**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | ET Docket No. 04-151         |
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| Unlicensed Operation in the Band | ** | ET Docket No. 02-380         |
| 3650 -- 3700 MHz                 |    |                              |
|                                  | *  | ET Docket No. 98-237         |
| Additional Spectrum for          | *) |                              |
| Unlicensed Devices               | ** |                              |
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| Below 900 MHz and in the 3 GHz   | *  |                              |
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| Amendment of the Commission's    |    |                              |
| Rules With                       | *  |                              |
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| Regard to the 3650-3700 MHz      | ** |                              |
| Government                       |    |                              |
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| Transfer Band                    | *) |                              |
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+----------------------------------+----+------------------------------+

**NOTICE OF PROPOSED RULE MAKING**

**Adopted: April 15, 2004 Released: April 23, 2004**

**Comment Date:** 75 days from date of publication in the Federal
Register.

**Reply Comment Date:** 105 days from date publication in the Federal
Register.

By the Commission: Chairman Powell issuing a statement.

**Table of Contents Paragraph**

I. introduction 1

II\. background 4

A. Government Transfer Spectrum 5

B. Substitute Spectrum 6

C. Allocation NPRM and FSS Application Freeze Orders 7

D. Allocation Order 8

E. Service Rules NPRM 11

F. Unlicensed Spectrum NOI 14

III\. Discussion 18

A. Allocation Issues 21

1\. FSS Allocation 24

2\. Fixed Service and Mobile Service Allocations 28

3\. Section 3002(c)(4) of the 1997 Balanced Budget Act 30

B. Proposals for Part 15 Unlicensed Operations 32

1\. Fixed Unlicensed Operation. 40

2\. Non-Fixed Unlicensed Operation. 48

3\. Issues Applicable to Fixed and Non-Fixed Operations 55

4\. Other Methodologies for Protecting FSS Earth Stations. 63

C. Options for Licensed Operations 76

IV\. CONCLUSION 97

V. PROCEDURAL MATTERS 98

VI\. ordering clauses 107

Appendix A: Proposed Rules

Appendix B: Initial Regulatory Flexibility Analysis

Appendix C: Determination of Detection Threshold for Non-Fixed Device

# introduction

1.  By this Notice of Proposed Rulemaking (Notice), we propose amending
    our rules to maximize the efficient use of the 3650-3700 MHz band
    ("3650 MHz band") and foster the introduction of new and advanced
    services. In broad terms, the central proposal of this Notice would
    allow unlicensed devices to operate in either all, or portions of,
    this radiofrequency (RF) band under flexible technical limitations
    with smart/cognitive features that should prevent interference to
    licensed satellite services. Specifically, we propose to allow these
    devices to operate with higher power than currently authorized under
    Part 15 of the Rules subject to cognitive technology safeguards. In
    order to foster the development of the unlicensed use that we
    propose herein, we also seek comment on whether to restore a uniform
    primary allocation for all Fixed Satellite Service (FSS) earth
    stations in the band regardless of the date the earth stations were
    authorized, and whether to delete the existing co-primary
    allocations for the Fixed Service (FS) and Mobile Service (MS) in
    this band. We also seek comment on other options that could also
    allow for the provision of licensed terrestrial service in this
    band. On a related matter, we defer action on the petitions for
    reconsideration of the *First Report and Order* (*3650 MHz
    Allocation Report & Order*) in ET Docket No. 98-237 that challenge
    the Commission's previous allocation decisions in the 3650-3700 MHz
    band pending adoption of final rules regarding the allocation
    changes proposed in this proceeding.[^1]

2.  We tentatively conclude that permitting unlicensed operation in the
    3650 MHz band would foster the introduction of new and advanced
    services to the American public, especially in rural areas, and will
    result in a more efficient use of spectrum. This band appears
    particularly well suited to respond to the needs expressed by the
    growing number of entrepreneurial wireless internet service
    providers (WISPs) who are today bringing broadband services to
    consumers in rural areas of the United States who have many fewer
    choices for such services than consumers in more populated areas.
    WISPs have been asking the Commission for additional spectrum for
    unlicensed uses to provide both backhaul service and broadband
    service to their customers.[^2] Among the various alternatives we
    are considering, this spectrum is particularly promising in part
    because the incumbents \-- FSS earth stations that are limited to
    international intercontinental traffic \-- are concentrated
    primarily on the coasts, leaving available the rural areas targeted
    by these providers. In addition, unlicensed use in this band would
    complement existing unlicensed operations in the 2.4 GHz band and
    new operations in the 5 GHz band by enabling the manufacture of
    devices that can use more than one of these band segments. Taken
    together, these proposals should provide substantial opportunities
    for future, high-power, unlicensed devices and achieve efficient use
    of this 50 megahertz block of spectrum. As a result, these proposals
    should facilitate the rapid deployment of advanced
    telecommunications services and technologies to all Americans,
    especially in rural areas of the United States, thus promoting the
    objectives of Section 706 of the Telecommunications Act of 1996.[^3]

3.  In addition, in order to ensure that we can consider other possible
    approaches to achieve our goals for this 50 megahertz block of
    spectrum, we also are seeking comment here on alternative options
    that could potentially provide a combination of unlicensed and
    licensed terrestrial services in this band. For example, we could
    include both FSS and FS licensed operations sharing the band while
    still allowing for unlicensed devices in the band, or split the band
    to allow separate spectrum for unlicensed and terrestrial licensed
    use, all in conjunction with FSS operations. Ultimately, our goal is
    to maximize the efficient use of this band and foster the
    introduction of new and advanced services.

# background

4.  Historically, the 3500-3700 MHz band was exclusive Federal
    Government spectrum, allocated on a primary basis for radiolocation
    services. Subsequently, the band was also allocated to the
    non-government radiolocation service on a secondary basis.[^4] In
    1984, the Commission added a primary allocation in the 3600-3700 MHz
    band for non-government FSS (space-to-Earth), but adopted footnote
    US245 to restrict use of this FSS allocation "to international
    inter-continental systems . . . subject to case-by-case
    electromagnetic compatibility analysis."[^5]

## Government Transfer Spectrum

5.  The Omnibus Budget Reconciliation Act of 1993 (OBRA-93) required
    that the Secretary of Commerce identify at least 200 megahertz of
    spectrum then allocated for use by Federal Government agencies to be
    transferred to private sector use.[^6] In February 1995, pursuant to
    OBRA-93, the National Telecommunications and Information
    Administration (NTIA) released its Final Report on spectrum for
    reallocation.[^7] In pertinent part, the Final Report identified the
    3650 MHz band for transfer, effective January 1999, from a
    government/non-government shared use status to a mixed-use
    status.[^8] While the 3650 MHz band is now predominately available
    for non-government use, a condition of the transfer allows
    government radiolocation stations to continue to operate
    indefinitely in the band at Pascagoula, Mississippi; Pensacola,
    Florida; and Saint Inigoes, Maryland.[^9] We also note that the
    adjacent 3600-3650 MHz band continues to be used by high power
    federal government radar systems that are not limited to the three
    protected sites.

## Substitute Spectrum

6.  The Balanced Budget Act of 1997 (BBA-97) required that the
    Commission assign by competitive bidding a total of 55 megahertz of
    non-Government spectrum, and further directed the Commission to
    reallocate the 2110-2150 MHz band and 15 megahertz from the
    1990-2110 MHz band for this purpose.[^10] The President, however,
    was given the authority to identify an alternate 15 megahertz of
    spectrum for competitive bidding, if spectrum in the 1990-2110 MHz
    band could not be reallocated due to the need to protect incumbent
    Federal Government operations from interference, provided that the
    President determine that allocation of other spectrum better served
    the public interest and "c\[ould\] reasonably be expected to produce
    comparable receipts."[^11] BBA-97 further provided that if the
    President made such a determination, then the President shall
    "identify alternative bands of frequencies totaling 15
    megahertz."[^12] The President exercised this option on the basis of
    the need to protect Federal Government systems and, through NTIA,
    identified four groups of alternative bands that could be assigned
    by competitive bidding instead of 15 megahertz between 1990-2110
    MHz. [^13] The four alternatives were: (1) 944-960 MHz; (2)
    1390-1400 MHz, 1427-1432 MHz, and 1670-1675 MHz; (3) un-auctioned
    parts of the 2500-2690 MHz band; or (4) 3650-3700 MHz.[^14]

## Allocation NPRM and FSS Application Freeze Orders

7.  In December 1998, in ET Docket No. 98-237, the Commission released a
    *Notice of Proposed Rulemaking* (*3650 MHz Allocation Notice*)
    proposing to allocate the 3650 MHz band to the non-government fixed
    service on a primary basis and tentatively concluding not to
    allocate the band to land mobile service.[^15] In order to preserve
    the availability of the band for fixed service, the Commission
    sought comment on whether to delete the FSS allocation in the band,
    but stated that, if it took this course of action, it would
    grandfather existing FSS earth station sites in the band.[^16] In a
    companion *Order* (*FSS Application Freeze Order)*, the Commission
    stated that it would no longer accept applications in the 3650 MHz
    band for: (1) new FSS earth stations, (2) major amendments to
    pending FSS earth station applications, or (3) applications for
    major changes in existing FSS earth stations.[^17] This freeze was
    intended to ensure that adequate opportunities would continue to
    exist for the provision of fixed operations in the band.
    Subsequently, in May 2000, the Commission released a *Memorandum
    Opinion and Order* (*FSS Freeze MO&O*) modifying the freeze by
    providing limited relief.[^18] Specifically, the Commission stated
    that it would accept applications for new FSS earth stations and
    major modifications of existing FSS earth stations in the band if
    the proposed earth station facilities were located in close
    proximity (*i.e.,* 10 miles or less) to an existing, grandfathered
    FSS earth station operating in the band.[^19]

## Allocation Order

8.  In October 2000, the Commission released a *First Report and Order*
    (*3650 MHz Allocation Report &Order*) that allocated the 3650 MHz
    band to fixed and mobile terrestrial services (FS and MS) on a
    co-primary basis, but in order to protect grandfathered FSS earth
    station and Federal Government radiolocation operations, limited the
    mobile allocation to base station use only.[^20] The Commission
    found that the 3650 MHz band was an equivalent and viable substitute
    for the 15 megahertz of spectrum at 1990-2110 MHz and, accordingly,
    concluded that initial FS and MS licenses in the 3650 MHz band would
    be assigned by competitive bidding.[^21] The *3650 MHz Allocation
    Report & Order* grandfathered existing FSS earth station sites in
    the band indefinitely on a primary basis and established that
    applications for FSS earth stations to be located within 10 miles of
    existing grandfathered sites had to be submitted prior to December
    1, 2000 in order for those FSS earth stations to be grandfathered on
    a primary status. The Commission determined to allow additional FSS
    earth station operations in the band on a secondary basis.

9.  In addition, in the *3650 MHz Allocation Report & Order*, the
    Commission deleted the unused secondary non-government radiolocation
    allocation.[^22] The Commission also deleted the government
    radiolocation allocation, but it grandfathered the three existing
    government radiolocation sites that were a condition of the
    transfer.[^23] In a footnote to the Table of Frequency Allocations,
    the Commission adopted an 80 kilometer coordination radius around
    the three grandfathered government radiolocation sites.[^24] As the
    Commission explained, this requirement means that non-government
    terrestrial service and FSS earth stations located within 80
    kilometers of the three grandfathered government radiolocation
    stations may not cause interference to the grandfathered government
    radiolocation operations, that they must accept any interference
    received from such operations, and that they must be coordinated
    before commencing operation.[^25] Finally, the Commission deleted
    the unused government aeronautical radionavigation service
    (ground-based) allocation.[^26]

10. In response to the *3650 MHz Allocation Report & Order*, the
    Commission received four Petitions for Reconsideration and an
    Emergency Motion for Stay.[^27] The petitions request that the
    Commission return the band's full FSS allocation and delete the
    Fixed Service and Mobile Service allocations. These petitions and
    the emergency motion are presently pending. In the interim, the
    International Bureau has authorized four additional earth stations
    in the band on a primary basis by waiving the current secondary FSS
    allocation for new earth stations.[^28]

## Service Rules NPRM

11. Concurrently with adoption of the *3650 MHz Allocation Report &
    Order*, the Commission adopted a *Second Notice of Proposed Rule
    Making* (*3650 MHz Service Rules Second Notice*) seeking comment on
    licensing and service rules for Fixed Service and Mobile Service. In
    the *3650 MHz Service Rules Second Notice*, the Commission
    tentatively concluded to license fixed and mobile services in the
    3650 MHz band under Part 27 of the Commission's rules.[^29] The
    Commission also tentatively concluded to use wide area licensing and
    sought comment on the appropriate geographic licensing area or areas
    to use and spectrum blocks. In addition, the Commission sought
    comment on the feasibility of pairing the 3650 MHz band with the
    4940-4990 MHz (4.9 GHz) band for mobile services and whether such a
    pairing would encourage synergies in the use of both portions of the
    spectrum.

12. The Commission indicated that all FSS earth station operations being
    grandfathered on a primary basis in the band and all new FSS earth
    stations operating on a secondary basis in the band would continue
    to be governed by the Commission's Part 25 satellite licensing and
    service rules. The Commission proposed an FSS build-out requirement
    in case a fixed and mobile services licensee chose to use this
    spectrum for FSS earth station operations. In addition, the
    Commission proposed various technical rules regarding in-band and
    adjacent band interference controls, including the establishment of
    coordination zones around grandfathered FSS earth station
    operations. The Commission also proposed to delete footnote US245
    restricting the 3600-3700 MHz band "to international
    inter-continental systems . . . subject to case-by-case
    electromagnetic compatibility analysis."

13. In response to the *3650 MHz Service Rules Second Notice*, the
    Commission received 17 comments and seven reply comments. Comments
    were submitted on behalf of telecommunications providers that serve
    predominately rural areas of the country and Internet Service
    Providers who wish to provide wireless Internet service to their
    customers. These commenters expressed interest in utilizing the 3650
    MHz band for licensed terrestrial services.[^30] Satellite entities
    filed comments expressing concern that licensed fixed and mobile
    services could cause interference with FSS operations in the
    band.[^31] In addition, representatives of the public safety
    community filed comments opposing the possible pairing of the 3650
    MHz band with the 4.9 GHz band.[^32] Subsequent to the release of
    the *3650 MHz Service Rules Second Notice*, the Commission
    designated the 4.9 GHz band for exclusive public safety use and,
    thus, it is no longer available for commercial use.[^33] To date,
    the Commission has not taken any further action with respect to
    adopting fixed and mobile licensing and service rules for the 3650
    MHz band.

## Unlicensed Spectrum NOI

14. In December 2002, in ET Docket No. 02-380, the Commission released a
    *Notice of Inquiry* (*Unlicensed Spectrum NOI*) seeking comment, in
    part, on the possibility of lifting the current prohibition on
    unlicensed operations in the 3650 MHz band.[^34] The Commission
    stated that the change in the allocation of the 3650 MHz band from
    Federal Government/non-Federal Government shared use to mixed use
    provided us with an opportunity to revisit the prohibition. The
    Commission also sought to develop a record on whether unlicensed
    devices could operate in the 3650 MHz band at power levels
    significantly higher than the maximum currently permitted under
    Part 15. Among other issues, the Commission asked whether: (1)
    licensed fixed operations could exist in this spectrum and
    unlicensed Part 15 devices could operate in unused portions of the
    spectrum on a non-interference basis, and (2) what types of licensed
    services could share the 3650 MHz band with unlicensed devices.

15. In the *Unlicensed Spectrum NOI*, the Commission stated its interest
    in learning whether it might be possible to permit unlicensed
    devices to operate in the 3650 MHz band with relaxed technical
    restrictions while protecting licensed users from receiving
    interference. For example, the Commission observed that it might be
    possible to permit widespread operation with high gain antennas at
    transmitter power levels greater than the 1-Watt maximum permitted
    for other unlicensed devices. The Commission also indicated that it
    might be necessary to require that unlicensed devices allowed to
    operate in this band have capabilities such as frequency agility to
    avoid causing interference to any fixed service operations

16. licensed in the band.[^35] The Commission further indicated that
    relaxed technical requirements could encourage the introduction of
    new and innovative types of unlicensed devices for the benefit of
    all Americans \-- especially those in rural areas. [^36] For
    example, permitting the use of higher power levels and high gain
    antennas would substantially increase the operational range of
    unlicensed devices, which could thereby foster the development of
    new types of wireless data networks that could prove attractive to
    wireless Internet service providers (WISPs).

