Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | WT Docket No. 00-77          |
|                                  | *) |                              |
| Amendment of Parts 2 and 87 of   | ** | RM Nos. 9376, 9462           |
| the Commission's Rules to        |    |                              |
| Accommodate Advanced Digital     | *  |                              |
| Communications in the            | *) |                              |
| 117.975-137 MHz Band and to      | ** |                              |
| Implement Flight Information     |    |                              |
| Services in the 136-137 MHz Band | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: December 21, 2001 Released: December 28, 2001**

By the Commission:

# introduction

1.  We have before us a petition filed by Aeronautical Radio, Inc.
    (ARINC)[^1] seeking partial reconsideration of the *Report and
    Order* in this proceeding.[^2] For the reasons that follow, we grant
    the Petition and amend Section 87.139(k) of our Rules[^3] to revise
    the emission mask and out-of-band power levels for very high
    frequency (VHF) digital aviation communications systems.

# background

2.  On April 13, 2001, the Commission released the *Report and Order* in
    this proceeding, which amended Parts 2 and 87 of the Rules to (1)
    give the Federal Aviation Administration access to five additional
    channels in the 136-136.475 MHz frequency band; (2) authorize the
    implementation of Flight Information Services-Broadcast (FIS-B) in
    the 136-137 MHz band; (3) permit digital communications throughout
    the 117.975-137 MHz aeronautical radio spectrum; and (4) make
    available for general purpose aeronautical enroute operations five
    channels that had been reserved for helicopter flight following
    systems in the Gulf of Mexico Region.[^4] Among the specific rule
    changes adopted to facilitate the transition from analog to digital
    aviation communications systems was an amendment of Section 87.139
    authorizing the emissions classes for phase modulation digital data
    transmission throughout the 117.975-137 MHz band.[^5] The Commission
    concluded that these amendments would enhance the safety of aviation
    by alleviating congestion in the aeronautical radio spectrum and by
    permitting the introduction of new digital communications
    services.[^6] The *Report and Order* appeared in the Federal
    Register on May 15, 2001,[^7] and ARINC filed the Petition on June
    14, 2001. No other petitions for reconsideration or responsive
    pleadings have been filed in this proceeding.

# discussion

3.  While ARINC supports the actions taken by the Commission in this
    proceeding, it seeks partial reconsideration because Section
    87.139(k) of the Commission's Rules, as adopted in the *Report and
    Order*, does not reflect recent changes in international standards
    pertaining to the emission mask and out-of-band power levels for VHF
    digital aviation communications systems. These modifications of the
    international Standards and Recommended Practices (SARPs), adopted
    by the International Civil Aviation Organization (ICAO) after the
    period for submitting comments to the *Notice of Proposed
    Rulemaking* in this proceeding, are to take effect on January 1,
    2002.[^8] ARINC notes that the ICAO has increased the amount of
    power permissible in the first adjacent channel by 2 dB, specifying
    that the total amount of power across the first adjacent channel
    shall not exceed 2 dBm, rather than the 0 dBm now specified in
    Section 87.139(k)(1).[^9] ARINC further notes that the ICAO has also
    specified that the power measured over a 16 kHz bandwidth centered
    in either first adjacent 25 kHz channel shall be limited to -18 dBm,
    instead of the --20 dBm limit set forth in Section
    87.139(k)(3).[^10] Finally, ARINC observes that the SARPs have been
    modified to increase the amount of suppression required for
    out-of-band emissions in the second adjacent channels and
    beyond.[^11] Specifically, the old standard required that the amount
    of power measured across either second adjacent channel be less than
    -25 dBm, and that the power measured in any other adjacent 25 kHz
    channels decrease monotonically by at least 5 dB per octave to a
    maximum value of -52 dBm. Under the new standard, the amount of
    power measured across either second adjacent 25 kHz channel must be
    less than -28 dBm, the amount of power measured across either fourth
    adjacent 25 kHz channel must be less than -38 dBm, and from thereon
    the power measured in any other adjacent 25 kHz channel must
    monotonically decrease at a rate of at least 5 dB per octave to a
    maximum value of\
    -53 dBm.

