Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Matter of                  | *  | RM-9830                      |
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| EDWARDS AND KELCEY, INC.         | ** |                              |
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| Petition for Modification of     | *  |                              |
| Section 101.145                  | *) |                              |
| \-\-\--Interference to           | ** |                              |
| Geostationary Satellites from    |    |                              |
| Point-to-Point Microwave Systems | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: January 24, 2007 Released: January 25, 2007**

By the Deputy Chief, Wireless Telecommunications Bureau:

# INTRODUCTION 

In this *Memorandum Opinion and Order*, we deny a petition for
rulemaking[^1] filed by Edwards and Kelcey, Inc. ("E&K" or
Petitioner),[^2] seeking to amend Section 101.145 of the Commission\'s
rules governing the processing of applications for point-to-point
microwave licenses. For reasons discussed below, we deny the Petition.

# BACKGROUND

1.  The 5925 - 6875 MHz band is shared on a co-primary basis between
    point-to-point microwave systems and geostationary space stations in
    the fixed-satellite service respectively.[^3]  In order to minimize
    the probability of harmful interference to geostationary space
    stations, Section 101.145 of the Commission's Rules prohibits
    directional transmitting antennas utilized by fixed microwave
    stations operating in the 5925-7075 MHz band from being aimed within
    2 degrees of the geostationary satellite orbit.[^4] An exception to
    the 2 degree limitation may be made in unusual circumstances upon an
    applicant's showing, through a request for waiver, that: 1) there is
    no reasonable alternative to the transmission path proposed; 2) no
    harmful interference will occur to geostationary satellite systems;
    and 3) the maximum value of the equivalent isotropically radiated
    power (EIRP) does not exceed +47 dBW for any antenna beam directed
    within 0.5 degrees of the stationary satellite orbit, or +47 to +55
    dBW on a linear decibel scale for any antenna beam directed between
    0.5 degrees and 1.5 degrees of the stationary orbit.[^5]

2.  Generally, regulations governing the licensing of new microwave
    systems permit applicants to begin operating their systems pursuant
    to conditional authority immediately upon filing of the related
    license application.[^6]  However, if the license application
    includes a waiver request, the system may not be activated until the
    Commission approves the waiver request and related application.[^7]
    Accordingly, because an applicant for a license to operate in the
    5925 - 7075 MHz band must file a waiver request if it plans to use
    antennas pointed within 2 degrees of the orbit of a geostationary
    satellite, the applicant generally may not commence operation until
    the Commission has adjudicated its license application and
    associated waiver request.

3.  On November 17, 1999, E&K filed a petition for rulemaking seeking
    modification or elimination of the waiver procedure in Section
    101.145 set forth above.  Comments on the Petition were due on April
    7, 2000, and reply comments were due April 24, 2000.[^8] Alcatel,
    Harris, DMC, FWCC, UTC, Comsearch, AAR, and Pinnacle support E&K's
    proposal. COMSAT and PanAmSat express reservations about the change.
    HBO opposes the Petition.

4.  E&K proposes that the Commission should either: 1) require a waiver
    request only if an application proposes to exceed the EIRP limits
    specified in Section 101.145; or 2) require only an exhibit noting
    that an antenna will point within two degrees of the orbital arc and
    certifying compliance with the power limits where the application
    complies with the stated EIRP limits.  E&K contends that either of
    these simple changes does not sacrifice any continuing interference
    protection and will allow more timely system implementation for
    operations that fall within Section 101.145 but comply with the EIRP
    limits set forth in the rule. E&K argues that while the scope of the
    rule change it seeks is narrow, it will serve to "reduce application
    preparation-related expenditures, use Commission resources more
    efficiently, reduce unnecessary delays in FCC processing \[of\]
    certain applications, and facilitate more timely activation of new
    microwave systems."[^9]

