**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | ET Docket No. 00-258         |
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| Amendment of Part 2 of the       | ) | ET Docket No. 95-18          |
| Commission's Rules               | * |                              |
|                                  | * | IB Docket No. 99-81          |
| to Allocate Spectrum Below 3 GHz |   |                              |
| for Mobile and Fixed Services to | * | RM-9498                      |
| Support the Introduction of New  | * |                              |
| Advanced Wireless Services,      | ) | RM-10024                     |
| including Third Generation       | * |                              |
| Wireless Systems                 | * |                              |
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| Amendment of Section 2.106 of    | * |                              |
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| The Establishment of Policies    | ) |                              |
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| Forum Concerning the Unlicensed  | * |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER AND**

**FURTHER NOTICE OF PROPOSED RULEMAKING**

**Adopted: August 9, 2001 Released: August 20, 2001**

**Comment Date: \[28 days after Federal Register publication\]**

**Reply Comment Date: \[42 days after Federal Register publication\]**

By the Commission: Commissioner Tristani approving in part, dissenting
in part, and issuing a statement;

Commissioner Martin issuing a statement.

TABLE OF CONTENTS

I.  Introduction 1

II. Background 4

III. Discussion 8

A. 1910-1930 MHz and 2390-2400 MHz 9

B. 1990-2025 MHz and 2165-2200 MHz 14

\(1\) Background 14

\(2\) Discussion 22

\(3\) Other Matters on Reconsideration of the 2 GHz MSS R&O 36

C. 2150-2160 MHz 37

D. Pairing 42

IV. Procedural Information 45

A. Initial Regulatory Flexibility Analysis 45

B. Paperwork Reduction Analysis 46

C. *Ex Parte* Presentations 47

D. Comment Dates 48

E. Further Information 52

V.  Ordering Clauses 53

Appendix A: Initial Regulatory Flexibility Analysis

# INTRODUCTION

1.  In this *Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking (MO&O and FNPRM)*, we continue our exploration of the
    possible use of frequency bands below 3 GHz to support the
    introduction of new advanced mobile and fixed terrestrial wireless
    services (advanced wireless services)―including third generation
    (3G) and future generations of wireless systems―which we began with
    the *Notice of Proposed Rule Making* in ET Docket No. 00-258.[^1]

2.  We now explore the possibility of introducing new advanced wireless
    services in frequency bands not identified in the original notice in
    this proceeding, including bands currently designated for the Mobile
    Satellite Service (MSS), the Unlicensed Personal Communications
    Service (UPCS), the Amateur Radio Service (ARS), and the Multipoint
    Distribution Service (MDS). Specifically, we seek comment on
    reallocating some spectrum in the 1910-1930 MHz, 1990-2025 MHz,
    2150-2160 MHz, 2165-2200 MHz, and 2390-2400 MHz bands for new
    advanced wireless services.[^2] In order to coordinate our actions
    here with various pending matters involving the MSS, we also take
    this opportunity to resolve issues raised in (a) petitions for
    reconsideration of our August 2000 decision adopting the 2 GHz MSS
    band arrangement in the 1990-2025 MHz and 2165-2200 MHz bands;[^3]
    and (b) a petition for rulemaking concerning those bands.[^4]

3.  The overall purpose of this *MO&O and FNPRM* is to supplement the
    record by (a) providing new allocation options that were not
    addressed in the *New Advanced Wireless Services NPRM*; and (b)
    seeking comment on the benefits and costs of each new allocation
    option. For example, as explored below, we seek to determine how
    these additional options might work in conjunction with those
    options identified previously in the *New Advanced Wireless Services
    NPRM* in order to facilitate the provision of new advanced wireless
    services. Our intent is to explore spectrum options that would
    complement, rather than substitute for, options identified in the
    *New Advanced Wireless Services NPRM*. We seek comment on the
    potential for the commercial use of these additional spectrum bands
    directly for new advanced wireless services, both paired and
    unpaired. We also seek comment on the use of these or other bands
    for the relocation of other incumbent licensees or operators who
    could be displaced by the final allocation established in this
    proceeding. We seek comment on the advantages and disadvantages of
    these options, including the potential for new advanced wireless
    services in these bands. We further seek comment on the potential
    effect of the allocation proposals described below on existing and
    prospective users of these bands and the services they provide
    (*e.g.*, MSS, UPCS, ARS and MDS). In addition, we seek comment on
    the costs and benefits to the United States of regional or global
    spectrum harmonization for advanced wireless services.[^5]

# BACKGROUND

4.  Demand for mobile telephony and data applications has grown rapidly
    in recent years, [^6] indicating that substantial additional
    spectrum will be needed in order to meet the projected requirements
    of advanced wireless systems (commonly referred to as International
    Mobile Telecommunications-2000 (IMT-2000 or 3G)).[^7] The Commission
    staff has been working with staff of the National Telecommunications
    and Information Administration (NTIA) on selecting additional
    spectrum for advanced wireless systems, and more recently to update
    the plan for such selection. The Commission staff and NTIA have
    conducted studies of two of the spectrum bands identified at
    WRC-2000 that could be used for advanced wireless systems, and have
    issued staff reports on the current spectrum uses and potential for
    reallocation or sharing of these spectrum bands.[^8] In December
    2000, the Commission adopted the *New Advanced Wireless Services
    NPRM* to explore the service requirements for new advanced wireless
    services, the amount of spectrum needed to support such services,
    and the possible use of certain frequency bands below 3 GHz to
    support the introduction of new advanced wireless services,
    including 3G and future generations of wireless systems. The *New
    Advanced Wireless Services NPRM* specifically addressed the
    frequency bands currently used for cellular, broadband PCS and
    Specialized Mobile Radio (SMR) services, newly allocated spectrum in
    former television channels 60-69, and the following five frequency
    bands: 1710-1755 MHz, 1755-1850 MHz, 2110-2150 MHz, 2160-2165 MHz
    and 2500-2690 MHz.[^9]

5.  With respect to 2500-2690 MHz, historically this band has been used
    predominantly for one‑way analog video transmission. Increasingly,
    ITFS/MDS operators are using the band for two-way digital broadband
    services. Our July 1996 *Digital Declaratory Ruling* first permitted
    digital use of the band.[^10] In October 1996, we allowed high‑speed
    digital data applications, including Internet access.[^11] In 1998,
    we approved the use of two‑way transmissions, effectively enabling
    the provision of voice, video, and data services.[^12] The initial
    filing window for two-way ITFS/MDS service occurred from August 14,
    2000 until August 18, 2000,[^13] and about 1,500 applications have
    now been granted. The FCC *Final Report* regarding the 2500-2690 MHz
    band -- prepared by our staff -- notes that the MDS industry has
    invested several billion dollars to develop broadband fixed wireless
    data systems in the band, including high‑speed Internet access, and
    that these systems offer a significant opportunity for further
    competition with cable and digital subscriber line services in the
    provision of broadband services in urban and rural areas.[^14]

6.  Additionally, the *Final Report* notes that incumbent ITFS and MDS
    use of the 2500--2690 MHz band varies from one geographic area to
    another, and that this lack of uniformity presents serious
    challenges to developing segmentation options that could be used
    across the country without severely disrupting ITFS/MDS use. The
    *Final Report* concludes that segmentation would raise significant
    technical and economic difficulties for incumbents, especially if
    ITFS/MDS operations were to be relocated within the band.
    Segmentation could affect the economics of current and planned
    ITFS/MDS systems and lessen their ability to provide service to
    rural areas or smaller markets. The *Final Report* also states that
    there is no readily identifiable alternate frequency band that could
    accommodate a substantial relocation of incumbent operations from
    the 2500‑2690 MHz band. Relocation of ITFS/MDS operations to a band
    above 3 GHz would affect deployment of these systems to account for
    changes in signal propagation in higher bands, and that incumbent
    users in the ITFS/MDS relocation band would also have to be
    relocated. The *Final Report* examined several potential relocation
    bands for ITFS/MDS and concludes that each band is severely capacity
    constrained,[^15] that existing licensees in those bands would have
    to be relocated to accommodate ITFS/MDS incumbents, and the costs of
    moving those licensees would range from approximately \$10.2‑\$30.4
    billion.[^16] The *Final Report* concludes that implementation of
    either the segmentation or relocation options would significantly
    affect deployment of fixed wireless broadband services and impose
    considerable costs on ITFS/MDS systems. For example, the *Final
    Report* notes that the relocation/segmentation costs to ITFS/MDS
    operators over a ten-year period could be up to \$19 billion.[^17]

7.  We recognize that consideration of the 2500-2690 MHz band for
    advanced wireless services has created uncertainty about the future
    of the new fixed services being developed under the current
    allocation. We believe it is important to remove this uncertainty
    soon, and we are prepared to do so based on the extensive record
    that has been developed on these issues and subject to our normal
    coordination process with NTIA. To this end, we plan to address and
    resolve the issues involving this band that were raised in the *New
    Advanced Wireless Services NPRM* in the very near future.

# DISCUSSION

8.  Since release of the *New Advanced Wireless Services NPRM*, we have
    been examining other frequency bands proposed by commenters and
    otherwise identified by Commission staff, to determine the potential
    of such bands to accommodate new advanced wireless services. The
    frequency bands we identify below are in general proximity to other
    bands identified by ITU for possible new advanced wireless services
    and could produce two possible benefits. First, these bands may be
    considered for use for new advanced wireless services. Assembling
    the necessary spectrum blocks for such services by aggregating
    smaller bands from several existing services, rather than by
    reallocating a larger block from potentially only one existing
    service, will likely reduce the adverse impact of reallocation on
    any individual category of incumbent user. Second, these bands may
    be considered as possible relocation spectrum to accommodate
    incumbent users displaced to make room for new advanced wireless
    services. The addition of these bands increases substantially the
    options over the next decade for the use of spectrum for advanced
    wireless services.

## *1910-1930 MHz and 2390-2400 MHz*.

9.  The 1910-1930 MHz band is allocated worldwide to the Fixed and
    Mobile Services. In the United States, the 1910-1920 MHz portion of
    the band is used for asynchronous data UPCS devices, and the
    1920-1930 MHz portion is used for isochronous voice UPCS devices,
    operating under Part 15 of the Commission's rules (unlicensed
    operations).[^18] The 2390-2400 MHz band is allocated in
    International Telecommunication Union (ITU) Region 2 (the
    Americas)[^19] on a co-primary basis to the Fixed, Mobile, and
    Radiolocation Services, and on a secondary basis to the Amateur
    Service. In the United States, it is allocated on a primary basis to
    the Amateur Service; it is also designated for use by asynchronous
    data UPCS devices for operation under Part 15 of the Commission's
    rules.[^20] UTAM, Inc., the frequency coordinator for the UPCS
    bands, was required to relocate incumbent fixed operations before
    nomadic UPCS operation is permitted. We understand that UTAM has
    relocated approximately 85 percent of the fixed links that existed
    since the band was made available for other uses. All three bands
    are among those identified by either the 1992 World Administrative
    Radio Conference (WARC-92) or WRC-2000 for possible new advanced
    wireless services use.[^21]

10. There has been little development of unlicensed asynchronous devices
    in the 1910-1920 MHz and 2390-2400 MHz bands, and only limited
    wireless PBX use has begun in the 1920-1930 MHz segment.[^22] The
    underutilization by unlicensed devices of the 1910-1920 MHz and
    2390-2400 MHz bands has prompted the filing of two petitions for
    rulemaking by requesting certain changes to these bands.[^23] We
    seek comment on these two pending petitions for rulemaking, as well
    as whether these bands could be used for other possible uses
    consistent with this proceeding.

11. We seek comment on whether some or all of the 1910-1930 MHz band
    should be reallocated for new advanced wireless services use or for
    incumbents displaced by advanced wireless services. To what extent
    is it being used or likely to be needed for UPCS or other permitted
    uses? How could it fit with other spectrum being considered for new
    advanced wireless services? How might it be used to provide spectrum
    for incumbents that need to be relocated to accommodate new advanced
    wireless services allocations? If part of this spectrum should be
    reallocated directly for new advanced wireless services or for
    relocation in support of new advanced wireless services, how much,
    and which parts? How would reallocation affect the UPCS service
    rules? Is the location of the 1910-1930 MHz bands in proximity to
    the PCS bands either a limitation on or a benefit to their possible
    use for new advanced wireless services? In view of the expenses
    incurred by UPCS for relocating the fixed microwave facilities in
    the 1910-1930 MHz bands, how might these expenses be redistributed,
    if these bands could be used for new advanced wireless services?
    Could existing UPCS operations continue in this band, or would they
    have to cease?

