**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of the Commission\'s ) ET Docket No. 95-183

Rules Regarding the 37.0-38.6 GHz and ) RM-8553

38.6-40.0 GHz Bands )

)

Implementation of Section 309(j) of the ) PP Docket No. 93-253

Communications Act \-- Competitive )

Bidding, 37.0-38.6 GHz and 38.6-40.0 GHz )

Bands )

**THIRD NOTICE OF PROPOSED RULEMAKING**

**Adopted: March 31, 2004 Released: May 5, 2004**

Comment Date: 30 days after Federal Register Publication

Reply Comment Date: 45 days after Federal Register Publication

By the Commission:

Table of Contents

> Heading Paragraph \#

I. INTRODUCTION AND EXECUTIVE SUMMARY 1

II\. Background 3

III\. THIRD NOTICE OF PROPOSED RULEMAKING 9

A. Service Areas 15

B. Regulatory Framework 11

C. Licensing Rules 31

1\. Eligibility 32

2\. Performance Requirements and Renewal Expectancy 35

3\. License Term 42

4\. Partitioning, Disaggregation, and Aggregation 44

5\. Regulatory Status 52

6\. Foreign Ownership Restrictions 53

D. Technical Rules 56

E. Band Plan 60

F. Coordination Among Terrestrial Stations in the Fixed Service in the
37.0-40.0 GHz and 42.0-42.5 GHz Bands 69

G. Coordination Among Fixed Service Terrestrial Stations and
Fixed-Satellite Service Satellite Earth Stations in the 37.5-40.0 and
42.0-42.5 GHz Bands 75

H. Fixed Satellite Earth Stations That Obtain Part 101 Licenses 78

I. Sharing & Coordination Between Non-Federal Government and Federal
Government Services

at 37.0-38.6 GHz and 39.5-40.0 GHz 83

1\. Non-Federal Government Operations Coordinating with Existing Federal
Operations 93

2\. Federal Government Operations Coordinating with Future Non- Federal
Government Operations 94

J. The Competitive Bidding Procedures 96

1\. Incorporation by Reference of the Part 1 Standardized Auction Rules
97

2\. Provisions for Designated Entities 98

IV\. PROCEDURAL MATTERS 103

A. Regulatory Flexibility Analysis 103

B. Paperwork Reduction Analysis 104

C. Ex Parte Presentations 106

D. Comment Dates 107

E. Further Information 109

V. ORDERING CLAUSES 111

APPENDIX A Proposed Rules

APPENDIX B Initial Regulatory Flexibility Analysis

APPENDIX C Existing Federal Government Operations in 37.0-38.6 GHz Band

APPENDIX D List of Commenters

# INTRODUCTION AND EXECUTIVE SUMMARY

1.  In the Notice of Proposed Rule Making and Order that initiated the
    above-captioned proceeding in 1995, we proposed to amend the rules
    for fixed, point-to-point microwave service in the 38.6-40.0 GHz
    (\"39 GHz\") band, and to adopt a conforming set of new rules for
    the virtually unused 37.0-38.6 GHz (\"37 GHz\") band in order to
    allow for the expansion of 39 GHz-type service.[^1] In this *Third
    Notice of Proposed Rule Making* ("*Third NPRM*")*,* we propose
    service rules for the 37 GHz and also for the 42.0-42.5 GHz ("42
    GHz") ("37/42 GHz") bands that would substantially conform to the
    rules adopted for the 39 GHz band in the *Report and Order and
    Second Notice of Proposed Rule Making* [^2] and the *Second Report
    and Order*[^3] in this proceeding. We recognize, however, that
    conditions have changed considerably over the past few years, and we
    are willing to consider alternatives if commenters demonstrate that
    a different regulatory framework would be more appropriate for the
    37/42 GHz bands. Our goal is to establish a flexible regulatory and
    licensing framework that would promote seamless deployment of a host
    of services and technologies in the 37 GHz and 42 GHz bands. We seek
    to enhance opportunities for deployment of broadband wireless
    services, foster effective competition, promote innovation and
    further our efforts for consistent rule application regarding
    broadband wireless services.

2.  Significant changes in spectrum allocations, technology, and market
    conditions have occurred since the adoption of the 39 GHz rules and
    auction. Consequently, we invite comments on all of the unresolved
    issues in this proceeding. We do not seek comment on issues that
    were decided in the allocation item in the *Second Report and
    Order,* such as the soft segmentation of the frequency bands for
    satellite and terrestrial services. Accordingly, we seek comment on
    proposed 37/42 GHz band service rules that are affected by these
    proposed changes, and in one case we propose to apply these rules to
    the 39 GHz band as well. Specifically:

-   We propose to license the 37/42 GHz bands on a geographic basis
    using Economic Areas ("EAs"), consistent with the licensing scheme
    adopted for the 39 GHz band, but we invite comment on alternative
    approaches as well.

-   We propose to permit point-to-point, point-to-multipoint, and future
    mobile operations.

-   We propose to adopt a "substantial service" build-out requirement if
    the band is licensed using EA licenses, but we invite comment on
    alternative build-out requirements if we adopt a different licensing
    scheme.

-   We propose technical rules designed to provide licensees with
    operational flexibility.

-   We propose to permit 37/42 GHz band licensees to partition and
    disaggregate spectrum if the band is licensed by EAs.

-   We seek comment on whether to adopt a channeling plan for the 37/42
    GHz bands, and, if so, what plan to propose.

-   We propose to require coordination whenever and wherever facilities
    have optical radio line-of-sight into another licensee's geographic
    area or registered site license.

-   We seek comment on the appropriate coordination method to employ
    between adjacent licensees and with the Federal government. We
    propose to apply these changes to the 39 GHz band as well as the
    37/42 GHz bands.

-   If we license the bands by EAs when awarding 37/42 GHz licenses, we
    propose to use the competitive bidding procedures set out in Part 1,
    Subpart Q of our rules.

# Background

3.  On September 9, 1994, the Fixed Point-to-Point Microwave Section of
    the Telecommunications Industry Association ("TIA") filed a Petition
    for Rulemaking proposing a channeling plan and technical rules for
    microwave service in the 37 GHz and 39 GHz bands.[^4] TIA requested
    the availability of this spectrum for broadband Personal
    Communications Service ("PCS") operators, cellular operators and
    other common carrier and private operators in order to satisfy
    point-to-point communications needs. In response to the TIA
    Petition, on December 15, 1995, the Commission initiated this
    proceeding to facilitate operations that provide communications
    infrastructure.[^5] In this regard, the Commission decided to
    harmonize licensing and technical rules for the 37 and 39 GHz bands
    to improve the 39 GHz band licensing process and to allow interested
    parties to expand their operations to the 37 GHz band.[^6]

4.  After the release and adoption of the *NPRM and Order*, Motorola
    Satellite Systems, Inc. petitioned the Commission to permit the
    provision of satellite services in the 37 GHz band and in other high
    gigahertz frequency bands.[^7] Partially in response to this
    petition, the Commission initiated a proceeding to address the
    36.0-51.4 GHz band *in toto*,[^8] including designating 4 GHz of
    spectrum for fixed-satellite services ("FSS") on a primary basis,
    4.6 GHz of spectrum for wireless services[^9] and amending the
    Federal Government allocations in the 37.0-38.0 GHz and 40.0-40.5
    GHz bands to include space research and earth exploration satellite
    operations.[^10]

5.  The 39 GHz portion of the spectrum in the 36.0-51.4 GHz band already
    was partially licensed and subject to additional applications, and
    on November 3, 1997, the Commission released the *Report and Order
    and Second NPRM* in this proceeding, which established a new
    licensing approach for the 39 GHz spectrum.[^11] This action amended
    Parts 1 and 101 of our rules to facilitate more effective use of the
    39 GHz band by allowing existing and new licensees to provide a
    broader array of services to the public.[^12] In this regard, the
    Commission noted that much wider uses of the spectrum were
    anticipated than were contemplated when it initiated this
    proceeding.[^13] Specifically, a number of commenters stated that 39
    GHz band facilities are employed to provide wireless equal access,
    LAN-to-LAN communications, and other high capacity data transmission
    services.[^14]

6.  On December 17, 1998, the Commission adopted the *36-51 GHz Order*
    establishing a band segmentation plan for non- Federal Government
    operations in the 36.0-51.4 GHz frequency band.[^15] The Commission
    sought to create an overall framework for deployment of services and
    development of technologies in the bands, increase certainty in
    business planning, and clarify the relationship among various
    ongoing Commission proceedings.[^16] Due to the difficulty of
    sharing between area-wide terrestrial wireless systems and satellite
    systems, the *36-51 GHz Order* provided separate designations within
    the band for implementation of non- Federal Government wireless
    services and non- Federal Government FSS.[^17] The *36-51 GHz Order*
    also reallocated the 37.6-38.6 GHz portion of the 37 GHz band for
    FSS use, and added new wireless designations on a primary basis in
    the 37/42 GHz, 46.9-47.0 GHz and 50.4-51.4 GHz bands.[^18]

7.  At the 2000 World Radiocommunication Conference ("WRC-2000"), the
    International Telecommunication Union ("ITU") [^19] adopted a "soft
    segmentation" plan that favored terrestrial wireless services in the
    37 GHz, 39 GHz and 42.0-43.5 GHz bands, and favored satellite
    services in the 40.0-42.0 GHz band.[^20] In response to this
    allocation, on May 31, 2001, the Commission issued the *36-51 GHz*
    *Further Notice*[^21] proposing to modify the allocation for the
    36.0-51.4 GHz band to reflect the international sharing arrangement
    established at WRC-2000. Essentially, the Commission decided to
    allocate Fixed Service ("FS") and FSS on a co-primary basis in most
    of the 37.0-43.5 GHz band.[^22] In addition, the Commission proposed
    to designate the 37.0-40.0 GHz band and the 42.0-42.5 GHz band for
    ubiquitous wireless services, considered the addition of fixed and
    mobile for non- Federal Government use to the 42.5-43.5 GHz band,
    proposed limiting the power flux density ("PFD") at the surface of
    the earth for satellite transmissions, and restricting satellite
    earth stations in these bands to gateways.[^23] The Commission
    determined that it would examine service and licensing rules for
    these bands in a future proceeding.[^24]

8.  On December 5, 2003, the Commission released the *36-51 GHz Second
    R&O*, which predominantly affirmed the *36-51 GHz* *Further Notice*
    and shifted FS, FSS and Mobile Satellite Service ("MSS") allocations
    and re-designated portions of the spectrum for FS and FSS so as to
    encourage FS use of the 37.0-40.0 GHz and 42.0-42.5 GHz bands, and a
    combination of FSS, MSS and Broadcast Satellite Service ("BSS") in
    the 40.0-42.0 GHz band. The Commission also adopted PFD limits for
    satellites consistent with the PFD limits adopted at WRC-2000,
    restricted satellite earth stations in the 37 GHz band to gateways,
    and adopted the FS and FSS designations that support "soft
    segmentation" of these three bands from 37 GHz to 42.5 GHz.

# Third Notice of Proposed Rulemaking

9.  In keeping with the Commission's initial plan to establish licensing
    and technical rules to allow 39 GHz licensees to expand their
    operations to the 37 GHz band, in this NPRM we propose service rules
    for the 37/42 GHz bands that would be (1) substantially the same as
    those applicable to the 39 GHz band, and (2) consistent with the
    allocation and designation in the *36-51 GHz* *Second R&O* to
    propose parallel rules for the 37/42 GHz and 39 GHz bands.[^25] We
    invite comment on alternative frameworks as well, including the
    possibility of using a first-come, first-served link-registration
    approach comparable to the regulations that we recently applied to
    the sparsely developed 70, 80, and 90 GHz bands.[^26]

10. The principal arguments in favor of applying a 39-GHz-style
    regulatory structure to the 37/42 GHz bands are proximity,
    similarity in anticipated uses, and comparable propagation
    characteristics of the bands.[^27] Similar to 39 GHz, the 37/42 GHz
    bands likely will be used to provide such services as backhaul and
    backbone communications links for services such as broadband PCS,
    wireless local loops, connection and interconnection services to
    private networks and Internet access. In addition, operations in the
    37/42 GHz bands and the 39 GHz band will be similar in path length,
    free space loss and degradation due to rain. The main difference
    between the 37/42 GHz band and the 39 GHz band is that the 37/42 GHz
    band does not have incumbent terrestrial wireless licensees, but
    does have some existing and proposed Federal Government
    installations. Non-Federal Government licensees are cautioned that
    the Federal government has a co-primary allocation in the 37.0-38.6
    GHz band and has plans to operate stations in the band in the
    future.[^28] Creating regulatory symmetry to the extent feasible for
    these bands arguably would facilitate spectrum aggregation,
    equipment development, and service planning and development for both
    the 39 GHz and 37/42 GHz bands. Applying policies favoring
    flexibility of use as embodied in the 39 GHz service rules to this
    nearby band could help encourage efficient spectrum use.[^29]
    Finally, such rules could facilitate operations that provide
    communications infrastructure and fixed services. Appendix B
    provides the text of rules that could be used to regulate the 37/42
    GHz bands under this approach, pursuant to Parts 1 and 101 of our
    rules.[^30]

11. The principal argument against applying 39 GHz-type rules is that
    those rules are premised on the assumption that service providers
    will be ready, willing, and able to build out fully and provide
    service on an EA-wide basis. Some companies raised substantial
    amounts of money under that business model but later experienced
    major difficulties, including bankruptcy. We do not know yet to what
    extent such service providers will develop the 39 GHz band, nor do
    we know to what extent they will require overflow capacity in the
    37/42 GHz bands. While some potential licensees may lack the
    resources to develop entire geographic areas, or their business
    plans may call for a more focused pattern of deployment, however,
    the Commission has increasingly provided its licensees with
    additional flexibility to address those concerns. For example,
    licensees in many wireless services may now make excess spectrum
    available through secondary markets, and spectrum users may be able
    to lease spectrum under streamlined processes without becoming
    Commission licensees.[^31]

12. The 37/42 GHz spectrum has available one block of 1600 megahertz (37
    GHz) and one block of 500 megahertz (42 GHz). Because we have such a
    large amount of spectrum available, we also wish to explore whether
    the Commission should license portions of these blocks by EAs and
    other portions on a site-by-site basis. By using this combined
    approach to licensing, the Commission may address more effectively
    the needs of large entities as well as the smaller businesses,
    including public safety entities, that may neither require large
    blocks of spectrum nor be able to afford the financial outlays for
    EAs. For example, we could license the 1600 megahertz in
    50-megahertz channel pairs by EAs and use the 500 megahertz in the
    42 GHz band for site-by-site licensing. It would also be possible to
    license the upper half (800 megahertz) of the 1600-megahertz block
    in the 37 GHz band by EAs and provide for site-by-site registration
    in the lower half of that block. One way to apply a site-by-site
    licensing approach would be to adopt the model used in the 70/80/90
    GHz proceeding.[^32] Therefore, we seek comment on the benefits of
    having some spectrum licensed by geographic areas and some spectrum
    licensed on a site-by-site basis. We ask commenters to propose
    specific spectrum plans, including recommendations for the amount of
    spectrum to be licensed by geographic areas or registered on a
    site-by-site basis, and to describe in detail the potential benefits
    of each plan.

13. We ask commenters to evaluate the ways in which alternative
    licensing schemes may constrain or expand our ability to allow
    maximum operational flexibility. As discussed in paragraphs 24
    through 30, below, this Commission has found it possible to
    authorize mobile and omnidirectional services when issuing licenses
    on a geographic area basis but has used link-by-link licensing
    primarily to support fixed point-to-point services.

14. We seek comment on the state of the market, the technology, and the
    investment climate for service in the 37/42 GHz bands, and on
    regulations that would be consistent with those conditions both
    present and future.

## Service Areas

15. [Background.]{.underline} When establishing geographic service areas
    and build-out requirements for any particular type of license, we
    seek to accommodate the sometimes competing objectives of diversity,
    economic efficiency, ubiquity, and innovation.[^33] Smaller service
    areas make it easier for small businesses to bid successfully for
    licenses, but viable businesses may require larger service areas. We
    also seek to foster the delivery of services to rural areas[^34] and
    to promote investment in and rapid deployment of new technologies
    and services.[^35]

16. In the *First NPRM and Order,* the Commission proposed to license
    all channel blocks in the 39 GHz band on the basis of exclusive
    licenses for geographic areas, using Rand McNally & Company's Basic
    Trading Area ("BTA") service areas.[^36] Comments responsive to the
    *First NPRM and Order* supported the use of exclusive area-wide
    licenses using BTAs for the band.[^37] The Commission adopted this
    proposal in the *Report and Order and Second NPRM*, because BTAs
    were representative of the geographic areas in which the types of
    services envisioned for the 39 GHz band were likely to be
    provided.[^38] At that time, the Commission rejected the notion of
    permitting applicants to continue to define their own service areas
    on the basis that pre-defined service areas would provide a more
    orderly structure for the licensing process and foster efficient use
    of the spectrum in an expeditious manner.[^39] In addition, for
    those interested in tailoring a service area to other smaller or
    larger markets, the Commission reasoned that its service rules
    permitted aggregation,[^40] partitioning and disaggregation.[^41]
    The Commission also declined to license the 39 GHz band via larger
    geographic areas, such as Major Trading Areas, which are
    aggregations of BTAs.[^42] The Commission explained that although
    its rules allowed spectrum aggregation for those seeking larger
    geographic areas, the record did not support the notion that most
    licensees would seek to provide service over vast geographic
    regions.[^43] Instead, based upon the services being proposed, the
    Commission anticipated that that the 39 GHz band would be used for
    services that are local or regional in nature.[^44]

17. However, subsequent developments concerning Rand McNally's copyright
    interest in BTAs led the Commission to conclude that using BTAs as
    service areas could delay the 39 GHz licensing process.[^45] It,
    therefore, reconsidered its service area definition and selected
    EAs.[^46]

18. We adopted a different approach in the *70/80/90 GHz Report and
    Order*. In that proceeding, we decided to issue non-exclusive
    nationwide licenses conditioned upon site and path-specific
    coordination.[^47] Because of the short path links and tightly
    focused beams that are necessary and feasible at those high
    frequencies, the Commission reasoned that many service providers
    would be able to engineer their systems to operate in close
    proximity to each other without causing mutual interference.[^48] To
    facilitate coordination, the Commission adopted non-interference
    requirements and required all licensees to register their facilities
    in a database accessible to other licensees, on a first-come,
    first-served basis.[^49] The Commission determined that it would
    impose no limit to the number of non-exclusive nationwide licenses
    that it would grant for the 70/80/90 GHz bands.[^50] Consistent with
    its decision not to issue exclusive licenses for geographic areas,
    it did not adopt any area-wide substantial service requirements,
    deciding instead to require licensees to construct individual links
    within 12 months after registering them.[^51]

19. [Discussion.]{.underline} In reaching its decision to license all 39
    GHz channel blocks using exclusive licenses for EAs, the Commission
    concluded that this service area designation would provide ample
    population coverage and allow licensees the flexibility to provide
    many different types of services, which would promote an equitable
    distribution of licenses and services among geographic areas,
    encourage economic opportunities among a wide variety of applicants,
    and foster investment and rapid deployment of new technologies and
    services.[^52] For the same reasons, and for consistency, we
    tentatively conclude that the most appropriate service area
    designation for licensing the 37/42 GHz bands would be EAs, if we
    decide to issue exclusive area-wide licenses or a combination of
    area-wide licenses and site-by site licenses.

20. The use of EAs as defined by the U.S. Department of Commerce Bureau
    of Economic Analysis as of February 1995 would provide a seamless
    overlay for entities that choose to provide services in both the
    37/42 GHz and 39 GHz bands.[^53] Accordingly, we propose to issue a
    total of 175 authorizations (172 EAs, and three additional areas,
    covering Guam and Northern Mariana Islands; Puerto Rico and the U.S.
    Virgin Islands; and American Samoa) for each 37/42 GHz channel
    block.[^54] In order to be consistent with the 39 GHz EA service
    areas, we propose to utilize the 1995 EAs, as modified by the
    Commission, which were in effect on April 12, 2000, the start-date
    of the 39 GHz auction.[^55] For entities desiring areas smaller than
    EAs, we would permit partitioning and disaggregation of EA
    licenses.[^56] Adoption of a geographic area licensing approach --
    in contrast to a station-defined (*i.e.,* site-by-site) licensing
    approach -- for the 37/42 GHz band likely would result in the
    acceptance of mutually exclusive license applications, which would
    need to be assigned through competitive bidding under section 309(j)
    of the Communications Act, as amended ("Communications Act).[^57]

21. We seek comment below on a number of issues relating to the
    competitive bidding procedures we should use in any auction of
    geographic-area licenses in this band.[^58] The geographic license
    would constitute a blanket authorization to construct and operate
    stations at any available site within the licensed area on the
    licensed spectrum. In general, we propose to allow geographic area
    licensees to construct and operate their stations pursuant to the
    procedures set out in Section 1.2113 of our rules, and we seek
    comment on any clarifications, extensions, or exceptions to that
    rule that may be necessary. We propose to require geographic area
    licensees to license individually any station[^59] that requires an
    Environmental Assessment pursuant to Section 1.1307 of our
    rules[^60] or international coordination, or would affect the radio
    quiet zones described in Section 1.924 of our rules.[^61]

22. In the alternative, if we choose to adopt the kind of regulatory
    approach that we have applied to the 70/80/90 GHz bands, we propose
    to issue multiple, non-exclusive nationwide licenses. We recognize,
    of course, that there are significant differences between the 37/42
    GHz and 70/80/90 GHz bands with respect to propagation
    characteristics and engineering requirements,[^62] and that there
    likely will be more demand for the lower frequencies. For those
    reasons, we seek comments on whether an exclusive use, geographic
    area licensing approach, a 70/80/90 GHz-like framework, or a
    combination of both would be more appropriate for the 37/42 GHz
    bands. We seek comment on what modifications to the licensing
    structure adopted in the *70/80/90 GHz R&O* would be necessary to
    adapt it to the differing requirements of the 37/42 GHz bands.[^63]
    We invite comment on other alternatives that commenters might care
    to recommend.

## Regulatory Framework

23. [Background]{.underline}. The 37/42 GHz bands are allocated for both
    fixed and mobile services.[^64] In the *First NPRM and Order*, the
    Commission requested comment on whether to permit
    point-to-multipoint systems and mobile services in addition to
    point-to-point operations.[^65] Many parties commenting in this
    proceeding encouraged the Commission to allow licensees to determine
    the best uses of the band, and in particular requested the authority
    to provide point-to-multipoint and mobile services, as the
    technology to provide these services becomes available.[^66] In the
    *Report and Order and Second NPRM,* the Commission concluded that it
    was imperative not to take any regulatory actions that would hamper
    the continued development and growth potential of the 39 GHz
    service.[^67] Accordingly, the Commission adopted a flexible
    framework such that mixed use of the band was permitted by several
    service types, including point-to-point, point-to-multipoint, fixed,
    and, upon adoption of interference protection criteria, mobile
    operations in the 39 GHz band.[^68]

24. In contrast, the Commission adopted technical rules in its *70/80/90
    GHz Report and Order* requiring "pencil-beam" transmissions that
    effectively preclude point-to-multipoint or mobile operations in
    that spectrum.[^69] The Commission did not address the possibility
    of authorizing such operations, as the Commission foresaw that,
    unless it required tightly focused radiation patterns, legacy
    antennas with undesirable radiation patterns could pose serious
    obstacles to the growth of microwave links in heavily populated
    areas in the future.[^70] In justifying its choice of a
    non-exclusive link-by-link regulatory framework for the 70/80/90 GHz
    band, the Commission cited several factors: (i) the unique
    propagation characteristics and nature of the spectrum resources
    involved, including the ability to engineer systems to operate in
    close proximity to each other without causing mutual
    interference, (ii) the characteristics of equipment being proposed
    by manufacturers, i.e., systems designed to concentrate radiated
    power in very narrow paths, and (iii) the need to share the bands
    involved with other services, including Federal government systems
    requiring prior coordination to avoid mutual interference.[^71] The
    Commission found that such an approach could be particularly
    beneficial in less-densely populated rural and suburban areas, where
    there is an even lower chance of interference.[^72]

25. [Discussion]{.underline}. Because this spectrum is allocated for
    mobile and fixed use, we propose to allow mobile use in the future,
    if and when the technology develops, and a demand for mobile service
    in these bands exists. Until then, we propose to provide licensees
    with the flexibility that will eventually allow mobile terrestrial
    operations (upon adoption of interference protection criteria for
    mobile operations and specific coordination methods with the Federal
    Government), and fixed point-to-multipoint operations as well as
    fixed point-to-point operations in the 37/42 GHz bands. We seek
    comment below on what kind of regulatory framework, consistent with
    economic realities, would be most compatible with flexible
    operational rules. Parts 27 and 101 of our rules have provided
    regulatory frameworks for mixed-use operations in the past. We seek
    comment on whether such operations would only be feasible under a
    geographic area licensing approach, or whether provision for such
    flexibility would also be possible within a 70/80/90-type licensing
    framework. In addition, we ask commenters to consider the
    possibility that a combination of both regulatory models might
    provide the most effective framework.

26. The adoption of a mixed use regulatory framework for the 39 GHz
    service in 1997 is consistent with more recent Commission efforts to
    establish the maximum feasible flexibility in both allocations and
    service rules as a critical means of ensuring that spectrum is put
    to its most beneficial use. For example, in a 1999 *Policy
    Statement* on spectrum management, the Commission observed that
    "\[i\]n the majority of cases, efficient spectrum markets will lead
    to use of spectrum for the highest value end use," and that
    "\[f\]lexible allocations may result in more efficient spectrum
    markets."[^73] In addition, the flexible framework is consistent
    with continued Commission efforts to move toward innovative
    approaches to spectrum policy that are designed to maximize the
    public interest benefits derived from the use of radio
    spectrum.[^74]

27. We believe that such a proposal to permit flexible use by all fixed
    and mobile services would promote the intensive and efficient use of
    this spectrum. Here, as in the 700 MHz and Advanced Wireless Service
    proceedings,[^75] we believe this would allow the 37/42 GHz spectrum
    to be employed for a full range of allocated services. Accordingly,
    we propose that our service rules for these bands should permit a
    licensee to use this spectrum for any use permitted by the United
    States Table of Frequency Allocations contained in Part 2 of our
    rules (*i.e.*, fixed or mobile services). In this regard, we seek
    comment on what impact permitting flexible use of this spectrum
    would have on investment in new technology and communications
    services for these bands. Commenters advocating a less flexible
    approach should delineate what specific restrictions they would have
    us apply concerning how spectrum should be used by a licensee, and
    provide detailed analysis of the economic tradeoffs between
    flexibility and investment that justify any particular recommended
    use restriction. We also seek comment on types of uses that pose the
    greatest risk of interference to uses planned by parties interested
    in using this spectrum.

28. Given that we propose to permit flexible use of these bands for both
    mobile and fixed services, we seek comment on whether to do so under
    a 39-GHz-type, exclusive geographic area licensing approach or under
    a 70/80/90-type licensing framework where licensees "share" the
    spectrum resource on a first-come, first-served type arrangement
    with frequency coordinators.[^76] Both of these services are
    licensed under our Part 101 rules. We also seek comment on whether
    the spectrum could be regulated more productively under the flexible
    framework of our Part 27 rules, by creating a subpart for 37/42 GHz
    spectrum. Part 27 was established for the 2305-2320 MHz and
    2345-2360 MHz bands,[^77] and has since been applied to the Upper
    and Lower 700 MHz bands,[^78] as well as to the Advanced Wireless
    Services.[^79] Part 27 differs from rule parts applicable to more
    traditional services in that it does not attempt to provide a
    comprehensive set of licensing and operating rules for the spectrum.
    Instead, for each frequency band within its purview, Part 27 defines
    permissible uses and any limitations thereon, sets out technical
    limitations necessary to prevent cognizable interference, and
    specifies basic licensing requirements.[^80] We generally seek
    comment on the advantages and disadvantages of extending our Part 27
    framework to the 37/42 GHz bands or to portions of the bands.

