**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | WT Docket No. 02 - 8         |
|                                  | *) |                              |
| Amendments to Parts 1, 2, 27,    | ** | RM-9267                      |
| and 90 of the Commission\'s      |    |                              |
| Rules to License Services in the | *  | RM-9692                      |
| 216-220 MHz, 1390-1395 MHz,      | *) |                              |
| 1427-1429 MHz,                   | ** | RM-9797                      |
|                                  |    |                              |
| 1429-1432 MHz, 1432-1435 MHz,    | *  | RM-9854                      |
| 1670-1675 MHz, and 2385-2390 MHz | *) |                              |
| Government Transfer Bands        | ** | RM-9882                      |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: August 7, 2003 Released: August 19, 2003**

By the Commission:

I.  **INTRODUCTION AND EXECUTIVE SUMMARY**

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1.  In this *Memorandum Opinion and Order*, we address three petitions
    for reconsideration[^1] and two petitions for clarification[^2] of
    the *Report and Order*, released on May 24, 2002, in this
    proceeding.[^3] The *Report and Order* adopted service rules to
    govern the licensing of 27 MHz of electromagnetic spectrum in the
    216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1670-1675
    MHz, and 2385-2390 MHz bands, which were reallocated for
    non-Government use.[^4] In addition, on our own motion, we correct
    certain rules that were adopted in the *Report and Order*, and adopt
    further rule amendments codifying decisions made by the Commission
    in the *Report and Order*.[^5] We believe that our decision will
    promote the delivery of technologically innovative services to the
    public in a manner that provides sufficient interference protection
    to both existing and future operations entitled to such protection.

2.  In this *Memorandum Opinion and Order*, we reach the following
    decisions:

-   We decline to require that each 1392-1395 MHz band station register
    with the American Society of Health Care Engineering of the American
    Hospital Association (ASHE) upon initiating operations, as such a
    requirement would be contrary to the regulatory flexibility that is
    inherent with a geographic area license.

-   We instruct ASHE and LMCC to present a joint coordination plan for
    the 1427-1432 MHz band, which is used by both Wireless Medical
    Telemetry Service (WMTS) and site-based non-medical telemetry,
    within one year of the release date of this *Memorandum Opinion and
    Order*.

-   We decline to impose coordination procedures on the 1432-1435 MHz
    band licensees that operate within a hundred miles of 1435-1525 MHz
    flight test sites.

-   We modify the channel plans that were adopted in the *Report and
    Order* for the 217-220 MHz and 1427-1432 MHz bands so that licensees
    can employ 25 kHz or 50 kHz bandwidths with center frequencies that
    require no more than three decimal places of accuracy (*e.g*.,
    217.025 MHz), rather than five to six decimal places of accuracy
    (*e.g*., 217.015625 MHz).

II. **BACKGROUND**

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3.  On January 2, 2002, the Commission released a *Reallocation Report
    and Order* in ET Docket 00-221.[^6] Upon consideration of the
    record, it implemented a band plan to reallocate the subject
    spectrum bands for non-Government use consistent with the framework
    established in the Commission's November 1999 *Spectrum Policy
    Statement.*[^7] Generally, the Commission allocated the 216-220 MHz
    band to the fixed and mobile (except aeronautical telemetry)
    services on a co-primary basis and elevated the Low Power Radio
    Services from secondary to primary status in the 216-217 MHz
    band.[^8] In making this allocation, the Commission stated that the
    reallocation of the 216-220 MHz band does not disturb the status of
    the Automated Maritime Telecommunication Systems or 218-219 MHz
    Services.[^9] The Commission allocated the 1390-1392 MHz, 1392-1395
    MHz, 1432-1435 MHz, and 1670-1675 MHz bands to the fixed and mobile
    (except aeronautical mobile) services on a primary basis.[^10] The
    2385-2390 MHz band was allocated to the fixed and mobile services on
    a primary basis.[^11] The Commission shifted the allocation of WMTS
    from the 1429-1432 MHz band to the 1427-1429.5 MHz band and
    maintained the secondary status of non-medical telemetry systems in
    the band.[^12] Telemetry in the 1429.5-1432 MHz band was elevated to
    primary status.[^13] Finally, the Commission conditionally allocated
    the 1390-1392 MHz band for Non-Geosynchronous Satellite Orbit (NGSO)
    Mobile Satellite Service (MSS) feeder uplinks and the 1430-1432 MHz
    band for NGSO MSS feeder downlinks.[^14]

4.  In the *Report and Order* in this proceeding, the Commission adopted
    licensing and service rules for the subject spectrum bands,
    including technical specifications and coordination procedures to
    minimize the potential of harmful interference to co-channel or
    adjacent channel incumbent operations. The *Report and Order* was
    published in the Federal Register on June 20, 2002.[^15] On July 22,
    2002, Final Analysis Communication Services, Inc. (FACS) filed a
    petition for clarification. On that same date, Aerospace and Flight
    Test Radio Coordinating Council (AFTRCC), ASHE, and Celtronix
    Telemetry, Inc. (Celtronix) filed petitions for reconsideration. On
    August 8, 2002, AFTRCC filed comments and a supplement to its
    petition for reconsideration. On November 5, 2002, the
    Ornithological Council requested clarification.

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III. **DISCUSSION**

**A. Petitions for Reconsideration**

5.  *The 216-220 MHz Band.* In the *Report and Order,* the Commission
    adopted a requirement that the transmit output power of secondary
    telemetry in the 217-220 MHz band be limited to two watts.[^16]
    Previously, our rules contained no maximum power for secondary
    telemetry operations in this band; authorized power was specified on
    the authorization on a case-by-case basis.[^17] The Commission
    adopted a power limit because it believed that such a restriction
    was necessary to minimize the possibility of harmful interference to
    primary users in the 217-220 MHz band.[^18] Celtronix, an incumbent
    secondary telemetry operator, requests rescission of the new power
    limit requirement, at least to the extent that the limitation
    applies to incumbents whose licenses authorize a higher power
    level.[^19] We grant Celtronix's petition to the extent that we now
    clarify that the newly adopted requirement to limit the transmit
    output power of secondary telemetry in the 217-220 MHz band to two
    watts does not apply to incumbent stations. Instead, incumbent
    stations will be grandfathered under their existing parameters.
    Should an incumbent choose to add stations to its system or modify
    its existing stations, the new or modified stations will be required
    to comply with the two-watt power limit.

6.  Additionally, the Ornithological Council, which represents ten
    scientific societies of biologists who engage in the scientific
    study of birds as a branch of zoology, requested clarification[^20]
    of the relation between Section 90.248(f) of the Commission's Rules,
    which permits 216-220 MHz airborne wildlife applications if the
    transmitter does not exceed one milliwatt of power,[^21] and Section
    90.259(c)(3) of the Commission's Rules (as renumbered in the *Report
    and Order*), which states that airborne telemetry[^22] use of this
    band is prohibited.[^23] We will revise Section 90.259(c)(3) to
    clarify that the general prohibition on airborne use for general
    telemetry in Section 90.259(c)(3) does not preclude the airborne
    wildlife applications permitted by Section 90.248(f).

