**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | IB Docket No. 00-203         |
|                                  | * |                              |
| FWCC Request for Declaratory     | ) | RM-9649                      |
| Ruling on                        | * |                              |
|                                  | * | SAT-PDR-19990910-00091       |
| Partial-Band Licensing of Earth  |   |                              |
|                                  | * |                              |
| Stations in the Fixed-Satellite  | * |                              |
| Service                          | ) |                              |
|                                  | * |                              |
| That Share Terrestrial Spectrum  | * |                              |
|                                  |   |                              |
| FWCC Petition for Rulemaking to  | * |                              |
| Set                              | * |                              |
|                                  | ) |                              |
| Loading Standards for Earth      | * |                              |
| Stations                         | * |                              |
|                                  |   |                              |
| In the Fixed-Satellite Service   | * |                              |
| that                             | * |                              |
|                                  | ) |                              |
| Share Terrestrial Spectrum       | * |                              |
|                                  | * |                              |
| Onsat Petition for Declaratory   |   |                              |
| Order that Blanket Licensing     | * |                              |
| Pursuant to Rule 25.115 (c) is   | * |                              |
| Available for Very Small         | ) |                              |
| Aperture Terminal Satellite      | * |                              |
| Network Operations at C-Band     | * |                              |
|                                  |   |                              |
| Onsat Petition for Waiver of     | * |                              |
| Rule 25.212(d) to the Extent     | * |                              |
| Necessary to Permit Routine      | ) |                              |
| Licensing of 3.7 Meter Transmit  | * |                              |
| and Receive Stations at C-Band   | * |                              |
|                                  |   |                              |
| *Ex parte* Letter Concerning     | * |                              |
| Deployment of Geostationary      | * |                              |
| Orbit FSS Earth Stations in the  | ) |                              |
| Shared Portion of the Ka-band    | * |                              |
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+----------------------------------+---+------------------------------+

**SECOND REPORT AND ORDER**

**Adopted: January 23, 2002 Released: January 30, 2002**

By the Commission:

# INTRODUCTION

1.  In this Order we terminate our consideration of the issues raised by
    the Fixed Wireless Communications Coalition (FWCC).[^1] We conclude
    that the record in this proceeding provides an insufficient basis to
    impose the FWCC proposed conditions upon Fixed-Satellite Service
    (FSS) earth stations in bands that are shared on a co-primary basis
    with Fixed Service (FS)\_ operations. [^2]

# BACKGROUND

2.  ***The FWCC Petition**.* On May 5, 1999, FWCC filed a request for a
    declaratory ruling urging the Commission to, among other things,
    impose various conditions on FSS earth stations in bands that are
    shared on a co-primary basis with FS operations. Specifically,
    FWCC's Petition references the following bands: 3700-4200,
    5925-6425, and 6425-7125 MHz; and 10.7-11.7, 12.7-13.25, 17.7-19.7,
    and 27.5-29.5 GHz.[^3] FWCC's Petition states that it seeks to
    maximize efficient use of the radio spectrum for both satellite and
    point-to-point terrestrial fixed operations.[^4]

3.  FWCC avers that, while Parts 25 and 101 of the Commission's rules
    provide for sharing by the FSS and FS on a co-primary basis in
    certain radio spectrum bands, in practice, sharing has not occurred
    on an equitable basis.[^5] FWCC contends that in fact band sharing
    has been on terms disadvantageous to the FS.[^6] FWCC offers two
    reasons for its argument that satellite earth station operators
    receive preferential access to shared spectrum. First, FWCC notes
    that the Commission licenses earth stations for the entire allocated
    band with no loading requirements, while point-to-point terrestrial
    operations are limited to frequencies actually needed and are
    subject to stringent spectrum efficiency requirements.[^7] Second,
    FWCC asserts that because the Commission licenses earth stations for
    the full 360º of azimuths, earth stations can deny coordination to
    terrestrial stations even in directions in which the earth station
    is not currently operating.[^8]

4.  Accordingly, FWCC requests a declaratory ruling to require an FSS
    operator to demonstrate "actual need" for the spectrum requested at
    the time of licensing.[^9] Specifically, FWCC requests that, where
    the FSS earth station is using spectrum that is shared with
    point-to-point terrestrial services, the Commission should change
    its policy from authorizing an FSS earth station to use the entire
    frequency band, to requiring it to use no more than twice the amount
    of spectrum for which it is able to demonstrate an "actual
    need."[^10] FWCC also petitions, pursuant to section 1.401 of the
    Commission's rules, for amendments to Part 25 of the Commission's
    rules, to require that an FSS earth station licensed for more than
    minimal amounts of spectrum that is shared with an FS operator must
    meet minimum loading standards.[^11] Further, FWCC proposes to
    require an FSS earth station to accept interference from a new
    terrestrial facility on the same basis as the FSS earth station
    accepted interference in previous coordinations.[^12] FWCC claims
    that the objective of these changes is to adopt spectrum management
    standards that would achieve in practice the "co-equal" sharing
    specified in Parts 25 and 101 of the Commission's rules.[^13]

