the rules.
    Additionally, we observe that there is no limitation on the maximum
    transmit bandwidth for digitally modulated 915 MHz devices other
    than the requirement to maintain the fundamental emissions within
    the authorized band of operation.[^34] Thus, there appears to be a
    potential for a digitally modulated device or a group of digitally
    modulated devices to essentially occupy the entire 915 MHz band,
    leaving little or no opportunity for other devices to gain access to
    the spectrum. We believe that this has not been a problem in the
    past because the majority of spread spectrum devices operate at less
    than the maximum output power permitted in the rules to conserve
    battery power or because higher power is not necessary in many
    applications. Also, most spread spectrum devices that have been on
    the market in this band do not occupy the entire band
    simultaneously. However, as Cellnet and Itron observe, recently
    there has been increased use of the unlicensed 915 MHz band by
    parties providing wireless broadband services. These applications
    require operation at higher power and greater bandwidth than other
    unlicensed devices to provide service to users. While we encourage
    the provision of wireless broadband service to all Americans, we
    recognize that there is the potential under our rules for some
    unlicensed devices to preclude the operation of other unlicensed
    devices. We believe it is now appropriate for us to consider whether
    there is a need for a spectrum etiquette for unlicensed operation in
    the 915 MHz band. However, we recognize Motorola's concern about the
    potential for a spectrum etiquette to limit design flexibility and
    stifle unlicensed product development and innovation. We therefore
    seek to balance the concerns about the co-existence of different
    types of unlicensed devices with the concerns about inhibiting
    unlicensed device innovation in determining whether a spectrum
    etiquette is necessary and the form that an etiquette would take.

20. The Commission used the term "spectrum etiquette" in the *Notice* to
    refer to a set of requirements to enable better sharing of spectrum
    between devices. The Commission cited the unlicensed personal
    communication services (UPCS) rules as an example of a spectrum
    etiquette.[^35] These rules contain a "listen-before-talk"
    requirement for UPCS devices to monitor spectrum to ensure that it
    is not being used before transmitting.[^36] However, a spectrum
    etiquette could be comprised of other requirements that enable
    better sharing of spectrum, such as trade-offs between the
    transmission duty cycle, output power and bandwidth to enable more
    devices to co-exist within the same band of spectrum.

21. We seek comment on whether we should adopt a spectrum etiquette for
    unlicensed 915 MHz devices operating under Sections 15.247 and
    15.249 of the rules. In considering the need for an etiquette, our
    intent is not to establish interference protection rights for
    unlicensed devices or to ensure that unlicensed devices are always
    able to operate without interference. Rather, our goal is to ensure
    that the different types of unlicensed devices that operate in a
    band have an opportunity for spectrum access. We specifically seek
    comment on Cellnet's contention that digitally modulated devices in
    the 915 MHz band that transmit continuously at maximum power and
    occupy wide bandwidths are creating emissions at levels that can
    cause interference to incumbent devices, irrespective of how well
    the incumbent devices may have been designed to operate in the
    presence of other users. In this regard, we seek comment on the
    tolerance of currently operating devices to emissions from other
    devices in the same frequency band. We also seek comment on how
    effective an etiquette would be in improving spectrum sharing
    between unlicensed devices in the 915 MHz band. We further seek
    comment about the potential for a spectrum etiquette to limit design
    flexibility and stifle unlicensed product innovation.

