Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. 0000137436          |
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| TRW INC.                         | ) |                              |
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| Request for Waiver of the        | * |                              |
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| Rules to Provide Fixed Satellite | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** March 2, 2001 **Released:** March 12, 2001

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

# I. INTRODUCTION

1.  In this *Memorandum Opinion and Order*, we address the waiver
    request of TRW Inc. (TRW) to provide Fixed Satellite Services (FSS)
    on certain channels in the 38.6 - 40.0 GHz band (39 GHz band).[^1]
    TRW requests waiver of all the Commission's Part 101 rules that may
    hinder the use of these frequencies for FSS.[^2] In addition, TRW
    expressly requests waiver of Section 101.147(a) note 4 of the
    Commission's Rules. For the reasons that follow, we dismiss TRW's
    waiver request.

    **II. BACKGROUND**

2.  In 1997, the Commission described an overall policy and framework
    for services to be provided in the spectrum between 36 - 51 GHz.[^3]
    The Commission recognized that due to the ubiquitous nature of some
    of the proposed services, it was unlikely that satellite and
    terrestrial systems could share the same spectrum without
    significant technical constraints on the operations of their
    systems.[^4] As a result, the Commission concluded that separate
    primary designations for satellite and terrestrial services were in
    the public interest given the technical difficulties involved in
    sharing.[^5] However, during this time period, the Commission
    indicated that further proceedings to develop service and auction
    rules would be necessary before authorizing operations.[^6] The
    Commission stated that use of these bands for satellite services
    should be addressed in those proceedings.[^7] It noted that such
    proceedings could further define the specific services to operate in
    particular bands consistent with the U.S. Table of Frequency
    Allocations (Table).[^8]

3.  Against this backdrop, TRW sought to ensure that some of the global
    spectrum allocation for FSS in the 39 GHz band remained available
    for next-generation satellite networks.[^9] Specifically, TRW
    requested an exclusive allocation of channels above 39.5 GHz for
    FSS.[^10] The Commission denied TRW's request to allocate the 39.5 -
    40.0 GHz segment of the 39 GHz band exclusively to FSS, but
    reiterated that it has the ability to modify the Table at a later
    time.[^11] However, the Commission noted that it did not intend to
    constrain a *wireless licensee's* ability to deploy satellite earth
    stations in this particular segment.[^12] In fact, the Commission
    stated that it might be possible and desirable to deploy both
    terrestrial wireless and satellite facilities.[^13]

4.  Furthermore, the Commission concluded that satellite operators would
    be free to provide service in the 39.5 - 40.0 GHz segment either
    through a license won at the 39 GHz auction, thereby becoming a
    wireless licensee, or through a post-auction arrangement with a
    winning bidder.[^14] Finally, the Commission noted that a *wireless
    licensee* seeking to provide satellite services in the 39.5 -- 40.0
    GHz segment must obtain a Part 25 license to operate earth stations
    in its Economic Area (EA).[^15] It further noted that the Part 25
    license could be sought after amendment of its Part 25 rules or upon
    a waiver of those rules.[^16] The Commission repeated that the
    wireless designated bands (including the 39 GHz band) would be
    subject to additional rulemaking proceedings that will further
    define the parameters under which additional services can operate in
    particular bands, consistent with the Table.[^17]

5.  From April 12, 2000 through May 8, 2000, the Commission conducted an
    auction of 2,450 licenses for fixed point-to-point microwave
    services (Auction No. 30) in the 39 GHz band.[^18] On May 10, 2000,
    the Wireless Telecommunications Bureau announced the winning bidders
    from Auction No. 30.[^19] TRW was the high bidder for 100 licenses
    in eleven EAs.[^20] On May 24, 2000, TRW filed its long-form
    application and waiver request for the 100 licenses seeking
    authorization to provide fixed, mobile, and FSS.[^21] WinStar
    Wireless Fiber Corp. (WinStar) filed comments concerning the waiver
    request while the Wireless Communications Association International
    (WCA) filed a petition to deny the waiver request.[^22]

6.  TRW claims that its reliance on the statements made by the
    Commission regarding satellite use in the 39 GHz band caused it to
    participate in Auction No. 30, during which it deposited a \$900,000
    down payment with the Commission and committed itself to pay
    \$2,445,000 for its 39 GHz band licenses.[^23] TRW suggests that
    under these unique and unusual circumstances, application of the
    rule would be inequitable.[^24] It also argues that a grant of its
    waiver request will be in the public interest because it will ensure
    that the 39 GHz band will be opened to non-terrestrial services,
    thereby maximizing the potential use of the band.[^25] TRW states
    that it has applied for spectrum and not for earth station
    licenses.[^26] TRW states that it filed the waiver request in order
    to ensure that Section 101.147(a) of the Commission's Rules will not
    preclude the filing of applications for earth station licenses at a
    later date.[^27] It argues that the time to seek assurance that FSS
    operations will not cause interference to any terrestrial wireless
    licensee is not now, but when it files its applications for earth
    station licenses.[^28]