12. The 2390-2400 MHz band was identified for reallocation from Federal
    Government to exclusive non-Federal Government use pursuant to the
    Omnibus Budget Reconciliation Act of 1993 ("OBRA-93").[^24] At that
    time, the band was being used by the Amateur Radio Service on a
    secondary basis. In 1995 the Commission decided to reallocate this
    band for unlicensed PCS use and to elevate the Amateur Radio Service
    to primary status because it found that amateur services and
    unlicensed devices have been able to share spectrum and it wanted to
    preserve adequate spectrum for amateur services.[^25] The Commission
    also concluded that an allocation for certain wide-area, high power
    Fixed and Mobile services proposed by other parties at that time
    would be incompatible with amateur use of this band.[^26] We seek
    comment on whether these continue to be valid concerns regarding
    sharing this band between amateur and other services, and thus would
    preclude allocating this band for advanced wireless service
    use.[^27] Because amateur services previously shared this band with
    Federal Government operations, we seek comment on whether certain
    Federal Government uses could again share this band with the amateur
    services, and request that commenters specify what type of
    allocation might be feasible. We also seek comment on the impact on
    the amateur services of further shared use. In this proceeding we
    have sought comment on the possible use of the 1755-1850 MHz band
    for advanced wireless services and noted that Federal Government
    users there would have to be relocated to other spectrum. We also
    note that Motorola recently filed an *ex parte* requesting that the
    adjacent band, 2385-2390 MHz, be used in conjunction with the
    2390-2400 MHz band to relocate Government users from spectrum under
    consideration for advanced wireless services.[^28]

13. We also seek comment on the changes to our rules proposed in the
    WINForum and UTStarcom petitions for rulemaking. WINForum asks the
    Commission to modify certain technical requirements for all UPCS
    devices, to allow isochronous UPCS devices to use the 1910-1920 MHz
    band, and to phase out asynchronous use in this band, thereby
    providing 20 megahertz of spectrum (1910-1930 MHz) for isochronous
    devices.[^29] WINForum also requests that certain technical
    requirements for the 2390-2400 MHz band be modified to make it more
    attractive for asynchronous use.[^30] UTStarcom requests that the
    Commission reallocate the 1910-1920 MHz UPCS band for operation of
    licensed community wireless networks in rural areas or for
    underserved populations in all geographic areas. Specifically, we
    seek comment on whether the 1910-1920 MHz band should be made
    available for isochronous use and whether asynchronous use should be
    phased out, as suggested by WINForum. We also seek comment on
    whether the 1910-1920 MHz band should be reallocated for community
    wireless networks to facilitate rapid and cost effective provision
    of wireless telecommunications services in small towns and tribal
    areas or to other underserved populations, as suggested by
    UTStarcom. If we conclude that the 1910-1920 MHz band is not
    appropriate for UTStarcom's proposed service, we seek comment on
    what other bands may be considered for this service. What would be
    the best regulatory framework for community wireless networks,
    *i.e.,* should transmitters be individually licensed or blanket
    licensed, or should unlicensed operation of these devices be
    allowed? Would the UPCS operations contemplated by WINForum be
    compatible with the new community based service proposed by
    UTStarcom and thus could both uses be accommodated? What changes
    would need to be made to the Part 15 rules to accommodate either or
    both of these services? Finally, we seek comment on whether certain
    Part 15 technical rules should be modified for the 2390-2400 MHz
    band, as proposed by WINForum, to facilitate asynchronous use.

## *1990-2025 MHz and 2165-2200 MHz*.

1.  ***Background***.

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14. The 1990-2025 MHz band is allocated in Region 2 on a co-primary
    basis to the Fixed, Mobile, and Mobile-satellite (Earth-to-space)
    Services; the 2165-2200 MHz band is allocated in Region 2 on a
    co-primary basis to the Fixed, Mobile, and Mobile-satellite
    (space-to-Earth) Services.[^31] Both bands are included within those
    frequency bands identified by WARC-92 for IMT-2000.[^32] In
    addition, the 1980‑2010 MHz and 2170-2200 MHz bands have been
    identified by the ITU for the satellite component of IMT-2000.[^33]
    In the United States, the Commission allocated the 1990-2025 MHz and
    2165-2200 MHz bands to the MSS, effective January 1, 2000.[^34] In
    August 2000, the Commission adopted the licensing and service rules
    for 2 GHz MSS, providing spectrum for all then-pending systems.[^35]

15. The *2 GHz MSS R&O* adopted a band arrangement that divided the 2
    GHz MSS uplink (1990-2025 MHz) and downlink (2165-2200 MHz) bands
    into segments of equal bandwidth based on the number of systems
    seeking assignments,[^36] with an additional spectrum segment
    reserved for system expansion by operators meeting certain criteria
    for service to unserved areas.[^37] The *2 GHz MSS R&O* set forth
    the following formula for determining the amount of spectrum (in
    each direction of transmission) available for each system at the
    time of initial authorization:

    35 megahertz ÷ (Number of System Proponents + One) = Size of Each
    Spectrum Segment[^38]

    At the time the Commission issued the *2 GHz MSS R&O*, nine entities
    were requesting 2 GHz MSS spectrum assignments to serve the United
    States.[^39] Thus, the licensing arrangement was premised on
    providing each of the systems a minimum of 3.5 megahertz of spectrum
    in each direction of transmission at the time of initial
    authorization, on a primary basis, *i.e.*, a "Selected
    Assignment."[^40] After release of the *2 GHz MSS R&O*, one of the
    nine MSS system proponents, Inmarsat Horizons, withdrew its request
    for MSS spectrum.[^41] As a result, with eight remaining MSS system
    proponents, the size of the Selected Assignment under the above
    formula would have increased to 3.88 megahertz of spectrum in each
    direction of transmission.

16. The Commission also established milestones for system
    implementation.[^42] Achievement of these milestones is a condition
    of the authorization.[^43] Recognizing that not all systems may be
    implemented, the Commission indicated that it would evaluate what to
    do with any "abandoned" spectrum after the passage of each of the
    milestones.[^44] The Commission indicated that possible options
    include: (a) redistributing the abandoned spectrum among systems
    that are operational and require additional spectrum; (b) making the
    abandoned spectrum available for new entrants; and (c) awarding the
    abandoned spectrum to operators serving unserved areas as per the
    criteria set forth in the *2 GHz MSS R&O*.[^45]

17. Two parties filed timely requests for reconsideration of the
    Commission's band arrangement decision.[^46] Specifically,
    Globalstar, L.P. (Globalstar), operator of an MSS system in the
    1.6/2.4 GHz bands and licensee of a 2 GHz MSS system, sought
    reconsideration of the Commission's decision that 3.5 megahertz is a
    sufficient minimum amount for each operator.[^47] Globalstar asserts
    that satellite providers need greater bandwidth if satellite
    services are to provide advanced wireless services that complement
    3G technologies. In addition, Globalstar claims that the *2 GHz MSS
    R&O* should have established a mechanism for redistributing
    abandoned spectrum. Furthermore, Globalstar argues that the
    Commission should reconsider its rejection of Globalstar's proposed
    "all-shared" licensing arrangement.[^48] While all parties
    responding to Globalstar's petition oppose adoption of the
    "all-shared" licensing arrangement,[^49] several parties agree with
    Globalstar that the Commission should have prescribed a plan for
    distributing abandoned spectrum to the remaining licensees.[^50]
    Final Analysis Communication Services, Inc. (Final Analysis),
    licensee of a non-voice non-geostationary mobile-satellite system,
    and the other petitioner for reconsideration we address here,
    specifically argues that the Commission should have made abandoned
    spectrum available not just for 2 GHz MSS systems proposing voice
    (among other) services, but to all MSS proponents, including those
    proposing or providing exclusively non-voice services.[^51]

18. Globalstar and Final Analysis also seek reconsideration of the
    Commission's decision to reserve spectrum for system expansion by
    systems that target service to unserved areas.[^52] Globalstar
    argues that this aspect of the *2 GHz MSS R&O* is unnecessary,
    claiming that satellite systems will by their nature make an effort
    to serve unserved areas.[^53] Final Analysis asks that eligibility
    to apply for the expansion spectrum not be limited to 2 GHz MSS
    systems, and that other MSS systems be permitted to apply for the
    reserved spectrum.[^54]

19. Subsequently, several parties filed requests for additional actions
    or clarifications regarding the 2 GHz MSS allocation and service
    rules. New ICO Global Communications (Holdings) Ltd. (New ICO)[^55]
    recently requested rule changes to allow ancillary terrestrial
    operations to supplement its planned satellite service.[^56] New ICO
    contends that recent technological advances will enable MSS
    operators to use spectrum more efficiently by incorporating an
    ancillary terrestrial component (ATC) that re-uses spectrum that is
    assigned to MSS operators to extend MSS availability to indoor and
    urban areas that would otherwise go unserved by a satellite-only MSS
    network.[^57] New ICO also argues that increased flexibility is
    needed to overcome financial and technical difficulties that have
    been faced by the MSS industry in recent years.[^58] New ICO
    maintains that "the Commission has allowed such flexibility in the
    past when necessary to make an underlying service viable."[^59] We
    note, however, that other MSS proponents dispute ICO's
    characterization of the state of the MSS industry.[^60] We are
    considering, in a separate proceeding, whether MSS licensees should
    be accorded additional flexibility in the mode of delivery of
    service to consumers in the use of their spectrum, and, if so, the
    conditions under which such flexibility should be accorded.[^61]

20. The Cellular Telecommunications & Internet Association (CTIA)
    subsequently submitted a petition for rulemaking requesting that the
    2 GHz MSS bands be reallocated for other uses, such as terrestrial
    wireless services, and asking that we withhold grant of 2 GHz MSS
    licenses while we consider its petition.[^62] A number of parties
    have filed comments on CTIA's requests.[^63]

21. On July 17, 2001, the Commission staff issued authorizations for the
    eight 2 GHz MSS system proponents to provide 2 GHz MSS in the United
    States.[^64] Pursuant to the *2 GHz MSS R&O*, the authorizations
    provide each system access to Selected Assignments of 3.5 megahertz
    of spectrum in each of the 1990-2025 MHz and 2165-2200 MHz bands.
    Commission staff delayed full implementation of the *2 GHz MSS R&O*
    with regard to an incremental 0.38 megahertz of spectrum per
    licensee in each band, in order to allow the Commission to address
    the proposals set forth in the CTIA Petition and the New ICO *ex
    parte* letter.

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2.  ***Discussion.***

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22. In today's action, we grant in part Globalstar's and Final
    Analysis's petitions for reconsideration and CTIA's petition for
    rulemaking. Specifically, we reconsider the decision in the *2 GHz
    MSS R&O* to defer until "after achievement of each of our system
    implementation milestones" evaluation of whether to redistribute
    abandoned spectrum or make it available to new entrants.[^65] We
    seek comment at this time regarding how to treat abandoned spectrum,
    as set forth in detail below, and include among the options whether
    to reallocate a portion of this spectrum for advanced wireless
    services. We also reconsider the decision reserving a segment of the
    2 GHz MSS spectrum for system expansion, which under the formula
    adopted in the *2 GHz MSS R&O* equaled the same amount of spectrum
    to be awarded initially to each system. We seek comment on whether
    we should retain some or all of this spectrum for system expansion.
    These actions provide opportunity to explore and seek comment here
    on a broader range of options for deployment of advanced wireless
    services, without adversely affecting the 2 GHz MSS systems' ability
    to commence operations.

23. We deny, however, CTIA's petition for rulemaking insofar as it
    requests reallocation of the entire 2 GHz MSS band and a delay in
    authorizing of 2 GHz MSS systems. The actions we are taking in this
    *MO&O and FNPRM* better serve the public interest with respect to
    these issues, and are consistent with the International Bureau's
    recent action granting 2 GHz MSS authorizations. We also deny
    Globalstar's petition for reconsideration insofar as it seeks
    adoption of its "all-shared" licensing arrangement. Globalstar's
    arguments concerning the merits of its approach were addressed and
    rejected in the *2 GHz MSS R&O*, and Globalstar's petition and the
    record generated by it do not persuade us to change the Commission's
    prior decision.