7.  *The 1390-1392 MHz and 1430-1432 MHz Bands.* As noted above, the
    allocation in the *Reallocation Report and Order* of the 1390-1392
    MHz and 1430-1432 MHz bands to NGSO MSS feeder uplinks and downlinks
    on a primary basis is contingent upon the adoption of an
    international allocation at the 2003 International Telecommunication
    Union World Radiocommunication Conference.[^24] In the *Notice of
    Proposed Rule Making* in this proceeding, the Commission concluded
    that the public interest would be best served by addressing
    terrestrial and satellite sharing in these bands in a separate
    proceeding once the ongoing sharing studies are completed and the
    international allocation of this spectrum is secured.[^25] FACS, a
    non-voice NGSO MSS licensee, seeks clarification that, if and when
    the contingency is met, we may need to modify the service rules
    adopted in this proceeding for the 1390-1392 MHz and 1430-1432 MHz
    bands, and place secondary status conditions on the licenses granted
    to terrestrial operators pursuant to those service rules in order to
    ensure that satellite operations will not suffer harmful
    interference.[^26] Subsequently, however, WRC-03 adopted a
    *secondary* allocation for NGSO MSS feeder uplinks and downlinks in
    the 1390-1392 MHz and 1430-1432 MHz bands. The international
    allocation is contingent on the completion of compatibility studies,
    which will be reported at the next World Radiocommunication
    Conference, in 2007. We grant the FACS request to the limited extent
    that we reiterate that we intend to address terrestrial and
    satellite sharing rules and procedures in these bands in a separate
    proceeding at the appropriate time.[^27] We will not, however, at
    this time, further address terrestrial and satellite sharing
    requirements for the 1390-1392 MHz and 1430-1432 MHz bands.

8.  *The 1392-1395 MHz and 1427-1432 MHz Bands.* In the *Report and
    Order*, the Commission concluded that the paired 1392-1395 MHz and
    1432-1435 MHz bands will be licensed for flexible use in six
    geographic areas.[^28] These bands will be authorized to provide a
    variety or combination of fixed, mobile, common carrier, and
    non-common carrier services.[^29] It determined that in order to
    protect adjacent band WMTS operations, 1392-1395 MHz facilities
    would be limited to a measured or predicted field strength of 150
    uV/m that may be radiated at the site of any WMTS operation in the
    1395-1400 MHz band.[^30] The Commission did not believe, however,
    that protection of WMTS also necessitated adoption of adjacent band
    frequency coordination procedures. Regarding the 1427-1429.5 MHz and
    1429.5-1432 MHz bands, which are used by WMTS and site-based
    non-medical telemetry,[^31] it limited non-medical telemetry
    licensees to a measured or predicted field strength of no more than
    150 uV/m into the WMTS portions of the band.[^32] In addition, the
    Commission provided that each Part 90 frequency coordinator must,
    within one business day of making a frequency recommendation for
    non-medical telemetry operations in the 1427-1432 MHz band, notify
    and provide technical information regarding the proposed telemetry
    operations to ASHE, the WMTS frequency coordinator.[^33] The
    Commission also concluded that upon the initial deployment of WMTS
    equipment in the 1427-1432 MHz band, ASHE must notify all
    non-medical telemetry licensees potentially affected by such
    deployment (*i.e.,* those telemetry licensees that may have to
    modify their operations in order to avoid causing harmful
    interference to WMTS facilities).[^34]

9.  ASHE seeks reconsideration of the Commission's decision to not
    impose adjacent band frequency coordination procedures on 1392-1395
    MHz licensees. ASHE argues that 1392-1395 MHz licensees should be
    required to register their stations with ASHE upon initiating
    operations.[^35] ASHE argues that, absent such a requirement, it
    will have difficulty identifying the 1392-1395 MHz band stations
    that may cause interference to adjacent channel WMTS operations and
    expediting the resolution of such interference.[^36] Based on the
    record currently before us, we are not persuaded by ASHE's argument.
    Given the limited number of 1392-1395 MHz licensees nationwide, and
    the availability of licensing information for these 1392-1395 MHz
    band licensees on the Commission's Universal Licensing System (ULS),
    we do not believe that it will be difficult for adjacent channel
    WMTS licensees to identify potential sources of interference.
    Furthermore, we are concerned that requiring the registration of
    each 1392-1395 MHz band station, as ASHE proposes, would impair the
    regulatory flexibility that the Commission intended to grant with a
    geographic area license.

10. Regarding the 1427-1432 MHz band, ASHE argues that insufficient
    interference protection to WMTS operations is provided by the
    requirement that each Part 90 frequency coordinator notify and
    provide technical information regarding the proposed telemetry
    operations to ASHE within one business day of making a frequency
    recommendation for non-medical telemetry operations.[^37] ASHE
    argues that WMTS incumbents will have a greater assurance of
    interference protection if Part 90 frequency coordinators are also
    required to contact ASHE and examine its WMTS database prior to
    making their recommendations.[^38] We are not persuaded that we
    should impose any further obligations upon the Part 90 frequency
    coordinators at this time.[^39] We nonetheless reiterate our
    continuing expectation that the Part 90 frequency coordinators,
    which are certified by the Commission and can be de-certified for
    poor performance,[^40] will make use of all relevant information,
    such as ASHE's WMTS database, before making a frequency
    recommendation in the 1427-1432 MHz band. We, of course, have the
    discretion to revisit this issue in the future, if we find that the
    coordination procedures are not providing sufficient interference
    protection to WMTS operations.

11. ASHE also argues that it lacks the expertise and resources to comply
    with the requirement that it identify and then notify all
    non-medical telemetry licensees that are potentially affected by the
    deployment of WMTS equipment at a given facility.[^41] As an
    alternative, ASHE recommends that upon initial deployment of WMTS
    equipment, it should be required to notify only the Part 90
    frequency coordinators who, ASHE suggests, are better equipped to
    identify and notify all potentially affected telemetry
    licensees.[^42] In light of ASHE's concerns regarding our
    recommended coordination procedures and in furtherance of our
    continuing efforts to ensure protection of WMTS operations from
    harmful interference, we believe that it would be in the public
    interest to provide ASHE and LMCC with the opportunity to formulate
    a mutually agreeable coordination plan. Therefore, within one year
    of the release date of this *Memorandum Opinion and Order*, we
    request that ASHE and LMCC file a joint coordination plan.

