Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Matter of                  | *  |                              |
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| FIBERTOWER, INC.                 | ** |                              |
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| Petition for Waiver of Sections  | *  |                              |
| 101.103 and 101.115 of the       | *) |                              |
| Commission's Rules for the Use   | ** |                              |
| of 0.61 meter Antennas in the    |    |                              |
| 10.7-11.7 GHz Band               | *  |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: June 6, 2006 Released: June 6, 2006**

By the Acting Chief, Wireless Telecommunications Bureau:

# INTRODUCTION 

1.  On October 22, 2004, FiberTower, Inc. (FiberTower) requested a
    waiver[^1] of the technical parameters in Sections 101.103 and
    101.115 of the Commission's Rules[^2] that establish interference
    protection for operators in the 10.7 -- 11.7 GHz (11 GHz) band.
    Specifically, the waiver would permit the use of 0.61 meter
    ("two-foot") antennas as an optional alternative to the 1.22 meter
    ("four-foot") antennas that meet the existing technical parameters
    for Fixed Microwave Service in the 11 GHz band.[^3] We grant the
    waiver for the reasons, and subject to the conditions, set forth
    below.[^4] We find that permitting the installation of 0.61 meter
    antennas in the 11 GHz band will facilitate the efficient and
    effective use of the spectrum while the conditions imposed herein
    will protect licensees operating in the band. In particular, the
    conditions shift the burden of addressing any interference issues
    arising from the use of 0.61 meter antennas to FiberTower.
    FiberTower also must include the terms and conditions of this waiver
    in any contracts related to the use of 0.61 meter antennas in the 11
    GHz band. This action does not pre-judge the outcome of any related
    rulemaking proceeding and FiberTower assumes the risk of erecting
    0.61 meter antennas in the 11 GHz band because it will be required
    to comply with the outcome of any related proceeding.

# BACKGROUND

2.  FiberTower markets backhaul services primarily to mobile wireless
    carriers seeking a competitive alternative to traditional transport
    facilities, such as copper T-1s, for carrying traffic from cell
    sites to mobile switching centers.[^5] FiberTower's current network
    architecture uses a combination of SONET fiber-optic rings and
    Digital Radio Links (DRLs). The DRLs use state-of-the-art,
    high-capacity, point-to-point microwave. The result is a dedicated
    backhaul network that uses a hub-and-spoke architecture of digital
    microwave radios connected to local fiber exchange points.
    FiberTower states that its backhaul service also could be used for
    new modes of residential and mobile broadband delivery -- Broadband
    over Power Lines (BPL), fiber-to-the-curb (FTTC), and Advanced
    Wireless Services (AWS) -- together with broadband Internet access
    for schools, businesses, and apartment buildings, and
    interconnection of industrial campuses.[^6]

3.  The 11 GHz band is allocated within the United States on a
    co-primary basis to the Fixed Services (FS), licensed under Part 101
    of the Commission's Rules,[^7] and to the Fixed Satellite Service
    (FSS), licensed under Part 25 of the Commission's Rules.[^8]
    Specifically, in the United States, the 11 GHz band is used by the
    FS for Local Television Transmission Service (LTTS), Microwave
    Business, Microwave Public Safety, and Common Carrier Fixed
    Point-to-Point operations. Although the 11 GHz band is allocated
    internationally for FSS on a primary basis, the use of the FSS
    downlink band at 11 GHz is limited, within the United States, to
    international systems, *i.e*., other than domestic systems.[^9] The
    Commission explained that the domestic allocation of the spectrum
    was more restrictive than the international allocation because of
    the need to protect and permit the growth of substantial incumbent
    FS operations and licensees.[^10]

4.  FiberTower seeks a waiver of the technical parameters in Sections
    101.103 and 101.115 of the Commission's Rules[^11] in order to
    permit the use of smaller antennas to provide FS in the 11 GHz band.
    Specifically, FiberTower proposes to operate in accordance with the
    technical specifications set forth in the following table:[^12]

<table style="width:100%;">
<colgroup>
<col style="width: 10%" />
<col style="width: 9%" />
<col style="width: 11%" />
<col style="width: 10%" />
<col style="width: 8%" />
<col style="width: 9%" />
<col style="width: 9%" />
<col style="width: 9%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
</colgroup>
<tbody>
<tr class="odd">
<td rowspan="2"><p><strong>Frequency</strong></p>
<p><strong>(MHz)</strong></p></td>
<td rowspan="2"><strong>Category</strong></td>
<td rowspan="2"><p><strong>Maximum</strong></p>
<p><strong>beam-width</strong></p>
<p><strong>to 3 dB pts</strong></p></td>
<td rowspan="2"><p><strong>Minimum antenna</strong></p>
<p><strong>Gain (dBi)</strong></p></td>
<td colspan="7"><strong>Minimum radiation suppression to angle in
degrees from centerline of main beam in decibels</strong></td>
</tr>
<tr class="even">
<td><strong>5° to 10°</strong></td>
<td><strong>10° to 15°</strong></td>
<td><strong>15° to 20°</strong></td>
<td><strong>20° to 30°</strong></td>
<td><p><strong>30°</strong></p>
<p><strong>to 100°</strong></p></td>
<td><p><strong>100°</strong></p>
<p><strong>to 140°</strong></p></td>
<td><p><strong>140°</strong></p>
<p><strong>to 180°</strong></p></td>
</tr>
<tr class="odd">
<td rowspan="2"><p><strong>10,700-</strong></p>
<p><strong>11,700</strong></p></td>
<td><strong>A</strong></td>
<td><strong>3.5</strong></td>
<td><strong>33.5</strong></td>
<td><strong>18</strong></td>
<td><strong>24</strong></td>
<td><strong>28</strong></td>
<td><strong>32</strong></td>
<td><strong>35</strong></td>
<td><strong>55</strong></td>
<td><strong>55</strong></td>
</tr>
<tr class="even">
<td><strong>B</strong></td>
<td><strong>3.5</strong></td>
<td><strong>33.5</strong></td>
<td><strong>17</strong></td>
<td><strong>24</strong></td>
<td><strong>28</strong></td>
<td><strong>32</strong></td>
<td><strong>35</strong></td>
<td><strong>40</strong></td>
<td><strong>45</strong></td>
</tr>
</tbody>
</table>