24. We now turn to options and proposals for alternative use of 2 GHz
    MSS spectrum. Based on our understanding of the likely time frames
    in which spectrum would need to be made available for advanced
    wireless services, we propose that ten to 14 megahertz of MSS
    spectrum be reallocated for advanced wireless services within the
    next year, without waiting for spectrum to be abandoned.
    Alternatively, this spectrum could be made available for displaced
    incumbents. We seek comment on two possible approaches to making
    this spectrum available for advanced wireless services, as described
    in the following paragraphs.

25. One approach would be to base the distribution of 2 GHz MSS spectrum
    on ten Selected Assignment pairs of seven megahertz each (3.5
    megahertz in each direction of transmission). Under this scenario,
    the following formula would express the amount of spectrum available
    for each MSS system, in each direction of transmission:

    35 megahertz ÷ (Number of System Proponents + 2) = Size of Each
    Spectrum Segment

    Under this approach, each of the eight 2 GHz MSS system proponents
    would choose Selected Assignments of seven megahertz. The two
    remaining pairs (totaling 14 megahertz of spectrum) would consist of
    the segment originally reserved for system expansion and the segment
    that would have been reserved for Inmarsat Horizons. Ten megahertz
    of this spectrum could be reallocated for advanced wireless
    services, and four megahertz could be retained for MSS system
    expansion or made available for other purposes, as set forth below.

26. Another approach would be to use the segment of the 2 GHz MSS
    spectrum set aside for system expansion, plus 1.12 megahertz of MSS
    spectrum from each direction of transmission, to make ten megahertz
    (five megahertz in each direction) of spectrum available for
    reallocation to other services, and to distribute the remaining 60
    MHz of spectrum among the MSS proponents. Under this scenario, the
    following formula would express the amount of spectrum available for
    each MSS system, in each direction of transmission:

    30 megahertz ÷ (Number of System Proponents) = Size of Each Spectrum
    Segment

    Thus, under this approach, the eight 2 GHz MSS system proponents
    would choose Selected Assignments of 7.5 megahertz (3.75 megahertz
    in each direction of transmission) each.

27. Either of these approaches would make it possible to allocate the
    2020-2025 MHz and 2165-2170 MHz frequency bands for other services,
    if supported in the record as being in the public interest. Under
    either approach, we would retain 56 to 60 megahertz of spectrum for
    MSS in the 1990-2020 and 2170-2200 MHz bands. Under the first
    approach, however, two megahertz of spectrum in each direction of
    transmission could either be retained for MSS use, but not
    immediately assigned to MSS systems, or be reallocated for advanced
    wireless or other services. If retained for MSS, this spectrum could
    be distributed among the 2 GHz MSS systems or made available for
    other MSS systems. We seek comment on this proposal, and these
    various approaches, concerning reallocation of MSS spectrum.

28. We also seek comment on the use of abandoned spectrum. Should the
    Commission make abandoned spectrum available for use only by 2 GHz
    MSS systems, or for other types of MSS systems (such as those that
    provide exclusively non-voice services)? Alternatively, should the
    Commission provide other services, such as advanced wireless
    services, an opportunity to pursue use of this spectrum? Based on
    the timing of authorizing the 2 GHz MSS systems, it is unlikely that
    any abandoned 2 GHz MSS spectrum would first be available for at
    least one year. We seek comment on the extent to which making
    spectrum available in this time frame would affect planned time
    frames for the assignment of spectrum for, and implementation of
    service by, advanced wireless services, and with the range of
    options under consideration in this *MO&O and FNPRM*.

29. Under any combination of mechanisms described above, we seek comment
    on whether we should retain at least the 40 megahertz of spectrum
    for MSS in the 1990-2010 MHz and 2180-2200 MHz bands, where MSS is
    allocated globally and which WRC-2000 identified for the satellite
    component of IMT‑2000. However, we propose that any reallocation of
    existing MSS spectrum would not significantly impair any of the
    current licensees' rights and reasonable expectations to retain its
    current assigned spectrum allotment and acquire additional MSS
    spectrum for purposes of deploying and operating a fully matured 2
    GHz MSS system. We seek comment on the impact of these mechanisms on
    the development and longer-term operations of 2 GHz and other MSS
    services, including possible future entrants into the MSS market.
    Would the impact differ based on the number of currently authorized
    2 GHz MSS systems that ultimately commence operations? How should
    potential combinations or acquisitions of existing licensees through
    transfers, assignments or license modifications be considered in
    connection with our ultimate reallocation decision?[^66]

30. We note that, at the conclusion of this proceeding, it may be
    necessary to make conforming changes to the provisions of the 2 GHz
    MSS system authorizations concerning Selected Assignments.
    Specifically, we would propose to modify the authorizations, if
    necessary, concerning the amount of spectrum for Selected
    Assignments, from the currently specified 3.5 megahertz, to 3.75
    megahertz, 3.88 megahertz, or another appropriate amount. We also
    propose to modify, if necessary, the location of individual Selected
    Assignments, which are currently required to be in increments of
    3.88 megahertz from the band edge. The licenses would be modified to
    specify increments of 3.5 megahertz, 3.75 megahertz, or another
    appropriate amount. Finally, we propose to modify the licenses, if
    necessary, concerning frequency bands in which Selected Assignment
    may be made, from the 1990-2025 and 2165-2200 MHz bands currently
    specified, to the 1990-2020 and 2170-2200 MHz or other appropriate
    bands. We propose to make any necessary changes to the licenses
    pursuant to Section 316 of the Communications Act. We note that, in
    the *2 GHz MSS Order*, we required that 2 GHz MSS systems be capable
    of operating across at least 70% of the 1990-2025 MHz and 2165-2200
    MHz bands.[^67] Given this requirement, there would appear to be
    adequate flexibility in the MSS satellite designs to accommodate
    possible changes to Selected Assignments.

31. We also seek comment on whether additional limitations concerning
    Selected Assignments may be appropriate if we decide to pursue
    reallocation of abandoned spectrum. In particular, in order to make
    available contiguous spectrum for other services, should we adopt
    limits on the specific 2 GHz bands in which MSS systems can specify
    Selected Assignments? For example, should we require MSS operators
    to preserve contiguous spectrum in the upper portion of the
    1990-2025 MHz frequency band, *e.g*., 2015-2025 MHz, and the lower
    portion of the 2165-2200 MHz frequency band, *e.g*., 2165-2175 MHz?
    Alternatively, should we develop some other process now for
    "repacking" 2 GHz spectrum, if it should become necessary in order
    to provide contiguous spectrum?

32. If we were to reallocate some portion of the 2 GHz MSS band, we seek
    comment on changes that would have to be made to the Commission's
    plan recently adopted in ET Docket No. 95-18 to relocate incumbent
    broadcast auxiliary service (BAS) and Fixed service (FS) users from
    the 1990-2025 MHz and 2165-2200 MHz bands, respectively. Under the
    current allocation, the 1990-2025 MHz band is to be used for MSS
    uplinks, and to avoid unacceptable mutual interference between MSS
    and incumbent BAS, the Commission has adopted a phased relocation
    plan.[^68] The plan for relocation of the BAS was designed to ensure
    the integrity of BAS throughout the transition, as well as to
    minimize the costs and barriers to entry for MSS licensees.
    Specifically, BAS relocation from the 1990-2025 MHz band is to occur
    in two phases. The first phase will free 18 megahertz of former BAS
    spectrum at 1990-2008 MHz for MSS use. It requires MSS to relocate
    BAS licensees in the top 30 Nielsen Designated Market Areas ("DMAs")
    before MSS operations begin. Once MSS operations begin, BAS
    licensees are prohibited from operating in the 1990-2008 MHz range
    in all other markets. In Phase I, MSS licensees are required to
    relocate BAS licensees in the 1990-2008 MHz band in Nielsen DMAs
    31-100 within three years after operations begin. The second phase
    will begin when the Phase I spectrum is no longer sufficient to meet
    MSS requirements.[^69] In Phase II, MSS is required to relocate BAS
    from the 2008-2023 MHz range in the top 30 Nielsen DMAs before
    operating in that range. Once MSS operations begin in the 2008-2023
    MHz range, BAS in the remaining markets will be prohibited from
    operating in that range. MSS then has three years to complete
    relocation of BAS from 2008-2023 MHz in the Nielsen DMAs 31-100, and
    five years to complete BAS relocation from 1990-2023 MHz in all
    Nielsen DMAs. Finally, on September 6, 2010, all existing incumbent
    licensees become secondary in the 1990-2025 MHz band. Negotiations
    between MSS and BAS are mandatory, and the negotiation period began
    September 6, 2000. At the end of the two-year negotiation period,
    the MSS licensee can involuntarily relocate a BAS licensee if the
    parties have not reached a relocation agreement.

33. If the Commission were to reallocate spectrum for advanced wireless
    use, including reallocating five megahertz of spectrum at 2020-2025
    MHz, the phased relocation of BAS may not be practical. Instead, BAS
    operations may have to relocate to their allocated 85 megahertz of
    spectrum at 2025-2110 MHz in one step. Under these circumstances,
    the relocation of BAS from 1990-2025 MHz would be shared between new
    MSS entrant and new advanced wireless entrants. The first new MSS
    and advanced wireless entrants would be responsible for clearing all
    of the spectrum below 2025 and would seek reimbursement on a pro
    rata basis from other new entrants. We seek comment on how the BAS
    relocation plan would have to be modified to accommodate a
    reallocation of spectrum for advanced wireless use; what the
    relocation responsibilities of new MSS and advanced wireless
    entrants would be; and whether new MSS and advanced wireless
    entrants would share the relocation costs on a pro rata basis. We
    also seek comment on any other effect these options may have on BAS
    relocation plans and procedures (including, for example, revised
    band channel plans and the length of the negotiation period, among
    other issues) recently adopted in ET Docket No. 95-18 for incumbent
    BAS operations in these bands. We also seek comment on how these
    options would affect the implementation of the band plan in the
    recently adopted *2 GHz MSS R&O*, and in particular, the flexibility
    of 2 GHz MSS licensees to use the entire band on a secondary
    basis.[^70]

34. Under the current allocation, the 2165-2200 MHz band is to be used
    for MSS downlinks.[^71] In the *2 GHz MSS Allocation Order*, we
    stated that MSS licensees would be required to relocate those FS
    operations that would receive harmful interference from MSS, but MSS
    would not be required to relocate any FS licensee with which it
    could successfully share spectrum.[^72] Incumbent FS microwave links
    in the 2165-2200 MHz band are paired with 35 megahertz of spectrum
    in the 2115-2150 MHz band. Because it is usually necessary to
    relocate both links of a two-way FS microwave system, when a new MSS
    or other licensee relocates a pair of FS links in these bands, a
    subsequent new licensee who benefits from a prior relocation will
    reimburse the initial new entrant who paid for relocation of paired
    channels. We seek comment on any effect the advanced wireless
    services reallocation options may have on FS relocation plans and
    procedures (including, for example, the length of the negotiation
    period, among other issues) recently adopted in ET Docket No. 95-18
    for incumbent FS operations. We also seek comment on how these
    options would affect the implementation of the band plan in the
    recently adopted *2 GHz MSS R&O*, and in particular, the flexibility
    of 2 GHz MSS licensees to use the entire band on a secondary basis.

35. We further seek comment on whether there are marketplace approaches
    that could facilitate more intensive or efficient use of the 2 GHz
    MSS bands. For example, our 2 GHz MSS licensing is premised on the
    construction of eight separate systems, and authorizations become
    null and void if the particular system authorized is not
    constructed. We seek comment on whether we should permit MSS
    operators to consolidate operations, such that system operators that
    reach an agreement would be able to use, for a single system, all or
    some portion of the spectrum assigned to their individual systems.
    We note that various Commission rules and policies may prevent[^73]
    or place limitations on[^74] such arrangements, and seek comment
    both on whether those rules should be waived or modified, and on
    whether such actions would frustrate the purposes of those rules, or
    implicate other policy concerns.[^75] Commenters should address
    related public interest considerations regarding the potential
    effects of consolidation on 2 GHz MSS services, such as spectrum
    management and efficiency, licensing and regulatory policies, market
    and business factors, deployment of telecommunications services and
    effect on competition (*e.g*., in the MSS market as well as in
    broader markets). For example, should we permit MSS licensees to
    consolidate operations in order to ensure enough spectrum for full
    operations? To what extent are limits necessary in order to address
    unjust enrichment of entities that have not completed system
    construction? To what extent would waivers or modifications of rules
    tend to promote the filing of speculative applications in future
    satellite processing rounds?

