**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | WT Docket No. 06-49          |
|                                  | *) |                              |
| Amendment of the Commission's    | ** |                              |
| Part 90 Rules in the 904-909.75  |    |                              |
| and 919.75-928 MHz Bands         | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

> **NOTICE OF PROPOSED RULEMAKING**

**Adopted: March 1, 2006 Released: March 7, 2006**

**Comment Date: May 30, 2006**

**Reply Comment Date: June 30, 2006**

By the Commission:

Table of Contents

Heading Paragraph \#

I. introduction 1

II\. Background 5

III\. Discussion 17

A. Restrictions on Permissible Communications and Interconnection 19

B. Power and Other Technical Limitations 26

C. M-LMS Spectrum Aggregation Limit 34

D. Part 90 Safe Harbor for Secondary Operations 36

E. M-LMS Testing Condition 39

F. Other Issues and Measures 42

IV\. Procedural Matters 45

V. Ordering Clauses 52

APPENDIx -- Initial Regulatory Flexibility Analysis

# introduction

1.  In this Notice of Proposed Rulemaking (Notice), we undertake a
    reexamination of the Commission's regulations governing the
    licensing and use of frequencies in the 904-909.75 and 919.75-928
    MHz portions of the 902-928 MHz band.[^1] This spectrum has been
    occupied historically by a number of spectrum users, including
    federal, licensed, and unlicensed operations. Most significantly,
    for purposes of this proceeding, this 14 megahertz of spectrum has
    been shared by a variety of Part 15 devices and, since 1995, has
    been licensed for specified uses by the multilateration Location and
    Monitoring Service (M-LMS) defined in Part 90 of the Commission's
    rules.[^2] In the decade since M-LMS was established, however, there
    has been very limited development of M-LMS service under the
    existing rules. Therefore, we initiate this examination to determine
    whether new approaches could produce more efficient and effective
    use of the 904-909.75 and 919.75-928 MHz spectrum band ("M-LMS
    Band") by M-LMS licensees. At the same time, we seek to ensure that
    any changes would continue to protect federal and other licensed
    users and also avoid any significant increase in interference to
    unlicensed users in this band.

2.  Although this proceeding originates partly in response to a 2002
    Petition for Rulemaking filed by Progeny LMS, LLC (Progeny),[^3] we
    initiate this proceeding to evaluate the ability of our Part 90
    M-LMS rules to afford licensed service providers greater flexibility
    to respond to changing market conditions.[^4] Specifically, we seek
    to determine whether our current M-LMS rules are limiting licensees
    from providing services that are desired in the market and that
    could be profitably deployed without causing harmful interference to
    other users. We inquire as to whether the Commission could promote
    the development of such services by establishing new rules that
    would replace certain restrictions on M-LMS operations and grant
    M-LMS licensees more flexibility to respond to market conditions.

3.  While we consider the advantages and disadvantages of rule changes
    that could facilitate higher-valued licensed uses of the spectrum in
    the M-LMS Band, we are mindful that this band is shared by a mixture
    of licensed services (both federal and non-federal), amateur radio
    operators, and numerous unlicensed devices authorized under Part 15
    of the Commission's rules. We make clear at the outset of this
    proceeding that we do not seek to alter the rules that govern the
    relationship among the various federal and non-federal licensed
    services in this band. Moreover, we recognize the importance of
    maintaining the existing accessibility of the band for unlicensed
    devices, which has led to a proliferation of important public,
    private, and consumer applications, and for amateur operators. To
    facilitate such access, the Commission has established a "safe
    harbor" rule providing that Part 15 and amateur operations that
    comply with certain technical parameters will not be considered to
    be causing harmful interference to M-LMS systems.[^5] Given the
    public interest benefits associated with these uses, we tentatively
    conclude below to retain this safe harbor.

4.  Our goal in this proceeding is to consider whether greater
    opportunity can be afforded M-LMS licensees to provide services
    while ensuring continued access for other licensed and unlicensed
    uses that share this band. This spectrum has desirable propagation
    characteristics for mobile and other applications offered by both
    licensed service providers and certain unlicensed users. We
    therefore believe it is in the public interest to evaluate whether
    it is possible to revise our rules in a way that would promote more
    efficient and effective use of this spectrum. We also view this as
    an opportunity to consider the spectrum access needs of multiple
    users and to evaluate any proposals that may improve access and use
    of the band by both M-LMS and Part 15 operations.

# Background {#background .Style-Heading-1-+-Left}

5.  In 1995, the Commission established the Location and Monitoring
    Service (LMS) as a new radio service to be licensed in the 902-928
    MHz spectrum band. This band is shared by a variety of users under a
    hierarchy of spectrum usage rights.[^6] Specifically, this band is
    allocated on a primary basis to federal radiolocation systems and
    Industrial, Scientific, and Medical (ISM) equipment.[^7] Federal
    fixed and mobile services are allocated on a secondary basis to
    federal radiolocation systems and ISM equipment.[^8] LMS licensees
    are allocated on a secondary basis to federal users and ISM devices
    and may not cause interference to and must tolerate interference
    from these users and devices.[^9] Amateur radio operations are
    allocated on a secondary basis to LMS.[^10] Finally, unlicensed
    devices are authorized under Part 15 to use the 902-928 MHz band,
    but such devices are not afforded interference protection rights and
    may not cause harmful interference to LMS licensees, amateur
    operations, or other licensed systems.[^11] These unlicensed Part 15
    devices, which number in the millions, use this spectrum for a
    variety of purposes, including remote meter reading, utility load
    management, cordless telephones, wireless local area networks, and
    other diverse applications.

6.  *Multilateration LMS*. There are two types of LMS systems:
    multilateration systems and non-multilateration systems.
    Multilateration 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 that is to be located. The
    Commission uses exclusive licensing to issue M-LMS licenses on a
    geographic area basis.[^12] Non-multilateration systems transmit
    data to and from objects passing through particular locations
    (*e.g.*, automated tolls, monitoring of railway cars).
    Non-multilateration LMS is licensed on a non-exclusive basis using
    site-by-site licensing.[^13]

7.  The Commission's band plan for LMS divides the 902-928 MHz band into
    five spectrum sub-bands, two for use by M-LMS, two by
    non-multilateration LMS, and one for use by both M-LMS and
    non-multilateration LMS.[^14] The sub-bands available to M-LMS
    (*i.e*., the 14 megahertz M-LMS Band) are licensed in three blocks
    as follows:[^15]

> *Block A (6 megahertz of spectrum):* 904.00-909.75 MHz band paired
> with a 0.25 megahertz narrowband channel in the 927.75-928.00 MHz
> band;
>
> *Block B (2.25 megahertz of spectrum):* 919.75-921.75 MHz band paired
> with a 0.25 megahertz narrowband channel in the 927.50-927.75 MHz
> band; and
>
> *Block C (5.75 megahertz of spectrum):* 921.75-927.25 MHz band paired
> with a 0.25 megahertz narrowband channel in the 927.25-927.50 MHz
> band).

The sub-bands available for use by non-multilateration LMS are the
902-904 and 909.75-919.75 MHz bands, while the 919.75-921.75 MHz portion
of Block B is shared equally between M-LMS and non-multilateration LMS
licenses. The Commission intended that this band plan would assign
non-multilateration spectrum to portions of the band where use of
spectrum by Part 15 devices, amateur operations, and federal
radiolocation operations was greatest.[^16]

8.  To facilitate sharing of the band by multiple licensed services as
    well as unlicensed devices, the Commission placed certain
    limitations on M-LMS operations, including restrictions on the types
    of services that could be provided, in part to make for
    less-intensive location-based applications.[^17] The Commission
    anticipated that these M-LMS service restrictions would spur the
    provision of new vehicle and other location services while also
    limiting the potential disruption to existing Part 15 operations and
    other users from unrestricted M-LMS system operations.[^18]
    Specifically, the Part 90 rules circumscribe the scope of
    permissible M-LMS service offerings such that licensees may only use
    non-voice radio techniques to determine the location and status of
    mobile radio units and may transmit status and instructional
    messages, either voice or non-voice, only so long as they relate to
    the location or monitoring functions of the system.[^19] In
    addition, M-LMS licensees are prohibited from using real-time
    interconnection with the public switched telephone network (PSTN),
    except for emergency communications sent to or received from a
    system dispatch point or public safety answering points.[^20] The
    Commission reasoned that these restrictions would "ensure that LMS
    systems are utilized primarily for location service and not as a
    general messaging or interconnected voice or data service."[^21]

9.  Apart from restrictions designed to limit the scope and intensity of
    M-LMS services and thereby maintain the coexistence of the many
    varied users of the band,[^22] other Part 90 provisions also seek to
    facilitate spectrum sharing by regulating potential interference
    between M-LMS operations and Part 15 devices. Thus, while unlicensed
    devices must generally avoid harmful interference to licensed
    services, the Commission adopted a safe harbor rule for unlicensed
    devices and amateur operations operating in the band. This rule
    provides that amateur and Part 15 operations conforming to specified
    technical standards are insulated from claims that such devices
    cause harmful interference to M-LMS systems.[^23] Also, to
    facilitate coexistence of licensed and unlicensed uses, and in
    recognition of extensive existing Part 15 use of the band, the
    Commission adopted a rule requiring M-LMS licensees to demonstrate
    through field tests that their systems do not cause "unacceptable
    levels of interference to Part 15 devices."[^24] The Commission,
    however, did not adopt a uniform testing method given the varied
    technologies, and anticipated that M-LMS licensees and unlicensed
    users of Part 15 devices would collaborate to establish consensus on
    testing guidelines.[^25]

10. The Commission auctioned M-LMS licenses in 1999 (Auction 21)[^26]
    and 2001 (Auction 39).[^27] With three M-LMS licenses in each of the
    176 EAs, there were 528 licenses available at auction. As a result
    of the two auctions, six entities currently hold a total of 452
    M-LMS licenses: Progeny holds 228 licenses; Warren C. Havens holds
    52 licenses and an associated holding company, Telesaurus Holdings
    GB, LLC (Telesaurus)[^28] holds 43 licenses; Helen Wong-Armijo holds
    84 licenses; PCS Partners, Inc. holds 32 licenses; and FCR, Inc.
    holds 13 licenses. Telesaurus also has applications pending for 34
    licenses.[^29] The Commission announced an auction of the remaining
    42 M-LMS licenses as part of a multi-service auction (Auction 43),
    but subsequently withdrew them prior to its commencement.[^30]

11. When the Commission adopted its LMS rules in 1995, it expected that
    both M-LMS and non-multilateration LMS systems would play an
    integral role in the development and implementation of advanced
    radio transportation-related services.[^31] Non-multilateration
    systems have flourished since 1995 with the Commission licensing
    more than 2,000 sites to state and local governments, railroads, and
    other entities in recent years. However, only two M-LMS licensees,
    Teletrac and Ituran, operate M-LMS systems, and these exist in only
    a small number of markets.[^32] These two licensees were
    grandfathered when the LMS rules were adopted, and neither of them
    acquired geographic licenses in Auction 21 or Auction 39. Moreover,
    none of the six license holders that received their licenses through
    these auctions or by subsequent transfer or assignment are providing
    vehicle location services (or any other Part 90 M-LMS compliant
    service[^33]) with their spectrum.

