**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

Amendments to Parts 1, 2 and 101 )

of the Commission\'s Rules )

To License Fixed Services ) WT Docket No. 99-327

at 24 GHz )

**NOTICE OF PROPOSED RULEMAKING**

Adopted: November 4, 1999 Released: November 10, 1999

By the Commission:

**Comment Due Date: December 10, 1999**

**Reply Comment Due Date: December 27, 1999**

**TABLE OF CONTENTS**

Paragraph

I. INTRODUCTION 1

II\. DISCUSSION 2

A.
Background...................................................................................................2

B. Licensing Plan for 24 GHz Services 6

1\. Table of Allocations 6

2\. Geographic Area-Wide Licensing 9

3\. Treatment of Incumbents 11

4\. Authorized 24 GHz Services 13

5\. Spectrum Blocks 16

C. Application, Licensing, and Processing Rules 18

1\. Regulatory Status 18

2\. Eligibility 20

3\. Foreign Ownership Restrictions 23

4\. Aggregation, Disaggregation and Partitioning 26

5\. License Term and Renewal Expectancy 29

D. Operating Rules 32

1\. Performance Requirements 32

2\. Application of Title II Requirements to Common Carriers 35

E. Technical Rules 36

1\. Licensing and Coordination of 24 GHz Stations 38

2\. RF Safety 41

F. Competitive Bidding Procedures 43

1\. Statutory Requirements 43

2\. Incorporation by Reference of Part 1 Standardized Auction Rules 46

3\. Provisions for Designated Entities 47

III\. PROCEDURAL
MATTERS.................................................................................\...52

A. Initial Regulatory Flexibility Analysis . 52

B. Paperwork Reduction Analysis 54

C. Ex Parte Presentations 55

D. Comment Dates 58

E. Further Information 60

IV\. ORDERING CLAUSES 61

Appendix A --- Initial Regulatory Flexibility Analysis

Appendix B --- Proposed Rules

**I. INTRODUCTION**

1\. In this Notice of Proposed Rulemaking (Notice), we propose licensing
and service rules to govern the 24 GHz band generally. Specifically, in
this Notice:

· We propose that future licensees in the 24 GHz band, as well as
licensees relocated to the 24 GHz band from the 18 GHz band, will be
generally subject to Part 101 of the Commission\'s Rules, as modified to
reflect the particular characteristics and circumstances of this band.

· We also propose to apply competitive bidding procedures under the
Commission\'s

Part 1 competitive bidding rules for future licensing in the band.

We solicit comment on these and the various other proposals set out in
this Notice, as well as Appendix B.

II. **DISCUSSION**

```{=html}
<!-- -->
```
A.  **Background**

2\. In 1983, the Commission adopted rules for Digital Electronic Message
Service ("DEMS"), which was envisioned as a high-speed, two-way,
point-to-multipoint terrestrial microwave transmission system.[^1] The
service was allocated spectrum in the 18.36-18.46 GHz band paired with
the 18.94-19.04 GHz band. Subsequently, the Commission modified the
initial DEMS allocation, instead designating spectrum in the 18.82-18.92
GHz and 19.16-19.26 GHz bands.[^2] The Commission began to grant DEMS
licenses in the early 1980\'s, but the service was not initially
commercially successful. Frequently, licensees had to return their
licenses because they had not met construction requirements. The high
cost of equipment appears to have been one of the many issues involved
in the service\'s lack of early success. In the early 1990s, a small
number of companies, including Associated Communications, L.L.C.,
Digital Services Corporation, Microwave Services, Inc., and Firstmark
Communications, Inc., began acquiring licenses in approximately 30 of
the country\'s largest markets.[^3]

3\. In January 1997, and again in March 1997, the National
Telecommunications and Information Administration ("NTIA"), on behalf of
the United States Department of Defense ("DoD"), formally requested that
the Commission take action to protect military satellite system
operations in the 18 GHz band.[^4] NTIA stated that DEMS use of
frequencies in the 17.8-20.2 GHz bands within 40 kilometers of existing
Government Fixed-Satellite Service ("FSS") earth stations \"will not be
possible.\" As a result, NTIA asked the Commission to protect those
government satellite earth stations operating in the 18 GHz band in
Washington, D.C. and Denver, and \"\[e\]xpeditiously undertake any other
necessary actions, such as amending the Commission\'s rules and
modifying Commission issued licenses.\" Specifically, in its January
1997 letter,[^5] NTIA stated:

> We are asking that these actions be undertaken on an expedited basis.
> As we have previously indicated, this matter involves military
> functions, as well as specific sensitive national security interests
> of the United States. These actions are essential to fulfill
> requirements for Government space systems to perform satisfactorily.

The Commission is permitted to amend its Rules without complying with
the notice provisions of the Administrative Procedure Act (APA) in cases
involving any \"military, naval of \[sic\] foreign affairs function of
the United States\" or where the agency for good cause finds \"notice
and public procedure\... are impracticable, unnecessary, or contrary to
the public interest.\"[^6] To protect the two government earth stations
from interference, NTIA proposed to make 400 MHz of spectrum available
in the 24 GHz band so that the Commission could relocate DEMS licensees.
Recognizing the Commission\'s objective of maintaining DEMS on a
uniform, nationwide frequency band, NTIA stated that \"\[t\]aking into
account our common interests, \[NTIA\] could make available spectrum in
the region of 24.25-24.65 GHz\" and suggested that \"the Commission take
such steps as may be necessary to license DEMS stations in this spectrum
. . .\"[^7]

4\. For its part, the Commission had before it sharing issues between 18
GHz non-Government satellite services and DEMS.[^8] In July 1996, the
Commission designated 500 MHz of spectrum in the 18.8-19.3 GHz band for
non-geostationary satellite orbit, fixed satellite service (NGSO/FSS)
downlinks to help meet increasing demand for spectrum for this
service.[^9] Initially, it appeared that sharing between NGSO/FSS and
DEMS would be possible. However, subsequent to that allocation, the
Teledesic Corporation, the only applicant for an NGSO/FSS system in the
18 GHz band, indicated that coordination between the two services might
present difficulties.

5\. Finally, on March 5, 1997, NTIA reiterated its request for
protection of government systems, using the 18 GHz band and further
discussed the issues regarding use of that spectrum.[^10] NTIA stated
again that it had \"determined that both existing and anticipated FCC
licensees could cause interference problems to the Federal Government
use of the 18 GHz band.\" Consequently, NTIA offered to withdraw
government co-primary allocations for radionavigation[^11] service in
the 24.25-24.45 and 25.05-25.25 GHz bands to clear the way for DEMS
relocation. Accordingly, in the *Reallocation Order*,[^12] adopted on
March 14, 1997, the Commission amended the Table of Frequency
Allocations and Part 101 of the Commission\'s Rules[^13] regarding Fixed
Microwave Services to permit fixed service use of the 24.25-24.45 GHz
and 25.05-25.25 GHz bands (24 GHz band). This also had the practical
effect of resolving potential interference concerns between
non-Government NGSO/FSS and DEMS operations at 18 GHz.

**B. Licensing Plan for 24 GHz Services**

**1. Table of Allocations**

6.  In the *Reallocation Order*,[^14] the Commission amended the Table
of Allocations in Part 2 of the Commission\'s Rules[^15] to add the
fixed service on a primary basis in the 24 GHz band, and the Commission
recognized the deletion of radionavigation by the government from its
portion of the 24 GHz band.[^16] One issue we intend to examine in this
rulemaking is whether the Table of Allocations should be amended further
to facilitate other possible uses of spectrum in the 24 GHz band. We
have focused our initial review on the issue of whether mobile service
should be added to the Table of Allocations for the 24 GHz band. Based
on the information currently available, it appears that, in the near
term, equipment may not be available for mobile use in the 24 GHz band.
Licensees at 18 GHz are limited to fixed service, and no one has
requested the opportunity to provide mobile service at 24 GHz. If,
contrary to our assumption, equipment is available for mobile use in
this band, and interference problems can be resolved, we know of no
reason why we would not allow mobile operations. We believe this would
be consistent with our goal of providing 24 GHz licensees with
flexibility in designing their systems. We seek comment on whether the
Commission should include an allocation in the 24 GHz band for mobile
service.

7\. In response to a Petition filed by DirecTV, the Commission proposed
to amend the Commission\'s Table of Allocations and rules to provide,
among other things, for the use of the 24.75-25.25 GHz band for
Broadcasting Satellite Service (BSS) Earth-to-space \"feeder links\" in
the FSS.[^17] Current 24 GHz licensees contend that the Commission would
have to prohibit 24 GHz BSS feeder link sites within 300 miles of the
boundaries of each 24 GHz service area, a requirement that would be too
impractical and inefficient to be consistent with the public
interest.[^18] On the other hand, DirecTV takes the position that it is
possible for BSS feeder links and 24 GHz nodal stations, which are the
central or controlling station in a radio system operating on
point-to-multipoint frequencies, in the 25.05-25.25 GHz band to share
spectrum on a co-frequency basis at distances in the range of 0.2
miles.[^19] Because BSS feeder link stations need not be ubiquitously
employed and can be located outside population centers, we believe
sharing between these services may be feasible. In the *18 GHz Band
Plan* proceeding, the Commission noted that the corresponding downlink
BSS allocation in the 17.3-17.8 GHz band cannot become effective until
after April 1, 2007; and thus there is no immediate need to implement
the FSS allocation in the 25.05- 25.25 GHz band. Delaying the FSS
allocation would allow sufficient time for a detailed sharing
methodology to be formulated between terrestrial fixed service interests
and satellite interests.[^20] In light of the foregoing, we tentatively
conclude, based on preliminary review of the petition and comments filed
regarding such FSS use of this band, that the criteria need not be as
severe and restrictive as that put forth by the current 24 GHz
licensees, and that a more workable solution can be developed. We
solicit comment on the interaction between these two services.

8\. We propose to revise the Table of Frequency Allocations in Part 2 of
our rules[^21] to delete the non-Government radionavigation service
allocations in the 24.25-24.45 GHz and 25.05-25.25 GHz bands, which is
consistent with previous Government action taken with respect to these
bands. The Commission has not issued any licenses for the use of these
bands by the radionavigation service, and we do not anticipate any
demand for this service in these bands. Further, we also propose to
delete footnote US341 from the Table of Frequency Allocations because
the Federal Aviation Administration has decommissioned its remaining
radar facility at the Newark, New Jersey International Airport and thus,
concluded its operations in the 24.25-24.45 GHz band.[^22] In light of
the foregoing, we propose to amend the frequency table in the aviation
service rules, specifically Section 87.173(b), by changing the entry for
24.25-25.45 GHz to 24.45-25.05 GHz, which would remain available for use
by the aeronautical radionavigation service.[^23]

**2. Geographic Area-Wide Licensing**

9.  We propose to license the 24 GHz band spectrum on the basis of 172
Economic Areas (EAs), which were developed by the Department of
Commerce\'s Bureau of Economic Analysis (BEA),[^24] because we believe
this licensing scheme would best serve the public interest in
facilitating efficient use of this spectrum. We seek comment on this
proposal. We tentatively conclude that using EAs for 24 GHz licenses in
connection with our proposed partitioning and disaggregation rules
discussed below,[^25] will create reasonable opportunities for the
dissemination of 24 GHz licenses among a large number of entities.[^26]
[^27] We also tentatively conclude that using EAs for 24 GHz licenses
will facilitate service to rural areas.[^28] Specifically, because EAs
typically contain both urban and rural areas, licensees will have both
the legal authority to provide service in both areas and the financial
incentive to do so in order to earn a return on their investment in
their licenses. In contrast, the Standard Metropolitan Statistical Areas
("SMSA") which were originally used to license DEMS service did not
include rural areas, and thus, rural areas were not provided the
service. Further, the relatively small size of EAs will allow for a more
rapid build-out than might be the case in a larger geographic area. In
addition, to give licensees maximum flexibility, we tentatively conclude
that licensees will be permitted to aggregate licenses in order to
operate in larger geographic areas. We seek comment on these tentative
conclusions. Because the Commission used SMSAs to license those that
were originally relocated from 18 GHz to 24 GHz, we propose to exclude
from the applicable EAs, the areas currently licensed in the 24 GHz
band, and to add as three additional areas for licensing the United
States territories and possessions over which we have jurisdiction: Guam
and the Commonwealth of Northern Marianas (EA 173), Puerto Rico and the
U.S. Virgin Islands (EA 174), and American Samoa (EA 175).[^29] We seek
comment on these proposals.