29. In the alternative, commenters should address the possibility of a
    Part 101 framework where we would also propose to adopt a geographic
    area licensing scheme and permit mobile, point-to-point, and
    point-to-multipoint operations in the 37/42 GHz bands, for the same
    reasons that we permit them in the 39 GHz band.[^81] There, the
    Commission did not want to develop a regulatory framework that would
    hamper further growth and development of the nascent 39 GHz
    service.[^82] Moreover, there was no evidence in the record that
    point-to-point and point-to-multipoint operations are inherently
    incompatible in the same band or licensing area, if licenses were
    issued on the basis of geographic areas.[^83] We inquire whether it
    would serve the public interest to afford 37/42 GHz licensees
    similar flexibility under Part 101 in the design of their systems to
    respond readily to consumer demand for their services, allowing the
    marketplace to dictate the best uses for this spectrum. We seek
    comment on the extent to which allowing point-to-multipoint
    operations could stimulate creative technology development and
    facilitate investment therein.[^84] While technology to support
    mobile operations may not be available at present, permitting such
    flexibility could enable providers to modify their offerings quickly
    and efficiently to provide the services that consumers demand when
    technology makes it possible.[^85] Thus, providers could be better
    positioned to respond quickly to the dictates of the
    marketplace.[^86] Such flexibility under Part 101 could promote
    competition by increasing both the diversity of potential service
    offerings and the number of providers that can offer any
    service.[^87] We seek comment on these issues.

30. If commenters disagree with our proposals to permit a licensee to
    use this spectrum for flexible use, we seek comment on what rule
    provisions should be adopted in light of the services that may be
    offered in the 37/42 GHz bands. Commenters should consider the
    extent to which, and under what conditions, allowing both
    point-to-point and point-to-multipoint operations in the 37/42 GHz
    bands would cause any more harmful interference than only allowing
    point-to-point operations, if proper coordination were done with
    both FS and FSS operations. Further, they should consider to what
    extent, if any, permitting point-to-multipoint use would impact
    investment in communications services and systems, or in technology
    development. Similarly, we seek comment on whether and to what
    extent we should permit mobile operations in the 37/42 GHz bands. As
    noted above,[^88] we seek comment on whether or not such operations
    would be feasible if we were to adopt a 70/80/90 GHz-type licensing
    approach.[^89]

## Licensing Rules

31. If we adopt a geographic-area licensing approach, we propose to
    apply to the 37/42 GHz bands the same licensing rules that pertain
    to the 39 GHz band, i.e., to grant area-wide licenses with renewal
    based upon substantial service. Accordingly, we propose the
    following rules related to eligibility, license term, performance
    requirements, spectrum aggregation, and technical requirements. We
    seek comment on these proposals, but we also invite comment on
    alternative requirements that might be more appropriate,
    particularly if we were to adopt a regulatory framework like the one
    we have adopted for the 70/80/90 GHz bands.

### Eligibility

32. [Background]{.underline}*.* In the *First NPRM and Order*, the
    Commission tentatively concluded that no eligibility criteria (such
    as demonstrating a need for multiple service points or transmission
    paths) were needed for the 37.0-38.6 GHz band, because the use of
    competitive bidding to resolve mutually exclusive applications would
    ferret out applicants who were financially unqualified or engaging
    in speculation.[^90] In the *Report and Order and Second NPRM,* the
    Commission retained open eligibility for 39 GHz spectrum, rather
    than impose restrictions on incumbent local exchange carriers
    ("LECs") as a safeguard against potential anticompetitive
    abuses.[^91] The Commission also declined to impose eligibility
    restrictions in the *70/80/90 GHz Report and Order.*[^92]

33. [Discussion.]{.underline} The use of eligibility restrictions can be
    an effective tool to ensure that spectrum does not become
    concentrated in the hands of any one licensee. In addressing the
    issue of whether to impose eligibility restrictions, we inquire
    whether open eligibility poses a significant likelihood of
    substantial competitive harm in specific markets, and, if so,
    whether eligibility restrictions are an effective way to address
    that harm.[^93] An open eligibility approach would result in
    reliance on market forces to guide license assignment absent a
    compelling showing that regulatory intervention to exclude potential
    participants is necessary. Such an approach may be appropriate here
    because it best comports with our statutory guidance. When granting
    the Commission authority to auction spectrum licenses for wireless
    services, Congress acknowledged our authority in Section 309(j)(3)
    \"to \[specify\] eligibility and other characteristics of such
    licenses.\"[^94] However, Congress specifically directed that we
    exercise that authority so as to \"promot\[e\] . . . economic
    opportunity and competition.\"[^95] Congress also emphasized this
    pro-competitive policy in Section 257, where it articulated a
    \"national policy\" in favor of \"vigorous economic competition\"
    and the elimination of barriers to market entry by a new generation
    of telecommunications providers.[^96] This approach also would be
    consistent with our analysis in the *LMDS Second Report and
    Order*.[^97] Finally, implementation of this approach would also be
    consistent with the Court\'s treatment of eligibility issues in
    *Cincinnati Bell*. In that decision, the Court looked to statistical
    data and general economic theory as support for predictive judgments
    by the Commission such as that eligibility restrictions are
    required.[^98]

34. In the 39 GHz proceeding, commenters generally supported the
    Commission's proposal to allow open eligibility.[^99] However, two
    entities argued in favor of eligibility restrictions for incumbent
    LECs, in order to prevent these entities from obtaining all of the
    desirable channel blocks in a given market,[^100] to prevent
    incumbent LECs from frustrating viable alternatives for deployment
    of competitive local telecommunications services[^101] and to ensure
    an opportunity for competitive local exchange carriers ("CLECs") to
    obtain licenses.[^102] The Commission determined that it was
    unlikely that substantial anticompetitive effects would result from
    LEC eligibility because an increase in LEC services other than those
    provided in local exchange markets, such as point-to-point backhaul
    and backbone transmission, would not diminish the generally
    competitive environment in which those services were then
    available.[^103] Second, even presuming that 39 GHz licenses would
    enable effective provision of services that can compete with local
    exchange service, such as wireless local loop, the Commission
    determined that incumbent LECs should have little or no incentive to
    acquire those licenses with the anticompetitive intent of
    foreclosing entry by other firms and preserving market power.[^104]
    The Commission found that an incumbent strategy of preserving
    expected future profits by buying 39 GHz licenses could not succeed
    because of the numerous other sources of actual and potential
    competition.[^105] As noted *supra* in paragraph 10**,** we have
    concluded that it would be appropriate to adopt parallel service
    rules for the 37/42 GHz and 39 GHz bands because of the proximity,
    similarity in anticipated uses and propagation characteristics of
    the bands, if we decide to pursue a geographic-area licensing
    approach for the 37/42 GHz bands. Given the similarities between the
    two bands, we believe that the same eligibility criteria should
    apply in both bands. For the same reasons why we concluded that open
    eligibility was appropriate for the 39 GHz band, we tentatively
    conclude that open eligibility is also appropriate for the 37/42 GHz
    spectrum. We seek comment on the extent to which the same factors
    that apply to the 39 GHz band might also apply to 37/42 GHz
    spectrum, and whether or not open eligibility is appropriate for the
    37/42 GHz spectrum.

### Performance Requirements and Renewal Expectancy

35. [Background.]{.underline} In the *First NPRM and Order*, the
    Commission sought comment on appropriate build-out requirements for
    geographic licensees.[^106] At that time, the Commission established
    the substantial service requirement for 39 GHz licensees, to assess
    meaningful service through a measure that was not based on
    population or geographic metrics.[^107] We defined substantial
    service as "a service that is sound, favorable, and substantially
    above a level of mediocre service which might minimally warrant
    renewal."[^108] The Commission established substantial service for
    circumstances in which more flexible performance requirements,
    rather than fixed benchmarks, would more likely result in the
    efficient use of spectrum and the provision of service to rural,
    remote, and insular areas.[^109] The Commission did not adopt a more
    specific standard because, given the variety of services that 39 GHz
    licensees could provide, an inflexible performance requirement might
    impair innovation and unnecessarily limit the types of service
    offerings.[^110] The Commission sought to avoid this pitfall by
    permitting licensees to make a showing tailored to their particular
    type of operation.[^111] In addition, the Commission provided a
    \"safe harbor\" example of a substantial service showing as "four
    links per million population within a service area for a
    point-to-point licensee.\"[^112] The Commission also found that this
    approach satisfied the dictates of Section 309(j)(4)(B) of the
    Communications Act,[^113] which requires us to propose effective
    safeguards and performance requirements in connection with any
    competitive bidding system, because the licensee's willingness to
    pay market value for its license at auction demonstrates its
    willingness to put the license to its best use.[^114] In the
    *70/80/90 GHz Report and Order,* the Commission did not adopt any
    performance requirements other than its requirement that a licensee
    construct a link within 12 months after registering it and operate
    at a bit rate equal to or greater than its bandwidth, with any
    unconstructed link to be removed from the database in accordance
    with Section 101.65.[^115]

36. Neither the Part 21 rules nor the Part 101 rules directly provided
    for a renewal expectancy at the time of license expiration. However,
    in 1997, in the *Report and Order and Second NPRM,* the Commission
    determined that, in order to promote flexibility in system design
    and market development, it would combine the performance standards
    required for build-out with the requirements for renewal expectancy
    into one showing of substantial service at the time of license
    renewal, in accordance with Section 101.17(a).[^116]

37. In the *70/80/90 GHz Report and Order*, the Commission followed a
    different approach consistent with its link-by-link registration
    framework. It adopted a requirement that a licensee construct a link
    within 12 months after registering it with a third-party database
    manager.[^117] The database manager is required to withdraw
    unconstructed links from the database after 12 months, and
    forfeiture and termination of a link is handled in accordance with
    Section 101.65 of our rules.[^118]

38. [Discussion.]{.underline} Based on the record thus far in this
    proceeding, we are inclined to believe that the substantial service
    standard would serve the public interest if we decide to license the
    37/42 GHz bands by EAs.[^119] We propose to conduct performance
    reviews at the completion of licensees' ten-year license terms, as
    we do with respect to the 39 GHz band.[^120] However, we also seek
    comment on the alternative possibility of conducting such reviews
    five years into the license period and ten years into the license
    period, as we do with respect to Multichannel Video Distribution and
    Data Services.[^121] A link-by-link construction deadline would
    probably be more appropriate if we adopt a 70/80/90 GHz-type
    regulatory framework. We propose to adopt a renewal expectancy if
    the licensee meets whatever performance standard we adopt. This
    would be consistent with the approach that we have taken in other
    services. [^122]

39. In addition to being consistent with the approach used in other
    wireless services, we believe that the substantial service standard
    is sufficiently flexible to foster expeditious development and
    deployment of diverse systems and ultimately would create
    competition among the service providers if the band is licensed by
    geographic areas. Given the similarities in propagation
    characteristics and proposed permitted uses of the 37/42 GHz and 39
    GHz bands, we believe that it would be appropriate to apply the same
    \"safe harbors\" to both bands. We therefore propose the same safe
    harbor example here that we presented in the 39 GHz proceeding.
    Thus, a safe harbor for a 37/42 GHz EA licensee might consist of a
    showing of four links per million population within a service
    area.[^123] We invite recommendations for alternative or additional
    safe harbors that take into account other variations in local
    conditions, such as population density. For each such
    recommendation, we invite commenters to indicate whether the safe
    harbor involved should provide more than a rebuttable presumption of
    renewal. In order to determine whether an EA licensee has provided
    substantial service at the end of the license term, we propose to
    consider factors such as: i) whether the licensee's operations serve
    niche markets or focus on serving populations outside of areas
    served by other licensees; ii) whether the licensee's operations
    serve populations with limited access to telecommunications
    services; and iii) a demonstration of service to a significant
    portion of the population or land area of the licensed area.[^124]
    We emphasize that this list need not be exhaustive and that
    licensees could be permitted to satisfy the substantial service
    requirement in other ways. Hence, we propose to review licensees'
    showings on a case-by-case basis. If a licensee fails to meet the
    performance requirement, the subject license would not be renewed.
    We seek comment on these proposals and on alternative performance
    requirements that might be more appropriate if we adopt a
    link-by-link licensing approach, such as the 12-month construction
    requirement adopted in the *70/80/90 GHz Report and Order.*[^125]

40. We propose that, in order to claim a renewal expectancy under the
    geographic licensing framework, the geographic area licensee be
    required to provide the Commission with: 1) a description of its
    current service in terms of geographic coverage and population
    served or links installed and a description of how the service
    complies with the substantial service requirement; and 2) copies of
    any Commission Orders finding the licensee to have violated the
    Communications Act or any Commission rule or policy, and a list of
    any pending proceedings that relate to any matter described by the
    requirements for the renewal expectancy. We believe that these
    requirements would be in the public interest because these showings
    would ensure that the licensee operated its facilities in compliance
    with the Commission's rules and has the requisite qualifications to
    be a Commission licensee.

41. If we adopt a link-by-link registration approach, we propose to
    follow the approach adopted in the *70/80/90 GHz Report and Order,*
    i.e., that other licensed entities would be permitted to register
    and operate links in the same locations after the earlier entry is
    removed from the database. We propose that licensees links' be
    removed from the database using criteria like those that Section
    101.65 applies to site licensees, i.e., the link registration would
    be removed from the database (i) immediately if the licensee
    provided notice that it was discontinuing service permanently on the
    link, (ii) upon the voluntary removal or alteration of the
    facilities, so as to render the station not operational for a period
    of 30 days or more, or (iii) upon the station's discontinuing
    service for a period of one year. [^126] However, we propose that
    the licensee be allowed to retain its nationwide non-exclusive
    license whether or not one, more, or even all of its links are
    removed from the database. We seek comment on these proposals.

### License Term

42. *Background.* Historically, 39 GHz licensees authorized to provide
    service before August 1, 1996, received a five-year, fixed license
    term,[^127] and licensees authorized after August 1, 1996, received
    a ten-year, fixed license term.[^128] Moreover, the Commission
    eliminated a requirement for 39 GHz licensees to file for renewal
    eighteen months before the license expiration date[^129] and adopted
    a requirement for 39 GHz licensees to file for renewal of station
    authorizations no later than the license expiration date and no
    earlier than ninety days before the expiration date.[^130] In the
    *70/80/90 GHz Report and Order*, the Commission adopted a ten-year
    license term.[^131]

43. *Discussion.* Those who commented on the issue of license term
    favored a ten-year license period for 39 GHz licensees.[^132]
    Moreover, we have made significant efforts to establish consistency
    and promote regulatory parity with respect to policies governing
    similar wireless services.[^133] In other contexts, we have
    recognized the advantages of a ten-year license term. [^134] Based
    on the record in this proceeding, we propose to adopt a ten-year
    license term.

### Partitioning, Disaggregation, and Aggregation

44. [Background.]{.underline} In the *First NPRM and Order,* the
    Commission sought comment on partitioning for rural telephone
    companies ("rural telco"), and on whether to broaden the scope of
    partitioning to include all applicants.[^135] Most commenters
    supported permitting partitioning for rural telcos, as well as
    partitioning and disaggregation in the band generally.[^136] In
    considering this issue in the *Report and Order,* the Commission
    concluded that it should make partitioning and disaggregation
    available to all 39 GHz licensees, because these capabilities would
    promote flexibility both in system design and service, and encourage
    new entrants into the market by creating smaller, less
    capital-intensive service areas that may be more accessible to small
    entities.[^137]

45. In the *70/80/90 GHz Report and Order,* the Commission noted that
    the use of partitioning and disaggregation is pertinent only in
    geographic licensing settings, where the licensee has exclusive use
    of a particular area. It determined that its decision to authorize
    the 70/80/90 GHz bands on the basis of nationwide non-exclusive
    licensing obviated the need for partitioning and
    disaggregation.[^138]

46. In the *First NPRM and Order*, the Commission sought comment on
    whether to adopt a limit on aggregation of channel blocks in the
    combined 37.0-38.6 GHz and 39 GHz bands within a single licensing
    area, in order to ensure that there are an adequate number of
    licenses available to meet the needs of broadband PCS licensees, as
    well as the needs of other competitors in the wireless
    marketplace.[^139] Commenters generally opposed a spectrum
    aggregation limit due to the potential for multiple providers
    utilizing a variety of wireless services.[^140] In the *Report and
    Order and Second NPRM,* the Commission decided against adopting a
    spectrum aggregation limit for the 39 GHz band.[^141] The Commission
    reasoned that 39 GHz licensees participate in a number of broad
    markets consisting of a host of short-range fixed communications
    provided by many operators who employ a range of different, but
    substitutable technologies, both radio and wire. The Commission did
    not see a need to guarantee a particular number of 39 GHz
    competitors to create competition within the 39 GHz band.[^142]
    Moreover, the Commission noted that there was no evidence that the
    1400 megahertz of spectrum in the 39 GHz band was particularly
    important for the creation of competition in the two markets where
    market power still exists − local telecommunications services and
    multi-channel video program delivery.[^143] The Commission concluded
    that an aggregation limit was not needed in order to foster
    competition in these two markets.[^144] The Commission also
    concluded that permitting aggregation of channels might benefit the
    public through efficiencies and flexibility in the types of services
    this would allow, and might provide for lower costs or greater
    ability to compete with established service providers with large
    transmission capacity.[^145]

47. [Discussion.]{.underline} If we adopt a geographic area licensing
    framework, we propose to permit 37/42 GHz licensees to partition and
    disaggregate spectrum freely within those bands. We inquire to what
    extent we should require licensees to preserve any channel pairs
    that we establish.[^146] There will be no need for partitioning and
    disaggregation if we adopt a link-by-link registration approach.

48. For the geographic area approach, we propose to allow partitioning
    of any licensee-defined service area, disaggregation of any amount
    of spectrum,[^147] and combined partitioning and disaggregation. We
    propose to allow the 37/42 GHz band licensees to partition and/or
    disaggregate in either of two ways: (1) entities could form bidding
    consortia to participate in competitive bidding, and then partition
    or disaggregate the licenses won among consortia participants after
    the license grant; or (2) entities could acquire partitioned or
    disaggregated 37/42 GHz licenses from other licensees through
    private negotiation and agreement.

49. We consider partitioning and disaggregation effectively to be types
    of assignments, which would, therefore, require prior approval by
    the Commission. We would require a licensee planning to partition or
    disaggregate its license to file an assignment application, along
    with the partitionee and/or disagregatee, to designate the specific
    areas and frequencies. For geographic area licenses in other bands,
    the Commission does not require individual licenses for each
    facility. After we grant either the original license or assignments
    for partitioning and/or disaggregation, and provided the licensees
    comply with all other rules, licensees may build out anywhere within
    their defined service areas without further authority from the
    Commission. Entities that receive partitioned or disaggregated
    licenses would hold their licenses for the remainder of the original
    licensee's license term, and would qualify for renewal expectancy if
    they provide substantial service and comply with the Commission's
    rules and policies and the Communications Act. In authorizing
    partitioning and disaggregation, we propose to follow these existing
    license assignment procedures.[^148] We would permit parties with
    partitioning agreements to choose between two options for satisfying
    the performance requirements: (a) the parties may agree to meet the
    performance requirements for their respective portions of the
    service area,[^149] or (b) the original licensee may certify that it
    has met or will meet the performance requirements for the entire
    market.[^150] We believe that these requirements would prevent
    licensees from using partitioning and disaggregation to circumvent
    our rules governing performance requirements. Our Part 1 unjust
    enrichment provisions would govern partitioning and disaggregation
    arrangements involving licenses authorized to small businesses
    afforded a bidding credit, including those that later elect to
    partition or disaggregate their licenses to an entity that is not
    eligible for the same bidding credit.[^151]

50. We also propose that 37/42 GHz licensees be allowed to aggregate
    their spectrum in order to provide greater flexibility of service.
    In some services, the Commission has permitted aggregation by
    implication, by not specifically prohibiting it. In other services,
    the Commission has adopted a rule expressly permitting
    aggregation.[^152] We believe that, in the interest of regulatory
    certainty, the latter is the better approach. Therefore, we propose
    to adopt a rule specifically permitting spectrum aggregation if we
    decide to adopt a geographic area licensing structure.

51. As noted previously, commenters opposed a spectrum aggregation
    limit. Thus, we incline toward the view that the same reasoning that
    the Commission used to permit unlimited aggregation in the 39 GHz
    band also should apply to the 37/42 GHz bands. Accordingly, we
    propose not to limit aggregation of channel blocks in the 37/42 GHz
    bands, or in the combined 37/42 GHz and 39 GHz bands. We seek
    comment on all of these proposals.

### Regulatory Status

52. In the *First NPRM and Order*, the Commission requested comment on
    whether to allow a new licensee to use the spectrum for private use
    and also to provide a common carrier service.[^153] We did not
    receive any comments on this issue. The Commission concluded in the
    *Report and Order and Second NPRM* that it should permit licensees
    in the 39 GHz band to serve either as a common carrier or as a
    private licensee.[^154] It reasoned that this approach would promote
    economic efficiencies by reducing construction and operating costs
    associated with having to provide separate facilities.[^155] We
    tentatively conclude that the same benefits could apply to the 37/42
    GHz bands, and, accordingly, we propose the same approach here. We
    propose to allow those licensees who select common carrier
    regulatory status to provide private service, and those licensees
    who select private service regulatory status to share the use of
    their facilities on a non-profit basis or offer service on a
    for-profit, private carrier basis[^156] subject to Section 101.135
    of our rules.[^157] We also propose to allow licensees who select
    private regulatory status to lease excess capacity to common
    carriers in accordance with Part 101.603 of our rules.[^158]
    Licensees would elect the status of the services they wish to offer
    and would be governed by the rules applicable to their status.[^159]
    The Commission tentatively concludes that this approach would
    promote economic efficiencies by reducing construction and operating
    costs associated with having to provide separate facilities.[^160]
    We seek comment on these proposals.

### Foreign Ownership Restrictions

53. [Background.]{.underline} Foreign ownership and citizenship
    requirements for 37/42 GHz band licensees are set out in Sections
    310(a) and 310(b) of the Communications Act, which restrict the
    issuance of licenses to certain applicants.[^161] Section 310(a)
    prohibits any foreign government or representative from holding a
    station license. Section 310(b) prohibits certain defined foreign
    ownership interests in common carrier licenses. Section 101.7(a) of
    the Commission's rules implements Section 310 of the Act[^162] and
    prohibits the granting of any license to a foreign government or its
    representative.[^163] Section 101.7(b) prohibits the grant of a
    common carrier license to an applicant who fails any of the four
    citizenship requirements listed therein.[^164]

54. [Discussion]{.underline}. We propose to apply Section 101.7 of our
    rules to the 37/42 GHz band. As the Commission has done in the case
    of Multipoint Distribution Service ("MDS"), satellite services,
    Local Multipoint Distribution Service ("LMDS") and the 24 GHz
    proceeding, we would require an applicant electing non-common
    carrier status also to submit the same information that common
    carrier applicants must submit in order to address the alien
    ownership restrictions under Section 310(b) of the Act.[^165]
    Because we propose that 37/42 GHz band licensees be permitted to
    offer both common and non-common carrier services, we believe such a
    requirement will be necessary to enable us to ascertain compliance
    of all 37/42 GHz band licensees with the alien ownership
    restrictions set out in Section 101.7 of our rules. This information
    could be used whenever the licensee changes to common carrier status
    without imposing an additional filing requirement when the licensee
    makes the change.[^166] We note, moreover, that we would not
    disqualify an applicant requesting authorization exclusively to
    provide non-common carrier service from obtaining a 37/42 GHz band
    license solely on the basis that its citizenship information would
    disqualify it from receiving a common carrier license.

55. Accordingly, we propose to require common carrier and non-common
    carrier licensees in the 37/42 GHz bands to provide the alien
    ownership information requested by FCC Form 601. We also propose to
    require common carriers and non-common carriers to amend their FCC
    Form 602 to reflect any changes in foreign ownership information. We
    seek comment on these proposals.

## Technical Rules

56. In general, we believe that the technical rules that apply to the 39
    GHz band would be appropriate for the 37/42 GHz bands if we decide
    to adopt a geographic area licensing approach. It would be necessary
    to develop a different set of standards if we decide to follow the
    70/80/90 GHz model. Because the physical characteristics of the
    70/80/90 GHz and 37/42 GHz bands differ significantly from each
    other, it would not be appropriate to the apply the 70/80/90 GHz
    technical rules to the 37/42 GHz bands.[^167] We seek comment on
    these general conclusions, and specific advice with respect to
    technical rules that would be appropriate if we adopt the 70/80/90
    GHz model.

57. For the 39 GHz band, the Commission declined to apply a frequency
    tolerance standard that determines how accurately a transmitter must
    stay on its center frequency. It concluded that such a standard was
    unnecessary in light of the other interference safeguards in our
    rules, and that it would place detrimental limitations on the
    development of 39 GHz service.[^168] We propose not to adopt a
    frequency tolerance standard for the 37/42 GHz bands if we adopt a
    geographic area licensing framework, based on the same reasoning
    that we followed when establishing the 39 GHz rules. Moreover, we
    believe that the existing out-of-band emission requirements
    contained in Section 101.111 of our rules would also be sufficient
    to prevent harmful interference to licensees in adjacent areas and
    thus further obviate the need for a frequency tolerance standard in
    the 37/42 GHz bands.[^169] That emission rule requires that the
    frequencies at the outer edges of an assigned channel or the edges
    of aggregated channels must be significantly reduced such that
    interference to adjacent channels is unlikely.

58. With respect to setting a spectrum efficiency standard, many
    commenters argued that there is no reason to impose spectrum
    efficiency rules,[^170] but others supported a minimum efficiency
    test.[^171] The Commission concluded that setting a mandatory
    spectrum efficiency standard in the 39 GHz band could harm the
    development and growth of the 39 GHz service by imposing costs in
    excess of any benefit, particularly given that such a rule would
    require updating as the technology advanced.[^172] The Commission
    also noted that as a general matter, whenever spectrum is
    exclusively assigned and licensees cannot expect to obtain
    additional spectrum at a price significantly below its market value,
    a mandatory efficiency standard is unnecessary and licensees can be
    expected to invest voluntarily in efficient technology up to the
    optimal economic level, so a mandatory standard either would have no
    effect (if it is at or below the voluntary level) or would impose
    unjustified costs that exceed any resulting gain.[^173] We
    tentatively conclude, for the same reasons, that a spectrum
    efficiency standard in the 37/42 GHz bands would be unnecessary if
    we adopt a geographic area licensing model, and therefore, do not
    propose to adopt such a standard under that approach. However, we
    invite comment on any spectrum efficiency standards that might be
    appropriate if we adopt a *70/80/80 GHz*-style framework or other
    regulatory structures.

59. In the *Report and Order and Second NPRM,* the Commission proposed
    to permit licensees to use various types of antennas in the 39 GHz
    band.[^174] The Commission had proposed restrictions on antenna use
    in the *First NPRM and Order,*[^175] but commenters generally
    averred that requiring licensees to use only Category A antennas is
    too restrictive.[^176] Thus, the Commission concluded that 39 GHz
    licensees should have the flexibility to employ antennas other than
    Category A types, because parties were contemplating a variety of
    system configurations that would require different types of
    antennas, characteristics of which are incompatible with the
    Category A standards.[^177] The Commission provided that, should the
    use of an antenna other than a Category A model become the source of
    an interference problem, it would require that the licensee
    immediately resolve such interference by replacing the antenna with
    a Category A model or one with better performance
    characteristics.[^178] Also in the *First NPRM and Order*, the
    Commission decided to propose a maximum equivalent isotropically
    radiated power ("EIRP") of +55 dBW for the 39 GHz band.[^179]
    Commenters generally supported this proposal.[^180] The uses of the
    39 GHz and 37/42 GHz bands would probably be similar if we issue
    EA-wide licenses and allow point-to-multipoint operations, which
    often require antennas with wide patterns. We tentatively conclude
    that the same flexibility would be appropriate for the 37/42 GHz
    bands if we issue geographic area licenses. Therefore, we propose a
    maximum EIRP of +55 dBW for the 37 GHz band if we issue exclusive EA
    licenses. We seek comment on this proposal and recommendations for
    alternative approaches, especially with respect to rules that would
    be appropriate if we adopt a 70/80/90 GHz-style approach.[^181]

## Band Plan

60. As noted above, we believe that the service rules for the 37/42 GHz
    bands generally should conform to the rules for the 39 GHz band if
    we adopt geographic licensing, given the similarity in anticipated
    uses and propagation characteristics. With regard to some matters,
    however, differences in spectrum allocations[^182] and developments
    subsequent to the adoption of the 39 GHz rules persuade us to
    propose different rules and procedures, on which we now seek
    comment.

