**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | ET Docket No. 98-206         |
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| Amendment of Parts 2 and 25 of   | ** |                              |
| the Commission\'s Rules to       |    |                              |
| Permit Operation of NGSO FSS     | *  |                              |
| Systems Co-Frequency with GSO    | *) |                              |
| and Terrestrial Systems in the   | ** |                              |
| Ku-Band Frequency Range          |    |                              |
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**THIRD MEMORANDUM OPINION AND ORDER**

**Adopted:** February 3, 2003 **Released:** February 6, 2003

By the Commission:

# INTRODUCTION

1.  With this order, we address petitions for reconsideration of the
    Commission's decision to permit non-geostationary satellite orbit
    fixed-satellite service in certain segments of the Ku-band
    frequencies.[^1] Our action in this order is limited to addressing
    sharing issues between geostationary satellite orbit service
    providers and non-geostationary satellite orbit service providers.
    For the reasons discussed below, we amend our rules for
    demonstrating that limits on equivalent power flux-density are met,
    and we make editorial changes to two other rules. We otherwise deny
    the petitions for reconsideration on the limited issues addressed in
    this order.

# BACKGROUND

2.  On November 29, 2000, the Commission adopted the *First Report and
    Order* in this proceeding.[^2] In the *First Report and Order*, the
    Commission adopted technical sharing criteria to allow
    non-geostationary satellite orbit ("NGSO") fixed-satellite service
    ("FSS") and geostationary satellite orbit ("GSO") FSS to operate on
    a co-primary basis in certain Ku-band frequencies, consistent with
    decisions taken at the 2000 World Radiocommunication Conference
    ("WRC-2000"). The adopted technical criteria consist of uplink and
    downlink limits on equivalent power flux-density ("EPFD").[^3] The
    Commission also adopted rules to assess NGSO FSS licensees'
    compliance with those EPFD limits.

3.  The rules the Commission adopted are based on an international
    consensus on GSO/NGSO sharing developed through study groups of the
    International Telecommunication Union ("ITU"). The ITU concluded
    that a combination of single-entry EPFD~down~ limits and aggregate
    EPFD~down~ limits for NGSO FSS operations adequately protected GSO
    FSS operations, thereby defining the level of acceptable
    interference from an NGSO FSS system into a GSO FSS system.[^4] The
    Commission determined that it would require U.S.-licensed NGSO FSS
    systems to comply with each type of limit.

4.  Specifically, the Commission adopted EPFD~down~ limits that must be
    met by each NGSO FSS system for emissions from all satellites in its
    system. There are three elements of these limits: (1) "validation"
    EPFD~down~ limits, including more stringent validation EPFD~down~
    limits for specific sizes of antennas located at high latitudes; (2)
    "operational" EPFD~down~ limits, which protect against
    synchronization loss in GSO FSS Earth stations between 3 and 18
    meters in diameter; and (3) "additional operational" EPFD~down~
    limits for 3 meter and 10 meter GSO FSS Earth stations.[^5] Each of
    these three elements of limits must be met by each individual NGSO
    FSS system; collectively, they comprise the "single-entry EPFD~down~
    limits."[^6] In addition to the single-entry EPFD~down~ limits, the
    Commission adopted aggregate validation EPFD~down~ limits, which
    limit the cumulative level of interference from all co-frequency
    NGSO FSS systems into GSO FSS networks.[^7]

5.  In the *First Report and Order*, the Commission adopted a number of
    rules for demonstrating that NGSO FSS systems comply with these EPFD
    limits.[^8] For the validation EPFD~down~ limits, the Commission
    required that each NGSO FSS applicant demonstrate, prior to
    licensing, that it meets the limits by means of a software
    simulation developed in accordance with an ITU software
    specification.[^9] The Commission will verify the applicants'
    demonstrations, and then submit the information to the ITU
    Radiocommunication Bureau ("ITU-BR") if the Commission is satisfied
    that each applicant meets the limit.

6.  To ensure compliance with the operational and additional operational
    EPFD~down~ limits, the Commission required each NGSO FSS licensee to
    demonstrate that it meets these limits, after it is licensed, but
    prior to placing its licensed system into service.[^10] The licensee
    is to make the required demonstration through a computer simulation
    using the licensee's satellite and Earth station resource allocation
    strategy, its spacecraft antenna switching algorithm, and its
    measured spacecraft antenna patterns.[^11] If this technical
    demonstration exceeds the Commission's operational or additional
    operational EPFD~down~ limits at any test point, the licensee is
    prohibited from initiating service to the public until it rectifies
    the deficiency by reducing satellite transmission power or making
    other adjustments.

7.  After an applicant has made all the required demonstrations and has
    become operational, its operations must continuously remain below
    the Commission's EPFD~down~ limits. The Commission found no need to
    develop additional procedures or remedies for those cases where NGSO
    FSS systems exceed those limits in operation, because existing
    administrative sanctions would apply.[^12] The Commission did find,
    however, that it was important for GSO FSS operators to have the
    necessary information to locate satellites in an NGSO FSS
    constellation at any given time in order to identify a satellite
    causing harmful interference. The Commission therefore required that
    NGSO FSS licensees publish their satellites' orbital elements every
    three days in the North American Aerospace Defense Command 2-line
    element format, on a website maintained by the NGSO FSS
    licensee.[^13]

8.  Finally, the Commission adopted an aggregate validation EPFD~down~
    limit, in addition to the three components of the single-entry
    EPFD~down~ limits. Recognizing the practical difficulties of
    checking compliance with the aggregate limits, the Commission did
    not adopt rules requiring a demonstration of NGSO FSS compliance in
    the *First Report and Order*. Instead, it required NGSO FSS
    licensees to simply certify that they will meet the aggregate
    limits, and noted that it may require a demonstration when it
    addresses the issue in the proceeding in which it is addressing NGSO
    FSS to NGSO FSS sharing.[^14]

9.  Four parties filed petitions for reconsideration of the *First
    Report and Order* on issues regarding NGSO and GSO sharing in the
    Ku-band frequencies: SkyBridge, DIRECTV, PanAmSat, and a collection
    of Hughes entities.[^15] The majority of the issues raised in these
    petitions for reconsideration concern the rules for demonstrating
    compliance with EPFD limits.[^16]