22. *Cellnet's suggested etiquette requirements.* We believe that the
    general approach to a 915 MHz spectrum etiquette recommended by
    Cellnet that would limit unlicensed devices that operate under
    Sections 15.247 and 15.249 with a high duty cycle to lower power is
    one possible way to enable more efficient spectrum sharing among
    unlicensed devices. We therefore seek comment on Cellnet's proposed
    requirement that digitally modulated 915 MHz spread spectrum devices
    with a continuous silent interval of less than 90% within a 0.4
    second window (0.36 seconds) operate with a lower power level than
    the 30 dBm (1 Watt) maximum currently permitted by the rules.
    Specifically, the maximum permitted power would range from 30 dBm (1
    Watt) when there is a continuous silent interval of at least 90%
    between transmissions, down to 0 dBm (0.001 Watt) when there is no
    silent interval between transmissions, with the power limit in dBm
    linearly interpolated between the 90% silent and continuous
    operation duty cycle values. These recommended requirements could
    ensure that devices operating at high power levels leave a silent
    interval between transmissions that would provide an opportunity for
    other devices to transmit, and would prevent a high power device
    from operating continuously and precluding operation of other
    devices within a band. Devices that operate with shorter silent
    intervals between transmissions would be required to operate at less
    than the one watt maximum power to offset the increased interference
    potential of the longer duration transmissions. The decreasing power
    output limit would reduce the range at which interference can occur,
    thus increasing the likelihood that other devices could co-exist
    with them. The minimum power level of 0 dBm (0.001 Watt) that
    Cellnet recommends for devices that transmit continuously is
    comparable to the maximum level permitted for devices operating
    under Section 15.249.[^37]

23. We seek comment on whether this type of spectrum etiquette is
    appropriate to enable more efficient sharing of spectrum between
    unlicensed 915 MHz devices and, if so, whether the suggested power
    levels and duty cycles are appropriate. We also seek comment on
    whether an alternative type of etiquette would be more appropriate.
    For example, should an etiquette include limitations on the
    frequency range or bandwidth that a digitally modulated device may
    occupy and/or a "listen-before-talk" requirement? Parties who
    believe that alternative approaches to an etiquette or different
    power levels are more appropriate are requested to supply specific
    technical details and justification for their recommendations. In
    addition, we seek comment on the impact an etiquette like the one
    suggested by Cellnet would have on other devices that operate in the
    915 MHz band or other bands where it may be applied. For example,
    would manufacturers have to redesign or cease marketing certain
    equipment if all equipment in a band were required to comply with an
    etiquette? If so, what particular types of equipment would be
    affected?

24. Also, if we were to require a spectrum etiquette for the 915 MHz
    band, we seek comment on whether there would be a need to prohibit
    the synchronization of transmissions from multiple devices in a
    system or otherwise under control of the same party in such a way as
    to more fully occupy the silent intervals between transmissions.
    Permitting synchronized transmissions of this nature could allow a
    group of devices to transmit essentially continuously, thus
    defeating the purpose of a spectrum etiquette.

25. We seek comment on whether a device operating under such a spectrum
    etiquette should be permitted to automatically change the power
    level and duty cycle at which it operates, or if the device should
    be required to operate using only one fixed duty cycle/power level
    combination. Could allowing automatic adjustments of the power level
    and duty cycle encourage efficient spectrum sharing between
    unlicensed devices since there is incentive to use only the transmit
    power necessary for the desired output data rates?

26. *Applicability of etiquette.* Cellnet recommends applying an
    etiquette only to digitally modulated devices operating under
    Section 15.247 of the rules.[^38] We seek comment on the types of
    devices to which an etiquette should apply. For example, is an
    etiquette necessary for frequency hopping spread spectrum
    transmitters operating under Section 15.247? We note that these
    transmitters have channel separation requirements and continually
    hop between a number of different channels, and that Section
    15.247(h) prohibits the synchronized hopping by a group of spread
    spectrum transmitters. These requirements would appear to obviate
    the need for an etiquette for frequency hopping spread spectrum
    transmitters. Is an etiquette necessary for devices operating under
    Section 15.249 that are permitted maximum field strength levels that
    are significantly less than the maximum permitted output for spread
    spectrum transmitters? We also seek comment on whether requiring an
    etiquette for digitally modulated transmitters but not frequency
    hopping transmitters would place digitally modulated transmitters at
    operational or other disadvantages.