61. In the *First NPRM and Order*, the Commission proposed dividing the
    37.0-38.6 GHz band into fourteen 50 megahertz paired channels (a
    total of 1400 megahertz with a 700 megahertz separation between the
    transmit and receive frequencies) and four 50 MHz unpaired channels
    (a total of 200 megahertz), with licensees having the discretion to
    disaggregate their channel blocks as they deem appropiate.[^183] The
    Commission proposed to place the unpaired channels at the upper end
    of the 37.0-38.6 GHz band, with the paired channels beginning from
    the lower end of the band.[^184] Most commenters supported this
    placement. The Commission tentatively found that the 50 megahertz
    channel plan would provide for efficient and effective use of the
    band for point-to-point operations by a variety of potential
    broadband users, *e.g.*, PCS, cellular, and other commercial and
    private mobile radio operations.[^185] The Commission based this
    conclusion, in part, on the commonality of that channel plan with
    the channel plan for the 39 GHz band, which would permit
    manufacturers to provide lower cost equipment quickly for both
    bands.[^186] The majority of commenters supported this plan.[^187]

62. Since the Commission began this proceeding, the allocation for the
    37/42 GHz band has evolved.[^188] For instance, the Commission
    recently added an FSS allocation to the 37.5-37.6 GHz band but
    applied specific PFD limits to FSS operations in the entire
    37.5-40.0 GHz band, to protect terrestrial FS and other licensees,
    and required FSS operators to coordinate with Space Research Service
    ("SRS") systems in the 37-38 GHz band.[^189] Moreover, the
    Commission adopted criteria to protect the Goldstone, California SRS
    facility from FSS downlink transmissions.[^190] In the "*36-51
    Second R&*O," we stated that we would seek comment in this
    proceeding on methods to mitigate the potential interference that
    may be caused by commercial fixed and mobile stations operating near
    the Goldstone SRS facility.[^191] We also stated that we would seek
    comment on whether to adopt a footnote to the Table of Allocations
    modeled after Footnote US311, which addresses circumstances similar
    to this situation. Footnote US311 establishes an 80 km (50 mile)
    radius around the Goldstone SRS facility in which the Commission
    endeavors to avoid the assignment of frequencies in the 1350-1400
    MHz and 4950-4990 MHz bands to stations operating in the fixed and
    mobile services.[^192] If we do adopt a footnote to the Table of
    Allocations, we propose to place this requirement in Section 101.103
    of our rules, as well. We seek comment on this coordination
    method.[^193]

63. The Commission received a letter from NTIA concerning this
    proceeding.[^194] In its letter, NTIA indicates that the frequency
    bands 37.0-37.5 GHz and 40.0-40.5 GHz were identified in the *Space
    Exploration Initiative of 1989* for use by space research systems to
    be implemented in support of US goals to provide a permanent manned
    present in Earth orbit (on or near the moon) and to initiate manned
    exploration of the planet Mars.[^195] The letter states that WARC
    1992 resulted in allocations of these bands for space-to-Earth links
    in the 37.0-37.5 GHz band and for Earth--to-space links in the
    40.0-40.5 GHz band as well as 37-38 GHz for use by space research
    systems to be implemented in support of Very Long Baseline
    Interferometry (VLBI) by satellite.[^196] The letter further states
    that when operating manned spacecraft over distances as far removed
    from Earth as Mars, it might be necessary to combine the received
    signals simultaneously from more than one receiving site, e.g.
    Goldstone, CA, and Socorro, NM, in order to achieve mission
    objectives.[^197] For those reasons, NTIA proposes that five sites
    be protected in addition to Goldstone, California and Green Bank,
    West Virginia, even though those five sites are not yet operational
    in these bands.[^198] The additional sites that NTIA proposes to
    protect are located at Guam; Merritt Island, Florida; Wallops
    Island, Virginia; and White Sands and Socorro, New Mexico.[^199]
    NTIA also indicates that it would accept -130 dBW/m^2^ in any 1 MHz
    band as the interference protection criteria from non-Federal
    government terrestrial users in the 37-38 GHz to its earth stations
    at Goldstone, Socorro, Green Bank, Guam, Merritt Island, and Wallops
    Island, and White Sands.[^200] However, the Commission can not
    determine from NTIA's letter where this criteria is applied, but we
    assume NTIA meant at the boundary (for exmple, a circle with a 30 km
    radius or at the edges of a rectangular area) and not at the actual
    coordinate.

64. The Commission has also received information in the "*NTIA Letter"*
    indicating that the Federal government has future requirements for
    protection of fourteen military sites within a 30 km radius of each
    site (except for China Lake which is a rectangular area), and that
    it may have additional locations in the future.[^201] None of these
    fourteen sites are built or operational, and protecting sites that
    are not yet operational would be a significant change from the
    traditional first-in-time policy that we are advocating in these
    co-primary bands. We propose that these sites are for information
    only and that they do not require our licensees to protect them
    until they become operational. The proposed sites are located at:
    China Lake, CA (actually a rectangular area); San Diego, CA;
    Nanakuli, HI; Fishers Island, NY; St. Croix, VI; Ft. Irwin, CA; Ft.
    Carson, CO; Ft. Hood, TX; Ft. Bliss, TX; Yuma Proving Grounds, AZ;
    Ft. Huachuca, AZ; White Sands Missile Range, NM; Moody Air Force
    Base, GA; and Hurlburt Air Force Base, FL.[^202] We discuss these
    NASA and military sites and concerns further below.

65. Due to the evolution of the 37/42 GHz bands, we are not certain that
    the industry and public desire to have the same 50 megahertz channel
    plan as the Commission adopted for the 39 GHz band and proposed for
    the 37 GHz band, and as we propose herein for the 42 GHz band as
    well. Nor are we confident that the industry wishes to retain the
    location of the unpaired channels near the upper portion of the
    37.0-38.6 GHz band. It is also possible that potential licensees
    would prefer that we impose no specific channel plan. Accordingly,
    we believe we should re-examine this matter and seek additional
    comment on the most appropriate band plan for these frequency bands.

66. Given the parameters of the 37/42 GHz bands, we could adopt a
    channel plan that closely parallels the 39 GHz band if we adopt
    geographic licensing.[^203] However, it may be easier or more
    beneficial to manufacture equipment if the paired channels are
    contiguous instead of being separated by unpaired channels. We also
    note that the record on this issue is now more than six years old.
    Thus, we seek comment on whether to place the unpaired channels at
    the lower end of the band, 37.0-37.2 GHz, and thus place paired
    channels from 37.2 GHz contiguously through 40.0 GHz,[^204] instead
    of placing the unpaired channels between the two paired bands at
    38.4-38.6 GHz as originally proposed. This proposal would co-locate
    the unpaired channels in the 37-38 GHz range with the Federal
    Government's SRS, which may facilitate system planning because it
    may be easier to share and coordinate one-way spectrum with the
    Federal Government SRS than two-way spectrum where users must
    coordinate both frequencies. This plan would leave the 500 megahertz
    of spectrum from 42.0 GHz to 42.5 GHz available for five 50
    megahertz paired channel separated by 250 megahertz.

67. Another possibility is to pair some of the channels in the 37.0-38.6
    GHz portion with some of the channels in the 42.0-42.5 GHz portion.
    However, this plan may not be desirable because it is difficult to
    manufacture radios with such a large difference in frequencies and
    it thus would create other burdens such as requiring two separate
    radios and two different antennas due to the large spacing (about
    5000 megahertz) between the frequency bands. We also could allocate
    channel sizes of 30 or 40 megahertz or even smaller. Perhaps smaller
    channels might allow for smaller businesses and private entities to
    effectively compete for spectrum needed for more limited
    applications without needing to obtain a larger amount of spectrum
    that would require substantial outlays of initial investment.[^205]
    At the same time, entities with larger demands would be able to bid
    on the smaller contiguous channels if they so desire and aggregate
    the smaller spectrum channels into larger ones.

68. Not having a specific channel plan may allow licensees more
    flexibility regarding the use of the spectrum, the services they
    would provide, and the technologies they would use,[^206] but we are
    concerned that the lack of an established channel plan might also
    deter the development and manufacture of equipment for the 37/42 GHz
    bands because of the various market uncertainties and the lack of
    economies of scale. Therefore, we seek comment on whether we should
    channelize the 37/42 GHz bands, and, if so, what channel framework
    and bandwidth would be appropriate. We seek comment on whether the
    benefits of allowing licensees to adopt any channel framework they
    choose outweighs the potential drawbacks. We also seek comment on
    whether, if we adopt a channel plan, we should permit disaggregation
    only by paired channels. As in other sections of this NPRM, we ask
    that commenters indicate whether different requirements should apply
    if we adopt a 70/80/90 GHz-style approach.

## Coordination among Terrestrial Stations in the Fixed Service in the 37.0-40.0 GHz and 42.0-42.5 GHz Bands 

69. In the *First NPRM and Order*, the Commission proposed to require
    37.0-38.6 GHz and 39 GHz licensees to follow the frequency
    coordination process set out in Section 101.103(d) of our
    rules,[^207] and proposed to establish a maximum power flux density
    ("PFD") or field strength limit at licensees' geographic
    boundaries.[^208] In response, the National Spectrum Management
    Association ("NSMA") explained that it had not completed an
    interference study concerning maximum field strength and PFD
    limits.[^209] In the *Report and Order and Second NPRM,* the
    Commission adopted interim frequency coordination procedures in
    order to facilitate coordination between 39 GHz band licensees
    licensed in adjoining areas, but declined to establish final rules
    concerning maximum field strength or PFD limits pending the results
    of the NSMA study.[^210] Specifically, the Commission decided to
    continue to use the frequency coordination procedures in Section
    101.103(d) with the following modifications: (1) neighboring
    co-channel and adjacent channel licensees must coordinate only
    within 16 kilometers of an adjacent service area boundary, and (2)
    licensees that receive coordination notifications must respond
    within ten days as opposed to the normal thirty days.[^211]

70. Later, the Commission issued new coordination requirements for the
    24 GHz service, which are similar to the coordination requirements
    for the 39 GHz band.[^212] The Commission eliminated the specific
    distance coordination requirement for the 24 GHz band, and instead
    required stations that have optical line of sight[^213] into an
    adjacent area to contact the relevant licensee regarding mutually
    agreeable coordination of facilities.[^214] In addition, the
    Commission completed two bilateral agreements on coordinating the 24
    GHz, 28 GHz (LMDS), and 39 GHz frequency bands with Canada ("the
    Canadian Agreements").[^215] In these two agreements, the factor
    used to determine whether coordination is required is predominantly
    by a PFD at the border between the two countries. The PFDs accepted
    in these agreements were -114 dBW/m^2^ in any 1 megahertz band for
    both 24 GHz and 28 GHz, and -125 dBW/m^2^ in any 1 megahertz band
    for 39 GHz.

71. We now tentatively conclude that instead of specifying a fixed
    distance and having two requirements for coordination (the 16
    kilometer distance and the PFD level in the Canadian Agreements), a
    general coordination requirement utilizing the PFD value set out in
    the Canadian Agreements for 39 GHz of -125 dBW/m^2^ in any 1
    megahertz band would be more appropriate for the 39 GHz and 37/42
    GHz bands. We propose to require 39 GHz and 37/42 GHz band licensees
    to coordinate when their facilities (antennas) have optical
    line-of-sight into another licensee's geographic area.[^216] This
    line of site should take into consideration all the possible
    relevant heights of the other licensee's antenna(s). The rule would
    also protect the operations of 39 GHz incumbent licensees'
    rectangular service areas within the same auctioned EA.[^217] This
    proposal allows for blockage due to mountains or other terrain. If
    the licensee's system (antenna) has optical line of sight but the
    PFD generated at the boundary of another licensee's geographic area
    (or, if in the same geographic area due to an incumbent) at the
    other licensee's facility is below the level of -125 dBW/m^2^ in any
    1 megahertz band, coordination would not be necessary. Further, we
    propose to require such coordination for co-channel 39 GHz licensees
    and 37/42 GHz licensees in adjacent geographic areas or in the same
    geographic areas in the case of aggregation, disaggregation or
    partitioning.[^218] Under our proposal, adjacent and co-channel
    coordination would have to be completed successfully before
    operation can commence.

72. In the event that no 39 GHz or 37/42 GHz licensee exists in an
    adjacent area or has not yet deployed stations in an adjacent area
    (or in the same geographic area in the case of partitioning), we
    propose that the first-mover licensee be allowed to construct and
    operate facilities without coordination. Both the first-mover and
    the second-mover licensees eventually would have to coordinate their
    stations before the second mover's stations are deployed, in order
    to achieve mutual accommodation of the licensees' rights and to
    ensure cooperative and effective use of the spectrum in each area.
    If existing facilities are operating above -125 dBW/ m^2^ in any 1
    megahertz level, we propose that its owner-licensee be required to
    lower its facilities to accommodate the licensee in the adjacent
    area unless the two licensees otherwise reach an agreement. We
    believe that such a coordination procedure would be superior to the
    specific, 16-kilometer fixed distance interim procedure adopted for
    the 39 GHz band, because it provides flexibility and can be adopted
    for any frequency range, environment or terrain conditions where the
    principal mode of interference is line-of-sight or
    near-line-of-sight propagation. This method could allow licensees
    the flexibility of determining their own coordination parameters
    between areas while not limiting industry groups such as NSMA from
    proposing a uniform set of standards. We also request comment on
    whether a PFD or field strength limit at a licensee's geographic
    area boundaries or facilities, when in the same geographic area,
    would facilitate the growth and development of the 37/42 GHz bands
    as well as the 39 GHz band.

73. In addition, we propose that 37/42 GHz licensees follow the
    technical criteria set out in the agreement reached with Canada for
    39 GHz until such time as the United States can establish a formal
    or informal agreement with Canada on coordinating the 37/42 GHz
    bands. We also propose that 39 GHz and 37/42 GHz licensees follow
    the same technical criteria along the border with Mexico until a
    formal or informal agreement can be reached with Mexico. Licensees
    are required to comply with whatever formal agreements are reached
    with Canada and Mexico.

74. Because we propose to allow flexible bandwidths in the 37/42 GHz
    bands, one licensee may have a bandwidth of, *e.g.,* 25 megahertz
    while another may use 150 megahertz. The calculation for emission
    limitations needs to be adjusted accordingly, because there may not
    be a standard "authorized bandwidth maximum."[^219] We have proposed
    under Section 101.109 of the rules to set the maximum bandwidth at
    50 megahertz for 37/42 GHz, consistent with 39 GHz, irrespective of
    the actual bandwidth used. This proposal means that licensees would
    limit the emissions at the channels' edges using a value of 50
    megahertz for B in the equations under Section 101.111 even if they
    were to use channels larger or smaller than 50 megahertz. We seek
    comment on how to adjust the emission limitations in Section 101.111
    of our rules, if at all. We seek comment on these proposals.

## Coordination among Fixed Service Terrestrial Stations and Fixed-Satellite Service Satellite Earth Stations in the 37.5-40.0 and 42.0-42.5 GHz Bands 

75. In the *Memorandum Opinion and Order* adopted in the 39 GHz
    proceeding, the Commission maintained the possibility for satellite
    operators to gain access to the 39.5-40.0 GHz band.[^220] While
    rejecting TRW's request to reallocate the 39.5-40.0 GHz band
    exclusively for satellite services, the Commission nonetheless
    recognized that the existing allocation includes satellite services
    in the band and stated that entities with terrestrial wireless
    licenses would not be constrained from deploying satellite earth
    stations in the band.[^221] The Commission determined that satellite
    operators would be free to provide service either through a
    terrestrial wireless geographic area license won at auction pursuant
    to Part 101 of the Commission's rules or through a post-auction
    arrangement reached with the winning bidder of a terrestrial
    license. The Commission clarified that a provider of satellite
    services in the 39.5-40.0 GHz band also would be required to obtain
    a license pursuant to Part 25, which governs satellite
    communications.[^222] In the *Further Notice of Proposed Rulemaking*
    to establish the "soft segmentation" approach in the 37.5-40.0 GHz
    and 42.0-42.5 GHz band, the Commission proposed to apply the same
    coordination requirements to Part 101 FSS earth stations licenses
    that apply to the fixed wireless service in the 39 GHz band.[^223]
    The coordination requirements are specified in Section
    101.103(i)(1). Specifically, the Commission sought comment on how it
    should apply its Part 101 Rules governing certain portions of the
    36.0-51.4 GHz band to future operations of FSS earth stations where
    Part 101 EA licensees have blanket authority to construct and
    operate FS stations in a specified EA.[^224] Furthermore, incumbent
    Part 101 licensees have similar rights in their licensed areas,
    which are generally rectangular in shape and are defined based on
    the individual service requirements of the licensee. The Commission
    has stated that satellite earth station licensees "may eventually be
    afforded opportunities to use the spectrum designated for wireless
    services, consistent with the U.S. Table of Frequency Allocations,"
    and the Wireless Bureau has addressed precisely how the Part 101
    Rules would be applied to a satellite earth station licensee that
    obtains a Part 101 license.[^225] We now seek further comment on the
    appropriate method to coordinate satellite earth stations that
    receive signals from satellites transmitting in the 37.5-40.0 GHz
    band with terrestrial fixed stations.

76. Under the current rules, an FSS earth station applicant may obtain
    authority to operate within the 39 GHz band by securing a Part 101
    EA license through competitive bidding or through partitioning in an
    area in which it wants to operate its earth station.[^226] An FSS
    earth station operator also can apply for a Part 25 license,
    provided that the earth station applicant has secured an agreement
    with all affected Part 101 licensees prior to filing an application.
    To address interference concerns, the Commission proposed to apply
    to earth stations the same coordination rules that apply to
    terrestrial stations operating under Part 101 of our rules.[^227]
    Under this proposal, and according to the FS rules explained above,
    a Part 101 earth station licensee would be required to coordinate
    all earth stations located within 16 km of the boundary of its Part
    101 licensed area. An earth station would not receive interference
    protection from other Part 101 EA licensed stations that are further
    than 16 km from its EA boundary. Likewise, a terrestrial fixed
    station Part 101 licensee in another EA would be required to
    coordinate all of its proposed stations within 16 km of the boundary
    of its licensed area with all FSS earth stations within 16 km of the
    boundaries of adjacent areas. In the case of an FSS earth station
    operating in an EA under agreement with the Part 101 EA licensee of
    that area, the affected parties would address the resolution of any
    interference between the earth station and stations of the EA
    licensee or incumbent self-defined areas under the terms of their
    agreement.

77. As with terrestrial fixed coordination, the sufficiency of the 16 km
    coordination distance remains debatable, and current licensing
    policy in the 24 GHz Service favors replacing the coordination
    distance with a PFD coordination trigger.[^228] We propose to apply
    the same coordination trigger to Part 101 earth station licensees in
    the 37.5-40.0 GHz and 42.0-42.5 GHz bands as the trigger that we
    have proposed for terrestrial stations in the fixed service in the
    same bands, based upon the PFD level in the Canadian Agreements so
    that terrestrial coordination parameters are the same
    everywhere.[^229] In that manner, earth station licensees will not
    be conveyed greater rights than terrestrial stations and will not be
    able to claim interference from fixed terrestrial stations at
    distances greater than the fixed terrestrial stations can.
    Specifically, Part 101 earth station licensees are required to
    coordinate with existing terrestrial stations when there is optical
    line of sight between the earth station and an existing terrestrial
    station in the same or adjacent geographic area, and terrestrial
    stations in the fixed service are required to coordinate with a Part
    101 earth station licensee when a terrestrial station exceeds the
    threshold PFD level of -125 dBW/m^2^ in any 1 megahertz band at the
    boundary of the Part 101 earth station licensee's geographic area.
    Here, we seek comment on whether to apply either the 16 km distance
    or the PFD standard to earth stations in the 37.5-40.0 GHz and
    42.0-42.5 GHz bands for the geographic area licensing
    approach.[^230] We also seek comment on standards that would be
    appropriate if we adopt a 70/80/90 GHz-style framework or other
    approach for 37/42 GHz.

## Fixed Satellite Earth Station Operators That Obtain Part 101 Licenses or Agreements in the 37/42 GHz Band.

78. Generally, we regulate satellite earth stations under Part 25 of our
    rules. In this regard, we note that we must take further action
    under Part 25 of our rules before FSS earth stations can operate and
    receive signals in the 37.5-40.0 GHz and 42.0-42.5 GHz bands. This
    section concerns FSS entities that seek to obtain terrestrial
    licenses in the 37/42 GHz band in accordance with the Commission's
    Part 101 rules.

79. We note that FSS licensees may construct earth stations with
    technical characteristics that vary significantly from those of Part
    101 terrestrial licensees. Satellite earth stations may obtain
    certain frequency rights within an operational area either by
    competitive bidding for a geographic area license (and become a Part
    101 licensee), or by obtaining an agreement with an existing
    geographic area licensee.[^231] Because we have designated the
    spectrum below 40.0 GHz for wireless services, we concluded that
    some type of restriction should be placed upon the type of earth
    station that will receive protection from interference in the
    37.5-40.0 GHz band,[^232] and the Commission further concluded that
    FSS earth stations in this portion of the spectrum should be limited
    to "gateways."[^233]

80. At present, the U.S. does not have any fixed satellite service
    allocation in the 42.0-42.5 GHz band. The International Table of
    Allocations does have an FSS allocation in this band.[^234]
    Licensees in the 42.0-42.5 GHz band should be aware that satellites
    may be allocated to the 42.0-42.5 GHz band in the future and further
    coordination procedures would need to be developed at that
    time.[^235]

81. We propose that all 37/42 GHz FSS earth stations that obtain a Part
    101 geographic area license through competitive bidding or other
    license option must comply with the same coordination and buildout
    criteria as terrestrial licensees and with the Part 101 rules
    governing the operation of the 37/42 GHz band.[^236] With regard to
    the buildout requirements, a Part 101 licensee, whether providing
    terrestrial or FSS earth station operations in its EA, would
    demonstrate substantial service at the time of its license
    renewal.[^237] A licensee may satisfy Part 101 buildout requirements
    through the operation of satellite earth stations. FSS earth station
    licensees that only obtain a Part 25 license and operate through an
    agreement with an existing FS Part 101 licensee[^238] would only be
    subject to the construction requirements of Part 25.

82. While we believe that these proposals are appropriate in the context
    of geographic area licensing, for the 37/42 GHz bands different
    rules might be required if we adopt a link-by-link site registration
    process with nationwide licenses. We seek comment on these proposals
    and suggestions for other rules that might be appropriate depending
    upon circumstances.

## Sharing & Coordination Between Non-Federal Government and Federal Government Services at 37.0-38.6 GHz and 39.5-40.0 GHz

83. The Commission has been negotiating with the National
    Telecommunications and Information Administration ("NTIA") on
    sharing and coordination between the non-Federal government and
    Federal government stations in this band. These negotiations were
    generally premised on the assumption that we would apply the same
    kind of regulatory framework to the 37/42 GHz bands as we have
    applied to the 39 GHz band, i.e., geographic area licensing.
    However, independent of the licensing approach that the Commission
    chooses for these bands, the basic coordination procedures with NTIA
    will be the same because they are based on a site-by-site method.
    Comparable procedures could be applied if we adopt a 70/80/90 GHz
    model with a nation-wide license and individual registration of
    sites, though under that approach our proposals might need to be
    modified to take into account the differing roles to be played by
    third-party non-Federal government database managers and how they
    would exchange data with NTIA.

84. The following are the procedures that we propose for implementing
    the necessary rules and process. Sharing between non-Federal
    government and Federal government users in the 37.0-38.6 GHz and
    39.5-40.0 GHz bands would follow a \"first-in-time\" principle for
    co-primary services. This means that stations of a co-primary
    service would not be allowed to cause harmful interference to
    stations of other co-primary services to which frequencies are
    already assigned and properly authorized. Existing stations would be
    entitled to claim protection from harmful interference from other
    co-primary stations assigned at a later date. Last-filed stations
    would have the burden of relieving the harmful interference.

85. Consistent with Section IV(6) of the Memorandum of Understanding
    ("MOU") between the Commission and NTIA, dated January 31, 2003, the
    Commission and NTIA would maintain current lists of their authorized
    frequency assignments on the Universal Licensing System ("ULS") and
    the Federal government Master Frequency File ("GMF"), respectively,
    in the 37.0-38.6 GHz band, including site-based facilities, and
    exchange such information as appropriate to coordinate spectrum
    use.[^239] The site-based coordination procedures proposed here
    involve the Interdepartment Radio Advisory Committee ("IRAC") and
    contacts between our licensees and Federal government agencies
    through the Commission, which represents the non-Federal government
    facilities, and the NTIA, which represents the Federal government
    agencies. Problems would be referred by the Commission back to its
    licensees/applicants and by the NTIA to Federal government agencies
    for resolution. Consistent with the *FCC/NTIA MOU*, Sections IV (3)
    & (4), cooperation, timely resolution, and notice by the Commission
    and the NTIA would govern final action.

86. We propose that non-Federal government operators/licensees in the
    37.0-38.6 GHz frequency band be responsible for maintaining
    databases of their fixed stations, including sufficient data for
    other licensees, coordinators, and the Federal government to make a
    determination of potential interference. This information would also
    be useful for coordination with adjacent area operators and for
    formulating sharing agreements. Non-Federal government licensees
    would have the option of maintaining their own databases for their
    facilities or of selecting third-party database managers, frequency
    coordinators, or other entities (collectively \"database manager\")
    to maintain their database of facilities. The database manager would
    be responsible to the licensee and would share the technical data
    with the Commission and other database managers as needed for proper
    coordination, and retain records of the coordination agreements with
    other parties. All coordination agreements would remain in force in
    the event the licensee transfers its license, partitions its service
    area, or disaggregates its spectrum, until new agreements are
    reached.

87. We also propose that, upon request, the non-Federal government
    operators/licensees be required to make available all necessary
    technical database information to the Commission in a timely and
    convenient manner sufficient for resolving interference complaints
    with NTIA in the event of disputes. In addition to maintaining their
    own databases, the non-Federal government licensees would be
    required to register their technical data electronically into the
    ULS for each station in their authorized service areas in order to
    make available accurate information on the use of the facilities and
    also to implement the \"first-in-time\" principle for coordination
    with Federal government facilities. This data should include: 1) the
    date of the initial operating capability ("IOC") of each station, 2)
    specific information identifying the station locations, 3) technical
    operating capabilities of the stations, including all of the power
    and antenna characteristics specified in Section 101.103(d)(2)(ii)
    of our rules, and 4) whether the station has optical line-of-site to
    another facility with which it is being coordinated, if known at the
    time. This site-based information would be entered into the record
    of the area license in the ULS database by electronically
    registering notifications to the initial Commission Form 601 using
    Schedule I, but not more than twelve (12) months before operations
    are scheduled to begin.

88. Further, we propose that the regular fee schedule for microwave
    services would apply to all requests, applications and licenses,
    except as noted below. Licensees would be required to follow
    existing practices and precedents regarding fees associated with
    initial licenses, and to file notifications in the ULS to supply the
    technical information needed to coordinate each station with Federal
    government facilities. The Commission would require no additional
    filing or regulatory fees for the registering of notifications of
    additional technical information, if the technical information
    entered into the ULS is only needed for coordination with Federal
    government facilities. When revisions to ULS are developed for
    adding the capability to handle licensees in the 37.0-38.6 GHz band,
    the capability to collect this additional site-based information for
    notifications would be added to the capability to handle \"initial\"
    auction winners as licensees.

89. For geographic area licensees, notification and response for
    site-by-site coordination for these stations would require
    variations in the general coordination procedures as given in
    Section 101.103 of our rules, which otherwise generally applies. We
    propose that geographic area licensees select site frequencies
    within their assigned blocks of spectrum and initiate the
    coordination process by notifying the other parties with whom they
    must coordinate. Presently the Federal government does not have any
    authorized and operating stations in the 37.0-38.6 GHz band, but
    does want to be able to operate future stations if a need arises.
    Because NTIA has agreed to encourage federal agencies to satisfy
    their fixed and mobile requirements through commercial services, or
    by using the 36.0-37.0 GHz and 42.5-43.5 GHz bands,[^240] we do not
    anticipate that the Federal government will add many stations in the
    37.0-38.6 GHz band. Registrations of licensee sites on Schedule I of
    Form 601 must include, in addition to the relevant technical details
    as shown in Section 101.103(d)(2)(ii), the licensee's determination
    of whether possible optical line-of-site exists to relevant (future)
    Federal government facilities.[^241] If it determines that optical
    line-of-site does not exist, the applicant should explain the
    determination. The Commission would note the activation date of the
    station, but would not make a determination that any of the
    information is correct or acceptable for filing. Coordination
    involving existing and future Federal government facilities would
    require licensees and applicants to ensure that their data is
    accurately reflected in the ULS.

