Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Allocation and Designation of Spectrum )

for Fixed-Satellite Services )

in the 37.5-38.5 GHz, 40.5-41.5 GHz, )

and 48.2-50.2 GHz Frequency Bands; ) IB Docket No. 97-95

Allocation of Spectrum to Upgrade )

Fixed and Mobile Allocations in the ) RM-8811

40.5-42.5 GHz Frequency Band; )

Allocation of Spectrum in the )

46.9-47.0 GHz Frequency Band for )

Wireless Services; and Allocation of )

Spectrum in the 37.0-38.0 GHz and )

40.0-40.5 GHz for Government Operations. )

# ORDER ON RECONSIDERATION

**Adopted: November 29, 1999 Released: December 1, 1999**

By the Commission:

# Introduction

1.  In a *Report and Order* ("*36-51 GHz Order*") adopted on December
    17, 1998, the Commission established a band segmentation plan for
    non-government operations in the 36.0-51.4 GHz frequency band.[^1]
    Due to the difficulty of sharing between ubiquitous terrestrial
    wireless systems and satellite systems, the *36-51 GHz Order*
    provided separate designations within the band for non-government
    wireless services and for non-government fixed-satellite services
    ("FSS").[^2] The Commission devised a band plan in order to create
    an overall framework for commercial development of the band, to
    increase certainty in business planning, and to clarify the
    relationship among various Commission proceedings ongoing at the
    time.

2.  In response to the rulings in the *36-51 GHz Order*, the Commission
    received three petitions for reconsideration, two oppositions to the
    petitions, two replies to the oppositions, one set of comments in
    support of the petitions, and three ex parte filings.[^3] After
    considering the arguments raised in these filings, we affirm our
    earlier determinations and deny the petitions for
    reconsideration.[^4]

# Background

3.  As we stated in the *36-51 GHz Order*, the 36.0-51.4 GHz frequency
    band has been largely underused for commercial purposes (aside from
    the 38.6-40.0 GHz band), despite the fact that most of the band is
    allocated for fixed, mobile, FSS, and MSS use.[^5] In an effort to
    stimulate commercial development of the band, the Commission devised
    a band segmentation plan in the *36-51 GHz Order*, as opposed to a
    sharing plan, to avoid the difficulties involved in sharing between
    ubiquitous wireless and satellite services.[^6] Within the 36.0-51.4
    GHz band, the Commission designated 4 gigahertz of spectrum for FSS
    and 5.6 gigahertz of spectrum for wireless services.[^7] To
    accommodate the band plan, the Commission revised the U.S. Table of
    Frequency Allocations contained in Part 2 of the Commission\'s
    Rules.[^8] In addition, the Commission responded to a request from
    the National Telecommunications and Information Administration
    ("NTIA") by adding allocations for government services in the
    37.0-38.0 GHz and 40.0-40.5 GHz bands.[^9] Prior to adopting the
    *36-51 GHz Order*, the Commission opened a satellite filing window
    for the 36.0-51.4 GHz band, during which 15 satellite applications
    were filed.[^10]

# Discussion

4.  ***Spectrum designated for satellite use.*** In the *36-51 GHz
    Order*, we carefully considered the competing interests of satellite
    and wireless service providers in designating 4 gigahertz of
    spectrum for FSS use. We continue to believe that the satellite
    designation achieves a reasonable division of spectrum resources
    between FSS and wireless services and provides the FSS industry the
    opportunity to meet its current and future needs.[^11] We therefore
    disagree with Hughes and GE Americom that more than 4 gigahertz of
    spectrum should be designated at this time for FSS.[^12] Hughes and
    GE Americom merely assert, without furnishing any specific
    supporting evidence, that the FSS industry requires at least 6
    gigahertz of spectrum in the 36.0-51.4 GHz band.[^13] They contend
    that the Commission unfairly designated an additional 1.6 gigahertz
    of spectrum for wireless services.[^14] Simply protesting a larger
    designation for wireless services, however, does not demonstrate
    satellite spectrum requirements.