5.  E&K and its supporters contend that the process of reviewing and
    granting a waiver can take several months.[^10] They claim that as
    licensees implement networks in shorter time frames, any delay
    becomes costly.[^11] Proponents claim that the need for a waiver for
    even one link in a multi-link network can slow the activation of the
    entire network and hurt competition.[^12] Petitioner argues that the
    waiver requirement is thus unnecessary and inefficient because such
    waiver requests, though routinely granted, take several months to
    process and thus delay the implementation of critical microwave
    systems.[^13]  In opposition, PanAmSat argues that as the Commission
    continues its streamlining efforts and as applications are
    increasingly processed using automated processing systems, the
    amount of time that applications remain pending at the FCC continues
    to shrink, thereby rendering the costs of the waiver application
    almost negligible.[^14] HBO argues that "\[t\]he need for more
    expeditious processing of waiver requests cannot be permitted to
    undermine the need to examine legitimate interference
    concerns."[^15]

6.  E&K and the Petition's supporters also argue that the interference
    concerns underlying the waiver requirements are based on old systems
    and therefore are, practically speaking, unjustified for current FS
    technologies.[^16] E&K asserts that the EIRP limits were established
    based on the high-powered analog microwave systems commonly used 25
    years ago;[^17] and that the digital microwave systems commonly used
    today operate with transmitter power below the low range of the EIRP
    levels (47 dBW) of the FCC's limit.[^18] Accordingly, E&K argues
    that waivers should only be required in those instances when an
    applicant proposes to exceed the EIRP specified in Section
    101.145.[^19] PanAmSat is concerned that the proposed change would
    have a "deleterious effect on sharing these bands between
    terrestrial and space-based systems."[^20] It argues that although
    the proposed rule change would not significantly impact wideband or
    saturated analog carriers in the fixed satellite service ("FSS"),
    this may not be the case for narrowband digital carriers in the
    FSS.[^21] With such systems, the uplink EIRP may be in the low 40's
    (dBW), and as satellite customers increasingly use their
    transponders in a multi-carrier mode with narrowband digital
    carriers, the potential for interference may be more
    substantial.[^22] COMSAT has observed at least one FS signal
    retransmitted through a geosynchronous satellite, and notes that new
    communication satellites have greater sensitivity and may be
    affected more significantly by potential interfering signals.[^23]

7.  HBO argues that the changes requested in the petition effectively
    eliminate two of the three requirements for the FCC to allow C-band
    microwave antennas to point within two degrees of the geostationary
    arc.[^24] HBO argues that by changing the test to look solely at
    power level of the transmission, as the petition implies, the FCC
    would be allowing potential interference with HBO and other systems
    using C-band satellite systems, even when alternative paths were
    available.[^25] HBO similarly claims that the petition confuses a
    proposed EIRP level with a guarantee that no interference will
    occur.[^26] HBO says that this position ignores the fact that
    satellite systems operate over different power levels, using
    different transmission and reception parameters and that different
    transmissions on satellite systems are more susceptible to
    interference.[^27] Thus, HBO argues that the petition has larger
    ramifications than its supporters would like to admit.[^28] Alcatel
    and NSMA respond by noting that the fixed service industry takes
    seriously its obligation to protect co-channel FSS users from
    harmful interference and that HBO has not provided any empirical
    data to prove that the proposed revision of 101.145 would lead to
    any FS interference.[^29]

# DISCUSSION

8.  The Petition before us seeks modification or elimination of the
    waiver procedure set forth in Section 101.145.  We conclude that the
    Petition should be denied because, under current circumstances,
    there does not appear to be a substantial need for a rule change.

9.  While E&K and its supporters contend that the processing time for
    waivers under Section 101.145 unnecessarily delays the operation of
    microwave systems, we note that we have taken steps to expedite our
    internal processing of such waivers. As a result, requests for
    waiver under Section 101.145 are processed at a significantly faster
    rate than they were processed at the time the Petition was filed. 
    Accordingly, we believe that delays in processing time do not
    justify modification of this rule

10. Furthermore, the Petition is deficient in that it alleges a need for
    rapid processing yet does not provide any specific examples of how
    licensees have been harmed by processing delays.  Moreover, we note
    that although applicants affected by Section 101.145 may not begin
    operating immediately on conditional authority, such applicants may
    seek an STA to operate immediately pursuant to Section 1.931 of the
    Rules.  Therefore, applicants do have some recourse if there is an
    urgent need to begin operating immediately.*** *** Because E&K has
    not established that it or other applicants have been harmed by the
    application of Section 101.145, it has not demonstrated a need for
    modification of this rule, especially where such modification could
    have a negative effect on interference protection of geostationary
    satellite systems. 