7.  In June 2000, the 2000 World Radiocommunication Conference
    (WRC-2000) adopted several changes to the international Radio
    Regulations that may be adopted domestically. For operations in the
    39 GHz band, WRC-2000 established provisional power flux density
    (PFD) limits for FSS, Mobile Satellite Services and Broadcasting
    Satellite Services.[^29] The Commission will address these
    provisional PFD limits in an upcoming rulemaking.

    **III. DISCUSSION**

8.  Our review of TRW's waiver request shows that TRW failed to plead
    particular facts and circumstances that warrant grant of its waiver
    request. The applicant must plead with particularity the facts and
    circumstances which warrant a waiver.[^30] TRW submits general
    statements as the basis for grant of its waiver request. First, TRW
    seeks a waiver of the Part 101 rules that could hinder the use of
    frequencies allocated for FSS.[^31] It appears that TRW believes
    that more than one rule requires a waiver. However, TRW did not
    specify all the rules that it believes require a waiver. Failure to
    plead with particularity renders this section of the waiver request
    defective.[^32]

9.  Additionally, TRW seeks a waiver of Section 101.147(a) note 4.[^33]
    TRW argues that the Table and prior Commission decisions recognize
    that satellite use of the 39 GHz band was to be permitted.[^34]
    However, TRW believes the absence of FSS in note 4 was an
    inadvertent oversight.[^35] As a result, TRW is concerned that it is
    prohibited from operating FSS in the 39 GHz band. We disagree that
    Section 101.147(a) note 4 prohibits operation of FSS. In this
    instance, a waiver of note 4 is neither appropriate nor necessary.
    This note is merely informative. Section 101.147(a) states the
    frequencies that are available for assignment for fixed microwave
    services.[^36] Note 4 indicates that the 39 GHz band is also shared
    with fixed and mobile stations licensed in other services.[^37] This
    note does not limit the use of the 39 GHz band to fixed microwave
    services. Thus, we find that Section 101.147(a) does not preclude
    the deployment of earth stations in the future. As a result, we do
    not believe that a waiver of this rule provision is necessary.
    Accordingly, we dismiss TRW's specific waiver request.

10. We nonetheless take this opportunity to state that the relief TRW
    apparently seeks is beyond the scope of the Commission's Part 101
    rules. The Commission's Part 25 rules govern the provision of
    satellite services. In this regard, we note that further action
    under Part 25 of the Commission's rules is required for FSS earth
    stations to operate in the 39 GHz band. As noted above, the
    Commission previously stated that those bands designated for
    terrestrial wireless services will be subject to additional
    rulemaking proceedings that will further define the parameters under
    which additional services can operate in these bands consistent with
    the Table.

11. Having addressed the matter of the instant waiver request and in
    recognition of TRW's proposed services to be provided using the 39
    GHz band licenses for which it was the high bidder, we believe it
    would be prudent to amplify what is permitted under the Commission's
    Part 101 Rules. A 39 GHz band EA licensee has authorization to
    provide wireless terrestrial services within its EA(s) on its
    licensed channel(s). Upon grant of a 39 GHz band EA license, the
    licensee has exclusive operating rights on its licensed spectrum in
    its EA provided it protects incumbent operations. A 39 GHz band EA
    license authorizes the licensee to construct and operate terrestrial
    fixed stations in the specified EA.[^38] Although FSS earth station
    operations are consistent with the allocation for the 39 GHz band,
    such use has not been permitted to date because of the technical
    issues that must still be resolved. Accordingly, an entity seeking
    to provide FSS earth station operations must obtain a separate Part
    25 license to construct and operate FSS earth stations within a
    licensed EA.

12. All operations under a 39 GHz EA license, including future
    operations of any FSS earth stations, must comply with the Part 101
    rules governing the operation of the 39 GHz band.[^39] With regard
    to coordination, the same criteria as applied to terrestrial
    stations would be applied to earth stations.[^40] For example,
    adjacent EA licensees and incumbents must coordinate only their
    stations within 16 kilometers of the boundary of their areas,
    regardless of whether an earth station may require greater
    consideration.[^41] Likewise, an EA licensee (or a party it has
    reached agreement with) is not entitled to protection (vis-a-vis the
    incumbent licensee's operations) for earth stations deployed in
    areas inside the rectangular boundaries of incumbents license areas,
    even if that license area is completely or partially located inside
    the licensed EA.[^42] This requirement may necessitate locating
    earth stations away from the EA or incumbent boundaries.
    Furthermore, an EA licensee, whether providing terrestrial or FSS
    earth station operations, must demonstrate substantial service at
    the time of its license renewal.[^43] Once the Commission considers
    and adopts technical standards for terrestrial and FSS to share this
    spectrum, an EA licensee may satisfy this and any other Part 101
    build-out requirements through the operation of satellite earth
    stations.