17. With respect to the 3650 MHz band, a number of commenters express
    support for the idea of lifting the unlicensed use restriction in
    the 3650 MHz band.[^37] In particular, unlicensed equipment
    manufacturers encourage the Commission to allow such operations, and
    WISPs express interest in using this band for point-to-point
    links.[^38] Several commenters assert that mitigation measures such
    as geographic limitations, power limitations, frequency hopping
    and/or the use of smart devices can be implemented to permit
    deployment of unlicensed devices in the 3650 MHz band while still
    protecting earth stations from interference.[^39] Other commenters,
    however, argued that the unlicensed use restriction should not be
    lifted.[^40]

18. Commenters representing satellite entities express mixed opinions
    with regard to allowing unlicensed operation in the 3650 MHz band.
    For example, the Satellite Industry Association (SIA) argues that
    interference to earth stations could be caused by unlicensed
    operations at significant distances, and that geographic
    restrictions and requirements to include geo-location technology are
    not sufficient to prevent interference. SIA also expresses concern
    that emissions from devices in the 3650 MHz band could interfere
    with FSS operations in the adjacent 3700-4200 MHz band.[^41] On the
    other hand, the Coalition of Program Networks and Distributors,
    Broadcast Networks, Satellite Operators and Others (Coalition)
    states that it does not oppose unlicensed use of the band, but
    cautions that sufficient technical analysis should be undertaken to
    establish suitable power levels, modulation types and antenna
    configurations for unlicensed devices that would prevent
    interference.[^42] In that regard, the Coalition states that,
    although it is possible that excessive unlicensed use of the 3650
    MHz band could have the potential of causing interference to the
    reception of satellite signals in adjacent bands, it has not
    conducted an independent analysis of the interference potential. We
    also note that another satellite interest group, the Coalition of
    C-Band Constituents (the "C-Band Coalition") submitted a study, both
    in this proceeding and in ET Docket No. 98-153, addressing the
    potential for ultra-wideband devices to interfere with C-band
    frequencies in the 3700-4200 MHz band in this proceeding.[^43]

# Discussion

19. We believe that the 3650 MHz band is well-suited for the provision
    of new and advanced services to the American public, particularly in
    rural areas. Because incumbent FSS earth stations do not exist in
    much of the continental United States, this band appears
    particularly well suited to satisfy the demands of existing service
    providers using unlicensed devices for spectrum with which to
    enhance service to rural areas through high power unlicensed
    operation. Furthermore, as we observed in the *Unlicensed Spectrum
    NOI,* the rules for unlicensed operation of RF devices have been
    very successful in providing consumers and businesses with a wide
    variety of additional choices to obtain and use information.[^44]
    Today, for example, a growing number of WISPs are emerging with the
    intention of providing an alternative to DSL and cable for
    high-speed connections into the home or office. The use of
    unlicensed RF devices appears to have proven to be ideally suited to
    bridge the gap, especially in rural areas, where cable or DSL
    services have been slow to arrive. Small entities with limited
    resources have stepped in to provide such service in areas that
    other service providers have not prioritized. In numerous fora,
    these providers have expressed a desire for additional spectrum that
    could be used on an unlicensed basis, especially on a higher-power
    basis.[^45] These providers have stated that existing spectrum
    available for unlicensed operation is not adequate to accommodate
    Wireless Metropolitan Area Networks (MANs) or broadband access in
    all rural areas.[^46] In short, we see that there is a growing
    demand for higher-powered unlicensed devices operating at lower
    frequencies where the combination of propagation characteristics and
    higher power are more conducive to longer-range communications.

20. Consequently, we tentatively conclude that allowing unlicensed
    operations in the 3650-3700 MHz band would hold great promise for
    addressing those needs. This contiguous 50 megahertz block of
    spectrum is sufficiently wide to permit wide bandwidth applications
    such as high-speed data transmissions which, for example, could
    serve to better encourage its use for Internet service or backhaul
    by WISPs due to the relatively low entry barriers posed by
    unlicensed operation as compared with licensed operations. Also, the
    3650-3700 MHz band could be used to enhance the utility of existing
    unlicensed operations by creating the potential for additional
    synergies. This band is situated between the 2.4 GHz (2400--2483.5
    MHz) and 5.8 GHz (5.15--5.825 GHz) bands which are commonly used on
    an unlicensed basis. In addition, our proposals here would appear to
    facilitate the development and deployment of devices and systems
    capable of identifying and using the optimal band at any given time,
    such as under the newly adopted IEEE 802.16a ("WiMax") standard. We
    envision multi-band systems which can analyze the operating
    environment and automatically select from the 2.4 GHz, 3650 MHz, or
    5.8 GHz bands. Systems of this type would be able to more
    effectively support applications such as broadband connectivity,
    distance learning, and telemedicine in many rural or underserved
    communities as well as on Native American Tribal lands.

21. While our central proposal is for the use of unlicensed devices with
    cognitive radio techniques, we also wish to ensure that we can
    consider other possible approaches to achieve our goals; and thus we
    are seeking comment on various options that involve the use of
    licensed terrestrial services, such as those that may operate with
    lower power levels than those normally associated with licensed use.
    Specifically, we seek comments on various technical and operational
    issues associated with such options, and seek comment on whether
    some portion of the 3650 MHz band should be designated for licensed
    terrestrial use.

## Allocation Issues

22. In broad terms, we believe that widespread use of the unlicensed
    devices proposed in this Notice could be more readily encouraged if
    such devices were to coexist with only FSS operations in the\
    3650 MHz band. We reach this tentative conclusion because, as
    discussed more fully below, the current FSS allocation, which is
    limited to international intercontinental operations, results in
    earth stations being sited primarily on the east and west coasts,
    thus leaving much of the continental United States available for
    other uses. Moreover, we believe that even a moderate presence of
    potentially ubiquitous terrestrial services under a licensed
    allocation could hamper or preclude the operation of unlicensed
    devices in large geographic areas -- including, especially, rural
    America where the need is greatest. Therefore, our initial proposal
    to allow unlicensed operation in either all, or portions of, the
    3650 MHz band would also entail retention of an FSS allocation that
    is limited to international intercontinental use, and the deletion
    of the existing terrestrial FS/MS allocations in any portions of the
    band in which unlicensed operation would be allowed.

23. Of course, if we ultimately adopt an alternative approach that
    authorizes licensed terrestrial services in the 3650 MHz band, we
    would reflect that by adopting or maintaining a terrestrial
    allocation enabling that approach. In our discussion of licensed
    alternatives below, we also discuss whether to modify the relative
    protection status of future FSS earth stations if we retain a FS and
    MS allocation.

24. In the following paragraphs of this section, we discuss more fully
    the current FSS and FS/MS allocations in the 3650 MHz band. We seek
    comment on what allocation changes would maximize efficient use of
    this spectrum.

### FSS Allocation

25. In the *3650 MHz Allocation Order*, the Commission determined to
    grandfather existing FSS earth station operations on a primary basis
    and to permit new FSS earth station operations on a secondary basis.
    The Commission reasoned that allowing new FSS earth station
    operations on an unrestrained co-primary basis would impede any
    potential widespread use of the band for terrestrial services.[^47]
    Due to the weak signals that are received in the FSS, it was
    determined that coordination with the high-powered terrestrial
    operations would result in potentially large geographic areas where
    terrestrial services could not operate to avoid interference to FSS.
    The Commission stated that the size and shape of these "exclusion
    zones" could be different for each FSS earth station site because of
    factors associated with shielding, antenna orientation and terrain
    elevation. The Commission found that these coordination requirements
    and the presence of exclusion zones would significantly increase
    transaction costs and create a disincentive for deployment of new
    terrestrial operations. Thus, the Commission found that unrestrained
    deployment of FSS earth stations could hinder or greatly inhibit the
    opportunities for terrestrial operations in the band.

26. Since the decision to allow new FSS earth station operations in the
    3650 MHz band only on a secondary basis, significant strides have
    been made in the area of smart/cognitive radio technologies. By
    using these features, as more fully discussed below, we seek comment
    on whether we should revise the 3650 MHz band's existing allocations
    to permit new FSS operations in the band on a co-primary basis with
    unlicensed devices. Note that the scope of this Notice does not
    contemplate any changes to the FSS earth station operations
    grandfathered indefinitely on a primary basis in the band pursuant
    to the *3650 MHz Allocation Order.* We discuss in Section C whether,
    if we maintain an FS/MS allocation, we should revisit the FSS
    allocation.

27. While we seek comment on the possibility of permitting new FSS
    operations in the band on a primary or co-primary basis, we propose
    to retain the application of footnote US245 to the Table of
    Frequency Allocations. This footnote restricts FSS use of the 3650
    MHz band to international intercontinental operations. Although
    deletion of the footnote could provide more flexibility for FSS
    operations in the band, we also believe that more extensive FSS use
    could curtail the efficient use of this band by terrestrial
    operations, whether licensed or unlicensed; and, potentially,
    increase the costs associated with coordinating other co-primary
    users of the band, thus inhibiting opportunities for such operation.
    In contrast, retaining the application of footnote US245 would make
    this band particularly attractive for intensive use by a wide array
    of advanced wireless technologies including higher-powered
    unlicensed devices. We seek comment on our proposal to retain
    footnote US245. Alternatively, we seek comment on whether we should
    recast footnote US 245 as a new footnote particularly for the 3650
    MHz band (e.g., as footnote NGxxx), without the requirement for
    case-by-case electromagnetic compatibility analysis.[^48]

28. As indicated above, four parties representing FSS interests filed
    Petitions for Reconsideration of the decisions made in the *3650 MHz
    Allocation Order*.[^49] In addition, an Emergency Motion for Stay
    was filed. In broad terms, these petitioners request that we reverse
    the Commission's decision to make future FSS operations secondary in
    the 3650 MHz band. If we revise the 3650 MHz band's allocations to
    include primary or co-primary status for new FSS operations, this
    decision would substantially effect the disposition of those
    petitions. Accordingly, we defer further action on the Petitions for
    Reconsideration and the Emergency Motion for Stay of the *3650* *MHz
    Allocation Order* pending our adoption of final rules concerning the
    allocation proposals herein.

### Fixed Service and Mobile Service Allocations

29. The 3650 MHz band's current primary allocation provides for Fixed
    and Mobile (base station only) operations. As mentioned above, if we
    adopt our proposal for unlicensed use in any portion of the 3650 MHz
    band, we propose to delete the FS and MS allocations for the portion
    designated for unlicensed use. We believe that the provision of
    ubiquitous licensed terrestrial services, in addition to FSS
    operations, would hinder the successful deployment of unlicensed
    devices in many areas. As discussed more fully below, one
    alternative approach could involve segmenting the 3650 MHz band into
    one portion that would allow only unlicensed and FSS operations, and
    another portion that would allow only licensed and FSS operations.

30. However, we seek comment on whether the 3650 MHz band's current
    Fixed and Mobile (base station only) allocations should be
    maintained, modified or deleted. In particular, we seek comment on
    whether there is any need or interest for licensed terrestrial
    services. While the range of licensed services that might be
    implemented under the fixed and mobile allocation could be limited,
    we believe that, with some modification to the allocation that is
    described more fully below, the band could accommodate various new
    and advanced licensed services, including the above-mentioned
    services that could be provided by unlicensed devices.

### Section 3002(c)(4) of the 1997 Balanced Budget Act

31. Section 3002(c)(4) of the BBA required the Commission, among other
    things, to reallocate 15 megahertz of spectrum for licenses to be
    assigned by competitive bidding and established deadlines for
    actions to accomplish this objective.[^50] The Commission originally
    proposed reallocating the requisite 15 megahertz specified in the
    BBA from the 2025-2110 MHz portion of the 1990-2110 MHz band.
    However, as indicated above, NTIA thereafter informed the Commission
    of its objections to reallocating the 2025-2110 MHz portion of the
    1990-2110 MHz band for competitive bidding due to existing
    allocations for Federal operations and, in further accordance with
    Section 3002 (c)(4) of the BBA, identified alternative frequencies
    that included, among others, the 3650 MHz band.[^51] As noted above,
    the FS/MS allocations adopted in the *3650 MHz First Report & Order*
    were intended, in part, to satisfy certain statutory auction
    requirements for various frequency bands.[^52] Subsequently, in the
    *Unlicensed Spectrum NOI*, we noted that although the Commission had
    previously found that the allocation and subsequent auction of the
    3650 MHz band to fixed terrestrial services would satisfy the
    statutory requirement of BBA, 15 megahertz of spectrum made
    available as part of the *27 MHz Proceeding*, some of which was
    recently auctioned,[^53] might also have the potential to fulfill
    this purpose.[^54]

32. Based on intervening events, the passage of time, and subsequent
    Commission rulemakings,[^55] we consider it reasonable to conclude
    that we do not have any remaining statutory obligations under
    Section 3002 of the BBA. However, to the extent that it might be
    argued that our obligations under Section
    3002 remain unfulfilled despite these factors, we have several
    alternative options with which to fulfill them, as noted below.
    Specifically, in the *Third R&O, Third NPRM, and 2nd MO&O* in ET
    Docket No 00-258, the Commission reallocated 30 megahertz of
    spectrum from Mobile-Satellite Service (MSS) to the Fixed and Mobile
    services that could, *inter alia*, be used to support advanced
    wireless services

33. (AWS), including 15 megahertz of spectrum in the 1990-2000 MHz and
    2020-2025 MHz bands.[^56] Notably, these spectrum bands also fall
    within the same 1990-2110 MHz range originally specified by the BBA,
    and are not excluded from consideration by Section 3002
    (c)(1)(C).[^57] Moreover, this spectrum appears to meet the criteria
    for reassignment originally specified in Section 3002 (c)(2).[^58]
    We note, however, that several parties have asked to be relocated to
    a portion of the 1990-2000 MHz and 2020-2025 MHz spectrum to support
    existing operations.[^59] In addition to the potential availability
    of spectrum in the 1990-2110 MHz range, another 15 megahertz of
    spectrum has been allocated from MSS to possible AWS use in the
    2165-2180 MHz band.

## Proposals for Part 15 Unlicensed Operations

34. The 3650-3700 MHz band can be used to enhance the utility of
    existing unlicensed operations. As we stated above and in the
    *Unlicensed Spectrum NOI*, the distribution of incumbent FSS earth
    stations -- primarily along the east and west coasts - makes this
    band particularly suitable for high power unlicensed operation
    especially in rural areas. Furthermore, since this band is situated
    between the 2.4 GHz (2400--2483.5 MHz) and 5.8 GHz (5.15--5.135 GHz
    and 5.47-5.825 GHz) bands which are commonly used on an unlicensed
    basis, allowing unlicensed operation in some, or all, of the 3650
    MHz band could add flexibility to current service offerings in all
    three bands.

35. We are not persuaded by the arguments of the Satellite Industry
    Association ("SIA") in its reply comments to the *Unlicensed
    Spectrum NOI*, that we should not provide for unlicensed operations
    in this band. SIA generally asserts that the potential ubiquitous
    uncoordinated use of unlicensed devices would not be feasible
    because the requirement to operate on a non-interference basis would
    require reducing power to impractical levels. SIA further argues
    that the 3650-3700 MHz band is unsuitable for unlicensed operation
    because there is no global allocation for such use.[^60] SIA
    contends that the lack of such an allocation would prevent
    unlicensed devices from taking advantage of the economies of scale
    from global demand, a large manufacturing base, roaming, and reduced
    complexity of equipment.[^61] SIA points to other parties' comments
    which generally support globally harmonized spectrum for unlicensed
    use.

36. We reject SIA's argument against the feasibility of unlicensed
    operation because we tentatively conclude that mechanisms exist, as
    discussed below, that will provide for unlicensed use of the 3650
    MHz band without causing interference to licensed FSS operations.
    This view is also shared by several commenters. For example, AT&T
    states that geographic and power limitations and other restrictions
    should be sufficient to permit unlicensed devices to operate
    successfully in this band without causing interference to licensed
    FSS users in this band.[^62]

37. With respect to SIA's second argument, we find that there should be
    sufficient interest in domestic unlicensed use of the band to
    provide manufacturing incentive, notwithstanding its lack of global
    availability. In support, we note that many unlicensed devices that
    are not permitted to operate globally remain popular choices for
    domestic use. For example, the 902-928 MHz band is used extensively
    for unlicensed operations within the United States but is not
    available for such use in other parts of the world. We believe that
    the 3650--3700 MHz band has the same potential for widespread use
    domestically. In addition, as stated above, the band easily could be
    used to supplement unlicensed domestic uses in the 2.4 GHz and 5.8
    GHz bands. Since the 2.4 GHz and 5.8 GHz bands are also available
    for unlicensed use globally, manufacturers could, for example,
    choose to design products with the capability to operate in all
    three bands, but activate the 3650 MHz functionality in products
    shipped only for use in the United States. For these reasons, we do
    not see the lack of global availability of the 3650 MHz band for
    unlicensed use as a hindrance to use of the 3650 MHz band for
    unlicensed operation.

38. We also find that the C-Band Coalition study does not address the
    merits of the unlicensed operations proposed for the 3650 MHz band.
    That study focused on the potential for ultra-wideband (UWB) devices
    to cause interference to earth stations operating over the frequency
    range of 3700 - 4200 MHz used, among others, by video and television
    broadcasters for dissemination of programming materials in all areas
    of the United States.[^63] As described below, we are proposing
    smart/cognitive and other interference mitigation techniques for
    unlicensed devices operating in the 3650 -- 3700 MHz band to protect
    earth stations that are generally located on the east and west
    coasts of the United States. The C-Band Coalition study does not
    take into account those techniques and thus does not present an
    accurate representation of potential interference from unlicensed
    operations to earth stations in the 3650 -- 3700 MHz band.

39. Furthermore, we tentatively conclude that allowing unlicensed
    devices to operate in fixed as well as non-fixed modes would provide
    equipment manufacturers and system operators maximum flexibility to
    design devices and systems to meet the needs of consumers. In the
    context of this proceeding, fixed-mode unlicensed operation is
    considered to mean non-moving devices, such as used in
    omnidirectional and point-to-point systems. For example, fixed
    devices could be used for backhaul purposes by one operator and
    broadband connectivity to portable devices by another. Non-fixed
    modes of operation could include devices used at non-permanent sites
    for a short period of time and devices used while in motion or
    during halts at unspecified points. Examples of non-fixed devices
    could include laptop wireless connections and mobile handset to
    handset operations.

40. We propose two general approaches for enabling both fixed and
    non-fixed unlicensed devices to operate while protecting FSS earth
    stations and Federal Government operations in the 3650 MHz band. The
    first approach, which would apply to fixed unlicensed devices,
    requires professional installation of each device to ensure that
    certain criteria are met so that operation at a particular location
    and power would not result in interference to any FSS earth station.
    The second approach, which would apply to non-fixed unlicensed
    devices, requires such devices to be capable of automatically
    adjusting the EIRP based upon detection of the presence and strength
    of RF transmissions from operating FSS earth stations. In practice,
    this latter approach would employ methods similar in nature to
    dynamic frequency selection (DFS) techniques used in other bands. In
    addition, we propose that both fixed and non-fixed unlicensed
    devices be required to transmit a device identification signal to
    facilitate determining the source of any interference that might be
    caused by the operation of these devices. Finally, Part 15 of the
    Commission's rules governs the operation of unlicensed
    radiofrequency devices. Therefore, as a general condition of
    operation, the unlicensed devices proposed herein may not cause
    harmful interference to authorized radio services and must accept
    any interference that they receive.[^64]

41. We seek comment on whether both fixed and non-fixed unlicensed
    devices should be permitted to operate in either all, or portions
    of, this band. Commenters should discuss all the benefits and costs
    associated with using all, or portions of, the 3650 MHz band for
    such unlicensed use.[^65]

### Fixed Unlicensed Operation. 

42. Because the location of an operating fixed unlicensed device does
    not change, the development of criteria for ensuring that FSS
    operations are protected from interference is greatly simplified. In
    particular, once an appropriate location and operating parameters
    are chosen for a fixed device (*i.e*., those where its operation
    will not cause harmful interference to an FSS station), both the
    unlicensed device and the FSS should be able to operate without
    mutual adverse effect.