10.  We also request comment on alternative geographic areas, including
nationwide licenses, and licenses based upon Metropolitan and Rural
Service Areas (MSAs and RSAs),[^30] Regional Economic Area Groupings
(REAGs), Major Economic Areas (MEAs) or other relevant geographic areas.
Commenters supporting alternative geographic areas should specify which
areas they support and explain in detail why those alternatives would be
superior to the use of EAs for 24 GHz licensing areas.

3.  **Treatment of Incumbents**

11.   As the Commission discussed in the *Reallocation Order*,[^31]
incumbent licensees would begin to transfer their operations to
frequencies in the 24 GHz band over a period of time commencing with the
effective date, June 24, 1997, of the Order which modified the
licenses.[^32] After the transfer of operations by an incumbent licensee
to the 24 GHz band, such licensee generally shall be governed by Part
101 of the Commission\'s rules.[^33] Under those rules, transferred
licensees are generally subject to the same rules as applied to
operations in the 18 GHz band.

12\. By this *Notice*, we propose to make licensees subject to any
changes we make in this proceeding to the Part 101 rules that are
generally applicable to the 24 GHz band, including interference
criteria. Therefore, it is our tentative view that no special rules for
protection of incumbents alone are necessary, any more than special
protections would be required if additional providers were licensed in
the 18 GHz band. We believe that the protection requirements of Part
101.509 will accommodate the new stations and allow licensees to
effectively coordinate their systems. To the extent that any incumbent
licensee wishes to use additional frequencies at 24 GHz or to extend its
currently authorized service area,[^34] then such licensee may apply for
such a license or licenses subject to the Commission's competitive
bidding and other assignment procedures available. Any incumbent
licensee may also acquire additional frequencies in the 24 GHz band
through the partitioning and disaggregation procedures proposed in
Section II.C.4, *infra*.[^35] We seek comment on these proposals.

**4. Authorized 24 GHz Services**

13\. In the *Reallocation Order*, we adopted fixed service in this band
as the only authorized use under the Commission\'s Table of Frequency
Allocations. In keeping with this allocation, we propose to permit any
24 GHz licensee to use spectrum in the band for any fixed service. In
addition, as discussed in Section II.B.1, *supra*, we seek comment on
whether we should permit the use of this band for mobile services,
should it become technically feasible to do so. While we propose general
"fixed" use for this spectrum, we do not know precisely the types of
services new licensees will seek to provide. We therefore propose rules
that will enable licensees to offer a wide variety of services and that
will minimize regulatory barriers and costs of operation. It is our
tentative view that the proposals we are making regarding licensed
services areas,[^36] spectrum blocks,[^37] and partitioning and
disaggregation[^38] will provide both incumbent and new licensees with a
wide variety of options for using 24 GHz spectrum to meet market
demands.

14\. We note that Section 303(y) of the Communications Act grants the
Commission "authority to allocate electromagnetic spectrum so as to
provide flexibility of use," if \"such use is consistent with
international agreements to which the United States is a party\"[^39]
and if the Commission makes certain findings.[^40] We have not proposed
to allocate this spectrum to multiple categories of service listed in
the Table of Allocations, but rather have allocated spectrum only to the
Fixed Service. However, in this service rule proceeding, we are seeking
comment on whether to expand or revise our earlier approach. We seek
comment on the findings required by Section 303(y) of the Act and
whether Section 303(y) applies here.

15\.  We propose to modify Part 101 of the Commission\'s rules to
include the entire range of digital services to be provided at 24 GHz,
so that the use of the 24 GHz band by new and relocated licensees[^41]
in the 24 GHz band shall be subject to those rules.[^42] We also propose
to modify Part 101 of the Commission\'s rules to the extent necessary to
reflect the particular characteristics and circumstances of the services
to be offered. We seek comment on this general approach. We discuss
several specific issues in this *Notice*, but also request comment on
any other changes in the existing Part 101 rules that might be useful or
necessary for the 24 GHz band. We believe that making this spectrum
available for use under these rules is in the public interest because it
will contribute to technological and service innovation and, more robust
competition in the telecommunications service markets.

**5. Spectrum Blocks**

16\. In the *Reallocation Order,* the Commission decided to license
relocated operations in 40 megahertz channel pairs.[^43] We propose that
the same amount of spectrum be provided to each new 24 GHz licensee as
is provided under the rules for the relocated licensees adopted in the
*Reallocation Order*. In the *Reallocation Order*, the Commission
discussed the basis for its conclusion that DEMS licensees need 40
megahertz channel pairs at 24 GHz for their capacity to be equivalent to
the capacity they have at 18 GHz. We found that differences in
propagation, rain attenuation, and available equipment between the two
bands would require DEMS systems at 24 GHz to use approximately four
times as much bandwidth as DEMs systems at 18 GHz to maintain comparable
reliability and coverage.[^44] While this analysis would not necessarily
apply to non-DEMS use at 24 GHz, we believe that 40 megahertz paired
blocks would be efficient for such use. Thus, we propose that we license
five spectrum blocks, except in the SMSAs where there are incumbent
licensees. Each spectrum block shall consist of a pair of 40 megahertz
channels. We also propose to modify the emission mask in Section 101.111
to accommodate the changes in spectrum and bandwidth.[^45] We seek
comment on these proposals.

17\. We tentatively conclude that the use of EAs, described in Section
II.B.2, *supra,* as well as the partitioning and spectrum
disaggregation, described in Section II.C.4, *infra,* will result in
economic opportunity for a wide variety of applicants, including small
business, rural telephone, and minority-owned and women-owned
applicants, as required by Section 309(j)(4)(C). These proposals, we
tentatively conclude, will lower entry barriers through the creation of
licenses for smaller geographic areas, thus requiring less capital and
facilitating greater participation by such entities.

**C. Application, Licensing, and Processing Rules**

**1. Regulatory Status**

18\.  In this Notice, we are proposing a broad licensing framework for
implementing services in the 24 GHz spectrum band. Under our proposal, a
24 GHz licensee would be allowed to provide a variety or combination of
fixed services.[^46] In order to fulfill its enforcement obligations and
ensure compliance with the statutory requirements of Titles II and III
of the Communications Act, the Commission has required applicants to
identify whether they seek to provide common carrier services.

19\. In the *LMDS Second Report and Order,* the Commission required
applicants for fixed services to indicate if they planned to offer
services as a common carrier, a non-common carrier, or both, and to
notify the Commission of any changes in status without prior
authorization.[^47] We seek comment on a similar proposal to permit an
applicant for a 24 GHz license to request common carrier status as well
as non-common carrier status for authorization in a single license,
rather than require the applicant to choose between common carrier and
non-common carrier services, and to change regulatory status upon
notification without prior approval. The licensee would be able to
provide all allowable services anywhere within its licensed area at any
time, consistent with its regulatory status. This approach, we
tentatively conclude, would achieve efficiencies in the licensing and
administrative process. This is consistent with our approach with
respect to Multipoint Distribution Service ("MDS") and the Local
Multipoint Distribution Service ("LMDS").[^48] Apart from the
designation of regulatory status, we propose not to require 24 GHz
license applicants to describe the services they seek to provide. We
believe it is sufficient that an applicant indicate its choice for
regulatory status in a streamlined application process.[^49] In
providing guidance on this issue to MDS and LMDS applicants, we pointed
out that an election to provide service on a common carrier basis
requires that the elements of common carriage be present;[^50]
otherwise, the applicant must choose non-common carrier status.[^51]
Accordingly, a determination of regulatory status will be based on the
service actually provided, rather than the service proposed. We also
propose that if licensees change the service they offer such that it
would change their regulatory status, they must notify the Commission,
although such change would not require prior Commission authorization.
We propose that licensees notify the Commission within 30 days of this
change, unless the change results in the discontinuance, reduction, or
impairment of the existing service, in which case the licensee is also
governed by Section 101.305 and submits the application under Section
101.61 in conformance with the time frames and requirements of Section
101.305.[^52]

**2. Eligibility**

20\. Our primary goal in the present proceeding is to encourage
efficient competition, particularly in the local exchange telephone
market. In assessing whether to restrict the opportunity of any class of
service providers to obtain and use spectrum to provide communications
services in the 24 GHz band, we seek to determine whether open
eligibility poses a significant likelihood of substantial competitive
harm in specific markets, and, if so, whether eligibility restrictions
are an effective way to address that harm.[^53] This approach relies on
competitive market forces to guide license assignment absent a showing
that regulatory intervention to exclude potential participants is
necessary.[^54] Such an approach is appropriate because it best comports
with our statutory guidance. When granting the Commission authority in
Section 309(j)(3) of the Communications Act to auction spectrum for the
licensing of wireless services, Congress acknowledged our authority \"to
\[specify\] eligibility and other characteristics of such
licenses.\"[^55] However, Congress specifically directed that we
exercise that authority so as to \"promot\[e\] . . . economic
opportunity and competition.\"[^56] Congress also emphasized this
pro-competitive policy in Section 257, where it articulated a \"national
policy\" in favor of \"vigorous economic competition\" and the
elimination of barriers to market entry by a new generation of
telecommunications providers.[^57]

21\. Current providers in the 24 GHz band offer a range of services such
as local and long distance telephony and internet access. We tentatively
conclude that open eligibility for 24 GHz licenses will not pose a
significant likelihood of substantial competitive harm in local exchange
telephone markets, and that it is therefore unnecessary to impose
eligibility restrictions on incumbent local exchange carriers ("ILECs").
This tentative conclusion is based on several factors. First, other
wireless providers such as LMDS[^58] and 39 GHz[^59] licensees may
provide competition in the local telephony markets. Second, other
facilities‑based, wireline entrants such as interexchange carriers and
competitive LECs, and non‑facilities‑based wireline entrants utilizing
the local competition provisions of the Communications Act, may provide
competition in these markets as well. Third, in LMDS, a fixed broadband
point-to-multipoint microwave service in the 28 GHz band, ILECs and
cable companies have been prohibited from holding an attributable
interest in any license whose geographic service area significantly
overlaps such incumbent's authorized or franchised service area.[^60]
This prohibition guaranteed that initially each one of those licenses
will be acquired by a firm new to the provision of local exchange in the
service area. These new providers have now had a significant opportunity
to enter these markets without the participation of ILECs and cable
interests. Finally, under our proposal in Section II.B.5. *supra,* we
will make available five licenses for each geographic area. This number
of licenses permits numerous 24 GHz licensees in any one market and,
thus, numerous competitors for the licenses. This scenario makes it more
difficult for an incumbent LEC to acquire all the licenses in a single
geographic area. Taken together, these factors demonstrate that an
incumbent strategy of trying to forestall competition in local telephony
by buying 24 GHz licenses cannot succeed because there are several other
sources of actual and potential competition.

> 22\. Given all these competitive possibilities, we tentatively
> conclude that it would be exceedingly difficult for an incumbent LEC
> to pursue a strategy of buying 24 GHz licenses in the hope of
> foreclosing or delaying competition, and implausible that it would
> succeed at that strategy. As noted, we seek comment on these tentative
> conclusions. We also tentatively conclude that the spectrum made
> available for 24 GHz may be inadequate to enable the provision of
> competitive multi-channel video programming distribution (MVPD)
> service, and that incumbent cable company acquisition of these
> licenses does not raise anti-competitive concerns. We base this
> conclusion in part on Teligent\'s current service offerings, which are
> generally limited to voice and data, as well as our own assessment. We
> also rely on the number of licenses (five) available in each
> geographic area to check anti-competitive conduct by cable operators.
> Nevertheless, we do note, however, that cable companies are
> increasingly offering high speed internet access, a service offering
> that Teligent is currently providing. Our concerns about
> anti-competitive behavior by cable companies is substantially
> attenuated by the existence of alternative sources of such internet
> access, including digital subscriber lines, fixed wireless
> applications, and satellite. Furthermore, the cable companies are also
> subject to the restrictions in the LMDS service, which we have noted
> herein.[^61] We, therefore, tentatively conclude that it is
> unnecessary to impose eligibility restrictions on incumbent cable
> operators

**3. Foreign Ownership Restrictions**

23\. Certain foreign ownership and citizenship requirements are imposed
in Sections 310(a) and 310(b) of the Communications Act, as modified by
the 1996 Act, that restrict the issuance of licenses to certain
applicants.[^62] The statutory provisions are implemented in Section
101.7 of the Commission\'s Rules[^63] and reflect the restrictions as
they must be imposed on 24 GHz license applicants. Specifically, Section
101.7(a) prohibits the granting of any license to be held by a foreign
government or its representative. Section 101.7(b) prohibits the
granting of any common carrier license to be held by individuals who
fail any of the four citizenship requirements listed in the rule.[^64]

24\. Based on the prohibitions set forth in Section 101.7(a), we
conclude that neither a foreign government, nor its representative can
hold a license, including either a common carrier or non-common carrier
license, to operate in the 24 GHz band. In addition, we conclude that
Section 101.7(b) prohibits any individual who fails to meet the four
citizenship requirements set forth therein from holding a license to
operate as a common carrier in the 24 GHz band.[^65] Further, any
individual who elects both common carrier and non-common carrier status
must comply with Section 101.7(b)'s four citizenship requirements. But,
since the prohibitions set forth in Section 101.7(b) do not apply to
non-common carriers, an individual may elect to hold a license, as a
non-common carrier in the 24 GHz band, without complying with the four
citizenship requirements, as long as the individual is still in
compliance with the requirements set forth in Section 101.7(a). [^66]

25.  To assist our analysis of alien ownership restrictions, we
tentatively conclude that applicants in the 24 GHz band shall file FCC
Form 430. This requirement is identical to the information which we
require MDS, satellite, and LMDS applicants to submit in order to assess
the alien ownership restrictions under Section 101.7(b). Furthermore,
both common carriers and non-common carriers would be required to file
the information whenever there are changes to the foreign ownership
information, as well as the other legal and financial qualifications. We
would not disqualify an applicant requesting authorization exclusively
to provide non-common carrier services solely because its citizenship
information reflects that it would be disqualified from a common carrier
license. However, consistent with what the Commission stated in the
*Satellite Rules Report and Order* and in the *LMDS Second Report and
Order*, we tentatively conclude that requiring non-common carriers to
address all the alien ownership prohibitions better enables the
Commission to monitor all of the licensed providers in light of their
ability to provide both common and non-common carrier services.[^67] We
request comment on this proposal.

