Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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MEMORANDUM OPINION AND ORDER

AND

THIRD REPORT AND ORDER

**Adopted:** **April 23, 2003 Released: May 2, 2003**

By the Commission: Chairman Powell and Commissioner Martin issuing
separate statements; Commissioner Copps approving in part, concurring in
part and issuing a statement.

Table of Contents

Heading Paragraph \#

I. iNTRODUCTION 1

II\. EXECUTIVE SUMMARY 3

III\. BACKGROUND 6

IV\. MEMORANDUM OPINION AND ORDER 9

V. THIRD REPORT AND ORDER 15

A. Eligibility to Use the 4.9 GHz Band 15

B. Licensing 26

C. Fixed and Mobile Use of the 4.9 GHz Band 32

D. Frequency Utilization 37

E. Interference Issues 43

1\. U.S. Navy Operations 43

2\. Radio Astronomy Operations 45

F. Technical Rules for Mobile Equipment 47

1\. Broadband Technologies 47

2\. Power Limits 50

3\. Emission Limits 54

G. Technical Rules for Fixed Operations 55

VI\. PROCEDURAL MATTERS 58

A. Ex Parte Rules - Permit-But-Disclose Proceeding 58

B. Regulatory Flexibility Act 59

C. Paperwork Reduction Act 60

D. Ordering Clauses 61

APPENDIX A: FINAL RULES

APPENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS

APPENDIX C: GEOGRAPHIC AREAS WHERE DEPARTMENT OF DEFENSE COOPERATIVE
ENGAGEMENT CAPABILITY (CEC) WILL BE USED FOR TRAINING IN ITS HIGH POWER,
FULL BANDWIDTH MODE

APPENDIX D: List of commenters

# iNTRODUCTION 

1.  In this *Memorandum Opinion and Order and Third Report and Order*
    (*MO&O & Third R&O*), we establish licensing and service rules for
    the 4940-4990 MHz band (4.9 GHz band). In the *Second Report and
    Order and Further Notice of Proposed Rule Making* in this
    proceeding, the Commission allocated the fifty megahertz of spectrum
    in the 4.9 GHz band for fixed and mobile services (except
    aeronautical mobile service) and designated the band for use in
    support of public safety.[^1] The Commission also sought comment on
    licensing and service rules, eligibility, and other technical issues
    concerning the 4.9 GHz band.[^2] In this *MO&O and Third R&O*, we
    address petitions for reconsideration of the *Second Report and
    Order* (*Second R&O*), and adopt final rules arising from the
    proposals in the *Further* *Notice of Proposed Rule Making*
    (*FNPRM*).

2.  By this action, we seek to promote effective public safety
    communications and innovation in wireless broadband services in
    support of public safety. The rules we adopt herein represent
    another step in the Commission's ongoing efforts to develop a
    regulatory framework in which to meet the current and future public
    safety communications needs. For example, the rules for the 4.9 GHz
    band that we adopt today are intended to accommodate a variety of
    new broadband applications such as high-speed digital technologies
    and wireless local area networks for incident scene management,
    dispatch operations and vehicular operations. Today's action also
    fosters interoperability by providing a regulatory framework in
    which traditional public safety entities can pursue strategic
    partnerships with both traditional public safety entities, such as
    the Federal Government, and non-traditional public safety entities,
    such as utilities and commercial entities, in support of their
    missions regarding homeland security and protection of life and
    property.

# EXECUTIVE SUMMARY

3.  We envision that the 4.9 GHz band will be able to accommodate a
    variety of broadband applications, including technologies and
    operations requiring varying bandwidths and operations that are both
    temporary and permanent in nature. Consequently, in this *MO&O &
    Third R&O,* we endeavor to provide 4.9 GHz band licensees with the
    maximum operational flexibility practicable and to encourage
    effective and efficient utilization of the spectrum. We believe that
    our actions herein make significant strides towards ensuring that
    agencies involved in the protection of life and property possess the
    communications resources needed to successfully carry out their
    mission.

4.  In the *MO&O,* we deny petitions for reconsideration of the
    Commission's decision to prohibit aeronautical mobile operations in
    the 4.9 GHz band. We continue to believe that there is insufficient
    information demonstrating, as a general matter, that aeronautical
    mobile operations could be accommodated without adversely affecting
    radio astronomy operations. We nonetheless recognize the public
    safety community's interest in utilizing the 4.9 GHz band for
    aeronautical mobile operations and provide a mechanism whereby such
    operations could be allowed on a case-by-case basis provided that
    there is a sufficient technical showing made that the proposed
    operations would not interfere with in-band and adjacent band radio
    astronomy operations.

5.  In the *Third R&O,* we establish licensing and service rules for the
    4.9 GHz band. The major decisions we reach are as follows:

-   We limit eligibility for licensing in the 4.9 GHz band to those
    entities providing "public safety services" wherein public safety
    services are defined as services:

    \(A\) the sole or principal purpose of which is to protect the
    safety of life, health, or property;

    \(B\) that are provided­

    \(i\) by State or local government entities; or

    \(ii\) by nongovernmental organizations that are authorized by a
    government entity whose primary mission is the provision of such
    services; and

    \(C\) that are not made commercially available to the public by the
    provider.

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-   We permit broadband mobile operations, fixed hotspot use, and
    temporary fixed links on a primary basis in the band. Furthermore,
    we allow fixed point-to-point operations on a secondary basis.

-   We establish a "jurisdictional" geographical licensing approach for
    operations in the band, whereby licensees will be authorized to
    operate in those geographic areas over which they have jurisdiction
    and will be required to cooperate in use of the spectrum.

# BACKGROUND 

6.  Formerly, the 4.9 GHz band was allocated in the United States to
    Federal Government fixed and mobile services.[^3] The band has been
    used for fixed services such as conventional point-to-point
    microwave, tactical radio relay, and high power tropospheric scatter
    systems, and for mobile services such as control of remote piloted
    vehicles, video and data telemetry links, target drone control
    links, fleet defense systems, and tethered aerostat systems.[^4]

7.  The 4.9 GHz band was transferred from Federal Government to
    non-Government use in 1999, in accordance with the provisions of the
    Omnibus Budget Reconciliation Act.[^5] In 2000, the Commission
    released a *Notice of Proposed Rulemaking* (*First NPRM*) proposing
    to allocate the 4.9 GHz band to non-Government fixed and mobile
    services, excluding aeronautical mobile service, on a co-primary
    basis and to allow for flexible use of the band.[^6] The Commission
    also tentatively concluded not to designate the band to public
    safety use.[^7] The *Second R&O* adopted the fixed and mobile
    allocation proposal.[^8] However, the Commission also concluded that
    the public interest would be best served by designating the 4.9 GHz
    band for use in support of public safety. Numerous state, county,
    local government and national public safety associations
    persuasively argued that a public safety designation would enable
    responders to carry out critical and urgent missions more
    effectively, and would provide a safer environment for emergency
    responders.[^9] Further, the Commission believed that such an
    approach would be in furtherance of its statutory obligation to
    oversee wire and radio communications "for the purpose of promoting
    safety of life and property through the use of wire and radio
    communication."[^10]

8.  In the *FNPRM*, released concurrently with the *Second R&O*, the
    Commission sought comment on the establishment of licensing and
    service rules for the 4.9 GHz band. In this connection, the
    Commission sought comment on defining eligibility to use the band,
    and developing a record on specific segmentation or channeling plans
    for use of the band.[^11] Further, it requested comment on the
    impact of adjacent band U.S. Navy operations on operations in the
    4.9 GHz band, as well as suggestions on how to utilize the band in a
    manner that would not interfere with adjacent band radio astronomy
    operations.[^12]

# MEMORANDUM OPINION AND ORDER

9.  The Commission's allocation of the 4.9 GHz band to fixed and mobile
    services specifically excluded aeronautical mobile service.[^13] The
    Commission reasoned that such exclusion was necessary in order to
    protect radio astronomy observations in this band.[^14] The Los
    Angeles County Sheriff's Department (LASD) and Microwave Radio
    Communications (MRC) (collectively "Petitioners") seek
    reconsideration of the Commission's decision to prohibit
    aeronautical mobile uses in the 4.9 GHz band.[^15] They state that
    pubic safety organizations have a significant need for airborne and
    land mobile video transmitters,[^16] and in particular, for
    helicopter video downlink capabilities.[^17] Cornell University,
    which operates the world's largest single dish radio telescope in
    Arecibo, Puerto Rico, and the National Academy of Sciences (NAS),
    oppose the LASD and MRC Petitions due to their concern that radio
    astronomy equipment is extremely vulnerable to interference from
    unwanted emissions.[^18]

10. In response to the LASD and MRC Petitions, we now revisit our
    determination to prohibit aeronautical mobile uses in the 4.9 GHz
    band. Based on the record before us, we can not conclude, as a
    general matter, that aeronautical mobile uses can be conducted in
    the 4.9 GHz band without adversely affecting radio astronomy
    operations that are entitled to protection. In this regard, we note
    that the transfer of this spectrum from Federal Government to
    non-Government use was conditioned on excluding air-to-ground or
    space-to-Earth links from the entire 4.9 GHz band in order to
    protect radio astronomy operations in the 4950-4990 MHz sub-band and
    the upper adjacent 4990-5000 MHz band.[^19] Consequently, in the
    *Second R&*O, the Commission decided to prohibit aeronautical mobile
    operations in the 4.9 GHz band because the record did not contain a
    sufficient demonstration that such services could operate while
    protecting these radio astronomy operations.[^20]

11. We continue to have concerns about permitting aeronautical mobile
    operations in the 4.9 GHz band. To adopt a general rule, we would
    have to assume a scenario where the intended airborne operations
    would be in close enough proximity to interfere with radio astronomy
    operations. MRC posits that a significant portion of the
    interference potential can be addressed through the use of
    directional antennas on helicopters.[^21] MRC also suggests that use
    of a directional antenna would need to be coupled with geographic
    and altitude limitations. According to NAS, there is no single
    geographic separation distance that would properly protect each of
    its sites.[^22] Weighing all of these factors, we do not believe
    that we could fashion a general rule that would adequately protect
    radio astronomy operations in all scenarios. We also are concerned
    that any general rule would be so restrictive as to limit the
    utility of pursuing aeronautical mobile operations in the 4.9 GHz
    band. Thus, we decline to permit aeronautical mobile operations
    generally in this band. We believe that this approach is consistent
    with Footnotes US257[^23] and S5.149.[^24] Finally, we must take
    into consideration the number of public safety entities that would
    likely employ video from helicopters. If the number is limited, as
    the record suggests, a case-by-case approach may be more
    appropriate.[^25]

12. We nonetheless recognize that airborne use, and, in particular,
    video transmissions from helicopters could assist public safety
    entities in performing their critical missions. Further, to the
    extent, that we could establish a regulatory framework that could
    accommodate such uses without jeopardizing radio astronomy
    operations, we believe that doing so would be consistent with the
    Commission's goal of supporting homeland security. We, however, are
    mindful of our obligation to protect radio astronomy operations. 
    After reviewing the record in this proceeding and balancing the
    competing interests, we believe we should provide a mechanism by
    which entities licensed in the 4.9 GHz band could obtain authority
    to conduct airborne operations in the 4.9 GHz band. At this time, we
    believe the most appropriate and prudent approach would be to review
    these requests on a case-by-case basis through our waiver process.
    We believe that this approach is warranted in this context for two
    reasons. First, the relatively small number of commenters who filed
    comments in support of the Petitions suggests that there is limited
    interest in pursuing such operations, thus a case-by-case approach
    would not require significant Commission resources.[^26] Second, the
    record suggests that there may be certain contexts where
    aeronautical mobile operations can be conducted while protecting
    radio astronomy operations.[^27]

13. Thus, an entity seeking to use the band for airborne operations must
    file a waiver request attached to an application to modify its
    license authorizing it to use the 4.9 GHz band generally[^28] to
    also authorize airborne operations. The waiver request should
    provide all the technical parameters of the proposed operation and
    should include a technical showing, using established criteria,[^29]
    demonstrating that the proposed operations will not cause
    interference to any radio astronomy operations. Any such request
    must also demonstrate how the intended airborne operations will
    protect other 4.9 GHz band operations.[^30] We plan to coordinate
    any requests for airborne operations with the National
    Telecommunication and Information Administration (NTIA) prior to
    taking action on such requests.[^31] We delegate authority to the
    Wireless Telecommunications Bureau and the Office of Engineering and
    Technology to act on such requests.

14. Finally, we deny MRC's alternative request for "clarification" that
    Section 90.423 of our Rules[^32] "permits airborne use of the
    4940-4990 MHz band from low flying aircraft."[^33] While Section
    90.423(a) allows for some aeronautical uses under certain
    circumstances,[^34] it specifically allows for such uses "except as
    may be provided in other sections of this part with respect to
    operation on specific frequencies."[^35] Thus, Section 90.423 does
    not trump express prohibitions on aeronautical operations contained
    elsewhere in our rules. Because our final rules expressly prohibit
    aeronautical mobile operations,[^36] Section 90.423 will not permit
    such use as requested by MRC.

#  THIRD REPORT AND ORDER

## Eligibility to Use the 4.9 GHz Band

15. *Background.* In the *FNPRM,* the Commission sought comment on
    whether eligibility to use the 4.9 GHz band should be limited to
    traditional public safety entities,[^37] or whether eligibility
    should be expanded to include additional entities involved in the
    provision of other public safety-related services.[^38] The
    Commission also sought comment on whether to allow commercial
    operations in the band.[^39] Finally, the Commission sought comment
    on whether Federal Government entities should be able to use this
    spectrum.[^40]

16. *Discussion.* After reviewing the record in this proceeding, we
    conclude that the eligibility criteria for use of the 4.9 GHz band
    should ensure that the band will be used for communications in
    support of public safety operations. We also believe that such
    criteria should be sufficiently flexible to provide a variety of
    entities access to the 4.9 GHz band, particularly if allowing such
    entities access would increase the effectiveness of public safety
    communications, foster interoperability and further ongoing and
    future homeland security initiatives. We believe that these
    objectives will be best accomplished by basing the eligibility
    criteria on the "public safety services" definition implemented by
    Section 90.523 of our rules.[^41] Under this definition, "public
    safety services" are services---

    \(A\) the sole or principal purpose of which is to protect the
    safety of life, health, or property;

    \(B\) that are provided­

    \(i\) by State or local government entities; or

    \(ii\) by nongovernmental organizations that are authorized by a
    government entity whose primary mission is the provision of such
    services; and

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(C) that are not made commercially available to the public by the
    provider.[^42]

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17. When the Commission enacted Section 90.523, it adopted a
    three-pronged test to determine eligibility: (1) purpose of use; (2)
    identity of licensee; and (3) compliance with noncommercial
    *proviso*.[^43] The purpose of the spectrum use must be for services
    the sole or principal purpose of which is to protect the safety of
    life, health, or property.[^44] With regard to the identity of the
    licensee, all state or local governmental entities are included in
    this definition.[^45] Nongovernmental organizations are eligible if
    approved by a state or local government entity whose mission is the
    oversight of or provision of public safety services.[^46] Section
    90.523(b) requires that nongovernmental organizations (NGOs) obtain
    written approval from the governmental entity having jurisdiction
    over the area to be served.[^47] The Commission did not attempt to
    delineate every type of nongovernmental organization that would be
    eligible, because "there are countless variations on how NGO use
    might present itself among states and localities nationwide. We
    believe that the certification from one of our licensees provides a
    reasonable measure of confidence that the NGO has received
    authorization from a governmental entity that is appropriate under
    the circumstances."[^48] However, it indicated that entities such as
    utilities and pipelines were examples of potential NGO
    licensees.[^49] Finally, under the noncommercial *proviso*,
    commercial entities are not disqualified *per se* by their
    commercial status,[^50] but entities are not eligible for licensing
    in the context of public safety services that they make commercially
    available to the public,[^51] including the provision of public
    safety radio service to public safety subscribers for a fee.[^52]