5.  According to FiberTower, mobile wireless carriers typically have to
    expand their backhaul capacity in tandem with any expansion of
    network capacity. As carriers add cell sites, split cell sites or
    add data-intensive third-generation wireless services, they also
    must increase transport capacity to accommodate higher traffic
    levels.[^13] FiberTower contends that use of the 1.22 meter antennas
    currently permitted in the 11 GHz band is prohibited or impractical
    at many of its customers' cell site locations primarily because of
    zoning regulations and tower loading limitations. It asserts that a
    waiver permitting it to use smaller, lighter 0.61 meter antennas in
    the 11 GHz band will allow it to offer service to its customers at
    sites where such a choice is not available today.[^14]

6.  FiberTower contends that grant of the instant waiver request "will
    yield . . . benefits . . . arising from the antennas' lower cost,
    smaller size, and capability for making better use of
    spectrum."[^15] First, FiberTower argues that small antennas cost
    less to manufacture, distribute, install, and maintain.[^16] Second,
    FiberTower explains that the modest size and weight of the 0.61
    meter antenna provide a practical installation solution at sites
    that are otherwise incapable of supporting large antennas.[^17]
    According to FiberTower, this flexibility allows for the inexpensive
    last-mile delivery of broadband service to locations that are
    otherwise prohibitively expensive or impossible to reach with
    broadband radio.[^18] Third, FiberTower proposes that the optional
    use of small, 0.61 meter antennas in the 11 GHz band will promote
    the efficient use of the spectrum. FiberTower contends that FS
    licensees have a special need for flexibility in the use of their
    spectrum because the Commission has reallocated FS spectrum to other
    services in recent years and because the new spectrum available to
    FS is suitable only for short-range applications.[^19]

7.  FiberTower asks the Commission to recognize the urgency of its need
    to use 0.61 meter antennas in the 11 GHz band.[^20] Although
    FiberTower contends that the use of microwave facilities in the 11
    GHz band would be an ideal solution for many customers, it argues
    that, as discussed above, the difficulty of siting and mounting the
    1.22 meter antennas currently required under the Commission's Rules
    discourages wireless backhaul providers from making better use of
    the band.[^21] Indeed, in an *ex parte* filing, dated June 24, 2005,
    FiberTower claimed that it has identified well over a hundred
    locations where it was precluded from using the 11 GHz band to
    provide service due to its inability to deploy a 1.22 meter antenna
    at those locations.[^22] For example, in Lewisville and San Antonio,
    Texas and Akron and Westlake, Ohio, FiberTower could not use a 1.22
    meter antenna because the towers in question failed structural
    analyses.[^23] In other examples, such as in Boston and Westford,
    Massachusetts, Dallas, Arlington, Plano, Grand Prairie, and
    Southlake, Texas, and Queens, Brooklyn, and Bronx, New York,
    FiberTower encountered zoning and aesthetic restrictions varying
    from the categorical prohibition of the use of any antennas
    exceeding 0.91 meter (thirty-six inches) in diameter to having to
    submit to a lengthy and uncertain zoning process in an attempt to
    obtain a variance for the use of an antenna exceeding 0.91 meter
    (thirty-six inches) in diameter.[^24] In each instance, FiberTower
    opted to redesign the network to use a 0.61 meter antenna in another
    microwave band, such as the 10 GHz or 18 GHz bands.[^25] Often,
    FiberTower found that its inability to employ a smaller antenna for
    use in the 11 GHz band resulted in a delay of three to six months
    while the system was redesigned.[^26] Moreover, the reconfiguration
    of the system for use in the 10 GHz or 18 GHz band affected the
    quality and cost of service by relying on a lower capacity solution
    or requiring the installation of more links to cover the same path
    length.[^27] According to FiberTower, the instant waiver request
    would have provided an alternative antenna choice for the 11 GHz
    band and eliminated the related costs and delays in service.

8.  FiberTower pleads that it is in the public interest for the
    Commission to immediately authorize 0.61 meter antennas in the 11
    GHz band because FiberTower proposes three conditions to "eliminate
    any downside risk."[^28] First, FiberTower proposes the following
    frequency coordination requirements that would ensure that, in using
    0.61 meter antennas, FiberTower cannot cause greater interference or
    claim greater interference protection as compared to its use of 1.22
    meter antennas:[^29]

> \(a\) A licensee or prior applicant using an antenna under the waiver
> may object to a prior coordination notice (i) only if it has actual
> grounds to object because of predicted interference, and (ii) only to
> the extent it would have grounds to object if it were using a
> compliant (non-waivered) antenna at the same site, polarization,
> frequency, bandwidth, and orientation.
>
> \(b\) A Fixed Service applicant attempting to frequency coordinate a
> non-waivered antenna, or an applicant for a Fixed Satellite Service
> earth station, that predicts received interference from a licensee or
> prior applicant using an antenna under the waiver, can require the
> licensee or prior applicant to reduce the predicted interference to
> levels no higher than would be predicted from a compliant
> (non-waivered) antenna, within the current frequency coordination time
> limits.[^30]

Second, FiberTower explains that licensees and users permitted to erect
a 0.61 meter antenna for use in the 11 GHz band by authority of the
waiver "must comply with the outcome of proceeding RM-11043 and any
related rulemaking."[^31] Finally, FiberTower agrees to include the
terms of these conditions in any customer contracts that entail the use
of antennas pursuant to this waiver request.[^32] In addition, we note
FiberTower's statement that it will install a maximum of 500 antennas
per year under the waiver and, as to each antenna, will maintain records
of the licensee, call sign, and station location.[^33]

9.  On January 19, 2005, the Wireless Telecommunications Bureau (WTB)
    released a public notice seeking comment on the waiver request.[^34]
    A number of parties filed comments, reply comments, and *ex parte*
    letters in response to the *Public Notice.*[^35] Among the ten
    comments and *ex parte* letters that we received in support of
    FiberTower's waiver request, six comments, one of which was filed
    *ex parte,* were submitted by equipment manufacturers,[^36] two
    comments were submitted by associations representing various
    segments of the fixed microwave community,[^37] including licensees
    and equipment manufacturers, one comment was filed by a frequency
    coordinator,[^38] and one *ex parte* letter was filed by a wireless
    carrier.[^39] In opposition, we received comments from a satellite
    provider and from an association representing the satellite
    industry.[^40] We address the comments in our discussion below.

