**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | WT Docket No. 01-90          |
|                                  | * |                              |
| Amendment of the Commission's    | ) | ET Docket No. 98-95          |
| Rules                            | * |                              |
|                                  | * | RM-9096                      |
| Regarding Dedicated Short-Range  |   |                              |
| Communication Services in the    | * |                              |
| 5.850-5.925 GHz Band (5.9 GHz    | * |                              |
| Band)[^1]                        | ) |                              |
|                                  | * |                              |
| Amendment of Parts 2 and 90 of   | * |                              |
| the Commission's Rules to        |   |                              |
| Allocate the 5.850-5.925 GHz     | * |                              |
| Band to the Mobile Service for   | * |                              |
| Dedicated Short Range            | ) |                              |
| Communications of Intelligent    | * |                              |
| Transportation Services          | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
+----------------------------------+---+------------------------------+

**NOTICE OF PROPOSED RULEMAKING AND ORDER**

**Adopted:** November 7, 2002 **Released:** November 15, 2002

By the Commission:

**Comment Due Date: 60 days after Federal Register publication\]**

**Reply Comment Due Date: \[90 days after Federal Register
publication\]**

Table of Contents

Heading Paragraph

I. introduction AND EXECUTIVE SUMMARY 1

II\. backgRound 4

A. Creation of ITS 4

B. Development of ITS 5

C. Creation of ITS Radio Service and Allocation of the 5.9 GHz band to
DSRC-based ITS Services 6

D. Table of allocations; Part 90 Intelligent Transportation Radio
Service 9

E. ITS America Status Report and Responsive Public Comments 10

F. July *Ex Parte* Comments 11

III\. discusson 12

A. The DSRC service 12

B. Eligibility 17

1\. Public safety uses 18

2\. Non-public safety uses 22

C. Interoperability 24

D. Band Plan 35

E. Licensing Plan 40

1\. Road Side Units 41

2\. On Board Units 51

3\. Treatment of Incumbent Services 55

F. Grant of Licenses 59

G. Application, Licensing and Processing Rules 63

1\. Licensing 63

2\. Construction or Coverage/Service Requirements; License Term; Renewal
Expectancy 64

3\. Universal Licensing System 67

H. Technical Rules 68

1\. Power limits and emission mask requirements 68

2\. Emissions Limits 70

3\. Antenna Height 72

4\. Frequency Stability Limits 73

I. Canadian and Mexican Coordination 74

J. Competitive Bidding Procedures 75

1\. Incorporation by Reference of the Part 1 Standardized Auction Rules
76

2\. Provisions for Designated Entities 77

K. Other Matters 82

IV\. PROCEDURAL MATTERS 85

A. Initial Regulatory Flexibility Analysis 85

B. Paperwork Reduction Analysis 86

C. *Ex Parte* Presentations 88

D. Comment Dates 89

E. Further Information 91

V. Ordering clauses 93

APPENDICES P

Appendix A Initial Regulatory Flexibility Analysis

Appendix B List of DSRC-based ITS applications

Appendix C List of Commenters

# introduction AND EXECUTIVE SUMMARY

1.  In this *Notice of Proposed Rulemaking and Order (Notice and
    Order)*, we propose service rules to govern the licensing and use of
    the 5.850-5.925 GHz band (5.9 GHz band) for Dedicated Short-Range
    Communications (DSRC) services in the Intelligent Transportation
    System (ITS) radio service.[^2] Specifically in this *Notice and
    Order*:

-   We propose to permit entities providing public safety DSRC
    operations to use the 5.9 GHz band.

-   For public safety entities, we propose to apply the application,
    licensing and processing rules under Part 90 of the Commission\'s
    Rules.

2.  We generally seek comment on the following issues:

-   whether to license Roadside Units (RSUs) by site or geographic area.

```{=html}
<!-- -->
```
-   whether to permit non-public safety radio DSRC operations in the 5.9
    GHz band:

```{=html}
<!-- -->
```
-   In the event that we allow non-public safety radio applications in
    the 5.9 GHz band and in the event that the licensing scheme we
    select for those ITS applications results in mutually exclusive
    licenses, we propose to apply competitive bidding procedures under
    the Commission's Part 1 competitive bidding rules.

```{=html}
<!-- -->
```
-   the definition of public safety in the context of ITS;

-   the definition of Dedicated Short-Range Communication Service
    (DSRCS);

-   the interoperability necessary for DSRC operations and how this
    interoperability should be achieved;

-   whether to license On Board Units (OBUs) associated with fixed
    systems under the associated RSU license.

-   whether the OBUs not associated with a fixed system should be
    licensed by rule or unlicensed under Part 15.

-   the appropriate licensing scheme or schemes for this band;

```{=html}
<!-- -->
```
-   various channelization plans;

```{=html}
<!-- -->
```
-   various technical matters; and

```{=html}
<!-- -->
```
-   use of this band in Mexican and Canadian border areas.

3.  [Dismissal of Petitions for Reconsideration]{.underline}. Further,
    we also seek comment on issues raised by two Petitions for
    Reconsideration or Clarification of the *Allocation Report and
    Order*.[^3] PanAmSat sought reconsideration of the Commission's
    decision that prior coordination between DSRC operations
    applications and Fixed Satellite Service (FSS) uplinks is
    unnecessary.[^4] Mark IV Industries sought reconsideration or
    clarification of the power levels and emission mask requirements
    established in the *Allocation Report and Order.*[^5] We dismiss
    these two petitions for reconsideration as moot because we are
    seeking comment on the issues raised through this through this
    *Notice*, and, with the benefit of a fuller record, will address
    those issues in this proceeding, *i.e.*, WT Docket 01-90.

# backgRound

## Creation of ITS

4.  The ITS[^6] program, a national program administered by the United
    States Department of Transportation (DOT), was created by Congress
    in the Intermodal Surface Transportation Efficiency Act of 1991
    (ISTEA).[^7] The goals[^8] of the ITS program are challenging and
    ambitious; the ITS program incorporates technology and advanced
    electronics[^9] into the nation's surface transportation
    infrastructure to improve traveler safety, decrease traffic
    congestion, facilitate the reduction of air pollution, and conserve
    vital fossil fuels.[^10] To accomplish these goals, ISTEA required
    DOT to "promote *compatibility* among intelligent \[transportation\]
    technologies throughout the States" \[emphasis supplied\].[^11] In
    response to Congressional authorization to use an advisory
    committee,[^12] DOT selected the Intelligent Transportation Society
    of America (ITS America) [^13] as its Federal Advisory
    Committee[^14] on ITS matters.

## Development of ITS

5.  After the passage of ISTEA, in 1991, DOT began to develop and deploy
    ITS.[^15] In doing so, DOT states that it worked with many public
    and private partners throughout the United States, including ITS
    America.[^16] In 1993, DOT, its partners, and ITS America started to
    develop a national architecture,[^17] an organized approach to
    implementing ITS services.[^18] The National Architecture is
    designed to ensure the development of a seamless, multimodal, ITS
    system across the country; in essence, it is a master plan or a
    framework for the deployment of ITS technologies and systems for the
    next twenty years.[^19] Completed in 1996, and amended from
    time-to-time, the National Architecture[^20] currently identifies
    thirty-two ITS User Services,[^21] which are divided into one or
    more of the eight User Service Bundles.[^22] Furthermore, the
    National Architecture identifies five communication linkages as
    necessary for one or more of these User Services: wide area
    broadcast, wide area two-way wireless, DSRC, vehicle-to-vehicle
    communication, and wireline communication.[^23] The National
    Architecture identifies DSRC as critical for deploying many ITS User
    Services;[^24] such uses are generally called DSRC-based ITS
    applications.[^25] In this connection, ITS America states that DSRC
    is particularly useful for User Services that require
    "high-reliability real-time data communications with a rapidly
    moving vehicle."[^26]

## Creation of ITS Radio Service and Allocation of the 5.9 GHz band to DSRC-based ITS Services

6.  In 1997, ITS America petitioned the Commission to allocate
    seventy-five megahertz of spectrum in the 5.9 GHz band for ITS, in
    particular for DSRC.[^27] The petition noted that although
    DSRC-based ITS systems had been deployed in the Location and
    Monitoring Service in the 902-928 MHz band, that band "is simply too
    small and too congested" to support the many DSRC applications
    contemplated in the National Architecture.[^28]

7.  In 1998, Congress passed and the President signed into law the
    Transportation Equity Act for the 21^st^ Century (TEA-21).[^29]
    TEA-21, the successor to ISTEA, reauthorized the national ITS
    program,[^30] with two changes relevant here. First, TEA-21 directed
    the Commission, in consultation with DOT, to consider the spectrum
    needs "for the operation of intelligent transportation systems,
    including spectrum for the dedicated short-range vehicle-to-wayside
    wireless standard,"[^31] DSRC. TEA-21 directed the Commission to
    complete a rulemaking considering the allocation of this spectrum by
    January 1, 2000.[^32] Second, TEA-21 directed DOT to promote,
    through the National Architecture, *interoperability*[^33] among ITS
    technologies implemented throughout the United States \[emphasis
    supplied\]. In addition, TEA-21 requires that all federal funds used
    to deploy ITS technologies conform to the National
    Architecture.[^34]

8.  In October 1999, the Commission released the *Allocation* *Report
    and Order* allocating the 5.9 GHz band for DSRC-based ITS
    applications and adopting basic technical rules for DSRC operations.
    The Commission noted that the 5.9 GHz band was appropriate for DSRC
    operations "due to its potential compatibility with European and
    Asian DSRC developments."[^35] The Commission also amended[^36]
    Subpart M of Part 90, the Intelligent Transportation Radio Service
    (ITS radio service)[^37] to include the DSRC service in addition to
    the Location and Monitoring service.[^38] Both the LMS service and
    the DSRC service seek "to develop and implement . . . intelligent
    transportation systems"[^39] by integrating "radio-based
    technologies into the nation's transportation infrastructure."[^40]
    The Commission deferred consideration of licensing and service rules
    and spectrum channelization plans to a later proceeding because the
    standards addressing those matters were still being developed by
    DOT.[^41] Specifically, the Commission invited "the ITS industry and
    the DOT to consider the spectrum requirements of various DSRC
    applications and recommend a spectrum channelization plan."[^42] The
    Commission further found that "DSRC operations must comply with the
    RF safety guidelines contained in the *Second Memorandum Opinion and
    Order* . . . in ET Docket No. 93-62."[^43] A brief overview of the
    allocation of the 5.9 GHz band follows.

## Table of allocations; Part 90 Intelligent Transportation Radio Service

9.  Internationally, the 5.9 GHz band is allocated on a primary basis
    for Fixed Satellite Service ("FSS") Earth-to-space links ("uplinks")
    Fixed, and Mobile Services.[^44] It is further designated
    internationally for industrial, scientific, and medical (ISM)
    applications.[^45] In Region 2 it is also allocated on a secondary
    basis to the Amateur radio service and the Radiolocation
    service.[^46] Domestically,[^47] it is designated on a co-primary
    basis for DSRC operations,[^48] the Government's Radiolocation
    Service (*i.e.*, for use by high-powered military radar systems) and
    for non-Government Fixed Satellite Service (FSS) uplink operations.
    To ensure that mobile operations in 5.9 GHz band are ITS related,
    the Commission adopted footnote NG160 to the Table of Frequency
    Allocations to read as follows:

> NG160 In the 5850-5925 MHz band, the use of the non-Federal government
> mobile service is limited to Dedicated Short-Range Communications
> operating in the Intelligent Transportation System radio service.[^49]

## ITS America Status Report and Responsive Public Comments

10. On October 6, 2000, ITS America filed a "Status Report," [^50] on
    licensing and service rules and deployment strategies for DSRC,
    describing its consensus building activities, identifying issues,
    and setting forth the candidate technologies under consideration for
    DSRC-based ITS applications. The Wireless Telecommunications Bureau
    (Bureau) subsequently released a *Public Notice*[^51] seeking
    information from the public on the issues presented and discussed in
    the Status Report. Shortly thereafter, to assist in developing
    licensing and service rules for DSRC-based ITS applications, the
    Commission opened the captioned docket and placed the Status Report
    and related documents on the Electronic Comment and Filing
    System.[^52] Eight comments and four reply comments were
    received.[^53]

## July *Ex Parte* Comments

11. On July 9, 2002, ITS America filed *Ex Parte* Comments[^54] in which
    it proposed recommendations regarding the licensing and service
    rules. Those recommendations, discussed below, include a
    recommendation for the Commission to adopt a single wireless
    transmission standard,[^55] ASTM E2213-02, Standard Specification
    for Telecommunications and Information Exchange Between Roadside and
    Vehicle Systems -- 5 GHz Band Dedicated Short Range Communications
    (DSRC) Medium Access Control (MAC) and Physical Layer (PHY)
    (ASTM-DSRC Standard), for all DSRC operations and equipment using
    the 5.9 GHz band.[^56]

# discusson

## The DSRC service

12. [Background]{.underline}. As discussed above, the Commission
    designated the 5.9 GHz band for "Dedicated Short-Range
    Communications operating in the Intelligent Transportation Radio
    Service."[^57] The DSRC service is defined in Section 90.7 of the
    Commission's Rules as:

> \[t\]he use of non-voice radio techniques to transfer data over short
> distances between roadside and mobile radio units, between mobile
> units, and between mobile and portable units to perform operations
> related to the improvement of traffic flow, traffic safety, and other
> intelligent transportation service applications in a variety of public
> and commercial environments. DSRC systems may also transmit status and
> instructional messages related to the units involved.[^58]

13. The following is a brief description of DSRC-based ITS applications
    as submitted by ITS America. DSRC-based ITS applications vary by
    category (public safety or private radio), by range (less than fifty
    feet, 50-300 feet, 300-1100 feet, and 1000-3000 feet)[^59] and by
    vehicle type (all vehicles, buses, trains, heavy trucks, and
    emergency vehicles).[^60] DSRC operations will use short-range,
    low-power data transmissions of limited duration.[^61] DSRC
    operations involve the following two types of DSRC devices: a
    Roadside Unit (RSU) and an On-Board Unit (OBU).[^62] An RSU is a
    DSRC transceiver and is normally mounted along a road or a
    pedestrian passageway.[^63] It may also, however, be mounted on a
    vehicle or be hand carried, but may only operate when
    stationary.[^64] This portability will be for uses that are
    temporary, such as work zone warnings. An OBU is a DSRC transceiver
    that is mounted in or on a vehicle or it may be hand carried;[^65] a
    portable OBU might be used at the scene of a car crash. An OBU can
    be operational while in motion or stationary.[^66] According to ITS
    America, the majority of DSRC-based ITS wireless transmissions will
    occur either between vehicles or between a moving vehicle and a
    fixed transmitter in a line-of-sight, point-to-point, or
    point-to-multipoint configuration.[^67] In many instances, ITS
    America states, the vehicle will be traveling at highway speeds and
    will quickly pass through the "communications zone" of a fixed
    transmitter.[^68] ITS America states that it is estimated that the
    data rate must be at least six Mbs to ensure reliability.[^69]

14. [Discussion]{.underline}. Since the *Allocation Report and Order*
    was released, we note that the number and kinds of DSRC-based ITS
    applications have changed and continue to evolve.[^70] Therefore, we
    seek comment on whether the definition of "Dedicated Short-Range
    Communications Service," originally adopted in the *Allocation
    Report and Order*, adequately covers the communication needs for all
    of the DSRC-based ITS applications envisioned by the ITS community.
    For instance, we seek comment on whether transferring "data" would
    encompass the video and audio component of the "Emergency Vehicle
    Video Relay" application, a new application added by ITS
    America.[^71]

15. In the July *Ex Parte* Comments, ITS America notes that it is
    expected that the OBU would be able to convert certain types of data
    transmissions into voice messages using a variety of methods,
    including Voice-over-IP, Voice XML, or another packet radio
    technique, which would "store and forward" the message.[^72] This
    technique would be used in the "Road Condition Warning" application
    in which a transportation agency would transmit, for example, a
    travel advisory warning drivers that they may encounter ice or other
    slippery conditions.[^73] ITS America argues that this "store and
    forward" technique should not be construed as real-time, two-way
    communication, and thus, ITS America recommends that the word
    "non-voice" be deleted from the definition of DSRC.[^74] In this
    connection, we note that real-time \"voice\" might be a component of
    some DSRC-based ITS applications, such as Emergency Vehicle Video
    Relay. Accordingly, we seek comment on ITS America's recommendation.

16. Several commenters to the *Public Notice* commented on whether the
    DSRC service should include "intelligent transportation service
    applications in a variety of . . . commercial environments." [^75]
    One commenter states that "it is not unreasonable to assume that the
    market for . . . private and commercial uses will emerge more
    quickly and potentially could be larger than the requirements of
    public safety users."[^76] Others disagree, and maintain that the
    5.9 GHz band will be fully loaded with public safety and private
    radio DSRC-based ITS applications.[^77] In this connection, ITS
    America recommends that we replace the phrase "and commercial
    environments" with the phrase "and private environments."[^78]
    According to ITS America, this change permits both "private radio
    and commercial entities providing such services . . . to play an
    important role in the deployment of DSRC-based ITS
    applications."[^79] ITS America further maintains that such an
    amendment to the definition of DSRC service is necessary because
    "the DSRC spectrum is neither suitable for nor intended for
    cellular-based commercial applications such as CMRS \[Commercial
    Mobile Radio Service[^80]\]."[^81] In light of the concerns of ITS
    America and because of the continuing development of DSRC-based ITS
    applications and to promote the flexible use of the band, we propose
    to amend the definition of DSRC service by deleting the phrase "of
    public and commercial" from Section 90.7 and 90.371(a) of the Rules;
    [^82] thus, these sections would read "a variety of environments."
    We seek comment on the proposal. Commenters should note that this
    issue is directly related to the issue of eligibility, which is
    discussed below. While commercial uses are not specifically
    addressed below, we seek comment on whether commercial uses should
    be permitted in the 5.9 GHz band.

## Eligibility 

17. [Background]{.underline}. ITS America recommends that the 5.9 GHz
    band "be designated for shared public safety and private
    services"[^83] ITS America maintains that such shared use "will
    ensure that the band is put to its best and highest use for the
    greatest public benefit."[^84] In this connection, ITS America notes
    that permitting private radio services in the 5.9 GHz band is
    necessary to achieve national interoperability of DSRC
    services.[^85] Nonetheless, ITS America reports that there is
    consensus that public safety will be dominant in the band and should
    be given priority over private transmissions.[^86] Below, we discuss
    ITS America's specific recommendation along with comments that we
    received on this issue.

### Public safety uses

18. As mentioned above, we received several comments on who should be
    eligible to use the 5.9 GHz band. In assessing how the 5.9 GHz band
    should be used and by whom, we considered ISTEA, TEA-21, as well as
    the Communications Act of 1934, ITS America's First[^87] and
    Second[^88] Proposed Band Plans, the Status Report, the comments to
    the *Public Notice*, and the July *Ex Parte* Comments*.* Most
    importantly, however, we considered statutory language. The intent
    of Congress, as stated in Section 6059 of ISTEA, is "to improve the
    efficiency and safety of surface transportation systems."[^89]
    TEA-21 reaffirmed this Congressional intent when it stated that one
    of the goals of the national ITS program was to enhance the safe
    operation of motor vehicles, particularly by reducing the number and
    severity of collisions.[^90] In addition, we note that statistics
    compiled by DOT demonstrate the need for dramatic improvement in the
    safety of the nation's surface transportation system. In 1999, there
    were 6,279,000 motor vehicle crashes in which 41,611 people were
    killed[^91] and 3,236,000 people were injured.[^92] Consequently, we
    disagree with PSWN's statement that the proposed use of the 5.9 GHz
    band "is only tangentially related to public safety . . .
    services"[^93] and is "geared toward the development of technology
    for traffic management issues."[^94] While we appreciate and
    champion the needs of traditional public safety entities,[^95] in
    particular emergency responders such as police, fire departments,
    and medical personnel, the benefits of ITS service, such as
    preventing motor vehicle crashes, should not be diminished.[^96] The
    prevention of injuries, fatalities, and property damage would
    benefit the public on both the societal and individual level.
    According to ITS America, many DSRC-based ITS applications promise
    to prevent these crashes from occurring.[^97] Moreover, we note that
    Congress has also established improving the nation's ability to
    respond to emergencies and natural disasters as a goal of the
    national ITS program,[^98] which should benefit traditional public
    safety entities. Finally, ITS America reports that the clear
    consensus of the ITS stakeholders is that "a significant portion of
    the DSRC spectrum be designated for ITS-related public safety
    services, and licensed as such."[^99] Consequently, we tentatively
    conclude that the 5.9 GHz band should be used primarily for "public
    safety" purposes. We seek comment on this tentative conclusion.