5.  In support of their contention that more spectrum is needed, both
    Hughes and GE Americom refer generally to the 15 satellite
    applications that were filed and to the comments filed by the
    satellite industry regarding the Commission's initial
    proposals.[^15] In the *36-51 GHz Order*, the Commission responded
    fully to the issues raised in those applications and comments, and
    petitioners do not provide any new evidence or put forth any new
    arguments in support of their position. In addition, as even Hughes
    notes, only seven of the satellite applicants proposed using more
    than 4 gigahertz of spectrum.[^16] Moreover, none of the other
    satellite applicants filed petitions for reconsideration arguing
    that the Commission designated an inadequate amount of spectrum for
    FSS.[^17]

6.  We also disagree with Hughes's and GE Americom's claim that we
    failed to provide an adequate rationale for our decision to set
    aside 4 gigahertz of spectrum for FSS.[^18] We believe our decision
    is justified on several grounds. First, as we explained in the
    *36-51 GHz Order*, our FSS and wireless designations strike "a
    reasonable balance of spectrum resources between the needs of these
    services and will provide the users with the opportunity to meet
    their current and future needs in this band."[^19] In evaluating
    these competing needs, we carefully examined the entire record,
    including the satellite applications, and petitioners raise no new
    or novel arguments to justify altering the balance we concluded
    would best serve the public interest. In addition, although we
    provided a larger amount of spectrum for wireless services in this
    particular band, our designations should be viewed in light of the
    reduction, or proposed reduction, of spectrum available for wireless
    services in other bands.[^20]

7.  Second, we concluded in the *36-51 GHz Order* that the satellite
    designation is sufficient because all 4 gigahertz is available for
    satellite services on an exclusive basis.[^21] In other words, no
    other types of services may use the spectrum through sharing
    arrangements or underlay licenses.[^22] This exclusivity will
    benefit satellite providers by eliminating the possibility that
    their access to this spectrum could be reduced by the entry of other
    types of services before satellite systems are deployed.[^23]

8.  Third, satellite providers may eventually be afforded opportunities
    to use the spectrum designated for wireless services, consistent
    with the U.S. Table of Frequency Allocations.[^24] We stated in the
    *36-51 GHz Order* that the bands designated for wireless services
    would be subject to future proceedings to define the specific
    services and operating parameters for particular bands.[^25] GE
    Americom claims, however, that even if satellite entities are
    allowed to participate in auctions for spectrum designated for
    wireless services, such auctions "necessarily will favor terrestrial
    bidders, as the timing of the auctions and the segmentation or
    channelization of the frequencies . . . undoubtedly will be targeted
    to terrestrial services."[^26] We disagree, and we believe that such
    auctions could provide useful opportunities for satellite operators
    to gain additional spectrum. Therefore, we affirm our conclusion
    that our designations strike the appropriate balance among the
    interested parties. We believe that 4 gigahertz of spectrum is a
    sufficient satellite designation at this time, particularly given
    that satellite providers have exclusive use of that spectrum and
    have the potential to gain access to additional spectrum designated
    for wireless services.

9.  We note that, in a Memorandum Opinion and Order adopted in the 39
    GHz proceeding, the Commission maintained the possibility for
    satellite operators to gain access to the 39.5-40.0 GHz band.[^27]
    The Commission, while rejecting TRW\'s request to reallocate the
    39.5-40.0 GHz band exclusively for satellite services, nonetheless
    recognized that the current allocation contains satellite services
    in the 39.5-40.0 GHz band and stated that wireless licensees would
    not be constrained from deploying satellite earth stations in the
    band.[^28] Satellite operators therefore will be free to provide
    service either through a license won at auction (thereby becoming a
    wireless licensee) or through a post-auction arrangement with a
    winning bidder.[^29] Although the Commission did not grant TRW's
    request to require fixed and mobile licensees in the 39.5-40.0 GHz
    band to coordinate with satellite operators to facilitate spectrum
    sharing,[^30] such licensees are not precluded from negotiating
    terms and conditions allowing a satellite operator to provide
    downlink earth station service within a licensee's license area
    (through partitioning, disaggregation, a leasing arrangement, or
    some other means). We note that the 39.5-40.0 GHz band is also
    allocated for government FSS and MSS and that NTIA has notified the
    Commission of a possible future government requirement in this
    band.[^31]