18. The record establishes a dedicated need for the 4.9 GHz band to
    support public safety operations as traditionally defined.[^53] As
    the Commission noted in the *Second R&O*, the public safety
    community consistently states that because its uses primarily
    involve emergency situations, it needs dedicated spectrum that will
    be reliably available without delay.[^54] We note that the
    propagation characteristics of this spectrum and small service
    contours for mobile units equate to good reuse capabilities in the
    band.[^55] Nonetheless, the interest of some utility commenters in
    using the 4.9 GHz band for day-to-day broadband data and video
    maintenance and repair activities[^56] raises public safety concerns
    about prospective congestion due to significant non-emergency
    use.[^57] Furthermore, given that we anticipate that the band will
    be used for data and other broadband purposes that could utilize as
    much as 20 megahertz of spectrum per transmission,[^58] expanded
    eligibility would lead to congestion in the band, hence increasing
    the possibility of interference to mission-critical operations,
    particularly in urban areas.[^59]

19. We therefore must balance the competing interests for access to the
    4.9 GHz band. In the first instance, we are persuaded that it is
    critical that traditional public safety entities have immediate and
    reliable access to the spectrum. Moreover, after reviewing the
    comments submitted by public safety officials and considering the
    various uses that will be permitted in the band,[^60] we are now
    persuaded that there will be considerable activity in the band, even
    with a user pool primarily limited to traditional public safety
    entities. In addition, we believe that traditional public safety
    entities are better poised to be most knowledgeable about other
    users and/or uses that would be supportive of public safety
    operations. In this regard, we reject the possibility, posed in the
    *FNPRM*, of somehow dividing the 4.9 GHz band and granting licenses
    to non-traditional public safety entities on a partial or restricted
    basis.[^61] Atheros Communications, Inc. (Atheros) asserts that
    certain new technologies could permit multiple classes of users,
    including public safety entities, critical infrastructure and
    commercial entities to all share use of the 4.9 GHz band without
    hindering public safety communications.[^62] Under this approach, an
    entity's license would determine the priority level at which an
    entity could contend for access to the spectrum, and whenever higher
    priority level traffic requires spectrum, radios operating at a
    lower priority level would not be capable of transmitting.[^63] We
    note, however, that there is disagreement as to whether such
    technology will be sufficient to serve multiple public safety
    services in the presence of non-public safety entity users.[^64]
    Furthermore, we share the Public Safety Wireless Network's (PSWN)
    concern that any malfunction of these technologies could put
    critical public safety communications at risk, thereby jeopardizing
    lives and property.[^65] The risks inherent in relying on these
    technologies to ensure that public safety entities enjoy unhindered
    coverage are simply not outweighed by the benefits of expanding the
    eligibility pool for the band.

20. For the same reasons, we decline to license commercial uses of this
    spectrum. Commenters were largely opposed to commercial operations
    in the band on the basis that commercial uses would increase the
    likelihood of harmful interference to public safety missions vital
    to the safety of life and property.[^66] To the extent that
    expanding eligibility may have the benefit of reducing equipment
    costs[^67] or maximizing spectrum usage, we believe that such
    benefits are outweighed by the potential for public safety entities
    not being able to gain immediate access to or experience
    interference to their operations in the band. Furthermore, we note
    that the broadband technologies that will most likely be used in the
    band are already in use in the nearby unlicensed 5 GHz consumer band
    (U-NII band), thereby facilitating equipment economies of
    scale.[^68] Thus, we conclude that the eligibility criteria for
    licensing of the 4.9 GHz band should be limited to entities
    providing public safety services as defined in Section 90.523 of the
    Commission's Rules.

21. Similarly, we do not believe that permitting unlicensed commercial
    uses pursuant to Part 15 of our rules is an appropriate mechanism
    for increasing access to the spectrum in this context. We
    acknowledge that Part 15 permits similar use of broadband
    technologies in the nearby 5725-5850 MHz band,[^69] and that
    permitting such use could increase spectral efficiency. However, we
    conclude that the low power limits adopted for 4.9 GHz devices to
    promote frequency reuse result in susceptibility to interference
    from uncoordinated users. Because public safety devices may be
    operating with peak transmit powers as low as 100 mW,[^70] we
    believe that the 1 watt power level authorized for Part 15 devices
    would cause undue interference to public safety operations.
    Moreover, the lack of identifiable users would hinder efforts to
    resolve interference problems. This could have tragic consequences
    to public safety operations. Therefore, we decline to permit
    unlicensed Part 15 operations in this band.[^71]

22. We will, however, endeavor to increase spectrum utilization and
    enhance equipment economies of scale by allowing public safety
    entities to enter into sharing agreements or other arrangements with
    entities performing operations in support of public safety. As noted
    in the *FNPRM*, utilities, railroads, and similar entities may be
    directly involved in an emergency and may need to interact with the
    traditional public safety service providers.[^72] In addition, many
    public safety commenters acknowledged the importance of
    interoperability with such entities during both times of emergency
    and non-emergency and seek the authority to delegate access to the
    4.9 GHz band to such entities as needed.[^73] As the Commission has
    noted previously in a separate proceeding, although the primary
    function of certain organizations, such as the power, petroleum, and
    railroad industries,

    is not necessarily to provide public safety services, the nature of
    their day-to-day operations provides little or no margin for error
    and in emergencies they can take on an almost quasi-public safety
    function. Any failure in their ability to communicate by radio could
    have severe consequences on the public welfare.[^74]

    Therefore, we conclude that permitting 4.9 GHz licensees to enter
    into sharing arrangements with entities not eligible for their own
    licenses is in the public interest. We will not place any limitation
    on what type of entity may be a party to such sharing arrangements;
    rather, we afford traditional public safety providers that are
    licensed in the 4.9 GHz band flexibility to exercise their
    discretion regarding what entities in their jurisdiction operate in
    support of public safety.

23. We will, however, require that the use of the 4.9 GHz band by
    entities other than traditional public safety entities (both
    entities with licenses obtained pursuant to a governmental entity's
    written approval, and non-licensed participants in sharing
    arrangements) be in support of public safety. We encourage public
    safety entities to explore strategic partnerships, but we emphasize
    that the object of such arrangements must be to improve public
    safety communications, rather than the expansion of non-public
    safety systems. We will not at this time attempt to definitively
    categorize various communications as public safety or non-public
    safety. In this regard, we believe that a bright-line distinction
    would be difficult to draw and might unduly inhibit use of the
    subject spectrum that could benefit the public welfare. We believe
    that traditional public safety licensees will be in the best
    position to determine whether certain sharing arrangements would
    benefit their public safety communications. Nonetheless, we
    reiterate that the non-public safety entity's use of the 4.9 GHz
    band must be in support of public safety, and that communications
    with no nexus to the safety of life, health, or property are not
    permitted in the 4.9 GHz band.

24. We are optimistic that the mutual need for interaction will foster
    cooperation and sharing arrangements, and we encourage state and
    local public safety organizations to work with critical
    infrastructure industry to ensure that in times of crisis they too
    have access to this critical spectrum resource. We believe the
    facilitation of such arrangements by the rules we adopt today will
    be in the public interest and result in the most efficient and
    flexible use of the 4.9 GHz band. Such arrangements will allow
    public safety entities to retain primary control of the band while
    facilitating useful strategic partnerships and cooperation. This
    should encourage spectrum efficiencies while allowing public safety
    entities to utilize wireless broadband applications in a regulatory
    environment in which they have reliable and immediate access to the
    4.9 GHz band.

25. Similarly, we adopt the proposal in the *FNPRM* to permit Federal
    Government entities to enter into sharing agreements with public
    safety licensees to use this spectrum.[^75] The Commission noted
    that although it does not license Federal Government entities to use
    non-Government spectrum, Federal agencies play a vital role in
    providing public safety related services to the American
    people.[^76] We continue to believe that both Federal Government and
    non-Government public safety entities are potential participants in
    incident-scene emergency operations, and could benefit from the same
    broadband communications technologies contemplated for this band.
    Additionally, all comments on this subject were in favor of sharing
    agreements between licensees and Federal Government users.[^77]
    Therefore, we will permit licensees to enter into agreements with
    Federal entities to use the 4.9 GHz band.[^78]

## Licensing

26. *Background.* In the *FNPRM*, the Commission sought comment on
    licensing schemes for the 4.9 GHz band.[^79] Specifically, the
    Commission set forth some advantages and disadvantages of several
    licensing schemes, and asked commenters to address whether it should
    implement one of those approaches.[^80] It also sought alternative
    proposals.[^81]

27. *Discussion.* Upon consideration of the characteristics of the 4.9
    GHz band and the contemplated uses thereof, we agree with the
    Association of Public Safety Officials-International (APCO) and the
    National Public Safety Telecommunications Council (NPSTC)[^82] that
    a geographic licensing scheme based on a public safety entity's
    legal jurisdictional area of operation is most appropriate for all
    operations in the band, with the exception of fixed point-to-point
    operations. Pursuant to this approach, an entity that meets the
    eligibility criteria discussed above could seek a non-exclusive
    license to operate in the geographical area encompassed by its
    political boundaries or jurisdiction, or the jurisdiction of the
    governmental entity authorizing a non-governmental entity.[^83] The
    jurisdictional areas will include all states, counties, cities,
    towns, municipalities, etc., and will encompass every geographical
    area that has an established public safety entity. Licensees will be
    authorized to utilize the entire fifty megahertz of the 4.9 GHz band
    spectrum within their jurisdictions. Additionally, licensees
    choosing to employ fixed point-to-point operations in the band will
    be required to obtain a separate individual license for each station
    of operation. Licenses will be available immediately upon
    effectiveness of the applicable rules established herein.[^84]

28. Under the licensing scheme we adopt today, all frequencies will be
    shared among licensees, and adjacent and co-located licensees are
    required to cooperate and coordinate in use of the spectrum. We note
    that many public safety agencies already have procedures or
    protocols in place with nearby jurisdictions to govern frequency
    sharing during situations requiring joint operations.[^85] We
    believe that the decisions made herein, including the authorization
    of sharing arrangements, permitting licensees to use the entire
    spectrum, frequency utilization procedures,[^86] low power limits,
    and the nature of public safety operations in general will all
    facilitate this sharing requirement.[^87] We also note that all 4.9
    GHz band licensees and users will be bound by Section 90.173(b) of
    our rules, which requires applicants and licensees to cooperate in
    the selection and use of frequencies so as to reduce interference
    and maximize effective use of authorized facilities.[^88] Licensees
    of stations suffering or causing harmful interference are expected
    to cooperate and resolve this problem by mutually satisfactory
    arrangements.[^89]

29. For similar reasons, we disagree with those commenters[^90] that
    favor authorization by rule without individual licensing (i.e.
    blanket licensing).[^91] We agree with commenters such as APCO and
    Cinergy Corporation and Consumers Energy Company (Cinergy &
    Consumers) that public safety entities require the certainty
    provided by a coordination process, and that having named licensees
    is essential to enable users to cooperate with each other as
    discussed above.[^92] As Cinergy & Consumers point out, "public
    safety entities should not be required to conduct their critical
    communications on unlicensed spectrum that is subject to
    interference from other licensed or unlicensed devices\...."[^93]

30. We also disagree with commenters that a state licensing scheme[^94]
    would be advantageous here.[^95] Given the short range of 4.9 GHz
    band operations, we do not see any benefit to requiring state
    governments to oversee the operations of all potential users in the
    band. Nor do we see a need to impose an additional layer of
    regulation for licensees.[^96] Therefore, we decline to mandate any
    further state involvement.

31. Lastly, we note that the U.S. Government currently does not have an
    agreement with the governments of Canada and Mexico for the current
    use of the 4940-4990 MHz frequency band along the border regions.
    However, we note that licensees may be subject to future treaties or
    agreements between the U.S. and other countries for use in the
    border regions pursuant to Section 1.923(f) of the Commission's
    Rules. Until such time, licensees near the border must protect
    stations in Canada and Mexico.

## Fixed and Mobile Use of the 4.9 GHz Band

32. *Background.* In the *Second R&O*, the Commission allocated the 4.9
    GHz band for both fixed and non-aeronautical mobile operations.[^97]
    Although commenters to the *First NPRM* advocated only the use of
    spectrally-efficient low-power wireless portable or mobile broadband
    technologies in the 4.9 GHz band, the Commission expressed concern
    that prohibiting fixed uses in the band would restrict licensee
    flexibility and could prohibit future technologies that could
    benefit public safety.[^98] Mobile broadband technologies envisioned
    for the band were intended for short-range communications that would
    allow for reuse of the spectrum at nearby locations.[^99] The
    Commission sought comment on how to prevent a spectrally-inefficient
    allocation of the band.[^100] The Commission also sought comment on
    which rule part(s) should contain the licensing and service rules
    governing the 4.9 GHz band.[^101]

33. *Discussion.* In addition to the broadband mobile services the
    Commission originally contemplated for the band, we will permit "hot
    spot" operations, *i.e.*, automatic high speed file transfers from
    "hot spots" to mobile units, such as transfers of maps, building
    layouts, emergency medical service files, and wanted or missing
    person images. Additionally, we will permit operation of temporary
    fixed links (*i.e.* operations lasting one year or less[^102]) in
    the 4.9 GHz band, which will provide public safety entities with an
    additional tool for responding to emergency situations. Commenters
    expressed overwhelming support for such uses, noting a need for
    spectrum to support short-term fixed facilities set up for large
    scale or high impact public safety situations.[^103] We believe
    these actions will promote spectrum utilization and spectrum
    efficiency in the 4.9 GHz band.

34. Moreover, we will permit traditional, fixed point-to-point microwave
    operations on a secondary basis.[^104] Such operations could support
    backhaul or backbone communications links. We agree with DCCTO that
    public safety entities should be empowered to manage their own use
    of the spectrum,[^105] and believe that each user should have
    maximum autonomy to use the spectrum as suits its particular needs.
    For example, we expect that in rural areas, there may be a greater
    need for public safety operations covering larger distances. On the
    other hand, public safety officials in larger cities may have a
    greater need for mobile and hot spot uses. Allowing users to
    customize use of the band to suit their individual needs yields
    optimal user flexibility as well as spectral efficiency. We believe
    that permitting such operations only on a non-interference basis
    addresses the concerns of those commenters[^106] who opposed such
    operations on the grounds that traditional or backhaul microwave
    operations would exhaust available frequencies and relegate safety
    operations to unlicensed bands that are shared with other
    uses.[^107]

35. We also believe that the permitted uses are appropriate in light of
    the licensing scheme that will be implemented for the band. As
    stated above, each license will cover a particular licensee's
    geographic jurisdiction. In the event of overlapping jurisdictions,
    mutual cooperation among licensees should prevent interference
    before it occurs. That is, we expect that licensees will coordinate
    their uses with one another in overlapping and adjacent
    jurisdictions, and that such coordination may yield an outcome where
    fixed uses can be accommodated. Furthermore, relegating traditional
    fixed uses to secondary status will further help to ensure that the
    mobile uses are not subsumed by traditional microwave operations.

36. Finally, we agree with Atheros and MRC that the regulations for all
    operations in the 4.9 GHz band should be contained in Part 90 of our
    Rules.[^108] Inasmuch as the uses envisioned for the band are
    largely mobile in nature, we believe that the service is properly
    regulated with other land mobile services. As MRC points out,[^109]
    Part 90 already covers the use of mobile portable frequencies by
    public safety entities.[^110] Moreover, to the extent that fixed
    uses will be permitted in the band, we note that Part 90 also
    contains provisions for fixed transmitters.[^111] Thus, Part 90 is
    the most appropriate rule part in which to regulate the 4.9 GHz
    band.