12. *The 1432-1435 MHz Band.* In its comments to the *Notice of Proposed
    Rule Making* in this proceeding, AFTRCC, an association of aerospace
    companies engaged in the design, development, manufacture, and
    testing of commercial and military aircraft, space vehicles,
    missiles, and weapons systems, argued that the Commission should
    adopt frequency coordination procedures for licensees in the
    1432-1435 MHz and 2385-2390 MHz bands in order to limit interference
    to flight test operations in the 1435-1525 MHz and 2360-2385 MHz
    bands.[^43] While recognizing the importance of aeronautical flight
    test telemetry, the Commission concluded in the *Report and Order*
    that imposing AFTRCC's proposed coordination requirements would not
    be in the public interest, because such requirements would be
    onerous and could jeopardize the viability of operations in the
    1432-1435 MHz and 2385-2390 MHz bands.[^44] The Commission also
    concluded that aeronautical flight test operations would be afforded
    sufficient protection from adjacent band interference by limiting
    out-of-band emissions.[^45]

13. In its petition for reconsideration of the *Report and Order*,
    AFTRCC again requests that we adopt adjacent band coordination
    procedures for licensees in the 1432-1435 MHz band.[^46] AFTRCC
    argues that there will be inadequate protection if licensees of the
    1432-1435 MHz band are required to provide adjacent band
    interference protection only to the extent that such radiation
    exceeds the limits on out-of-band emissions.[^47] Because it
    contends that permitted out-of-band emissions can travel great
    distances,[^48] it recommends that coordination procedures be
    imposed on the 1432-1435 MHz licensees that operate within a hundred
    miles of each flight test site.[^49] Noting that the Commission
    routinely imposes such coordination procedures on other wireless
    services without any suggestion that such procedures will be
    unusually burdensome, AFTRCC argues that the Commission's decision
    to reach a contrary conclusion in this instance is untenable.[^50]

14. We do not share AFTRCC's concern that permitted out-of-band
    emissions from the 1432-1435 MHz band will jeopardize the integrity
    of flight test telemetry operations. We believe that 1432-1435 MHz
    signal attenuation, caused by distance and terrain, reduces the risk
    of adjacent band interference. Moreover, because there are a limited
    number of cites where flight test operations currently exist[^51]
    and may arise, we believe that such operations can be protected on a
    case-by-case basis through the use of certain mitigation techniques,
    such as boresight-to-boresight avoidance.[^52] In view of the
    foregoing, we conclude that coordination procedures in this instance
    are unnecessary, and whatever perceived benefits they may provide
    would not be commensurate with the burden that they would impose on
    the 1432-1435 MHz band licensees. Therefore, as in the *Report and
    Order*,[^53] we decline to adopt AFTRCC's recommendation. We
    nonetheless encourage 1432-1435 MHz band licensees to utilize
    mitigation techniques, to the extent practicable, in those areas
    where flight test operations exist.[^54]

**B. Channel Plans for 217-220 MHz and 1427-1432 MHz Telemetry
Operations**

15. In the *Report and Order,* the Commission adopted channel plans for
    telemetry operations in the 217-220 MHz and 1427-1432 MHz
    bands.[^55] For the 217-220 MHz band, the Commission adopted a 6.25
    kHz channel spacing requirement for narrowband operations, starting
    at 217.00625 MHz.[^56] For the 1427-1432 MHz band, the Commission
    adopted a 12.5 kHz channel spacing requirement for narrowband
    operations, starting at 1427.0125 MHz.[^57] Licensees in both bands
    are permitted to combine contiguous narrowband channels for
    operation up to 50 kHz, or more than 50 kHz upon a showing of
    adequate justification.[^58]

16. As Commission staff began to modify ULS to implement these channel
    plans, and licensees prepared to conform to the new rules, it became
    clear that the channel plans adopted in the *Report and Order* could
    create difficulty for licensees who employ wider band operations.
    The *Report and Order* allows licensees to "construct" 25 kHz or 50
    kHz channels by combining underlying contiguous narrowband channels.
    Building wider bandwidth channels from the narrowband channels
    established in the *Report and Order*, however, will result in 25
    kHz and 50 kHz channels with center frequencies that require five to
    six decimal places of accuracy.[^59] We are concerned that requiring
    such accuracy may greatly increase the cost of transmitting
    equipment for these bands. For instance, Data Flow, a manufacturer
    of equipment in the 217-220 MHz band, states that their existing 25
    kHz equipment is capable of transmitting only on frequencies that
    require -- at most -- three decimal places of accuracy (*i.e.*,
    217.025 MHz).[^60] Data Flow indicates that modifying the circuitry
    in its equipment to meet six decimal places of accuracy would be
    extremely costly.[^61] Data Flow also notes that virtually every
    licensee operating in the 217-220 MHz band currently transmits on
    frequencies which require only three decimal places of accuracy
    (*i.e.*, 217.025 MHz, 217.050 MHz, 217.075 MHz, etc.).[^62]

17. In view of the foregoing, we will amend the channel plans for the
    217-220 MHz and 1427-1432 MHz bands so as to allow licensees who
    employ wider band operations to continue operating on channels with
    center frequencies that require fewer then five decimal places of
    accuracy. For the 217-220 MHz band, we retain the existing channel
    plan for 6.25 kHz channels, but overlay new channel plans, with new
    center frequencies, for 12.5 kHz, 25 kHz, and 50 kHz channels. The
    amended 217-220 MHz band channel plan will ensure that both 25 kHz
    and 50 kHz channels will require only three decimal places of
    accuracy (*i.e.*, 217.025 MHz, 217.075 MHz, 217.125 MHz, etc.).[^63]
    As for the 1427-1432 MHz band, we will shift the channel plan
    adopted in the *Report and Order* downward by 6.25 kHz. As the LMCC
    notes, such a shift will accommodate incumbents who employ 50 kHz
    bandwidth equipment.[^64] After the shift, 50 kHz channels will
    require only three decimal places of accuracy (*i.e.*, 1427.025 MHz,
    1427.075 MHz, 1427.125 MHz, etc.). Although the 25 kHz channels will
    require four decimal places of accuracy after the shift (*i.e.*
    1427.0125 MHz, 1427.0375 MHz, 1427.0625 MHz, etc.), we believe that
    this is less of a problem for the 1427-1432 MHz band than the
    217-220 MHz band because there are fewer incumbents in the 1427-1432
    MHz band who employ bandwidths that are less than 50 kHz. Moreover,
    we believe that 1427-1432 MHz band equipment can be designed to
    operate with more accurate center frequencies, if, in the future,
    there is an increase in the number of 1427-1432 MHz licensees who
    seek to employ bandwidths that are less than 50 kHz.[^65]

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IV. **PROCEDURAL MATTERS**

**A. Supplemental Final Regulatory Flexibility Analysis**

18. A Supplemental Final Regulatory Flexibility Analysis has been
    prepared for this *Memorandum Opinion and Order* and is included in
    Appendix A.

**B. Ordering Clauses**

19. ACCORDINGLY, IT IS ORDERED that Parts 1, 27, 90, and 95 of the
    Commission\'s Rules ARE AMENDED as specified in Appendix B,
    effective 60 days after publication in the Federal Register.

20. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), 405, and Section 1.429 of the Commission's Rules, 47 C.F.R.
    § 1.429, that the petition for reconsideration filed by Aerospace
    and Flight Test Radio Coordinating Council on July 22, 2002 IS
    DENIED IN PART to the extent set forth above.

21. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), 405, and Section 1.429 of the Commission's Rules, 47 C.F.R.
    § 1.429, that the petition for reconsideration filed by the American
    Society for Health Care Engineering of the American Hospital
    Association on July 22, 2002 IS DENIED.

22. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), 405, and Section 1.429 of the Commission's Rules, 47 C.F.R.
    § 1.429, that the petition for reconsideration filed by Celtronix
    Telemetry, Inc. on July 22, 2002 IS GRANTED to the extent set forth
    above.

23. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), 405, that the petition for clarification filed by Final
    Analysis Communication Services, Inc. on July 22, 2002 IS PARTIALLY
    GRANTED and PARTIALLY DENIED to the extent set forth above.

24. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), 405, and Section 1.429 of the Commission's Rules, 47 C.F.R.
    § 1.429, that the petition for reconsideration filed by Itron, Inc.
    on July 22, 2002 IS DISMISSED.

25. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), 405, that the petition for clarification filed by the
    Ornithological Council on November 5, 2002 IS GRANTED.

**C. Further Information**

26. For further information concerning the *Memorandum Opinion and
    Order*, contact Keith Fickner regarding legal matters, and Brian
    Marenco or Tim Maguire regarding engineering matters via phone
    at (202) 418-0680, TTY (202) 418-7233, or via e-mail at
    <kfickner@fcc.gov>, <bmarenco@fcc.gov>, or <tmaguire@fcc.gov>,
    respectively, Wireless Telecommunications Bureau, Federal
    Communications Commission, Washington, D.C. 20554.

27. Alternative formats (computer diskette, large print, audio cassette,
    and Braille) are available to persons with disabilities by
    contacting Brian Millen at (202) 418-7426, TTY (202) 418-7365, or
    via e-mail to bmillen@fcc.gov. This *Memorandum Opinion and Order*
    can be downloaded at
    http://www.fcc.gov/Wireless/Orders/2003/fcc03204.txt.

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

**Appendix A -- Supplemental Final Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act (RFA),[^66] a Final
    Regulatory Flexibility Analysis (FRFA) was incorporated in the
    *Report and Order*.[^67] In view of the fact that we have adopted
    further rule amendments in this *Memorandum Opinion and Order*, we
    have included this Supplemental Final Regulatory Flexibility
    Analysis (SFRFA). This present SFRFA conforms to the RFA.[^68]

    **Need for, and Objectives of the *Memorandum Opinion and Order*:**

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1.  In this *Memorandum Opinion and Order*, on our own motion, we
    correct certain rules that were adopted in the *Report and Order*,
    and adopt further rule amendments that the Commission inadvertently
    failed to adopt in the *Report and Order*. In the *Report and
    Order*, the Commission adopted rules for the licensing and operation
    of fixed and mobile services in the 216-220 MHz, 1390-1395 MHz,
    1427-1429.5 MHz, 1429.5-1432 MHz, 1432-1435 MHz, 1670-1675 MHz and
    2385-2390 MHz bands pursuant to the provisions of the Communications
    Act of 1934, as amended, the Omnibus Budget Reconciliation Act of
    1993 (OBRA-93), and the Balanced Budget Act of 1997 (BBA-97). The
    transfer of these bands to non-Government use should enable the
    development of new technologies and services, provide additional
    spectrum relief for congested private land mobile frequencies, and
    fulfill our obligations as mandated by Congress to assign this
    spectrum for non-Government use.

2.  The *Report and Order* established competitive bidding rules and
    small business definitions for the unpaired 1390-1392 MHz, 1670-1675
    MHz, and 2385-2390 MHz bands, and the paired 1392-1395 MHz and
    1432-1435 MHz bands similar to those applied to the WCS 2.3 GHz band
    and the 700 MHz Guard Bands.[^69] Consistent with the Commission's
    responsibility under Section 309(j) to promote opportunities for,
    and disseminate licenses to, a wide variety of applicants,[^70] the
    *Report and Order* adopted small business size standards and bidding
    preferences for qualifying bidders that will provide such bidders
    with opportunities to compete successfully against large,
    well-financed entities. Specifically, with respect to the
    aforementioned bands, we define a "small business" as any entity
    with average annual gross revenues for the three preceding years not
    exceeding \$40 million, and a "very small business" as any entity
    with average annual gross revenues for the three preceding years not
    exceeding \$15 million.[^71] Correspondingly, the Commission adopted
    a bidding credit of 15 percent for "small businesses" and a bidding
    credit of 25 percent for "very small businesses."[^72] This bidding
    credit structure is consistent with the Commission's standard
    schedule of bidding credits, which may be found at Section
    1.2110(f)(2) of the Commission's rules.[^73]

Summary of Significant Issues Raised by Public Comments in Response to
the FRFA.

3.  We received no comments in response to the FRFA in the *Report and
    Order*. We continue to believe that the policies and rules adopted
    in this *Report and Order* will better enable small entities to
    compete for licenses in the unpaired 1390-1392 MHz, 1670-1675 MHz,
    and 2385-2390 MHz bands, and the paired 1392-1395 MHz and 1432-1435
    MHz bands.

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

4.  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.[^74] The RFA defines the
    term "small entity" as having the same meaning as the terms "small
    business," "small organization," and "small business concern" under
    section 3 of the Small Business Act.[^75] 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 SBA.[^76] Nationwide, as of 1992, there
    were approximately 275,801 small organizations.[^77] "Small
    governmental jurisdiction" generally means "governments of cities,
    counties, towns, townships, villages, school districts, or special
    districts, with a population of less than 50,000."[^78] As of 1992,
    there were approximately 85,006 such jurisdictions in the United
    States.[^79] This number includes 38,978 counties, cities, and
    towns; of these, 37,566, or ninety-six percent, have populations of
    fewer than 50,000.[^80] 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
    (ninety-one percent) are small entities.

5.  *Wireless Service Providers*. The SBA has developed a definition for
    small business within the two separate categories of Cellular and
    Other Wireless Telecommunications or Paging. Under that SBA
    definition , such a business is small if it has 1,500 or fewer
    employees.[^81] According to the Commission's *Telephone Trends
    Report* data, 1,495 companies reported that they were engaged in the
    provision of wireless service.[^82] Of these 1,495 companies, 989
    reported that they have 1,500 or fewer employees and 506 reported
    that, alone or in combination with affiliates, they have more than
    1,500 employees. We do not have data specifying the number of these
    carriers that are not independently owned and operated, and thus are
    unable at this time to estimate with greater precision the number of
    wireless service providers that would qualify as small business
    concerns under the SBA's definition. Consequently, we estimate that
    there are 989 or fewer small wireless service providers that may be
    affected by the rules adopted in this proceeding. Below, we further
    describe and estimate the number of small entity licensees and
    regulatees that may be affected by the rules adopted in this
    proceeding. Except as noted, these services are associated with the
    above SBA small business size standard.

6.  With respect to the 1390-1392 MHz band, the Commission will award a
    single 2 MHz license in each of fifty-two Major Economic Areas
    (MEAs). For the 1670-1675 MHz, and 2385-2390 MHz bands, the
    Commission will award a single nationwide license in each band. For
    the paired 1392-1395 MHz and 1432-1435 MHz bands, the Commission
    will award a pair of 1.5 MHz licenses in each of six Economic Area
    Groupings (EAGs). For the 1432-1435 MHz band, the Commission will
    award licenses on a site by-site basis. The Commission does not yet
    know how many applicants or licensees in any of these bands will be
    small entities.

7.  Existing services in other bands include entities that might be
    affected by the rules, either as existing licensees or potential
    applicants or licensees. Incumbent services in the 1427-1429.5 MHz
    and 1429.5-1432 MHz bands include wireless medical telemetry (WMTS)
    and general telemetry.