4.  **Aggregation, Disaggregation and Partitioning**

26\. As indicated above,[^68] we propose to permit 24 GHz licensees to
partition their service areas and to aggregate and disaggregate their
spectrum. We believe that such an approach would serve to promote the
efficient use of the spectrum. We thus tentatively conclude that
partitioning and spectrum disaggregation will provide a means to
overcome entry barriers through the creation of licenses for smaller
geographic areas that require less capital, thereby facilitating greater
participation by, and economic opportunity for, smaller entities such as
small businesses, rural telephone companies, and businesses owned by
minorities and women, as required by Section 309(j)(4)(C) of the
Communications Act.[^69] We request comment on this conclusion.

27\. We also request comment regarding what limits, if any, should be
placed on the ability of a 24 GHz licensee to partition its service area
and disaggregate its spectrum. We note that in the *Partitioning and
Disaggregation Report and Order* the Commission permitted both
geographic partitioning and spectrum disaggregation by broadband PCS
licensees. In the case of broadband PCS service, the Commission decided
to permit geographic partitioning along any service area defined by the
partitioner and partitionee, and spectrum disaggregation without
restriction on the amount of spectrum to be disaggregated, and to permit
combined partitioning and disaggregation.[^70] The Commission concluded
that allowing parties to decide without restriction the exact amount of
spectrum to be disaggregated will encourage more efficient use of the
spectrum and permit the deployment of a broader mix of service
offerings, both of which will lead to a more competitive wireless
marketplace.[^71]

28\.  We request comment regarding whether such an approach should apply
to 24 GHz licenses. If commenters take the position that such an
approach should apply, they should also address what information should
be filed with the Commission to allow us to maintain our licensing
records.

**5. License Term and Renewal Expectancy**

29\.  We propose that the 24 GHz license term for both incumbent and new
licensees be 10 years, with a renewal expectancy similar to that
afforded PCS and cellular licensees. In the case of either a cellular or
PCS licensee, a renewal applicant shall receive a preference or renewal
expectancy if the applicant has provided substantial service during its
past license term and has complied with the Act and applicable
Commission rules and policies.[^72] While preferring a substantial
service requirement, we also invite comment on whether a build-out
requirement is more appropriate for this service.[^73] We believe that
this 10-year license term, combined with a renewal expectancy, will help
to provide a stable regulatory environment that will be attractive to
investors and, thereby, encourage development of this frequency band. We
also seek comment on whether a license term longer than 10 years is
appropriate to achieve these goals and better serve the public interest.
Commenters who favor a license term in excess of ten years should
specify the appropriate license term and include a basis for the period
proposed.

30\. We propose that the renewal application of a 24 GHz licensee must
include at a minimum the following showings in order to claim a renewal
expectancy:

· A description of current service in terms of geographic coverage and
population served or links installed and a description of how the
service complies with the substantial service requirement.

· Copies of any Commission Orders finding the licensee to have violated
the Communications Act or any Commission rule or policy, and a list of
any pending proceedings that relate to any matter described by the
requirements for the renewal expectancy.[^74]

· If applicable, a description of how the licensee has complied with the
build-out requirement.

These proposed requirements are based on those we ordered for LMDS.[^75]

31\. Under our proposal, in the event that a 24 GHz license is
partitioned or disaggregated, any partitionee or disaggregatee would be
authorized to hold its license for the remainder of the partitioner\'s
or disaggregator\'s original license term, and the partitionee or
disaggregatee will be required to demonstrate that it has met the
substantial service, or build-out standard, requirements in any renewal
application. We believe that this approach, which is similar to the
partitioning provisions the Commission adopted for MDS[^76] and for
current broadband PCS licensees,[^77] is appropriate because a licensee,
through partitioning or disaggregation, should not be able to confer
greater rights than it was awarded under the terms of its license grant.

**D. Operating Rules**

**1. Performance Requirements**

32\. We seek comment on whether licensees in the 24 GHz band should be
subject to a substantial service requirement or a minimum coverage
requirements as a condition of license renewal. We have imposed such
requirements on licensees in other services to ensure that spectrum is
used effectively and service is implemented promptly.[^78]

33\. We seek comment on whether 24 GHz licensees should be required to
provide "substantial service" to the geographic license area within ten
years or any other license term which we adopt for this service.[^79] We
have defined substantial service as "service which is sound, favorable,
and substantially above a level of mediocre service which just might
minimally warrant renewal.[^80] Further, as an alternative, safe harbor
standard, we seek comment on whether there should be a construction
requirement that the licensee transmit to reach a minimum of one-third
of the population in their licensed area, no later than the mid-point of
the license term and two-thirds of the population by the end of the
license term. We also seek comment on whether, in the event that a 24
GHz license is partitioned or disaggregated, a partitionee or
disaggregatee should be bound by the standard, either substantial
service or a construction requirement, which we may adopt in this
proceeding.

34\. If a licensee does not comply with whichever standard, we adopt,
either substantial service or minimum coverage, the Commission must
consider what action to take. We could adopt a standard whereby a
licensee who does not comply with the appropriate standard, either
substantial service or minimum coverage, is subject to license
termination upon action by the Commission or alternatively, the license
would automatically cancel. We seek comment on whether to adopt an
automatic cancellation standard or cancellation only upon action by the
Commission. If the geographic licensee loses its license for failure to
comply with coverage requirements, should the licensee be prohibited
from bidding on the geographic license for the same territory in the
future? Is there a sanction more appropriate than automatic
cancellation?

**2. Application of Title II Requirements to Common Carriers**

35\. We also seek comment on whether we should forbear from applying
certain obligations on common carrier licensees in the 24 GHz band
pursuant to Section 10 of the Act.[^81] In the case of commercial mobile
radio service ("CMRS") providers, the Commission concluded that it was
appropriate to forbear from Sections 203, 204, 205, 211, 212, and most
applications of Section 214.[^82] The Commission, however, declined to
forbear from enforcing other provisions, including Sections 201 and
202.[^83] The Commission has also exercised its forbearance authority in
permitting competitive access providers ("CAPS") and competitive local
exchange carriers ("CLECs") to file permissive tariffs.[^84] We seek
comment on whether it is appropriate to forbear from enforcing any
provisions of the Act or the Commission's rules in the 24 GHz band.[^85]

**E. Technical Rules**

36\. As discussed above,[^86] our general proposal is to apply the rules
in Part 101 to govern the use of the 24 GHz band, except as they may be
modified as a result of this proceeding. This would include technical
parameters such as channelization, frequency tolerance and stability,
power and emission limitations, antennas, and equipment
authorization.[^87] Also, general provisions of Part 101, such as
environmental and radio frequency (RF) safety requirements, and the
protection of quiet zones, would be applicable.

37\. The technical parameters for operations at 24 GHz were adopted in
the *Reallocation Order.* As discussed there, such parameters were
derived, for purposes of expedience, from those applied to operations at
18 GHz , and may not have been exactly suited to operations at the
higher 24 GHz band.[^88] The use of the higher frequency band is, for
example, one reason for the change in channelization. We have little
information in the record at this time, however, on which to propose
other specific changes to the Part 101 rules. New developments in fixed
technology, besides those generated by the transition to a new band, may
warrant other changes in the technical parameters.[^89] Moreover,
changes and advancements in technology may, in the future, warrant use
of this band for not only digital modulation, but also other
modulations. In that connection, it is not our intent to impose
technological requirements which may in the future restrain more
efficient and innovative use of this spectrum. Therefore, we solicit
comment regarding whether this service should be limited to digital
modulation and whether further development of service at 24 GHz will be
facilitated by technical parameters different from those that are
currently in Part 101. Regardless of the final set of technical rules
adopted in this proceeding, we propose that they all apply to all
licensees in the 24 GHz band, including licensees that acquire their
licenses through partitioning and disaggregation. But, none of the
proposed rule changes are directed at, nor intended to apply to DEMS
licensees that operate in the 10 GHz band. While it is our tentative
view that most technical issues are addressed by the current rules,
there is one specific technical issue that warrants some attention and
is therefore discussed below. We solicit comments, however, on all
technical parameters that should apply to operations at 24 GHz.

1.  **Licensing and Coordination of 24 GHz Stations**

38\. With one exception, incumbent licenses have been granted, by
waiver, on an area wide basis. However, nodal stations, which serve as
the central or controlling station in a radio system operating on
point-to-multipoint frequencies,[^90] must be specifically applied for
by licensees and authorized by the Commission.[^91] This could be viewed
as a dual licensing situation and may not be necessary or
administratively efficient.[^92] Section 101.103(d) of the Commission\'s
Rules[^93] contains guidelines for the current frequency coordination
process for Fixed Microwave Services, while Section 101.509 of the
Commission\'s Rules[^94] sets forth interference protection criteria for
24 GHz licensees. These two rule sections have similar goals: to
facilitate interference-free operations, to ensure cooperation among
licensees to minimize and resolve potential interference problems, and
to obtain the most efficient and effective use of the spectrum and
authorized facilities. The Commission intends to auction[^95] the
remaining spectrum in geographic areas and believes that licensees must
be assured a reasonable and effective use of their own areas, while
equally protecting the interests of other licensees.

39\. We tentatively conclude that a requirement to coordinate those 24
GHz nodal stations located within the boundaries of a licensed SMSA or
other geographic licensing area prior to putting them into operation
would be sufficient to achieve these goals, and we therefore propose to
replace the individual licensing of nodal stations with a coordination
requirement. Such coordination would be required with co-channel 24 GHz
licensees in adjacent geographic areas and with adjacent channel 24 GHz
licensees in adjacent geographic areas, as well as the same or
overlapping area. Based on propagational characteristics at 24 GHz, our
information on planned system configurations, the current technical
parameters and similar distances adopted in Commission proceedings
regarding other microwave bands,[^96] we tentatively conclude that the
80 km coordination distance currently specified in our rules appears to
be too large. However, we propose to have each licensee coordinate with
licensees in other relevant areas and develop agreements between
systems. Instead of specifying a fixed distance, we propose that
licensees coordinate their facilities whenever their facilities have
line-of-sight into other []{.mark}licensees' facilities or are within
the same geographic area.[^97] Under our proposal, both types of
coordination must be successfully completed before operation is
permitted. In the event that there is no 24 GHz licensee immediately
available in an adjacent, same or overlapping area, the licensee must be
prepared to coordinate its stations in the future in order to
accommodate other licensees to ensure cooperative and effective use of
the spectrum in each area. These changes are reflected in the attached
rule proposals. We solicit comment on these coordination procedures and
criteria.

40\. As noted above,[^98] international coordination is also an issue
that needs to be addressed. While no specific proposals are made at this
time, operations at 24 GHz in the United States will be subject to any
agreements reached with Canada and Mexico. We are in the process of
holding discussions with these countries to determine the types of
coordination that would be necessary.

**2. RF Safety**

41\. We propose that licensees and manufacturers be subject to the RF
radiation exposure requirements specified in Sections 1.1307(b), 2.1091,
and 2.1093 of the Commission\'s Rules,[^99] which lists the services and
devices for which an environmental evaluation must be performed.[^100]
We tentatively conclude that routine environmental evaluations for RF
exposure should be required in the case of fixed operations, including
base stations, when the effective radiated power (ERP) is greater than
1,000 watts.