43. *Professional Installation*. To ensure that fixed unlicensed devices
    are established and operated in a manner that will avoid causing
    interference to FSS earth stations, we propose to require that such
    devices be installed by a professional. The professional installer
    would be held responsible to account for the presence of all FSS
    earth stations and Federal Government operations in the vicinity of
    the unlicensed device. Using appropriate knowledge of each earth
    station's location and other relevant technical characteristics, the
    professional installer would be required to ensure that the
    installation and operational characteristics of the fixed unlicensed
    device is unlikely to cause harmful interference and complies with
    the criteria discussed below. We seek comment on the qualifications
    an individual must possess in order to be classified as a
    professional installer.[^66] We recognize that industry
    organizations such as the National Association of Radio
    Telecommunications Engineers (NARTE) and The Part-15 Organization
    have developed Professional Installer Certification programs
    designed to ensure that installers are able to set up unlicensed
    links in a manner to minimize the possibility of creating harmful
    interference to other users of the spectrum.[^67] Should the
    Commission consider completion of industry-based certification
    programs such as these to be sufficient training to be recognized as
    a professional installer? What criteria should the Commission place
    on any such programs that it deems acceptable?

44. We believe that it would be straightforward for professional
    installers to obtain the information necessary to meet their
    responsibilities. The FCC\'s International Bureau Filing System
    (IBFS) database of satellites and associated earth stations is
    available on the FCC\'s website at:
    http://svartifoss2.fcc.gov/prod/ib/forms/index.html. The entire
    database can be downloaded, or a search of data records can be
    performed. While the current search function does not permit easy
    retrieval of satellite earth station records within a particular
    frequency band (such as 3650-3700 MHz), FCC staff is updating the
    IBFS system and such search capability should be in place well
    before any final rules are adopted in this proceeding. We invite
    comment on whether additional information or search capability would
    be helpful if we were to adopt the requirement for professional
    installation.

45. We expect that a primary use for fixed unlicensed devices in this
    band would be to provide wireless broadband connectivity by WISPs in
    rural areas. Therefore, we propose to allow fixed unlicensed devices
    to operate in the 3650‑3700 MHz band with a maximum EIRP of 25 Watts
    (14 dBW) in order to increase effective range. This EIRP should be
    beneficial -- particularly in rural areas - because, compared to
    current Part 15 limits, an EIRP of 25 Watts would more than double
    the signal range of an unlicensed device. We further believe that
    omnidirectional antennas would typically be employed for this
    purpose in order to achieve the most uniform coverage of a
    particular geographic area. To promote flexibility in system design,
    we propose to permit any combination of transmitter output
    power/antenna gain, so long as the 25 Watt EIRP limit is not
    exceeded. Because interference potential is directly related to a
    device's EIRP, specifying this parameter rather than separate output
    power and antenna gain limits would more directly reflect the
    potential for interference in the band.[^68] We seek comment on our
    proposal to set a maximum EIRP of 25 Watts (14 dBW) for unlicensed
    RF devices in the 3650-3700 MHz band. Commenters who believe that it
    would be beneficial to specify other limits, such as transmitter
    output power and antenna gain, should provide details regarding the
    benefits or costs of such an approach as compared to our proposal.
    We also seek comment on our proposed equipment authorization
    requirements, recognizing the fixed and non-fixed equipment would
    likely need to be authorized separately because of the different
    rule requirements.

46. *Antennas*. In ET Docket No. 03-201, we noted that sectorized and
    phased array antennas could be used to create highly spectrum
    efficient networks by forming dynamic communication links with
    mobile or fixed devices in any direction around an antenna
    structure.[^69] This could enable an application like a broadband
    local area network to serve a number of spatially separated clients
    from a single fixed antenna site. Such antennas allow systems to use
    spectrum more efficiently by making it possible to re-use a given
    frequency to communicate with different devices along
    non-overlapping paths. We seek to encourage both new and novel
    antenna technologies that would foster more intensive spectrum use.
    Therefore, we do not believe that fixed unlicensed devices should be
    prohibited from using any particular type of antenna. However, we
    propose that devices using sectorized, scanning spot-beam, or other
    antenna types with multiple beam capability be required to limit the
    EIRP in any direction to no more than 25 Watts. We seek comment on
    how compliance with this requirement could be determined.

47. *FSS Protection Zones*. FSS earth stations in the 3650-3700 MHz band
    use high gain antennas that are very susceptible to interference
    from undesired signals directed toward the main beam. As a result,
    operation of a fixed unlicensed device located within the earth
    station's main beam, even with relatively low EIRP, could cause
    interference at large distances. Conversely, an unlicensed device
    located outside the earth station's main beam could operate with
    relatively higher power and at closer separation distances without
    causing interference.

48. It would be possible, using various propagation models, to develop a
    continuum of permissible EIRPs as a function of both the unlicensed
    device's azimuth with respect to the main beam of the FSS earth
    station, and the separation distance between the two. However, we
    believe that another approach could provide a greater safeguard for
    protecting FSS earth stations, while simultaneously reducing and
    simplifying the burden on professional installers to comply with the
    standards proposed herein. In short, we propose to define protection
    zones around each FSS earth station; within which, operation of a
    fixed unlicensed device would be prohibited. Specifically, we
    propose that installation of a fixed unlicensed device be prohibited
    within a plus-or-minus 15 degree arc of any earth station's main
    antenna beam if the separation distance between the fixed device and
    the earth station is within 180 km. At azimuths outside this main
    beam protection arc, a fixed unlicensed device would be prohibited
    if the separation distance from the earth station is within 25 km.
    At all other locations outside these zones, we propose that fixed
    unlicensed devices could be installed and be permitted to transmit
    with a total maximum EIRP of 25 Watts unless the specifics of such
    operation would cause harmful interference to FSS earth stations.
    Based upon standard propagation models, we tentatively conclude that
    these criteria generally should afford FSS earth stations more than
    adequate protection from interference. We seek comment on this
    conclusion and invite comment on whether other distance versus
    azimuth criteria would be more appropriate.

49. The separation distance proposed for unlicensed fixed operations,
    i.e., 180 km within 15 degrees of the FSS antenna main-beam azimuth
    and 25 km otherwise, is a conservative approach derived from the
    coordination zone that the Commission previously proposed as
    appropriate for much higher powered licensed fixed operations to
    protect FSS earth stations in the 3650 MHz band. In the 3650 MHz
    Second Notice, the Commission tentatively concluded that within 200
    kilometers of a FSS site it would be necessary for a licensed fixed
    operation to coordinate with the FSS operation. Outside of this
    coordination zone, the licensed operation would not need to
    coordinate and could operate with up to 1640 Watts EIRP. The 200
    kilometer licensed coordination zone was based on line of sight
    protection to FSS earth stations and took into account elevation
    angle, and terrain shielding and over the horizon distances from the
    FSS earth station sites. By way of comparison, the 180 kilometer
    separation distance, or exclusion zone, we are proposing herein is
    20 kilometers less than the 200 kilometer coordination zone proposed
    for licensed fixed point-to-point stations in the *3650 MHz Service
    Rules Second Notice*. However, the EIRP of the proposed unlicensed
    devices will be on the order of 18 dB lower than that proposed
    earlier for licensed fixed point-to-point facilities. Accordingly,
    we believe that the reduced separation distance of 180 kilometers
    within 15 degrees of the main beam is appropriate. Outside of the
    main beam, the required separation distance (or exclusion zone) of
    25 kilometers assumes that a noise-to-interference ratio of 10 dB is
    acceptable to the FSS operators and that the ITU-R large FSS antenna
    roll-off gain pattern is appropriate. We believe that these
    separation distances within which unlicensed fixed devices will not
    be allowed to operate, in conjunction with the requirement for
    professional installation will ensure that these fixed devices will
    not interfere with FSS earth stations. We invite comment on whether
    the assumptions used are sufficient to provide appropriate
    protection to the FSS earth stations.

### Non-Fixed Unlicensed Operation. 

50. With respect to non-fixed operation by unlicensed devices, the
    challenge of protecting FSS is more complex because a non-fixed
    device would not be limited to a single location, but may move
    around from one site to another. However, with the approach
    described below, we believe that the FSS earth stations can be
    afforded adequate interference protection from non-fixed unlicensed
    devices.

51. *Power Limits.* As an initial matter, we propose lower power limits
    for non-fixed unlicensed devices than the limits proposed above for
    fixed unlicensed devices. We envision that non-fixed devices
    operating in the 3650 MHz band will be used in similar fashion to
    non-fixed unlicensed devices used in the 2.4 GHz and 5.8 GHz bands.
    Operations in the 2.4 GHz band are limited to a maximum power of
    1 Watt. Power levels for devices operating in the 5.8 GHz band range
    from 50 milliwatts (1 Watt EIRP) for devices in the 5.15-5.25 GHz
    sub-band to 1 Watt (4 Watts EIRP) for devices in the 5.725-5.825 GHz
    sub-band. In order to protect the FSS and Federal Government
    operations in the 3650 MHz band, we propose that non-fixed
    unlicensed devices in the 3650 - 3700 MHz band be limited to a peak
    EIRP of 1 Watt. We note that handheld unlicensed devices in the 2.4
    GHz and 5.8 GHz bands normally operate well below the maximum of 1
    Watt due to battery power limitations and human exposure to RF
    radiation limitations. Therefore, we find that this proposed limit
    for the 3650 MHz band should allow for most types of unlicensed use
    while, along with the other limitations discussed below, protect FSS
    and Federal Government operations. We seek comment on this proposal.

52. *Listen-before-talk, Power Adjustment Capability*. In order to
    protect FSS earth stations from non-fixed unlicensed devices, we
    propose that non-fixed devices be required to employ a DFS-like,
    listen-before-talk mechanism.[^70] In operation, this mechanism
    would automatically adjust the EIRP of the device based upon the
    received strength of an FSS uplink signal which is transmitted (in
    another frequency band) by the same earth station antenna being
    protected. Detection of a stronger FSS signal by the unlicensed
    device would indicate relatively closer proximity to an earth
    station, thus requiring the unlicensed device to operate with lower
    power; while a weaker received signal would, conversely, indicate
    that a higher device power could be used. We believe that this
    approach is desirable in its simplicity because it does not require
    an unlicensed device to independently determine any other
    information; such as, the separation from, or its azimuth with
    respect to the main beam of, an FSS earth station.

53. We tentatively conclude that existing uplink transmissions from FSS
    earth stations in other bands could be used for this purpose. We
    reach this conclusion because the FSS stations that we seek to
    protect - whose operations in the 3650-3700 MHz band are used for
    downlink purposes - are also used for uplink (earth-to-space
    transmit) communications in the 5.85-5.925 GHz and 6.425-6.723 GHz
    bands.[^71] Therefore, we propose to require that unlicensed devices
    be designed with the ability to listen for an FSS uplink signal in
    these other bands in order to enable automatic EIRP adjustment. We
    further propose that, if the non-fixed device detects an uplink
    signal above a minimum power-switching detection threshold of --76
    dBm referenced to a 1-megahertz bandwidth (thus indicating close
    proximity to an earth station), then the non-fixed device would be
    prohibited from transmitting. For received uplink signals from
    --76 dBm to -79 dBm, the device would be limited to a maximum EIRP
    of 250 mW. For received uplink signals between --79 dBm and -82 dBm,
    the non-fixed device could operate at an EIRP of up to 500 mW.
    Finally, for received uplink signals at levels of -82 dBm or less,
    the non-fixed unlicensed devices would be permitted to operate at 1
    Watt, provided such operation complies with applicable human
    exposure limits. We propose to define the power-switching detection
    threshold as the received signal strength (RSS) in dBm (or some
    other metric of received signal format), referenced to the output of
    a 0 dBi receive antenna. These power limits are captured in proposed
    §215.252 (c)(2) in Appendix A.

54. The received power levels listed above are based upon a number of
    technical assumptions including that the maximum allowed EIRP of the
    unlicensed device would be uniformly spread over a 50 megahertz
    bandwidth. All of our assumptions are delineated in Appendix C. We
    seek comment on this approach and invite comment on whether the
    assumptions used in developing these power levels are appropriate
    for providing protection to the FSS earth stations. For example, if
    the maximum allowed EIRP was assumed to be spread over less than a
    50 megahertz bandwidth, how would such an assumption affect the
    tentative results we have obtained? We invite comment on the
    appropriateness and practicality of implementing this approach for
    non-fixed unlicensed devices.

55. With respect to the receive bandwidth of the unlicensed device, we
    believe that no bandwidth correction factor would be required if the
    receive bandwidth of the non-fixed device is greater than 1 MHz.
    However, if the RSS is to be measured correctly by a non-fixed
    device having a receive bandwidth less than 1 MHz, then we propose
    that a bandwidth correction factor be taken into account. We seek
    comment on whether 10\*Log (BW/1MHz) (where BW is the non-fixed
    device's bandwidth expressed in megahertz) should be used as the
    appropriate correction factor for non-fixed devices that have a
    bandwidth less than 1 MHz. Finally, we seek comment on what
    equipment authorization procedures should be required to verify
    compliance with these proposals. This proposal is most easily
    implemented if satellite uplinks in readily identified bands are
    operational at times where the FSS earth station is also in receive
    mode. We recognize that there may be no correlation between the
    transmit and receive frequencies of the earth stations and that some
    earth stations may be operating in a receive-only mode. We seek
    comment on the extent to which this scenario may exist, and possible
    approaches to apply in those cases.[^72]

56. For systems where multiple devices operate under a central
    controller, we propose that only the central controller be required
    to have the capability just described to detect the power-switching
    threshold and to convey appropriate commands to all devices under
    its control. We recognize that there may be devices or architectures
    developed, whereby remote devices are not under the control of a
    master device. We seek comment on requiring such devices to have
    power-switching threshold detection capability. We also invite
    comment on how to identify remote units that operate only under the
    control of a central controller. If a device is to operate under the
    control of a central controller we invite comment on the maximum
    distance the unlicensed device should be allowed to be separated
    from the central controller and how to ensure that the remote device
    ceases transmissions when it exceed this maximum distance.

### Issues Applicable to Fixed and Non-Fixed Operations

57. *Federal Government Facilities.* We seek comment on whether the
    methods described above for both fixed and non-fixed unlicensed
    devices would provide an effective means of protecting the three
    Federal Government radiolocation stations that operate in the
    3650-3700 MHz on a primary basis.[^73] These stations, located at
    St. Inigoes, MD, Pascagoula, MS, and Pensacola, FL, were
    grandfathered as a condition of the transfer of the 3650 MHz band to
    a mixed-use status.[^74] The rules require that FS and FSS stations
    located within 80 kilometers of each site coordinate with the
    Federal Government, but there is no coordination requirement for
    unlicensed devices. We observe that an unlicensed device could be
    designed to listen for transmissions from these facilities and to
    activate the capabilities of the device to modify its operations as
    discussed above. Furthermore, as noted above, the adjacent 3600-3650
    MHz band is used by high power federal government radar systems that
    are not limited to the three protected sites. Consequently,
    unlicensed device manufacturers will likely find the need to
    incorporate design measures to protect their equipment from possible
    overload by these adjacent band radar signals.

58. *Operation in Proximity to U.S. Borders.* To provide sufficient
    protection to Canadian and Mexican stations operating in the
    3650-3700 MHz band that are located near the U.S. borders, we
    propose to require that fixed devices be located at least 8
    kilometers from the U.S./Canada or U.S./Mexico border if the antenna
    of the device looks within the 160^o^ sector away from the border
    and be located at least 56 kilometers from each border if the device
    looks within the 200^o^ sector towards the border. This proposal is
    consistent with the treatment of licensed fixed stations in bands
    above 470 MHz along the U.S./Canada border.[^75] In addition, we
    point out that, even under these guidelines, operators of unlicensed
    devices may need to further reduce their power to protect FSS earth
    stations in Canada or Mexico. We believe that treating devices along
    the border in this manner would strike a balance between providing
    sufficient flexibility for unlicensed operations and the need to
    protect foreign stations. We seek comment on this proposal. We also
    invite suggestions for alternative approaches for treating
    unlicensed devices in the 3650-3700 MHz band along the U.S. borders.

59. We tentatively conclude that no additional requirements are needed
    for non-fixed unlicensed devices to protect FSS earth stations that
    may be located in Mexico or Canada. The listen-before-talk,
    automatic power adjustment mechanism we have proposed for these
    devices should be sufficient to ensure that no Canadian or Mexican
    FSS earth stations licensed pursuant to the current regulations will
    encounter interference. However, we seek comment on whether any
    special circumstances exist that might require non-fixed devices to
    incorporate other mechanisms to protect foreign FSS installations.

60. *Removal of Restriction on Unlicensed Operation in the 3650-3700 MHz
    band.* Unlicensed devices are currently restricted from operating in
    the 3650-3700 MHz band.[^76] Consequently, unlicensed devices are
    limited to only spurious emissions in this band.[^77] Historically,
    restricted bands were established to protect sensitive Federal
    Government and Non-Federal Government operations, such as
    radio-astronomy, which rely on reception of extremely weak signals.
    However, as noted above, the change in the allocation status of the
    3650 MHz band from shared to mixed use provides an opportunity to
    reexamine that prohibition in this band. Because the proposed
    allocation changes set forth herein would limit licensed use of the
    3650-3700 MHz band to relatively few FSS and Federal Government
    users and because no new Federal Government operations will be
    assigned in this band, we no longer believe that this band needs to
    remain restricted. In its comments, SIA states that it is opposed to
    permitting unlicensed devices to operate in the 3650-3700 MHz band
    regardless of power level.[^78] It takes this position for several
    reasons, including lack of technical parameters for unlicensed
    devices and lack of knowledge of the potential number of unlicensed
    devices and their geographic orientation to FSS earth stations.[^79]
    We are not persuaded by SIA\'s argument because, as explained below,
    we believe that it is feasible to develop operating rules for
    unlicensed devices in a manner that should address the in-band
    interference concerns raised by SIA. Accordingly, in order to
    accommodate new unlicensed use, we propose to revise
    Section 15.205(a) by removing the restricted designation from the
    3650-3700 MHz portion of the currently restricted 3600-4400 MHz
    band.