90. New Federal government stations in the 37.0-38.6 GHz band should be
    coordinated consistent with these procedures. We anticipate that the
    Federal government will maintain its own database of facilities and
    coordinate through the Commission. The Commission will rely on the
    data in ULS supplied by our licensees/applicants to conduct
    coordination, but may also need to contact the licensee(s) for
    specific information concerning protection from the Federal
    government facilities. Federal government operators with facilities
    in the 37.0-38.6 GHz band should cooperate in the coordination
    process by responding to non-Federal government coordination
    notifications from the Commission. Federal government operators with
    new stations to coordinate can identify and directly access the
    technical information of the non-Federal government licensees
    through the ULS. Examining the data in the ULS before formally
    coordinating with the Commission in the appropriate frequency band
    and geographic service area may speed up the frequency selection
    process. Federal government operators with new stations should
    notify the Commission through the IRAC process with sufficient
    technical detail to determine whether potential interference is
    possible with facilities of our licensees/applicants.

91. Again, we emphasize that these proposals were negotiated on the
    assumption that we would be applying a 39 GHz-style geographic area
    licensing approach to the 37/42 GHz bands. We seek comment on these
    proposals, and in particular we seek comment on modifications that
    would be required if we decide to apply a 70/80/90 GHz-style
    link-by-link registration approach.

### Non-Federal Government Operations Coordinating with Existing Federal Government Operations

92. We propose that non-Federal government terrestrial users in the band
    37.0-38.6 GHz, and also operators who wish to protect an FSS
    (downlink) earth station in the band 37.5-38.6 GHz, be required to
    coordinate only with existing and operational Federal government SRS
    (downlink space research antennas in the 37-38 GHz band) at
    Goldstone, California, and Green Bank, West Virginia, by contacting
    the Federal Points of Contact for Frequency Coordination identified
    in Appendix C for these two facilities and obtain letters of
    approval for their operations as is presently done for Greenbank
    under 1.924(a)(1) of our rules.[^242] We also propose that the
    coordination triggers for non-Federal government terrestrial
    stations be whether they are to be located within 80 km of the
    coordinates for Goldstone, California[^243], or within the
    rectangular area given for Green Bank, West Virginia. We propose
    that the interference protection criterion for these earth station
    facilities is -130 dBW/m^2^ in any 1 MHz band at the relevant
    boundary.[^244] Non-Federal government terrestrial users in the band
    37.0-38.6 GHz, and also operators who wish to protect an FSS
    (downlink) earth station in the band 37.5-38.6 GHz, are also
    required to coordinate with the existing terrestrial Federal
    government facilities in 37.0-38.6 GHz (no stations presently exist)
    through the ULS and IRAC process. The proposed coordination triggers
    for non-Federal government stations are that the antenna must have
    optical line-of-sight to the Federal government terrestrial
    facilities, as discussed in paragraphs \[**71-72 and 77-77\],**
    *supra*, and that the PFD at the site exceed a threshold of -125
    dBW/m^2^ in any 1 MHz band. Harmful interference is not anticipated
    if neither of these conditions exists. The Commission and NTIA would
    resolve interference problems referred to them to their mutual
    satisfaction on a first-in-time sharing basis. We seek comment on
    this proposal.

### Non-Federal Government Operations Coordinating with Future Federal Government Operations

93. Non-Federal government terrestrial users in the band 37.0-38.6 GHz,
    and also operators who are required to protect an FSS (downlink)
    earth station in the band 37.5-38.6 GHz, are required to coordinate
    with future Federal government SRS (downlink space research
    antennas) operations and Federal government terrestrial facilities
    in the band 37.0-38.6 GHz at locations not identified at this time.
    We propose that the coordination triggers for non-Federal government
    stations be that the antenna must be within optical line-of-sight of
    an authorized Federal government site (the site to be protected
    could be a circle or a rectangle) and that the station have a PFD at
    the site exceeding a threshold of -130 dBW/m^2^ in any 1 MHz band
    for the SRS (downlink) earth station operations and -125 dBW/m^2^ in
    any 1 MHz band for the terrestrial facilities. Licensees must
    include calculations or other representations in their registration
    of each site and coordination material that indicate whether the PFD
    and/or optical line-of-site conditions exist at a previously
    coordinated Federal government facility. This information will be
    used by the Commission and NTIA through the IRAC process to
    coordinate the stations. We do not expect harmful interference to
    occur if neither of these conditions exists. We will expect the
    coordinating parties to resolve interference protection to their
    mutual satisfaction based on first-in-time sharing, or to negotiate
    written sharing agreements. We seek comment on this proposal.

### Federal Government Operations Coordinating with Future Non-Federal Government Operations

94. We expect Federal government SRS (downlink space research antennas)
    users in the band 37.0-38.0 GHz and Federal government terrestrial
    users in the 37.0-38.6 GHz band to coordinate with existing and
    future non-Federal government operations. We propose that the
    coordination triggers for Federal government SRS stations (these are
    receive earth stations) be that the antenna have optical
    line-of-sight to an authorized non-Federal government site and have
    a vulnerability threshold PFD at the SRS receiver site of -130
    dBW/m^2^ in any 1 MHz band. The coordinating parties will be
    expected to resolve interference protection to their mutual
    satisfaction based on first-in-time sharing. The proposed
    coordination triggers for Federal government terrestrial stations
    would be that the transmitting antenna have optical line-of-sight to
    the site of an authorized non-Federal government facility and have a
    PFD at the non-Federal government site exceeding a threshold of -125
    dBW/m^2^ in any 1 MHz band. The Commission and NTIA would resolve
    interference problems referred to them to their mutual satisfaction
    based on first-in-time sharing.

95. Existing geographic area licenses were auctioned in the 38.6-40 GHz
    band, and the Commission does not require these licensees to inform
    us of the locations of their facilities or maintain database
    information because these stations do not presently have to
    coordinate with NTIA. Therefore, ULS does not contain any technical
    parameters or the locations of these facilities. We propose that any
    possible future Federal government operators[^245] that would be
    required to coordinate and protect non-Federal government
    terrestrial stations or FSS (downlink) earth stations in the 39.5-40
    GHz band coordinate directly with the existing non-Federal
    government licensee in whose service area the Federal government
    earth station is to be located, and with respect to other nearby
    service area licensees. All parties concerned should resolve the
    coordination problems on a first-in-time sharing basis and obtain
    coordination agreements with prior licensed facility operators.
    Specifically, if existing non-Federal government licensees do not
    already have facilities in or near an area where the Federal
    government wishes to place an earth station, we propose that the
    non-Federal government licensee would be required to accommodate the
    Government's request and allow the earth station to be built and
    protected as mutually agreed. We seek comment on all these
    proposals.

## Competitive Bidding Procedures

96. If we decide to adopt a geographic area licensing scheme under which
    we would receive mutually exclusive applications for initial
    licenses in the 37/42 GHz band, we would be required, pursuant to
    section 309(j) of the Communications Act, to resolve such
    applications by competitive bidding.[^246] In this connection, we
    note that the Commission has previously concluded that Section 647
    of the Open‑Market Reorganization for the Betterment of
    International Telecommunications Act ("ORBIT Act") does not bar the
    use of competitive bidding to award licenses to provide terrestrial
    services merely because such terrestrial services operate on the
    same frequencies as global or international satellite communications
    services.[^247] Any licenses we might auction in the 37/42 GHz band
    would authorize terrestrial use only; any licensee wishing to use
    the subject frequencies to operate an earth station would be
    required to obtain an authorization pursuant to Part 25 of our rules
    in order to do so. Thus, if a 37/42 GHz band geographic area
    licensee decides to operate an earth station as part of an
    international or global FSS system, it would be required to do so
    under a license issued pursuant to the Part 25 procedures that apply
    to FSS. Accordingly, we request comment on a number of issues
    relative to the competitive bidding procedures we should use if we
    decide to conduct an auction of exclusive geographic area licenses
    in the 37/42 GHz band.

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

97. We propose to conduct any auction of initial exclusive area licenses
    in the 37/42 GHz band in conformity with the general competitive
    bidding rules set out in Part 1, Subpart Q, of our rules, and
    substantially consistent with the bidding procedures that have been
    employed in previous auctions.[^248] Specifically, we propose to
    employ the Part 1 rules governing competitive bidding design,
    designated entities, application and payment procedures, reporting
    requirements, collusion issues, and unjust enrichment.[^249] Under
    this proposal, such rules would be subject to any modifications that
    the Commission may adopt in its Part 1 proceeding.[^250] We seek
    comment on whether any of our Part 1 rules or other auction
    procedures are inappropriate or should be modified for an auction of
    licenses in this band.

### Provisions for Designated Entities

98. In authorizing the Commission to use competitive bidding, Congress
    mandated that the Commission "ensure that small businesses, rural
    telephone companies, and businesses owned by members of minority
    groups and women are given the opportunity to participate in the
    provision of spectrum-based services."[^251] In addition, Section
    309(j)(3)(B) of the Communications Act provides that, in
    establishing eligibility criteria and bidding methodologies, the
    Commission shall promote "economic opportunity and competition . . .
    by avoiding excessive concentration of licenses and by disseminating
    licenses among a wide variety of applicants, including small
    businesses, rural telephone companies, and businesses owned by
    members of minority groups and women."[^252]

99. Section 1.2110(c)(1) of our rules provides that the definition of a
    small business is established on a service-specific basis, taking
    into account the capital requirements and other characteristics of
    each particular service in establishing the appropriate
    threshold.[^253] As explained above, if we apply a geographic area
    licensing model to the 37/42 GHz bands, we propose to apply service
    rules for the 37/42 GHz band that are substantially the same as the
    rules for the 39 GHz band.[^254] Thus, to the extent feasible, based
    upon the proximity, similarity, anticipated use (*e.g.*,
    point-to-point, point-to-multipoint, fixed and mobile terrestrial
    operations), and propagation characteristics of these bands, we
    would have established regulatory symmetry. Accordingly, we
    anticipate that any services that geographic area licensees deploy
    in these bands would be similar to those services deployed in the 39
    GHz band and would have comparable capital requirements. We also
    believe that geographic area licensees in these bands would be
    presented with issues and costs similar to those presented to 39 GHz
    band licensees, including those involved in developing markets,
    technologies, and services.

100. In light of the similarities we have identified, we therefore
     propose here the same small business size standards the Commission
     adopted for the 39 GHz band.[^255] Accordingly, we propose to
     define a small business as an entity with average annual gross
     revenues for the preceding three years not exceeding \$40 million,
     and a very small business as an entity with average annual gross
     revenues for the preceding three years not exceeding \$15
     million.[^256] We believe that our proposed approach would provide
     a variety of businesses with the opportunity to participate in an
     auction of licenses in this band and afford licensees substantial
     flexibility for the provision of services with varying capital
     costs. If we ultimately adopt our proposed small business
     definitions for the 37/42 GHz band, we further propose to provide
     small businesses with a bidding credit of fifteen percent and very
     small businesses with a bidding credit of twenty-five percent. The
     bidding credits we propose here are those set out in the
     standardized schedule in Part 1 of our rules.[^257] Accordingly, we
     seek comment on the use of these standards and associated bidding
     credits for applicants to be licensed in the 37/42 GHz band, with
     particular focus on the appropriate definitions of small and very
     small businesses as they relate to the size of the geographic area
     to be covered and the spectrum allocated to each license. In
     discussing these issues, we invite commenters to address the
     expected capital requirements for services in these bands and other
     characteristics of the service. Additionally, we invite commenters
     to use comparisons with other services for which the Commission has
     already established auction procedures as a basis for their
     comments regarding the appropriate small business size standards.

101. We believe that the small business size standards and corresponding
     bidding credits proposed above would provide a variety of
     businesses with opportunities to participate in the auction of
     licenses for this band and afford licensees substantial flexibility
     for the provision of services with varying capital costs.[^258] In
     developing these proposals, however, we acknowledge the difficulty
     in accurately predicting the market forces that will exist at the
     time we license these frequencies. Thus, our forecasts of types of
     services that licensees will offer over these bands may require
     adjustment depending upon ongoing technological developments and
     changes in market conditions. Accordingly, to the extent commenters
     support a different bidding credit regime, or believe that there
     are any distinctive characteristics to the 37/42 GHz band that
     suggest we should not employ bidding credits in this instance,
     commenters should support their proposals with relevant
     information. For example, commenters should provide information on
     the types of system architecture that licensees are likely to
     deploy in these bands, the availability of equipment, market
     conditions, and other factors that may affect the capital
     requirements or the types of services that licensees may
     provide.[^259]

102. We also seek comment on whether the small business provisions we
     propose today are sufficient to promote participation by businesses
     owned by minorities and women, as well as rural telcos. To the
     extent that commenters propose additional provisions to ensure
     participation by minority-owned or women-owned businesses, they
     should address how we should craft such provisions to meet the
     relevant standards of judicial review.[^260]

# PROCEDURAL MATTERS

## Regulatory Flexibility Analysis

103. As required by the Regulatory Flexibility Act ("RFA") of
     1980,[^261] the Commission has prepared an Initial Regulatory
     Flexibility Analysis ("IRFA"), with respect to this *Third Notice
     of Proposed Rule Making*, of the possible significant economic
     impact on small entities of the policies and rules proposed in this
     document. The IRFA is set out in Appendix B. We request written
     public comment on the IRFA. Comments must be filed in accordance
     with the same filing deadlines as comments filed in this rulemaking
     proceeding and must have a separate and distinct heading
     designating them as responses to the Initial Regulatory Flexibility
     Analysis.

## Paperwork Reduction Analysis

104. This *Third Notice of Proposed Rule Making* contains a proposed
     information collection. As part of our continuing effort to reduce
     paperwork burdens, we invite the general public and the Office of
     Management and Budget ("OMB") to take this opportunity to comment
     on the information collections contained in this *Third Notice of
     Proposed Rule Making,* as required by the Paperwork Reduction Act
     of 1995, Pub. L. No. 104-13. Public and agency comments are due at
     the same time as other comments on this *Third Notice of Proposed
     Rule Making*; OMB comments are due sixty days from the date of
     publication of the *Third Notice of Proposed Rule Making* in the
     Federal Register. Comments should address: (a) whether the proposed
     collection of information is necessary for the proper performance
     of the functions of the Commission, including whether the
     information shall have practical utility; (b) the accuracy of the
     Commission\'s burden estimates; (c) ways to enhance the quality,
     utility, and clarity of the information collected; and (d) ways to
     minimize the burden of the collection of information on the
     respondents, including the use of automated collection techniques
     or other forms of information technology.

105. Written comments by the public on the proposed information
     collections are due sixty days after the date of publication in the
     Federal Register. Written comments must be submitted by the OMB on
     the proposed information collections on or before sixty days after
     the date of publication in the Federal Register. In addition to
     filing comments with the Secretary, a copy of any comments on the
     information collections contained herein should be submitted to
     Judy Boley Herman, Federal Communications Commission, Room 1-C804,
     445 12th Street, S.W., Washington, D.C. 20554, or via the Internet
     to jbHerman@fcc.gov, and to Kristy LaLonde, OMB Desk Officer, Room
     10234 New Executive Office Building, 725 17th Street, N.W.,
     Washington, D.C. 20503, or via the Internet to
     Kristy_LaLonde@omb.eop.

## Ex Parte Presentations

106. For purposes of this permit-but-disclose notice and comment
     rulemaking proceeding, members of the public are advised that *ex
     parte* presentations are permitted, provided they are disclosed
     under the Commission\'s rules.[^262]

## Comment Dates

107. Pursuant to Sections 1.415 and 1.419 of the Commission\'s rules, 47
     C.F.R. §§ 1.415, 1.419, interested parties may file comments on or
     before \[thirty days from publication in the Federal Register\],
     and reply comments on or before \[forty-five days from publication
     in the Federal Register\]. Comments may be filed using the
     Commission\'s Electronic Comment Filing System ("ECFS") or by
     filing paper copies.[^263]

108. Comments filed through the ECFS can be sent as an electronic file
     via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally,
     only one copy of an electronic submission must be filed. If
     multiple docket or rulemaking numbers appear in the caption of this
     proceeding, *i.e.,* PP Docket No. 93-253, however, commenters must
     transmit one electronic copy of the comments to each docket or
     rulemaking number referenced in the caption. In completing the
     transmittal screen, commenters should include their full name,
     Postal Service mailing address, and the applicable docket or
     rulemaking number. Parties may also submit an electronic comment by
     Internet e-mail. To get filing instructions for e-mail comments,
     commenters should send an e-mail to ecfs@fcc.gov, and should
     include the following words in the body of the message, \"get form
     \<your e-mail address\>.\" A sample form and directions will be
     sent in reply. Parties who choose to file by paper must file an
     original and four copies of each filing. If more than one docket or
     rulemaking number appears in the caption of this proceeding,
     commenters must submit two additional copies for each additional
     docket or rulemaking number. Filings can be sent by hand or
     messenger delivery, by commercial overnight courier, or by
     first-class or overnight U.S. Postal Service mail (although we
     continue to experience delays in receiving U.S. Postal Service
     mail). The Commission's contractor, Natek, Inc., will receive
     hand-delivered or messenger-delivered paper filings for the
     Commission's Secretary at 236 Massachusetts Avenue, N.E., Suite
     110, Washington, D.C. 20002. The filing hours at this location are
     8:00 a.m. to 7:00 p.m. All hand deliveries must be held together
     with rubber bands or fasteners. Any envelopes must be disposed of
     before entering the building. Commercial overnight mail (other than
     U.S. Postal Service Express Mail and Priority Mail) must be sent to
     9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal
     Service first-class mail, Express Mail, and Priority Mail should be
     addressed to 445 12^th^ Street, SW, Washington, D.C. 20554. All
     filings must be addressed to the Commission's Secretary, Office of
     the Secretary, Federal Communications Commission.

## Further Information

109. For further information concerning this rulemaking proceeding,
     contact Charles Oliver (legal) or Michael Pollak (engineering)
     at (202) 418-2487, TTY (202) 418-7233, Wireless Telecommunications
     Bureau, Federal Communications Commission, Washington, D.C. 20554.

110. Alternative formats (computer diskette, large print, audio
     cassette, and Braille) are available to persons with disabilities
     by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365,
     or via e-mail to bmillin@fcc.gov. This *Notice of Proposed
     Rulemaking* can be downloaded at
     http://www.fcc.gov/Wireless/Orders/2003/.

# ORDERING CLAUSES 

111. Accordingly, IT IS ORDERED that, pursuant to Sections 1, 4(i), 7,
     301, 303, 308 and 309(j) of the Communications Act of 1934, 47
     U.S.C. §§ 151, 154(i), 157, 301, 303, 308, 309(j), NOTICE IS HEREBY
     GIVEN of the proposed regulatory changes described above and as
     specified in Appendix A, and that comment is sought on these
     proposals.

112. IT IS FURTHER ORDERED that the Commission's Consumer and
     Governmental Affairs Bureau, Reference Information Center, SHALL
     SEND a copy of this *Third Notice of Proposed Rule Making*,
     including the Initial Regulatory Flexibility Analysis to the Chief
     Counsel for Advocacy of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene Dortch Secretary

**APPENDIX A**

**Proposed Rules**

Parts 0, 2, and 101 of title 47 of the Code of Federal Regulations would
be amended as follows if the Commission decides to issue licenses on the
basis of exclusive geographic areas. Some of these proposed rules would
need to be modified, augmented, or eliminated if we decide to issue
multiple non-exclusive nationwide licenses with registration of links on
a first-in-time registration basis:

**PART 0**

1\. The authority citation for part 0 would continue to read as follows:

AUTHORITY: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.

2\. Section 0.331(d) would be amended to read as follows:

**§ 0.331 Authority delegated.**

> **\* \* \* \* \***

(d*) Authority concerning rulemaking proceedings*. The Chief, Wireless
Telecommunications Bureau shall not have the authority to act upon
notices of proposed rulemaking and inquiry, final order in rulemaking
proceedings and inquiry proceedings, and reports arising from any of the
foregoing except such orders involving ministerial conforming amendments
to rule parts, or order conforming any of the applicable rules to
formally adopted international conventions or agreements where novel
question of fact, law, or policy are not involved. Updates to the list
of NTIA facilities in § 101.147 need not be referred to the Commission
if they do not involve novel questions of fact, policy or law. Also the
addition of new Marine VHF frequency coordination committee(s) to §
80.514 of this chapter need not be referred to the Commission if they do
not involve novel questions of fact, policy or law, as well as requests
by the United States Coast Guard to:

(1) \* \* \*

\* \* \* \* \*

**PART 2 -- FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS;**

**GENERAL RULES AND REGULATIONS**

1\. The authority citation for part 2 would continue to read as follows:

AUTHORITY: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.

2\. Section 2.106, the Table of Frequency Allocations, would be amended
as follows:

a\. Revise pages 76 and77.

b.  In the list of United States footnotes, add footnote USxxx. (Here
    and below, "USxxx" indicates that the Commission will determine the
    U.S. footnote number if and when it adopts the proposed rule).

c.  In the list of non-Federal government footnotes, add footnote NGxxx
    (Here and below, "NGxxx" indicates that the Commission will
    determine the non-government footnote number if and when it adopts
    the proposed rule).

The proposed revisions and additions read as follows:

**[§ 2.106 Table of Frequency Allocations.]{.underline}**

#  \* \* \* \* \* {#section .unnumbered}

+-----------------------------------+-----------+-----------+---------+
| 36-37                             | 36-37     |           |         |
|                                   |           |           |         |
| EARTH EXPLORATION-SATELLITE       | EARTH     |           |         |
| (passive)                         | EXP       |           |         |
|                                   | LORATION- |           |         |
| FIXED                             | SATELLITE |           |         |
|                                   | (passive) |           |         |
| MOBILE                            |           |           |         |
|                                   | FIXED     |           |         |
| SPACE RESEARCH (passive)          |           |           |         |
|                                   | MOBILE    |           |         |
| 5.149                             |           |           |         |
|                                   | SPACE     |           |         |
|                                   | RESEARCH  |           |         |
|                                   | (passive) |           |         |
|                                   |           |           |         |
|                                   | US263     |           |         |
|                                   | US342     |           |         |
+-----------------------------------+-----------+-----------+---------+
| 37-37.5                           | 37-37.5   | 37-37.5   | Fixed   |
|                                   |           |           | Mi      |
| FIXED                             | FIXED     | FIXED     | crowave |
|                                   |           |           | (101)   |
| MOBILE                            | MOBILE    | MOBILE    |         |
|                                   |           |           |         |
| SPACE RESEARCH (space-to-Earth)   | SPACE     | USxxx     |         |
|                                   | RESEARCH  |           |         |
| 5.547                             |           |           |         |
|                                   | (space-   |           |         |
|                                   | to-Earth) |           |         |
|                                   |           |           |         |
|                                   | USxxx     |           |         |
+-----------------------------------+-----------+-----------+---------+
| 37.5-38                           | 37.5-38   | 37.5-38.6 | Sa      |
|                                   |           |           | tellite |
| FIXED                             | FIXED     | FIXED     |         |
|                                   |           |           | Communi |
| FIXED-SATELLITE (space-to-Earth)  | MOBILE    | FIXED-    | cations |
|                                   |           | SATELLITE | (25)    |
| MOBILE                            | SPACE     |           |         |
|                                   | RESEARCH  | (space-   | Fixed   |
| SPACE RESEARCH (space-to-Earth)   |           | to-Earth) | Mi      |
|                                   | (space-   | NGxxx     | crowave |
| Earth exploration-satellite       | to-Earth) |           | (101)   |
| (space-to-Earth)                  |           | MOBILE    |         |
|                                   | USxxx     |           |         |
| 5.547                             |           |           |         |
+-----------------------------------+-----------+-----------+---------+
| 38-39.5                           | 38-38.6   | USxxx     |         |
|                                   |           |           |         |
| FIXED                             | FIXED     |           |         |
|                                   |           |           |         |
| FIXED-SATELLITE (space-to-Earth)  | MOBILE    |           |         |
|                                   |           |           |         |
| MOBILE                            | USxxx     |           |         |
|                                   |           |           |         |
| Earth exploration-satellite       |           |           |         |
| (space-to-Earth)                  |           |           |         |
+-----------------------------------+-----------+-----------+---------+
|                                   | 38.6-39.5 | 38.6-39.5 |         |
|                                   |           |           |         |
|                                   |           | FIXED     |         |
|                                   |           |           |         |
|                                   |           | FIXED-    |         |
|                                   |           | SATELLITE |         |
|                                   |           |           |         |
|                                   |           | (space-   |         |
|                                   |           | to-Earth) |         |
|                                   |           | NGxxx     |         |
|                                   |           |           |         |
|                                   |           | MOBILE    |         |
|                                   |           | NG175     |         |
+-----------------------------------+-----------+-----------+---------+
| 5.547                             |           |           |         |
+-----------------------------------+-----------+-----------+---------+
| 39.5-40                           | 39.5-40   | 39.5-40   |         |
|                                   |           |           |         |
| FIXED                             | FIXED-    | FIXED     |         |
|                                   | SATELLITE |           |         |
| FIXED-SATELLITE (space-to-Earth)  |           | FIXED-    |         |
| 5.516B                            | (space-   | SATELLITE |         |
|                                   | to-Earth) |           |         |
| MOBILE                            |           | (space-   |         |
|                                   | MOBILE-   | to-Earth) |         |
| MOBILE-SATELLITE (space-to-Earth) | SATELLITE | NGxxx     |         |
|                                   |           |           |         |
| Earth exploration-satellite       | (space-   | MOBILE    |         |
| (space-to-Earth)                  | to-Earth) | NG175     |         |
|                                   | US382     |           |         |
| 5.547                             |           | US382     |         |
|                                   | G117      |           |         |
+-----------------------------------+-----------+-----------+---------+
| 40-40.5                           | 40-40.5   | 40-40.5   | Sa      |
|                                   |           |           | tellite |
| EARTH EXPLORATION-SATELLITE       | EARTH     | FIXED-    |         |
| (Earth-to-space)                  | EXP       | SATELLITE | Communi |
|                                   | LORATION- |           | cations |
| FIXED                             |           | (space-   | (25)    |
|                                   | SATELLITE | to-Earth) |         |
| FIXED-SATELLITE (space-to-Earth)  | (Earth-   |           |         |
| 5.516B                            | to-space) | MOBILE-   |         |
|                                   |           | SATELLITE |         |
| MOBILE                            | FIXED-    |           |         |
|                                   | SATELLITE | (space-   |         |
| MOBILE-SATELLITE (space-to-Earth) |           | to-Earth) |         |
|                                   | (space-   |           |         |
| SPACE RESEARCH (Earth-to-space)   | to-Earth) |           |         |
|                                   |           |           |         |
| Earth exploration-satellite       | MOBILE-   |           |         |
| (space-to-Earth)                  | SATELLITE |           |         |
|                                   |           |           |         |
|                                   | (space-   |           |         |
|                                   | to-Earth) |           |         |
|                                   |           |           |         |
|                                   | SPACE     |           |         |
|                                   | RESEARCH  |           |         |
|                                   |           |           |         |
|                                   | (Earth-   |           |         |
|                                   | to-space) |           |         |
|                                   |           |           |         |
|                                   | Earth     |           |         |
|                                   | exp       |           |         |
|                                   | loration- |           |         |
|                                   | satellite |           |         |
|                                   |           |           |         |
|                                   | (space-   |           |         |
|                                   | to-Earth) |           |         |
|                                   |           |           |         |
|                                   | G117      |           |         |
+-----------------------------------+-----------+-----------+---------+