8.  *Telemetry*. Incumbent non-medical telemetry operators in the
    1427-1429.5 MHz and 1429.5-1432 MHz bands include Itron, Inc.,
    Pueblo Service Company of Colorado and E Prime, Inc., and large
    manufacturers such as Deere and Company, Caterpillar, and General
    Dynamics. None of these licensees are likely to be small businesses.
    Itron, Inc. is the primary user of the 1427-1429.5 MHz and
    1429.5-1432 MHz bands. Itron, Inc., with an investment of \$100
    million in equipment development, is not likely to be a small
    business. One licensee, Zytex, a manufacturer of high-speed
    telemetry systems, may be a small business. The Commission does not
    yet know how many applicants or licensees in these bands will be
    small entities.

9.  *WMTS*. Users of medical telemetry are hospitals and medical care
    facilities, some of which are likely to be small businesses. The
    broad category of Hospitals consists of the following categories and
    the following small business providers with annual receipts of \$29
    million or less: General Medical and Surgical Hospitals, Psychiatric
    and Substance Abuse Hospitals, and Specialty Hospitals.[^83] For all
    these health care providers, census data indicate that there is a
    combined total of 330 firms that operated in 1997, of which 237 or
    fewer had revenues of less than \$25 million.[^84] An additional 45
    firms had annual receipts of \$25 million to \$49.99 million.[^85]
    We therefore estimate that most Hospitals are small, given SBA's
    size categories.

10. The broad category of Nursing and Residential Care Facilities
    consists of the following categories and the following small
    business size standards.[^86] The category of Nursing and
    Residential Care Facilities with annual receipts of \$6 million or
    less consists of: Residential Mental Health and Substance Abuse
    Facilities, Homes for the Elderly, and Other Residential Care
    Facilities. The category of Nursing and Residential Care Facilities
    with annual receipts of \$8.5 million or less consists of
    Residential Mental Retardation Facilities. The category of Nursing
    and Residential Care Facilities with annual receipts of less than
    \$11.5 million consists of: Nursing Care Facilities and Continuing
    Care Retirement Communities. For all of these health care providers,
    census data indicate that there is a combined total of 18,011 firms
    that operated in 1997.[^87] Of these, 16,165 or fewer firms had
    annual receipts of below \$5 million.[^88] In addition, 1,205 firms
    had annual receipts of \$5 million to \$9.99 million, and 450 firms
    had receipts of \$10 million to \$24.99 million.[^89] We therefore
    estimate that a great majority of Nursing and Residential Care
    Facilities are small, given SBA's size categories.

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

11. This *Memorandum Opinion and Order* imposes no new reporting,
    recordkeeping or other compliance requirements not previously
    adopted in this proceeding.

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

12. 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 (among others): (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.[^90]

13. Regarding our affirmation in the *Memorandum Opinion and Order* of
    the Commission's decision in the *Report and Order* to require
    frequency coordination for primary and secondary telemetry
    operations in the 1427-1429.5 MHz and 1429.5-1432 MHz bands,[^91] we
    do not anticipate any adverse impact on small entities. Although
    there are certain costs associated with filing an application
    through an FCC-certified frequency coordinator, on balance, the
    benefits of frequency coordination, especially the avoidance of
    harmful interference, outweigh any costs. An alternative to this
    approach would have been to not require frequency coordination, but
    this is unacceptable because of high congestion, primary incumbent
    operations that must be protected, and the fact that licensees in
    these bands must share frequencies. Our amendment to the channel
    plans for telemetry operations in the 217-220 MHz and 1427-1432 MHz
    bands will benefit small entities by requiring less precise, and
    thus, less expensive equipment.

Report to Congress:

14. The Commission will send a copy of this *Memorandum Opinion and
    Order*, including this SFRFA, in a report to be sent to Congress
    pursuant to the Congressional Review Act.[^92] In addition, the
    Commission will send a copy of this *Memorandum Opinion and Order*,
    including this SFRFA, to the Chief Counsel for Advocacy of the Small
    Business Administration. A copy of this *Memorandum Opinion and
    Order* and SFRFA (or summaries thereof) will also be published in
    the *Federal Register*. [^93]

    **Appendix B -- Final Rules**

    Part 1 of Title 47 of the Code of Federal Regulations, is revised to
    read as follows:

**I. PART 1 -- PRACTICE AND PROCEDURE**

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

    **AUTHORITY: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309,
    and 325(e) unless otherwise noted.**

2.  Section 1.1307 is corrected to add the 698-746 MHz band to the
    Wireless Communications Service (Part 27) as follows:

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

\* \* \* \* \*

\(b\) \* \* \*

TABLE 1 - TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT TO ROUTINE
ENVIRONMENTAL EVALUATION

+-----------------------------------+-----------------------------------+
| SERVICE (TITLE 47 CFR RULE PART)  | EVALUATION REQUIRED IF:           |
+-----------------------------------+-----------------------------------+
| \*\*\*\*\*                        | \*\*\*\*\*                        |
+-----------------------------------+-----------------------------------+
| Wireless Communications Service   | \(1\) for the 1390-1392 MHz,      |
| (Part 27)                         | 1392-1395 MHz, 1432-1435 MHz      |
|                                   | 1670-1675 MHz and 2385-2390 MHz   |
|                                   | bands:                            |
|                                   |                                   |
|                                   | *Non-building-mounted antennas*:  |
|                                   | height above ground level to      |
|                                   | lowest point of antenna \< 10 m   |
|                                   | *and* total power of all channels |
|                                   | \> 2000 W ERP (3280 W EIRP)       |
|                                   |                                   |
|                                   | *Building-mounted antennas*:      |
|                                   | total power of all channels \>    |
|                                   | 2000 W ERP (3280 W EIRP)          |
|                                   |                                   |
|                                   | \(2\) for the 698-746 MHz,        |
|                                   | 746-764 MHz, 776-794 MHz,         |
|                                   | 2305-2320 MHz, and 2345-2360 MHz  |
|                                   | bands                             |
|                                   |                                   |
|                                   | Total power of all channels \>    |
|                                   | 1000 W ERP (1640 W EIRP)          |
+-----------------------------------+-----------------------------------+
| \*\*\*\*\*                        | \*\*\*\*\*                        |
+-----------------------------------+-----------------------------------+

Part 27 of title 47 of the Code of Federal Regulations is revised to
read as follows:

**PART 27 -- MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES**

1.  The authority citation for Part 27 continues to read as follows:

**AUTHORITY: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337,
unless otherwise noted.**

2.  The cross references in Section 27.11 are corrected to read as
    follows:

**§ 27.11 Initial authorization.**

\* \* \* \* \*

\(e\) *1390-1392 MHz band*. Initial authorizations for the 1390-1392 MHz
band shall be for 2 megahertz of spectrum in accordance with §27.5(d).
Authorizations will be based on Major Economic Areas (MEAs), as
specified in §27.6(d).

\(f\) *The paired 1392-1395 MHz and 1432-1435 MHz bands*. Initial
authorizations for the paired 1392-1395 MHz and 1432-1435 MHz bands
shall be for 3 megahertz of paired spectrum in accordance with §27.5(e).
Authorization for Blocks A and B will be based on Economic Areas
Groupings (EAGs), as specified in §27.6(e).

\(g\) *1670-1675 MHz band*. Initial authorizations for the 1670-1675 MHz
band shall be for 5 megahertz of spectrum in accordance with §27.5(f).
Authorizations will be on a nationwide basis.

\(h\) *2385-2390 MHz band*. Initial authorizations for the 2385-2390 MHz
band shall be for 5 megahertz of spectrum in accordance with §27.5(g).
Authorizations will be on a nationwide basis.