## Frequency Utilization

37. *Background.* In the *FNPRM*, the Commission sought comment on the
    appropriate channel plan for the fifty megahertz of spectrum in the
    4.9 GHz band.[^112] It sought comment on various plans proposed in
    response to the *First NPRM*, and solicited alternative plans.[^113]
    The Commission also asked whether, in the event fixed operations
    were permitted in the band, some specific portion of the spectrum
    should be designated for fixed operations.[^114]

38. *Discussion.* After reviewing the record in this proceeding, we
    believe that adopting a frequency utilization plan will be
    beneficial from an operational perspective, and will not unduly
    restrict the flexibility of 4.9 GHz band licensees and users. As
    stated above, licensees will be authorized to operate on the entire
    50 megahertz of spectrum that comprises the 4.9 GHz band.[^115]
    Adopting a frequency utilization plan will facilitate spectrum
    sharing by confining individual transmissions to specific
    frequencies thereby leaving other frequencies open for simultaneous
    transmissions.[^116]

39. The frequency utilization plan will consist of ten one-megahertz
    channels and eight five-megahertz channels that can be combined to a
    maximum of twenty megahertz, which provides users with maximum
    flexibility to employ existing technologies, while leaving the door
    open for the implementation of future broadband technologies in the
    band.[^117] The one megahertz channels will be useful for narrow
    bandwidth operations such as slow scan short-term video surveillance
    where broadcast quality signals are unnecessary. Further, use of the
    narrow channels, where possible, will help to preserve battery life
    and support denser deployments.[^118] On the other hand, for
    wireless local area network (WLAN)[^119] and personal area network
    (PAN)[^120] uses where a higher bandwidth will be required, channels
    can be combined to meet those requirements. In this regard, we would
    expect licensees who employ wideband systems (i.e. more than 5
    megahertz) to utilize the wider (5 MHz) channels first, rather than
    combining the one megahertz channels. Furthermore, we note that the
    use of smaller channels that can be combined into a number of
    different combinations accommodates the requests of different
    commenters. For example, MRC seeks nine or ten megahertz
    channels,[^121] while others seek a configuration of twenty to
    twenty-five megahertz channels.[^122] Thus, we believe that the
    combination of adopting smaller channels and permitting aggregation
    results in a plan that best addresses commenter concerns for present
    and future applications. Furthermore, inasmuch as permanent
    point-to-point operations will be secondary in the band, we find it
    unnecessary to designate a specific portion of the band for fixed
    operations. Unlike an exclusive licensing context where the
    Commission has utilized channelization as a licensing tool, we use
    channels in this context to serve a different purpose. Specifically,
    we are establishing channels in this shared spectrum environment as
    an effective first step to minimize interference.

40. In addition, we believe that the use of channels here will also
    simplify coordination, which will be mandatory amongst users in the
    same geographic area. Along these lines, we agree with
    commenters[^123] who favor the use of regional planning
    committees.[^124] APCO believes that such an approach would
    encourage coordination, increase responsiveness to the unique local
    needs of the public safety community, and establish procedures for
    emergency scene coordination.[^125] Motorola agrees with APCO that,
    because public safety agencies nationwide have coordination
    procedures in place, local coordination in the band will not be
    unduly burdensome.[^126] We agree. Accordingly, we will require that
    within six months of the effective date of the rules adopted herein,
    the 700 MHz band regional planning committees (RPCs) must have a
    meeting for the express purpose of initiating consideration of
    coordination procedures for the 4.9 GHz band.[^127] Within twelve
    months of the effective date of the rules adopted herein, each RPC
    must provide the FCC with a copy of its plan. The plan should
    identify coordination procedures for both fixed and mobile
    operations, including but not limited to, mechanisms for incident
    management protocols, interference avoidance and interoperability.
    We envision that such plan could be done either on a regional basis
    or on a national basis through industry formulation of a best
    practices coordination plan. We also believe that any coordination
    plan for the 4.9 GHz band should contain express procedures
    affording specific flexibility to accommodate dynamic spectrum
    utilization in response to immediate public safety communications
    needs.

41. We believe that the combination of our frequency utilization plan
    and use of the RPCs as described above will facilitate effective
    coordination of operations in the band. We note that planning
    committees may do very well in urban areas where there are numerous
    public safety jurisdictions within a given area, whereas in rural
    areas, where there is further distance between public safety
    jurisdictions, less formal procedures may accomplish the same
    coordination goals. Additionally, with regard to emergency and
    incident scenes, we expect that RPCs will establish procedures to
    allow an incident commander to take control of emergency operations,
    including communications issues, consistent with procedures
    established by adjacent and overlapping jurisdictions.

42. We also recognize that there may be instances in which a 700 MHz RPC
    may be unable to perform the aforementioned functions either due to
    resource or time constraints. Thus, we believe the prudent course of
    action is to implement a default coordination obligation in the
    event an RPC fails to meet either of the deadlines specified above.
    Specifically, in those circumstances, 4.9 GHz band licensees must
    cooperate in the sharing of the 4.9 GHz band and coordinate their
    4.9 GHz operations on an *ad hoc* basis. As we have already noted,
    all such licensees are under a continuing obligation to cooperate in
    the selection and use of 4.9 GHz frequencies.[^128] Moreover, we
    also note that in the event a 700 MHz RPC does not establish a plan
    governing coordination procedures, 4.9 GHz band licensees would not
    be precluded from voluntarily establishing a local 4.9 GHz planning
    committee, appointing one or more band managers or other
    coordinator(s), or implementing other procedures to facilitate
    effective coordination of operations in the band.

## Interference Issues

### U.S. Navy Operations

43. *Background.* The Commission noted in the *FNPRM* that the U.S. Navy
    conducts Cooperative Engagement Capability (CEC) operations in nine
    training areas in the band immediately below the 4.9 GHz band, and
    that the Navy\'s CEC system, particularly its aeronautical mobile
    operations below the 4.9 GHz band, may inhibit use of the lower
    portion of the 4.9 GHz band in large areas along the East, West, and
    Gulf Coasts, as far as 394 kilometers (245 miles) from the CEC
    sites.[^129] Furthermore, the Commission noted that the Department
    of Defense reserves the right, after coordinating with NTIA and the
    Commission, to expand permanently the designated training areas and
    utilize the full power mode and full band capability.[^130] Given
    the high power at which the CEC system operates, the Commission
    expressed concern that use of the CEC system could cause
    interference to public safety systems, and sought comment on
    prospective measures to mitigate such interference.[^131] It also
    sought comment on its tentative conclusion that the low power
    operations contemplated for the band will not interfere with the CEC
    system.[^132]

44. *Discussion.* Commenters agree that the operations contemplated for
    the 4.9 GHz band will not interfere with CEC operations.[^133]
    Commenters urged us to devise methods to mitigate CEC interference
    to public safety systems.[^134] We believe that the actions taken
    herein collectively offer some solutions to potential interference
    from CEC operations. For example, because licenses will be issued
    for the entire spectrum, in areas where Navy operations cause
    interference to certain portions of the band, licensees will be able
    to use other portions of the band that are not similarly encumbered.
    Furthermore, the licensee sharing and cooperation requirement should
    also serve to mitigate interference concerns, because we expect that
    during this process, licensees will factor any band encumbrances
    into their planning for use of the band. Therefore, we will not
    adopt any specific interference mitigation requirements at this
    time. However, as operations in the band develop, both the
    Commission and licensees may determine other approaches to further
    mitigate any CEC interference concerns, and we explicitly reserve
    discretion to revisit this issue at a later time.

### Radio Astronomy Operations 

45. *Background.* In the *Second R&O*, the Commission noted that the
    4990-5000 MHz band is allocated to radio astronomy service on a
    primary basis, both internationally and in the United States.[^135]
    Footnote US74 of the Table of Frequency Allocations requires
    protection to radio astronomy services from extraband radiation only
    to the extent that such radiation exceeds the level that would be
    present if the offending station were operating in compliance with
    the technical standards or criteria applicable to the service in
    which it operates.[^136] In the *FNPRM*, the Commission requested
    comment on what, if any, restrictions may be needed on new users in
    the 4.9 GHz band to protect the adjacent 4990-5000 MHz band radio
    astronomy operations.[^137]

46. *Discussion.* We conclude that no additional restrictions are
    needed. The National Academy of Sciences, through the National
    Research Council's Committee on Radio Frequencies (CORF), and the
    National Radio Astronomy Observatory are concerned that operations
    in the 4.9 GHz band may interfere with adjacent band radio astronomy
    operations.[^138] In support of its assertions, CORF has included an
    interference prediction calculation based on the recommendations in
    ITU-R P.1546 (P.1546) and the limits set forth in ITU-R RA.769-1
    (RA.769-1).[^139] For the following reasons, we do not find an
    interference prediction based on P.1546 and RA.769-1 to be
    persuasive. First, the recommendations in P.1546 describe a method
    for point-to-area predictions for terrestrial services in the
    frequency range 30-3000 MHz, which does not encompass the subject
    band 4940-4990 MHz. Second, the predictions are not based on actual
    terrain data, which should be used for such calculations, especially
    at this frequency range, which depends on radio line-of-site for
    accurate path predictions. Third, many of the public safety
    applications will be low power mobile operations. They will also be
    utilizing antennas at or near ground level, and therefore, there
    will be limited cases where the public safety transmitter will be
    line-of-site with radio astronomy. Fourth, the interference
    calculations of RA.769-1 assume an interfering antenna 19 degrees
    from the mainbeam of the radio astronomy antenna at point which a
    typical radio astronomy antenna has a 0 dBi gain. We believe that
    while it is possible, it is unlikely that an unobstructed
    line-of-site condition within 19 degrees of the mainbeam of a radio
    astronomy antenna would occur due to the fact that the public safety
    antennas will be near ground level. Thus, it is unlikely that
    terrestrial-based operations in the 4.9 GHz band would reach radio
    astronomy receivers. Accordingly, we decline to place any
    restrictions on public safety operations to protect those radio
    astronomy sites contained in footnote US74. We will, however,
    require 4.9 GHz band licensees to protect radio astronomy
    observatories to the extent required in footnote US74. Furthermore,
    as discussed above, we will continue to prohibit aeronautical mobile
    operations absent a clear showing that such operations will not
    interfere with radio astronomy operations.[^140]

## Technical Rules for Mobile Equipment

### Broadband Technologies

47. *Background.* Due to a number of proposals to set technical
    standards requiring a specific technology in the 4.9 GHz band, in
    the *Second R&O*, the Commission sought comment[^141] on whether to
    require equipment manufactured for use in the 4.9 GHz band to meet
    widely contemplated, spectrally efficient broadband standards such
    as Institute of Electrical and Electronics Engineering standard
    802.11a (IEEE 802.11a) and European Telecommunications
    Standardization Institute (ETSI) Broadband Radio Access Network
    (BRAN) High Performance Local Area Network number two
    (HiperLAN2).[^142] Recognizing that certain regulatory goals could
    warrant the use of particular standards, including incident scene
    interoperability and the accommodation of the peak demand that
    occurs during multiple emergencies, the Commission asked commenters
    to address whether the specification of particular standards would
    promote such regulatory goals.[^143]

48. *Discussion.* We decline to require any particular broadband
    technology for equipment in the 4.9 GHz band. While some commenters
    were supportive of the IEEE 802.11a standard because it is ideal for
    the mobile applications envisioned for the band,[^144] at this time,
    we do not believe that the desirability of a particular standard is
    sufficient reason to impose such standard on licensees and
    manufacturers, or to depart from our long standing goals of minimal
    regulation and licensee flexibility.[^145] We note that
    notwithstanding their support for the 802.11a standard, commenters
    also urged that we adopt a flexible band plan that would accommodate
    other emerging broadband technologies.[^146] However, the adoption
    of any particular standard could preclude newer technologies, and
    hence impose restrictions on users that would impede their ability
    to benefit from future equipment that enhances public safety
    operations. Moreover, inasmuch as this is a new band, consideration
    must be given to the possibility that the current visions for the
    band may change, especially considering the wide flexibility that
    users have been afforded for operations in the band.

49. We also disagree with Atheros that there would be sufficient
    interoperability advantages to imposing a standard.[^147] That is,
    we believe that the mandatory cooperation among licensees will go a
    long way towards attaining adjacent and cross-jurisdiction
    interoperability. Further, notwithstanding the cooperation
    requirements for the band, public safety officials throughout the
    nation are already engaged in substantial efforts to plan and
    coordinate operations with nearby jurisdictions. Therefore, we
    believe that interoperability goals can be attained without imposing
    equipment standards on users and manufacturers, especially in light
    of the fact that such an imposition may actually serve to hinder the
    ability of public safety entities from utilizing emerging
    technologies in the band. Accordingly, no particular equipment
    technologies will be imposed on equipment manufactured for use in
    the 4.9 GHz band.

### Power Limits

50. *Background.* In the *FNPRM*, commenters were asked to discuss
    whether the Commission should set power limits for mobile equipment
    in this band, and if so, what such limits should be.[^148] The
    Commission sought comment on a Motorola proposal to set a 30 dBm
    (one watt) maximum transmitter power limit with a 20 dB maximum
    antenna gain, but also solicited other suggestions, and asked
    whether any power limit should be adopted.[^149]

51. *Discussion.* Atheros concurs with Motorola's proposed one watt
    transmitter power limit, and 20 dB maximum antenna gain.[^150]
    Motorola, however, now recommends a range of power limits from 20
    dBm to 33 dBm, contingent on the bandwidth of the device, and
    limited by a spectral power density of 20 dBm per 1 MHz.[^151]
    Motorola further recommends that the associated spectral power
    density be measured according to Part 15 measurement methods for
    U-NII devices.[^152] Motorola also suggests an antenna gain limit of
    9 dBi. [^153]

52. Motorola's power limit proposals are based on a spectral power
    density limit of 20 dBm per 1 MHz along with the antenna gain
    limits. This would allow 20 dBm (100 mW) for a 1 MHz signal and up
    to 33 dBm (2 watts) for a 20 MHz signal. We agree with Motorola that
    this sliding scale of power limits will both limit adjacent band
    interference by keeping the spectral power density of all users in
    the band relatively equivalent, and sufficient in-building
    penetration required by public safety users in some cases.[^154]
    This is the case because many public safety commenters envision the
    use of wideband technologies such as 802.11a for use in PAN and
    vehicular area networks (VAN)[^155] and incident scene situations
    which would utilize the full 20 MHz of aggregated spectrum.[^156]
    For such uses, Motorola proposes a transmitter power output (TPO)
    limit of 33 dBm (2 watts), which would appear to provide a
    sufficient amount of power and the in-building penetration required.
    Therefore, we adopt Motorola's power limit proposals based on a
    spectral power density limit of 20 dBm per 1 MHz along with the
    antenna gain limits.

53. *Threshold Levels for Routine Environmental Evaluation*. Sections
    2.1091 and 2.1093 of our rules list services and devices for which
    an environmental evaluation for RF exposure must be routinely
    performed.[^157] DCCTO argues that power limits should be limited to
    values compatible with the RF exposure limits defined by the FCC to
    protect on-scene personnel.[^158] We agree. Therefore, we will
    require that mobile and portable equipment for use in the 4940-4990
    MHz frequency band be subject to the radiofrequency radiation
    exposure evaluation requirements of Sections 2.1091 and 2.1093 of
    our rules.

### Emission Limits 

54. In the *FNPRM*, the Commission asked commenters to address whether
    there were any technical standards that should be imposed on
    equipment operating in the 4.9 GHz band.[^159] Upon consideration of
    this issue, we will require an out of band emissions mask on
    equipment manufactured for the 4.9 GHz band. We agree with Motorola
    that such a mask will improve the reliability and performance of
    distinct services such as WLAN, and PAN/VAN operating at different
    power levels in adjacent channels.[^160] Some commenters have
    expressed an interest in a number of different uses for the band,
    including various video and data operations using differing
    technologies, data rates and video resolutions.[^161] Consequently,
    we decline to adopt measurement procedures that are specific to any
    one particular technology. However, while we decline to adopt
    specific measurement procedures such as those that relate to Part 15
    U-NII devices, it is important to note that equipment utilizing such
    technologies must be tested according to procedures acceptable to
    the Commission. In cases where relevant procedures have been defined
    by the FCC, these must be used. For example, the Commission recently
    released a *Public Notice* on an updated measurement procedure for
    U-NII devices.[^162] In order to achieve compatibility of similar
    equipment between different manufacturers, it is important that
    similar measurement procedures, deemed acceptable to the Commission,
    be used for these technologies.