19. *Public safety radio services.* In the July *Ex Parte* Comments, ITS
    America recommends that we define "public safety" for ITS purposes
    consistent with the definition of "public safety radio services"
    under Section 309(j)(2) of the Act.[^100] Section 309(j)(2) exempts
    from the Commission's auction authority licenses and construction
    permits issued for "public safety radio services." "Public safety
    radio services" include "private internal radio services used by
    State and local governments and non-government entities (NGOs) and
    including emergency road services provided by not-for-profit
    organizations, that---(i) are used to protect the safety of life,
    health, or property; and (ii) are not made commercially available to
    the public."[^101] The public safety radio services exemption
    includes not only "traditional public safety services such as
    police, fire, and emergency medical services"[^102] but also
    non-commercial, private internal radio services used by State or
    local governmental entities, "without any further showing as to
    eligibility."[^103] Not-for-profit organizations that provide
    private internal, non-commercial radio service for emergency road
    services are specifically included.[^104] Other non-commercial,
    private internal radio services may be classified as public safety
    radio services if they (1) are used by entities whose infrastructure
    is used primarily for the purpose of providing essential public
    services to the public at large; and (2) need, as part of their
    regular mission, reliable and available communications in order to
    prevent or respond to a disaster or crisis affecting the public at
    large.[^105] Non-commercial, private internal radio services used by
    "utilities, railroads, metropolitan transit systems, pipelines,
    private ambulances, and volunteer fire departments"[^106] have been
    found to meet this two-part test. A private internal radio service
    is "a service in which the licensee does not make a profit, and all
    messages are transmitted between fixed operating positions located
    on premises controlled by the licensee and the associated fixed or
    mobile stations or other transmitting or receiving devices of the
    licensee."[^107] One of the most common characteristics of private
    internal radio systems is that they are "not operated as a direct
    source of revenue, but rather as a means of internal communications
    to support the day-to-day needs of the licensees' business
    operations."[^108] Service "not made commercially available to the
    public" means that the telecommunications "service is not provided
    with the intent of receiving compensation, and is not available to a
    substantial portion of the public."[^109]

20. As described above, many DSRC-based ITS applications will be used to
    reduce the number of injuries and fatalities and the amount of
    property damage due to motor vehicle crashes. These purposes are
    consistent with Section 309(j)(2) of the Communications Act of 1934.
    Moreover, while many of these safety-related DSRC-based ITS
    applications will be used by State or local governmental entities,
    and NGOs authorized by governmental entities, it is also possible
    that a significant number of DSRC-based ITS applications will
    involve public safety operations by entities that are within the
    definition of public safety radio services, but either do not or
    should not, have to meet the criteria for NGO licensing under
    Section 337(f).[^110] Such entities are utilities, pipelines,
    railroads, metropolitan transit systems, private ambulances, or
    volunteer fire departments, which were specifically mentioned by
    Congress as eligible for the exemption under Section
    309(j)(2).[^111] These factors, in conjunction with the purpose of
    the Intelligent Transportation System program \-- to improve the
    safety and efficiency of the nation's surface transportation system
    through the use of advanced electronics and communications \-- leads
    us to seek comment on whether we should define "public safety" for
    purposes of the ITS radio services consistent with the public safety
    radio services exemption in Section 309(j)(2) of the Act or in some
    other manner.

21. *Section 337(f)(1).* We also seek comment on using the definition of
    public safety contained in Section 337(f)(1)[^112] of the Act.
    Section 337(f)(1) of the Act defines "public safety services" as
    services:

    \(A\) the sole or principal purpose of which is to protect the
    safety of life, health, or property;

    \(B\) (i) by State or local government entities; or

    \(ii\) by nongovernmental organizations that are authorized by a
    governmental entity whose primary mission is the provision of such
    services; and

    \(C\) that are not made commercially available to the public by the
    provider.[^113]

Such a standard would generally limit uses of the spectrum to state and
local governmental entities and non-governmental organizations
authorized to provide public safety services by a governmental entity
whose primary mission is to protect the safety of life, health, or
property.[^114]

### Non-public safety uses

22. In addition to public safety, ITS America recommends that private
    radio licensees providing DSRC-based ITS services be permitted in
    the band. ITS America believes that permitting private radio
    licensees in the 5.9 GHz band is necessary to achieve national
    interoperability of DSRC services;[^115] in essence ITS America
    maintains that permitting private radio licensees would create an
    incentive for vendors to quickly and economically develop the
    technology necessary for the numerous DSRC applications contemplated
    for this band.[^116] Incentives are needed because "making DSRC
    available in the 5.9 GHz band will require a very large technology
    investment by prospective vendors" who are "reluctant to make such
    an investment unless there is a clear market for the resulting
    products."[^117] Public safety entities would then benefit from the
    cost savings derived from economies of scale,[^118] and
    "safety-related DSRC services should be accorded the highest
    priority in the licensing and service rules."[^119] In light of ITS
    America's consensus building activities and the favorable comments
    on this issue in response to the *Public Notice,* we seek comment on
    whether to allow "private*,*" *i.e*., "non-public safety" DSRC
    operations in some portion of the 5.9 GHz band.

23. For commenters who believe that we should permit non-public safety
    uses of the 5.9 GHz band, we seek comment on ITS America's
    recommendation to amend Part 90 of the Commission's Rules to define
    "private services," *i.e*., "non-public safety use of the DSRC
    band," as:

> A radio service used for data transmission between a licensee's fixed
> Roadside Unit located on premises controlled by the licensee and
> associated mobile On-Board Units of the licensee or non-associated
> mobile On-Board Units licensed by rule pursuant to this subpart, and
> is not offered as a telecommunications service or otherwise operated
> as a direct source of revenue, but is used to support the licensee's
> business operations or to protect the safety of their employees,
> customers, or the general public.[^120]

We seek comment on whether we should permit non-public safety DSRC
operations in the 5.9 GHz band; and, if so, whether we should adopt ITS
America's recommended definition of "private services," *i.e.,*
"non-public safety services." We note that ITS America based its
definition on 47 C.F.R. § 101.1305, which is the definition of "private
internal services" that governs Multiple Address Systems (MAS).[^121] In
this connection, we invite comment on whether to use that definition,
which is as follows: "\[a\] private internal service is a service where
entities utilize frequencies purely for internal business purposes or
public safety communications and not on a for-hire or for-profit
basis."[^122] Alternatively, we seek comment on the feasibility of
framing the definition of non-public safety use without reference to the
definition of \"private internal radio services.\" For example, should
we instead enumerate specific DSRC-ITS applications that would qualify
for non-public safety use? Or, could non-public safety use be defined as
follows: "use of the 5.9 GHz band for DSRC, *see* 47 C.F.R. §§ 90.7,
90.371, that does not qualify as public safety use of the 5.9 GHz band"?

## Interoperability

24. [Background]{.underline}. Communications will form the backbone of
    DSRC-based ITS applications.[^123] Interoperable DSRC-based ITS
    applications, in turn, will promote interstate commerce and enhance
    the safety and efficiency of the nation's surface transportation
    system. As noted above, several ITS applications are currently
    deployed in the 902-928 MHz band and have been successful.[^124] ITS
    America reports that electronic toll collections have increased the
    capacity of toll collection systems by 250 percent with the
    resulting efficiency gains reducing emissions caused by idling
    motors by up to 83 percent.[^125] Electronic clearance for
    commercial vehicles has been deployed along several trucking
    corridors, thus enabling regulatory authorities to quickly and
    accurately check credentials, size, weight, cargo, and selected
    safety information. [^126]

25. Although ITS America reports the successful implementation of DSRC
    operations in the 902-928 MHz band, it states that "the ITS
    community is confronting problems caused by non-interoperable
    systems and devices. . . ."[^127] For example, ITS America explains,
    "\[t\]oll agencies . . . have required . . . vendors to create
    proprietary systems for individual toll systems;"[^128] thus, even
    within a State, toll systems are often incompatible.[^129] ITS
    America continues, "the lack of a common transmission standard" for
    electronic toll collection systems, such as Fastrak®, Tolltag®,
    Sunpass®, and EZ-Pass®, means that the tag for one toll system may
    cause interference to another toll system.[^130] "Interstate
    vehicles, especially commercial vehicles are forced to carry
    multiple toll tags for commonly traveled routes or stop to pay at
    those toll booths for which it does not have a proprietary
    tag."[^131] ITS America concludes "\[s\]olving these and similar
    problems is not possible at the local or statewide level. National
    attention and resources must be applied."[^132] DOT also sought to
    address the lack of interoperable systems when it initiated a
    rulemaking to require the use of the "FHWA Specification for
    'Dedicated Short Range Commercial Communications (DSRC) for
    Commercial Vehicles'" as a provisional standard for ITS commercial
    vehicle projects using highway trust funds.[^133] Not only does a
    lack of interoperability negatively effect interstate commerce, it
    may become a disincentive to deploying several DSRC-based ITS
    applications especially those that are safety related, such as
    vehicle-to-vehicle communications, where it is critical that
    vehicles be able to communicate with each other regardless of their
    location.

26. *DOT*. Congress also recognized the need for national interoperable
    DSRC-based ITS applications. In enacting TEA-21 in 1998, Congress
    made several changes to the national ITS program that it had created
    in 1991, in ISTEA, and mandated that DOT and the Commission
    accomplish several tasks related to the development of national,
    interoperable DSRC operations. First, TEA-21 directed the Secretary
    of DOT, through the National Architecture, to promote
    "interoperability[^134] among . . . intelligent transportation
    systems technologies implemented throughout the United
    States."[^135] Second, TEA-21 required DOT and ITS America to
    develop a National ITS Program Plan, in which DOT and ITS America
    were to "identify activities that provide for the dynamic
    development of standards and protocols to promote and ensure
    interoperability in the implementation of intelligent transportation
    system technologies. . . ."[^136] Third, TEA-21 authorized DOT to
    "use the services of such standards development organizations as the
    Secretary determines to be appropriate."[^137] Fourth, TEA-21
    required DOT to report to Congress, by June 1, 1999, "which
    standards are critical to ensuring national interoperability."[^138]
    In June 1999, DOT identified the standard for DSRC operations in the
    5.9 GHz band as a critical standard.[^139]

27. *The Commission*. In response to TEA-21's direction to the
    Commission to consider the spectrum needs for DSRC-based ITS
    systems,[^140] the Commission released the *Allocation NPRM* which
    sought comment on "other technical issues in order to encourage
    industry to begin a process that, we believe, will lead to consensus
    on standards that will permit nationwide interoperability for some
    DSRC applications and that bear fruit in a future proceeding to
    establish licensing and service rules."[^141] In the *Allocation
    Report and Order*, however, the Commission noted that the standards
    were still under development by DOT and once "such standards are
    developed, the Commission will take whatever action is necessary to
    implement the standards related to DSRC use." [^142]

28. *ITS America and the Standards Writing Group.* Subsequent to the
    Commission's allocation of the 5.9 GHz band to the mobile service
    for use by DSRC systems, ITS America began to hold stakeholder
    workshops, panel discussions, and other industry meetings to develop
    a consensus on how to achieve national interoperability in the
    deployment of DSRC-based ITS user services.[^143] The Federal
    Highway Administration (FHWA), an agency of DOT entered into a
    cooperative agreement[^144] with the American Society for Testing
    and Materials (ASTM) [^145] to develop a national, interoperable
    standard for DSRC equipment operating in the 5.9 GHz band. ASTM,
    through its Working Group E17.51 (Standards Writing Group), which
    operates as a consensus-based organization in accordance with the
    operating principles of the American National Standards Institute
    (ANSI),[^146] began to develop new user requirements for DSRC at 5.9
    GHz and to draft open and interoperable standards.[^147] Public
    safety agencies and others provided input to the Standards Writing
    Group.[^148] Amtech Industries (now part of TransCore Corporation),
    Mark IV Industries, Raytheon, and Sirit Technologies, the primary
    DSRC manufacturers of North America, formed the DSRC Industry
    Consortium and provided input to the Standards Writing Group.[^149]
    DOT funded Aeronautical Radio, Inc. (ARINC) and John Hopkins
    University's Applied Physics Laboratory (JHU APL) to objectively
    analyze and evaluate competing technologies and standards for DOT
    and ITS America.[^150]

29. *The ASTM-DSRC Standard.* On August 24, 2001, the Standards Writing
    Group selected, by a vote of 20-2, a version of the Institute of
    Electrical and Electronic Engineers, Inc.'s (IEEE) 802.11 and
    802.11a standard,[^151] which use**s** Orthogonal Frequency Division
    Multiplexing (OFDM),[^152] as the preferred technology to provide
    national interoperability for DSRC operations.[^153] The choice of
    OFDM[^154] technology permits the use of a wide range of bandwidths,
    from tens of kHz to tens of MHz, thus giving licensees the
    flexibility to use the particular digital emissions and bandwidths
    that meet their operational needs.[^155] Such flexibility would
    foster interoperability of equipment made by different
    manufacturers. On August 30, 2001, the OFDM Forum, an association
    organized to promote a single worldwide OFDM standard for high-speed
    wireless communications, endorsed the Standards Writing Group's
    selection of a variant of IEEE 802.11 and 802.11a, for roadside
    applications.[^156] ITS America reported that the modification of
    IEEE 802.11 and 802.11a for ITS roadside applications was completed
    and successfully balloted by the ASTM Subcommittee E17.51 Vehicle
    Roadside Communication on May 10, 2002 and entitled "ASTM E2213-02,
    Standard Specification for Telecommunications and Information
    Exchange Between Roadside and Vehicle Systems -- 5 GHz Band
    Dedicated Short Range Communications (DSRC) Medium Access Control
    (MAC) and Physical Layer (PHY)" (ASTM-DSRC Standard).[^157]

30. ITS America recommends that the Commission specify that all DSRC
    operations in the 5.9 GHz band comply with the ASTM-DSRC
    Standard.[^158] Specifically, ITS America recommends the adoption of
    layer 1, the Physical Layer and layer 2, the Medium Access Control
    Layer. [^159] The Physical Layer, refers to the hardware
    specifications and modulations requirements and the Medium Access
    Control layer includes instructions detailing how the Physical Layer
    accesses the 5.9 GHz band frequencies.[^160] ITS America reports
    that the ASTM-DSRC Standard is an open, non-proprietary wireless
    standard and that a licensing fee will not be charged for its use,
    although ASTM holds the copyright to the ASTM-DSRC Standard.[^161]
    Consequently, ITS America recommends that the Commission incorporate
    the ASTM-DSRC Standard by reference into Part 90, Subpart M, of the
    Commission's Rules.[^162] ITS America further recommends that we
    amend Part 90 of the Commission's Rules and "invoke the
    certification procedures . . . found in subpart J of Part 2 of the
    Commission's Rules"[^163] to require DSRC equipment manufacturers to
    comply with the ASTM-DSRC Standard[^164]

31. [Discussion.]{.underline} As noted above, the statutory framework of
    the ITS program demonstrates that Congress believes that intelligent
    transportation technologies should be interoperable and TEA-21
    appears to contemplate the adoption of a "wireless"[^165] standard
    as a means towards achieving interoperability.[^166] Neither ISTEA
    nor TEA-21 defines interoperability within the context of the ITS
    program. In this connection, we note ITS America's comment that both
    public safety and non-public safety radio must use the same standard
    to achieve economies of scale, and their recommendation that we
    specify that all DSRC operations and equipment using the band
    conform to the ASTM-DSRC Standard. We seek comment on whether all
    applications in the band must be interoperable or whether only the
    public safety applications must be interoperable. Because our
    current definition of "interoperability"[^167] does not contemplate
    public safety and non-public safety radio licensees sharing an
    interoperable standard, we seek comment on whether we should revise
    it to exclude DSRC. Alternatively, should we adopt a separate
    definition of "interoperability" for DSRC operations? For example,
    the current Part 90 definition of interoperability concerns only the
    communications link; we seek comment on whether any definition of
    interoperability in the context of DSRC, should include equipment
    compatibility, such that OBUs and RSUs coming from different vendors
    should be interchangeable[^168] Thus, an OBU or RSU manufactured by
    vendor X would be able to communicate and exchange information with
    an OBU or RSU manufactured by vendor Y.

32. While ITS America has developed a consensus on the adoption of the
    ASTM-DSRC Standard as the means of achieving interoperability, as a
    general rule, the Commission does not select a single standard for
    equipment,[^169] leaving the selection of technology to its
    licensees. ITS America notes, however, that the Commission has, in
    the past, adopted standards when there is a substantial public
    benefit and when private industry is unwilling or unable to reach
    agreement on a single industry standard.[^170] Moreover, ITS America
    states that "\[w\]here products and services, whether for
    communications or otherwise, are introduced to the public based on
    competing standards, it has taken years or even decades to gain
    market acceptance."[^171] ITS America further maintains that
    requiring DSRC equipment to be type-certified would create an
    incentive for equipment manufacturers to develop equipment
    specifications based on the ASTM-DSRC Standard because they would
    have access to the largest possible market.[^172] ITS America
    further argues that the adoption of a particular standard would
    assure customers that an investment in a particular technology would
    not be "rendered obsolete by a subsequent, different
    technology."[^173] ITS America further maintains that the "lack of
    standards may cause consumers and manufacturers to adopt a 'wait and
    see' approach before purchasing or making devices, respectively
    slowing down deployment."[^174]

33. In light of the efforts of ITS America, ASTM, and DOT to reach a
    consensus on the adoption of the ASTM-DSRC Standard for the
    development and deployment of DSRC operations, we seek comment on
    whether the industry as a whole has reached an agreement on the
    adoption of the ASTM-DSRC Standard, thus rendering our incorporation
    of a particular standard into the Commission's Rules unnecessary. We
    seek comment on whether we should adopt a standard applicable to
    public safety and non-public safety radio DSRC operations or whether
    we should adopt a standard only for public safety DSRC operations.
    We seek comment on whether the marketplace can achieve the
    interoperability necessary for DSRC-based ITS systems. If the
    marketplace cannot achieve interoperability, are there other ways of
    achieving interoperability without compromising competitive
    neutrality? We seek comment on whether we should require DSRC
    devices to be type-certified under the Commission Rules. We further
    seek comment on whether the complex technology involved in DSRC
    operations, which may change rapidly, would render a particular
    standard obsolete or whether the adoption of a particular standard
    would spur development of the DSRC radio service.

34. If commenters believe that the adoption of a standard is necessary,
    we ask these commenters whether the ASTM-DSRC Standard is the
    appropriate standard. For standards that consist of numerous layers
    and/or suites or menus, commenters should specify whether the
    Commission should adopt any specific layers, suites or items within
    menus within that standard relative to the communications link. We
    seek comment on ITS America's recommendation that we adopt Layers 1
    and 2 of the ASTM-DSRC standard for all DSRC operations in the 5.9
    GHz band. The full standard is available at www.ASTM.org. We further
    seek comment on whether we should adopt equipment performance
    requirements for this band. We note that it is vital that the
    performance requirements capture the ideal compromise between
    component size, power consumption, and radiated power needed to
    implement DSRC operations. We note that for the Commission to adopt
    a particular standard, we require that such a standard be approved
    in an open and fair process, and that it be approved by an
    ANSI-Accredited Standards Developer. We further require that the
    owner or holder of the rights to the standard agree, by filing a
    statement with ITS America or DOT, that they will make such rights
    available without cost or without discrimination.[^175] We note
    that, should we decide that the adoption of a particular standard is
    necessary, we will not unnecessarily disturb future recommendations
    by the ANSI-Accredited Standards Developer.