4.  Based upon our review of the record in this proceeding, we agree
    with ARINC that it would serve the public interest to have these
    revised standards reflected in our Rules because they have been
    accepted by the aviation community globally and will assist the
    aviation industry in implementing new data communications
    systems.[^12] In addition, we believe that, by facilitating the
    deployment of advanced aviation communications technology, this
    amendment will also serve the goals of effective aviation safety and
    efficiency that underlie this proceeding.[^13] Consistent with the
    ICAO rules scheduled to take effect on January 1, 2002, stations
    installed before January 1, 2002 that meet the existing out-of-band
    emission suppression standard in Section 87.139(k)(2) but not the
    revised standard will be permitted to continue operating
    indefinitely. We are unaware of any factors militating against such
    an amendment that would outweigh the public interest benefits to be
    derived therefrom. Accordingly, we grant the Petition, and amend
    Section 87.139(k) to conform to the new international standards for
    VHF digital aviation communications systems.

# conclusion

5.  For the reasons stated above, we conclude that the public interest
    will be served by amending Section 87.139(k) to specify that VHF
    aeronautical stations and aircraft stations operating with phase
    modulation digital data emissions shall limit their power and
    out-of-band emissions in accord with recently modified SARPs adopted
    by the ICAO.

# administrative matters

## Final Regulatory Flexibility Certification

6.  The Regulatory Flexibility Act of 1980, as amended, (RFA)[^14]
    requires that a regulatory flexibility analysis be prepared for
    rulemaking proceedings, unless the agency certifies that "the rule
    will not have a significant economic impact on a substantial number
    of small entities."[^15] The RFA generally defines "small entity" as
    having the same meaning as the terms "small business," "small
    organization," and "small governmental jurisdiction."[^16] In
    addition, the term "small business" has the same meaning as the term
    "small business concern" under the Small Business Act.[^17] A small
    business concern is one which: (1) is independently owned and
    operated; (2) is not dominant in its field of operation; and (3)
    satisfies any additional criteria established by the Small Business
    Administration (SBA).[^18]

7.  In this *Memorandum Opinion and Order*, we make minor revisions to
    the out-of-band emission limits applicable to VHF aeronautical
    stations and aircraft stations operating with digital communications
    technology. These minor revisions conform our rules with
    international standards applicable to equipment and aircraft
    operating outside United State airspace, and have been adopted at
    the request of Aeronautical Radio, Inc., an organization
    representing the civil aviation industry,[^19] without objection
    from any party. These minor revisions do not impose any new
    reporting or compliance requirements on any entity, do not otherwise
    impose any additional burdens on any small entities, and do not
    require alteration of the Final Regulatory Flexibility Analysis for
    the *Report and Order*.[^20] We therefore certify that the adoption
    of this *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 the *Memorandum Opinion and Order*,
    including a copy of this final certification, in a report to
    Congress pursuant to the Small Business Regulatory Enforcement
    Fairness Act of 1996.[^21] In addition, the *Memorandum Opinion and
    Order* and this final certification will be sent to the Chief
    Counsel for Advocacy of the SBA and will be published in the Federal
    Register.

## Ordering Clauses

8.  Authority for issuance of this *Memorandum Opinion and Order* is
    contained in Sections 1, 4(i), 302, 303(f) and (r), and 332 of the
    Communications Act of 1934, as amended, 47 U.S.C.\
    §§ 151, 154(i), 302, 303(f) and (r), 332.

9.  Accordingly, IT IS ORDERED that the Petition for Partial
    Reconsideration filed by Aeronautical Radio, Inc. on June 14, 2001
    IS GRANTED.

10. IT IS FURTHER ORDERED pursuant to Sections 1, 4(i), 302, 303(f) and
    (r), and 332 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 151, 154(i), 302, 303(f) and (r), 332, that Section 87.139
    of the Commission's Rules, 47 C.F.R. § 87.139, IS AMENDED as set
    forth in Appendix A, effective thirty days after publication of this
    *Memorandum Opinion and Order* in the Federal Register.