61. *Adjacent Band Emissions.* In proposing to remove the restricted
    status of the 3650-3700 MHz band, we also recognize that it would be
    adjacent to frequency bands that will continue to be restricted.
    Therefore, in order to maintain the same degree of protection for
    adjacent band licensed operations that currently exist under the
    rules, we propose to require that new unlicensed operations in the
    3650 MHz band limit emissions into the adjacent 3600‑3650 MHz and
    3700--4400 MHz bands to spurious emissions only (*i.e.*, emissions
    with a maximum field strength of 500 microvolts/meter measured at 3
    meters).[^80] A similar situation currently exists in the
    2400--2483.5 MHz band which lies between the restricted bands
    2310‑2390 MHz below and 2483.5--2500 MHz above. Using
    spectrum-efficient system design and filtering, however, unlicensed
    devices are nevertheless capable of operating in this band at higher
    power levels than all other unlicensed devices.[^81] In a similar
    fashion, we believe that transmitters can be designed for the
    3650-3700 MHz band with sufficient filtering at the band edges to
    satisfy the emission limits in our rules. We seek comment on this
    proposal to limit emissions in the adjacent restricted bands.

62. *Device Identification Signaling.* While we believe that the
    technical requirements proposed above for fixed and non-fixed
    unlicensed devices should be more than adequate to avoid
    interference to FSS earth stations in the first instance, we must
    also guard against any unforeseen instances when interference might
    nevertheless occur (e.g., when a new FSS earth station is installed,
    or when an existing earth station relocates). As an initial matter,
    we again emphasize that, pursuant to Section 15.5 of the rules,
    unlicensed devices are required to cease operation if found to be
    causing interference to any licensed service. In the event that
    interference might be caused, it could be difficult for the operator
    of a licensed station to identify and locate an unlicensed device
    that may be causing interference. Therefore, as a means of
    facilitating this identification, we propose to require all
    unlicensed devices to broadcast identification information at
    regular intervals.

63. At a minimum, the transmitted data should consist of the contact
    information of the owner/operator of the device. In addition,
    information about the location of a fixed device could be included.
    Will this information be useful to FSS licensees? Commenters
    advocating an identification requirement should also provide detail
    regarding how often the identification signaling shold be done and
    what other information would be useful. Would information such as
    the FCC ID number and transmitter serial number be helpful? We also
    seek comment on the need for, and effective methods to update the
    contact information when an unlicensed non-fixed device is sold or
    otherwise transferred to a new owner/operator after the initial sale
    of the device.

64. We seek to ensure that any identification information embedded
    within the transmission of an unlicensed device can be easily
    extracted. Therefore, we seek comment on whether it is necessary to
    define an identification channel in which to place the data.
    Initially we propose to require the identification information to be
    confined to the 1 MHz portion of the band between 3650 MHz -- 3651
    MHz segment of the band. We note that the proposed band segment for
    the identification lies adjacent to the newly re-designated
    3600--3650 MHz restricted band. We reiterate that only spurious
    emissions are permitted in the restricted bands. Will unlicensed
    devices be able to effectively use the 3650--3651 MHz segment for
    identification purposes without transmitting unauthorized energy
    into the restricted band? Alternatively, the identification
    information can be transmitted as data packets interspersed among
    the unlicensed device communication data. Will FSS licensees be able
    to make use of such information and how often should it be
    transmitted? Regardless of the method used to embed the
    identification data, we seek comment on whether there is a need to
    specify a modulation scheme and standardized data format so that the
    information may be successfully decoded. Finally, we seek comment on
    whether other possible approaches might be taken to address these
    issues.

### Other Methodologies for Protecting FSS Earth Stations. 

65. Finally, although we believe that the technical approach described
    above could be an effective approach for fostering efficient use of
    the 3650-3700 MHz band by unlicensed devices, we seek comment on two
    other specific approaches, as well as on other approaches commenters
    may propose. Either of these approaches could be required, if we
    ultimately decide that that our proposed approach is not practical,
    or potentially could be alternatives available to manufacturers of
    unlicensed devices for protecting FSS earth stations

66. *Geo-location Option*. A first alternative approach for protecting
    FSS earth stations in the 3650-3700 MHz band would be to use
    cognitive/smart unlicensed devices that know their current location
    and the location of nearby earth stations. We sought comment on that
    approach in the *Unlicensed NOI,* and a number of parties supported
    that approach. This approach would be based on a determination of
    reasonable distance separation standards for the operation of
    low-power non-fixed unlicensed devices in this band. For example,
    using known protection criteria for an FSS earth station, an
    unlicensed device could adjust its power based on its location
    relative to nearby FSS earth stations.

67. This technical approach appears to be feasible. For example, IEEE
    802.18 states that embedding GPS in unlicensed devices is
    technically feasible and could be used to limit the device so that
    it does not transmit when located in an area where interference to a
    satellite receive earth station is likely.[^82] We also recently
    noted that one of the benefits of cognitive radio would be the
    ability to determine its location and the location of other
    transmitters, and then select the appropriate operating parameters
    such as the power and frequency allowed at its location.[^83]

68. One of the requirements of this approach is that we specify distance
    separations for protecting FSS earth stations. In its comments on
    the *Unlicensed NOI*, SIA submits a technical annex proposing
    calculated exclusion zones where unlicensed devices would not be
    able to operate.[^84] It argues that its analysis indicates a worst
    case exclusion zone of 416 km is needed for a 1 Watt EIRP unlicensed
    device to protect a satellite earth station.[^85] We find that SIA's
    methodology, while clearly deriving distances that would protect FSS
    earth stations, is overly conservative for the 1-Watt devices we are
    considering here.[^86] We also believe that the current guidelines
    in our rules[^87] for identifying when coordination is necessary are
    overly conservative for purposes of this *Notice*.[^88] For
    instance, in comments filed in the *3650 MHz Service Rules Second
    Notice*, Comsearch stated that it has been able to coordinate
    stations at distances much less than otherwise thought necessary,
    and that in certain cases, earth stations have actually been located
    near the base of fixed service sites in the same band.[^89]

69. We therefore seek comment on alternative methods for determining
    more accurate minimum separation distances for these low EIRP
    levels. Under the simplest approach, an unlicensed device need only
    estimate its distance from the earth station. While overprotecting
    the earth station when a device is behind the station's main lobe,
    it still would appear to allow operation over significant geographic
    areas of the United States. If a device could also estimate its
    orientation relative to the main lobe of the FSS antenna,[^90] we
    might reasonably determine lower distance separation requirements
    when a device is offset from the main lobe, thus granting additional
    operational flexibility in terms of geographic areas, but at the
    cost of added complexity. Ultimately, if there are no better
    methodologies for determining distance separation than those
    currently in the record, we could permit those approaches even
    though, compared with our preferred technical method, we believe
    that they overprotect FSS earth stations and thus needlessly limit
    the operational flexibility of unlicensed devices in this band.

70. Unlicensed devices would need to protect not only existing FSS earth
    stations, but also any future earth stations in the 3650-3700 MHz
    band. Thus, devices relying on geo-location must have a means to
    identify new FSS earth station locations, which should not occur
    very frequently. We seek comment regarding methods by which an
    unlicensed device would access a database of earth station sites and
    by which an updated database would be maintained.[^91] In addition,
    we seek comment on how often devices would need to update their
    databases in order to continue to be able to operate, as well as on
    the type of information that could or should be made available.

71. We also note that it could be possible for an unlicensed device to
    lose contact with its geo-location reference signals under various
    circumstances. We seek comment on the protocols that should be
    followed when an unlicensed device using the geo‑location option
    loses its location detecting capability, such as the period of time
    that the device could continue to operate before ceasing to
    transmit. It would appear to make sense to treat an unlicensed
    device 500 km away from the nearest earth when it lost its
    geo-location differently from one, for example, only 75 km away.

72. Finally, we seek comment on whether a geo-location approach would be
    an effective means of protecting the three Federal Government
    radiolocation stations that operate in the 3659-3700 MHz band on a
    primary basis, as well as earth stations located in Canada and
    Mexico. As previously noted, the rules require that FS and FSS
    stations located within 80 kilometers of each site coordinate with
    the Federal Government. The locations of Canadian and Mexican earth
    stations presumably can be made readily available for use with a
    geo-location approach. Using the techniques described above, it
    would appear to be possible for unlicensed devices to maintain
    appropriate separation distances.

73. *Dedicated RF beacon signal.* We also seek comment, although we see
    various difficulties spelled out below, on whether an unlicensed
    device could make use of dedicated RF beacon signals emanating
    either directly from an FSS earth station or from another
    transmitter located in close proximity to an FSS earth station.[^92]
    Under this approach, unlicensed devices would be designed with
    cognitive capabilities to detect the absence, presence, or relative
    strength of the FSS pilot beacon at the location of the unlicensed
    device and make decisions about whether to transmit or what power
    levels would be appropriate to protect licensed FSS earth stations.
    In its simplest form, transmission by the unlicensed device would be
    enabled at permitted power levels only if no pilot beacon were
    detected.[^93] With a more sophisticated capability, an unlicensed
    device could detect not only the presence of a pilot beacon, but
    also the relative strength of the received pilot beacon or
    information in the data stream of the signal about the earth
    station's receive antenna type and/or orientation. A relatively
    weak, or absent, beacon signal would indicate that a higher EIRP
    could be used by the unlicensed device while, conversely, a
    relatively higher pilot beacon strength would require a
    corresponding reduction in EIRP.

74. This approach would appear to require adoption of various
    standardized technical requirements to ensure that unlicensed
    devices could readily detect a beacon signal. Our analysis does
    indicate that a separate pilot beacon EIRP of between 1.5 Watts and
    26.5 Watts would be sufficient to ensure that non-fixed unlicensed
    devices would be able to receive the beacon under any foreseeable
    circumstances where interference to FSS earth station could be a
    concern. We also think that a standard beacon EIRP might have to be
    specified, perhaps as well as standard format or information
    content, so that every earth station would present the same
    reference beacon signal strength at a given distance. We seek
    comment on any necessary technical parameters.

75. We also seek comment on the important issue of a standardized
    frequency or frequencies for such beacon signals. Using a frequency
    within the 3650-3700 MHz band for a transmission emanating from a
    location at or close to an FSS earth station raises very significant
    technical questions about interference to FSS earth stations --
    especially because this band is in the middle of a broader satellite
    receive band.[^94] If not a frequency within this band, what other
    frequencies might potentially be available that could provide the
    needed functionality without causing interference to existing
    licensees? If no such frequencies are available, it is not clear how
    this approach could be implemented.

76. Also, especially compared with the previous two approaches, namely,
    professional installation of fixed devices and automatic EIRP
    adjustment for non-fixed unlicensed devices, this methodology also
    raises questions about the costs and responsibilities for
    implementation. For example, with respect to responsibility for the
    operation of a beacon signal, it is not clear how the safeguard
    could be implemented by unlicensed device operators, so the burden
    would appear to fall on the FSS earth station licensee. The
    potentially significant costs raise questions about the equities of
    imposing them on existing licensees. There are also significant
    issues regarding whether and how those costs might be paid by
    unlicensed device operations.

77. To allow FSS earth stations operating in this band, or other
    entities, to implement a separate beacon, we might need to modify
    footnote US348 of the Table of Allocations to include a secondary
    radiolocation allocation[^95] for this purpose. We also seek comment
    on such modification as well as on any necessary modifications to
    Part 25 of the Commission's rules if we take this approach. Finally,
    we seek comment on how, under this approach, we should protect the
    three Federal Government radiolocation stations that operate in the
    3650-3700 MHz on a primary basis, as well as earth stations located
    in Canada or Mexico.

## Options for Licensed Operations

78. In order to ensure that we can consider all possible approaches for
    achieving our goals of maximizing efficient use of the 3650 MHz band
    and the provision of new and advanced service, we are also seeking
    comment on whether spectrum in this band should be designated for
    licensed use. If we decide to permit licensed use of the band, we
    will have to adopt appropriate allocation, technical and operational
    rules to govern such operations. In the following paragraphs, we
    shall discuss these requirements. Initially, however, we seek
    comment on the types of licensed services that might be implemented
    in the band, what kinds of technologies could be utilized to develop
    these services, how quickly these services could be developed, and
    where in the country these services might be implemented. Commenters
    should also discuss any technical, legal or economic advantages and
    costs associated with these service options.

79. *Fixed Service and Mobile Service Allocations*. In addition to
    seeking comment on whether to maintain the band's current primary
    Fixed and Mobile allocations, we seek comment on whether to remove
    the mobile station restriction in the current Mobile allocation in
    this band. Since the Commission adopted the *3650 MHz Allocation
    Report & Order*, great strides have been made in the development of
    smart/cognitive radio features that potentially could be used with
    licensed mobile handset operations to prevent interference with FSS
    operations.[^96] As a result, we seek comment on whether, if we
    adopt technical rules requiring use of smart/cognitive features, we
    should revise the existing Fixed and Mobile allocations to permit
    mobile stations to operate in the 3650 MHz band.

80. We also seek comment on whether we should modify the FSS allocation
    if we retain the FS and MS allocations in the band. In the *3650 MHz
    Allocation Report & Order*, the Commission found that spectrum
    sharing between licensed terrestrial services and FSS operations on
    an unrestrained co-primary basis would not be feasible.[^97] As a
    result, the Commission decided to grandfather existing FSS earth
    station operations on a primary basis and to allow new FSS earth
    station operations only on a secondary basis to any FS/MS
    terrestrial stations. We seek comment on whether the use of
    smart/cognitive technologies by licensed services would make it
    technically feasible for new FSS operations to coexist with FS/MS
    services. Assuming such uses of the spectrum are found to be
    technically feasible, we request comment on whether FSS could be
    co-primary with FS/MS and, if so, how this might be
    accomplished.[^98]

81. *Band Segmentation Between Licensed and Unlicensed Use and Band
    Pairing.* If we adopt an option that permits terrestrial licensed
    operations, one way of allowing licensed fixed and mobile services,
    higher-powered unlicensed devices, and FSS earth stations to each
    have access to the 3650 MHz band would be to segment the band. For
    example, one segmentation option could be to divide the band into
    two 15-megahertz segments and a 20-megahertz segment. The two 15-
    megahertz segments could be located at the bottom and the top of the
    band (*i.e*., 3650-3665 MHz and 3685-3700 MHz), with the
    20-megahertz segment situated in the middle of the band (*i.e*.,
    3665-3685 MHz). Under this option, higher-powered unlicensed
    operations would be restricted to the two 15- megahertz segments and
    fixed and mobile licensed operations to the 20-megahertz segment,
    and FSS earth station operations would have access to the entire
    band on a co-primary or secondary basis with licensed fixed and
    mobile operations. Licensed fixed and mobile operations would only
    have to coordinate with FSS earth stations operating on co-channel
    spectrum, and, because unlicensed devices operate on a
    non-interference basis, any FSS earth station would be protected
    from interference potentially caused by unlicensed devices.

82. We seek comment on this segmentation option, as well as splits
    between unlicensed and licensed terrestrial users in other
    proportions. Another option, for instance, would be to establish a
    paired 20 megahertz allocation of 3650--3660 MHz and 3690--3700 MHz
    for licensed terrestrial services while retaining 30 megahertz in
    the 3660--3690 MHz portion of the band for unlicensed operation. In
    addressing different band segmentation scenarios, commenters should
    discuss whether such scenarios would provide sufficient bandwidth to
    enable broadband voice or data services -- on both the licensed and
    unlicensed segments. Commenters should also discuss the types of
    licensed services that might be provided if the licensed spectrum in
    the band is unpaired, e.g., TDD operations, and the amount of
    spectrum needed for such services.

83. Alternatively, we seek comment on whether spectrum at 3650-3700 MHz
    that is made available for licensed terrestrial operations could be
    paired with spectrum in other frequency bands, e.g., in the 2 GHz to
    4 GHz range, and if so, what kinds of services could be provided
    under this type of licensing scenario. We invite commenters to
    suggest possible band pairing options. Commenters should address
    whether, if the frequency bands suggested are relatively far from
    the 3650-3700 MHz band, it would be technically feasible to produce
    equipment (*e.g*., handsets) that could operate on both spectrum
    bands.

84. *Power Limits*. If, under a licensing approach, we remove the
    current allocation restriction on the use of licensed mobile devices
    in the 3650 MHz band (i.e., base station only), licensed and
    unlicensed operations in the band could take on similar operational
    characteristics. We thus could require that licensed devices
    operating in the 3650 MHz band employ the same power limits as
    proposed above for unlicensed devices. Specifically, we could
    require that licensed non-fixed devices operate at a maximum power
    level of 1 watt EIRP, and that licensed fixed devices operate at a
    maximum power level of 25 watts EIRP. By adopting the same power
    limit for licensed devices as proposed for unlicensed devices, we
    should not introduce any interference conditions, with respect to
    FSS operations, that would not be caused by unlicensed devices
    alone.