    **IV. CONCLUSION**

13. We find that TRW has not provided a sufficient showing to justify
    grant of a waiver and that the requested rule waiver could not
    provide the relief it apparently seeks. Accordingly, we dismiss
    TRW's waiver request as defective.

    **V. ORDERING CLAUSES**

14. Accordingly, IT IS ORDERED pursuant to Sections 4(i) and 303(r) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Section 1.925(b)(3) of the Commission's Rules, 47 C.F.R.
    § 1.925(b)(3), the waiver request filed by TRW Inc. on May 24, 2000
    IS DISMISSED.

15. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131,
    0.331.

> FEDERAL COMMUNICATIONS COMMISSION
>
> D'wana R. Terry
>
> Chief, Public Safety and Private Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: TRW, Inc., FCC Form 601, Exhibit F (filed May 24, 2000) (Waiver
    Request).

[^2]: *Id*. at 1.

[^3]: Allocation and Designation of Spectrum for Fixed-Satellite
    Services in the 37.5 -- 38.5 GHz, 40.5 -- 41.5 GHz and 48.2 -- 50.2
    GHz Frequency Bands; Allocation of Spectrum to Upgrade Fixed and
    Mobile Allocations in the 40.5 -- 42.5 GHz Frequency Band,
    Allocation of Spectrum in the 46.9 --47.0 GHz Frequency Band for
    Wireless Services; and Allocation of Spectrum in the 37.0 -- 38.0
    GHz and 40.0 -- 40.5 GHz for Government Operations, IB Docket No.
    97-95, *Notice of Proposed Rulemaking*, 12 FCC Rcd 10130, 10134 ¶ 9
    (1997) (*Allocation NPRM*).

[^4]: *Id.* at 10135-10136 ¶ 12; Allocation and Designation of Spectrum
    for Fixed-Satellite Services in the 37.5 -- 38.5 GHz, 40.5 -- 41.5
    GHz and 48.2 -- 50.2 GHz Frequency Bands; Allocation of Spectrum to
    Upgrade Fixed and Mobile Allocations in the 40.5 -- 42.5 GHz
    Frequency Band, Allocation of Spectrum in the 46.9 -- 47.0 GHz
    Frequency Band for Wireless Services; and Allocation of Spectrum in
    the 37.0 -- 38.0 GHz and 40.0 -- 40.5 GHz for Government Operations,
    IB Docket No. 97-95, *Report and Order*, 13 FCC Rcd 24649, 24659
    (1998) (*Allocation R&O*).

[^5]: *Allocation R&O*, 13 FCC Rcd at 24656 ¶ 13, 24650 ¶ 18.

[^6]: *Id*. at 24668 ¶ 36. Specifically, the Commission noted that
    during proceedings to develop service, licensing and auction rules
    for the 38.6 -- 40.0 GHz band, the Commission would also address the
    relationship between terrestrial wireless services and other
    services currently sharing those allocations. *Id*. at 24651 n.4.

[^7]: *Id*. at 24651 n.4.

[^8]: *Id*. at 24668 ¶ 36; Allocation and Designation of Spectrum for
    Fixed-Satellite Services in the 37.5 -- 38.5 GHz, 40.5 -- 41.5 GHz,
    and 48.2 -- 50.2 GHz Frequency Bands; Allocation of Spectrum to
    Upgrade Fixed and Mobile Allocations in the 40.5 -- 42.5 GHz
    Frequency Band; Allocation of Spectrum in the 46.9 -- 47.0 GHz
    Frequency Band for Wireless Services; and Allocation of Spectrum in
    the 37.0 - 38.0 GHz and 40.0 -- 40.5 GHz for Government Operations,
    *Order on Reconsideration*, IB Docket No. 97-95, 15 FCC Rcd 1766,
    1772 ¶ 14 (*Allocation Order on Reconsideration*).

[^9]: Amendment of the Commission's Rules Regarding the 37.0 - 38.6 GHz
    and 38.6 - 40.0 GHz Bands, *Memorandum Opinion and Order*, ET Docket
    No. 95-183, 14 FCC Rcd 12453 ¶ 47 (*39 GHz MO&O*).

[^10]: *Id*.

[^11]: *Id*. at 12454-55 ¶ 49.

