**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 04-344         |
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| Amendment of the Commission's    | ** | RM-10821                     |
| Rules Regarding Maritime         |    |                              |
| Automatic Identification Systems | *  |                              |
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| Petition for Rule Making Filed   | ** |                              |
| by National Telecommunications   |    |                              |
| and Information Administration   | *  |                              |
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| Emergency Petition for           | ** |                              |
| Declaratory Ruling Filed by      |    |                              |
| MariTEL, Inc.                    | *  |                              |
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**MEMORANDUM OPINION AND ORDER AND NOTICE OF PROPOSED RULE MAKING**

**Adopted: August 26, 2004 Released: October 15, 2004**

**Comment Date:** 45 days after publication in the Federal Register

**Reply Comment Date:** 75 days after publication in the Federal
Register

By the Commission:

**TABLE OF CONTENTS**

**Title Paragraph No.**

[I. INTRODUCTION](#introduction) 1

[II. BACKGROUND](#background) 2

[A. VHF Maritime Channels 87 and 88](#vhf-maritime-channels-87-and-88) 2

[B. Automatic Identification Systems](#automatic-identification-systems)
5

[C. VHF Public Coast Stations and the *Public Coast Third Report and
Order*](#vhf-public-coast-stations-and-the-public-coast-third-report-and-order)
8

[D. The VPC License Auction](#the-vpc-license-auction) 14

[E. The Coast Guard-MariTEL Memorandum of Agreement and the *June 2002
Public Notices*](#__RefHeading___Toc67742669) 16

[F. The MariTEL and NTIA Petitions and
Proposals](#the-maritel-and-ntia-petitions-and-proposals) 19

[III. MEMORANDUM OPINION AND ORDER](#memorandum-opinion-and-order) 24

[IV. NOTICE OF PROPOSED RULE MAKING](#notice-of-proposed-rule-making) 30

[A. Designation of Channels for AIS](#designation-of-channels-for-ais)
30

[B. Interference Issues](#interference-issues) 41

[C. MariTEL Proposals](#maritel-proposals) 51

1\. Frequency Coordinator Proposal 52

2\. Sharing Proposal 56

D. Other Matters 62

[V. CONCLUSION](#conclusion) 67

[VI. REGULATORY MATTERS](#regulatory-matters) 68

[A. Ex Parte Rules -- Permit-But-Disclose
Proceeding](#ex-parte-rules---permit-but-disclose-proceeding) 68

[B. Regulatory Flexibility Act](#regulatory-flexibility-act) 69

[C. Comment Dates](#comment-dates) 70

[D. Paperwork Reduction Act](#paperwork-reduction-act) 73

[E. Further Information](#further-information) 74

[F. Ordering Clauses](#ordering-clauses) 76

APPENDIX A -- PARTIES SUBMITTING COMMENTS AND REPLY COMMENTS

APPENDIX B -- PROPOSED RULES

APPENDIX C -- INITIAL REGULATORY FLEXIBILITY ANALYSIS

APPENDIX D --LICENSEES AUTHORIZED TO OPERATE ON 161.975 MHz AND 162.025
MHZ

# INTRODUCTION

1.  We initiate this rulemaking proceeding to identify the spectrum that
    should be used for maritime Automatic Identification Systems (AIS)
    in the United States and its territorial waters. AIS is an important
    tool for enhancing maritime safety and homeland security, and we are
    concerned that recent developments may have created uncertainty in
    the maritime community regarding the very high frequency (VHF)
    channels to be used for AIS, and that this in turn could impede
    efforts to expedite the broad deployment of AIS. We have received
    conflicting petitions and other pleadings on this subject from the
    National Telecommunications and Information Administration (NTIA),
    which is representing the interests of the Federal Government,
    including the United States Coast Guard (USCG or Coast Guard)[^1]
    and the Department of Transportation (including the Saint Lawrence
    Seaway Development Corporation) in this matter, and from MariTEL,
    Inc. (MariTEL), the licensee of all nine of the maritime VHF Public
    Coast (VPC) station service areas. Based on these petitions and
    pleadings, as well as responsive comments from other stakeholders in
    the maritime community, we propose to designate VHF maritime
    Channels 87B and 88B for exclusive AIS use domestically, in keeping
    with the international allocation of those channels for AIS, because
    we believe the use of those channels will best secure to the United
    States the maritime safety and homeland security benefits of AIS. In
    addition, we tentatively conclude that we should deny MariTEL's
    pending petitions that conflict with this proposal. We also
    determine that we should deny MariTEL's petition seeking a
    declaratory ruling that it has the exclusive right to use VHF
    maritime Channels 88A/B in certain areas within seventy-five miles
    of the United States-Canada border, subject only to coordination
    with Canada.

# BACKGROUND

## VHF Maritime Channels 87 and 88

2.  The regulation of maritime radio communication by the Federal
    Government can be traced back to 1910,[^2] and the maritime mobile
    service[^3] is the oldest radio service administered by the Federal
    Communications Commission (FCC or Commission).[^4] VHF channels in
    the 156-162 MHz band are used in the maritime mobile radio service
    by ship stations at sea or on inland waterways to communicate with
    other ship stations or with coast stations. These maritime channels
    are available for safety communications, distress alerting,
    operational and navigational communications, and public
    correspondence communications.[^5] The present proceeding
    principally involves VHF maritime Channels 87B (161.975 MHz) and 88B
    (162.025 MHz).[^6]

3.  Channel 87B is currently allocated for public correspondence, and
    Channel 88B is allocated to Federal Government non-military
    agencies.[^7] A 1962 treaty between the United States and Canada
    provides for coordinated use of VHF maritime channels (as well as
    radio frequencies above 30 megacycles per second generally) in areas
    near the border of the two countries.[^8] Under the 1962 treaty,
    Channel 88 is listed as a Canadian channel, but is assignable to
    United States stations within the frequency coordination zone,
    subject to successful coordination with Canada.[^9]

4.  In 1976, the Commission amended both its Table of Frequency
    Allocations and the predecessor rule parts to Part 80 of its Rules
    to allow public correspondence use of Channel 88 in the Great Lakes
    and the Saint Lawrence Seaway, in order to relieve frequency
    congestion in those areas.[^10] In the Notice of Proposed Rule
    Making in that proceeding, the Commission stated, "The frequency
    162.025 MHz is in the Government frequency band 162.0125-173.2 MHz,
    however, it has been cleared for the proposed usage. In areas other
    than the Great Lakes and Saint Lawrence Seaway, 162.025 MHz will
    continue to be used by Government stations."[^11] In 1984, the
    Commission extended the use of Channel 88 for public correspondence
    to Puget Sound and the Strait of Juan de Fuca.[^12] Consequently,
    note US223 to the Table of Frequency Allocations now reads:

    Within 75 miles of the United States/Canada border on the Great
    Lakes, the Saint Lawrence Seaway, and the Puget Sound and the Strait
    of Juan de Fuca and its approaches, use of coast transmit frequency
    162.025 MHz and ship station transmit frequency 157.425 MHz (VHF
    maritime mobile service Channel 88) may be authorized for use by the
    maritime mobile service for public correspondence.[^13]

## Automatic Identification Systems

5.  AIS is a maritime navigation safety communications system
    standardized by the ITU for use in collision avoidance and vessel
    monitoring and tracking. It employs on-board transponders,
    electronic charts, Differential Global Positioning System
    technology, and a technique called Self-Organizing Time Division
    Multiple Access (SOTDMA) to provide a VHF ship-to-ship and
    ship-to-shore radio service in which vessels and designated shore
    stations broadcast a unique identifier, coupled with safety-related
    data on, for example, ship positions, routes, dimensions, and
    navigational status. AIS-transmitted information can be received by
    similarly equipped vessels and shore stations in order to mitigate
    the risk of collisions and facilitate vessel monitoring and
    tracking.[^14]

6.  At the World Radiocommunication Conference of 1997 (WRC-97),
    Channels 87B and 88B were allocated internationally for AIS.[^15]
    However, Administrations were permitted to designate other channels
    if Channels 87B and/or 88B were not available.[^16] In December
    2000, the International Maritime Organization (IMO) mandated that
    ships subject to the International Convention for Safety of Life at
    Sea (SOLAS) carry AIS transceivers.[^17] In August 2001, the ITU
    approved an international standard for AIS equipment. This standard,
    ITU-R M.1371-1, contemplates that AIS equipment will operate on the
    internationally allocated AIS channels, *i.e*., it defaults to
    Channels 87B and 88B.[^18] The phase-in schedule for deployment of
    AIS began on July 1, 2002, and the IMO accelerated the schedule to
    require installation on all ships subject to SOLAS on international
    voyages by the first safety equipment survey after July 1, 2004, or
    by December 31, 2004, whichever is earlier, and on ships not engaged
    on international voyages by July 1, 2008.[^19]

7.  In the wake of the events of September 11, 2001, AIS has been
    recognized as an important tool in service of Maritime Domain
    Awareness (MDA), a critical component of homeland security.[^20] On
    November 25, 2002, the President signed the Maritime Transportation
    Security Act of 2002 (MTSA), which mandates domestic deployment of
    AIS.[^21] The MTSA directs the Coast Guard to promulgate regulations
    imposing AIS carriage requirements on certain vessels while they are
    operating on the navigable waters of the United States, namely,
    self-propelled commercial vessels of at least sixty-five feet in
    overall length; passenger vessels carrying more than a threshold
    number of passengers to be determined by the Coast Guard; and towing
    vessels of more than twenty-six feet in length and 600
    horsepower.[^22] The MTSA also empowers the Coast Guard to impose
    AIS carriage requirements on "any other vessel \[if it is
    determined\] that an automatic identification system is necessary
    for the safe navigation of the vessel."[^23] The MTSA did not,
    however, specify that any particular channels must be used for AIS.
    Pursuant to the MTSA and the Ports and Waterways Safety Act of
    1972,[^24] in 2003 the Coast Guard and the Saint Lawrence Seaway
    Development Corporation adopted AIS carriage and operational
    requirements for specified classes of vessels.[^25] These AIS
    regulations specify that equipment installed in satisfaction of the
    AIS carriage requirement must meet the performance standard
    established by the IMO and be approved as complying with, *inter
    alia*, ITU-R Recommendation M.1371-1, the international standard
    premised on AIS operating on Channels 87B and 88B.[^26]

## VHF Public Coast Stations and the *Public Coast Third Report and Order* 

8.  The maritime mobile radio service is comprised of both ship radio
    stations and land stations. The two major categories of land
    stations are public coast stations and private coast stations.
    Although private coast stations are limited to serving the
    operational and business needs of ships, public coast stations are
    permitted to also provide public correspondence services that can be
    interconnected to the public telephone network.[^27] Accordingly,
    they are generally classified as commercial mobile radio service
    (CMRS) providers, and are subject to common carrier regulation.[^28]
    In addition, however, coast stations are subject to special
    requirements in the interest of maritime safety.[^29]

9.  In July 1998, the Commission adopted the *Public Coast Third Report
    and Order*, amending Part 80 of the Commission's Rules to streamline
    the licensing process for VPC stations and promote regulatory
    symmetry in the treatment of VPC licensees vis-à-vis other CMRS
    providers.[^30] In the *Public Coast Third Report and Order*, the
    Commission adopted a geographic area licensing approach for VPC
    stations. The Commission established predefined regional service
    areas for new licenses in lieu of the traditional site-based
    licensing approach.[^31] It specifically established nine licensing
    regions near major waterways, terming them maritime VHF Public Coast
    areas,[^32] and thirty-three inland licensing regions based on
    Economic Areas (EAs), terming those inland VHF Public Coast
    areas.[^33] The Commission further determined that it would
    authorize just a single licensee to operate on all unassigned VHF
    public correspondence frequencies in each of the newly established
    regional service areas.[^34] Incumbent site-based VPC licensees were
    permitted to continue operating, and incumbent licensees and
    geographic area licensees were required to afford each other
    interference protection.[^35] In addition, the Commission affirmed
    an earlier determination that mutually exclusive applications for
    geographic area VPC licenses should be resolved through competitive
    bidding, pursuant to Section 309(j) of the Communications Act of
    1934, as amended (the Act),[^36] and it adopted competitive bidding
    procedures for such auctions.[^37] The Commission cautioned, in
    connection with its adoption of competitive bidding rules, that it
    "does not endorse any particular services, technologies, or
    products, and grant of an FCC license does not guarantee business
    success."[^38]

10. In the *Public Coast Third Report and Order*, the Commission also
    determined to provide additional technical flexibility to VPC
    licensees. It observed that the ITU *Radio Regulations* had
    established a channel plan for VPC spectrum based on a 25 kHz
    channel bandwidth.[^39] The Commission concluded that VPC licensees
    also should be permitted to use narrowband 12.5 kHz channels that
    are offset 12.5 kHz from the 25 kHz marine VHF band public
    correspondence channels where the licensee is authorized to operate
    on both adjacent frequencies or has acquired the consent of the
    licensee on the other side of the offset frequency.[^40] In
    authorizing the use of these narrowband offset channels, the
    Commission noted that 12.5 kHz channelization had been approved for
    this maritime spectrum internationally at WRC-97,[^41] and reasoned
    that without access to narrowband channel pairs, VPC licensees would
    be hampered in their efforts to compete effectively against other
    CMRS providers.[^42]

11. In the *Public Coast Third Report and Order*, the Commission also
    adopted section 80.371(c)(3) of the Rules,[^43] regarding AIS
    frequencies. The genesis of section 80.371(c)(3) is a petition for
    rulemaking filed by the Coast Guard on August 4, 1997, which the
    Commission elected to treat as a comment in the Public Coast
    proceeding.[^44] The Coast Guard had requested that the Commission
    set aside two duplex channel pairs offset 12.5 kHz from the marine
    VHF band public correspondence channels, as well as VHF maritime
    Channel 228B (162.0125 MHz), for use in AIS and related safety
    systems in support of the Coast Guard's Vessel Traffic Services
    (VTS) program.[^45] The Coast Guard had earlier established the
    Ports and Waterways Safety System (PAWSS) as an acquisition program
    to enhance its VTS operations, which are intended to prevent vessel
    collisions and other maritime accidents.[^46]

12. The Commission took notice that Channels 87B and 88B had been set
    aside for AIS internationally at WRC-97, but that Administrations
    could select other frequencies if those were unavailable.[^47] It
    also noted that Channel 87, including Channel 87B, was allocated to
    VHF public correspondence, and that Channel 88 was allocated to
    Government non-military agencies, but could be authorized in certain
    border areas for maritime public correspondence.[^48] The Commission
    concluded that "the Coast Guard request should be granted, and two
    channel pairs (plus Channel 228B, where it is a maritime frequency)
    should be set aside in each maritime VPC for AIS."[^49] The
    Commission added that it had considered designating Channel 87B as
    one of the AIS channels, but ultimately decided against doing so
    because "the public interest benefits flowing from such an approach
    are minimal as compared to the potential adverse impact on our
    licensing of public coast stations."[^50] The Commission explained:

    First, setting aside Channel 87B as an AIS channel would require
    relocation of the thirty-four public coast stations currently
    authorized to use Channel 87. Second, we believe that setting aside
    one broadband channel and one narrowband channel for AIS might
    complicate AIS implementation or raise the cost of the necessary
    equipment. Third, this approach would encumber one broadband channel
    and *three* narrowband channels, instead of encumbering two
    narrowband channels as proposed by the Coast Guard, because setting
    aside Channel 87B would leave the surrounding narrowband channels
    unavailable. Finally, setting aside Channel 87B would harm maritime
    VPC licensees' ability to construct wide-area systems by leaving
    most with no more than eight broadband channels.[^51]

13. The Commission concluded that, rather than designating channels for
    AIS by regulatory fiat, it would be better to rely in the first
    instance on negotiations between the Coast Guard and each individual
    maritime VPC area licensee to select channels for AIS use in the
    United States and its territorial waters. The Commission set a
    timetable for mandatory good faith negotiations, requiring
    initiation of such negotiations within six months after conclusion
    of the VPC license auction and requiring maritime VPC area licensees
    that object to a Coast Guard proposal to make a counterproposal
    within three months of receipt of that proposal.[^52] If good faith
    negotiations failed to yield an agreement within one year of the
    date the Coast Guard submitted its initial proposal, the Commission
    said, "the Coast Guard may ask the Commission to revisit this issue
    and select the channels and locations."[^53] The Commission
    concluded that this approach should be beneficial to the Coast Guard
    and the geographic area VPC licensees alike in comparison to
    immediate Commission designation of channels for AIS.[^54] The
    approach adopted by the Commission is codified in section
    80.371(c)(3), which states:

    VPCSA \[VHF public coast station area\] licensees may not operate on
    Channel 228B (162.0125 MHz), which is available for use in the Coast
    Guard\'s Ports and Waterways Safety System (PAWSS). In addition,
    within six months of the conclusion of the competitive bidding
    procedures to determine the licensees in each VPCSA, the U.S. Coast
    Guard shall submit to each licensee of VPCSAs 1--9 \[*i.e.*, the
    maritime VPCSAs\] a plan specifying up to two narrowband channel
    pairs offset 12.5 kHz from the channels set forth in the table in
    paragraph (c)(1)(i) of this section, for use in the PAWSS. The final
    selection of the PAWSS channel pairs can be negotiated (if the VPCSA
    licensee objects to the Coast Guard proposal, it shall make a
    counterproposal within three months) and established by an agreement
    between the parties. All parties are required to negotiate in good
    faith. If no agreement is reached within one year of the date the
    Coast Guard submitted its plan, the Coast Guard may petition the
    Commission to select the channel pairs.[^55]

## The VPC License Auction

14. On July 23, 1998, the Wireless Telecommunications Bureau (Bureau)
    announced that the auction of the 42 VPC licenses -- FCC Auction No.
    20 -- was scheduled to begin on December 3, 1998.[^56] On September
    4, 1998, the Bureau announced in a public notice the procedures and
    minimum opening bids for the auction.[^57] This *VPC Auction
    Procedures Public Notice* included a Due Diligence section, which
    specifically alerted potential bidders to (a) the need to provide
    interference protection to incumbent site-based VPC licensees and
    incumbent private land mobile radio licensees operating in the
    156-162 MHz band; and (b) the existence of agreements between the
    United States and Canada that may affect the assignment and use of
    VHF frequencies in areas near the Canadian border.[^58] In addition,
    the *VPC Auction Procedures Public Notice* cautioned prospective
    bidders to familiarize themselves with the *Public Coast Third
    Report and Order.*[^59] Further, a September 21, 1998 Erratum to the
    *VPC Auction Procedures Public Notice* added a note to the Due
    Diligence section specifically directing potential bidders to
    paragraphs 46-49 of the *Public Coast Third Report and Order, i.e.,*
    the discussion of the requirement to set aside spectrum for Coast
    Guard use, "\[f\]or information regarding other issues that may
    affect the availability of channels 87 and 88 throughout maritime
    and inland border VPCs."[^60]

15. Auction No. 20 began as scheduled on December 3, 1998, with eight
    qualified bidders. The auction ended on December 14, 1998. MariTEL
    submitted the winning bids for all nine of the maritime VHF Public
    Coast areas, bidding \$6,804,000 in aggregate for the nine
    licenses.[^61] MariTEL[^62] was duly licensed for the nine areas on
    May 19, 1999, and thus became subject to the Section 80.371(c)(3)
    requirement to negotiate with the Coast Guard to set aside two 12.5
    kHz offset channel pairs for AIS.

## The Coast Guard-MariTEL Memorandum of Agreement and the *June 2002 Public Notices*

16. On March 7, 2001, and pursuant to section 80.371(c)(3) of the
    Commission's Rules, the Coast Guard and MariTEL executed a
    Memorandum of Agreement (MOA) setting aside frequencies 157.375 MHz
    and 161.975 MHz for exclusive AIS use in VPCSAs 1-9.[^63] The MOA
    was by its terms to continue in effect for a period of ten years,
    with automatic renewal thereafter for ten-year terms.[^64] However,
    the MOA also included a provision for termination of the MOA by
    either party upon thirty days' written notice.[^65] The Bureau
    announced that the parties had agreed to the MOA in a public notice
    released on April 13, 2001.[^66]

17. By letter dated May 6, 2002, the Coast Guard informed the Bureau
    that NTIA had approved the use of Channels 87B and 88B throughout
    the United States and its possessions for AIS and related safety
    systems in support of homeland security as well as navigation
    safety.[^67] The Coast Guard further informed the Bureau that it
    intended to operate AIS on Channels 87B (pursuant to the Coast
    Guard/MariTEL MOA) and 88B (pursuant to the NTIA
    authorization).[^68] On June 13, 2002, the Bureau released a public
    notice relating this information, and adding that, until such time
    as the Commission establishes licensing, equipment certification and
    other requirements for AIS, "the Bureau will consider use of
    shipborne AIS equipment to be authorized by existing ship station
    licenses, including vessels that are licensed by rule."[^69] Two
    weeks later, on June 27, 2002, the Commission's Office of
    Engineering and Technology (OET) issued a second public notice
    pertaining to AIS equipment. In its public notice, OET indicated
    that, during the pendency of the rulemaking proceeding in which
    certification requirements for AIS equipment were under
    consideration, "the FCC Laboratory will coordinate review of
    applications for certification of AIS equipment with the United
    States Coast Guard to ensure that the equipment meets all applicable
    international standards and requirements."[^70] The effect of these
    two public notices (*June 2002 Public Notices*), then, was to
    clarify that, in the interest of homeland security, deployment of
    AIS equipment designed to operate on Channels 87B and 88B could
    continue in the interim before AIS licensing, operating and
    equipment certification requirements were codified in the
    Commission's Rules.

18. At some point a disagreement developed between the Coast Guard and
    MariTEL as to what was required of the parties under the terms of
    the MOA. Citing the parties' failed efforts to "resolve the
    bandwidth and geography issues" dividing them, MariTEL gave the
    Coast Guard notice of its termination of the MOA on May 5, 2003,
    effective June 4, 2003.[^71] While indicating that it remained
    willing to continue to negotiate with the Coast Guard to meet its
    obligations under Section 80.371 of the Commission's Rules, MariTEL
    stated that, by virtue of its termination of the MOA, "the full use
    of channel 87 will revert to MariTEL and the Coast Guard will no
    longer be permitted to employ VHF channel 87."[^72] In addition,
    prior to the termination of the MOA, MariTEL informed the Commission
    that, due to a precipitous decline in voice traffic over its
    network, it would cease providing VPC service of any kind, effective
    June 6, 2003.[^73] At present, MariTEL is not providing service on
    Channels 87 and 88, or on any other VPC channels.