+-----------+-----------+-----------+-----------+-----------+---------+
| 40.5-50.2 |           |           |           |           | Page 77 |
| GHz (EHF) |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| Inte      |           |           | United    |           | FCC     |
| rnational |           |           | States    |           | Rule    |
| Table     |           |           | Table     |           | Part(s) |
+-----------+-----------+-----------+-----------+-----------+---------+
| Region 1  | Region 2  | Region 3  | Federal   | No        |         |
|           |           |           | G         | n-Federal |         |
|           |           |           | overnment | G         |         |
|           |           |           |           | overnment |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 40.5-41   | 40.5-41   | 40.5-41   | 40.5-41   | 40.5-41   | Sa      |
|           |           |           |           |           | tellite |
| FIXED     | FIXED     | FIXED     | FIXED-    | FIXED-    |         |
|           |           |           | SATELLITE | SATELLITE | Communi |
| FIXED-    | FIXED-    | FIXED-    |           |           | cations |
| SATELLITE | SATELLITE | SATELLITE | (space-   | (space-   | (25)    |
|           |           |           | to-Earth) | to-Earth) |         |
| (space-   | (space-   | (space-   |           |           |         |
| to-Earth) | to-Earth) | to-Earth) | Mobile-   | BRO       |         |
|           | 5.516B    |           | satellite | ADCASTING |         |
| BRO       |           | BRO       |           |           |         |
| ADCASTING | BRO       | ADCASTING | (space-   | BROA      |         |
|           | ADCASTING |           | to-Earth) | DCASTING- |         |
| BROA      |           | BROA      |           |           |         |
| DCASTING- | BROA      | DCASTING- | US211     | SATELLITE |         |
|           | DCASTING- |           | G117      |           |         |
| SATELLITE |           | SATELLITE |           | Fixed     |         |
|           | SATELLITE |           |           |           |         |
| Mobile    |           | Mobile    |           | Mobile    |         |
|           | Mobile    |           |           |           |         |
| 5.547     |           | 5.547     |           | Mobile-   |         |
|           | Mobile-   |           |           | satellite |         |
|           | satellite |           |           |           |         |
|           |           |           |           | (space-   |         |
|           | (space-   |           |           | to-Earth) |         |
|           | to-Earth) |           |           |           |         |
|           |           |           |           | US211     |         |
|           | 5.547     |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 41-42.5   |           |           | 41-42.5   | 41-42     |         |
|           |           |           |           |           |         |
| FIXED     |           |           |           | FIXED     |         |
|           |           |           |           |           |         |
| FIXED-    |           |           |           | FIXED-    |         |
| SATELLITE |           |           |           | SATELLITE |         |
| (space-   |           |           |           |           |         |
| to-Earth) |           |           |           | (space-   |         |
| 5.516B    |           |           |           | to-Earth) |         |
|           |           |           |           |           |         |
| BRO       |           |           |           | BRO       |         |
| ADCASTING |           |           |           | ADCASTING |         |
|           |           |           |           |           |         |
| BROA      |           |           |           | BROA      |         |
| DCASTING- |           |           |           | DCASTING- |         |
| SATELLITE |           |           |           |           |         |
|           |           |           |           | SATELLITE |         |
| Mobile    |           |           |           |           |         |
|           |           |           |           | MOBILE    |         |
|           |           |           |           |           |         |
|           |           |           |           | US211     |         |
+-----------+-----------+-----------+-----------+-----------+---------+
|           |           |           |           | 42-42.5   | Fixed   |
|           |           |           |           |           | Mi      |
|           |           |           |           | FIXED     | crowave |
|           |           |           |           |           | (101)   |
|           |           |           |           | BRO       |         |
|           |           |           |           | ADCASTING |         |
|           |           |           |           |           |         |
|           |           |           |           | BROA      |         |
|           |           |           |           | DCASTING- |         |
|           |           |           |           |           |         |
|           |           |           |           | SATELLITE |         |
|           |           |           |           |           |         |
|           |           |           |           | MOBILE    |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 5.547     |           |           | US211     | US211     |         |
| 5.551F    |           |           |           |           |         |
| 5.551H    |           |           |           |           |         |
| 5.551I    |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 42.5-43.5 |           |           | 42.5-43.5 | 42.5-43.5 |         |
|           |           |           |           |           |         |
| FIXED     |           |           | FIXED     | RADIO     |         |
|           |           |           |           | ASTRONOMY |         |
| FIXED-    |           |           | FIXED-    |           |         |
| SATELLITE |           |           | SATELLITE | US342     |         |
| (Earth-   |           |           |           |           |         |
| to-space) |           |           | (Earth-   |           |         |
| 5.552     |           |           | to-space) |           |         |
|           |           |           |           |           |         |
| MOBILE    |           |           | MOBILE    |           |         |
| except    |           |           | except    |           |         |
| aer       |           |           | aer       |           |         |
| onautical |           |           | onautical |           |         |
| mobile    |           |           |           |           |         |
|           |           |           | mobile    |           |         |
| RADIO     |           |           |           |           |         |
| ASTRONOMY |           |           | RADIO     |           |         |
|           |           |           | ASTRONOMY |           |         |
| 5.149     |           |           |           |           |         |
| 5.547     |           |           | US342     |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 43.5-47   |           |           | 43.5-45.5 | 43.5-45.5 |         |
|           |           |           |           |           |         |
| MOBILE    |           |           | MOBILE-   |           |         |
| 5.553     |           |           | SATELLITE |           |         |
|           |           |           |           |           |         |
| MOBILE-   |           |           | (Earth-   |           |         |
| SATELLITE |           |           | to-space) |           |         |
|           |           |           |           |           |         |
| RADION    |           |           | FIXED-    |           |         |
| AVIGATION |           |           | SATELLITE |           |         |
|           |           |           |           |           |         |
| RADIONA   |           |           | (Earth-   |           |         |
| VIGATION- |           |           | to-space) |           |         |
| SATELLITE |           |           |           |           |         |
|           |           |           | G117      |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 5.554     |           |           | 45.5-46.9 |           |         |
|           |           |           |           |           |         |
|           |           |           | MOBILE    |           |         |
|           |           |           |           |           |         |
|           |           |           | MOBILE-   |           |         |
|           |           |           | SATELLITE |           |         |
|           |           |           | (Earth-   |           |         |
|           |           |           | to-space) |           |         |
|           |           |           |           |           |         |
|           |           |           | RADIONA   |           |         |
|           |           |           | VIGATION- |           |         |
|           |           |           | SATELLITE |           |         |
|           |           |           |           |           |         |
|           |           |           | 5.554     |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
|           |           |           | 46.9-47   | 46.9-47   |         |
|           |           |           |           |           |         |
|           |           |           | MOBILE    | MOBILE    |         |
|           |           |           |           |           |         |
|           |           |           | MOBILE-   | MOBILE-   |         |
|           |           |           | SATELLITE | SATELLITE |         |
|           |           |           |           |           |         |
|           |           |           | (Earth-   | (Earth-   |         |
|           |           |           | to-space) | to-space) |         |
|           |           |           |           |           |         |
|           |           |           | RADIONA   | RADIONA   |         |
|           |           |           | VIGATION- | VIGATION- |         |
|           |           |           |           |           |         |
|           |           |           | SATELLITE | SATELLITE |         |
|           |           |           |           |           |         |
|           |           |           | 5.554     | FIXED     |         |
|           |           |           |           |           |         |
|           |           |           |           | 5.554     |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 47-47.2   |           |           | 47-48.2   | 47-47.2   | Amateur |
|           |           |           |           |           | (97)    |
| AMATEUR   |           |           |           | AMATEUR   |         |
|           |           |           |           |           |         |
| AMATEUR-  |           |           |           | AMATEUR-  |         |
| SATELLITE |           |           |           | SATELLITE |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 47.2-47.5 |           |           |           | 47.2-48.2 | Sa      |
|           |           |           |           |           | tellite |
| FIXED     |           |           |           | FIXED     |         |
|           |           |           |           |           | Communi |
| FIXED-    |           |           |           | FIXED-    | cations |
| SATELLITE |           |           |           | SATELLITE | (25)    |
| (Earth-   |           |           |           |           |         |
| to-space) |           |           |           | (Earth-   |         |
| 5.552     |           |           |           | to-space) |         |
|           |           |           |           | US297     |         |
| MOBILE    |           |           |           |           |         |
|           |           |           |           | MOBILE    |         |
| 5.552A    |           |           |           | US264     |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 47.5-47.9 | 47.5-47.9 |           |           |           |         |
|           |           |           |           |           |         |
| FIXED     | FIXED     |           |           |           |         |
|           |           |           |           |           |         |
| FIXED-    | FIXED-    |           |           |           |         |
| SATELLITE | SATELLITE |           |           |           |         |
|           | (Earth-   |           |           |           |         |
| (Earth-   | to-space) |           |           |           |         |
| to-space) | 5.552     |           |           |           |         |
| 5.552     |           |           |           |           |         |
|           | MOBILE    |           |           |           |         |
| (space-   |           |           |           |           |         |
| to-Earth) |           |           |           |           |         |
| 5.516B    |           |           |           |           |         |
|           |           |           |           |           |         |
| MOBILE    |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 47.9-48.2 |           |           |           |           |         |
|           |           |           |           |           |         |
| FIXED     |           |           |           |           |         |
|           |           |           |           |           |         |
| FIXED-    |           |           |           |           |         |
| SATELLITE |           |           |           |           |         |
| (Earth-   |           |           |           |           |         |
| to-space) |           |           |           |           |         |
| 5.552     |           |           |           |           |         |
|           |           |           |           |           |         |
| MOBILE    |           |           |           |           |         |
|           |           |           |           |           |         |
| 5.552A    |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 4         | 48.2-50.2 |           | 48.2-50.2 |           |         |
| 8.2-48.54 |           |           |           |           |         |
|           | FIXED     |           | FIXED     |           |         |
| FIXED     |           |           |           |           |         |
|           | FIXED-    |           | FIXED-    |           |         |
| FIXED-    | SATELLITE |           | SATELLITE |           |         |
| SATELLITE | (Earth-   |           | (Earth-   |           |         |
| (         | to-space) |           | to-space) |           |         |
| Earth-to- | 5.516B    |           | US297     |           |         |
|           | 5.552     |           |           |           |         |
| space)    |           |           | MOBILE    |           |         |
| 5.552     | MOBILE    |           | US264     |           |         |
| (space-   |           |           |           |           |         |
| to-Earth) |           |           |           |           |         |
|           |           |           |           |           |         |
| 5.516B    |           |           |           |           |         |
| 5.554A    |           |           |           |           |         |
| 5.555A    |           |           |           |           |         |
|           |           |           |           |           |         |
| MOBILE    |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 48        |           |           |           |           |         |
| .54-49.44 |           |           |           |           |         |
|           |           |           |           |           |         |
| FIXED     |           |           |           |           |         |
|           |           |           |           |           |         |
| FIXED-    |           |           |           |           |         |
| SATELLITE |           |           |           |           |         |
|           |           |           |           |           |         |
| (Earth-   |           |           |           |           |         |
| to-space) |           |           |           |           |         |
| 5.552     |           |           |           |           |         |
|           |           |           |           |           |         |
| MOBILE    |           |           |           |           |         |
|           |           |           |           |           |         |
| 5.149     |           |           |           |           |         |
| 5.340     |           |           |           |           |         |
| 5.555     |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| See next  | 5.149     |           | 5.555     |           |         |
| page      | 5.340     |           | US342     |           |         |
|           | 5.555     |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+

\* \* \* \* \*

UNITED STATES (US) FOOTNOTES

\* \* \* \* \*

USxxx In the band 37-38 GHz, the following Government receiving earth
stations have been coordinated with the FCC and shall be protected from
non- operations in the fixed and mobile services in the band 37-38 GHz
and from non-Government earth stations in the fixed-satellite service
(space-to-Earth) in the sub-band 37.5-38 GHz. Non‑Government
applications for fixed and mobile service use of frequencies in the band
37-38 GHz shall be coordinated with NTIA through the Frequency
Assignment Subcommittee within the following coordination
areas/distances. The coordinates listed below are specified in terms of
the North American Datum of 1983.

*In the band 37-38 GHz, the following stations in the space research
service (space-to-Earth) have been coordinated:*

  ----------------------------------- -----------------------------------
  Site                                Coordination Area

  NASA Goldstone Deep Space           30 kilometer (18.64 mile) radius
  Communications Complex, Goldstone,  centered on latitude 35^o^ 9\' 00\"
  California                          N, longitude 116^o^ 50\' 06\" W.

  National Radio Astronomy            Rectangle between latitudes 37°
  Observatory, Green Bank, West       30\' N and 39° 15\' N and between
  Virginia                            longitudes 78° 30\' W and
                                      80° 30\' W (National Radio Quite
                                      Zone)
  ----------------------------------- -----------------------------------

NON-FEDERAL GOVERNMENT (NG) FOOTNOTES

\* \* \* \* \*

NGxxx The use of the band 37.5-40 GHz by the fixed-satellite service
(space-to-Earth) is limited to gateway earth station operations as set
out in 47 C.F.R. Part 25.

\* \* \* \* \*

**PART 101 - FIXED MICROWAVE SERVICES**

1\. The authority citation for Part 101 would continue to read as
follows:

**Authority: 47 U.S.C. 154, 303.**

2\. Section 101.17 would be revised to read as follows:

**§101.17 Performance requirements for the 37.0-40.0 GHz and 42.0-42.5
GHz frequency bands.**

\(a\) All 37.0-40.0 GHz and 42.0-42.5 GHz band licensees must
demonstrate substantial service at the time of license renewal. A
licensee\'s substantial service showing should include, but not be
limited to, the following information for each channel for which they
hold a license, in each EA or portion of an EA covered by their license,
in order to qualify for renewal of that license. The information
provided will be judged by the Commission to determine whether the
licensee is providing service which rises to the level of
\"substantial.\" Licensees, whether the license was obtained through
competitive bidding or partitioning/aggregation/disaggregation, may
build facilities anywhere within the authorized service area without
further authority from the Commission, provided that they have complied
with applicable Commission requirements. The Commission does not require
individual licenses for each terrestrial fixed facility.

\(1\) A description of the 37.0-40.0 GHz, or 42.0-42.5 GHz band
licensee's current service in terms of geographic coverage;

\(2\) A description of the 37.0-40.0 GHz, or 42.0-42.5 GHz band
licensee's current service in terms of population served, as well as any
additional service provided during the license term;

\(3\) A description of the 37.0-40.0 GHz, or 42.0-42.5 GHz band
licensee's investments in its system(s) (type of facilities constructed
and their operational status is required);

\(b\) Any 37.0-40.0 GHz and 42.0-42.5 GHz band licensees adjudged not to
be providing substantial service will not have their licenses renewed.

\* \* \* \* \*

3\. Sections 101.56(a)(1), (a)(2)(ii), (b), (f), (g), (h) and (i) would
be amended to read as follows:

**§ 101.56 Partitioned services areas (PSAs) and disaggregated
spectrum.**

(a)(1) The holder of an EA authorization to provide service pursuant to
the competitive bidding process areas in the 37.0-40.0 GHz and 42.0-42.5
GHz bands and any incumbent licensee of rectangular service areas in the
38.6-40.0 GHz band may enter into agreements with eligible parties to
partition any portion of its service area as defined by the partitioner
and partitionee. Alternatively, licensees may enter into agreements or
contracts to aggregate/disaggregate any amount of spectrum, provided
acquired spectrum is aggregated/disaggregated in frequency pairs.

(a)(2)(i) \* \* \*

(a)(2)(ii) The contracts must include descriptions of the areas being
partitioned or spectrum being aggregated/disaggregated. The partitioned
service area shall be defined by coordinate points at every 3 seconds
along the partitioned service area unless an FCC recognized service area
is utilized (i.e., Metropolitan Service Area or Rural Service Area) or
county lines are followed. If geographic coordinate points are used,
they must be specified in degrees, minutes, and seconds to the nearest
second of latitude and longitude and must be based upon the 1983 North
American Datum (NAD83). In the case where an FCC recognized service area
or county lines are utilized, applicants need only list the specific
area(s) (through use of FCC designations or county names) that
constitute the partitioned area.

\(b\) The eligibility requirements applicable to EA authorization
holders also apply to those individuals and entities seeking partitioned
or aggregated/disaggregated spectrum authorizations.

\(c\) \* \* \*

\(d\) \* \* \*

\(e\) \* \* \*

\(f\) The duties and responsibilities imposed upon EA authorization
holders in this part, apply to those licensees obtaining authorizations
by partitioning or spectrum aggregation/disaggregation.

\(g\) The build out requirements for the partitioned service area or
aggregated/disaggregated spectrum shall be the same as applied to the EA
authorization holder.

\(h\) The license term for the partitioned service area or
aggregated/disaggregated spectrum shall be the remainder of the period
that would apply to the EA authorization holder.

\(i\) Licensees, including those using bidding credits in a competitive
bidding procedure, shall have the authority to partition service areas
or aggregated/disaggregate spectrum.

\* \* \* \* \*

4\. New Section 101.58 would be added to read as follows:

**§ 101.58 System operations.**

\(a\) The licensee in the 37.0-40.0 GHz and 42.0-42.5 GHz bands may
construct and operate any number of fixed stations anywhere within the
area authorized by the license without prior authorization, except as
follows:

\(1\) A station is required to be individually licensed under Part 101
if:

\(i\) International agreements require coordination;

\(ii\) Submission of an Environmental Assessment is required under §
1.1307 of this chapter.

\(iii\) The station would affect the radio quiet zones under § 1.924 of
this chapter.

\(2\) Any antenna structure that requires notification to the Federal
Aviation Administration (FAA) must be registered with the Commission
prior to construction under § 17.4 of this chapter.

\(3\) Frequencies in the 37.0-38.6 GHz band are co-primary and shared
with the Government. All parties concerned should complete coordination
based on a first in time sharing basis and obtain coordination
agreements with prior licensed facility operators before operating.

\(b\) Whenever a licensee constructs or makes system changes as
described in paragraph (a) of this section, the licensee is required to
notify the Commission within 30 days of the change under § 1.947 of this
chapter and include a statement of the technical parameters of the
changed station.

5\. Section 101.63 would be amended by revising paragraph (a) to read as
follows:

**§ 101.63 Period of construction; certification of completion of
construction.**

\(a\) Each station, except in Local Multipoint Distribution Services, 24
GHz Service, the 37.0-40.0 GHz and 42.0-42.5 GHz bands, authorized under
this part must be in operation within 18 months from the initial date of
grant. For the 70 GHz, 80 GHz, and 90 GHz bands, each 18-month
construction period will commence on the date of each registration of
each individual link; adding links will not change the overall renewal
period of the license.

\* \* \* \* \*

6\. Section 101.64 would be revised to read as follows:

**§ 101.64 Service areas.**

Service areas for 37.0-40.0 GHz and 42.0-42.5 GHz service are Economic
Areas (EAs) as defined below and in effect as of April 12, 2000. EAs are
delineated by the Regional Economic Analysis Division, Bureau of
Economic Analysis, U.S. Department of Commerce, 1995. The Commerce
Department organizes the 50 States and the District of Columbia into 172
EAs. Additionally, there are four EA-like areas: Guam and Northern
Mariana Islands; Puerto Rico and the U.S. Virgin Islands; American Samoa
and the Gulf of Mexico. A total of 175 authorizations (excluding the
Gulf of Mexico EA-like area) will be issued for each channel block in
the 37.0-40.0 GHz and 42.0-42.5 GHz bands.

\* \* \* \* \*

7\. Section 101.101 would be amended by adding to the table entries for
37,000-38,600 MHz and 42,000-42,500 MHz to read as follows:

**§ 101.101 Frequency availability.**

+------------+----------+----------+------------+---------+-----------+
| **F        | **RADIO  |          |            |         |           |
| REQUENCY** | S        |          |            |         |           |
|            | ERVICE** |          |            |         |           |
| **BAND     |          |          |            |         |           |
| (MHz)**    |          |          |            |         |           |
+============+==========+==========+============+=========+===========+
|            | **       | **P      | **B        | **      | **NOTES** |
|            | COMMON** | RIVATE** | ROADCAST** | OTHER** |           |
|            |          |          |            |         |           |
|            | **C      | *        | **A        | *       |           |
|            | ARRIER** | *RADIO** | UXILIARY** | *(Parts |           |
|            |          |          |            | 15, 21, |           |
|            | **(Part  | **(Part  | **(Part    | 22, 24, |           |
|            | 101)**   | 101)**   | 74)**      | 25, 74  |           |
|            |          |          |            | 78 &    |           |
|            |          |          |            | 100)**  |           |
+------------+----------+----------+------------+---------+-----------+
| \* \* \*   |          |          |            |         |           |
+------------+----------+----------+------------+---------+-----------+
| 37,        | CC       | OFS      |            | 25      | F/M/TF    |
| 000-38,600 |          |          |            |         |           |
+------------+----------+----------+------------+---------+-----------+
| 38,        | CC       | OFS      | TV BAS     | 25      | F/M/TF    |
| 600-40,000 |          |          |            |         |           |
+------------+----------+----------+------------+---------+-----------+
| 42,        | CC       | OFS      |            |         | F/M/TF    |
| 000-42,500 |          |          |            |         |           |
+------------+----------+----------+------------+---------+-----------+
| \* \* \*   | \* \* \* | \* \* \* | \* \* \*   | \* \*   | \* \* \*  |
|            |          |          |            | \*      |           |
+------------+----------+----------+------------+---------+-----------+

\* \* \* \* \*

8\. Section 101.103(i) would be amended and new sections 101.103(j) and
(k) would be added to read as follows:

**§ 101.103 Frequency coordination procedures.**

\* \* \*

(i)(1)(a) When fixed microwave or fixed satellite earth station
facilities licensed under Part 101 are to be operated in the band 37,000
MHz to 40,000 MHz or 42,000 MHz to 42,500 MHz, the following
coordination procedures shall apply:

> \(b\) All harmful interference to other users and blocking of adjacent
> channel use in the same or adjacent geographical area is prohibited.
> In areas near the border between two licensees' service areas, careful
> consideration should be given to minimum power requirements and to the
> location, height, and radiation pattern of the transmitting antenna.
> Licensees are expected to cooperate fully in attempting to resolve
> problems of potential interference before bringing the matter to the
> attention of the Commission.
>
> \(c\) Each licensee must engineer its system to be reasonably
> compatible with adjacent and co-channel operations in the same or
> adjacent areas, and cooperate fully and in good faith to resolve
> whatever potential interference and transmission security problems may
> be present in adjacent and co-channel operations.
>
> \(d\) A licensee shall coordinate its facilities whenever the
> facilities have optical line-of-sight (calculated using the formula
> *d=3.57*√*h,* where *d* is the distance between the antenna and the
> horizon in kilometers and *h* is the antenna height in meters) into
> another licensee's geographic area where that licensee's facilities
> may be located or into another licensee's facilities within the same
> or adjacent geographic area, and the power flux density of the
> licensee's system calculated at the service area boundary of the
> neighboring service area(s) exceeds -125 dBW/m^2^ in any 1 megahertz
> band. This line of site should take into consideration all the
> possible relevant heights of the other licensee's antenna(s). Power
> flux density is calculated using accepted engineering practices,
> taking into account such factors as propagation loss, atmospheric
> loss, curvature of the Earth, and gain of the antenna in the direction
> of the service area boundary. Licensees are encouraged to develop
> operational agreements with relevant licensees in the same or adjacent
> areas.
>
> \(e\) In the event no licensee in the bands 37,000 MHz to 40,000 MHz
> or 42,000 MHz to 42,500 MHz is immediately available in an adjacent or
> same area, the first-in-time licensee would have to coordinate its
> stations when future licensees appear in order to accommodate other
> licensees' rights and to ensure cooperative and effective use of the
> spectrum in each area. This may include reducing powers to levels
> which are agreeable to both parties.

(i)(2) Response to notification should be made as quickly as possible,
even if no technical problems are anticipated. Any response to
notification indicating potential interference must specify the
technical details and must be provided to the licensee, either
electronically or in writing, within 10 days of notification. Every
reasonable effort should be made by all licensees to eliminate all
problems and conflicts. If no response to notification is received
within 10 days, the licensee will be deemed to have made reasonable
efforts to coordinate and may commence operation without a response. The
beginning of the 10-day period is determined pursuant to
§101.103(d)(2)(v).

(i)(3) Licensees shall comply with the appropriate coordination
agreements between the United States and Canada and the United States
and Mexico concerning cross-border sharing and use of the 37.0-40. GHz
and 42.0-42.5 GHz bands.

\(j\) *Special consideration for coordinating with Government stations
in the 37-38.6 GHz band:* (1) In the band 37-38 GHz, use of the space
research service (space-to-Earth) shall be on a primary basis only at
Goldstone, California. Stations in the fixed and mobile services within
80 kilometers (50 miles) of 35° 18\' North Latitude and 116° 54\' West
Longitude shall be coordinated through through contacting the facility
directly. Stations in the 37.0-38.6 GHz band in the vicinity of Green
Bank, West Virginia must also coordinate as required by Section 1.924.
The interference protection criterion to these facilities is -130
dBW/m^2^ in any 1 MHz, and licensees must obtain letters of approval for
their operations from the relevant Government facility. Other uses of
the space research service (space-to-Earth) in the band 37-38 GHz shall
be on a secondary basis.

\(2\) Non-Government licensees the 37-38.6 GHz band must register their
technical data electronically into the ULS for each station in each of
their geographic areas in order to make available accurate information
on the use of the facilities and also to implement the \"first-in-time\"
principle for coordination with Government facilities. This data shall
include: 1) the date of the initial operating capability (IOC) of each
station, 2) specific information identifying the station locations, 3)
technical operating capabilities of the stations, including all of the
power and antenna characteristics specified in Section 101.103(d)(2)(ii)
of this section, and 4) whether the station has optical line-of-site to
another facility with which it is being coordinated, if known at the
time. If it is determined that optical line-of-site does not exist, the
applicant should explain the determination. This site-based information
shall be entered into the record of the area license in the ULS database
by electronically registering notifications to the initial FCC Form 601
using Schedule I, but not more than twelve (12) months before operations
are scheduled to begin.

\(3\) The FCC will note the activation date of the station, but will not
make a determination that any of the information is correct or
acceptable for filing. Coordination involving current and future
Government facilities will require licensees and applicants to ensure
that their data is accurately reflected in the ULS.

\(4\) Government operators with existing facilities in the 37.0-38.6 GHz
band should cooperate in the coordination process by responding to
non-Government coordination notifications. Government operators with new
stations to coordinate can identify and directly access the technical
information of the non-Government licensees through the ULS. Examining
the data in the ULS before formally coordinating with the FCC in the
appropriate frequency band and geographic service area may speed up the
frequency selection process. Government operators with new stations
should notify the FCC through the IRAC process with sufficient technical
detail to determine whether potential interference is possible with
facilities of our licensees/applicants.

\(5\) *Non-Government Operations Coordinating with Existing Government
Operations.* Non-Government terrestrial users in the band 37.0-38.6 GHz,
and also operators who wish to protect an FSS (downlink) earth station
in the band 37.5-38.6 GHz, shall coordinate with the existing military
terrestrial Government facilities in 37.0-38.6 GHz (existing stations
are identified in Appendix E) through the ULS and IRAC process. The
proposed coordination triggers for non-Government stations are that the
antenna must have optical line-of-sight to the Government facilities and
that the PFD at the site exceeds a threshold of -125 dBW/m^2^ in any 1
MHz band. Harmful interference is not anticipated if neither of these
conditions exist. The FCC and NTIA will resolve interference problems
referred to them to their mutual satisfaction based on first-in-time
sharing basis.

\(6\) *Non-Government Operations Coordinating with Future Government
Operations.* Government terrestrial users in the band 37.0-38.6 GHz, and
also operators who are required to protect an FSS (downlink) earth
station in the band 37.5-38.6 GHz, are required to coordinate with
future Government SRS (downlink space research antennas) operations and
Government terrestrial facilities in the band 37.0-38.6 GHz at locations
not identified at this time. The coordination triggers for
non-Government stations are that the antenna must be within optical
line-of-sight of an authorized Government site and that the station have
a PFD at the site exceeding a threshold of -130 dBW/m^2^ in any 1 MHz
band for the SRS (downlink) operations and -125 dBW/m^2^ in any 1 MHz
band for the terrestrial facilities. Harmful interference is not
anticipated if neither of these conditions exist. The coordinating
parties are expected to resolve interference protection to their mutual
satisfaction based on first-in-time sharing or to derive written sharing
agreements.

\(7\) *Government Operations Coordinating with Future Non-Government
Operations.* Government SRS (downlink space research antennas) users and
Government terrestrial users in the 37.0-38.6 GHz band are expected to
coordinate with existing and future non-Government operations. The
coordination triggers for Government SRS stations are that the antenna
have optical line-of-sight to an authorized non-Government site and have
a vulnerability threshold PFD at the SRS receiver of -130 dBW/m^2^ in
any 1 MHz band. The coordinating parties are expected to resolve
interference protection to their mutual satisfaction based on
first-in-time sharing. The coordination triggers for Government
terrestrial stations are that the transmitting antenna have optical
line-of-sight to the site of an authorized non-Government facility and
have a PFD at the non-Government site exceeding a threshold of -125
dBW/m^2^ in any 1 MHz band. The FCC and NTIA will resolve interference
problems referred to them to their mutual satisfaction based on
first-in-time sharing.

\(k\) *Special consideration for coordinating Government stations in the
39.5-40.06 GHz band.* Government operators who are required to
coordinate and protect non-Government terrestrial stations or FSS
(downlink) earth stations in the band 39.5-40 GHz shall coordinate
directly with the existing non-Government licensee for any earth
stations located on military bases, and with the non-Government
terrestrial licensee in whose service area the Government earth station
is to be located. All parties concerned should resolve the coordination
problems based on a first in time sharing basis and obtain coordination
agreements with prior licensed facility operators.