## Technical Rules for Fixed Operations 

55. *Background.* In the *FNPRM*, the Commission requested comment on
    technical limitations for fixed operations in the band.[^163] It
    suggested an effective isotropic radiated power (EIRP) limit of 55
    dBW limit for fixed operations, identical to the limit set for the
    3700-4200 MHz and 5925-6425 MHz bands.[^164] The Commission also
    asked questions regarding minimum path lengths, emission mask
    requirements and other technical limitations.[^165]

56. *Discussion.* It is our intent in this proceeding to adopt service
    rules that promote both flexibility and compatibility. We agree with
    DCCTO that agencies will have different needs for fixed and/or
    mobile services.[^166] Similarly, we believe that agencies will also
    have unique requirements within the fixed and mobile services.
    Therefore, with one partial exception, we decline to adopt fixed
    microwave service limits (based on Part 101 of our Rules) for fixed
    operations in the 4.9 GHz band that may not be compatible with
    limits on mobile equipment in the band. We feel it is more
    appropriate to require similar out of band restrictions regardless
    of the service to promote compatibility between the fixed and mobile
    services.

57. The one partial exception is the permitted power level. We agree
    with Atheros's proposal that similar power levels should be set for
    mobile and non point-to-point fixed uses, and that directional
    antennas should be required for fixed operations.[^167] Therefore,
    rather than limiting fixed operations based on EIRP as the
    Commission proposed, we will apply the transmitter power limit that
    we adopted for mobile equipment[^168] to fixed equipment as well. We
    believe that this will increase licensee flexibility, by permitting
    use of the same transmitter model for fixed and mobile operations.
    In order to avoid interference from fixed operations to mobile
    operations, we adopt a maximum antenna gain for point-to-point
    operations up to 26 dBi with no corresponding reduction in TPO for
    fixed operations, as proposed by Motorola.[^169] This will allow the
    licensee to maximize power within their channel bandwidth and within
    the emission mask limitations of the channel. We believe that these
    limits will promote both flexibility and compatibility for the band.
    As discussed above, uses within a range of interference to other
    licensees must be coordinated among licensees in advance.
    Furthermore, where a licensee is situated in an area where there are
    no overlapping licensees, we believe a licensee should be afforded
    flexibility to use higher power levels, especially if it has a
    greater need to employ fixed operations than mobile operations.

# PROCEDURAL MATTERS

## Ex Parte Rules - Permit-But-Disclose Proceeding

58. This is a permit-but-disclose notice and comment rule making
    proceeding. *Ex parte* presentations are permitted, except during
    the Sunshine Agenda period, provided they are disclosed as provided
    in our rules.[^170]

## Regulatory Flexibility Act 

59. The Regulatory Flexibility Act (RFA)[^171] requires that an agency
    prepare a regulatory flexibility analysis for notice and comment
    rulemakings, unless the agency certifies that \"the rule will not,
    if promulgated, have a significant economic impact on a substantial
    number of small entities.[^172] Accordingly, we have prepared a
    Final Regulatory Flexibility Analysis concerning the impact of the
    rule changes contained in the *Third R&O* on small entities. The
    Final Regulatory Flexibility Analysis is set forth in Appendix B.

## Paperwork Reduction Act

60. This *Memorandum Opinion and Order and Third Report and Order*
    contains new or modified information collection(s) subject to the
    Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be
    submitted to the Office of Management and Budget (OMB) for review
    under Section 3507(d) of the PRA. OMB, the general public and other
    Federal agencies are invited to comment on the new or modified
    collection(s) contained in this proceeding.

## Ordering Clauses 

61. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(r),
    and 403 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), 403, this *Report and Order* IS HEREBY ADOPTED.

62. IT IS FURTHER ORDERED that Parts 2 and 90 of the Commission\'s rules
    ARE AMENDED as specified in Appendix A and such rule amendments
    shall be effective 30 days after publication in the Federal
    Register.

63. IT IS FURTHER ORDERED, that the Chief, Wireless Telecommunications
    Bureau and the Chief, Office of Engineering and Technology, ARE
    GRANTED DELEGATED AUTHORITY to adjudicate waiver requests to utilize
    the 4.9 GHz band for aeronautical mobile operations.

64. IT IS FURTHER ORDERED that the Commission\'s Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this *Memorandum Opinion and Order and Third Report
    and Order*, including the Final Regulatory Flexibility Analysis, to
    the Chief Counsel for Advocacy of the Small Business Administration.

> **F. Further Information**

65. For further information, contact Tim Maguire, <tmaguire@fcc.gov>, or
    Genevieve Augustin, gaugusti@fcc.gov, Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau, (202)
    418-0680, or TTY (202) 418-7233.

66. Alternative formats (computer diskette, large print, audiocassette
    and Braille) are available to persons with disabilities by
    contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or at
    bmillin@fcc.gov. This *Memorandum Opinion and Order and Third Report
    and Order* can also be downloaded at: http://www.fcc.gov/dtf/.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

# APPENDIX A: FINAL RULES {#appendix-a-final-rules .unnumbered}

Parts 2 and 90 of Title 47 of the Code of Federal Regulations are
amended as follows:

I. PART 2 -- FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS

1\. The authority citation for Part 2 continues to read as follows:

AUTHORITY: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.

2\. Section 2.103 is amended by revising paragraph (b) to read as
follows:

\* \* \* \* \*

\(b\) Government stations may be authorized to use channels in the

764-776 MHz, 794-806 MHz and 4940-4990 MHz public safety bands with
non-Government

entities if the Commission finds such use necessary; where:

\* \* \* \* \*

3\. Section 2.1091 is amended by revising paragraph (c) as follows:

\* \* \* \* \*

\(c\) Mobile devices that operate in the Cellular Radiotelephone
Service, the Personal Communications Services, the Satellite
Communications Services, the General Wireless Communications Service,
the Wireless Communications Service, the Maritime Services, the 4.9 GHz
Band Service and the Specialized Mobile Radio Service authorized under
subpart H of part 22 of this chapter, part 24 of this chapter, part 25
of this chapter, part 26 of this chapter, part 27 of this chapter, part
80 of this chapter (ship earth stations devices only) and part 90 of
this chapter are subject to routine environmental evaluation for RF
exposure prior to equipment authorization or use if they operate at
frequencies of 1.5 GHz or below and their effective radiated power (ERP)
is 1.5 watts or more, or if they operate at frequencies above 1.5 GHz
and their ERP is 3 watts or more. Unlicensed personal communications
service devices, unlicensed millimeter wave devices and unlicensed NII
devices authorized under § 15.253, § 15.255, and subparts D and E of
part 15 of this chapter are also subject to routine environmental
evaluation for RF exposure prior to equipment authorization or use if
their ERP is 3 watts or more or if they meet the definition of a
portable device as specified in § 2.1093 (b) requiring evaluation under
the provisions of that section. All other mobile and unlicensed
transmitting devices are categorically excluded from routine
environmental evaluation for RF exposure prior to equipment
authorization or use, except as specified in §§ 1.1307(c) and 1.1307(d)
of this chapter. Applications for equipment authorization of mobile and
unlicensed transmitting devices subject to routine environmental
evaluation must contain a statement confirming compliance with the
limits specified in paragraph (d) of this section as part of their
application. Technical information showing the basis for this statement
must be submitted to the Commission upon request.

\* \* \* \* \*

4\. Section 2.1093 is amended by revising paragraph (c) as follows:

\* \* \* \* \*

\(c\) Portable devices that operate in the Cellular Radiotelephone
Service, the Personal Communications Service (PCS), the Satellite
Communications Services, the General Wireless Communications Service,
the Wireless Communications Service, the Maritime Services, the
Specialized Mobile Radio Service, the 4.9 GHz Band Service, the Wireless
Medical Telemetry Service (WMTS) and the Medical Implant Communications
Service (MICS), authorized under subpart H of part 22 of this chapter,
part 24 of this chapter, part 25 of this chapter, part 26 of this
chapter, part 27 of this chapter, part 80 of this chapter (ship earth
station devices only), part 90 of this chapter, subparts H and I of part
95, and unlicensed personal communication service, unlicensed NII
devices and millimeter wave devices authorized under subparts D and E,
§ 15.253 and § 15.255 of part 15 of this chapter are subject to routine
environmental evaluation for RF exposure prior to equipment
authorization or use. All other portable transmitting devices are
categorically excluded from routine environmental evaluation for RF
exposure prior to equipment authorization or use, except as specified in
§§ 1.1307(c) and 1.1307(d) of this chapter. Applications for equipment
authorization of portable transmitting devices subject to routine
environmental evaluation must contain a statement confirming compliance
with the limits specified in paragraph (d) of this section as part of
their application. Technical information showing the basis for this
statement must be submitted to the Commission upon request.

> \* \* \* \* \*

II\. PART 90 -- PRIVATE LAND MOBILE RADIO SERVICES

5\. The authority citation for Part 90 continues to read as follows:

AUTHORITY: Sections 4(i), 11, 303(g), 303(r) and 332(c)(7) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g),
303(r), 332(c)(7).

6\. Section 90.20 is amended by inserting the following in the table at
paragraph (c)(3) before the entry referencing the 10,550 to 10,680 band,
and adding a new paragraph (d)(85), to read as follows:

\* \* \* \* \*

\(c\) \* \* \* \* \*

\(3\) *Frequencies.* \* \* \*

+-----------------+-----------------+-----------------+-----------------+
| Frequency or    | Class of        | Limitations     | Coordinator     |
| band            | station(s)      |                 |                 |
+-----------------+-----------------+-----------------+-----------------+
| \* \* \* \* \*  | \* \* \* \* \*  | \* \* \* \* \*  | \* \* \* \* \*  |
|                 |                 |                 |                 |
| 4940 to 4990    | Fixed, base or  | 85              | \* \* \* \* \*  |
|                 | mobile          |                 |                 |
| \* \* \* \* \*  |                 | \* \* \* \* \*  |                 |
|                 | \* \* \* \* \*  |                 |                 |
+-----------------+-----------------+-----------------+-----------------+

\* \* \* \* \*

(d) \* \* \* \* \*

```{=html}
<!-- -->
```
(85) Subpart Y of this part contains rules for assignment of frequencies
     in the 4940-4990 MHz band.

     \* \* \* \* \*

7\. Section 90.137 is amended by adding a new paragraph (c) to read as
follows:

**§90.137 Applications for operation at temporary locations.**

\* \* \* \* \*

\(c\) The provisions of this section do not apply to the 4940-4990 MHz
band.

\* \* \* \* \*

8\. Section 90.155 is amended by revising paragraph (a) to read as
follows:

> **§90.155 Time in which a station must be placed in operation.**
>
> \(a\) All stations authorized under this part, except as provided in
> §§ 90.629, 90.631(f), 90.665, 90.685 and 90.1209 must be placed in
> operation within twelve (12) months from the date of grant or the
> authorization cancels automatically and must be returned to the
> Commission.

\* \* \* \* \*

9\. Section 90.175 is amended by revising paragraph (i) and adding a new
paragraph (j)(17) to read as follows:

**§ 90.175 Frequency coordination requirements.**

\* \* \* \* \*

\(i\) Applications for facilities near the Canadian border north of line
A or east of line C in Alaska may require coordination with the Canadian
government. See §1.928 of this Chapter.

(j) \* \* \* \* \*

```{=html}
<!-- -->
```
(17) Applications for frequencies in the 4940-4990 MHz band.

> \* \* \* \* \*

10\. Section 90.205 is amended by redesignating paragraphs (o) through
(q) as (p), (q), and (r) respectively, and adding a new paragraph (o) to
read as follows:

**§ 90.205 Power and antenna height limits.**

\* \* \* \* \*

\(o\) *4940-4990 MHz.* Limitations on power are specified in § 90.1215
of this part.

\* \* \* \* \*

11\. Section 90.210 is amended by adding an entry to the table in the
undesignated paragraph, by redesignating paragraphs (l) and (m) and by
adding a new paragraph (l) to read as follows:

> \* \* \* \* \*

**§ 90.210** **Emission masks.**

+-----------------------+-----------------------+-----------------------+
| Frequency band        | Mask for equip-       | Mask for equip-       |
|                       |                       |                       |
| (MHz)                 | ment with audio       | ment without          |
|                       |                       |                       |
|                       | low pass filter       | audio low pass        |
|                       |                       |                       |
|                       |                       | filter                |
+-----------------------+-----------------------+-----------------------+
| \* \* \* \* \*        | \* \* \* \* \*        | \* \* \* \* \*        |
|                       |                       |                       |
| 4940-4990 MHz         | L...                  | L                     |
|                       | ..................... |                       |
| \* \* \* \* \*        |                       | \* \* \* \* \*        |
|                       | \* \* \* \* \*        |                       |
+-----------------------+-----------------------+-----------------------+

\* \* \* \* \*

\(l\) *Emission Mask L*. For transmitters operating in the 4940-4990 MHz
frequency band, any emission must be attenuated below the output power
of the transmitter as follows:

\(1\) On any frequency removed from the assigned frequency by more than
40 percent but less than 75 percent of the authorized bandwidth: At
least 28 dB.

\(2\) On any frequency removed from the assigned frequency by more than
75 percent but less than 125 percent of the authorized bandwidth: At
least 37 dB.

\(3\) On any frequency removed from the assigned frequency by more than
125 percent but less than 150 percent of the authorized bandwidth: At
least 41 dB.

\(4\) On any frequency removed from the assigned frequency by more than
150 percent of the authorized bandwidth: At least 53 dB.

\(5\) On any frequency outside the channel bandwidth, the power spectral
density of the device must meet the attenuation in the mask above or -53
dBm/MHz, whichever is the lesser attenuation.

\(6\) The zero dB reference is measured relative to the highest average
power of the fundamental emission measured across the designated channel
bandwidth using a resolution bandwidth of at least one percent of the
occupied bandwidth of the fundamental emission. Emission levels are also
based on the use of measurement instrumentation employing a resolution
bandwidth of at least one percent of the occupied bandwidth.

\* \* \* \* \*

12\. A new Subpart Y is added to read as follows:

**Subpart Y -- Regulations Governing Licensing and Use of Frequencies in
the 4940-4990 MHz Band.**

**§ 90.1201 Scope.**

This subpart sets out the regulations governing use of the 4940-4990 MHz
(4.9 GHz) band. It includes eligibility requirements, and specific
operational and technical standards for stations licensed in this band.
The rules in this subpart are to be read in conjunction with the
applicable requirements contained elsewhere in this part; however, in
case of conflict, the provisions of this subpart shall govern with
respect to licensing and operation in this band.

**§ 90.1203 Eligibility.**

\(a\) Entities providing public safety services as defined under section
90.523 of this part are eligible to hold a Commission license for
systems operating in the 4940-4990 MHz band. All of the requirements and
conditions set forth in that section also govern authorizations in the
4940-4990 MHz band.

\(b\) 4.9 GHz band licensees may enter into sharing agreements or other
arrangements for use of the spectrum with entities that do not meet
these eligibility requirements. However, all applications in the band
are limited to operations in support of public safety.

**§ 90.1205 Permissible operations.**

\(a\) Unattended and continuous operation is permitted.

\(b\) Voice, data and video operations are permitted.

\(c\) Aeronautical mobile operations are prohibited.

**§ 90.1207 Licensing.**

\(a\) A 4940-4990 MHz band license gives the licensee authority to
operate on any authorized channel in this band within its licensed area
of operation. See § 90.1213 of this subpart. A 4940-4990 MHz band
license will be issued for the geographic area encompassing the legal
jurisdiction of the licensee or, in case of a nongovernmental
organization, the legal jurisdiction of the state or local governmental
entity supporting the nongovernmental organization.