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3.  ***Other Matters on Reconsideration of the 2 GHz MSS R&O***

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36. In paragraph 22, *supra*, we address Globalstar's and Final
    Analysis's timely-filed requests for reconsideration of the
    Commission's band arrangement decisions in the *2 GHz MSS R&O*.
    Final Analysis also seeks reconsideration of an issue not related to
    the band arrangement. Specifically, in the *2 GHz MSS R&O*, the
    Commission concluded that there was insufficient information in the
    record of that proceeding to mandate specific requirements for 2 GHz
    MSS proponents to implement their systems with enhanced 911 (E911)
    capabilities.[^76] The Commission concluded that it is better to
    address the E911 issue in the Global Mobile Personal Communications
    by Satellite (GMPCS) Proceeding, IB Docket No. 99-67.[^77] In that
    regard, the Commission stated that "\[a\]ddressing this issue in the
    GMPCS Proceeding, moreover, will allow us to simultaneously consider
    the full scope of technical and other issues on a wide-scale basis
    for the entire satellite industry . . . ."[^78] Final Analysis
    requests that the Commission not defer consideration of E911
    requirements for 2 GHz MSS systems until resolution of the GMPCS
    Proceeding.[^79] We deny this request. We continue to believe that
    these issues should be considered in a proceeding in which their
    impact on all MSS systems can be assessed. We also note that the
    Wireless Communications Association International, Inc., filed a
    timely petition for reconsideration of the rules regarding
    protecting MDS operations at 2150-2162 MHz from out-of-band
    emissions in the 2 GHz MSS downlinks at 2165-2200 MHz.[^80] To the
    extent this issue is not rendered moot by actions in this
    proceeding, it will be considered in a future Memorandum Opinion and
    Order in IB Docket No. 99-81.

## *2150-2160 MHz*.

37. The 2150-2160 MHz band is allocated on a primary basis worldwide to
    the Fixed and Mobile Services, and on a secondary basis in Region 2
    to the Mobile-satellite (space-to-Earth) Service. It is also part of
    the spectrum identified by WARC-92 for possible new advanced
    wireless services use.[^81] In the United States, this band is
    designated for channel 1 and for channel 2A, which is the lower four
    megahertz of channel 2, of the Multipoint Distribution Service.[^82]
    Like the 2500-2690 MHz band discussed in the *New Advanced Wireless
    Services NPRM*, while this spectrum traditionally was used for
    one-way analog video transmission, current licensees are taking
    advantage of Commission service rule changes to permit use of this
    band for high speed, fixed wireless broadband services.[^83] Under
    an informal agreement among MDS licensees, the principal use of this
    spectrum is for upstream communications to hub receiving
    facilities.[^84] Notably, this MDS spectrum lies between two
    frequency bands already being considered for new advanced wireless
    services use: 2110-2150 MHz and 2160-2165 MHz.[^85]

38. The spectrum efficiencies inherent in allocating contiguous
    frequency blocks for new advanced wireless services and the
    availability of possible relocation spectrum for MDS incumbents
    support consideration of this spectrum for new advanced wireless
    services. We seek comment on whether we should reallocate the
    2150-2160 MHz band for new advanced wireless services, or for
    relocation purposes. We also seek comment on how the 2150-2160 MHz
    band might fit with other spectrum being considered for new advanced
    wireless services.

39. The *2500-2690 MHz Final Report* concludes that if the 2500-2690 MHz
    MDS/ITFS band is chosen for advanced wireless services, segmentation
    or relocation of incumbents could significantly affect MDS/ITFS
    deployment and impose considerable costs on both private entities
    and the public.[^86] In addition, although the 2500-2690 MHz band is
    available for advanced wireless systems in other countries, such as
    in Europe by the year 2010, it still remains unclear how these
    countries will actually use that band for such systems.[^87]
    Moreover, we have received several comments in the New Advanced
    Wireless Services proceeding stating that the threat of relocation
    has had a detrimental effect on MDS/ITFS licensees trying to
    roll-out new advanced broadband services.[^88] Similarly, the record
    in this proceeding also includes extensive comments on issues
    related to the possible reallocation of the 2150-2160 MHz band.
    Comments filed by the MDS/ITFS industry and several equipment
    manufacturers, for example, state that the 2150-2160 MHz band is
    necessary for the continued roll-out of fixed wireless services
    across the country.[^89] On the other hand, many parties filed
    comments in support of using of 2150-2160 MHz band for advanced
    wireless services.[^90] We seek comment on whether, and if so to
    what extent, the conclusions in the *2500-2690 MHz Final Report*
    apply to the 2150-2160 MHz band.

40. We seek comment on the impact of reallocating this spectrum for new
    advanced wireless services or for relocation purposes. We also
    request that commenters identify other frequency bands that could
    accommodate incumbent MDS services. In the Emerging Technologies
    proceeding, we allowed new entrants to provide incumbents with
    comparable facilities using any acceptable technology.[^91] Should
    relocation be deemed necessary, we propose that MDS incumbents
    similarly be entitled to comparable facilities and/or adequate
    replacement spectrum. We seek comment on how to apply to incumbent
    users the same relocation procedures that we applied in the Emerging
    Technologies proceeding.[^92] We also seek comment on the types and
    magnitudes of costs to relocate incumbent operations. For example,
    could equipment be retuned or would facilities need to be replaced?
    What would be the cost to retune or replace equipment? We also seek
    comment on a suggested timeframe to clear the band.

41. Furthermore, as discussed above, the Commission is considering
    issues about whether MDS licensees should be accorded additional
    flexibility in the use of their spectrum, and, if so, the conditions
    under which such flexibility should be accorded. In the *New
    Advanced Wireless Services NPRM*, we sought comment on whether the
    2500-2690 MHz band should be allocated for mobile and fixed services
    on a co-primary basis.[^93] Similarly, we invite comment on the
    public interest costs and benefits of adding a mobile allocation to
    the 2150-2160 MHz band. We invite MDS and ITFS licensees to discuss
    whether adding a mobile service allocation in the 2150-2160 MHz band
    would be beneficial or harmful to their plans for use of the band.

## *Pairing*

42. In the *New Advanced Wireless Services NPRM* we noted that different
    technologies use bandwidth in different ways, and invited comments
    on the spectrum requirements of technologies that use paired or
    unpaired spectrum. [^94] We also solicited comments on four
    illustrative pairing options,[^95] as well as other spectrum pairing
    options. Were the Federal Government to agree to the reallocation of
    spectrum from some of the bands identified above, additional pairing
    options would be possible. For example, we could pair 1710-1770 MHz
    with 2110-2170 MHz, to provide 120 MHz of spectrum for advanced
    wireless services. This option, consistent with Option 2 for dual
    band pairing of the 1710-1790 MHz band discussed by NTIA in its
    *Final Report*,[^96] would require redesignation of 15 MHz of
    spectrum currently occupied by Federal Government incumbents
    (1755-1770 MHz), 10 MHz of spectrum occupied by MDS incumbents
    (2150-2160 MHz), and 5 MHz of spectrum designated for 2 GHz MSS
    operators (2165-2170 MHz).[^97] Alternatively, we could pair
    1710-1780 MHz with 2110-2180 MHz to provide 140 MHz of spectrum for
    advanced wireless services. This option, again consistent with the
    *NTIA Final Report*, would require redesignation of 25 MHz of
    spectrum currently occupied by Federal Government incumbents
    (1755-1780 MHz), 10 MHz of spectrum occupied by MDS incumbents
    (2150-2160 MHz), and 15 MHz of spectrum designated for 2 GHz MSS
    operators (2165-2180 MHz).[^98]

43. We seek comment on these pairing options, as well as on additional
    pairing options made possible by the spectrum identified in this
    *MO&O and FNPRM*, and on the benefits of particular pairing plans.
    We seek comment in particular as to whether the use of the 2170-2180
    MHz band for advanced wireless services would be appropriate since
    the ITU had previously identified this spectrum for the satellite
    component of IMT-2000 and no other country has proposed or licensed
    this spectrum for terrestrial use. We also request comment as to
    whether we should reallocate the MSS spectrum at 2165‑2180 MHz
    before it is clear whether additional government spectrum above 1755
    MHz (which could be paired with this spectrum) can be redesignated
    for nongovernment use.[^99] As previously discussed, some of the
    bands identified in this *MO&O and FNPRM* could also be used for
    relocation purposes. Should one of the pairing options identified
    above be adopted, would spectrum currently designated for use by 2
    GHz MSS or UPCS be suitable for relocating MDS incumbents?

44. Some comments filed in response to the *New Advanced Wireless
    Services NPRM* maintain that the preferred minimum allocation per
    operator would provide both paired and unpaired spectrum.[^100] In
    light of the additional spectrum options discussed herein, we now
    seek comment on how various allocation choices that we could make
    would affect our ability to provide for unpaired use for advanced
    wireless services in our service rules. For example, would spectrum
    currently allocated for MSS or UPCS be suitable for unpaired use for
    advanced wireless services?

# PROCEDURAL INFORMATION

## Initial Regulatory Flexibility Analysis

45. As required by the Regulatory Flexibility Act (RFA),[^101] the
    Commission has prepared an Initial Regulatory Flexibility Analysis
    (IRFA) of the possible significant impact on small entities of the
    policies and rules proposed in this *Memorandum Opinion and Order
    and Further Notice of Proposed Rulemaking*. The IRFA is set forth in
    Appendix A. We request written public comment on the IRFA. In order
    to fulfill the mandate of the Contract with America Advancement Act
    of 1996 regarding the Final Regulatory Flexibility Analysis, we ask
    a number of questions in our IRFA regarding the prevalence of small
    businesses in the affected industries. Comments on the IRFA must be
    filed in accordance with the same filing deadlines as comments filed
    to the *Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking*, and must have a separate and distinct heading
    designating them as response to the IRFA.

## Paperwork Reduction Analysis

46. The *Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking* does not contain a proposed information collection.

## *Ex Parte* Presentations

47. For purposes of this permit-but-disclose notice and comment
    rulemaking proceeding, members of the public are advised that *ex
    parte* presentations are permitted, except during the Sunshine
    Agenda period, provided they are disclosed under the Commission's
    Rules.[^102]

## Comment Dates

48. 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 the
    Further Notice of Proposed Rulemaking on or before \[28 days after
    Federal Register publication\] and reply comments on or before \[42
    days after Federal Register publication\]. Comments may be filed
    using the Commission's Electronic Comment Filing System (ECFS) or by
    filing paper copies.[^103] All relevant and timely comments will be
    considered by the Commission before final action is taken in this
    proceeding. To file formally, interested parties must file an
    original and four copies of all comments, reply comments, and
    supporting comments. If interested parties want each Commissioner to
    receive a personal copy of their comments, they must file an
    original plus nine copies. Interested parties should send comments
    and reply comments to the Office of the Secretary, Federal
    Communications Commission, 445 12^th^ Street, S.W., Washington,
    D.C., 20054. Parties are also encouraged to file a copy of all
    pleadings on a 3.5-inch diskette in Word 97 format.

49. 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.
    In completing the transmittal screen, commenter 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.

50. 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. All filings must be sent to the Commission's Secretary,
    Magalie Roman Salas, Office of Secretary, Federal Communications
    Commission, 445 12^th^ Street, S.W., Washington, D.C. 20554.

51. Comments and reply comments will be available for public inspection
    during regular business hours in the FCC Reference Center, 445
    12^th^ Street, S.W., Washington, D.C. 20554. Comments are also
    available on the ECFS, at
    <http://gullfoss2.fcc.gov/cgi-bin/websql/prod//ecfs/comsrch_v2.hts>.

## Further Information

52. For further information concerning this *Memorandum Opinion and
    Order and Further Notice of Proposed Rulemaking*, contact the
    Wireless Telecommunications Bureau -- John Spencer at (202)
    418-1310, or the International Bureau -- Karl Kensinger at (202)
    418-0773.