27. We note that the 915 MHz band is the only one where a co-existence
    problem between unlicensed devices has been raised. However, we
    recognize that unlicensed use of the 2.4 GHz and 5.8 GHz bands is
    also continuing to increase. These bands are used by many types of
    unlicensed devices, including cordless telephones and wireless
    broadband networking equipment. We are aware that industry standards
    such as Wi-Fi, Bluetooth, and ZigBee have been developed for the
    various unlicensed frequency bands and these standards are designed
    to facilitate sharing among multiple unlicensed devices. The
    Commission has no intention of disrupting the private sector
    standards process. At the same time, we believe it is appropriate to
    consider whether our regulations should be amended to ensure that a
    single device or group of devices does not occupy all of the
    spectrum all of the time and thereby deny access to others.
    Accordingly, we seek comment on whether there is a similar need to
    adopt rules for digitally modulated transmitters or other devices
    operating in the 2.4 GHz and 5.8 GHz bands to better facilitate
    shared used of the spectrum among unlicensed devices.

28. *Transition provisions.* We seek comment on the appropriate
    transition requirements if the Commission were to adopt a spectrum
    etiquette for unlicensed devices operating under Sections 15.247 and
    15.249. In particular, we seek comment on whether there should be a
    cutoff date after which new devices must comply with an etiquette
    requirement. We also seek comment on whether equipment certified
    before a cutoff date should be permanently grandfathered, or whether
    there should be a specific cutoff date on the manufacturing,
    importation, marketing and/or use of equipment that does not comply
    with any etiquette rules adopted in this proceeding. If so, for
    which of these actions should there be a cutoff date, and what is
    the appropriate date?

    **V. PROCEDURAL MATTERS**

29. *Initial Regulatory Flexibility Analysis*. As required by the
    Regulatory Flexibility Act, *see* 5 U.S.C. § 603, the Commission has
    prepared an Initial Regulatory Flexibility Analysis (IRFA) of the
    possible significant economic impact on small entities of the
    policies and rules proposed in this document. The IRFA is set forth
    in the Appendix. Written public comments are requested on the IRFA.
    These comments must be filed in accordance with the same filing
    deadlines as comments filed in response to this Notice of Proposed
    Rule Making as set forth in paragraph 31, and have a separate and
    distinct heading designating them as responses to the IRFA.

30. *Ex Parte Presentations*. This is a permit-but-disclose notice and
    comment rule making proceeding. *Ex parte* presentations are
    permitted, except during the Sunshine Agenda period, provided they
    are disclosed as provided in the Commission\'s rules. *See
    generally* 47 C.F.R. §§ 1.1202, 1.1203, and 1.2306(a).

31. *Filing Comments*. Pursuant to sections 1.415 and 1.419 of the
    Commission's rules, 47 CFR §§ 1.415, 1.419, interested parties may
    file comments and reply comments on or before the dates indicated on
    the first page of this document. Comments may be filed using: (1)
    the Commission's Electronic Comment Filing System (ECFS), (2) the
    Federal Government's eRulemaking Portal, or (3) by filing paper
    copies. *See Electronic Filing of Documents in Rulemaking
    Proceedings*, 63 FR 24121 (1998).

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: <http://www.fcc.gov/cgb/ecfs/> or
    the Federal eRulemaking Portal:
    [http://www.regulations.gov](http://www.regulations.gov/). Filers
    should follow the instructions provided on the website for
    submitting comments.