\(b\) Subject to § 90.1209 of this subpart, a 4940-4990 MHz band license
gives the licensee authority to construct and operate any number of base
stations anywhere within the area authorized by the license, except as
follows:

\(1\) A station is required to be individually licensed if:

\(i\) International agreements require coordination;

> \(ii\) Submission of an environmental assessment is required under §
> 1.1307 of this chapter; or

\(iii\) The station would affect the radio quiet zones under § 1.924 of
this chapter.

\(2\) Any antenna structure that requires notification to the Federal
Aviation Administration (FAA) must be registered with the Commission
prior to construction under § 17.4 of this Chapter.

\(c\) A 4940-4990 MHz band license gives the licensee authority to
operate mobile units (including portable and handheld units) and operate
temporary (1 year or less) fixed stations anywhere within the area
authorized by the license. Such licensees may operate mobile units
and/or temporary fixed stations outside their authorized area to assist
public safety operations with the permission of the jurisdiction in
which the radio station is to be operated. Temporary fixed stations are
subject to the requirements of paragraph (b) of this section.

\(d\) A 4940-4990 MHz band license does not give the licensee authority
to operate permanent fixed point-to-point stations. Licensees choosing
to operate such fixed stations must license them individually on a
site-by-site basis. Such fixed operation will be authorized only on a
secondary, non-interference basis to base, mobile and temporary fixed
operations.

**§ 90.1209 Policies governing the use of the 4940-4990 MHz band.**

\(a\) Channels in this band are available on a shared basis only and
will not be assigned for the exclusive use of any licensee.

\(b\) All licensees shall cooperate in the selection and use of channels
in order to reduce interference and make the most effective use of the
authorized facilities. Licensees of stations suffering or causing
harmful interference are expected to cooperate and resolve this problem
by mutually satisfactory arrangements. If licensees are unable to do so,
the Commission may impose restrictions including specifying the
transmitter power, antenna height, or area or hours of operation of the
stations concerned. Further, the Commission may prohibit the use of any
4.9 GHz channel under a system license at a given geographical location
when, in the judgment of the Commission, its use in that location is not
in the public interest.

\(c\) Licensees will make every practical effort to protect radio
astronomy operations as specified in Section 2.106, footnote US311.

\(d\) There is no time limit for which base and temporary fixed stations
authorized under a 4940-4990 MHz band license must be placed in
operation. Fixed point-to-point stations which are licensed on a
site-by-site basis must be placed in operation within 18 months of the
grant date or the authorization for that station cancels automatically.

> **§ 90.1211 Regional Plan.**

\(a\) To facilitate the shared use of the 4.9 GHz band, each region may
submit a plan on guidelines to be used for sharing the spectrum within
the region. Any such plan must be submitted to the Commission within 12
months of the effective date of the rules.

\(b\) Such plans must incorporate the following common elements:

\(1\) Identification of the document as a plan for sharing the 4.9 GHz
band with the region specified along with the names, business addresses,
business telephone numbers and organizational affiliations of the
chairperson(s) and all members of the planning committee.

\(2\) A summary of the major elements of the plan and an explanation of
how all eligible entities within the region were given an opportunity to
participate in the planning process and to have their positions heard
and considered fairly.

\(3\) An explanation of how the plan was coordinated with adjacent
regions.

\(4\) A description of the coordination procedures for both temporary
fixed and mobile operations, including but not limited to, mechanisms
for incident management protocols, interference avoidance and
interoperability.

\(c\) Regional plans may be modified by submitting a written request,
signed by the regional planning committee, to the Chief, Wireless
Telecommunications Bureau. The request must contain the full text of the
modification, and a certification that all eligible entities had a
chance to participate in discussions concerning the modification and
that any changes have been coordinated with adjacent regions.

**§ 90.1213 Band plan.**

The following channel center frequencies are permitted to be aggregated
for channel bandwidths of 5, 10, 15 or 20 MHz. Channel numbers 1-5 and
15-19 are 1 MHz channels and channels numbers 6-14 are 5 MHz channels.

+-----------------------------------+-----------------------------------+
| Center Frequency (MHz)            | Channel Nos.                      |
+-----------------------------------+-----------------------------------+
| 4940.5                            | 1                                 |
|                                   |                                   |
| 4941.5                            | 2                                 |
|                                   |                                   |
| 4942.5                            | 3                                 |
|                                   |                                   |
| 4943.5                            | 4                                 |
|                                   |                                   |
| 4944.5                            | 5                                 |
|                                   |                                   |
| 4947.5                            | 6                                 |
|                                   |                                   |
| 4952.5                            | 7                                 |
|                                   |                                   |
| 4957.5                            | 8                                 |
|                                   |                                   |
| 4962.5                            | 9                                 |
|                                   |                                   |
| 4967.5                            | 10                                |
|                                   |                                   |
| 4972.5                            | 11                                |
|                                   |                                   |
| 4977.5                            | 12                                |
|                                   |                                   |
| 4982.5                            | 13                                |
|                                   |                                   |
| 4985.5                            | 14                                |
|                                   |                                   |
| 4986.5                            | 15                                |
|                                   |                                   |
| 4987.5                            | 16                                |
|                                   |                                   |
| 4988.5                            | 17                                |
|                                   |                                   |
| 4989.5                            | 18                                |
+-----------------------------------+-----------------------------------+

> § 90.1215 Power limits.

The transmitting power of stations operating in the 4940-4990 MHz band
must not exceed the maximum limits in this section.

\(a\) The peak transmit power should not exceed:

+------------------------------+---------------------------------------+
| Channel Bandwidth            | Peak Transmitter Power                |
|                              |                                       |
| (MHz)                        | (dBm)                                 |
+------------------------------+---------------------------------------+
| 1                            | 20                                    |
|                              |                                       |
| 5                            | 27                                    |
|                              |                                       |
| 10                           | 30                                    |
|                              |                                       |
| 15                           | 31.8                                  |
|                              |                                       |
| 20                           | 33                                    |
+------------------------------+---------------------------------------+

Devices are also limited to a peak power spectral density of 20 dBm per
1 MHz. Devices using channel bandwidths other than those listed above
are permitted; however, they are limited to a peak power spectral
density of 20 dBm/MHz. If transmitting antennas of directional gain
greater than 9 dBi are used, both the peak transmit power and the peak
power spectral density should be reduced by the amount in decibels that
the directional gain of the antenna exceeds 9 dBi. However,
point-to-point or point-to-multipoint operation (both fixed and
temporary-fixed rapid deployment) may employ transmitting antennas with
directional gain up to 26 dBi without any corresponding reduction in the
transmitter power or spectral density. Corresponding reduction in the
peak transmit power and peak power spectral density should be the amount
in decibels that the directional gain of the antenna exceeds 26 dBi.

\(b\) The peak transmit power is measured as a conducted emission over
any interval of continuous transmission calibrated in terms of an
rms-equivalent voltage. If the device cannot be connected directly,
alternative techniques acceptable to the Commission may be used. The
measurement results shall be properly adjusted for any instrument
limitations, such as detector response times, limited resolution
bandwidth capability when compared to the emission bandwidth,
sensitivity, etc., so as to obtain a true peak measurement conforming to
the definitions in this paragraph for the emission in question.

\(c\) The peak power spectral density is measured as a conducted
emission by direct connection of a calibrated test instrument to the
equipment under test. If the device cannot be connected directly,
alternative techniques acceptable to the Commission may be used.
Measurements are made over a bandwidth of 1 MHz or the 26 dB emission
bandwidth of the device, whichever is less. A resolution bandwidth less
than the measurement bandwidth can be used, provided that the measured
power is integrated to show total power over the measurement bandwidth.
If the resolution bandwidth is approximately equal to the measurement
bandwidth, and much less than the emission bandwidth of the equipment
under test, the measured results shall be corrected to account for any
difference between the resolution bandwidth of the test instrument and
its actual noise bandwidth.

**§ 90.1217 RF Hazards.**

Licensees and manufacturers are subject to the radiofrequency radiation
exposure requirements specified in § 1.1307(b), § 2.1091 and § 2.1093 of
this chapter, as appropriate. Applications for equipment authorization
of mobile or portable devices operating under this section must contain
a statement confirming compliance with these requirements for both
fundamental emissions and unwanted emissions. Technical information
showing the basis for this statement must be submitted to the Commission
upon request.

# APPENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS {#appendix-b-final-regulatory-flexibility-analysis .unnumbered}

1.  As required by the Regulatory Flexibility Act (RFA),[^173] an
    Initial Regulatory Flexibility Analysis (IRFA) was incorporated in
    the *Further Notice of Proposed Rule Making* (*Further
    Notice*).[^174] The Commission sought written public comment on the
    proposals in the *Further Notice*, including comment on the IRFA. No
    comments were submitted specifically in response to the IRFA; we
    nonetheless discuss certain general comments below. This present
    Final Regulatory Flexibility Analysis (FRFA) conforms to the
    RFA.[^175]

Need for, and Objectives of, the *Report and Order*:

2.  In this *Memorandum Opinion and Order and Third Report and Order*
    (*Third Report and Order*), we adopt eligibility and service rules
    for the licensing and operation of fixed and mobile services in the
    4.9 GHz band pursuant to the Omnibus Budget Reconciliation
    Act.[^176] These rules provide 4.9 GHz band eligibles with maximum
    flexibility to employ a variety of new broadband applications such
    as high-speed digital technologies, wireless local area networks for
    incident scene management, dispatch operations and
    vehicular/personal communications. Additionally, public safety
    entities will be permitted to employ "hot spot" operations,
    temporary fixed links, and traditional backbone microwave operations
    in the band. The rules we adopt today ensure that public safety
    entities will enjoy the greatest possibility of unhindered use of
    this spectrum while fostering partnership opportunities with
    critical infrastructure and commercial entities and will fulfill our
    obligations as mandated by Congress to assign this spectrum for
    non-Government use.

Summary of Significant Issues Raised by Public Comments in Response to
the IRFA:

3.  No comments were submitted specifically in response to the IRFA. In
    general comments, however, some commenters expressed concern with
    our proposals to limit eligibility in the 4.9 GHz band to
    traditional public safety entities as defined by section 337(f) of
    the Communications Act.[^177] For example, the Association of
    American Railroads urges us to adopt a definition of public safety
    services, pursuant to section 309(j)(2) of the Communications Act,
    that would allow critical infrastructure entities (CIEs) such as
    railroads and utility companies to acquire licenses in the 4.9 GHz
    band.[^178] Although under the rules we adopt today, CIEs are not
    eligible to hold licenses in this band, we have considered the
    effect of these rule changes on small entities and considered other
    alternatives. In particular, we note that CIEs will have access to
    this spectrum through sharing agreements with public safety
    licensees. We believe that this item strikes an appropriate balance
    between competing spectrum needs and expect that our actions will
    mostly benefit all entities subject to these rule changes, including
    small entities.

Description and Estimate of the Number of Small Entities To Which the
Rules Will Apply:

4.  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.[^179] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^180] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^181] 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 Small Business Administration
    (SBA).[^182]

5.  Nationwide, as of 1992, there were approximately 275,801 small
    organizations.[^183] \"Small governmental jurisdiction\" generally
    means \"governments of cities, counties, towns, townships, villages,
    school districts, or special districts, with a population of less
    than 50,000.\"[^184] As of 1992, there were approximately 85,006
    such jurisdictions in the United States.[^185] This number includes
    38,978 counties, cities, and towns; of these, 37,566, or ninety-six
    percent, have populations of fewer than 50,000.[^186] The Census
    Bureau estimates that this ratio is approximately accurate for all
    governmental entities. Thus, of the 85,006 governmental entities, we
    estimate that 81,600 (ninety-one percent) are small entities.

6.  The rules we adopt today will affect users of public safety radio
    services. These rules may also affect manufacturers of radio
    communications equipment. An analysis of the number of small
    businesses that may be affected follows. We also note that according
    to SBA data, there are approximately 4.44 million small businesses
    nationwide.

7.  *Small Businesses Sharing Spectrum with Public Safety Radio Services
    and Governmental Entities*. As a general matter, Public Safety Radio
    Services include police, fire, local government, forestry
    conservation, highway maintenance, and emergency medical
    services.[^187] Non-Federal governmental entities, as well as
    certain private businesses having sharing agreements with
    governmental entities, are potential licensees for these services in
    this proceeding. Neither the Commission nor the SBA has developed a
    definition of small businesses directed specifically toward the
    public service work at issue. Therefore, the applicable definition
    of small business is the definition under the SBA rules applicable
    to Cellular and other Wireless Telecommunications. This provides
    that a small business is a radiotelephone company employing no more
    than 1,500 persons.[^188]

8.  *Equipment Manufacturers*. We anticipate that at least six radio
    equipment manufacturers will be affected by our decisions in this
    proceeding. According to SBA regulations, a Radio and Television
    Broadcasting and Wireless Communications Equipment Manufacturing
    businesses must have 750 or fewer employees in order to qualify as a
    small business concern.[^189]

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements:

9.  Applicants for licenses to provide terrestrial fixed and mobile
    services in the 4.9 GHz band must submit license applications
    through the Universal Licensing System using FCC Form 601, and
    follow the service rules at 47 C.F.R. Part 90.[^190]

Steps Taken to Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered:

10. The RFA requires an agency to describe any significant 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 or reporting requirements under the rule for small
    entities; (3) the use of performance, rather than design standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for small entities.[^191]

11. Regarding our decision to limit eligibility in the 4.9 GHz band to
    traditional public safety entities, *see* paras. 16-21, *supra*, we
    realize that certain commercial and critical infrastructure small
    business entities that might have wished to operate in this newly
    available spectrum may be adversely affected, in that they will not
    be able to obtain a license to operate in this band. This concern is
    mitigated, however, by the fact that we will allow public safety
    entities to enter into sharing agreements with entities performing
    operations in support of public safety. Moreover, we believe that in
    this instance, there is a compelling need for spectrum dedicated to
    public safety operations and that our approach here will ensure that
    such operations are not hampered by excessive frequency congestion.
    An alternative would be to expand the definition of public safety
    eligibles and/or to allow commercial use of the subject band;
    however, this would undermine our intention to promote public safety
    service in this band.

12. Regarding our decision to license the 4.9 GHz band via a
    jurisdictional licensing scheme, *see* paras. 27-31, *supra*, we do
    not believe that there will be any significant adverse impact on
    small entities. In fact, this approach will give public safety
    entities which are considered small entities under the RFA the
    ability to obtain licenses for the entire 50 MHz of spectrum in this
    band and to choose the types of operations that best suit their
    individual needs. An alternative would be to license this spectrum
    on a state-wide basis or to require the use of some type of formal
    frequency coordination committee. We do not believe, however, that
    frequency coordination would benefit licensees in all parts of the
    country, and state-wide licenses would not give smaller, local
    jurisdictions control over what types of operations might best suit
    their individual needs.

13. Regarding our decision to allow both fixed and mobile use, as well
    as point-to-point microwave operations on a secondary basis in the
    4.9 GHz band, *see* paras. 33-36, *supra*, we do not anticipate any
    adverse affect on small entities. Instead, our approach here should
    benefit public safety entities by allowing greater flexibility in
    meeting each licensee's particular operational needs.

14. Regarding our decision to implement a frequency utilization plan in
    the 4.9 GHz band consisting of one and five MHz channels, *see*
    paras. 38-42, *supra*, we do not anticipate any adverse affect on
    small entities. In the event that public safety entities determine
    that greater channel bandwidths are needed, licensees may aggregate
    their channels.

15. Regarding our decision declining to require use of a particular
    technology for equipment in the 4.9 GHz band, *see* paras. 48-49,
    *supra*, we do not anticipate any adverse affect on small entities.
    We believe that the imposition of specific technology could impede
    the utilization of emerging technologies in the band and that
    greater flexibility is consequently warranted.

16. Our decisions regarding fixed and mobile technical standards, *see*
    paras. 56-57, *supra*, should not result in any adverse impact to
    small entities. Alternatively, we could have adopted higher or lower
    power and emissions limits, but we believe that the rules we adopt
    today strike an appropriate balance between offering licensees
    maximum flexibility in their utilization of the 4.9 GHz band and
    minimizing the risk of harmful interference.