10. In addition, the Commission has made it clear that FSS will be
    permitted in the 47.2-48.2 GHz band. In a Memorandum Opinion and
    Order adopted in the 47 GHz proceeding, the Commission repeatedly
    affirmed its position that satellite providers may operate within
    the band.[^32] Further, the Commission proposed a broad licensing
    framework for the band that would authorize licensees to provide a
    variety of services, including FSS.[^33] In future service
    rulemakings, we will consider similar policies in other
    wireless-designated bands containing satellite allocations.

11. ***FSS worldwide allocations.*** We affirm our decision in the
    *36-51 GHz Order* to designate the 40.5-41.0 GHz band for FSS
    (downlink), even though this spectrum is not yet allocated on a
    global basis for FSS.[^34] GE Americom argues that all
    FSS-designated bands should be in bands globally allocated to FSS
    and asks that the 500 megahertz of downlink spectrum at 40.5-41.0
    GHz not currently allocated to FSS for certain countries be replaced
    by 500 megahertz contiguous with a global FSS downlink
    allocation.[^35] We agree with GE Americom that the FSS allocation
    at 40.5-41.0 GHz ideally would be global to maintain maximum
    flexibility for authorizing both geostationary orbit ("GSO") and
    non-geostationary orbit ("NGSO") systems. That objective, however,
    does not necessitate modification of the FSS designations adopted in
    the *36-51 GHz Order*.[^36] Moreover, there is a distinct
    possibility that the international allocation for the 40.5-41.0 GHz
    band will be revised at WRC-2000. In any event, even if the
    allocation is not changed to a global allocation for FSS, it is
    still possible to operate domestic satellite systems and various
    international systems within the scope of the current allocation. We
    therefore see no reason to amend our FSS designations at this time.

12. ***Use of FSS-designated bands for GSO/NGSO systems.*** GE Americom
    argues that the *36-51 GHz Order* does not offer sufficient
    reassurances for the planning of GSO systems.[^37] Without
    specifying the protections it seeks, GE Americom calls upon the
    Commission to provide technical safeguards that ensure adequate
    spectrum for GSO systems. It asserts that GSO system operators
    cannot develop serious business plans because they do not know how
    or to what extent their use of FSS-designated frequencies can
    overlap or interact with NGSO systems.

13. The satellite industry was divided in its response to the
    Commission's initial proposal to designate separate FSS band
    segments for GSO and NGSO systems.[^38] After careful consideration,
    the Commission ultimately concluded that it was premature to make
    separate designations.[^39] We affirm this decision and reiterate
    our belief that it is preferable to allow for maximum flexibility in
    later satellite proceedings where compatibility of the satellite
    applications can be assessed and any service rule issues can be
    addressed.[^40] Any GSO/NGSO sharing criteria that need to be
    developed will be dealt with in those proceedings.

14. ***FSS sharing of bands designated for wireless services.*** We deny
    TRW's petition seeking clarification that the *36-51 GHz Order*
    allows FSS systems to utilize internationally allocated FSS band
    segments that fall within the wireless-designated bands on an
    essentially secondary basis. TRW argues that such use should be
    permitted provided that FSS operators: (1) abide by international
    power flux density limits to protect terrestrial fixed facilities
    and (2) accept interference that might be caused by fixed service
    operators.[^41] As discussed above, wireless-designated bands will
    be subject to additional rulemaking proceedings that will further
    define the parameters under which specific services can operate in
    particular bands, consistent with the U.S. Table of Frequency
    Allocations. We believe that use of these bands by FSS should be
    addressed in those proceedings.