-   For ECFS filers, if multiple docket or rulemaking numbers appear in
    the caption of this proceeding, filers must transmit one electronic
    copy of the comments for each docket or rulemaking number referenced
    in the caption. In completing the transmittal screen, filers should
    include their full name, U.S. Postal Service mailing address, and
    the applicable docket or rulemaking number. Parties may also submit
    an electronic comment by Internet e-mail. To get filing
    instructions, filers should send an e-mail to <ecfs@fcc.gov>, and
    include the following words in the body of the message, "get form."
    A sample form and directions will be sent in response.

```{=html}
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-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. If more than one docket or
    rulemaking number appears in the caption of this proceeding, filers
    must submit two additional copies for each additional docket or
    rulemaking number.

32. Filings can be sent by hand or messenger delivery, by commercial
    overnight courier, or by first-class or overnight U.S. Postal
    Service mail (although we continue to experience delays in receiving
    U.S. Postal Service mail). All filings must be addressed to the
    Commission's Secretary, Office of the Secretary, Federal
    Communications Commission.

-   The Commission's contractor will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, NE, Suite 110, Washington, DC 20002. The
    filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand
    deliveries must be held together with rubber bands or fasteners. Any
    envelopes must be disposed of [before]{.underline} entering the
    building.

-   Commercial overnight mail (other than U.S. Postal Service Express
    Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
    Capitol Heights, MD 20743.

-   U.S. Postal Service first-class, Express, and Priority mail must be
    addressed to 445 12^th^ Street, SW, Washington DC 20554.

33. People with Disabilities: To request materials in accessible formats
    for people with disabilities (braille, large print, electronic
    files, audio format), send an e-mail to <fcc504@fcc.gov> or call the
    Consumer & Governmental Affairs Bureau at 202-418-0530 (voice),
    202-418-0432 (tty).

34. This document does not contain proposed information collection(s)
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13.  In addition, therefore, it does not contain any new or
    modified "information collection burden for small business concerns
    with fewer than 25 employees," pursuant to the Small Business
    Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C.
    3506(c)(4).

    **VI. ORDERING CLAUSES**

35. Accordingly, IT IS ORDERED that the petition for reconsideration
    filed by Havens IS HEREBY DISMISSED. This action is taken pursuant
    to the authority contained in Sections 4(i), 301, 302, 303(e),
    303(f), and 303(r) of the Communications Act of 1934, as amended, 47
    U.S.C. Sections 154(i), 301, 302, 303(e), 303(f), and 303(r).

36. IT IS FURTHER ORDERED that the petition for reconsideration filed by
    Cellnet Technology IS HEREBY DISMISSED. This action is taken
    pursuant to the authority contained in Sections 4(i), 301, 302,
    303(e), 303(f), and 303(r) of the Communications Act of 1934, as
    amended, 47 U.S.C. Sections 154(i), 301, 302, 303(e), 303(f), and
    303(r).

37. IT IS FURTHER ORDERED that the Further Notice of Proposed Rule
    Making IS HEREBY ADOPTED. This action is taken pursuant to the
    authority contained in Sections 4(i), 301, 302, 303(e), 303(f), and
    303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
    Sections 154(i), 301, 302, 303(e), 303(f), and 303(r).

38. IT IS FURTHER ORDERED that the Commission\'s Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this notice, including the Initial Regulatory
    Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
    Business Administration.

39. For further information regarding this Memorandum Opinion and Order
    and Further Notice of Proposed Rule Making, contact Mr. Hugh L. Van
    Tuyl, Office of Engineering and Technology, (202) 418-7506, e-mail
    <Hugh.VanTuyl@fcc.gov>.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

    **APPENDIX**

    **Initial Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),[^39] the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities small entities by the policies
