**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Redesignation of the 17.7-19.7 GHz Frequency )

Band, Blanket Licensing of Satellite ) IB Docket No. 98-172

Earth Stations in the 17.7-20.2 GHz and ) RM-9005

27.5-30.0 GHz Frequency Bands, ) RM-9118

and the Allocation of Additional Spectrum )

in the 17.3-17.8 GHz and 24.75-25.25 GHz )

Frequency Bands for Broadcast )

Satellite-Service Use )

**FIRST ORDER ON RECONSIDERATION**

Adopted: October 31, 2001 Released: November 1, 2001

By the Commission:

**TABLE OF CONTENTS**

Paragraph

I. INTRODUCTION 1

II\. BACKGROUND 3

III\. DISCUSSION 21

A. 18 GHz Band Plan 21

1\. Status of the Fixed Service in 19.26-19.3 GHz 21

2\. Channelization of Fixed Service bands 26

3\. Secondary Satellite Designations 27

4\. Secondary Designation for BSS at 17.7-17.8 GHz 30

5\. Low Power Terrestrial Operations in Satellite Bands 32

B. Legacy List 42

C. Licensing Issues 48

1\. Technical Corrections 48

2\. Satellite pfds 51

D. Relocation Issues 54

1\. Comparable Facilities 54

2\. Definition of Throughput 56

3\. Alternative Media 60

4\. Cut-off Dates 62

5\. Negotiation Periods 65

6\. Right to Return to Original Spectrum 68

7\. Assignments and Transfers 72

8\. Measure and Mitigation of Relocation Costs 75

IV\. CONCLUSION 81

V. ORDERING CLAUSES 86

APPENDIX A: FINAL RULES

APPENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS

APPENDIX C: LIST OF COMMENTS AND REPLY COMMENTS

# I. INTRODUCTION {#i.-introduction .unnumbered}

1 In this First Order on Reconsideration we grant in part and deny in
part the petitions for reconsideration of the *18 GHz Order*[^1] filed
by Hughes Electronics Corporation (Hughes), the Fixed Wireless
Communications Coalition (FWCC) and Winstar Communications, Inc.
(Winstar).[^2] We defer for action in a future Commission order certain
issues raised by Hughes relating to the band plan adopted in the *18 GHz
Order* and blanket licensing. We also address a number of issues raised
by Teledesic Corporation (Teledesic) in its letter to the Commission and
its request for judicial review of the rules adopted by the Commission
in the *18 GHz Order*.[^3]

2 Specifically, we change the power flux-density (pfd) value for the
18.3-18.8 GHz frequency band to the values in section 25.208(c) to be
consistent with the pfd limit in the Radio Regulations of the
International Telecommunications Union and we delete section 25.208(d),
which previously contained pfd limits for the 18.3-18.8 GHz frequency
band. We also determine that the pfd level in section 25.138(a)(6) of
‑118 dBW/m^2^/MHz should apply to all Geostationary Satellite
Orbit/Fixed Satellite Service (GSO/FSS) downlink bands in which the
Commission permits blanket licensing. We amend section 101.97 to clarify
that an incumbent Fixed Service (FS) licensee retains primary status
notwithstanding a change in ownership or control. Further, we clarify
that an incumbent licensee is entitled to a 12-month trial period after
relocation to test the new facilities. We also conclude that existing
terrestrial services operating in the 19.26-19.3 GHz band will continue
to be allowed to recover relocation reimbursement, but this
reimbursement will now be subject to the 10-year sunset period
applicable to other FS operations in the 18 GHz band. In response to
Teledesic, we take the following additional steps in order to better
reconcile the competing interests of the new satellite entrants and the
low-power terrestrial operators in the 18.82-18.87 GHz and 19.16-19.21
GHz bands: 1) we cut-off any further low-power applications under
section 101.147(r)(10) as of April 1, 2002 (the *18 GHz Order* already
cut off applications for outdoor use); and 2) we permit low-power
services authorized pursuant to section 101.147(r)(10) to continue to
operate on a co-primary basis for a period of ten years, subject to
reimbursed relocation at the request of the satellite provider. Finally,
we delete section 25.145(i) of our rules and reverse the Legacy List
policy that we adopted in the *18 GHz Order*; thus, we will no longer
require the use of the Legacy List coordination process by an FSS space
station licensee to alleviate interference to a terrestrial fixed
station.