# DISCUSSION

## Single-entry Validation EPFD~down~ limits

10. As is explained more fully below, the Commission's rules require
    that each NGSO FSS applicant demonstrate, prior to licensing, that
    it meets the validation EPFD~down~ limits, by using a software
    simulation developed in accordance with an ITU software
    specification. The Commission required that applicants provide the
    results of the computer program in a cumulative probability
    distribution function of EPFD~down~ , containing the worst three
    test points in the United States for domestic service and the worst
    three test points on each continent outside the United States for
    international service.[^17] For the validation EPFD~up~ limits, the
    Commission's rules require a comparable result, executing the same
    computer program containing an EPFD~up~ for every longitudinal
    location on the geostationary satellite orbit at every two-degree
    spacing that is visible to the United States, for domestic service,
    and every three-degree longitudinal location in the geostationary
    satellite orbit for service outside of the United States.[^18]

11. SkyBridge petitioned for reconsideration of those aspects of the
    Commission's validation EPFD limits that it says are inconsistent
    with agreements reached at the WRC-2000.[^19] SkyBridge contends
    that the worst three test points requirement for the EPFD~down~
    demonstration, and the longitudinal location requirements for the
    EPFD~up~ demonstration, are difficult to interpret and reopen
    delicate debates resolved before WRC-2000.[^20] In its opposition to
    SkyBridge's petition and its reply comments, PanAmSat concurs that
    there is no clear definition for the "worst three test points," but
    PanAmSat argues that as a consequence GSO FSS operators should be
    permitted to specify multiple test points to be used to evaluate
    compliance with the validation limits.[^21]

12. Based upon the petitions filed and subsequent *ex parte*
    presentations, there is some confusion about both the purpose of the
    validation EPFD limits and the method used to demonstrate compliance
    with them. We find, on reconsideration, that some of the
    requirements in our rules are inconsistent with the purpose of the
    validation limits as developed by the ITU after adoption of our
    rules, and therefore we amend the rules herein to correct the
    methods used to demonstrate compliance with the validation EPFD
    limits.

13. As stated in the *First Report and Order*, the purpose of the
    validation EPFD limits is to provide a fixed outer limit on the
    amount of power that NGSO FSS systems can be designed to emit.[^22]
    The ITU Joint Task Group 4-9-11 ("JTG") developed a software
    requirement for a computer simulation to demonstrate that an NGSO
    FSS system can meet the EPFD limits. In order for the computer
    simulation to work on all types of NGSO FSS constellations
    (including, for example, both low Earth orbit and highly elliptical
    orbit systems) and in order to take into account the fact that
    operational parameters of NGSO FSS systems change frequently, the
    software used for the simulation employs worst case scenario
    parameters, not actual operating parameters. The ITU JTG software
    specification thereby simulates an "outer envelope" of acceptable
    interference by any NGSO FSS system.

14. For an EPFD~down~ demonstration, the software will compute power
    flux-density masks representing the power from each satellite in an
    NGSO FSS constellation at worst-case power levels and beam
    configurations. EPFD statistics will then be computed by simulating
    the movement of the satellites in the constellation and adding the
    power flux-density radiated by the NGSO satellites at the input of a
    GSO FSS receiver at each time step. The software will then compute
    the worst case power level from the NGSO FSS system as a whole into
    any GSO location anywhere in the world. The resulting worst-case
    power level can then be compared with, and must be lower than, the
    validation EPFD limits specified in the Commission's rules.

15. For an EPFD~up~ demonstration, the software will compute power
    flux-density masks representing the power from Earth stations in an
    NGSO FSS system at worst-case power levels and beam configurations.
    EPFD statistics will then be computed by adding the power
    flux-density radiated by the Earth stations at the input of a GSO
    satellite receiver for each time step. The software will then
    compute the worst case power level from the NGSO FSS system as a
    whole into any GSO FSS satellite location. The resulting worst-case
    power level will be compared with, and must be lower than, the
    validation EPFD~up~ limits specified in the Commission's rules.

16. Although these outer envelope calculations generate a result that is
    a hypothetical worst case test point at which the NGSO FSS system
    power level is at its highest, the software is not designed to
    measure power flux-density at specific points on Earth or in space.
    We find, on reconsideration, that these portions of our rules
    require point-specific measurements that conflict with the global
    envelope simulation that the ITU software specification is designed
    to measure. The Commission determined in the *First Report and
    Order* that the validation test used in the United States should be
    the same as that used by the ITU-BR.[^23] We therefore amend our
    rules to delete the requirement that the EPFD~down~ demonstration
    contain the worst three test points. We likewise amend our rules to
    delete the requirement that the EPFD~up~ demonstration contain an
    EPFD~up~ measurement for every longitudinal location on the
    geostationary satellite orbit at every two-degree spacing that is
    visible to the United States for domestic service, and every
    three-degree longitudinal location in the geostationary satellite
    orbit for service outside the United States. The amendments we make
    to our rules in this Order will still guarantee protection of
    current GSO FSS operations and will bring our demonstration rules
    into harmony with software designed for use by the ITU-BR.

17. The Commission determined in the *First Report and Order* that it
    would first verify the validation demonstration made by NGSO FSS
    applicants, and then, when it was satisfied that the applicant could
    comply with the validation EPFD limits, the Commission would submit
    the required information to the ITU-BR, which will make its own
    determination of compliance with the validation EPFD limits. The
    Commission's validation EPFD rules provide us with confidence that
    the validation information we send to the ITU-BR will be accurate.
    That confidence will also allow the Commission to license NGSO FSS
    applicants. We do not adopt the suggestion that we should delay
    licensing until after the ITU completes and publishes its compliance
    determination.[^24] The Commission frequently authorizes new
    satellite systems prior to completion of ITU review, although such
    authorizations are conditioned upon the licensee completing ITU
    advance publication, coordination and notification procedures. There
    is nothing peculiar to this satellite service that would necessitate
    departure from this normal licensing procedure.

18. Having amended our rules to bring their validation methodology into
    harmony with the methods specified for the ITU software, we concur
    with the suggestion that our rules should encourage use of the
    software package eventually approved by the ITU.[^25] We agree that
    if ITU-approved software is available, it should be used, thereby
    reducing the potential inconsistencies of using different software.
    If an applicant uses the ITU-approved software to make its
    validation EPFD demonstration, it will not be required to provide
    the source code and the compiled executable program. If the ITU-BR
    software is not yet available and an applicant seeks to demonstrate
    compliance with validation EPFD limits with its own software, we
    will require the source code and the compiled executable program,
    with which the Commission will verify this information. Providing
    the source code and the compiled executable program will allow the
    Commission to ensure that the validation EPFD demonstrated complies
    with our rules and with the ITU-BR software. Regardless of the
    software used, it must establish that the applicant meets the
    validation EPFD~down~ and EPFD~up~ limits.