## The MariTEL and NTIA Petitions and Proposals

19. MariTEL and NTIA have filed a number of pleadings that relate to VHF
    maritime Channels 87 and 88 and to AIS implementation within the
    United States.[^74] On April 4, 2003, prior to the termination of
    the MOA, MariTEL filed a petition for declaratory ruling[^75]
    regarding the use of Channels 88A/B above "Line A," an area
    encompassing that portion of the continental United States that is
    within approximately seventy-five miles of the Canadian border.[^76]
    MariTEL seeks a ruling that it holds the exclusive right in the
    United States to operate on the paired frequencies in specified
    areas above Line A, subject only to coordination with the government
    of Canada.[^77] MariTEL argues that note US223 to the Table of
    Frequency Allocations,[^78] the note specifying that Channel 88 may
    be authorized for maritime public correspondence use in the Great
    Lakes, the Saint Lawrence Seaway, and the Puget Sound and the Strait
    of Juan de Fuca, reflects an intention to make Channel 88 available
    exclusively for public coast station use in those areas.[^79] The
    Bureau requested comment on the *MariTEL Channel 88 Petition* on
    July 9, 2003.[^80]

20. On October 15, 2003, after the MOA was terminated, MariTEL filed an
    Emergency Petition for Declaratory Ruling requesting that the
    Commission clarify that shipborne AIS transmitters may not operate
    on Channels 87B and 88B or any other channels designated for VPC
    stations.[^81] According to MariTEL, with the termination of the
    MariTEL/USCG MOA, there is no longer any basis for authorizing
    shipborne AIS stations to operate on Channel 87B, yet the *June 2002
    Public Notices* have created uncertainty on that score.[^82] MariTEL
    therefore asks the Commission to clarify that the *June 2002 Public
    Notices* do not authorize shipborne AIS stations to operate on
    Channels 87B and 88B.[^83] MariTEL asserts that if the *June 2002
    Public Notices* were in fact intended to authorize the use of
    Channels 87B and 88B by ship stations, they would violate the
    Administrative Procedure Act (APA) because they would have
    effectively amended section 80.371(c)(3) of the Commission's Rules
    without complying with the notice-and-comment rulemaking procedures
    mandated by the APA.[^84]

21. On October 24, 2003, NTIA filed a Petition for Rulemaking urging the
    Commission to work with NTIA to allocate Channels 87B and 88B for
    exclusive AIS use on a shared Federal Government/non-Federal
    Government basis.[^85] NTIA says that Channels 87B and 88B need to
    be used in the United States for AIS operations that are essential
    for maritime safety and homeland security.[^86] According to NTIA,
    because Channels 87B and 88B are designated internationally for AIS
    use on the high seas as wideband channels, each comprising 25 kHz of
    spectrum, designating Channels 87B and 88B for AIS domestically will
    ensure a seamless worldwide AIS operation.[^87] Otherwise, vessels
    entering U.S. waters would have to identify and switch to other AIS
    channels, and this switching of channels could have adverse
    consequences for maritime safety by increasing the risk of
    collisions.[^88] In addition, NTIA contends that a failure to
    designate Channel 87B for AIS would compromise the ability of the
    United States and Canada to monitor international commercial
    maritime traffic in, for example, the Saint Lawrence Seaway, and
    would otherwise compromise the ability of the U.S. to coordinate
    with other countries.[^89] In a November 7, 2003 public notice, the
    Commission requested comment on both the *NTIA Petition* and the
    *MariTEL Emergency Petition*.[^90]

22. On November 7, 2003, MariTEL proposed that it serve as AIS frequency
    coordinator, offering this proposal as an avenue for resolving the
    present controversy in a manner that gives the Coast Guard access to
    the spectrum it desires for AIS while at the same time protecting
    MariTEL's interests as the maritime VPC licensee.[^91] Under this
    proposal, in lieu of providing narrowband channel pairs to the Coast
    Guard pursuant to Section 80.371(c)(3) of the Commission's Rules,
    MariTEL would accommodate the NTIA's request for nationwide use of
    channel 87B for AIS in a wideband simplex mode while remaining the
    licensee of the channel, "charged with administration of the channel
    for the benefit of the Coast Guard and mariners."[^92] As the
    exclusive AIS frequency coordinator, MariTEL would, for a fee,
    process Maritime Mobile Service Identity (MMSI)[^93] applications
    and maintain a database of all AIS transponders on vessels,
    irrespective of whether the vessels' carriage of the transponder is
    mandatory or voluntary, including foreign flag vessels required to
    carry AIS equipment under the SOLAS Convention.[^94] MariTEL also
    proposes to process MMSI applications for all shore stations and
    aids to navigation.[^95] MariTEL adds that, for an additional fee,
    it would provide AIS Information Services, including vessel location
    services derived from real-time data, to vessel operators, port and
    harbor authorities, and state and local governments.[^96] In a
    public notice released on November 19, 2003, the Bureau solicited
    comment on the *MariTEL Frequency Coordinator Proposal*.[^97]

23. On February 9, 2004, MariTEL submitted an alternative proposal that
    it believes would resolve this controversy in a manner favorable to
    the Coast Guard and the maritime community as well as itself.[^98]
    Specifically, MariTEL states that it would support the *NTIA
    Petition* for the reallocation of Channels 87B and 88B for exclusive
    AIS use, and that it would not seek payment from either the Coast
    Guard or ship station licensees as a prerequisite to allowing them
    to use spectrum licensed to MariTEL for AIS, provided that a sharing
    plan developed by MariTEL is adopted by the Commission.[^99] Under
    the *MariTEL Sharing Proposal,* (a) NTIA would authorize the use of
    Channel 88B by only the Coast Guard, MariTEL, and ship stations for
    AIS, giving MariTEL access to that Federal Government Channel 88B in
    return for MariTEL providing the Coast Guard and mariners with free
    access to Channel 87B; (b) the Coast Guard would use the two
    channels for shore station operations to support VTS and
    surveillance applications for homeland security that are consistent
    with the MTSA, but its use of the channels would be confined to
    those purposes; and (c) MariTEL would have the right to use the two
    channels in all maritime areas for shore station operations to
    support non-Coast Guard AIS applications.[^100] According to
    MariTEL, the proposed sharing can be accomplished using channel
    loading and time slot allocation, and could be implemented in such a
    way that Coast Guard and ship station use of the channels for safety
    and homeland security communications would always have priority over
    other types of communications.[^101] The *MariTEL Sharing Proposal*
    is also premised on the Commission's adoption of regulations
    precluding reception and use of AIS transmissions except by MariTEL,
    the Coast Guard, and ship stations.[^102] MariTEL also requests that
    the Commission suspend its current AIS equipment authorization
    process pending consideration of MariTEL's proposed new methodology
    for determining whether AIS devices adhere to emissions mask
    limitations that will ensure that 25 kHz simplex operations on
    Channels 87B and 88B do not cause interference to adjacent duplex
    maritime channels.[^103] On February 13, 2004, the Commission
    requested comment on the *MariTEL Sharing Proposal*.[^104]

# MEMORANDUM OPINION AND ORDER

24. In this *Memorandum Opinion and Order*, we address the issue raised
    in the *MariTEL Channel 88 Petition*: Does MariTEL have the
    exclusive right to use Channels 88A/B[^105] in areas above Line A,
    subject only to coordination with Canada? Based on our review of the
    record and analysis of the pertinent regulatory history, we conclude
    that, while MariTEL is the only non-Government licensee eligible to
    use the spectrum, it is not entitled to exclusive use of the
    channels above Line A. Accordingly, we deny the *MariTEL Channel 88
    Petition*.[^106]

25. MariTEL asserts that the *1976 NPRM*[^107] and note US223 to the
    Table of Frequency Allocations clearly evince an intent by the
    Commission that Channel 88 should be used exclusively for public
    correspondence in the relevant geographic areas above Line A,
    subject only to coordination with the Canadian government.[^108] It
    contends that, in adopting note US223, the Commission specifically
    determined that use of Channel 88B for public correspondence in the
    Great Lakes and the Saint Lawrence Seaway should not be subject to
    coordination with any Federal Government operations on the
    channel.[^109] We disagree. The language of note US223 is merely
    permissive; it provides that Channel 88 *may* be authorized for use
    by the maritime mobile service for public correspondence. Standing
    alone, the permissive language of note US223 simply does not support
    MariTEL's assertion that the note should be interpreted as
    effectively reallocating Channel 88B from Federal Government to
    exclusive non-Federal Government use in those areas above Line A.
    Nor can an intent to reallocate Channel 88B in this manner be
    discerned from a reading of note US223 in conjunction with the *1976
    NPRM* and other pertinent regulatory history.[^110] As noted, there
    is no allocation for non-Federal Government use of Channel 88B in
    the Table of Frequency Allocations. We do not believe this is an
    administrative oversight, as MariTEL asserts,[^111] inasmuch as note
    G5 to the Table clearly specifies that the frequency band
    162.0125--173.2 MHz, the spectrum block encompassing Channel 88B, is
    allocated to Federal Government non-military agencies.[^112] We
    believe that if the Commission and NTIA had intended to alter a
    Federal Government allocation of Channel 88, or otherwise restrict
    Federal Government use of Channel 88 above Line A, they would have
    done so expressly. We agree with NTIA that note US223, like a number
    of other notes to the Table of Frequency Allocations, simply
    authorizes the Commission to make the channel available for a
    specified non-government use, subject to prior coordination with
    NTIA and any limitations set forth in the notes.[^113]

26. MariTEL argues that the Auction No. 20 bidder information package
    informed prospective bidders that use of Channel 88 was subject to
    Canadian coordination,[^114] but did not notify them of any
    requirement to coordinate with NTIA.[^115] It contends that it was
    therefore entitled to conclude that there was no Federal Government
    coordination requirement, and the geographic area VPC licensee would
    hold the exclusive right to operate on Channel 88 in the United
    States along the Canadian border.[^116] First, we disagree with
    MariTEL regarding the contents of the bidder information package.
    After the bidder information package noted the Canadian coordination
    requirement, it referred the reader to the *Public Coast* *Third
    Report and Order*.[^117] The cited portion of the *Public Coast
    Third Report and Order,* in turn, expressly states that "Channel 88B
    is allocated to Government non-military agencies."[^118] Thus, we
    agree with NTIA that the bidder information package put prospective
    bidders on notice of the potential preclusive effect of Federal
    Government operations on Channel 88.[^119]

27. Moreover, even assuming *arguendo* that the bidder information
    package did not disclose the need to coordinate operations on
    Channel 88 with the Federal Government, MariTEL was not entitled to
    assume that something was not the case simply because it was not
    mentioned in the bidder information package.[^120] The bidder
    information package is but one tool the Commission utilizes to
    provide information to auction participants,[^121] and bidders are
    not entitled to rely on it as their sole source for interpretation
    of the Commission's Rules.[^122] Indeed, the public notice
    announcing the procedures and minimum opening bids for Auction No.
    20 specifically instructed bidders that it was their responsibility
    to remain current with the Commission's Rules.[^123] A thorough
    review of the Commission's Rules would have alerted bidders of the
    possible need to coordinate Channel 88 operations with NTIA.

28. Finally, MariTEL argues that the Commission has never auctioned
    spectrum subject to Federal Government rights (other than at
    specified locations), and should not be deemed to have done so
    here.[^124] We disagree, for the Commission has in fact used
    competitive bidding to assign geographic licenses for spectrum on
    which the Federal Government also may operate.[^125] More
    fundamentally, we reject as unsupported the tacit premise of this
    argument, that the Commission implicitly guarantees auction
    participants that any spectrum they are awarded will not be subject
    to or need to be coordinated with Federal Government operations. We
    do not believe reliance on such a supposition is reasonable.[^126]
    Rather, the Commission has consistently required potential bidders
    to perform due diligence, assuring themselves of familiarity with
    the Commission's Rules. MariTEL cannot reasonably claim to not have
    received adequate notice that Channel 88B is allocated to the
    Federal Government; it need only have reviewed the portions of the
    Table of Frequency Allocations, and the associated notes, pertaining
    to the spectrum for which it intended to bid. We accordingly
    conclude that MariTEL has only the exclusive right to use Channel 88
    in the specified areas above Line A for non-Government public
    correspondence, but it does not have the right to use the spectrum
    free of Federal Government operations and subject only to
    coordination with Canada.[^127]

29. We further conclude that, under note US223, MariTEL must coordinate
    with NTIA as well as with Canada prior to initiating public
    correspondence operations on Channel 88B above Line A. Since Channel
    88B is allocated to the Federal Government in the Section 2.106
    Table of Frequency Allocations, its use for non-Government public
    correspondence communications pursuant to note US223 is governed by
    Section 2.102(c) of our Rules.[^128] Section 2.102(c) specifies that
    non-Government stations may be authorized to use Federal Government
    frequencies in the bands above 25 MHz only after Commission
    consultation "with the appropriate Government agency or agencies,"
    and provided that, *inter alia*, the non-Government operation
    conforms with the conditions agreed upon by the Commission and NTIA,
    and does not cause harmful interference to Government
    stations.[^129] Thus, any proposed use of Channel 88B above Line A
    for public correspondence must be coordinated in advance with NTIA
    and Canada.[^130] Given that NTIA has determined that Channel 88B
    should be used exclusively for AIS, it is clear that successful
    coordination of a proposed public correspondence service offering
    will depend on assurances that AIS will have priority over public
    correspondence, and that AIS communications will not be subject to
    harmful interference from public correspondence
    communications.[^131]

# NOTICE OF PROPOSED RULE MAKING

## Designation of Channels for AIS

30. As we have discussed, Section 80.371(c)(3) of the Commission's Rules
    directs the licensee of VPCSAs 1-9, *i.e.*, MariTEL, and the Coast
    Guard to negotiate in good faith to select two narrowband offset
    channel pairs to be dedicated to AIS use, and specifies that if an
    agreement cannot be reached, the Coast Guard may petition the
    Commission to select the channel pairs.[^132] Although MariTEL and
    the Coast Guard did in fact reach an agreement to designate
    frequencies 157.375 MHz and 161.975 MHz for AIS and executed the MOA
    to that effect, MariTEL later exercised its right to terminate the
    MOA. Following termination of the MOA, NTIA petitioned the
    Commission on behalf of the Coast Guard to select Channels 87B and
    88B[^133] for AIS and to work with NTIA to reallocate the channels
    for exclusive AIS use nationwide on a shared Federal
    Government/non-Federal Government basis.[^134] We have carefully
    considered the various proposals submitted by MariTEL and NTIA,
    including their technical submissions, and the comments filed in
    response to the various public notices.[^135] We tentatively agree
    with NTIA and the Coast Guard, as well as the vast majority of
    interested parties who filed comments in response to the public
    notices concerning this matter, that the public interest would be
    served by designating Channels 87B and 88B[^136] for exclusive AIS
    use in the nine maritime VPCSAs.[^137] We therefore grant the *NTIA
    Petition* to the extent that it seeks initiation of a rulemaking
    proceeding to consider this issue, deny the *MariTEL Emergency
    Petition*,[^138] and adopt the instant *Notice of Proposed Rule
    Making* in which we propose to designate Channels 87B and 88B for
    exclusive AIS use in the nine maritime VPCSAs. We tentatively
    conclude, moreover, that neither the *MariTEL Frequency Coordinator
    Proposal* nor the *MariTEL Sharing Proposal* should be adopted,
    because the *NTIA Petition* offers a better means of promoting the
    widespread and effective use of AIS for maritime safety and homeland
    security.[^139]

31. MariTEL opposes the *NTIA Petition*, asserting that shipborne
    transmission of AIS messages on Channels 87B and 88B on a wideband
    simplex basis, as proposed by NTIA, will preclude MariTEL from using
    not only those two channels, but all or almost all of the VPC
    spectrum for which it is licensed.[^140] According to MariTEL, it
    will result in destructive interference to both MariTEL's operations
    and the operation of site-based incumbent VPC licensees, and will
    prevent MariTEL from recouping its substantial investment in the
    spectrum.[^141] MariTEL states that granting the NTIA request
    without providing for compensation to MariTEL would be unfair to
    MariTEL and would have a chilling effect on future auctions, causing
    prospective auction participants to think twice before placing
    bids.[^142] In MariTEL's view, it would also constitute a *per se*
    regulatory taking, entitling MariTEL to just compensation either in
    cash or in alternative spectrum.[^143]

32. In addition, MariTEL contends that NTIA has not demonstrated why the
    Commission's earlier determination in the *VPC Third Report and
    Order* not to codify specific channels for AIS in the Rules was
    incorrect, or why circumstances have changed in a manner that makes
    the Commission's earlier decision invalid.[^144] MariTEL further
    contends that, with the termination of the MOA between MariTEL and
    the Coast Guard, there is no longer any legal basis to permit AIS
    operations on Channel 87.[^145] MariTEL adds that the Coast Guard
    can easily use other channels for AIS if Channels 87B or 88B are
    unavailable,[^146] and that the United States should not allocate
    Channels 87B and 88B for AIS simply because other countries have
    designated those channels for AIS.[^147]

33. In response to MariTEL's arguments, we note at the outset that the
    *Memorandum Opinion and Order* herein clarifies that MariTEL is
    entitled to use Channel 88B only in a geographically circumscribed
    area, *i.e.,* within 75 miles of the United States-Canada border,
    and, more importantly, that MariTEL is entitled to use Channel 88B
    in that geographic area for public correspondence only after
    successful coordination with both NTIA and Canada, and on a
    non-interference basis to Federal Government operations on the
    channel.[^148] Channel 88B is and always has been a Federal
    Government channel under the control of NTIA at all relevant times,
    including the period prior to the VPC auction. NTIA has determined
    that Channel 88B should be used for AIS exclusively, and has already
    authorized the Coast Guard and the maritime community to use Channel
    88B for AIS. Accordingly, we do not consider Channel 88B as entirely
    MariTEL's to give up. Our analysis of the impact of our proposal on
    MariTEL will therefore focus on the impact to MariTEL of Channel 87B
    being set aside for AIS in lieu of two narrowband duplex channel
    pairs. Under existing Section 80.371(c)(3), MariTEL is subject to
    providing up to two 12.5 kHz narrowband channel pairs for AIS, so
    the total amount of spectrum potentially to be set aside for AIS is
    50 kHz. Our proposal, in contrast, requires that only a single 25
    kHz channel, Channel 87B, be designated for AIS from the VPC
    spectrum to which MariTEL currently has primary status throughout
    VPCSAs 1-9. Thus, our proposal would require MariTEL to set aside
    for AIS use only one half of the total spectrum contemplated under
    Section 80.371(c)(3). We do not by this observation intend to
    suggest that the relative impact of the proposed AIS set-aside on
    MariTEL's operations vis-à-vis a set-aside of two narrowband channel
    pairs can be determined conclusively by simply looking to the total
    amount of spectrum involved in each alternative. We recognize, for
    example, that the proposed use of Channel 87B on a simplex rather
    than a duplex basis must also be factored in, along with the fact
    that the use of Channel 87B will encumber three narrowband channels.
    But we do believe that the total amount of VPC spectrum to be set
    aside is a consideration. We invite comment on this tentative
    conclusion.

34. We also note, as a preliminary legal matter, that MariTEL has no
    vested right to the continuation without change of the VPC rules
    that were in effect when it formulated its bids in Auction No. 20.
    It is well established that the Commission retains the power to
    alter the terms of existing licenses by rulemaking.[^149] It also
    has been established that the Commission retains this power to alter
    the terms of existing licenses even with respect to licenses
    acquired through the auction process.[^150] Indeed, the Act
    expressly provides that the statutory provisions regarding spectrum
    auctions do not "diminish the authority of the Commission ... to
    regulate or reclaim spectrum licenses" and should not be construed
    "to convey any rights ... that differ from the rights that apply to
    other licenses ...."[^151] Here, we are not proposing to change the
    terms of any of MariTEL's licenses, but proposing only to change the
    terms of the AIS set-aside codified in Section 80.371(c) of the
    Commission's Rules. Our legal authority to take this action is not
    in issue. The question before us is whether and under what terms the
    designation of Channels 87B and 88B for AIS would be sound domestic
    policy.[^152]

35. We disagree with MariTEL's contention that the record does not
    reveal that circumstances have changed since the adoption of the
    *VPC Third Report and Order* in 1998 such that the Commission's
    decisions therein, in particular the decision mandating
    identification through negotiation of two narrowband duplex channel
    pairs for AIS, need to be revisited. Most obviously, the termination
    of the MOA suggests that reliance on negotiation to identify the VPC
    spectrum to be used for AIS may no longer be in the public interest.
    We believe that at this juncture the Commission needs to step in to
    codify the AIS channels, in the interest of providing certainty to
    the maritime community and encouraging widespread deployment of AIS.
    In addition, the need for wideband simplex operation of AIS was not
    foreseen in 1998 when the Commission determined that two narrowband
    channel pairs would be sufficient. NTIA states that it was initially
    thought that AIS could be operated on narrowband channels, but that
    subsequent technical analysis and operational experience now confirm
    that effective use of AIS for both maritime safety and homeland
    security requires the use of wideband channels.[^153] Further, the
    tragic events of September 11, 2001, have underscored the importance
    of AIS in protecting the United States against terrorist attack, in
    turn heightening the importance of ensuring that AIS is implemented
    quickly, widely, and effectively. In 1998, moreover, there existed a
    possibility that many other nations might also opt out of the
    international standard, and employ channels other than Channels 87B
    and 88B for AIS in their territorial waters, but that has not
    happened. We now understand that if the United States employs
    channels other than Channels 87B and 88B for AIS, it will be
    departing from the approach adopted by the rest of the international
    maritime community almost without exception.[^154] The use in the
    United States of channels other than Channels 87B and 88B would thus
    preclude a seamless worldwide or near-worldwide AIS network that
    might otherwise be established. Finally, as noted above, a primary
    reason that the Commission declined in 1998 to designate Channel 87B
    for AIS use was the potential impact on co-channel site-based
    incumbents.[^155] Now, in light of industry consolidation and a
    downturn in the maritime public correspondence market,[^156] there
    are only seven co-channel site-based incumbents.[^157] We believe,
    in sum, that these developments occurring after the adoption of
    Section 80.371(c)(3) in 1998 warrant revisiting the domestic AIS
    spectrum allocation.

36. MariTEL also argues that the Coast Guard can easily use other VPC
    channels for AIS if Channels 87B and 88B are unavailable, but it
    does not identify specific alternative channels, does not represent
    that any alternative channels would be better suited for AIS or
    otherwise better advance the public interest, and, for that matter,
    does not explain why the use of any other of its licensed VPC
    channels for AIS would be more advantageous to MariTEL's commercial
    interests. On the other hand, commenters overwhelmingly favor the
    designation of Channels 87B and 88B for domestic AIS use, and
    identify a number of important public interest benefits from the use
    of those channels.

37. Designating Channels 87B and 88B for AIS in the United States and
    its territorial waters will permit seamless worldwide AIS
    operations.[^158] If the United States were to designate channels
    other than 87B and 88B for AIS, vessels entering United States
    waters would have to switch to those alternative channels, instead
    of being able to use the same channels that were employed in
    international waters. Commenters indicate that requiring such
    switching would increase the risk of vessel collisions.[^159] If
    ships must switch channels as they approach and transit an AIS
    "fence" between international and United States waters, there is a
    risk that they will disappear temporarily from the screens of vessel
    traffic management systems as well as from the screens of AIS
    receivers located on the bridges of vessels.[^160] RTCM says that
    these gaps in AIS coverage could be especially problematic in busy
    maritime border areas where maintaining port security is critical,
    such as San Diego, Puget Sound, and U.S. possessions in the
    Caribbean.[^161]

38. Further, domestic use of Channels 87B and 88B for AIS would
    facilitate the speedy and efficient deployment of AIS, allowing the
    United States to take full advantage of existing AIS standards and
    infrastructure. According to some commenters, mandating the use of
    other channels could prolong implementation schedules for future
    PAWSS installations and delay full implementation of AIS as a
    component of homeland security because of the need for additional
    technical analysis, possible design changes, and conceivably more
    extensive shore infrastructure to accommodate AIS channel
    shifting.[^162] In addition, AIS operations on Channels 87B and 88B
    already have been deployed in, for example, the Saint Lawrence
    Seaway. A switch to other channels on the United States side would
    not only necessitate a costly reconfiguration of the AIS network on
    the Seaway but, more importantly, would compromise the ability of
    the United States to coordinate with Canada in monitoring vessel
    traffic on the Seaway and in other areas, since Canada uses Channels
    87B and 88B for AIS.[^163] In addition to implementation delays and
    coordination difficulties, the use of channels other than 87B and
    88B would affect the United States adversely because it would cause
    the U.S. Government to expend considerably more time, money and
    resources to implement a domestic AIS infrastructure.[^164]

39. We agree with NTIA that designating specific channels for AIS should
    provide greater regulatory certainty, which in turn should encourage
    investment in AIS technology.[^165] Calling for another round of
    negotiations to identify channels for AIS would likely result in
    greater delay before this critical issue could be definitively
    resolved, and the resultant uncertainty would doubtless retard the
    pace of AIS deployment in the United States. Further, a resolution
    premised on a new MOA between the parties would still leave open the
    possibility that either party would terminate that future MOA,
    returning us to the present predicament.[^166] Specifically
    designating AIS channels in the Commission's Rules, in contrast,
    would eliminate that possibility. Therefore, we see important public
    interest benefits in designating specific channels for AIS, and the
    record developed thus far overwhelmingly militates in favor of
    designating Channels 87B and 88B for this purpose rather than any
    other channels.[^167] In addition, although MariTEL opposes our
    proposal, at least insofar as it is not linked to simultaneous
    adoption of the *MariTEL Frequency Coordinator Proposal* or the
    *MariTEL Sharing Proposal*, we believe it is in the interest of
    MariTEL to have this matter resolved expeditiously with some degree
    of certainty. Resolving the issue through a rulemaking will allow
    MariTEL to adjust its business plans, as needed, on the basis of a
    clear understanding that Channels 87B and 88B, and not different
    channels, will be used domestically for AIS. We invite comment on
    our tentative conclusion that the public interest will be served by
    designating Channels 87B and 88B exclusively for AIS use.