# ORDERING CLAUSES

53. Accordingly, **IT IS ORDERED** that pursuant to the authority
    contained in Sections 1, 4(j), 7(a), 301, 303(c), 303(f), 303(g),
    303(r), 308, and 309(j) of the Communications Act of 1934, as
    amended, 47 U.S.C. Sections 151, 154(j), 157(a), 301, 303(c),
    303(f), 303(g), 303(r), 308, and 309(j), this *Memorandum Opinion
    and Order and Further Notice of Proposed Rulemaking* **IS ADOPTED**.

54. **IT IS FURTHER ORDERED** that the petition for rulemaking filed by
    Wireless Information Networks Forum, RM-9498, **IS GRANTED** to the
    extent indicated in the *Memorandum Opinion and Order and Further
    Notice of Proposed Rule Making*.

55. **IT IS FURTHER ORDERED** that the petition for rulemaking filed by
    UTStarcom, Inc., RM-10024, **IS GRANTED** to the extent indicated in
    the *Memorandum Opinion and Order and Further Notice of Proposed
    Rule Making*.

56. **IT IS FURTHER ORDERED** that the petition for reconsideration of
    the *2 GHz MSS R&O* filed by Globalstar, L.P. **IS GRANTED** to the
    extent indicated in the *Memorandum Opinion and Order and Further
    Notice of Proposed Rule Making*, and **IS OTHERWISE** **DENIED**.

57. **IT IS FURTHER ORDERED** that the petition for reconsideration of
    the *2 GHz MSS R&O* filed by Final Analysis Communications Services,
    Inc. **IS GRANTED** to the extent indicated in the *Memorandum
    Opinion and Order and Further Notice of Proposed Rule Making*, and
    **IS OTHERWISE DENIED**.

58. **IT IS FURTHER ORDERED** that the Petition for Rulemaking filed by
    the Cellular Telecommunications & Internet Association **IS
    GRANTED** to the extent indicated in this *Memorandum Opinion and
    Order and Further Notice of Proposed Rule Making*, and **IS
    OTHERWISE** **DENIED**.

59. **IT IS FURTHER ORDERED** that the Commission's Consumer Information
    Bureau, Reference Information Center, **SHALL SEND** a copy of this
    *Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking*, including the Initial Regulatory Flexibility Analysis,
    to the Chief Counsel for Advocacy of the Small Business
    Administration.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

    Secretary

APPENDIX A

Initial Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act (RFA),[^104] the
Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities by
the policies and rules proposed in this *Memorandum Opinion and Order
and Further Notice of Proposed Rulemaking* (*FNPRM*), ET Docket No.
00-258, ET Docket No. 95-18, and IB Docket No. 99-81. 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
the *FNPRM* as provided above in paragraph 48. We further ask that
comments to the IRFA be submitted to all three dockets listed in the
caption of the *FNPRM*, ET Docket No. 00-258, ET Docket No. 95-18, and
IB Docket No. 99-81. The Commission will send a copy of the *FNPRM*,
including the IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA).[^105] In addition, the *FNPRM* and the
IRFA (or summaries thereof) will be published in the Federal
Register.[^106]

### A. Need for, and Objectives of, the Proposed Rules {#a.-need-for-and-objectives-of-the-proposed-rules .unnumbered}

This *FNPRM* seeks to supplement the record created through the earlier
*Notice of Proposed Rulemaking* (*NPRM*) in this proceeding, by
proposing the possible use of several additional frequency bands below 3
GHz that could be used for advanced wireless communications systems, but
that were not specifically addressed in the *NPRM*. In particular, the
*FNPRM* seeks comment on reallocation of spectrum currently designated
for the Mobile Satellite Service, the Unlicensed Personal Communications
Service, the Amateur Radio Service, and the Multipoint Distribution
Service in the 1910-1930 MHz, 1990-2025 MHz, 2150-2160 MHz, 2165-2200
MHz and 2390-2400 MHz bands for new advanced wireless services. The
objective of these proposed actions is to reallocate spectrum that could
be used to provide a wide range of voice, data, and broadband services
over a variety of mobile and fixed networks, thus offering all entities,
including small entities, greater opportunity to participate in the
telecommunications industry and greater flexibility.

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

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

### C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will {#c.-description-and-estimate-of-the-number-of-small-entities-to-which-the-proposed-rules-will .unnumbered}

Apply

The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.[^107] The RFA generally
defines the term "small entity" as having the same meaning as the terms
"small business," "small organization," and "small governmental
jurisdiction."[^108]

The term "small business" has the same meaning as the term "small
business concern" under Section 3 of the Small Business Act, unless the
Commission has developed one or more definitions that are appropriate
for its activities.[^109] Under the Small Business Act, a "small
business concern" is one that: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.[^110] Nationwide, as of 1992
there were approximately 4.44 million small business firms, according to
SBA reporting data.[^111]

A "small organization" is generally "any not-for-profit enterprise which
is independently owned and operated and is not dominant in its
field."[^112] Nationwide, as of 1992, there were approximately 275,801
small organizations.[^113]

The definition of "small governmental jurisdiction" is one with
populations of fewer than 50,000.[^114] As of 1992, there were
approximately 85,006 governmental entities in the nation.[^115] This
number includes such entities as states, counties, cities, utility
districts and school districts. There are no figures available on what
portion of this number has populations of fewer than 50,000. However,
this number includes 38,978 counties, cities and towns, and of those,
37,556, or ninety-six percent, have populations of fewer than
50,000.[^116] The Census Bureau estimates that this ratio is
approximately accurate for all government entities. Thus, of the 85,006
governmental entities, we estimate that ninety-six percent, or about
81,600, are small entities that may be affected by our proposed rules.

[Geostationary, Non-Geostationary Orbit, Fixed Satellite, or Mobile
Satellite Service Operators]{.underline}. The Commission has not
developed a definition of small entities applicable to geostationary or
non-geostationary orbit, fixed-satellite or mobile-satellite service
operators. Therefore, the applicable definition of small entity is the
definition under the SBA rules applicable to Communications Services,
Not Elsewhere Classified. This definition provides that a small entity
is one with \$11.0 million or less in annual receipts.[^117] According
to Census Bureau data, there are 848 firms that fall under the category
of Communications Services, Not Elsewhere Classified. Of those,
approximately 775 reported annual receipts of \$11 million or less and
qualify as small entities.[^118] Small businesses may not have the
financial ability to become geostationary or non-geostationary,
fixed-satellite or mobile-satellite service system operators because of
the high implementation costs associated with satellite systems and
services. At this time, at least one of the 2 GHz MSS applicants may be
considered a small business. The Commission expects, however, that by
the time of implementation it will no longer be considered a small
business due to the capital requirements for launching and operating its
proposed system. Because there are limited spectrum and orbital
resources available for assignment, the Commission estimates that no
more than nine entities will be approved by the Commission as operators
providing these services.

[Multipoint Distribution Service (MDS)]{.underline}. This service
involves a variety of transmitters, which are used to relay data and
programming to the home or office, similar to that provided by cable
television systems. In connection with the 1996 MDS auction, the
Commission defined small businesses as entities that had annual average
gross revenues for the three preceding years not in excess of \$40
million.[^119] This definition of a small entity in the context of MDS
auctions has been approved by the SBA.[^120] Licenses for new MDS
facilities are now awarded to auction winners in Basic Trading Areas
(BTAs) and BTA-like areas.[^121] The MDS auctions resulted in 67
successful bidders obtaining licensing opportunities for 493 BTAs. Of
the 67 auction winners, 61 meet the definition of a small business.

MDS is also heavily encumbered with licensees of stations authorized
prior to the MDS auction. SBA has developed a definition of small
entities for pay television services, which includes all such companies
generating \$11 million or less in annual receipts.[^122] This
definition includes MDS systems, and thus applies to incumbent MDS
licensees and wireless cable operators which may not have participated
or been successful in the MDS auction. Information available to us
indicates that there are 892 of these licensees and operators that do
not generate revenue in excess of \$11 million annually. Therefore, for
purposes of this analysis, we find there are approximately 892 small MDS
providers as defined by the SBA and the Commission's auction rules, all
of whom could be affected by the Commission's proposed action.

[Amateur Radio Service (ARS)]{.underline}. Incumbent licensees in the
ARS could be affected by actions taken in this proceeding, however,
because the ARS is comprised of individuals, no small entities will be
affected.

[Unlicensed Personal Communications Service (UPCS).]{.underline} As its
name indicates, UPCS is not a licensed service. UPCS consists of
intentional radiators operating in the frequency bands 1910-1930 MHz and
2390-2400 MHz, that provide a wide array of mobile and ancillary fixed
communication services to individuals and businesses. There is no
accurate source for the number of operators in the UPCS. Manufacturers
could be affected, however, if UPCS frequencies are transferred for
other uses because need for their product could be minimized or
eliminated, depending on the final action taken. This hardship could be
offset if UPCS operators are moved to other frequencies or if
manufacturers can sell equipment to new services occupying the UPCS
frequencies. The Commission has not developed a definition of small
entities applicable to UPCS equipment manufacturers. Therefore, the
applicable definition of small entity is the definition under the SBA
rules applicable to Communications Services, Not Elsewhere Classified.
This definition provides that a small entity is one with \$11.0 million
or less in annual receipts.[^123] According to Census Bureau data, there
are 848 firms that fall under the category of Communications Services,
Not Elsewhere Classified. Of those, approximately 775 reported annual
receipts of \$11 million or less and qualify as small entities. There
are currently 15 manufacturers that have 45 equipment authorizations for
devices that operate in the 1910-1930 MHz band. No equipment
authorizations have been issued for devices operating in the 2390-2400
MHz band.

**D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements**

This *FNPRM* deals only with the possible reallocation of frequency
bands below 3 GHz to support the introduction of new wireless services,
and does not propose assignment or service rules. Thus, the item
proposes no new reporting, recordkeeping, or other compliance
requirements. Once it has been decided whether to reallocate this
spectrum, the Commission will consider adoption of implementing rules,
some of which might entail compliance requirements.

**E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant**

**Alternatives Considered and Rejected**

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives, among others: (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design standards; (4) an exemption from
coverage of the rule, or any part thereof, for small entities.[^124]

Providing spectrum to support the introduction of new advanced mobile
and fixed terrestrial wireless services is critical to the continuation
of technological advancement. First and foremost, the Commission
believes that our proposal to explore the possible use of several
frequency bands that could offer a wide range of voice, data, and
broadband services over a variety of mobile and fixed networks may
provide substantial new opportunities for small entities.

However, depending on the final action taken in this proceeding, small
incumbent entities could be affected in a negative way as well, because
some entities must be displaced to clear spectrum for new uses. We
endeavored to avoid this effect by identifying unencumbered spectrum,
but spectrum in the suitable frequency range is heavily used already and
sufficient unencumbered spectrum simply does not exist. We have
therefore sought to minimize an adverse impact by proposing to
reallocate frequency bands for those incumbents, including small
entities, which might be accommodated in other spectrum and could be
relocated more easily. We are also considering compensation of displaced
incumbents, including any small entity which is displaced. At this
nascent stage of the proceeding, the Commission is soliciting comment on
a variety of issues relevant to these possibilities.

The *FNPRM* also suggests in paragraph 40 the alternative of
grandfathering incumbent licensees who qualify as small entities, until
they are ready to move to new frequencies, thus easing their transition
to new spectrum. Another alternative that the Commission believes has
worked in the past, would be to encourage small entities to participate
by offering them bidding credits if the reallocation is adopted and the
spectrum is auctioned.

The *FNPRM* more specifically considers a variety of alternatives that
could make frequencies available to incumbents, including small
entities, who could be subject to relocation. For example, one
alternative discussed in paragraphs 11-13 would be to use spectrum in
the 1910-1930 MHz or 2390-2400 MHz bands for relocation. A second
alternative, discussed in paragraphs 27-28 *FNPRM,* would be to use some
of the 2 GHz MSS spectrum for relocation. Paragraph 38 seeks comment on
using the 2150-2160 MHz MDS band for relocation purposes. Any of these
alternatives would facilitate the relocation of displaced incumbents,
including small entities.