# DISCUSSION

10. Section 1.925 of the Commission's Rules[^41] provides that a waiver
    of the Commission's Rules may be granted if it is shown that
    either (1) the underlying purpose of the rule(s) would not be served
    or would be frustrated by application to the instant case, and that
    a grant of the requested waiver would be in the public interest;
    or (2) in view of the unique or unusual circumstances of the instant
    case, application of the rule(s) would be inequitable, unduly
    burdensome or contrary to the public interest, or the applicant has
    no reasonable alternative.[^42] For the reasons discussed below, we
    conclude that FiberTower has justified a waiver of Section
    101.115(b) of the Commission's Rules pursuant to the second prong of
    the waiver standard, subject to the conditions set forth herein.

11. Section 101.115(b) of the Commission's Rules establishes technical
    standards to avoid interference for operators in the 11 GHz
    band.[^43] Although the rule on its face does not mandate a specific
    size of antenna, it does specify certain technical parameters that,
    given the current state of technology, limit operators to a minimum
    size of 1.22 meters. FiberTower proposes changes to those parameters
    that would allow antennas with reduced mainbeam gain, increased
    beamwidth, and reduced sidelobe suppression and, as a result, would
    allow use of smaller, 0.61 meter antennas.[^44]

12. We find, based on the circumstances presented in this proceeding,
    that a grant of the instant waiver would result in a better
    implementation of Commission policy. We agree that the instant
    waiver will permit the immediate deployment of 0.61 meter antennas
    in the 11 GHz band, thereby increasing the number of sites available
    for 11 GHz backhaul.[^45] Specifically, the installation of 0.61
    meter antennas in the 11 GHz band, pursuant to terms and conditions
    set forth herein, will facilitate the use of the 11 GHz band while
    providing interference requirements and procedures to appropriately
    protect licensees operating in the band. As such, the more intensive
    use of the 11 GHz band pursuant to the instant waiver is consistent
    with the Commission's objective of promoting the efficient and
    effective use of spectrum.

13. We find that a denial of the instant waiver would be unduly
    burdensome on FiberTower and contrary to the public interest. SIA
    contends that FiberTower has failed to present special circumstances
    to justify a waiver of the Commission's Rules.[^46] According to
    SIA, FiberTower has failed to demonstrate a nexus between its claim
    that there are locations where the use of 1.22 meter antennas is
    impractical and its request to install 500 antennas per year
    pursuant to a waiver of the rule.[^47] We disagree. In particular,
    we note that FiberTower has provided a list of specific locations
    where the Commission's current technical rules impede its ability to
    provide service.[^48] Absent a waiver, FiberTower must delay the
    deployment of 11 GHz service, including 2G and 3G services, to
    wireless operators in many areas or reconfigure, at a significant
    cost, its system to use another microwave band.[^49] Specifically,
    the majority of the towers that were analyzed as possibilities for
    the placement of FiberTower's antennas "have been near their design
    capacity and they will not support a 1.22 meter diameter dish."[^50]
    Although, in some instances, towers may be upgraded to accommodate
    1.22 meter antennas, the task is costly, time-consuming, and often
    impractical.[^51] Indeed, FiberTower has identified well over a
    hundred locations where it could have used the 11 GHz band to
    provide service if the technical parameters set forth in Section
    101.115(b) of the Commission's Rules were modified to permit the use
    of smaller antennas.[^52] We therefore believe that, by granting
    FiberTower a limited waiver, the lower costs associated with 0.61
    meter antennas will result in the immediate deployment of fixed
    microwave facilities in the 11 GHz band.[^53] Indeed, we expect that
    FiberTower's deployment of 0.61 meter antennas in the 11 GHz band
    pursuant to the instant waiver will facilitate the provision of
    conventional voice services and the roll-out of 3G services in the
    near term while appropriately protecting other users in the band
    from interference.[^54] The instant waiver will thereby promote the
    efficient use of the spectrum by allowing FiberTower the flexibility
    to install 0.61 meter antennas in the 11 GHz band to provide for a
    wide range of fixed microwave applications that are not currently
    being provided for in the 11 GHz band for both financial and
    aesthetic reasons.

14. Many of the commenting parties that support FiberTower's waiver
    request agree that the use of smaller antennas will reduce the cost
    of providing 11 GHz links due to the lower initial purchase cost of
    0.61 meter antennas as well as lower installation, mounting, and
    maintenance costs.[^55] In addition, a number of commenting parties
    also agree with FiberTower that the smaller size and more modest
    weight of 0.61 meter antennas will invite the installation of
    antennas at sites incapable of supporting 1.22 meter antennas.[^56]
    Specifically, Ceregon, NEC, and WCAI contend that, in comparison to
    the 1.22 meter antennas, 0.61 meter antennas require less structural
    support and are subject to less wind load.[^57] Moreover, commenting
    parties also emphasize that the use of small, 0.61 meter antennas in
    the 11 GHz band will promote the efficient use of the spectrum.[^58]
    NEC, for example, contends that FS licensees have a special need for
    flexibility in the use of their spectrum because the Commission has
    reallocated FS spectrum to other services in recent years and
    because the new spectrum available to FS is suitable only for
    short-range applications.[^59] Ceregon notes that the 11 GHz band is
    also less susceptible to rain attenuation than higher frequency
    systems which allow for the use of 0.61 meter antennas.[^60]

15. We recognize that the use of smaller, lower-gain antennas will
    result in more radiofrequency energy being transmitted in directions
    away from the actual point-to-point link.[^61] However, after
    careful consideration of the full record in this proceeding, we
    conclude that FiberTower can effectively address interference
    concerns by complying with conditions that shift any interference
    coordination disadvantage to itself as the small antenna user,
    thereby making a FiberTower's use of a small antenna of no
    significant consequence to other users of the band. Although SIA
    raised certain interference concerns in the rulemaking proceeding,
    we note that FiberTower specifically revised the proposed rule in
    that proceeding to make it explicitly clear that there was no change
    in the interference protection extended to satellite earth station
    applicants.[^62] EchoStar generally asserts that, even if
    FiberTower's nonconforming operations are subject to an obligation
    not to cause interference to authorized satellite operations, our
    grant of the requested waiver will create a much more difficult
    sharing situation between FS and FSS in the 11 GHz band.[^63] We
    find that such a generalized prediction is insufficient to justify a
    denial of the waiver on the basis of the record in this proceeding.
    In weighing the benefits of granting the waiver against the possible
    harm to the interference environment, we find that the conditions
    which FiberTower has agreed to place on its use of 0.61 meter
    antennas represent a reasonable approach to allowing the benefits of
    smaller antennas[^64] while making FiberTower fully responsible for
    potential interference in those specific instances where the smaller
    antenna does not provide similar discrimination values as a
    compliant antenna.[^65] According to Comsearch, "such procedures are
    well understood by the coordination community and are easily
    implemented."[^66] We hereby adopt those conditions as clarified in
    this *Order*.

