Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | ET Docket No. 97-214         |
|                                  | * |                              |
| Amendment of Part 2 of the       | ) |                              |
|                                  | * |                              |
| Commission\'s Rules to Allocate  | * |                              |
| the                              |   |                              |
|                                  | * |                              |
| 455-456 MHz and 459-460 MHz      | * |                              |
| bands                            | ) |                              |
|                                  | * |                              |
| to the Mobile-Satellite Service  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**ORDER**

**Adopted:** April 29, 2002 **Released:** May 13, 2002

By the Commission:

# INTRODUCTION AND BACKGROUND

1.  By this action, we terminate the above-captioned proceeding and
    retain the existing fixed and mobile allocations for the 455-456 MHz
    and 459-460 MHz bands.[^1] In this regard, we decline to allocate
    the 455-456 MHz and 459-460 MHz bands on a co-primary basis to
    non-voice, non-geostationary earth-to-space operations in the
    Mobile-Satellite Service (MSS) at this time. We conclude that we
    should not move forward with these proposals prior to the 2003 World
    Radiocommunication Conference ("WRC-2003").

2.  On October 14, 1997, the Commission released a *Notice of Proposed
    Rule Making (Notice)*[^2] in response to a Region 2 MSS allocation
    that was established at the 1995 World Radiocommunication Conference
    ("WRC-95").[^3] The *Notice* proposed allocation of the 455-456 MHz
    and 459-460 MHz bands on a co-primary basis to non-voice,
    non-geostationary MSS earth-to-space operations (also referred to as
    Little LEO services), consistent with the Region 2 MSS
    allocation.[^4] Under the proposal, Little LEO mobile earth station
    ("MES") terminals would be able to use the spectrum for
    earth-to-space ("uplink") transmissions, including service and
    feeder links.[^5] The Commission proposed that Little LEO operations
    in these bands protect incumbent stations in the fixed and mobile
    services that already occupy the spectrum. This proposed allocation
    would supplement the 4.05 megahertz of spectrum previously allocated
    for Little LEO services.[^6]

3.  In the comments filed in the proceeding,[^7] Little LEO proponents
    argued that this spectrum is necessary for the growth of the Little
    LEO industry and that spectrum sharing with incumbents is possible.
    However, incumbent Broadcast Auxiliary Services ("BAS"), land
    mobile, and Air-to-Ground public radio telephone service ("A-G")
    entities opposed the allocation arguing that these bands are already
    congested and that new MSS operations would cause harmful
    interference to the incumbent operations.

# DISCUSSION

4.  We find that with the passage of time, the *Notice* and record in
    this proceeding has become outdated.[^8] In particular, we find that
    the proposals and comments therein do not adequately reflect recent
    developments that may have altered the needs and plans of the Little
    LEO community and the current views and needs of incumbents in the
    bands.

5.  Specifically, in the recent government transfer band spectrum
    reallocation proceeding,[^9] we allocated the 1390‑1392 MHz band to
    the fixed-satellite service for Little LEO feeder uplinks and the
    1430‑1432 MHz band for Little LEO feeder downlinks on a co-primary
    basis.[^10] The allocation is contingent on completion of ongoing
    studies and adoption of an international allocation for this
    spectrum. Without this allocation, feeder links would continue to
    have to share the same bands as service links. The new feeder link
    spectrum would allow Little LEO operators to more efficiently use
    existing service link spectrum to provide service to customers. The
    upcoming WRC-2003 is expected to consider whether additional service
    and feeder link spectrum should be allocated for the Little LEO
    service.[^11] The United States, in its preliminary view, supports
    such an allocation.[^12]

6.  Any consideration at this time of the spectrum needs of Little LEOs
    must take into account the WRC-2003 preparations, any changes in the
    Little LEO industry, and current industry needs in light of our
    decision in the government transfer band spectrum reallocation
    proceeding. The record in this docket does not encompass these
    factors. Accordingly, we conclude that it would be premature for us
    to take any action with respect to Little LEO allocations in advance
    of WRC-2003. After WRC-03, we will evaluate any new allocations for
    this service that may arise. Considering Little LEO service and
    feeder link spectrum requirements at that time would allow us to
    make spectrum management decisions in a manner that best
    accommodates Little LEO spectrum needs, as well as the needs of
    incumbent operations.

7.  We note that in previous cases where the record has been overtaken
    by events, the Commission has concluded that the public interest is
    best served by the termination of the proceeding.[^13] The present
    circumstances of this proceeding are of the same character, and we
    terminate it without prejudice to the substantive merits. We note
    that in other circumstances, the Commission has sometimes sought to
    refresh a stale record.[^14] We decline to do so here because we
    believe that any Little LEO allocation issues that remain after the
    *Government Transfer Bands R&O* should be addressed in conjunction
    with decisions taken at the WRC-2003 proceedings. Refreshing the
    record at this time in this proceeding would not accomplish this
    objective. We note, however, that we make no decision with respect
    to the underlying allocation proposals contained in the *Notice*. To
    the extent that these issues are still relevant notwithstanding the
    passage of time, nothing precludes us from independently evaluating
    them in the context of a separate proceeding.[^15]