40. We also propose to eliminate note US223 to the Table of Frequency
    Allocations if we adopt our proposal to designate Channels 87B and
    88B for exclusive AIS use in all maritime VPCSAs inasmuch as VPCSAs
    1, 5 and 7 completely encompass the areas above Line A identified in
    note US223. We invite comment on this proposal. As an alternative to
    deleting note US223, we could modify the note to make clear that AIS
    communications are to be accorded priority over all other
    communications on Channel 88B in the specified areas. We accordingly
    request comment on whether we should modify note US223 in lieu of
    deleting it. Finally, although we here propose to provide for AIS
    use of Channels 87B and 88B on a wideband simplex basis, we note
    that MariTEL asserts that AIS can be deployed in the United States
    using duplex narrowband channels, notwithstanding the inconsistency
    with the international standards. We ask commenters to address the
    question of whether it is truly essential that AIS be provided in
    the United States using wideband simplex channels, or whether the
    use of narrowband duplex channels is a reasonable alternative.
    Commenters favoring the use of narrowband duplex channels should
    describe the public interest benefits to be derived from such an
    approach, including the potential to mitigate interference between
    AIS and VPC operations.

## Interference Issues

41. The gist of MariTEL's opposition to the NTIA proposal to designate
    Channels 87B and 88B for AIS is that it would cause harmful
    interference to MariTEL's VPC operations to a much greater extent
    than would the designation of two duplex narrowband channel
    pairs.[^168] Indeed, MariTEL claims that the interference would be
    of such a magnitude that MariTEL could not commercially exploit any
    of its licensed geographic area VPC spectrum, not just the
    AIS-designated channels. For the reasons that follow, we tentatively
    conclude that the proposed designation of Channels 87B and 88B for
    AIS should not have an adverse effect on MariTEL's use of its VPC
    channels to a materially greater extent, if at all, than would
    designation of two narrowband offset channel pairs of the
    Commission's choosing.[^169]

42. MariTEL and NTIA each submitted an analysis of potential
    interference to public correspondence (PC) frequencies from AIS
    transmissions. The interference analysis submitted by MariTEL was
    prepared by inCode Telecom Group, Inc. (inCode),[^170] and the
    analysis submitted by NTIA was prepared by the Department of Defense
    Joint Spectrum Center (JSC).[^171] The inCode Report and the JSC
    Report both purport to show AIS interference to PC analog and
    digital receivers. The inCode Report also includes a study of PC
    transmitter interference to AIS receivers. The reports use different
    test methodologies. The voice and data tests in the JSC Report were
    performed in a benign environment, eliminating the impacts of the
    surrounding RF environment.[^172] The inCode Report used a
    combination of free space calculations along with calculations
    taking into account free space loss, fading and other "design
    characteristics" that were not defined in the inCode Report.[^173]
    The JSC Report provided greater detail on how it established
    interference parameters and on the technical characteristics of the
    radios used in the tests.[^174]

43. Assuming AIS shore station operation in "high seas" simplex mode
    using Channels 87B and 88B, the inCode Report used four interference
    levels to determine the impact on a PC analog receiver: very low,
    low, medium and high.[^175] The levels were based on the
    interference to "Harvard phrases" sent from the PC
    transmitter.[^176] However, there is insufficient information in the
    inCode Report to ascertain how the different levels were determined.
    This makes it difficult to compare the results of the inCode Report
    to the results of the JSC Report. The inCode Report indicated "high"
    interference to a PC analog voice receiver.[^177] For the tests
    determining interference to a PC data receiver, the inCode Report
    provided plots showing different levels of data throughput for
    varying levels of AIS signal into the receiver. The plots show
    throughput levels reduced by up to fifty percent for a 8500 bps
    baseline.[^178] The inCode Report concluded that there is a
    "distinct probability of interference problems" to the AIS system
    from VPC radios operating in the vicinity of the AIS transponder,
    and that VPC radios would also suffer interference from the AIS
    system on the shipborne unit.[^179] The inCode Report also concluded
    that obtaining enough vertical separation may be impractical due to
    the "severity of transmitter noise interference levels identified;"
    that adjacent channel interference "will severely hamper the ability
    of the AIS system to 'listen' to boats in the open seas and could
    very well destroy operations all together;" and that joint planning
    and implementation is warranted to address these interference
    issues.[^180]

44. The JSC Report also indicated interference to PC voice and data
    communications, but at significantly different levels than indicated
    in the inCode Report. The JSC Report used articulation scores (AS)
    to determine the levels of interference.[^181] The JSC Report
    indicates that under near-perfect conditions, the maximum AS
    attainable is about ninety-five percent.[^182] It also indicates
    that an AS of eighty percent enables a listener to understand every
    sentence without significant effort. The JSC Report recorded a
    worst-case AS of 93.1, compared to a baseline AS of 95.3 if AIS is
    not a factor. The JSC Report also examined the interference
    potential of AIS to a PC data receiver with no error correction. It
    recorded a worst-case bit error rate of 3.1 x 10^-2^ bits per
    second, with a baseline of less than 1 x 10^-6^ bits per second if
    AIS is not a factor.[^183] This corresponds to a worst-case bit rate
    of approximately ninety-seven percent, a significant difference from
    the fifty percent worst-case throughput indicated in the inCode
    Report. The JSC Report also concludes that "the use of FEC \[Forward
    Error Correction\] codes and block interleaving in the receiver
    should allow it \[to\] operate normally in the presence of AIS
    emissions."[^184]

45. In its cover letter accompanying the JSC Report, NTIA states that it
    has been recognized for many years that paging transmitters
    operating in the 152-153 MHz and 157-158 MHz bands and National
    Oceanic and Atmospheric Administration (NOAA) weather radio
    transmitters in the upper adjacent Federal Government band interfere
    with VHF marine radio receivers.[^185] NTIA also observes that the
    RTCM formed a special committee comprised of government and
    non-government experts -- RTCM SC 117 -- to address this
    problem.[^186] The committee produced a voluntary standard for
    marine radios that significantly improves VHF marine receiver
    performance.[^187]

46. NTIA concludes, "The current state-of-the-art in digital radio
    communications provides mitigation techniques that would provide
    adequate protection against this potential AIS interference to
    MariTEL's proposed data service. Given the congested radio
    environment in the VHF band, MariTEL would likely need to employ
    these mitigation techniques even if no AIS operations were
    present."[^188] MariTEL disputes the conclusions of NTIA and the JSC
    Report that the use of FEC codes and other methods is a reasonable
    and adequate solution to the identified interference issues. MariTEL
    says this solution is not commercially viable and would impair
    future product capabilities. According to MariTEL, "Any requirement
    to implement FEC codes severely limits MariTEL's wireless data
    business plans due to the difficulty of providing new and innovative
    higher-bandwidth applications to the maritime industry."[^189]

47. We tentatively conclude that the ability of MariTEL to incorporate
    FEC codes and block interleaving to prevent interference to VPC data
    transmissions further undermines its claim that designating Channels
    87B and 88B for AIS will preclude any opportunity for MariTEL to
    take commercial advantage of the VPC spectrum it acquired at
    auction. As NTIA points out, FEC and interleaving techniques are
    used by public safety entities in the land mobile radio service to
    mitigate the effects of that congested signal environment, and
    digital selective calling radios employ FEC and interleaving in the
    marine environment.[^190] It may add to MariTEL's costs of doing
    business, but we do not think it is beyond the bounds of
    reasonableness, especially in a spectrum environment posing a
    significant interference challenge even in the absence of AIS, if
    MariTEL finds that it needs to incorporate state-of-the-art
    technology in order to operate at the minimum throughput levels it
    believes are essential for commercial success.[^191] We invite
    comment on this tentative conclusion and on all aspects of the
    inCode and JSC interference analyses, including the reasonableness
    of their assumptions, the accuracy of their methods, and the
    validity of their conclusions.

48. In addition, we believe that, regardless of whether we designate
    Channels 87B and 88B for domestic AIS use, MariTEL's ability to use
    Channels 87B and 88B for non-AIS communications potentially could be
    limited in coastal areas because of the use of those channels for
    AIS in international waters[^192] or conceivably even by vessels
    exercising the right of innocent passage in U.S. waters.[^193] U.S.
    territorial waters extend twelve nautical miles from the
    shore.[^194] However, AIS transmission ranges at sea typically reach
    at least twenty to thirty nautical miles depending on antenna.[^195]
    Thus, vessels on international voyages would be transmitting AIS
    communications on Channels 87B and 88B as they approach the AIS
    fence, since they would not switch to another channel in any event
    until the ship is within VHF range and contacted by a Coast Guard
    shore station. These AIS transmissions could have the potential to
    cause interference to VPC communications on Channels 87B and 88B
    while the vessels were between twelve and twenty nautical miles from
    shore, and likely at even greater distances. We request comment on
    the extent, if any, to which the use of Channels 87B and 88B for AIS
    by vessels in international waters potentially may cause
    interference to, or otherwise restrict, domestic VPC operations on
    Channels 87B and 88B. If such interference would be significant, it
    further reduces the potential effect on MariTEL of a domestic
    designation of Channels 87B and 88B for AIS.[^196]

49. For the above reasons, and after reviewing the comments submitted in
    response to the various public notices, we tentatively conclude that
    there is no basis in public policy or equity either to forego
    designating Channels 87B and 88B for AIS in order to protect
    MariTEL's interests or to provide some mechanism to compensate
    MariTEL if we do so. We believe that the action we propose here is
    essential to public safety, a reasonable regulatory response to
    changed circumstances, does not limit the licensed VPC spectrum
    available for MariTEL's proposed data offerings to any greater
    degree than would the designation of four narrowband offset
    channels, does not unfairly undermine MariTEL's reasonable
    investment-backed expectations, and does not undermine the integrity
    of the auction process. We invite comment on these tentative
    conclusions as well as on our overall proposal. In addition, we
    encourage the Coast Guard and Maritel to cooperate in an effort to
    avoid interference to and from AIS and VPC operations, and to take
    reasonable measures to remedy any instances of interference that
    occur. Should any disagreement arise, either party could request the
    Commission\'s assistance. Although we do not propose here to mandate
    any particular type of cooperative interference mitigation measures,
    we seek comment on whether there are specific actions we could take
    (including but not limited to imposing particular obligations in our
    rules) to facilitate such collaboration. Commenters may consider,
    for example, whether the Coast Guard and MariTEL should negotiate
    regarding a coordination agreement or similar arrangement to
    mitigate interference.

50. We note that commenters besides MariTEL have contended that MariTEL
    should be compensated in some manner if Channels 87B and 88B are
    designated for AIS.[^197] While we have tentatively concluded
    otherwise for the reasons explained above, interested parties who
    continue to believe that MariTEL should be compensated in some way
    should explain in detail why that is so. Proponents of compensation
    should also identify appropriate compensation and discuss whether
    the Commission has legal authority to provide that compensation.

## MariTEL Proposals

51. We also tentatively conclude that it would not serve the public
    interest to adopt the *MariTEL Frequency Coordinator Proposal* or
    the *MariTEL Sharing Proposal*. We discern little concrete benefit
    from either proposal beyond providing a resolution of this
    controversy that is acceptable to MariTEL by offering a potential
    revenue stream. As discussed below, there are significant problems
    with each proposal that, we believe, outweigh any benefits.

### Frequency Coordinator Proposal

52. With respect to the *MariTEL Frequency Coordinator Proposal,*
    commenters assert that the service MariTEL proposes to provide is
    not frequency coordination[^198] and that there is no need for AIS
    frequency coordination.[^199] Commenters note, moreover, that where
    frequency coordination is required, the Commission generally favors
    competition among frequency coordinators, rather than giving a
    single coordinator exclusivity, as MariTEL proposes.[^200]
    Commenters also complain that MariTEL, unlike the Part 90 frequency
    coordinators, would not be representative of the user
    community,[^201] and some commenters question MariTEL's
    qualifications to serve as AIS frequency coordinator.[^202] In
    response, MariTEL says that those commenters who contend that
    MariTEL would not be acting like other frequency coordinators
    previously recognized by the Commission focus too narrowly on the
    traditional role of frequency coordination.[^203] In addition, other
    commenters support MariTEL's proposal to serve as AIS frequency
    coordinator, stating that MariTEL is uniquely qualified to serve in
    that role and that implementing the proposal will facilitate
    adoption of AIS by non-mandatory vessels and expand the utility of
    AIS to all maritime stakeholders.[^204]

53. We agree with the commenters who contend that frequency
    coordination, in the traditional sense, is not required for AIS. If
    Channels 87B and 88B are designated for AIS, as is a premise of the
    *MariTEL Frequency Coordinator Proposal*, there is no need for a
    frequency coordinator to undertake an analysis of predicted
    interference in order to select a "best" frequency for the proposed
    operation. However, we do not believe that should be the end of the
    discussion. If the *MariTEL Frequency Coordinator Proposal* would
    provide a significant benefit to AIS users that would outweigh any
    detrimental effects, it would deserve further consideration.
    However, we are not convinced, on balance, that the benefits to be
    derived from adopting the *MariTEL Frequency Coordinator Proposal*
    outweigh the potential negative consequences for AIS deployment
    stemming from MariTEL's proposed fees. The benefits are not clearly
    described,[^205] and appear to be geared toward MariTEL's particular
    interests as a VPC licensee. MariTEL says in its reply comments to
    the *Coordinator Proposal PN* that AIS frequency coordination is
    indeed needed, for two reasons; first, it is needed to ensure that
    use of Channels 87B and 88B for AIS does not negatively affect
    MariTEL's use of not only those channels but also adjacent channels,
    and second, it is necessary for shared use of the channels by the
    Federal Government and by MariTEL and other non-Federal Government
    users.[^206] After review of the record on this issue, we
    tentatively conclude that private sector frequency coordination is
    not essential for the effective operation of AIS in the United
    States, and that the benefits to be derived from adoption of the
    *MariTEL Frequency Coordinator Proposal* are at best slight and in
    any event clearly outweighed by the attendant costs.

54. Many commenters view MariTEL's proposed frequency coordination fees
    as an unnecessary and unreasonable "toll booth" or "tax" that would
    be imposed on AIS users for the sole or primary purpose of enabling
    MariTEL to recoup its investment in VPC spectrum and
    facilities.[^207] Commenters state that the proposed initial fees
    are unreasonably high.[^208] MariTEL says that it agrees that its
    fees should be determined ultimately by "market pressures,"[^209]
    and that it is not wedded to its initially proposed charges and is
    willing to provide a justification to the Commission for any charges
    it intends to impose.[^210] Nonetheless, we share the concerns of
    commenters over the fees MariTEL seeks to impose. We are puzzled as
    to how MariTEL expects the discipline of the marketplace to
    constrain its pricing policy if it is allowed to have a monopoly
    over AIS frequency coordination services, as it proposes.[^211] In
    addition, we do not believe the possibility of Commission oversight
    of MariTEL's pricing provides a satisfactory solution to these
    concerns. Such oversight would be administratively burdensome,[^212]
    there would not be a clear benchmark for assessing the
    reasonableness of MariTEL's proposed rates, and it remains that
    MariTEL proposes to impose fees that would not only recover its
    costs in providing frequency coordination services, but that would
    include a significant profit component as well.[^213]

55. We tentatively agree with the many commenters who contend that
    MariTEL's proposed fees would create an unwarranted disincentive for
    voluntary carriage of AIS equipment.[^214] The effectiveness of AIS
    as a tool in service of maritime safety and homeland security is
    directly proportional to the percentage of vessels that operate with
    AIS. Creating a disincentive for voluntary AIS carriage should be
    considered only if there are equally weighty reasons in favor of it.
    Here, as we have discussed, we see no countervailing public interest
    benefit in MariTEL's proposal to act as AIS frequency coordinator
    that could justify a measure that would discourage fitting vessels
    with AIS equipment. In addition, we agree that the proposed fees
    would unfairly burden the owners and operators of vessels subject to
    mandatory AIS carriage requirements, who must already shoulder the
    costs of purchasing and installing AIS equipment to fulfill the
    requirement.[^215] Having been required to bear this expense in
    order to comply with a Federal agency's requirement, these vessel
    owners and operators should not be forced by another Federal agency
    to pay additional up-front and recurring fees to a private sector
    entity unless there are compelling reasons to do so. We tentatively
    conclude that there are no such compelling reasons.[^216] We
    accordingly propose not to adopt the *MariTEL Frequency Coordinator
    Proposal*.[^217]

### Sharing Proposal

56. We also decline to propose adoption of the *MariTEL Sharing
    Proposal* because, like the *MariTEL Frequency Coordinator
    Proposal*, its public interest benefits are unclear, and do not
    outweigh the clear disadvantages of the proposal.[^218] Although,
    for reasons discussed above, we have tentatively determined to
    reject MariTEL's assertion that it may not be deprived of the use of
    Channels 87B and 88B without compensation, we would nonetheless
    welcome a resolution of this matter that would be acceptable to
    MariTEL as well as the Federal Government, if for no other reason
    than it would remove a possible source of litigation over these
    issues, and thus provide even greater certainty for the maritime
    community in going forward with deployment of AIS on Channels 87B
    and 88B. However, we conclude that there are several serious
    problems with the *MariTEL Sharing Proposal.*

57. To begin with, the *MariTEL Sharing Proposal* would permit MariTEL
    to use on a shared basis not only Channel 87B but also the Federal
    Government channel 88B.[^219] The Commission is not empowered to
    give MariTEL any rights to use a Federal Government channel, and
    NTIA has not indicated any readiness to do so.[^220] For this reason
    alone, we are unable to propose adoption of the *MariTEL Sharing
    Proposal.*

58. In addition, we note that a number of commenters question MariTEL's
    assurance that its proposed sharing mechanism based on channel
    loading and slot sharing will be adequate to protect AIS operations
    from interference.[^221] Lockheed Martin claims that MariTEL's
    suggested technology -- FATDMA (Fixed Access Time Division Multiple
    Access) -- is unproven, and that "\[s\]pectrum dedicated to critical
    safety and security purposes should not be the proving ground for
    new sharing techniques."[^222] In response, MariTEL reiterates that
    implementation of the *MariTEL Sharing Proposal* will not compromise
    the availability of AIS channels for legitimate Coast Guard
    operations, and says it will guarantee that Coast Guard operations
    and homeland security applications are not impaired.[^223] MariTEL
    also pledges that it will demonstrate the viability of the proposed
    time slot/channel loading technology prior to implementation.[^224]
    Finally, MariTEL states that, contrary to Lockheed Martin's
    assertion, implementation of its proposal is not dependent on use of
    FATDMA messaging.[^225] Because we believe that other aspects of the
    *MariTEL Sharing Proposal* warrant its rejection, we do not attempt
    here to resolve definitively the question of whether the *MariTEL
    Sharing Proposal* is technically feasible or technically appropriate
    given the maritime safety and homeland security purposes to which
    these channels are to be dedicated. We note, however, that we would
    be reluctant to accept it as sufficiently protective of AIS
    operations on the basis of the existing record. Were our other
    objections to the *MariTEL Sharing Proposal* completely resolved in
    the proposal's favor, we would still require the submission of more
    detailed technical information on how it would work. Accordingly, we
    invite commenters to consider the technical merits of MariTEL's
    proposal for shared use of the channels, without regard to the other
    facets of the *MariTEL Sharing Proposal*. Putting aside the
    particulars of the *MariTEL Sharing Proposal*, we seek comment on
    whether sharing of the channels by AIS and VPC stations is
    technically feasible through either MariTEL's channel loading/slot
    sharing proposal or some alternative technical solution.[^226]

59. The aspect of the *MariTEL Sharing Proposal* that most concerned the
    commenters is that it would place restrictions on access to AIS
    data. As noted, the *MariTEL Sharing Proposal* is premised in part
    on the Commission adopting regulations precluding the reception and
    use of AIS transmissions except by MariTEL, the Coast Guard and ship
    stations.[^227] Commenters assert that if the full benefits of AIS
    are to be realized, AIS data must be widely available to a host of
    other federal and non-federal entities, such as pilot
    associations.[^228] Commenters point out that AIS is viewed as a
    critical component of future safety and security systems not only in
    VTS areas but also in other areas, and operated not only by the
    Coast Guard but also by, for example, the United States Navy, state
    and local port authorities, and maritime first responders.[^229]
    Precluding other entities from acquiring and using AIS information,
    or allowing such access and use only upon payment to MariTEL, could
    inhibit domestic implementation of AIS and could preclude beneficial
    public/private cooperative arrangements[^230] between the Coast
    Guard and private maritime associations.[^231]

60. Several commenters explain how adoption of MariTEL's proposed
    restrictions on AIS information will impact specific ongoing efforts
    to deploy AIS.[^232] More generally, USGSC points out that the
    *MariTEL Sharing Proposal* could impair the ability of federal
    agencies, such as NOAA, or other entities, such as marine exchange
    or port authorities, to provide important information about oceanic
    conditions or for ships at sea to receive such information.[^233] In
    addition, commenters point out that the proposed restrictions on use
    of AIS information could have other negative consequences. For
    example, allowing free access to AIS information in VTS areas while
    charging users for such access in non-VTS areas, as MariTEL
    apparently proposes, could give the former an unfair commercial
    advantage over the latter.[^234] If shippers favor VTS ports because
    of this cost advantage, moreover, it could create additional traffic
    congestion at VTS ports, increasing the risk of collision.[^235] In
    sum, the consensus of the commenters is, as stated by LCA, that
    "\[a\]ccess to the AIS frequencies should be readily available and
    free of charge."[^236] We agree.[^237]

61. Finally, with respect to the portion of the *MariTEL Sharing
    Proposal* that calls for the Commission to modify the technical
    requirements for AIS devices in order to prevent interference from
    AIS operations on Channels 87B and 88B to adjacent channel VPC
    channels, we are not persuaded that the Commission needs to revisit
    the AIS equipment requirements it so recently adopted.[^238] Our
    technical requirements are based on the international standards, and
    we are unwilling to unilaterally revise those requirements, and
    effectively abandon the standards-setting efforts to date, solely at
    the behest of and for the benefit of a single company.[^239] This is
    especially so because some of the mandatory AIS carriage deadlines
    have come into effect, and it is at best uncertain that we could
    develop new technical requirements soon enough to give vessel
    operators a reasonable opportunity to come into compliance. PVA
    states in this regard that AIS carriage requirements already
    represent a substantial economic burden for many passenger vessel
    operators, many of which are small businesses or governmental
    entities, and that this burden should not be increased simply for
    the benefit of MariTEL.[^240] In sum, a new rulemaking proceeding to
    revise the AIS technical requirements could slow AIS deployment,
    potentially engender uncertainty in the manufacturing and maritime
    communities, possibly result in the premature obsolescence of AIS
    equipment already installed, leave AIS equipment manufacturers who
    reasonably relied on the existing standards with significant
    stranded inventory, and potentially hinder AIS
    interoperability.[^241]

## Other Matters

62. Notwithstanding our determination not to propose to adopt either the
    *MariTEL Frequency Coordinator Proposal* or the *MariTEL Sharing
    Proposal*, we seek comment on whether MariTEL or other private
    sector entities can use maritime VPC spectrum to provide services
    that can add value to AIS or that will otherwise be of utility to
    the maritime industry, consistent with the deployment and use of AIS
    on Channels 87B and 88B. On February 12, 2004, MariTEL submitted an
    *ex parte* presentation in the form of a letter with the subject
    line "Evolution of Marine VHF Data Services Requires FCC
    Action."[^242] The *Feb. 12 Letter* provides "additional information
    regarding the evolution of marine VHF data services for the
    Commission's consideration in the various proceedings concerning the
    introduction of digital and data services using VPC spectrum."[^243]
    An exhibit to the *Feb. 12 Letter* gives an overview of a VHF data
    network service in Norway that demonstrates how VHF public
    correspondence channels may be used for data communications to and
    from vessels that enable a variety of applications potentially
    useful to the maritime community, such as e-mail, web browsing,
    payment transactions, group calls, and alarms for fleet
    management.[^244] We request comment on whether such services would
    be of utility for the domestic maritime community, and, if so, what
    actions, if any, the Commission should take to facilitate the
    provision of such services, consistent with protecting the integrity
    of AIS.[^245]

63. MariTEL asks whether it can continue to employ Channels 87B and
    88B[^246] in any fashion in any of its licensed service areas if the
    channels are designated for AIS exclusively.[^247] We note that the
    *NTIA Petition* requested that Channels 87B and 88B be allocated for
    AIS on an exclusive and nationwide basis, but that we are here
    proposing to limit the geographic scope of the allocation to the
    nine maritime VPCSAs, as the Commission did in 1998.[^248] The
    current record does not reflect a need for AIS spectrum in the
    inland VPCSAs, which do not contain or approach any major waterways.
    Moreover, limiting the AIS set-aside to the maritime VPCSAs would
    preserve the ability of inland VPCSA licensees to provide service,
    especially given that two duplex channels in each inland VPCSA are
    set aside for public safety use.[^249] We request comment on our
    tentative conclusion that inland VPCSA licensees should be permitted
    to operate on Channel 87B.[^250] We also seek comment on whether
    Channels 87B and 88B must be set aside throughout all of each
    maritime VPCSA, or whether there are areas[^251] where VPC
    operations would not pose an interference threat. MariTEL also
    questions whether, if Channels 87B and 88B are designated for AIS,
    the channels could be used for shore station operations by
    commercial entities other than MariTEL.[^252] We ask interested
    parties to address this question as well.[^253]

64. The Commission's Universal Licensing System (ULS) database indicates
    that there are currently seven site-based incumbent VPC licensees
    authorized to operate on Channels 87B or 88B: Murray Cohen (KMC972,
    Farmingville, New York); Pacific Bell (KMH828, Oakland, California);
    Pat Gardenhire (KUF681, Boyce, Texas); Nextel of California, Inc.
    (KUF847, San Pedro, California); Avalon Communications Corp. (WAH,
    St. Thomas, Virgin Islands); Whidbey Telephone Company (WHU300,
    Freeland, Washington); and Shipcom, LLC (WRD704, Mobile,
    Alabama).[^254] Two commenters have argued that the *NTIA Petition*
    should be denied or conditioned because of the potential
    interference impact on their operations.[^255] ShipCom states that
    the interests of incumbent site-based VPC licensees could be
    compromised if Channels 87B and 88B are used for AIS on a wideband
    simplex basis.[^256] ShipCom argues that if the Coast Guard intends
    to use the incumbents' spectrum, the Coast Guard should either
    negotiate for such use with the incumbents or perform frequency
    management as contemplated under the Coast Guard's final AIS
    rules.[^257] In a similar vein, Tittle contends that NTIA's proposed
    AIS operations may result in destructive interference to co-channel
    and adjacent channel public correspondence communications carried by
    site-based incumbent VPC licensees.[^258]

65. We now ask for comment regarding the effect on these site-based
    incumbent VPC licensees of adopting our proposal to designate
    Channels 87B and 88B for AIS. Can these existing VPC operations
    co-exist on a non-interference basis with AIS? If not, how should
    the interference problem be addressed? We note that incumbent
    site-based licensees are accorded interference protection from
    geographic area VPC operations under current rules.[^259] If we
    require that these existing operations continue to be protected from
    interference even after Channel 87B is designated for AIS, how will
    that affect AIS implementation in the United States? Commenters who
    believe it is necessary to migrate these operations to other
    spectrum or to compensate these licensees in some way should
    indicate how and under what authority such migration could occur or
    such compensation could be provided. In addition, we invite comment
    as to whether we should consider initiating a proceeding to modify
    any of the outstanding VPC licenses pursuant to Section 316 of the
    Act.[^260] In this regard, we seek comment as to whether these
    stations are in active operation, and, if not, whether these
    licenses should be cancelled or otherwise modified to delete the
    frequencies associated with Channels 87B and 88B.[^261] We also note
    that most of these stations are authorized on other VPC channels in
    addition to Channels 87 or 88 or channels adjacent thereto, and we
    seek comment on the extent to which these other channels would
    provide sufficient capacity for the stations' current and future
    needs. In addition, we seek information about current traffic on the
    channels assigned to incumbent VPC licensees.