Finally, the Commission has already received extensive comments on
issues related to the possible reallocation of the 2150-2160 MHz (2.1
GHz) spectrum for advanced wireless purposes. Comments filed by the
multipoint distribution/instructional television fixed services industry
and several equipment manufacturers argue that the 2.1 GHz band is
necessary for the continued roll-out of fixed wireless services across
the country. Other commenters support the use of 2.1 GHz for advanced
wireless services. We are considering both alternatives, and are
attempting to minimize any negative impact on licensees, including small
entities, in the 2150-2160 band. These alternatives are discussed in
paragraphs 37-41, and include the possibility of providing displaced
incumbents with relocation spectrum or compensating such licensees.

**F. Federal Rules that May Duplicate, Overlap, or Conflict with the
Proposed Rules**

None.

**SEPARATE STATEMENT OF COMMISSIONER GLORIA TRISTANI**

**Dissenting in Part**

Re: *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 (Aug. 9, 2001)*

I dissent in part. The task of identifying spectrum appropriate for
third generation (3G) and other advanced wireless services cannot be
underestimated. As we are all aware, the spectrum "pie" is not getting
any bigger and the competing interests at issue here each hold the
promise of serving the public interest in their own way. I appreciate
the hard work that Commission staff, other government personnel, and
private parties are engaged in to find solutions to these difficult
issues. This *Further Notice* takes additional steps to refine the path
to 3G. While today's action adds new spectrum bands into the mix for 3G
allocation, the Commission should have also used this opportunity to lay
to rest the uncertainty surrounding the ITFS and mulitpoint MDS
operations in the 2500-2690 MHz (2.5 GHz) band.

For more than a year, the specter of relocation or any reallocation in
the 2.5 GHz band has hampered the ability of the MDS/ITFS community to
deploy and deliver broadband services to the public and to educational
users. While MDS offers a significant opportunity for competition to DSL
and cable modem services, particularly in rural areas, many consumers
still relegated to a dial-up Internet world have lost out on this
opportunity for broadband access. And for the ITFS community, two-way,
digital services are a powerful medium that can serve as a critical
component of our educational programming delivery system. Delayed
deployment here is a disservice. As one ITFS advocate noted recently, "A
single school year is a very long time in the life of a student."

Last January, the Commission sought comment on whether spectrum in the
2.5 GHz band should be made available for 3G and other advanced wireless
services. The extensive record demonstrates the importance of the
MDS/ITFS relationship and the promise of fixed broadband systems in the
2.5 GHz band. Further, the Commission staff's *Final Report* on this
band identifies significant hurdles posed by any modification to the
current allocation. We\'ve made a good faith review, and it\'s high time
to remove the dark cloud of uncertainty hanging over the MDS/ITFS
community.

Our action today is the first opportunity the Commission has had to
express views on the 2.5 GHz band since we sought comment in January. At
a minimum, we should have eliminated the cloud of relocation. For this
reason, I dissent in part.

**SEPARATE STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN**

Re: *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,* Memorandum Opinion and Order and Further Notice of Proposed
Rulemaking, ET Docket No. 00-258, ET Docket No. 95-18, IB Docket No.
99-81, RM-9498, and RM-10024

The future deployment of increasingly advanced wireless services is
challenging and critical. Technological innovation and new service
offerings are fueling a period of exploding growth in the demand for
mobile telephone, Internet, and data applications. According to at least
one study, more than one-third of us will be on the "wireless web" by
2005.

If we are to meet this anticipated demand, we must develop a broad
spectrum management policy that ensures efficiency and flexible use, and
we must also continue to work to make additional spectrum available for
3G use. This item moves us forward in that direction. As we debate where
to find the spectrum to meet this demand, we should keep in mind that
the amount of available spectrum and our ability to use it is ultimately
limited only by technology. Indeed, I am hopeful that future
technological development will allow us to make more efficient use of
current spectrum allocations, and make further use of additional
frequency bands. With such developments, spectrum may no longer be
viewed as a scarce natural resource. Today, however, we face practical
limitations, and, as a result, our spectrum management policies are
critical.

In the coming months, we should challenge ourselves to make decisions
that will best promote the highest valued use of the spectrum currently
available. We should work toward policies that allow the free market to
meet demand, thus offering increased flexibility and regulatory
certainty, while still respecting the rights of current license holders.

Providing regulatory certainty is particularly important for systems in
the 2500-2690 MHz band, which the Commission has been considering using
for 3G allocation for over a year. In March, Commission staff prepared
an exhaustive report analyzing whether to relocate incumbents in this
band. The report concluded that relocation of incumbent licensees in
this band would cause significant economic and technical difficulties
for the ITFS/MDS community. The report explained that relocation would
require considerable time and costs to reengineer and deploy systems in
alternate frequency bands, which, in turn, would delay delivery of the
valuable services provided in this band. The report also recognized that
there is a great deal of variation in the architectures and technical
characteristics of systems in this band and concluded that there is no
readily identifiable alternate frequency band that can accommodate a
substantial relocation of the incumbent operations.

In light of this report, I have serious concerns about relocating the
incumbents in this band. At the very least, we should try to resolve
this issue as soon as possible to provide current licensees the
regulatory stability they need for investment in new technologies and
service offerings. While I am disappointed that we were not able to do
so in this item, I look forward to working with the Chairman and other
Commissioners to resolve this issue in the near future.

[^1]: 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, *Notice of
    Proposed Rule Making and Order*, 16 FCC Rcd 596 (2001) *(New
    Advanced Wireless Services NPRM).*

[^2]: We ask commenters to file their comments in all three dockets
    listed in the caption of this *MO&O and FNPRM*.

[^3]: Establishment of Policies and Service Rules for the Mobile
    Satellite Service in the 2 GHz Band, IB Docket No. 99-81, *Report
    and Order*, 15 FCC Rcd 16127, 16138 ¶ 16 (2000) (*2 GHz MSS R&O*).

[^4]: Petition for Rulemaking of the Cellular Telecommunications &
    Internet Association (filed May 18, 2001) (CTIA Petition).

[^5]: *See New Advanced Wireless Services NPRM*, 16 FCC Rcd at 607 ¶ 24.

[^6]: *See, e.g*., Implementation of Section 6002(b) of the Omnibus
    Budget Reconciliation Act of 1993: Annual Report and Analysis of
    Competitive Market Conditions with Respect to Commercial Mobile
    Services, *Sixth Report*, FCC 01-192, at 5-7 (rel. July 17, 2001)

[^7]: ITU-R studies forecasted that on the order of 160 megahertz of
    spectrum, in addition to that already identified for IMT-2000 in No.
    S5.388, and in addition to the spectrum used for first- and
    second-generation mobile systems in all three ITU Regions, will be
    needed by 2010 in order to meet the projected requirements of
    IMT-2000 in those areas where the traffic is the highest. *See Final
    Acts of the World Radiocommunication Conference* (*Istanbul,
    WRC-2000*), Resolution 223. IMT-2000 systems are 3G systems that are
    scheduled to be initiated around the year 2000, subject to market
    and other national considerations.

[^8]: The Commission released an interim report on the 2500-2690 MHz
    band on November 15, 2000, and a final report on March 30, 2001.
    *See* FCC Staff Report Issued by the Office of Engineering and
    Technology, Mass Media Bureau, Wireless Telecommunications Bureau,
    and International Bureau: "Spectrum Study of the 2500-2690 MHz Band:
    The Potential for Accommodating Third Generation Mobile Systems,"
    Interim Report, ET Docket No. 00-232, DA 00-2583 (rel. Nov. 15,
    2000); Final Report, ET Docket No. 00-232, DA 01-786 (*2500-2690 MHz
    Final Report*) (rel. Mar. 30, 2001). NTIA also completed an interim
    report and a final report on the 1755-1850 MHz band. *See* "Federal
    Operations in the 1755-1850 MHz Band: The Potential for
    Accommodating Third Generation Mobile Systems," Interim Report (rel.
    Nov. 15, 2000) \<www.ntia.doc.gov/osmhome/reports/ imt2000\>; "The
    Potential for Accommodating Third Generation Mobile Systems in the
    1710-1850 MHz Band: Federal Operations, Relocation Costs, and
    Operational Impacts," Final Report (rel. Mar. 30, 2001)
    \<www.ntia.doc.gov/ntiahome/threeg/33001/3g33001.pdf\>.

[^9]: *New Advanced Wireless Services NPRM*, 16 FCC Rcd at 609-22 ¶¶
    30-65.

[^10]: *See* Request for Declaratory Ruling on the Use of Digital
    Modulation by Multipoint Distribution Service and Instructional
    Television Fixed Service Station*s, Declaratory Ruling and Order*,
    11 FCC Rcd 18839, 18873 ¶ 59 (1996).

[^11]: *See The Mass Media Bureau Implements Policy for Provision of
    Internet Service on MDS and Leased ITFS Frequencies*, 11 FCC Rcd
    22419 (1996).

[^12]: *See* Amendment of Parts 21 and 74 to Enable Multipoint
    Distribution Service and Instructional Television Fixed Service
    Licensees to Engage in Fixed Two-Way Transmissions, MM Docket No.
    97-217, *Report and Order*, 13 FCC Rcd 19112 (1998), *recon.*, 14
    FCC Rcd 12764 (1999), *further recon.*, 15 FCC Rcd 14566 (2000).

[^13]: *See Public Notice,* Report No. 337 (MMB Apr. 6, 2001).

[^14]: Several major companies are planning to use this spectrum to roll
    out high-speed Internet access in about 200 markets. WCA Comments at
    23-25.

[^15]: *2500-2690 MHz Final Report* at 59-80.

[^16]: *Id*. at iii.

[^17]: *Id*. at ii-iii.

[^18]: *See* Amendment of the Commission's Rules to Establish New
    Personal Communications Services, GEN Docket No. 90-314, *Memorandum
    Opinion and Order*, 9 FCC Rcd 4957, 5037 ¶ 208 (1994). Section
    15.303 of the Commission's rules defines asynchronous devices as
    those "that transmit RF energy at irregular time intervals, as
    typified by local area network data systems," and isochronous
    devices as those "that transmit at a regular interval, typified by
    time-division voice systems." 47 C.F.R. § 15.303(a), (d).

[^19]: The Members of the ITU have divided the world into three Regions.
    Generally, Region 1 includes Africa, Europe, Northern and Western
    portions of Asia; Region 2 includes the Americas and Greenland; and
    Region 3 includes Southern portions of Asia, Australia and the South
    Pacific. *See* ITU Radio Regulations Article S5, Section I.

[^20]: *See* Allocation of Spectrum below 5 GHz Transferred from Federal
    Government Use, ET Docket No. 94-32, *First Report and Order and
    Second Notice of Proposed Rule Making*, 10 FCC Rcd 4769, 4779-80 ¶¶
    16-17 (1995).

[^21]: With respect to 1910-1930 MHz, ITU RR S5.388 states that the band
    1885-2025 MHz is intended for use, on a worldwide basis, by
    administrations wishing to implement IMT-2000, and that such use
    does not preclude the use of the band by other services to which it
    is allocated. With respect to 2390-2400 MHz*, see Final Acts of the
    World Radiocommunication Conference (Istanbul, WRC-2000)*,
    Resolution 223, recognizing a).

[^22]: The Commission has approved 45 devices for use in this band.

[^23]: Wireless Information Networks Forum (WINForum) Petition for
    Rulemaking, RM-9498, Jan. 8, 1999; UTStarcom, Inc., Petition for
    Rulemaking, RM-10024, Nov. 6, 2000.

[^24]: Effective August 10, 1994, any Federal Government operations must
    not cause harmful interference to authorized non-Federal Government
    operations. *See* 47 C.F.R. § 2.106, footnote G122.

[^25]: *See* Allocation of Spectrum Below 5 GHz Transferred from Federal
    Government Use, ET Docket No. 94-32, *First Report and Order and
    Second Notice of Proposed Rulemaking*, 10 FCC Rcd 4769, 4773-75 ¶¶
    6-9 (1995).

[^26]: The Amateur Radio Relay League, Inc. ("ARRL") has identified the
    following uses of the 2390-2400 MHz band: 2390-2396 MHz---fast-scan
    TV; 2396-2399 MHz---high-rate data; 2399-2399.5 MHz---packet; and
    2399.5-2400 MHz---control and auxiliary links. *See* ARRL's FCC Rule
    Book 4-22 (12^th^ ed. 2000).