and rules proposed in this Notice of Proposed Rule Making (Notice).
Written public comments are requested on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by the deadlines
for comments on the Notice provided in paragraph 31 of the item. The
Commission will send a copy of the Notice, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration
(SBA).[^40] In addition, the Notice and IRFA (or summaries thereof) will
be published in the Federal Register.[^41]

**A. Need for, and Objectives of, the Proposed Rules**

This Notice seeks comment on whether the Commission should require
unlicensed devices to comply with rules to designed to ensure more
efficient sharing of spectrum (*i.e.,* a "spectrum etiquette") such as
the one suggested by Cellnet. Cellnet's recommended spectrum etiquette
would be a trade-off between transmitter power and transmission
duration. Devices that operate with a duty cycle of 10% or less would be
permitted to operate at the same one Watt power level currently
permitted in the rules. As the transmission duty cycle is increased, the
maximum permitted power would decrease, down to 0.001 Watts (1
milliwatt) for devices that transmit continuously.

**B. Legal Basis**

The proposed action is authorized under Sections 4(i), 301, 302, 303(e),
303(f), 303(r), 304 and 307 of the Communications Act of 1934, as
amended, 47 U.S.C. Sections 154(i), 301, 302, 303(e), 303(f), 303(r),
304 and 307.

**C. Description and Estimate of the Number of Small Entities To Which
the Proposed 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 proposed rules, if adopted.[^42] The RFA defines the
term "small entity" as having the same meaning as the terms "small
business," "small organization," and "small business concern" under
Section 3 of the Small Business Act.[^43] Under the Small Business Act,
a "small business concern" is one that: (1) is independently owned and
operated; (2) is not dominant in its field of operations; and (3) meets
may additional criteria established by the Small Business Administration
(SBA).[^44]

*Radio and Television Broadcasting and Wireless Communications Equipment
Manufacturing.* The Census Bureau defines this category as follows:
"This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless communications
equipment. Examples of products made by these establishments are:
transmitting and receiving antennas, cable television equipment, GPS
equipment, pagers, cellular phones, mobile communications equipment, and
radio and television studio and broadcasting equipment."[^45] The SBA
has developed a small business size standard for Radio and Television
Broadcasting and Wireless Communications Equipment Manufacturing, which
is: all such firms having 750 or fewer employees.[^46] According to
Census Bureau data for 2002, there were a total of 1,041 establishments
in this category that operated for the entire year.[^47] Of this total,
1,010 had employment of under 500, and an additional 13 had employment
of 500 to 999.[^48] Thus, under this size standard, the majority of
firms can be considered small.

*Wireless Service Providers*. The SBA has developed a small business
size standard for wireless firms within the two broad economic census
categories of \"Paging\"[^49] and \"Cellular and Other Wireless
Telecommunications.\"[^50] Under both categories, the SBA deems a
wireless business to be small if it has 1,500 or fewer employees. For
the census category of Paging, Census Bureau data for 2002 show that
there were 807 firms in this category that operated for the entire
year.[^51] Of this total, 804 firms had employment of 999 or fewer
employees, and three firms had employment of 1,000 employees or
more.[^52] Thus, under this category and associated small business size
standard, the majority of firms can be considered small. For the census
category of Cellular and Other Wireless Telecommunications, Census
Bureau data for 2002 show that there were 1,397 firms in this category
that operated for the entire year.[^53] Of this total, 1,378 firms had
employment of 999 or fewer employees, and 19 firms had employment of
1,000 employees or more.[^54] Thus, under this second category and size
standard, the majority of firms can, again, be considered small.

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

Digitally modulated spread spectrum transmitters are already required to
be authorized under the Commission\'s certification procedure as a
prerequisite to marketing and importation, and no changes to that