\* \* \* \* \*

9\. Section 101.107 would be amended by revising note 9 to the table in
paragraph (a) to read as follows:

**§ 101.107 Frequency tolerance.**

\(a\) \* \* \*

/9/ Equipment authorized to be operated in the 37,000-40,000 MHz,
42,000-42,500 MHz, 71,000-76,000 MHz, 81,000-86,000 MHz, 92,000-94,000
MHz and 94,100-95,000 MHz bands is exempt from the frequency tolerance
requirement noted in the above table.

\* \* \* \* \*

10\. Section 101.109 would be amended by removing the entry for
38,600-40,000 MHz and adding entries for 37,000-40,000 MHz and for
42,000-42,500 MHz and revising footnote 7 to read as follows:

**§ 101.109 Bandwidth.**

\* \* \* \* \*

\(c\) \* \* \*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Frequency Band Maximum

(MHz) Authorized

[Bandwidth]{.underline}

\* \* \* \* \* \*

37,000 to 40,000 50 MHz /7/

42,000 to 42,500 50 MHz /7/

\* \* \* \* \* \*

/7/ For channel block assignments in the 24,250-25,250 MHz,
37,000-40,000 MHz, and 42,200-42,500 MHz bands, the authorized bandwidth
is equivalent to an unpaired channels block assignment or to either half
of a symmetrical paired channel block assignment. When adjacent channels
are aggregated, equipment is permitted to operate over the full channel
block aggregation without restriction.

Note to Footnote 7: \* \* \*

\* \* \* \* \*

11\. Section 101.113(a) would be amended by removing the entry for
38,600-40,000 MHz and adding entries in the table for 37,000-40,000 MHz
and for 42,000-42,500 MHz to read as follows:

**§ 101.113 Transmitter power limitations.**

\(a\) \* \* \*

+----------------------------+------------------+----------------------+
| Frequency Band (MHz)       | Maximum          |                      |
|                            | allowable        |                      |
|                            |                  |                      |
|                            | EIRP ^1^ ^2^     |                      |
+============================+==================+======================+
|                            | Fixed            | Mobile               |
|                            |                  |                      |
|                            | (dBW)            | (dBW)                |
+----------------------------+------------------+----------------------+
| \* \* \*                   | \* \* \*         | \* \* \*             |
+----------------------------+------------------+----------------------+
| 37,000 to 40,000           | +55              | ....                 |
|                            |                  | .................... |
+----------------------------+------------------+----------------------+
| 42,000 to 42,500           | +55              | ....                 |
|                            |                  | .................... |
+----------------------------+------------------+----------------------+
| \* \* \*                   | \* \* \*         | \* \* \*             |
+----------------------------+------------------+----------------------+

**\* \* \* \* \***

12\. Section 101.115 would be amended by adding entries in the table for
37,000-40,000 MHz and 42,000-42,500 MHz, deleting the entry for
38,600-40,000 MHz, and by revising footnote 14 in paragraph (c) to read
as follows:

**§ 101.115 Directional antennas.**

\* \* \* \* \*

\(c\) \* \* \* \* \*

<table>
<colgroup>
<col style="width: 21%" />
<col style="width: 9%" />
<col style="width: 10%" />
<col style="width: 9%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
<col style="width: 7%" />
</colgroup>
<tbody>
<tr class="odd">
<td>* * *</td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="even">
<td>31,000 to 31,300 <sup>12,13</sup></td>
<td>n/a</td>
<td>4.0</td>
<td>38</td>
<td>n/a</td>
<td>n/a</td>
<td>n/a</td>
<td>n/a</td>
<td>n/a</td>
<td>n/a</td>
<td>n/a</td>
</tr>
<tr class="odd">
<td>37,000 to 40,000 <sup>14</sup></td>
<td><p>A</p>
<p>B</p></td>
<td><p>n/a</p>
<p>n/a</p></td>
<td><p>38</p>
<p>38</p></td>
<td><p>25</p>
<p>20</p></td>
<td><p>29</p>
<p>24</p></td>
<td><p>33</p>
<p>28</p></td>
<td><p>36</p>
<p>32</p></td>
<td><p>42</p>
<p>35</p></td>
<td><p>55</p>
<p>36</p></td>
<td><p>55</p>
<p>36</p></td>
</tr>
<tr class="even">
<td>42,000 to 42,500 <sup>14</sup></td>
<td><p>A</p>
<p>B</p></td>
<td><p>n/a</p>
<p>n/a</p></td>
<td><p>38</p>
<p>38</p></td>
<td><p>25</p>
<p>20</p></td>
<td><p>29</p>
<p>24</p></td>
<td><p>33</p>
<p>28</p></td>
<td><p>36</p>
<p>32</p></td>
<td><p>42</p>
<p>35</p></td>
<td><p>55</p>
<p>36</p></td>
<td><p>55</p>
<p>36</p></td>
</tr>
</tbody>
</table>

\* \* \*

> ^14^Stations authorized to operate in these bands may use antennas
> other than those meeting the Category A standard. However, the
> Commission may require the use of higher performance antennas where
> interference problems can be resolved by the use of such antennas.

**\* \* \* \* \***

13\. Section 101.147(v) would be amended to read as follows:

**§ 101.147 Frequency Assignments**

\* \* \*

(v)(1) Assignments in the bands 37,000-40,000 MHz and 42,000-42,500 MHz
must be according to the following frequency plan:

**\[Option 1\] unpaired channels are at lower end of 37.0-38.6 GHz**

  ------------ ---------------------- ------------- ----------------------
  Paired                                            
  Channel                                           
  Blocks                                            

  Channel                             Channel Group 
  Group A                             B             

  Channel No.  Frequency Block (MHz)  Channel No.   Frequency Block (MHz)

  1-A          38,600-38,650          1-B           39,300-39,350

  2-A          38,650-38,700          2-B           39,350-39,400

  3-A          38,700-38,750          3-B           39,400-39,450

  4-A          38,750-38,800          4-B           39,450-39,500

  5-A          38,800-38,850          5-B           39,500-39,550

  6-A          38,850-38,900          6-B           39,550-39,600

  7-A          38,900-38,950          7-B           39,600-39,650

  8-A          38,950-39,000          8-B           39,650-39,700

  9-A          39,000-39,050          9-B           39,700-39,750

  10-A         39,050-39,100          10-B          39,750-39,800

  11-A         39,100-39,150          11-B          39,800-39,850

  12-A         39,150-39,200          12-B          39,850-39,900

  13-A         39,200-39,250          13-B          39,900-39,950

  14-A         39,250-39,300          14-B          39,950-40,000

  19-A         37,200-37,250          19-B          37,900-37,950

  20-A         37,250-37,300          20-B          37,950-38,000

  21-A         37,300-37,350          21-B          38,000-38,050

  22-A         37,350-37,400          22-B          38,050-38,100

  23-A         37,400-37,450          23-B          38,100-38,150

  24-A         37,450-37,500          24-B          38,150-38,200

  25-A         37,500-37,550          25-B          38,200-38,250

  26-A         37,550-37,600          26-B          38,250-38,300

  27-A         37,600-37,650          27-B          38,300-38,350

  28-A         37,650-37,700          28-B          38,350-38,400

  29-A         37,700-37,750          29-B          38,400-38,450

  30-A         37,750-37,800          30-B          38,450-38,500

  31-A         37,800-37,850          31-B          38,500-38,550

  32-A         37,850-37,900          32-B          38,550-38,600

  33-A         42,000-42,050          33-B          42,250-42,300

  34-A         42,050-42,100          34-B          42,300-42,350

  35-A         42,100-42,150          35-B          42,350-42,400

  36-A         42,150-42,200          36-B          42,400-42,450

  37-A         42,200-42,250          37-B          42,450-42,500
  ------------ ---------------------- ------------- ----------------------

  -------------------------- --------------------------------------------
  Unpaired Channel Blocks    

  Channel No.                Frequency Block (MHz)

  15                         37,000-37,050

  16                         37,050-37,100

  17                         37,100-37,150

  18                         37,150-37,200
  -------------------------- --------------------------------------------

**\[Option 2\] unpaired channels are at upper end of 37.0-38.6 GHz**

  ------------ ---------------------- ------------- ----------------------
  Paired                                            
  Channel                                           
  Blocks                                            

  Channel                             Channel Group 
  Group A                             B             

  Channel No.  Frequency Block (MHz)  Channel No.   Frequency Block (MHz)

  1-A          38,600-38,650          1-B           39,300-39,350

  2-A          38,650-38,700          2-B           39,350-39,400

  3-A          38,700-38,750          3-B           39,400-39,450

  4-A          38,750-38,800          4-B           39,450-39,500

  5-A          38,800-38,850          5-B           39,500-39,550

  6-A          38,850-38,900          6-B           39,550-39,600

  7-A          38,900-38,950          7-B           39,600-39,650

  8-A          38,950-39,000          8-B           39,650-39,700

  9-A          39,000-39,050          9-B           39,700-39,750

  10-A         39,050-39,100          10-B          39,750-39,800

  11-A         39,100-39,150          11-B          39,800-39,850

  12-A         39,150-39,200          12-B          39,850-39,900

  13-A         39,200-39,250          13-B          39,900-39,950

  14-A         39,250-39,300          14-B          39,950-40,000

  15-A         37,000-37,050          15-B          37,700-37,750

  16-A         37,050-37,100          16-B          37,750-37,800

  17-A         37,100-37,150          17-B          37,800-37,850

  18-A         37,150-37,200          18-B          37,850-37,900

  19-A         37,200-37,250          19-B          37,900-37,950

  20-A         37,250-37,300          20-B          37,950-38,000

  21-A         37,300-37,350          21-B          38,000-38,050

  22-A         37,350-37,400          22-B          38,050-38,100

  23-A         37,400-37,450          23-B          38,100-38,150

  24-A         37,450-37,500          24-B          38,150-38,200

  25-A         37,500-37,550          25-B          38,200-38,250

  26-A         37,550-37,600          26-B          38,250-38,300

  27-A         37,600-37,650          27-B          38,300-38,350

  28-A         37,650-37,700          28-B          38,350-38,400

  33-A         42,000-42,050          33-B          42,250-42,300

  34-A         42,050-42,100          34-B          42,300-42,350

  35-A         42,100-42,150          35-B          42,350-42,400

  36-A         42,150-42,200          36-B          42,400-42,450

  37-A         42,200-42,250          37-B          42,450-42,500
  ------------ ---------------------- ------------- ----------------------

  -------------------------- --------------------------------------------
  Unpaired Channel Blocks    

  Channel No.                Frequency Block (MHz)

  29                         38,400-38,450

  30                         38,450-38,500

  31                         38,500-38,550

  32                         38,550-38,600
  -------------------------- --------------------------------------------

(v)(2) Channel Blocks 1 through 37 are assigned for use within Economic
Areas (EAs). Applicants are to apprise themselves of any licensed
rectangular service areas in the band 38,6000-40,000 MHz within the EA
for which they seek a license and comply with the requirements set out
in § 101.103. All of the channel blocks may be subdivided as desired by
the licensee as frequency pairs and used within its service area as
desired without further authorization subject to the terms and
conditions set out in § 101.149.

\* \* \* \* \*

14\. Section 101.149 would be revised by revising the title and
introductory paragraph and adding subparagraphs (d) and (e) to read as
follows:

**§ 101.149 Special requirements for operation in the bands
37,000-40,000 MHz, and 42,000-42,500 MHz.**

Assigned frequency channels in the bands 37,000-40,000 MHz, and
42,000-42,500 MHz may be aggregated/disaggregated with no limits and
used anywhere in the authorized service area, subject to the following
terms and conditions:

\* \* \*

\(d\) Point-to-point, point-to-multipoint, fixed and mobile terrestrial
operations (upon adoption of interference protection criteria for mobile
operations) shall be permitted in the bands 37,000-40,000 MHz, and
42,000-42,500 MHz. Fixed satellite earth station operations may also be
permitted if the license is obtained through competitive bidding,
partitioning, and/or aggregation/disaggregation under Part 101.

\(e\) For the frequency bands 37,000-40,000 MHz, and 42,000-42,500 MHz,
spectrum must be aggregated/disaggregated by frequency pairs.

\* \* \* \* \*

15\. Subpart N of Part 101 would be amended by revising the title to
read as follows:

**Competitive Bidding Procedures for the 37.0-40.0 GHz and 42.0-42.5 GHz
Bands**

\* \* \*

16\. Section 101.1201 would be revised to read as follows:

**§ 101.1201 37.0-40.0 GHz and 42.0-42.5 GHz subject to competitive
bidding.**

Mutually exclusive initial applications for 37.0-40.0 GHz and 42.0-42.5
GHz band licenses are subject to competitive bidding. The general
competitive bidding procedures set forth in 47 CFR Part 1, Subpart Q
will apply unless otherwise provided in this subpart.

17\. Section 101.12XX as added (rule number to be determined later)
would read as follows:

**§ 101.12XX Designated Entities.**

\(a\) Eligibility for small business provisions.

\(1\) A small business is an entity that, together with its affiliates,
its controlling interests and the affiliates of its controlling
interests, has average gross revenues that are not more than \$40
million for the preceding three years.

\(2\) A very small business is an entity that, together with its
affiliates, its controlling interests and the affiliates of its
controlling interests, has average gross revenues that are not more than
\$15 million for the preceding three years.

\(b\) Bidding credits.

\(1\) A winning bidder that qualifies as a small business, as defined in
this section, or a consortium of small businesses may use a bidding
credit of 15 percent, as specified in § 1.2110(f)(2)(iii), to lower the
cost of its winning bid on any of the licenses in this part.

\(2\) A winning bidder that qualifies as a very small business, as
defined in this section, or a consortium of very small businesses may
use a bidding credit of 25 percent, as specified in § 1.2110(f)(2)(ii),
to lower the cost of its winning bid on any of the licenses in this
part.

> \* \* \* \*

**APPENDIX B**

**Initial Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),[^264] the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this *Third Notice of Proposed Rule Making (Third NPRM)*.
Written public comments are requested on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by the deadlines
for comments on this *Third* *NPRM* provided in Section IV, (Procedural
Matters), of the item. The Commission will send a copy of the *Third
NPRM*, including this IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration.[^265] In addition, the *Third Notice* and
IRFA (or summaries thereof) will be published in the Federal
Register.[^266]

## A. Need for, and Objectives of, the Notice of Proposed Rulemaking  {#a.-need-for-and-objectives-of-the-notice-of-proposed-rulemaking .unnumbered}

This rulemaking action is being undertaken to propose a licensing plan,
a channeling plan, certain technical rules, and competitive bidding
procedures for the 37.0-38.6 and 42.0-42.5 ("37/42") GHz spectrum bands.
Currently, there are no such rules in place for these bands. Our
objective is to facilitate spectrum aggregation, equipment development
and service planning, and otherwise to create rules that will maximize
efficient use of these bands, and that are in the public interest. We
note specifically that, as described below, we propose to provide
bidding credits to small and very small businesses.

## B. Legal Basis for Proposed Rules {#b.-legal-basis-for-proposed-rules .unnumbered}

The proposed action is authorized under Sections 1, 4(i), 7, 301, 303,
308 and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 151, 154(i), 157, 301, 303, 308, 309(j).

## Description and Estimate of the Small Entities to Which Rules Will Apply 

The RFA requires that an initial regulatory flexibility analysis be
prepared for notice and comment rulemaking proceedings, unless the
Agency certifies that "the rule will not, if promulgated, have a
significant impact on a substantial number of small entities.[^267] The
RFA generally defines the term "small entity" as having the same meaning
as the terms "small business," "small organization," and "small
governmental jurisdiction."[^268] In addition, the term "small business"
has the same meaning as the term "small business concern" under the
Small Business Act.[^269] A "small business concern" is one which: (1)
is independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
Small Business Administration (SBA).[^270] A small organization is
generally "any not-for-profit enterprise which is independently owned
and operated and is not dominant in its field."[^271] This IRFA
describes and estimates the number of small entity licensees that may be
affected if the proposals in this *Third NPRM* are adopted.

When identifying small entities that could choose to participate in an
auction and be affected by our new rules, we provide information
describing auctions results, including the number of small entities that
are winning bidders. We note, however, that the number of winning
bidders that qualify as small businesses at the close of an auction does
not necessarily reflect the total number of small entities currently in
a particular service. The Commission does not generally require,
post-auction, that applicants provide business size information, except
in the context of an assignment or transfer of control application where
unjust enrichment issues are implicated. Consequently, to assist the
Commission in analyzing the total number of potentially affected small
entities, we request commenters to estimate the number of small entities
that may be affected by any rule changes resulting from this *Third
NPRM.*

**National Figures:**

1.  **Small Businesses.** Nationwide, there are a total of 22.4 million
    small businesses, according to SBA data.[^272]

2.  **Small Organizations.** Nationwide, there are approximately 1.6
    million small organizations.[^273]

3.  **Small Governmental Jurisdictions.** The term \"small governmental
    jurisdiction\" is defined as "governments of cities, towns,
    townships, villages, school districts, or special districts, with a
    population of less than fifty thousand."[^274] As of 1997, there
    were approximately 87,453 governmental jurisdictions in the United
    States.[^275] This number includes 39,044 county governments,
    municipalities, and townships, of which 37,546 (approximately 96.2%)
    have populations of fewer than 50,000, and of which 1,498 have
    populations of 50,000 or more. Thus, we estimate the number of small
    governmental jurisdictions overall to be 84,098 or fewer.

**Wireless Service Providers.**

The SBA has developed a small business size standard for wireless small
businesses within the two separate categories of **Paging**[^276] and
**Cellular and Other Wireless Telecommunications**. [^277] Under both
SBA categories, a wireless business is small if it has 1,500 or fewer
employees. According to Commission data,[^278] 1,387 companies reported
that they were engaged in the provision of wireless service. Of these
1,387 companies, an estimated 945 have 442 or fewer employees and 586
have more than 1,500 employees.[^279] Consequently, the Commission
estimates that most wireless service providers are small entities that
may be affected by the rules and policies adopted herein

**39 GHz Service.** The Commission created a special small business size
standard for 39 GHz licenses -- an entity that has average gross
revenues of \$40 million or less in the three previous calendar
years.[^280] An additional size standard for "very small business" is:
an entity that, together with affiliates, has average gross revenues of
not more than \$15 million for the preceding three calendar years.[^281]
The SBA has approved these small business size standards.[^282] The
auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed
on May 8, 2000. The 18 bidders who claimed small business status won 849
licenses. Consequently, the Commission estimates that 18 or fewer 39 GHz
licensees are small entities that may be affected by the rules and
polices proposed herein.

## Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements 

Generally, all applicants are required to seek authorizations to
construct and operate and to adhere to the technical criteria set out in
the final rules. However, this *Third NPRM* proposes service rules and
auction rules for the 37.0-38.6 GHz band and the 42.0-42.5 GHz band
("37/42 GHz bands") either by a geographic area licensing approach or
the first-come, first-served link-by-link registration approach, in
order to coordinate spectrum use that will affect reporting,
recordkeeping and other compliance requirements. Each of these changes
is described below:

The *Third NPRM* proposes to require users in the 37/42 GHz bands to
coordinate procedures with the National Telecommunications and
Information Administration (NTIA) in negotiations with non-Government
and Government stations in the band and that these negotiations would
apply the geographic area licensing regulatory framework. However,
independent of the licensing approach the Commission chooses, the basic
coordination procedures with NTIA will be the same because they are
based on a site-by-site method, consistent with Section IV(6) of the
Memorandum of Understanding (MOU) between the Commission and NTIA dated
January 31, 2003, wherein the Commission and NTIA would maintain current
lists of authorized frequency assignments on the ULS and the Government
Master File (GMF) and exchange information as appropriate to coordinate
spectrum use.[^283] Also, the site-based coordination procedures
proposed here involve coordination between the Interdepartment Radio
Advisory Committee (IRAC), Commission licensees, and Government agencies
through the Commission, which represents the non-Government facilities,
and the NTIA, which represents the Government agencies. Problems would
be referred by the Commission back to its licensees/applicants and by
the NTIA to Government agencies for resolution.

The *Third NPRM* proposes to require non-Government operators/licensees
in the 37.0-38.6 GHz frequency band to maintain databases of their fixed
stations, including sufficient data for other licensees, coordinators,
and the Government to make a determination of potential interference.
Non-Government licensees would have the option of maintaining their own
databases for their facilities or of selecting third-party database
managers, frequency coordinators, or other entities to maintain their
database of facilities. The database manager would be responsible to the
licensee and would share the technical data with the Commission and
other database managers as needed for proper coordination, and retain
records of the coordination agreements with other parties. All
coordination agreements would remain in force in the event the licensee
transfers its license, partitions its service area, or disaggregates its
spectrum, until new agreements are reached.

The *Third NPRM* proposes to require the non-Government
operators/licensees to make available all necessary technical database
information to the Commission in a timely and convenient manner
sufficient for resolving interference complaints with NTIA in the event
of disputes. The *Third NPRM* also proposes to require non-Government
licensees to register their technical data electronically into the ULS
for each station in their authorized service areas in order to make
available accurate information with Government facilities such as*,* the
date of the initial operating capability of each station, specific
information identifying the station locations, technical operating
capabilities of the stations, and, if known, whether the station has
optical line-of-site to another facility with which it is being
coordinated. This site-based information would be entered into the
record of the area license in the ULS database by electronically
registering notifications to the initial Commission Form 601 using
Schedule I, but not more than twelve (12) months before operations are
scheduled to begin. The *Third NPRM* also proposes that notification and
response for site-by-site coordination for geographic area licensees
requires variations in the general coordination procedures as given in
Section 101.103 of our rules. The *Third NPRM* further proposes that
geographic area licensees must select site frequencies within their
assignment blocks of spectrum and initiate the coordination process by
notifying the other parties with whom they must coordinate and that
registrations of licensee sites on Schedule I of Form 601 must include
the licensees determination of whether possible optical line-of-site
exists to relevant (future) Government facilities. If it is determined
that optical line-of-site does not exists, the applicant is required to
explain the determination. Coordination involving existing and future
Government facilities would require licensees and applicants to ensure
that their data is accurately reflected in ULS.

The *Third NPRM* also proposes that licensees would be required to
follow existing practices and precedents regarding fees associated with
initial licenses, and to file notifications in the ULS to supply the
technical information needed to coordinate each station with Government
facilities. When revisions to ULS are developed for adding the
capability to handle licensees in the 37.0-38.6 GHz band, the capability
to collect this additional site-based information for notifications
would be added to the capability to handle "initial" auction winners as
licensees.

The *Third NPRM* proposes to conduct an auction of initial exclusive
area licenses in the 37/42 GHz band which would be required to conform
with general competitive bidding rules set out in Part 1, Subpart Q, of
our rules, substantially consistent with the bidding procedures that
have been employed in previous auctions, and specifically, rules
governing competitive bidding design, designated entities, application
and payment procedures, reporting requirements, collusion issues, and
unjust enrichment.[^284] In this connection, the *Third NPRM* also would
require, pursuant to Section 309(j) of the Communications Act,
resolution of such applications by competitive bidding.

## E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered  {#e.-steps-taken-to-minimize-significant-economic-impact-on-small-entities-and-significant-alternatives-considered .unnumbered}

The RFA requires an agency to describe any significant, specifically
small business, alternatives that it has considered in reaching its
proposed approach, which may include the following three 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."[^285]

In the *Third NPRM,* we propose service and auction rules for the 37/42
GHz bands in order to establish a flexible regulatory and licensing
framework that would promote seamless deployment of a host of services
and technologies. We seek comment on the possibility of conducting an
auction -- where applications are mutually exclusive and issuing
exclusive licenses for the 37/42 GHz bands on a geographic basis. We
believe that our proposed approach would provide a variety of businesses
with the opportunity to participate in an auction of licenses in this
band and afford licensees substantial flexibility for the provision of
services with varying capital costs. We also believe that geographic
area licensees in these bands would be presented with issues and costs
similar to those presented to 39 GHz band licensees, including those
involved in developing markets, technologies, and services. Smaller
service areas make it easier for small businesses to bid successfully
for licenses, but viable businesses may require larger service areas. We
believe that the technical rules that apply to the 39 GHz band would
also be appropriate for the 37/42 GHz bands, if we decide to adopt a
geographic area licensing approach. It would be inappropriate to apply
the 70/80/90 GHz technical rules to the 37/42 GHz bands because the
bands differ significantly from each other. Because the 37/42 GHz band
has such a large amount of spectrum, license portions of these blocks by
Economic Areas (EAs) or other portions on a site-by-site basis could be
other alternatives. By using this combined approach to licensing, the
Commission may address the needs of large entities, as well as smaller
businesses, including public safety entities. Therefore, we also seek
comment on the benefits of having some spectrum licensed by geographic
areas and some spectrum licensed on a site-by-site basis. As an
alternative, we could also pair some of the channels in the 37.0-38.6
GHz portion with some of the channels in the 42.0-42.5 GHz portion or
allocate channel sizes of 30 or 40 megahertz or even smaller. Perhaps
smaller channels might allow for smaller businesses and private entities
to effectively compete for spectrum needed for more limited applications
without needing to obtain a larger amount of spectrum that would require
substantial outlays of initial investment.[^286] We hope that these
alternatives, which might especially affect small entity participation
in the auction, will be addressed by commenters.

We note that if we adopt a geographic area licensing framework, we
propose to permit 37/42 GHz licensees to partition and disaggregate
spectrum freely within those bands. These options tend to assist small
entities. For the geographic area approach, we propose to allow
partitioning of any licensee-defined service area, disaggregation of any
amount of spectrum[^287] and combined partitioning and disaggregation.
The *Third NPRM* proposes to permit the 37/42 GHz bands to partition and
disaggregate spectrum if the Commission adopts a geographic area
licensing framework using EAs by competitive bidding and through private
negotiation and agreement. Our Part 1 unjust enrichment provisions would
govern partitioning and disaggregation arrangements involving licenses
authorized to small businesses afforded a bidding credit, including
those that later elect to partition or disaggregate their licenses to an
entity that is not eligible for the same bidding credit. In addition,
Section 309(j)(3)(B) of the Communications Act provides that, in
establishing eligibility criteria and bidding methodologies, the
Commission shall promote "economic opportunity and competition . . . by
avoiding excessive concentration of licenses and by disseminating
licenses among a wide variety of applicants, including small businesses,
rural telephone companies, and businesses owned by members of minority
groups and women."[^288] The Commission concluded in the *First NPRM and
Order*, that it should make partitioning and disaggregation available to
all 39 GHz licensees, because these capabilities would promote
flexibility both in system design and service, and encourage new
entrants into the market by creating smaller, less capital-intensive
service areas that may be more accessible to small entities.[^289]

In contrast, in the *70/80/90 GHz Report and Order,* the Commission
noted that the use of partitioning and disaggregation is pertinent only
in geographic licensing settings, where the licensee has exclusive use
of a particular area. It determined that its decision to authorize the
70/80/90 GHz bands on the basis of nationwide non-exclusive licensing
obviated the need for partitioning and disaggregation.[^290] A viable
alternative to the geographic area licensing approach would be to issue
an unlimited number of non-exclusive nationwide licenses, with licensees
authorized to deploy point-to-point "pencil beam" links on a
first-come-first-served basis. Thus, there will be no need for
partitioning and disaggregation if we adopt a non-exclusive link-by-link
registration approach. We seek comment on all of these proposals.

Also, as an alternative, and in the interest of regulatory certainty, if
we adopt a geographic area licensing structure, we propose to adopt a
rule specifically permitting spectrum aggregation. The Commission has
also concluded that permitting aggregation of channels might benefit the
public through efficiencies and flexibility in the types of services
this would allow, and might provide for lower costs or greater ability
to compete with established service providers with large transmission
capacity.[^291] We also propose that 37/42 GHz licensees be allowed to
aggregate their spectrum in order to provide greater flexibility of
service. In other services, the Commission has adopted a rule expressly
permitting aggregation.