[^27]: ARRL has filed a petition for rulemaking to upgrade the amateur
    allocation in the adjacent band, 2400-2402 MHz, from secondary to
    primary status. ARRL has requested this change primarily to protect
    amateur satellite operations in this band. *See* ARRL Petition for
    Rulemaking, RM-9949, July 17, 2000. In the 2.4 GHz band, the amateur
    service also has allocations at 2402-2417 GHz (primary) and
    2417-2450 MHz (secondary). Approximately 200 megahertz of spectrum
    below 3 GHz is now allocated to amateur services for either primary
    or secondary use.

[^28]: *See* Letter from Steve B. Sharkey, Motorola to Secretary, FCC,
    July 18, 2001. This letter referenced both this docket on advanced
    wireless services and ET Docket No. 00-221, which proposed Fixed and
    Mobile allocations for the 2385-2390 MHz band.

[^29]: WINForum seeks a modification to the spectrum etiquette
    requirements in 47 CFR §15.323 and certain technical rules (*e.g*.,
    47 CFR §§ 15.319 (peak power), 15.321 (frequency stability)) in
    conjunction with its proposed use of the 1910-1920 MHz band.

[^30]: WINForum seeks modifications to these technical rules for
    operations in the 2390-2400 MHz band: 47 CFR §§ 15.319 (peak power),
    15.321 (frequency stability), 15.323 (spectrum etiquette).

[^31]: The frequencies 1980-2010 MHz and 2170-2200 MHz are allocated to
    the MSS on a primary basis worldwide; the frequencies 2010-2025 MHz
    and 2160-2170 MHz are also allocated to the MSS on a primary basis
    in the Americas (ITU Region 2). The allocation of 2010-2025 MHz and
    2160-2170 MHz to MSS in Region 2 is generally effective January 1,
    2002, but a footnote (S5.389D) to this allocation provides that
    these frequencies are usable by MSS in the United States effective
    January 1, 2000.

[^32]: ITU RR S5.388, which was adopted at WARC-92, states that the
    1885-2025 MHz and 2110-2200 MHz bands are intended for use, on a
    worldwide basis, by administrations wishing to implement IMT-2000,
    and that such use does not preclude the use of the bands by other
    services to which they are allocated.

[^33]: *See* ITU-R Resolution 212 (Rev. WRC-97) and Resolution 716 (Rev.
    WRC-2000).

[^34]: *See* Amendment of Section 2.106 of the Commission's Rules to
    Allocate Spectrum at 2 GHz for Use by the Mobile-Satellite Service,
    ET Docket No. 95-18, *First Report and Order and Further Notice of
    Proposed Rule Making*, 12 FCC Rcd 7388 (1997) (*2 GHz MSS Allocation
    Order*) (international allocation of portions of the 2 GHz frequency
    band for mobile satellite service links adopted for use in the
    United States), *aff'd on recon*., *Memorandum Opinion and Order and
    Third Notice of Proposed Rule Making and Order*, 13 FCC Rcd 23949
    (1998) (affirming 2 GHz MSS allocation and seeking further comment
    on relocation issues). The 1990-2025 MHz band is now being used by
    the broadcast auxiliary, cable relay and local television
    transmission services. The 2110-2200 MHz band is currently used for
    fixed and multipoint distribution services. In 2000, the Commission
    finalized the relocation procedures for incumbent broadcast
    auxiliary services at 1990-2025 MHz and the fixed services at
    2165-2200 MHz. *See* Amendment of Section 2.106 of the Commission's
    Rules to Allocate Spectrum at 2 GHz for Use by the Mobile-Satellite
    Service, ET Docket No. 95-18, *Second Report And Order and Second
    Memorandum Opinion and Order*, 15 FCC Rcd 12315 (2000) (*2 GHz MSS
    2R&O*). Under these procedures, broadcast auxiliary services are
    subject to a phased relocation from the 1990-2025 MHz band.

[^35]: *2 GHz MSS R&O*, 15 FCC Rcd 16127. The Commission permitted the
    existing MSS system proponents to file amendments to conform their
    applications or letters of intent to the new service rules. These
    amendments were placed on Public Notice on November 29, 2000. *See*
    Public Notice, Report No. SAT-00061 (rel. November 29, 2000) (*2 GHz
    MSS Amendment PN*). Comments were received on December 14, 2000 and
    reply comments were received on January 16, 2001. Commission staff
    issued the 2 GHz MSS authorizations on July 17, 2001. *See infra*
    para. 21.

[^36]: *2 GHz MSS R&O*, 15 FCC Rcd at 16138 ¶ 16. Under the *2 GHz MSS
    R&O*, the number of system proponents is determined at the time that
    the first 2 GHz MSS system is authorized. *Id*.

[^37]: *Id.* at 16146-47 ¶¶ 35-39. This spectrum is available one year
    after the first 2 GHz MSS license is issued.

[^38]: *Id.* at 16138 ¶ 16.

[^39]: Specifically, The Boeing Company, Celsat America, Inc.,
    Constellation Communications, Inc., Globalstar, L.P., Iridium LLC,
    and Mobile Communications Holding, Inc. filed applications for U.S.
    space station licenses; and ICO Services Limited, Inmarsat Horizons,
    and TMI Communications and Company, Limited Partnership filed
    letters of intent seeking reservation of spectrum to serve the U.S.
    market from non-U.S.-licensed systems.

[^40]: Each 2 GHz MSS operator must identify the specific frequencies of
    its Selected Assignment when the first satellite in its system
    reaches the intended orbit and notify the Commission in writing of
    its selection. *2 Ghz MSS R&*O, 15 FCC Rcd at 16138 ¶ 16. Consistent
    with the *2 GHz MSS R&*O, an operator may also elect to operate
    outside its Selected Assignment on a secondary basis with respect to
    other 2 GHz MSS operators, subject to certain conditions. *Id.* at
    16139-40 ¶ 19.

[^41]: *2 GHz MSS Amendment PN*, Report No. SAT-00061, at 2.

[^42]: All systems must enter into a non-contingent satellite
    manufacturing contract for the system within one year of
    authorization, and complete critical design review within two years
    of authorization. *Non-geostationary satellite systems* must begin
    physical construction of all satellites in the system within two and
    a half years of authorization, and complete construction and launch
    of the first two satellites within three and a half years of grant.
    *Geostationary satellite systems* must begin physical construction
    of all satellites in the system within three years, and complete
    construction of, and launch, one satellite of its constellation into
    its assigned orbital location within five years of authorization.
    The entire system must be launched and operational within six years
    of authorization. *2 GHz MSS R&O*, 15 FCC Rcd at 16177-78 ¶ 106.

[^43]: 2 GHz MSS systems must, within ten days after a milestone, either
    certify its completion or inform the Commission that the milestone
    has not been met. If a system does not file a certification that the
    milestone has been met, the authorization is automatically
    cancelled. 47 C.F.R. § 25.143(e)(3).

[^44]: *2 GHz MSS R&O*, 15 FCC Rcd at 16139 ¶ 18. In this context,
    "abandoned spectrum" includes all licensed (or, for non-U.S.-entity
    access, reserved) spectrum that the Commission reclaims as a result
    of the system proponent voluntarily turning in the license or
    missing milestones.

[^45]: *Id*. at 16144-49 ¶¶ 31-44.

[^46]: Petition for Reconsideration of Globalstar, L.P., IB Docket No.
    99-81 (filed Nov. 3, 2000) (Globalstar Petition for
    Reconsideration); Petition for Reconsideration of Final Analysis
    Communication Services, Inc., IB Docket No. 99-81 (filed Nov. 3,
    2000) (Final Analysis Petition for Reconsideration). Reconsideration
    petition issues not related to the band arrangement are addressed in
    para. 36, *infra*.

[^47]: Globalstar Petition for Reconsideration at 2-10.

[^48]: Under this arrangement, immediately upon licensing all eligible
    systems would share the available 2 GHz MSS spectrum through
    coordination. As we indicated in the *2 GHz MSS R&O*, this approach
    could require the Commission to mandate completion of coordination
    or individual systems choices of technology (*e.g*., modulation
    scheme). *2 GHz MSS R&O,* 15 FCC Rcd at 16142-43 ¶¶ 26-27.

[^49]: Consolidated Opposition of Celsat America, Inc., IB Docket No.
    99-81, at 1-3 (filed Dec. 28, 2000) (Celsat Opposition); Opposition
    of ICO Services Limited, IB Docket No. 99-81, at 1-4 (filed Dec. 28,
    2000) (ICO Opposition); Reply of The Boeing Company, IB Docket No.
    99-81, at 1-3 (filed Jan. 8, 2001) (Boeing Reply).

[^50]: ICO Opposition at 2; Boeing Reply at 3-4.

[^51]: Final Analysis Petition for Reconsideration at 3-9. *Compare*
    Opposition of Globalstar, L.P., IB Docket No. 99-81, at 4-7 (filed
    Dec. 28, 2000) (arguing that Final Analysis seeks to access the 2
    GHz MSS band outside of a processing round); Celsat Opposition at
    5-7 (same); ICO Opposition at 4-6 (same); Boeing Reply at 4-5 (same)
    *with* Reply to Oppositions of Final Analysis Communication
    Services, Inc., IB Docket No. 99-81, at 3 (filed Jan. 10, 2001)
    (clarifying that any 2 GHz MSS second processing round should be
    open to all MSS operators, including those proposing or providing
    exclusively non-voice services).

[^52]: *2 GHz MSS R&O*, 15 FCC Rcd at 16144-49 ¶¶ 31-44.

[^53]: Globalstar Petition for Reconsideration at 10-14.

[^54]: Final Analysis Petition for Reconsideration at 8-9.

[^55]: New ICO, a Delaware corporation, is the parent of ICO Services
    Limited, a United Kingdom company that has filed a letter of intent
    to provide 2 GHz MSS in the United States.

[^56]: *Ex parte* letter of New ICO Global Communications (Holdings)
    Ltd., IB Docket No. 99-81 (filed Mar. 8, 2001) (New ICO *ex parte*
    letter).

[^57]: *Id.* *But see* *Ex parte* letter of Verizon Wireless, ET Docket
    No. 00-258 & IB Docket No. 99-81, at 4 (filed Apr. 24, 2001)
    (opposing New ICO's request); *ex parte* Letters of Michele Farquhar
    and Ari Fitzgerald, Counsels for Alaska Native Wireless Corporation,
    WT Docket No. 00-230 & IB Docket No. 99-81, at 2 (filed June 29 &
    July 2, 2001)(same).

[^58]: New ICO *ex parte* letter at 3-6. *Accord* Application of Motient
    Services Inc. and Mobile Satellite Ventures Subsidiary LLC for
    Assignment of Licenses and for Authority to Launch and Operate a
    Next-Generation Mobile Satellite Service System at 12 (filed Mar. 1,
    2001) (in an amendment to its second generation MSS application,
    Motient requests authority to deploy terrestrial base stations in
    the 1.5/1.6 GHz MSS bands, noting that "after more than four years
    of commercial operations, it has become clear to Motient that
    unavoidable technical limitations make it difficult to sustain a
    viable, satellite-only mobile communications business.").

[^59]: New ICO *ex parte* letter at 12.

[^60]: "\[W\]hile the MSS industry has consolidated, much as the
    terrestrial industry has done, the industry will be vibrant and
    offer a wide panoply of public services . . . . MSS is not 'dead' or
    lacking in the public interest and it does not require protection .
    . . ." Request of the Mobile Satellite Users Association at 2 (filed
    May 31, 2001) (MSUA Request). *See also Ex parte* letter of The
    Boeing Company, IB Docket No. 99-81, at 1 (filed May 24, 2001)
    ("Boeing has designed its 2 GHz MSS system as a dedicated
    *satellite-based* infrastructure . . . ." (emphasis added)); *Ex
    parte* letter of Celsat America, Inc., IB Docket No. 99-81, at 1
    (filed June 25, 2001) (Celsat "strongly disagrees with the
    sentiments of New ICO" that 2 GHz MSS systems are not economically
    viable without ATC).

[^61]: *See* Flexibility for Delivery of Mobile Satellite Services in
    the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz Band; Amendment of
    Section 2.106 of the Commission's Rules to Allocate Spectrum at 2
    GHz for Use by the Mobile Satellite Service, IB Docket No. 01-185,
    ET Docket No. 95-18, *Notice of Proposed Rulemaking*, FCC 01-225
    (adopted Aug. 9, 2001).