requirement are proposed. There would, however, be changes to the
compliance requirements.

The applicant for certification would have to demonstrate in the
application that the equipment complies with the etiquette requirements.
These requirements may include a trade-off between the silent period
between transmissions and output power as suggested by Cellnet, or other
requirements such as the equipment monitoring spectrum to ensure it is
unused before transmitting (listen-before-talk).[^55]

Most unlicensed transmitters can be approved by either the Commission's
Laboratory or a designated Telecommunication Certification Body (TCB).
TCBs are private sector organizations that are permitted to issue
equipment certifications in the same manner as the Commission. TCBs
would not be permitted to certify equipment subject to the etiquette
requirement until the Commission has experience with them and can
properly advise TCBs on how to apply the applicable rules.

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

The RFA requires an agency to describe any significant, specifically
small business, alternatives that it has considered in reaching its
proposed approach, which may include the following four alternatives
(among others): "(1) the establishment of differing compliance or
reporting requirements or timetables that take into account the
resources available to small entities; (2) the clarification,
consolidation, or simplification of compliance and reporting
requirements under the rule for such small entities; (3) the use of
performance, rather than design standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities."[^56]

If the rules proposed in this notice are adopted, we believe they might
have a significant economic impact on a substantial number of small
entities. For an entity that chooses to manufacture or import digitally
modulated spread spectrum transmitters, the rules would impose costs for
compliance with equipment technical requirements, such as modifying or
redesigning equipment that does not comply with any new etiquette
requirement. However, the burdens for complying with the proposed rules
would be the same for both large and small entities. Further, the
proposals in this *Notice* are ultimately beneficial for both large and
small entities. We cannot find electrical engineering alternatives that
would achieve our goals while treating small entities differently.
Nonetheless, we solicit comment on any alternatives commenters may wish
to suggest for the purpose of facilitating the Commission\'s intention
to minimize the compliance burden on smaller entities.

**F. Federal Rules that May Duplicate, Overlap, or Conflict With the
Proposed Rule**

None.

[^1]: 47 C.F.R § 15.5.

[^2]: *See Report and Order* in ET Docket No. 03-201, 19 FCC Rcd 13539
    (2004).

[^3]: *See Notice of Proposed Rule Making* in ET Docket No. 03-201, 18
    FCC Rcd 18910, 18923 and *Report and Order* at 13552.

[^4]: *See* Havens petition for reconsideration dated October 7, 2004
    and Cellnet petition for reconsideration dated October 7, 2004.

[^5]: *See* Itron comments dated December 6, 2004 and Motorola
    opposition dated December 6, 2004.

[^6]: *See* 47 C.F.R. §§ 2.106, 18.301 and 18.111(c). Examples of
    Government radiolocation systems include high-power military air
    surveillance radars on aircraft carriers, tracking and telemetry
    radar systems used in aeronautical flight testing, systems that
    monitor the positions of missiles, drone and manned aircraft, and
    land units, and perimeter protection devices for intrusion detection
    at military facilities. Naval radars use the band because the band's
    propagation characteristics enable detection of "sea skimmers," fast
    moving targets over water. The band is also used for radar wind
    profiling for weather forecasting, aviation warning, marine
    observations and environmental studies. ISM equipment is defined as
    "equipment or appliances designed to generate and use radio
    frequency (RF) energy" to perform some work other than
    telecommunications. *See* 47 C.F.R. § 18.107(c). ISM equipment
    includes industrial heaters that cure glue, inks and rubber, welding
    equipment, food equipment such as bacon dryers and donut fryers, and
    medical equipment used for magnetic resonance imaging and diathermy
    (tissue heating).

[^7]: Government fixed and mobile radio systems in this band include
    mobile and portable radios, the transmission of images seen by bomb