Part 90 of title 47 of the Code of Federal Regulations, is amended to
read as follows:

**PART 90 -- PRIVATE LAND MOBILE RADIO SERVICES**

1.  The authority citation for Part 90 continues to read as follows:

    **AUTHORITY: Sections 4(i), 11, 303(g), 303(r), and 302(c)(7) of the
    Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161,
    303(g), 303(r), 332(c)(7).**

2.  Section 90.175 is corrected to remove a reference to itinerant
    operation in the 217-220 MHz band:

    **§ 90.175 Frequency Coordinator Requirements.**

\* \* \* \* \*

\(j\) \* \* \*

\(13\) Except for applications for the frequencies set forth in §§
90.719(c) and 90.720, applications for frequencies in the 220-222 MHz
band.

\(14\) Applications for a state license under § 90.529.

(15) Applications for narrowband low power channels listed for itinerant
     use in § 90.531(b)(4).

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3.  Section 90.209 is amended to read as follows:

**§ 90.209 Bandwidth limitations.**

\* \* \* \* \*

\(b\) \* \* \*

\(5\) \* \* \*

STANDARD CHANNEL SPACING/BANDWIDTH

+-----------------------+-----------------------+-----------------------+
| Frequency band (MHz)  | Channel spacing (kHz) | Authorized bandwidth  |
|                       |                       | (kHz)                 |
+-----------------------+-----------------------+-----------------------+
| \*\*\*\*\*            | \*\*\*\*\*            | \*\*\*\*\*            |
|                       |                       |                       |
| 216-220               | 6.25                  | ^3^20/11.25/6         |
| ........              |                       |                       |
| ..................... | \*\*\*\*\*            | \*\*\*\*\*            |
|                       |                       |                       |
| \*\*\*\*\*            |                       |                       |
+-----------------------+-----------------------+-----------------------+

\* \* \*

^5^ Licensees will be allowed to combine contiguous channels up to 50
kHz, and more than 50 kHz only upon a showing of adequate justification
per §90.259(b)(10).

4.  Sections 90.259(a)(7), (a)(8) and (b)(9) are adjusted to reflect the
    new channel plans for the 217-220 MHz and 1427-1432 MHz bands.
    Section (b)(7) is changed to list the power limits in ERP, rather
    than EIRP. Section (c)(3) is modified to clarify that airborne
    operations are permitted pursuant to §90.248(f):

§ 90.259 Assignment and use of frequencies in the bands 216-220 MHz and
1427-1432 MHz.

\(a\) \* \* \*

\(7\) Frequencies will be assigned with a 6.25 kHz, 12.5 kHz, 25 kHz or
50 kHz channel bandwidth. Frequencies may be assigned with a channel
bandwidth exceeding 50 kHz only upon a showing of adequate
justification.

\(8\) Assignable 6.25 kHz channels will occur in increments of 6.25 kHz
from 217.00625 MHz to 219.99375 MHz. Assignable 12.5 kHz channels will
occur in increments of 12.5 kHz from 217.0125 MHz to 219.9875 MHz.
Assignable 25 kHz channels will occur in increments of 25 kHz from
217.025 MHz to 219.975 MHz. Assignable 50 kHz channels will occur in
increments of 50 kHz from 217.025 MHz to 219.975 MHz.

\* \* \* \* \*

\(b\) \* \* \* \* \*

\* \* \*

> \(7\) For primary operations base, mobile, operational fixed and
> temporary fixed operations are permitted.
>
> \(i\) At the locations specified in (b)(4) of this section, primary
> operations are performed in the 1427-1429 MHz and 1431.5-1432 MHz
> bands. The maximum ERP limitations are as follows:

  -------------- -------------- -------------- -------------- --------------
  Operation      Frequency                                    
                 range (MHz)                                  

                 1427-1428      1428-1428.5    1428.5-1429    1431.5-1432

  Fixed          61.1 watts     6.11 watts     0.611 watt     0.611 watt

  Mobile         0.611 watt     0.611 watt     0.015 watts    0.015 watts

  Temporary      0.611 watt     0.611 watt     0.611 watt     0.611 watt
  fixed                                                       
  -------------- -------------- -------------- -------------- --------------

> \(ii\) For all other locations, primary operations are performed in
> the 1429.5-1432 MHz band. The maximum ERP limitations are as follows:

  -------------- -------------- -------------- --------------- --------------
  Operation      Frequency                                     
                 range (MHz)                                   

                 1429.5-1430    1430-1430.5    1430.5-1431.5   1431.5-1432

  Fixed          0.611 watt     0.611 watt     6.11 watts      61.1 watts

  Mobile         0.015 watts    0.611 watt     0.611 watt      0.611 watt

  Temporary      0.611 watt     0.611 watt     0.611 watt      0.611 watt
  fixed                                                        
  -------------- -------------- -------------- --------------- --------------

\* \* \*

\(9\) Assignable frequencies occur in increments of 12.5 kHz from
1427.00625 MHz to 1431.99375 MHz.

\* \* \*

> \(c\) \* \* \*
>
> \(3\) Except for the transmissions that are permitted under §
> 90.248(f) of this chapter, airborne use is prohibited.

\* \* \* \* \*

Part 95 of title 47 of the Code of Federal Regulations, is amended to
read as follows:

**PART 95 -- PERSONAL RADIO SERVICES**

a.  The authority citation for Part 95 continues to read as follows:

    **AUTHORITY: Sections 4, 303, 48 Stat. 1066, 1082 as amended; 47
    U.S.C. 154, 303.**

b.  Section 95.630 is amended to correct the reference to the 1427-1432
    MHz band as follows:

**§  95.630**  **WMTS Transmitter frequencies.**

WMTS transmitters may operate in the frequency bands specified as
follows:

608-614 MHz

1395-1400 MHz

1427-1429.5 MHz except at the locations listed in § 90.259(b)(4) where
WMTS may operate in the 1429-1431.5 MHz band.

[^1]: Aerospace and Flight Test Radio Coordinating Council, the American
    Society for Health Care Engineering of the American Hospital
    Association, and Celtronix Telemetry, Inc. Petitions for
    Reconsideration.

[^2]: Final Analysis Communication Services, Inc., and Ornithological
    Council Petitions for Clarification.

[^3]: Amendments to Parts 1, 2, 27 and 90 of the Commission's Rules to
    License Services in 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*, WT Docket No. 02-8,
    17 FCC Rcd 9980, 9981-82 ¶ 1 (2002) (*Report and Order*).

[^4]: Two other petitions were filed on July 22, 2002, but will not be
    addressed at length in this *Memorandum Opinion and Order*. Itron,
    Inc. (Itron) filed a petition seeking reconsideration of the
    decision to license telemetry frequencies in the 1.4 GHz band on a
    shared, rather than exclusive basis. *See id.* at 10018 ¶ 94. On
    February 4, 2003, the Land Mobile Communications Council (LMCC)
    submitted to the Wireless Telecommunications Bureau a set of
    recommendations for assigning 1.4 GHz channels. *See* Letter, dated
    Feb. 4, 2003, from Larry A. Miller, President, Land Mobile
    Communications Council, to John Muleta, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission (LMCC
    Letter) (*attached* LMCC Frequency Coordination Procedures, Rule
    90.259 Telemetry Channels at 1427-1432 MHz). On March 17, 2003,
    Itron withdrew its petition because the concerns that prompted its
    filing of the petition were resolved during its consultations with
    the Wireless Telecommunications Bureau regarding the LMCC Letter.
    *See* Letter, dated Mar. 17, 2003, from Henry Goldberg, Goldberg,
    Godles, Wiener & Wright, to Marlene H. Dortch, Secretary, Federal
    Communications Commission.