[^62]: CTIA Petition, *supra* note 4.

[^63]: *See* MSUA Request (urging the Commission to reject or dismiss
    CTIA's petition for rulemaking prior to accepting it for filing);
    *Ex parte* Letter of ICO Services Ltd., IB Docket No. 99-81 (filed
    May 25, 2001) (urging the Commission to dismiss CTIA's petition for
    rulemaking and immediately license 2 GHz MSS systems); Joint *Ex
    parte* Letter of AT&T Wireless Services, Inc., Cingular Wireless,
    LLC, Sprint Corporation, and Verizon Wireless, IB Docket No. 99-81
    (filed June 13, 2001) (urging full consideration of the CTIA
    proposal). *Cf. Ex parte* Letter of Celsat America, Inc., IB Docket
    No. 99-81 (filed May 23, 2001) (addressing its need for spectrum to
    provide mobile-satellite service in the 2 GHz bands). In response to
    these *ex parte* letters, CTIA filed an *ex parte* letter urging the
    Commission to consider the possible reallocation of the entire 2 GHz
    MSS spectrum and New ICO's ATC proposal before it grants any 2 GHz
    MSS licenses. *See* *Ex parte* Letter of CTIA, IB Docket No. 99-81
    (filed July 12, 2001).

[^64]: *See* The Boeing Company, *Order and Authorization*, DA 01-1631
    (Int'l Bur., rel. July 17, 2001); Celsat America, Inc., *Order and
    Authorization*, DA 01-1632 (Int'l Bur., rel. July 17, 2001);
    Constellation Communications Holdings, Inc., *Order and
    Authorization*, DA 01-1633 (Int'l Bur./OET, rel. July 17, 2001);
    Globalstar, L.P., *Order and Authorization*, DA 01-1634 (Int'l
    Bur./OET, rel. July 17, 2001); ICO Services Limited, *Order*, DA
    01-1635 (Int'l Bur./OET, rel. July 17, 2001); Iridium LLC, *Order
    and Authorization*, DA 01-1636 (Int'l Bur., rel. July 17, 2001);
    Mobile Communications Holdings, Inc., *Order and Authorization*, DA
    01-1637 (Int'l Bur./OET, rel. July 17, 2001); TMI Communications and
    Company, *Order*, DA 01-1638 (Int'l Bur., rel. July 17, 2001).

[^65]: *2 GHz MSS R&O*, 15 FCC Rcd at 16139 ¶ 18.

[^66]: *See infra* para. 35.

[^67]: *See 2 GHz MSS R&O*, 15 FCC Rcd at 16152 ¶ 52. All of the
    authorized 2 GHz MSS systems meet this requirement, and all but one
    propose to operate throughout the entire 70 megahertz of MSS
    spectrum. The ICO system will operate in the United States in the
    1990-2015 MHz and 2170-2200 MHz frequency bands. *See* Letter of
    Intent of ICO Services Limited, File No. 188-SAT-LOI-97; IBFS File
    NO. SAT-LOI-19970926-00163 at 15 (Sept. 26, 1997).

[^68]: The incumbent licensees in the 2 GHz MSS uplink band from
    1990-2025 MHz are the broadcast auxiliary service, cable television
    relay service, and local television transmission service
    (collectively, \"BAS\"). Interference will occur from BAS
    transmitters into MSS uplinks, and from MSS handsets into BAS
    receivers.

[^69]: The Commission recognized that if an MSS system could share
    spectrum with BAS, it would not have to participate in relocating
    BAS incumbents provided it operated in uncleared spectrum. *See* 2
    *GHz MSS R&O*, 15 FCC Rcd at 16142 ¶ 25; *2 GHz MSS 2R&O*, 15 FCC
    Rcd 12336 ¶ 63.

[^70]: The band arrangement adopted in the *2 GHz MSS R&O* was intended
    to provide "sufficient flexibility to maximize the use of the 2 GHz
    MSS spectrum and minimize the burdens of incumbent relocation." *2
    GHz MSS R&O*, 15 FCC Rcd at 16144 ¶ 30. In particular, the
    Commission permitted each MSS system to operate outside its Selected
    Assignment on a secondary basis, in order to "allow MSS systems to
    begin providing service in any available frequencies during the
    incumbent transition process...." *Id*. at 16140 ¶ 21. This
    flexibility may minimize unnecessary disruption to incumbents and
    cost to MSS entrants. Particularly in the 2165-2200 MHz band, an MSS
    operator could begin operations in portions of the band that would
    require only minimal incumbent relocation.

[^71]: Interference will occur from MSS downlinks into FS receivers, and
    from FS transmitters into MSS handsets.

[^72]: *2 GHz MSS Allocation Order*, 12 FCC Rcd at 7406-07 ¶¶ 42-43.

[^73]: *See 2 GHz MSS R&O*, 15 FCC Rcd at 16177-80 ¶¶ 106-111
    (milestones for system implementation); 47 C.F.R. § 25.143(g)
    (prohibiting the trafficking in bare licenses).

[^74]: *See* 47 C.F.R. § 25.143(g) (prohibiting the trafficking in bare
    licenses).

[^75]: *See, e.g*., Promoting Efficient Use of Spectrum Through
    Elimination of Barriers to the Development of Secondary Markets, WT
    Docket No. 00-230, *Notice of Proposed Rulemaking,* 15 FCC Rcd 24203
    (2000); Principles for Promoting the Efficient Use of Spectrum by
    Encouraging the Development of Secondary Markets, *Policy
    Statement*, 15 FCC Rcd 24178 (2000).

[^76]: *2 GHz MSS R&O*, 15 FCC Rcd at 16185 ¶ 125.

[^77]: *Id*. (citing Amendment of Parts 2 and 25 to Implement the Global
    Mobile Personal Communications by Satellite (GMPCS) Memorandum of
    Understanding and Arrangements, IB Docket No. 99-67*, Notice of
    Proposed Rule Making*, 14 FCC Rcd 5871 (1999)).

[^78]: *2 GHz MSS R&O*, 15 FCC Rcd at 16185 ¶ 125.

[^79]: Final Analysis Petition for Reconsideration at 9‑11.

[^80]: Petition for Reconsideration of Wireless Communications
    Association International, Inc. (filed Nov. 3, 2000).

[^81]: *See supra* note 32.

[^82]: In the 50 largest markets, MDS uses two six-megahertz channels:
    channel no. 1 at 2150-2156 MHz and channel no. 2 at 2156-2162 MHz.
    In the rest of the country, the six-megahertz channel no. 2 is
    replaced by a four-megahertz channel no. 2-A at 2156-2160 MHz. In
    the *New Advanced Wireless Services NPRM* we sought comment on
    reallocating the 2160-2165 MHz band, which includes at 2160-2162 MHz
    the upper two megahertz of MDS channel 2. *New Advanced Wireless
    Services NPRM*, 16 FCC Rcd at 617-18 ¶¶ 50-52.

[^83]: *See id.* at 620-22 ¶¶ 58-65.

[^84]: *See generally* Sprint Comments at 31; WCA Comments at 42-43.

[^85]: *See 2500-2690 MHz Final Report* at 13-24.

[^86]: *See id.* at 92.

[^87]: *See New Advanced Wireless Services NPRM*, 16 FCC Rcd at 623-24 ¶
    69.

[^88]: *See, e.g.,* IPWireless Comments at 12.

[^89]: *See* Ad Hoc MDS Alliance Comments at 4-6; Cisco Systems Comments
    at 8; Hubbard Trust, Wireless World and Centimeterwave Television
    Comments at 11; National ITFS Association Comments at 22 n.36;
    Nucentrix Broadband Networks Comments at 20-21; Sprint Reply
    Comments at 4-6; Wireless Communications Association International
    Comments at 40-44; Wireless One of North Carolina Comments at 9-10;
    and WorldCom Comments at 23-24.

[^90]: *See generally, e.g.,* Motorola Comments; Qualcomm Comments; and
    Siemens Comments.

[^91]: *See* Redevelopment of Spectrum to Encourage Innovation in the
    Use of New Telecommunications Technologies, ET Docket No. 92-9,
    *Second Report and Order*, 8 FCC Rcd 6495 (1993) (*Emerging
    Technologies Proceeding*).

[^92]: *See* *New Advanced Wireless Services NPRM*, 16 FCC Rcd at 618-19
    ¶¶ 54-55 (proposing to use for incumbents in the 2110-2150 MHz and
    2160-2165 MHz bands the relocation procedures designated for fixed
    microwave service incumbents in the 2110-2115 MHz and 2165-2200 MHz
    bands). *See also* 47 C.F.R. §§ 101.69-101.83*; 2 GHz MSS 2R&O*, 15
    FCC Rcd 12315.

[^93]: *New Advanced Wireless Services NPRM*, 16 FCC Rcd at 621 ¶ 63.

[^94]: *See id.* at 608-09 ¶ 29.

[^95]: The illustrative pairing options are: (1) 1710-1755 MHz paired
    with spectrum from the 1755-1850 MHz band; (2) 1710-1755 MHz paired
    with 2110-2150/2160-2165 MHz; (3) 1710-1755 MHz paired with spectrum
    from the 2500-2690 MHz band; and (4) 2110-2150/2160-2165 MHz paired
    with spectrum from the 2500-2690 MHz band. *See id.* at 622-24 ¶¶
    66-69[.]{.smallcaps}

[^96]: *See NTIA Final Report* at 4-16 through 4-20.

[^97]: Under this approach, we would most likely reallocate the
    corresponding uplink spectrum for 2 GHz MSS at 2020-2025 MHz (for a
    total reallocation of 10 MHz from MSS), which could be used for
    relocation or other purposes. *See also supra* para. 27.

[^98]: As with the 120 MHz option, we would most likely reallocate the
    corresponding uplink spectrum for 2 GHz MSS at 2010-2025 (for a
    total reallocation of 30 MHz from MSS), which could be used for
    relocation or other purposes. *See supra* note 97.

[^99]: *See* National Defense Authorization Act for 2000, Pub. L. No.
    106-65, 113 Stat. 512 (1999).

[^100]: *See, e.g*., Comments of Siemens Corporation at 23.

[^101]: *See* 5 U.S.C. § 603.

[^102]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206(a).

[^103]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    GC Docket No. 97-113, *Memorandum Opinion and Order on
    Reconsideration*, 13 FCC Rcd 21517 (1998); *Report and Order*, 13
    FCC Rcd 11322 (1998).

[^104]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601 *et seq.*,
    has been amended by the Contract with America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^105]: 5 U.S.C. § 603(a).

[^106]: *See id*.

[^107]: 5 U.S.C. § 603(b)(3).

[^108]: 5 U.S.C. § 601(6).

[^109]: 5 U.S.C. § 601(3).

[^110]: 15 U.S.C. § 632.

[^111]: *See* U.S. Department of Commerce, Bureau of the Census, 1992
    Economic Census, Table 6 (special tabulation of data under contract
    to Office of Advocacy of the U.S. Small Business Administration).

[^112]: 5 U.S.C. § 601(4).

[^113]: U.S. Department of Commerce, Bureau of the Census, 1992 Economic
    Census, Table 6 (special tabulation of data under contract to Office
    of Advocacy of the U.S. Small Business Administration).

[^114]: 5 U.S.C. § 601(5).

[^115]: U.S. Department of Commerce, Bureau of the Census, 1992 Census
    of Governments.

[^116]: *Id*.

[^117]: North American Industry Classification System (NAICS) code
    513322.

[^118]: NAICS code 513322

[^119]: 47 C.F.R. § 1.2110.

[^120]: Amendment of Parts 21 and 74 of the Commission's Rules with
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service; Implementation of
    Section 309(j) of the Communications Act-Competitive Bidding, MM
    Docket No. 94-111, PP Docket No. 93-253, *Report and Order*, 10 FCC
    Rcd 9589 (1995), 60 FR 36524 (July 17, 1995).

[^121]: *Id*. A Basic Trading Area (BTA) is the geographic area by which
    the Multipoint Distribution Service is licensed. *See* Rand McNally,
    1992 Commercial Atlas and Marketing Guide 36-39 (123^rd^ ed. 1992).

[^122]: 13 C.F.R. § 121.201.

[^123]: NAICS code 513322.

[^124]: *See* 5 U.S.C. § 603(c).