Report to Congress:

The Commission will send a copy of this *MO&O and Third R&O*, including
this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act.[^192] In addition, the Commission will send a
copy of this *MO&O and Third R&O*, including this FRFA, to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of
this *MO&O and Third R&O* and FRFA (or summaries thereof) will also be
published in the *Federal Register*.[^193]

#   {#section .unnumbered}

# APPENDIX C: GEOGRAPHIC AREAS WHERE DEPARTMENT OF DEFENSE COOPERATIVE ENGAGEMENT CAPABILITY (CEC) WILL BE USED FOR TRAINING IN ITS HIGH POWER, FULL BANDWIDTH MODE {#appendix-c-geographic-areas-where-department-of-defense-cooperative-engagement-capability-cec-will-be-used-for-training-in-its-high-power-full-bandwidth-mode .unnumbered}

***CEC TRAINING AREA 1***

Training Area 1 supports Atlantic Coast Exercises, and extends inland
from, seaward from, and along the low water mark of a portion of the
Mid-Atlantic and South-Atlantic coastline, and includes separate areas
in Maryland (MD) and Virginia (VA).

*[INLAND PORTION]{.underline}*: The inland portion of Training Area 1
extends westward from the low water mark of the Atlantic Ocean, and
includes all of the area contained within the boundaries of the
following counties and within the other identified areas in the
indicated state:

> Delaware: Sussex County
>
> Maryland: Wicomico, Somerset, and Worcester Counties
>
> Virginia: Accomack and Northampton Counties; all of the area east of
> the eastern most boundaries of Isle of Wight and Southampton Counties
> (includes the cities of Suffolk, Portsmouth, Chesapeake, Virginia
> Beach, Norfolk, and others)
>
> North Carolina (NC): Currituck, Camden, Pasquotank, Perquimans,
> Tyrell, Dare, Hyde, Craven, Pamlico, Jones, Carteret, Onslow, Pender,
> New Hanover, and Brunswick Counties

Exercises within the above boundaries of the inland portion of Training
Area 1 will include aircraft operating at altitudes to 30 thousand feet
(kft), mobile ground based equipment, and permanent ground based
equipment. Aircraft and mobile ground based equipment can be positioned
anywhere in the defined area. Permanent ground based terminals are now
located at Wallops Island, VA; Eastville, VA; and Dam Neck Fleet Combat
Training Center-Atlantic, VA. Other permanent ground based terminals
will be added within the above defined area as required. Other specific
sites within the above defined area include, but are not limited to:
Norfolk Naval Base, VA; Norfolk Naval Air Station (NAS), VA; Little
Creek Naval Amphibious Base, VA; Oceana NAS, VA; Marine Corps Bogue
Field, NC; and Cherry Point Marine Corps Air Station (MCAS), NC.

Permanent ground based terminals not within the above defined area
operate within the legal boundaries of the Naval Surface Warfare Center
at Dahlgren, VA; and the Patuxent River Naval Air Warfare Center, MD. A
permanent ground based terminal also operates within a 5 nm radius of
Reedville, VA.

*[SEAWARD PORTION]{.underline}*: The seaward portion of Training Area 1
is bounded on the north by the line that extends eastward from the low
water mark of the Atlantic Ocean along 38.914055 north decimal degrees
of latitude. The western boundary of the seaward portion of Training
Area 1 begins at the intersection of the low water mark of the Atlantic
Ocean with 38.914055 north decimal degrees of latitude, extends
generally southward and southwestward along the low water mark of the
Atlantic Ocean to the intersection of the low water mark with 78.660000
west decimal degrees of longitude, and then continues southward along
78.660000 west decimal degrees of longitude. There is no eastern or
southern boundary of the seaward portion of Training Area 1. Exercises
in the seaward portion of Training Area 1 will include aircraft
operating at altitudes to 30 kft and surface ships. These assets can be
positioned anywhere within the defined area.

***CEC TRAINING AREA 2***

Training Area 2 supports Gulf Coast exercises. Training Area 2 extends
inland from, seaward from, and along the low water mark of a portion of
the Florida (FL), Alabama (AL), and Mississippi (MS) Gulf coastlines,
and includes a separate area near Huntsville, AL and a separate area
encompassing Pinellas County, FL.

*[INLAND PORTION]{.underline}*: The inland portion of Training Area 2
extends northward from the low water mark of the Gulf of Mexico, and
includes all of the areas contained within the boundaries of the
following counties in the indicated state:

> Florida: Bay, Washington, Holmes, Walton, Okaloosa, Santa Rosa, and
> Escambia
>
> Alabama: Baldwin and Mobile
>
> Mississippi: George, Pearl River, Stone, Jackson, Harrison, and
> Hancock

Exercises within the boundaries of the inland portion of Training Area 2
identified above will include aircraft operating at altitudes to 30 kft,
mobile ground based equipment, and permanent ground based equipment.
Aircraft and mobile ground based equipment can be positioned anywhere
within the area defined above. Permanent ground based terminals will be
added within the above defined area as required. Specific sites within
the area identified above include, but are not limited to, Pensacola
NAS, FL; Eglin Air Force Base (AFB), FL; and Tyndall AFB, FL.

Redstone Arsenal, located in Madison County, AL is included in Training
Area 2. Mobile and ground based equipment will be located anywhere
within the legal boundaries of Redstone Arsenal. Aircraft operating in
the vicinity of Redstone Arsenal will maintain emissions at the lower
defined power level and reduced bandwidth.

Pinellas County, FL is included in Training Area 2. Mobile and ground
based equipment will be located anywhere within the legal boundaries of
Pinellas County. Permanent ground based terminals are now located in the
St. Petersburg, FL metropolitan area. Aircraft operating above Pinellas
County, FL will maintain emissions at the lower defined power level and
reduced bandwidth.

*[SEAWARD PORTION]{.underline}*: The seaward portion of Training Area 2
is bounded on the east by the line that extends southward from the low
water mark of the Gulf of Mexico along 85.400000 west decimal degrees of
longitude. The northern boundary of the seaward portion of Training Area
2 begins at the intersection of the low water mark of the Gulf of Mexico
with 85.400000 west decimal degrees of longitude, extends generally
westward along the low water mark of the Gulf of Mexico to the
intersection of the low water mark with 89.350000 west decimal degrees
of longitude. The seaward portion of Training Area 2 is bounded on the
west by the line that extends due southeast from the intersection of low
water mark of the Gulf of Mexico with 89.350000 west decimal degrees of
longitude. There is no southern boundary of the seaward portion of
Training Area 2. Exercises in the seaward portion of Training Area 2
will include aircraft operating at altitudes to 30 kft and surface
ships. These assets can be positioned anywhere within the defined area.

***CEC TRAINING AREA 3***

Training Area 3 supports Pacific Coast Exercises, and extends inland
from, seaward from, and along the low water mark of a portion of the
California (CA) mid and southern Pacific coastline.

*[INLAND PORTION]{.underline}*: The inland portion of Training Area 3
extends eastward from the low water mark of the Pacific Ocean, and
includes all of the land areas contained within the boundaries of
Ventura and Santa Barbara Counties in the state of California.

Exercises within the boundaries of the inland portion of Training Area 3
will include aircraft operating at altitudes to 30 kft, mobile ground
based equipment, and permanent ground based equipment. Aircraft and
mobile ground based equipment can be positioned anywhere within the area
identified above. Permanent ground based terminals will be added within
the area identified above as required. Specific sites within the
identified area include, but are not limited to, Vandenberg AFB, CA;
Point Magu NAS, CA; and Naval Surface Warfare Center at Port Hueneme,
CA.

*[SEAWARD PORTION]{.underline}*: The seaward portion of Training Area 3
is bounded on the north by the line that extends westward from the low
water mark of the Pacific Ocean along 34.960000 north decimal degrees of
latitude. The eastern boundary of the seaward portion of Training Area 3
begins at the intersection of the low water mark of the Pacific Ocean
with 34.960000 north decimal degrees of latitude, extends generally
southward and eastward along the low water mark of the Pacific Ocean to
the intersection of the low water mark with 119.000000 west decimal
degrees of longitude, then continues south along 119.000000 west decimal
degrees of longitude. There is no southern or western boundary of the
seaward portion of Training Area 3. Exercises in the seaward portion of
Training Area 3 will include aircraft operating at altitudes to 30 kft
and surface ships. These assets can be positioned anywhere within the
defined area.

***cec TRAINING AREA 4***

Training Area 4 supports Pacific Coast Exercises, and extends inland
from, seaward from, and along the low water mark of a portion of the
southern California Pacific coastline.

*[INLAND PORTION]{.underline}*: The inland portion of Training Area 4
extends eastward from the low water mark of the Pacific Ocean, and
includes all of the land areas contained within the boundaries of San
Diego County in the state of California. Exercises within the boundaries
of the inland portion of Training Area 4 will include aircraft operating
at altitudes to 30 kft, mobile ground based equipment, and permanent
ground based equipment. Aircraft and mobile ground based equipment can
be positioned anywhere within the area identified above. Permanent
ground based terminals will be added within the area defined above as
required. Specific sites within the area defined above include, but are
not limited to, Camp Pendleton Marine Corps Base, CA; Miramar NAS, CA;
Coronado Naval Amphibious Base, CA; U.S. Naval Air Station North Island,
CA; and at the Naval facilities located on the Point Loma, CA peninsula.

*[SEAWARD PORTION]{.underline}*: The seaward portion of Training Area 4
is bounded on the north by the line that extends westward from the low
water mark of the Pacific Ocean along 33.450000 north decimal degrees of
latitude. The eastern boundary of the seaward portion of Training Area 4
begins at the intersection of the low water mark of the Pacific Ocean
with 33.450000 north decimal degrees of latitude, extends generally
southward and eastward along the low water mark of the Pacific Ocean to
the intersection of the low water mark with 32.600000 north decimal
degrees of latitude. The seaward portion of Training Area 4 is bounded
on the south by the line that extends westward from the low water mark
of the Pacific Ocean along 32.600000 north decimal degrees of latitude.
There is no western boundary of the seaward portion of Training Area 4.
Exercises in the seaward portion of Training Area 4 will include
aircraft operating at altitudes to 30 kft and surface ships. These
assets can be positioned anywhere within the defined area.

***cec TRAINING AREA 5***

Training Area 5 includes all areas within the boundaries of the White
Sands Missile Range, New Mexico and the Fort Bliss Military Reservation,
Texas and New Mexico, to support the Joint Chiefs of Staff Roving Sands
Exercise. The exercises will include aircraft flying at altitudes to 30
kft, mobile ground based equipment, and permanent ground based
equipment. The assets can be positioned anywhere within the identified
areas.

***cec TRAINING AREA 6***

Training Area 6 includes the China Lake Naval Weapons Center, CA; Fort
Irwin Military Reservation, CA; and Twentynine Palms Marine Corps Base,
CA. The exercises will include aircraft flying at altitudes to 30 kft,
mobile ground based equipment, and permanent ground based equipment. The
assets can be positioned anywhere within the identified areas.

***cec TRAINING AREA 7***

Training Area 7 supports Pacific training exercises. Training Area 7
includes all of the state of Hawaii and the Pacific Ocean waters
surrounding the islands of Hawaii.

Exercises within the land boundaries of Training Area 7 will include
aircraft operating at altitudes to 30 kft, mobile ground based
equipment, and permanent ground based equipment. Aircraft and mobile
ground based equipment can be positioned anywhere within the area.
Permanent ground based terminals will be added as required. Specific
sites within Training Area 7 include, but are not limited to, the
Pacific Missile Range Facility on the Island of Kauai.

Exercises in the Pacific Ocean waters will include aircraft operating at
altitudes to 30 kft and surface ships. These assets can be positioned
anywhere. The waters of the Pacific Missile Range Facility are included.

***cec TRAINING AREA 8***

Training Area 8 supports Atlantic Ocean and Caribbean Ocean training
exercises. The area includes all of Puerto Rico; St. Thomas, Virgin
Islands; and the ocean waters surrounding Puerto Rico and The Virgin
Islands.

Exercises within the land boundaries of Training Area 8 include aircraft
operating at altitudes to 30 kft, mobile ground based equipment, and
permanent ground based equipment. Aircraft and mobile ground based
equipment can be positioned anywhere within the area. A permanent ground
based terminal is located on St. Thomas, Virgin Islands. Other permanent
ground based terminals will be added as required. Specific sites within
Area 8 include, but are not limited to, the Armed Forces Weapons Test
Facility and the Navy Reservation, Vieques Island.

Exercises in the Atlantic Ocean and Caribbean Ocean waters will include
aircraft operating at altitudes to 30 kft and surface ships. These
assets can be positioned anywhere. The waters of the Armed Forces
Weapons Test Facility are included.

***cec TRAINING AREA 9***

Training Area 9 supports Atlantic Coast exercises. Training Area 9
extends inland from, seaward from, and along the low water mark of a
portion of the South Carolina (SC) and Georgia (GA) Atlantic coastlines,
and includes a separate area in the Jacksonville, FL metropolitan area.

*[INLAND PORTION]{.underline}*: The inland portion of Training Area 9
extends westward from the low water mark of the Atlantic Ocean, and
includes all of the areas contained within the boundaries of the
following counties and facilities in the indicated state:

> South Carolina: Beaufort and Jasper Counties
>
> Georgia: Chatham, Bryan, Liberty, Long, and McIntosh Counties; Ft.
> Stewart U.S. Army Facility

Exercises within the boundaries of the inland portion of Training Area 9
will include aircraft operating at altitudes to 30 kft, mobile ground
based equipment, and permanent ground based equipment. Aircraft and
mobile ground based equipment can be positioned anywhere within the area
defined above. Permanent ground based terminals will be added within the
above defined area as required. Specific sites within the above defined
area include, but are not limited to, Beaufort MCAS, SC; Wright Army Air
Field, GA; and Hunter Army Air Field, GA. All of the area within the
legal boundaries of Ft. Stewart U.S. Army Facility, GA is included.

Training Area 9 also includes the Jacksonville, FL metropolitan area.
Mobile and ground based equipment will be located anywhere within the
legal boundaries of the Jacksonville NAS, FL. Mobile, ground based, and
ship based equipment will be located anywhere within the legal
boundaries of the Mayport Naval Station, FL. Aircraft operating in the
vicinity of Jacksonville, FL will maintain emissions at the lower
defined level.

*[SEAWARD PORTION]{.underline}*: The seaward portion of Training Area 9
is bounded on the north by the line that extends eastward from the low
water mark of the Atlantic Ocean along 32.480000 north decimal degrees
of latitude. The western boundary of the seaward portion of Training
Area 9 begins at the intersection of the low water mark of the Atlantic
Ocean with 32.480000 north decimal degrees of latitude, extends
generally southward and southwestward along the low water mark of the
Atlantic Ocean to the intersection of the low water mark with 31.370000
north decimal degrees of latitude. The seaward portion of Training Area
9 is bounded on the south by the line that extends eastward from the low
water mark of the Atlantic Ocean along 31.370000 north decimal degrees
of latitude. There is no eastern boundary of the seaward portion of
Training Area 9. Exercises in the seaward portion of Training Area 9
will include aircraft operating at altitudes to 30 kft and surface
ships. These assets can be positioned anywhere within the defined area.

**CEC EMISSIONS ACROSS THE 4940-4990 MHz BAND**

![](media/image1.png){width="5.975in" height="3.7583333333333333in"}

**APPENDIX D:** List of Commenters

[Comments]{.underline}

Association of American Railroads

Association of Public Safety Communications Officials International,
Inc.

Atheros Communications, Inc.

Chicago Emergency Management and Communications

Chicago Municipal Water Agency

Cinergy Corporation & Consumers Energy Company

District of Columbia Government, Office of the Chief Technology Officer

Illinois Fire Chiefs Association

International Association of Chiefs of Police, Major Cities Chiefs
Association, National Sheriffs' Association, Major County Sheriffs'
Association

International Association of Fire Chiefs, Inc. and International
Municipal Signal Association

Microwave Radio Communications

Motorola, Inc.