The *Third NPRM* proposes competitive bidding procedures if we license
bands by EAs when awarding 37/42 GHz licensees set out in Part 1,
Subpart Q of our rules. Small businesses that choose to participate in
the competitive bidding for these services and utilize a bidding credit
are required to demonstrate that they meet the criteria set out to
qualify as small businesses,[^292] as required under Part 1, Subpart Q
of the Commission's rules, 47 C.F.R. Part 1, Subpart Q. We believe that
the small business size standards and corresponding bidding credits
proposed would provide a variety of businesses with opportunities to
participate in the auction of licenses for the 37/42 GHz band and afford
licensees substantial flexibility for the provision of services with
varying capital costs.[^293] We further propose to provide small
businesses with a bidding credit of fifteen percent and very small
businesses with a bidding credit of twenty-five percent. The bidding
credits we propose here are those set out in the standardized schedule
in Part 1 of our rules.[^294] We also seek comment on the use of these
standards and associated bidding credits for applicants to be licensed
in the 37/42 GHz band, with particular focus on the appropriate
definitions of small and very small businesses as they relate to the
size of the geographic area to be covered and the spectrum allocated to
each license. In developing these proposals, however, we acknowledge the
difficulty in accurately predicting the market forces that will exist at
the time we license these frequencies. Thus, our forecasts of types of
services that licensees will offer over these bands may require
adjustment depending upon ongoing technological developments and changes
in market conditions. Accordingly, to the extent commenters support a
different bidding credit regime, or believe that there are any
distinctive characteristics to the 37/42 GHz band that suggest we should
not employ bidding credits in this instance, commenters should support
their proposals with relevant information. For example, commenters
should provide information on the types of system architecture that
licensees are likely to deploy in these bands, the availability of
equipment, market conditions, and other factors that may affect the
capital requirements or the types of services that licensees may
provide.[^295]

## F. Federal Rules That Overlap, Duplicate, or Conflict with These Proposed Rules {#f.-federal-rules-that-overlap-duplicate-or-conflict-with-these-proposed-rules .unnumbered}

None.

**APPENDIX C**

> **Existing Government Operations in 37.0-38.6 GHz Band**

**[Frequency band]{.underline} [Location (Federal Agency)]{.underline}
[Coordinates]{.underline}**

37-38 GHz Goldstone, CA (NASA) 35 ^o^ 09\' 00\" N, 116 ^o^ 50\' 06 " W

Green Bank, WV (NSF)[^296] 37 ^o^ 30\' 00\" N, 78 ^o^ 30\' 00\" W

to 39 ^o^ 15\" 00\" N, 80 ^o^ 30\' 00\" W

**APPENDIX D**

List of Commenters

Advanced Radio Telecom Corporation

Altron Communications L.C.

Association for Local Telecommunications Services

AT&T Wireless Services

Bachow and Associates, Inc.

BizTel Inc.

Columbia Millimeter Communications, L.P.

Commco, L.L.C.

DCR Communications, Inc.

> Fixed Point-to-Point Communications Section, Network Equipment
> Division of the Telecommunications Industry Association

GHz Equipment Company

GTE Service Corporation

Microwave Partners d/b/a Astroline Communications

Milliwave Limited Partnership

National Spectrum Managers Association

Pacific Bell Mobile Services

Personal Communications Industry Association

Spectrum Communications, L.C.

Telco Group, Inc.

Telephone and Data Systems, Inc.

U S West

WinStar Communications, Inc.

[^1]: *Notice of Proposed Rule Making and Order*, 11 FCC Rcd 4930 (1995)
    (\"*First NPRM and Order*\").

[^2]: *See* Amendment of the Commission's Rules Regarding the 37.0-38.6
    GHz and 38.6-40.0 GHz Bands, *Report and Order and Second Notice of
    Proposed Rule Making,* ET Docket No. 95-183, 12 FCC Rcd 18,600
    (1997) (*Report and Order and Second NPRM*), *on reconsideration,
    Memorandum Opinion and Order,* 14 FCC Rcd 12,428 (1999)
    ("*Memorandum Opinion and Order"*).

[^3]: Allocation and Designation of Spectrum for Fixed-Satellite
    Services in the 37.5-38.5 GHz, 40.5-41.5 GHz, and 48.2-50.2 GHz
    Frequency Bands; Allocation of Spectrum to Upgrade Fixed and Mobile
    Allocations in the 40.5-42.5 GHz Frequency Band; Allocation of
    Spectrum in the 46.9-47.0 GHz Frequency Band for Wireless Services;
    and Allocation of Spectrum in the 37.0-38.0 GHz and 40.0-40.5 GHz
    for Government Operations, *Second Report and Order,* IB Docket No.
    97-95 (FCC 03-296, released Dec. 5, 2003) ("*36-51 GHz Second
    R&O"*).

[^4]: *See* TIA Petition for Rulemaking, RM 8553 (filed Sept. 9, 1994);
    TIA Amendment to Petition for Rulemaking, RM-8553 (filed May 4,
    1995) ("TIA Petition"). For a full description of the history of
    this proceeding, see *Report and Order and Second NPRM,* 12 FCC Rcd
    at 18,606-09 ¶¶ 4-11.

[^5]: *First NPRM and Order*.

[^6]: *Id.* at 4,937-38 ¶ 13.

[^7]: *See* Motorola Satellite Systems, Inc. Application to Construct,
    Launch and Operate the M-Star System, File No. 157-SAT-P/LA-96(72)
    (filed Sept. 4, 1996); Motorola Petition for Rulemaking, RM-8811
    (filed Mar. 4, 1996).

[^8]: Allocation and Designation of Spectrum for Fixed-Satellite
    Services in the 37.5-38.5 GHz, 40.5-41.5 GHz, and 48.2-50.2 GHz
    Frequency Bands, *Notice of Proposed Rulemaking,* IB Docket No.
    97-95, 12 FCC Rcd 10,130 (1997) ("*36-51 GHz NPRM"*).

[^9]: *Id.* at 10,136-38 ¶ 14.

[^10]: *Id.* at 10,44-45 ¶¶ 30-33.

[^11]: Amendment of the Commission's Rules Regarding the 37.0-38.6 and
    38.6-40.0 GHz Bands, *Report and Order and Second Notice of Proposed
    Rule Making*, 12 FCC Rcd 18,600 (1997) ("*Report and Order and
    Second NPRM"*).

[^12]: *Id.* at 18,604-05 ¶ 2.

[^13]: *Id.* at 18,629 ¶ 59.

[^14]: *Id.*

[^15]: Allocation and Designation of Spectrum for Fixed-Satellite
    Services in the 37.5-38.5 GHz, 40.5-41.5 GHz, and 48.2-50.2 GHz
    Frequency Bands, *Report and Order,* IB Docket No. 97-95, 13 FCC Rcd
    24,649 (1998) ("*36-51 GHz Order"*), *affirmed, Order on
    Reconsideration,* 15 FCC Rcd 1,766 (1999) ("*36-51 GHz
    Reconsideration Order"*).

[^16]: *Id.* at 24,651 ¶ 1.

[^17]: *36-51 GHz Order*, 13 FCC Rcd at 24,654 ¶ 10, 24,671-72 ¶ 43.

[^18]: *Id.* at 24,651 ¶ 2, 24,668 ¶¶ 34-36. The 46.9-47.0 GHz and
    50.5-51.4 GHz bands will be addressed in a subsequent proceeding.

[^19]: The ITU holds multi-national World Radiocommunication Conferences
    (WRCs) at two or three year intervals to establish international
    provisions governing the use of the electromagnetic spectrum.

[^20]: *See* CITEL Administrations, *Proposals for the Work of the
    Conference,* Doc. 14-E, Addendum 1 at 15 (Mar. 25, 2000 (CITEL
    Proposals).

[^21]: *See* Allocation and Designation of Spectrum for Fixed-Satellite
    Services in the 37.5-38.5 GHz, 40.5-41.5 GHz and 48.2-50.2 GHz
    Frequency Bands, *Further Notice of Proposed Rule Making*, IB Docket
    No. 97-95, 16 FCC Rcd 12,244 (2001) ("*36-51 GHz Further Notice"*).

[^22]: *See 36-51 GHz Further Notice,* 16 FCC Rcd at 12249 (citing Final
    Acts of the World Radiocommunication Conference (Istanbul, 2000)
    ("*WRC-2000 Final Acts"*)*,* Article S5).

[^23]: *Id.* at 16 FCC Rcd 12244 ¶¶ 12-13, 12,250 ¶ 46. *See* ¶¶ 76 and
    81, *infra*, for discussion of existing and proposed rules
    delineating methods by which earth station or satellite licensees
    may obtain access to spectrum in the 37/42 GHz bands, either by
    bidding competitively for licenses under Part 101, which governs
    terrestrial fixed microwave services, or by securing license
    agreements with Part 101 licensees. In paragraph **77**, *infra,* we
    propose to apply the same coordination triggers to Part 101 earth
    station licensees and to terrestrial stations in the 37/42 GHz
    bands.

[^24]: *36-51 GHz Further Notice*, 16 FCC Rcd at 12,244 n.4.

[^25]: *See 36-51 GHz Second R&O,* ¶¶ 12-17*.*

[^26]: *See* Allocations and Service Rules for the 71-76 GHz, 81-86 GHz,
    and 92-95 GHz Bands, *Report and Order* (FCC 03-248, released Nov.
    4, 2003) ("*70/80/90 GHz Report and Order*"). Hereinafter, we refer
    to the channels involved as the "70/80/90 GHz bands."

[^27]: *See Report and Order and Second NPRM*, 12 FCC Rcd at 18,619 ¶
    33.

[^28]: *See* discussion in ¶¶ 62-64 and ¶¶ 83-95.

[^29]: *See* Principles for Reallocation of Spectrum to Encourage the
    Development of Telecommunications Technologies for the New
    Millennium, *Policy Statement*, 14 FCC Rcd 19868, 19870 ¶ 9 (1999)
    (*Spectrum Reallocation Policy Statement*). When it amended Section
    309(j) of the Communications Act to provide the Commission with
    expanded auction authority, Congress intended "to ensure that scarce
    spectrum is put to its highest and best use." H.R. Conf. Rep. No.
    105-217, 143 Cong. Rec. H6173 (daily ed. July 29, 1997).

[^30]: *See* Appendix C, reflecting proposed changes to 47 C.F.R. Parts
    1 and 101.

[^31]: *See* Promoting Efficient Use of Spectrum Through Elimination of
    Barriers to the Development of Secondary Markets*, Report and Order
    and Further Notice of Proposed Rulemaking,* WT Docket No. 00-230,
    FCC 03-113 (rel. Oct. 6, 2003) *("Secondary Markets Report and
    Order").*

[^32]: *See* *70/80/90 GHz Report and Order, cited at* note Error:
    Reference source not found*, supra.*

[^33]: *See* 47 U.S.C. §§ 309(j)(3)(B), (4)(C).

[^34]: *See* 47 U.S.C. § 309(j)(3)(A).

[^35]: *See* 47 U.S.C. § 309(j)(4)(C)(iii).

[^36]: *First NPRM and Order,* 11 FCC Rcd at 4941 ¶ 22.

[^37]: *See, e.g.,* Advanced Radio Telecom Corporation (ART) Comments at
    47; AT&T Wireless Services (AT&T Wireless) Comments at 5; BizTel
    Inc. (BizTel) Comments at 15; Commco, L.L.C. (Commco) Comments at 9;
    DCR Communications, Inc. (DCR) Comments at 6; GTE Service
    Corporation (GTE) Comments at 4; Milliwave Limited Partnership
    (Milliwave) Comments at 8; Pacific Bell Mobile Services (Pacific)
    Comments at 4; Personal Communications Industry Association (PCIA)
    Comments at 3; Telco Group, Inc. (TGI) Comments at 11; Telephone and
    Data Systems, Inc. (TDS) Comments at 5-6; Fixed Point-to-Point
    Communications Section, Network Equipment Division of the
    Telecommunications Industry Association (TIA Equipment) Comments at
    9; U S West Inc. (U S West) Reply at 6.

[^38]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,610 ¶ 14.

[^39]: *Report and Order and Second NPRM,* 12 FCC Rcd at 18,610 ¶ 13.
    The Commission explained that applicant-defined service areas, while
    giving entities the opportunity to apply only for that area which
    they intended to serve, did not result in expeditious licensing of
    the spectrum because the mutually exclusive situations were complex
    and overlapping.

[^40]: *Id.* at 18,626-28 ¶¶ 52-57.

[^41]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,635 ¶ 71.

[^42]: *See, e.g.,* WinStar Communications, Inc. (WinStar) Comments at
    12, Milliwave Reply Comments at 17 (supporting the use of MTAs).

[^43]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,611 ¶ 15.

[^44]: *Id.,* 12 FCC Rcd at 18,610-11 ¶ 14.

[^45]: *Memorandum Opinion and Order,* 14 FCC Rcd at 12,452-53 ¶ 46.

[^46]: *See id*.

[^47]: *70/80/90 GHz Report and Order* at ¶¶ 43-60.

[^48]: *Id.* at ¶ 45.

[^49]: *Id.* at ¶¶ 48-60.

[^50]: *Id.* at ¶ 46.

[^51]: *Id.* at ¶ 80.

[^52]: *See Memorandum Opinion and Order*, 14 FCC Rcd at 12,452-53 ¶ 46.

[^53]: The *Memorandum Opinion and Order,* which set service areas for
    the 39 GHz band on the basis of EAs, was released in 1995. Thus the
    Commission utilized EAs as defined in 1995 by the U.S. Department of
    Commerce Bureau of Economic Analysis.

[^54]: *See* 47 C.F.R. § 90.7.

[^55]: The EA service areas used by the Commission are based on the
    Economic Areas delineated by the Regional Economic Analysis
    Division, Bureau of Economic Analysis, U.S. Department of Commerce
    in 1995, with the following additions: Guam and the Northern Mariana
    Islands; Puerto Rico and the U.S. Virgin Islands; American Samoa;
    and the Gulf of Mexico. *See*
    http://www.fcc.gov/oet/info/maps/areas/.

[^56]: *See* paras. 44-49, *infra*.

[^57]: 47 U.S.C. § 309(j); *see* Implementation of Sections 309(j) and
    337 of the Communications Act of 1934 as Amended, *Report and Order
    and Further Notice of Proposed Rule Making,* WT Docket No. 99-87, 15
    FCC Rcd 22709 (1999)("*BBA Report and Order"*) (establishing the
    analytical framework for the Commission's exercise of its auction
    authority).

[^58]: *See* para. 96, *infra.*

[^59]: *See* § 101.58 *System operations* in the Proposed Rules,
    Appendix C.

[^60]: *See* 47 C.F.R. § 1.1307.

[^61]: *See* 47 C.F.R. § 1.924.

[^62]: While it is generally true that an antenna of a given size
    produces tighter beamwidths for higher frequency transmissions, it
    does not necessarily follow that higher frequency operations create
    less interference than lower frequency operations. For example, a
    70/80/90 GHz system may require two links (hops) to cover the same
    distance as a single link in a 37 GHz system. Because two successive
    links must operate on different frequencies from each other to avoid
    interference, the 70/80/90 GHz system might require twice as much
    spectrum as an equivalent 37 GHz system. Thirty-seven GHz systems
    offer a better potential for using antennas with wider patterns,
    such as beamwidths of 45 degrees, for multipoint operations. To
    reach the same number of points, a 70/80/90 GHz system might require
    multiple transmissions on different paths.

[^63]: Because the 37/42 GHz bands are so close to the 39 GHz band,
    applying the 39 GHz regulatory model to the 37/42 GHz bands probably
    would require less adaptation than applying the 70/80/90 GHz model.

[^64]: *See* 47 C.F.R. § 2.106.

[^65]: *First NPRM and Order,* 11 FCC Rcd at 4,937-38 ¶ 13.

[^66]: *See, e.g.,* ART Comments at 44; Altron Communications L.C.
    (Altron) Comments at 2; Milliwave Comments at 27; Spectrum
    Communications, L.C. (Spectrum) Comments at 3; Bachow and
    Associates, Inc. (Bachow) Comments at 9; Columbia Millimeter
    Communications, L.P. (Columbia) Comments at 12-15; GHz Equipment
    Company (GEC) Comments at 3; WinStar Reply Comments at 9-10.

[^67]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,613 ¶ 20.

[^68]: *Id.* at 18,613-15 ¶¶ 20-25.

[^69]: The Commission required that minimum antenna gain be 50 dBi and
    that maximum beamwidth to 3 dB points be 0.6 degrees. *70/80/90 GHz
    Report and Order* at ¶ 96.

[^70]: *Id.*

[^71]: *Id.* at ¶ 45.

[^72]: *Id.*

[^73]: *Spectrum Policy Statement,* 14 FCC Rcd at 19870 ¶ 9.

[^74]: In 2002, for example, the Commission's Spectrum Policy Task Force
    conducted a comprehensive and systematic review of spectrum policy.
    *See generally* Spectrum Policy Task Force, *Report*, ET Docket No.
    02-135 (rel. Nov. 2002) (*Spectrum Policy Task Force Report*). This
    report is available at http://www.fcc.gov/sptf.

[^75]: *See* Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band, GN Docket No. 01-74*, Memorandum Opinion and Order,* 17 FCC
    Rcd 11613, 11629 *¶* 39 (2002); 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, ET Docket No.
    00-258, *Third Report and Order, Third Notice of Proposed Rulemaking
    and Second Memorandum Opinion and Order*, 18 FCC Rcd 2223 (2003)
    ("*AWS Third Report and Order*").

[^76]: *See 70/80/90 GHz Report and Order* at ¶ 49.

[^77]: Amendment of the Commission's Rules to Establish Part 27, the
    Wireless Communications Service (WCS), GN Docket No. 96-228, *Report
    and Order*, 12 FCC Rcd 10785 (1997) ("*Part 27 Report and Order"*).

[^78]: *See* 47 C.F.R. § 27.5(b).

[^79]: *See AWS Third Report and Order, supra* note Error: Reference
    source not found.

[^80]: Licensees of Part 27 spectrum must look to other parts of the
    Commission's rules for other applicable licensing and operating
    rules (to the extent they do not conflict with the specific
    provisions of Part 27), depending on the particular services they
    actually offer. *See* 47 C.F.R. § 27.3.

[^81]: *See Report and Order and Second NPRM* at 18,613 ¶ 20.

[^82]: *Id.*

[^83]: *Id.*

[^84]: *See Policy Statement,* 14 FCC Rcd at 19,870 ¶ 7.

[^85]: *See Report and Order and Second NPRM*, 12 FCC Rcd at 18,614-15
    ¶¶ 21-25.

[^86]: *Id.*

[^87]: *Id*.

[^88]: Paragraph 30, *supra.*

[^89]: *See id.* at 18,603 ¶ 3, 18,616 ¶ 26.

[^90]: *First NPRM and Order*, 11 FCC Rcd at 4,957-56 ¶ 97.

[^91]: *Report and Order and Second NPRM,* 12 FCC Rcd at 18,619-20 ¶¶
    32-33.

[^92]: *70/80/90 GHz Report and Order*, ¶ 70.

[^93]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18619 ¶ 32.

[^94]: 47 U.S.C. § 309(j)(3).

[^95]: *Id.*

[^96]: 47 U.S.C. § 257.

[^97]: Rulemaking To Amend Parts 1, 2, 21, and 25 of the Commission\'s
    Rules To Redesignate the 27.5-29.5 GHz Frequency Band, To Reallocate
    the 29.5-30.0 GHz Frequency Band, To Establish Rules and Policies
    for Local Multipoint Distribution Service and for Fixed Satellite
    Services, Petitions for Reconsideration of the Denial of
    Applications for Waiver of the Commission\'s Common Carrier
    Point-to-Point Microwave Radio Service Rules, CC Docket No. 92-297,
    Suite 12 Group Petition for Pioneer Preference, PP-22, *Second
    Report and Order, Order on Reconsideration, and Fifth Notice of
    Proposed Rulemaking*, FCC 97-82, 12 FCC Rcd 12545, 12616 ¶ 160
    (1997) (*LMDS Second Report and Order*), proposing Subpart L of Part
    101 of the Commission\'s Rules, 47 C.F.R. §§ 101.1001-1112; *aff'd,
    Melcher v. FCC*, 134 F.3d (C.A.D.C. 1998); Erratum, released Apr. 7,
    1997 ("*First Erratum"*); Erratum, released May 1, 1997 (*Second
    Erratum*); *Order on Reconsideration*, CC Docket No. 92-297, 12 FCC
    Rcd 6424 (1997) ("*First Reconsideration"*). We believe it is likely
    that the 37/42 GHz bands will be used for the same kinds of services
    that are provided by LMDS operators, i.e., backhaul services for
    carriers and service to large or medium-sized business customers.
    Such services are generally exposed to a significant amount of
    competition.

[^98]: *Cincinnati Bell Tel. Co. v. FCC*, 69 F.3d 752, 760 (6th Cir.
    1995) ("*Cincinnati Bell"*).

[^99]: *See, e.g.,* WinStar Comments at 36-37.

[^100]: Association for Local Telecommunications Services (ALTS)
    Comments at 2.

[^101]: BizTel Comments at 21.

[^102]: Association for Local Telecommunications Services (ALTS)
    Comments at 2.

[^103]: *Report and Order and Second NPRM,* 12 FCC Rcd at 18,619 ¶¶
    32-33.

[^104]: *Id.*

[^105]: For example, sources of actual or potential competition include
    Internet access and cable headend applications. *Id.* at 18,607 ¶ 5.

[^106]: *First NPRM and Order*, 11 FCC Rcd at 4,976 ¶ 98.

[^107]: *Report and Order and Second NPRM,* 12 FCC Rcd at 18,622-26 ¶¶
    39-50.

[^108]: 47 C.F.R. § 22.940(a)(1)(i). *See also* *LMDS Second Report and
    Order,* 12 FCC Rcd at 12,660 ¶ 269; Amendment of the Commission's
    Rules to Establish Part 27, the Wireless Communications Service, GN
    Docket No. 96-228, *Report and Order*, 12 FCC Rcd 10,785, 10,843-44
    (1997) ("*WCS Report and Order"*); Amendment of Part 95 of the
    Commission's Rules to Provide Regulatory Flexibility in the 218-219
    MHz Service, WT Docket No. 98-169, *Report and Order and Memorandum
    Opinion and Order*, 15 FCC Rcd 1,497, 1,537-38 (1999) ("*218-219 MHz
    Service Report and Order"*).

[^109]: *See, e.g*., *WCS* *Report and Order*, 12 FCC Rcd at 10,843 ¶¶
    111-112; Amendment of the Commission\'s Rules to Establish New
    Personal Communications Services, *Memorandum and Order*, GEN Docket
    No. 90-314, 9 FCC Rcd 4,957, 5,018-20 ¶¶ 154-58 (1994) ("*PCS
    MO&O"*).

[^110]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,623 ¶ 42.

[^111]: *Id*.

[^112]: *Report and Order and Second NPRM,* 12 FCC Rcd at 18,624 ¶ 46.
    We note that, although the Commission did not use the specific term
    of \"safe harbor\" in the 39 GHz band context, we believe the
    Commission intended for this example to serve, in fact, as a \"safe
    harbor.\" This determination is consistent with similar examples the
    Commission has provided in other services*. See* Amendments to Parts
    1, 2, 87, and 101 of the Commission\'s Rules to License Fixed
    Services at 24 GHz, WT Docket No. 99-327, *Report and Order*, 15 FCC
    Rcd 16,934, 16,951-52 ¶ 38 (2000) (*24 GHz Report and Order*);
    *218-219 MHz Service* *Report and Order*, 15 FCC Rcd at 1,537-38;
    Amendment of the Commission\'s Rules Concerning Maritime
    Communications, PR Docket No. 92-257, *Third Report and Order and
    Memorandum Opinion and Order,* 13 FCC Rcd 19,853, 19,870 (1998);
    *LMDS* *Second Report and Order,* 12 FCC Rcd at 12,660-61; *WCS
    Report and Order,* 12 FCC Rcd at 10,843-44 ¶ 113.

[^113]: 47 U.S.C. § 309(j)(4)(B).

[^114]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,623 ¶ 41.

[^115]: *Id.* at ¶ 80; 47 C.F.R. § 101.147(z)(3).

[^116]: *See Report and Order and Second NPRM*, 12 FCC Rcd at 18,625 ¶
    47.

[^117]: *70/80/90 GHz Report and Order* at ¶ 80.

[^118]: *Id., citing* 47 C.F.R. § 101.65.

[^119]: *See* the comments cited at note 88 of the *Report and Order and
    Second NPRM.* The commenters supported the use of the substantial
    service standard.

[^120]: *See supra* note Error: Reference source not found and
    accompanying discussion.

[^121]: *See* 47 C.F.R. § 101.1413 (West 2004 rev.).

[^122]: *See, e.g., Report and Order and Second NPRM*, 12 FCC Rcd at
    18,623.

[^123]: *See* *id.* at 18,625 ¶ 46.

[^124]: *See* *LMDS Second Report and Order*, 12 FCC Rcd at 12,660 ¶
    270; *WCS Report and Order*, 12 FCC Rcd at 10,843-44; *218-219 MHz
    Service Report and Order*, 15 FCC Rcd at 1,538 ¶ 70.

[^125]: *See 70/80/90 GHz Report and Order* at ¶ 80.

[^126]: *See* 47 C.F.R. § 101.65.

[^127]: Former 47 C.F.R. § 21.45.

[^128]: 47 C.F.R. § 101.67.

[^129]: Former 47 C.F.R. § 101.15.

[^130]: 47 C.F.R. § 1.949.

[^131]: *70/80/90 GHz Report and Order* at ¶ 77.

[^132]: *See, e.g.,* WinStar Comments at 36; Commco Comments at 11; GEC
    Comments at 6.

[^133]: *See, e.g.*, *LMDS Second Report and Order,* 12 FCC Rcd at
    12,656 ¶ 59; *Report and Order and Second NPRM,* 12 FCC Rcd at
    18,620-21 ¶ 36.

[^134]: *See, e.g., Report and Order and Second NPRM*, 12 FCC Rcd at
    18,623.

[^135]: *See First NPRM and Order,* 11 FCC Rcd at 4,972-73 ¶ 89-90.

[^136]: AT&T Wireless Comments at 10; DCR Comments at 2-6, 8; GTE
    Comments at 5; Pacific Comments at 6; U S West Reply at 6.

[^137]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,635-36 ¶¶
    71-73; *see also Memorandum Opinion and Order*, 14 FCC Rcd at
    12,460-61 ¶¶ 61-63.

[^138]: *70/80/90 GHz Report and Order* at ¶ 87.

[^139]: *First NPRM and Order,* 11 FCC Rcd at 4983 ¶ 112.

[^140]: *See, e,g,.* ART Comments at 27-38; Biztel Comments at 3, 11-14;
    Columbia Comments at 2-3; Milliwave Comments at 31-32.

[^141]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,626 ¶ 52.

[^142]: *Id.* at 18,626-27 ¶¶ 52-55.

[^143]: *Id.*

[^144]: *Id.*

[^145]: *Id.* at 18,627 ¶¶ 55.

[^146]: *See* paras. 47-68, *infra*.

[^147]: We propose to require licensees to maintain any channel pairs
    that we might establish for the 37/42 GHz bands when the licensees
    choose to disaggregate any of their licenses in this band, as we do
    for 39 GHz licensees. *See Report and Order and Second NPRM,* 12 FCC
    Rcd at 18,635 ¶ 72, and as herein proposed for application to the
    37/42 GHz bands and codification at 47 C.F.R. § 101.149(e). We have
    not decided whether to adopt a channel plan. *See* ¶¶ 57-68,
    *infra.* We reserve discretion, in the event that we propose a
    channel plan for the 37/42 GHz bands, to require disaggregation of
    that spectrum by channel pairs.

[^148]: *See* 47 C.F.R. § 1.948.

[^149]: If either licensee failed to meet its substantial showing
    requirement, only the non-performing operator's license would not be
    renewed.

[^150]: If the original licensee fails to meet the substantial service
    standard for the entire market, the subject license would cancelled
    automatically and would revert to the Commission. *See* 47 C.F.R. §§
    1.955(a)(2), 1.948, 101.56.

[^151]: *See* Amendment of Part 1 of the Commission's Rules --
    Competitive Bidding, *Third Report and Order and Second Further
    Notice of Proposed Rule Making,* WT Docket No. 97-82, 13 FCC Rcd
    374, 405 (1997); 47 C.F.R. § 1.2111.

[^152]: *See, e.g.,* 47 C.F.R. § 101.535(b)(1).

[^153]: *First NPRM and Order,* 11 FCC Rcd at 4,977 ¶ 99.

[^154]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,636 ¶ 76.

[^155]: *Id.*

[^156]: *Id*.

[^157]: 47 C.F.R. § 101.135.

[^158]: 47 C.F.R. § 101.603; *see* Amendment of Part 101 of the
    Commission's Rules to Streamline Processing of Microwave
    Applications in the Wireless Telecommunications Services, *Report
    and Order,* WT Docket No. 00-19, 17 FCC Rcd 15,040, 15,048 ¶ 12
    (2002).