    disposal robots and fixed systems for such purposes as control of
    power utilities, and video links for monitoring entry points at
    national borders.

[^8]: *See* 47 C.F.R. § 90.353(a).

[^9]: *See* 47 C.F.R. § 97.301. The amateur radio service under Part 97
    of the Commission\'s Rules provides spectrum for amateur radio
    service licensees to participate in a voluntary noncommercial
    communication service which allows experimentation with various
    radio techniques and technologies to further the understanding of
    radio use and the development of new technologies. *See* 47 C.F.R. §
    97.1.

[^10]: Users of Part 15 devices do not have any allocation status in our
    rules; rather, we make spectrum available for Part 15 devices on an
    unprotected and non-interference basis. Under Part 15, unlicensed
    devices may not cause harmful interference to LMS licensees, amateur
    operations, or other licensed systems in the 902-928 MHz band and
    are not protected from interference from any source.

[^11]: *See* 47 C.F.R. § 90.361.

[^12]: *See* 47 C.F.R. § 90.353(d).

[^13]: *See Report and Order* in PR Docket No. 93-61, 10 FCC Rcd 4695
    (1995).

[^14]: There are two M-LMS licensees operating systems under Part 90 in
    a small number of markets. These licensees were grandfathered when
    the LMS rules were adopted in 1995 and neither obtained their
    spectrum at auction.

[^15]: 47 C.F.R. § 15.247

[^16]: *See* 47 C.F.R. § 15.249. The 5.8 GHz band differs slightly
    between Sections 15.247 and Sections 15.249. Under Section 15.247,
    operation is permitted in the band 5725-5850 MHz, and under Section
    15.249, operation is permitted in the band 5725-5875 MHz.

[^17]: A spread spectrum system is generally permitted to operate with
    no greater than 1 watt of power into an antenna with a gain of 6
    dBi. If the maximum antenna gain exceeds 6 dBi, the transmitter
    power must be reduced by the amount in dB that the maximum antenna
    gain exceeds 6 dBi . A transmitter operating with these parameters
    would produce a field strength of 4,472 millivolts per meter at a
    distance of 3 meters. A device operating under Section 15.249 is
    permitted a maximum field strength of 50 millivolts per meter at a
    distance of 3 meters, which is 89 times lower than a spread spectrum
    transmitter. Spread spectrum systems in the 2.4 GHz and 5.8 GHz
    bands that are used for fixed point-to-point operation can operate
    with higher signal levels than other spread spectrum transmitters
    because the transmitter power is not required to be reduced by one
    dB for every dB that the antenna gain exceeds 6 dBi. For fixed
    point-to-point operation in the 2.4 GHz band, the transmitter power
    is required to be reduced by only one dB for every three dB that the
    maximum antenna gain exceeds 6 dBi, and for fixed point-to-point
    operation in the 5.8 GHz band there is no requirement to reduce
    transmitter power regardless of the gain of the transmit antenna.

[^18]: *See* 47 C.F.R. § 1.429(b).

[^19]: *See* 47 C.F.R. § 1.429(c).

[^20]: *See Second Report and Order* in ET Docket No. 99-231, 17 FCC Rcd
    10755 (2002). Havens filed a petition for reconsideration of the
    Commission's actions in that *Report and Order* on July 25, 2002.

[^21]: *See Memorandum Opinion and Order* in ET Docket No. 99-231, 18
    FCC Rcd 11661 (2003). Havens subsequently filed an appeal of the
    Commission's denial of its petition for reconsideration with the
    United States Court of Appeals for the District of Columbia Circuit,
    *Warren C. Havens v FCC & USA*, No. 03-1247. Havens has requested
    that the Court defer action on that case pending resolution of its
    petition for reconsideration in this proceeding.

[^22]: *See Amendment of the Commission's Part 90 Rules in the
    904-909.75 and 919.75-928 MHz Bands, Notice of Proposed Rulemaking*
    in WT Docket No. 06-49, 21 FCC Rcd 2809 (2006).

[^23]: In response to the petition for rule making filed by Progeny LMS,
    LLC on March 5, 2002 entitled "Amendment of Part 90 of the
    Commission's Rules Governing the Location and Monitoring Service to
    Provide Greater Flexibility", RM-10403, Havens has submitted
    numerous filings, including comments dated May 15, 2002 and reply
    comments dated June 3, 2002.

[^24]: *See* 47 C.F.R. Part 15, Subpart D -- Unlicensed Personal
    Communications Service Devices.