National Academy of Sciences' Committee on Radio Frequencies

National Public Safety Telecommunications Council

National Radio Astronomy Observatory

New York, City of

New York City Transit Authority

New York State Office for Technology, Statewide Wireless Network

Phoenix, Arizona, City of

Public Safety Wireless Network

United Telecom Council

Warren C. Havens & Telesaurus Holdings GB, LLC

Wireless Ethernet Compatibility Alliance

[Reply Comments]{.underline}

Association of Public Safety Communications Officials International,
Inc.

District of Columbia Government, Office of the Chief Technology Officer

Industrial Telecommunications Association, Inc.

Motorola, Inc.

Public Safety Wireless Network (PSWN)

United Telecom Council (UTC)

Warren C. Havens & Telesaurus Holdings GB, LLC

[Ex Parte or Late filed Comments]{.underline}

Association of Public Safety Communications Officials International,
Inc.

Los Angeles County Sheriff's Department

Microwave Radio Communications

Motorola, Inc.

Society of Broadcast Engineers

United Telecom Council (UTC)

Warren C. Havens & Telesaurus Holdings GB, LLC

**SEPARATE STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: The 4.9 GHz Band Transferred from Federal Government Use,
Memorandum Opinion*

*and Order and Third Report and Order, WT Docket No. 00-32*

The service rules we adopt today provide an important broadband
opportunity for public safety and homeland security. The Order makes
available for licensing 50 MHz of spectrum that may be used for a
variety of innovative applications, including the delivery of real time
video from inside burning buildings, floor plans to police officers
entering a hostile environment, and even videos from robots entering a
collapsed mineshaft. Moreover, consistent with our continuing efforts to
increase licensee flexibility, the rules we adopt afford state and local
government licensees with the freedom to design flexible and innovative
partnerships between the public and private sectors to facilitate
deployment. In these difficult economic times for our first responders,
this flexibility may be essential to building the infrastructure and
developing the necessary equipment to deliver these new broadband
applications. I urge state and local governments to work with one
another and the critical infrastructure community to utilize fully this
new spectrum opportunity to make all Americans safer.

**SEPARATE STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Approving in Part, Concurring in Part*

*Re: The 4.9 GHz Band Transferred from Federal Government Use,
Memorandum Opinion and Order and Third Report and Order, WT Docket No.
00-32*

I am in strong support of establishing licensing and service rules for
the 4.9 GHz band, and I believe that our action today will give public
safety professionals across the country access to new spectrum and will
further the trend of putting cutting-edge communications technologies to
use in saving lives. I look forward to the development of new products
designed to use the 4.9 GHz band. I commend the public safety community
for pushing the Commission to take today's action and the bureaus for
seeing the challenge through.

We have all been working to facilitate the ability of police
departments, fire departments and utilities companies to interact using
wireless technologies. Communications between these entities is, as we
all understand now, critical in times of emergency. The 4.9 GHz band has
the potential significantly to improve such communications, especially
by allowing government public safety organizations to access utility
companies' public safety oriented communications and monitoring
activities.

I concur in part, however, because I am concerned that the Commission
may at the same time be creating a bit of confusion and perhaps even
future disputes by failing to protect against possible misuse of this
band by private companies for non-public safety activities. We need to
be vigilant to make sure this does not happen.

The way I read it, today's Order establishes a system whereby government
users can enter into agreements to grant private companies access to
public safety spectrum, for free, without adequate restrictions on how
these private companies can use the spectrum.

While all operations in the band are supposed to be "limited to
operations in support of public safety," the types of activities that
are "in support of public safety" are not defined. The term "public
safety services" ***is*** defined, but very broadly \-- any service with
the "principal purpose" of "protecting life, health, or property" is
covered. Additionally, the text allows all types of private companies
that are not utilities or in other public-safety oriented businesses to
access the spectrum. That presumably means that 49% of a company's use
of the band could be generally unrelated to public safety, and 51% could
be used to protect the company's private facilities. If this result is
indeed possible, I would have to ask: is this really the best use of our
public safety spectrum?

I am somewhat reassured by the item, however, because a public safety
entity must grant a private company permission before any of this can
occur, and I believe that utilities companies are dedicated to public
safety. So, most police departments and fire departments will not allow
their 4.9 GHz spectrum to be used for inappropriate activities. And
utility companies across the country are generally very dedicated to
protecting public safety and often go beyond the call of duty to make
their communities safer. Responsible companies will not take advantage
of any vulnerabilities that might exist.

But we went through a similar experience with ITFS. Even though the
majority of licensees use the spectrum with which we entrust them well,
when the Commission leaves open the opportunity for abuse, there will be
some who will take advantage of it. Just as every school did not use its
ITFS spectrum responsibly, every public safety entity will not be an
effective filter for misuse.

As I mentioned, nothing in our rules appears to restrict the private
companies that can use this band to utility companies. So companies far
less public safety oriented than utilities may be able to strike deals
to use the spectrum for their own ends. And our "in support of public
safety" language is overly porous. We must not allow any kind of abuse
to undermine the promise of the 4.9 GHz band for the public safety
activities of both governments and utilities.

Closing on a more positive note, I believe the item is generally a
significant step forward in the Commission's ongoing efforts to enhance
public safety throughout the land, and I thank the bureaus for bringing
it to us this morning.

**SEPARATE STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN**

*Re: The 4.9 GHz Band Transferred from Federal Government Use,
Memorandum Opinion and Order and Third Report and Order, WT Docket No.
00-32*

I am pleased to support this item, which establishes licensing and
service rules for public safety use of the 4940-4990 MHz band (4.9 GHz
band). This item responds to public safety's need for spectrum dedicated
to high-speed data transmission. Numerous state, county, local
government, and national public safety associations argued persuasively
that use of the 4.9 GHz band for high-speed data transmission will
enable responders to carry out critical missions in a way that ensures
more effective service to their communities and provides a safer
environment for emergency responders. In today's item, we adopt
licensing and service rules to promote those goals.

The rules we adopt are intended to accommodate a variety of new public
safety broadband applications, such as high speed on-site file transfers
and specialized headsets equipped with video cameras and environmental
sensors. For example, emergency personnel can use this spectrum to have
instant access to maps, building layouts, emergency medical service
files, and wanted or missing person images. Our rules also allow each
user to have maximum autonomy to use the spectrum as suits its
particular needs. Users in rural areas thus may choose to use the
spectrum to cover larger distances, while users in cities may have a
greater need for mobile and "hot spot" uses.

I am hopeful that the rules we adopt will help public safety personnel
-- which include law enforcement, fire fighters, SWAT teams, bomb
squads, emergency medical providers, and others -- carry out their
missions in as safe and effective a manner as possible. These people,
who must risk their lives to protect our own lives and property, deserve
nothing less.

[^1]: The 4.9 GHz Band Transferred from Federal Government Use, *Second
    Report and Order and Further Notice of Proposed Rule Making*, WT
    Docket No. 00-32, 17 FCC Rcd 3955, 3955 ¶ 1 (2002) (*Second R&O and
    FNPRM*).

[^2]: *Id.*

[^3]: *Id.* at 3957 ¶ 3. For a fuller discussion of the history of the
    4.9 GHz band and this proceeding, see *id.* at 3957-61 ¶¶ 3-7.

[^4]: *Id.* at 3957 ¶ 3.

[^5]: Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, 107
    Stat. 312 (OBRA-93).

[^6]: *See* The 4.9 GHz Band Transferred from Federal Government Use,
    *Notice of Proposed Rulemaking*, WT Docket No. 00-32, 15 FCC Rcd
    4778, 4786 ¶ 16 (2000) (*First NPRM)*.

[^7]: *Id.*

[^8]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3966 ¶ 23.

[^9]: *Id.* at 3967 ¶ 23.

[^10]: *Id.*

[^11]: *Id.* at 3956 ¶ 2.

[^12]: *Id.* at 3956-57 ¶ 2.

[^13]: *Id.* at 3955 ¶ 1.

[^14]: *Id.* at 3961 ¶ 9.

[^15]: Los Angeles County Sheriff's Department Petition for
    Reconsideration, filed May 9, 2002 (*LASD Petition*); Microwave
    Radio Communications Petition for Reconsideration, filed May 8, 2002
    (*MRC Petition*). MRC is a company that provides television
    organizations and public safety groups with point-to-point microwave
    systems for video transport. Motorola and the Association of Public
    Safety Communications Officials-International (APCO) also support
    aeronautical mobile services in the 4.9 GHz band. *See Ex Parte*
    Letter from Steve B. Sharkey Director, Spectrum Standards and
    Strategy, Motorola to Marlene H. Dortch, Secretary, Federal
    Communications Commission, dated Jan. 16, 2003; *Ex Parte* Letter
    from Robert M. Gurss, Shook, Hardy, and Bacon, LLP to Marlene H.
    Dortch, Secretary, Federal Communications Commission, dated Jan. 9,
    2003.

[^16]: *MRC Petition* at 1.

[^17]: *LASD Petition* at 1.

[^18]: Cornell University Opposition, filed July 1, 2002 at 3-4
    (*Cornell Opposition*); National Academy of Sciences Opposition,
    filed July 1, 2002 at 2 (*NAS Opposition*).

[^19]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3961 ¶ 9.

[^20]: *See id.* at 3962 ¶ 9.

[^21]: MRC Reply to Opposition for Petition for Reconsideration, filed
    on July 11, 2002 at 4.

[^22]: *NAS Opposition* at 5.

[^23]: The *Second R&O and FNPRM* merged Footnote US257 into Footnote
    US311 and added three additional radio astronomy zones. Footnote
    US311 states that "\[e\]very practicable effort will be made to
    avoid the assignment of frequencies in the bands 1350-1400 MHz and
    4950-4990 MHz to stations in the fixed and mobile services that
    could interfere with radio astronomy observations." Table of
    Frequency Allocations, 47 C.F.R § 2.106 n.US311.

[^24]: International footnote S5.149 states that "administrations are
    urged to take all practicable steps to protect the radio astronomy
    service from harmful interference," because "emissions from
    spaceborne or airborne stations can be particularly serious sources
    of interference to the radio astronomy service. Table of Frequency
    Allocations, 47 C.F.R § 2.106 n.S5.149. This international footnote
    has previously been added domestically to both the Government and
    non-Government Tables, thus effecting its protection to radio
    astronomy observatories domestically. *See Second R&O and FNPRM*, 17
    FCC Rcd at 3957 n.7.

[^25]: While commenters were generally supportive of aeronautical mobile
    operations, only a small number of jurisdictions expressed interest
    in employing such operations. *See* APCO Comments in Response to
    Petitions For Reconsideration and Clarification at 2; City of
    Chicago, Office of Emergency Management and Communications Comments
    at 1; City of Phoenix, Arizona (Phoenix) Comments at 2; Office of
    the Chief Technology Officer, Government of the District of Columbia
    (DCCTO) Comments at 7-8; Public Safety Wireless Network (PSWN)
    Comments at 5-6.

[^26]: *See* n.Error: Reference source not found, *supra.*

[^27]: For example, aeronautical operations may be possible in the
    4940-4950 MHz portion of the band, so long as "appropriate
    out-of-band emission protections are adopted." *See, e.g., Cornell
    Opposition* at 1*; NAS Opposition* at 1.

[^28]: *See generally* discussion at para. 27*, infra.*

[^29]: By established criteria, we refer to the interference threshold
    levels contained in ITU-R Recom. RA.769-1.

[^30]: We reserve discretion to revisit the issue of whether to pursue a
    rulemaking proceeding regarding an aeronautical mobile service
    allocation in the 4.9 GHz band in the event that the level of
    interest in providing aeronautical mobile services increases, or if
    government and/or industry entities are able to develop technical
    standards that sufficiently protect radio astronomy without unduly
    restricting airborne operations.

[^31]: The Communications Act assigns joint jurisdiction for spectrum
    management to the FCC and the NTIA at the Department of Commerce.
    The FCC is responsible for non-Government users (*e.g*. broadcast,
    commercial, public safety, and state and local government users,
    etc.) and NTIA is responsible for federal users. The majority of
    spectrum is shared between Government and non-Government users, in
    which case the FCC and NTIA must coordinate spectrum policy.

[^32]: 47 C.F.R. § 90.423.

[^33]: *MRC Petition* at 7.

[^34]: 47 C.F.R. § 90.423(a).

[^35]: *Id.*

[^36]: *See* Appendix A, Section 90.1205.

[^37]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3971 ¶¶ 31-34.

[^38]: Such additional public safety services would include private
    internal radio services used by State and local governments and
    non-government entities, and emergency road services provided by
    not-for-profit organizations, provided that they are used to protect
    the safety of life, health, or property, and are not made
    commercially available to the public. 47 U.S.C. § 309(j)(2).

[^39]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3972 ¶ 36.

[^40]: *Id.* at 3973 ¶ 38.

[^41]: *See* 47 C.F.R. § 90.523.

[^42]: *Id; see also* 47 U.S.C. § 337(f)(1).

[^43]: The Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010, *First
    Report and Order and Third Notice of Proposed Rulemaking*, WT Docket
    No. 96-86, 14 FCC Rcd 152, 178-88 ¶¶ 48-72 (1998) (*700 MHz First
    R&O and Third NPRM)*; *see also* The Development of Operational,
    Technical and Spectrum Requirements for Meeting Federal, State and
    Local Public Safety Agency Communication Requirements Through the
    Year 2010, *Second Memorandum Opinion and Order*, WT Docket No.
    96-86, 15 FCC Rcd 16844, 16861 ¶ 36 (2000) (*700 MHz Second MO&O*).

[^44]: *700 MHz First R&O and Third NPRM*, 14 FCC Rcd at 178 ¶ 49.

[^45]: *Id.* at 180 ¶ 54; *see also* 47 C.F.R. § 90.523(a).

[^46]: *700 MHz First R&O and Third NPRM*, 14 FCC Rcd at 181 ¶ 55.

[^47]: *See* 47 C.F.R. § 90.523(b); *see also 700 MHz First R&O and
    Third NPRM*, 14 FCC Rcd at 181 ¶ 56.

[^48]: *700 MHz First R&O and Third NPRM*, 14 FCC Rcd at 181 ¶ 56.

[^49]: *Id.* at 188 ¶ 72.

[^50]: *Id.*

[^51]: *Id.* at 187 ¶¶ 71-72.

[^52]: *700 MHz Second MO&O*, 15 FCC Rcd at 16862 ¶ 39.

[^53]: APCO Comments at 3; City of New York (NYC) Comments at 4; Phoenix
    Comments at 1-2; DCCTO Comments at 2-3; Illinois Fire Chiefs
    Association Comments at 1; International Association of Fire Chiefs,
    Inc. and International Municipal Signal Association Comments at 2;
    Motorola, Inc. (Motorola) Comments at 8-9; New York City Transit
    Authority (NYCTA) Comments at 10; PSWN Comments at 5.

[^54]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3969 ¶ 28 (citing
    Letter to the Honorable Michael K. Powell, Chairman, Federal
    Communications Commission, from Ralph Mendoza, Chief of Police, Fort
    Worth Police Department, dated May 9, 2001; Letter to the Honorable
    Michael K. Powell, Chairman, Federal Communications Commission, from
    Gerald R. Whitman, Chief of Police, Denver Police Department, dated
    June 14, 2001; Letter to the Honorable Michael K. Powell, Chairman,
    Federal Communications Commission, from Al A. Philippus, Chief of
    Police, City of San Antonio Police Department, dated June 14, 2001).

[^55]: *See* paras. 51-52, *infra.*

[^56]: Cinergy Corporation & Consumers Energy Company (Cinergy &
    Consumers) Comments at 9-11.

[^57]: APCO Comments at 4.

[^58]: *See* para. 39, *infra.*

[^59]: *Id.* at 3-4; Industrial Telecommunications Association, Inc.
    (ITA) Reply Comments at 4; Motorola Reply Comments at 3, 5; DCCTO
    Comments at 4.