85. We also seek comment on allowing higher power limits for licensed
    fixed stations operating in 3650 MHz band to enable greater coverage
    areas and transmission distances for such stations. Along with
    greater power levels, of course, comes the concern about increased
    potential interference to FSS earth stations operating both within
    and above the 3650-3700 MHz band. However, as discussed in the *3650
    MHz Service Rules Second Notice*, we could adopt coordination zones
    surrounding co-channel FSS stations, within which any terrestrial
    station operator would have to coordinate with the FSS licensee.
    Because the size of a coordination zone would be a function of the
    power level of the fixed station, protection of co-channel FSS
    stations by high-powered licensed fixed stations would be
    accomplished simply by requiring larger coordination zones for such
    stations. In the *3650 MHz Service Rules Second Notice*, the
    Commission proposed a 1000-Watt EIRP limit for base and fixed
    stations. Such a power limit would create relatively large
    coordination zones, but would provide greater flexibility for
    licensees operating in the band. We therefore seek comment on the
    appropriate EIRP limit -- e.g., 25 Watts, 1000 Watts -- for licensed
    base and fixed stations operating in the 3650-3700 MHz band.

86. *Adjacent Band Emissions*. If we decide to permit licensed systems
    to operate in the 3650 MHz band, we would also have to decide how
    such systems would protect services operating in adjacent bands. In
    the *3650 MHz Service Rules Second Notice*, we proposed that, in
    order to protect FSS operations in the 3700-4200 MHz band from
    interference, terrestrial stations operating in the 3650-3700 MHz
    band would have to comply with the Part 101 emission limits already
    in place to protect such FSS systems from licensed fixed stations
    operating in the 3700-4200 MHz band.[^99] With our proposal herein
    to provide for unlicensed use of the 3650 MHz band, we seek updated
    comment on what interference criteria might be used to protect
    adjacent band services from licensed systems operating in the 3650
    MHz band. For example, should we require that licensed non-fixed
    devices comply with the field strength limit described above for
    unlicensed devices; should we require that licensed fixed stations
    comply with a particular field strength limit or satisfy the
    adjacent band protection criteria proposed in the *3650 MHz Service
    Rules Second Notice*?

87. *Protection of FSS Operations*. If we ultimately adopt a regulatory
    approach that permits licensed operations in this band, we believe
    that it would be appropriate to require that licensed devices employ
    the same measures to protect FSS operations as proposed above for
    unlicensed devices. We seek comment on whether these measures (or
    any of the additional measures proposed above to enable unlicensed
    devices to protect FSS stations - e.g., the geo-location method, the
    RF beacon method) could or should be applied to licensed devices as
    a means of protecting Government radiolocation stations,
    non-Government FSS stations, and Canadian and Mexican stations
    operating near U.S. borders, or whether, for any reason, other
    measures (such as, applying our present interservice coordination
    rules) might be more appropriate. [^100]

88. *Geographic Area Licensing.* If we ultimately decide to permit
    licensed operations in this band, we would need to adopt a licensing
    approach for such operations. In the *3650 MHz Service Rules Second
    Notice*, the Commission tentatively concluded to license the 3650
    MHz band using geographic area licensing and sought comment on what
    sized licensing area or areas should be utilized to license this
    spectrum and whether nationwide licensing would be
    appropriate.[^101] Similarly, the Commission sought comment on
    spectrum block size or sizes and whether the band should be licensed
    using a 50-megahertz license. The Commission also sought comment on
    a range of issues concerning possible competitive bidding
    procedures.[^102] We seek updated comment from interested parties in
    all these areas.

89. We thus ask interested parties to refresh the record on whether we
    should license this band using geographic licensing, as well as on
    particular geographic licensing approaches. As opposed to
    site-by-site licensing, geographic licensing may permit licensees
    more flexibility to respond to market demand and may result in
    significant improvements in spectrum utilization.[^103] In
    particular, geographic licensing allows licensees to coordinate
    usage across an entire geographic area to maximize the use of
    spectrum in areas of highest demand. Geographic licenses also
    provide the flexibility to dynamically adjust spectrum usage
    depending upon market demands. We note that one option for this band
    would be one nationwide license. Under this approach, there would
    only be one fixed and mobile services license available for this
    band which would give the terrestrial licensee greater flexibility
    in building-out its services. We seek comment on whether it would be
    appropriate to have one nationwide fixed and mobile services license
    for this band. We also seek comment on the competitive bidding
    procedures that should be used in the event that mutually exclusive
    applications are accepted, and whether the procedures proposed in
    the *3650 Service Rules Second Notice* would be appropriate for the
    services that are contemplated to be introduced in this band.[^104]

90. *Spectrum Leasing.* Additionally, we seek comment on whether fixed
    and mobile service licensees in the 3650 MHz band should be able to
    lease their spectrum through the policies established in the
    *Secondary Markets Report and Order and Further Notice of Proposed
    Rulemaking* (*Secondary Markets Report and Order* and *Secondary
    Markets Further Notice*, respectively).[^105] In the *Secondary
    Markets Report and Order*, we took action to remove regulatory
    barriers to the development of secondary markets to permit third
    parties to access spectrum through spectrum leasing arrangements. We
    adopted new policies and procedures that enable most wireless
    licensees to lease some or all of their spectrum usage rights to
    third-party spectrum lessees.[^106] Under these rules, the
    Commission is notified of the spectrum leasing arrangements (either
    through a spectrum manager lease notification or a *de facto*
    transfer lease application). We seek comment on whether if we adopt
    licensing rules for this band, our spectrum leasing adopted in the
    *Secondary Markets Order* would apply. In addition, the *Secondary
    Market Further Notice* proposed additional ways to facilitate third
    party access to spectrum through spectrum leasing arrangements,
    including further streamlining of the notification requirements, and
    creating leasing mechanisms to facilitate access by opportunistic
    devices with cognitive radio capability.[^107] We seek comment on
    whether adoption of some of the proposals in the *Secondary Markets
    Further Notice*, or other revisions in the spectrum leasing policies
    would help optimize the use of the 3650 MHz band.

91. *Third-Party Access to Licensed Spectrum Under A "Band Manager"
    Approach.* We also wish parties to update the record on whether, if
    we adopt licensing rules for this band, we should allow third
    parties access to spectrum in the 3650 MHz band through a "band
    manager" licensing model, either as a complement or alternative to
    the spectrum leasing approach adopted under the *Secondary Markets
    Report and Order*. In the *3650 MHz Service Rules Second Notice*,
    the Commission sought comment on whether the use of band manager
    licensing would be appropriate for the 3650 MHz band.[^108] As
    envisioned by that Commission, the band manager would be a
    Commission licensee that could engage in the business of making
    spectrum available to third-party spectrum users through private,
    written contracts.[^109] The Commission specifically sought comment
    on whether the fixed and mobile services licensee should have the
    option of electing to operate as a band manager, a traditional
    licensee (with the right to enter into spectrum leasing
    arrangements), or both to the extent they serve to complement each
    other.[^110]

92. Under this band manager approach, the fixed and mobile services
    licensee would essentially act as a "spectrum broker" and as
    spectrum use coordinator. As a spectrum broker, the licensee would
    have the ability to lease discrete spectrum usage rights to
    different third party spectrum users through private, contractual
    agreements, without having to secure prior approval by the
    Commission and without having to notify the Commission of every
    lease. As a spectrum use coordinator, the licensee would have the
    flexibility to lease and coordinate different spectrum rights,
    including different power levels and other technical parameters, to
    various spectrum users. We seek comment on whether a licensing
    framework utilizing the concept of band manager would optimize use
    of the 3650 MHz band by providing continued protection for
    incumbents as well as maximum flexibility for the potential fixed
    and mobile services licensee and for the creation of new and
    advanced services.[^111] Under this approach, the licensee, subject
    to the technical rules that we adopt, would decide how to maximize
    efficient use of the spectrum and coordination issues would be
    managed by the licensee through private contracts. In addition, the
    licensee would be directly responsible to the Commission for
    preventing harmful interference among the different users in the
    band, including the FSS licensees, as well as licensees in other
    bands. We also seek comment on any potential disadvantages of this
    type of a band manager approach, especially related to the
    interference risks of any particular features of the spectrum in
    question.

93. If we choose to allow the fixed and mobile services licensee to act
    as a band manager, the licensee would be subject to any band manager
    service rules that we adopt. We seek comment on whether our spectrum
    management policies would be enhanced by permitting the licensee the
    flexibility to use its spectrum internally or provide
    telecommunications services, in addition to leasing it. If we were
    to permit such flexibility, should we also implement safeguards to
    ensure that a band manager\'s core function remains focused on
    leasing to other, third party spectrum users; and if so, how? [^112]
    Also, if the fixed and mobile services licensee choices to be a band
    manager, should the licensee have the ability to use the spectrum
    directly and construct its own facilities? In other words, should we
    limit the concept of a band manager to non-facilities-based
    operations so the licensee would only be engaged in the business of
    leasing spectrum? We also seek comment on whether it is necessary to
    provide additional safeguards to prevent a band manager from
    discriminating among spectrum users.

94. We also request comment on the type of information to be included in
    agreements between a band manager and spectrum users if we adopt
    band manager licensing. We seek comment on whether the requirements
    the Commission established for agreements between Guard Band
    Managers and spectrum users in Part 27 of our rules would be
    appropriate. For example, under Part 27 of our rules, agreements
    between the Guard Band Manager and spectrum user(s) in the 700 MHz
    band must specify in detail the operating parameters of the proposed
    systems including power, antenna height, frequency(s) of operation,
    base station locations and area of operations.[^113]

95. We also seek comment on whether we should require the fixed and
    mobile services licensee if it choose to be a band manager to file
    annual reports on its spectrum usage with the Commission.[^114] We
    seek comment on whether such agreements should ensure that the
    licensee is responsible for violations of rules by users of the
    spectrum assigned to them, and whether the licensee must provide the

96. Commission with information on users to allow the Commission to
    limit interference and enforce our rules.[^115]

97. *Site-By-Site Licensing.* If we license fixed and mobile services in
    the 3650 MHz band, another licensing approach would be to use
    site-by-site licensing. One advantage to a site-by-site licensing
    option might be that this licensing scheme allows access to the
    spectrum and entry into the market at a relatively low upfront cost.
    Under this licensing scheme, we could employ several methods. One
    method would be an exclusive use approach. Under this approach the
    first licensee to acquire a license is guaranteed to have its
    operations protected from interference from other later in time
    licensees. However, if the licensee wished to add more sites, it
    would have to acquire a new license for each additional site. We
    could also use frequency coordinators similar to those for certain
    microwave services. Under this approach, a frequency coordinator
    would decide whether interference will be caused by another entity's
    facilities being located near an existing licensee's facilities. If
    the frequency coordinator determines that the second entity's
    facilities will not cause interference to an existing licensee's
    operations, then the second entity would be able to acquire a
    license for its facilities.

98. Another method would be a shared use approach. This approach would
    utilize a frequency coordinator similar to those for the shared
    private land mobile radio (PLMR) frequencies to determine where
    licensees can locate their facilities.[^116] These coordinators do
    not seek to achieve interference-free operations. By definition,
    with a shared use approach, we can have multiple licensees operating
    on the same frequencies in the same geographic areas without having
    exclusive spectrum usage rights and interference protections.
    Coordinators could perform the function, for an applicant, of
    choosing the best frequency(s) available in the service for which
    the applicant is applying at a particular site. They can do this by
    trying to match compatible operations, both in terms of the nature
    of the operations and the number of base stations and associated
    mobiles already on frequencies in the area, as well as proposed.

99. *Other Issues.* Finally, we seek comment on any other issues that
    might arise in the event that fixed and mobile services are allowed
    in the 3650-3700 MHz band along with unlicensed devices and FSS
    operations.

# CONCLUSION

100. In sum, we seek comment on our proposal to allow unlicensed
     operations in the 3650-3700 MHz band as well as comment on the
     specific technical options described above. We request that
     commenters provide detailed information regarding the potential
     benefits and problems that might result from the use of these
     technical options \-- either alone, in tandem, or in combination
     with the other approaches on which we are seeking comment.

# PROCEDURAL MATTERS

## Initial Regulatory Flexibility Analysis

101. As required by the Regulatory Flexibility Act, *see* 5 U.S.C. §
     603, the Commission has prepared an Initial Regulatory Flexibility
     Analysis (IRFA) of the possible significant economic impact on
     small entities of the policies and rules proposed in this document.
     The IRFA is set forth in Appendix B. Written public comments are
     requested on the IRFA. These comments must be filed in accordance
     with the same filing deadlines as comments filed in response to
     this Notice of Proposed Rule Making as set forth *infra* in this
     Section V, and have a separate and distinct heading designating
     them as responses to the IRFA.

## Initial Paperwork Reduction Act of 1995 Analysis

102. This NPRM contains either a proposed or modified information
     collection. As part of its continuing effort to reduce paperwork
     burdens, we invite the general public and the Office of Management
     and Budget (OMB) to take this opportunity to comment on the
     information collections contained in this NPRM, as required by the
     Paperwork Reduction Act of 1995, Public Law 104-13. Public and
     agency comments are due at the same time as other comments on this
     NPRM; OMB comments are due 60 days from date of publication of this
     NPRM in the Federal Register. Comments should address: (a) whether
     the proposed collection of information is necessary for the proper
     performance of the functions of the Commission, including whether
     the information shall have practical utility; (b) the accuracy of
     the Commission's burden estimates; (c) ways to enhance the quality,
     utility, and clarity of the information collected; and (d) ways to
     minimize the burden of the collection of information on the
     respondents, including the use of automated collection techniques
     or other forms of information technology.

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

103. 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 the Commission\'s rules. *See generally* 47 C.F.R. §§ 1.1202,
     1.1203, and 1.2306(a).

## *Comments*

104. Pursuant to Sections 1.415 and 1.419 of the Commission\'s rules, 47
     C.F.R. §§ 1.415 and 1.419, interested parties may file comments on
     or before \[75 days from date of publication in the Federal
     Register\] and reply comments on or before \[105 days from date of
     publication in the Federal Register\]. Comments may be filed using
     the Commission\'s Electronic Comment Filing System (\"ECFS\"),
     <http://www.fcc.gov/e-file/ecfs.html>, or by filing paper copies.
     *See Electronic Filing of Documents in Rulemaking Proceedings*, 63
     Fed. Reg. 23,121 (1998).

105. Comments filed through the ECFS can be sent as an electronic file
     via the Internet to http://www.fcc.gov/e-file/ecfs.html. Although
     this proceeding is captioned under multiple dockets, only one copy
     of an electronic submission, captioned to ET Docket No. 04-151,
     should be filed. In completing the transmittal screen, commenters
     should include their full name, U.S. Postal Service mailing
     address, and the applicable docket or rulemaking number. Parties
     may also submit an electronic comment by Internet e-mail. To get
     filing instructions for e-mail comments, commenters should send an
     e-mail to ecfs@fcc.gov, and should include the following words in
     the body of the message, "get form \<your e-mail address." A sample
     form and directions will be sent in reply. Parties who choose to
     file by paper must file an original and four copies of each filing.

106. Filings can be sent by hand or messenger delivery, by commercial
     overnight courier, or by first-class or overnight U.S. Postal
     Service mail (although we continue to experience delays in
     receiving U.S. Postal Service mail). The Commission\'s contractor,
     Natek, Inc., will receive hand-delivered or messenger-delivered
     paper filings for the Commission\'s Secretary at 236 Massachusetts
     Avenue, N.E., Suite 110, Washington, D.C. 20002. The filing hours
     at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries
     must be held together with rubber bands or fasteners. Any envelopes
     must be disposed of before entering the building. Commercial
     overnight mail (other than U.S. Postal Service Express Mail and
     Priority Mail) must be sent to 9300 East Hampton Drive, Capitol
     Heights, MD 20743. U.S. Postal Service first-class mail, Express
     Mail, and Priority Mail should be addressed to 445 12th Street, SW,
     Washington, D.C. 20554. All filings must be addressed to the
     Commission\'s Secretary, Office of the Secretary, Federal
     Communications Commission.

107. Parties who choose to file by paper should also submit their
     comments on diskette. Such a submission should be on a 3.5-inch
     diskette formatted in an IBM compatible format using Microsoft Word
     or compatible software. The diskette should be accompanied by a
     cover letter and should be submitted in "read only" mode. The
     diskette should be clearly labeled with the commenter's name,
     proceeding (including the lead docket number, type of pleading
     (comment or reply comment), date of submission, and the name of the
     electronic file on the diskette. The label should also include the
     following phrase \"Disk Copy -- Not an Original.\" Each diskette
     should contain only party's pleading, preferably in a single
     electronic file. In addition, commenters must send diskette copies
     to the Commission's copy contractor, Qualex International, Portals
     II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554.

108. Alternative formats (computer diskette, large print, audio cassette
     and Braille) are available to persons with disabilities by
     contacting Brian Millin at (202) 418-7426, TTY (202) 418-2555, or
     via e-mail to Brian.Millin@fcc.gov. This *Notice* can also be
     downloaded at <http://www.fcc.gov/oet>.

## *Contact Person*

109. For further information concerning this rule making proceeding
     contact: Neal McNeil at (202) 418-2408, <Neal.McNeil@fcc.gov>, Gary
     Thayer at (202) 418-2290, <Gary.Thayer@fcc.gov>, or Ahmed
     Lahjouji, (202) 418-2061, Ahmed.Lahjouji@fcc.gov \-- Office of
     Engineering and Technology; or Eli Johnson at (202) 418-1395,
     <Eli.Johnson@fcc.gov>, or Marty Liebman at (202) 418-0633,
     <Martin.Liebman@fcc.gov> \-- Wireless Telecommunications Bureau.

# ordering clauses

110. Accordingly, IT IS ORDERED that pursuant to the authority contained
     in Sections 4(i), 302, 303(c), 303(f), and 303(r) of the
     Communications Act of 1934, as amended, 47 USC Sections 154(i),
     302, 303(c), 303(f), and 303(r) this Notice of Proposed Rule Making
     IS ADOPTED.