    In addition, XM Radio, Inc. (XM) filed a petition seeking
    reconsideration of the out-of-band emission limits adopted for
    licensees in the 2385-2390 MHz band. *See Report and Order,* 17 FCC
    Rcd at 10032 ¶¶ 129-130. On July 22, 2002, the National
    Telecommunications and Information Administration (NTIA) issued a
    report that explored the viability of making all or a portion of the
    1710-1770 MHz and 2110-2170 MHz bands available for advanced mobile
    wireless (3G) systems. *See* FCC Seeks Comment on the National
    Telecommunications and Information Administration's Report "An
    Assessment of the Viability of Accommodating Advanced Mobile
    Wireless (3G) Systems in the 1710-1770 MHz and 2110-2170 MHz Bands,"
    ET Docket No. 00-258, *Public Notice*, 17 FCC Rcd 14390 (2002). The
    NTIA report explained that the 1710-1755 MHz band could be
    designated for 3G services if existing Federal Government systems
    operating in that band were relocated, and identified the 2385-2390
    MHz band as a possible home for relocated 1710-1755 MHz Federal
    Government incumbents. The National Telecommunications and
    Information Administration (NTIA), An Assessment of the Viability of
    Accommodating Advanced Mobile Wireless (3G) Systems in the 1710-1770
    MHz and 2110-2170 MHz Bands, at 2-3 (dated July 22, 2002). On July
    7, 2003, in a *Notice of Proposed Rule Making*, we sought comment on
    our proposal to reallocate the 2385-2390 MHz band from exclusive
    non-Federal Government use to shared Federal Government/non-Federal
    Government use in order to facilitate relocation of 1710-1755 MHz
    Federal Government incumbents, thereby enabling the 1710-1755 MHz
    band to be used for Advanced Wireless Services. Amendment of Part 2
    of the Commission\'s Rules to Allocate Spectrum Below 3 GHz for
    Mobile and Fixed Services to Support the Introduction of New
    Advanced Wireless Services, Including Third Generation Wireless
    Systems, *Fourth Notice of Proposed Rulemaking*, ET Docket No.
    00-258, FCC 03-134 (rel. July 7, 2003). In view of this proposed
    reallocation, we will defer further action on the XM petition until
    the 2385-2390 MHz band reallocation issue is resolved.

[^5]: *See* Appendix B, *infra* (revisions to Sections 1.1307, 27.11,
    90.175, 90.259, 95.630 of the Commission's Rules).

[^6]: 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, 17 FCC Rcd 368 (2002)
    (*Reallocation Report and Order*).

[^7]: *See* Amendment of the Commission's Rules Concerning Maritime
    Communications, *Second Memorandum Opinion and Order and Fifth
    Report and Order*, PR Docket 92-257, 17 FCC Rcd 6685 (2002);
    Principles for Reallocation of Spectrum to Encourage the Development
    of Telecommunications Technologies for the New Millennium, *Policy
    Statement*, 14 FCC Rcd 19868 (1999).

[^8]: *Reallocation Report and Order,* 17 FCC Rcd at 379-380 ¶¶ 25-26.

[^9]: *Id.* at 377-378 ¶ 21 (citing Amendment of the Commission's Rules
    Concerning Maritime Communications, *Fourth Report and Order and
    Third Notice of Proposed Rule Making*, PR Docket No. 92-257, 15 FCC
    Rcd 22585 (2000) and Amendment of Part 95 of the Commission's Rules
    to Provide Regulatory Flexibility in the 218-219 MHz Service,
    *Report and Order and Memorandum Opinion and Order*, WT Docket No.
    98-169, 15 FCC Rcd 1497 (1999)).

[^10]: *Reallocation Report and Order,* 17 FCC Rcd at 391-397 ¶¶ 49-68.
    We note that aeronautical mobile is authorized to operate throughout
    the 216-220 MHz band on a secondary basis. *See* 47 C.F.R. § 2.106.

[^11]: *Reallocation Report and Order*, 17 FCC Rcd at 397 ¶¶ 67-71.

[^12]: *Id*. at 391-394 ¶¶ 48-60. The Commission adopted a band-flip for
    the 1427-1429.5 MHz and 1429.5-1432 MHz bands. Specifically, the
    Commission established that WMTS would be primary in seven
    geographic carve out areas from the 1429-1431.5 MHz portion of the
    band segments, and non-medical telemetry would be primary in the
    1427-1429 MHz and 1431.5-1432 MHz portion of the band segments.
    *Report and Order* at 9993-94 ¶¶ 25-26.

[^13]: *Reallocation Report and Order* at 391-394 ¶¶ 48-60. We note that
    the 1390-1392 MHz band is currently allocated to fixed and mobile
    (except aeronautical) service. *See* 47 C.F.R. § 2.106.

[^14]: *Id*. at 394 ¶ 59. The NGSO MSS Feeder allocation is conditioned
    on the adoption of a similar international allocation. The
    international allocation subsequently was adopted on a secondary
    basis. *See* ¶ 7, *infra.*

[^15]: 67 Fed. Reg. 41847 (2002).

[^16]: *Report and Order,* 17 FCC Rcd at 10034-35 ¶ 139.

[^17]: *Id.* at 10034 ¶ 137.

[^18]: *Id.* at 10034-35 ¶ 139.

[^19]: Celtronix Petition at 3-4.

[^20]: Ornithological Council Comments at 1.

[^21]: 47 C.F.R. § 90.248(f).

[^22]: Airborne telemetry transmissions are used to track the movement
    of birds that are fitted with transmitters.

[^23]: 47 C.F.R. § 90.259(c)(3).

[^24]: *See Reallocation Report and Order*, 17 FCC Rcd at 391 ¶ 48.

[^25]: 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, *Notice of Proposed Rule Making*, WT
    Docket No. 02-8, 17 FCC Rcd 2500, 2531 ¶ 77 (2002).

[^26]: FACS Petition at 1-2.

[^27]: *See Reallocation Report and Order*, 17 FCC Rcd at 392 ¶ 53.

[^28]: *Report and Order*, 17 FCC Rcd at 9990-91 ¶¶ 16-17. The spectrum
    will be licensed as two paired 1.5 MHz channels. *Id.* at 9993 ¶ 23.

[^29]: *Id.* at 10006 ¶ 62.

[^30]: *Id.* at 10054-55 ¶ 204.

[^31]: The Commission adopted a band-flip in certain portions of the
    country for the 1427-1429.5 MHz and 1429.5-1432 MHz bands.
    Specifically, the Commission established that WMTS would be primary
    in seven geographic carve out areas from the 1429-1431.5 MHz portion
    of the band segments, and non-medical telemetry would be primary in
    the 1427-1429 MHz and 1431.5-1432 MHz portion of the band segments.
    *Id.* at 9993-94 ¶¶ 25-26.