[^60]: *See* discussion of fixed and mobile uses at paras. 33-34,
    *infra*.

[^61]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3972 ¶ 35.

[^62]: Atheros Comments at 8-9.

[^63]: *Id*. at 9.

[^64]: *See* Motorola Reply Comments at 4.

[^65]: PSWN Comments at 3.

[^66]: *See, e.g.*, PSWN Comments at 6: APCO Reply Comments at 6.

[^67]: *See* LMS Wireless Late-Filed Ex Parte Reply Comments at 6;
    Atheros Communications, Inc. (Atheros) Comments at 5-6.

[^68]: *See* Atheros Comments at 3.

[^69]: *See* 47 CFR § 15.247. We note, however, that Section 15.205 does
    not permit Part 15 operations in the band 4.5-5.15 GHz.

[^70]: *See* discussion at paras. 51-52, *infra.*

[^71]: Further, we do not believe that prohibiting unlicensed Part 15
    commercial operations in this band will have a deleterious effect on
    innovation and access to spectrum in the Part 15 context. Our belief
    is premised on the notion that it is likely that unlicensed Part 15
    commercial operations will be permitted in the 5.470-5.725 GHz band.
    *See* U.S. Department of Commerce, National Telecommunications and
    Information Administration, "Agreement Reached Regarding U.S.
    Position on 5 GHz Wireless Access Devices," ("WRC-03 Agreement"),
    rel. Jan. 31, 2003, (available at
    http://www.ntia.doc.gov/ntiahome/press/2003/5ghzagreement.htm.).

[^72]: *Second R&O and FNPRM*, 17 FCC Rcd at 3971 ¶ 33.

[^73]: *See* NYC Comments at 4; Phoenix Comments at 3; DCCTO Comments at
    1, 4. We also note that the railroad industry has expressed an
    interest in such partnerships. *See* American Association of
    Railroads Comments at 4.

[^74]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934, as Amended, *Report and Order and Further Notice of
    Proposed Rule Making*, WT Docket No. 99-87, 15 FCC Rcd 22709, 22746
    ¶ 76 (2000).

[^75]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3973 ¶ 38.

[^76]: *See id.* at 3956 n.2. Although Section 305 of the Act precludes
    the Commission from licensing stations belonging to and operated by
    the federal Government, NTIA, the entity empowered with managing
    federal use of spectrum, agrees that such restrictions do not bar
    federal entities from use of spectrum managed by the Commission.
    *See 700 MHz First R&O and Third NPRM* , 14 FCC Rcd at 185 ¶¶ 64-66.

[^77]: DCCTO Comments at 5; Motorola Comments at 8.

[^78]: *See 700 MHz First R&O and Third NPRM*, 14 FCC Rcd at 185 ¶ 67
    (permitting Federal Government use of 700 MHz public safety
    spectrum).

[^79]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3975 ¶ 45.

[^80]: *Id.* at 3976-79 ¶¶ 46-58.

[^81]: *Id.* at 3976 ¶ 46.

[^82]: APCO Comments at 10-11; The National Public Safety
    Telecommunications Council (NPSTC) Comments at 8.

[^83]: This approach differs from the Commission's usual geographic
    licensing, where licensees are authorized to operate in
    pre-designated geographic areas. *See*, *e.g.,* Implementation of
    Sections 309(j) and 337 of the Communications Act of 1934 as
    Amended, *Notice of Proposed Rule Making*, WT Docket No. 99-87, 14
    FCC Rcd 5206, 5237 n.185 (1999).

[^84]: In light of the construction requirements we adopt today,
    licensees should be mindful not to obtain their licenses
    prematurely. *See* Appendix A, Section 90.155.

[^85]: APCO Ex Parte Presentation, January 8, 2003.

[^86]: *See* Section V-D, Frequency Utilization, *infra.*

[^87]: The regulations for operations in the 4.9 GHz band will be
    contained in Part 90 of our Rules. *See* para. 36, *infra.*

[^88]: 47 C.F.R. § 90.173(b).

[^89]: *Id.* We nonetheless note that in those situations where parties
    cannot resolve the matter amongst themselves, and which we hope will
    be few, the Commission will act as the final arbiter in resolving
    the dispute(s).

[^90]: Atheros Comments at 13; PSWN Comments at 12.

[^91]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3977 ¶ 50.

[^92]: APCO Comments at 10; Cinergy & Consumers Comments at 26.

[^93]: Cinergy & Consumers Comments at 25.

[^94]: Pursuant to a state licensing scheme, licenses to use the 4.9 GHz
    band would be given directly to each state. Each state would then
    administer the spectrum within its jurisdiction. This task would
    include authorizing individual entities to utilize the spectrum, and
    would also entail coordinating use of the spectrum among licensees.
    *Second R&O and FNPRM*, 17 FCC Rcd at 3976 ¶ 47.

[^95]: New York State Office of Technology (NYSOT) Comments at 8; PSWN
    Comments at 11.

[^96]: As APCO points out, most public safety operations occur at local
    rather than at state levels. APCO Comments at 11.

[^97]: *See* *Second R&O and FNPRM*, 17 FCC Rcd at 3961 ¶ 9**.**

[^98]: *See id.* at 3973 ¶ 39.

[^99]: *See id.*

[^100]: *See id.* at 3974 ¶ 40.

[^101]: *See id.* at 3974 ¶ 41.

[^102]: 47 C.F.R. § 101.3.

[^103]: APCO Comments at 5; Cinergy & Consumers Comments at 5; DCCTO
    Comments at 5-6; Motorola Comments at 7; NPSTC Comments at 4; UTC
    Comments at 5. APCO states that the 4.9 GHz band would have been
    invaluable to establishing short haul data links between management
    support teams and those in the field after the terrorist attacks of
    September 11, 2001. APCO Comments at 6.

[^104]: We note that such fixed uses were slated for the 4635-4685 MHz
    band, for which the 4.9 GHz band was substituted. The Department of
    Commerce originally reallocated the 4660-4685 MHz band from Federal
    to non-Federal Government use, and identified the lower adjacent
    4635-4660 MHz band, among others, for additional transfer effective
    January 1, 1997. *See* *Spectrum Reallocation Final Report, Response
    to Title VI -- Omnibus Budget Reconciliation Act of 1993*, U.S.
    Department of Commerce, NTIA Special Publication 95-32 (Feb. 1995)
    (*Final Report.* Thereafter, in March 1999, pursuant to Section
    6001(a)(3) of OBRA-93, the Department of Commerce notified the
    Commission that the Government was reclaiming the 4635-4685 MHz band
    and identified the 4.9 GHz band as substitute spectrum for transfer
    to non-Government use. *See* OBRA-93, § 6001(a)(3), as codified at
    47 U.S.C. §§ 924(b), 926.

[^105]: *See* DCCTO Reply Comments at 5.

[^106]: APCO Comments at 6; Motorola Comments at 7.

[^107]: *See* NYC Comments at 8; Phoenix Comments at 2.

[^108]: *See* MRC Comments at 4; Atheros Comments at 10.

[^109]: MRC Comments at 4.

[^110]: *See* 47 C.F.R. § 90.20.

[^111]: *See, e.g.,* 47 C.F.R. §§ 90.20(d)(75), 90.235.

[^112]: *See* *Second R&O and FNPRM*, 17 FCC Rcd at 3974 ¶ 42.

[^113]: *See id.* at 3974-75 ¶¶ 42-43.

[^114]: *See id.* at 3975 ¶ 43.

[^115]: *See* para. 27, *supra.*

[^116]: That is, adoption of a channel plan reduces the risk that one
    user will select a frequency that effectively blocks other users on
    both sides.

[^117]: *See* APCO Comments at 8.

[^118]: Atheros Comments at 11.

[^119]: A wireless local area network is a flexible data communication
    system implemented as an extension to, or as an alternative for, a
    wired local area network within a building or campus.

[^120]: A personal area network is a wireless device that can form
    instant ad hoc networks without any wired network connectivity,
    typically over a short range. Such devices provide wireless,
    hands-free links between portable or mobile transceivers and
    numerous devices such as headsets, portable computing devices, video
    cameras, thermal imagers, sensors and 3D locators, often integrated
    into specialized helmets and suits, enabling very localized team and
    coverage around an officer or vehicle.

[^121]: MRC Comments at 3.

[^122]: NYSOT Comments at 10; NYC Comments at 8; Phoenix Comments at 2.

[^123]: NYC Comments at 8; NPSTC Comments at 8; NYCTA Comments at 11;
    United Telecom Council (UTC) Comments at 6.

[^124]: Under a regional planning licensing scheme, which the Commission
    used in both the 700 and 800 MHz public safety bands, the nation is
    divided into regions that have the autonomy to develop plans that
    meet their different communications needs. *Second R&O and FNPRM*,
    17 FCC Rcd at 3978 ¶ 53.

[^125]: APCO Comments at 11-12. In an *ex parte* presentation, APCO
    clarified that regional planning committees for the 4.9 GHz band
    need not duplicate the 700 & 800 MHz models and such committees
    could hold lesser roles, such as maintaining databases of users in a
    particular region. APCO Ex Parte Presentation, January 8, 2003.

[^126]: Motorola Ex Parte Presentation, January 15, 2003.

[^127]: *700 MHz First R&O and Third NPRM* , 14 FCC Rcd at 263-65
    Appendix D.

[^128]: *See* discussion at para. 26, *supra*.

[^129]: *See* Appendix C, detailing the nine CEC training areas as well
    as the emission characteristics of this system.

[^130]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3980 ¶ 59.

[^131]: *See id.* at 3980-81 ¶¶ 60-61.

[^132]: *See id.* at 3980 ¶ 60.

[^133]: Motorola Comments at 16; PSWN Comments at 13.

[^134]: NYC Comments at 9; PSWN Comments at 13.

[^135]: *Second R&O and FNPRM*, 17 FCC Rcd at 3965 ¶ 18. We note that
    the 4950-4990 MHz band is also allocated to space research (passive)
    and Earth Exploration Satellite (passive) on a secondary basis.
    *See* 47. C.F.R. § 2.106 n. 5.339.

[^136]: *See* Table of Frequency Allocations, 47 C.F.R. § 2.106 n.US74.

[^137]: *Second R&O and FNPRM*, 17 FCC Rcd at 3981 ¶ 62.

[^138]: National Academy of Sciences' Committee on Radio Frequencies
    (CORF) Comments at 1; National Radio Astronomy Observatory Comments
    at 2.

[^139]: *See* CORF Comments at 4-5.

[^140]: *See* paras. 12-13, *supra.*

[^141]: *See Second R&O and FNPRM*, 17 FCC Rcd at 3982 ¶ 65.

[^142]: The American National Standards Institute (ANSI) has not yet
    approved HiperLAN2.

[^143]: *Second R&O and FNPRM*, 17 FCC Rcd at 3981 ¶ 63.

[^144]: Atheros Comments at 3; NYC Comments at 11.

[^145]: *Second R&O and FNPRM*, 17 FCC Rcd at 3981 ¶ 63.

[^146]: APCO Comments at 7; NPSTC Comments at 5; PSWN Reply Comments at
    6-7.

[^147]: Atheros Comments at 16.

[^148]: *Second R&O and FNPRM*, 17 FCC Rcd at 3982 ¶ 66.

[^149]: *Id*.

[^150]: Atheros Comments at 18.

[^151]: *See* Motorola Ex Parte Presentation, January 15, 2003.

[^152]: *See* Motorola Comments at 14.

[^153]: *See* Motorola Ex Parte Presentation at 3.

[^154]: See Motorola White Paper, dated July 31, 2001 at 23. Motorola
    states that a 1 watt maximum transmitter power is necessary to meet
    in-building coverage and reliability requirements.

[^155]: A vehicular area network is a wireless device that can form
    instant ad hoc networks without any wired network connectivity,
    typically over a short range. Such devices provide wireless,
    hands-free links between portable or mobile transceivers and
    numerous devices such as headsets, portable computing devices, video
    cameras, thermal imagers, sensors and 3D locators, often integrated
    into specialized helmets and suits, enabling very localized team and
    coverage around an officer or vehicle.

[^156]: *See* APCO Comments at 7; NYSOT Comments at 9; NYC Comments at
    11; NPSTC Comments at 5.

[^157]: 47 C.F.R. §§ 2.1091 & 2.1093.

[^158]: DCCTO Comments at 7.

[^159]: *Second R&O and FNPRM*, 17 FCC Rcd at 3981 ¶ 63.

[^160]: *See* Motorola Comments at 13.

[^161]: *See* APCO Comments at 6; NYC Comments at 5-7.

[^162]: *See* n.Error: Reference source not found, *supra*.

[^163]: *Second R&O and FNPRM*, 17 FCC Rcd at 3982 ¶ 67.

[^164]: *See id.* at 3983 ¶ 68.

[^165]: *Id.*

[^166]: DCCTO Comments at 5-6.

[^167]: Atheros Comments at 10.

[^168]: *See* para. 52, *supra.*

[^169]: *See* Motorola Ex Parte Submission at 3.

[^170]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206(a).

[^171]: *See* 5 U.S.C. § 601--612. The RFA 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).

[^172]: 5 U.S.C. § 605(b).

[^173]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § § 601-612, has
    been amended by the Contract With America Advancement Act of 1996,
    Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the
    CWAAA is the Small Business Regulatory Enforcement Fairness Act of
    1996 (SBREFA).

[^174]: The 4.9 GHz Band Transferred from Federal Government Use,
    *Second Report and Order and Further Notice of Proposed Rulemaking,*
    WT Docket No. 00-32, 17 FCC Rcd 3955, 3993 (Appendix C) (2002).

[^175]: *See* 5 U.S.C. § 604.

[^176]: Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66,
    107 Stat. 312.

[^177]: *See MO&O and Third R&O,* sec. V(A), *supra.*

[^178]: Association of American Railroads Comments at 3.

[^179]: 5 U.S.C. § 603(b)(3).

[^180]: 5 U.S.C. § 601(6).

[^181]: 5 U.S.C. § 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."

[^182]: 15 U.S.C. § 632.

[^183]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^184]: 5 U.S.C. § 601(5).

[^185]: U.S. Department of Commerce, Bureau of the Census, 1992 Census
    of Governments.

[^186]: *Id.*

[^187]: *See* Subparts A and B of Part 90 of the Commission's Rules, 47
    C.F.R. §§ 90.1-90.22. Police licensees include 26,608 licensees that
    serve state, county, and municipal enforcement through telephony
    (voice), telegraphy (code), and teletype and facsimile (printed
    material). Fire licensees include 22,677 licensees comprised of
    private volunteer or professional fire companies, as well as units
    under governmental control. Public Safety Radio Pool licensees also
    include 40,512 licensees that are state, county, or municipal
    entities that use radio for official purposes. There are also 7,325
    forestry service licensees comprised of licensees from state
    departments of conservation and private forest organizations that
    set up communications networks among fire lookout towers and ground
    crews. The 9,480 state and local governments are highway maintenance
    licensees that provide emergency and routine communications to aid
    other public safety services to keep main roads safe for vehicular
    traffic. Emergency medical licensees (1,460) use these channels for
    emergency medical service communications related to the delivery of
    emergency medical treatment. Another 19,478 licensees include
    medical services, rescue organizations, veterinarians, handicapped
    persons, disaster relief organizations, school buses, beach patrols,
    establishments in isolated areas, communications standby facilities,
    and emergency repair of public communications facilities.

[^188]: 13 C.F.R. 121.201, NAICS code 513322.

[^189]: 13 C.F.R. § 121.201, NAICS code 334220.

[^190]: 47 C.F.R. § 1.913(a)(1); *see MO&O and Third R&O,* Appendix A,
    *supra.*

[^191]: *See* 5 U.S.C. § 603(c).

[^192]: *See generally,* 5 U.S.C. § 801 (a)(1)(A).

[^193]: *See* 5 U.S.C. § 604(b).