5.  ***The NPRM.*** On October 24, 2000, the Commission issued the
    *FWCC/Onsat/Hughes* *NPRM* to address, among other things, the
    issues discussed above. Specifically, the *FWCC/Onsat/Hughes NPRM*
    included proposed rules to address the concerns of the FS community,
    and sought comment on whether the evolving requirements of both
    satellite and terrestrial systems necessitate a further revision of
    our policies and rules to ensure efficient and equitable use of the
    radio spectrum in bands shared on a co-primary basis by the FSS and
    FS.[^14] We also sought comment on the extent of the FS and FSS
    sharing problem, and proposed rules to address the loading and
    interference coordination issues.[^15]

6.  Although the *FWCC/Onsat/Hughes* *NPRM* denied FWCC's request for a
    declaratory ruling and FWCC's parallel request to amend section
    25.130 to limit the amount of spectrum licensed to an FSS earth
    station to no more than twice the amount for which the licensee
    demonstrates an "actual need,"[^16] the Commission incorporated into
    the proposed rules the related concept of a "demonstrated use."[^17]
    The *FWCC/Onsat/Hughes* *NPRM* stated that this requirement for
    "demonstrated use" would be triggered by an FSS operator's denial of
    an FS applicant's request to coordinate spectrum.[^18] Specifically,
    the *FWCC/Onsat/Hughes* *NPRM* proposed to amend section 25.203 to
    indicate that, if an FSS earth station that has been licensed to
    operate in C- or Ku-band shared frequencies for 24 months or longer
    denies an FS applicant's request to coordinate spectrum, the FSS
    earth station must demonstrate to the frequency coordinator that it
    is using, has recently used, or has plans to use the requested
    spectrum in the near future.[^19] The *FWCC/Onsat/Hughes* *NPRM*
    noted that, if the FSS earth station licensee is unable to
    demonstrate use, the FS station could not be denied
    coordination.[^20] The *FWCC/Onsat/Hughes* *NPRM* proposed that, as
    a result, the FSS earth station could not cause unacceptable
    interference to, and would not receive any protection from, the FS
    station in that spectrum in the future.[^21] The *FWCC/Onsat/Hughes*
    *NPRM* further proposed to exempt from the rule those FSS earth
    stations that are licensed for 40 MHz or less of bandwidth in each
    of the uplink and downlink directions.[^22] It also proposed to
    amend section 101.141 to shorten the loading period for FS licensees
    in the C- and Ku-bands from 30 to 24 months.[^23] The
    *FWCC/Onsat/Hughes* *NPRM* reasoned that modification of the Part 25
    and 101 rules in this manner would give both the FSS and FS
    licensees a comparable period of time in which to put their spectrum
    to use before their spectrum became susceptible to re-licensing to
    others.[^24] The *FWCC/Onsat/Hughes* *NPRM* requested comment on
    whether these changes to Part 25 and 101 should apply to other bands
    where the FSS and FS share spectrum on a co-primary basis.[^25]

7.  In addition, the *FWCC/Onsat/Hughes* *NPRM* proposed to amend Parts
    25 and 101 to state that an FSS earth station or FS licensee that
    accepts a particular interference analysis model in order to
    coordinate successfully the location of its station must also accept
    use of the same model in subsequent coordinations.[^26] According to
    the *FWCC/Onsat/Hughes* *NPRM,* if a C- or Ku-band FSS earth station
    licensee, during coordination, accepts a level of interference along
    a set of azimuths recognized to be below normally permissible
    interference objectives, the licensee may not subsequently claim
    protection from interference from future FS applicants on those same
    frequencies within that same set of azimuths.[^27] The
    *FWCC/Onsat/Hughes* *NPRM* proposed to make the changes to Parts 25
    and 101 applicable to all frequency bands where the services share a
    primary service allocation.[^28]

8.  Finally, the *FWCC/Onsat/Hughes* *NPRM* invited comment on the
    Hughes proposal to deploy, without individual site-by-site
    licensing, geostationary satellite orbit FSS earth stations in the
    shared portion of the Ka-band.[^29]