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

## Contacts for Information

12. For further information, contact Jeffrey Tobias, Wireless
    Telecommunications Bureau, Public Safety and Private Wireless
    Division, at (202) 418-1617, TTY (202) 418-7233.

13. 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) 418-7365, or
    via e-mail to [bmillin@fcc.gov](mailto:mcontee@fcc.gov). This
    *Memorandum Opinion and Order* can be downloaded at
    http://wireless.fcc.gov/releases/fcc01378.pdf.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

**APPENDIX A**

Final Rules

Part 87 of Title 47 of the Code of Federal Regulations is amended as
follows:

1\. The authority citation for Part 87 continues to read as follows:

AUTHORITY: 47 U.S.C. §§ 154, 303, and 307(e), unless otherwise noted.

2.  Section 87.139 is amended by revising paragraph (k) to read as
    follows:

**§ 87.139 Emission limitations.**

\* \* \* \* \*

j.  \(k\) For VHF aeronautical stations and aircraft stations operating
    with G1D or G7D emissions:

\(1\) The amount of power measured across either first adjacent 25 kHz
channel shall not exceed\
2 dBm.

\(2\) For stations first installed before January 1, 2002, the amount of
power measured across either second adjacent channel shall be less than
-25 dBm and the power measured in any other adjacent 25 kHz channels
shall monotonically decrease at a rate of at least 5 dB per octave to a
maximum value of -52 dBm. For stations first installed on or after
January 1, 2002,

> \(i\) the amount of power measured across either second adjacent 25
> kHz channel shall be less than -28 dBm;
>
> \(ii\) the amount of power measured across either fourth adjacent 25
> kHz channel shall be less than -38 dBm; and
>
> \(iii\) from thereon the power measured in any other adjacent 25 kHz
> channel shall monotonically decrease at a rate of at least 5 dB per
> octave to a maximum value of --53 dBm.

\(3\) The amount of power measured over a 16 kHz channel bandwidth
centered on the first adjacent 25 kHz channel shall not exceed -18 dBm.

[^1]: Petition for Partial Reconsideration filed by Aeronautical Radio,
    Inc. on June 14, 2001 (Petition).

[^2]: Amendment of Parts 2 and 87 of the Commission's Rules to
    Accommodate Advanced Digital Communications in the 177.975-137 MHz
    Band and to Implement Flight Information Services in the 136-137 MHz
    Band, *Report and Order*, WT Docket No. 00-77, 16 FCC Rcd 8228
    (2001) (*Report and Order*).

[^3]: 47 C.F.R. § 87.139(k).

[^4]: *Report and Order*, 16 FCC Rcd at 8226 ¶ 1.

[^5]: *Id*. at 8231-32 ¶¶ 12-14.

[^6]: *Id*. at 8226 ¶ 1.

[^7]: 66 Fed. Reg. 26796 (May 15, 2001).

[^8]: *See* Convention on International Civil Aviation, Annex 10, Volume
    III, Part 1 ¶¶ 6.2.4, 6.3.4 (Amendment No. 75) (application date 2
    November 2000).

[^9]: Petition at 2.

[^10]: *Id*.

[^11]: *Id*.

[^12]: *See* *id*. at 2-3.

[^13]: *See* *Report and Order*, 16 FCC Rcd at 8235-36 ¶ 24.

[^14]: The RFA, 5 U.S.C. § 601 *et seq.*, has been amended by the
    Contract With America Advancement Act of 1996, Pub. L. No. 104-121,
    110 Stat. 847 (1996) ("CWAAA"). Title II of the CWAAA is the Small
    Business Regulatory Enforcement Fairness Act of 1996 ("SBREFA").

[^15]: 5 U.S.C. § 605(b).

[^16]: 5 U.S.C. § 601(6).

[^17]: 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 consulting 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."

[^18]: Small Business Act, 15 U.S.C. § 632.

[^19]: *See Report and Order*, 16 FCC Rcd at 8227 n.6.

[^20]: *See* *id*., at 8237-39, Appendix A.

[^21]: 5 U.S.C. § 801(a)(1)(A).