# Before the

# Federal Communications Commission

# Washington, D.C. 20554

In the Matter of )

)

Omnipoint Request for Broadband Declaratory )

Ruling Or Waiver Concerning PCS Emission Limits )

Rule Section 24.238 )

# ORDER

**Adopted: August 3, 2000 Released: August 4, 2000**

By the Deputy Chief, Wireless Telecommunications Bureau:

1.  This Order addresses a request for declaratory ruling or waiver
    filed by Omnipoint Communications, Inc. ("Omnipoint") concerning
    Section 24.238 of the Commission's rules. For the reasons discussed
    below, we grant broadband PCS licensees a waiver of Section 24.238,
    insofar as it limits out-of-band emissions on: (1) adjacent
    contiguous frequency blocks that are separately assigned to the same
    PCS licensee, and (2) adjacent contiguous frequency blocks that are
    assigned to different PCS licensees who have entered into an
    agreement(s) concerning interference protection to the adjacent
    spectrum. This ruling does not waive the rule insofar as it provides
    out-of-band emission protections to third party licensees.

# BACKGROUND

2.  On August 12, 1999, Omnipoint filed a request for a declaratory
    ruling or waiver concerning Section 24.238 of the Commission's
    rules, which establishes limits on the power of any radio frequency
    emissions transmitted by broadband Personal Communications Service
    ("PCS") equipment outside of the licensee's assigned spectrum
    block.[^1] According to Omnipoint, in complying with Section 24.238,
    the common industry practice for operating systems employing Global
    System for Mobile Communications ("GSM") technology is to refrain
    from using two channel pairs adjacent to each spectrum block edge
    (hereinafter "band-edge channels"). Omnipoint requests a ruling or
    waiver of Section 24.238 in instances where a PCS carrier is the
    licensee of adjacent frequency blocks or where adjacent block
    licensees have reached an agreement for coordinated operations. Such
    a ruling or waiver, Omnipoint argues, would enable it to use the
    band-edge channels where it (or another licensee consenting to such
    use) holds the PCS license for an adjacent spectrum block in the
    same geographical area.

3.  On November 1, 1999, the Wireless Telecommunications Bureau
    ("Bureau") released a Public Notice[^2] requesting comment on
    Omnipoint's request and several related issues. Section 24.238 is
    designed to protect adjacent block PCS operations from harmful
    interference that could otherwise be caused by excessive out-of-band
    emissions from PCS equipment.[^3] Most commenters support
    Omnipoint's request, arguing that application of the rule is
    unnecessary in circumstances where: (1) a licensee holds contiguous
    frequency blocks, or (2) adjacent frequency block licensees
    negotiate an interference protection arrangement.[^4] GTE Wireless,
    however, urges the Commission to maintain the emission limit
    requirement under all circumstances.[^5]

    **DISCUSSION**

4.  To obtain a waiver, a party must affirmatively show (1) that the
    underlying purpose of the rule would not be served, or would be
    frustrated, by its application in a particular case, and that grant
    of the waiver would be in the public interest, or (2) that the
    unique facts and circumstances of a particular case render
    application of the rule inequitable, unduly burdensome or contrary
    to the public interest, or the applicant has no reasonable
    alternative.[^6] As detailed further below, we find that Omnipoint
    has satisfied the showing required for a waiver. We therefore grant
    broadband PCS licensees a waiver of Section 24.238, insofar as it
    limits out-of-band emissions on: (1) adjacent contiguous frequency
    blocks that are separately assigned to the same PCS licensee,
    and (2) adjacent contiguous frequency blocks that are assigned to
    different PCS licensees who have entered into an agreement(s)
    concerning interference protection to the adjacent spectrum.

5.  The Commission adopted Section 24.238 to "reduce the potential for
    harmful interference to other PCS operations as well as other radio
    services operating on spectrum outside of the PCS bands."[^7] After
    reviewing the record, the Bureau agrees with Omnipoint and
    supporting commenters that application of Section 24.238 is
    unnecessary insofar as it limits out-of-band emissions on adjacent
    contiguous frequency blocks held by the same licensee in the same
    geographic area. Indeed, the Commission's policy has been to apply
    out-of-band emission rules only to the extent necessary to protect
    operations outside of the licensee's authorized spectrum.[^8]
    Likewise, we agree that Section 24.238 is not needed to safeguard
    the operations of PCS licensees that have negotiated alternative
    interference protection arrangements. In both scenarios, we find
    that harmful interference \-- the keystone for the emission limit
    requirement \-- is not an issue, so long as third party PCS systems
    are not affected. We therefore conclude that it is in the public
    interest to grant a waiver of Section 24.238 under the circumstances
    enumerated above.[^9]