66. If we adopt our proposal to designate Channels 87B and 88B for AIS
    exclusively, we propose to also modify the table in Section
    80.371(c) of the Commission's Rules[^262] to reflect that Channels
    87 and 88 may be used for radiotelephony in the single channel
    (simplex) mode only. Currently, VHF radiotelephones manufactured and
    sold in the United States, when set to the U.S. channel mode,
    operate on a two frequency (duplex) mode when Channel 87 is
    selected, and on a single frequency (simplex) mode when Channel 88
    is selected. Radiotelephones set to the international channel mode
    would follow the ITU *Radio Regulations*, Appendix 18, "Table of
    transmitting frequencies in the maritime mobile band," and,
    therefore, radiotelephones built or designed after these ITU changes
    came into effect would operate on a single (simplex) frequency on
    both channels. We seek comment on this proposal. We also seek
    comment on whether we should simply delete Channels 87 and 88 from
    the Section 80.371(c) table instead of modifying the table as
    proposed.

# CONCLUSION

67. The development and deployment of AIS promises to significantly
    enhance the nation's maritime safety and homeland security by
    providing an effective tool to prevent vessel collisions and for
    vessel tracking in furtherance of Marine Domain Awareness. There are
    clear and important benefits to implementing AIS domestically on VHF
    maritime Channels 87B and 88B, consistent with the international
    allocation of those channels for AIS, rather than on any other
    maritime channels. Accordingly, we tentatively determine to work
    with NTIA to allocate both channels for exclusive AIS use in the
    nine maritime VPCSAs. As a consequence of MariTEL's termination of
    the MOA with the Coast Guard, we believe we must take this action
    now to provide certainty to the domestic maritime community with
    respect to AIS deployment. After fully reviewing the regulatory
    history, the comments submitted in response to the Bureau's public
    notices, and the interference analyses submitted by MariTEL and
    NTIA, we tentatively conclude that designating Channel 87B for AIS
    use domestically will not have a significantly greater preclusive
    effect, if any, on MariTEL's ability to use its licensed VPC
    spectrum compared to the designation for that purpose of two
    narrowband channel pairs, as contemplated in Section 80.371(c)(3)
    prior to MariTEL's participation in the VPC auction. We also
    tentatively conclude, therefore, that our action herein is both
    equitable and fully consistent with the Commission's competitive
    bidding policies and rules. We invite comment on all of our
    tentative conclusions and on all aspects of our proposal.

# REGULATORY MATTERS

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

68. This is a permit-but-disclose notice and comment rulemaking
    proceeding. *Ex parte* presentations are permitted, except during
    the Sunshine Agenda period, provided they are disclosed as provided
    in the Commission's rules.[^263]

## Regulatory Flexibility Act 

69. As required by the Regulatory Flexibility Act (RFA),[^264] the
    Commission has prepared an Initial Regulatory Flexibility Analysis
    (IRFA) of the rules proposed or discussed in the *Notice of Proposed
    Rule Making* in WT Docket No. 04-xx. The IRFA for the *Notice of
    Proposed Rule Making* in WT Docket No. 04-xx is contained in
    Appendix C. Written public comments are requested on the IRFA. These
    comments must be filed in accordance with the same filing deadlines
    for comments on the *Notice of Proposed Rule Making* in WT Docket
    No. 04-xx, and they should have a separate and distinct heading
    designating them as responses to the IRFA. The Commission's Consumer
    and Governmental Affairs Bureau, Reference Information Center, will
    send a copy of the *Notice of Proposed Rule Making* in WT Docket No.
    04-xx, including the IRFA, to the Chief Counsel for Advocacy of the
    Small Business Administration, in accordance with the Regulatory
    Flexibility Act.[^265]

## Comment Dates 

70. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
    C.F.R. §§ 1.415, 1.419, interested parties may file comments on or
    before \[45 days after Federal Register publication\] and reply
    comments on or before \[75 days after Federal Register
    publication\]. Comments may be filed using the Commission's
    Electronic Comment Filing System (ECFS) or by filing paper
    copies.[^266]

71. Comments filed through the ECFS can be sent as an electronic file
    via the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>.
    Generally, only one copy of an electronic submission must be filed.
    If multiple docket or rulemaking numbers appear in the caption of
    this proceeding, however, commenters must transmit one electronic
    copy of the comments to each docket or rulemaking number referenced
    in the caption. In completing the transmittal screen, commenters
    should include their full name, 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. If more
    than one docket or rulemaking number appears in the caption of this
    proceeding, commenters must submit two additional copies for each
    additional docket or rulemaking number. All filings must be
    addressed to the Commission's Secretary, Marlene H. Dortch, Office
    of the Secretary, Federal Communications Commission, 445 12th St.,
    S.W., Washington, D.C. 20554. Filings can be sent first class by the
    U.S. Postal Service, by an overnight courier or hand and
    message-delivered. Hand and message-delivered paper filings must be
    delivered to 236 Massachusetts Avenue, N.E., Suite 110, Washington,
    D.C. 20002. Overnight courier (other than U.S. Postal Service
    Express Mail and Priority Mail) must be sent to 9300 East Hampton
    Drive, Capitol Heights, MD 20743.

72. Parties who choose to file by paper should also submit their
    comments on diskette. These diskettes should be submitted to:
    Jeffrey Tobias, Wireless Telecommunications Bureau, 445 12th St.,
    S.W., Room 3-A432, Washington, D.C. 20554. 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 in this case, WT
    Docket No. 04-344), 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 one
    party's pleadings, preferably in a single electronic file. In
    addition, commenters should send diskette copies to the Commission's
    copy contractor, Best Copy and Printing, Inc., 445 12th St., S.W.,
    Room CY-B402, Washington, D.C. 20054.

## Paperwork Reduction Act

73. This document does not contain proposed information collection(s)
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13. In addition, therefore, it does not contain any new or
    modified "information collection burden for small business concerns
    with fewer than 25 employees," pursuant to the Small Business
    Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C.
    3506(c)(4).

## Further Information

74. For further information, contact Jeffrey Tobias,
    jeff.tobias@fcc.gov, or Tim Maguire, tim.maguire@fcc.gov, Wireless
    Telecommunications Bureau, (202) 418-0680, or TTY (202) 418-7233.

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

## Ordering Clauses

76. Accordingly, IT IS ORDERED that, pursuant to the authority of
    Sections 4(i), 303(r), and 332(a)(2) of the Communications Act of
    1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 332(a)(2), and
    Section 1.2 of the Commission's Rules, 47 C.F.R. § 1.2, the Petition
    for Declaratory Ruling filed by MariTEL, Inc. on April 4, 2003, IS
    DENIED.

77. IT IS FURTHER ORDERED that, pursuant to the authority of Sections
    4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 154(i), 303(r), 332(a)(2), the request by
    MariTEL, Inc. that we withdraw authorization of shipborne AIS
    equipment, as set forth in the Letter dated July 30, 2003 from
    Russell H. Fox, counsel for MariTEL, Inc. to D'wana R. Terry, Chief,
    Public Safety and Private Wireless Division, IS DENIED.

78. IT IS FURTHER ORDERED that, pursuant to the authority of Sections
    4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 154(i), 303(r), 332(a)(2), the Emergency
    Petition for Declaratory Ruling filed by MariTEL, Inc. on October
    15, 2003, and supplemented by MariTEL, Inc. October 27, 2003, IS
    DENIED.

79. IT IS FURTHER ORDERED that, pursuant to the authority of Sections
    4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 154(i), 303(r), 332(a)(2), the Petition for
    Rule Making filed by the National Telecommunications and Information
    Administration on October 24, 2003 IS GRANTED to the extent set
    forth herein.

80. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 303(r), and
    403 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r) and 403, this *Memorandum Opinion and Order and
    Notice of Proposed Rule Making* IS HEREBY ADOPTED, and NOTICE IS
    HEREBY GIVEN of the proposed regulatory changes described in the
    *Notice of Proposed of Rule Making* and contained in Appendix B.

81. IT IS FURTHER ORDERED that the Commission's Consumer Information
    Bureau, Reference Information Center, SHALL SEND a copy of this
    *Memorandum Opinion and Order and Notice of Proposed Rule Making*,
    including the Initial Regulatory Flexibility Analysis for the
    *Notice of Proposed Rule Making*, to the Chief Counsel for Advocacy
    of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

APPENDIX A[^267]

**Parties Submitting Comments and Reply Comments in Response to Public
Notice DA 03-3585**

The following list contains the names of parties filing comments and
reply comments in response to the Bureau public notice seeking comment
on the *MariTEL Emergency Petition* and the *NTIA Petition*.

**Comments**

Boat Owners Association of The United States (BoatUS)[^268]

Canadian Embassy

Ingram Barge Company (Ingram Barge)

Lockheed Martin Corporation (Lockheed Martin)

Marine Management Consulting (MMC)

MariTel, Inc. (MariTEL)

National Marine Electronics Association (NMEA)

Nauticast Schiffsnavigationssysteme AG (Nauticast)

Radio Technical Commission for Maritime Services (RTCM)

The Saint Lawrence Seaway Management Corporation (SLSMC)

ShipCom, LLC (ShipCom)

**Reply Comments**

American Mobile Telecommunications Association (AMTA)

MariTEL

National Telecommunications and Information Administration (NTIA)

Thomas W. Tittle d/b/a Burns Harbor Radio (Tittle)

United States Coast Guard (USCG)

Warren C. Havens and Telesaurus Holdings GB LLC (Havens)

**Parties Submitting Comments and Reply Comments in Response to Public
Notice DA 03-3669**

The following list contains the names of parties filing comments and
reply comments in response to the Bureau public notice seeking comment
on the *MariTEL Frequency Coordinator Proposal*:

**Comments**

MariTEL

Mississippi Department of Public Safety (Mississippi DPS)

RTCM

BoatUS

Furuno U.S.A., Inc. (Furuno USA)

Harris Corporation (Harris Corp.)

Ingram Barge

MMC

National GMDSS Task Force (Task Force)

NTIA

Nauticast

SLSMC

Sea Tow Services International (Sea Tow)

Shine Micro, Inc. (Shine Micro)

Tidewater Marine

Tittle

USCG

U.S. Department of Transportation, on behalf of the Saint Lawrence
Seaway Development Corporation\
(DOT/SLSDC)

**Reply Comments**

MariTEL

Ingram Barge

**Parties Submitting Comments and Reply Comments in Response to Public
Notice DA 04-378**

The following list contains the names of parties filing comments and
reply comments in response to the Bureau public notice seeking comment
on the *MariTEL Sharing Proposal*:

**Comments**

American Pilots Association, Inc. (APA)

The American Waterways Operators (AWO)

Associated Branch Pilots of the Port of New Orleans (Bar Pilots)

Columbia River Pilots (COLRIP)

DOT/SLSDC

The Harbor Safety, Operations and Navigation Committee of the Port of
New York and New Jersey\
(Port of New York/New Jersey)

International Organization of Masters Mates & Pilots (MM&P)

Lake Carriers' Association (LCA)

Lockheed Martin

The Lower Mississippi River Waterway Safety Advisory Committee (LMRWSAC)

NTIA

Nauticast

North Pacific Marine Radio Council (NPMRC)

Passenger Vessel Association (PVA)

Tampa Bay Harbor Safety Committee (TBHSC)

Tampa Port Authority (Tampa)

United New York Sandy Hook Pilots' Benevolent Ass'n/ United New Jersey
Sandy Hook Pilots'\
Benevolent Ass'n (United Sandy Hook Pilots)

U.S. Army Corps of Engineers, Detroit District (Corps of Engineers --
Detroit)

USCG

U.S. Global Ocean Observing System Steering Committee (USGSC)

**Reply Comments**

MM&P

MariTEL

**APPENDIX B**

**PROPOSED RULES**

For the reasons discussed in the preamble, the Federal Communications
Commission proposes to amend 47 C.F.R. parts 2 and 80 as follows:

**PART 2 \-- FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS;\
GENERAL RULES AND REGULATIONS**

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

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

2\. Section 2.106, the Table of Frequency Allocations, is amended as
follows:

a\. Revise pages 30 and 31.

b\. In the list of United States (US) Notes, add note USxxx and remove
note US223.

**[§ 2.106 Table of Frequency Allocations.]{.underline}**

The revisions and additions read as follows:

**\* \* \* \* \***

+-----------+-----------------------+-----------+-----------+---------+
| 156.7625  |                       | 5.226     | 5.226     |         |
| -156.8375 |                       | 5.227     | 5.227     |         |
|           |                       | US77      | US77      |         |
| MARITIME  |                       | US106     | US106     |         |
| MOBILE    |                       | US107     | US107     |         |
| (distress |                       | US266     | US266     |         |
| and       |                       |           | NG117     |         |
| calling)  |                       |           |           |         |
|           |                       |           |           |         |
| 5.111     |                       |           |           |         |
| 5.226     |                       |           |           |         |
+-----------+-----------------------+-----------+-----------+---------+
| 156       | 156.8375-174          |           |           |         |
| .8375-174 |                       |           |           |         |
|           | FIXED                 |           |           |         |
| FIXED     |                       |           |           |         |
|           | MOBILE                |           |           |         |
| MOBILE    |                       |           |           |         |
| except    |                       |           |           |         |
| aer       |                       |           |           |         |
| onautical |                       |           |           |         |
|           |                       |           |           |         |
| mobile    |                       |           |           |         |
+-----------+-----------------------+-----------+-----------+---------+
|           |                       | 157.0375  | 157.0375  | Private |
|           |                       | -157.1875 | -157.1875 | Land    |
|           |                       |           |           | Mobile  |
|           |                       | MARITIME  | 5.226     | (90)    |
|           |                       | MOBILE    | US214     |         |
|           |                       |           | US266     |         |
|           |                       | 5.226     |           |         |
|           |                       | US214     |           |         |
|           |                       | US266     |           |         |
|           |                       | G109      |           |         |
+-----------+-----------------------+-----------+-----------+---------+
|           |                       | 157.18    | 157.18    | M       |
|           |                       | 75-157.45 | 75-157.45 | aritime |
|           |                       |           |           | (80)    |
|           |                       | 5.226     | LAND      |         |
|           |                       | US266     | MOBILE    | Private |
|           |                       |           |           | Land    |
|           |                       |           | MARITIME  | Mobile  |
|           |                       |           | MOBILE    | (90)    |
|           |                       |           |           |         |
|           |                       |           | 5.226     |         |
|           |                       |           | US266     |         |
|           |                       |           | NG111     |         |
+-----------+-----------------------+-----------+-----------+---------+
|           |                       | 157.4     | 157.4     | Public  |
|           |                       | 5-161.575 | 5-161.575 | Mobile  |
|           |                       |           |           | (22)    |
|           |                       | 5.226     | FIXED     |         |
|           |                       | US266     |           | M       |
|           |                       |           | LAND      | aritime |
|           |                       |           | MOBILE    | (80)    |
|           |                       |           |           |         |
|           |                       |           | 5.226     | Private |
|           |                       |           | US266 NG6 | Land    |
|           |                       |           | NG28 NG70 | Mobile  |
|           |                       |           | NG111     | (90)    |
|           |                       |           | NG112     |         |
|           |                       |           | NG124     |         |
|           |                       |           | NG148     |         |
|           |                       |           | NG155     |         |
+-----------+-----------------------+-----------+-----------+---------+
|           |                       | 161.57    | 161.57    | Public  |
|           |                       | 5-161.625 | 5-161.625 | Mobile  |
|           |                       |           |           | (22)    |
|           |                       | 5.226     | MARITIME  |         |
|           |                       | US77      | MOBILE    | M       |
|           |                       |           |           | aritime |
|           |                       |           | 5.226     | (80)    |
|           |                       |           | US77 NG6  |         |
|           |                       |           | NG17      |         |
+-----------+-----------------------+-----------+-----------+---------+
|           |                       | 161.62    | 161.62    | Public  |
|           |                       | 5-161.775 | 5-161.775 | Mobile  |
|           |                       |           |           | (22)    |
|           |                       | 5.226     | LAND      |         |
|           |                       |           | MOBILE    | Au      |
|           |                       |           |           | xiliary |
|           |                       |           | 5.226 NG6 | Broad   |
|           |                       |           |           | casting |
|           |                       |           |           |         |
|           |                       |           |           | \(74\)  |
+-----------+-----------------------+-----------+-----------+---------+
|           |                       | 161.775   | 161.775   | Public  |
|           |                       | -162.0125 | -162.0125 | Mobile  |
|           |                       |           |           | (22)    |
|           |                       | 5.226     | LAND      |         |
|           |                       | US266     | MOBILE    | M       |
|           |                       | **USxxx** |           | aritime |
|           |                       |           | MARITIME  | (80)    |
|           |                       |           | MOBILE    |         |
|           |                       |           |           | Private |
|           |                       |           | 5.226     | Land    |
|           |                       |           | US266     | Mobile  |
|           |                       |           | **USxxx** | (90)    |
|           |                       |           | NG6       |         |
+-----------+-----------------------+-----------+-----------+---------+
| 5.226     | 5.226 5.230 5.231     | See next  |           | See     |
| 5.229     | 5.232                 | page for  |           | next    |
|           |                       | 162       |           | page    |
|           |                       | .0125-174 |           | for     |
|           |                       | MHz       |           | 162.0   |
|           |                       |           |           | 125-174 |
|           |                       |           |           | MHz     |
+-----------+-----------------------+-----------+-----------+---------+

Page 30

+-----------+-----------+-----------+-----------+-----------+---------+
| 162       |           |           |           |           | Page 31 |
| .0125-322 |           |           |           |           |         |
| MHz       |           |           |           |           |         |
| (VHF/UHF) |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| Inte      |           |           | United    |           | FCC     |
| rnational |           |           | States    |           | Rule    |
| Table     |           |           | Table     |           | Part(s) |
+-----------+-----------+-----------+-----------+-----------+---------+
| Region 1  | Region 2  | Region 3  | Federal   | No        |         |
|           |           |           | G         | n-Federal |         |
|           |           |           | overnment | G         |         |
|           |           |           |           | overnment |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| See       |           |           | 162.0     | 162.0     | Au      |
| previous  |           |           | 125-173.2 | 125-173.2 | xiliary |
| page for  |           |           |           |           | Broad   |
| 156       |           |           | FIXED     | 5.226 US8 | casting |
| .8375-174 |           |           |           | US11 US13 |         |
| MHz       |           |           | MOBILE    | US216     | \(74\)  |
|           |           |           |           | US300     |         |
|           |           |           | 5.226 US8 | US312     | M       |
|           |           |           | US11 US13 | **USxxx** | aritime |
|           |           |           | US216     |           | (80)    |
|           |           |           | US300     |           |         |
|           |           |           | US312     |           | Private |
|           |           |           | **USxxx** |           | Land    |
|           |           |           | G5        |           | Mobile  |
|           |           |           |           |           |         |
|           |           |           |           |           | \(90\)  |
+-----------+-----------+-----------+-----------+-----------+---------+
|           |           |           | 17        | 17        | Private |
|           |           |           | 3.2-173.4 | 3.2-173.4 | Land    |
|           |           |           |           |           | Mobile  |
|           |           |           |           | FIXED     |         |
|           |           |           |           |           | \(90\)  |
|           |           |           |           | Land      |         |
|           |           |           |           | mobile    |         |
+-----------+-----------+-----------+-----------+-----------+---------+
|           |           |           | 173.4-174 | 173.4-174 |         |
|           |           |           |           |           |         |
|           |           |           | FIXED     |           |         |
|           |           |           |           |           |         |
|           |           |           | MOBILE    |           |         |
|           |           |           |           |           |         |
|           |           |           | G5        |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 174-223   | 174-216   | 174-223   | 174-216   | 174-216   | Br      |
|           |           |           |           |           | oadcast |
| BRO       | BRO       | FIXED     |           | BRO       | Radio   |
| ADCASTING | ADCASTING |           |           | ADCASTING | (TV)    |
|           |           | MOBILE    |           |           |         |
|           | Fixed     |           |           | NG115     | \(73\)  |
|           |           | BRO       |           | NG128     |         |
|           | Mobile    | ADCASTING |           | NG149     | Au      |
|           |           |           |           |           | xiliary |
|           | 5.234     |           |           |           | Broad   |
|           |           |           |           |           | casting |
|           |           |           |           |           |         |
|           |           |           |           |           | \(74\)  |
+-----------+-----------+-----------+-----------+-----------+---------+
|           | 216-220   |           | 216-220   | 216-220   | M       |
|           |           |           |           |           | aritime |
|           | FIXED     |           | Fixed     | FIXED     | (80)    |
|           |           |           |           |           |         |
|           | MARITIME  |           | Mobile    | MOBILE    | Private |
|           | MOBILE    |           |           | except    | Land    |
|           |           |           | Radi      | aer       | Mobile  |
|           | Radi      |           | olocation | onautical |         |
|           | olocation |           | 5.241 G2  |           | \(90\)  |
|           | 5.241     |           |           | mobile    |         |
|           |           |           | US210     |           | P       |
|           | 5.242     |           | US229     | US210     | ersonal |
|           |           |           |           | US229     | Radio   |
|           |           |           |           | NG152     | (95)    |
|           |           |           |           | NG173     |         |
|           |           |           |           |           | Amateur |
|           |           |           |           |           | (97)    |
+-----------+-----------+-----------+-----------+-----------+---------+
|           | 220-225   |           | 220-222   | 220-222   | Private |
|           |           |           |           |           | Land    |
|           | AMATEUR   |           | FIXED     | FIXED     | Mobile  |
|           |           |           |           |           |         |
|           | FIXED     |           | LAND      | LAND      | \(90\)  |
|           |           |           | MOBILE    | MOBILE    |         |
|           | MOBILE    |           |           |           |         |
|           |           |           | Radi      | US335     |         |
|           | Radi      |           | olocation |           |         |
|           | olocation |           | 5.241 G2  |           |         |
|           | 5.241     |           |           |           |         |
|           |           |           | US335     |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 5.235     |           | 5.233     | 222-225   | 222-225   | Amateur |
| 5.237     |           | 5.238     |           |           | (97)    |
| 5.243     |           | 5.240     | Radi      | AMATEUR   |         |
|           |           | 5.245     | olocation |           |         |
|           |           |           | 5.241 G2  |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+

UNITED STATES (US) NOTES

\* \* \* \* \*

USxxx The bands 161.9625-161.9875 MHz (AIS 1 with its center frequency
at 161.975 MHz) and 162.0125-162.0375 MHz (AIS 2 with its center
frequency at 162.025 MHz) are allocated to the maritime mobile service
on a primary basis for Federal and non-Federal Government use in VHF
Public Coast Station Areas (VPCSAs) 1-9. In these areas, the maritime
mobile service shall be used exclusively for Automatic Identification
Systems (AIS). In VPCSAs 10-42, the band 161.9625-161.9875 MHz is
allocated to the maritime mobile service on a primary basis for
exclusive non-Federal Government use and the 162.0125-162.0375 MHz is
allocated to the fixed and mobile services on a primary basis for
exclusive Federal Government use. See 47 CFR § 80.371(c)(1)(ii) for the
definitions of VPCSAs.