## Operational and Additional Operational EPFD~down~ limits

19. The single entry validation EPFD limits adopted by the Commission
    establish a fixed outer limit on the amount of power that an NGSO
    FSS system can emit toward any point anywhere on the Earth.
    Interference levels computed by the EPFD validation software will
    overestimate the actual interference that can be expected into any
    actual GSO FSS Earth station, due to the worst-case inputs that must
    be provided by the operator and the conservative assumptions
    employed by the software. For this reason, tightening these limits
    imposes significant burdens on proposed NGSO FSS operations without
    any demonstration by GSO FSS operators of an actual need for the
    vast majority of their links. Negotiations within the ITU JTG and at
    the WRC-2000 between NGSO and GSO parties generally recognized that
    co-frequency use by the two services would need more restrictive
    limits on power transmitted into actual, operating GSO FSS Earth
    stations, because GSO FSS operators are clearly relying on lower
    interference levels for some of their links. To meet that need,
    WRC-2000 set two further types of single-entry power limits,
    "operational" and, for certain Earth station antenna sizes,
    "additional operational" EPFD limits. As indicated by their names,
    these limits apply to emissions from actual, operating NGSO FSS
    space stations into operational GSO FSS Earth stations.

20. While the validation limits can never be exceeded anywhere on Earth
    at any time and place a hard constraint on NGSO FSS system design
    and operation, the operational-type limits may be exceeded by
    definition, so long as they are not exceeded into any operational
    GSO FSS Earth station.[^26] NGSO FSS proponents must accept the risk
    that they may occasionally need to constrain their operations to
    meet the operational limits, and GSO FSS operators must accept an
    operational rather than a validation limit for these tighter bounds.
    The distinction between the two types of EPFD limits requires
    different kinds of proof that NGSO FSS operations will meet the
    respective limits.

21. The Commission adopted operational and additional operational EPFD
    limits in the *First Report and Order.* The limits will be enforced
    by the Commission, because the ITU's enforcement role is limited to
    requiring that national administrations commit that their NGSO FSS
    operators will be able to meet the limits. The Commission
    determined, in the *First Report and Order*, that its existing
    procedures and remedies apply to any situations when NGSO FSS
    systems exceed the operational and additional operational EPFD
    limits after the system is placed into service. NGSO FSS systems
    that exceed EPFD limits in Commission rules are in violation of the
    rules, as well as in violation of the system's Commission
    authorization, and thereby subject to appropriate Commission
    actions.[^27]

22. To reduce the likelihood that the Commission will have to resort to
    sanctions or other remedial measures, the Commission decided to
    require a demonstration of compliance with operational and
    additional operational limits before NGSO FSS systems begin
    commercial service. The Commission expected that such a
    demonstration would assure the Commission that NGSO FSS systems will
    be built in accordance with the rules, thereby enabling the
    Commission to commit to the ITU-BR that the systems will be able to
    meet the operational and additional operational EPFD limits. The
    required demonstration will also provide incumbent satellite
    operators assurance that they will not receive unacceptable
    interference. SkyBridge questions whether we should retain this
    pre-operational compliance demonstration requirement, and if so,
    questions the methods of proof required in our rules.[^28] PanAmSat
    and DIRECTV question the timing of the demonstration, asserting that
    it should be made earlier than is required in the rules.[^29]
    Petitioners also question whether the existing remedies for
    violation of these limits by operating NGSO FSS systems are
    sufficient.[^30]

### Test Points, Source Code and Test Results

23. We have considered the assertion in SkyBridge's petition for
    reconsideration that there is no definite database of GSO Earth
    stations in operation, including their pointing direction, with
    which to make a demonstration simulation. We have also considered
    the request, in DIRECTV's petition for reconsideration, that this
    compliance demonstration include at least 30 GSO Earth station test
    points defined by direct broadcast service operators.[^31]
    Considering both petitions on this issue, we amend our rules to
    delete the requirement that the demonstration include the worst
    three test points in the United States and on each continent. In
    place of that requirement, we amend our rules to allow each
    U.S.-licensed Ku-Band GSO FSS operator and each U.S.-licensed
    Ku-Band broadcast satellite service operator to submit up to 10 test
    points for operational limit compliance, and up to 10 test points
    for additional operational limit compliance. The test points
    submitted will provide a database of GSO Earth Stations that NGSO
    FSS systems need. We find this number of test points sufficient to
    test the two EPFD limits, and therefore do not adopt DIRECTV's
    suggestion that we allow 30 or more submitted test points. If it
    chooses to submit test points, a GSO operator must submit the
    latitude, longitude, altitude, azimuth, elevation, antenna size, and
    efficiency for each submitted test point by January 1 of each year
    until all licensed NGSO FSS systems are placed into service. Each
    NGSO FSS licensee will be required to demonstrate its compliance
    with operational and additional operational limits one time, before
    its system is placed into service, at each of the current submitted
    test points at that time.

24. We do not amend the rule requirement that NGSO FSS licensees provide
    to the Commission their computer programs for this demonstration,
    including the source code and the executable file. As the Commission
    explained in the *First Report and Order*, we expect that the result
    of the compliance demonstration at each submitted test point will be
    made available to the public.[^32] The result should be a power
    flux-density measurement at each submitted test point that is or is
    not within the limits in the Commission's rules. NGSO FSS systems
    will not be permitted to place their system into service if they
    fail at a submitted test point. If a licensee does not comply with
    the operational or additional operational limits, it will be
    required to reduce its power or apply other mitigation techniques
    until it can pass the demonstration.