## Band Plan

35. In the *Allocation NPRM*, the Commission recognized that "some
    channelization of the DSRC spectrum may be essential to promote
    spectrum efficiency and to facilitate interoperability."[^176] In
    this regard, ITS America recommends that the Commission adopt a
    channel plan, described below, to further promote interoperability
    between DSRC-based ITS applications in this country. [^177] ITS
    America further indicates that it has initiated talks with Canada
    and Mexico to achieve agreement on channel plans at the
    borders.[^178] See the diagram below for a brief overview of the
    ASTM-DSRC Standard channelization plan.

    ![](media/image1.wmf){width="6.479861111111111in"
    height="1.320138888888889in"}

36. Accordingly, we seek comment on the ITS America's recommended
    channelization plan,[^179] contained in the ASTM-DSRC Standard,
    which is an adaptation for DSRC of the IEEE 802.11a standard. ITS
    America concluded that the use of ASTM-DSRC Standard would promote
    interoperability, and would allow data exchange rates of up to 27
    Mbps or up to 54 Mbps, depending on whether ten-megahertz-wide or
    twenty-megahertz-wide channels are used.[^180] These data rates and
    channel band-widths are the consequence of choosing Orthogonal
    Frequency Division Multiplexing as the modulation scheme. ITS
    America's channel plan, as depicted above, divides the seventy-five
    megahertz of spectrum into eight channels: one five-megahertz
    channel and seven[^181] ten-megahertz channels, which include one
    Control Channel and six Service Channels. The five-megahertz channel
    is reserved for harmonization with potential extension of the
    Unlicensed National Information Infrastructure (UNII) band. Two
    service channels[^182] are dedicated; Channel 172 for public safety
    and private vehicle-to-vehicle communications, and Channel 184 for
    public safety "high power, long-range" communications of up to 1000
    meters and private uses when authorized by a frequency coordinator.
    [^183] Private applications, however, must not interfere with, and
    must accept interference from, existing Public Safety applications
    when transmitting on Channel 184.[^184] Four ten-megahertz Service
    Channels, Channels 174/176 and Channels 180/182 can be combined to
    provide up to two, twenty-megahertz Service Channels, Channels 175
    and 181, respectively, thus increasing the possible maximum data
    rate to 54 Mbps.[^185]

37. Channel 178 is dedicated for Control Channel functions.[^186] ITS
    America reports that the ASTM-DSRC Standard does not yet include a
    layer addressing how the Control Channel will be accessed.[^187]
    According to ITS America, however, to maximize the efficiency and
    quality of service in the 5.9 GHz band while minimizing interference
    between services, the Control Channel should be used for
    communications shorter than 200 microseconds, [^188] in intervals of
    no less than two seconds. Possible protocol for the Control Channel
    access could include the requirement that all OBUs automatically
    select and monitor the Control Channel, and wait for announcements,
    data transfers, or warning messages from RSUs.[^189] Public safety
    and private radio licensees would share use of the Control Channel
    to ensure that public safety warning announcements are received by
    all OBUs within the particular public safety communications
    zone.[^190] Private messages shorter than 200 microseconds could be
    transmitted on the Control Channel,[^191] although public safety
    messages would always receive higher priority for use of the Control
    Channel.[^192]

38. We also seek comment on alternatives to the ITS America band plan.
    For example, would it be better to establish a different channel
    band-width, such as five-megahertz per channel? In addition, we
    solicit comment on whether the band should be shared by all
    eligibles or whether it would be more appropriate to allocate the
    band by service. For example, we could divide the spectrum up by
    radio service instead of by function. Commenters supporting this
    approach should specify the different groups and how much spectrum
    should be allocated to each group. Because it appears that a very
    low power transmitter will be needed in vehicles (cars, trucks,
    vans, *etc*.) participating in ITS, another possible option would be
    to divide the spectrum based on licensed and unlicensed (Part 15)
    services. We further request comment on whether we should reserve
    spectrum. As mentioned above, ITS America proposes that we reserve
    five-megahertz of spectrum. In light of the fact that the number and
    type of DSRC-based ITS applications continue to evolve, is
    five-megahertz sufficient? Should we reserve more? In the 700 MHz
    proceeding, we reserved thirty-seven percent of the spectrum.[^193]
    We seek comment on whether we should reserve a ten-megahertz segment
    from both channels 175 and 181.

39. As noted, seventy-five megahertz of contiguous spectrum in the 5.9
    GHz band has been allocated for DSRC operations. In the event that
    we select a licensing plan that results in the possibility of
    mutually exclusive applications for initial licenses, we seek
    comment on the appropriate amount of spectrum to be provided to each
    licensee. We seek comment on whether the spectrum should be licensed
    as one block, or broken down into two or more bandwidths, and
    whether there should be a mixture of spectrum blocks, depending on
    the service areas used for licensing. Commenters should note that
    this issue is directly linked to the outcome of the interoperability
    issue because it appears that the interoperability standard may
    channelize the band. The merits of sharing a particular channel,
    versus having exclusive use of it should be considered in light of
    some of the suggested non-public safety applications, such as
    Vehicle Diagnostic Data Transfer, or Locomotive Data Transfer.
    Regarding the RSUs, the merits of using the lowest possible transmit
    power for a particular application, which would improve the
    possibility of more licensees in a given area, should also be
    considered.

## Licensing Plan

40. [Background]{.underline}. We seek comment on the appropriate
    licensing plan for ITS. In order to discuss the licensing plan, some
    background concerning how DSRC-based ITS applications will
    communicate, according to ITS America, is necessary. As noted above,
    RSUs and OBUs will communicate using short-range, low-power data
    transmissions of limited duration.[^194] Specifically, an RSU
    broadcasts data to or exchanges data with an OBU in its
    "communication zone" and provides channel assignments and operating
    instructions to it.[^195] OBUs receive, contend for time to
    transmit, or are assigned a time to transmit on one or more radio
    frequency channels.[^196] Except where specifically excluded, OBU
    operation is permitted wherever vehicle operation or human passage
    is permitted.[^197] OBUs may communicate with RSUs or other
    OBUs.[^198] Except for designated applications, it is expected that
    all OBUs will automatically select the Control Channel and wait for
    application announcements, data transfers, or warning
    messages.[^199] An application announcement will identify a DSRC
    service channel to be used for data transfer larger than those which
    can be handled by the Control Channel.[^200] For public safety
    applications at intersections, such as "emergency vehicle signal
    pre-emption" and "transit vehicle signal priority," a second OBU for
    intersection applications will be mounted in the public safety
    vehicle.[^201] The intersection application OBU does not use the
    Control Channel.[^202] For vehicle-to-vehicle applications,
    communications will be limited to only public safety related
    messages, such as vehicle location, status, and acceleration. The
    vehicle-to-vehicle OBU will be a second OBU in the vehicle and it
    does not use the Control Channel.[^203] RSUs and OBUs must "listen"
    before transmitting.[^204]

### Road Side Units

41. [Discussion]{.underline}. ITS America recommends that we propose to
    license the fixed RSU[^205] on a shared, site-specific basis. Under
    site-specific licensing, a licensee is authorized to operate a
    station only at a specific location, using a specific frequency or
    frequencies. Generally, licenses are awarded on a first-come, first
    served basis, and/or after frequency coordination, which is the
    process by which a private organization, in most instances a
    FCC-certified frequency coordinator, recommends to the Commission
    the most appropriate frequencies for a station.[^206] The
    application, filed through the Universal Licensing System,[^207]
    proposes a transmission frequency, geographical coordinates, and
    other technical information concerning the proposed station,
    including its potential for electromagnetic interference with
    adjacent stations.

42. ITS America proposes that each licensed RSU would also correspond
    to, or be associated with, a specific "communications zone," within
    which all transmissions associated with it would be required to take
    place. [^208] Under ITS America's recommendation, the licensed
    communications zone for public safety and non-public safety radio
    licensees would be permitted to overlap; public safety warning
    messages would be given priority rights for transmission across
    shared channels and overlapping communication zones, as well as
    generally in the band. [^209] Directional antennas would be
    recommended to guard against harmful interference to adjacent
    communication zones and public safety communication zones that may
    overlap.[^210] A communications zone for a particular RSU would be
    based on "the type of entity seeking a license, the type of proposed
    DSRC application, the requisite range for that application, the
    class of DSRC device, the transmitter power needed for that range
    for that application,"[^211] how and where the RSU is to be
    installed, the type of antenna (directional or omnidirectional), the
    angle of antenna relative to the horizon or horizontal adjacent
    physical structures, and the topography.[^212] For example, an
    emergency vehicle preemptive traffic light application would use a
    license that allows a 44.8 dBm maximum EIRP, and a directional
    antenna. A vehicle-to-vehicle application on the other hand might
    permit the use of an omnidirectional antenna, and maximum 10 dBm
    EIRP.

43. The ASTM-DSRC Standard contains the following four DSRC device
    classes to be used for equipment-type certification for RSUs and
    OBUs, based on maximum device output power:[^213]

[Device Class]{.underline} [Maximum Device Output Power]{.underline}

A 0 dBm

B 10 dBm

C 20 dBm

D 28.8 dBm

Next the ASTM-DSRC Standard limits operating fixed and portable RSUs in
accordance with one of four installation classes, which would limit the
maximum range of transmission (measured in meters) and the maximum
transmitted power (measured in effective isotropic radiated power
(EIRP)) that can be radiated in a particular direction.[^214] The four
installation classes are:

> [Class]{.underline} [Maximum EIRP]{.underline} [Maximum Transmission
> Range]{.underline}
>
> Class 1 10 dBm EIRP Up to 15 meters
>
> Class 2 20 dBm EIRP Up to 100 meters
>
> Class 3 33 dBm EIRP Up to 400 meters
>
> Class 4 44.8 dBm EIRP Up to 1000 meters

According to ITS America, these equipment and license "class
designations are intended to simplify the application process and create
a consistent licensing scheme for prospective licensees and frequency
coordinators."[^215] By using these two types of class designations, and
setting both output power and EIRP values, the possibility of increasing
the numbers of users per given area increases, since more direct control
over range of transmission is exerted. For administrative ease, ITS
America recommends that applicants may seek authority to use up to six
RSUs per license with the latitude and longitude and class designations
identified for each.[^216]

44. According to ITS America, this scheme would work as follows. An RSU
    at a toll plaza would, in most instances, require a communications
    zone covering a single lane of traffic. In this instance, an
    installation Class 1 or Class 2 designation using Class A or B
    devices would be appropriate.[^217] An RSU at a major highway
    intersection that transmits messages or traffic conditions would use
    an installation Class 3 or Class 4 designation and a Class C or D
    device.[^218]

45. ITS America further recommends that FCC-certified frequency
    coordinators for existing public safety and private radio bands be
    authorized to coordinate applications for licenses in the DSRC radio
    service in the 5.9 GHz band; FCC-certified coordinators for the
    Public Safety pool would coordinate applications for public safety
    DSRC operations, and FCC-certified coordinators for the
    Industrial/Business pool would coordinate applications for private
    radio DSRC operations.[^219] The frequency coordinator would verify
    that an applicant would not implement an unnecessarily large
    communications zone or produce an excessive interference contour in
    relation to the proposed DSRC-based ITS application.[^220] Frequency
    coordinators would also attempt to minimize potential interference
    by assigning different Service Channels to licensees in overlapping
    or adjacent communications zones and/or requiring the use of
    directional antennas.[^221] Frequency coordinators would review and
    specify the maximum authorized transmitter output power and range,
    and the RSU's class designation and would specify the Service
    Channels on which the licensee would be authorized to operate.[^222]

46. We see, however, several potential disadvantages to site-specific
    licensing. We note that site specific licensing may be very
    cumbersome for radio systems comprised of several hundred sites. We
    further note that site-based licensing deprives licensees of the
    flexibility to relocate transmitter sites within a defined service
    area without obtaining the Commission's prior approval. Moreover,
    Section 8 of the Act[^223] requires an application fee for each
    application, and Section 9 of the Act[^224] requires a regulatory
    fee for each license, although in some instances governmental
    entities and non-profit organizations are exempt from fees.[^225]
    Applicants would also have to pay for the services of a frequency
    coordinator every time they wanted to activate a new RSU or relocate
    an existing RSU. We note that all licensees would be required to be
    licensed for the control channel in addition to specific service
    channels.

47. In contrast, there are several potential advantages to geographic
    area licensing for RSUs. Under geographic area licensing, the
    licensee is authorized to operate within its geographic service
    area. Such licensees may operate without filing an application for
    individual stations within their service areas; thus, a licensee may
    modify, move, or add to its facilities within specified geographic
    areas without need for prior Commission approval.[^226] This not
    only increases a licensee's flexibility to manage its spectrum, it
    also reduces administrative burdens and operating costs.[^227]
    Geographic area licensing also facilitates interoperability and
    operational standards while allowing economies of scale that
    encourage the development of low cost equipment.[^228] Moreover, the
    Commission has found that geographic area licensing offers distinct
    advantages for both public safety and commercial services.[^229]
    With regard to the RSUs used for private radio DSRC-based ITS
    applications, we have stated that we will determine on a
    service-by-service basis, whether to adopt a geographic licensing
    scheme or retain eligibility and use rules.[^230] Accordingly, we
    seek comment on licensing RSUs by geographic areas or by
    site-by-site licensing. We also invite commenters to propose other
    methods for licensing RSUs. For instance, we seek comment on whether
    we should license RSUs by rule.[^231]

48. To the extent we adopt geographic area licensing, we seek comment on
    the appropriate geographic area to be used. When establishing
    geographic service areas, we must balance the competing need to
    provide large enough service areas and the need to choose geographic
    licensing areas that will permit the dissemination of licenses among
    a wide variety of applicants.[^232] We also wish to ensure service
    to rural areas[^233] and to promote investment in and rapid
    deployment of new technologies and services.[^234] The Commission
    licenses spectrum using a wide variety of geographic areas. The 800
    MHz cellular radiotelephone services are licensed using Metropolitan
    and Rural Service Areas (MSAs and RSAs).[^235] The 24 GHz band is
    licensed by Economic Areas (EAs).[^236] The 2.3 GHz band is licensed
    using the twelve Regional Economic Area Groupings (REAs) and the 52
    Major Economic Areas (MEAs) which are derived from EAs.[^237] The
    746-764 MHz and 776-794 MHz bands are licensed by six Economic Area
    Groupings (EAGs), which are derived from EAs.[^238] We seek comment
    on whether we should adopt a geographic area licensing scheme for
    public safety and non-public safety radio licensees. Commenters
    should address whether we should adopt separate geographic area
    licensing schemes for public safety and non-public safety radio
    licensees. For instance, it may be more advantageous to license the
    public safety licenses by a geopolitical area such as by State or
    metropolitan area. Such a scheme, however, may not benefit
    non-public safety radio licensees; it may be more advantageous to
    license the non-public safety radio portion by EA[^239] or by
    metropolitan statistical areas (MSAs) and rural service areas
    (RSAs), or nationally. Commenters should suggest the most
    appropriate area for public safety and non-public safety radio
    licensees. Commenters should also address whether we should adopt
    one scheme for both public safety and non-public safety radio
    licensees and suggest the most appropriate scheme.

49. We also seek comment on the appropriate entities to hold public
    safety DSRC licenses. One possible licensing scheme would be to
    license all public safety DSRC operations in the 5.9 GHz band to a
    State-level agency responsible for administering the transportation
    infrastructure. With respect to the 700 MHz public safety band, the
    Commission found that a state licensing scheme reduces the
    administrative burden on both the Commission and the public safety
    community.[^240] Because the state licensing approach was used in
    the 700 MHz proceeding, we expect that states will have spectrum
    management capabilities already in place. State licensing, however,
    has certain potential drawbacks. State licensing would impose
    additional spectrum management duties upon state agencies. We
    therefore seek comment on whether this approach places unduly
    burdensome responsibilities upon the states, as well as on what
    alternative licensing mechanism we should employ if a state is
    unwilling or unable to administer such a license. Hence, we seek
    comment on whether we should establish guidelines to ensure that
    states do not unduly restrict the access of other eligible entities
    to this spectrum. We also seek comment on whether we should license
    this spectrum as was done in the 700 MHz band, in which states were
    given a window to apply for a state license and at the end of that
    period, unclaimed spectrum would revert to a Regional Planning
    Committee. Commenters should specifically address whether such an
    approach is feasible and appropriate, and if so, what entity should
    be designated the default licensee in those cases in which a state
    does not file for its license. Commenters should also discuss the
    other advantages and disadvantages of this scheme, as identified
    herein or otherwise.

50. Another licensing scheme that would allow the designation of a
    licensee for coordination purposes with minimal administrative
    burden on end users would be to license public safety DSRC
    operations through the use of regional planning committees. Under a
    regional planning licensing scheme, which the Commission used in
    both the 700 MHz and 800 MHz public safety bands, the nation is
    divided into regions that have the autonomy to develop plans that
    meet their different communications needs.[^241] Based on the
    experience gained from the implementation of this plan in the 700
    MHz and 800 MHz bands, we seek comment on whether we should employ
    regional planning committee licensing in the 5.9 GHz band. Also, we
    request comment on whether some of this spectrum should be
    administered under Part 15, and if so, how much. We note here that
    the issue of the most appropriate band plan is linked, to a certain
    extent, to the issue of how we will license the spectrum.[^242]

### On Board Units

51. According to the July *Ex Parte* Comments, "\[e\]quipping every new
    vehicle sold in the United States with On-Board Units is a primary
    goal of DOT and ITS America."[^243] As mentioned above, there are
    two types of OBUs, those associated with a specific fixed system and
    those not associated with a fixed system. ITS America recommends
    that we propose to license both types of OBUs by rule.[^244] ITS
    America recommends against permitting any unlicensed DSRC operations
    because the dominant use of the band will be for public safety,
    which will not be able to tolerate interference.[^245] Moreover, ITS
    America maintains that unlicensed DSRC operations would threaten the
    integrity of the 5.9 GHz band for its intended purposes.[^246]

52. With respect to OBUs associated with a specific fixed system, we
    seek comment on licensing those OBUs under the associated RSU
    license. We ask commenters whether an applicant for an RSU license
    should also request a specific number of OBUs, or whether an RSU
    license should automatically confer upon the RSU licensee the right
    to operate an unlimited number of OBUs in connection with its
    system.

53. For OBUs not associated with a specific fixed system, we seek
    comment on whether they should be unlicensed under Part 15 or
    licensed by rule. Below is a description of these two options.
    Notwithstanding ITS America's concerns, we believe it is appropriate
    to seek comment on allowing OBUs to operate as unlicensed devices
    pursuant to Part 15 of the Commission's Rules. Part 15 contains the
    technical requirements for radiofrequency devices that may be
    operated without individual licenses.[^247] The requirements include
    radiated emission limits for intentional radiators, such as
    transmitters, and for unintentional radiators, such as radio
    receivers, computers, and VCRs.[^248] The limits are intended to
    minimize the possibility of unlicensed Part 15 devices causing
    interference to licensed radio services.[^249] Part 15 of the rules
    requires that most devices that intentionally emit radiofrequency
    radiation be certified before they can be marketed.[^250] We note
    that the Commission's Rules already permit a variety of unlicensed
    operations in the 5.725-5.875 GHz range.[^251] Unlicensed
    applications under Part 15 may not be appropriate, however, to
    license OBUs of some DSRC-based ITS applications because the OBUs
    would have to accept interference from and not cause interference to
    operations, particularly any service with allocated status such as
    the Part 90 DSRC-based ITS operations.[^252] Nevertheless, as the
    Commission noted in the *Allocation Report and Order*, "low power
    unlicensed DSRC could benefit some applications, such as fee
    collection at parking garages and commercial establishments."[^253]
    We seek comment on whether OBUs not associated with an RSU should be
    permitted to operate under Part 15.