42\. We propose to treat services and devices in the 24 GHz band in
accordance with the Commission\'s exposure limits in OET Bulletin 65,
which has replaced OST Bulletin No. 65.[^101]

**F. Competitive Bidding Procedures**

**1. Statutory Requirements**

43\. The Balanced Budget Act of 1997 amended Section 309(j) of the Act
to require the Commission to award mutually exclusive applications for
initial licenses or permits using competitive bidding procedures, with
very limited exceptions.[^102] Thus, if not exempted by the statute, a
service will be auctionable if we implement a licensing process that
permits the filing and acceptance of mutually exclusive applications. In
establishing particular licensing schemes or methodologies, the
Commission is required to consider the public interest objectives
described in section 309(j)(3).

44\. Pursuant to Section 309(j)(6)(E) of the Act, the Commission has an
"obligation in the public interest to continue to use engineering
solutions, negotiation, threshold qualifications, service regulations,
and other means in order to avoid mutual exclusivity in application and
licensing proceedings.\"[^103] In the Balanced Budget Act, Congress
highlighted the Commission's obligation under Section 309(j)(6)(E) by
referencing that obligation in the general auction authority provision.
The Commission recently sought comment on whether that reference changes
the scope or content of the Commission's obligation under Section
309(j)(6)(E). [^104] In determining whether to resolve mutually
exclusive applications for licenses in the 24 GHz band through
competitive bidding, we intend to adhere to any conclusions we reach in
the Balanced Budget Act proceeding regarding the scope of our auction
authority.

45\. In paragraphs 8-9, *supra,* we proposed to continue the use of a
geographic area licensing scheme for the 24 GHz band, using EAs instead
of SMSAs. Because we have tentatively concluded that it would serve the
public interest to implement a licensing scheme under which mutual
exclusivity is possible, we also tentatively conclude that mutually
exclusive initial applications for the 24 GHz band must be resolved
through competitive bidding. We seek comment on this tentative
conclusion.

[]{.mark}

**2. Incorporation by Reference of Part 1 Standardized Auction Rules**

46\. In the *Part 1 Third Report and Order*, the Commission streamlined
its auction procedures by adopting general competitive bidding rules
applicable to all auctionable services,[^105] and, in the same
proceeding, issued a *Second Further Notice of Proposed Rule Making*
concerning designated entities and attribution rules, among other
issues.[^106] We propose to conduct the auction for initial licenses in
the 24 GHz band in conformity with the general competitive bidding rules
set forth in Part 1, subpart Q of the Commission\'s rules, and
substantially consistent with the bidding procedures that have been
employed in previous Commission auctions. Specifically, we propose to
employ the Part 1 rules governing designated entities, application
issues, payment issues, competitive bidding design, procedure and timing
issues, and anti-collusion. These rules would be subject to any
modifications that the Commission adopts in relation to the *Second
Further Notice of Proposed Rule Making*. We seek comment on this
proposal and on whether any of our Part 1 rules would be inappropriate
in an auction for this service.

**3. Provisions for Designated Entities**

47\. The Communications Act provides that, in developing competitive
bidding procedures, the Commission shall consider various statutory
objectives and consider several alternative methods for achieving
them.[^107] Specifically, the statute provides that, in establishing
eligibility criteria and bidding methodologies, the Commission
shall:[^108]

promot\[e\] economic opportunity and competition and ensur\[e\] that new
and innovative technologies are readily accessible to the American
people by avoiding excessive concentration of licenses and by
disseminating licenses among a wide variety of applicants, including
small businesses, rural telephone companies, and businesses owned by
members of minority groups and women.

48\. In the *Competitive Bidding Second Memorandum Opinion and Order*,
the Commission stated that it would define eligibility requirements for
small businesses on a service-specific basis, taking into account the
capital requirements and other characteristics of each particular
service in establishing the appropriate threshold.[^109] The *Part 1
Third Report and Order*, while it standardizes many auction rules,
provides that the Commission will continue a service-by-service approach
to defining small businesses. For the 24 GHz band, we propose to adopt
the definitions the Commission adopted for broadband PCS for "small" and
"very small" businesses,[^110] which the Commission also adopted for 2.3
GHz and 39 GHz applicants.[^111] We tentatively conclude that the
capital requirements are likely to be similar to the capital
requirements in those services. Specifically, we propose to define a
small business as any firm with average annual gross revenues for the
three preceding years not in excess of \$40 million. For entities who
qualify as a small business, we propose to provide them with a bidding
credit of 15%.[^112]

49\. We observe that the capital costs of operational facilities in the
24 GHz band are likely to vary widely. Accordingly, we seek to adopt
small business size standards that afford licensees substantial
flexibility. Thus, in addition to our proposal to adopt the general
small business standard the Commission used in the case of broadband
PCS, 2.3 GHz, and 39 GHz licenses, we propose to adopt the definition
for very small businesses used for 39 GHz licenses and for the PCS C and
F block licenses: businesses with average annual gross revenues for the
three preceding years not in excess of \$15 million. For entities who
qualify as a very small business, we propose to provide them with a
bidding credit of 25%.[^113]

50\. We seek comment on the use of these standards and associated
bidding credits for applicants to be licensed in the 24 GHz band, with
particular focus on the appropriate definitions of small and very small
businesses as they relate to the size of the geographic area to be
covered and the spectrum allocated to each license. In discussing these
issues, commenters are requested to address the expected capital
requirements for services in the 24 GHz band. Commenters are invited to
use comparisons with other services for which the Commission has already
established auction procedures as a basis for their comments regarding
the appropriate definitions for small and very small businesses.

51\. We seek comment here on whether there are any actions specific to
the 24 GHz service that should be taken to insure that this service will
be provided in rural areas. Relatedly, we note that Section 309(j)
requires the Commission to "promote... economic opportunity for a wide
variety of applicants, including... rural telephone companies."[^114]
Consistent with this mandate, we seek comment on whether there are
specific measures that should be taken with respect to these entities.

**III. PROCEDURAL MATTERS**

**A. Initial Regulatory Flexibility Analysis**

52\. As required by Section 603 of the Regulatory Flexibility Act (RFA)
of 1980,[^115] the Commission has prepared an Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities of the policies and rules proposed in this *Notice*.
The IRFA is set forth in Appendix A. We request written public comment
on the IRFA. In order to fulfill the mandate of the Contract with
America Advancement Act of 1996 regarding the Final Regulatory
Flexibility Analysis, we ask a number of questions in our IRFA regarding
the prevalence of small businesses in the affected industries.

53\. Comments must be filed in accordance with the same filing deadlines
as comments filed in this rulemaking proceeding, but they must have a
separate and distinct heading designating them as responses to the
Initial Regulatory Flexibility Analysis. The Office of Public Affairs,
Reference Operations Division, shall send a copy of this Notice of
Proposed Rulemaking, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with Section 603(a) of the Regulatory
Flexibility Act.

**B. Paperwork Reduction Analysis**

54\. This *Notice* contains either a proposed or modified information
collection. As part of our continuing effort to reduce paperwork
burdens, we invite the general public and the Office of Management and
Budget (OMB) to take this opportunity to comment on the information
collections contained in this *Notice*, as required by the Paperwork
Reduction Act of 1995, Pub. L. No. 104-13. Public and agency comments
are due at the same time as other comments on this *Notice*; OMB
comments are due 60 days from the date of publication of this Notice in
the Federal Register. Comments should address:

· Whether the proposed collection of information is necessary for the
proper performance of the functions of the Commission, including whether
the information shall have practical utility.

· The accuracy of the Commission\'s burden estimates.

· Ways to enhance the quality, utility, and clarity of the information
collected.

> · Ways to minimize the burden of the collection of information on the
> respondents, including the use of automated collection techniques or
> other forms of information technology.

Written comments by the public on the proposed or modified information
collections are due December 10, 1999. Written comments must be
submitted by the OMB on the proposed or modified information collections
on or before 60 days after the date of publication in the Federal
Register. In addition to filing comments with the Secretary, a copy of
any comments on the information collections contained herein should be
submitted to Judy Boley, Federal Communications Commission, Room 1-C804,
445 12th Street, S.W., Washington, D.C. 20554, or via the Internet to
jboley@fcc.gov, and to Timothy Fain, OMB Desk Officer, 10236 New
Executive Office Building, 725 17th Street, N.W., Washington, D.C.
20503, or via the Internet to fain_t@al.eop.gov.

**C. Ex Parte Presentations**

55\. For purposes of this permit-but-disclose notice and comment
rulemaking proceeding, members of the public are advised that *ex parte*
presentations are permitted, except during the Sunshine Agenda period,
provided they are disclosed under the Commission\'s Rules.[^116]

**D. Comment Dates**

56\. 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 December 10, 1999, and reply comments on or before December 27,
1999. Comments may be filed using the Commission\'s Electronic Comment
Filing System (ECFS) or by filing paper copies.[^117] All relevant and
timely comments will be considered by the Commission before final action
is taken in this proceeding. To file formally, interested parties must
file an original and four copies of all comments, reply comments, and
supporting comments. If interested parties want each Commissioner to
receive a personal copy of their comments, they must file an original
plus nine copies. Interested parties should send comments and reply
comments to the Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, with a copy
to Howard Davenport, Wireless Telecommunications Bureau, 445 12th
Street, S.W., Washington, D.C. 20554. Parties are also encouraged to
file a copy of all pleadings on a 3.5-inch diskette in Word 97 format.

57\. 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. 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.

58\. 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
appear in the caption of this proceeding, commenters must submit two
additional copies for each additional docket or rulemaking number. All
filings must be sent to the Commission\'s Secretary, Magalie Roman
Salas, Office of the Secretary, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554.

59\. Comments and reply comments will be available for public inspection
during regular business hours in the FCC Reference Center, 445 12th
Street, S.W., Washington, D. C. 20554.

**E. Further Information**

60\.  For further information concerning this rulemaking proceeding,
contact Howard Davenport at (202) 418-0585, Wireless Telecommunications
Bureau, Federal Communications Commission, Washington, D.C. 20554.

**IV. ORDERING CLAUSES**

61\.  Accordingly, IT IS ORDERED that these actions ARE TAKEN pursuant
to Sections 1, 4(i), 7, 301, 303, 308 and 309(j) of the Communications
Act of 1934, 47 U.S.C. §§ 151, 154(i), 157, 301, 303, 308, 309(j).

62\. IT IS FURTHER ORDERED that NOTICE IS HEREBY GIVEN of the proposed
regulatory changes described above, and that comment is sought on these
proposals.

63\. IT IS FURTHER ORDERED that this *NPRM* is hereby ADOPTED.

64\. IT IS FURTHER ORDERED that the Commission's Office of Public
Affairs, Reference Operations Division, SHALL SEND a copy of this
Notice, including the Initial Regulatory Flexibility Analysis to the
Chief Counsel for Advocacy of the Small Business Administration in
accordance with Section 603(a) of the Regulatory Flexibility Act of
1980, Pub. L. No. 96-354 , 94 Stat. 1164, 5 U.S.C. §§ 601-612.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX A**

**Initial Regulatory Flexibility Analysis**

As required by Section 603 of the Regulatory Flexibility Act,[^118] the
Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small and very small entities of the
policies and rules proposed in this Notice of Proposed Rule Making
(Notice). Written public comments are requested on the IRFA. Comments
must be identified as responses to the IRFA and must be filed by the
deadlines for comments on the Notice.

**Reason for Action**

This rulemaking is being initiated to adopt certain licensing and
service rules for the 24 GHz band, to auction 24 GHz spectrum not used
by Digital Electronic Message Service (DEMS) licensees relocated from
the 18.82-18.92 and 19.16-19.26 GHz bands (18 GHz band) to the
24.25-24.45 and 25.05-25.25 GHz bands (24 GHz band).

**Objectives**

Our objectives are: (1) to accommodate the introduction of new uses of
spectrum and the enhancement of existing uses; and (2) to facilitate the
awarding of licenses to entities who value them the most.

**Legal Basis for Proposed Rules**

The proposed action is authorized under the Administrative Procedure
Act, 5 U.S.C.

§ 553; and sections 1, 4(i), 7, 301, 303, 308 and 309(j)of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 157,
301, 303, 308 and 309(j).

**Description and Estimate of Small Entities Subject to the Rules**

The rules will affect incumbent licensees who are relocated to the 24
GHz band from the 18 GHz band and applicants who wish to provide
services in the 24 GHz band.