12. On March 5, 2002, Progeny filed a Petition for Rulemaking (Progeny
    Petition) in which it claims that it could deliver innovative voice
    and data messaging services to the public, coupled with advanced
    location technologies, if the Commission afforded M-LMS licensees
    additional flexibility under its Part 90 regulations.[^34] Progeny
    claims specifically that: (1) the restrictive nature of the M-LMS
    rules has prevented it from securing capital or engaging equipment
    manufacturers to develop M-LMS equipment;[^35] (2) current
    restrictions on the type and content of messages and limits on
    spectrum aggregation are unnecessary and should be
    eliminated,[^36] (3) the Commission should phase out or, at least
    modify, the Part 15 safe harbor;[^37] and (4) the existing M-LMS
    service limitations are inconsistent with the Commission's actions
    providing licensees with the flexibility to determine which services
    to offer.[^38]

13. *Unlicensed Part 15 Operations.* Although M-LMS services have not
    developed as anticipated in the M-LMS Band, users of unlicensed Part
    15 devices continue to find the 902-928 MHz environment well suited
    for important applications that benefit consumers. Since adoption of
    the LMS rules, there has been continued growth in the use of
    unlicensed devices in this spectrum. Consumers and businesses
    benefit greatly from their ability to use unlicensed devices in the
    902-928 MHz band, and such devices continue to operate effectively
    despite the assignment of higher-priority spectrum usage rights to
    M-LMS and other licensed uses of the band.

14. A Commission review of Part 15 equipment authorization grants in
    this spectrum indicates that equipment uses have continued to trend
    upward in the past several years.[^39] The number of grants has
    increased from approximately 200 per year in 1998 to 384 in 2004,
    and 326 grants were issued in 2005. Moreover, the types and
    distribution of the millions of authorized devices in use in this
    band have changed since the Commission originally adopted its M-LMS
    rules. Prior to 2000, for example, almost 40 percent of
    authorization grants were issued to cordless telephones.[^40] In
    recent years, however, there has been a shift in the types of
    devices using this band following the introduction of spread
    spectrum devices and reduction of costs for standardized integrated
    circuits.[^41] As described below, these developments are
    significant.

15. First, there has been major growth in a number of classes of Part 15
    devices in the 902-928 MHz band. These include RFID devices, such as
    bar code readers, different types of tag readers, and security label
    readers. In addition, utility and meter reading devices (which
    include readers for gas and electric meters, water meters, and
    remote sensors for these readers) have proliferated throughout the
    band, such that many millions of devices are now in use.[^42] There
    is also greater use by telemetry and security devices such as alarm
    devices, vehicle tracking systems, fork lift and crane control
    systems, traffic control systems, and home security systems.

16. We have also seen modest growth in the number of other types of
    equipment authorizations in the band. An increasing number of
    medical devices (blood pressure and heart rate monitors, medical
    telemetry systems, fetal monitoring systems, *etc*.) use this band.
    In addition, there has been an increased variety of 902-928 MHz
    consumer electronic devices such as wireless speakers, intercom
    devices, wireless keypads and mouse controllers, baby monitors, and
    video cameras. Finally, the number of authorizations has increased
    for network devices that provide wireless high-speed data and
    Internet-type services. Such network devices are actively being used
    by a subset of wireless Internet service providers (WISPs) for
    extended-range line-of-sight applications as well as
    non-line-of-sight applications.[^43]

# Discussion {#discussion .Style-Heading-1-+-Left}

17. Since 1995, the Commission has sought to provide for, and encourage,
    the coexistence of both licensed and unlicensed uses in the M-LMS
    Band. While the unlicensed use of this band has successfully
    provided consumers with numerous spectrum-based products, the
    licensed plan for this band has not similarly led to the development
    of new services. In this Notice, we seek comment on whether we can
    take steps to provide M-LMS licensees additional flexibility to
    respond to changing market conditions while protecting other
    licensed applications and federal applications and minimizing
    interference to unlicensed users.

18. We seek comment on the feasibility of modifying our Part 90 LMS
    rules in ways that would provide greater flexibility to M-LMS
    licensees while maintaining continued access for unlicensed devices
    and other users in this band. The current M-LMS rules place
    significant restrictions on M-LMS operations that were designed in
    large measure to limit interference among the variety of users
    within this band.[^44] We inquire whether these restrictions might
    unnecessarily restrict the use of the band and impede more efficient
    use of spectrum. The Commission intended these restrictions to
    provide, among other results, a stable environment for the continued
    growth of this industry,[^45] and believed that affording licensees
    additional flexibility to provide non-location based services could
    "detract from the intended purpose of the LMS allocation."[^46] We
    note that these restrictions were in place at the time the licensees
    decided to acquire the M-LMS spectrum at auction. A consequence of
    these restrictions, however, has been that M-LMS licensees may be
    unnecessarily prevented from providing other services, even as
    technical advances and market demands change what may be feasible
    within the interference parameters established for this band. Given
    the history of this band and our goal to provide rules that promote
    licensee flexibility while protecting other users, we seek comment
    on whether the existing restrictions may be impeding the development
    of more services of greater value to the public, as well as comment
    on the feasibility of changing certain rules to provide licensees
    additional flexibility.

## A. Restrictions on Permissible Communications and Interconnection

19. This section seeks comment on whether the Commission can promote
    more efficient use of the M-LMS Band by modifying or eliminating
    M-LMS restrictions on types of permissible communications (*e.g.*,
    vehicle location as primary operation) and interconnection, while
    protecting other licensed and federal applications and minimizing
    interference to unlicensed users. Assuming we were to adopt such
    changes, we then consider other possible specific rule changes to
    transition to and implement a regulatory framework for additional
    flexibility in Part 90 M-LMS.

20. We first seek comment on whether restricting M-LMS use to vehicle
    location and other location-based services continues to serve the
    public interest.[^47] As discussed above, the Commission adopted the
    M-LMS service and interconnection restrictions to promote a
    location-based service in 1995. We note, however, that more recent
    actions by the Commission have advanced the broader development of
    location-based services in other bands. Shortly after adoption of
    the M-LMS rules, the Commission adopted its initial E-911 rules,
    requiring all commercial mobile radio service (CMRS) carriers to
    meet standards for identifying the location of emergency callers and
    passing this information to the relevant public safety
    entities.[^48] In addition, there are several non-LMS service
    providers that offer location service to consumers and businesses,
    including satellite-based service providers Qualcomm (OmniTRACS®
    mobile communications service) and ORBCOMM (Little Low Earth
    Orbiting service).[^49] Under these circumstances, we seek comment
    on whether there is any public interest benefit associated with
    continuing to limit M-LMS service flexibility to promote vehicle and
    other location-based services in the nation's transportation
    infrastructure? Alternatively, should we maintain these restrictions
    to preserve M-LMS as essentially a location-based service, but
    provide licensees with some additional flexibility to offer their
    location-based services by, *e.g*., eliminating spectrum aggregation
    constraints, testing conditions, or limits on non-vehicular
    offerings?[^50]

21. Commenters should consider whether it is possible to replace some or
    all of the M-LMS service restrictions with more flexible rules that
    would allow licensees to provide additional services, provided they
    would not cause any significant increase in interference to other
    users in the band. Specifically, we seek comment on the extent to
    which stricter power limits, discussed in Section III-B below, or
    other technical restrictions, could limit the potential for
    interference between more flexible licensed use and existing
    unlicensed use of the M-LMS Band. [^51] Should M-LMS licensees be
    permitted to provide any type of service, whether or not it is
    location-based, provided they comply with such limits? Would such an
    approach be more effective than existing use restrictions in
    promoting flexibility for M-LMS licensees, protecting other licensed
    and federal users, and minimizing interference to Part 15 users? In
    addition, should we eliminate limits on real time interconnection
    limiting such applications to emergency communications only?

22. Assuming it is technically feasible to afford flexibility without
    major consequences to Part 15 devices, are there reasons why we
    should not extend to M-LMS additional flexibility to meet market
    demands? To what extent do existing restrictions impair (or not
    impair) the ability of M-LMS licensees to provide services that may
    be desired by the public? Commenters should consider whether the
    interference environment in the M-LMS Band has changed since
    adoption of the M-LMS rules in 1995 and whether there are new
    technologies (such as innovations in frequency agility) that obviate
    the need for the M-LMS service or interconnection restrictions.[^52]

23. Alternatively, if commenters believe that it would not be in the
    public interest to completely eliminate the restrictions on the
    types of services that may be offered, we ask them to comment on the
    degree to which we could or should relax the restrictions on
    permissible communications and type of interconnection. Should we
    permit any type of location or location-based service? Or, should we
    continue to limit M-LMS to vehicle location as a primary service and
    non-vehicular location only on an ancillary basis? Should we afford
    M-LMS licensees the additional flexibility to provide new
    non-location based services, but not permit unrestricted real time
    interconnection? Could limits on real time interconnection be
    modified, if not eliminated, such that licensees could provide
    additional PSTN-oriented services while not increasing the potential
    for interference to users of Part 15 devices in the band? If parties
    believe that any alteration of the *status quo* would create an
    unacceptable increase in the risk of interference, they should
    support their position with specific analysis demonstrating the
    degree to which other alternatives (presented here or by other
    parties) would impact their operations.