16. We recognize that the 11 GHz band is shared on a co-primary basis
    with the FSS. However, we disagree with SIA that the shared nature
    of the 11 GHz band precludes us from granting FiberTower the
    requested relief. To date, the use of the 11 GHz band by the FSS,
    within the United States, has been limited because the Commission
    has repeatedly emphasized the need to protect the use and expansion
    of terrestrial microwave services within the band.[^67] We therefore
    disagree with SIA's contention that the current rules prevent FS and
    FSS from proliferating in the 11 GHz band to the exclusion of the
    other by *effectively* limiting the deployment of FS and FSS
    stations.[^68] The Commission's intent and effect in adopting
    footnote NG104 was to limit the expansion of FSS in the 11 GHz band
    and protect the future use of the band for FS.[^69] However, the
    technical specifications that limit the size of the FS antennas
    employed in the 11 GHz band were not adopted by the Commission to
    "counterbalance" against the growth of the FS in the 11 GHz band.
    Rather, antenna standards exist for the purpose of promoting the use
    of the most discriminating equipment to facilitate the introduction
    of new transmission paths. When the Commission adopted the instant
    antenna specifications, the parameters were based on the technical
    sophistication of the communications equipment and the needs of the
    various users of the band at the time. Indeed, the Commission
    adopted similar technical specifications that effectively limited
    the size of antennas used in other bands,[^70] including those used
    by satellite.[^71] However, the Commission has since reconsidered
    many of those antenna specifications in light of the technological
    evolution of communications equipment.[^72] Moreover, we believe
    that it is in the public interest to facilitate the use of the 11
    GHz band while providing interference requirements and procedures to
    appropriately protect licensees operating in the band. We view
    allowing more intensive FS use of the 11 GHz band as consistent with
    the Commission's objective of promoting "the efficient and effective
    use of spectrum."[^73]

17. We disagree with EchoStar and SIA that granting the waiver request
    would constitute a *de facto* rule change that the Commission should
    not permit without the benefit of thoroughly examining the
    underlying policies of the rule in a formal rulemaking
    proceeding.[^74] SIA believes that granting the waiver request would
    amount to a *de facto* rule change because, by the time the
    Commission were to act on the related rulemaking, FiberTower, as
    well as those competitors of FiberTower that will likely seek
    similar waivers, may have installed thousands -- and even tens of
    thousands -- of antennas pursuant to waivers. We emphasize that our
    decision to grant FiberTower a waiver is based upon FiberTower's
    showing that it has an immediate need to deploy smaller antennas in
    the 11 GHz band in order to provide its services.[^75] Moreover, we
    explicitly find that our action does not prejudge the action the
    Commission may take on FiberTower's petition for rulemaking.

18. Indeed, in order to protect against unanticipated problems from
    FiberTower's operations under the waiver, we have herein imposed
    strict limitations and requirements on FiberTower's authority to
    install and maintain 0.61 meter antennas in the 11 GHz band.
    FiberTower assumes the risk of erecting 0.61 meter antennas in the
    11 GHz band because it will be required to comply with the outcome
    of the related rulemaking proceeding. Furthermore, FiberTower must
    comply with the following conditions that shift the burden of
    addressing any interference issues arising from the use of 0.61
    meter antennas to itself:

> \(a\) A licensee or prior applicant using an antenna under the waiver
> may object to a frequency coordination notice (i) only if it has
> actual grounds to object because of predicted interference, and (ii)
> only to the extent it would have grounds to object if it were using a
> compliant (non-waivered) antenna at the same site, polarization,
> frequency, bandwidth, and orientation, and EIRP.
>
> \(b\) At any time, a Fixed Service applicant attempting to frequency
> coordinate a non-waivered antenna, or an applicant for a Fixed
> Satellite Service earth station, that predicts received interference
> from a licensee or prior applicant using an antenna under the waiver,
> can require the licensee or prior applicant to reduce the predicted
> interference to levels no higher than would be predicted from a
> compliant (non-waivered) antenna. The corrections required of the
> station operating under waiver to resolve the interference must be
> made within the frequency coordination time frame specified in Section
> 101.103(d)(2) of the Commission's Rules.[^76]
>
> In addition, we will require FiberTower to include the terms and
> conditions of the waiver in any customer contracts related to the use
> of 0.61 meter antennas in the 11 GHz band. We note that FiberTower has
> agreed to provide such notice to customers, and this condition is
> intended to ensure that FiberTower's customers are aware that service
> is being provided pursuant to a waiver that is subject to change.

# CONCLUSION AND ORDERING CLAUSES

19. We find, based on the circumstances presented in this proceeding,
    that FiberTower has demonstrated that a limited waiver of the
    technical parameters in Sections 101.103 and 101.115 of the
    Commission's Rules, 47 C.F.R. §§ 101.103, 101.115, is warranted to
    permit FiberTower to install no more than 500 0.61 meter antennas
    per year in the 11 GHz band in accordance with the conditions and
    requirements set forth in paragraph 18 of this *Order* and pursuant
    to the technical specifications enumerated in paragraph four of this
    *Order*.