# IV. Ordering Clause

15. Accordingly, IT IS ORDERED, pursuant to Section 1.429 of the
    Commission's Rules, 47 C.F.R. § 1.429, and pursuant to Sections
    4(i), 301, 302, 303(e), 303(f), 303(g), 303(r), 304, and 307 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 301,
    302, 303(e), 303(f), 303(g), 303(r), 304, and 307, that the
    petitions

for reconsideration filed by GE Americom Communications, Inc.; Hughes
Communications, Inc.; and TRW Inc. are DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX**

## Petitions for Reconsideration

1.  GE American Communications, Inc. ("GE Americom")

2.  Hughes Communications, Inc. ("Hughes")

3.  TRW Inc. ("TRW")

## Oppositions to Petitions

1.  Fixed Wireless Communications Coalition ("FWCC")

2.  WinStar Communications, Inc. ("WinStar")

## Replies to Oppositions

1.  GE American Communications, Inc. ("GE Americom")

2.  Hughes Communications, Inc. ("Hughes")

## Comments in Support of Petitions for Reconsideration

1.  Spectrum Astro, Inc. ("Spectrum Astro")

**[Ex Parte Filings]{.underline}**

1.  Satellite Industry Association ("SIA")

2.  Siemens Information and Communication Networks, Inc. ("Siemens")

3.  TRW Inc. and Lockheed Martin Corporation ("TRW and Lockheed Martin")

[^1]: In the Matter of Allocation and Designation of Spectrum for
    Fixed-Satellite Services in the 37.5-38.5 GHz, 40.5-41.5 GHz, and
    48.2-50.2 GHz Frequency Bands; Allocation of Spectrum to Upgrade
    Fixed and Mobile Allocations in the 40.5-42.5 GHz Frequency Band,
    Allocation of Spectrum in the 46.9-47.0 GHz Frequency Band for
    Wireless Services; and Allocation of Spectrum in the 37.0-38.0 GHz
    and 40.0-40.5 GHz for Government Operations, IB Docket No. 97-95,
    *Report and Order*, 13 FCC Rcd 24649 (1998).

[^2]: The satellite designation established in the *36-51 GHz Order* is
    for exclusive FSS use, except for the 40.0-40.5 GHz band and the
    40.5-41.0 GHz band, which are also designated for the
    mobile-satellite service ("MSS") and the broadcast-satellite
    service, respectively. *See id.* at 24667, ¶ 32.

[^3]: A list of the parties that filed pleadings in response to the
    *36-51 GHz Order*, and the abbreviations used to refer to such
    parties, is attached as an Appendix. Because TRW and Lockheed Martin
    filed a joint reply to the oppositions after the pleading cycle
    closed, we will consider their reply an ex parte filing.

[^4]: Certain members of the wireless and satellite communities are
    currently working to develop a proposal, to present at the World
    Radiocommunication Conference ("WRC") in 2000, that would establish
    a harmonized global plan for portions of the 36.0-51.4 GHz band. By
    adopting this Order on Reconsideration, we do not prejudge future
    requests to reexamine our rulings that might be filed in the event a
    proposal is adopted at WRC-2000 that would make it advisable to
    modify the band plan we affirm today.

[^5]: *36-51 GHz Order*, 13 FCC Rcd at 24650, 24653, ¶¶ 1, 6.

[^6]: *Id.* at 24651, 24656, ¶¶ 1, 13.

[^7]: There may be opportunities for satellite providers to use the
    spectrum designated for wireless services, consistent with the U.S.
    Table of Frequency Allocations. The bands designated for wireless
    services will be subject to future proceedings to define the
    specific services and operating parameters for particular bands.
    *Id.* at 24650-51, 24665, 24668, ¶¶ 1 n.4, 28, 36.