24. If we eliminate or modify the M-LMS service-based restrictions and
    afford incumbent licensees additional flexibility to provide new
    service offerings, we seek comment on how to implement such a
    service-neutral approach in the Commission's rules and regulations.
    We note that the Part 2 Table of Allocations for the 902-928 MHz
    Band does not contain a general non-federal allocation, but a
    footnote to the table specifically references LMS.[^53] In this
    context, we seek comment on whether affording M-LMS licensees
    additional flexibility would require us to clarify or redefine the
    range of permissible communications by M-LMS licensees in the Table
    of Allocations. We stress that if this is required, we do not
    propose to change the fundamental relationship between ISM and
    federal users, on the one hand, and M-LMS licensees on the other.
    Rather, we only consider modification of our rules to promote
    additional flexibility for M-LMS while maintaining its allocation on
    a secondary basis to ISM devices and federal operations.

25. We also seek comment regarding whether provisions of other rule
    parts should govern the provision of M-LMS services. For example, if
    we decide to provide licensees the flexibility to provide a variety
    of services (*e.g.*, fixed, mobile, *etc.*) under more than one
    regulatory status (*i.e.*, common carrier, non-common carrier,
    private internal), should a M-LMS licensee then be subject to other
    regulatory requirements? We seek comment on any provisions in
    existing, Part 90 M-LMS rules that may require specific recognition
    or adjustment to comport with the potential definition of an
    expanded scope of permitted M-LMS services.[^54] In addition, we
    seek comment on Part 1 and any other wireless radio services rules
    that should be modified or updated to reflect a service-neutral
    approach to permissible M-LMS communications.[^55]

## B. Power and Other Technical Limitations

26. In this section, we address ways to minimize the potential for
    interference to unlicensed devices that possibly may arise from
    licensed operations under potentially more flexible M-LMS rules. We
    seek comment on whether, by adopting stricter power limits for M-LMS
    licensees, we can better serve our goal of providing these licensees
    more flexibility while minimizing interference to these unlicensed
    devices. We also solicit comment on any other technical approaches
    that could be used independently, or with a reduced M-LMS power
    limit, including possible technical approaches that are similar to
    the frequency hopping and digital modulation rules set forth in
    Section 15.247 of the Commission's regulations.

27. We believe any proposal to provide more flexibility to M-LMS
    licensees in terms of permissible services requires consideration of
    other rule revisions that may be necessary to minimize the potential
    for interference to Part 15 devices in the M-LMS Band. We seek
    comment on whether revising existing power limits applicable to
    M-LMS licensees would achieve this goal. One factor in the potential
    for interference from M-LMS to Part 15 operations results from the
    difference in power between the potentially competing uses.
    Currently, M-LMS licensees are permitted a maximum of 30 Watts
    effective radiated power (ERP), which equals 49.2 Watts equivalent
    isotropically radiated power (EIRP).[^56] Part 15 devices (utilizing
    spread-spectrum or wide digital emissions) may operate with
    parameters that result in a maximum permitted EIRP of 4 Watts in the
    902-928 MHz band.[^57] Because existing M-LMS licensees may operate
    with 12.3 times as much power as Part 15 devices,[^58] more flexible
    M-LMS operations could result in a significant increase in
    interference to nearby Part 15 devices. Thus, reducing the maximum
    permitted M-LMS transmitter power across some minimum bandwidth
    could reduce the potential area around an individual M-LMS station
    where interference to Part 15 devices is most likely.

28. We therefore seek comment on the consequences of reducing the
    maximum permitted transmitter power in the three primary M-LMS band
    segments: 904.000-909.750 MHz, 919.750-921.750 MHz, and
    921.750-927.250 MHz. We seek specific comment on whether reducing
    the maximum permitted transmitter power of M-LMS in these segments,
    from the current limit of 30 Watts ERP to a new lower limit of
    6.1 Watts ERP (which equals 10 Watts EIRP), would result in an
    environment where M-LMS stations operate on far more comparable
    power levels with Part 15 devices, provided an appropriate minimum
    bandwidth or methodology is specified on how power would be measured
    for new flexible M-LMS operations.[^59] Under such a rule change,
    M-LMS licensees would be allowed to operate their stations with only
    2.5 times as much power as Part 15 device users,[^60] rather than
    the 12.3 times now permitted under Commission rules. We seek comment
    on whether this would sufficiently minimize the potential for
    interference to Part 15 users, if the M-LMS service-based
    restrictions were modified or eliminated. Would reducing the maximum
    power from 30 Watts ERP to 6.1 Watts ERP be sufficient by itself to
    mitigate the potential for interference? Is such a limitation more
    or less restrictive than the *status quo*, especially since M-LMS
    licensees may be permitted under current rules to provide
    packet-based, voice and other services that bypass the PSTN? If a
    commenting party believes that lowering the transmitter power limit
    to 6.1 Watts ERP is insufficient to address potential interference,
    or too great for M-LMS licensees to provide economically viable
    services to the public, it should specifically state what an
    appropriate power limit would be.

29. Each of the three M-LMS block licenses has an associated 0.25
    megahertz channel (located in the 927.25 to 928 MHz portion of the
    band), which is subject to a current 300 Watts ERP (which equals 492
    Watts EIRP) power limit per transmitter. We seek comment on reducing
    these limits to a maximum 10 Watts ERP power limit for each channel
    to mitigate the potential for unreasonable interference to existing
    Part 15 devices. We also seek comment on whether more flexible M-LMS
    operations could be provided at a power level higher than 10 Watts
    ERP on these channels without impairing the viability of unlicensed
    operations.[^61] In addition, we seek comment on whether the current
    field strength limit of 47 dBuV/m at the M-LMS licensee's EA
    boundary would continue to be reasonable, if we adopt changes to the
    technical rules as contemplated herein.[^62]

30. We also seek comment on other technical approaches that could be
    used independently or with these reduced M-LMS power limits. For
    example, we seek comment on whether to adopt technical rules for
    M-LMS operations that are similar to the frequency hopping and
    digital modulation rules set forth in Section 15.247 of the
    Commission's regulations.[^63] Section 15.247 generally permits a
    higher than normal transmitting power for Part 15 devices that use
    frequency hopping or digital emissions which cause the transmitted
    energy to be spread out across the band rather than concentrated in
    a relatively narrow bandwidth. Spread spectrum emissions mitigate
    potential interference, particularly to narrowband operations in the
    same spectrum, because not only do they cause less interference by
    inducing less energy into the receivers of such operations, but also
    because spread spectrum receivers have a much greater immunity to
    interfering signals. Commenters should address whether we could
    allow the greater M-LMS service flexibility described above if
    stations were required to use spread spectrum or broadband digital
    emissions.

31. If we were to adopt rules similar to those set forth in Section
    15.247 and apply them to M-LMS, these licensees (with their 10.9 dB
    greater power than Part 15 operations) could possibly use the same
    equipment (only with more power), be interoperable with Part
    15-based services, and have common subscribers. We seek comment on
    the advantages or disadvantages of permitting M-LMS stations to
    provide the same types of services using the same technologies that
    Part 15 devices already are permitted to use in the M-LMS Band.
    Several entities provide unlicensed broadband service to the public
    in the 902-928 MHz band under the provisions of Section 15.247. To
    the extent that a subset or all of the spectrum in this band could
    be used to accelerate the deployment of broadband through new
    technical provisions, we seek comment generally whether the public
    interest would be served.

32. Under such an adaptation to the M-LMS rules, we seek comment on
    whether the spectral power density limit of Section 15.247,[^64]
    adjusted for the power levels discussed above for M-LMS stations
    (*i.e*., a 10 Watt EIRP limit for M-LMS stations, which represents a
    4 dB increase over the existing 4 Watt EIRP limit for Part 15
    devices), would satisfactorily eliminate unreasonable interference
    to Part 15 operations. Specifically, would a spectral power density
    limit of 12 dBm per 3 kHz be technically reasonable and appropriate?
    We also seek comment on a minimum bandwidth for digital modulation
    (including direct sequence spread spectrum). Would the 6 dB emission
    bandwidth of 500 kHz used in Section 15.247 also be technically
    reasonable and appropriate for M-LMS and permit Part 15 devices to
    continue to use the M-LMS Band without unreasonable interference?
    Section 15.247 also includes provisions regarding occupancy time,
    and separate power limits based on the number of hopping channels
    used for frequency hopping spread spectrum devices.[^65] If we were
    to adopt spread spectrum rules for M-LMS that are similar to those
    in Section 15.247, should M-LMS licensees be permitted to use
    frequency hopping spread spectrum modulation? If so, what power and
    other technical limits would be appropriate and enable users of Part
    15 devices to continue to operate in the band without unreasonable
    interference?