The Commission has not developed a definition of small entities
applicable to licensees in the 24 GHz band. Therefore, the applicable
definition of small entity is the definition under the Small Business
Administration (SBA) rules for the radiotelephone industry that provides
that a small entity is a radiotelephone company employing fewer than
1,500 persons.[^119] The 1992 Census of Transportation, Communications,
and Utilities, conducted by the Bureau of the Census, which is the most
recent information available, shows that only 12 radiotelephone firms
out of a total of 1,178 such firms that operated during 1992 had 1,000
or more employees.[^120] We believe that there are only two licensees in
the 24 GHZ band that will be relocated, Teligent and TRW, Inc. It is our
understanding that Teligent and its related companies have less than
1500 employees, although this may change in the future. On the other
hand, TRW is not a small entity. We therefore believe that only one
licensee in the 24 GHz is a small business entity.[^121] We seek comment
on this analysis. In providing such comment, commenters are requested to
provide information regarding how many total and small business entities
would be relocated.

The proposals also affect potential new licensees on the 24 GHz band.
Pursuant to 47 C.F.R. § 24.720(b), the Commission has defined "small
entity" for Blocks C and F broadband PCS licensees as firms that had
average gross revenues of less than \$40 million in the three previous
calendar years. This regulation defining "small entity" in the context
of broadband PCS auctions has been approved by the SBA.[^122] With
respect to new applicants in the 24 GHz band, we also propose to use the
small entity definition adopted in the Broadband PCS proceeding. With
regard to "very small businesses" we propose to adopt the definition
used for 39 GHz licenses and for the PCS C and F block licenses:
businesses with average annual gross revenues for the three preceding
years not in excess of \$15 million.

The Commission will not know how many licensees will be small or very
small businesses until the auction, if required, is held. Even after
that, the Commission will not know how many licensees will partition
their license areas or disaggregate their spectrum blocks, if
partitioning and disaggregation are allowed. In view of our lack of
knowledge of the entities that will seek 24 GHz licenses, we therefore
assume that, for purposes of our evaluations and conclusions in the
Initial Regulatory Flexibility Analysis, all of the prospective
licensees are either small or very small business entities.

We invite comment on this analysis.

**Reporting, Recordkeeping, and Other Compliance Requirements**

Applicants for 24 GHz licenses will be required to submit applications.
We request comment on how these requirements can be modified to reduce
the burden on small entities and still meet the objectives of the
proceeding.

**Significant Alternatives Minimizing the Impact on Small Entities
Consistent with Stated Objectives**

We have reduced burdens wherever possible. To minimize any negative
impact, however, we propose certain incentives for small and very small
entities that will redound to their benefit. These special provisions
include partitioning and spectrum disaggregation. The regulatory burdens
we have retained, such as filing applications on appropriate forms, are
necessary in order to ensure that the public receives the benefits of
innovative new services in a prompt and efficient manner. We will
continue to examine alternatives in the future with the objectives of
eliminating unnecessary regulations and minimizing any significant
economic impact on small entities. We seek comment on significant
alternatives commenters believe we should adopt.

**Federal Rules That Overlap, Duplicate, or Conflict with These Proposed
Rules**

None.

**Appendix B**

**Proposed Rules**

Parts 1, 2, and 101 of Title 47 of the Code of Federal Regulations are
amended as follows:

**PART 1 ‑‑ PRACTICE AND PROCEDURE**

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

AUTHORITY: 47 U.S.C. sections 151, 154, 303, and 309(j) unless otherwise
noted.

2\. The entries on the Table in Section 1.1307(b)(1) for Wireless
Communications Service are proposed to be amended to read as follows:

**§ 1.1307 Actions which may have a significant environmental effect,
for which Environmental Assessments (EAs) must be prepared.**

\* \* \* \* \*

\(b\) \* \* \*

\(1\) \*\*\*

[TABLE 1]{.underline}: TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT
TO ROUTINE ENVIRONMENTAL EVALUATION

  ----------------------------------- -----------------------------------
  Service (Title 47 CFR Rule Part)    Evaluation Required if:

  \*                                  \*

  24 GHz (subpart G of part 101)      Total power of all channels \> 1000
                                      W ERP (1640 W EIRP)

  \*                                  \*
  ----------------------------------- -----------------------------------

\* \* \* \* \*

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

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

AUTHORITY: Section 4, 302, 303, and 307 of the Communications Act of
1934, as amended, 47 U.S.C. Sections 154, 302, 303 and 307, unless
otherwise noted.

4\. Section 2.106, the Table of Frequency Allocations, is proposed to be
amended as follows:

a\. Remove the existing entries for 24.25 - 24.45 GHz and 25.05 - 25.25
GHz.

b\. Add entries in numerical order for 24.25 - 24.45 GHz and 25.05 -
25.25 GHz.

c\. Delete Footnote US341.

The proposed revisions and additions read as follows:

**§ 2.106 Table of Frequency Allocations**

\* \* \* \* \*

+---------+---------+---------+---------+---------+---------+---------+
| Intern  |         |         | United  |         | FCC use |         |
| ational |         |         | States  |         | desi    |         |
| table   |         |         | table   |         | gnators |         |
+---------+---------+---------+---------+---------+---------+---------+
| Region  | Region  | Region  | Gov     | Non-Gov | Rule    | Spec    |
| 1 \--   | 2 \--   | 3 \--   | ernment | ernment | part(s) | ial-use |
| all     | all     | all     |         |         |         | freq    |
| ocation | ocation | ocation |         |         |         | uencies |
| GHz     | GHz     | GHz     |         |         |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| \(1\)   | \(2\)   | \(3\)   | All     | All     | \(6\)   | \(7\)   |
|         |         |         | ocation | ocation |         |         |
|         |         |         | GHz     | GHz     |         |         |
|         |         |         |         |         |         |         |
|         |         |         | \(4\)   | \(5\)   |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| \*      | \*      | \*      | \*      | \*      | \*      | \*      |
+---------+---------+---------+---------+---------+---------+---------+
| 24.25   | 24.25   | 24.25   | 24.25   | 24.25   | FIXED   |         |
| -       | -       | --      | -       | -       | MI      |         |
| - 24.45 | - 24.45 | 24.45   | - 24.45 | - 24.45 | CROWAVE |         |
|         |         |         |         |         | (101)   |         |
| FIXED   | R       | R       |         | FIXED   |         |         |
|         | ADIONAV | ADIONAV |         |         |         |         |
|         | IGATION | IGATION |         |         |         |         |
|         |         |         |         |         |         |         |
|         |         | FIXED   |         |         |         |         |
|         |         |         |         |         |         |         |
|         |         | MOBILE  |         |         |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| \*      | \*      | \*      | \*      | \*      | \*      | \*      |
+---------+---------+---------+---------+---------+---------+---------+
| 24.75   | 24.75   | 24.75   | 24.75   | 24.75   | A       |         |
| -       | -       | -       | -       | -       | VIATION |         |
| - 25.05 | - 25.05 | - 25.05 | - 25.05 | - 25.05 | (87)    |         |
|         |         |         |         |         |         |         |
| FIXED   | F       | FIXED   |         | R       |         |         |
|         | IXED-SA |         |         | ADIONAV |         |         |
|         | TELLITE | F       |         | IGATION |         |         |
|         |         | IXED-SA |         |         |         |         |
|         | (E      | TELLITE |         |         |         |         |
|         | arth-to |         |         |         |         |         |
|         | -space) | (E      |         |         |         |         |
|         | S5.535  | arth-to |         |         |         |         |
|         |         | -space) |         |         |         |         |
|         |         | S5.535  |         |         |         |         |
|         |         |         |         |         |         |         |
|         |         | MOBILE  |         |         |         |         |
|         |         |         |         |         |         |         |
|         |         | S5.534  |         |         |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| 25.05   | 25.05   | 25.05   | 25.05   | 25.05   | FIXED   |         |
| -       | -       | -       | --      | --      | MI      |         |
| - 25.25 | - 25.25 | - 25.25 | 25.25   | 25.25   | CROWAVE |         |
|         |         |         |         |         | (101)   |         |
| FIXED   | F       | FIXED   |         | FIXED   |         |         |
|         | IXED-SA |         |         |         |         |         |
|         | TELLITE | F       |         |         |         |         |
|         |         | IXED-SA |         |         |         |         |
|         | (E      | TELLITE |         |         |         |         |
|         | arth-to |         |         |         |         |         |
|         | -space) | (E      |         |         |         |         |
|         | S5.535  | arth-to |         |         |         |         |
|         |         | -space) |         |         |         |         |
|         |         | S5.535  |         |         |         |         |
|         |         |         |         |         |         |         |
|         |         | MOBILE  |         |         |         |         |
|         |         |         |         |         |         |         |
|         |         | S5.534  |         |         |         |         |
+---------+---------+---------+---------+---------+---------+---------+
| \*      | \*      | \*      | \*      | \*      | \*      | \*      |
+---------+---------+---------+---------+---------+---------+---------+

\* \* \* \* \*

######### UNITED STATES FOOTNOTES

\* \* \* \* \*

**Section 87**

5\. Section 87.173(b): delete radionavigaion use from Table (Chart).

**PART 101\--FIXED MICROWAVE SERVICES**

6\. The authority citation for Part 101 continues to read as follows:

Authority: 47 U.S.C. §§ 154, 303, 309(j), unless otherwise noted.

7\. Section 101.1 is proposed to be amended by inserting the words "24
GHz Service" between the words \"carrier\" and \"and\" in subsection
101.1(a).

8\. Section 101.3 is proposed to be amended by replacing the definition
of Digital Electronic Message Service to read as follows:

**§ 101.3 Definitions**

As used in this part:

\* \* \* \* \*

*24 GHz Service.* A radiocommunication service that may encompass any
digital fixed service.

\* \* \* \* \*

9\. Section 101.5(b) is reserved for future use. However, the text which
currently appears in §101.5(b) is deleted.

10\. Section 101.13 is proposed to be amended by deleting subsection
101.13(c) and redesignating subsections (d), (e) and (f) as (c), (d) and
(e), respectively.

11\. Section 101.15 is proposed to be amended by adding the words \"and
24 GHz Service in subpart G of this part\" after the words \"Local
Multipoint Distribution Service in subpart L of this part\" in
subsection 101.15(a).

12\. Section 101.21 is proposed to be amended by:

\(a\) deleting the words \"and Digital Electronic Message Services
(excluding user stations)\" and by adding the word \"and\" before
\"Local Television Transmission\" in subsection 101.21(d).

\(b\) inserting the words \"and 24 GHz Service\" after the words \"Local
Multipoint Distribution Service\" in subsection 101.21 (g).

13\. Section 101.29 is proposed to be amended by deleting subsection
101.29(c)(1)(ix).

14\. Section 101.37 is proposed to be amended by revising subsections
101.37 (a)(1) and (a)(3) to read as follows:

**§ 101.37 Public notice period.**

\(a\) At regular intervals, the Commission will issue a public notice
listing:

\* \* \* \* \*

\(1\) The acceptance for filing of common carrier applications, Local
Multipoint Distribution Service applications, 24GHz Service
applications, and major amendments thereto;

\* \* \* \* \*

\(3\) The receipt of common carrier applications, Local Multipoint
Distribution Service applications, and 24 GHz Service applications for
minor modifications made pursuant to § 101.59;

15\. Section 101.45 is proposed to be amended by adding the words \"and
in the 24 GHz Service\" after the words \"Local Multipoint Distribution
Service\" in subsection 101.45(b).

16\. Section 101.57 is proposed to be amended by inserting the words
\"or in the 24 GHz Service after the effective date of the Order\" after
the words \"March 11, 1997\" in subsection 101.57(a)(1)(ii).

17\. Section 101.61 is proposed to be amended by revising subsection
101.61(b)(1) to read as follows:

**§ 101.61 Certain modifications not requiring prior authorization.**

\(b\) \* \* \*

\(1\) Frequency coordination procedures, as necessary, are complied with
in accordance with § 101.103(d).

18. Section 101.61 is proposed to be amended by inserting the words "and
    in the 24 GHz Service\" after the words \"Local Multipoint
    Distribution Service\" in subsections 101.61(c)(9) and 101.61(d) and
    by inserting the words \"upon notification of the Commission within
    30 days of the change\" after the words \"an existing license\" in
    subsection 101.61(c)(9).

19. Section 101.63 is proposed to be amended by inserting the words
    \"and in the 24 GHz Service\" after the words \"Local Multipoint
    Distribution Service\" in subsection 101.63(a).

20\. Section 101.105 is proposed to be amended by deleting the words
\"and all point-to-multipoint channels in the 18 GHz band\" after the
words \"in the 10.6 GHz band\" in subsection 101.105(c)(6).