\* \* \* \* \*

**II. PART 80 \-- STATIONS IN THE MARITIME SERVICES**

3\. The authority citation for Part 80 continues to read as follows:

AUTHORITY: Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066, 1082, as
amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless otherwise
noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47
U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 UST 2377.

4\. Section 80.5 is amended by adding an entry for Automatic
Identification Systems (AIS) to read as follows:

**§ 80.5 Definitions.**

\* \* \* \* \*

[Automatic Identification Systems (AIS)]{.underline}. A maritime
navigation safety communications system standardized by the
International Telecommunication Union (ITU) that provides vessel
information, including the vessel's identity, type, position, course,
speed, navigational status and other safety-related information
automatically to appropriately equipped shore stations, other ships, and
aircraft; receives automatically such information from similarly fitted
ships; monitors and tracks ships; and exchanges data with shore-based
facilities.

\* \* \* \* \*

5.  Section 80.13 is amended by revising paragraph (c) to read as
    follows:

**§ 80.13 Station license required.**

\* \* \* \* \*

\(c\) A ship station is licensed by rule and does not need an individual
license issued by the FCC if the ship station is not subject to the
radio equipment carriage requirements any statute, treaty or agreement
to which the United States is signatory, the ship station does not
travel to foreign ports, and the ship station does not make
international communications. A ship station licensed by rule is
authorized to transmit radio signals using a marine radio operating in
the 156--162 MHz band, any type of AIS, any type of EPIRB, and any type
of radar installation. All other transmissions must be authorized under
a ship station license. Even though an individual license is not
required, a ship station licensed by rule must be operated in accordance
with all applicable operating requirements, procedures, and technical
specifications found in this part.

6\. Section 80.371 is amended by revising paragraphs (c)(1)(i), (c)(2)
and (c)(3) to read as follows:

**§ 80.371 Public correspondence frequencies.**

\* \* \* \* \*

\(c\) [Working frequencies in the marine VHF 156-162 MHz
band]{.underline}. (1)(i) The frequency pairs listed in the following
table are available for assignment to public coast stations for public
correspondence communications with ship stations and units on land.

[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

[Working Carrier Frequency Pairs in the 156-162 MHz Band
^1^]{.underline}

+----------------------------------------+--------------+--------------+
| Channel designator                     | Carrier      |              |
|                                        | Frequency    |              |
|                                        | (MHz)        |              |
+----------------------------------------+--------------+--------------+
|                                        | Ship         | Coast        |
|                                        |              | Transmit     |
|                                        | Transmit     |              |
+----------------------------------------+--------------+--------------+
| 24                                     | 157.200      | 161.800      |
| ...................................... |              |              |
+----------------------------------------+--------------+--------------+
| 84                                     | 157.225      | 161.825      |
| ...................................... |              |              |
+----------------------------------------+--------------+--------------+
| 25                                     | 157.250      | 161.850      |
| ...................................... |              |              |
+----------------------------------------+--------------+--------------+
| 85^2                                   | 157.275      | 161.875      |
| ^..................................... |              |              |
+----------------------------------------+--------------+--------------+
| 26                                     | 157.300      | 161.900      |
| ...................................... |              |              |
+----------------------------------------+--------------+--------------+
| 86..                                   | 157.325      | 161.925      |
| ..................................\... |              |              |
+----------------------------------------+--------------+--------------+
| 27..                                   | 157.350      | 161.950      |
| ..................................\... |              |              |
+----------------------------------------+--------------+--------------+
| 87^3^..                                | 157.375      | 157.375      |
| ..................................\... |              |              |
+----------------------------------------+--------------+--------------+
| 28..                                   | 157.400      | 162.000      |
| ..................................\... |              |              |
+----------------------------------------+--------------+--------------+
| 88^4^                                  | 157.425      | 157.425      |
+----------------------------------------+--------------+--------------+

^1^ For special assignment of frequencies in this band in certain areas
of Washington State, the Great Lakes and the east coast of the United
States pursuant to arrangements between the United States and Canada,
see subpart B of this part.

^2^ The frequency pair 157.275/161.875 MHz is available on a primary
basis to ship and public coast stations. In Alaska it is also available
on a secondary basis to private mobile repeater stations.

^3^ Within VHF Public Coast Station Areas (VPCSAs) 1 through 9 listed in
the table in paragraph (c)(1)(ii) of this section, the frequency 161.975
MHz may be used only for Automatic Identification system communications.

^4^ Within that portion of VHF Public Coast Station Areas (VPCSAs) 1
through 9 listed in the table in paragraph (c)(1)(ii) of this section
within 120 km (75 miles) of the United States/Canada border, in the area
of the Great Lakes, the Saint Lawrence Seaway, and the Puget Sound and
the Strait of Juan de Fuca and its approaches, the frequency 157.425 MHz
is available for use by ship stations for public correspondence
communications and the frequency 162.025 MHz is available only for
Automatic Identification System communications. One hundred twenty
kilometers (75 miles) from the United States/Canada border 157.425 MHz
is available for intership and commercial communications. Outside the
Puget Sound area and its approaches and the Great Lakes, 157.425 MHz is
available for communications between commercial fishing vessels and
associated aircraft while engaged in commercial fishing activities.

\* \* \* \* \*

\(2\) Any recovered channel pairs will revert automatically to the
holder of the VPCSA license within which such channels are included,
except the channel pairs listed in the table in paragraph (c)(1)(i) of
this section. Those channel pairs, and any channel pairs recovered where
there is no VPCSA licensee, will be retained by the Commission for
future licensing.

\(3\) VPCSA licensees may not operate on Channel 228B (162.0125 MHz),
which is available for use in the Coast Guard's Ports and Waterways
Safety System (PAWSS). In addition, VPCSA licensees in VPCSAs 1-9 may
not operate on Channel AIS 1 (161.975 MHz) or Channel AIS 2 (162.025
MHz), which are designated in those areas exclusively for Automatic
Identification Systems (AIS), except to transmit and receive AIS
communications to the same extent, and subject to the same limitations,
as other shore stations participating in AIS.

\* \* \* \* \*

7\. Section 80.373 is amended by revising paragraph (j) to read as
follows.

**§ 80.373 Private communications frequencies.**

\* \* \* \* \*

(j) [Frequencies for portable ship stations]{.underline}*.* VHF
    frequencies authorized for stations authorized carrier frequencies
    in the 156.275 MHz to 157.450 MHz and 161.575 MHz to 162.025 MHz
    bands may also be authorized as marine utility stations.
    Marine-utility stations on shore must not cause interference to any
    Automatic Identification System, VHF or coast station, VHF or UHF
    land mobile base station, or U.S. Government station.

> 8\. Section 80.393 is added under the heading AIS
> S[tations]{.smallcaps} to read as follows:

**§ 80.393 Frequencies for AIS stations.**

Automatic Identification Systems (AIS) is a maritime broadcast service
provided by both the United States Coast Guard and Commission licensees.
The simplex channels at 161.975 MHz (AIS 1) and 162.025 MHz (AIS 2),
each with a 25 kHz bandwidth, may be authorized in VHF Public Coast
Station Areas 1-9 for AIS. These areas are codified at 47 CFR §
80.371(c)(1)(ii). In accordance with the Maritime Transportation
Security Act, the United States Coast Guard regulates AIS carriage
requirements for non-Federal Government ships. These requirements are
codified at 33 CFR\
§§ 164.46, 401.20.

**APPENDIX C**

**INITIAL REGULATORY FLEXIBILITY ANALYSIS**

(*Notice of Proposed Rule Making* in WT Docket No. 04-344)

As required by the Regulatory Flexibility Act (RFA),[^269] the
Commission has prepared this present Initial Regulatory Flexibility
Analysis (IRFA) of the possible significant economic impact on small
entities by the policies and rules proposed in the *Notice of Proposed
Rule Making* in WT Docket No. 04-344 (*NPRM*). 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*
as provided in paragraph 70, *supra*, of the item. The Commission will
send a copy of the *NPRM*, including the IRFA, to the Chief Counsel for
Advocacy of the U.S. Small Business Administration.[^270] In addition,
the *NPRM* and IRFA (or summaries thereof) will be published in the
Federal Register.[^271]

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

In the *NPRM*, we seek comment on rule amendments that are intended to
identify the spectrum that should be used for maritime Automatic
Identification Systems (AIS) in the United States and its territorial
waters. AIS is an important tool for enhancing maritime safety and
homeland security, and we are concerned that recent developments may
have created uncertainty in the maritime community regarding the very
high frequency (VHF) channels to be used for AIS, and that this in turn
could impede efforts to expedite the broad deployment of AIS
domestically.[^272] In the *NPRM*, we propose to designate VHF maritime
Channels 87B and 88B for AIS use domestically, in keeping with the
international allocation of those channels for AIS, because we believe
the use of those channels will best secure to the United States the
maritime safety and homeland security benefits of AIS.

**B. Legal Basis for Proposed Rules**

The proposed action is authorized under sections 1, 4(i), 302, 303(f)
and (r), and 332 of the Communications Act of 1934, as amended, 47
U.S.C. 1, 154(i), 302, 303(f) and (r), and 332.

**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.[^273] The RFA defines the
term "small entity" as having the same meaning as the terms "small
business," "small organization," and "small governmental
jurisdiction."[^274] In addition, the term "small business" has the same
meaning as the term "small business concern" under the Small Business
Act.^.^[^275] 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).[^276]

Small businesses in the aviation and marine radio services use a very
high frequency (VHF) marine or aircraft radio and, as appropriate, an
emergency position-indicating radio beacon (and/or radar) or an
emergency locator transmitter. The Commission has not developed a small
business size standard specifically applicable to these small
businesses. For purposes of this analysis, the Commission uses the SBA
small business size standard for the category "Cellular and Other
Telecommunications," which is 1,500 or fewer employees.[^277] Between
December 3, 1998 and December 14, 1998, the Commission held an auction
of 42 VHF Public Coast (VPC) licenses in the 157.1875-157.4500 MHz (ship
transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes
of the auction, the Commission defined a "small" business as an entity
that, together with controlling interests and affiliates, has average
gross revenues for the preceding three years not to exceed fifteen
million dollars. In addition, a "very small" business is one that,
together with controlling interests and affiliates, has average gross
revenues for the preceding three years not to exceed three million
dollars.[^278] There are approximately 10,672 licensees in the Marine
Coast Service, and the Commission estimates that almost all of them
qualify as "small" businesses under the above special small business
size standards.

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

There are no projected reporting, recordkeeping or other compliance
requirements.

**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: (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.[^279]

In the *NPRM*, we request comment on the proposal to designate Channels
87B and 88B for exclusive AIS use. We describe here, and seek comment
on, possible alternatives to imposing these new rules that might
minimize the economic impact on small entities. First, we ask commenters
to consider the interference impact on MariTEL, Inc., licensee of the
nine maritime VPC service areas, or on any incumbent site-based VPC
licensees or any Economic Area (EA) VPC licensees of the proposed
designation of Channels 87B and 88B for AIS exclusively. We tentatively
conclude that the proposed designation of Channels 87B and 88B for AIS
should not have an adverse effect on MariTEL's use of its VPC channels
to a materially greater extent, if at all, than would designation of two
narrowband offset channel pairs of the Commission's choosing from the
156-162 MHz VHF maritime band.[^280] We request comment on this
tentative conclusion. In addition, commenters are asked if incumbent
site based VPC operations can co-exist on a non-interference basis with
AIS and, if not, should the Commission require that that these
operations be migrated to other spectrum and/or should the licensees be
compensated in some way.

Commenters are requested to identify potential means of minimizing or
eliminating any adverse economic impact on any small entities,
particularly VPC licensees that qualify as small entities, if Channels
87B and 88B are designated for AIS use. Such means may include, but are
not limited to, exemptions, grandfathering protection, or geographic
limitations on the use of Channels 87B and 88B for AIS. Additionally or
alternatively, we seek comment on whether we could provide replacement
spectrum for licensees who may find themselves unable to continue using
their licensed VPC channels because of our proposal. For example, we
might be able to modify their licenses to provide other channels in lieu
of Channels 87B and 88B. We also could designate channels other than
Channels 87B and 88B for AIS use in the United States as a means of
minimizing any adverse economic impact on these licensee. We note,
however, that mandating use of channels other than Channels 87B and 88B
for AIS use in the United States may have an adverse economic impact on
vessel operators and radio equipment manufacturers that qualify as small
entities by, for example, increasing the cost of AIS equipment, causing
premature obsolescence of AIS equipment already installed on vessels, or
leaving manufacturers with stranded inventory. Accordingly, commenting
parties, and particularly commenting parties who favor adopting an
alternative to the Commission's proposal, are asked to address the
potential economic impact of that alternative on small entities.

In Appendix D, we list all of the incumbent site-based licensees that
currently operate within VHF Public Coast Service Areas (VPCSAs) 1-9 on
the channels which we are proposing to designate for exclusive AIS use.
We assume for purposes of this IRFA that some or all of these licensees
qualify as small entities. We specifically invite these licensees to
address the expected economic impact on them of our proposal, and to
suggest alternatives or additions to our proposal that would minimize
that impact, including but not limited to the methods discussed in the
preceding paragraph.

We also note that there are incumbent licensees operating on the
specified channels in inland areas. We do not anticipate any significant
adverse effect on any such licensee due to the geographic limitations of
our proposal, *i.e*., our limiting the AIS set-aside to areas near major
navigable waterways. Commenters who believe differently are asked to
describe the expected adverse economic impact on incumbent inland
licensees operating on these or adjacent channels, and to provide
suggested methods of minimizing any such impact. In addition, we note
that, although we are proposing only to designate Channels 87B and 88B
for AIS in the nine maritime VPCSAs, we have not foreclosed the
possibility of designating those channels for AIS on a nationwide basis.
Accordingly, inland licensees and other interested parties should
address the possible economic impact on small entities if we were to
designate Channels 87B and 88B for AIS in inland areas as well as the
nine maritime VPCSAs.

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

None.

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

![](media/image2.wmf){width="6.944444444444445e-4in"
height="6.944444444444445e-4in"}

Appendix D: Licensees Operating on 161.975 MHz and 162.025 MHz

  ------------- ---------------- --------------- ------------ --------------------- ---- ------------ ------- --------
  Table 1:                                                                                                    
  Site-based                                                                                                  
  Licenses                                                                                                    
  Listed in the                                                                                               
  Universal                                                                                                   
  Licensing                                                                                                   
  System (ULS)                                                                                                
  for the                                                                                                     
  Frequencies                                                                                                 
  161.975 MHz                                                                                                 
  and 162.025                                                                                                 
  MHz                                                                                                         

  The Frequency                                                                                               
  161.975 MHz                                                                                                 
  is licensed                                                                                                 
  for Use in a                                                                                                
  Geographic                                                                                                  
  Area that is                                                                                                
  within One or                                                                                               
  More of the                                                                                                 
  Nine Maritime                                                                                               
  VHF Public                                                                                                  
  Coast Station                                                                                               
  Areas (VPCSAs                                                                                               
  1-9):                                                                                                       

  Call Sign     Licensee Name    Location of     VPCSA        Radio Service              Station      No. of  Output
                                 Station                                                 Class        Units   Power

  KMC972        Cohen, Murray    Farmingville,   5            Coastal Group (MC)         Public Coast 1       50 W
                                 NY                                                      Station (FC)         

  KMH828        Pacific Bell     Oakland, CA     6                                                            

  KUF681        Gardenhire, Pat  Boyce, TX       4                                                            

  KUF847        Nextel of        San Pedro, CA   6                                                            
                California Inc.                                                                               

  KZT919        Morris Coop Oil  Morris, MN      4            Conventional               Mobile Relay 1       45 W
                Association                                   Industrial/Business        Station              
                                                              Pool (IG)                  (FB2)                

                                 40 km radius                                            Mobile       20      20 W
                                 around Morris,                                          Station (MO)         
                                 MN                                                                           

  WAH           Avalon           Saint Thomas,   3            MC                         FC           1       50 W
                Communications   VI                                                                           
                Corp.                                                                                         

  WHU300        Whidbey          Freeland, WA    7                                                            
                Telephone                                                                                     
                Company                                                                                       

  WPGA970       Arizona, State   Operates        6 (La Paz    Conventional Public        Temporary    5       
                of               throughout AZ   and Yuma     Safety Pool (PW)           Control              
                                                 Counties),                              Station              
                                                 36, 37, 39,                             (FX1T)               
                                                 41, and 42                                                   

                                                                                         MO           300     

  WPKA286       Kuehn, Stanley   Sanborn, MN     4            IG                         FB2          1       35 W

                                 40 km radius                                            MO           28      20 W
                                 around Sanborn,                                                              
                                 MN                                                                           

  WRD704        Shipcom, LLC     Mobile, AL      4            MC                    FC                1       50 W

  The Frequency                                                                                               
  162.025 MHz                                                                                                 
  is licensed                                                                                                 
  for Use in a                                                                                                
  Geographic                                                                                                  
  Area within                                                                                                 
  One of the                                                                                                  
  Nine Maritime                                                                                               
  VHF Public                                                                                                  
  Coast Station                                                                                               
  Areas:                                                                                                      

  Call Sign     Licensee Name    Location of     VPCSA        Radio Service              Station      No. of  Output
                                 Station                                                 Class        Units   Power

  WAH           Avalon           Saint Thomas,   3            MC                         FC           1       50 W
                Communications   VI                                                                           
                Corp.                                                                                         
  ------------- ---------------- --------------- ------------ --------------------- ---- ------------ ------- --------

Source: The Commission's Office of Engineering and Technology (OET)
conducted this study on August 25, 2004.

Tools: The ULS is at http://wireless.fcc.gov/uls/ and OET's "US County
to FCC Area Cross-Reference Search" tool is at
<http://www.fcc.gov/fcc-bin/cesearch.pl>.

[^1]: The Coast Guard, previously under the Department of
    Transportation, was transferred to the Department of Homeland
    Security by the Homeland Security Act of 2002, P.L. 107-296, 116
    Stat. 2135, 2249 § 888(b) (2002).

[^2]: *See* Amendment of the Commission's Rules Concerning Maritime
    Communications, *Notice of Proposed Rule Making and Notice of
    Inquiry*, PR Docket No. 92-257, 7 FCC Rcd 7863, 7863 ¶ 2 (1992)
    (*1992 Maritime NPRM/NOI*) (observing that the Wireless Ship Act of
    1910, Pub. L. No. 262, 36 Stat. 629 (1910), authorized the Secretary
    of Commerce and Labor to establish requirements for carriage of
    wireless equipment on vessels).

[^3]: The maritime mobile service is defined as a mobile service between
    coast stations and ship stations, or between ship stations, or
    between associated on-board communication stations. Survival craft
    stations and emergency position-indicating radio beacon stations may
    also participate in this service. A coast station is defined as a
    land station in the maritime mobile service. A ship station is
    defined as a mobile station in the maritime mobile service located
    on board a vessel which is not permanently moored, other than a
    survival craft station. 47 C.F.R. § 2.1(c).

[^4]: *See* Amendment of the Commission's Rules Concerning Maritime
    Communications, *Further Notice of Proposed Rule Making,* PR Docket
    No. 92-257, 10 FCC Rcd 5725, 5725 ¶ 2 (1995).

[^5]: *See* 47 C.F.R. § 87.373(f). Public correspondence communications
    are personal or private communications between two or more persons.
    Public correspondence is defined under the Part 80 Maritime Service
    Rules as "\[a\]ny telecommunication which the offices and stations
    must, by reason of their being at the disposal of the public, accept
    for transmission." 47 C.F.R. § 80.5.

[^6]: The 156-162 MHz maritime channels are designated numerically in
    accordance with a numbering scheme established at the International
    Telecommunication Union (ITU) World Administrative Radio Conference
    of 1967, and adopted by the Commission in 1968. *See* Amendment of
    Parts 2, 81, and 83 -- Reduction of Channel Spacing to 25 kc/s,
    Allotment of Channels, Establishment of Revised Technical Criteria
    and Categories of Communication in the Maritime Mobile Service Band
    156-162 Mc/s for VHF Radiotelephony, *Report and Order*, Docket No.
    17295, 13 FCC 2d 874, 879 ¶¶ 17-18 (1968), *recon. denied*, 15 FCC
    2d 819 (1969). Thus, for example, the frequency 156.800 MHz, the
    international VHF distress frequency, is designated VHF maritime
    Channel 16. *See* 47 C.F.R.\
    §§ 80.371(c)(1)(i), 80.373(f).

[^7]: *See* Amendment of the Commission's Rules Concerning Maritime
    Communications, *Third Report and Order and Memorandum Opinion and
    Order*, PR Docket No. 92-257, 13 FCC Rcd 19853, 19875 ¶ 47 (1998)
    (*Public Coast Third Report and Order*) (citing 47 C.F.R. § 2.106
    n.G5).

[^8]: *See* Exchange of Notes Between the Government of the United
    States of America and the Government of Canada Concerning the
    Coordination and Use of Radio Frequencies Above 30 Megacycles per
    Second, Attachments A through F (Oct. 24, 1962) (*Above 30 MHz
    Coordination Agreement*).

[^9]: *Id.; see also* 47 C.F.R. § 80.57. Channel 87 is listed as a
    United States channel under the treaty.

[^10]: *See* Amendment of Parts 2 and 83 -- On the Great Lakes and Along
    the Saint Lawrence Seaway: To Change the Status of 157.425 and
    162.025 MHz, to Form Them into VHF Channel 88, and to Make Channel
    88 Available for Assignment to Ship Stations for Public
    Correspondence, *Report and Order*, Docket No. 20838, 62 FCC 2d 445,
    445-46 ¶ 4 (1976) (*1976 Report and Order*).

[^11]: *See* Ship Stations for Public Correspondence --- Great Lakes and
    Saint Lawrence Seaway, *Notice of Proposed Rule Making*, 41 Fed.
    Reg. 24914, 24914 (1976) (*1976 NPRM*).

[^12]: *See* Frequency Allocations and Treaty Matters; General Rules and
    Regulations; Stations on Shipboard in the Maritime Services;
    Stations on Land in the Maritime Services and Alaska-Public Fixed
    Stations, *Report and Order*, Docket No. 83-664, 49 Fed. Reg. 11838
    (1984).

[^13]: 47 C.F.R. § 2.106 n.US223; *see also* 47 C.F.R. § 80.371(c)(1)(i)
    n.3.

[^14]: *See* Amendments of Parts 13 and 80 of the Commission's Rules
    Concerning Maritime Communications, *Second Report and Order, Sixth
    Report and Order, and Second Further Notice of Proposed Rule
    Making*, WT Docket No. 00-48 & PR Docket No. 92-257, 19 FCC Rcd
    3145, 3179 ¶ 64 (2004) (*GMDSS Second Report and Order*).

[^15]: *See* WRC-97 Final Acts (amending ITU Radio Regulations App.
    S18). Channel 87B was denominated AIS 1 and Channel 88B was
    denominated AIS 2. *Id*.

[^16]: *Id*.