33. In order to ensure that existing Part 15 devices do not suffer any
    significant increase in interference from a flexible M-LMS service,
    we ask parties to come forward with any other technical solutions
    that they would support in this context. We note ideas such as
    limiting the number of simultaneous M-LMS spread spectrum users to
    reduce the potential for interference to unlicensed users of the
    M-LMS Band, as well as limiting the duty cycle of non-spread
    spectrum emissions to reduce the potential for interference to
    unlicensed users. Would such limits protect primary band users
    (*e.g.*, ISM devices and federal radiolocation service) while
    limiting adverse effects on users/services allocated on a secondary
    basis? We invite comment on these and any other proposals. Besides
    power-related limits and measures, we will consider any other
    proposals that would provide more flexibility to M-LMS than current
    rules. We also seek comment on whether allowing these stations to
    operate using such technologies at higher power levels than
    permitted generally under Section 15.247 would raise any questions
    related to human exposure to electromagnetic radiation and whether
    they therefore should be subject to the procedures of Sections
    2.1091 and 2.1093.[^66]

## C. M-LMS Spectrum Aggregation Limit

34. The Commission's Part 90 M-LMS rules provide that within an EA, a
    licensee may aggregate M-LMS spectrum in Blocks B (2.25 megahertz)
    and C (5.75 megahertz), for a total of 8 megahertz, but spectrum
    Block A (6 megahertz) may not be aggregated with these other
    blocks.[^67] We note that when the Commission adopted this
    aggregation restriction in 1995, it reasoned that the restriction
    would foster multiple M-LMS location service providers and
    technologies.[^68] Today, numerous types of location services exist
    using a variety of bands and technologies.[^69] We therefore seek
    comment on whether the original rationale for restricting
    aggregation of M-LMS licenses remains valid in the current
    communications marketplace.

35. We also seek comment on whether eliminating the M-LMS aggregation
    limits has the potential to reduce interference to other users of
    the M-LMS Band and facilitate the provision of new M-LMS services.
    For example, would eliminating this restriction increase the
    potential for unlicensed use and reduce the potential for
    interference by giving M-LMS licensees greater flexibility to choose
    among a greater pool of available frequencies? Or would permitting
    one provider to control all 14 megahertz of M-LMS spectrum in an EA
    make access for unlicensed devices in the 902-928 MHz band more
    difficult? For example, would it be more difficult for unlicensed
    users to frequency-hop,[^70] especially if PSTN interconnection by
    the M-LMS licensee were permitted? Finally, in considering whether
    to allow M-LMS aggregation, to what degree should the continued
    availability to Part 15 operations of the 12 megahertz of
    non-multilateration LMS spectrum be a factor in our analysis?

## D. Part 90 Safe Harbor for Secondary Operations

36. In the *LMS Report and Order*, the Commission adopted a safe harbor
    for unlicensed users of Part 15 devices and licensed amateur
    operations,[^71] within which they are legally insulated from M-LMS
    operators' claims of harmful interference.[^72] As stated at the
    outset of this Notice, we tentatively conclude that the Section
    90.361 safe harbor provision should be retained. We believe this
    rule effectively delineates rights and responsibilities such that
    the efficient sharing of the band can occur with limited potential
    for interference.[^73] The safe harbor provides a bright line for
    all parties, licensed and unlicensed, operating in this band.
    Although Progeny argues that the safe harbor creates an uncertain
    regulatory framework for users of the 902-928 MHz band,[^74] we
    believe that defining the scope of unlicensed operations legally
    protected from claims of harmful interference by M-LMS licensees has
    served the public interest. In originally adopting this standard,
    the Commission explained that the safe harbor rule was the result of
    an extensive rulemaking record and careful consideration of all
    parties' interests.[^75] We do not believe that there have been
    sufficient changes in the 902-928 MHz interference environment, or
    our policy objectives regarding use of the band by unlicensed Part
    15 devices and amateur radio licensees, to support a repeal of the
    safe harbor.

37. Moreover, to provide M-LMS licensees with the flexibility of use
    described above,[^76] we do not believe it is necessary to eliminate
    a provision that adds certainty for the multitude of users of Part
    15 devices in this band. We are cognizant of the competitive impact
    that elimination, or substantial modification, of the safe harbor
    standard could have on the large number of manufacturers and users
    of existing Part 15 devices in the M-LMS Band. Elimination of the
    safe harbor provision could come at great cost to Part 15
    manufacturers and systems that have made investments in developing
    and deploying equipment within the safe harbor provision.[^77]

38. Thus, we propose to retain the Section 90.361 safe harbor provision
    as an effective standard that precisely defines Part 15 and amateur
    radio operators' rights relative to M-LMS licensees. We seek comment
    on this tentative conclusion. Parties who oppose this tentative
    conclusion should provide arguments that identify specific,
    alternative mechanisms that would provide the existing level of
    access for Part 15 and amateur operations in this band, and they
    should provide specific economic and technological evidence
    supporting their proposals and views. In addition, parties
    supporting any modifications to the safe harbor that would be based
    on proximity to M-LMS sites or other factors should offer proposed
    rules and specifically explain how such provisions would ensure the
    same degree of access for Part 15 devices that exists today.

## E. M-LMS Testing Condition

39. Section 90.353(d) of the Commission's rules requires M-LMS licensees
    to "demonstrate through actual field tests that their systems do not
    cause unacceptable levels of interference to 47 CFR part 15
    devices."[^78] Progeny asserts that implementation of this M-LMS
    testing requirement is hindered by uncertainty regarding the
    identity of the affected Part 15 users in the 902-928 MHz band and
    the absence of rule-defined engineering standards for conducting
    such testing.[^79] Accordingly, we seek comment on modifying or
    eliminating this Part 90 regulation. In the *LMS Report and Order*,
    the Commission conditioned the grant of each M-LMS license on the
    licensee's ability to demonstrate that it had performed additional
    testing that would provide data to users of the band and that could
    contribute to the "fine-tuning" of system operations and facilitate
    band sharing.[^80] The Commission determined that it was not
    appropriate to adopt a uniform testing method given the varied
    technologies and anticipated that M-LMS licensees and unlicensed
    users of Part 15 devices would collaborate to establish testing
    guidelines.[^81] The Commission explained that the testing
    requirement would not entitle Part 15 systems to any protection from
    interference, but would ensure that M-LMS licensees considered the
    Commission's goal of minimizing interference to systems of Part 15
    devices.[^82]

40. Given our proposals above to consider revisions to the M-LMS rules
    designed to facilitate shared use of the band, as well as our
    tentative conclusion to retain the Part 15 safe harbor, we seek
    comment on whether the interference-testing requirement is
    necessary. Can reliance on well-defined technical limits, instead of
    the testing requirement, facilitate the introduction of new services
    by M-LMS licensees without jeopardizing the ability of users of Part
    15 devices to continue to operate in the M-LMS Band? To what extent
    can technologies such as dynamic frequency selection, spread
    spectrum, and others be adequate to avoid interference instead of
    field tests? Given these considerations, what would be the impact to
    Part 15 operations of repealing the testing requirement? If we
    decided to repeal the testing requirement, are there other technical
    limits (other than those described above) that we should consider to
    mitigate interference concerns?

41. We also seek comment on the costs and benefits of developing a more
    specific rule in place of the Part 15 interference-testing
    requirement. The testing requirement requires M-LMS licensees to
    consider existing systems of Part 15 devices when designing and
    constructing their systems to minimize interference. Is this burden
    warranted given that users of Part 15 devices do not have priority
    over M-LMS operations, and there is no database identifying the
    actual unlicensed users and operators? What effect would a modified
    and more specific testing condition have on the development and
    deployment of more flexible M-LMS equipment and services? Parties
    who favor retention of the testing requirement should explain why it
    remains necessary, and how it could be defined so that M-LMS
    licensees could readily assess whether they would cause unacceptable
    levels of interference to Part 15 devices.

## F. Other Issues and Measures

42. We seek comment generally on any further proposals that could allow
    greater flexibility while avoiding any significant increase in
    interference to Part 15 operations. We note that the technical
    limitations discussed above are specifically intended to reduce the
    potential for interference in the band. Nonetheless, the potential
    remains, and conflicts among competing uses could result, because no
    one technical rule can guard against all interference, whether or
    not it is classified as legally harmful.[^83]

43. Thus, we seek comment on how to maintain, and clarify or augment if
    necessary, the ability of M-LMS licensees and operators of Part 15
    devices to coexist in the M-LMS Band. Given our belief that the best
    course is to facilitate objective measurement of currently
    subjective assessments as to what may be "harmful," we seek comment
    generally on any other proposals that would be appropriate to reach
    an appropriate balance between multiple users. Would prior
    notification or other coordination measures be beneficial and
    appropriate to reach a balancing of interests? What about
    industry-run solutions or additional safe harbors? For example,
    should we adopt a reciprocal safe harbor for M-LMS whereby M-LMS
    licensees would have some assurances against objections from
    operators of Part 15 devices, yet included in the safe harbor could
    be certain conditions that M-LMS licensees would have to meet to
    ensure that they considered existing Part 15 devices before
    deploying new services?

44. In addressing the possible rule changes in this Notice, we ask
    parties to comment on the degree to which the Part 15 devices of
    interest here are operating in the 14 megahertz of spectrum in the
    M-LMS Band compared to operations in other portions of the band. As
    described above, the Commission intended to assign the 12 megahertz
    of non-multilateration spectrum to portions of the band where
    amateur, federal, and Part 15 use of the band is the greatest.
    Accordingly, we request information (*e.g.*, including data points
    and relevant percentages of use where available) from interested
    parties using or manufacturing Part 15 devices for operation in the
    M-LMS Band. For example, what percentage of a party's Part 15
    devices used to read meters, support WISP operations, *etc*. are
    designed or programmed to operate on the 904-909.75 and 919.75-928
    MHz portions of the 902-928 MHz band? If such data is available, it
    would also be helpful if parties, including those parties using
    authorized frequency-hopping devices, could provide information
    regarding the intensity, duration, *etc*. of actual operations on
    the 904-909.75 and 919.75-928 MHz as compared to other portions of
    the 902-928 MHz band.

# Procedural Matters {#procedural-matters .Style-Heading-1-+-Left}

## A. Regulatory Flexibility

45. As required by the Regulatory Flexibility Act, 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 addressed in this Notice. 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 the Notice, and
    must have a separate and distinct heading designating them as
    responses to the IRFA.