54. We also seek comment on licensing OBUs by rule. When a service is
    licensed by rule, no licenses are issued and frequency coordination
    is generally not used.[^254] Licensing by rule must be authorized by
    Congress, and is appropriate only for low-power, short-distance
    services with multiple, shared channels, where users can avoid
    congestion fairly easily.[^255] Congress has authorized, through
    Section 307(e) of the Act, [^256] licensing by rule in the Citizens
    Band (CB) Radio Service and in the Radio Control Services, among
    others, not relevant here.[^257] Therefore, to use a license by rule
    scheme to license OBUs not associated with a fixed system, we would
    be required to classify such OBUs in either the Citizens Band Radio
    Service or the Radio Control Service. Section 307(e)(3) authorizes
    the Commission to define the Citizens Band Radio Service and the
    Radio Control Service, which the Commission has done.[^258] The
    Commission defines the Citizens Band Radio Service as "a private,
    two-way, short-distance voice communications service for personal or
    business activities of the general public."[^259] In the CB Radio
    Service, users may transmit communications about their personal or
    business activities, emergencies, and traveler assistance, but users
    must limit their communications to the minimum practicable
    time.[^260] The Commission defines the Radio Control Service as "a
    private, one-way, short distance non-voice communications service
    for the operation of devices at remote locations."[^261] We seek
    comment on whether the DSRC service meets the definition of CB
    service or Radio Control Service. We seek comment on whether
    licensing by rule would be an appropriate licensing scheme for OBUs
    not associated with an RSU.

### Treatment of Incumbent Services

55. *Fixed Satellite Service.* In its comments to the *Allocation NPRM*,
    DOT indicated that an allocation of seventy-five megahertz of
    spectrum was necessary for DSRC operations because of the potential
    of two incumbents, high power military radar systems and Fixed
    Satellite Service (FSS) uplinks, to interfere with, and therefore
    impede the reliability of DSRC operations.[^262] DOT indicated that
    FSS uplinks "suggest a potential interference range of several
    hundred miles."[^263] Only by allocating the full seventy-five
    megahertz for DSRCS, DOT stated, would assure "compatibility with
    primary incumbent users."[^264] Accordingly, in allocating the 5.9
    GHz band for DSRC operations the Commission noted, in part, that
    seventy-five megahertz of spectrum "will provide the flexibility
    needed to share the spectrum with incumbent operations."[^265] The
    Commission further found that DSRC operations would be compatible
    with FSS uplinks because FSS earth stations typically use highly
    directional antennas pointed towards the geostationary orbital arc,
    whereas DSRC operations would typically be pointed towards a highway
    and operate at relatively low power. [^266] The Commission further
    noted that it may be necessary in some cases for DSRC operations to
    avoid an area near an incumbent FSS earth station in order to avoid
    the high-powered earth station transmission.[^267] Nonetheless the
    Commission concluded that spectrum sharing is feasible because of
    the limited number of FSS earth stations and their use of highly
    directional antennas.[^268] The Commission further concluded that it
    did not anticipate that prior coordination would be necessary
    between DSRC and FSS operations.[^269]

56. On December 27, 1999, PanAmSat filed a Petition for Reconsideration
    or Clarification of the *Allocation Report and Order* concerning the
    Commission's statements on whether prior coordination is needed
    between DSRC operations and FSS systems.[^270] PanAmSat stated:

> \[t\]he Commission appears to believe that the only coordination issue
> raised by a DSRC allocation in the FSS bands relates to whether
> interference could prevent DSRC systems from locating near incumbent
> FSS uplinks. In fact, however, absent a coordination procedure the
> widespread deployment of DSRC terminals could give rise to broad
> exclusion zones within which FSS operators could not deploy new earth
> stations. Among other things, such exclusion zones could prevent
> teleport operators from expanding their operations at sites in which
> they already have invested millions of dollars.
>
> PanAmSat is not wedded to any particular method for coordinating DSRC
> and FSS stations. It is PanAmSat's understanding, however, that the
> DSRC industry is at an embryonic stage, and one possibility would be
> for DSRC systems to be developed taking into account the 'noise floor'
> that is present from FSS uplink operations. FSS and DSRC stations then
> could be located without having to engage in site-by-site
> coordination.[^271]

The Satellite Industry Association (SIA)[^272] filed in support
PanAmSat's petition. SIA stated that

> \[b\]ased on the technical rules adopted by the Commission, it appears
> unlikely that DSRC systems will cause significant interference to FSS
> uplink operations. However, if sited in proximity to an FSS earth
> station, DSRC systems may well receive harmful interference from FSS
> uplinks. This not only could inhibit the deployment of DSRC stations,
> but it also could lead to band sharing disputes when FSS earth station
> operators expand or modify their facilities.[^273]

57. Although ITS America believes that prior coordination of \"all
    DSRC-based ITS and FSS operations is likely not necessary and,
    indeed, would be unduly burdensome and costly,\" [^274] we agree
    with PanAmSat that the widespread deployment of DSRC terminals could
    limit where new FSS earth stations can be located. Therefore, we
    seek comment on whether prior coordination would be necessary and,
    if so, under what conditions. For example, should all new FSS earth
    stations be prior-coordinated with DSRC operations (except for new
    earth stations to be located at existing earth station teleport
    sites)? If some type of prior coordination is necessary or
    appropriate, commenters should address how to accomplish such
    coordination with minimal burden and cost, especially considering
    the mobile nature of the DSRC service. In light of incumbent and
    potential future FSS operations, commenters also are asked to
    address whether the ASTM-DSRC Standard would provide for robust and
    reliable DSRC operations. In this connection, we seek information on
    whether DSRC equipment and operations should take into account the
    \"noise floor\" that is present from FSS uplink transmissions. If
    such approach were taken, commenters should indicate whether the
    current DSRC standards are adequate and, if not, what changes would
    be necessary to those standards to allow sharing of this spectrum
    without any coordination. Of particular interest is whether FSS
    uplink transmissions in the 5.9 GHz band would interfere with the
    DSRC Control Channel.[^275]

58. In the *Allocation Report and Order* the Commission stated that
    sharing between DSRC operations and Government operations was
    possible if proper coordination was performed. Accordingly, Section
    90.371(b) of the Rules requires that DSRC stations operating in the
    5.9 GHz band "shall not receive protection from Government
    Radiolocation services in operation prior to the establishment of
    the DSRCS station."[^276] Section 90.371(b) further requires that
    "\[o\]peration of DSRCS stations within 75 kilometers of the
    location listed" in the table accompanying to Section 90.371(b)
    "must be coordinated through the National Telecommunications and
    Information Administration."[^277] New government radar
    installations that may be deployed subsequent to DSRC implementation
    must coordinate with incumbent DSRC operations.[^278] One issue not
    addressed in the *Allocation Report and Order* is whether specific
    provisions need to be adopted to forestall interference from new
    high power Government radar operations to the DSRC Control Channel.
    We therefore seek comment on this issue.

## Grant of Licenses

59. The Balanced Budget Act of 1997[^279] (BBA-97) revised and expanded
    the Commission's auction authority.[^280] Specifically, it amended
    Section 309(j) of the Communications Act to require the Commission
    to grant licenses through the use of competitive bidding when
    mutually exclusive applications for initial licenses are filed,
    unless certain specific statutory exemptions listed in Section 309
    (j)(2) apply.[^281] BBA-97 also added to Section 309(j)(1) a
    reference to the Commission's obligation under Section 309(j)(6)(E)
    to use engineering solutions, negotiation, threshold qualifications,
    service regulations, or other means to avoid mutual exclusivity
    where it is in the public interest to do so.[^282] BBA-97 did not
    amend Section 309(j)(3)'s directive to consider certain public
    interest objectives in identifying classes of licenses and permits
    to be issued by competitive bidding.[^283]

60. In the *BBA Report and Order*, the Commission established a
    framework for exercise of its auction authority, as amended by the
    Balanced Budget Act.[^284] The *BBA Report and Order* affirmed that,
    in identifying which classes of licenses should be subject to
    competitive bidding, the Commission is required to pursue the public
    interest objectives set forth in Section 309(j)(3).[^285] The *BBA
    Report and Order* also affirmed that, as part of this public
    interest analysis, the Commission must continue to consider
    alternative procedures that avoid or reduce the likelihood of mutual
    exclusivity.[^286] The Commission concluded, however, that its
    obligation to avoid mutual exclusivity does not preclude it from
    adopting licensing processes in the non-exempt services that result
    in the filing of mutually exclusive applications where it determines
    that such an approach would serve the public interest.[^287]

61. In determining whether to grant licenses through competitive bidding
    in this proceeding, *i.e.*, WT Docket 01-90, we intend to follow the
    approach set forth in the Balanced Budget Act proceeding regarding
    the exercise of our auction authority. We note, too, that subsequent
    to the adoption of the Balanced Budget Act, the U.S. Court of
    Appeals for the D.C. Circuit concluded that the Section 309(j)(6)(E)
    obligation does not foreclose new licensing schemes that are likely
    to result in mutual exclusivity.[^288] The court stated that if the
    Commission finds such schemes to be in the public interest, it may
    implement them "without regard to \[S\]ection 309(j)(6)(E) which
    imposes an obligation only to minimize mutual exclusivity 'in the
    public interest,' and 'within the framework of existing
    policies.'"[^289]

62. The Commission's competitive bidding authority does not extend to
    public safety radio services, as defined in Section 309(j)(2) of the
    Act. In the *BBA Report and Order*, the Commission not only provided
    guidance regarding the scope of the public safety exemption, the
    Commission discussed "the factors we will consider in assessing its
    applicability to future situations,"[^290] as is the case here. The
    Commission noted that "\[b\]ecause the applicability of the
    exemption to any service must be decided before the service is
    licensed, our analysis in each case must be based on the use and
    eligibility rules that we establish for the service."[^291] The
    Commission reaffirmed that conclusion in the *BBA MO&O*, in which
    the Commission noted that "\[w\]ith respect to spectrum to be used
    for new services, we intend to adopt service rules that will
    specifically determine whether the service qualifies as a public
    safety radio service and is therefore exempt from competitive
    bidding. That is, when we designate spectrum as a public safety
    radio service, we intend to limit the permitted uses to those that
    Congress intended for auction-exempt spectrum (or some subset
    thereof)." [^292] Moreover, the Commission reaffirmed its conclusion
    that the exemption applies to radio "services" rather than
    individual classes of users, which the Commission stated was
    supported by the court's "plain language" analysis in *National
    Public Radio, Inc. v. FCC.*[^293]

## Application, Licensing and Processing Rules 

### Licensing

63. We propose to apply the application, licensing, and processing rules
    set forth in Part 90, Subpart G of the Commission's Rules for public
    safety licensees. We further propose to apply the application,
    licensing, and processing rules set forth in Part 90, Subpart G of
    the Commission's Rules for non-public safety licensees, in the event
    that we select a licensing scheme that does not result in mutually
    exclusive applications. We seek comment on these proposals. We note
    that Section 90.371(b)[^294] of the Commission's Rules requires that
    "\[o\]peration of DSRCS stations within 75 kilometers of the
    location listed" in the table included with Section 90.371(b) "must
    be coordinated through the National Telecommunications and
    Information Administration."[^295]

### Construction or Coverage/Service Requirements; License Term; Renewal Expectancy

64. ITS America recommends that we require that authorized public safety
    and non-public safety radio RSUs be placed in operation within 12
    months from the date of license grant or the authorization cancels
    automatically and must be returned to the Commission.[^296] ITS
    America contends, however, that a public safety licensee seeking
    authorization to construct and operate RSUs to serve a single
    physical facility or in a ribbon or corridor should be able to seek
    an extended deployment period in accordance with Section 90.629 of
    the Commission's Rules.[^297]

65. We seek comment on whether, if we elect site-based licensing,
    construction requirements for DSRC operations in the 5.9 GHz band
    are necessary; and, if so, what construction periods are
    appropriate. We also request comment on whether public safety and
    non-public safety licensees should have the same or different
    construction requirements. ITS America recommends a license term of
    ten years.[^298] In this connection, we seek comment on this
    proposal. Commenting parties are asked to discuss whether a shorter
    or longer license term is appropriate; and, if so, on what
    rationale.

66. If we license a portion of the 5.9 GHz band by geographic area,
    should there be a coverage requirement; and, if so, what benchmarks
    are appropriate in that instance? Specifically, should such
    licensees be subject to either a substantial service requirement or
    a minimum coverage requirement 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.[^299] We seek comment on whether 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.[^300] 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."[^301]

### Universal Licensing System

67. We also note that applications in this service will be filed using
    the Universal Licensing System (ULS).[^302] ULS is the Commission\'s
    automated licensing system and integrated database for wireless
    services. ULS includes consolidated applications forms, which will
    enable licensees and applicants to file applications electronically,
    thus increasing the speed and efficiency of the application process.
    All licensees filing applications and other filings using FCC Forms
    601 through 605 or associated schedules must make these filings in
    accordance with ULS.[^303] Use of ULS will permit Commission staff
    to process filings more efficiently and will enhance the
    availability of pertinent licensing information to the public.

## Technical Rules

### Power limits and emission mask requirements

68. The *Allocation Report and Order* established power limits and
    emission masks for DSRC operations,[^304] but deferred any decision
    on frequency stability requirements to a future proceeding.[^305]
    Accordingly, the Commission amended Sections 90.205 and 90.210 of
    the Commission's Rules. Section 90.205(m) of the Commission's Rules
    states that:

> The peak transmit output power over the frequency band of operations
> shall not exceed 750 mW or 28.8 dBm with up to 16 dBi in antenna gain.
> If transmitting antennas of directional gain greater than 16 dBi are
> used, the peak transmit output power shall be reduced by the amount in
> dB that the directional gain of the antenna exceeds 16 dBi, *i.e.,*
> the device's maximum EIRP shall not exceed 30 W EIRP. However, the
> peak transmitter output power may be increased to account for any line
> losses due to long transmission cables between the transmitter and the
> DSRCS device's antenna, provided the EIRP does not exceed 30 W.[^306]

Section 90.210(k)(3) states that:

> For . . . transmitters authorized under subpart M that operate . . .
> for Dedicated Short Range Communication Services in the 5.850-5.925
> GHz band, the peak power of any emission shall be attenuated below the
> power of the highest emission contained within the licensee's sub-band
> in accordance with the following schedule:
>
> \(i\) On any frequency within the authorized bandwidth: Zero dB.
>
> \(ii\) On any frequency outside the licensee's sub-band edges: 55 + 10
> log(P) dB, where (P) is the highest emission (watts) of the
> transmitter inside the licensee's sub-band.[^307]

In response to the *Allocation Report and Order*, Mark IV Industries
requested that we clarify the power limits and emission mask
requirements*.*[^308] Specifically, Mark IV Industries states that the
750 milliwatts (28.8 dBm) maximum antenna input power limit is overly
restrictive.[^309] Mark IV Industries recommends that an antenna input
power of up to 4 watts (36 dBm) be allowed with no change to the maximum
EIRP of 30 watts.[^310] Mark IV proposes that we replace the language of
Section 90.205(m)[^311] with:

> The antenna input power shall not exceed 4 watts or 36 dBm with up to
> 8 dBi of antenna gain. If transmitting antennas of directional gain
> greater than 8 dBi are used, the peak antenna input power shall be
> reduced by the amount in dB that the directional gain of the antenna
> exceeds 8 dBi, i.e. the device's maximum EIRP shall not exceed 30
> watts EIRP.[^312]

69. ITS America, however, states that proposed transmitter power limits
    in the ASTM-DSRC Standard conform to the limits adopted by the
    Commission in the *Allocation Report and Order*.[^313] ITS America
    maintains that most RSUs and OBUs "are expected to use less power
    than the maximum established by the Commission: 28.8 dBm (750 mW),
    measured at the antenna input, and 30 watts (44.8 dBm) of
    EIRP."[^314] In addition, ITS America recommends that the Commission
    adopt specific limitations on channels and categories of
    applications, based on the type of application and the needed
    transmission distance.[^315] Specifically, ITS America recommends
    that the Commission adopt the following limitations:

-   Public safety and private RSUs operating on Channels 174, 175, and
    176 should be used for small and medium range operations. Any RSU
    operating on these channels should not exceed 28.8 dBm antenna input
    power and 33 dBm EIRP.

-   Private RSUs operating on Channel 178 should not exceed 28.8 dBm
    antenna input power and 33 dBm EIRP.

-   Public Safety RSUs operating on Channel 178 should not exceed an
    antenna input power of 28.8 dBm and 44.8 EIRP.

-   Channels 180, 181, and 182 should not be used for small zone
    operations. Public safety and private RSUs operating on these
    channels should not exceed 10 dBm antenna input power and 23 dBm
    EIRP. These RSUs should also use an antenna with a minimum 6 dBi
    gain.

-   Public safety RSUs operating on Channel 184 should not exceed 28.8
    dBm antenna input power and 40 dBm EIRP. Private RSUs operating on
    Channel 184 should not exceed an antenna input power of 28.8 dBm and
    33 dBm EIRP.

-   Private OBUs operating on Channels 172, 174, 175, 176, 178, and 184
    should not exceed 28.8 dBm antenna input power and 33 dBm EIRP.
    Private OBUs operating on Channels 180, 181, and 182 should not
    exceed 20 dBm antenna input power and 23 dBm EIRP.

-   Public safety OBUs operating on Channels 172, 174, 175, and 176
    should not exceed 28.8 dBm antenna input power and 33 dBm EIRP.

-   Public safety OBUs operating on Channel 178 should not exceed 28.8
    dBm antenna input power and 44.8 dBm EIRP.[^316]

We seek comment on whether any changes to our rules relating to power
limits are necessary. We specifically seek comment on ITS America's and
Mark IV's proposals.[^317]

### Emissions Limits

70. Mark IV Industries also requested that we clarify the emission mask
    requirements of Section 90.210 of the Commission's Rules[^318] "to
    provide that compliance measurements may be conducted at the
    transmission line output/antenna input to take into account . . .
    the relatively long transmission lines anticipated in certain types
    of DSRC operations."[^319] Mark IV recommends that the "out-of-band
    emission attenuation limits . . . be referenced to" the transmission
    line output/antenna input "but only for the highest permitted power
    of operation."[^320] Accordingly, Mark IV recommends that Section
    90.210(k)(3) be revised to read:

> . . . with the following schedule:
>
> On any frequency within the authorized bandwidth: Zero dB
>
> On any frequency outside the licensee's sub-band edges: the lesser of
> (55 + 10 log(P)) or 61 dB; where (P) is the highest emission (watts)
> of the transmitter in the licensee's sub-band.[^321]

We seek comment on this recommendation. We seek comment on whether such
a change, if adopted, would increase the risk of interference potential.

71. ITS America states that the ASTM-DSRC Standard meets Section
    90.210(k) of the Commission's Rules.[^322] Specifically, ITS America
    states that under the ASTM-DSRC Standard, the power in the
    transmitted spectrum should be -25dBm or less in 100 kHz outside all
    channel and band edges.[^323] ITS America further asserts that this
    is accomplished by attenuating the transmitted signal in 100 kHz
    outside the channel and band edges by 55 + 10 log (P) dB, where P is
    the total transmitted power in watts.[^324] We seek comment on this
    recommendation.