9.  We received 29 comments and 35 reply comments to the
    *FWCC/Onsat/Hughes NPRM*.[^30] Numerous satellite and earth station
    licensees, users of these services, and industry associations
    representing the satellite industry oppose both the FWCC Petition
    and the Commission's proposals. The Fixed Point-to-Point Section of
    the Wireless Communications Division of the Telecommunications
    Industry Association (TIA FS/WCD) filed reply comments supporting
    FWCC's requests. Satellite industry participants were generally
    supportive of the requests for blanket licensing contained in the
    Hughes ex parte letter. On May 23, 2001 the Commission adopted the
    *FWCC First Report and Order* to address the issues raised by
    Onsat.[^31] We now address the issues raised by FWCC. We will
    address the issues raised by Hughes in a future Order.

# DISCUSSION

10. We terminate our consideration of the issues raised by FWCC because
    we conclude that the record is not sufficiently developed to permit
    us to issue rules to address them.

11. Specifically, we find that the record lacks necessary information on
    how to achieve more equitable sharing of the spectrum. As previously
    noted, the *FWCC/Onsat/Hughes NPRM* rejected FWCC's specific
    proposals to achieve more equitable sharing.[^32] Instead, the
    *FWCC/Onsat/Hughes NPRM* proposed in essence to achieve greater
    equity in the sharing of spectrum by amending section 25.203 to
    indicate that, under certain circumstances an FSS earth station
    licensee must demonstrate that it is using, has recently used, or
    has plans to use the requested spectrum in the near future.[^33]
    Both the FS and the FSS commenters, however, rejected the proposed
    rule. The FWCC rejected it because it believed that such procedures
    may result in disputes over an earth station's "demonstrated use" of
    frequencies at the worst possible time, that is, when an FS
    applicant is attempting to finalize coordination and begin
    operations. The FWCC also rejected the proposal in the
    *FWCC/Onsat/Hughes NPRM* because it would not allow an earth station
    to reserve specific frequencies to use in the event of satellite or
    transponder failure.[^34] The FSS commenters rejected the proposed
    rule for other reasons, including that there was no data to back up
    the claims of problems; that the proposed rules would impose
    burdensome administrative requirements while decreasing flexibility;
    and that the proposed rules constrain the provision of emergency
    services, and provide no relief in the event of satellite
    failure.[^35] The comments of the FWCC include additional proposals
    for how to achieve more equitable sharing of the spectrum.[^36] We
    agree, however, with the reply comments of the FSS operators,[^37]
    and conclude that these counter-proposals are unsuitable for
    substantially the same reasons that we articulated in the
    *FWCC/Onsat/Hughes NPRM* for denying the FWCC Petition.[^38] That
    is, FWCC's proposals fail to fully and properly take into account
    the fact that the FSS and FS services have significantly different
    requirements for access to the electromagnetic spectrum in order to
    meet their business needs, and these needs must be recognized and
    accommodated in the context of the entire interference environment,
    in any rules that we adopt to address the perceived
    "inequities."[^39] Thus, we find that this record presents us with
    no effective solution that addresses the concerns raised in this
    proceeding.

12. Our inability to provide the relief FWCC requests stems from the
    absence of evidence of the extent to which our current rules have
    resulted in injury to the terrestrial fixed service community. We
    specifically sought comment on the extent of the FS and FSS sharing
    problem.[^40] We asked for comment on the breadth and nature of
    sharing difficulties, including the number of cases in which FS and
    FSS have experienced sharing difficulties, whether the sharing
    difficulties have occurred in particular band segments, and
    identification of the specific circumstances.[^41] Few parties
    submitted comments in response to this request. In its comments,
    FWCC notes that one member reported "a specific instance of an earth
    station operator that accepted a 94 dB case into the earth station,
    and subsequently refused a net 5 dB case into the same earth
    station."[^42] FWCC further notes that although discrepancies of
    this extreme magnitude are unusual, cases of earth stations waiving
    interference, and subsequently refusing coordination at lower levels
    of interference are "commonplace."[^43] FWCC states in its reply
    comments that it has extensive anecdotal evidence from fixed service
    operators whose links were precluded by earth stations, but that no
    one tabulates these data.[^44] Popkin, a frequency coordinator,
    cites six coordination cases in which he was involved, but provided
    details of only one.[^45] In that one case, Popkin states that after
    nine earth station applicants did not provide an explanation for
    accepting a missed interference objective, the terrestrial fixed
    service providers filed Petitions to Deny the applications. Popkin
    reports that as a result of the petition, the earth station
    providers modified their applications to provide the desired level
    of protection on future paths.[^46] Without citing any specific
    incident, Comsearch states that, based upon its experience over the
    past several years, only a small percentage of FS coordinations in
    the 6 and 11 GHz bands have been unsuccessful because of
    interference with FSS stations.[^47]