[^17]: *See* Amendments to the International Convention for the Safety
    of Life at Sea, 1974, Chapter V, Regulation 19.2.4, "Carriage
    requirements for shipborne navigational systems and equipment," as
    amended by IMO Resolution MSC.99(73) -- 2000 Amendments to the
    Safety of Life at Sea 1974 Convention, as Amended -- London, 5
    December 2000 (*IMO AIS Carriage Requirements*). The *IMO AIS
    Carriage Requirements* apply to all ships of 300 gross tons or more
    on international voyages, cargo ships of 500 gross tons or more not
    on international voyages, and all tankers and passenger ships, and
    to other ships as determined by the flag State. Passenger ships are
    defined under SOLAS as ships carrying more than twelve passengers.

[^18]: Recommendation ITU-R M.1371-1, "Technical characteristics for a
    universal shipborne automatic identification system using time
    division multiple access in the VHF maritime mobile band," with
    Annexes, at Annex 1, § 2.1.1, Table 2 (2001). In addition to ITU-R
    M.1371-1, applications for AIS equipment certification must meet the
    following standards: IMO Resolution MSC.74(69), IEC 61162-1, IEC
    61162-100, and IEC 61993-2. *See* 47 C.F.R. § 80.1101(c)(12), as
    amended in the *GMDSS Second Report and Order; see also* IMO
    Resolution A.917(22), "Guidelines for the On Board Operational Use
    of Shipborne Universal Automatic Identification System."

[^19]: *See IMO AIS Carriage Requirements*. The initial implementation
    schedule provided that vessels built on or after July 1, 2002 were
    required to carry AIS immediately. With respect to vessels built
    prior to July 1, 2002, passenger ships engaged on international
    voyages were required to carry AIS by July 1, 2003; tankers on
    international voyages were required to carry AIS by the first survey
    for safety equipment on or after July 1, 2003; and ships other than
    passenger ships and tankers were required to carry AIS by the
    following deadlines: July 1, 2004, for ships of 50,000 gross tons or
    more; July 1, 2005, for ships of 10,000 gross tons or more but less
    than 50,000 gross tons; July 1, 2006, for ships of 3,000 gross tons
    or more but less than 10,000 gross tons; and July 1, 2007, for ships
    of 300 gross tons or more but less than 3,000 gross tons. Ships not
    engaged on international voyages were required to carry AIS by July
    1, 2008. The IMO subsequently adopted a United States recommendation
    to require the installation of AIS on all vessels on international
    voyages by 2004, while retaining the July 1, 2008 deadline for all
    vessels not on international voyages. *See* IMO Maritime Safety
    Committee, 75th Session, Agenda Item 17 -- Prevention and
    Suppression of Acts of Terrorism Against Shipping; Automatic
    Identification System (submitted by the United States) -- London, 15
    January 2002.

[^20]: *See* U.S. General Accounting Office, *Homeland Security: Efforts
    to Improve Information Sharing Need to be Strengthened*, Report to
    the Secretary of Homeland Security (GAO-03-760 August 2003)
    (viewable at http://www.gao.gov/new.items/d03760.pdf) at 39 ("MDA is
    a concept that captures total awareness of vulnerabilities, threats,
    and targets of interest on the water. MDA is the comprehensive
    information, intelligence, and knowledge of all entities within
    America's waterways that could affect our safety, security, economy,
    or environment.").

[^21]: *See* P.L. 107-295, § 102(e), 116 Stat. 2082 (2002) (codified at
    46 U.S.C. § 70114).

[^22]: *Id*. The statute also authorizes the Coast Guard to exempt
    vessels from AIS carriage requirements and to issue waivers of those
    requirements. *Id*.

[^23]: *Id*.

[^24]: *See* 33 U.S.C. §1221 *et seq*.

[^25]: *See, e.g*., 33 C.F.R. §§ 161.21(a) (specifying that, unless
    otherwise directed, AIS-equipped vessels must make continuous, all
    stations, AIS broadcasts in lieu of Voice Position Reports), 164.46
    (imposing mandatory carriage requirements on specified classes of
    vessels, with varying compliance deadlines of July 1, 2003, July 1,
    2004, and December 31, 2004), and 401.20 (establishing AIS
    requirements for vessels transiting the Saint Lawrence Seaway).

[^26]: *See* 33 C.F.R. § 164.46(a) Note; IMO Resolution A.917(22),
    "Guidelines for the On Board Operational Use of Shipborne Universal
    Automatic Identification System."

[^27]: *See* *1992 Maritime NPRM/NOI,* 7 FCC Rcd at 7864 ¶ 7; 47 C.F.R.
    § 80.5.

[^28]: *See* 47 C.F.R. § 20.9(a)(5). Although presumptively classified
    as a CMRS provider under the Commission's Rules, a VPC licensee or
    applicant may propose to use VPC spectrum to provide private land
    mobile radio service. The licensee or applicant must certify to that
    effect and must demonstrate that the proposed service does not come
    within the definition of a commercial mobile radio service. 47
    C.F.R. § 20.9(b), (b)(1).

[^29]: *See, e.g*., 47 C.F.R. § 80.153 (requiring that operation of a
    coast station transmitter be performed by a person who is on duty at
    the station control point); §§ 80.301-80.303 (watch requirements); §
    80.1119 (requirements to relay distress alerts to search and rescue
    personnel).

[^30]: *See* n.7*, supra.*

[^31]: *Public Coast Third Report and Order*, 13 FCC Rcd at 19859-60 ¶
    10. Under the site-based licensing approach, the VPC applicant
    proposed a base station site of its choosing by reference to
    geographic coordinates, and the service area was defined on the
    basis of predicted signal strength over the waterway to be served.
    Generally, the service areas of site-based VPC stations extend
    twenty to thirty miles from the transmitter.

[^32]: *Id*. at 19861-63 ¶¶ 14-16. The nine maritime VHF Public Coast
    areas roughly correspond with U.S. Coast Guard Districts. The
    regions served are Northern Atlantic (VPC 1), Mid-Atlantic (VPC 2),
    Southern Atlantic (VPC 3), Mississippi River (VPC 4), Great Lakes
    (VPC 5), Southern Pacific (VPC 6), Northern Pacific (VPC 7), Hawaii
    (VPC 8), and Alaska (VPC 9).

[^33]: *Id*. at 19861-62 ¶¶ 13, 15. EAs are areas designated and defined
    by the U.S. Department of Commerce.

[^34]: *Id*. at 19866 ¶ 25.

[^35]: *Id*. at 19863-64 ¶ 18.

[^36]: 47 U.S.C. § 309(j).

[^37]: *See* *Public Coast Third Report and Order*, 13 FCC Rcd at
    19883-88 ¶¶ 64-73.

[^38]: *Id*. at 19858 ¶ 7.

[^39]: *Id*. at 19874 ¶ 44.

[^40]: *Id*. at 19874-75 ¶ 45; *see* 47 C.F.R. § 80.371(c)(1)(iii).

[^41]: *Public Coast Third Report and Order,* 13 FCC Rcd at 19874-75 ¶
    45 (citing Final Acts of the World Radiocommunication Conference
    (WRC-97), Geneva, 1997 (amending ITU Radio Regulations Art. S52,
    App. S18).

[^42]: *Id*.

[^43]: 47 C.F.R. § 80.371(c)(3).

[^44]: *See* *Public Coast Third Report and Order*, 13 FCC Rcd at 19875
    ¶ 46.

[^45]: *See* *id*. VTS is a national transportation system that
    collects, processes, and disseminates information on the marine
    operating environment and maritime vessel traffic in major U.S.
    ports and waterways. The VTS program is administered by the Coast
    Guard under authority of the Ports and Waterways Safety Act of 1972,
    33 U.S.C. §1221 *et seq*.

[^46]: The Coast Guard uses VTS systems as a mandatory communications
    service to coordinate vessel movement and prevent collisions in
    certain congested waterways or port areas. Information pertaining
    to, among other things, vessel position, navigation and conditions
    affecting navigation is transmitted to the Coast Guard, which tracks
    the vessels' movements and exchanges pertinent information to aid
    navigation in VTS areas. *See* 33 C.F.R. Part 161. VTS systems use
    VHF maritime channels that are dedicated to exclusive VTS operation
    in certain Coast Guard-designated VTS areas. The Coast Guard
    requires that vessels subject to the Bridge-to-Bridge Radiotelephone
    Act, P.L. 92-63, including certain large ships, passenger vessels
    and towing vessels participate in VTS. *See* Amendment of Part 80 of
    the Rules Concerning U.S. Coast Guard Vessel Traffic Services (VTS)
    Systems in Sault Ste. Marie, Michigan; San Francisco, California;
    and Morgan City, Louisiana, *Report and Order*, WT Docket No.
    95-132, 11 FCC Rcd 12942, 12943 ¶ 3 (1996). The Commission first
    allocated maritime VHF channels for VTS in 1975. *See* Amendment of
    Parts 81 and 83 of the Rules to Designate in the Ports of New York
    and New Orleans the Frequencies 156.55 MHz, 156.6 MHz and 156.7 MHz
    (Very High Frequency Channels 11, 12 and 14) in the Maritime Mobile
    Service for Exclusive Use in the Vessel Traffic Services, *Report
    and Order*, Docket No. 20444, 56 FCC 2d 1089 (1975). At present,
    there are ten VTS areas. *See* 33 C.F.R. Part 161, Subchapter C.
    Eight of these VTS areas are protected by Commission regulations:
    New York City, New Orleans, Houston, Seattle (Puget Sound), San
    Francisco, Prince William Sound, Sault Ste. Marie, and Berwick Bay.
    *See* 47 C.F.R. § 80.383(b). Frequencies allotted for VTS
    communications may be used for other purposes outside the VTS areas,
    provided they cause no interference to VTS communications. *See* 47
    C.F.R. § 80.383(c).

[^47]: *See* *Public Coast Third Report and Order*, 13 FCC Rcd at 19876
    ¶ 47.

[^48]: *Id*. at 19875-76 ¶¶ 46-47.

[^49]: *Id*. at 19876 ¶ 48.

[^50]: *Id.* at 19876 ¶ 48. The Commission made no mention, in this
    context, of Channel 88, presumably because the Coast Guard's
    requested allocation of Channel 228B (162.0125 MHz) for AIS would
    preclude AIS use of Channel 88B (162.025 MHz).

[^51]: *Id*. at 19876-77 ¶ 48 (emphasis in original).

[^52]: *Id*. at 19877 ¶ 49.

[^53]: *Id*.

[^54]: *Id*.

[^55]: 47 C.F.R. § 80.371(c)(3).

[^56]: *See* 156-162 MHz VHF Public Coast Station Spectrum Auction
    Scheduled for December 3, 1998; Comment Sought on Reserve Prices or
    Minimum Opening Bids and Other Auction Procedural Rules, *Public
    Notice*, 13 FCC Rcd 17612 (WTB 1998).

[^57]: *See* Auction of 156-162 MHz VHF Public Coast Station Service
    Licenses; Auction Notice and Filing Requirements for 42 Geographic
    Area Licenses Scheduled for December 3, 1998; Minimum Opening Bids
    and Other Procedural Issues, *Public Notice*, 13 FCC Rcd 19443, as
    corrected by Public Notices of September 8, 1998, and September 21,
    1998 (WTB 1998) (*VPC Auction Procedures Public Notice*).

[^58]: *Id*. at 19446. The Auction No. 20 Bidder Information Package
    also contained Due Diligence sections in which prospective bidders
    were specifically alerted to the possibility that geographic area
    VPC operations in certain areas could be constrained by the need to
    protect incumbent licensees from interference or because of
    agreements between the United States and Canada. *See* Auction 20
    Bidder Information Package at 47 (Tab A), 54-55 (Tab B) (1998). The
    Auction No. 20 Bidder Information Package and other documents
    pertinent to Auction No. 20 can be viewed on the Commission's web
    site at http://wireless.fcc.gov/auctions/20/releases.html#bip.

[^59]: *See* *VPC Auction Procedures Public Notice*, 13 FCC Rcd at
    19447.

[^60]: *See* Further Correction to Public Notice, Auction of 156-162 MHz
    VHF Public Coast Station Service Licenses, *Public Notice*, 1998 WL
    564017 at \[Second\] Erratum n. 4.

[^61]: *See* VHF Public Coast Service Auction Closes; Winning Bidders in
    the Auction of 42 Licenses in the 156-162 MHz VHF Public Coast
    Service, *Public Notice*, DA 98-2542 (rel. Dec. 16, 1998).

[^62]: The nine licenses are held by separate wholly-owned subsidiaries
    of MariTEL. For convenience, we refer to the licensees simply as
    MariTEL.

[^63]: Memorandum of Agreement Between United States Coast Guard and the
    Maritime VHF Public Coast Area Licensee, March 7, 2001.

[^64]: MOA § VIII.A.

[^65]: MOA § VIII.B.

[^66]: *See* Wireless Telecommunications Bureau Announces the Selection
    of Two VHF Channel Pairs for the United States Coast Guard's Ports
    and Waterways Safety System, *Public Notice*, 16 FCC Rcd 7968 (WTB
    PSPWD 2001). Because Channels 87A/B are *non-offset* channels, and
    Section 80.371(c)(3) mandates that the parties negotiate to select
    *offset* channel pairs, the Commission also granted a waiver of
    Section 80.371(c)(3). *Id*.

[^67]: *See* Letter dated May 6, 2002 from J. Hersey, Chief, Spectrum
    Management Division, USCG, to Thomas J. Sugrue, Chief, Wireless
    Telecommunications Bureau, FCC.

[^68]: *Id*.

[^69]: Wireless Telecommunications Bureau Announces Use of an Additional
    Frequency for the United States Coast Guard's Ports and Waterways
    Safety System, *Public Notice*, 17 FCC Rcd 10960 (WTB PSPWD 2002)
    (*Additional Frequency Public Notice*).

[^70]: Applications for Equipment Authorization of Universal Shipborne
    Automatic Identification Systems to be Coordinated with U.S. Coast
    Guard to Ensure Homeland Security, *Public Notice*, 17 FCC Rcd 11983
    (OET 2002). The Commission identified the relevant international
    standards and requirements, including ITU-R 1371-1. *Id*. at 11983
    n.2.

[^71]: *See* Letter dated May 5, 2003 from Dan Smith, President/CEO,
    MariTEL, to Capt. Richard S. Hartman, Jr., Chief, Office of
    Communications System, USCG.

[^72]: *Id*. Subsequently, MariTEL afforded the Coast Guard a six-month
    transition period. *See* Letter dated May 27, 2003 from Dan Smith,
    President/CEO, MariTEL, to Capt. Richard S. Hartman, Jr., Chief,
    Office of Communications, USCG. The Coast Guard asserted that the
    terms of the MOA provided a six-month transition period beginning
    thirty days after MariTEL notified the Coast Guard of its
    termination of the MOA. *See* Letter dated Sept. 16, 2003 from Rear
    Admiral C.I. Pearson, U.S. Coast Guard Director of Information and
    Technology, to Frederick R. Wentland, Associate Administrator,
    Office of Spectrum Management, NTIA, Enclosure 4 n.22.

[^73]: *See* MariTEL, Inc. Request for Waiver and Extension of
    Construction Deadline, FCC File No. 0001252148 at 3 n.4 (filed Mar.
    27, 2003). This is one of nine waiver and construction extension
    requests filed by MariTEL, one for each of the nine VPCSA licenses.
    MariTEL filed identical requests for each of these licenses.

[^74]: We do not intend here to resolve all pending matters involving
    MariTEL or VPC stations. For example, MariTEL filed a still-pending
    petition for rulemaking seeking additional flexibility for VPC
    stations to provide private land mobile radio service to units on
    land. MariTEL, Inc., Petition for Rulemaking, RM-10743 (filed May
    16, 2003.) The issues raised by that petition, as well as a
    companion petition for rulemaking filed by Mobex, Inc., are being
    addressed in a separate proceeding. *See* MariTEL, Inc and Mobex
    Network Services, LLC Petitions for Rule Making to Amend the
    Commission's Rules to Provide Additional Flexibility for AMTS and
    VHF Public Coast Station Licensees, *Notice of Proposed Rule
    Making*, WT Docket No. 04-257, FCC 04-171 (rel. July 30, 2004). In
    addition, we note that on December 4, 2003, the Bureau granted
    MariTEL's request for a waiver and two-year extension of the
    five-year construction requirement applicable to geographic area VPC
    licensees under 47 C.F.R. § 80.49(a)(1). MariTEL, Inc., *Order*, 18
    FCC Rcd 24670 (WTB PSPWD 2003) (*MariTEL Construction Extension*).
    Pursuant to the waiver and extension, MariTEL is not required to
    demonstrate that it is providing substantial service within these
    service areas until May 19, 2006. On January 5, 2004, the Coast
    Guard filed an Application for Review of the grant of the waiver and
    extension to MariTEL. The Application for Review remains pending.

[^75]: MariTEL, Inc. Petition for Declaratory Ruling (filed Apr. 4,
    2003) (*MariTEL Channel 88 Petition*).

[^76]: *See* 47 C.F.R. §§ 1.928(e), 2.1.

[^77]: The *MariTEL Channel 88 Petition* is concerned solely with the
    use of Channel 88 in the United States in the Great Lakes, Saint
    Lawrence Seaway, and Puget Sound and the Strait of Juan de Fuca and
    its approaches above Line A. *MariTEL Channel 88 Petition* at 1-2
    n.2.

[^78]: 47 C.F.R. § 2.106 n.US223.

[^79]: *See* *MariTEL Channel 88* *Petition* at 4-6.

[^80]: *See* Wireless Telecommunications Bureau Seeks Comment on
    MariTEL, Inc. Petition for Declaratory Ruling Regarding the Use of
    Maritime VHF Channel 88, *Public Notice*, 18 FCC Rcd 14250 (WTB
    PSPWD 2003).

[^81]: MariTEL, Inc., Emergency Petition for Declaratory Ruling (filed
    Oct. 15, 2003) (*MariTEL Emergency Petition*), supplemented Oct. 27,
    2003 (*MariTEL Emergency Petition Supplement*). In addition, MariTEL
    requests that, in light of the termination of the *USCG-MariTEL
    MOA*, we withdraw authorization of shipborne AIS equipment that was
    authorized pursuant to the *June 2002 Public Notices*. *See* Letter
    dated July 30, 2003 from Russell H. Fox, counsel for MariTEL, to
    D'wana R. Terry, Chief, Public Safety and Private Wireless Division,
    FCC (*July 30 Letter Request*). The *July 30 Letter* *Request*
    raises essentially the same issue and seeks essentially the same
    relief as the *MariTEL Emergency Petition*, and our resolution of
    the *MariTEL Emergency Petition*, *infra*, applies equally to the
    *July 30 Letter Request* for the same reasons.

[^82]: *MariTEL Emergency Petition* at 1, 7, 9.

[^83]: *Id*. at 7

[^84]: *Id*. at 7-8.

[^85]: Letter dated Oct. 24, 2003 from Frederick R. Wentland, Associate
    Administrator, Office of Spectrum Management, NTIA, to John B.
    Muleta, Chief, Wireless Telecommunications Bureau, FCC, RM-10821
    (*NTIA Petition*).

[^86]: *Id*. at 1.

[^87]: *Id*. at 2.

[^88]: *Id*.

[^89]: *Id*. at 3-4.

[^90]: Wireless Telecommunications Bureau Seeks Comment on MariTEL, Inc.
    Petition for Declaratory Ruling and National Telecommunication and
    Information Administration Petition for Rulemaking Regarding the Use
    of Maritime VHF Channels 87B and 88B, *Public Notice*, 18 FCC Rcd
    23260 (WTB PSPWD 2003) (*AIS PN*).

[^91]: Letter dated November 7, 2003 from Dan Smith, President and CEO,
    MariTEL, to Catherine W. Seidel, Deputy Chief, Wireless
    Telecommunications Bureau, FCC (*MariTEL Frequency Coordinator
    Proposal*).

[^92]: *Id.* at 1.

[^93]: An MMSI is a unique nine-digit number assigned to commercial and
    recreational vessels participating in the Global Maritime Distress
    and Safety System (GMDSS). Required under the ITU *Radio
    Regulations*, the MMSI functions as a "phone number" for the vessel
    and must be programmed into the vessel's digital selective calling
    (DSC) radio. MMSIs are also used for AIS transponders.

[^94]: *Id*. at 2-3.

[^95]: *Id*. at 3. An aid to navigation is any device external to a
    vessel (or aircraft) intended to assist a navigator to determine
    position or safe course, or to warn of dangers or obstructions to
    navigation. *See* 33 C.F.R. § 62.3(a). In the context of MariTEL's
    proposal, we assume the term refers to radionavigation coast
    stations operated for the benefit of mariners.

[^96]: *MariTEL Frequency Coordinator Proposal* at 3.

[^97]: Wireless Telecommunications Bureau Seeks Comment on MariTEL, Inc.
    Proposal to Serve as Automatic Identification System (AIS) Frequency
    Coordinator, *Public Notice*, 18 FCC Rcd 24057 (WTB PSPWD 2003)
    (*Coordinator Proposal PN*).

[^98]: Letter dated February 9, 2004 from Dan Smith, President and CEO,
    MariTEL, to Catherine W. Seidel, Deputy Chief, Wireless
    Telecommunications Bureau (*MariTEL Sharing Proposal*).

[^99]: *Id.* at 2.

[^100]: *Id*.

[^101]: *Id*. at 3-4.

[^102]: *Id*. at 2.

[^103]: *Id*. at 5. Channels used in full-duplex mode allow
    transmissions to occur in two directions simultaneously, *i.e.*,
    both parties can communicate at once. In simplex mode, the channel
    is used for one-way communications, so that one party only transmits
    on the channel and the other party only receives on the channel. (In
    half-duplex mode, both parties can transmit on the channel but only
    one at a time, as with a walkie-talkie.)

[^104]: *See* Wireless Telecommunications Bureau Seeks Comment on
    MariTEL, Inc. Proposal for Shared Use of Maritime VHF Channels 87B
    and 88B for Automatic Identification Systems, *Public Notice*, 19
    FCC Rcd 2666 (WTB PSCID 2004) (*Sharing Proposal PN*).

[^105]: We note that Channel 88B is allocated exclusively to the Federal
    Government, but Channel 88A is allocated exclusively for non-Federal
    Government use. *See* 47 C.F.R. § 2.106. Although the *MariTEL
    Channel 88 Petition* seeks a declaratory ruling pertaining to
    Channels 88A/B, and the disputed spectrum is sometimes referred to
    in the pleadings simply as Channel 88, the point of contention
    appears to be over the use of Channel 88B. NTIA does not assert
    rights paramount to MariTEL with respect to Channel 88A.

[^106]: In addition to the *MariTEL Channel 88 Petition*, we have in the
    record of this proceeding a written *ex parte* presentation by NTIA,
    Letter dated August 1, 2003 from Frederick R. Wentland, Associate
    Administrator for Spectrum Management, NTIA, to John B. Muleta,
    Chief, Wireless Telecommunications Bureau, FCC (*NTIA Channel 88
    Comments*), and MariTEL's responsive written *ex parte*
    presentation, Letter dated August 11, 2003 from Russell H. Fox,
    Mintz Levin Cohn Ferris Glovsky and Popeo PC, to John B. Muleta,
    Chief, Wireless Telecommunications Bureau, FCC (*MariTEL Channel 88
    Reply*).

[^107]: *See* n.11, *supra*.

[^108]: *See* *MariTEL Channel 88 Petition* at 3-5.

[^109]: *Id*.

[^110]: MariTEL relies on the language in the *1976 NPRM* stating that
    Channel 88B "has been cleared for the proposed usage \[*i.e.*,
    public correspondence\]. In areas other than the Great Lakes and
    Saint Lawrence Seaway, 162.025 MHz will continue to be used by
    Government stations." *MariTEL Channel 88 Petition* at 4; *MariTEL
    Channel 88 Reply* at 3. We do not believe the quoted language
    unambiguously indicates an intent to provide for *exclusive* public
    correspondence use of Channel 88B in the Great Lakes and Saint
    Lawrence Seaway, particularly given the absence of any language
    limiting Federal Government use of the channel. As noted above,
    however, MariTEL did obtain the exclusive right to use Channel 88
    for non-Government public correspondence.

[^111]: *MariTEL Channel 88 Petition* at 4-5 n.12; *see also* *MariTEL
    Channel 88 Reply* at 4 (contending that the omission of an entry in
    the "Non-Federal Government" column of the Table of Frequency
    Allocations providing a Channel 88 allocation for VPC stations was
    "no more than a ministerial oversight").

[^112]: *See* 47 C.F.R. § 2.106 n.G5; *see also NTIA Channel 88
    Comments* at 1 and n.4.