### Timing of Demonstrations

25. SkyBridge argues that a critical difference between the validation
    EPFD limits and the operational EPFD limits is that validation
    limits are hard limits that apply at all points and at all times.
    According to SkyBridge, operational and additional operational
    limits apply only when there is interference into an operating GSO
    FSS Earth station. SkyBridge asserts that because the operational
    limits can be exceeded (except into an operational GSO Earth
    station), as operational power levels from an NGSO FSS system change
    over the life of an NGSO FSS system with changes in traffic
    patterns, and because there is no definite database of GSO Earth
    stations in operation, it is impossible to demonstrate compliance
    with these limits via computer simulations prior to commencement of
    operation without changing the scope of the limits.[^33] SkyBridge
    suggests that the Commission establish a requirement that an
    operating licensee demonstrate compliance with the additional
    operational limits in response to any credible complaint of a
    violation of those limits into an identified operational GSO Earth
    station.[^34] The technical showing SkyBridge proposes would employ
    computer simulation based on relevant ITU Radiocommunication Sector
    ("ITU-R") Recommendations, but would input the actual system
    parameters being used at the time, and the actual location and
    pointing direction of the affected GSO Earth station at a limited
    number of test points (random or selected).[^35]

26. Although we also emphasize the distinction between validation limits
    and operational limits, we do not agree with SkyBridge's conclusion
    that the distinction means that operational and additional
    operational limits cannot be demonstrated before an NGSO FSS system
    is operational. We therefore do not adopt SkyBridge's suggestion
    that we amend our rules to remove the requirement for a
    pre-operational compliance demonstration. We find no reason why the
    technical showing suggested by SkyBridge cannot be undertaken
    *prior* to the initiation of service to the public, as our rules
    require.[^36] Indeed, the rules adopted by the Commission are fairly
    flexible with regard to how an NGSO FSS system makes its
    demonstration. We concur with SkyBridge that the demonstration
    should employ more realistic operating parameters, but we do not
    accept that this requires no less than a fully operational NGSO FSS
    system already placed into service. The fact that NGSO FSS system
    parameters will change in operation does not mean that a
    demonstration cannot be made with *anticipated* operational
    parameters -- including expected maximum traffic loading
    distributions and geographic specific scheduling -- as well as
    actual measured space station antenna patterns of constructed
    satellites as they exist at the time of the demonstration.[^37] The
    purpose of the demonstration that an NGSO FSS system can meet
    operational and additional operational EPFD limits before it is
    placed into service is to give the Commission and incumbent
    operators some assurance that the NGSO FSS system will be built to
    operate in accordance with the Commission's EPFD limits.

27. Any NGSO FSS systems whose system operations will exceed operational
    or additional operational EPFD limits except into operational GSO
    Earth stations, must necessarily design some type of avoidance
    method to power down to meet the limits whenever its space-to-Earth
    emissions near an operating GSO Earth station. If an NGSO FSS system
    can accomplish this task, it must demonstrate it to the Commission.
    If it cannot do so, the alternative is that its system must remain
    within operational and additional operational EPFD limits at all
    times. We therefore retain our requirement that an NGSO FSS system
    submit a comprehensive technical showing demonstrating, before its
    system is placed into service, that its system is not expected to
    operate in excess of the Commission's operational and additional
    operational EPFD~down~ limits into operational GSO Earth stations.

28. Given the pass/fail nature of this demonstration, we cannot see how
    it will become the procedural morass that SkyBridge imagines, or the
    last-minute emergency that PanAmSat and DIRECTV imagine when they
    ask us to require the demonstration far earlier than 90 days prior
    to the initiation of service to the public. Because an NGSO FSS
    system cannot initiate service to the public until it can pass the
    demonstration, licensees have an incentive to make the demonstration
    as soon as possible, and we encourage licensees to do so.[^38]
    Whenever the results of a demonstration are made public, all
    interested parties will be allowed to comment on the results. Since
    the demonstration will be a pass or fail determination, however,
    there is little to debate. If an NGSO FSS operator demonstrates that
    its system meets the operational and additional operational limits
    at the submitted test points, the Commission and incumbent operators
    will have the assurance we seek in this requirement. These
    demonstrations will not be a forum to debate the NGSO FSS system's
    operational design. If for any reason a GSO FSS operator remains
    unconvinced that it can co-exist with an NGSO FSS system even after
    a demonstration that EPFD limits are met at as many as 20 test
    points submitted by the GSO FSS operator, its ultimate recourse is
    to monitor the NGSO FSS system's compliance in operation and to
    provide information concerning any alleged non-compliant operations
    of the NGSO FSS system of concern. Existing rules apply to all earth
    and space station licensees, and define the actions the Commission
    would follow if a licensee is found to be non-compliant with our
    rules.[^39]

## Other Issues

### Aggregate EPFD~down~ limits

29. Several petitions for reconsideration raise the issue of compliance
    with aggregate EPFD limits. Shortly after these petitions were
    filed, the Commission released a *Further Notice of Proposed
    Rulemaking* seeking comment on a methodology for proof that NGSO FSS
    licensees will meet the aggregate EPFD limits.[^40] The Commission
    will consider comments on the aggregate EPFD limits issue in that
    proceeding.

### GSO FSS Earth station Off-axis EIRP density limits

30. SkyBridge argues that the WRC-2000 limits established a clear bound
    on GSO emissions upon which NGSO operators can rely and use in
    designing their systems and indicated that no combination of
    existing rules comprehensively limits the off-axis equivalent
    isotropically radiated power ("EIRP") of GSO Earth stations in all
    cases.[^41] To the contrary, PanAmSat states that that the current
    Part 25 rules are more restrictive for GSO FSS Earth stations than
    the limits adopted at WRC-2000.[^42] Commission rules currently
    require GSO FSS systems to meet antenna gain characteristics.[^43]
    Routine licensing provisions of our rules also limit the antenna
    input power density of carriers.[^44] These rules effectively result
    in off-axis EIRP limits for GSO networks that meet the standards
    specified in international agreements. When operators create any
    variance from these rules, they must either seek coordination with
    affected parties, or provide a demonstration that the variance will
    not cause any unacceptable interference to other parties, and they
    are required to accept interference from other lawfully operating
    radiocommunication facilities. We therefore find that our current
    rules are more restrictive, and thus do not accept SkyBridge's
    suggestion that we adopt WRC-2000 limits. Instead, we retain our
    current part 25 rules limiting the off-axis EIRP of GSO FSS Earth
    stations.

### NGSO FSS Space Station Antenna sidelobe patterns

31. PanAmSat suggests that the rules should make clear that the NGSO FSS
    space station antenna patterns must have 99% "confidence bound" on
    sidelobe levels over the life of the satellite.[^45] SkyBridge
    responds that in the context of the validation tool, however, such
    specificity is not required.[^46] SkyBridge asserts that any change
    that affects these envelopes requires re-validation with updated PFD
    masks, and any system that does not report any changes that would
    affect the PFD masks would be in violation of the limits. There is
    no comparable requirement for space station antenna sidelobe
    patterns for GSO FSS space station antennas.