## B. Paperwork Reduction Act of 1995

46. This document does not contain proposed information collection(s)
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13. It does not, therefore, 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.[^84]

## C. Other Procedural Matters

**1.** ***Ex Parte* Presentations**

47. The rulemaking this Notice initiates shall be treated as a
    "permit-but-disclose" proceeding in accordance with the Commission's
    *ex parte* rules.[^85] Persons making oral *ex parte* presentations
    are reminded that memoranda summarizing the presentations must
    contain summaries of the substance of the presentations and not
    merely a listing of the subjects discussed. More than a one or two
    sentence description of the views and arguments presented generally
    is required.[^86] Other requirements pertaining to oral and written
    presentations are set forth in Section 1.1206(b) of the Commission's
    rules.[^87]

    **2.** **Comment Filing Procedures**

48. Pursuant to Sections 1.415 and 1.419 of the Commission's rules,[^88]
    interested parties may file comments and reply comments regarding
    the Notice on or before the dates indicated on the first page of
    this document. All filings related to this Notice of Proposed
    Rulemaking should refer to WT Docket No. 06-49. 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.[^89]

-   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.

    -   ECFS filers must transmit one electronic copy of the comments
        for WT Docket No. 06-49. In completing the transmittal screen,
        filers should include their full name, U.S. Postal Service
        mailing address, and WT Docket No. 06-49. 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.

-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. Filings can be sent by hand
    or messenger delivery, by commercial overnight courier, or by
    first-class or overnight U.S. Postal Service mail (although we
    continue to experience delays in receiving U.S. Postal Service
    mail). All filings must be addressed to the Commission's Secretary,
    Marlene H. Dortch, Office of the Secretary, Federal Communications
    Commission, 445 12^th^ Street, S.W., Washington, DC, 20554. Parties
    who choose to file by paper should also send a copy of their
    comments to: Michael Rowan, Special Counsel, Spectrum & Competition
    Policy Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W., Portals I, Room
    6315, Washington, DC, 20554.

```{=html}
<!-- -->
```
-   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 should
    be addressed to 445 12^th^ Street, S.W., Washington DC 20554.

49. Parties shall serve one copy with the Commission's copy contractor,
    Best Copy and Printing, Inc. (BCPI), Portals II, Room CY-B402, 445
    12^th^ Street, S.W., Washington, D.C. 20554, (202) 488-5300, or via
    e-mail to <fcc@bcpiweb.com>.

50. Documents in WT Docket No. 06-49 will be available for public
    inspection and copying during business hours at the FCC Reference
    Information Center, Portals II, Room CY-A257, 445 12^th^ Street,
    S.W., Washington, D.C. 20554. The documents may also be purchased
    from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563,
    TTY (202) 488-5562, e-mail <fcc@bcpiweb.com>.

## 3. Accessible Formats

51. 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). Contact the FCC to request reasonable accommodations for
    filing comments (accessible format documents, sign language
    interpreters, CARTS, *etc*.) by e-mail: <FCC504@fcc.gov>; phone:
    202-418-0530 (voice), 202-418-0432 (TTY).

# Ordering Clauses {#ordering-clauses .Style-Heading-1-+-Left}

52. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in Sections 1, 4(i), and 303(r) of the Communications Act of 1934,
    as amended, 47 U.S.C. §§ 151, 154(i), and 303(r), this NOTICE OF
    PROPOSED RULEMAKING is hereby ADOPTED.

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

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

  -----------------------------------------------------------------------

  -----------------------------------------------------------------------

**APPENDIX**

**INITIAL REGULATORY FLEXIBILITY ANALYSIS**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^90] the Commission has prepared this Initial Regulatory
    Flexibility Analysis (IRFA) of the possible significant economic
    impact on a substantial number of small entities by the policies and
    rules considered in this Notice of Proposed Rulemaking
    (*Notice*),[^91] WT Docket No. 06-49. 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 on page one of this *Notice*. The Commission will
    send a copy of this *Notice*, including this IRFA, to the Chief
    Counsel for Advocacy of the Small Business Administration
    (SBA).[^92] In addition, this *Notice* and IRFA (or summaries
    thereof) will be published in the Federal Register.[^93]

## A. Need for, and Objective of, the Proposed Rules

54. This rulemaking proceeding considers possible measures that could
    introduce greater flexibility for licensees in the multilateration
    Location and Monitoring Service (M-LMS) for the purpose of enabling
    greater responsiveness to changing market conditions, more efficient
    and effective use of the M-LMS Band, and more robust secondary
    markets in radio spectrum usage rights.[^94] M-LMS licensees provide
    service in the 904-909.75 and 919.75-928 MHz portions of the 902-928
    MHz band. This 14 megahertz of spectrum has been shared by a variety
    of Part 15 devices and, since 1995, has been licensed for specified
    uses by M-LMS defined in Part 90 of the Commission's rules.[^95]
    Multilateration 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.

55. In the decade since M-LMS was established there has been very
    limited development of M-LMS under the existing rules. Specifically,
    when the Commission adopted its LMS rules in 1995, it expected that
    both M-LMS and non-multilateration LMS systems would play an
    integral role in the development and implementation of advanced
    radio transportation-related services.[^96] However, only two M-LMS
    licensees, Teletrac and Ituran, operate M-LMS systems, and these
    exist in only a small number of markets.[^97] Given these present
    circumstances, the Commission initiates this proceeding to determine
    whether new approaches could produce more efficient and effective
    use of the 904-909.75 and 919.75-928 MHz spectrum band by LMS
    licensees.

56. Through this *Notice*, the Commission seeks to determine whether
    current M-LMS rules are limiting licensees from providing services
    that are desired in the market and that could be profitably deployed
    without causing harmful interference to other users. Specifically,
    the Part 90 rules circumscribe the scope of permissible M-LMS
    service offerings such that licensees may only use non-voice radio
    techniques to determine the location and status of mobile radio
    units and may transmit status and instructional messages, either
    voice or non-voice, only so long as they relate to the location or
    monitoring functions of the system.[^98] In addition, M-LMS
    licensees are prohibited from using real-time interconnection with
    the public switched telephone network (PSTN), except for emergency
    communications sent to or received from a system dispatch point or
    public safety answering points.[^99]

57. The Commission seeks comment on whether it can promote more
    efficient use of the M-LMS Band by modifying or eliminating M-LMS
    restrictions on types of communication and interconnection, while
    avoiding any significant increase in interference to unlicensed
    users. The Commission also seeks comment on whether interference
    that might result from expanded service M-LMS offerings could be
    mitigated by adopting stricter power limits for M-LMS licensees,
    introducing frequency hopping, or altering digital modulation rules.

58. In addition, the Commission seeks comment on whether eliminating the
    M-LMS aggregation limits has the potential to reduce interference to
    other users of the M-LMS Band and facilitate the provision of new
    M-LMS services. The Commission also seeks comment on its tentative
    conclusion that it should retain the Part 90 safe harbor provision.
    Furthermore, the Commission seeks comment on whether reliance on
    well-defined technical limits, instead of the testing requirement,
    can facilitate the introduction of new services by M-LMS licensees
    without jeopardizing the ability of users of Part 15 devices to
    continue to operate in the M-LMS Band.

59. The Commission makes clear at the outset of this proceeding that it
    does not seek to alter the rules that govern the relationship among
    the various federal and non-federal licensed services in this band.
    It also recognizes the importance of maintaining the existing
    accessibility of the band for unlicensed devices and for amateur
    operators. The Commission's goal in this proceeding is to consider
    whether greater opportunity can be afforded M-LMS licensees to
    provide services while ensuring continued access for other licensed
    and unlicensed uses that share this band. In the following
    paragraphs, the Commission discusses the potential impact on small
    entities of proposals made in this *Notice* to accomplish this goal.

## B. Legal Basis

60. The potential actions about which comment is sought in this *Notice*
    would be authorized pursuant to the authority contained in Sections
    1, 4(i), and 303(r) of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 151, 154(i), and 303(r).

    **C. Description and Estimate of the Number of Small Entities
    Subject to the Rules**

61. 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.[^100] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^101] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^102] A "small business concern" is
    one which: (1) is independently owned and operated; (2) is not
    dominant in its field of operation; and (3) satisfies any additional
    criteria established by the SBA.[^103]

62. This *Notice* could result in rule changes that, if adopted, would
    create new opportunities and obligations for M-LMS licensees as well
    as operators and manufacturers of Part 15 devices for unlicensed
    uses on the fourteen megahertz of spectrum that is shared with M-LMS
    in the 902-928 MHz band. An estimate of the number of small entities
    in each of these categories is discussed below.

63. [Multilateration Location and Monitoring Service
    (M-LMS)]{.underline}. For purposes of auctioning LMS licenses, the
    Commission has defined a "small business" as an entity that,
    together with controlling interests and affiliates, has average
    annual gross revenues for the preceding three years not exceeding
    \$15 million.[^104] A "very small business" is defined as an entity
    that, together with controlling interests and affiliates, has
    average annual gross revenues for the preceding three years not
    exceeding \$3 million.[^105] These definitions have been approved by
    the SBA.[^106] The Commission auctioned M-LMS licenses in 1999
    (Auction 21)[^107] and 2001 (Auction 39).[^108] As a result of the
    two auctions, six entities currently hold a total of 452 M-LMS
    licenses.[^109] Each one of these entities qualified as either a
    small business or a very small business.[^110]

64. [Part 15 Device Operators]{.underline}. The SBA has developed a
    small business size standard for "Cellular and Other Wireless
    Telecommunications" (CWT), which consists of firms having 1,500 or
    fewer employees.[^111] According to the latest Census Bureau data
    for this category, there are a total of 1,378 firms that have 999 or
    fewer employees.[^112] The Census does not provide data for the
    number of firms with 1,500 or fewer employees, but does indicate
    that nineteen firms have 1,000 or more employees.[^113]
    Consequently, even if all nineteen of these firms are Part 15 device
    operators and have more than 1,500 employees, the Commission
    estimates that the majority of businesses in the CWT category are
    small businesses that may be affected by rules and policies that
    could be adopted in this rulemaking.