21\. Section 101.111 is proposed to be amended by revising subsection
101.111(a)(4) to read as follows:

**§ 101.111 Emission Limitations.**

\(1\) \* \* \*

\(a\) \* \* \*

\(4\) For DEMS channels in the 17,700-19,700 and 24,250-25,250 MHz
bands:

\(i\) On any frequency removed from the center frequency of the DEMS
channel by more than 50 percent of that channel\'s bandwidth:

A = 35 + 0.75(F - 0.5B) dB (in any 4 kHz channel), or

A = 11 + 0.75(F - 0.5B) dB (in any 1 MHz channel),

but in no event greater than 80 decibels;

A = attenuation (in decibels) below mean output power level contained
within the DEMS channel for a given polarization

B = bandwidth of DEMS channel (in MHz)

F = absolute value of the difference between the center frequency of the
measured band and the center frequency of the DEMS channel

\(ii\) In any 4 kHz band, the center frequency which is outside the DEMS
bands: At least 43 + 10 log~10~(mean output power in watts) dB.

22\. Section 101.147 is proposed to be amended by deleting the words
\"except that channels 35-39 are available only to existing 18 GHz
licensees as of March 14, 1997\" and by deleting subparagraphs (i) and
(ii) in subsection 101.147(r)(9).

23\. Section 101.305 is proposed to be amended by inserting a comma and
deleting the word \"and\" after the words \"Common Carrier Radio
Services\" and by inserting the words \"and the 24 GHz Digital
Electronic Message Service\" after the words \"Local Multipoint
Distribution Services\" in subsection 101.305(a).

24\. Section 101.311 is proposed to be amended by inserting the words
\"and 24 GHz Service\" after the words \"Local Multipoint Distribution
Service\".

25\. Section 101.501 is proposed to be amended to read as follows:

**§ 101.501 Eligibility**

\"See § 101.147(n) for licensing of DEMS facilities in the 10.6 GHz
band. Applications for new facilities using the 18 GHz band are no
longer being accepted. Any entity, other than one precluded by § 101.7
or §101.1003 of this part, is eligible for authorization to provide DEMS
under this subpart.\"

26\. Section 101.503 is proposed to be amended by adding the words
\"10.6 GHz\" before the word \"DEMS\" wherever it appears.

27\. Section 101.505 is proposed to be amended by replacing the words
\"§ 101.147(r)(9)\" with \"§§ 101.147(m), (n), and (r)(9).\"

28\. Section 101.509 is proposed to be amended to read as follows:

**§ 101.509 Interference Protection Criteria.**

(a) All harmful interference to other users and blocking of adjacent
    channel use in the same or adjacent geographical area is prohibited.
    In areas where EAs are in close proximity, careful consideration
    should be given to minimum power requirements and to the location,
    height, and radiation pattern of the transmitting antenna. Licensees
    are expected to cooperate fully in attempting to resolve problems of
    potential interference before bringing the matter to the attention
    of the Commission.

(b) As a condition for use of frequencies in this service each licensee
    is required to:

> \(1\) Engineer the system to be reasonably compatible with adjacent
> and co-channel operations in the same or adjacent areas; and
>
> \(2\) Cooperate fully and in good faith to resolve whatever potential
> interference and transmission security problems may be present in
> adjacent and co-channel operations.

(c) Licensee shall coordinate their facilities whenever the facilities
    have line-of-sight into other licensees' facilities or are within
    the same geographic area. Licensees are encouraged to develop
    operational agreements with relevant licensees in the same or
    adjacent areas.

(d) Licensees shall comply with the appropriate coordination agreements
    between the United States and Canada and the United States and
    Mexico concerning cross-border sharing and use of the 24 GHz bands.

29\. Section 101.511 is proposed to be amended to read as follows:

**§ 101.511 Permissible services.**

\(a\) Authorizations for stations in the 24 GHz Service will be granted
to provide services on a common carrier basis or a non-common carrier
basis or on both a com­mon carrier and non-common carrier basis in a
single authorization.

\(b\) Stations may render any kind of digital communications service
con­sistent with the Commission\'s rules and the regulatory status of the
station to provide services on a com­mon carrier or non-common carrier
basis.

\(c\) An applicant or licensee may submit a petition at any time
requesting clarification of the regulatory status required to provide a
specific communications service.

30\. Section 101.521 is proposed to be amended by adding the words \"in
the 10.6 GHz band\" after the word \"frequencies.\"

31\. Section 101.523 is proposed to be added to read as follows:

**§ 101.523 Geographic service areas and number of licenses.**

The service areas for 24 GHz are Economic Areas (EAs). EAs are 175
areas, including U.S. territories and possessions, defined by the
Department of Commerce\'s Bureau of Economic Analysis, as modified by
the FCC.

32\. Section 101.525 is proposed to be added to read as follows:

**§ 101.525 24 GHz system operations.**

\(a\) A licensee using the 24 GHz band may construct and operate any
number of fixed stations any­where with­in the area authorized to serve
without prior authorization, except as fol­lows:

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

\(A\) international agreements require coordination;

\(B\) submission of an Environmental Assessment is required under §
1.1307.

\(C\) the station would affect the radio quiet zones under § 101.123.

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

\(b\) Whenever a licensee constructs or makes system changes as
described in paragraph (a), the licensee is required to notify the
Commis­sion within 30 days of the change under § 101.61 and include a
state­ment of the techni­cal pa­ram­e­ters of the changed sta­tion.

33\. Section 101.527 is proposed, as an alternative, safe harbor
standard, to be added to read as follows:

**§ 101.527 Construction requirements for 24 GHz operations.**

\(a\) 24 GHz licensees must serve with a signal level sufficient to
provide adequate service to at least one-third of the population in
their licensed area within five years of being licensed and two-thirds
of the population in their licensed area within 10 years of being
licensed. Licensees may choose to define population using the 1990
census or the 2000 census. Failure by any licensee to meet these
requirements will result in forfeiture or non-renewal of the initial
license and the licensee will be ineligible to regain it.

\(b\) Licensees must file maps and other supporting documents showing
compliance with the respective construction requirements within the
appropriate five- and ten-year benchmarks of the date of their initial
licenses.

34\. Section 101.529 is proposed to be added to read as follows:

**§ 101.529 Renewal expectancy criteria for 24 GHz licenses.**

\(a\) A renewal applicant involved in a renewal proceeding shall receive
a pref­er­ence, commonly referred to as a renewal expectancy, that is the
most important factor to be considered in the proceeding as long as the
applicant\'s past record for the rele­vant li­cense period de­monstrates
that:

\(1\) The renewal applicant has provided "substantial" service, i.e.
service which is sound, favorable, and substantially above a level of
mediocre service which just might minimally warrant renewal, during its
past license term; and

\(2\) The renewal applicant has substantially complied with applicable
FCC rules, policies, and the Communications Act of 1934, as amended.

\(b\) In order to establish its right to a renewal expectancy, a
licensee in the 24 GHz service in­volved in a renewal proceeding must
submit a showing explaining why it should receive a renewal expectancy.
At a minimum, this showing must include:

\(1\) A description of its current service in terms of geographic
coverage and population served; and

\(2\) Copies of all FCC orders finding the licensee to have violated the
Communications Act or any FCC rule or policy; and a list of any pending
proceedings that relate to any matter described in this paragraph.

\(c\) In making its showing of entitlement to a renewal expectancy, a
renewal applicant may claim credit for any system modification
applications that were pending on the date it filed its renewal
application. Such credit will not be allowed if the modification
application is dis­missed or denied.

35\. Section 101.531 is proposed to be added to read as follows:

**§ 101.531 Application form and contents.**

\(a\) Applications for initial authorization of 24 GHz facilities are
filed on FCC Form 175 in accordance with Subpart M of this Part, and
Subpart Q of Part 1. FCC Form 601 is submitted subsequently ei­ther by
the winning bidder, if an auction is held to decide among two or more
mutually ex­clusive applications, or, in cases of no mutual exclusivity,
by the sole applicant. Applica­tions to amend pending applications and to
modify licenses are filed on FCC Form 600.

\(b\) *Foreign ownership information*. All applicants for 24 GHz
licenses must provide the information re­quested on FCC Form 600 to
address all of the eligibility requirements in § 101.7 of this Part. All
licensees will keep the information updated.

36\. Section 101.533 is proposed to be added to read as follows:

**§ 101.533 Regulatory status.**

\(a\) *Initial applications.*

An applicant for a 24 GHz license must specify on FCC Form 601 if it is
requesting authoriza­tion to pro­vide services on a common car­rier basis,
a non-common carrier basis, or on both a com­mon car­rier and non-common
carrier basis.

\(b\) *Amendment of pending applications.*

\(1\) Any pending application may be amended to: (i) change the carrier
status request­ed, or (ii) add to the pending request in order to obtain
both common carrier and non-com­mon carrier status in a single license.

\(2\) Amendments to change, or add to, the carrier status in a pending
application are minor amendments filed under § 101.29 in this Part.

\(c\) *Modification of license.*

\(1\) A licensee may modify a license to: (i) change the carrier status
authorized, or (ii) add to the status authorized in order to obtain both
common carrier and non-common carrier status in a single license.

\(2\) Applications to change, or add to, the carrier status in a license
are modifications not requiring prior Commission authori­zation filed
under § 101.61 of this Part. If the change re­sults in the
dis­con­tinu­ance, reduc­tion, or im­pair­ment of an existing ser­vice, the
licensee is also gov­erned by § 101.305(b) or (c) and submits the
application under § 101.61 in con­formance with the time frames and
requirements of § 101.305(b) or (c).

37\. Section 101.535 is proposed to be added to read as follows:

**§ 101.535 Geographic partitioning and spectrum disaggregation.**

\(a\) Eligibility.

\(1\) Parties seeking approval for partitioning and disaggregation shall
request from the Commission an authorization for partial assignment of a
license.

\(2\) 24 GHz licensees may apply to partition their licensed geographic
service area or disaggregate their licensed spectrum at any time
following the grant of their licenses.

\(b\) Standards.

\(1\) Partitioning. In the case of partitioning, requests for
authorization for partial assignment of a 24 GHz license must include,
as attachments, a description of the partitioned service area and a
calculation of the population of the partitioned service area and the
licensed geographic service area. The partitioned service area shall be
defined by coordinate points at every 3 degrees along the partitioned
service area unless an FCC recognized service area is utilized (*i.e.*,
Major Trading Area, Basic Trading Area, Metropolitan Service Area, Rural
Service Area, Economic Area, or Major Economic Area) or county lines are
followed. The geographic coordinates must be specified in degrees,
minutes, and seconds to the nearest second of latitude and longitude and
must be based upon the 1927 North American Datum (NAD27). Applicants may
supply geographical coordinates based on 1983 North American Datum
(NAD83) in addition to those required (NAD27). In the case where an FCC
recognized service area or county lines are utilized, applicants need
only list the specific area(s) (through use of FCC designations or
county names) that constitute the partitioned area.

\(2\) Disaggregation. Spectrum may be disaggregated in any amount.

\(3\) Combined Partitioning and Disaggregation. The Commission will
consider requests for partial assignment of licenses that propose
combinations of partitioning and disaggregation.

\(c\) Unjust Enrichment. 24 GHz licensees that received a bidding credit
and partition their licenses or disaggregate their spectrum to entities
not meeting the eligibility standards for such a bidding credit, will be
subject to the provisions concerning unjust enrichment as set forth in
section 1.2111.

\(d\) License Term. The license term for a partitioned license area and
for disaggregated spectrum shall be the remainder of the original
licensee\'s license term as provided for in section 101.67.

38\. Section 101.537 is proposed to be added to read as follows:

**§ 101.537 Competitive bidding: definitions.**

For the purpose of establishing eligibility requirements and bidding
credits for competitive bidding for licenses at 24 GHz, pursuant to
section 1.2110, the following definitions apply:

\(a\) A small business is an entity that, together with its affiliates
and controlling principals, has average annual gross revenues that are
not more than \$40 million for the preceding three years, as determined
pursuant to section 1.2110.

\(b\) A very small business is an entity that, together with its
affiliates and controlling principals, has average gross revenues that
are not more than \$15 million for the three preceding years, as
determined pursuant to section 1.2110.

[^1]: DEMS systems are point-to-multipoint microwave networks designed
    to communicate information between a fixed main (nodal) station and
    a number of fixed user terminals. When the FCC originally identified
    spectrum in the 18 GHz band for DEMS in 1981, the primary use was
    expected to be by businesses requiring internal networks to
    distribute documents, share data, and hold teleconferences. Licensed
    for both common carrier and private use, DEMS is now governed by
    Part 101 of the FCC's rules. For additional background on the
    development of DEMS, *see* Amendment of the Commission's Rules to
    Relocate the Digital Electronic Message Service From the 18 GHz Band
    to the 24 GHz Band and to Allocate the 24 GHz Band for Fixed
    Service, *Memorandum Opinion and Order*, FCC 98-155 (rel. July 17,
    1998) ("*DEMS MO&O*").