32. To address the antenna sidelobe accuracy concerns raised by
    PanAmSat, SkyBridge recommends as an alternative that the Commission
    impose an explicit condition on each NGSO FSS license that any
    change in satellite performance that affects the PFD mask be
    expeditiously reported to the Commission so that new validation
    tests can be conducted with the new parameters.[^47] In addition,
    SkyBridge suggests that each licensee should be required to include
    in its annual report to the Commission a certification that its
    system continues to operate within the bounds of the PFD and EIRP
    masks and other input parameters used in the domestic demonstration
    of compliance with Validation Limits. We adopt this alternative
    proposal, and amend the rules to require that in its annual report
    to the Commission, each NGSO FSS licensee certify that its system
    continues to operate within the bounds of the PFD and EIRP masks and
    other input parameters used in the domestic demonstration of
    compliance.

### Operational Limits in Alaska for the protection of GSO BSS

33. SkyBridge states that WRC-2000 adopted a special Operational Limit
    to protect BSS Earth stations of 240 cm diameter located in Region 2
    west of 140^o^W, north of 60^o^N, pointing at GSO BSS satellites at
    certain orbital locations with elevation greater than 5^o^.[^48] Our
    rules replaced the WRC-2000 text "Region 2 west of 140^o^W, north of
    60^o^N" with "Alaska."[^49] These latitude-dependent validation
    limits provide greater protection to broadcast satellite service
    Earth stations in Alaska.[^50] BSS Earth stations currently in use
    in portions of the state of Alaska south of 60^o^N would be affected
    were we to adopt the WRC-2000 text. In addition, the Commission
    adopted a transition period for the implementation of these
    latitude-dependent validation limits.[^51] We therefore find that
    our existing rule protects existing BSS Earth stations in Alaska
    without unduly constraining NGSO FSS systems. We do not adopt the
    WRC-2000 text.

### Protection of Very Large Earth Station Antennas

34. The *First Report and Order* adopted coordination procedures to
    protect GSO FSS networks using sensitive receiving Earth stations
    with very large antennas.[^52] The Commission did not propose
    EPFD~down~ limits in this situation because the required limits
    could preclude NGSO FSS operations altogether.[^53] These
    coordination procedures are required for GSO FSS Earth stations with
    a maximum isotropic gain greater than or equal to 64 dBi (Earth
    station antennas greater than about 18 meters in diameter), with a
    G/T of 44 dB/K or higher, and an emission bandwidth of 250 megahertz
    or higher.[^54] Pending the development of an ITU simulation
    software package that permits the calculation of EPFD~down~ limits,
    the United States has asked the Director of the ITU-BR to identify
    coordination between specific GSO Earth stations and NGSO FSS
    systems, based on bandwidth overlap and the GSO satellite network
    having Earth stations that meet the specific criteria that the
    Commission has adopted in Rule Section 25.146.[^55] Once the ITU
    simulation software is available, coordination procedures will be
    required only when the EPFD~down~ radiated by an NGSO FSS system
    exceed the limits in Section 25.146. Until that time, coordination
    procedures will be triggered by the GSO Earth station criteria, as
    specified in Section 25.146, and as identified by the Director of
    the ITU-BR.

### Omitted information on EPFD Tables

35. SkyBridge comments that several of the EPFD tables left out text
    stating that "\[f\]or each reference antenna diameter, the limit
    consists of the complete curve on a plot which is linear in decibels
    for the EPFD levels and logarithmic for the time percentages, with
    straight lines joining the data points."[^56] As this text
    constitutes an important part of the definition of certain of the
    limits, SkyBridge proposes that it be inserted in the appropriate
    tables, consistent with the WRC-2000 agreements. We find that this
    text was inadvertently omitted and therefore amend the rules to
    insert it.

# CONCLUSION

36. For the reasons stated in this order, we amend portions of our rules
    for demonstrating that non-geostationary satellite orbit fixed
    satellite service system providers demonstrate that they meet the
    limits on equivalent power flux-density in the rules. We otherwise
    deny the petitions for reconsideration of the Commission's *First
    Report and Order* concerning issues of sharing between geostationary
    satellite orbit and non-geostationary satellite orbit service
    providers.

# ordering clauses

37. Accordingly, IT IS ORDERED that pursuant to the authority contained
    in Sections 4(i), 7(a), 301, 303(c), 303(f), 303(g), 303(r), 308,
    and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 157(a), 301, 303(c), 303(f), 303(g), 303(r), 308, 309(j),
    this *Third Memorandum* *Opinion and Order* IS ADOPTED.

38. IT IS FURTHER ORDERED that, Part 25 of the Commission's Rules IS
    AMENDED as specified in the Appendix, effective 30 days after
    publication in the Federal Register, except as specified. This
    action is taken pursuant to Sections 4(i), 303(c), 303(f), 303(g),
    303(r), and 309(j) of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i), 303(c), 303(f), 303(g), 303(r) and 309(j).

39. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 302, 303(e),
    303(f), 303(g), 303(r) and 405 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 154(i), 302, 303(e), 303(f), (303(g), 303(r)
    and 405, the SkyBridge L.L.C. Petition for Reconsideration, the
    Petition for Reconsideration of DIRECTV, Inc., the PanAmSat
    Corporation Petition for Reconsideration, and the Hughes
    Communications, Inc., Hughes Communications Galaxy, Inc., and Hughes
    Network Systems, Joint Petition for Partial Reconsideration are
    GRANTED to the extent indicated in this *Third Memorandum Opinion
    and Order*, and are otherwise DENIED.

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

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

    **APPENDIX A: FINAL RULES**

The FCC amends 47 C.F.R. Part 25 as follows:

**PART 25 -- SATELLITE COMMUNICATIONS**

1\. The authority citation for Part 25 continues to read as follows:

AUTHORITY: 47 U.S.C. 701-744. Interprets or applies Sections 4, 301,
302, 303; 307, 309 and 332 of the Communications Act, as amended, 47
U.S.C. Sections 154, 301, 302, 303, 307, 309 and 332, unless otherwise
noted.

2\. Section 25.146 is amended to read as follows:

\*\*\*\*\*

25.146(a)(1)(iii): If a computer program that has been approved by the
ITU for determining compliance with the single-entry EPFD~down~
validation limits is not yet available, the applicant shall provide a
computer program for the single-entry EPFD~down~ validation computation,
including both the source code and the executable file. This computer
program shall be developed in accordance with the specification
stipulated in Recommendation ITU-R S.1503 (2000). If the applicant uses
the ITU approved software, the applicant shall indicate the program name
and the version used.