20. Accordingly, IT IS ORDERED that pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925, the
    Request for Waiver Pending Rulemaking filed by FiberTower on October
    22, 2004 IS GRANTED subject to the following terms and conditions:

> \(a\) All operations pursuant to this waiver shall be in compliance
> with the technical specifications set forth in paragraph four of this
> *Order.*
>
> \(b\) A licensee or prior applicant using an antenna under the waiver
> may object to a frequency coordination notice (i) only if it has
> actual grounds to object because of predicted interference, and (ii)
> only to the extent it would have grounds to object if it were using a
> compliant (non-waivered) antenna at the same site, polarization,
> frequency, bandwidth, and orientation, and EIRP.
>
> \(c\) At any time, a Fixed Service applicant attempting to frequency
> coordinate a non-waivered antenna, or an applicant for a Fixed
> Satellite Service earth station, that predicts received interference
> from a licensee or prior applicant using an antenna under the waiver,
> can require the licensee or prior applicant to reduce the predicted
> interference to levels no higher than would be predicted from a
> compliant (non-waivered) antenna. The corrections required of the
> station operating under waiver to resolve the interference must be
> made within the frequency coordination time frame specified in Section
> 101.103(d)(2) of the Commission's Rules.[^77]

\(d\) FiberTower must include the terms and conditions of the waiver in
any customer contracts related to the use of 0.61 meter antennas in the
11 GHz band.

21. These actions are taken under delegated authority pursuant to
    Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§
    0.131, 0.331.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Catherine W. Seidel
>
> Acting Chief, Wireless Telecommunications Bureau

[^1]: FiberTower, Inc., Petition for Waiver Pending Rulemaking (filed
    Oct. 22, 2004) (Waiver Request); *see also* Letter from Mitchell
    Lazarus, Esq., Fletcher, Heald, and Hildreth, P.L.C., to Marlene H.
    Dortch, Secretary, FCC (filed Dec. 1, 2004) (First *Ex Parte*
    Letter); Letter from Mitchell Lazarus, Esq., Fletcher, Heald, and
    Hildreth, P.L.C., to Joel Taubenblatt, Chief, Broadband Division,
    Wireless Telecommunications Bureau, FCC (filed Dec. 22, 2004)
    (Second *Ex Parte* Letter); Letter from Mitchell Lazarus, Esq.,
    Fletcher, Heald, and Hildreth, P.L.C., to John Schauble, Deputy
    Chief, Broadband Division, Wireless Telecommunications Bureau, FCC
    (dated June 24, 2005) (Third *Ex Parte* Letter) (identifying
    specific cases where FiberTower was unable to use the 11 GHz band to
    provide service because it could not install 0.61 meter antennas);
    Letter from Mitchell Lazarus, Esq., Fletcher, Heald, and Hildreth,
    P.L.C., to Marlene H. Dortch, Secretary, FCC (filed Oct. 24, 2005)
    (Fourth *Ex Parte* Letter).

[^2]: 47 C.F.R. §§ 101.103, 101.115.

[^3]: *See* 47 C.F.R. § 101.115(b). The Commission's Rules, on their
    face, do not mandate a specific antenna size. Rather, they establish
    technical parameters that, given the current state of technology,
    translate to a certain size antenna.

[^4]: In addition to its waiver request, FiberTower filed a request to
    initiate a rulemaking to change the technical parameters of Sections
    101.103 and 101.115. *See* FiberTower, Inc., Petition for Rulemaking
    (filed July 14, 2004) (FiberTower Petition or Petition for
    Rulemaking)*.* The rulemaking, Amendment of Part 101 of the
    Commission's Rules to Increase Spectrum Use Through More Flexible
    Antenna Rules for the 10.7 -11.7 GHz Band, has been docketed as
    RM-11043. *See* Consumer & Governmental Affairs Bureau Reference
    Information Center Petition for Rulemaking Filed, *Public Notice*,
    Report No. 2666 (July 23, 2004) (*Rulemaking Public Notice*). Our
    action in the instant *Order* is taken without prejudice to
    FiberTower's petition for rulemaking.

[^5]: Waiver Request at 1 n.1. The term "backhaul" generally refers to
    the transport links that carry traffic and network control
    information between base stations and other network elements,
    primarily mobile switching centers.

[^6]: Waiver Request at 1.

[^7]: 47 C.F.R. Part 101.

[^8]: 47 C.F.R. Part 25. The 11 GHz band is used for geostationary
    satellite (GSO) operations, and the 10.7-10.95 GHz and 11.2-11.45
    GHz portion of the spectrum is designated as a planned band under
    Appendix 30B of the International Telecommunications Union (ITU)
    rules. This means that this segment of the band is an
    internationally "planned band" where each country is assigned
    frequencies at certain orbital locations in the geostationary
    orbital arc.

[^9]: *See* 47 C.F.R. § 2.106, NG104 (stating that "\[t\]he use of the
    bands 10.7-11.7 GHz (space to Earth)...by the fixed satellite
    service in the geostationary-satellite orbit shall be limited to
    international systems, *i.e.*, other than domestic systems").

[^10]: *See, e.g.,* Establishment of Policies and Service Rules for the
    Non-Geostationary Satellite Orbit, Fixed Satellite Service in the
    Ku-Band, IB Docket No. 01-96, *Notice of Proposed Rulemaking,* 16
    FCC Rcd 9680, 9684 ¶ 10 (*2001 NGSO NPRM).*

[^11]: 47 C.F.R. §§ 101.103, 101.115.

[^12]: Waiver Request at 8; *see also id.*, Appendix, Table 1. The
    technical specifications are the same as those proposed in the
    rulemaking proceeding. *See* FiberTower Corp., Petition for
    Rulemaking, RM-11043, Amendment of Part 101 of the Commission's
    Rules to Increase Spectrum Use Through More Flexible Antenna Rules
    for the 10.7 -- 11.7 GHz Band (filed July 14, 2004). As explained in
    footnote 3, *supra,* the Commission's Rules do not specifically
    dictate a certain antenna size. Because the application of the
    technical parameters specified in the Commission's Rules effectively
    limits FiberTower to a 1.22 meter antenna, we do, throughout this
    *Order,* refer to the Commission's Rules as "requiring" a 1.22 meter
    antenna and as the waiver request seeking a decision "permitting" a
    0.61 meter antenna.

[^13]: *See* Second *Ex Parte* Letter; Gupta Letter at 1-2.

[^14]: *See* Second *Ex Parte* Letter at 1; Gupta Letter at 1-2.

[^15]: Waiver Request at 5.

[^16]: *Id.* at 2-3, 6. FiberTower cites the current list price of a
    small antenna as being one-third the cost of an otherwise comparable
    1.22 meter antenna. *Id.* at 3, 6.

[^17]: *See id.* at 7.