### Antenna Height 

72. ITS America recommends that the Commission adopt technical rules
    regarding the location of antennas on RSUs.[^325] ITS America states
    that in most instances it is expected that directional antennas will
    be used, but the ITS community is concerned that antennas, whether
    directional or omnidirectional, especially those with higher
    transmitter power levels, placed higher than six meters above the
    roadway bed surface[^326] might interfere with adjacent or
    overlapping communication zones.[^327] Consequently, ITS America
    recommends that the Commission amend Part 90 of the Commission's
    Rules to include a formula to compensate for increased height where
    an antenna stands between six and fifteen meters above the roadway
    bed surface. [^328] Specifically, ITS America recommends that the
    Commission adopt the following antenna height correction factor:

> Reduced authorized effective radiated power ("ERP") by a factor of 20
> log (Ht/6) in dB where Ht is the height of the radiation center of the
> antenna in meters above the roadway bed surface where the antenna
> height is between 6 and 15 meters (or 6m\<Ht\<15m). ERP is measured as
> the maximum ERP toward the horizon or horizontal, whichever is
> greater, of the gain associated with the main or center of the
> transmission beam. The maximum authorized effective isotropic radiated
> power ("EIRP") is 33 dBm for any Roadside Unit installation where the
> antenna height is six meters or greater above the roadway bed surface.
> A waiver of the antenna height correction factor, and the resulting
> height-gain power reduction, may be requested for an antenna height
> greater than six meters above the roadway bed surface and must be
> accompanied by an engineering study justifying such a waiver. Waivers
> can be recommended at the discretion of a frequency coordinator upon a
> determination that the proposed Roadside Unit installation will follow
> reasonable and generally accepted engineering practices and that
> potential co-channel interference is properly minimized.[^329]

We note that this assumes site-by-site licensing. We seek comment on ITS
America's antenna height correction factor recommendation. Commenters
should address how the correction factor would affect coverage? We seek
comment on whether this recommendation would be necessary if we were to
adopt a geographic area licensing scheme.

### Frequency Stability Limits

73. As mentioned above, the Commission did not adopt frequency stability
    limits in the *Allocation Report and Order* because the Commission
    was not able to establish a channelization plan.[^330] Consequently,
    we seek comment on the frequency stability limits that we should
    adopt to prevent DSRC-based ITS applications from causing
    interference to DSRC-based ITS applications on other channels or
    other services in nearby spectrum. In that connection, we note that
    the ASTM-DSRC Standard specifies that the transmitter center
    frequency tolerance shall be plus or minus 10 ppm for RSUs and
    OBUs.[^331]

## Canadian and Mexican Coordination

74. Sections 2.301 and 1.923 (f) of our Rules require~~s~~ stations
    using radio frequencies to identify their transmissions with a view
    to eliminating harmful interference and to generally enforce
    applicable radio treaties, conventions, regulations, arrangements,
    and agreements.[^332] At this time, international agreements between
    and among the United States, Mexico, and Canada[^333] concerning the
    5.9 GHz spectrum for ITS applications have not been established.
    Although the agreement with the Canadian Government, \"Agreement
    Concerning the Coordination and Use of Radio Frequencies Above
    Thirty Megacycles per Second,\" with Annex, as amended,[^334]
    applies to the 5.85-5.925 GHz band, no agreement is in place for the
    current ITS allocation. Consequently, licensees may be subject to
    future agreements with Canada and Mexico and therefore may be
    subject to further modification. One option would be to propose
    certain interim requirements for terrestrial licenses along these
    borders, and to provide that licensees will be subject to the
    provisions contained within future agreements between and among the
    three countries. Until such time as agreements with Mexico and
    Canada become effective, we propose to apply the same technical
    restrictions at the border that we adopt for operation between
    service areas, *i.e.* operations must not cause harmful interference
    across the border. We seek comment on this issue.[^335]

## Competitive Bidding Procedures

75. As discussed above, consistent with our statutory mandate, we will
    resolve any mutually exclusive applications for non-exempt initial
    licenses in the 5.9 GHz band through the use of competitive
    bidding.[^336]

### Incorporation by Reference of the Part 1 Standardized Auction Rules

76. In the event that we choose a licensing scheme that results in
    mutually exclusive applications, we propose to conduct the auction
    of initial licenses in any non-exempt portion of the 5.9 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 auctions.[^337] Specifically, we propose to employ the Part
    1 rules governing competitive bidding design, designated entities,
    application and payment procedures, reporting requirements,
    collusion issues, and unjust enrichment.[^338] Under this proposal,
    such rules would be subject to any modifications that the Commission
    may adopt in its Part 1 proceeding.[^339] We seek comment on whether
    any of our Part 1 rules or other auction procedures would be
    inappropriate in an auction of licenses in this band.

### Provisions for Designated Entities

77. In authorizing the Commission to use competitive bidding, Congress
    mandated that the Commission "ensure that small businesses, rural
    telephone companies, and businesses owned by members of minority
    groups and women are given the opportunity to participate in the
    provision of spectrum-based services."[^340] In addition, Section
    309(j)(3)(B) of the Act provides that, in establishing eligibility
    criteria and bidding methodologies, the Commission shall promote
    "economic opportunity and competition . . . 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."[^341]

78. 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.[^342]
    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.[^343]

79. The 5.9 GHz band will be used for DSRC operations, which are similar
    to the multilateration and non-multilateration systems offered in
    the LMS service. Thus, we believe that the DSRC service is likely to
    have capital costs comparable to those of the LMS service in the
    902-928 MHz band. Therefore, we propose to use the same small
    business size standards the Commission applied to LMS in the 902-928
    MHz band. In the *LMS Second Report and Order*, [^344] the
    Commission defined "small business" as an entity with average annual
    gross revenues for the preceding three years not to exceed \$15
    million and a "very small business" as an entity with average gross
    revenues for the preceding three years not to exceed \$3
    million.[^345] We believe that our proposed approach would provide a
    variety of businesses the opportunities to participate in the
    auction of licenses in the non-exempt portion of the 5.9 GHz band
    and afford licensees substantial flexibility for the provision of
    services with varying capital costs. If we ultimately adopt our
    proposed small business definitions for the 5.9 GHz band, we further
    propose to provide small businesses with a bidding credit of 25
    percent and very small businesses with a bidding credit of 35
    percent. The bidding credits we propose here are those set forth in
    the standardized schedule in Part 1 of our Rules.[^346] We believe
    that these bidding credits will provide adequate opportunities for
    small businesses to participate in the event we auction the
    non-exempt portion of the 5.9 GHz band.[^347]

80. In developing these proposals, we acknowledge the difficulty in
    accurately predicting the market forces that will exist at the time
    these frequencies are licensed. Thus, our forecasts of types of
    services that will be offered over this band may require adjustment
    depending upon ongoing technological developments and changes in
    market conditions. To the extent licensees support a different
    bidding credit regime, please support your proposals with relevant
    information on the types of system architectures that are likely to
    be deployed in this band, the availability of equipment, market
    conditions, and other factors that may affect the capital
    requirements of the type of services a licensee may seek to provide.

81. We also seek comment on whether the small business provisions we
    propose today are sufficient to promote participation by businesses
    owned by minorities and women, as well as rural telephone companies.
    To the extent that commenters propose additional provisions to
    ensure participation by minority-owned or women-owned businesses,
    they should address how such provisions should be crafted to meet
    the relevant standards of judicial review.[^348]

## Other Matters

82. *Intelligent Transportation Radio Service.* As mentioned above,
    Section 90.350 of our Rules[^349] states that "\[t\]he Intelligent
    Transportation Systems radio service is for the purpose of
    integrating radio-based technologies into the nation's
    transportation infrastructure . . . ." We seek comment on whether
    Section 90.350 should be modified to refer to the "nation's
    *surface* transportation infrastructure." We note that this
    modification may be more consistent with the terminology used by DOT
    and the transportation industry. Also, it appears that such a
    modification may be more consistent with the two relevant statutes,
    ISTEA and TEA-21, which concern only surface transportation.

83. *Location and Monitoring Service.* Several commenters have expressed
    concern that toll authorities, which have been using DSRC-based ITS
    services in the 902-928 MHz band in the LMS service for electronic
    toll collection (ETC), may be forced to relocate to the 5.9 GHz band
    prematurely. The International Bridge, Tunnel and Turnpike
    Association (IBTTA) is concerned that this proceeding, *i.e.* WT
    Docket 01-90, may disrupt ITS and ETC research and development by
    promoting the exclusive use of 5.9 GHz band for DSRC-based ITS
    applications, downgrading ETC in the LMS service because of the
    possibility of interference, jeopardizing significant public
    investments in ETC in the LMS service, and delaying pending
    deployment of ETCs in the LMS service.[^350] TransCore Corporation
    notes that it is essential to maintain the current allocation for
    DSRC-based ITS in the 915 MHz band to accommodate the many existing
    ITS systems, primarily ETC systems, commercial vehicle weigh station
    bypass systems, electronic border crossing systems, and the early
    implementation of electronic commerce.[^351] We do not have plans at
    this time to require DSRC-based ITS systems operating in the 902-928
    MHz band to relocate to the 5.9 GHz band. We note that Progeny, LMS,
    LLC filed a petition for rulemaking regarding the Location and
    Monitoring Service rules, but the petition does not address
    relocation.[^352]

84. *Warren Havens.* We conclude that Warren Havens' recommendation to
    combine the 217-222 MHz (extended to 225 MHz), 216-217 MHz, 902-928
    MHz, and 5.850-5.925 GHz bands into a multi-band ITS-focused network
    called the National Infrastructure Radio Service (NIRS)[^353]
    involves issues best addressed in a separate proceeding.[^354]

# PROCEDURAL MATTERS

## Initial Regulatory Flexibility Analysis

85. 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 the Notice of
    Proposed Rulemaking; it is contained in Appendix A. We request
    written public comment on the analysis. Comments must be filed in
    accordance with the same filing deadlines as comments filed in
    response to the Notice of Proposed Rulemaking, and must have a
    separate and distinct heading designating them as responses to the
    IRFA. The Commission\'s Consumer and Governmental Affairs Bureau,
    Reference Information Center, will send a copy of this Notice of
    Proposed Rulemaking, including the IRFA, to the Chief Counsel for
    Advocacy of the Small Business Administration.

## Paperwork Reduction Analysis

86. This Notice contains either a proposed or modified information
    collection. As part of its 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, Public Law 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 date of publication of
    this Notice in the Federal Register. Comments should address: (a)
    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; (b) the
    accuracy of the Commission\'s burden estimates; (c) ways to enhance
    the quality, utility, and clarity of the information collected;
    and (d) 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.

87. Written comments by the public on the proposed and/or modified
    information collections are due 60 days after the date of
    publication in the Federal Register. Written comments must be
    submitted by the Office of Management and Budget (OMB) on the
    proposed and/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 collection(s) contained herein should be
    submitted to Judy Boley Herman, Federal Communications Commission,
    Room 1-C804, 445 12th Street, SW, Washington, DC 20554, or via the
    Internet to jbHerman@fcc.gov and to Jeanette Thornton, OMB Desk
    Officer, Room 10236 NEOB, 725 17th Street, N.W., Washington, DC
    20503 or via the Internet to jthornto@mb.eop.gov.

## *Ex Parte* Presentations

88. 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.[^355]

## Comment Dates

89. 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 **\[60 days from publication in the Federal Register\]**, and
    reply comments on or before **\[90 days from publication in the
    Federal Register\]**. Comments may be filed using the Commission\'s
    Electronic Comment Filing System (ECFS) or by filing paper copies.
    *See Electronic Filing of Documents in Rulemaking Proceedings*, 63
    Fed. Reg. 24121 (1998).

90. Comments filed through the ECFS can be sent as an electronic file
    via the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>.
    Generally, only one copy of an electronic submission must be filed.
    If multiple docket or rulemaking numbers appear in the caption of
    this proceeding, *i.e.* WT Docket 01-90, however, commenters must
    transmit one electronic copy of the comments to each docket or
    rulemaking number referenced in the caption. In completing the
    transmittal screen, commenters should include their full name, U.S.
    Postal Service mailing address, and the applicable docket or
    rulemaking number. Parties may also submit an electronic comment by
    Internet e-mail. To get filing instructions for e-mail comments,
    commenters should send an e-mail to ecfs@fcc.gov, and should include
    the following words in the body of the message, \"get form \<your
    e-mail address\>.\" A sample form and directions will be sent in
    reply. Parties who choose to file by paper must file an original and
    four copies of each filing. If more than one docket or rulemaking
    number appears in the caption of this proceeding, commenters must
    submit two additional copies for each additional docket or
    rulemaking number. Filings can be sent by hand or messenger
    delivery, by commercial overnight courier, or by first-class or
    overnight U.S. Postal Service mail (although we continue to
    experience delays in receiving U.S. Postal Service mail). The
    Commission\'s contractor, Vistronix, Inc., will receive
    hand-delivered or messenger-delivered paper filings for the
    Commission\'s Secretary at 236 Massachusetts Avenue, N.E., Suite
    110, Washington, D.C. 20002. The filing hours at this location are
    8:00 a.m. to 7:00 p.m. All hand deliveries must be held together
    with rubber bands or fasteners. Any envelopes must be disposed of
    before entering the building. Commercial overnight mail (other than
    U.S. Postal Service Express Mail and Priority Mail) must be sent to
    9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal
    Service first-class mail, Express Mail, and Priority Mail should be
    addressed to 445 12th Street, SW, Washington, D.C. 20554. All
    filings must be addressed to the Commission\'s Secretary, Office of
    the Secretary, Federal Communications Commission.

## Further Information

91. For further information concerning the Notice of Proposed
    Rulemaking, contact Nancy M. Zaczek at (202) 418-7590, Gerardo Mejia
    at (202) 418-2895 or via e-mail at nzaczek \@fcc.gov or gmejia
    \@fcc.gov, or via TTY (202) 418-7233, Wireless Telecommunications
    Bureau, Federal Communications Commission, Washington, D.C. 20554.

92. Alternative formats (computer diskette, large print, audio cassette,
    and Braille) are available to persons with disabilities by
    contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or
    via e-mail to <bmillin@fcc.gov>. This Notice of proposed Rulemaking
    can be downloaded at
    http://www.fcc.gov/Wireless/Orders/2002/fcc0215txt.

# Ordering clauses

93. ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 1, 4(i), 302,
    303(f) and (r), and 332 of the Communications Act of 1934, as
    amended, 47 U.S.C. 1, 154(i), 302, 303(f) and (r), and 332, NOTICE
    IS HEREBY GIVEN of the proposed regulatory changes described in this
    NOTICE OF PROPOSED RULEMAKING AND ORDER, and that COMMENT IS SOUGHT
    on these proposals.

94. IT IS FURTHER ORDERED that the Petitions for Reconsideration or
    Clarification of the *Allocation Report and Order,* ET Docket No.
    98-95, filed by PanAmSat Corporation and Mark IV Industries Limited,
    I.V.H.S. Division ARE DISMISSED AS MOOT.

95. IT IS FURTHER ORDERED that the Commission\'s Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this NOTICE OF PROPOSED RULEMAKING AND ORDER,
    including the Initial Regulatory Flexibility Analysis, to the Chief
    Counsel for Advocacy of the U.S. Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

APPENDIX A \-- INITIAL REGULATORY FLEXIBILITY ANALYSIS

(for *Notice of Proposed Rulemaking*)

> As required by the Regulatory Flexibility Act (\"RFA\"),[^356] the
> Commission has prepared this present Initial Regulatory Flexibility
> Analysis (\"IRFA\") of the possible significant economic impact on
> small entities by the policies and rules proposed in the Notice of
> Proposed Rulemaking (*Notice*), WT Docket No. 01-90. Written public
> comments are requested on this IRFA. Comments must be identified as
> responses to the IRFA and must be filed by the deadlines for comments
> on the *Notice* as provided above. The Commission will send a copy of
> the *Notice*, including the IRFA, to the Chief Counsel for Advocacy of
> the U.S. Small Business Administration.[^357] In addition, the
> *Notice* and IRFA (or summaries thereof) will be published in the
> Federal Register.[^358]

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

> In this *Notice*, we propose licensing, service, and operating rules
> for the 5.850-5.925 GHz band for use by Dedicated Short Range
> Communications (DSRC) Services in the provision of Intelligent
> Transportation Systems (ITS) services. DSRC communications are used
> for the non-voice wireless transfer of data over short distances
> between roadside and mobile units, between mobile units, and between
> portable and mobile units to perform operations related to the
> improvement of traffic flow, traffic safety, and other intelligent
> transportation service applications in a variety of environments. This
> action is taken as a follow-up to the *Allocation Report and Order*,
> in which the Commission stated that it would defer licensing and
> service rules to a later proceeding.[^359]

**Legal Basis for Proposed Rules**

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

**Description and Estimate of the Number of Small Entities To Which the
Proposed Rules Will Apply**

> The RFA directs agencies to provide a description of and, where
> feasible, an estimate of the number of small entities that may be
> affected by the proposed rules, if adopted.[^360] The RFA defines the
> term \"small entity\" as having the same meaning as the terms \"small
> business,\" \"small organization,\" and \"small governmental
> jurisdiction.\"[^361] In addition, the term \"small business\" has the
> same meaning as the term \"small business concern\" under the Small
> Business Act.^.^[^362] A small business concern is one which: (1) is
> independently owned and operated; (2) is not dominant in its field of
> operation; and (3) satisfies any additional criteria established by
> the Small Business Administration (SBA).[^363] A small organization is
> generally \"any not-for-profit enterprise which is independently owned
> and operated and is not dominant in its field.\"[^364] Nationwide, as
> of 1992, there were approximately 275,801 small organizations.[^365]
> \"Small governmental jurisdiction\"[^366] generally means
> \"governments of cities, counties, towns, townships, villages, school
> districts, or special districts, with a population of less than
> 50,000.\"[^367] As of 1992, there were approximately 85,006
> governmental entities in the United States.[^368] This number includes
> 38,978 counties, cities, and towns; of these, 37,566, or 96%, have
> populations of fewer than 50,000.[^369] The Census Bureau estimates
> that this ratio is approximately accurate for all governmental
> entities. Thus, of the 85,006 governmental entities, we estimate that
> 81,600 (96%) are small entities.

13. With respect to the 5.9 GHz band, the Commission has not yet
    determined how many licenses will be awarded. Moreover, the
    Commission does not yet know how many applicants or licensees will
    be small entities. We therefore assume that, for purposes of our
    evaluations and conclusions in the IRFA, all prospective licensees
    are small entities, as that term is defined by the SBA or by our
    proposed small business definitions for these bands. We invite
    comment on this analysis.

> In addition, we note that the SBA has developed size standards for
> wireless small businesses within the two separate Economic Census
> categories of Paging and of Cellular and Other Wireless
> Telecommunications. For both of those categories, the SBA considers a
> business to be small if it has 1,500 or fewer employees. 13 C.F.R. §§
> 121.201, NAICS codes 517211, 517212. According to the Commission\'s
> most recent *Telephone Trends Report* data,[^370] 1,761 companies
> reported that they were engaged in the provision of wireless service.
> *Telephone Trends Report*, Table 5.3. Of these 1,761 companies, an
> estimated 1,175 have 1,500 or fewer employees and 586 have more than
> 1,500 employees. *Id.* Consequently, the Commission estimates that
> most wireless service providers are small entities.
>
> The Commission has not developed a definition of small entities
> specifically applicable to Dedicated Short-Range Communications
> Manufacturers (DSRC Manufacturers). However, the SBA has established a
> small business size standard for Radio and Television Broadcasting and
> Wireless Communications Equipment Manufacturing. Under this standard,
> firms are considered small if they have 750 or fewer employees.[^371]
> Census data for 1997 indicate that, for that year, there were a total
> of 1,215 establishments[^372] in this category.[^373] Of those, there
> were 1150 that had employment under 500, and an additional 37 that had
> employment of 500 to 999. The percentage of wireless equipment
> manufacturers to total manufacturers in this category is approximately
> 61.35%,[^374] so we estimate that the number of wireless equipment
> manufacturers with employment under 500 was actually closer to 706,
> with an additional 23 establishments having employment of between 500
> and 999. Given the above, we estimate that the great majority of
> wireless communications equipment manufacturers are small.