[^113]: *See* *NTIA Channel 88 Comments* at 3.

[^114]: As MariTEL recognizes, coordination with Canada is required
    under Section 80.57 of the Commission's Rules, 47 C.F.R. § 80.57.
    *See MariTEL Channel 88 Petition* at 2.

[^115]: *MariTEL Channel 88 Petition* at 5-6.

[^116]: *Id.* at 6; *MariTEL Channel 88 Reply* at 5.

[^117]: Auction 20 Bidder Information Package at 56 (Tab B) (1998).

[^118]: *Public Coast Third Report and Order*, 13 FCC Rcd at 19875 ¶ 47.

[^119]: *See* *NTIA Channel 88 Comments* at 4-5.

[^120]: *See* Cellular Service and Other Commercial Mobile Radio
    Services in the Gulf of Mexico, *Order on Reconsideration*, WT
    Docket No. 97-112, 18 FCC Rcd 13169, 13182 ¶ 41 (2003) (rejecting
    argument that absence of discussion in bidder information package
    indicated that Commission had foreclosed the possibility of creating
    a licensing area in the Gulf of Mexico at some time in the future);
    Two Way Radio of Carolina, Inc., *Memorandum Opinion and Order*, 14
    FCC Rcd 12035, 12043 ¶ 13 (1999) (*Two Way Radio*) (rejecting the
    argument that bidder should be allowed to change its small business
    classification after the close of the auction simply because the
    bidder information package did not explicitly prohibit it); *see
    also* Melodie A. Virtue, *Letter*, 15 FCC Rcd 2824, 2824-25 (WTB
    AIAD 2000).

[^121]: Black Hills Broadcasting, L.L.C., *Order*, 14 FCC Rcd 16146,
    16148 ¶ 5 (WTB AIAD 1999).

[^122]: *Two Way Radio*, 14 FCC Rcd at 12043 ¶ 13.

[^123]: *See* *VPC Auction Procedures Public Notice*, 13 FCC Rcd at
    19448.

[^124]: *MariTEL Channel 88 Petition* at 6 n.17.

[^125]: *See* Amendment of the Commission's Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands, *Report and Order and Second
    Notice of Proposed Rule Making*, ET Docket No. 95-183, 12 FCC Rcd
    18600, 18612 ¶ 18, 18615 ¶ 25 (1997) (adopting geographic licensing
    rules and competitive bidding procedures for the 38.6-40.0 GHz band,
    while noting that the 39.5-40.0 GHz segment of the band is allocated
    on a co-primary basis to Government military systems that would be
    implemented in the future).

[^126]: MariTEL argues that the Auction 20 Bidder Information Package
    plainly indicated that the Commission intended to auction rights to
    use Channel 88B north of Line A. *See* *MariTEL Channel 88 Reply* at
    5. This does not suggest, however, that the Commission intended to
    auction *exclusive* rights to the channel in that geographic area,
    notwithstanding MariTEL's claim that, without exclusivity above Line
    A, the spectrum would be worthless to the auction winner. *MariTEL
    Channel 88 Petition* at 6; *MariTEL Channel 88 Reply* at 5.

[^127]: We note, moreover, that it is unclear that such status on
    Channel 88B above Line A would have been of significant value to
    MariTEL in light of the representations made to the Commission by
    the Embassy of Canada. Noting that under the *Above 30 MHz
    Coordination Agreement*, Canada has the right to preclude any U.S.
    assignments of Channel 88 above Line A, the Embassy states that
    Channel 88B, along with Channel 87B, has been reserved in Canada
    "for the exclusive purpose of AIS operations, by land and mobile
    stations in the maritime mobile service, and will no longer be
    available for public correspondence in Canada." Canadian Embassy
    Comments at 2-3. Even if we had granted the *MariTEL Channel 88
    Petition* in full, according MariTEL exclusive authority to operate
    on Channel 88 above Line A, subject only to Canadian coordination,
    such a victory would be of limited benefit to MariTEL if Canada
    steadfastly refuses to coordinate public correspondence operations.

[^128]: 47 C.F.R. § 2.102(c).

[^129]: 47 C.F.R. § 2.102(c), (c)(1), (c)(3). We observe that nothing in
    note US223, the *1976 NPRM* or the *1976 Report and Order* expresses
    an intention inconsistent with Section 2.102(c) in this regard.

[^130]: Accordingly, prior to initiating any new public correspondence
    operations on Channel 88B above Line A, MariTEL must file an
    individual application with the Commission, see 47 C.F.R. s
    80.371(c)(4)(ii), which the Commission will coordinate with NTIA
    through the Interdepartmental Radio Advisory Committee (IRAC) and
    with Canada through Industry Canada. MariTEL may not initiate any
    new public correspondence operations on Channel 88B above Line A
    without completing IRAC coordination.

[^131]: To date, MariTEL has not initiated coordination through the
    Commission with NTIA or Canada for authorization to use Channel 88B
    above Line A. Should MariTEL intend at some future point to provide
    public correspondence service in the areas above Line A, we do not
    anticipate that NTIA would withhold consent to such proposed MariTEL
    operations unreasonably, *i.e.*, other than to protect genuine
    Federal Government interests.

[^132]: 47 C.F.R. § 80.371(c)(3).

[^133]: We note that this request pertains to Channel 88B only in the
    geographic areas above Line A identified in note US223. In the rest
    of the country, Channel 88B is a Government frequency, and already
    has been designated for AIS use. *See Additional Frequency Public
    Notice*, 17 FCC Rcd at 10960.

[^134]: MariTEL expresses willingness to resume negotiations with the
    Coast Guard, and urges the Commission to direct the parties to
    resume good faith negotiations. MariTEL Comments at 17-19; *accord*
    Havens Reply Comments at 2-3. However, the Coast Guard and NTIA have
    expressed no similar willingness. Moreover, we believe we need to
    act now, without further delay, in order to provide the maritime
    community with certainty and stability with respect to AIS
    implementation in the United States.

[^135]: As noted, three separate public notices requested comment on
    this subject: the *AIS PN* (inviting comment generally on both the
    *MariTEL Emergency Petition* and the *NTIA Petition*); the
    *Coordinator Proposal PN* (inviting comment limited to the *MariTEL
    Frequency Coordinator Proposal*); and the *Sharing Proposal PN*
    (inviting comment limited to the *MariTEL Sharing Proposal*). In the
    interest of clarity, we will refer to comments filed by a party in
    response to the *AIS PN* simply as the party's Comments or Reply
    Comments, while comments filed in response to the *Coordinator
    Proposal PN* or *Sharing Proposal PN* will be referred to as
    Comments re Coordinator Proposal or Comments re Sharing Proposal, as
    appropriate. All three sets of comments have been incorporated into
    the record of this rulemaking proceeding. *See* Appendix A for a
    list of all of the commenters, and the acronyms or abbreviations by
    which they are referred to in the text.

[^136]: Since non-Federal Government use of Channel 88B is limited to
    that authorized by note US223, *i.e*., within the specified areas
    above Line A, our proposal with respect to Channel 88B is similarly
    circumscribed. In the remainder of the country, Channel 88B is
    allocated for exclusive Federal Government use, and NTIA already has
    authorized the use of the channel for AIS. *See Additional Frequency
    Public Notice*. Thus, there is no need for the Commission to
    redesignate Channel 88B for AIS except with respect to the specified
    areas above Line A. Accordingly, references herein to Commission
    action regarding Channel 88 should be construed to refer only to the
    use of that channel in the specified areas above Line A, unless
    otherwise indicated.

[^137]: The *NTIA Petition* asks that we reallocate Channel 87B for
    exclusive AIS use nationwide, and reallocate Channel 88B for such
    use in those areas where it is within our authority, *i.e.*, in the
    areas above Line A, as NTIA already has with respect to Channel 88B
    in the rest of the country. It is unclear whether NTIA intends that
    non-AIS use of Channels 87B and 88B be prohibited throughout the
    United States, or just in the nine maritime VPCSAs, or on some other
    geographic basis. Section 80.371(c)(3) specifies that channels be
    designated for AIS use only in VPCSAs 1-9, and we are not persuaded
    on the record compiled thus far that it is essential to the
    interference-free operation of AIS that we prohibit non-AIS use of
    the channels outside VPCSAs 1-9. *See* ¶ 63, *infra*.

[^138]: Given the Commission's determination to initiate this rulemaking
    and deny the *MariTEL Emergency Petition*, we do not address
    Nauticast's argument that MariTEL does not have standing to file the
    *MariTEL Emergency Petition* because it has not provided specific
    evidence of how it will be injured by the use of Channels 87B and
    88B for AIS. *See* Nauticast Comments at 7-8. We also disagree with
    RTCM to the extent it argues that we can and should resolve this
    matter summarily because MariTEL has voluntarily terminated its VPC
    operations for business reasons, and so has no current commercial
    operations on Channel 87B to protect. *See* RTCM Comments at 2-3. As
    noted above, the Commission has granted MariTEL a two-year extension
    of its build-out deadline. *See* n.74, *supra*.

[^139]: NTIA and others have described the designation of Channels 87B
    and 88B for AIS as essential or necessary to implementation of AIS.
    *See, e.g*., *NTIA Petition* at 1; NTIA Reply Comments at 1-2;
    Lockheed Martin Comments at 4-5. We do not reach the question of
    whether the use of other channels is technically feasible because we
    believe that, even if so, the relative benefits of using Channels
    87B and 88B are great and should be given paramount weight.

[^140]: *See* *MariTEL Emergency Petition* at 10-11; *see also MariTEL
    Supplement to Emergency Petition* at 3.

[^141]: *See* *MariTEL Emergency Petition* at 10-11. MariTEL says that
    AIS operations on Channels 87B and 88B under these conditions would
    make the spectrum unusable to MariTEL even for land mobile
    operations in close proximity to AIS operations. *Id*.; s*ee also*
    MariTEL Reply Comments re Sharing Proposal at 9.

[^142]: *See* MariTEL Comments at 11; MariTEL Reply Comments at 6;
    *accord* Havens Reply Comments at 2. In addition, AMTA states that,
    whatever the merits of MariTEL's and NTIA's respective arguments
    with respect to the specific issues addressed herein, on which AMTA
    does not take a position, the Commission should take care to avoid
    taking any action that would undermine the integrity of the auction
    process. AMTA is concerned that significant post-auction changes to
    the rules governing the use of the licensed spectrum would create
    uncertainty in the auction process. *See* AMTA Reply Comments at
    2-3.

[^143]: *See* MariTEL Comments at 13-15; MariTEL Reply Comments at 6.

[^144]: *See* MariTEL Comments at 10-11; MariTEL Reply Comments at 4-5.
    MariTEL also contends that granting the *NTIA Petition* would
    violate Section 80.371(c) of the Commission's Rules as it is
    presently constituted because both channels are designated in the
    rule for coast station transmissions (and therefore may not be used
    for ship station transmissions), *see* *MariTEL Emergency Petition*
    at 7, and because the rule in any event provides only for the Coast
    Guard's use of two narrowband offset channel pairs on a duplex
    basis. *See* MariTEL Comments at 10; *accord* Tittle Reply Comments
    at 2. We agree with MariTEL that designating Channels 87B and 88B
    for AIS requires notice-and-comment rulemaking, and we have
    accordingly initiated the instant rulemaking proceeding for that
    purpose.

[^145]: *See* *MariTEL Emergency Petition* at 9. MariTEL argues that the
    *June 2002 Public Notices* violate the APA if they are construed as
    authorizing the use of Channels 87B and 88B by ship stations for AIS
    because they would alter the requirements of Section 80.371(c)
    without public notice or opportunity for comment. *MariTEL Emergency
    Petition* at 7-8. The *June 2002 Public Notices*, issued by the
    Bureau under delegated authority, clearly did not purport to amend
    Section 80.371(c), but simply apprised the maritime community, in
    accord with the MOA (and NTIA's authorization of Channel 88B for
    AIS) and without timely objection from MariTEL, that pending
    completion of a rulemaking on the subject, (a) use of shipborne AIS
    equipment designed to operate on Channels 87B and 88B was authorized
    under existing ship station licenses, and (b) the FCC Laboratory
    would coordinate with the Coast Guard in reviewing applications for
    certification of AIS equipment to ensure conformance with applicable
    international standards and requirements. *See* ¶ 17, *supra*. We
    believe MariTEL's APA challenge to the *June 2002 Public Notices* is
    both inapposite and extremely untimely, coming as it does
    approximately sixteen months after the *June 2002 Public Notices*
    were released. We believe, in any event, that the initiation of this
    notice-and-comment rulemaking ensures that a final decision on the
    spectrum to be used for AIS will be made only on the basis of a
    complete record compiled in compliance with APA procedural
    requirements, and effectively moots MariTEL's APA-based arguments
    and the responsive arguments, and we therefore see no need to
    consider whether the military exemption to APA rulemaking
    requirements, 5 U.S.C. § 553(a)(1), might apply to the *June 2002
    Public Notices,* or whether the *June 2002 Public Notices* might be
    deemed logical outgrowths of antecedent rulemaking proceedings.
    *See* Nauticast Comments at 12-13; MariTEL Reply Comments at 11-13.

[^146]: *See* *MariTEL Emergency Petition* at 9-10; MariTEL Reply
    Comments at 12-13.

[^147]: *See* MariTEL Reply Comments at 7-8. MariTEL states that the
    Commission is required to conform to international frequency
    allocations or equipment standards only when the U.S. public
    interest warrants such action. *Id*.

[^148]: *See* ¶¶ 24-29, *supra*.

[^149]: *See, e.g., United States v. Storer Broadcasting Co.*, 351 U.S.
    192, 205, 76 S. Ct. 763, 100 L. Ed. 1081 (1956); *National
    Broadcasting Co. v. United States*, 319 U.S. 190, 225, 63 S. Ct.
    997, 87 L. Ed. 1344 (1943); *Committee for Effective Cellular Rules
    v. FCC*, 53 F.3d 1309, 1319-20 (D.C. Cir. 1995); *WBEN, Inc. v.
    FCC*, 396 F.2d 601, 617-18 (2d Cir. 1968).

[^150]: *See Celtronix Telemetry, Inc. v. FCC*, 272 F. 3d 585, 589 (D.C.
    Cir. 2002), *cert. denied*, 536 U.S. 923, 122 S. Ct. 2589, 153 L.
    Ed. 2d 778.

[^151]: 47 U.S.C. § 309(j)(6)(c), (j)(6)(D).

[^152]: MariTEL argues that too many questions remain about NTIA's
    proposal to justify the immediate adoption of a final rule
    designating Channels 87B and 88B for AIS. *See* MariTEL Comments at
    17-19. We believe our decision to initiate this Notice of Proposed
    Rule Making and augment the record on this matter before taking
    final action effectively moots this argument. We also believe that
    we need not give further attention to MariTEL's argument that the
    Commission should not amend its Rules to conform with international
    standards unless to do so would serve United States interests. We
    clarify that our aim in this proceeding is to reach a resolution
    that will best advance the domestic public interest. (In addition,
    we find MariTEL's apparent argument that the Commission cannot at
    this juncture adopt a rule that accords with international standards
    simply because it did not do so initially in adopting Section
    80.371(c)(3) to be without merit. *See* MariTEL Reply Comments re
    Sharing Proposal at 5, 8, 14.)

[^153]: *See* *NTIA Petition* at 3. We note that the Coast Guard asserts
    that it was clear to both parties when they negotiated the MOA that
    the selection of Channels 87A/B referred to 25 kHz channels S*ee*
    USCG Reply Comments at 2. (The USCG Reply Comments were submitted to
    NTIA and then submitted to the Commission as an attachment to NTIA's
    Reply Comments.) We need not and do not attempt to resolve the issue
    of whether the parties to the MOA contemplated wideband or
    narrowband channels.

[^154]: *See, e.g.*, Lockheed Martin Comments at 4 (observing that the
    use of Channels 87B and 88B for AIS "is rapidly becoming the de
    facto standard throughout the world").

[^155]: *See Public Coast Third Report and Order*, 13 FCC Rcd at 19877 ¶
    48.

[^156]: *See MariTEL Construction Extension*, 18 FCC Rcd at 24670-71 ¶ 3
    ("\[MariTEL\] now believes that the advent and proliferation of
    other wireless technologies, such as cellular and personal
    communications services, has drastically reduced the market for VPC
    voice communications.").

[^157]: We address the impact of our proposals on these remaining
    incumbents *infra* at ¶ 65.

[^158]: *See* *NTIA Petition* at 2; Lockheed Martin Comments at 4-5;
    Nauticast Comments at 9; SLSMC Comments at 1; RTCM Comments at 2;
    NMEA Comments at 1.

[^159]: *See* *NTIA Petition* at 2; Nauticast Comments at 10-11.

[^160]: *See* Lockheed Martin Comments at 5; *see also* MMC Comments at
    3-4 (asserting that if the U.S. is forced to use a channel other
    than 87B for AIS, ships approaching the AIS fence will be at risk of
    collision due to less frequent updating of position and
    identification data).

[^161]: *See* RTCM Comments at 3.

[^162]: *See* Lockheed Martin Comments at 5; Nauticast Comments at 10.

[^163]: *See* *NTIA Petition* at 3-4; *see also* SLSMC Comments at 2
    (stating that MariTEL's proposal may "render unusable" the AIS
    system already deployed in the Seaway); Canadian Embassy Comments at
    3 (strongly discouraging the designation of channels other then 87B
    and 88B for AIS in the United States because of the difficulties
    which would result from using AIS frequencies in the United States
    that differ from the AIS frequencies used in Canada). NTIA points
    out that there would be similar problems in coordinating with other
    nations if the United States alone uses channels other than 87B and
    88B. *NTIA Petition* at 3-4.

[^164]: *See* *NTIA Petition* at 5. Canada fully supports the *NTIA
    Petition*. *See* Canadian Embassy Comments at 3 (stating that
    "Canada strongly shares the view that the implementation of AIS on
    channels 87B and 88B is a matter of national and international
    importance with respect to ensuring the safety and security of ship
    movement in the Great Lakes and Saint Lawrence Seaway. Like the
    NTIA, we believe that these concerns must take precedence over any
    conflicting claims by any other stakeholders.")

[^165]: *Id.*; *see also* APA Comments re Sharing Proposal at 4.

[^166]: NTIA and supporting commenters also express great reservations
    over any regulatory scheme that would allow a private company such
    as MariTEL to dictate the use of frequencies needed for AIS, as
    might be the case if MariTEL retained a unilateral right to
    terminate any future MOA assigning frequencies for AIS. *See, e.g.,
    NTIA Petition* at 4; Nauticast Comments at 11; BoatUS Comments I at
    1.

[^167]: We also note that using channels other than Channels 87B and 88B
    could have adverse economic consequences for manufacturers and
    vessel operators. *See, e.g*., Nauticast Comments at 10-11 (claiming
    that the use of other channels would disadvantage AIS equipment
    manufacturers that developed AIS equipment to operate on Channels
    87B and 88B in reasonable reliance on the MOA and the *June 2002
    PNs*); MMC Comments at 4 (claiming that the use of other channels
    would increase the costs of the Class B AIS transceivers likely to
    be purchased by small pleasure boats since the receivers will have
    to be frequency agile, and the higher costs would act as a
    disincentive to voluntary AIS carriage).

[^168]: We note that two site-based incumbent VPC licensees have argued
    that the *NTIA Petition* should be denied or conditioned because of
    the potential interference impact on incumbent operations. ShipCom
    Comments at 3-5; Tittle Reply Comments at 2. We elsewhere ask for
    comments specifically addressing the potential impact of our
    proposal on site-based incumbent VPC licensees. *See* ¶ 65, *infra*.

[^169]: Pursuant to the express language of the *VPC Third Report and
    Order* and 47 C.F.R. § 80.371(c)(3), MariTEL was on notice that if
    negotiations to identify the narrowband AIS channel pairs failed, it
    would have to set aside narrowband channel pairs selected by the
    Commission.

[^170]: *See* "Interference Considerations of Simplex Operation 1371 AIS
    Technologies With Respect to MariTEL's Spectrum," inCode Telecom
    Group, Inc. (October 2003) (inCode Report). In addition, MariTEL has
    discussed the commercial ramifications of AIS interference in
    several *ex parte* presentations, all of which have been
    incorporated in the record of this proceeding.

[^171]: *See* "EMC Analysis of Universal Automatic Identification and
    Public Correspondence Systems in the Maritime VHF Band," Joint
    Spectrum Center, Department of Defense (February 2004) (JSC Report).

[^172]: *Id.* at 1-4, 1-5.

[^173]: *See* inCode Report at 15.

[^174]: *See* JSC Report at 1-4, 2-1 and 2-2, including appendices B and
    D.

[^175]: *See* inCode Report at 15.

[^176]: While it is not explicitly stated in the inCode Report, it is
    assumed that "Harvard phrases" refers to material in the report,
    "The Intelligibility of Interrupted Speech," Psycho-Acoustic
    Laboratory, Harvard University, Cambridge, Massachusetts, October
    22, 1949.

[^177]: We note that the measurements of interference to analog voice
    communications are of limited relevance to the present controversy
    because of MariTEL's exit from the voice market and its intention to
    provide a data-only service in the future. We nonetheless discuss
    briefly the conclusions of the two reports with respect to voice
    communications as well as data communications because they may be
    relevant to the issue of AIS interference to and from incumbent
    site-based VPC operations.

[^178]: *See* inCode Report at 18-19.

[^179]: *Id.* at 23.

[^180]: *Id*.

[^181]: *See* JSC Report at 1-4. The AS methodology incorporates
    statistical methods to determine the intelligibility of words. Each
    word is "symbolized" into a number of phoneme fragments, or
    elements.

[^182]: *Id*.

[^183]: *Id.* at 2-4, Table 2-3. This value is based on a horizontal
    antenna separation of ten feet.

[^184]: *Id*. at 3-2.

[^185]: *See* Letter dated Feb. 26, 2004 from Frederick R. Wentland,
    Associate Administrator, Office of Spectrum Management, NTIA, to
    John B. Muleta, Chief, Wireless Telecommunications Bureau, FCC at
    1-2 (*NTIA Cover Letter*).

[^186]: *Id.* at 2.

[^187]: RTCM Paper 87-99/SC117-STD (Oct. 10, 1999). We note that the
    RTCM SC 117 standard applies only to voice communications, and is
    therefore not relevant to MariTEL's proposed data offerings. We cite
    it here simply as evidence that concerns about the interference
    environment in the marine VHF bands have existed for some time, and
    to an extent warranting formal standards-setting efforts to address
    those concerns.

[^188]: *NTIA Cover Letter* at 3.

[^189]: *See* MariTEL Reply Comments re Sharing Proposal at 12. MariTEL
    claims that the "significant commercial challenges" associated with
    the employment of FEC include a roughly forty percent reduction in
    channel throughput, plus the time and expense of developing new
    maritime devices instead of being able to use commercial
    off-the-shelf devices. *Id*. at 11-12.

[^190]: *NTIA Cover Letter* at 3.

[^191]: We note that the emissions mask and out-of-band emissions
    limitations for AIS, as specified in IEC 61993-2, Section 15.1.3,
    are more stringent than those applicable to similar equipment that
    may be certified for operation under Part 80 of our Rules. For
    example, at a frequency 25 kHz removed from the center frequency of
    the emission, *i.e.*, at the center frequency of the adjacent
    channel, the IEC standard requires the emission to be attenuated 70
    dB below the carrier power. Under Part 80, in contrast, such an
    emission is only required to be attenuated 35 dB below the carrier
    power. *See* 47 C.F.R. § 80.211(f). Further, the spurious emission
    limit for AIS emissions, excluding the channel on which the
    transmitter is operating and its adjacent channels, is -36 dBm. The
    corresponding limit for non-AIS Part 80 equipment is 43 + 10 log
    (p), or -13 dBm for emissions removed from the center frequency by
    more than 62.5 kHz. *Id*. Therefore, the emissions profile for AIS
    devices is significantly more stringent than the emissions profile
    for devices typically authorized under Part 80, including devices
    used for public correspondence. Notwithstanding the interference
    issues related to ship transmission on the "B" side, we believe this
    point is significant.

[^192]: *Accord* Nauticast Comments at 10 (averring that Channels 87B
    and 88B will not have any significant commercial value to MariTEL in
    any event because they will be utilized for AIS in international
    waters); *see also* MMC Comments at 4.