[^18]: *Id.* at 3, 7. In addition, FiberTower observes that the smaller
    antennas are also less esthetically objectionable, thereby
    facilitating compliance with restrictions imposed by local zoning
    laws and homeowner association codes. *Id.* at 3, 7.

[^19]: *Id.* at 8. Specifically, FiberTower argues that the need to
    relocate the FS licensees from spectrum assigned to other services
    has placed great pressure on the remaining FS bands capable of
    handling reasonably long links (*i.e.*, the 4, 6, 11, 18, and 23 GHz
    bands). *Id.* at 8. FiberTower notes that the use of high-frequency
    microwave bands (*i.e.,* the 18, 23, 24, and 39 GHz bands) is
    impractical in large parts of the country for anything other than
    short links because of rain fade and that the use of low-frequency
    microwave bands (*i.e.,* the 4 and 6 GHz bands) is difficult to
    frequency-coordinate in heavily populated areas where demand for
    backhaul is greatest. *See* Gupta Letter at 1. Moreover, with
    respect to the 18 GHz and 23 GHz bands, FiberTower contends that
    scant spectrum remains available in the former after the
    Commission's recent reallocation and that Federal government
    installations in the latter limit private use. Waiver Request at 8.

[^20]: *See* Second *Ex Parte* Letter; Third *Ex Parte* Letter
    (identifying specific locations where FiberTower was precluded from
    using the 11 GHz band to provide service because the Commission's
    Rules would not permit it to install 0.61 meter antennas); *see
    also* Fourth *Ex Parte* Letter.

[^21]: *See* Gupta Letter at 2.

[^22]: *See* Third *Ex Parte* Letter at 1-2; *see also* Third *Ex Parte*
    Letter, Attachment (Table of "Representative FiberTower Locations
    Limiting 4-Foot Antennas"). FiberTower therein provided the Wireless
    Telecommunications Bureau (WTB) with a dozen representative
    instances. *See id.*

[^23]: *See id.* The loading was too high with a 1.22 meter antenna.
    *Id.*

[^24]: *See id.* In yet other examples, the rental costs for using a
    1.22 meter antenna were 2 and ½ times greater than that for a 0.61
    meter antenna. *See id.* (noting Akron and Chardon, Ohio and Waco,
    Texas).

[^25]: *See id.*

[^26]: *See id.*

[^27]: *See id.* In addition, with regard to provision of service in
    Boston, Massachusetts, the redesign of the network has caused
    FiberTower to install more aggregation points and incur higher fiber
    circuit costs. *Id.*

[^28]: Waiver Request at 8.

[^29]: *Id.* at 9.

[^30]: *Id.* at 9.

[^31]: *Id.* at 8. FiberTower specifically accepts "the risk that the
    Commission may decline to authorize, or may impose conditions on,
    antennas smaller than 4 feet. Absent authorization to the contrary,
    licensees may have to retrofit or remove antennas to achieve
    compliance." *Id.* at 9.

[^32]: *Id.* at 10.

[^33]: *Id.* at 10. FiberTower will also include the terms and
    conditions of the waiver in any contracts related to the use of 0.61
    meter antennas in the 11 GHz band pursuant to the waiver. *Id.* at
    10.

[^34]: Wireless Telecommunications Bureau Seeks Comment on FiberTower,
    Inc. Request for Waiver of Sections 101.103 and 101.115 of the
    Commission's Rules to Permit the Use of 0.61 Meter Antennas in the
    10.7 -- 11.7 GHz Band, *Public Notice*, DA 05-114, 20 FCC Rcd 1383
    (WTB 2005) (*Public Notice*).

[^35]: *See* Alcatel, Comments (filed Feb. 3, 2005); Ceregon Networks,
    Inc., Comments (filed Feb. 3, 2005); Comsearch, Comments (filed Feb.
    3, 2005); EchoStar Satellite, L.L.C., Comments (filed Feb. 3, 2005);
    Fixed Wireless Communications Coalition, Comments (filed Feb. 3,
    2005); Harris Corporation, Comments (filed Feb. 3, 2005); NEC
    Corporation, Comments (filed Feb. 3, 2005); Satellite Industry
    Association, Petition to Deny (filed Feb. 3, 2005) (SIA PTD);
    Stratex Networks, Inc., Comments (filed Feb. 3, 2005); Wireless
    Communications Association International, Inc., Comments (filed Feb.
    3, 2005); FiberTower, Inc., Reply Comments (filed Feb. 14, 2005). In
    addition, prior to the release of the *Public Notice,* Cingular
    Wireless filed an *ex parte* letter in support of FiberTower's
    waiver request. *See* Letter from Michael E. McCormick, Program
    Manager, Cingular Wireless, to Magalie Salas, Secretary, FCC (filed
    Jan. 12, 2005; dated Dec. 15, 2004) ("Cingular Letter"). An
    additional *ex parte* letter was filed by DragonWave, Inc. on May
    30, 2005. Dragonwave, Inc., *Ex Parte* Comments (dated May 30, 2005)
    (DragonWave *Ex Parte* Comments).

[^36]: *See* Alcatel Comments; Ceregon Comments; Harris Comments; NEC
    Comments; Stratex Comments; *see also* FiberTower Reply Comments;
    DragonWave *Ex Parte* Comments.

[^37]: *See* FWCC Comments; WCAI Comments.

[^38]: *See* Comsearch Comments.

[^39]: *See* Cingular Letter.

[^40]: *See* EchoStar Comments; SIA PTD.

[^41]: 47 C.F.R. § 1.925.

[^42]: *Id.; see also Northeast Cellular Telephone Co. v. FCC*, 897 F.2d
    1164, 1166 (D.C. Cir. 1990); *W**AIT Radio v. FCC*, 418 F.2d 1153
    (D.C. Cir. 1969), aff\'d, 459 F.2d 1203 (1972), cert. denied, 409
    U.S. 1027 (1972).

[^43]: 47 C.F.R. § 101.115(b).

[^44]: *See* Waiver Request, Appendix, Table 1.

[^45]: *See, e.g.,* WCAI Comments at 2; *see also* Cingular Letter at 1;
    FWCC Comments at 1-2.

[^46]: *See* SIA PTD.

[^47]: SIA PTD at 7.

[^48]: *See* Third *Ex Parte* Letter.