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

> In the *Notice,* we seek comment on whether to designate a portion of
> the band for public safety and non-public safety radio. Should we
> decide to license a portion of the 5.9 GHz band for public safety
> purposes, those licensees will be required to submit an application
> through the Universal Licensing System using Form 601.[^375] Other
> possible requirements include complying with Part 90 of the
> Commission's Rules and Part 15 of our Rules if unlicensed operations
> are permitted.
>
> Should we adopt a licensing scheme that results in mutually exclusive
> applications, applicants for licenses will be required to submit
> short-form auction applications using FCC Form 175.[^376] In addition,
> winning bidders must submit long-form license applications through the
> Universal Licensing System using FCC Form 601,[^377] and other
> appropriate forms.[^378] Licensees will also be required to apply for
> an individual station license by filing FCC Form 601 for those
> individual stations that (1) require submission of an Environmental
> Assessment under Section 1.1307 of our Rules;[^379] (2) require
> international coordination;[^380] (3) would operate in the quiet zones
> listed in Section 1.924 of our Rules;[^381] or (4) require
> coordination with the Frequency Assignment Subcommittee (FAS) of the
> Interdepartment Radio Advisory Committee (IRAC).[^382] Licensees will
> be required to identify on Form 601 the type of service or services
> they intend to provide. We comment of how these filing requirements
> can be modified to reduce the burden on small entities.

Steps Taken to Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered

> The RFA requires an agency to describe any significant alternatives
> that it has considered in reaching its proposed approach, which may
> include the following four alternatives: (1) the establishment of
> differing compliance or reporting requirements or timetables that take
> into account the resources available to small entities; (2) the
> clarification, consolidation, or simplification of compliance or
> reporting requirements under the rule for small entities; (3) the use
> of performance, rather than design standards; and (4) an exemption
> from coverage of the rule, or any part thereof, for small
> entities.[^383]

We have reduced the burdens wherever possible. To minimize any negative
impact, however, we propose certain incentives for small entities that
will redound to their benefit. We propose the use of bidding credits for
small entities that participate in auctions of licenses that are
conducted pursuant to the rules proposed in this *Notice*. We propose to
define a "small business" as an entity with average annual gross
revenues for the preceding three years not to exceed \$15 million and a
"very small business" as an entity with average gross revenues for the
preceding three years not to exceed \$3 million.[^384] We believe that
these bidding credits will help small entities compete in our auctions
and acquire licenses. We seek comment on our proposed small business
definitions and bidding credits, including information on factors that
may affect the capital requirements of the type of services a licensee
may seek to provide.

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 May Duplicate, Overlap, or Conflict With the
Proposed Rules**

> None.

#   {#section .unnumbered}

**APPENDIX B---LIST OF DSRC-BASED ITS APPLICATIONS**[^385]

### [PROPOSED PUBLIC SAFETY]{.underline} {#proposed-public-safety .unnumbered}

### 1. Probe Data Collection {#probe-data-collection .unnumbered}

1.  Traffic Information

```{=html}
<!-- -->
```
1.  Toll Collection

```{=html}
<!-- -->
```
1.  In-Vehicle Signing

> a\. Work Zone Warning

b\. Highway/Rail Intersection Warning

c.  Road Condition Warning

#### 5. Intersection Collision Avoidance  {#intersection-collision-avoidance .unnumbered}

#### 6. Vehicle to Vehicle  {#vehicle-to-vehicle .unnumbered}

#### Vehicle Stopped or Slowing Warning

#### Vehicle-Vehicle Collision Avoidance

#### Imminent Collision Warning 

#### Rollover Warning

#### Low Bridge Warning 

#### Mainline Screening 

####  Border Clearance 

#### On-Board Safety Data Transfer 

#### Commercial Vehicle Operations (CVO) Driver's Daily Log 

#### Vehicle Safety Inspection 

#### Transit Vehicle Data Transfer (gate and yard) 

#### Transit Vehicle Signal Priority 

#### Emergency Vehicle Signal Preemption 

#### Emergency Vehicle Video Relay 

#### Emergency Vehicle Approach Warning 

#### Transit Vehicle Refueling

**[PROPOSED NON-PUBLIC SAFETY]{.underline}**

1.  Access Control

2.  Gas Payment

3.  Drive-Thru Payment

4.  Parking Lot Payment

5.  Data Transfer (IDB, J1708, J1939, PCI, etc)

```{=html}
<!-- -->
```
a.  Advanced Traveler Information Systems (ATIS) Data

b.  Vehicle Diagnostic Data

c.  Repair-Service Record

d.  Vehicle Computer Program Updates

e.  Map and Music Data Updates

```{=html}
<!-- -->
```
6.  Rental Car Processing

7.  Unique CVO Fleet Management

8.  CVO Truck Stop Data Transfer

9.  Locomotive Fuel Monitoring

10. Locomotive Data Transfer

    **APPENDIX C -- LIST OF COMMENTERS**

    **The following documents were filed in response to the *Public
    Notice: ***Wireless Telecommunications Bureau Seeks Comment
    Regarding Intelligent Transportation System Applications Using
    Dedicated Short-Range Communications, WT Docket 01-90, *Public
    Notice*, 16 FCC Rcd 8824 (2001).

    **[LIST OF PARTIES RESPONDING TO *PUBLIC NOTICE*]{.underline}**

    **[Comments]{.underline}**

    Federal Signal Corporation

    Intelligent Transportation Society of America

    International Bridge, Tunnel and Turnpike Association

    Mark IV Industries, Limited, I.V.H.S. Division

    Motorola

    Public Safety Wireless Network

    TransCore Corporation

    Warren Havens and Telesaurus Holdings GB, LLC

    **[Reply Comments]{.underline}**

    American Association of State Highway and Transportation Officials

    Federal Signal Corporation

    Intelligent Transportation Society of America

    Public Safety Wireless Network

[^1]: The Commission opened WT Docket No. 01-90 under the following
    caption: "Intelligent Transportation System Applications Using
    Dedicated Short-Range Communications." *See*, e.g.*, Order*, WT
    Docket No. 01-90, 15 FCC Rcd 5558 (2001). We are today revising the
    caption of this docket to more accurately reflect the scope of this
    proceeding.

[^2]: See 47 C.F.R. Part 90, Subpart M.

[^3]: Amendment of Parts 2 and 90 of the Commission's Rules to Allocate
    the 5.850-5.925 GHz Band to the Mobile Service for Dedicated Short
    Range Communications of Intelligent Transportation Services, ET
    Docket No. 98-95, *Report and Order*, 14 FCC Rcd 18221 (1999)
    (*Allocation Report and Order*).

[^4]: PanAmSat Corporation, Petition for Reconsideration or
    Clarification (filed Dec. 27, 1999) (PanAmSat Petition).

[^5]: Mark IV Industries, Limited, I.V.H.S. Division, Petition for
    Clarification (filed Dec. 27, 1999) (Mark IV Petition).

[^6]: Originally entitled "Intelligent Vehicle Highway Systems"
    ("IVHS"). *See* Intermodal Surface Transportation Efficiency Act of
    1991, Pub. L. 102-240, 105 Stat. 1914 (1991) (ISTEA).

[^7]: ISTEA at § 6051.

[^8]: *See* ISTEA at § 6052(b).

[^9]: Section 6059 of ISTEA defines ITS as:

    > The development or application of electronics, communications, or
    > information processing (including advanced traffic management
    > systems, commercial vehicle operations, advanced traveler
    > information systems, commercial and advanced vehicle control
    > systems, advanced public transportation systems, satellite vehicle
    > tracking systems, and advanced vehicle communications systems)
    > used singly or in combination to improve the efficiency and safety
    > of surface transportation systems.

[^10]: In 1998, DOT explained the ITS program as follows:

    > Surface transportation systems -- the networks of highways, local
    > streets, bus routes, and rail lines -- are the ties that bind
    > communities and facilitate commerce, connecting businesses and
    > residents to work, homes, schools, services, and each other.
    > During the past 20 years, however, transportation systems have
    > struggled to keep pace with Americans' growing and changing travel
    > needs. The General Accounting Office has projected that congestion
    > in metropolitan areas could worsen by 300 to 400 percent over the
    > next 15 years unless significant changes are made. Transportation
    > in the aggregate, particularly when affected by these factors,
    > poses an environmental threat as well. Finally, traffic accidents
    > now claim more than 41,000 lives each year. Congress has decided
    > to add new tools to the transportation system. Rather than
    > continuing to rely simply upon quantitative additions to the
    > existing transportation infrastructure, Congress has chosen to
    > also emphasize the use of technology to improve the performance of
    > that infrastructure.

    United States Department of Transportation Comments to ET Docket No.
    98-95 at 2 (DOT Comments).

[^11]: Section 6053(b) of ISTEA states:

    > The Secretary shall develop and implement standards and protocols
    > to promote the widespread use and evaluation of intelligent
    > vehicle-highway systems technology as a component of the Nation's
    > surface transportation systems. To the extent practicable, such
    > standards and protocols shall promote compatibility among
    > intelligent vehicle-highway systems technologies implemented
    > throughout the States. In carrying out this subsection, the
    > Secretary may use the services of such existing standards-setting
    > organizations as the Secretary determines appropriate.

[^12]: ISTEA at § 6053(e).

[^13]: ITS America, a Federal Advisory Committee to DOT, was first
    organized in 1991 and is a non-profit, educational association. Its
    members are drawn from the business, academic, and government
    sectors. ITS America has over 600 members. Over 350 of its members
    represent corporations involved in providing transportation of goods
    and services, 135 members represent federal, state, and municipal
    transportation agencies, and 50 members represent research
    institutions and universities. *See* Status Report on Licensing and
    Service Issues and Deployment Strategies for DSRC-Based Intelligent
    Transportation Services in the 5.850-5.925 GHz Band (filed by ITS
    America on Oct. 6, 2000) at 4-5 (Status Report)*.* *See Ex Parte*
    Comments of the Intelligent Transportation Society of America:
    Status Report and Recommendations for Licensing and Service Rules
    for the DSRC Spectrum in the 5850-5925 MHz Band from Mark D.
    Johnson, Squire, Sanders & Dempsey to Federal Communications
    Commission at 19 (filed July 9, 2002) (July *Ex Parte* Comments).

[^14]: *See* Federal Advisory Committee Act, P.L. 92-463, 86 Stat. 770
    (1972) *codified at* 5 U.S.C. Appendix 2.

[^15]: DOT Comments at 2.

[^16]: *Id.*

[^17]: The Transportation Equity Act for the 21^st^ Century (TEA-21)
    subsequently required the use of the National Architecture. Section
    5206(a) of TEA-21 states:

    > Consistent with section 12(d) of the National Technology and
    > Advancement Act of 1995 . . ., the Secretary shall develop,
    > implement, and maintain a national architecture and supporting
    > standards and protocols to promote the widespread use and
    > evaluation of intelligent transportation system technology as a
    > component of the surface transportation systems of the United
    > States.

    Transportation Equity Act for the 21^st^ Century, Pub. L. 105-178,
    112 Stat. 107 at § 5206(a) (1998) (TEA-21).

[^18]: U.S. Department of Transportation, Intelligent Transportation
    Systems, The National Architecture for ITS: A Framework for
    Integrated Transportation into the 21^st^ Century (1996) at 2.

[^19]: *Id.*

[^20]: The National Architecture establishes the types of information
    and communication that are needed to support various ITS services,
    how data should be shared and used by which physical entities, and
    the types of standards that are needed to facilitate sharing of
    information. ITS relies on the interaction among three "layers" of
    infrastructure, the transportation layer, the communications layer,
    and the institutional layer. The transportation layer is the
    physical ITS infrastructure composed of travelers, vehicles, and
    roadside equipment. The communications layer is the information
    infrastructure that connects elements of the transportation layer,
    thus allowing coordination and sharing among systems and people. The
    institutional layer is composed of organizations. *Id*. at 4.

[^21]: ITS America states that as "expected use of the band increases in
    the future, new and unforeseen applications will be deployed
    consistent with the ITS User Service Bundles." *See* July *Ex Parte*
    Comments at 24.

[^22]: July *Ex Parte* Comments at 6, 24-25. The eight User Service
    Bundles are as follows: (1) Travel and Traffic Management, comprised
    of Probe Data Collection, and Traffic Information; (2) Maintenance
    Construction Operations, comprised of In-Vehicle Signing (Work Zone
    Warning, Highway/Rail Intersection Warning, and Road Condition
    Warning); (3) Public Transit Management, comprised of Transit
    Vehicle Data Transfer (gate and yard) and Transit Vehicle Signal
    Priority; (4) Electronic Payment, comprised of Toll Collection, Gas
    Payment, Drive-Thru Payment, Rental Car Processing, and Parking Lot
    Payment; (5) Commercial Vehicle Operations (CVO), comprised of Main
    Screening, Border Clearance, CVO Driver's Daily Log; Unique CVO
    Fleet Management, and CVO Truck Stop Data Transfer ; (6) Emergency
    Management, comprised of In-Vehicle Signing (Work Zone Warning,
    Highway/Rail Intersection Warning, and Road Condition Warning),
    On-Board Safety Data Transfer, Vehicle Safety Inspection, Emergency
    Vehicle Video Relay, and Emergency Vehicle Approach Warning; and (7)
    Advanced Vehicle Safety Systems, comprised of Intersection Collision
    Avoidance, In-Vehicle Signing (Work Zone Warning, Highway/Rail
    Intersection Warning, and Road Condition Warning),
    Vehicle-to-Vehicle (Vehicle Stopped or Slowing, Vehicle/Vehicle
    Collision Avoidance, and Imminent Collision Warning), Rollover
    Warning, and Low Bridge Warning; and (8) Information Management
    comprised of Main Screening, Border Clearance, Access Control Rental
    Car Processing, Unique CVO Fleet Management, CVO Truck Stop Data
    Transfer, Locomotive Fuel Monitoring, and Locomotive Data Transfer.
    *See also* Appendix B for a list of DSRC-based ITS applications in
    the 5.9 GHz band.

[^23]: United States Department of Transportation, *supra* note Error:
    Reference source not found, at 6. ITS America states the at the 5.9
    GHz band is not intended to support all ITS applications. *See* July
    *Ex Parte* Comments at 23.

[^24]: U.S. Department of Transportation, *Background: DSRC Allocation
    to Support Intelligent Transportation System*s (Apr. 1997) at
    http://www.its.dot.gov/tcomm/dsrcbk.htm.

[^25]: *See* Status Report at 5-6.

[^26]: *Id*. at 8.

[^27]: ITS America Petition for Rulemaking, RM 9096, ET Docket No. 98-95
    at 1 (filed May 19, 1997) (ITS America Allocation Petition)*.*

[^28]: *Id.* at ii.

[^29]: *See supra* n. Error: Reference source not found.

[^30]: According to ITS America, from 1991-2003, Congress has authorized
    \$4 billion for the National ITS Program. July *Ex Parte* Comments
    at 4.

[^31]: Section 5206(f) of TEA-21 states:

    > The Federal Communications Commission shall consider, in
    > consultation with the Secretary, spectrum needs for the operation
    > of intelligent transportation systems, including spectrum for the
    > *dedicated short-range vehicle-to-wayside wireless standard.* Not
    > later than January 1, 2000, the Federal Communications Commission
    > shall have completed a rulemaking considering the allocation of
    > spectrum for intelligent transportation systems.

    (emphasis supplied).

[^32]: *Id.*

[^33]: Section 5206(a) of TEA-21 states:

    > \(2\) Interoperability and efficiency.---To the maximum extent
    > practicable, the national architecture shall promote
    > interoperability among, and efficiency of, intelligent
    > transportation system technologies implemented throughout the
    > United States.
    >
    > \(3\) Use of standards development organizations.---In carrying
    > out this section, the Secretary may use the services of such
    > standards development organizations as the Secretary determines to
    > be appropriate.

[^34]: Section 5206(e)(1) of TEA-21 states:

    > Except as provided in paragraphs (2) and (3), the Secretary shall
    > ensure that intelligent transportation system projects carried out
    > using funds made available from the Highway Trust Fund, including
    > funds made available under this subtitle to deploy intelligent
    > transportation system technologies, conform to the national
    > architecture, applicable standards or provisional standards, and
    > protocols developed under subsection (a).

[^35]: *Allocation Report and Order*, 14 FCC Rcd at 18224 ¶ 7. The
    Commission further stated:

    > The European Road Transport and Traffic Telematics ("RTTT")
    > pre-standard consists of 10 megahertz at 5.795-5.805 GHz with an
    > additional 10 megahertz available on a national basis at
    > 5.805-5.815 GHz and recommends that this spectrum be made
    > available on an exclusive basis to avoid interference. However,
    > the European pre-standard allows for 5 megahertz channel pairs and
    > is intended to provide far fewer applications than planned for in
    > the National ITS Architecture for the U.S. Further, the European
    > pre-standard states that future applications may require expansion
    > of the available spectrum at 5.8 GHz. The Japanese pre-standard
    > for DSRC applications plans to make 60 megahertz of spectrum
    > available in the 5.8 GHz range on an exclusive basis. Further, the
    > Japanese standard uses 10 megahertz channels in order to convey
    > large amounts of data to fast moving vehicles as they pass through
    > small communication areas.

    *Allocation Report and Order,* 14 FCC Rcd 18221, 18225-18226 ¶ 10
    (citations omitted).

    Since the *Allocation Report and Order*, ITS America reports that
    Industry Canada is in the process of allocating the 5.855-5.925 GHz
    for DSRC operations, that additional spectrum in the 5.805-5.815 GHz
    band might be made available for DSRC operations in Europe, that
    Japan has made the 5.77-5.85 GHz band available for DSRC operations,
    and that Singapore and South Korea have made the 5.8 GHz Industrial,
    Scientific, and Medical (ISM) band available for DSRC operations.
    July *Ex Parte* Comments at 17.

[^36]: *See* *Allocation Report and Order*, 14 FCC Rcd 18221 at ¶ 1.

[^37]: The Transportation Infrastructure Radio Service was created in
    1995. *See* Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, PR Docket No.
    93-61, *Report and Order*, 10 FCC Rcd 4695, 4698 ¶ 6 (1995) (*LMS
    Report and Order*). In 1997 the Transportation Infrastructure Radio
    Service (TIRS) was renamed the Intelligent Transportation System
    radio service. *See* Amendment of Part 90 of the Commission Rules to
    Adopt Regulations for Automatic Vehicle Monitoring Systems, PR
    Docket No. 93-61, *Memorandum Opinion and Order and Further Notice
    of Proposed Rulemaking,* 12 FCC Rcd 13942, 13944 ¶ 2 (1997).

[^38]: The Location and Monitoring Service (LMS) operates in the 902-928
    MHz band. It includes both multilateration and non-multilateration
    systems. Multilateration LMS systems "use spread spectrum technology
    to locate vehicles or other moving objects with great accuracy
    throughout a wide geographic area." Non-multilateration LMS systems
    "use narrowband technology to transmit data to and from vehicles
    passing through a particular location." *LMS Report and Order,* 10
    FCC Rcd 4695, 4697 ¶ 4.

[^39]: 47 C.F.R. § 90.350.

[^40]: *Id.*

[^41]: *Allocation Report and Order*, 14 FCC Rcd 18221 at ¶ 1.

[^42]: *Id*. at 18231 ¶ 22.

[^43]: *Id*. at 18234 ¶ 27.

[^44]: *See* 47 C.F.R. § 2.106, Table of Frequency Allocations.

[^45]: *See* i*d*.

[^46]: See *id.*

[^47]: *See* *id.*

[^48]: *See* *Allocation* *Report and Order*, 14 FCC Rcd 18221, 18227 ¶
    12.

[^49]: 47 C.F.R. § 2.106, Table of Frequency Allocations.

[^50]: *See* n. Error: Reference source not found, *supra*.

[^51]: Wireless Telecommunications Bureau Seeks Comment Regarding
    Intelligent Transportation System Applications Using Dedicated Short
    Range Communications, *Public Notice*, DA 01-686 (WTB PSPWD rel.
    Mar. 16, 2001) (corrected Mar. 22, 2001).

[^52]: *See* Wireless Telecommunications Bureau Announces That Record
    Regarding "Status Report on Licensing and Service Issues and
    Deployment Strategies for DSRC-Based Intelligent Transportation
    Services in the 5.850-5.925 GHz Band" is Available on the Electronic
    Comment Filing Systems (ECFS), *Public Notice*, 16 FCC Rcd 8824
    (PSPWD WTB 2001).

[^53]: *See* Appendix C.