[^25]: *See* 47 C.F.R. §§ 15.319, 15.321 and 15.323.

[^26]: *See* 47 C.F.R. § 15.321(c)(1) -- (7).

[^27]: *See* Cellnet petition at footnote 1.

[^28]: *See Notice* at 18923.

[^29]: Cellnet refers to continuous transmissions as having zero duty
    cycle, although such transmissions are more commonly referred to as
    having a duty cycle of 100%.

[^30]: 47 C.F.R. § 1.429 (d).

[^31]: 47 C.F.R. § 1.429 (c).

[^32]: *See* Cellnet letter dated March 28, 2006. Cellnet recommended a
    trade-off between transmission duration and output power, i.e.,
    reduced power for transmitters that are continuously silent less
    than 90% of the time between transmissions. The power limit would
    range from 30 dBm (1 Watt) for transmitters that are continuously
    silent at least 90% of the time between transmissions within a 0.4
    second window, down to 0 dBm (1 milliwatt) for transmitters with no
    silent interval between transmissions, *i.e.*, operating
    continuously.

[^33]: *See Report and Order* at 13552*.*

[^34]: Spread spectrum devices have been permitted to operate in the 915
    MHz band with a 1 watt power limit and no transmit duty cycle or
    maximum bandwidth requirements since the spread spectrum rules were
    first established in 1985. *See First Report and Order* in GEN
    Docket No. 81-413, 1 FCC 2nd 419 (1985), 58 RR 2nd 251 (1985). In
    2002, the Commission modified the spread spectrum rules to allow
    other types of digital modulation, but made no changes to the
    maximum output power limit and did not place any limits on the
    transmit duty cycle or maximum bandwidth. *See Report and Order* in
    ET Docket No. 99-231, 17 FCC Rcd 10755 (2002).

[^35]: *See Notice* at 18923*.*

[^36]: *See* 47 C.F.R. §15.323.

[^37]: A digitally modulated spread spectrum transmitter operating at
    the minimum power under the proposed etiquette (0.001 Watts) and
    using a 6 dBi gain antenna would produce a field strength of 141
    millivolts per meter at 3 meters, as compared to 50 millivolts per
    meter at 3 meters for devices operating under Section 15.249. The
    ratio of field strengths is less than 3 to 1, as compared to a ratio
    of 89 to 1 when a spread spectrum transmitter is operating at the
    maximum 1 Watt power.

[^38]: *See* Cellnet letter dated March 28, 2006 at 3.

[^39]: ^ ?^ *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601 -- 612,
    has been amended by the Small Business Regulatory Enforcement
    Fairness Act of 1996 (SBREFA ), Pub. L. No. 104-121, Title II, 110
    Stat. 857 (1996).

[^40]: *See* 5 U.S.C. § 603(a).

[^41]: *See* 5 U.S.C. § 603(a).

[^42]: *See* 5 U.S.C. § 603(b)(3).

[^43]: *Id.* § 601(3).

[^44]: 15 U.S.C. § 632.

[^45]: U.S. Census Bureau, 2002 NAICS Definitions, "334220 Radio and
    Television Broadcasting and Wireless Communications Equipment
    Manufacturing";
    <http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342>.

[^46]: 13 C.F.R. § 121.201, NAICS code 334220.

[^47]: U.S. Census Bureau, American FactFinder, 2002 Economic Census,
    Industry Series, Industry Statistics by Employment Size, NAICS code
    334220 (released May 26, 2005);
    [http://factfinder.census.gov](http://factfinder.census.gov/). The
    number of "establishments" is a less helpful indicator of small
    business prevalence in this context than would be the number of
    "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical location
    for an entity is an establishment, even though that location may be
    owned by a different establishment. Thus, the numbers given may
    reflect inflated numbers of businesses in this category, including
    the numbers of small businesses. In this category, the Census
    breaks-out data for firms or companies only to give the total number
    of such entities for 2002, which was 929.

[^48]: *Id*. An additional 18 establishments had employment of 1,000 or
    more.

[^49]: 13 C.F.R. § 121.201, NAICS code 517211.

[^50]: 13 C.F.R. § 121.201, NAICS code 517212.

[^51]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517211 (issued Nov. 2005).

[^52]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^53]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517212 (issued Nov. 2005).

[^54]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^55]: *See* 47 C.F.R. §§ 15.323(c) and 15.407(h) for examples of
    listen-before-talk requirements currently in the rules.

[^56]: 5 U.S.C. § 603(c)(1) -- (c)(4).