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

     FEDERAL COMMUNICATIONS COMMISSION

     Marlene H. Dortch

     Secretary

**APPENDIX A: Proposed Rules**

For the reasons discussed in the preamble, the Federal Communications
Commission proposes to amend 47 C.F.R. parts 15 and 25 as follows:

**PART 15 -- RADIO FREQUENCY DEVICES**

1\. The authority citation of Part 15 continues to read as follows:

**AUTHORITY**: 47 U.S.C. 154, 302a, 303, 304, 307, 336, and 544A.

2\. Section 15.205 is proposed to be amended as follows:

**[§ 15.205 Restricted bands of operation.]{.underline}**

\(a\) Except as shown in paragraph (d) of this section, only spurious
emissions are permitted in any of the frequency bands listed below:

+-----------------+-----------------+----------------+-----------------+
| > MHz           | > MHz           | > MHz          | > GHz           |
+-----------------+-----------------+----------------+-----------------+
| > 0.090 ‑ 0.110 | > 16.42 -       | > 399.9 - 410  | > 4.5 - 5.15    |
| >               | > 16.423        | >              | >               |
| > ^1^0.495 ‑    | >               | > 608 - 614    | > 5.35 - 5.46   |
| > 0.505         | > 16.69475 -    | >              | >               |
| >               | > 16.69525      | > 960 - 1240   | > 7.25 - 7.75   |
| > 2.1735 ‑      | >               | >              | >               |
| > 2.1905        | > 16.80425 -    | > 1300 - 1427  | > 8.025 - 8.5   |
| >               | > 16.80475      | >              | >               |
| > 4.125 - 4.128 | >               | > 1435 -       | > 9.0 - 9.2     |
| >               | > 25.5 - 25.67  | > 1626.5       | >               |
| > 4.17725 -     | >               | >              | > 9.3 - 9.5     |
| > 4.17775       | > 37.5 - 38.25  | > 1645.5 -     | >               |
| >               | >               | > 1646.5       | > 10.6 - 12.7   |
| > 4.20725 -     | > 73 - 74.6     | >              | >               |
| > 4.20775       | >               | > 1660 - 1710  | > 13.25 - 13.4  |
| >               | > 74.8 - 75.2   | >              | >               |
| > 6.215 - 6.218 | >               | > 1718.8 -     | > 14.47 - 14.5  |
| >               | > 108 - 121.94  | > 1722.2       | >               |
| > 6.26775 -     | >               | >              | > 15.35 - 16.2  |
| > 6.26825       | > 123 - 138     | > 2200 - 2300  | >               |
| >               | >               | >              | > 17.7 - 21.4   |
| > 6.31175 -     | > 149.9 -       | > 2310 - 2390­  | >               |
| > 6.31225       | > 150.05        | >              | > 22.01 - 23.12 |
| >               | >               | > 2483.5 -     | >               |
| > 8.291 - 8.294 | > 156.52475 -   | > 2500         | > 23.6 - 24.0   |
| >               | > 156.52525     | >              | >               |
| > 8.362 ‑ 8.366 | >               | > 2655 - 2900  | > 31.2 - 31.8   |
| >               | > 156.7 - 156.9 | >              | >               |
| > 8.37625 -     | >               | > 3260 - 3267  | > 36.43 - 36.5  |
| > 8.38675       | > 162.0125 -    | >              | >               |
| >               | > 167.17        | > 3332 - 3339  | > (^2^)         |
| > 8.41425 -     | >               | >              |                 |
| > 8.41475       | > 167.72 -      | > 3345.8 -     |                 |
| >               | > 173.2         | > 3358         |                 |
| > 12.29 -       | >               | >              |                 |
| > 12.293        | > 240 - 285     | > 3600 - 3650  |                 |
| >               | >               | >              |                 |
| > 12.51975 -    | > 322 - 335.4   | > 3700 - 4400  |                 |
| > 12.52025      |                 |                |                 |
| >               |                 |                |                 |
| > 12.57675 -    |                 |                |                 |
| > 12.57725      |                 |                |                 |
| >               |                 |                |                 |
| > 13.36 --      |                 |                |                 |
| > 13.41         |                 |                |                 |
+-----------------+-----------------+----------------+-----------------+

^1^ Until February 1, 1999, this restricted band shall be 0.490-0.510
MHz.

^2^ Above 38.6

\* \* \* \* \*

3\. A new Section 15.252 is proposed to be added to read as follows:

**[§ 15.252 Operation within the band 3.65-3.70 GHz.]{.underline}**

\(a\) Fixed and non-fixed unlicensed devices in this band must be
operated in a manner so as not to cause harmful interference to licensed
fixed satellite service (FSS) earth stations authorized to receive
signals in the 3650 -- 3700 MHz band.

\(b\) *Fixed devices*. Fixed devices must be installed by a recognized
professional installer. The installer shall ensure that the operation of
the fixed device is unlikely to cause harmful interference to licensed
FSS earth stations and complies with the following requirements.

\(1\) The maximum peak effective isotropic radiated power (EIRP) shall
not exceed 25 Watts. The fixed device may employ an advanced antenna
system capable of dynamically modifying the system radiation pattern.
The EIRP of the fixed device must be reduced to levels which will not
cause interference to existing licensed FSS earth stations.

\(2\) No fixed unlicensed device shall operate within the sector of a
circle around a licensed FSS earth station defined by an arc ± 15º on
either side of the FSS earth station antenna boresight and a 180 km
radius. Outside of this sector, no fixed device shall operate within 25
km of a licensed FSS earth station.

\(c\) *Non-fixed devices.* The maximum peak EIRP of non-fixed devices
shall not exceed 1 Watt.

\(1\) The non-fixed device shall employ active interference avoidance
mechanisms to detect FSS earth station uplink signals in the bands 5.85
-- 5.925 GHz and 6.425 -- 6.723 GHz.

\(2\) The non-fixed device shall reduce peak EIRP below 1 Watt in
accordance with the receive signal level (R~SS~) as shown below:

+-----------------------------------------+----------------------------+
| Unlicensed Device                       | Maximum Allowed            |
|                                         |                            |
| Receive Signal Strength (R~SS~)         | EIRP                       |
+-----------------------------------------+----------------------------+
| R~SS~ \> -76 dBm                        | (not allowed)              |
+-----------------------------------------+----------------------------+
| -76 dBm ≥ R~SS~ \> -79 dBm              | 250 mW                     |
+-----------------------------------------+----------------------------+
| -79 dBm ≥ R~SS~ \> -82 dBm              | 500 mW                     |
+-----------------------------------------+----------------------------+
| -82 dBm ≥ R~SS~                         | 1 Watt                     |
+-----------------------------------------+----------------------------+

\(3\) For systems having multiple devices operating under a central
controller, only the central controller is required to detect FSS earth
station uplink signals. The central controller must instruct all devices
under its control to reduce transmit EIRP in accordance with the R~SS~
and paragraph (c)(2) of this section.

\(d\) No device in this band shall be operated within 80 kilometers of
the three authorized Government radiolocation stations unless the
methods described above are applied. See § 2.106, Footnote US348, of
this chapter.

\(e\) *Operation in Border areas.* Fixed devices must be located at
least 8 kilometers from the U.S./Canada or U.S./Mexico border if the
antenna of that device looks within the 160º sector away for the border.
The devices must be located at least 56 kilometers from each border if
the antenna looks within the 200º sector towards the border.

\(f\) Within any one second interval of signal transmission, each
unlicensed device must transmit a transmitter identification at least
once. The identification must be confined to the 3650 -- 3651 MHz
portion of the band. Each application for equipment authorization must
declare that the equipment contains the required transmitter
identification feature and must specify a method whereby interested
parties can obtain sufficient information, at no cost, to enable them to
fully detect and decode this transmitter identification information.
Upon the completion of decoding, the transmitter identification data
block must provide the following fields.

\(1\) User/owner contact information.

\(2\) Current physical location of the unlicensed device.

The grantee must implement a method that makes it possible for users to
specify and update this data.

**APPENDIX B: INITIAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),[^117] the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities small entities by the policies
and rules proposed in this Notice of Proposed Rule Making (NPRM).[^118]
Written public comments are requested on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by the deadlines
for comments on the NPRM provided in Part V of the item. The Commission
will send a copy of the NPRM, including this IRFA, to the Chief Counsel
for Advocacy of the Small Business Administration (SBA).[^119] In
addition, the NPRM and IRFA (or summaries thereof) will be published in
the Federal Register.[^120]

**A. Need for, and Objectives of, the Proposed Rules**

In broad terms, the central proposal of this Notice would allow
unlicensed devices to operate in either all, or portions of, this
radiofrequency (RF) band under flexible technical limitations with
smart/cognitive features that should prevent interference to licensed
satellite services. We also seek comment on whether to restore a uniform
primary allocation for all Fixed Satellite Service (FSS) earth stations
in the band regardless of the date the earth stations were authorized,
and whether to delete the existing co-primary allocations for the Fixed
Service (FS) and Mobile Service (MS) in this band. We also seek comment
on other options that could also allow for the provision of licensed
terrestrial service in this band.

The 3650 -- 3700 MHz band is a "transfer" band that the National
Telecommunications and Information Administration (NTIA) reallocated
from Government/non-Government shared use status to mixed use status
effective 1993.[^121] Prior to the transfer, the non-government use of
the band was limited to international, intercontinental FSS receive
stations.[^122] A condition of the transfer allows Government
radiolocation stations to continue to operate indefinitely in the 3650
-- 3700 MHz band at three locations with a "radius of operation" of 80
kilometers (49.7 miles).[^123] In reallocating this spectrum, we sought
to maximize the use of the band, and particularly to facilitate the
provision of a broad range of traditional voice and broadband high-speed
services, and to foster the introduction of such service to rural areas
of the country.[^124] We expected this allocation to encourage new and
more effective competition to existing wireline local exchange carriers
by providing for an economical means to offer competitive "local loop"
or "last mile" facilities.

On December 20, 2002, the Commission released a *Notice of Inquiry*
(*NOI*) in ET Docket No. 02-380 seeking comment from the public on the
possibility of permitting unlicensed devices to operate in additional
frequency bands.[^125] Specifically, the *NOI* sought comment with
regard to the feasibility of allowing unlicensed devices to operate in
TV broadcast spectrum and the technical requirements that would permit
unlicensed devices to operate in that spectrum such that the devices do
not cause interference to authorized services. Additionally, the *NOI*
sought comment on the feasibility of permitting unlicensed devices to
operate in the 3650 -- 3700 MHz band at power levels higher than those
permitted for unlicensed devices in other bands. Seventy-five parties
filed comments and twenty-six parties filed reply comments in response
to the *NOI*.

The present proposals, if adopted, will prove beneficial to
manufacturers and users of unlicensed technology, including those who
provide services to rural communities. Specifically, we note that a
growing number of service providers are using unlicensed devices within
wireless networks to serve the varied needs of industry, government, and
general consumers alike. One of the more interesting developments is the
emergence of wireless Internet service providers or "WISPs." Using
unlicensed devices, WISPs around the country are providing an
alternative high-speed connection in areas where cable or DSL services
have been slow to arrive. We believe that the increased flexibility
proposed herein will help to foster a viable last mile solution for
delivering Internet services, other data applications, and even video
and voice services to underserved, rural, or isolated communities.

**B. Legal Basis**

The proposed action is authorized under Sections 4(i), 301, 302, 303(e),
303(f), 303(r), 304 and 307 of the Communications Act of 1934, as
amended, 47 U.S.C. Sections 154(i), 301, 302, 303(e), 303(f), 303(r),
304 and 307.

**C. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply**

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.[^126] The RFA defines the
term "small entity" as having the same meaning as the terms "small
business," "small organization," and "small business concern".[^127] In
addition, the term "small business" has the same meaning as the term
"small business concern" under the Small Business Act.[^128] Under the
Small Business Act, a "small business concern" is one that: (1) is
independently owned and operated; (2) is not dominant in its field of
operations; and (3) meets may additional criteria established by the
Small Business Administration (SBA).[^129] Nationwide, there are a total
of 22.4 million small businesses, according to SBA data.[^130]

A "small organization" is generally "any not-for-profit enterprise which
is independently owned and operated and is not dominant in its
field."[^131] Nationwide, there are approximately 1.6 million small
organizations.[^132] The term \"small governmental jurisdiction\" is
defined as "governments of cities, towns, townships, villages, school
districts, or special districts, with a population of less than fifty
thousand."[^133] As of 1997, there were approximately 87,453
governmental jurisdictions in the United States.[^134] This number
includes 39,044 county governments, municipalities, and townships, of
which 37,546 (approximately 96.2%) have populations of fewer than
50,000, and of which 1,498 have populations of 50,000 or more. Thus, we
estimate the number of small governmental jurisdictions overall to be
84,098 or fewer.

The Commission has not developed a definition of small entities
applicable to unlicensed communications devices manufacturers.
Therefore, we will utilize the SBA definition applicable to Radio and
Television Broadcasting and Wireless Communications Equipment
Manufacturing. Examples of products in this category include
"transmitting and receiving antennas, cable television equipment, GPS
equipment, pagers, cellular phones, mobile communications equipment, and
radio and television studio and broadcasting equipment"[^135] and may
include other devices that transmit and receive IP-enabled services,
such as personal digital assistants (PDAs). Under the SBA size standard,
firms are considered small if they have 750 or fewer employees.[^136]
According to Census Bureau data for 1997, there were 1,215
establishments[^137] in this category that operated for the entire
year.[^138] Of those, there were 1,150 that had employment of under 500,
and an additional 37 that had employment of 500 to 999. The percentage
of wireless equipment manufacturers in this category was approximately
61.35%,[^139] so we estimate that the number of wireless equipment
manufacturers with employment of under 500 was actually closer to 706,
with and additional 23 establishments having employment of between 500
and 999. Consequently, we estimate that the majority of wireless
communications equipment manufacturers are small entities that may be
affected by our action

**D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements**

Part 15 transmitters are already required to be authorized under the
Commission\'s certification procedure as a prerequisite to marketing and
importation. *See* 47 C.F.R. §§ 15.101, 15.201, 15.305, and 15.405. The
changes proposed in this proceeding would not change any of the current
reporting or recordkeeping requirements. Further, the proposed
regulations add permissible operating frequencies. The proposals would
not require the modification of any existing produces.

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

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. 5 U.S.C §
603.

At this time, the Commission does not believe the proposals contained in
this Notice will have a significant economic impact on small entities.
The Notice does not propose new device design standards. Instead, it
relaxes the rules with respect to the types of devices which are allowed
to operate pursuant to the Commission's regulations. There is no burden
of compliance with the proposed changes. Manufacturers may continue to
produce devices which comply with the former rules and, if desired,
design devices to comply with the new regulations. The proposed rules
will apply equally to large and small entities. Therefore, there is no
inequitable impact on small entities. Finally, this Notice does not
recommend a deadline for implementation. We believe that the proposals
are relatively simple and do not require a transition period to
implement. An entity desiring to take advantage of the relaxed
regulations may do so at any time.

Unless our views are altered by comments, we find that the proposed rule
changes contained in this Notice will not present a significant economic
burden to small entities. We also encourage small entity comment
generally on this IRFA, as noted *supra*. Notwithstanding our finding,
we request comment on alternatives that might minimize the amount of
adverse economic impact, if any, on small entities.

**F. Federal Rules that May Duplicate, Overlap, or Conflict With the
Proposed Rule**

None.

**APPENDIX C**

**Determination of Detection Threshold for Non-Fixed Device**

The parameters assumed for this earth station are summarized below:

Table 1: Earth station parameters

  ------------------------------------------------------- ---------------
  Earth Station                                           Parameters

  Maximum antenna gain (dBi)                              55.3

  Antenna gain at backlobe (dBi)[^140]                    -10

  Transmit main beam EIRP (dBW/MHz)[^141]                 44

  Transmit frequency (MHz)[^142]                          5850

  Thermal noise temperature. (^o^K)                       100

  Assumed receiver bandwidth (MHz)                        50

  Earth station thermal noise floor[^143] (dBW/50 MHz)    -131.6

  Earth station interference threshold @ ΔT/T = 10%[^144] -141.6
  (dBW/50 MHz)                                            

  Receive frequency (MHz)                                 3650
  ------------------------------------------------------- ---------------

The parameters assumed for the non-fixed unlicensed device are
summarized in Table 2:

Table 2: Unlicensed device parameters

  ------------------------------------------------------- ---------------
  Unlicensed Device                                       Parameters

  Maximum transmit EIRP when receiving signal at          250
  detection threshold (mW)                                

  Detection receiver bandwidth (MHz)                      1

  Antenna Gain (dBi)                                      0
  ------------------------------------------------------- ---------------

Step 1: Determine the separation distance needed between a 250 mW
unlicensed device operating at the backlobe of the FSS station.

  ------------------------------------------------------- ---------------
  Link Budget                                             Values

  Unlicensed device transmit EIRP (250 mW)                24 dBm

  Earth station protection threshold (-141.6 dBW/50MHz)   -111.6 dBm/50
                                                          MHz

                                                          

  Loss needed between unlicensed device and earth station 135.6 dB
  (24 dBm - -111.6 dBm)                                   

  Miscellaneous losses[^145]                              10 dB

  Loss needed to be attributed to path loss at 3650 MHz   125.6 dB
  (135.6 dB -- 10 dB)                                     

                                                          

  Separation distance at which path loss = 125.6 dB at    12.5 Km
  transmit frequency of 3650 MHz[^146]                    

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

Step 2: Determine the detection threshold to protect an FSS earth
station from a 250 mW unlicensed device

  ----------------------------------------------------- -----------------
  Link Budget                                           Values

  Earth station main beam transmit EIRP (44 dBW/MHz)    74 dBm/MHz

  Earth station antenna gain (backlobe)                 -10 dBi

  Earth station EIRP (backlobe)                         64 dBm/MHz

                                                        

  Free space path loss of satellite signal at 12.5 Km   129.7 dB
  and 5850 MHz                                          

  Miscellaneous losses                                  10 dB

  Total losses                                          139.7 dB

                                                        

  Received signal at unlicensed device (64 dBm -- 139.7 -75.7 dBm/MHz
  dB)                                                   

                                                        

  Detection threshold to protect earth station          -76 dBm/MHz
  ----------------------------------------------------- -----------------

**STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: Unlicensed Operation in the Band 3650-3700 MHz; Additional Spectrum
for Unlicensed Devices Below 900 MHz and in the 3 GHz Band; Amendment of
the Commission's Rules with Regard to the 3650-3700 MHz Government
Transfer Band,*

*ET Docket Nos. 04-151, 02-380 and 98-237*

There has been tremendous progress in the past few years in the
development of smart/cognitive radio technologies. This Notice of
Proposed Rulemaking takes a hard look at 50 MHz of spectrum in the
3650-3700 MHz band which has the potential to make use of these
technologies to promote more efficient use of spectrum and to provide
new and advanced telecommunications services and technologies to all
Americans. With protected earth stations primarily on the coasts, this
band appears particularly promising for extending broadband service in
rural areas, such as by wireless internet service providers. Some of
these uses could potentially complement unlicensed operations in other
bands, such as 2.4 and 5.8 GHz that could allow greater flexibility and
continuity in the creation of devices for consumers. This may be another
giant step in our effort to bring affordable broadband services to all
Americans.