11. Section 101.145 serves the important function of providing
    interference protection to geostationary satellites.  Although E&K
    argues that the threat of interference is minimal due to the current
    low power levels utilized by microwave systems, satellite commenters
    raise concerns about the potential of the proposed rule changes to
    increase interference. No party has provided engineering studies or
    other supporting evidence to corroborate their claims.  In light of
    our conclusion that there has not been an adequate showing that a
    rule change is necessary, we need not resolve the dispute between
    the parties. Furthermore, under E&K's proposal, an applicant would
    no longer be required to demonstrate that no reasonable alternative
    exists, or that its proposed operations will not cause harmful
    interference to geostationary satellites.  Therefore, we deny the
    Petition.

# CONCLUSION AND ORDERING CLAUSES

12. We find, based on the circumstances presented , that E&K has not
    justified its proposed rule changes because it does not appear that
    there is a substantial need for the change at this time.
    Accordingly, we deny the Petition.

13. ACCORDINGLY, IT IS ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, and Section 1.401 of the
    Commission's Rules, 47 C.F.R. § 1.401, that the Petition for
    Rulemaking filed by Edwards and Kelcey, Inc. on November 17, 1999 IS
    DENIED.

14. These actions are 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
>
> Cathleen A. Massey
>
> Deputy Chief, Wireless Telecommunications Bureau

**APPENDIX**

**List of Commenters**

**[Comments]{.underline}**

Alcatel USA, Inc. (Alcatel)

Association of American Railroads (AAR)

COMSAT Corporation (COMSAT)

Comsearch

Digital Microwave Corporation (DMC)

Fixed Wireless Communications Coalition (FWCC)

Harris Corporation-Microwave Communications Division (Harris)

Home Box Office (HBO)

Pinnacle Telecom Group, LLC (Pinnacle)

United Telecom Council (UTC)

**[Reply Comments]{.underline}**

Alcatel USA, Inc.

National Spectrum Managers Association (NSMA)

PanAmSat Corporation (PanAmSat)

**[Ex Parte Comments]{.underline}**

National Spectrum Managers Association

[^1]: See Petition for Rulemaking, (filed Nov. 17, 1999) (Petition).

[^2]: E&K is a consulting and engineering firm that provides design and
    regulatory support for public and private operators of
    point-to-point microwave systems licensed pursuant to Part 101 of
    our rules. Although E&K is not an FCC licensee, it has asked the
    Commission to accept its role in support of licensees as sufficient
    standing in this matter. Petition at 1.

[^3]: 47 C.F.R. § 101.101.

[^4]: 47 C.F.R. § 101.145.

[^5]: 47 C.F.R. § 101.145(b).

[^6]: *See* 47 C.F.R. § 101.31(b) (granting applicants for new
    point-to-point microwave radio stations or modifications of existing
    stations authority to operate the proposed stations during the
    pendency of its application upon the filing of a properly completed
    application, if certain conditions are satisfied).

[^7]: 47 C.F.R. § 101.31(b)(iii).

[^8]: A list of comments, reply comments, and *ex parte* presentations
    is contained in the Appendix to this *Memorandum Opinion and Order*.

[^9]: Petition at 1-2.

[^10]: Petition at 4, Alcatel Comments at 6.

[^11]: Petition at 4.

[^12]: Petition at 5, Pinnacle Comments, Alcatel Comments, NSMA
    Comments, FWCC Comments, Harris Comments.

[^13]: Petition at 4.

[^14]: PanAmSat Reply Comments at 2.

[^15]: HBO Comments at 5.

[^16]: Petition at 5, Pinnacle Comments, Alcatel Comments, NSMA
    Comments, DMC Comments, AAR Comments.

[^17]: Petition at 5.

[^18]: Petition at 5.

[^19]: Petition at 6.

[^20]: PanAmSat Reply Comments at 1.

[^21]: PanAmSat Reply Comments at 2.

[^22]: PanAmSat Reply Comments at 2.

[^23]: COMSAT Comments at 4.

[^24]: HBO Comments at 3.

[^25]: HBO Comments at 3.

[^26]: HBO Comments at 4.

[^27]: HBO Comments at 4.

[^28]: HBO Comments at 4.

[^29]: Alcatel Reply Comments at 4, NSMA Reply Comments at 3-4.