\*\*\*\*\*

25.146(a)(1)(v): Provide the result, the cumulative probability
distribution function of EPFD, of the execution of the computer program
described in paragraph (a)(1)(iii) of this section by using only the
input parameters contained in paragraphs (a)(1)(i) and (a)(1)(iv) of
this section.

\*\*\*\*\*

25.146(a)(2)(iii): If a computer program that has been approved by the
ITU for determining compliance with the single-entry EPFD~up~ validation
limits is not yet available, the applicant shall provide a computer
program for the single-entry EPFD~up~ validation computation, including
both the source code and the executable file. This computer program
shall be developed in accordance with the specification stipulated in
Recommendation ITU-R S.1503 (2000). If the applicant uses the ITU
approved software, the applicant shall indicate the program name and the
version used.

\*\*\*\*\*

25.146(a)(2)(v): Provide the result of the execution of the computer
program described in paragraph (a)(2)(iii) of this section by using only
the input parameters contained in paragraphs (a)(2)(i) and (a)(2)(iv) of
this section.

\*\*\*\*\*

25.146(b)(1)(v): Provide the result, the cumulative probability
distribution function of EPFD, of the execution of the verification
computer program described in paragraph (b)(1)(iii) of this section by
using only the input parameters contained in paragraphs (b)(1)(i) and
(b)(1)(iv) of this section for each of the submitted test points
provided by the Commission. These test points are based on information
from U.S.-licensed geostationary satellite orbit fixed-satellite service
and broadcast satellite service operators in the bands 10.7 GHz to 14.5
GHz. Each U.S.-licensed geostationary satellite orbit fixed satellite
service and broadcast satellite service operator in the bands 10.7 GHz
to 14.5 GHz may submit up to 10 test points for this section containing
the latitude, longitude, altitude, azimuth, elevation angle, antenna
size, efficiency to be used by non-geostationary satellite orbit
fixed-satellite service licensees in the bands 10.7 GHz to 14.5 GHz
during the upcoming year.

\*\*\*\*\*

25.146(b)(2): Operational equivalent power flux-density, space-to-Earth
direction, (operational EPFD~down~) limits. Using the information
contained in (b)(1) of this section plus the measured space station
antenna patterns, provide the result of the execution of the computer
simulation for the anticipated in-line operational EPFD~down~ levels for
each of the submitted test points provided by the Commission. Submitted
test points are based on inputs from U.S.-licensed geostationary
satellite orbit fixed-satellite service and broadcast satellite service
operators in the bands 10.7 GHz to 14.5 GHz. Each U.S.-licensed
geostationary satellite orbit fixed-satellite service and broadcast
satellite service operator in the bands 10.7 GHz to 14.5 GHz may submit
up to 10 test points for this section containing the latitude,
longitude, altitude, azimuth, elevation angle, antenna size, efficiency
to be used by non- geostationary satellite orbit fixed-satellite service
licensees in the bands 10.7 GHz to 14.5 GHz during the upcoming year.

\*\*\*\*\*

25.146(c): The NGSO FSS system licensee shall, on June 30 of each year,
file a report with the International Bureau and the Commission's
Columbia Operations Center in Columbia, Maryland, certifying that the
system continues to operate within the bounds of the masks and other
input parameters specified under 25.146(a) and 25.146(b) as well as
certifying the status of the additional operational EPFD~down~ levels
into the 3 m and 10 m geostationary satellite orbit fixed-satellite
service receiving Earth station antennas, the operational EPFD~down~
levels into the 3 m, 4.5 m, 6.2 m and 10 m geostationary satellite orbit
fixed-satellite service receiving Earth station antennas and the
operational EPFD~down~ levels into the 180 cm geostationary satellite
orbit broadcast satellite service receiving Earth station antennas in
Hawaii and 240 cm geostationary satellite orbit broadcast satellite
service receiving Earth station antennas in Alaska.

\*\*\*\*\*

25.146(f) Coordination will be required between NGSO FSS systems and GSO
FSS earth stations in the frequency band 10.7-12.75 GHz when all of the
following threshold conditions are met:

\(1\) Bandwidth overlap; and

\(2\) the satellite network using the GSO has specific receive earth
stations which meet all of the following conditions: earth station
antenna maximum isotropic gain greater than or equal to 64 dBi; G/T of
44 dB/K or higher; and emission bandwidth of 250 MHz; and the EPFD~down~
radiated by the satellite system using the NGSO into the GSO specific
receive earth station, either within the U.S. for domestic service or
any points outside the U.S. for international service, as calculated
using the ITU software for examining compliance with EPFD limits set
forth in Article 22 of the ITU Radio Regulations exceeds -174.5
dB(W/(m2/40kHz)) for any percentage of time for NGSO systems with all
satellites only operating at or below 2500 km altitude, or -202
dB(W/(m2/40kHz)) for any percentage of time for NGSO systems with any
satellites operating above 2500 km altitude.

\(3\) If there is no ITU software for examining compliance with EPFD
limits set forth in Article 22 of the ITU Radio Regulations, then the
EPFD~down~ coordination trigger is suspended and the requirement for
coordination will be based on bandwidth overlap and the satellite
network using the GSO has specific receive earth stations which meet all
of the following conditions: earth station antenna maximum isotropic
gain greater than or equal to 64 dBi; G/T of 44 dB/K or higher; and
emission bandwidth of 250 MHz.

\*\*\*\*\*

4\. Section 25.208 is amended so that Footnote 5 of Table 1L and
Footnote 5 of Table 1M read as follows:

\*\*\*\*\*

For each reference antenna diameter, the limit consists of the complete
curve on a plot which is linear in decibels for the EPFD levels and
logarithmic for the time percentages, with straight lines joining the
data points.