We tentatively conclude that we should allow unlicensed operations with
smart radio techniques with fixed satellite services in these bands. To
ensure that we have the ability to move forward on whatever approaches
will best achieve our goals regarding enhanced services, we welcome
consideration of alternative proposals and approaches that could
potentially allow the use of both unlicensed and licensed terrestrial
services.

[^1]: *See* Amendment of the Commission's Rules With Regard to the
    3650-3700 MHz Government Transfer Band; The 4.9 GHz Band Transferred
    from Federal Government Use, *First Report and Order and Second
    Notice of Proposed Rule Making*, ET Docket No. 98-237, WT Docket No.
    00-32, 15 FCC Rcd 20488 (2000) (*3650 MHz Allocation Report & Order*
    and *3650 MHz Service Rules Second Notice*, respectively).

[^2]: *See* Revision of Parts 2 and 15 of the Commission's Rules to
    Permit Unlicensed National Information Infrastructure (U-NII)
    Devices in the 5 GHz band, *Report and Order*, ET Docket No. 03-122,
    69 Fed. Reg. 2677 (2004) at ¶ 17. *See also*, numerous comments
    filed in response to *Spectrum Policy Task Force Report*, ET Docket
    No. 02-135, November 2002; e.g., comments of License-Exempt
    Alliance, PART-15.ORG, the Wireless Ethernet Compatibility Alliance,
    Microsoft and Cisco.

[^3]: *See* Pub.L. 104-104, Title VII, § 706, Feb. 8, 1996, 110 Stat.
    153, reproduced in the notes under 47 U.S.C. § 157 (*Section 706*).
    Section 706(c)(1) defines \"advanced telecommunications capability .
    . . without regard to any transmission media or technology, as
    high-speed, switched, broadband telecommunications capability that
    enables users to originate and receive high-quality voice, data
    graphics, and video telecommunications using any technology.\" *See,
    generally,* Inquiry Concerning the Deployment of Advanced
    Telecommunications Capability to All Americans in a Reasonable and
    Timely Fashion, and Possible Steps to Accelerate Such Deployment
    Pursuant to Section 706 of the Telecommunications Act of 1996, CC
    Docket 98-146, *Second Report*, FCC 00-290, (rel. Aug. 21, 2000)
    (*Section 706 Second Report*).

[^4]: Table of Frequency Allocations, 47 C.F.R. § 2.106, footnote US110.

[^5]: Table of Frequency Allocation, 47 C.F.R. § 2.106, footnote US245.
    *See* *also* Amendment of Part 2 of the Commission\'s Rules
    Regarding Implementation of the Final Acts of the World
    Administrative Radio Conference, Geneva, 1979, General Docket
    80-739, *Second Report and Order*, FCC 83-511, 49 Fed. Reg. 2,357
    (Jan. 19, 1984). In this Report and Order, the Commission also
    allocated the 5850-5925 MHz band to the FSS (Earth-to-space). The
    3625-3700 MHz downlink segment and the 5850-5925 MHz uplink band are
    traditionally known as "extended C-band" (the 3700-4200 MHz downlink
    band and the 5925-6425 MHz uplink band are known as C- band).

[^6]: Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, 107
    Stat. 312 (1993) (OBRA-93). OBRA-93 required that all 200 megahertz
    of spectrum recommended for reallocation be located below 5
    gigahertz, with at least 100 megahertz of this spectrum below 3
    gigahertz. *See* Federal Communications Commission Plan for
    Transferred Government Spectrum, Report to the President and the
    Congress (rel. Mar. 1999) (report to the President and Congress on
    the allocation and assignment of spectrum transferred from Federal
    Government use to private sector use).

[^7]: 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) (*Spectrum
    Reallocation Final Report*).

[^8]: *See* Spectrum Reallocation Final Report, Response to Title VI -
    Omnibus Budget Reconciliation Act of 1993, NTIA Special Publication
    95-3l2, released February 1995 (*Final Report*). "Shared use" means
    that a band of frequencies is generally available for both
    government and non-government use. *See* 47 C.F.R. § 2.105(b).
    "Mixed use" means that Federal government use is limited by
    geographic area, by time or by other means so as to guarantee that
    the potential use by Federal government stations is substantially
    less than the potential use to be made by non-government stations.
    *See* Section 113(b)(2)(B) of OBRA-93. *See*, *also,* 47 U.S.C. §
    923(b)(2)(B).

[^9]: The *Spectrum Reallocation Final Report* listed one of the three
    government radiolocation stations to be grandfathered as being
    located at Memphis, Tennessee. Subsequent to the release of the
    Final Report, however, the Memphis, Tennessee site was closed and
    the facilities at this site were moved to Pensacola, Florida.
    Frequency assignment action for these operations at Pensacola,
    Florida were initiated in June 1995, and were approved through the
    Department of Commerce's assignment process in October 1995. The
    Department of Commerce has established that the "radius of
    operation" for these grandfathered government radiolocation stations
    is 80 kilometers (49.7 miles). *See Spectrum Reallocation Final
    Report*, at 4-16 through 4-21.

[^10]: Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251
    (1997) (*BBA-97*).

[^11]: Section 3002(c)(4) of BBA-97.

[^12]: *Id.*

[^13]: *See Identification of Alternate Bands in Response to the
    Balanced Budget Act of 1997*, NTIA 98-39 (Nov. 1998)*.*

[^14]: *Id*.

[^15]: Amendment of the Commission's Rules with Regard to the 3650-3700
    MHz Government Transfer Band, ET Docket No. 98-237, *Notice of
    Proposed Rule Making and Order*, 14 FCC Rcd 1295 (1998) (*3560 MHz
    Allocation Notice* and *FSS Allocation Freeze Order*, respectively).

[^16]: *Id*. at 1306 ¶ 14.

[^17]: *Id*. at 1296-97 ¶ 2.

[^18]: Amendment of the Commission's Rules With Regard to the 3650-3700
    MHz Government Transfer Band, ET Docket No. 98-237, *Memorandum
    Opinion and Order*, 15 FCC Rcd 9340 (2000) (*FSS Freeze MO&O*).

[^19]: *Id*. at 9341-42 ¶ 4.

[^20]: The Commission's decision not to permit aeronautical mobile
    operations in the band is also consistent with the international
    allocation for the band.

[^21]: *Id*. at 20497-98 ¶¶ 19-20.

[^22]: *3650 MHz Allocation Order*, 15 FCC Rcd at 20503 ¶ 34.

[^23]: *Id*. at 20504-05 ¶¶ 35-38.

[^24]: Table of Frequency Allocations, 47 C.F.R. § 2.106, footnote
    US348.

[^25]: *3650 MHz Allocation Order*, 15 FCC Rcd at 20504 ¶ 36. *See also*
    Table of Frequency Allocations, 47 C.F.R. § 2.106, footnote US348.
    The Commission also determined to allow government radiolocation
    operations in the 3650 MHz band on Navel vessels at a distance of at
    least 44 nautical miles in off-shore ocean areas on the condition
    that harmful interference is not caused to non-government
    operations. *See* Table of Frequency Allocations, 47 C.F.R. § 2.106,
    footnote US349.

[^26]: *3650 MHz Allocation Order*, 15 FCC Rcd at 20506 ¶ 39.

[^27]: Petitions for Reconsideration were filed by: Lockheed Martin
    Corporation, the Extended C-Band Ad Hoc Coalition, Inmarsat Ltd.,
    and Lockheed Martin Corp, all on December 18, 2000. The Extended
    C-Band Ad Hoc *Coalition* filed its Emergency Motion for Stay
    Pending Reconsideration on November 28, 2000.

[^28]: New Skies Network, Inc. Request for Permanent Authority to
    Operate a Fixed Satellite Service Downlink Earth Station in the
    Extend C Band in the 3625-3700 MHz Band at Bristow, Virginia,
    Application File No. SES-LIC-20001130-02220 (E000696); Astrolink
    Request for Modification to its Existing Authority to Conduct
    Tracking, Telemetry, and Control Operations (TT&C) in the Extend C
    Band in Brewster, Washington, Application File No.
    SES-MOD-20011101-02077 (E000727); Lockheed Martin Request for
    Permanent Authority to Operate a Fixed Satellite Service Downlink
    Earth Station in the Extend C Band in the 3650-3700 MHz Band at
    Carpentersville, New Jersey), Application File No.
    SES-MOD-20001130-02268 (E7541); MCI WorldCom Network Services, Inc.
    requests for Permanent Authority to Operate a Fixed Satellite
    Service Downlink Earth Station in the Extend C Band in the 3625-3700
    MHz at Yacolt, Washington, application File Nos.
    SES-MOD-19990820-01536 (KA323) and SES-MOD-19990820-01537 (KA221).

[^29]: *3650 MHz Band Service Rules NPRM*, 15 FCC Rcd at 20508 ¶ 45.

[^30]: *See, e.g*., comments of Adaptive Broadband Corporation, Advanced
    TelCom, Inc., Global Frontiers, Inc, Innowave ECI Wireless Systems
    Ltd, National Telephone Cooperative Association, Rural Carriers, and
    Transcomm.

[^31]: *See, e.g*., comments of Astrolink International LLC, Comsearch,
    Extended C-Band Ad Hoc Coalition, EchoStar Satellite Corporation, GE
    American Communications, Inc., Inmarsat, and Lockheed Martin
    Corporation.

[^32]: *See, e.g*., comments of Association of Public-Safety
    Communications Officials-International, Inc., Major Cities Chiefs,
    and Motorola, Inc.

[^33]: *See* The 4.9 GHz Band Transferred from Federal Government Use,
    WT Docket No. 00-32, *Second Report and Order and Further Notice of
    Proposed Rule Making*, 17 FCC Rcd 3955 (2002).

[^34]: *See* Additional Spectrum for Unlicensed Devices Below 900 MHz
    and in the 3 GHz Band, ET Docket No. 02-380, *Notice of Inquiry*, 17
    FCC Rcd 25632 (2002) (*Unlicensed Spectrum NOI*). The *Unlicensed
    Spectrum NOI* explored the possibility of permitting unlicensed
    operations in both the TV bands below 900 MHz as well as the 3650
    MHz band. The instant Notice focuses only on our proposals for the
    3650 MHz band. The TV bands below 900 MHz will be addressed in a
    separate proceeding.

[^35]: In this regard, we note that dynamic frequency selection and
    transmitter power control are already required safeguards for
    unlicensed operation in the 5.8 GHz band. Furthermore, the
    Commission is presently exploring the potential benefits of
    cognitive radio technologies, in a more generic context, in another
    rulemaking proceeding. *See* Facilitating Opportunities for
    Flexible, Efficient, and Reliable Spectrum Use Employing Cognitive
    Radio Technologies, ET Docket No. 03-108, *Notice of Proposed
    Rulemaking and Order*, (rel. Dec. 30, 2003) (*Cognitive Radio
    Notice*).

[^36]: *See Unlicensed Spectrum NOI,* 17 FCC Rcd at 25642 ¶ 20*. See
    also* Facilitating the Provision of Spectrum-Based Services to Rural
    Areas and Promoting Opportunities for Rural Telephone Companies To
    Provide Spectrum-Based Services, WT Docket No. 02-381, *Notice of
    Proposed Rulemaking,* 18 FCC Rcd 20802 (2003)*.*

[^37]: *See, e.g*., comments of American Petroleum Institute, IEEE
    802.18 RR-TAG, The Land Mobile Communications Council, and Lakeland
    Communications, Inc.

[^38]: *See, e.g*., comments of Intersil Corporation and Symbol
    Technologies, Inc., Kerry Penland/Big Tube Wireless LLC, and
    Netrepid.

[^39]: *See* comments of AT&T Corporation and Intersil Corporation and
    Symbol Technologies, Inc. *See also* comments of NTIA (unlicensed
    devices could utilize various mitigation techniques to facilitate
    sharing with federal radar facilities in the band).

[^40]: *See, e.g*., comments of Cingular and Motorola.

[^41]: *See* comments of Satellite Industry Association.

[^42]: The Coalition membership consists of program networks and
    distributors, broadcast networks, satellite operators and others
    that use the 3700-4200 MHz band.

[^43]: *See* "Study of Interference by UWB and Unlicensed Devices to
    C-Band Earth Station Receivers." Filed as comments in ET Docket Nos.
    98-153 and 02-380.

[^44]: Under these rules, a wide variety of innovative devices have been
    developed and introduced for consumer and business use, including
    cordless telephones, home security systems, electronic toys,
    anti-pilfering and inventory control systems and computer local area
    networks. Moreover, the past few years have witnessed the
    development of industry standards, such as IEEE 802.11b (Wi-fi),
    Bluetooth, and Home RF that have greatly expanded the number and
    variety of devices that operate in the 2.4 GHz Industrial,
    Scientific and Medical (ISM) band. (These operating standards
    provide manufacturers with guidance for developing spread spectrum
    devices for the 2.4 GHz band. The IEEE 802.11b standard applies to
    direct sequence devices, while the Bluetooth and Home RF standards
    apply to frequency hopping devices.) This progress has enabled the
    introduction of wireless headsets and computer connections for
    cellular and PCS phones, wireless computer peripherals such as
    printers and keyboards, and a host of new wireless Internet
    appliances.

[^45]: *See, e.g., Rural Forum; ET Docket 03-122; WT Docket \[Rural
    NOI/NPRM\]*

[^46]: S*ee, e.g.*, Cisco comments at 3, reply comments at 7; Microsoft
    comments at 9, reply comments at 4; and Motorola comments at 4,
    reply comments at 2-3.

[^47]: *3650 MHz Allocation Order*, 15 FCC Rcd at 20497 ¶ 18.

[^48]: We note that the electromagnetic compatibility analysis was
    required in this band for the purpose of sharing with the Federal
    Government radiolocation service, which, for the 3650 MHz band, is
    now covered by footnotes US348 and US349.

[^49]: *Id.*

[^50]: Section 3002 (c)(4) of BBA reads, in part, as follows:

    c\) Commission Obligation To Make Additional Spectrum Available by
    Auction.\--

    \[ \* \* \*\]

    > \(4\) Use of 15 megahertz from bands at 1,990-2,110 megahertz.
    >
    > \--The Commission shall reallocate 15 megahertz from spectrum
    > located at 1,990-2,110 megahertz for assignment by competitive
    > bidding unless the President determines such spectrum cannot be
    > reallocated due to the need to protect incumbent Federal systems
    > from interference, and that allocation of other spectrum (A)
    > better serves the public interest, convenience, and necessity, and
    > (B) can reasonably be expected to produce comparable receipts. If
    > the President makes such a determination, then the President
    > shall, within 2 years after the date of enactment of this Act,
    > identify alternative bands of frequencies totaling 15 megahertz,
    > and report to the Congress an identification of such alternative
    > bands for assignment by competitive bidding. . . \[ \* \* \*\]

[^51]: *See Identification of Alternate Bands in Response to the
    Balanced Budget Act of 1997* at n. 13 *[supra.]{.underline}*

[^52]: *See* para. 8, *supra*.

[^53]: *See* *Public Notice*, *1670 -- 1675 Band Auction Closes Winning
    Bidder Announced*, DA 03-1472, May 2, 2003.

[^54]: *Unlicensed Spectrum NOI*, 17 FCC Rcd 25641 ¶ 19, citing ET
    Docket No. 00-221 (*27 MHz Proceeding*).

[^55]: Auction Reform Act of 2002, Pub. L. No. 107-195, 116 Stat.; *See
    AWS Third R&O, Third NPRM, and 2nd MO&O* at n. 52 *supra*, and *27
    MHz Proceeding* at n. 54 *supra*.

[^56]: *See Third R&O, Third NPRM, and 2nd MO&O* in ET Docket No.
    00-258, 18 FCC Rcd 2223 (2003) (*AWS Third R&O, Third NPRM, and 2nd
    MO&O*), *reconsideration pending*. This 30 megahertz consisting of
    the 1990-2000/2020-2025 MHz and 2165-2180 MHz bands, was reallocated
    from MSS as follows: 14 megahertz of spectrum that was not assigned
    to any of the MSS licensees and 16 megahertz of spectrum that has
    been "abandoned" as a result of MSS licensees not meeting initial
    milestones. *Id.* at 2239 ¶ 32. Applications for review of these
    milestone decisions remain pending. *See* Joint Application for
    Review of Constellation Communications Holdings, Inc., Mobile
    Communications Holdings, Inc., and ICO Global Communications
    (Holdings) Limited, File Nos. SAT‑T/C‑20020718-00114,
    SAT-T/C-20020719-00104, SAT-MOD-20020719-00103,
    SAT-MOD-20020719-00105 (March 3, 2003); Application for Review of
    TMI Communications and Company, Limited Partnership and TerreStar
    Networks, Inc., File Nos. File Nos. SAT-LOI-19970926-00161,
    SAT-AMD-20001103-00158, SAT-MOD-20021114-00237,
    SAT-ASG-20021211-00238 (March 12, 2003); Emergency Application for
    Review of Globalstar, L.P., File Nos.
    SAT-LOA-19970926-00151/52/53/54/56, SAT-AMD-20001103-00154,
    SAT-MOD-20020717-00116/17/18/19, SAT-MOD-20020722-00107/08/09/10/12
    (March 3, 2003).