[^2]: *See id.*

[^3]: *See generally DEMS MO&O.*

[^4]: *See id.* at 5.

[^5]: *See id.* at 5.

[^6]: *See id.*at 5.

[^7]: See *id*. at 5*.*

[^8]: *See* Amendment of the Commission's Rules to Relocate the Digital
    Electronic Message Service from the 18 GHz Band to the 24 GHz Band
    and To Allocate the 24 GHz Band For Fixed Service, Order, 12 FCC Rcd
    3471 at ¶¶ 10-19. (1997) ("*Reallocation Order*").

[^9]: See Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission's
    Rules to Redesignate the 27.5-29.5 GHz Frequency Band, to Reallocate
    the 29.5-30.0 GHz Frequency Band, to establish Rules and Policies
    for Local Multipoint Distribution Service and for Fixed Satellite
    Services, 11 FCC Rcd. 19005 (1996).

[^10]: See *DEMS MO&O, supra* at 5.

[^11]: Radionavigation is a service used to determine the position,
    velocity and/or other characteristics of an object, through the use
    of propagation properties of radio waves for purposes of navigation
    (e.g., obstruction warning). *See* 47 C.F.R. § 2.1.

[^12]: *See Reallocation Order, supra,* 12 FCC Rcd 3471.

[^13]: *See* 47 C.F.R. § 101.

[^14]: *See* *Reallocation Order*, *supra* at 3480-81 (Appendix A).

[^15]: *See* 47 C.F.R. § 2.

[^16]: *Reallocation Order,* 12 FCC Rcd at 3473, ¶ 6 (footnote omitted):

    On March 5, 1997, \[the Commission\] received a . . . letter from
    NTIA \[National Telecommunications and Information Administration\]
    making the \[24 GHz band\] available for non-Government uses . . . .
    The \[letter\] reiterates the Government\'s determination that
    existing DEMS licensees must relocate to minimize potential
    interference to Government Earth stations in the 18 GHz band
    pursuant to footnote US334 and national security interests. To this
    end, NTIA has withdrawn the allocation for the Government
    radionavigation service in the \[24 GHz band\] to permit relocation
    of DEMS from the 18 GHz band. In addition, NTIA requires that the
    Commission limit future FCC licensees from using the 17.8-20.2 GHz
    band for operations in the Washington, D.C. and Denver areas . . . .

[^17]: *See* Redesignation of the 17.7-19.7 GHz Frequency Band, Blanket
    Licensing of Satellite Earth stations in the 17.7-20.2 GHz and
    27.5-30.0 GHz Frequency Bands, and the Allocation of Additional
    Spectrum in the 17.3-17.8 GHz and 24.75-25.25 GHz Frequency Bands
    for Broadcast Satellite-Service Use, *Notice of Proposed
    Rulemaking*, 13 FCC Rcd 19923 (1998) (*\"18 GHz Band Plan\"). See
    also* DirecTV Enterprises, Inc. Petition, To Amend Parts 2, 25, and
    100 of the Commission\'s Rules To Allocate Spectrum for the
    Fixed-Satellite Service and the Broadcasting Satellite Service,
    filed June 5, 1997. DirecTV also seeks amendment of the Table of
    Allocations and the service rules to provide for the use of the
    17.3-17.8 GHz band in the space-to-earth direction for BSS, and to
    adopt a 4.5 orbital spacing policy for the use of these bands to
    provide BSS service.

[^18]: Joint Opposition of Digital Services Corporation, Microwave
    Services, Inc., and Teligent, L.L.C., filed July 31, 1997.

[^19]: Technical Response of DirecTV, filed Aug. 27, 1997.

[^20]: *18 GHz Band Plan, supra* at 19959, ¶ 81.

[^21]: *See* 47 C.F.R. 2.106.

[^22]: *See* 47 C.F.R. § 2.106; s*ee also* letter from Gerald J. Markey,
    Program Director for Spectrum Policy and Management, Federal
    Aviation Administration to William Hatch, Chairman, Interdepartment
    Radio Advisory Committee, National Telecommunications and
    Information Administration, June 17, 1999.

[^23]: *See* 47 C.F.R. 87.173(b).

[^24]: The Bureau of Economic Analysis has divided the Nation into
    regional economic areas that consist of metropolitan areas that are
    centers of economic activity and their economically related
    surrounding counties. *See* Final Redefinition of the BEA Economic
    Areas, 60 Fed. Reg. 13114 (March 10, 1995).

[^25]: *See infra* at ¶¶ 26-28.

[^26]: *See* 47 U.S.C. § 309(j)(3)(B).

[^27]: This decision is consistent with our recent decision to use EAs
    for licensing the service areas in the 39 GHz proceeding. *See* In
    the Matter of Amendment of the Commission's Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Band, ("39 GHz ") *MO&O*, ET Dkt.
    No. 95-183, (rel July 26, 1999) at ¶ 46. There, we relied upon many
    of the same factors: (a) foster investment in and rapid deployment
    of new technologies and services; and (b) encourage economic
    opportunities among a wide variety of applicants; which we cite in
    support of our decision to use EAs in this proceeding. *Id.* In the
    39 GHz proceeding, we declined to adopt our initial decision to use
    BTAs for licensing purposes, stating: "new developments concerning
    Rand McNally's copyright interest in BTAs lead us to conclude that
    using BTAs as service areas for 39 authorizations could result in
    extended delays in the 39 GHz licensing process." (footnote
    omitted*) Id*. at ¶ 46 In light of the foregoing, we are persuaded
    to not employ BTAs, which were used for licensing purposes in the
    Local Multipoint Distribution Service ("LMDS") proceeding. *See LMDS
    Second Report and Order,* 12 FCC Rcd 12545 at 22604, ¶ 135.

    .

[^28]: *See* 47 U.S.C. § 309(j)(3)(A).

[^29]: *See e.g.,* Amendment of Part 90 of the Commission\'s Rules to
    Provide for the Use of the 220-222 MHz Band by the Private Land
    Mobile Radio Service, *Third Report and Order; Fifth Notice of
    Proposed Rulemaking*, 12 FCC Rcd 10943, 10983-84, ¶ 80 (1997).

[^30]: *See* Implementation of Section 309(j) of the Communications
    Act\--Competitive Bidding, *Fourth Report and Order*, 9 FCC Rcd
    2330, 2333, ¶ 16 (1994).

[^31]: *See Reallocation Order,* 12 FCC Rcd at 3476-77, ¶ 14.

[^32]: *See In the Matter of Amendment of the Commission's Rules to
    Relocate the Digital Electronic Message Service from the 18 GHz Band
    to the 24 GHz Band and to Allocate the 24 GHz Band for Fixed
    Service,* 12 FCC Rcd. 8266 (1997)

[^33]: *See* 47 C.F.R. § 101.

[^34]: Each SMSA is comprised of at least one or more counties, except
    for the New England area where some areas consist of partial
    counties. See 1975, Office of Management and Budget Report, as
    amended, June, 1981.

[^35]: *See* ¶¶ 26-28, *infra*.

[^36]: *See* ¶¶ 9-10, *supra*.

[^37]: *See* ¶¶ 16-17, *infra*.

[^38]: *See* ¶¶ 26-28, *infra*.

[^39]: *See* 47 C.F.R. § 303(y)(1). *See* also*, supra* at ¶ 6.

[^40]: *See* 47 U.S.C. § 303(y)(2). This section states that the
    Commission must find that: (1) such an allocation would be in the
    public interest; (2) such use would not deter investment in
    communications services and systems, or technology development; and
    (3) such use would not result in harmful interference among users.

[^41]: Because relocated and new licensees in the 24 GHz band will be
    treated the same, we will refer to both as "24 GHz licensees." We
    will refer to them separately as "relocated licensees" and "new
    licensees."

[^42]: Consequently, all applications for licenses will be filed
    pursuant to § 101 of 47 C.F.R..

[^43]: *See* Section 101.109(c) of the Commission\'s Rules, 47 C.F.R. §
    101.109(c), as amended by the *Reallocation Order* (providing for 40
    megahertz spectrum blocks).

[^44]: *See* *Reallocation Order,* 12 FCC Rcd at 3475, ¶12, 3483-85
    (Appendix B).

[^45]: *See* 47 C.F.R. § 101.111.

[^46]: The Commission amended the Part 101 Rules to apply to incumbent
    licensees moved to the 24 GHz band in the *Reallocation Order*,
    *supra* at 3478-3485.

[^47]: *LMDS Second Report and Order, supra,* at 12636-38, 12644-45,
    12652-53, ¶¶ 205-208, 225-226, 245-251. *See also* 47 C.F.R. §
    101.1017.

[^48]: *See* Revisions to Part 21 of the Commission\'s Rules Regarding
    the Multipoint Distribution Service,

    2 FCC Rcd 4251, 4252-53, ¶¶ 9-16 (1987) (*\"MDS Report and
    Order*\"); *LMDS Second Report and Order*, 12 FCC Rcd at 12643-45,
    ¶¶ 221-227.

[^49]: The Commission has explained that any video programming service
    will be treated as a non-common carrier service. *See* *LMDS Second
    Report and Order*, 12 FCC Rcd at 12639-41, ¶¶ 213-215. Thus, any
    applicant intending to provide a video programming service would
    appropriately indicate a choice of non-common carrier regulatory
    status.

[^50]: Section 3 of the Communications Act defines telecommunications
    as: "the transmission between or among points specified by the user,
    of information of the user's choosing, without change in the form or
    content of the information as sent and received." *See* 47 U.S.C. §
    153(43). "A telecommunications carrier shall be treated as a common
    carrier only to the extent that it is engaged in providing
    telecommunications services, except that the Commission shall
    determine whether the provision of fixed and mobile satellite
    service shall be treated as common carriage." *See* 47 U.S.C. §
    153(44)

[^51]: *See MDS Report and Order*, 2 FCC Rcd at 4252-53, ¶¶ 9-16; *LMDS
    Second Report and Order*, 12 FCC Rcd at 12643-45, ¶¶ 221-227.

[^52]: *See* 47 C.F.R. § 101.305. Section 101.305 (a) states in part:
    "If the public communication service provided by a station in the
    Common Carrier Radio Services and the Local Multipoint Distribution
    Service is involuntarily discontinued, reduced or impaired for a
    period exceeding 48 hours, the station licensee must promptly notify
    the Commission, in writing\[.\]" Section 101.305 (c) states in part:
    "Any licensee not subject to title II of the Communications Act of
    1934, as amended, who voluntarily discontinues, reduces or impairs
    public communication service to a community or a part of a community
    must give written notification to the Commission within 7 days
    thereof."

[^53]: *See* Amendment of the Commission\'s Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands and Implementation of Section
    309(j) of the Communications Act --- Competitive Bidding, 37.0-38.6
    GHz and 38.6-40.0 GHz, *Report and Order and Second Notice of
    Proposed Rulemaking*, 12 FCC Rcd 18600, 18619, ¶ 32 (1997) (\"*39
    GHz Report and Order*\")*.*

[^54]: *Id.*

[^55]: *See* 47 U.S.C. § 309(j)(3).

[^56]: *Id.*

[^57]: *See* 47 U.S.C. § 257.

[^58]: *See* 47 C.F.R. § 101.1003(a).

[^59]: Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz
    and 38.6-40.0 GHz Bands, ET Docket No. 95-183, *Report and Order and
    Second Notice of Proposed Rulemaking,* 12 FCC Rcd 18600 (1997).

[^60]: The Commission adopted the temporary eligibility restriction in
    1997. *See* *Second Report and Order, supra*, 12 FCC Rcd at 12616, ¶
    162 wherein we stated: "Based on the record here, standard economic
    theory, our experience, an analogous situation in the cable TV
    industry, and our assessment of competitive and regulatory
    developments in the local telephony and MVPD markets, we find on
    balance that a policy favoring restricted eligibility for a limited
    time would result in the greatest likelihood of increased
    competition in the local telephony and MVPD markets. By restricting
    in-region LEC and cable companies, we ensure the entry of a new LMDS
    operator that could provide competition in the LEC market, the MVPD
    market, or both."

[^61]: *See* note 60, *supra.*

[^62]: *See* 47 U.S.C. §§ 310(a), 310(b).

[^63]: *See* 47 C.F.R. § 101.7, as amended by Amendment of Parts 20, 21,
    22, 24, 26, 80, 87, 90, 100, and 101 of the Commission\'s Rules to
    Implement Section 403(k) of the Telecommunications Act of 1996
    (Citizenship Requirements), *Order*, 11 FCC Rcd 13072 (1996),
    adopting revised Section 101.7.