**APPENDIX B: FINAL REGULATORY FLEXIBILITY CERTIFICATION**

The Regulatory Flexibility Act of 1980, as amended (RFA),[^57] requires
that a regulatory flexibility analysis be prepared for notice and
comment rulemaking proceedings, unless the agency certifies that "the
rule will not, if promulgated, have a significant economic impact on a
substantial number of small entities."[^58] The RFA generally defines
"small entity" as having the same meaning as the terms "small business,"
"small organization," and "small governmental jurisdiction."[^59] In
addition, the term "small business" has the same meaning as the term
"small business concern" under the Small Business Act.[^60] A small
business concern is one which: (a) is independently owned and operated;
(b) is not dominant in its field of operation; and (c) satisfies any
additional criteria established by the Small Business Administration
(SBA).[^61]

The objective of this *Third Memorandum Opinion and Order* and of this
proceeding is to assign the NGSO FSS spectrum to satellite systems
operators who can implement their proposals in a manner that serves the
public interest. The final rules in the *Third Memorandum Opinion and
Order* will reduce regulatory burdens and, with minimal disruption to
existing FCC permittees and licensees, result in the continued
development of NGSO FSS and other satellite services to the public.

Neither the Commission nor the U.S. Small Business Administration has
developed a small business size standard specifically for NGSO FSS
licensees. The appropriate size standard is therefore the SBA standard
for Satellite Telecommunications, which provides that such entities are
small if they have \$12.5 million or less in annual revenues.[^62]

The rules adopted in this *Third Memorandum Opinion and Order* apply
only to entities providing GSO FSS or NGSO FSS. Small businesses will
not have the financial ability to become GSO FSS or NGSO FSS system
operators because of the high implementation costs, including
construction of satellite space stations and rocket launch, associated
with satellite systems and services.[^63] There is no question that the
entities affected by this *Third Memorandum Opinion and* Order are well
above the standard for determining small entities. Since the spectrum
and orbital resources available for assignment are not open to new
entrants, no more than the seven applicants whose applications are
pending will be authorized by the Commission to provide these services.
None of the seven applicants is a small business because each has
revenues in excess of \$12.5 million annually or has parent companies or
investors that have revenues in excess of \$12.5 million annually.[^64]
Therefore, we certify that the rules adopted in this *Third Memorandum
Opinion and Order* will not have a significant economic impact on a
substantial number of small entities.

The Commission will send a copy of this *Third Memorandum Opinion and
Order*, including this Final Regulatory Flexibility Certification, in a
report to Congress pursuant to the Congressional Review Act.[^65] In
addition, the *Third Memorandum Opinion and Order* and this final
certification will be sent to the Chief Counsel for Advocacy of the
Small Business Administration, and will be published in the Federal
Register.[^66]

[^1]: The Ku-band typically refers to frequencies between 10 and 14 GHz.
    The specific bands subject to this proceeding are the 10.7-12.7 GHz,
    12.75-13.25 GHz and 13.75-14.5 GHz bands.

[^2]: *Amendment of Parts 2 and 25 of the Commission's Rules to Permit
    Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial
    Systems in the Ku-Band Frequency Range*, First Report and Order and
    Further Notice of Proposed Rulemaking, FCC 00-418, 16 FCC Rcd. 4096
    (2000) (*"First Report and Order"*).

[^3]: Power flux-density ("PFD") is a measure of the amount of energy
    emitted by a transmitter that is present over a unit area at the
    Earth's surface or at the satellite, and is a critical factor in
    determining whether satellite systems can successfully share
    spectrum with other services or satellite systems. *See* *First
    Report and Order*, 16 FCC Rcd. at 4106. The Commission adopted
    revised terminology used by international working groups, referring
    to "EPFD~down~" for power limits applicable to NGSO FSS space
    stations within an NGSO FSS system and EPFD~up~ for power limits
    applicable to NGSO FSS Earth stations within an NGSO FSS system or
    GSO BSS and FSS systems. *Id.*

[^4]: *First Report and Order*, 16 FCC Rcd. at 4128.

[^5]: *Id.* "Validation limits," and other defined terms used herein
    were first defined by the Commission in the *First Report and
    Order*, where it adopted domestically various terms developed by ITU
    study groups. *See First Report and Order*, 16 FCC Rcd. at 4130.

[^6]: *First Report and Order*, 16 FCC Rcd. at 4128.

[^7]: *First Report and Order*, 16 FCC Rcd. at 4140.

[^8]: *First Report and Order*, 16 FCC Rcd. at 4132-4141.

[^9]: *First Report and Order*, 16 FCC Rcd. at 4134.

[^10]: *First Report and Order*, 16 FCC Rcd. at 4136.

[^11]: *First Report and Order*, 16 FCC Rcd. at 4137.

[^12]: *First Report and Order*, 16 FCC Rcd. at 4138. *See* 47 C.F.R. §
    25.160 (2001) (administrative sanctions).

[^13]: *First Report and Order*, 16 FCC Rcd. at 4138.

[^14]: *First Report and Order*, 16 FCC Rcd. at 4140. *See also,*
    *Establishment of Policies and Service Rules for the
    Non-Geostationary Satellite Orbit, Fixed Satellite Service in the
    Ku-Band*, Notice of Proposed Rulemaking, FCC 01-134, 16 FCC Rcd.
    9680 (2001); *Establishment of Policies and Service Rules for the
    Non-Geostationary Satellite Orbit, Fixed Satellite Service in the
    Ku-Band*, Report and Order and Further Notice of Proposed
    Rulemaking, FCC 02-123, 17 FCC Rcd. 7841 (2002).

[^15]: SkyBridge L.L.C. Petition for Reconsideration ("SkyBridge
    Petition"); Petition for Reconsideration of DIRECTV, Inc. ("DIRECTV
    Petition"); PanAmSat Corporation Petition for Reconsideration
    ("PanAmSat Petition"); and Hughes Communications, Inc., Hughes
    Communications Galaxy, Inc., and Hughes Network Systems, a division
    of Hughes Electronics Corporation Joint Petition for Partial
    Reconsideration ("Hughes Petition") (all filed March 19, 2001).

[^16]: The SkyBridge Petition and the DIRECTV Petition raise a number of
    additional issues affecting the direct broadcast satellite service
    and the multichannel video distribution and data service. These
    issues have been addressed in a separate memorandum opinion and
    order. *See* *Amendment of Parts 2 and 25 of the Commission's Rules
    to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and
    Terrestrial Systems in the Ku-Band Frequency Range*, Memorandum
    Opinion and Order and Second Report and Order, FCC 02-116, 17 FCC
    Rcd. 9614 (2002).

[^17]: 47 C.F.R. § 25.146(a)(1)(v) (2001).

[^18]: 47 C.F.R. § 25.146(a)(2)(v) (2001).

[^19]: SkyBridge Petition at 28.

[^20]: SkyBridge Petition at 30.