13. We find that, while there may indeed be instances where coordination
    is being inappropriately denied to fixed service station applicants,
    a single documented case and references to "anecdotal evidence" is
    an insufficient record upon which to base the extensive relief
    sought by FWCC. Rather than establishing rules that may not address
    the concerns raised in this proceeding, and may only substitute one
    set of concerns for another, we terminate our consideration of these
    issues in this docket. We, however, emphasize that we expect license
    applicants, licensees, and the frequency coordinators who work with
    them to cooperate fully with each other in the spirit and letter of
    the Commission's rules, bearing in mind the co-primary nature of the
    Fixed and Fixed-Satellite Services in these bands. If any applicant
    believes that he or she is being treated contrary to the
    Commission's rules in his or her proper pursuit of a Commission
    license, he or she should immediately bring the matter to the
    attention of Commission. Moreover, as always, we are open to new
    proposals or approaches that could effectively address concerns that
    have been raised regarding the equitable sharing of the spectrum.
    We, therefore, do not foreclose the possibility that changes to our
    rules could improve the sharing environment and licensing processes
    for both the FS and FSS services.

# ORDERING CLAUSES

14. IT IS ORDERED, that pursuant to Sections 4(i), 7(a), 303(c), 303(f),
    303(g), and 303(r) of the Communications Act of 1934, as amended, 47
    U.S.C. Sections 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r),
    this Second Report and Order is hereby ADOPTED.

15. IT IS FURTHER ORDERED that the Hughes Petition for Partial
    Reconsideration in Doc. No. IB 98-172, shall be addressed in a
    future Order.

IT IS FURTHER ORDERED that the Commission\'s Consumer Information
Bureau, Reference Information Center, SHALL SEND a copy of this Second
Report and Order to the Chief, Counsel for Advocacy of the Small
Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

Acting Secretary

**APPENDIX A: COMMENTS ON FWCC/HUGHES PROCEEDING**

[Comments:]{.underline}

Astrolink International LLC (Astrolink)

BT North America Inc (BTNA)

Catalina Transmission Corp. (Catalina)

Comsearch

Fixed Wireless Communications Coalition (FWCC)

GE American Communications, Inc. (GE Americom)

Home Box Office and Turner Broadcasting System, Inc. (HBO & TBS)

Hughes Network Systems, Hughes Communications Inc., & Hughes
Communications Galaxy, Inc (Hughes)

JFL Communications, Inc. (JFL)

Lockheed Martin Global Telecommunications, Inc. (LMGT)

Loral Space and Communications, Ltd. (Loral)

Megastar, Inc. (Megastar)

National Cable Television Association (NCTA)

National Public Radio, Inc. (NPR)

PanAmSat Corporation (PanAmSat)

Pinnacle Telecom Group (Pinnacle)

Satellite Industry Association, Satellite Broadcasting and
Communications Association, World Teleport Association, and Aeronautical
Industries Association of America (SIC)

SkyBridge, LLC. (SkyBridge)

Sprint Communications Company, LP (Sprint)

Teledesic LLC (Teledesic)

Telesat Canada

TRW, Inc. (TRW)

Virtual Geosatellite, LLC (Virtual Geosat)

The Walt Disney Company (Walt Disney)

Winstar Communications, Inc. (Winstar)

[Late Filed Comments]{.underline}:

Arrowhead Space & Telecommunications Inc. (Arrowhead)

National Association of Broadcasters (NAB)

University of Southern California Distance Education Network (USC)

[Reply comments:]{.underline}

Association of American Railroads (AAR)

A.G. Edwards & Sons, Inc. (AGEdwards)

Astrolink International LLC (Astrolink)

Bonneville Satellite Company (Bonneville)

Chevron Products Company (Chevron)

Comsearch

DMC Stratex Networks, Inc. (DMC)

Fixed Wireless Communications Coalition (FWCC)

Ford Motor Company (Ford)

GE American Communications, Inc. (GE Americom)

General Communication, Inc. (GCI)

Global VSAT Forum (GVF)

Globecomm Systems (GSI)

Harris Corporation -- Microwave Systems Division (Harris)

Home Box Office and Turner Broadcasting System, Inc. (HBO & TBS)

Hughes Network Systems, Hughes Communications Inc., & Hughes
Communications Galaxy, Inc (Hughes)

National Broadcasting Company, Inc. (NBC)

National Spectrum Managers Association (NSMA)

Pinzone Engineering Group, Inc. (Pinzone)