[^57]: *See* BBA, Section 3002 (c)(1)(C). Specifically, this spectrum
    had not, as of the date of enactment of the BBA, (i) been designated
    by Commission regulation for assignment pursuant to Section 309(j)
    of the Communications Act of 1934 (47 U.S.C. 309(j)) concerning
    competitive bidding, (ii) been identified by the Secretary of
    Commerce pursuant to Section 113 of the National Telecommunications
    and Information Administration Organization Act (47 U.S.C. 923)
    dealing with Government identified transfer spectrum; (iii) been
    allocated for Federal Government use pursuant to Section 305 of the
    Communications Act of 1934 (46 U.S.C. 305) dealing with Government
    use; (iv) been designated for reallocation under section 337 of the
    Communications Act of 1934 (as added by the BBA) dealing with public
    safety and commercial use of former TV bands, or (v) been allocated
    or authorized for unlicensed use pursuant to Part 15 of the
    Commission's regulations under circumstances where the operation of
    the licensed services pursuant to competitive bidding would
    interfere with operation of end-user products permitted under such
    regulations.

[^58]: *See* BBA, Section 3002 (c)(2). Specifically, in the *Third R&O,
    Third NPRM, and 2nd MO&O* in ET Docket No. 00-258, 18 FCC Rcd 2223
    (2000)(*AWS Third R&O, Third NPRM, and 2nd MO&O*) at paras. 28-37,
    the Commission determined that the 30 megahertz of spectrum
    reallocated from MSS for possible AWS use possessed the desirable
    characteristics described in the *Second R&O* in Docket 00-258, FCC
    02‑304, 17 FCC Rcd 23193 (2002). For example, in the *Second R&O,*
    the Commission generally discussed the most efficient use of the
    spectrum, and considered the cost of relocating existing uses to
    other bands or other means of communications, and coordinated the
    reallocation with NTIA. *See* paras. 9-21. In addition, the AWS
    allocation complies with requirements of international agreements
    concerning spectrum allocations. *See, e.g.,* *Third R&O, Third
    NPRM, and 2nd MO&O; Notice of Proposed Rule Making and Order* in ET
    Docket No. 00-258, 16 FCC Rcd 598 (2001), paras. 3-4. We also
    believe that the deployment of AWS would complement the needs of
    existing public safety radio services.

[^59]: *See* *AWS Third R&O, Third NPRM, and 2nd MO&O* at 2246-47 ¶ 45;
    *id.* at 2255-57 ¶¶ 68-73 (seeking comment on MDS relocation
    spectrum, including, *inter alia*, WCA's proposal for the 1910-1916
    MHz and 1990-1996 MHz bands); Improving Public Safety Communications
    in the 800 MHz Band, *Notice of Proposed Rule Making*, WT Docket No.
    02-55, 17 FCC Rcd 4873, 4901-04 ¶¶ 52-56 (2002) (seeking comment on
    Nextel's request that we re-designate the 1910-1915 MHz and
    1990-1995 MHz bands to Nextel in exchange for spectrum that Nextel
    would surrender for reassignment to public safety systems).

[^60]: *See* SIA reply comments at 2.

[^61]: *Id.* at 4.

[^62]: *See* AT&T comments at 4.

[^63]: *See* n. 43, *supra*.

[^64]: *See* 47 C.F.R. Section 15.5.

[^65]: The proposed rules set forth in Appendix A reflect only the Part
    15 rule changes needed to implement our proposal for unlicensed
    operation in the 3650 MHz band.

[^66]: We note that the definition of who qualifies as a "professional"
    installer is also being considered in ET Docket No. 03-201, 18 FCC
    Rcd. 18910 (2003).

[^67]: *See*, e.g., www.narte.org and www.part-15.org.

[^68]: We are considering equipment authorization requirements in
    another proceeding. *See* ET Docket No. 03-201, at n. 46 *supra*.
    Such requirements as might be adopted in that rule making could be
    applicable to the devices proposed herein.

[^69]: *See* ET Docket No. 03-201 at paragraphs 5-15.

[^70]: DFS refers to dynamic frequency selection. As the literal meaning
    implies, a DFS signal threshold is often used to trigger a change in
    operating frequency by a transmitter to avoid causing interference.
    In this case, however, a signal threshold would be detected in a
    similar manner to DFS circuitry but used, instead, to adjust the
    EIRP of the unlicensed device. This approach is similar to that used
    to protect government radar systems in the 5 GHz band from
    unlicensed devices. *See Report and Order* in ET Docket No. 03-122,
    69 Fed. Reg. 2677 (2004). We note that National Telecommunications
    and Information Administration (NTIA), FCC, National Aeronautical
    and Space Administration (NASA) and Department of Defense (DoD),
    along with input from the industry, worked to develop acceptable
    sharing conditions between unlicensed devices in the 5 GHz band and
    the sensitive government installations.

[^71]: We note that the Commission recently allocated the 5.85-5.925 GHz
    band for the Dedicated Short Range Communication Service (DSRC). We
    seek comment what impact the proliferation of DSRC systems could
    have on this approach.

[^72]: We note that a search of our FSS licensing database reveals that,
    as of April 1, 2004, there are 103 earth stations in the 3650 MHz
    band, and that only three appear to be receive-only operations. The
    call signs of the three receive-only stations are: E010188, E960105,
    and WW21.

[^73]: *See* para. 5, *supra*.

[^74]: *See* letter dated November 2, 1999 from William T. Hatch, Acting
    Associate Administrator, NTIA to Dale Hatfield, Chief, OET
    (\"*November NTIA letter*\"). The coordinates of each site are: St.
    Inigoes, MD (38^o^ 10' N., 76^o^, 23' W.); Pascagoula, MS (30^o^ 22'
    N., 88^o^, 29' W.); and Pensacola, FL (30^o^ 21' 28" N., 87^o^, 16'
    26" W.).

[^75]: *See* U.S. - Canada treaty, "Revised Technical Annex
    Telecommunication: Coordination and Use of Radio Frequencies Above
    30 Megacycles per Second," Signed at Ottawa June 16 and 24, 1965;
    entered into force June 24, 1965.

[^76]: Section 15.205 of the Commission's rules identifies restricted
    frequency bands in which unlicensed devices are prohibited from
    operating. *See* 47 C.F.R. § 15.205.

[^77]: *See* 47 C.F.R. § 2.1. Spurious emission are defined as emissions
    on a frequency or frequencies which are outside the necessary
    bandwidth and the level of which may be reduced without affecting
    the corresponding transmission or information. Spurious emissions
    include harmonic emissions, parasitic emissions, intermodulation
    products and frequency conversion products.

[^78]: *See* SIA comments at 4.

[^79]: *Id.* at 4-7.

[^80]: *See* 47 C.F. R. § 15.209(a).

[^81]: *See* 47 C.F.R. § 15.247.

[^82]: *See* IEEE 802.18 Comments at 10.

[^83]: *See* *Cognitive Radio Notice* at ¶¶ 68 - 80.

[^84]: *Id.* at 14-21.

[^85]: *Id.* at 18. This separation distance is based on the unlicensed
    device antenna being directly coupled to the receive antenna of the
    earth station. Other assumptions include a 5 degree elevation angle,
    free space path loss, an antenna sidelobe pattern based on
    32-25\*log~10~(θ), and an I/N of -10 dB.

[^86]: SIA bases its result on free space propagation which is
    applicable for satellite uplinks and downlinks, but not for
    terrestrial paths where multipath transmission is likely. In the
    latter case, free space propagation generally yields an overly
    conservative minimum separation, as it does not account for
    environmental effects on or terrain shielding of the RF signal.

[^87]: See 47 C.F.R. § 25.251. These guidelines are based on Appendix 7
    of the International Telecommunication Union (ITU) Radio Regulations
    and certain recommendations of the ITU Radiocommunication Sector.

[^88]: For example, Appendix 7 software defaults to a minimum distance
    of 100 km irrespective of the power levels of the devices. Given the
    limited radio horizon of low-power non-fixed devices we are
    proposing to allow, Appendix 7 software analysis would not appear to
    be applicable.

[^89]: *See* Comsearch comments at 3.

[^90]: For example, under certain assumptions, the required separation
    distance for a 1 watt unlicensed device is 168 km when in front and
    only 25 km when behind, a difference of 143 km.

[^91]: One method could be for non-fixed unlicensed devices to connect
    to the internet to receive updated FSS earth station information.
    Such updates could be done over the air or through a computer with a
    wired connection (*e.g*., attaching to a USB port through a cradle
    as currently done for PDAs and cell phones, etc.)

[^92]: Under this approach, a beacon could be an omnidirectional signal
    or could reproduce the earth station's receive antenna gain pattern.

[^93]: This permissibility of transmission under these circumstances can
    be inferred from the device's inability to detect the pilot beacon
    that it is either sufficiently distant - or shielded - from the FSS
    earth station to avoid causing interference. If a beacon signal were
    detected, the licensed device could default to operation at the
    general Part 15 radiated power limit for this band (i.e., 500 μV/m
    measured at 3 meters), which should be sufficient to prevent
    interference. See 47 C.F.R. § 15.209.

[^94]: We note that the FSS "extended C-Band" downlink extends from 3600
    MHz to 3700 MHz and that a number of satellites use multiple,
    cross-polarized 72 MHz wide transponders within this frequency band.

[^95]: Radiolocation is a form of radiodetermination, whereby the
    position, velocity or other characteristics of an object, or the
    obtaining of information relating to these parameters, is determined
    by means of the propagation properties of radio waves. 47 C.F.R. §
    2.1.

[^96]: *See Cognitive Radio Notice supra*.

[^97]: *See 3650 MHz Band Allocation Order*, 15 FCC Rcd at 20497 ¶ 18.

[^98]: For example, if we were to license FS/MS on a geographic basis,
    what procedures could be used to assure protection of a new
    co-primary FSS earth station from FS infrastructure and from MS
    infrastructure and devices?

[^99]: *See* *3650 MHz Service Rules Second Notice*, 15 FCC Rcd at 20533
    ¶ 115. *See also* 47 C.F.R. §101.111.

[^100]: We have proposed above that the 3650-3651 MHz band be used for
    transmitting an identification signal, based on the assumption that
    the entire 3650 MHz band may be used for unlicensed operation. If
    the band is segmented between licensed and unlicensed operations, we
    seek comment on where to locate the one megahertz blocks within the
    licensed and unlicensed portions of the band used for this purpose
    under our various alternatives. Commenters, in responding to this
    question, should consider how, in designating such blocks,
    interference to FSS operations in the 3650-3700 MHz band might be
    minimized.

[^101]: *3650 MHz Service Rules Second Notice*, 15 FCC Rcd at 20516-19
    ¶¶ 64-71.

[^102]: *Id.* at ¶¶ 120-127.

[^103]: *See, e.g.,* Amendment of Part 90 of the Commission\'s Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, PR Docket No. 93-144, *First Report and Order,
    Eighth Report and Order, and Second Further Notice of Proposed Rule
    Making*, 11 FCC Rcd at 1463 (1995) (restructuring licensing
    framework for 800 MHz Specialized Mobile Radio Service and adopting
    wide-area licensing). *See also* Gregory L. Rosston & Jeffrey S.
    Steinberg, *Using Market-Based Spectrum Policy to Promote the Public
    Interest*, 50 Fed. Comm. L.J. 87, 94 (1997).

[^104]: *3650 Service Rules Second Notice*, at ¶¶ 120-127.

[^105]: Promoting Efficient Use of Spectrum Through Elimination of
    Barriers to the Development of Secondary Markets, *Report and Order
    and Further Notice of Proposed Rulemaking*, WT Docket No. 00-230,
    FCC 03-113 (rel. Oct. 6, 2003) (*Secondary Markets Report and Order*
    and *Secondary Markets Further Notice*, respectively).

[^106]: *See generally id*. The spectrum leasing rules are codified in
    Part 1 subpart X. 47 C.F.R. Part 1 subpart X.

[^107]: *See id.*at ¶ 232.

[^108]: *3650 MHz Service Rules Second Notice*, 15 FCC Rcd at 20522-23 ¶
    81.

[^109]: *See* Promoting Efficient Use of Spectrum Through Eliminating
    Barriers to the Development of Secondary Markets, WT Docket No.
    00-230, *Notice of Proposed Rulemaking* , 15 FCC Rcd 24203 at 24209
    ¶ 17 (2000) (*Secondary Markets Notice*).

[^110]: *See 3650 MHz Service Rules Second Notice*, 15 FCC Rcd at
    20522023 ¶81.

[^111]: *Id.* at 3.

[^112]: *See, e.g., Guard Band Second Report and Order, supra*, n. 102,
    (limiting band managers and affiliated entity spectrum use).

[^113]: *See* 47 C.F.R. Part 27, Subpart G.

[^114]: *See* 47 C.F.R. § 27.607.

[^115]: *See, e.g.,* Implementation of Sections 309(J) and 337 of the
    Communications Act of 1934 as Amended, WT Docket No. 99-87, *Report
    and Order and Further Notice of Proposed Rulemaking,* 16 FCC Rcd
    6803 (2000) (reviewing some of the considerations that the
    Commission might take into account in defining a band manager\'s
    rights and responsibilities in the context of particular services).

[^116]: *See, e.g*., 47 C.F.R. Part 90, Subpart H.

[^117]: **^ ?^ *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. 104-112, 110 Stat. 847 (1996)(CWAAA). Title
    II of the CWAAA is the Small Business Regulatory Enforcement
    Fairness Act of 1996 (SBREFA).

[^118]: We also note that we could certify this action under 5 U.S.C. §
    605. *See* Section E., *infra.*

[^119]: *See* 5 U.S.C. § 603(a).

[^120]: *See id.*

[^121]: *See* Spectrum Reallocation Final Report, Response to Title VI
    -- Omnibus Budget Reconciliation Act of 1993*,* NTIA Special
    Publication 95-312, released February 1995. Shared use means that a
    band of frequencies is generally available for both government and
    non-government use. *See* 47 C.F.R. § 2.105(b). Mixed use means that
    government use is limited by geographic area, by time or by other
    means so as to guarantee that the potential use by government
    stations is substantially less than the potential use to be made by
    non-government stations. *See* Section 113(b)(2(B) of OBRA-93; 47
    U.S.C. § 923(b)(2)(B).

[^122]: *See Second Report and Order* in Gen. Docket No. 80-739
    (Amendment of Part 2 of the Commission's Rules Regarding
    Implementation of the Final Acts of the World Administrative Radio
    Conference, Geneva, 1979), 49 Fed. Reg. 2357 (January 19, 1984).

[^123]: The three locations are Pascagoula, Mississippi; Pensacola,
    Florida; and Saint Inigoes, Maryland. Any unlicensed operations in
    the 3650 -3700 MHz band would be required to protect Federal
    Government operations at these locations.

[^124]: We also noted and here reiterate our statutory mandate to
    provide for the deployment of advanced telecommunications services
    and technologies to all Americans. See Pub. L. 104-104, Title VII, §
    706, Feb. 8, 1996, 110 Stat. 153 (Section 706); 47 U.S.C. § 157.

[^125]: *See Notice of Inquiry* in ET Docket No. 03-280, 17 FCC Rcd
    25632 (2003).

[^126]: *See* U.S.C. § 603(b)(3).

[^127]: *Id.* § 601(3).

[^128]: 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."

[^129]: *Id.* § 632.

[^130]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^131]: *See* 5 U.S.C. § 601(4).

[^132]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^133]: 5 U.S.C. § 601(5).

[^134]: U.S. Census Bureau, Statistical Abstract of the United States:
    2000, Section 9, pages 299-300, Tables 490 and 492.

[^135]: Office of Management and Budget, North American Industry
    Classification System, pages 308-09 (1997) (NAICS code 334220).

[^136]: 13 C.F.R. § 121.201, NAICS code 334220.

[^137]: The number of "establishments" is a less helpful indicator of
    small business prevalence in this context than would be the number
    of "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical location
    for an entity is an establishment, even though that location may be
    owned by a different establishment. Thus, the numbers given may
    reflect inflated numbers of businesses in this category, including
    the numbers of small businesses. In this category, the Census
    breaks-out data for firms or companies only to give the total number
    of such entities for 1997, which was 1,089.

[^138]: U.S. Census Bureau, 1997 Economic Census, Industry Series:
    Manufacturing, "Industry Statistics by Employment Size," Table 4,
    NAICS code 334220 (issued Aug. 1999).

[^139]: *Id*. Table 5.

[^140]: The antenna sidelobe pattern based on 32-25\*log~10~(θ). For , θ
    ≥ 48^o^, antenna gain = -10 dBi.

[^141]: This represents the main beam EIRP density above which 99% of
    the earth stations in the 5.85-5.925 GHz and 6.425-6.723 GHz bands
    transmit.

[^142]: This is used because it is the lowest frequency and thus has the
    smallest path loss.

[^143]: The thermal noise floor is determined using the parameters of
    noise temperature (t) and receiver bandwidth (b) along with
    Boltzman's constant (k). Thus, the thermal noise floor is equivalent
    to ktb, where k= 1.38x10^-23^ j/k

[^144]: The interference threshold ΔT/T is a measure of the amount of
    interference that can be tolerated by the satellite system or earth
    station. ΔT/T is related to the increase in system noise temperature
    and corresponds to the interference-to-noise ratio, I/N. We note
    that in their comments, SIA assumed a I/N of -10 dB (*i.e.,* 10 log
    (ΔT/T = 0.1 (10%)) = -10 dB) (*See* SIA comments at **XX**).
    Therefore, we used the same value in our analysis. Accordingly, the
    aggregate interference noise temperature power from all unlicensed
    devices in the 3650‑3700 MHz band must be 10 dB below the
    corresponding equivalent earth station system noise temperature.
    Therefore, the interference threshold is calculated at the thermal
    noise floor (-131.6 dBW) -- I/N (10 dB) and is equivalent to -141.6
    dBW.

[^145]: These include polarization mismatch, fade, and other
    miscellaneous losses.

[^146]: Free space loss assumed where Loss (dB) = 32.44 +
    20\*log~10~(frequency in megahertz) + 20\*log~10~(distance in
    kilometers)