65. [Part 15 Device Manufacturers]{.underline}. The SBA has developed
    small business size standards for two pertinent Economic Census
    categories, \"Radio and Television Broadcasting and Wireless
    Communications Equipment Manufacturing\" (RTB) and \"Other
    Communications Equipment Manufacturing,\" (OCE) (NAICS code 334290),
    both of which consist of all such companies having 750 or fewer
    employees.[^114] According to the latest Census Bureau data, there
    are a total of 1,041 establishments in the RTB category.[^115] Of
    this total, 1,010 establishments have 499 or fewer employees,
    thirteen establishments have between 500 and 999 employees, and
    eighteen establishments have 1000 or more employees.[^116]
    Consequently, even if all thirteen establishments with between 500
    to 999 employees have more than 750 employees, the Commission
    estimates that the majority of businesses in the RTB category are
    small businesses that may be affected by the rules and policies that
    could be adopted in this rulemaking. Concerning the OCE category,
    the latest Census Data show that there are a total of 503
    establishments.[^117] Of this total, 493 establishments have 499 or
    fewer employees, seven establishments have between 500 and 999
    employees, and three establishments have from 500 to 2,499
    employees.[^118] Consequently, even if all seven establishments with
    500-999 employees have more than 750 employees, the Commission
    estimates that the majority of businesses in the OCE category are
    small businesses that may be affected by rules and policies that
    could be adopted in this rulemaking.

66. [Amateur Radio Operators]{.underline}. Amateur radio operators are
    not small businesses or small entities as defined by the RFA and the
    Commission's rules.[^119]

> **D. Description of Projected Reporting, Recordkeeping, and Other
> Compliance Requirements for Small Entities**

67. The Commission seeks comment on reducing or eliminating certain
    record keeping obligations for M-LMS operators. Section
    90.353(d)-(g) requires that M-LMS licensees operating in the 902-928
    MHz band "maintain whatever records are necessary" and make such
    records "available to the Commission upon request" that demonstrate
    compliance with specified operating parameters designed to limit
    interference with Part 15 devices.[^120] In particular, M-LMS
    operators must "demonstrate through actual field tests that their
    systems do not cause unacceptable levels of interference to 47 CFR
    Part 15 devices."[^121] The Commission seeks comment on whether such
    testing and associated recordkeeping and reporting requirements are
    necessary if well-defined technical limits are put in place and the
    Part 15 safe harbor provision is retained. The Commission does not
    seek comment on specific reporting or recordkeeping requirements,
    but, it seeks comment on whether M-LMS licensees should adhere to
    stricter power limits as a condition for relaxing the restrictions
    on the scope of services that M-LMS providers are permitted to
    offer.

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

68. 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 such small
    entities."[^122]

69. The Commission invites comment on a number of alternatives to the
    current LMS rules that could modify or eliminate certain
    restrictions on the M-LMS service in order to provide M-LMS
    licensees greater flexibility to respond to changing market
    conditions. The Commission addresses alternative approaches to
    flexibility that it has discussed above in Section A. These
    alternatives, which are discussed below, have been grouped according
    to five aspects of the current M-LMS service rules that affect
    flexible use for M-LMS licensees: (1) restrictions on the scope of
    permissible communications and interconnection; (2) power and other
    technical limitations; (3) the M-LMS spectrum aggregation limit; (4)
    the Part 90 safe harbor for operations under Parts 15 and 97;
    and (5) the M-LMS testing requirement and associated record keeping
    obligations.

70. With respect to the limits on the scope of M-LMS services, which are
    summarized in Section A, above, the Commission seeks comment on
    whether there are any public interest benefits associated with
    relaxing or eliminating M-LMS restrictions on permissible
    communications (*e.g.*, vehicle location as primary operation) and
    interconnection. The Commission seeks comment on alternatives
    ranging from partial to complete replacement of M-LMS service
    restrictions that prevent the provision of additional services. In
    particular, the Commission seeks comment on the benefit that each
    alternative could provide to M-LMS licensees (all of which qualify
    as small businesses), and how each alternative might impact small
    businesses that use or manufacture Part 15 devices.

71. The Commission seeks comment on alternative approaches to satisfying
    an expanded range of M-LMS service offerings while avoiding any
    significant increases in interference. For example, the Commission
    seeks comment on whether any such interference could be mitigated by
    reducing the allowable power levels at which M-LMS services could be
    offered. Another alternative to increase M-LMS licensee flexibility
    while reducing the likelihood of accompanying interference might be
    a relaxation or elimination of the M-LMS aggregation limit. The
    Commission seeks comment on the likely effect of this alternative on
    M-LMS licensees (all of which qualify as small businesses), and any
    impact to small businesses that use or manufacture Part 15 devices.

72. Regarding the Part 90 safe harbor provision, within which authorized
    operations under Parts 15 and 97 of the Commission's rules will not
    be considered to be causing interference to a M-LMS operator, the
    Commission seeks comment on its tentative decision to retain this
    provision.[^123] The Commission states in this *Notice* that it
    tentatively concludes that the safe harbor fosters efficient sharing
    of the band with limited interference, and it asks all parties that
    disagree to provide arguments that identify specific, alternative
    mechanisms that would provide the existing level of certainty in
    this band, and to provide specific economic and technological
    evidence supporting their proposals.

73. Another alternative approach to increasing flexibility for M-LMS
    licensees is to eliminate the testing and recordkeeping obligations
    associated with demonstrating that there is no unacceptable
    interference to Part 15 devices.[^124] While these obligations
    previously have been deemed essential, the Commission seeks comment
    on whether they would be necessary if the testing rules were
    replaced by well-defined technical limits while retaining the safe
    harbor provision, discussed above.

74. In addition to the discussion above regarding specific alternative
    approaches for expanding flexibility to M-LMS licensees while
    avoiding any significant increases in interference to Part 15
    devices, the Commission seeks comment on any additional approaches
    to accomplishing these dual goals. These include any other
    techniques and approaches that would better optimize the goals of
    this proceeding.

> **F. Federal Rules that May Duplicate, Overlap, or Conflict with the
> Proposed Rules**

75. None.

```{=html}
<!-- -->
```
G.  **Ordering Clause**

```{=html}
<!-- -->
```
76. IT IS FURTHER ORDERED that the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this *Notice* of Proposed Rulemaking, including the
    Initial Regulatory Flexibility Analysis, to the Chief Counsel for
    Advocacy of the Small Business Administration.

[^1]: We seek comment primarily on changes or additions to rules
    contained in Part 90 of the Commission's regulations (and Part 1 or
    other licensing rule parts, if applicable). Modifications to Part 15
    rules are beyond the scope of this proceeding.

[^2]: *See* 47 C.F.R. §§ 90.351-90.365 (LMS rules). Although we focus on
    Part 15 and M-LMS operations in the 904-909.75 and 919.75-928 MHz
    frequency ranges, we acknowledge the many other important uses of
    these frequencies, including amateur use, and invite such interested
    parties to comment on the issues raised in this Notice. *See infra*
    para. 38.

[^3]: Petition for Rulemaking, filed by Progeny LMS, LLC (March 5, 2002)
    (Progeny Petition). On April 10, 2002, the Wireless
    Telecommunications Bureau (Bureau) issued a public notice seeking
    comment on the Progeny Petition under RM No. 10403. *See* "Wireless
    Telecommunications Bureau Seeks Comment On Petition For Rulemaking
    Regarding Location And Monitoring Service Rules," *Public Notice,*
    17 FCC Rcd 6438 (2002). The Bureau subsequently extended the comment
    cycle on the Petition. *See* "Wireless Telecommunications Bureau
    Extends Comment Cycle On Petition For Rulemaking Regarding Location
    And Monitoring Service Rules," *Public Notice,* 17 FCC Rcd 8377
    (2002).

[^4]: *See* 47 C.F.R. § 1.411. Given the length of time that has passed
    since the Bureau issued its Public Notice, we are terminating RM No.
    10403 and invite interested parties to submit new and/or updated
    comments and reply comments in WT Docket No. 06-49.

[^5]: *See infra* paras. 9, 36-38.

[^6]: Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, *Report and
    Order*, 10 FCC Rcd 4695 (1995) (*LMS Report and Order*) (adopting
    rules encompassing the Automatic Vehicle Monitoring (AVM) service
    for which the Commission had adopted "interim" rules in 1974). As
    explained below, this traditional framework was then calibrated to
    reflect a careful balancing of interests between licensed M-LMS
    operations and other users, including users of Part 15 devices. *See
    infra* paras. 8-9.

[^7]: 47 C.F.R. §§ 2.106, 18.301, 18.111(c). Examples of federal
    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. 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 (MRI) and diathermy (tissue heating). In addition
    to the 902-928 MHz band, U.S. ISM bands include the 6.765-6.795 MHz,
    13.553-13.567 MHz, 26.957-27.283 MHz, 40.66-40.70 MHz, 2400-2500
    MHz, 5.725-5.875 GHz, 24-24.25 GHz, 61-61.5 GHz, 122-123 GHz and
    244-246 GHz bands.

[^8]: Federal 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.

[^9]: 47 C.F.R. § 90.353(a).

[^10]: 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.

[^11]: Users of Part 15 devices do not have any allocation status in the
    Commission's rules. Instead, the Commission makes 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. *See* 47 C.F.R. § 90.361. Users of Part 15
    devices conforming to specified technical conditions under the safe
    harbor, however, are insulated from claims in the 902-928 MHz Band
    that such devices cause harmful interference to M-LMS systems. *Id.*

[^12]: 47 C.F.R. § 90.353(d).

[^13]: Municipalities or other governmental operatives may file for a
    non-multilateration license covering an Economic Area. 47 C.F.R. §
    90.353(i).

[^14]: 47 C.F.R. § 90.357.

[^15]: The three blocks of paired M-LMS spectrum are licensed in 176
    Economic Areas (EAs) for a total of 528 licenses.

[^16]: *LMS Report and Order*, 10 FCC Rcd at 4708-09 ¶ 24. Short range
    non-multilateration operations are generally less likely to cause
    interference to Part 15 devices (which also operate with relatively
    short range) than multi-lateration operations. *See* *id.* at
    4712-13 ¶ 32.

[^17]: *See generally id.* at 4708 ¶ 23.