[^64]: *See* 47 C.F.R. § 101.7(b).

[^65]: *Id.*

[^66]: For entities who seek compliance with Section 101.7(b)(4), we
    note that in response to the World Trade Organization ("WTO") Basic
    Telecommunications Agreement, the Commission has liberalized its
    policy for applying its discretion with respect to indirect foreign
    ownership of common carrier radio licenses. In general, the
    Commission now presumes that indirect ownership by entities from WTO
    members serves the public interest. Ownership by entities from
    countries that are not WTO members continues to be subject to the
    "effective competitive opportunities" test (which examines the legal
    ability of U.S. carriers to enter the foreign destination market and
    provide the relevant service, and if there are no legal barriers to
    entry, considers the practical ability for U.S. carriers to compete
    in those markets). The Commission has eliminated the "effective
    competitive opportunities" test for common carrier licensees or
    applicants with foreign investment from WTO member countries. *See*
    47 C.F.R. § 101.7(b)(4); *See also* Rules and Policies on Foreign
    Participation in the U.S. Telecommunications Market and Market Entry
    and Regulation of Foreign-Affiliated Entities, *Report and Order and
    Order on Reconsideration*, 12 FCC Rcd 23891, 23935-47, ¶¶ 97-132
    (1997) (\"*Foreign Participation Report and Order\"*). *Recon.
    pending*

[^67]: *Id.*; *LMDS Second Report and Order*, 12 FCC Rcd at 12651, ¶
    243.

[^68]: *See* ¶ 17, *supra*.

[^69]: 47 U.S.C. § 309(j)(4)(C). *See* Geographic Partitioning and
    Spectrum Disaggregation by Commercial Mobile Radio Services
    Licensees and Implementation of Section 257 of the Communications
    Act --- Elimination of Market Barriers, *Report and Order and
    Further Notice of Proposed Rulemaking*, 11 FCC Rcd 21831, 21843-44,
    ¶¶ 13-17 (1996) ("*Partitioning and Disaggregation Report and
    Order"*).

[^70]: *Id*. at 21847-48, ¶¶ 23-24.

[^71]: *Id.* at 21860, ¶ 49.

[^72]: *See* 47 U.S.C. § 151 *et seq*. Substantial service is service
    that is sound, favorable, and substantially above a level of
    mediocre service which might just minimally warrant renewal. *See*
    47 C.F.R. § 22.940(a)(1)(i).

[^73]: *See infra* at ¶¶ 33-34.

[^74]: *Cf*. Section 22.940(a)(2)(i) through Section 22.940(a)(2)(iv) of
    the Commission\'s Rules, 47 C.F.R. §§ 22.940(a)(2)(i)-(iv).

[^75]: *See* Section 101.1011 of the Commission\'s Rules, 47 C.F.R. §
    101.1011.

[^76]: *See* Amendment of Parts 21 and 74 of the Commission\'s Rules
    With Regard to Filing Procedures in the Multipoint Distribution
    Service and in the Instructional Television Fixed Service, *Report
    and Order*, 10 FCC Rcd 9589, 9614, ¶ 46 (1995).

[^77]: *See Partitioning and Disaggregation Report and Order*, 11 FCC
    Rcd at 21870, ¶¶ 76-77.

[^78]: *See* note 74, *supra.*

[^79]: *See LMDS Second Report and Order*, 12 FCC Rcd at 12659, ¶¶
    263-267.

[^80]: *See e.g*. 47 CFR § 22.940(a)(1)(i).

[^81]: *See* 47 U.S.C. § 160(a)(1-3). Section 10 provides the Commission
    with authority to forbear from application of virtually any
    regulation or any provision of the Act to a telecommunications
    carrier or telecommunications service, or a class of carriers or
    services. But, the Commission may not forbear from applying the
    requirements of Sections 251(c) or 271 until it determines that
    those requirements have been fully implemented. *See* 47 U.S. C. §
    160(d).

[^82]: See Implementation of Sections 3(n) and 332 of the Communications
    Act, Regulatory Treatment of Mobile Services, *Second Report and
    Order*, 9 FCC Rcd. 1411, 1463-93, ¶¶ 124-219, 272. Although the
    Commission recently concluded that, pursuant to Section 10(a)(3),
    forbearance from the international Section 214 application process
    would not be consistent with the public interest, we substantially
    streamlined the international 214 process, providing significant
    regulatory relief. *See* 1998 Biennial Regulatory Review-Review of
    International Common Carrier Regulations, *Report and Order*, FCC
    99-51, ¶ 18 (released March 23, 1999). *See also* In the Matter of
    Personal Communications Industry Association's Broadband Personal
    Communications Services Alliance's Petition for Forbearance For
    Broadband Personal Communications Services, Forbearance from
    Applying Provisions of the Communications Act to Wireless
    Telecommunications Carriers, *Memorandum Opinion and Order and
    Notice of Proposed Rulemaking,* *("Forbearance Order")* FCC 98-134,
    ¶ 119, (released July 2, 1998). See also Implementation of Section
    402(b)(2)(A) of the Telecommunications Act of 1996 and Petition for
    Forbearance of the Independent Telephone & Telecommunications
    Alliance. *Report and Order in CC Docket No. 97-11, Second
    Memorandum Opinion and Order in AAD, File No. 98-43,* FCC 99-104
    (released June 30, 1999) (eliminating entry certification filing
    requirements under Section 214 and significantly streamlining exit
    certification requirements, granting the substance of the Section
    214 regulatory relief requested by the members of the Independent
    Telephone and Telecommunications Alliance in their petition for
    forbearance, and extending that relief to all other domestic
    carriers.)

[^83]: *See Forbearance Order, supra,* ¶¶ 14-31. The Commission also
    declined to forbear from applying Section 20.12(b) of the
    Commission's rules, which requires broadband personal communications
    service, cellular, and covered specialized mobile radio carriers, to
    permit unrestricted resale of their services until five years after
    the last group of initial licenses for broadband PCS is awarded.
    *Id.* at 44.

[^84]: *See* In the Matters of Hyperion Telecommunications, Inc.
    Petition Requesting Forbearance, Time Warner Communications Petition
    for Forbearance, Complete Detariffing for Competitive Access
    Providers and Competitive Local Exchange Carriers, *Memorandum
    Opinion and Order and Notice of Proposed Rulemaking*, 12 FCC Rcd
    8596 at ¶¶ 23-27, (1997).

[^85]: For example, the Wireless Communications Association
    International, Inc. has requested that the Commission forbear from
    imposing regulations on fixed wireless broadband telecommunications
    carriers, other than those classified as CMRS, in order to
    facilitate entry into the local exchange and other
    telecommunications markets. *See* In the Matter of Biennial
    Regulatory Review-Elimination or Streamlining of Unnecessary and
    Obsolete CMRS Regulations, Forbearance from Applying Revisions of
    Communications Act to Wireless Telecommunications Carriers, WT
    Docket 98-100.

[^86]: *See* ¶¶ 11-12, 15, *supra*.

[^87]: *See* *Reorganization and Revision of Parts 1,2, 21, and 94 of
    the Rules to Establish a New Part 101 Governing Terrestrial
    Microwave Fixed Radio Services,* Report and Order, 11 FCC Rcd 13449
    (1996), *Recon. Pending.*

[^88]: 12 FCC Rcd at 3483-3485 (Appendix A).

[^89]: For example, the architecture of Digital Electronic Messaging
    Service (DEMS) systems has evolved over the years such that the
    subchannels within the authorized channels are wider, that is, 10
    megahertz rather than 300 kilohertz. Based on this, a number of
    waivers of the emission limitations have been issued to existing 24
    GHz licensees to reflect current developments. For this particular
    parameter, therefore, we have proposed specific modifications to
    Section 101.111 as indicated in Appendix B. The antenna directivity
    of user stations may likewise be appropriate for modification.

[^90]: *See* Section 101.3 of the Commission's Rules, 47 C.F.R. § 101.3.

[^91]: *See* Section 101.503 of the Commission\'s Rules, 47 C.F.R. §
    101.503.

[^92]: There may, however, be other purposes for the filing of specific
    station or site information with the Commission. Such information
    could, for example, be used in spectrum use or management studies.

[^93]: *See* 47 C.F.R. § 101.103(d).

[^94]: *See* 47 C.F.R. § 101.509.

[^95]: *See* ¶¶ 43-45*, infra*.

[^96]: *See* Sections 101.103(g) and 101.103(I) of the Commission's
    Rules, 47 C.F.R. §§101.103(g), 101(i). The Coordination distances
    adopted were 20 km at 28 GHz and 16 km at 39 GHz. (An analysis of
    possible adverse impact on Canadian communications must still be
    done by the Commission for those stations within 56 km of the
    Canadian border.)

[^97]: At a minimum, stations whose radio horizon overlaps adjacent
    areas should contact the relevant licensees regarding coordination
    of facilities.

[^98]: *See* note 96, *supra*.

[^99]: *See* 47 C.F.R. §§ 1.1307(b), 2.1091, 2.1093.

[^100]: The RF radiation exposure limits are set forth in Sections
    1.1310, 2.1091, and 2.1093 of the Commission\'s Rules, 47 C.F.R. §§
    1.1310, 2.1091, 2.1093, as modified in Guidelines for Evaluating the
    Environmental Effects of Radiofrequency Radiation, *Report and
    Order*, 11 FCC Rcd 15123 (1996) (*\"RF Guidelines Report and
    Order\")*, *First Memorandum Opinion and Order*, 11 FCC Rcd 17512
    (1996), *Second Memorandum Opinion and Order*, 12 FCC Rcd 13494
    (1997).

[^101]: OET Bulletin No. 65 (Edition 97-01) was issued on August 25,
    1997. It is available for downloading at the FCC Web Site:
    www.fcc.gov/oet/rfsafety. Copies of OET Bulletin No. 65 also may be
    obtained by calling the FCC RF Safety Line at (202) 418-2464.

[^102]: *See* 47 U.S.C. § 309(j)(1),(2). Section 309(j)(2) exempts from
    auctions licenses and construction permits for public safety radio
    services, digital television service licenses and permits given to
    existing terrestrial broadcast licensees to replace their analog
    television service licenses, and licenses and construction permits
    for noncommercial educational broadcast stations and public
    broadcast stations.

[^103]: *See* 47 U.S.C. § 309(j)(6)(E).

[^104]: *See* Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934 as Amended*, Notice of Proposed Rule
    Making*, FCC 99-52 (rel. March 25, 1999) ("*BBA NPRM*").

[^105]: *Part 1 Third Report and Order*, 13 FCC Rcd at 381-470.

[^106]: *Id*., 13 FCC Rcd at 471-481.

[^107]: *See* Sections 309(j)(3) and 309(j)(4) of the Communications
    Act, 47 U.S.C. §§ 309(j)(3), 309(j)(4).

[^108]: *See* 47 U.S.C. § 309(j)(3)(B).

[^109]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, *Second Memorandum Opinion and Order*, 9 FCC
    Rcd 7245, 7269, ¶ 145 (1994) (*\"Competitive Bidding Second
    Memorandum Opinion and Order*\").

[^110]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, *Fifth Memorandum Opinion and Order*, 10 FCC
    Rcd 403 (1994).

[^111]: *See* 47 C.F.R. §§ 27.210(b)(1)(2), 101.1209(b)(1(i).

[^112]: *See* 47 C.F.R.§ 1.2110(e)(2)(iii).

[^113]: *See* 47 C.F.R. § 1.2110(e)(2)(ii).

[^114]: *See* 47 U.S.C. § 309(j)(3)(B).

[^115]: *See* 5 U.S.C. § 603.

[^116]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206(a).

[^117]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    *Report and Order*, 13 FCC Rcd 11322 (1998); Electronic Filing of
    Documents in Rulemaking Proceedings, *Memorandum Opinion and Order*,
    13 FCC Rcd 21517 (1998).

[^118]: *See* 5 U.S.C. § 603.

[^119]: *See* 13 C.F.R. § 121.201, Standard Industrial Classification
    (SIC) Code 4812.

[^120]: U.S. Bureau of the Census, U.S. Department of Commerce, 1992
    Census of Transportation, Communications, and Utilities, UC92‑S‑1,
    Subject Series, Establishment and Firm Size, Table 5, Employment
    Size of Firms: 1992, SIC Code 4812 (issued May 1995).

[^121]: Teligent has acquired the DEMS licenses of FirstMark, the only
    other licensee in the 24 GHz band whose license has been modified to
    require relocation to the 24 GHz band.

[^122]: *See* Implementation of Section 309(j) of the Communications Act
    --- Competitive Bidding, *Fifth Report and Order*, 9 FCC Rcd 5532,
    5581-82, ¶ 115 (1994).