David B. Popkin (Popkin)

Radio Netherlands

Satellite Industry Association, Satellite Broadcasting and
Communications Association, World Teleport Association, and Aeronautical
Industries Association of America (SIC)

SkyBridge LLC. (SkyBridge)

Sola Communications Inc. (Sola)

Sprint Communications Company, LP (Sprint)

Starz Encore Group, LLC (Starz Encore)

Telecommunications Industry Association (TIA FS/WCD)

Teledesic, LLC (Teledesic)

Telesat Canada

Titan Wireless, Inc. (Titan)

Tosco Corporation (Tosco)

TRW, Inc. (TRW)

United Telecom Council (UTC)

Viacom, Inc (Viacom)

Winstar Communications, Inc. (Winstar)

[^1]: Request for Declaratory Ruling and Petition for Rulemaking of the
    Fixed Wireless Communications Coalition, dated May 5, 1999 (FWCC
    Petition).

[^2]: We defer to a future Order the petition for reconsideration and
    the request contained in the ex parte letter filed by Hughes Network
    Systems (Hughes) regarding blanket- or streamlined licensing of user
    earth terminals in the 18 and 29 GHz bands. *See* Hughes Petition
    for Partial Reconsideration in Doc. No. IB 98-172 and Hughes Ex
    Parte Filing, dated May 4, 2000.

[^3]: FWCC Petition at 3.

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

[^5]: *Id.*

[^6]: FWCC Petition at 2-4.

[^7]: *Id.* at 3, 5.

[^8]: *Id.*

[^9]: FWCC Petition at ii.

[^10]: FWCC's petition also includes a parallel request for a rule that
    would require FSS earth station applicants to show demonstrated need
    for the spectrum they seek. FWCC Petition at Appendix C.

[^11]: FWCC Petition at ii.

[^12]: *Id.*

[^13]: *Id.* at 2.

[^14]: *FWCC Request for Declaratory ruling on Partial-Band Licensing of
    Earth Stations in the Fixed-Satellite Service that Share Terrestrial
    Spectrum, FWCC Petition for Rulemaking to Set Loading Standards for
    Earth Stations in the fixed-Satellite Service that Share Terrestrial
    Spectrum, Onsat Petition for Declaratory Order that Blanket
    Licensing Pursuant to Rule 25.115(c) is Available for Very Small
    Aperture Terminal Satellite Network Operations in C-Band, Onsat
    Petition for Waiver of Rule 25.212(d) to the Extent Necessary to
    Permit Routine Licensing of 3.7 Meter Transmit and Receive Stations
    at C-Band, Ex parte Letter Concerning Deployment of Geostationary
    Orbit FSS Earth Stations in the Shared Portion of the Ka-Band*,
    Notice of Proposed Rule Making, IB Docket No. 00-203, FCC
    00-369(rel. Oct. 24, 2000) para. 7 (*FWCC/Onsat/Hughes* *NPRM*).

[^15]: *Id.*

[^16]: *Id.*

[^17]: *Id.*

[^18]: *Id.*

[^19]: *Id.* at para. 8.

[^20]: *Id.*

[^21]: *Id.*

[^22]: *Id.*

[^23]: *Id.*

[^24]: *Id.*

[^25]: *Id.*

[^26]: *Id.* at para. 9.

[^27]: *Id.*

[^28]: *Id.*

[^29]: *Id.* at ¶15.

[^30]: Appendix A of this *FWCC Second Report and Order* lists the
    entities commenting in this proceeding.

[^31]: *FWCC First Report and Order* at para*.* .

[^32]: *FWCC/Onsat/Hughes NPRM* at para. 40.

[^33]: *Id.* at para. 53.

[^34]: FWCC Petition at 2, 8-9.

[^35]: Astrolink at 4, 6; BTNA at 3, 4; Catalina at 6; GE Americom at
    3-6; Hughes at 6-7; Megastar at 2-3; SIC at 2, 5-6, 14, 17; TRW at
    2; and Virtual Geosat at ii.

[^36]: FWCC at 2-3, 5.

[^37]: GE Americom reply at 3-4; SIC reply at 17-19; Sprint reply at
    1-2; Teledesic at 5; TRW at 8;

[^38]: *FWCC/Onsat/Hughes* *NPRM* at paras. 38-41, 74-75;

[^39]: *Id.*

[^40]: *Id.* at para. 7.

[^41]: *Id.* at para. 30.

[^42]: FWCC Petition at 16.

[^43]: *Id.*

[^44]: FWCC reply at 6.

[^45]: Popkin reply at 4-5.

[^46]: *Id.*

[^47]: Comsearch comments at 3.