[^54]: *See* *supra* n. 13*.*

[^55]: ITS America reports that a nationwide Canadian standard, the
    "Spectrum Management, Radio Standard, Location and Monitoring
    Service" is expected to be adopted and would include the same
    channelization plan specified in the ASTM-DSRC Standard. In Europe
    the Comité de Normalisation has developed a set of DSRC standards,
    including the Physical Layer (L1), Data Link Layer (L2) and
    Application Layer (L7). Japan has developed a national DSRC standard
    designated ARIB T-55 and a new generation designated ARIB T-75."
    July *Ex Parte* Comments at 17-18.

[^56]: July *Ex Parte* Comments at ii.

[^57]: *Allocation Report and Order*, 14 FCC Rcd 18221, 18227 ¶ 12.

[^58]: 47 C.F.R. § 90.7. *See also* 47 C.F.R. § 90.371.

[^59]: ITS America, Proposed North American 5.9 GHz Band Plan at 3
    (filed Sept. 21, 2001) (First Proposed Band Plan).

[^60]: *Id.*

[^61]: July *Ex Parte* Comments at 48.

[^62]: ITS America, 5.9 GHz DSRC Band Plan and Rules Proposal at 10
    (filed Jan. 23, 2002) (Second Proposed Band Plan).

[^63]: *Id*. at 11.

[^64]: *Id.*

[^65]: *Id.* at 13.

[^66]: *Id.*

[^67]: July *Ex Parte* Comments at 27.

[^68]: *Id*.

[^69]: *Id.* at 28.

[^70]: See Appendix B for a current list of ITS DSRC-based ITS
    applications.

[^71]: *Id.*

[^72]: July *Ex Parte* Comments at 26-27.

[^73]: *Id*. at 27.

[^74]: *Id*. at 27.

[^75]: *See supra* para. 12.

[^76]: Mark IV Industries Comments at 6.

[^77]: *See* TransCore Corporation Comments at 2. *See also* Federal
    Signal Corporation Comments at 2.

[^78]: ITS America Comments at 6.

[^79]: *Id.* at 5.

[^80]: According to the Commission's Rules "Commercial Mobile Radio
    Service" is a mobile service that is:

    > (a)\--
    >
    > \(1\) provided for profit, *i.e.,* with the intent of receiving
    > compensation or monetary gain:
    >
    > \(2\) An interconnected service; and
    >
    > \(3\) Available to the public, or to such classes of eligible
    > users as to be effectively available to a substantial portion of
    > the public; or
    >
    > \(b\) The functional equivalent of such a mobile service described
    > in paragraph (a) of this section.

    47 C.F.R. § 20.3.

[^81]: ITS America Comments at 5. *See also* July *Ex Parte* Comments at
    47.

[^82]: 47 C.F.R. §§ 90.7 and 90.371(a).

[^83]: July *Ex Parte* Comments at 38 *citing* *Allocation Report and
    Order*, 14 FCC Rcd at 18236.

[^84]: *Id.* at 39.

[^85]: *See infra* para 22.

[^86]: July *Ex Parte* Comments at 38.

[^87]: *See supra* n. Error: Reference source not found.

[^88]: *See supra* n. Error: Reference source not found.

[^89]: ISTEA at § 6059.

[^90]: TEA-21 at § 5203(a)(2).

[^91]: According to the Federal Highway Administration, an agency of
    DOT, "motor vehicle crashes are the leading cause of death among
    Americans 1-34 years old" at
    http://safety.fhwa.dot.gov/facts_data_data.htm.

[^92]: Bureau of Transportation Statistics, DOT, Table 2-17 Motor
    Vehicle Safety Data,
    \<NTSS99main/http://www.bts.gov/btsprod/nts/Ch2_web/W2-17NEW\>.

[^93]: PSWN Reply Comments at 3.

[^94]: *Id.*

[^95]: *See* The 4.9 GHz Band Transferred from Federal Government Use,
    Wt Docket No. 00-32, *Second Report and Order and Further Notice of
    Proposed Rulemaking*, FCC 02-47 (2002).

[^96]: We note that Commission precedent has a tradition of treating
    specific kinds of communications services related to transportation
    as public safety. The Highway Maintenance Radio Service, a part of
    the Public Safety Radio Services, was established in 1949 as an aid
    to other public safety services to keep main roads safe for
    vehicular traffic. State and local governmental entities are
    licensed in this service to provide emergency and routine
    communications for highway departments and maintenance vehicles and
    crews engaged in snow-plowing, clearing debris, repairing road
    damage, and otherwise maintaining highways to keep them open for
    normal travel. Wireless Telecommunications Bureau, Federal
    Communications Commission, Staff White Paper, Private Land Mobile
    Radio Services: Background (1996).

[^97]: *See* ITS America, [Delivering the Future of Transportation The
    National Intelligent Transportation Systems Program Plan: A Ten Year
    Vision]{.underline} (2002), in which ITS America predicts that ITS
    will reduce the number and severity of accidents, thus saving
    5,000-7,000 lives a year by 2011.

[^98]: TEA-21 at § 5203(a)(5).

[^99]: Status Report at 18.

[^100]: July *Ex Parte* Comments at 40.

[^101]: 47 U.S.C. § 309(j)(2).

[^102]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934 as Amended, Promotion of Spectrum Efficient Technologies
    on Certain Part 90 Frequencies, Establishment of Public Service
    Radio Pool in the Private Mobile Frequencies Below 800 MHz, WT
    Docket No. 99-87, *Report and Order and Further Notice of Proposed
    Rulemaking*, 15 FCC Rcd 22709, 22740 ¶ 64 (*BBA Report and Order*).
    *See also*, Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934 as Amended, WT Docket No. 99-87,
    *Memorandum Opinion and Order*, 17 FCC Rcd 7553, 7557 at ¶ 9 (2002)
    (*BBA MO&O*).

[^103]: *BBA Report and Order,* 15 FCC Rcd 22709, 22742-22743 ¶ 69. "We
    conclude that all state and local government entities are eligible
    for licensing in the public safety radio services without any
    further showing as to eligiblity, subject to the statutory
    requirements for spectrum to be deemed auction-exempt." *Id.*

[^104]: 47 U.S.C. § 309(j)(2). See *BBA Report and Order*, 15 FCC Rcd
    22709, 22743 ¶ 71 in which the Commission discusses the legislative
    history of the Balanced Budget Act which indicates that this
    exemption applies to emergency road services provided by
    not-for-profit organizations, such as the American Automobile
    Association, but not to "internal road services used by automobile
    manufacturers and oil companies to support emergency road services
    provided by those parties as part of the competitive marketing of
    their products."

[^105]: *BBA Report and Order*, 15 FCC Rcd 22709, 22747 ¶ 77.

[^106]: Though not specified in 47 U.S.C. § 309(j)(2), the Conference
    Report to the Balanced Budget Act of 1997, Pub. L. No. 105-33, Title
    III, 111 Stat. 251 (1997), identified these entities as public
    safety radio service eligibles. H.R. Conf. Rep. No. 105-217, 105^th^
    Cong., 1^st^ Sess. at 572 (1997). *See also*, *BBA Report and
    Order,* 15 FCC Rcd 22709, 22746 ¶ 75 (2000).

[^107]: *BBA Report and Order* at 22741-22742 ¶ 67. *See also BBA MO&O,*
    17 FCC Rcd at 7566 ¶ 32.

[^108]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934 as amended, Promotion of Spectrum Efficient Technologies
    on Certain Part 90 Frequencies, Establishment of Public Service
    Radio Pool in Private Mobile Frequencies Below 800 MHz, WT Docket
    No. 99-87, *Notice of Proposed Rulemaking*, 14 FCC Rcd 5206, 5226 ¶
    33 (1999) (*BBA NPRM*). *See also*, Amendment of the Commission's
    Rules Regarding Multiple Address Systems, WT Docket No. 97-81,
    *Memorandum Opinion and Order*, 16 FCC Rcd 12181, 12187-12188 ¶ 12
    (2001) (*MAS MO&O*) in which the Commission concluded that a
    company's use of MAS frequencies constituted a private internal
    radio service, even though the remote units were installed at the
    end user's premises. The Commission further found that because the
    service, monitoring alarm systems, was an "end-product, rather than
    a telecommunications service," it was not a "'direct source of
    revenue'" but rather a "means of internal communications to support
    a business."

[^109]: *BBA Report and Order*, 15 FCC Rcd 22709, 22750 ¶ 82. *See also
    BBA MO&O,* 17 FCC Rcd at 7566 ¶ 32 *citing* *MAS MO&O*, 16 FCC Rcd
    12181, 12187-12188 ¶ 11.

[^110]: *See* *infra* para. 21.

[^111]: *See supra* n. Error: Reference source not found.

[^112]: 47 U.S.C. § 337(f)(1).

[^113]: ^?^ *Id*.

[^114]: ^?^ The Commission has previously concluded that all state or
    local government entities that provide of public safety services not
    made commercially available to the public fall within the definition
    of Section 337(f). *700 MHz First R&O*, 14 FCC Rcd at 180-81 ¶ 54;
    s*ee also* 47 C.F.R. § 90.523(a).

[^115]: Status Report at 22.

[^116]: *See id*. at 9-10 and 19.

[^117]: *Id.* at 9.

[^118]: *Id.* at iii.

[^119]: *Id.* at 18.

[^120]: July *Ex Parte* Comments at 47.

[^121]: *See, e.g.*, *id.* at 46 n.87 *citing* 47 C.F.R. § 1305.

[^122]: 47 C.F.R. § 1305.

[^123]: ITS America Allocation Petition at 13.

[^124]: *See supra* para. 6.

[^125]: ITS America Allocation Petition at 13, *citing* U.S. Department
    of Transportation, "Intelligent Transportation Infrastructure
    Benefits: Expected and Experienced," Operation Time Saver Press Kit
    (January 1996).

[^126]: ITS America Allocation Petition at 15.

[^127]: July *Ex Parte* Comments at 30.

[^128]: *Id.*

[^129]: *See id.* at n.55, where ITS America states that "\[o\]nly
    California has attempted to require vendors to build toll equipment
    to a common standard."

[^130]: *Id*. at 30.

[^131]: *Id.*

[^132]: *Id.*

[^133]: *See* Dedicated Short Range Communications in Intelligent
    Transportation Systems (ITS) Commercial Vehicle Operations, FHWA
    Docket No. FHWA-99-584464, *Notice of Proposed Rulemaking*, Fed.
    Reg. 73674 (Dec. 30, 1999). Subsequently, FHWA reopened the comment
    period on Docket FHWA-99-5844 and delayed issuance of a final rule.
    *See* Dedicated Short Range Communications in Intelligent
    Transportation Systems (ITS) Commercial Vehicle Operations, FHWA
    Docket No. FHWA-99-584464, *Supplemental Notice of Proposed
    Rulemaking*, 65 Fed. Reg 77534 (Dec. 12, 2000).

[^134]: ISTEA required the Secretary of DOT to promote compatibility
    among ITS systems. *See supra* n. Error: Reference source not found.

[^135]: TEA-21 at 5206(a)(2).

[^136]: TEA-21 at § 5205(a)(2)(C).

[^137]: *Id*. at § 5206(a)(3).

[^138]: *Id*. at § 5206(b).

[^139]: U.S. Department of Transportation, *Intelligent Transportation
    Systems: Critical Standards* at 19 (June 1999).

[^140]: *See supra* n. Error: Reference source not found.

[^141]: Amendment of Parts 2 and 90 of the Commission's Rules to
    Allocate the 5.850-5.925 GHz Band to the Mobile Service for
    Dedicated Short Range Communications of Intelligent Transportation
    Services, ET Docket No. 98-95, *Notice of Proposed Rulemaking*, 13
    FCC Rcd 14321, 14335 ¶ 28. (1998) (*Allocation NPRM*).

[^142]: *Allocation Report and Order*, 14 FCC Rcd at 18221 ¶ 1.

[^143]: Status Report at ii.

[^144]: See Transportation Equity Act for the 21^st^ Century; Critical
    Intelligent Transportation Standards, *Notice*, 66 Fed. Reg. 20517
    (Apr. 23, 2001), where the Federal Highway Administration (FHWA)
    states that, in response to the requirements of TEA-21, it entered
    into cooperative agreements with five Standards Development
    Organizations (SDOs), including ASTM, to accelerate the development
    of ITS standards that would promote national interoperability. FHWA
    further states that the standards developed under this program are
    "consensus standards and will remain the property of the SDO under
    which they were developed." *See also* Status Report at 11-12.

[^145]: According to ITS America, ASTM is a participating member of the
    American National Standards Institute (ANSI). *See* July *Ex Parte*
    Comments at 13.

[^146]: ITS America reports that the proceedings of the Standards
    Writing Group are open, inclusive, and characterized by due process
    and that decisions are reached through consensus, cooperation, and
    compromise. July *Ex Parte* Comments at 13.

[^147]: Status Report at 11-12.

[^148]: *Id.* at 12.

[^149]: *Id*. at 15-16.

[^150]: *Id*. at 14-15.

[^151]: ITS America maintains that using a variant of IEEE 802.11 and
    802.11a "should provide the higher data rate capabilities and
    reliability needed for DSRC operations." Moreover, ITS America
    maintains that a large manufacturing base exists for IEEE 802.11 and
    802.11a, which could be used to manufacture DSRC equipment. July *Ex
    Parte* Comments at ii.

[^152]: *See* Intelligent Transportation Society of America, *OFDM
    Technology Selected for Road Safety and Traffic Management
    Applications Standard* (Aug. 30, 2001) at
    <http://www.itsa.org/ITSNEWS.NSF>*. See* July *Ex Parte* Comments at
    13.

[^153]: Intelligent Transportation Society of America, *IEEE 802.11a
    Selected For DSRC* (Aug. 27, 2001) at
    <http://www.itsa.org/ITSNEWS.NSF>.

[^154]: OFDM is a digital emission consisting of multiple carriers
    within a single authorized bandwidth or channel, each of which is
    modulated with a portion of the information being transmitted in the
    bandwidth or channel. The signal modulating each carrier is itself a
    digital emission, such as QAM (Quadrature amplitude modulation). The
    amplitudes and spacing of the carriers are such that the spectral
    energy of each carrier is significantly attenuated at the
    frequencies of each of the two adjacent carriers. *See e.g.*,
    Request for Declaratory Ruling Removing the Commission's Minimum
    Carrier Tone Requirement for OFDM Modulation in the Multipoint
    Distribution and Instructional Television Fixed Services*,* MM
    Docket No. 01-145, *Declaratory Ruling and Order*, 16 FCC Rcd 17067
    at n. 2 (2001).

[^155]: *Id.* at 17069 at ¶ 6.

[^156]: *See supra* n. Error: Reference source not found.

[^157]: July *Ex Parte* Comments at 1-2, 13. ITS America states that the
    official publication by ASTM is expected in late summer 2002.

[^158]: *Id*. at 1.

[^159]: *Id.* at ii and iii.

[^160]: *Id*. ITS America reports that there are additional layers under
    development that do not implicate radio frequency issues.

[^161]: *Id.* at 29, 35, and n. 33. *See also* n. Error: Reference
    source not found *supra*.

[^162]: *Id.* at 37.

[^163]: *Id.* at 38.

[^164]: *Id.* 37-38

[^165]: *See supra* n. Error: Reference source not found.

[^166]: TEA-21 states that "the Secretary shall develop . . . a national
    architecture and supporting standards" and "\[i\]n carrying out this
    section, the Secretary may use the services of such standards
    development organizations the Secretary determines to be
    appropriate." TEA-21 at § 5206(a)(1) and (3).

[^167]: Section 90.7 of the Commission's Rules defines interoperability
    as "An essential communication link within public safety and public
    service wireless communications systems which permits units from two
    or more different entities to interact with one another and to
    exchange information according to a prescribed method in order to
    achieve predictable results." 47 C.F.R. § 90.7.

[^168]: See para. 40 *infra* for a detailed discussion of OBUs and RSUs.

[^169]: ^?^ *See, e.g., 700 MHz First* *R&O*, 14 FCC Rcd at 207-211 ¶¶
    118, 121, 123, 124, 130, 132.

[^170]: July *Ex Parte* Comments at 32.

[^171]: *Id*. at 29.

[^172]: *Id*. at 37-38.

[^173]: *Id*. at 32.

[^174]: *Id*. at 33.

[^175]: For similar requirements placed on the National Coordination
    Committee, in developing an interoperable standard in the 700 MHz
    public safety band, *see* Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Agency Communication Requirements through the Year 2010, WT
    Docket No. 96-86, *Memorandum Opinion and Order on Reconsideration*,
    14 FCC Rcd 8059 (1999). We note that ASTM holds the copyright to the
    ASTM-DSRC Standard. *See* July *Ex Parte* Comments at n. 33.

[^176]: *Allocation NPRM*, 13 FCC Rcd 14321, 14340 ¶ 38.

[^177]: *See* First and Second Proposed Band Plans. *See* *also* July
    *Ex Parte* Comments at 58-64.

[^178]: *See* Second Proposed Band Plan at 5, 10, and 16.

[^179]: *See* Second Proposed Band Plan. *See also* July *Ex Parte*
    Comments at 58-64 and Appendix D.

[^180]: July *Ex Parte* Comments at 58-62.

[^181]: ITS America reports that to complete a successful transmission
    in highly reflective urban multi-path locations, the Standards
    Writing Group modified IEEE 802.11a by reducing the clock frequency,
    data rates, and channel bandwidths by a factor of two to provide
    more robust and reliable communications. According to ITS America
    this calculation results in channel bandwidths of 10 megahertz with
    possible data rates from six Mbit/s to 27 Mbit/s. July Ex Parte
    Comments at 58-59.

[^182]: ITS America reports that the ASTM-DSRC Standard derives its
    numbering scheme from the IEEE 802.11a variant and the UNII band at
    5735-5815 MHz to prevent channel selection discrepancies in dual
    mode devices. July *Ex Parte* Comments at 59.

[^183]: Second Proposed Band Plan at 9, 16. July *Ex Parte* Comments at
    60 and 62.

[^184]: Second Proposed Band Plan at 15.

[^185]: Second Proposed Band Plan at 16. July *Ex Parte* Comments at 62.
    *See also* Section B hereof for discussion of eligibility. ITS
    America reports that using an OFDM modulation system, the control
    channel and service channels can support data transmission rates of
    3, 4.5, 6, 9, 12, 18, 24, and 27 Mbit/s. Optional twenty-megahertz
    channels can achieve transmission rates of 6, 9 12, 18, 24, 36, 48,
    and 54 Mbit/s. July *Ex Parte* Comments at 59.

[^186]: July *Ex Parte* Comments at 60.

[^187]: *Id*. at 60-61, and Appendix C at 12. ITS America reports that
    protocols for using the Control Channel are expected to be finalized
    and available for Commission consideration as part of any future
    rulemaking proceeding. ITS America states that the ASTM-DSRC
    Standard is "prepared with the assumption that there will be
    additional higher layer aspects to the standard, including Control
    Channel access." *Id.* at 60.

[^188]: *Id.* at 60

[^189]: Second Proposed Band Plan at 10. July *Ex Parte* Comments at 60.

[^190]: July *Ex Parte* Comments at 61 and 63.

[^191]: *Id.* at 61.

[^192]: Second Proposed Band Plan at 8. July *Ex Parte* Comments at 61.

[^193]: *See* The Development of Operational, Technical and Spectrum
    Requirements For Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010
    Establishment of Rule Requirements for Priority Access Service, WT
    Docket No. 96-98, *First Report and Order and Third Notice of
    Proposed Rulemaking*, 14 FCC Rcd 152, 157 ¶ 8.

[^194]: *See supra* para. 13 for additional background on DSRC devices.

[^195]: Second Proposed Band Plan at 11.

[^196]: *Id.* at 13.

[^197]: *Id.*

[^198]: *Id*.

[^199]: *Id*. *See also* July *Ex Parte* Comments at 61.

[^200]: Second Proposed Band Plan at 13.

[^201]: First Proposed Band Plan at 7.

[^202]: *Id*. at 7.

[^203]: *Id.* at 8.

[^204]: Second Proposed Band Plan at 14.