[^49]: Gupta Letter at 1. Denver, Washington, Houston, Florida, Boston,
    Cleveland, Detroit, San Antonio, Austin, Waco, New York, and New
    Jersey are among those areas where FiberTower had a demand to
    provide service but was either significantly delayed or forced to
    reconfigure its system for use in another microwave band. *See*
    Third *Ex Parte* Letter (identifying specific locations where
    FiberTower was unable to use the 11 GHz band to provide service).

[^50]: Letter from Mr. Edgardo P. Brandao, P.E.., Project Manager, Hunt
    & Joiner, Inc., to Mitchell Lazarus, Esq., Fletcher, Heald, and
    Hildreth, PLC (dated Dec. 21, 2004) ("Brandao Letter") (Mr. Brandao
    performs the structural analyses at prospective antenna sites for
    FiberTower). According to FiberTower, a 0.61 meter antenna is only
    one-fourth the dish area of the 1.22 meter antenna. Waiver Request
    at 7. Moreover, FiberTower notes that the 0.61 meter antennas
    generally weigh about thirty-five pounds, whereas the 1.22 meter
    antennas weigh approximately 125 pounds. *See id.*; *see also*
    Brandao Letter at 1. Mr. Brandao also notes that the use of smaller
    antennas results in less stress on the tower, including that caused
    by wind-loading. *See id.*

[^51]: *See* Letter from Bob T. Paswalk, Manager Construction Services,
    Andrew Systems, Inc., to Tarun Gupta, Chief Architect, FiberTower,
    Inc. (dated Nov. 11, 2004) ("Paswalk Letter") (filed as an
    attachment to the Second *Ex Parte* Letter).

[^52]: *See* Third *Ex Parte* Letter at 1-2; *see also* Third *Ex Parte*
    Letter, Attachment (Table of "Representative FiberTower Locations
    Limiting 4-Foot Antennas"). FiberTower therein provided the WTB with
    a dozen representative instances. *See id*.

[^53]: *See also, e.g.,* FWCC Comments at 1-2; Harris Comments at 2;
    Ceregon Comments at 1-2.

[^54]: *See* Cingular Letter at 1; *see also* FWCC Comments at 1-2; NEC
    Comments at 1-2.

[^55]: *See, e.g.,* Ceregon Comments at 1-2; FWCC Comments at 1-2;
    Harris Comments at 2; NEC Comments at 2. NEC emphasizes that 0.61
    meter antennas are only one-third the cost of the 1.22 meter
    antennas presently required. *See* NEC Comments at 2.

[^56]: *See, e.g.,* Ceregon Comments at 2; FWCC Comments at 1-2; NEC
    Comments at 1; WCAI Comments at 1-2. According to Cingular, many
    towers and rooftops in Cingular's system cannot support a 1.22 meter
    antenna, but they could accommodate a 0.61 meter antenna. Cingular
    Letter at 1.

[^57]: *See* Ceregon Comments at 1-2; NEC Comments at 2; WCAI Comments
    at 2. Specifically, WCAI notes that the larger antennas produce a
    "sail area" of over twelve square feet, thereby resulting in very
    substantial wind loads. WCAI Comments at 2.

[^58]: *See, e.g.,* NEC Comments at 1; Harris Comments at 1-2; Ceregon
    Comments at 1-2.

[^59]: NEC Comments at 1. According to Harris, the 11 GHz band offers a
    wide selection of channel bandwidths that provide superior
    propagation characteristics than the 18 GHz and 23 GHz bands. Harris
    Comments at 2. Specifically, Harris argues that the 11 GHz band is
    an excellent alternative for those FS users forced to relocate from
    the 18 GHz band. *See id.* In addition, Harris also contends that
    federal government licensing procedures often impede the timely
    licensing of commercial systems in the 23 GHz band. *See id.*

[^60]: Ceregon Comments at 1-2.

[^61]: This is due not only to the relaxed radiation suppression on
    angles away from the centerline of the main beam, but also because
    users of 0.61 meter antennas will have to transmit with
    approximately 4.5 dB more power in order to overcome the reduced
    main beam gain.

[^62]: *See* SIA, Comments, RM-11043, Amendment of Part 101 of the
    Commission's Rules to Increase Spectrum Use Through More Flexible
    Antenna Rules for the 10.7 -- 11.7 GHz Band (filed Aug. 23, 2004);
    FiberTower, Reply Comments, RM-11043, Amendment of Part 101 of the
    Commission's Rules to Increase Spectrum Use Through More Flexible
    Antenna Rules for the 10.7 -- 11.7 GHz Band (filed Sept. 7, 2004).
    FiberTower incorporated the same revised language in the proposed
    conditions that we are placing upon our grant of the instant waiver.
    SIA did not raise similar objections in this proceeding. *See* SIA
    PTD.

[^63]: *See* EchoStar Comments at 2-4.

[^64]: The Commission has previously recognized that many fixed
    microwave users need or prefer to employ small antennas because most
    potential antenna sites, such as rooftops, monopoles, and electrical
    transmission towers, cannot support large microwave dishes, due to
    either space limitations or aesthetic objections of homeowner
    associations or zoning boards. Amendment of Part 101 of the
    Commission's Rules to Streamline Processing of Microwave
    Applications in the Wireless Telecommunications Services, *Report
    and Order,* 17 FCC Rcd 15040 ¶ 76 (2002) (*2002 Part 101
    Streamlining Report and Order*) (amending the Commission's Rules to
    permit the use of antennas smaller than 1.22 meters (four-feet) in
    diameter in the 10 GHz band). Indeed, the Commission therein found
    that the benefits of smaller antennas in terms of aesthetics and
    structure loading are undeniable. *See id.*

[^65]: *See, e.g.,* Comsearch Comments at 2.

[^66]: Comsearch Comments at 2.