[^21]: PanAmSat Corporation Opposition to Petition for Reconsideration
    at p.7 (filed April 24, 2001) ("PanAmSat Opposition"); Consolidated
    Reply of PanAmSat Corporation at p. 2 (filed May 9, 2001) ("PanAmSat
    Reply").

[^22]: *First Report and Order*, 16 FCC Rcd. at 4130.

[^23]: *First Report and Order*, 16 FCC Rcd. at 4134.

[^24]: PanAmSat Petition at p. 6.

[^25]: *See* SkyBridge Petition at pp. 29-30.

[^26]: SkyBridge asserts that studies showed an extremely small
    probability that an NGSO FSS system meeting the validation limits
    would violate the operational limits into an actual operating GSO
    FSS Earth station. SkyBridge Petition at p. 33.

[^27]: *See, e.g.*, 47 C.F.R. § 25.160 (2001).

[^28]: SkyBridge Petition at p. 34.

[^29]: PanAmSat Petition at p. 3; DIRECTV Petition at p. 23.

[^30]: PanAmSat Petition at p. 7.

[^31]: DIRECTV Petition at p. 27.

[^32]: *First Report and Order*, 16 FCC Rcd. at 4137. While only the
    results are made public, the Commission requires that the source
    code be filed so that the Commission can verify the results.

[^33]: SkyBridge Petition at p. 35.

[^34]: SkyBridge Petition at p. 39.

[^35]: SkyBridge Petition at p. 40.

[^36]: 47 C.F.R. § 25.146(b) (2001).

[^37]: *See* 47 C.F.R. § 25.146(b)(1) (2001).

[^38]: DIRECTV suggests the demonstration might be made when the NGSO
    FSS system's first satellite, or a small fraction of its operational
    constellation, is launched. DIRECTV Petition at p. 25.

[^39]: *See* 47 C.F.R. § 25.160 (2001). We also note that since the
    *First Report and Order* was adopted, the ITU-R has developed
    Recommendation ITU-R S. 1527 to assist GSO FSS operators in
    identifying the source of interference in excess of the operational
    EPFD limits, and Recommendation ITU-R S. 1558 to measure EPFD levels
    to verify compliance with the operational EPFD limits. Our rule
    requiring publicly available ephemeris data is supported by
    Recommendation ITU-R S. 1527. *See* 47 C.F.R. § 25.271(e).

[^40]: *See Establishment of Policies and Service Rules for the
    Non-Geostationary Satellite Orbit, Fixed Satellite Service in the
    Ku-Band*, Further Notice of Proposed Rulemaking, 17 FCC Rcd. 7841
    (2002).

[^41]: SkyBridge Petition at p. 44.

[^42]: PanAmSat Corporation Opposition to Petition for Reconsideration
    at p. 7. *See* *First Report and Order*, 16 FCC Rcd. at 4185.

[^43]: *See* 47 C.F.R. § 25.209 (2001).

[^44]: *See* 47 C.F.R. § 25.212 (2001). *But see* 47 C.F.R. § 25.134
    (2001), which is one instance of FCC requirements for licensing
    non-routine Earth stations. The Commission defers similar
    requirements for Earth stations in the Ku-Band frequencies, but may
    revisit the issue as NGSO FSS systems in the Ku-Band are licensed.

[^45]: PanAmSat Petition at p. 5. We take this to imply an up-front
    assurance on the patterns for the manufactured antenna.

[^46]: SkyBridge L.L.C. Opposition to Petitions for Reconsideration at
    p. 5 (filed April 24, 2002) ("SkyBridge Opposition").

[^47]: SkyBridge Opposition at p. 6.

[^48]: SkyBridge Petition at p. 27.

[^49]: *See* 47 C.F.R. § 25.208, Footnote 2 of Table 1L and Footnote 2
    of Table 1M (2001).

[^50]: *First Report and Order*, 16 FCC Rcd. at 4165.

[^51]: *First Report and Order*, 16 FCC Rcd. at 4166.

[^52]: *First Report and Order*, 16 FCC Rcd. at 4142.

[^53]: Generally, the larger the GSO FSS Earth Station antenna, the more
    stringent the required NGSO FSS EPFD~down~ mask. *See First Report
    and Order*, 16 FCC Rcd. at 4141.

[^54]: 47 C.F.R. §25.146(f). *See also* *First Report and Order*, 16 FCC
    Rcd. at 4142.

[^55]: Letter from Richard C. Beaird, Senior Deputy U.S. Coordinator,
    Department of State, to Robert W. Jones, Director, ITU-BR (June 25,
    2002).

[^56]: SkyBridge Petition at p. 27.

[^57]: *See* 5 U.S.C. § 603. The RFA, 5 U.S.C. § 601- 612, has been
    amended by the Small Business Regulatory Enforcement Fairness Act of
    1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).

[^58]: 5 U.S.C § 605(b).

[^59]: *Id*. at § 601(6).

[^60]: *Id.* at § 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."

[^61]: Small Business Act, 15 U.S.C. § 632. An Initial Regulatory
    Flexibility Analysis ("IRFA") was incorporated in the *Notice of
    Proposed Rule Making* in this proceeding. ET Docket No. 98-206, 14
    FCC Rcd. 1131, 1194 (1998). The Commission sought written public
    comment on the proposals in that *Notice*, including comment on the
    IRFA. While the *Notice*, the IRFA and the Commission's *First
    Report and Order* in this proceeding affected a wider number of
    entities, the rules in this *Third Memorandum Opinion and Order* are
    restricted to issues affecting satellite telecommunications
    providers for which the regulatory flexibility certification
    procedure is appropriate.

[^62]: 13 C.F.R. § 121.201, North American Industry Classification
    System ("NAICS") code 517410, formerly code 513340.

[^63]: *See, e.g.*, *Final Analysis Communication Services, Inc.*, 13
    FCC Rcd. 6618, 6644 (1998) (non-geostationary satellite applicant
    estimated that "cost of construction, launch and first-year
    operating costs for two satellites was approximately \$6.22
    million"). This reference illustrates the high cost of just one
    aspect of the operation of these companies, but is not meant to
    illustrate the classification of these companies by SBA size
    standard, which is discussed *infra*.

[^64]: 13 C.F.R. § 121.201, North American Industry Classification
    System ("NAICS") code 517410, formerly code 513340.

[^65]: *See* 5 U.S.C. § 801(a)(1)(A).

[^66]: *See* 5 U.S.C. § 605(b).