[^8]: *Id.* at 24652, ¶ 4.

[^9]: *Id.* at 24652, ¶ 5.

[^10]: The satellite filing window opened July 22, 1997 and closed
    September 26, 1997.

[^11]: *See* FWCC Opposition at 2 ("\[T\]he Commission struck a fair
    balance in its effort to accommodate competing interests seeking
    access to the 36-51 GHz band."); WinStar Opposition at 4 ("It is
    simply premature for Petitioners to claim that an additional
    allocation for FSS is necessary in the 38 GHz band when satellite
    licensees have not even launched their systems in the Ka-band.");
    Letter from Frederick R. Fromm, President, Siemens Information and
    Communication Networks, Inc. to Magalie Roman Salas, Secretary,
    Federal Communications Commission (April 21, 1999) (supporting the
    Commission's band segmentation plan).

[^12]: *See* Hughes Petition at 2-9; GE Americom Petition at 4-10; *see
    also* Spectrum Astro Comments at 1-5; Letter from Patricia Mahoney,
    Chair, and Clayton Mowry, Executive Director, Satellite Industry
    Association to Magalie R. Salas, Secretary, Federal Communications
    Commission (June 16, 1999) at 1-2 ("SIA Letter").

[^13]: Hughes Petition at 2 and Reply at 7; GE Americom Petition at 10;
    s*ee also* SIA Letter at 1.

[^14]: *See* Hughes Petition at 3-8 and Reply at 1-7; GE Americom
    Petition at 7-10.

[^15]: Hughes Petition at 4-6 and Reply at 2, 5; GE Americom Petition at
    4-5 and Reply at 3-4; *see also* Spectrum Astro Comments at 3-4; SIA
    Letter at 1-2.

[^16]: *See* Hughes Petition at 4; *see also* Spectrum Astro Comments at
    4.

[^17]: *But see* Spectrum Astro Comments 2-4 (supporting Hughes's and GE
    Americom's position that the FSS industry needs additional
    spectrum).

[^18]: *See* Hughes Petition at 2-8 and Reply at 1-2 (arguing that the
    Commission's decision is arbitrary and capricious and thus violates
    the Administrative Procedure Act); GE Americom Petition at 6-10;
    *see also* Spectrum Astro Comments at 3-5.

[^19]: *36-51 GHz Order*, 13 FCC Rcd at 24656, ¶ 13; *see also id.* at
    24665, ¶ 28.

[^20]: *See* FWCC Opposition at 3-4 (the Commission has either limited,
    or proposed to limit, access to spectrum by fixed services in the 2,
    6, 11, and 18 GHz bands).

[^21]: *See supra* note 2.

[^22]: *36-51 GHz Order*, 13 FCC Rcd at 24665, ¶ 28. GE Americom argues
    that, because wireless services are also protected from underlay
    licenses, the absence of underlays does not justify designating a
    smaller amount of spectrum for FSS. GE Americom Petition at 8 and
    Reply at 4. However, despite the elimination of underlay licensing
    from the entire band plan, spectrum designated for wireless services
    potentially may be available to other services for which the
    spectrum is allocated.

[^23]: *36-51 GHz Order*, 13 FCC Rcd at 24665, ¶ 28.

[^24]: We did not delete FSS allocations from the U.S. Table of
    Frequency Allocations where they were already contained in bands
    designated for wireless services.

[^25]: *36-51 GHz Order*, 13 FCC Rcd at 24650-51, 24665, 24668, ¶¶ 1
    n.4, 28, 36.

[^26]: GE Americom Petition at 8-10; s*ee also* Hughes Petition at 7-8;
    GE Americom Reply at 4; SIA Letter at 2.

[^27]: *See* 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, and
    Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, 37.0-38.6 GHz and 38.6-40.0 GHz Bands, PP
    Docket No. 93-253, *Memorandum Opinion and Order*, FCC 99-179, at ¶¶
    47-49 (released July 29, 1999) ("*39 GHz MO&O*").