[^67]: *See, e.g.,* Establishment of Policies and Service Rules for the
    Non-Geostationary Satellite Orbit, Fixed Satellite Service in the
    Ku-Band, IB Docket No. 01-96, *Notice of Proposed Rulemaking*, 16
    FCC Rcd 9680, 9694 ¶ 45 (*2001 Ku-Band NGSO NPRM*) (explaining that
    the Commission restricted NGSO FSS earth station usage in frequency
    spectrum bands shared with terrestrial operations "to avoid
    ubiquitous deployment of NGSO FSS earth stations in shared bands,
    thereby allowing the continued use and growth of terrestrial
    operations in those bands."); Amendment of Parts 2 and 25 of the
    Commission's Rules to Permit Operation of NGSO FSS Systems
    Co-Frequency with GSO and Terrestrial Systems in the KU-Band
    Frequency Range, ET Docket No. 98-206, RM-9147, *First Report and
    Order and Further Notice of Proposed Rulemaking*, 16 FCC Rcd 10084
    (2000) (noting that the Commission sought to ensure that NGSO FSS
    operations do not cause unacceptable interference to existing users
    and do not unduly constrain future growth of incumbent services);
    Inquiry Relative to Preparation for a General World Administrative
    Radio Conference of the International Telecommunications Union to
    Consider Revision of the International Radio Regulations, Docket No.
    20271, *Report and Order*, 70 FCC Rcd 1193, ¶¶ 189-191 (1978)
    (expressing concern that the 11 GHz band is shared quite extensively
    with terrestrial services in the United States, envisioning that the
    number of fixed-satellite earth stations would be limited to about
    half a dozen stations, located in places far from population
    centers, so as not to restrict unduly the further development of
    terrestrial services, and explicitly rejecting allowing the
    bi-directional use of the 11 GHz band by the FSS because it "would
    severely restrict the development of the terrestrial fixed service,
    especially the utilization of digital techniques."); Amendment of
    Part 2 of the Commission's Rules to Conform, to the Extent
    Practicable, with the Geneva Radio Regulations, as Revised by the
    Space Warc, Geneva, 1971, Docket No. 19547, *Report and Order*, 39
    FCC 2d 959 (1973) (expressing intent to protect microwave use of the
    11 GHz band).

[^68]: SIA PTD at 4. SIA concedes that, on the one hand, the
    Commission's Rules explicitly limit satellite use of the 11 GHz band
    to international systems. SIA PTD at 4 (*citing* 47 C.F.R. § 2.106,
    NG104). NG104 specifies that satellite use of the 11 GHz band is
    limited to international systems. *See* 47 C.F.R. § 2.106, NG104.
    However, SIA contends that, on the other hand, the Commission's
    Rules also have the *effect* of limiting FS station deployment by
    not permitting FS users to install antennas that are less than 1.22
    meters. SIA PTD at 4.

[^69]: *See* 47 C.F.R. § 2.106, NG104 (stating that "\[t\]he use of the
    bands 10.7-11.7 GHz (space to Earth)...by the fixed satellite
    service in the geostationary-satellite orbit shall be limited to
    international systems, *i.e.*, other than domestic systems"). The
    Commission has found that the original intent of this footnote was
    to protect future FS growth by limiting the wide proliferation of
    FSS earth stations. *See, e.g.,* Procedures to Govern the Use of
    Satellite Earth Stations on Board Vessels in the 5925-6425
    MHz/3700-4200 MHz Band and 14.0-14.5 GHz/11.7-12.2 GHz Bands, IB
    Docket No. 02-10, *Report and Order*, 20 FCC Rcd 674, 710-11 ¶ 86
    (2005); *see also* Service Rules and Procedures to Govern the Use of
    Aeronautical Mobile Satellite Service Earth Stations in Frequency
    Bands Allocated to the Fixed Satellite Service, IB Docket No. 05-20,
    *Notice of Proposed Rulemaking*, 20 FCC Rcd 2906, 2916-17 ¶ 18
    (2005) (same).

[^70]: *See, e.g.,* Reorganization and Revision of Parts 1, 2, 21, and
    94 of the Rules to Establish a New Part 101 Governing Terrestrial
    Microwave Fixed Radio Services, *Memorandum Opinion and Order and
    Notice of Proposed Rulemaking*, WT Docket 94-148, 15 FCC Rcd 3129
    (2000) (*Part 101 MO&O and NPRM*) (seeking comment on permitting
    smaller antennas in the 10 GHz band).

[^71]: *See, e.g.,* Amendment of Parts 2 and 25 of the Commission's
    Rules to Permit Operation of NGSO FSS Systems Co-Frequency with GSO
    and Terrestrial Systems in the KU-Band Frequency Range, ET Docket
    No. 98-206, *Second Memorandum Opinion and Order*, 18 FCC Rcd 10,084
    (2003) (*2003 NGSO Second MO&O*).

[^72]: *See, e.g.* Amendment of Part 101 of the Commission's Rules to
    Streamline Processing of Microwave Applications in the Wireless
    Telecommunications Services, WT Docket 00-19, *Report and Order*, 17
    FCC Rcd 15,040 (2002) (*2002 Part 101 R&O*) (adopting smaller
    antennas for 10 GHz band); Procedures to Govern the Use of Satellite
    Earth Stations on Board Vessels in the 5925-6425 MHz / 3700-4200 MHz
    Band and 14.0-14.5 GHz / 11.7-12.2 GHz Bands, IB Docket No. 02-10,
    *Report and Order*, 20 FCC Rcd 674 (2005).

[^73]: Federal Communications Commission Strategic Plan 2006-2011 at 10.

[^74]: EchoStar Comments at 3; SIA PTD at 4-5.

[^75]: We also note that FiberTower has committed itself to limiting the
    number of antennas erected pursuant to the instant waiver to no more
    than 500 per year. *See* Waiver Request at 10. While we do not
    believe that this limitation is necessary to protect other licensees
    operating in the band, this commitment will make it easier for
    FiberTower to comply with any possible outcome in the related
    rulemaking. We clarify that an antenna shall be deemed installed and
    placed into use on the date that notification of completion of
    construction (FCC Form 601 and Schedule K) is filed for the station.
    FiberTower shall be limited to the installation of no more than 500
    such antennas during each year beginning on the date that the first
    such antenna is installed pursuant to this waiver. When FiberTower
    wishes to construct a station pursuant to the grant of this waiver
    request, it shall specifically state in the application that the
    application is being filed pursuant to the waiver request.
    FiberTower shall not be required to pay waiver fees in connection
    with each application.

[^76]: 47 C.F.R. § 101.103(d)(2) specifies a two part coordination
    process involving notification and response. Notification involves a
    thirty day period, calculated from the receipt by the applicant,
    permittee, or licensee being notified.

[^77]: 47 C.F.R. § 101.103(d)(2) specifies a two part coordination
    process involving notification and response. Notification involves a
    thirty day period, calculated from the receipt by the applicant,
    permittee, or licensee being notified.