# ORDERING CLAUSE

8.  Accordingly, IT IS ORDERED That, pursuant Sections 4(i) and 4(j) of
    the Communications Act of 1934, as amended, 47 U.S.C §§154(i) and
    (j), and Section 1.425 of the Commission's Rules, 47 C.F.R. § 1.425,
    the proceeding in ET Docket No. 97-214 is TERMINATED, effective upon
    issuance of this Order*.*

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: The 455‑456 MHz band is domestically allocated on a primary basis
    to the land mobile service and is used by Part 74 Broadcast
    Auxiliary Services for remote pick-up broadcast operations (*see* 47
    C.F.R. § 2.106 and Part 74 Subpart D ). The 459‑460 MHz band is
    allocated to fixed and land mobile services on a primary basis.
    Services in this band include a single 20 kilohertz channel centered
    at 459.00 MHz for oil spill clean-up operations (*see* 47 C.F.R. §
    90.35(c)(8)); one- and two-way public land mobile services (*see* 47
    C.F.R. § 22.561); rural radio services (*i.e.,* Basic Exchange
    Telephone Radio Service ("BETRS") (s*ee* 47 C.F.R. Part 22 Subpart
    F); Part 80 maritime mobile services (*see* 47 C.F.R. §§ 2.106 and
    80.373(g)); and the Air-to-Ground public radio telephone service,
    which is used for the provision of radiotelephone service to
    airborne mobile subscribers in general aviation aircraft (*see* 47
    C.F.R. §§ 22.805).

[^2]: Amendment of Part 2 of the Commission\'s Rules to Allocate the
    455-456 MHz and 459-460 MHz Bands to the Mobile-Satellite Service,
    ET Docket 97-214, *Notice of Proposed Rule Making*, 13 FCC Rcd 3428
    (1997) ("*NPRM*").

[^3]: *See* Final Acts of the World Radiocommunication Conference
    ("WRC-95") Geneva, 1995 (ITU 1996) ("Final Acts").

[^4]: The Little LEO satellite service uses constellations of low-earth
    orbiting ("LEO") satellites to provide commercial radiolocation and
    two-way data messaging services. Operating at altitudes much lower
    than those in geostationary orbits, Little LEO satellites are
    typically deployed in constellations so that as one satellite moves
    out of view of a terrestrial station, another satellite will come
    over the horizon to maintain coverage.

[^5]: A service link is a bi-directional transmission path between a
    satellite and subscriber earth stations. *See* Amendment of Parts 2,
    25 and 97 of the Commission's Rules with Regard to the
    Mobile-Satellite Service Above 1 GHz, *Report and Order*, ET Docket
    No. 98-142, FCC 02-23 (rel. Feb. 7, 2002). A feeder link is a radio
    link from an earth station at a given location to a space station,
    or vice versa, conveying information for a space radiocommunication
    service other than for the fixed-satellite service. The given
    location may be at a specified fixed point, or at any fixed point
    within specified areas. 47 C.F.R. § 2.1(c).

[^6]: This allocation includes 2.2 megahertz for uplinks (at 148-150.05
    MHz and 399.9-400.05 MHz) and 1.85 megahertz for downlinks (at
    137-138 MHz and 400.15-401 MHz). *See* *NPRM*, 13 FCC Rcd at 3429 &
    3433, ¶¶ 3 & 9.

[^7]: The *Notice* resulted in 22 comments and 7 reply comments. Also,
    letters were filed by 89 air-to-ground radio telephone service
    subscribers urging the Commission to protect their operations.

[^8]: The most recent pleading in the docket is dated April 9, 1999. *Ex
    Parte* filing of Leo One USA Corporation, April 5, 1999.

[^9]: Reallocation of the 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz,
    1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz
    Government Transfer Bands, *Report and Order and Memorandum Opinion
    and Order*, ET Docket No. 00‑221, FCC 01-382 (rel. Jan. 2, 2002)
    (*Government Transfer Bands R&O*).

[^10]: *Id.* at ¶ 55.

[^11]: WRC-03 Agenda Item 1.20.

[^12]: United States Preliminary Views for WRC-2003, RCS - 1363_rev2
    (Oct 16, 2001) (available at
    http://www.fcc.gov/wrc-03/files/docs/prelimi_views/1363_rev2_uspv.pdf)
    .

[^13]: Termination of Rulemaking Proceedings, *Order*, FCC 02-3 (Jan.
    11, 2002). *See also* Petition to Authorize Co-Primary Sharing of
    the 450 MHz Air-to-Ground Radiotelephone Service with BETRS,
    *Memorandum Opinion and Order*, 15 FCC Rcd 1859 (WTB, 2000) (denying
    a petition for rulemaking after concluding that the passage of time
    had made the record stale) (*Co-Primary Sharing MO&O*).

[^14]: *See, e.g.,* Parties Asked to Refresh Record Regarding
    Reconsideration of Rules Adopted in Preemption of Local Zoning
    Regulation of Satellite Earth Stations, *Public Notice*, IB Docket
    No. 95-59, DA 01-2323 (rel. Oct. 5, 2001).

[^15]: *See, e.g.,* *Co-Primary Sharing MO&O* at ¶ 4. (noting, in the
    context of a termination of a petition for rulemaking proceeding,
    that petitioners are free to file an updated petition for rulemaking
    if they consider the relief they requested to remain relevant to
    their needs).