[^18]: By its new rules, the Commission sought to promote the continued
    integration of spectrum based services into the nation's
    transportation infrastructure while safeguarding Part 15 and other
    operations. *Id.* at 4698-99, 4744-45 ¶¶ 6, 99. The Commission also
    sought to promote multiple location service providers and
    technologies by limiting the amount of spectrum a licensee could
    hold in a single market through essentially an M-LMS spectrum cap.
    *Id.* at 4722-23 ¶ 48.

[^19]: Licensees may offer non-vehicle location service, but only if
    their system is primarily used for vehicle location monitoring.
    *Id.* at 4708 ¶ 24; *see also* 47 C.F.R. § 90.353(g).

[^20]: Otherwise, licensees are limited to store and forward
    interconnection, whereby either (1) transmissions from an object
    being monitored are stored by the M-LMS provider for later
    transmission over the PSTN, or (2) transmissions received by the
    M-LMS provider from the PSTN are stored for later transmission to
    the object being monitored. *See LMS Report and Order*, 10 FCC Rcd
    at 4710 ¶ 27. The Commission determined that store and forward
    messages delayed for at least thirty seconds would be permitted, and
    left open the possibility that a delay of less than thirty seconds
    would be acceptable. Amendment of Part 90 of the Commission's Rules
    to Adopt Regulations for Automatic Vehicle Monitoring Systems,
    *Memorandum Opinion and Order and Further Notice of Proposed Rule
    Making*, 12 FCC Rcd 13942, 13949 ¶ 15 (1997) (*LMS Memorandum
    Opinion and Order*).

[^21]: *LMS Report and Order*, 10 FCC Rcd at 4708 ¶ 23.

[^22]: *See id.*

[^23]: *Id.* at 4715-16 ¶ 36 (adopting rules "that define and clarify
    what constitutes harmful interference from . . . secondary
    operations").

[^24]: *See id.* at 4737 ¶ 82.

[^25]: *Id*.

[^26]: "Location and Monitoring Service Auction Closes, Winning Bidders
    in the Auction of 528 Multilateration Licenses in the Location and
    Monitoring Service," *Public Notice,* 14 FCC Rcd 3754 (1999)
    (*Auction 21 Winning Bidders Public Notice*).

[^27]: "VHF Public Coast and Location and Monitoring Service Spectrum
    Auction Closes, Winning Bidders Announced," *Public Notice*, 16 FCC
    Rcd 12509 (2001) (*Auction 39 Winning Bidders Public Notice*).

[^28]: Mr. Havens holds a controlling interest in Telesaurus.

[^29]: File No. 0000506843 (Telesaurus).

[^30]: *See* "Auction of Licenses for Multi-Radio Service Spectrum,
    Status of FCC Form 175 Applications to Participate in the Auction,"
    *Public Notice*, 16 FCC Rcd 20999 (2001).

[^31]: *LMS Report and Order*, 10 FCC Rcd at 4698 ¶ 5.

[^32]: Teletrac operates networks in Chicago, Dallas, Detroit, Houston,
    Los Angeles and San Diego. Ituran operates a network in parts of
    Florida.

[^33]: *See, e.g*., 47 CFR §§ 90.351, 90.353(b)-(c), (g).

[^34]: Progeny Petition at iv. Progeny also argues that increased
    flexibility would provide incentives to M-LMS licensees to rapidly
    build out their networks and offer high quality service to consumers
    and businesses in competition with commercial mobile radio service
    (CMRS) providers, which are now deploying enhanced 911 technologies.
    *Id.* at 17-20.

[^35]: *Id.* at 15-16. Progeny claims that manufacturers will not
    produce M-LMS equipment because they do not perceive sufficient
    market demand to support a narrow vehicle location service. *Id.* at
    15.

[^36]: *Id.* at 23-26.

[^37]: *Id.* at 23, 27-29.

[^38]: *Id.* at 26.

[^39]: Our review of equipment authorization was based on the 902-928
    MHz band as a whole. We do not have specific data indicating the
    extent of devices using the 904-909.75 and 919.75-928 MHz portion
    (*i.e*., the M-LMS Band at issue here) as compared to the remaining
    portion of the 902-928 MHz band available for use by Part 15
    devices.

[^40]: There is continued use of the 902-928 MHz band by these cordless
    phones, and there are a small number of devices classified as
    "others" that also use the band. These include tank level gauge
    monitors, tracking systems, remote controls for several different
    applications, among other devices.

[^41]: The Commission modified its rules in 1989 and 1990 to allow
    spread spectrum devices in this band. *See* Revision of Part 15 of
    the Rules Regarding the Operation of Radio Frequency Devices without
    an Individual License, *First Report and Order*, 4 FCC Rcd 3493
    (1989); Amendments of Parts 2 and 15 of the Rules with Regard to the
    Operation of Spread Spectrum Systems, *Report and Order*, 5 FCC Rcd
    4123 (1990).

[^42]: For example, Cellnet Technology recently reported that it has
    deployed 10 million AMR devices that use this band. *See* Cellnet
    Technology, Inc.'s Petition for Limited Reconsideration filed in ET
    Docket No. 03-201 (regarding Modification of Parts 2 and 15 of the
    Commission's Rules for Unlicensed Devices and Equipment Approval, ET
    Docket No. 03-201, Petition for Limited Reconsideration, filed by
    Cellnet Technology, Inc. ) (October 7, 2004).

[^43]: These do not represent a large number of equipment authorizations
    compared to other available unlicensed bands in higher frequency
    ranges.

[^44]: *LMS Report and Order*, 10 FCC Rcd at 4744-45 ¶ 99.

[^45]: *Id*.

[^46]: *Id*. at 4708 ¶ 23. Nonetheless, we note that the LMS rules
    adopted in 1995 were a substantial step towards the efficient and
    competitive use of spectrum previously governed by outdated AVM
    regulations that had not kept pace with the technological evolution.
    *Id*. at 4696 ¶¶ 1-2.

[^47]: *LMS Report and Order*, 10 FCC Rcd at 4708 ¶ 23 (finding it
    appropriate to impose limitations on the provision of non-vehicular
    location services); *id*. at 4708 ¶ 24 ("\[W\]e will allow
    non-vehicular location services to be rendered only by
    multilateration LMS systems whose primary operation involve the
    provision of vehicle location services."); *see also* 47 CFR §
    90.353(g).

[^48]: Revision of the Commission's Rules to Ensure Compatibility with
    Enhanced 911 Emergency Calling Systems, *Report and Order and
    Further Notice of Proposed Rulemaking*, 11 FCC 18676 (1996).

[^49]: OmniTRACS® uses Ku-band satellite transponders to provide
    real-time messaging and positioning services to more than 2,000
    North American trucking fleets. *See* Qualcomm, Inc., "Products and
    Business Solutions, OmniTRACS® Mobile Communications Solution"
    *available at* [www.qualcomm.com/qwbs/ products/
    omnitracs.html](http://www.qualcomm.com/qwbs/products/ omnitracs.html)
    (last visited Mar. 1, 2006). ORBCOMM is a wireless
    telecommunications company that provides narrow band two-way digital
    messaging, data communications, and geo-positioning services on a
    global basis through a network consisting of thirty [Low Earth Orbit
    (LEO)
    satellites](http://www.orbcomm.com/wwwroot/public/about/technology/spaceSegment.html).
    *See* "About ORBCOMM" *available at* <http://www.orbcomm.com/>
    wwwroot/public/about/who.html (last visited Mar. 1, 2006).

[^50]: *See infra* paras. 21-25, 34-35, 39-41.

[^51]: *See infra* paras. 26-33.

[^52]: For example, by the possibility of defining the radiofrequency
    environment in terms of maximum allowable output, we may accommodate
    the unlicensed uses in the band in a manner that would be superior
    to the current M-LMS operational restrictions. *See infra* paras.
    26-33.

[^53]: Note US218 to the U.S. Table of Allocations provides that the
    902-928 MHz band is available for LMS provided that LMS systems do
    not cause harmful interference to federal stations, and that they
    tolerate interference from ISM devices and federal stations in the
    band. *See* 47 C.F.R. § 2.106 n.US218.

[^54]: *See, e.g*., 47 C.F.R. § 90.155(d), (e).

[^55]: *See supra* note 1. In this regard, we only seek comment on
    non-Part 90 rule changes that relate to M-LMS operations in the
    M-LMS Band.

[^56]: 47 C.F.R. § 90.205(k).

[^57]: 47 C.F.R. § 15.247. In a spread spectrum system, information is
    conveyed by modulation of a carrier by some conventional means, and
    the bandwidth is deliberately widened by a spreading function over
    that which would be needed to transmit the information alone. 47
    C.F.R. § 2.1(c).

[^58]: M-LMS licensees currently may operate at 49.2 Watts, while Part
    15 devices may operate at 4 Watts, a 10.9 dB difference. *See* 47
    C.F.R. §§ 15.247, 90.205(k).

[^59]: In this regard, we note the discussion below on the possibility
    of imposing a power spectral density requirement. *See infra* paras.
    32-33. In commenting on these comparisons using reduced M-LMS power
    limits, commenters should raise and discuss minimum bandwidths or
    other appropriate methodologies underlying the degree of power
    differentials on which we seek comment.

[^60]: That is, M-LMS licensees could operate with 10 Watts EIRP as
    opposed to 4 Watts EIRP permitted for Part 15 devices -- a 4 dB
    difference.

[^61]: We note that high-powered (3500 Watts ERP) paging operations
    exist in the adjacent 929-930 MHz spectrum.

[^62]: 47 C.F.R. § 90.359.

[^63]: 47 C.F.R. § 15.247. Section 15.247 provides for the use of low
    power digital modulation RF devices (intentional radiators) on an
    unlicensed basis. *Id.*

[^64]: In accordance with Section 15.247(d) of our Rules, the output
    power of a digitally modulated Part 15 transmission is limited to 8
    dBm in any 3 kHz band. 47 C.F.R. § 15.247(d).