[^28]: *Id.*

[^29]: Note that a provider of satellite services in the 39.5-40.0 GHz
    band must also obtain a Part 25 license, which could be sought after
    an amendment of the Part 25 service rules or upon a waiver of those
    rules.

[^30]: *39 GHz MO&O* at ¶¶ 47-49.

[^31]: *See* Letter dated September 23, 1999 to Dale N. Hatfield, Chief,
    Office of Engineering and Technology, Federal Communications
    Commission, from William T. Hatch, Acting Associate Administrator,
    Office of Spectrum Management, National Telecommunications and
    Information Administration.

[^32]: Amendment to Parts 2, 15, and 97 of the Commission's Rules To
    Permit Use of Radio Frequencies Above 40 GHz for New Radio
    Applications, ET Docket No. 94-124, International Harmonization of
    Frequency Bands Above 40 GHz, Petition of Sky Station International,
    Inc., For Amendment of the Commission's Rules To Establish
    Requirements for a Global Stratospheric Telecommunications Service
    in the 47.2-47.5 GHz and 47.9-48.2 GHz Frequency Bands, Amendment to
    Part 27 of the Commission's Rules To Revise Rules for Services in
    the 2.3 GHz Band and To Include Licensing of Services in the 47 GHz
    Band, WT Docket No. 98-136, *Memorandum Opinion and Order on
    Reconsideration and Notice of Proposed Rulemaking*, 13 FCC Rcd
    16947, 16951, 16959, 16965-66, ¶¶ 5, 25, 42 (1998).

[^33]: *Id.* at 16974, ¶ 67. Note that satellite use of the 47.2-48.2
    GHz band will require pairing with another frequency band. *Id.* at
    16965, ¶¶ 40-41.

[^34]: At WRC-97, there was a provisional international allocation for
    FSS in part of Region 1 (excluding Europe and a few African
    countries), all of Region 2, and most of Region 3 (excluding India
    and Korea). The allocation could be made global at WRC-2000. *See
    36-51 GHz Order*, 13 FCC Rcd at 24666, ¶ 30 n.76.

[^35]: GE Americom Petition at 10-13. GE Americom argues that,
    alternatively, the Commission could withdraw the *36-51 GHz Order*
    and delay taking action on the band until all spectrum currently
    designated for FSS use is guaranteed to be within international FSS
    allocations. *Id.* at 12-13. *See* Spectrum Astro Comments at 5-6
    (supporting GE Americom's position that the Commission's FSS
    designations should conform to international allocations).

[^36]: *See* FWCC Opposition at 5-6 (the proper forum for GE Americom's
    complaint is the ITU, not the Commission). *But see* GE Americom
    Reply at 6-7 (it is easier for the Commission to make its domestic
    designations consistent with international allocations than it is to
    effectuate a change through the ITU process).

[^37]: GE Americom Petition at 13-15; *see also* Spectrum Astro Comments
    at 6.

[^38]: *36-51 GHz Order*, 13 FCC Rcd at 24660, ¶ 20.

[^39]: *Id.* at 24660-61, ¶ 21; *see also* TRW Petition at 4 (supporting
    the Commission's decision to refrain from specifying GSO and NGSO
    designations).

[^40]: *See 36-51 GHz Order*, 13 FCC Rcd at 24660-61, ¶ 21.

[^41]: TRW Petition at 5; *see also* SIA Letter at 2 (supporting TRW's
    proposal); TRW and Lockheed Martin Joint Reply at 7 (placing an FSS
    earth station in a remote area without reaching an agreement with
    the area's wireless licensee or without obtaining the rights to do
    so through an auction will not create a "hole" for the wireless
    licensee). Both FWCC and WinStar oppose TRW's request. FWCC
    Opposition at 6-7; WinStar Opposition at 7-15.