[^159]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,636 ¶ 76.

[^160]: *Id*.

[^161]: *See* 47 U.S.C. §§ 310(a), (b).

[^162]: *NPRM*, 14 FCC Rcd at 19,277 ¶¶ 23-24.

[^163]: 47 C.F.R. § 101.7(a).

[^164]: 47 C.F.R. § 101.7(b).

[^165]: *See* Revisions to Part 21 of the Commission\'s Rules regarding
    the Multipoint Distribution Service, *Report and Order,* CC Docket
    No. 86-179, 2 FCC Rcd at 4,253 ¶ 16 ("*MDS Report and Order"*);
    Streamlining the Commission's Rules and Regulations for Satellite
    Application and Licensing Procedures, IB Docket No. 95-117, *Report
    and Order*, 11 FCC Rcd 21,581, 21599 ¶ 43 (1996); *LMDS Second
    Report and Order*, 12 FCC Rcd at 12,651 ¶ 243; *24 GHz* *Report and
    Order,* 15 FCC Rcd at 16,957-58 ¶¶ 52-58.

[^166]: We note, however, that to the extent that a licensee's decision
    to change its regulatory status raises issues with respect to that
    licensee exceeding the benchmark contained in 47 C.F.R. § 310(b)(4),
    the rules require the Commission's prior approval before the
    licensee can make this change. Rules and Policies on Foreign
    Participation in the U.S. Telecommunications Market and Market Entry
    and Regulation of Foreign-Affiliated Entities, *Report and Order and
    Order on Reconsideration*, IB Docket Nos. 97-142 and 95-22, 12 FCC
    Rcd 23,891, 23,940-41 ¶¶ 111-118 (1997).

[^167]: *See* *70/80/90 GHz Report and Order* at ¶¶ 90-99 (adopting
    rules for interference protection criteria, frequency tolerance,
    restrictions on total radiated power, antenna directionality, and RF
    safety).

[^168]: *Id.* at 18,629 ¶ 59-60.

[^169]: *Id.* at 18,631 ¶ 63.

[^170]: WinStar Comments at 57; ART Comments at 20; Columbia Comments at
    16; Commco Comments at 11.

[^171]: For example, INNOVA Corporation ("INNOVA\") supports the
    Commission's minimum digital efficiency of 1 bps/Hz for all those
    channel blocks which is available for use for broadband PCS or
    cellular services. INNOVA Comments at 4. Digital Microwave
    Corporation (DMC) avers that the spectrum efficiency standard set
    out for microwave transmitters employing digital modulation
    techniques in the 17.7-19.7 GHz band is preferable and suggests that
    we extend this standard to the 37 GHz band channels. DMC Comments at
    2-3.

[^172]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,629 ¶ 60.

[^173]: *See id.* at 18,630 ¶ 61.

[^174]: *See Report and Order and Second NPRM,* 12 FCC Rcd at 18,631-32
    ¶ 65; *Memorandum Opinion and Order,* 14 FCC Rcd at 12,458 ¶¶ 55-56
    (The Commission clarified the extent of this flexibility).

[^175]: *First NPRM and Order,* 11 FCC Rcd at 4,987 ¶ 119.

[^176]: TIA Equipment Comments at 26; BizTel Comments at 40-43; INNOVA
    Comments at 3-5; WinStar Comments at 57-63.

[^177]: *Report and Order and Second NPRM,* 12 FCC Rcd at 18,631-32 ¶
    65; *see also Memorandum Opinion and Order,* 14 FCC Rcd at 12,458 ¶
    56. Category A and B antennas are defined in, 47 C.F.R. §
    101.115(c). Generally, Category A antennas are larger, more
    expensive, and have higher gains and narrower beamwidths than
    Category B antennas.

[^178]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,632 ¶ 66.

[^179]: *First NPRM and Order,* 11 FCC Rcd at 4,984 ¶ 115.

[^180]: *See, e.g.,* ALTS Comments at 2; AT&T Wireless Comments at 9;
    Columbia Comments at 12-15; Microwave Partners Comments at 11;
    Milliwave Comments at 23-25; WinStar Comments at 57-63.

[^181]: As noted in ¶ 24, *supra,* the Commission adopted technical
    rules requiring tightly focused "pencil-beam" transmissions in the
    70/80/90 GHz bands.

[^182]: *See 36-51 GHz Second R&O* sections on designation changes and
    allocation changes*.*

[^183]: *First NPRM and Order,* 11 FCC Rcd at 4,940 ¶ 19. The Commission
    also proposed to allow licensees to subdivide (and retain the use
    of) channels in their discretion. *Id.* at ¶ 20.

[^184]: *See* Appendix B, Proposed Rules, § 101.147, Option 2.

[^185]: *First NPRM and Order,* 11 FCC Rcd at 4,940 ¶ 19.

[^186]: *Id*.

[^187]: *See, e.g.,* ART Comments at 45-47; Altron Comments at 2-3; AT&T
    Wireless Comments at 3-4; DMC Comments at 2; GEC Comments at 5-6;
    Milliwave Comments at 7; TIA Equipment Comments at 25; TDS Comments
    at 4; WinStar Comments at 10-11.

[^188]: *See supra,* ¶¶ 4-9.

[^189]: *36-51 Second R&*O, ¶ 39.

[^190]: *Id.,* ¶ 41; *See also*, Letter from William T. Hatch, Associate
    Administrator, Office of Spectrum Management, to Bruce Franca,
    Acting Chief, Office of Engineering and Technology, Federal
    Communications Commission pp. 1-2 (Aug. 31, 2002).

[^191]: *36-51 Second R&O*, ¶ 41**.**

[^192]: 47 C.F.R. § 2.106 n.US311 (2002).

[^193]: See Section E, beginning at para. 68 *infra* for more details.

[^194]: See letter from Frederick R. Wentland, Associate Administrator,
    Office of Spectrum Management, NTIA, dated March 24, 2004, to Mr.
    Edmond J. Thomas, Chief, Office of Engineering and Technology, FCC.
    ("*NTIA Letter"*).

[^195]: "*NTIA Letter"* p. 1

[^196]: *Id*. pp 1-2.

[^197]: *Id*.

[^198]: *Id*. p. 2 and Enclosure 1. The Commission believes that
    Goldstone is not yet operational in this band, however, the
    Commission stated that it would seek protection of this facility in
    its "*36-51 Second R&*O." *See* ¶ 62, *supra*.

[^199]: *Id*.

[^200]: *Id.*

[^201]: *Id*. p. 2 and Enclosure 2.

[^202]: *Id*. Enclosure 2.

[^203]: *See Report and Order and Second NPRM*, 12 FCC Rcd at 18,616-17
    ¶¶ 27-28.

[^204]: *See* Appendix B, Proposed Rules, § 101.147, Option 1.

[^205]: *See* 47 U.S.C. § 309(j)(4)(D).

[^206]: Declining to propose a channel plan would result in two large
    contiguous blocks of spectrum, one of 1600 megahertz from 37.0-38.6
    GHz and one of 500 megahertz from 42.0-42.5 GHz.

[^207]: 47 C.F.R. § 101.103(d).

[^208]: *First NPRM and Order,* 11 FCC Rcd at 4,986-87 ¶ 117.

[^209]: NSMA Comments at 1-8. The NSMA is a private organization that
    leads efforts to develop and refine the frequency coordination
    procedures used by the point-to-point microwave industry.

[^210]: *Report and Order and Second NPRM,* 12 FCC Rcd at 18,633-34 ¶¶
    68-69. That study has not been completed.

[^211]: *Id.* at 18,634 ¶ 69.

[^212]: *See 24 GHz Report and Order,* 15 FCC Rcd at 16987 ¶ 29 (citing
    47 C.F.R. § 101.509).

[^213]: Optical line of sight is a visual path (an unobstructed straight
    line) from the transmitting antenna to another site or antenna. In
    effect, buildings, curvature of the earth, or mountains would block
    the path. Because frequencies in these ranges travel very short
    distances, we have chosen to use optical line of sight, which
    differs slightly from radio line of sight in that optical line of
    sight does not take into consideration the refraction of radio waves
    in the atmosphere, which would have an effect if these signals
    traveled longer distances. Optical line of sight can be calculated
    using the formula *d=3.57*√*h,* where *d* is the distance between
    the antenna and the horizon in kilometers and *h* is the antenna
    height in meters. The formula for radio or effective line of sight
    is *d=3.57*√*(Kh),* where *K*=4/3 and is the adjustment for
    refraction. The maximum optical distance between two antennas where
    *htx* is the transmit antenna height and *hrx* is the receive
    antenna height is *d=3.09(*√*htx +*√ *hrx).*

[^214]: *See* 47 C.F.R. § 101.509.

[^215]: These two agreements can be found at:
    http://www.fcc.gov/ib/sand/agree/can_nonbroad_agree.html in PDF
    format under "broadband wireless systems" for 24 GHz and 39 GHz and
    under "LMDS" for 28 GHz. Licensees in these bands are required to
    comply with the agreements.

[^216]: Here, the geographic service areas are comprised of EAs or other
    defined geographical areas.

[^217]: 39 GHz incumbents have self-defined rectangular areas that will
    represent the boundary of the incumbent.

[^218]: At a minimum, stations whose radio horizon overlaps adjacent
    areas should contact the relevant licensees regarding coordination
    of facilities.

[^219]: *See* 47 C.F.R. § 101.111.

[^220]: *See* Amendment of the Commission's Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, and
    Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, 37.0-38.6 GHz and 38.6-40.0 GHz Bands, PP
    Docket No. 93-253, *Memorandum Opinion and Order*, 14 FCC Rcd 12,428
    at 12,453-12,454 ¶¶ 47-49 (1999) (*39 GHz MO&O*).

[^221]: *Id.*

[^222]: *36-51 GHz Reconsideration Order*, 15 FCC Rcd at 1770 n.29.

[^223]: Allocation and Designation of Spectrum for Fixed-Satellite
    Services in the 37.5-38.5 GHz, 40.5-41.5 GHz and 48.2-50.2 GHz
    Frequency Bands, IB Docket No. 97-95, 16 FCC Rcd 12,244, 12,261-62
    ¶¶ 48-51 (2001) ("*Allocation Further Notice"*).

[^224]: *Id.* 47 C.F.R. § 101.147; *see also* 47 C.F.R. § 101.149
    (explaining terms and conditions of EA licenses).

[^225]: *See* *36-51 GHz Reconsideration Order,* 15 FCC Rcd at 1,769 ¶¶
    6-8; *cf.* TRW Inc., Request for Waiver of the Commission's Rules to
    Provide Fixed Satellite Service in the 39 GHz Band*, Memorandum
    Opinion and Order*, 16 FCC Rcd 5,198, 5,202 ¶ 11 (WTB 2001)
    ("amplify\[ing\] what is permitted under the Commission's Part 101
    Rules"). The Commission clarified that all operations under a 39 GHz
    EA license, including future operations of any FSS earth stations,
    must comply with the Part 101 rules governing the operation of the
    39 GHz band. With regard to coordination, the same criteria as
    applied to terrestrial stations would be applied to earth stations.
    For example, adjacent EA licensees and incumbents must coordinate
    only their stations within 16 kilometers of the boundary of their
    areas, regardless of whether an earth station may require greater
    consideration. Likewise, an EA licensee (or a party it has reached
    agreement with) is not entitled to protection (vis-a-vis the
    incumbent licensee\'s operations) for earth stations deployed in
    areas inside the rectangular boundaries of incumbents license areas,
    even if that license area is completely or partially located inside
    the licensed EA. The Commission explained that this requirement may
    necessitate locating earth stations away from the EA or incumbent
    boundaries. Furthermore, an EA licensee, whether providing
    terrestrial or FSS earth station operations, must demonstrate
    substantial service at the time of its license renewal. Once the
    Commission considers and adopts technical standards for terrestrial
    and FSS to share this spectrum, an EA licensee may satisfy this and
    any other Part 101 build-out requirements through the operation of
    satellite earth stations. *Id.* at ¶ 12.

[^226]: As noted above, the satellite operator also must obtain
    authorization pursuant to Part 25. *See* *supra* text accompanying
    note **Error: Reference source not found**.

[^227]: *See Allocation Further Notice,* 16 FCC Rcd at 12,262 at ¶ 49.

[^228]: *See* 47 C.F.R. § 101.509(e)

[^229]: *See* note Error: Reference source not found, *supra*, and
    accompanying text.

[^230]: *See supra* ¶¶ 66-69.

[^231]: Thus we may have a Part 25 earth station licensee who also holds
    a Part 101 license as compared to a Part 25 licensee who secures
    agreement with a Part 101 licensee. 

[^232]: *See* *36-51 GHz Second R&O* at ¶ 32.

[^233]: *Id.* at ¶ 33 and new rule 25.202 note 16 ( "Use of this band by
    the fixed-satellite service is limited to 'gateway' earth station
    operations, provided the licensee under this Part obtains a license
    under Part 101 of this Chapter or an agreement from a Part 101
    licensee for the area in which an earth station is to be located.
    Satellite earth station facilities in this band may not be
    ubiquitously deployed and may not be used to serve individual
    consumers").

[^234]: *See* 47 C.F.R. § 2.106, pp. 76-77.

[^235]: *See* *36-51 GHz Second R&O* at ¶ 67.

[^236]: Earth stations must also comply with 47 C.F.R. Part 25.

[^237]: *See* *39 GHz R&O*, 12 FCC Rcd at 18,623-26 ¶¶ 41-50.

[^238]: For example, an FS licensee could partition an area or
    disaggregate spectrum to a satellite earth station licensee or just
    complete a coordination agreement with the earth station.

[^239]: Memorandum of Understanding between the Federal Communications
    Commission and the National Telecommunications and Information
    Administration (Jan. 31, 2003)("*FCC/NTIA MOU"*).

[^240]: *36-51 GHz Order,* 13 FCC Rcd 24,649 ¶ 42.

[^241]: The licensee must make this optical line-of-site calculation
    with only the partial information available in Appendix B.

[^242]: NTIA requests that within the band 37-38 GHz we protect a
    Goldstone rectangular area bounded by the coordinates between
    latitudes 34-21 N and 35-59 N and between longitudes 115-26 W and
    118-21 W (approx 200 km by 280 km), a Socorro, Very Large Array,
    rectangular area bounded by the coordinates between latitudes 32-30
    N and 35-30 N and between longitudes 106-00 W and 109-00 W (approx.
    260 km by 350 km), three tracking stations within a 30 km radius of
    13-36-55 N, 144-51-22 E (Guam); 28-21-28 N 80-42-13 W (Meritt
    Island); and 37-55-45- N 75-28-35 W (Wallops Island); and one
    tracking station within 80 km of 32-20-59 N 106-36-31 W (White
    Sands). *See* "*NTIA Letter,"* Enclosure 1. NTIA has also notified
    the Commission that the military has identified fourteen (14)
    planned sites within a 30 km radius of each set of coordinates
    (except for China Lake located at: China Lake, CA (actually a
    rectangular area); San Diego, CA; Nanakuli, HI; Fishers Island, NY;
    St. Croix, VI; Ft. Irwin, CA; Ft. Carson, CO; Ft. Hood, TX; Ft.
    Bliss, TX; Yuma Proving Grounds, AZ; Ft. Huachuca, AZ; White Sands
    Missile Range, NM; Moody Air Force Base, GA; and Hurlburt Air Force
    Base, FL. *See* "*NTIA Letter,"* Enclosure 2 NTIA notes that the
    military may have requirements for additional sites in the future.

[^243]: In the "*NTIA Letter,"* it now proposes that the protection
    around Goldstone be a rectangular area 200 km tall by 280 km wide
    with the southwest corner resting on Los Angeles. In paragraph 41 of
    the "*36-51 GHz Second R&O"* the Commission indicated that it would
    seek comments on methods to protect Goldstone in this proceeding and
    among the possibilities would be to adopt a footnote to the Table Of
    Allocations modeled after Footnote US311 which establishes an 80 km
    radius around Goldstone for protection from stations operating in
    the fixed and mobile services in the 1350-1400 MHz and 4950-4990 MHz
    bands.

[^244]: *See "NTIA letter*," p.2.

[^245]: *See* discussion in reference to NATO requirement of NTIA in the
    *36-51 GHz Second R&O* at ¶¶ 42-49.

[^246]: 47 U.S.C. § 309(j); *see BBA Report and Order*, 15 FCC Rcd
    22709.

[^247]: *See, e.g.,* *First R&O* and *Further Notice*, 16 FCC Rcd at
    4218 ¶ 326; Amendment of the Commission\'s Rules With Regard to the
    3650‑3700 MHz Government Transfer Band, ET Docket No. 98‑237; The
    4.9 GHz Band Transferred from Federal Government Use, WT Docket No.
    00‑32, *First Report and Order and Second Notice of Proposed Rule
    Making,* 15 FCC Rcd 20488 at ¶ 20 n.64 (2000) (stating that the
    assignment of licenses for terrestrial services by competitive
    bidding is not prohibited by the ORBIT Act); *24 GHz Report and
    Order*, 15 FCC Rcd 16934 (proposing rules to award licenses for
    terrestrial fixed service by competitive bidding in the 24 GHz band,
    which is also allocated to satellite services); *39 GHz* *R&O*, 12
    FCC Rcd 18600; 39 GHz Band Auction Closes, *Public Notice,* DA
    00‑1035, Report No. AUC‑30‑E (rel. May 10, 2000) (assigning
    terrestrial fixed service licenses by auction in the 39 GHz band,
    which is also allocated to satellite services). *See also* TRW Inc.,
    Request for Waiver of the Commission's Rules to Provide Fixed
    Satellite Service in the 39 GHz Band, *Memorandum Opinion and
    Order*, DA 01‑371, File No. 0000137436 (rel. March 12, 2001). *See
    also* ORBIT Act, Pub. L. No. 106‑180, 114 Stat. 48 § 647 (codified
    at 47 U.S.C. § 765f).

[^248]: See, e.g., Amendment of Part 1 of the Commission's Rules -
    Competitive Bidding Procedures, WT Docket No. 97-82, Second Order on
    Reconsideration of the Third Report and Order, and Order on
    Reconsideration of the Fifth Report and Order, 18 FCC Rcd 10180
    (2003) ("*Second Order on Reconsideration of the Third Report and
    Order and Order on Reconsideration the Fifth Report and Order*");
    Amendment of Part 1 of the Commission's Rules \-- Competitive
    Bidding Procedures, Eighth Report and Order, 17 FCC Rcd 2962 (2002);
    Amendment of Part 1 of the Commission\'s Rules \-- Competitive
    Bidding Procedures, Seventh Report and Order, 16 FCC Rcd 17546
    (2001); Amendment of Part 1 of the Commission\'s Rules --
    Competitive Bidding Procedures, *Order on Reconsideration of the
    Third Report and Order, Fifth Report and Order, and Fourth Further
    Notice of Proposed Rule Making*, 15 FCC Rcd 15293 (2000) ("*Part 1
    Recon. Order and Part 1 Fifth Report and Order, Fourth Further
    Notice of Proposed Rule Making*"); Amendment of Part 1 of the
    Commission\'s Rules --- Competitive Bidding Procedures, Allocation
    of Spectrum Below 5 GHz Transferred from Federal Government Use,
    Third Report and Order and Second Further Notice of Proposed Rule
    Making, 13 FCC Rcd 374 (1997) (modified by Erratum, DA 98-419 (rel.
    March 2, 1998)) (Part 1 Third Report and Order); Amendment of Part 1
    of the Commission\'s Rules --- Competitive Bidding Procedures, WT
    Docket No. 97-82, Order, Memorandum Opinion and Order and Notice of
    Proposed Rule Making, 12 FCC Rcd 5686 (1997).

[^249]: *See* 47 C.F.R. § 1.2101 *et. seq.* We note that in the *First
    NPRM and Order*, the Commission sought comment on competitive
    bidding design and procedures for the 37 GHz band. However, since
    release of the *36-51 GHz First NPRM and Order* in 1995, the
    Commission has made substantial amendments and modifications to its
    Part 1 general competitive bidding rules for all auctionable
    services. *See* *Part 1 Third Report and Order*, 13 FCC Rcd 374;
    *Part 1, Recon. Order and Part 1 Fifth Report and Order*, 15 FCC Rcd
    15293; *Second Order on Reconsideration of the Third Report and
    Order and Order on Reconsideration of the Fifth Report and Order*,
    18 FCC Rcd 10180. In addition, many of the auction procedures upon
    which the *First NPRM and Order* sought comment are matters on which
    the Wireless Telecommunications Bureau regularly seeks comment and
    makes a determination under its delegated authority. Amendment of
    Part 1 of the Commission's Rules -- Competitive Bidding Procedures,
    *Order, Memorandum Opinion and Order and Notice of Proposed
    Rulemaking*, 12 FCC Rcd 5686, 5697-98, ¶ 16 (1997) (citing 47 C.F.R.
    § 0.131).

[^250]: *See Part 1, Recon. Order and Part 1 Fifth Report and Order,* 15
    FC Rcd 15293 (2000), *aff'd in part and modified in part, Second
    Order on Reconsideration of the Third Report and Order and Order on
    Reconsideration the Fifth Report and Order,* WT Docket No. 97-82, 18
    FCC Rcd 10,180 (2003)*.*

[^251]: *See* 47 U.S.C. § 309(j)(4)(D).

[^252]: *See* 47 U.S.C. § 309(j)(3)(B).

[^253]: 47 U.S.C. § 1.2110(c)(1); Implementation of Section 309(j) of
    the Communications Act -- Competitive Bidding, PP Docket No. 93-253,
    *Second Memorandum Opinion and Order*, 9 FCC Rcd 7245, 7269 ¶ 145
    (1994).

[^254]: *See supra*, para. 9.

[^255]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18661-64 ¶¶
    149-54.

[^256]: We are coordinating these proposed small business size standards
    with the U.S. Small Business Administration.

[^257]: In the *Part 1 Third Report and Order*, the Commission adopted a
    standard schedule of bidding credits, the levels of which were
    developed based on the Commission's auction experience. *Part 1
    Third Report and* Order, 13 FCC Rcd at 403-04 ¶ 47; *see also* 47
    C.F.R. § 1.2110(f)(2). We note, however, that the standardized
    bidding credits are not the same as those adopted for the 39 GHz
    band. *Report and Order and Second NPRM*, 12 FCC Rcd at 18,661-64 ¶¶
    149-54.

[^258]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,661-64 ¶¶
    149-54.

[^259]: *See* 47 U.S.C. § 1.2110(c)(1) (provides factors used to
    determine the appropriate threshold for the use of bidding credits).

[^260]: *See United States v. Virginia*, 518 U.S. 515 (1996) (applying
    an intermediate standard of review to a state program based on
    gender classification); *Adarand Constructors v. Peña*, 515 U.S. 200
    (1995) (requiring a strict scrutiny standard of review for
    Congressionally mandated race-conscious measures).

[^261]: *See* 5 U.S.C. § 603.

[^262]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206(a).

[^263]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    *Report and Order,* GC Docket No. 97-113, 13 FCC Rcd 11,322 (1998);
    Electronic Filing of Documents in Rulemaking Proceedings,
    *Memorandum Opinion and Order,* GC Docket No. 97-113, 13 FCC Rcd
    21,517 (1998).

[^264]: *See* 5 U. S. C. § 603. The RFA, see 5 U.S.C. §§ 601-612 has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^265]: *See* 5 U.S.C. § 603(a)

[^266]: *See id*.

[^267]: 5 U.S.C. § 603(b)(3).

[^268]: *Id*. at § 601(6)

[^269]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies "unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes definition(s) in the Federal Register." 5 U.S.C. §
    601(3).

[^270]: 15 U.S.C. § 632.

[^271]: 5 U.S.C. § 601(4).

[^272]: *See* SBA, *Programs and Services*, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^273]: Independent Sector, *The New Nonprofit Almanac & Desk Reference*
    (2002).

[^274]: 5 U.S.C. § 601(5).

[^275]: U.S. Census Bureau, *Statistical Abstract of the United States:
    2000*, Section 9, pages 299-300, Tables 490 and 492.

[^276]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517211 (changed from 513321 in October 2002).

[^277]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517211 (changed from 513321 in October 2002).

[^278]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    page 5-5 (Aug. 2003). This source uses data that are current as of
    December 31, 2001.

[^279]: *Id.*

[^280]: *See* Amendment of the Commission's Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, *Report
    and Order*, 12 FCC Rcd 18600 (1997), 63 Fed.Reg. 6079 (Feb. 6,
    1998).

[^281]: *Id.*

[^282]: *See* Letter to Kathleen O'Brien Ham, Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau, FCC,
    from Aida Alvarez, Administrator, SBA (Feb. 4, 1998) (VoIP); *See*
    Letter to Margaret Wiener, Chief, Auctions and Industry Analysis
    Division, Wireless Telecommunications Bureau, Federal Communications
    Commission, from Hector Barreto, Administrator, Small Business
    Administration, dated January 18, 2002 (WTB).

[^283]: Memorandum of Understanding between the Federal Communications
    Commission and the National Telecommunications and Information
    Administration (Jan. 31, 2003)("*FCC/NTIA MOU*").

[^284]: *See* Section III-J, *supra.*

[^285]: 5 U.S.C. §§ 603(c)(1)-(c)(4).

[^286]: *See* 47 U.S.C. § 309(j)(4)(D)

[^287]: We propose to require licensees to maintain any channel pairs
    that we might establish for the 37/42 GHz bands when the licensees
    choose to disaggregate any of their licenses in this band, as we do
    for 39 GHz licensees. *See Report and Order and Second NPRM,* 12 FCC
    Rcd at 18,635 ¶ 72, and as herein proposed for application to the
    37/42 GHz bands and codification at 47 C.F.R. § 101.149(e). We have
    not decided whether to adopt a channel plan. *See* ¶¶ 57-68,
    *infra.* We reserve discretion, in the event that we propose a
    channel plan for the 37/42 GHz bands, to require disaggregation of
    that spectrum by channel pairs.

[^288]: *See* 47 U.S.C. § 309(j)(3)(B).

[^289]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,635-36 ¶¶
    71-73; *see also Memorandum Opinion and Order*, 14 FCC Rcd at
    12,460-61 ¶¶ 61-63.

[^290]: *70/80/90 GHz Report and Order* at ¶ 87.

[^291]: *Id.* at 18,627 ¶¶ 55.

[^292]: *See* 47 C.F.R. § 1.2101 *et. seq.* We note that in the *First
    NPRM and Order*, the Commission sought comment on competitive
    bidding design and procedures for the 37 GHz band. However, since
    release of the *36-51 GHz First NPRM and Order* in 1995, the
    Commission has made substantial amendments and modifications to its
    Part 1 general competitive bidding rules for all auctionable
    services. *See* *Part 1 Third Report and Order*, 13 FCC Rcd 374;
    *Part 1, Recon. Order and Part 1 Fifth Report and Order*, 15 FCC Rcd
    15293; *Second Order on Reconsideration of the Third Report and
    Order and Order on Reconsideration of the Fifth Report and Order*,
    18 FCC Rcd 10180. In addition, many of the auction procedures upon
    which the *First NPRM and Order* sought comment are matters on which
    the Wireless Telecommunications Bureau regularly seeks comment and
    makes a determination under its delegated authority. Amendment of
    Part 1 of the Commission's Rules -- Competitive Bidding Procedures,
    *Order, Memorandum Opinion and Order and Notice of Proposed
    Rulemaking*, 12 FCC Rcd 5686, 5697-98, ¶ 16 (1997) (citing 47 C.F.R.
    § 0.131).

[^293]: *Report and Order and Second NPRM*, 12 FCC Rcd at 18,661-64 ¶¶
    149-54.

[^294]: In the *Part 1 Third Report and Order*, the Commission adopted a
    standard schedule of bidding credits, the levels of which were
    developed based on the Commission's auction experience. *Part 1
    Third Report and* Order, 13 FCC Rcd at 403-04 ¶ 47; *see also* 47
    C.F.R. § 1.2110(f)(2). We note, however, that the standardized
    bidding credits are not the same as those adopted for the 39 GHz
    band. *Report and Order and Second NPRM*, 12 FCC Rcd at 18,661-64 ¶¶
    149-54.

[^295]: *See* 47 U.S.C. § 1.2110(c)(1) (provides factors used to
    determine the appropriate threshold for the use of bidding credits).

[^296]: These are the northwest and southeast corners of the National
    Radio Quiet Zone, established in IRAC Document 3867/2 dated March
    26, 1958, and in FCC Docket No. 11745 dated November 1958.