6.  We recognize the continued need to provide interference protection
    to adjacent spectrum users. Thus, except for the circumstances
    governed by the limited waiver granted herein, we affirm that PCS
    licensees must continue to use equipment that is certified as fully
    compliant with Section 24.238 in order to protect the operations of
    non-consenting PCS or other licensees. We will not require
    additional or separate equipment authorization for PCS equipment
    that is operated in accordance with the waiver granted herein.

7.  With respect to application of Section 24.238 to spectrum block
    edges created by spectrum disaggregation, we agree with commenters
    that the Commission has expressly addressed this issue and
    determined that disaggregating parties may negotiate interference
    arrangements, but must provide the necessary out-of-band emission
    protection to third party licensees.[^10] We therefore will not
    revisit this issue here.

8.  For these reasons, we find that Omnipoint has made a sufficient
    showing that grant of a waiver for PCS licensees is warranted under
    the circumstances described above. Accordingly, IT IS ORDERED that,
    pursuant to section 4(i) of the Communications Act of 1934, as
    amended, 47 U.S.C. 154(i) and section 1.925(b)(3) of the
    Commission's rules, 47 C.F.R. § 1.925(b)(3), the request for waiver
    filed by Omnipoint Communications, Inc. is GRANTED as detailed
    above.

**FEDERAL COMMUNICATIONS COMMISSION**

James D. Schlichting

Deputy Chief

Wireless Telecommunications Bureau

[^1]: 47 C.F.R. §24.238.

[^2]: Wireless Telecommunications Bureau Requests Comment on Omnipoint
    Communications, Inc. Request for Declaratory Ruling or Waiver
    Concerning PCS Emission Limits Rule § 24.238, *Public Notice*, DA
    99-2398 (rel. Nov. 1, 1999). The Bureau invited comment on the
    following related issues: (1) Should an alternative out-of-band
    emission limit (or no out-of-band emission limit) apply where the
    PCS licenses for adjacent spectrum blocks are held by the same
    licensee (or consenting licensee)? What protection should be
    afforded to non-participating PCS systems in adjacent spectrum
    blocks at the geographical boundaries of the systems?; (2) If PCS
    systems employing GSM technology were to use the band edge channels,
    would this significantly increase potential for interference to
    broadband PCS systems using other technologies?; (3) Is it possible
    to devise out-of-band emission limits that would permit broadband
    PCS systems (including those using GSM technology) to more fully
    utilize their entire assigned spectrum block, yet still provide
    adequate interference protection to adjacent spectrum users?; and
    (4) Should broadband PCS out-of-band emission limits apply to
    spectrum block edges created by spectrum disaggregation?

[^3]: Section 24.238 also limits out-of-band emissions on spectrum
    assigned to many other services as well. It is recognized however,
    that the particular situation at the heart of this request involves
    only out-of-band emissions that fall on the immediately adjacent
    spectrum and not on spectrum far removed from the channel in use.

[^4]: Omnipoint Comments at 1-2; PrimeCo Comments at 2, 5; and Sprint
    PCS Comments at 2.

[^5]: GTE Wireless Comments at 3.

[^6]: 47 C.F.R. § 1.925(b)(3). Omnipoint requested a declaratory ruling
    as an alternative. The Commission may issue a declaratory ruling
    terminating a controversy or removing an uncertainty. Because we
    find that Section 24.238 is not ambiguous, a declaratory ruling is
    not warranted.

[^7]: Amendment of the Commission's Rules to Establish New Personal
    Communications Services, *Memorandum Opinion and Order*, 9 FCC Rcd
    4957, 5032 (1994).

[^8]: Implementation of Sections 3(n) and 332 of the Communications Act,
    Third Report and Order, 9 FCC Rcd 7988, 8067-68 (1994).

[^9]: This waiver supercedes any conflicting notes on certifications
    regarding use of the license.

[^10]: Geographic Partitioning and Spectrum Disaggregation by Commercial
    Mobile Radio Services Licensees, *Report and Order*, 11 FCC Rcd
    21831, 21860 (1996).