[^32]: *Id.* at 10054-55 ¶ 204.

[^33]: *Id.* at 10018 ¶ 95.

[^34]: *Id.* at 10018-19 ¶ 96.

[^35]: ASHE Petition at 6.

[^36]: *Id.*

[^37]: ASHE Comments at 5.

[^38]: *Id.*

[^39]: Pursuant to 47 C.F.R. § 90.175, frequency coordinators may
    request, and all applicants are required to provide, all appropriate
    technical information, system requirements, and justification for
    requested station parameters when such information is necessary to
    identify and recommend the most appropriate frequency.

[^40]: *See* Frequency Coordination in the Private Land Mobile Radio
    Services, *Report and Order*, PR Docket No. 83-737, 103 FCC 2d 1093
    (1986).

[^41]: ASHE Comments at 6-7.

[^42]: *Id.* at 7-8.

[^43]: *Report and Order* at 10044 ¶ 171.

[^44]: *Id.* at 10045 ¶ 175. The 1432-1435 MHz and 2385-2390 MHz bands
    will be authorized to provide a variety or combination of fixed,
    mobile, common carrier, and non-common carrier services. *Id.* at
    10006 ¶ 62.

[^45]: *Id.* at 10045 ¶ 175.

[^46]: AFTRCC Petition at 5. In addition, AFTRCC seeks reconsideration
    of the frequency coordination requirements adopted for licensees in
    the 2385-2390 MHz band. *Id.* In light of our proposed reallocation
    of this band, we will defer consideration of this aspect of AFTRCC's
    reconsideration petition. *See* n.4, *supra.*

[^47]: AFTRCC Petition at 5.

[^48]: *Id.* In its engineering statement, AFTRCC offers a worst-case
    scenario where a 27 dB increase in out-of-band emissions when using
    a high gain antenna with a low power transmitter raises the
    protection radius to more than 2000 km. *See* Technical Analysis of
    the Need for an Adjacent Band Coordination Requirement for
    Commercial Operations in the Bands 1432-1435 MHz and 2385-2390 MHz,
    at 4 (dated July 21, 2002). AFTRCC acknowledges that the engineering
    statement relies on an International Telecommunications Union (ITU)
    recommendation that relates to [in-band]{.underline} interference to
    flight test telemetry operations from geostationary
    [satellites]{.underline}, rather than [adjacent band]{.underline}
    interference from [terrestrial]{.underline} operations. *Id.* at 1.
    We are not persuaded that this analysis is relevant to the issue
    before us.

[^49]: AFTRCC Petition at 5-6.

[^50]: *Id.* at 7-8.

[^51]: A search of the ULS database indicates that there are only four
    flight test telemetry licensees operating within 5 MHz of the edge
    of the 1435 MHz band. Of those, the band edge of only one operation
    is within 1 MHz of 1435 MHz.

[^52]: Boresight-to-boresight interference occurs when the main beams of
    the opposing antennas are pointed at each other. *See*
    Recommendation ITU-R M.1459, Protection Criteria for Telemetry
    Systems in the Aeronautical Mobile Service and Mitigation Techniques
    to Facilitate Sharing with Geostationary Broadcasting-Satellite and
    Mobile-Satellite Services in the Frequency Bands 1452-1525 MHz and
    2310-2360 MHz, Annex 2 at 13.

[^53]: *Report and Order,* 17 FCC Rcd at 10045 ¶ 175.

[^54]: We note that flight test telemetry licensees can use ULS to
    identify potential sources of interference.

[^55]: *Report and Order* at 10034 ¶ 138, 10036 ¶ 142.

[^56]: *Id.* at 10034 ¶ 138, 10090.

[^57]: *Id.* at 10036 ¶ 142, 10091.

[^58]: *Id.* at 10034 ¶ 138, 10036 ¶ 142.

[^59]: For instance, a 25 kHz channel in the 217-220 MHz band can be
    "constructed" by combining four contiguous 6.25 kHz channels
    (*i.e.*, frequencies 217.00625 MHz through 217.02500 MHz). Combining
    these four channels will result in a 25 kHz channel with a center
    frequency of 217.015625 MHz. Thus, any 25 kHz bandwidth equipment
    operating on this channel would be required to transmit with a
    center frequency requiring six decimal places of accuracy. The same
    problem exists for the 1427-1432 MHz band. For example, combining
    four contiguous 12.5 kHz channels -- 1427.0152 MHz through 1427.5000
    MHz -- would result in a 50 kHz channel centered on 1427.03125 MHz.
    Thus, any 50 kHz bandwidth equipment operating on this channel would
    be required to transmit with a center frequency requiring five
    decimal places of accuracy.

[^60]: *See* Comments of Donald B. Schultze, Senior Consultant to Data
    Flow Systems, Inc. at 3, dated Mar. 13, 2003.

[^61]: *Id*. at 4.

[^62]: *Id*. at 1-2.

[^63]: We note that the 50 kHz channels will be distributed every 50 kHz
    and that 25 kHz channels will be distributed every 25 kHz beginning
    at 217.025 MHz. The 12.5 kHz and 6.25 kHz channels will be
    distributed in a similar manner as the wider band channels.

[^64]: *See* LMCC Letter at 1.

[^65]: *See* 47 C.F.R. § 90.613 (800 MHz band licensees must design
    their 25 kHz bandwidth equipment to operate at four decimal places
    of accuracy).

[^66]: *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) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^67]: *Report and Order,* 17 FCC Rcd at 10060, Appendix C.

[^68]: *See* 5 U.S.C. § 604.

[^69]: *Report and Order,* 17 FCC Rcd at 10019-25 ¶¶ 97-108.

[^70]: 47 U.S.C. § 309(j)(3)(B), (4)(C)-(D).

[^71]: *See Report and Order,* 17 FCC Rcd at 10022-23 ¶ 106.

[^72]: *Id.*

[^73]: 47 C.F.R. § 1.2110(f)(2).

[^74]: 5 U.S.C. § 603(b)(3).

[^75]: *Id*. § 601(3).

[^76]: *Id*. § 632.

[^77]: 1992 Economic Census, U.S. Bureau of the Census, Table 6 (special
    tabulation of data under contract to the Office of Advocacy of the
    Small Business Administration).

[^78]: 5 U.S.C. § 601(5).

[^79]: U.S. Dep't of Commerce, Bureau of the Census, *1992 Census of
    Governments*.

[^80]: *Id.*

[^81]: 13 C.F.R. § 121.201, NAICS code 513322.

[^82]: *Telephone Trends Report* (Aug. 2001), Table 5.3.

[^83]: 13 C.F.R. § 121.201, NAICS Codes 622110, 622210, 622310.

[^84]: *1997 Health Care Data*.

[^85]: *Id*.

[^86]: 13 C.F.R. § 121.201, NAICS Codes 623110, 623210, 623220, 623311,
    623312, 623990.

[^87]: *1997 Health Care Data*.

[^88]: *Id*.

[^89]: *Id*.

[^90]: *See* 5 U.S.C. § 603(c).

[^91]: *Report and Order,* 17 FCC Rcd at 10018-19 ¶¶ 95-96.

[^92]: 5 U.S.C. § 801 (a)(1)(A).

[^93]: *See* 5 U.S.C. § 604(b).