[^205]: ITS America recommends that the fixed RSU be licensed on a site
    specific basis, but it does not describe how the portable/mobile RSU
    should be licensed. July *Ex Parte* Comments at 48.

[^206]: *See* 47 C.F.R. § 90.175.

[^207]: Biennial Regulatory Review -- Amendment of Parts 0, 1, 2, 13,
    22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's
    Rules to Facilitate the Development and Use of the Universal
    Licensing System in the Wireless Telecommunications Services, WT
    Docket No. 98-20, Amendment of the Amateur Service Rules to
    Authorize Visiting Foreign Amateur Operators to Operate Stations in
    the United States, WT Docket No. 96-188, *Report and Order*, 13 FCC
    Rcd 21027 (1998) (*ULS Report and Order*).

[^208]: July *Ex Parte* Comments at 49.

[^209]: *Id*.

[^210]: *Id.* at 53.

[^211]: *Id.*

[^212]: *Id*., Appendix C at 8.

[^213]: *Id.* at 49.

[^214]: *Id*. at 50.

[^215]: *Id*. at 50-51.

[^216]: *Id*. at 52-53.

[^217]: *Id*. at 51.

[^218]: *Id.*

[^219]: *Id.* at 64.

[^220]: *Id*. at 65.

[^221]: *Id.*

[^222]: *Id.*

[^223]: 47 U.S.C. § 158.

[^224]: 47 U.S.C. § 159.

[^225]: *See* U.S.C. §§ 158(d)(1) and 159(h).

[^226]: *ULS Report and Order,* 13 FCC Rcd 21027*.*

[^227]: Development of Operational, Technical and Spectrum Requirements
    for Meeting Federal, State and Local Public Safety Agency
    Communication Requirements Through the Year 2010, WT Docket No.
    96-86, *Third Memorandum Opinion and Order and Third Report and
    Order,* 15 FCC Rcd 19844, 19869 ¶ 54-55 (2002).

[^228]: *Id. at ¶ 57.*

[^229]: *Id*. at ¶¶ 54-55.

[^230]: *BBA Report and Order*, 15 FCC Rcd 22709, 22725-22726 ¶ 32.

[^231]: *See infra* para. 54 for a discussion of licensing by rule.

[^232]: *See* 47 U.S.C. §§ 309(j)(3)(B), (4)(C).

[^233]: *See* 47 U.S.C. § 309(j)(3)(A).

[^234]: *See* 47 U.S.C. § 309(j)(4)(C)(iii).

[^235]: *See* Report No. Cl-92-40, Common Carrier Public Mobile Services
    Information, Cellular MSA/RSA Markets and Counties, dated January
    24, 1992, DA 92-109, *Public Notice,* 7 FCC Rcd 742 (1992). *See
    also* 47 C.F.R. § 22.909. There are 734 MSAs and RSAs.

[^236]: *See* Amendments to Parts 1, 2, 87, and 101 of the Commission\'s
    Rules to License Fixed Services at 24 GHz, WT Docket No. 99-327,
    *Report and Order,* 15 FCC Rcd 16934, 16942-16944 (2000) (*24 GHz
    Report and Order*). There are 172 EAs, as defined by the U.S.
    Department of Commerce, and three additional Commission-defined
    EA-like areas. The three additional EA-like service areas are: (1)
    Guam and the Northern Mariana Islands (combined as one service
    area); (2) Puerto Rico and the United States Virgin Islands
    (combined as one service area); and (3) American Samoa.

[^237]: *See* 47 C.F.R. § 27.6. *See also,* *Part 27 Report and Order*,
    12 FCC Rcd at 10814-16 ¶¶ 54-60. At the time of the 2.3 GHz auction,
    REAs were defined as Regional Economic Area Groupings (REAGs).

[^238]: *See* Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, WT Docket No.
    99-168, *First Report and Order*, 15 FCC Rcd 476, 500 ¶ 56 (*700 MHz
    First Report and Order)*.

[^239]: *See supra* n. Error: Reference source not found.

[^240]: *See 700 MHz Fourth NPRM*, 15 FCC Rcd at 16909 ¶ 21.

[^241]: *See 700 MHz First R&O*, 14 FCC Rcd at 190 ¶ 77 *citing 800 MHz
    R&O*, 3 FCC Rcd at 906.

[^242]: See Part 15 licensing discussion at para. 53, *infra*.

[^243]: July *Ex Parte* Comments at 45.

[^244]: *Id.* at 54.

[^245]: *Id*. at 58.

[^246]: *Id.*

[^247]: Review of Part 15 and Other Parts of the Commission's Rules, ET
    Docket 01-278, *Notice of Proposed Rulemaking,* 16 FCC Rcd 18205,
    18207 ¶ 6 (2001).

[^248]: *Id.*

[^249]: *Id.*

[^250]: *Id*. at ¶ 34.

[^251]: *See* *Allocation Report and Order* at 18234 ¶ 28. *See also* 47
    C.F.R. 15.245, 15.247, and 15.249.

[^252]: *See Allocation Report and Order* at 18234 ¶ 28.

[^253]: *Id.* at 18235 ¶ 30.

[^254]: *BBA NPRM,* 14 FCC Rcd 5206, 5218-5219 ¶ 17.

[^255]: *Id.*

[^256]: 47 U.S.C. §307(e)(1).

[^257]: Licensing by rule is also authorized in the aviation radio
    service and in the maritime radio service. *See* 47 U.S.C.
    §307(e)(1).

[^258]: 47 U.S.C. §307(e)(3).

[^259]: 47 C.F.R. § 95.401(a).

[^260]: *BBA NPRM,* 14 FCC Rcd 5206, 5218-5219 ¶ 17.

[^261]: 47 C.F.R. § 95.201.

[^262]: DOT Comments at 2.

[^263]: *Id.*

[^264]: United States Department of Transportation Reply Comments to ET
    Docket No. 98-95 at 3. DOT further cited an ARINC study that "in
    order to avoid potential interference from incumbent users in the
    5.9 GHz band, an allocation of 75 MHz" was necessary "as a practical
    matter." *Id*. at 2.

[^265]: *Allocation Report and Order*, 14 FCC Rcd at 18225 ¶ 9.

[^266]: *Id.* at 18228 ¶ 15*.*

[^267]: *Id.*

[^268]: *Id.*

[^269]: *Id.*

[^270]: PanAmSat Corporation, Petition for Reconsideration or
    Clarification (filed Dec. 27, 1999) (PanAmSat Petition).

[^271]: *Id*. at 2.

[^272]: Comments of Satellite Industry Association, ET Docket No. 98-95
    (supporting PanAmSat Petition)

[^273]: *Id.* at 2.

[^274]: Comments of ITS America, ET Docket No. 98-95 (opposing PanAmSat
    Petition).

[^275]: As noted in para. 3, supra, we dismiss PanAmSat's Petition for
    Reconsideration or Clarification as moot because we are addressing
    the issues raised in that petition in this service rules *Notice.*

[^276]: 47 C.F.R. § 90.371(b).

[^277]: *Id.*

[^278]: *Allocation Report and Order*, 14 FCC Rcd 18221, 18228 ¶14.

[^279]: Pub. L. 105-33, 111 Stat. 251 (1997).

[^280]: *See* 47 U.S.C. § 309(j)(1), (2) (as amended by Balanced Budget
    Act, § 3002).

[^281]: *Id*. 47 U.S.C. § 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 described in § 397(6) of the Communications Act, 47 U.S.C.
    § 397.

[^282]: *See* 47 U.S.C. §§ 309(j)(1), 309(j)(6)(E).

[^283]: *See* 47 U.S.C. § 309(j)(3).

[^284]: *See BBA Report and Order,* 15 FCC Rcd at 22709.

[^285]: *Id.* at 22718-22723.

[^286]: *Id.*

[^287]: *Id.*

[^288]: *See Benkelman Telephone Co., et al. v. FCC*, 220 F.3d 601, 606
    (D.C. Cir. 2000), *petition for rehearing on other grounds pending*.

[^289]: *Id.* (citations omitted) *citing* *DIRECTV, Inc. v. FCC*, 110
    F.3d 816, 828 (D.C. Cir. 1997).

[^290]: *BBA Report and Order*, 15 FCC Rcd 22709, 22741 ¶ 66.

[^291]: *Id.*

[^292]: *BBA MO&O,* 17 FCC Rcd at 7569 ¶ 38 (2002).

[^293]: *National Public Radio, Inc. v. FCC*, 254 F.3d 226 (D.C. Cir.
    2001). Section 309(j)(2)(C), which specifically exempts
    noncommercial educational broadcasters (NCE) from competitive
    bidding, differs from Section 309(j)(2)(A), which exempts public
    safety radio services. Under Section 309(j)(2)(C) licenses or
    construction permits for NCE "stations" are exempt from competitive
    bidding, whereas, under Section 309(j)(2)(A), licenses or
    construction permits for public safety radio "services" are exempt.
    Thus, the Commission concluded that the "NPR court's 'plain
    language' analysis supports the Commission's interpretation of
    Section 309(j)(2)(A) set forth" in the *BBA Report and Order. BBA
    MO&O,* 17 FCC Rcd at 7564 ¶ 27.

[^294]: For a more complete discussion, *see* para. 58 *supra*.

[^295]: 47 C.F.R. § 90.371(b).

[^296]: July *Ex Parte* Comments at 66, *citing* 47 C.F.R. § 90.155.

[^297]: *Id., citing* 47 C.F.R. § 90.629.

[^298]: *Id.*

[^299]: *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).

[^300]: *See LMDS Second Report and Order,* 12 FCC Rcd at 12659 ¶¶
    263-267.

[^301]: *See, e.g.,* 47 C.F.R. § 22.940(a)(1)(i).

[^302]: *See ULS Report and Order,* 13 FCC Rcd 21027*.*

[^303]: 47 C.F.R. § 1.913(b).

[^304]: *Allocation* *Report and Order*, 14 FCC Rcd 18221, 18232 ¶ 24.

[^305]: *Id*. at 18234 ¶ 26.

[^306]: 47 C.F.R. § 90.205(m).

[^307]: 47 C.F.R. § 90.210(k)(3).

[^308]: Mark IV Industries, Limited, I.V.H.S. Division, Petition for
    Clarification (filed Dec. 27, 1999) (Mark IV Petition).

[^309]: Mark IV Petition at 2.

[^310]: *Id.*

[^311]: 47 C.F.R. § 90.205(m).

[^312]: Mark IV Petition at 2.

[^313]: July *Ex Parte* Comments at 68.

[^314]: *Id*. at 68-69.

[^315]: *Id.* at 69.

[^316]: *Id.*

[^317]: As noted in para. 3, *supra*, we dismiss PanAmSat's Petition for
    Reconsideration or Clarification as moot because we are addressing
    the issues raised in that petition in this service rules *Notice.*

[^318]: 47 C.F.R. § 90.210.

[^319]: Mark IV Petition at 2.

[^320]: Id. at 3.

[^321]: July *Ex Parte* Comments at 73*.*

[^322]: *Id*. at 73.

[^323]: *Id.* We assume that the "100 kHz" refers to the resolution
    bandwidth of the instrumentation used to measure the emission power.
    *See* 47 C.F.R. § 90.210(k)(4).

[^324]: July *Ex Parte* Comments at 73.

[^325]: *Id* at 69.

[^326]: According to ITS America the transportation community generally
    uses the term "roadway bed surface" to refer to the road surface at
    ground level, as opposed to the road surface on a bridge or on an
    overpass. ITS America further states that measuring the height of a
    RSU antenna above the roadway bed surface more accurately measures
    the antenna height in relation to the location of traveling
    vehicles. *Id.* at n.132.

[^327]: *Id*. at 70.

[^328]: *Id.* at 71

[^329]: *Id*. at 72.

[^330]: *Allocation Report and Order,* 14 FCC Rcd 18221, 18233 ¶ 26.

[^331]: ASTM-DSRC Standard at 27, § 17.3.9.4.

[^332]: *See* 47 C.F.R. § 2.301 and 1.923 (f).

[^333]: ITS America reports that Industry Canada is in the process of
    allocating the 5.855-5.925 GHz band for DSRC applications. ITS
    America further reports that "Spectrum Management, Radio Standard
    Specification, Location and Monitoring Service," a proposed
    nationwide Canadian standard is expected to be adopted and would
    include the same channelization plan as specified in the ASTM-DSRC
    Standard. July *Ex Parte* Comments at 17.

[^334]: Exchange of Notes at Ottawa, Canada, October 24, 1962. Entered
    into force October 24, 1962. *See* USA: T*reaties and Other
    International Acts Series* (TIAS) 5205; CAN: *Canada Treaty Series*
    (CTS) 1962 No. 15. *Agreement for Revision to Technical Annex to the
    Agreement of October 24, 1962* (TIAS 5205/CTS 1962 No. 15) Effected
    by Exchange of Notes at Ottawa, Canada, June 16 and 24, 1965.
    Entered into force June 24, 1965. USA: TIAS 5833/CAN: CTS 1962 No.
    15, as amended June 24, 1965.

[^335]: We note that ITS America indicates that it received input from
    Industry Canada in preparing the Second Proposed Band Plan. *See*
    Second Proposed Band Plan.

[^336]: *See* *supra* para. 59-62.

[^337]: *See, e.g.,* Amendment of Part 1 of the Commission\'s Rules ---
    Competitive Bidding Procedures, WT Docket No. 97-82, *Order,
    Memorandum Opinion and Order and Notice of Proposed Rule Making,* 12
    FCC Rcd 5686 (1997); Amendment of Part 1 of the Commission\'s Rules
    --- Competitive Bidding Procedures, Allocation of Spectrum Below 5
    GHz Transferred from Federal Government Use, *Third Report and Order
    and Second Further Notice of Proposed Rule Making*, 13 FCC Rcd 374
    (1997) (modified by Erratum, DA 98-419 (rel. March 2, 1998)) (*Part
    1 Third Report and Order)*; Amendment of Part 1 of the Commission\'s
    Rules -- Competitive Bidding Procedures, *Order on Reconsideration
    of the Third Report and Order, Fifth Report and Order, and Fourth
    Further Notice of Proposed Rule Making*, 15 FCC Rcd 15293 (2000)
    (*Part 1 Recon. Order and Part 1 Fifth Report and Order,* *Fourth
    Further Notice of Proposed Rule Making*); Amendment of Part 1 of the
    Commission\'s Rules \-- Competitive Bidding Procedures, *Seventh
    Report and Order*, 16 FCC Rcd 17546 (2001).

[^338]: *See* 47 C.F.R. Section 1.2101 *et. seq.*

[^339]: *See Fourth Further Notice of Proposed Rule Making*, 15 FCC Rcd
    15293 (2000). *See also Part 1 Recon. Order and Part 1 Fifth Report
    and Order*, 15 FCC Rcd 15293 (2000) (recons. pending)*.*

[^340]: *See* 47 U.S.C. § 309(j)(4)(D).

[^341]: *See* 47 U.S.C. § 309(j)(3)(B).

[^342]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, PP Docket No. 93-253, *Second Memorandum
    Opinion and Order*, 9 FCC Rcd 7245, 7269 ¶ 145 (1994) (*Competitive
    Bidding Second Memorandum Opinion and Order*).

[^343]: *Part 1 Third Report and Order*, 13 FCC Rcd at 388 ¶ 18.

[^344]: Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, PR Docket No.
    93-61, *Second Report and Order*, 13 FCC Rcd 15182, 15192-15193 ¶
    20.

[^345]: We are coordinating these special small business size standards
    with the U.S. Small Business Administration.

[^346]: In the *Part 1 Third Report and Order*, the Commission adopted a
    standard schedule of bidding credits, the levels of which were
    developed based on the Commission's auction experience. *Part 1
    Third Report and* Order, 13 FCC Rcd at 403-04 ¶ 47. *See also* 47
    C.F.R. § 1.2110(f)(2).

[^347]: *Part 1 Third Report and* Order, 13 FCC Rcd at 403-04 ¶ 47.

[^348]: *See Adarand Constructors v. Peña*, 515 U.S. 200 (1995)
    (requiring a strict scrutiny standard of review for Congressionally
    mandated race-conscious measures); *United States v. Virginia*, 518
    U.S. 515 (1996) (applying an intermediate standard of review to a
    state program based on gender classification).

[^349]: 47 C.F.R. § 90.350.

[^350]: International Bridge, Tunnel and Turnpike Association Comments
    at 2.

[^351]: TransCore Corporation Comments at 2.

[^352]: *See* Wireless Telecommunications Bureau Seeks Comment on
    Petition for Rulemaking Regarding Location and Monitoring Service
    Rules, *Public Notice*, RM 10403, DA 02-817 (rel. Apr. 10, 2002).

[^353]: Warren C. Havens and Telesaurus Holdings GB, LLC Comments at
    4-5.

[^354]: *See, e.g., supra* n. Error: Reference source not found.

[^355]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206(a).

[^356]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601 *et. seq.*,
    has been amended by the Contract with America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAA). Title II of
    the CWAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^357]: 5 U.S.C. § 603(a).

[^358]: *See id*.

[^359]: Amendment of Parts 2 and 90 of the Commission's Rules to
    Allocate 5.850-5.925 GHz to the Mobile Service for Dedicated Short
    Range Communications of Intelligent Transportation Services, ET
    Docket 98-95, *Report and Order*, 14 FCC Rcd 18221 ¶ 1 (1999)
    (*Allocation Report and Order*).

[^360]: 5 U.S.C. § 603(b)(3).

[^361]: 5 U.S.C. § 601(6).

[^362]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in 15 U.S.C. 632). Pursuant to the RFA,
    the statutory definition of a small business applies \"unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register.\" 5 U.S.C. § 601(3).

[^363]: Small Business Act, 15 U.S.C. § 632 (1996).

[^364]: 5 U.S.C. § 601(4).

[^365]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^366]: 47 C.F.R § 1.1162.

[^367]: 5 U.S.C. § 601(5).

[^368]: U.S. Dept. of Commerce, Bureau of the Census, \"1992 Census of
    Governments.\"

[^369]: *Id.*

[^370]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, \"Trends in Telephone Service\" at Table 5.3,
    page 5-5 (May 2002) (FCC Website location (*see* online page 34):
    [http://www.fcc.gov/Bureaus/Common Carrier/Reports/FCC-State
    link/IAD/trend502.pdf]{.underline}).

[^371]:
    > 13 C.F.R. § 121.201, NAICS code 334220.

[^372]: The number of \"establishments\" is a less helpful indicator of
    small business prevalence in this context than would be the number
    of \"firms\" or \"companies,\" because the latter take into account
    the concept of common ownership or control. Any single physical
    location for an entity is an establishment, even though that
    location may be owned by a different establishment. Thus, the
    numbers given may reflect inflated numbers of businesses in this
    category, including the numbers of small businesses. In this
    category, the census breaks-out data for firms or companies only to
    give the total number of such entities for 1997, which was 1,089.

[^373]: U.S. Census Bureau, 1997 Economic Census, Industry Series:
    Manufacturing, \"Industry Statistics by Employment Size,\" Table 4,
    NAICS code 334220 (issued Aug. 1999).

[^374]: *Id*. Table 5, \"Industry Statistics by Industry and Primary
    Product Class Specialization: 1997.\"

[^375]: *See* 47 C.F.R. § 1.913(a)(1).

[^376]: *See* 47 C.F.R. § 1.2105.

[^377]: *See* 47 C.F.R. § 1.913(a)(1).

[^378]: *See* 47 C.F.R. § 1.2107.

[^379]: 47 C.F.R. § 1.1307.

[^380]: *See, e.g*., 47 C.F.R. § 1.928 (regarding frequency coordination
    arrangements between the U.S. and Canada).

[^381]: 47 C.F.R. 1.924.

[^382]: FAS coordination is required for DSRCS stations within 75
    kilometers of certain government radar locations listed in 47 C.F.R.
    § 90.371(b).

[^383]: *See* 5 U.S.C. § 603(c).

[^384]: *See infra* para. 79.

[^385]: As proposed by ITS America. *See* Second Proposed Band Plan at
    3. *See also* July Ex Parte Comments at 24.