[^193]: The "right of innocent passage" is defined in Section 3 of the
    Convention on the Territorial Sea and the Contiguous Zone, which is
    part of the 1982 United Nations Convention on the Law of the Sea.
    The right of innocent passage is accorded to ships of all States
    subject to the Convention. Under Article 18 of Section 3, passage
    means "navigation through the territorial sea \[of a coastal State\]
    for the purpose of: (a) traversing that sea without entering
    internal waters or calling at a roadstead or port facility outside
    internal waters; or (b) proceeding to or from internal waters or a
    call at such roadstead or port facility." Article 19 specifies,
    "Passage is innocent so long as it not prejudicial to the peace,
    good order or security of the coastal State." It then lists a number
    of activities that shall be considered prejudicial, including "any
    act aimed at interfering with any systems of communication or any
    other facilities or installations of the coastal state." However,
    Article 21 provides that coastal States may adopt rules and
    regulations pertaining to, *inter alia*, the safety of navigation
    and the regulation of maritime traffic, and that foreign vessels
    exercising the right of innocent passage through territorial waters
    shall comply with all such rules and regulations. We assume that,
    under current U.S. policy, the right of innocent passage could allow
    foreign vessels to use Channel 87B for AIS in U.S. waters. *See*
    United States Proposed Modifications to the Draft ITU-R Conference
    Preparatory Meeting for WRC-03, November 1, 2002, Document
    CPM02-2/08E. We ask commenters to address the extent to which the
    use of Channel 87B for AIS by foreign vessels on innocent voyage
    within U.S. waters could restrict the use of that channel for VPC
    communications.

[^194]: *See* Presidential Proclamation No. 5928, 54 Fed. Reg. 777
    (1988); 50 U.S.C. § 50.195(2).

[^195]: *See* IMO Resolution A.917(22), Annex ¶ 9; *see also* Nauticast
    Comments at 10 (stating that AIS signal range is twenty to fifty
    miles).

[^196]: The development of ITU-R M.1371-1 began in March 1998, and the
    standard was not approved until August 2001. In Annex 2 of the
    standard, Channels 87B and 88B -- which are also listed as 2087 and
    2088 respectively, the ITU number extension given for channels used
    in the wideband simplex mode -- are designated as the required
    default channels for AIS. ITU Working Party 8B (WP8B), which
    developed ITU-R M.1371-1, conducted domestic working party meetings
    in which there was an opportunity for public comment on the
    standard.

[^197]: *See* Port of New York/New Jersey Comments re Sharing Proposal
    at 1; United Sandy Hook Pilots Comments re Sharing Proposal at 1;
    Shine Micro Comments re Coordination Proposal at 2; *cf*. MMC
    Comments at 4 (arguing that the best solution would be for the FCC
    to revoke MariTEL's license for Channel 87B and offer MariTEL
    another marine mobile channel to replace it, if one is available,
    or, alternatively, "the FCC could buy back Channel 87B from MariTEL
    for current market value.")

[^198]: *See* Ingram Barge Comments re Coordination Proposal at 3-4;
    Tidewater Marine Comments re Coordination Proposal at 1.

[^199]: *See* Ingram Barge Comments re Coordination Proposal at 3-4;
    RTCM Comments re Coordination Proposal at 2-3; Shine Micro Comments
    re Coordination Proposal at 1; Nauticast Comments re Coordination
    Proposal at 4; Furuno U.S.A. Comments re Coordination Proposal at 1;
    NTIA Comments re Coordination Proposal at 2; DOT/SLSDC Comments re
    Coordination Proposal at 4-5. (The DOT/SLSDC Comments re
    Coordination Proposal were submitted to NTIA, and then submitted to
    the Commission as an attachment to NTIA's Comments re Sharing
    Proposal.)

[^200]: *See* Ingram Barge Comments re Coordination Proposal at 5; NTIA
    Comments re Coordination Proposal at 2; *see also* BoatUS Comments
    re Coordination Proposal at 1 (suggesting that if there is a need
    for a single AIS frequency coordinator, the selection of that
    coordinator should be subject to the federal bidding and procurement
    process).

[^201]: *See* Ingram Barge Comments re Coordination Proposal at 4; Task
    Force Comments re Coordination Proposal at 2.

[^202]: *See* BoatUS Comments re Coordination Proposal at 2; Sea Tow
    Comments re Coordination Proposal at 1; Task Force Comments re
    Coordination Proposal at 2; Ingram Barge Comments re Coordination
    Proposal at 4; USCG Comments re Coordination Proposal at 4. (The
    USCG Comments re Coordination Proposal were submitted to NTIA, and
    then submitted by NTIA as an attachment to NTIA's Comments re
    Coordination Proposal.)

[^203]: *See* MariTEL Reply Comments re Coordination Proposal at 10.
    MariTEL also notes that while traditional frequency coordinators may
    operate on a non-profit basis, traditional frequency coordinators,
    unlike MariTEL, are not licensees with a legitimate expectation of
    being able to profit from use of the licensed spectrum. *Id*. at 11.
    MariTEL also disputes that all frequency coordinators are
    representative of the industries they serve and provide service on a
    not-for-profit basis. *Id*. at 11-12.

[^204]: *See* Mississippi DPSC Comments re Coordination Proposal at 2-3;
    Harris Corp. Comments re Coordination Proposal at 1; *see also*
    Tittle Comments re Coordination Proposal at 2 (stating that MariTEL
    should be permitted to serve as AIS Frequency Coordinator provided
    that MariTEL makes frequency recommendations that take into account
    and protect the operations of all existing site-based VPC stations,
    and not simply protect MariTEL's stations).

[^205]: *See, e.g*., RTCM Comments re Coordination Proposal at 3
    (asserting that it is not clear how MariTEL's proposed database
    would provide the Coast Guard or the Commission with information
    that is not already available through existing MMSI databases);
    Furuno U.S.A. Comments re Coordination Proposal at 1 (arguing that
    the services MariTEL proposes to provide appear to be available
    already at far less cost than MariTEL proposes). MariTEL of course
    may provide additional clarification on this point in its comments
    to this Notice of Proposed Rule Making.

[^206]: *See* MariTEL Reply Comments re Coordination Proposal at 5-7.

[^207]: *See* Ingram Barge Comments re Coordination Proposal at 1-2,
    7-8; BoatUS Comments re Coordination Proposal at 1; Tidewater Marine
    Comments re Coordination Proposal 1; Shine Micro Comments re
    Coordination Proposal at 2; Nauticast Comments re Coordination
    Proposal at 3-4; Task Force Comments re Coordination Proposal at 2;
    Ingram Barge Reply Comments re Coordination Proposal at 3-4; USCG
    Comments re Coordination Proposal at 1-2; DOT/SLSDC Comments re
    Coordination Proposal at 6-7. (The USCG Comments re Coordination
    Proposal and the DOT/SLSDC Comments re Coordination Proposal were
    submitted to NTIA, and then submitted to the Commission as
    attachments to the NTIA Comments re Coordination Proposal.)

[^208]: *See* Task Force Comments re Coordination Proposal at 2; Ingram
    Barge Comments re Coordination Proposal at 6; Tidewater Marine
    Comments re Coordination Proposal at 1. Several commenters indicate
    that they find it particularly egregious that MariTEL proposes to
    charge fees for issuing MMSI numbers, when BoatUS and Sea Tow
    currently issue MMSIs free of charge. *See* Ingram Barge Comments re
    Coordination Proposal at 6; Shine Micro Comments re Coordination
    Proposal at 2. In addition, the Coast Guard points out that MariTEL
    intends to charge Federal Government vessels as well as private
    vessels for MMSIs that they can now acquire free of charge. USCG
    Comments re Coordination Proposal at 4. DOT/SLSDC adds that
    "\[t\]here is no justification for allowing MariTEL to charge a fee
    for an MMSI for which MariTEL has incurred no processing or
    application costs." DOT/SLSDC Comments re Coordination Proposal at
    6. In its Reply Comments, however, MariTEL clarifies that it is not
    essential to its proposal that it be the exclusive registrar of
    MMSIs. MariTEL Reply Comments re Coordination Proposal at 13.

[^209]: *See* MariTEL Comments at 5.

[^210]: *See* MariTEL Reply Comments re Coordination Proposal at 12.

[^211]: *See* Ingram Barge Reply Comments re Coordination Proposal at 2
    n.5, 5-6; BoatUS Comments re Coordination Proposal at 1-2.

[^212]: *Accord* Ingram Barge Comments re Coordination Proposal at 6.
    Commenters also point to other potential difficulties, apart from
    the need to police MariTEL's prices. For example, it is unclear how
    a failure to pay a fee would be enforced or by whom. *See, e.g.,*
    Ingram Barge Comments re Coordination Proposal at 6.

[^213]: *See* MariTEL Reply Comments re Coordination Proposal at 2-3
    (stating that MariTEL's imposition of charges for the use of
    Channels 87B and 88B and to coordinate those channels is consistent
    with its status as a CMRS provider, and if it were not allowed to
    impose such charges it would be receiving disparate treatment from
    similarly situated licensees).

[^214]: *See* BoatUS Comments re Coordination Proposal at 2; Tidewater
    Marine Comments re Coordination Proposal at 1; Shine Micro Comments
    re Coordination Proposal at 2; Nauticast Comments re Coordination
    Proposal at 4-5; Furuno U.S.A. Comments re Coordination Proposal at
    1; USCG Comments re Coordination Proposal at 4; DOT/SLSDC Comments
    re Coordination Proposal at 6; *cf.* LMRWSAC Comments re Sharing
    Proposal at 2.

[^215]: *See, e.g*., Furuno U.S.A. Comments re Coordination Proposal at
    2; SLSMC Comments re Coordination Proposal at 2.

[^216]: Although we rely primarily on the reasons explained in the text
    for tentatively rejecting MariTEL's proposal, we note that the
    record also provides additional public interest reasons to reject
    the proposal. For example, MariTEL's proposed fees would burden not
    only vessel operators but U.S. taxpayers insofar as fees would be
    assessed on shore stations established by the Coast Guard or other
    government agencies. *See* USCG Comments re Coordination Proposal at
    2. Imposing fees for AIS frequency coordination could also harm U.S.
    manufacturers of AIS equipment by reducing demand for such
    equipment. *See* Furuno U.S.A. Comments re Coordination Proposal at
    2. In addition, adding charges to the U.S. and Canadian regulatory
    charges already imposed on vessels transiting the Saint Lawrence
    Seaway could encourage vessel operators to use alternative routes or
    transportation modes. *See* DOT/SLSDC Comments re Coordination
    Proposal at 5. Finally, government agencies have expressed concerns
    about security, privacy and other issues that arise from MariTEL's
    proposal to have real-time access to AIS data and to provide vessel
    location services and database access to state and local governments
    and private entities. *See* SLSMC Comments re Coordination Proposal
    at 2-3; USCG Comments re Coordination Proposal at 4.

[^217]: Having determined tentatively not to adopt the *MariTEL
    Frequency Coordination Proposal* for reasons of policy, we will not
    at this time address, but will simply acknowledge, the comments
    questioning the Commission's legal authority to impose a requirement
    to pay fees to MariTEL, either on vessel owners generally, *see*
    BoatUS Comments re Coordination Proposal at 2, Coast Guard shore
    facilities, *see* USCG Comments re Coordination Proposal at 2, or
    foreign flagged vessels operating with AIS in United States waters,
    *see* USCG Comments re Coordination Proposal at 3; DOT/SLSDC
    Comments re Coordination Proposal at 5. In addition to these
    arguments, we note that the Coast Guard contends that MariTEL's
    proposal would impermissibly cede to MariTEL authority that should
    be exercised only by the Coast Guard with respect to coordinating
    deployment of AIS shore stations or imposing requirements on
    warships and other Federal Government vessels. *See* USCG Comments
    re Coordination Proposal at 3; *see also* NPRMC Comments re Sharing
    Proposal at 1.

[^218]: *See* MM&P I Comments re Sharing Proposal at 3 (stating that
    MariTEL's proposal does not add value to AIS).

[^219]: As noted above, ¶ 29, *supra*, Channel 88 is available for
    maritime public correspondence in only a small portion of the United
    States, and only after successful coordination with NTIA and Canada.

[^220]: *See, e.g.*, NTIA Comments re Sharing Proposal at 2-3.

[^221]: *See, e.g.*, APA Comments re Sharing Proposal at 3 (stating the
    *MariTEL Sharing Proposal* will unavoidably degrade AIS capacity);
    Nauticast Comments re Sharing Proposal at 3-4 (stating that the
    *MariTEL Sharing Proposal* is insufficiently specific to be properly
    evaluated, and that it could result in channel loading of a
    magnitude that would lower the quality of the service available to
    all users); LMRWSAC Comments re Sharing Proposal at 2 (stating that
    the *MariTEL Sharing Proposal* does not offer assurance that shared
    use of the frequencies will not result in a degradation of security
    and safety functions of AIS),

[^222]: *See* Lockheed Martin Comments re Sharing Proposal at 4.

[^223]: *See* MariTEL Reply Comments re Sharing Proposal at 13.

[^224]: *Id*.

[^225]: *Id*.

[^226]: With regard to AIS transmissions on the "shore" or "B" side of
    Channels 87 and 88, MariTEL asserts that it is impossible as a
    practical matter to filter interference from the AIS emission
    effectively enough to facilitate operation on the other VPC channels
    licensed to MariTEL. *See* MariTEL *ex parte* presentation dated
    June 30, 2004 at 4. MariTEL also contends that the only plausible
    means for other users of this spectrum to protect themselves from
    AIS interference is by designing a device that will not transmit
    during the 0.5% of the time AIS is transmitting. *See* MariTEL *ex
    parte* presentation dated May 17, 2004 at 7. We presume this
    functionality could be accomplished through different methods.
    Accordingly, we request comment on, *inter alia*, the feasibility of
    this approach, along with MariTEL's assertion that filtering AIS
    emissions is not an option.

[^227]: *See* *MariTEL Sharing Proposal* at 2.

[^228]: *See, e.g*., APA Comments re Sharing Proposal at 4; Bar Pilots
    Comments re Sharing Proposal at 2; Port of New York/New Jersey
    Comments re Sharing Proposal at 1; MM&P I Comments re Sharing
    Proposal at 2; Lockheed Martin Comments re Sharing Proposal at 3;
    Nauticast Comments re Sharing Proposal at 4; NPRMC Comments re
    Sharing Proposal at 1; USCG Comments re Sharing Proposal; United
    Sandy Hook Pilots Comments re Sharing Proposal at 1.

[^229]: *See, e.g.,* LMRWSAC Comments re Sharing Proposal at 2;Lockheed
    Martin Comments re Sharing Proposal at 3.

[^230]: MariTEL argues that the Commission did not contemplate
    public/private partnerships involving entities other than the Coast
    Guard using AIS, and that MariTEL should not be required to make its
    spectrum available for such public/private partnerships. *See*
    MariTEL Reply Comments re Sharing Proposal at 5, 7-8. We believe the
    public interest is served by accommodating such cooperative
    endeavors that employ AIS information, and that this is a factor
    militating against adoption of the *MariTEL Sharing Proposal*
    because it would limit access to AIS information in a way that could
    foreclose such arrangements. In addition to facilitating widespread
    use of AIS information, public/private partnerships could reduce AIS
    implementation costs incurred by the Federal Government, as the U.S.
    Government Accountability Office discusses in a recent report to
    Congress. *See* U.S. General Accountability Office, *Maritime
    Security: Partnering Could Reduce Federal Costs and Facilitate
    Implementation of Automatic Vessel Identification System*, Report to
    the Committee of Commerce, Science, and Transportation, U.S. Senate
    (GAO-04-868 July 2004) (viewable at
    http://www.gao.gov/new.items/d04868.pdf).

[^231]: *See* Bar Pilots Comments re Sharing Proposal at 2-4; LMRWSAC
    Comments re Sharing Proposal at 2; Coast Guard Comments re Sharing
    Proposal at 2. The Coast Guard observes that MariTEL's proposal
    potentially could not only end beneficial cooperative arrangements
    between the Coast Guard and various port authorities, but also
    arrangements between the Coast Guard and other federal agencies,
    such as NOAA. *See* Coast Guard Comments re Sharing Proposal at 2.

[^232]: *See* COLRIP Comments re Sharing Proposal at 1-2; Tampa Comments
    re Sharing Proposal at 2; Corps of Engineers -- Detroit Comments re
    Sharing Proposal at 1; LMRWSAC Comments re Sharing Proposal at 1;
    *accord* TBHSC Comments at 1. AWO asserts that limiting use of
    Channels 87B and 88B to support just VTS operations and homeland
    security surveillance applications would "effectively render AIS
    unusable as a navigation tool." AWO Comments re Sharing Proposal at
    1.

[^233]: USGSC Comments re Sharing Proposal at 1.

[^234]: *See* Tampa Comments re Sharing Proposal at 2; Lockheed Martin
    Comments re Sharing Proposal at 3.

[^235]: *See* Lockheed Martin Comments re Sharing Proposal at 3-4.

[^236]: *See* LCA Comments re Sharing Proposal at 1; *see also* MM&P I
    Comments re Sharing Proposal at 2-3; Nauticast Comments re Sharing
    Proposal at 5.

[^237]: We therefore do not need to reach the question of whether the
    Commission has legal authority under Section 705 of the Act to
    impose the restrictions on access to AIS information requested by
    MariTEL. We note that the commenters addressing this issue contend
    that Section 705 does not authorize such restrictions because
    MariTEL can make no legitimate claim to a proprietary interest in
    the AIS data. *See* Bar Pilots Comments re Sharing Proposal at 3
    (stating that MariTEL does not own the data, and Section 705 is
    therefore inapplicable); Port of New York/New Jersey Comments re
    Sharing Proposal at 1 (observing that MariTEL has not revealed the
    amount of the royalty it intends to pay to vessels supplying AIS
    information that MariTEL wants to disseminate for a price); Lockheed
    Martin Comments re Sharing Proposal at 4 (arguing that MariTEL is
    essentially attempting to collect fees for AIS data that would
    otherwise be in the public domain by virtue of the broadcast nature
    of AIS).

[^238]: *See GMDSS Second Report and Order*, 19 FCC Rcd at 3179-81 ¶¶
    64-67. In addition, we note that MariTEL may seek reconsideration of
    the AIS equipment standards promulgated in the *GMDSS Second Report
    and Order*, and our determination here not to propose adoption of
    the *MariTEL Sharing Proposal* is not intended to prejudge any such
    petition for reconsideration.

[^239]: *Accord* COLRIP Comments re Sharing Proposal at 2; Nauticast
    Comments re Sharing Proposal at 6.

[^240]: *See* PVA Comments re Sharing Proposal at 2-4.

[^241]: *See, e.g*., LMRWSAC Comments re Sharing Proposal at 2; MM&P I
    Comments re Sharing Proposal at 3; Nauticast Comments re Sharing
    Proposal at 5, 7.

[^242]: *See* Letter dated Feb. 12, 2004 from Dan Smith, President and
    CEO, MariTEL, to Catherine W. Seidel, Deputy Chief, Wireless
    Telecommunication Bureau, FCC (*Feb. 12 Letter*).

[^243]: *Id*. at 1.

[^244]: *Id*. at Exhibit A.

[^245]: We will incorporate the *Feb. 12 Letter*, as well as all of the
    other pleadings and *ex parte* presentations filed in response to
    the Bureau's three Public Notices, in the record of this rulemaking.
    MM&P has submitted a critique of the *Feb. 12 Letter*. *See* MM&P
    Reply Comments re Sharing Proposal at 2.

[^246]: We note that Appendix 18 of the ITU *Radio Regulations*
    designates the frequency 161.975 MHz as Channel AIS 1 and the
    frequency 162.025 MHz as Channel AIS 2 in listing the transmitting
    frequencies in the maritime mobile band. Although we have generally
    referred to those frequencies herein as Channels 87B and 88B, we
    propose to use the AIS 1 and AIS 2 channel designators in our Rules,
    in keeping with the international practice, if we designate those
    channels for exclusive AIS use in the United States.

[^247]: *See* MariTEL Comments at 18.

[^248]: *See Public Coast Third Report and Order*, 13 FCC Rcd at
    19875-76 ¶ 48.

[^249]: *See* 47 C.F.R. § 80.371(c)(1)(ii).

[^250]: Channel 88 is not available to inland VPCSA licensees, even
    above Line A, because those VPCSAs do not encompass any of the areas
    identified in note US223. *See* 47 C.F.R. § 80.57; Auction No. 20
    Bidder Information Package Erratum (1998) at 3.

[^251]: *E.g.*, Idaho (VPCSA 7) or Vermont (VPCSA 1).

[^252]: MariTEL Comments at 19.

[^253]: We note in this context that ShipCom argues that the *NTIA
    Petition* fails to provide sufficient detail about NTIA's proposal.
    *See* ShipCom Comments at 4-5. Commenters may identify any aspects
    of our proposal that they believe to be in need of clarification.

[^254]: *See* Appendix D for a list of these incumbent site-based
    licenses. As shown in Appendix D, there are also a few private land
    mobile radio licensees operating on Channel 87B within one of the
    maritime VPCSAs licensed pursuant to former Section 90.283 of the
    Commission's Rules, 47 C.F.R. § 90.283 (1997).

[^255]: *See* ShipCom Comments at 3-5; Tittle Reply Comments at 2.
    Havens, a licensee of inland VPCSAs, also argues that the *NTIA
    Petition* should be denied, and contends that the Commission should
    instead direct NTIA to enter negotiations to reach a mutually
    acceptable solution with VPC licensees. Havens Reply Comments at
    2-3.

[^256]: *See* ShipCom Comments at 3.

[^257]: *Id*. at 3-4. ShipCom suggests that compensation to ShipCom
    (and, presumably, similarly situated incumbent site-based licensees)
    could include cash, grandfathering protection, or replacement
    spectrum. *Id*. at 5. See also Havens Reply Comments at 2.

[^258]: Tittle Reply Comments at 2. In addition to the stations listed
    above, ULS lists twelve adjacent channel site-based incumbent VPC
    stations.

[^259]: *See* 47 C.F.R. § 80.773(a).

[^260]: 47 U.S.C. § 316.

[^261]: Because the Commission has forborne from Section 214 regulation
    of domestic CMRS carriers, it is possible that a licensee has
    discontinued service, but not turned in its license. *See*
    Implementation of Sections 3(n) and 332 of the Communications Act --
    Regulatory Treatment of Mobile Services, *Second Report and Order*,
    GN Docket No. 93-252, 9 FCC Rcd 1411, 1480-81 ¶ 182 (1994). Any such
    licensee should, however, have notified the Coast Guard if it was
    discontinuing a safety watch. 47 C.F.R. § 80.302(a).

[^262]: 47 C.F.R. § 80.371(c).

[^263]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206(a).

[^264]: 5 U.S.C. § 603.

[^265]: *Id*. § 603(a).

[^266]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    *Report and Order,* GC Docket No. 97-113, 13 FCC Rcd 11322 (1998).

[^267]: We note that some comments filed in this proceeding were filed
    late or otherwise did not comply with the Commission's pleading
    requirements. Given that we are initiating a Notice of Proposed Rule
    Making, we will incorporate all of the comments filed thus far into
    the record of the rulemaking proceeding in the interest of compiling
    as complete a record as possible, and because to do so will not
    prejudice any party. However, we remind interested parties in this
    proceeding that we reserve discretion to not accept comments that
    are filed late without a supported request for a waiver or motion to
    accept late-filed comments, or are otherwise filed incorrectly.

[^268]: We received two separate comments from BoatUS in response to the
    *AIS Public Notice*: a letter, undated, from Michael G. Sciulla,
    Vice President, Government and Public Affairs, referred to as BoatUS
    I for citation purposes, and a letter, dated December 1, 2003, from
    Elaine Dickinson, Asst. Vice President, referred to as BoatUS II for
    citation purposes.

[^269]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857
    (1996).

[^270]: *Id*. § 603(a).

[^271]: *See id*.

[^272]: These developments include the termination of the Memorandum of
    Agreement between the U.S. Coast Guard and MariTEL, Inc. regarding
    the set-aside of channels for AIS, and the various petitions and
    pleadings filed by NTIA and MariTEL following the termination. *See*
    ¶¶ 16-23, *supra*.

[^273]: 5 U.S.C. § 603(b)(3).

[^274]: 5 U.S.C. § 601(6).

[^275]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    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." 5 U.S.C. § 601(3).

[^276]: Small Business Act, 15 U.S.C. § 632 (1996).

[^277]: 13 CFR § 121.201, NAICS code 517212 (2002).

[^278]: Amendment of the Commission's Rules Concerning Maritime
    Communications, *Third Report and Order and Memorandum Opinion and
    Order*, 13 FCC Rcd 19853 (1998).

[^279]: *See* 5 U.S.C. § 603(c)(1)-(c)(4).

[^280]: *See* ¶¶ 41-50, *supra*.