[^65]: 47 C.F.R. § 15.247(a)(1)(i).

[^66]: 47 C.F.R. §§ 2.1091, 2.1093 (covering the Commission's evaluation
    requirements for the radiofrequency radiation exposure of mobile and
    portable devices).

[^67]: 47 C.F.R. § 90.353(d), (f). Each spectrum block has an associated
    250 kilohertz narrowband channel.

[^68]: *See LMS Report and Order,* 10 FCC Rcd at 4722-23 ¶ 48.

[^69]: *See* *supra* para. 5.

[^70]: Frequency-hopping refers to the repeated switching of frequencies
    during a radio transmission according to a specified algorithm, to
    minimize unauthorized interception or jamming of telecommunications.
    The overall bandwidth required for frequency hopping is much wider
    than that required to transmit the same information using only one
    carrier frequency.

[^71]: *LMS Report and Order*, 10 FCC Rcd at 4715-16 ¶ 36.

[^72]: The safe harbor rule defines technical parameters involving
    antenna location, gain, and height as well as transmitter power.
    *See* 47 C.F.R § 90.361*.*

[^73]: 47 C.F.R § 90.361 (rule providing, in part, a safe harbor for
    Part 15 and amateur operations from claims of harmful interference
    by M-LMS systems operating in one of the three EA sub-bands).

[^74]: Progeny argues that the adoption of the safe harbor provision
    created an unprecedented regulatory framework where primary users
    lack the necessary assurances against harmful interference and are
    required to provide interference protection to secondary users.
    *See* Progeny Petition at 7; *id.* at 28 ("Section 90.361 . . .
    inappropriately shifted interference protection from more primary
    users in the band to secondary users. . . . \[A\] more primary user
    of the band needs assurance that its operations will not be
    interfered with by secondary users"). Progeny claims that the safe
    harbor rule allows secondary users to cause more than insignificant
    interference to the operations of primary M-LMS services. *Id.* at
    7.

[^75]: *See, e.g*., *LMS Memorandum Opinion and Order*, 12 FCC Rcd at
    13956 ¶ 32.

[^76]: *See supra* paras. 19-25.

[^77]: *Id*.

[^78]: 47 C.F.R § 90.353(d).

[^79]: *See* Progeny Petition at 27-28.

[^80]: *LMS Report and Order*, 10 FCC Rcd at 4737 ¶ 82.

[^81]: Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, *Order on
    Reconsideration*, 11 FCC Rcd 16905, 16912 ¶16 (1996).

[^82]: *LMS Memorandum Opinion and Order*, 12 FCC Rcd at 13968 ¶ 69.

[^83]: We note that parties encountering interference impacting their
    operations (but that may not be legally "harmful") may be required
    to bear the costs of, *e.g.*, employing upgraded receivers with
    tighter standards.

[^84]: *See* 44 U.S.C. § 3506(c)(4).

[^85]: 47 C.F.R. §§ 1.200 *et. seq.*

[^86]: *See* 47 C.F.R. § 1.1206(b)(2).

[^87]: 47 C.F.R. § 1.1206(b).

[^88]: 47 C.F.R. §§ 1.415, 1.419.

[^89]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    63 FR 24121 (1998).

[^90]: *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).

[^91]: *In re* The Matter of Amendment of the Commission's Part 90 Rules
    in the 904-909.75 and 919.75-928 MHz Bands, *Notice of Proposed
    Rulemaking*, WT Docket No. 06-49, FCC 06-24, (rel. Mar. 7, 2006)
    (*Notice*).

[^92]: *See* 5 U.S.C. § 603(a).

[^93]: *Id.*

[^94]: *See* 47 C.F.R § 1.411. Given the length of time that has passed
    since the Bureau issued its first Public Notice seeking comment on
    Progeny's Petition for Rulemaking, the Commission terminates RM No.
    10403 and invites interested parties to submit new and/or updated
    comments and reply comments in WT Docket No. 06-49. *See* "Wireless
    Telecommunications Bureau Seeks Comment on Petition for Rulemaking
    Regarding Location and Monitoring Service Rules,\" *Public Notice*,
    17 FCC Rcd 6438 (2002); *see also* \"Wireless Telecommunications
    Bureau Extends Comment Cycle on Petition for Rulemaking Regarding
    Location and Monitoring Service Rules,\" *Public Notice*, 17 FCC Rcd
    8377 (2002) (extending the deadline for comments on the petition).

[^95]: *See* 47 C.F.R. §§ 90.351-90.365 (LMS rules).

[^96]: Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, *Report and
    Order*, 10 FCC Rcd 4695, 4698 ¶ 5 (1995) (*LMS Report and Order*).

[^97]: Teletrac operates networks in Chicago, Dallas, Detroit, Houston,
    Los Angeles and San Diego. Ituran operates a network in parts of
    Florida.

[^98]: Licensees may offer non-vehicle location service, but only if
    their system is primarily used for vehicle location monitoring.

[^99]: Otherwise, licensees are limited to store and forward
    interconnection, whereby either (1) transmissions from an object
    being monitored are stored by the M-LMS provider for later
    transmission over the PSTN, or (2) transmissions received by the
    M-LMS provider from the PSTN are stored for later transmission to
    the object being monitored. The Commission determined that store and
    forward messages delayed for at least 30 seconds would be permitted,
    and left open the possibility that a delay of less than 30 seconds
    would be acceptable.

[^100]: 5 U.S.C. § 603(b)(3).

[^101]: *Id.* at § 601(6).

[^102]: *Id.* at § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^103]: 15 U.S.C. § 632.

[^104]: *See* 47 C.F.R. § 90.1103(b)(1).

[^105]: *See id.* § 90.1103(b)(2)*.*

[^106]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    February 22, 1999.

[^107]: "Location and Monitoring Service Auction Closes, Winning Bidders
    in the Auction of 528 Multilateration Licenses in the Location and
    Monitoring Service," *Public Notice,* 14 FCC Rcd 3754 (1999)
    (*Auction 21 Winning Bidder PN*).

[^108]: "VHF Public Coast and Location and Monitoring Service Spectrum
    Auction Closes, Winning Bidders Announced," *Public Notice,* 16 FCC
    Rcd 12509 (2001) (*Auction 39 Winning Bidder PN*).

[^109]: *See Auction 21 Winning Bidder PN; see also Auction 21 Winning
    Bidder PN* at <http://wireless.fcc.gov/>
    auctions/default.htm?job=release&id=44&y=1999 (last visited Feb. 2,
    2006) (*Auction 21 Winning Bidder PN* version that includes
    Attachment A); *Auction 39 Winning Bidder PN,* 16 FCC Rcd at 12516
    (Attachment A).

[^110]: *See id*. The size status is derived from comparing the
    differential between data presented for the "gross bid" amount and
    the "net bid" amount for the licenses. A small business with a
    winning bid receives a 25 percent discount, and a very small
    business with a winning bid receives a 35 percent discount. *See* 47
    C.F.R. § 90.1103(b)(1)-(2).

[^111]: 13 C.F.R. § 121.201 (2005), NAICS code 517212.

[^112]: U.S. Census Bureau, \"Table 5 -- Employment Size of Firms for
    the United States: 2002," *2002 Economic Census, Information Series
    -- Establishment and Firm Size: 2002* (issued Nov. 2005), *available
    at* [http://www.census.gov/
    prod/ec02/ec0251sssz.pdf](http://www.census.gov/ prod/ec02/ec0251sssz.pdf)
    (last visited Jan. 26, 2006).

[^113]: *Id.*

[^114]: 13 C.F.R. § 121.201 (2005), NAICS codes 334220, 334290.

[^115]: U.S. Census Bureau, \"Table 4 - Industry Statistics by
    Employment Size: 2002," *2002 Economic Census, Industry Series -
    Manufacturing: Radio and Television Broadcasting and Wireless
    Communications Equipment Manufacturing: 2002* (issued Dec. 2004),
    *available at* <http://www.census.gov/prod/ec02/ec0231i334220t.pdf>
    (last visited Jan. 26, 2006). For these NAICS categories, the Census
    does not provide data on the number of establishments with 750 or
    fewer employees. Note also that the Census provides detailed
    employment data for "establishments," but not "firms" in these NAICS
    categories. 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 business location is an establishment, and that location
    and others may be under the common ownership of a given firm. Thus,
    the numbers given in text may reflect inflated numbers of businesses
    in this category, including the numbers of small businesses. Census
    data in this context are available only for establishments.

[^116]: *Id.*

[^117]: U.S. Census Bureau, \"Table 4 - Industry Statistics by
    Employment Size: 2002," *2002 Economic Census, Industry Series -
    Manufacturing: Other Communications Equipment Manufacturing: 2002*
    (issued Dec. 2004), *available at*
    [*http*://www.census.gov/prod/ec02/ec0231i334290t.pdf](http://www.census.gov/prod/ec02/ec0231i334290t.pdf)
    (last visited Jan. 26, 2006).

[^118]: *Id.*

[^119]: *See* 5 U.S.C. §§ 601(2), 603 (defining the term "rule" as it
    applies to the RFA and setting forth the scope of an IRFA); *id.* §
    601(3)-(6) (defining the term "small entity" and its constituent
    elements: "small business," "small organization," and "small
    government jurisdiction"); *id.* § 603 (IRFA analysis); *see also*
    47 C.F.R § 97.3(a)(1) (defining "amateur operator" as a "person
    named in an amateur operator/primary license station grant on the
    ULS consolidated licensee database to be the control operator of an
    amateur station."); *id.* § 97.3(a)(4) (defining "amateur service"
    as a "radiocommunication service ... carried out by amateurs, that
    is, duly authorized persons interested in radio technique solely
    with a personal aim and without pecuniary interest").

[^120]: 47 C.F.R § 90.353(d)-(g).

[^121]: *Id.* § 90.353(d).

[^122]: 5 U.S.C. § 603(c)(1) - (c)(4).

[^123]: *See Notice* at ¶ 2.

[^124]: 47 C.F.R § 90.353(d)-(g).