[^12]: *Id*. The Commission repeated this pronouncement in 1999. *See
    Allocation Order on Reconsideration*, 15 FCC Rcd at 1770 ¶ 9.

[^13]: *39 GHz MO&O*, 14 FCC Rcd at 12455 n.193. For example,
    terrestrial facilities may be deployed in urban areas while
    satellite facilities, particularly gateway earth stations, may be
    deployed in rural areas.

[^14]: *Allocation Order on Reconsideration*, 15 FCC Rcd at 1770 ¶ 9,
    1772 ¶ 14.

[^15]: *Id.* at 1770 n.29. Similarly, those seeking to provide satellite
    services in the 39.5 -- 40.0 GHz band who enter into post-auction
    arrangements with a winning bidder in a 39 GHz band must obtain a
    Part 25 license to operate earth stations under such agreement.

[^16]: *Id*.

[^17]: *Id*. at 1772 ¶ 14.

[^18]: 39 GHz Band Auction Closes, *Public Notice*, 15 FCC Rcd 13648,
    13648 (WTB 2000) (*Auction Closing PN*).

[^19]: *See id.*

[^20]: *Id.* at 13656-13759.

[^21]: TRW, FCC Form 601.

[^22]: WinStar Comments, filed July 31, 2000 (Comments); WCA, Petition
    to Deny, filed July 31, 2000 (Petition). At the outset, we note that
    47 C.F.R. §§ 1.925, 1.939, 1.2108 do not authorize the filing of a
    petition to deny against a waiver request. Comments may be filed in
    response to the filing of a waiver request. Because the title of a
    pleading filed by a party is not controlling as to the disposition
    of the pleading, we will consider WCA's filing as comments
    concerning the waiver request. Daniel R. Goodman, Receiver; Dr.
    Robert Chan, *Memorandum Opinion and Order and Order on
    Reconsideration*, 13 FCC Rcd 21944 (1998); Sun Over Jupiter
    Broadcasting Inc., *Order*, 8 FCC Rcd 8733 (1993).

[^23]: Waiver Request at 1-2; *see also* TRW's Consolidated Reply at 6-7
    (filed Aug. 7, 2000) (Consolidated Reply); *see* *also* *Auction
    Closing PN*, 15 FCC Rcd at 13761.

[^24]: Waiver Request at 1-2; *see also* TRW's Consolidated Reply at
    6-7.

[^25]: Waiver Request at 2.

[^26]: TRW's Consolidated Reply at 4.

[^27]: *Id.* 47 C.F.R. § 101.147(a) lists the frequencies that are
    available for fixed microwave services. Note four states that
    frequencies in this band are shared with fixed and mobile stations
    licensed in other services.

[^28]: *Id.*

[^29]: WRC-2003 will consider whether to adopt the provisional PFD
    limits permanently.

[^30]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (*WAIT
    Radio*), *aff'd*, 459 F.2d 1203 (1972) *citing Rio Grande Family
    Radio Fellowship, Inc. v. FCC*, 406 F.2d 664 (D.C. Cir. 1968).

[^31]: Waiver Request at 1.

[^32]: *WAIT Radio*, 418 F.2d at 1157; *see also* 47 C.F.R. § 1.925(a).

[^33]: Waiver Request at 1.

[^34]: *Id*.

[^35]: *Id*.

[^36]: 47 C.F.R.§ 101.147(a).

[^37]: *Id*. at note 4.

[^38]: See 47 C.F.R. § 101.149 for terms and conditions of EA licenses.

[^39]: Earth stations must also comply with 47 C.F.R. Part 25.

[^40]: Of course, if affected EA licensee(s) reach an agreement
    concerning interference matters, we would give such agreement
    deference absent interference concerns of other interested parties.

[^41]: A coordination zone occurs when a licensee locates facilities
    within 16 kilometers of the boundaries of an EA. *See* 47 C.F.R. §
    101.103(h)(4)(i)(1).

[^42]: The incumbent 39 GHz band licensee retains the exclusive right to
    use its authorized channels within its rectangular service area.
    Amendment of the Commission\'s Rules Regarding the 37.0-38.6 GHz and
    38.6-40.0 GHz Bands, ET Docket No. 95-183, *Report and Order*, 12
    FCC Rcd 18600, 186377 ¶ 79 (1997) (*39 GHz R&O*). As a result, the
    EA licensee must design its system to protect against harmful
    interference to the incumbent by complying with the Commission's
    interference protection standards. *Id*. at 18637 n.157 *citing* 47
    C.F.R. § 101.105.

[^43]: *See* *39 GHz R&O*, 12 FCC Rcd at 18623-26 ¶¶ 41-50.