# II. BACKGROUND {#ii.-background .unnumbered}

3 On September 18, 1998, the Commission released a Notice of Proposed
Rulemaking (*18 GHz NPRM*)[^4] in this proceeding that sought public
comment on several proposed plans to redesignate the 17.7-19.7 GHz band
(the 18 GHz band) among the various allocated services in order to make
more efficient and better use of this portion of the radio spectrum. In
the *18 GHz NPRM*, we stated that the existing terrestrial services
currently operating in the 18 GHz band serve a variety of important
communications needs, and that the satellite services licensed to
operate in this band have the potential to provide consumers with
several new services.[^5]

4 Prior to the *18 GHz Order*, the 18 GHz band was allocated on a
shared, co-primary basis for use by the terrestrial fixed service (FS),
the Fixed-Satellite Service (FSS), and the Mobile-Satellite Service.[^6]
Terrestrial FS operators using the 18 GHz band include Private Cable
Operators/Cable Television Relay Service (PCO/CARS), auxiliary
broadcasting, local television transmission, fixed point-to-point and
low power point-to-multipoint service. Mobile-Satellite Service
operations were limited to Feeder Links (MSS/FL). These services meet a
variety of important communications needs, including remote monitoring
of gas and petroleum pipelines, public safety links, video distribution
links and point-to-point data links.[^7]

5 Satellite services licensed to operate in this band include the
GSO/FSS, the Non-geostationary Satellite Orbit FSS (NGSO/FSS) and the
MSS/FL. The Commission has granted thirteen GSO/FSS licenses and one
NGSO/FSS license in the 18 GHz band.[^8] The satellite systems licensed
in this band have the potential to provide global Internet access,
two-way digital communications, videoconferencing, interactive
multimedia, telemedicine, and residential voice and data communications
services.[^9] The satellite licensees intend to make these services
available to millions of business and residential consumers in the
United States using ubiquitously deployed small antenna satellite earth
stations.

6 In the *18 GHz NPRM,* the Commission stated that it was concerned
about the continued feasibility of sharing between the terrestrial and
satellite licensees in the 18 GHz band because non-government FSS
licensees plan to deploy potentially millions of small antenna earth
stations in this band.[^10] In response to the *18 GHz NPRM*, we
received many comments and reply comments from entities representing a
broad cross-section of the telecommunications industry.[^11] Based on
the extensive record in the proceeding, on June 8, 2000, the Commission
adopted the *18 GHz Order* that made several important decisions with
the goal of permitting more efficient use of the radio spectrum for
existing and future operators and facilitating deployment of new
services in the band.

7 In the *18 GHz Order*, the Commission concluded that the public
interest required separating terrestrial fixed service operations from
ubiquitously deployed FSS earth stations through dedicated sub-bands and
made several decisions to effect this goal.[^12] As discussed in further
detail below, in the *18 GHz Order*, the Commission, among other things:
(a) adopted an 18 GHz band plan designating how the FS, GSO/FSS,
NGSO/FSS and MSS/FL licensees will use the band; (b) established a
Legacy List to identify FS receivers operating in the 18.3-18.8 GHz band
pointing within two degrees of the geostationary satellite orbit that
must be protected from harmful interference from the FSS; (c) adopted
rules governing the relocation of terrestrial facilities operating in
satellite-primary bands; (d) authorized the blanket licensing of
satellite earth stations in the bands where GSO/FSS and NGSO/FSS are the
sole primary designations; and (e) allocated the 17.3-17.7 GHz band to
the Broadcasting-Satellite Service (BSS) and the 24.75-25.25 GHz band to
the FSS for BSS feeder links.

\(a\) [18 GHz Band Plan]{.underline}. At the time the *18 GHz NPRM* was
released, the 18 GHz band plan was as follows:

DOWNLINK Ka-BAND (18 GHz)[^13]

+--------------------------+---------------+------------+------------+
| GSO/FSS\                 | NGSO/FSS\     | MSS/FL\    | GS         |
| and\                     | and\          | and\       | O/FSS[^14] |
| FS                       | FS            | FS         |            |
|                          |               |            | ngso/fss   |
| ngso/fss                 | gso/fss       | gso/fss    |            |
|                          |               |            | 500 MHz    |
| 1100 MHz                 | 500 MHz       | 400 MHz    |            |
+--------------------------+---------------+------------+------------+

17.7 18.8 19.3 19.7 20.2 GHz

In the *18 GHz Order*, the Commission found that co-frequency sharing
between the terrestrial fixed service and ubiquitously deployed FSS
earth stations in the 18 GHz band is generally not feasible.[^15] The
Commission, therefore, concluded that separation of these operations
into dedicated sub-bands would resolve many anticipated coordination
problems.[^16] To achieve this goal in the *18 GHz Order*, the
Commission adopted the following band plan and amended the Table of
Frequency Allocations:

+-----------+---------+---------+-------------+---------+------------+
| FS        | GSO     | GSO/FSS | NGSO/FSS    | MSS/FL  | GSO/FSS    |
|           | /FSS&FS |         |             |         |            |
| 600 MHz   |         | 220 MHz | 500 MHz     | &       | 500 MHz    |
|           | 280 MHz |         |             |         |            |
|           |         |         |             | FS      |            |
|           |         |         |             |         |            |
|           |         |         |             | 400 MHz |            |
+-----------+---------+---------+-------------+---------+------------+

17.7 18.3 18.58 18.8 19.3 19.7 20.2 GHz

Under this new band plan, the Commission designated a total of 1280 MHz
of spectrum for the FS as follows: 600 MHz of spectrum in the 17.7-18.3
GHz band for primary use by the FS, 280 MHz of spectrum in the
18.3-18.58 GHz band, designated for co-primary use by the FS and the
GSO/FSS, 400 MHz of spectrum in the 19.3-19.7 GHz band, designated for
co-primary use by the FS and the MSS/FL.[^17] The Commission has
designated a total of 1000 MHz of downlink spectrum for the GSO/FSS as
follows: 220 MHz in the 18.58-18.8 GHz band for exclusive primary use by
the GSO/FSS, 280 MHz in the 18.3-18.58 GHz band, designated for
co-primary use with the FS, in addition to existing designation of 500
MHz in the 19.7-20.2 GHz band for primary use by the GSO/FSS.[^18] The
Commission designated 500 MHz of spectrum to the NGSO/FSS in the
18.8-19.3 GHz band for primary use.[^19] Finally, the Commission
retained the existing designation of 400 MHz of spectrum in the
19.3-19.7 GHz band to the MSS/FL, which is shared on a co-primary basis
with the FS.[^20]

\(b\) [The Legacy List]{.underline}. The *18 GHz Order* addressed
concerns raised regarding unacceptable levels of interference that may
be experienced by terrestrial fixed station receivers that are pointed
directly at FSS satellite stations in the geostationary satellite
orbit.[^21] The Commission adopted a coordination process to accommodate
the small number of terrestrial FS stations with receivers pointing
within two degrees of the geostationary satellite orbit.[^22] The
Commission referred to the list of these FS licensees as the Legacy
List.[^23] The Legacy List coordination process requires the GSO/FSS
space station licensee, whose satellite causes interference to the
terrestrial fixed service station, to alleviate the interference.[^24]

\(c\) [Relocation]{.underline}. In the *18 GHz Order*, the Commission
granted rights to the FS licensees currently operating in bands now
designated on a primary basis to the satellite services to continue to
operate existing facilities, subject to the right of a satellite
operator to relocate the FS facility to a different frequency within the
radio spectrum.[^25] The Commission refers to this process as
relocation, although it does not typically involve physical relocation
of the facility. Under the rules adopted in the *18 GHz Order*, with the
exception of the 19.26-19.3 GHz band where the right to compensation for
expenses related to relocation is permanent, a relocated FS licensee is
entitled to such compensation from the new FSS entrant for a period of
ten years from June 8, 2000, which is the adoption date of the *18 GHz
Order*.[^26]

\(d\) [Blanket Licensing]{.underline}. Blanket licensing refers to a
procedure that allows Ka-band FSS satellite earth stations to operate
under a single system-wide license for all stations rather than
individually licensing and coordinating each satellite earth station.
The *18 GHz Order* authorized a blanket licensing regime for satellite
earth stations for those segments of the Ka-band (both downlink at
17.7-20.2 GHz and uplink at 27.5-30.0 GHz) that are not subject to
sharing with other services.[^27] Specifically, the Commission stated
that we would accept applications for blanket licensing in the following
bands: 18.58-18.8 GHz, 18.8-19.3 GHz, 19.7-20.2 GHz, 28.35-28.6 GHz,
28.6-29.1 GHz and 29.5-30.0 GHz.[^28] The blanket licensing rules
adopted in the *18 GHz Order* contain specific technical parameters for
the bands designated for GSO systems within which satellite earth
stations may be operated under a blanket license in order to minimize
potential interference on both an intra- and inter-service basis.[^29]

\(e\) [Allocation to the BSS and the GSO/FSS]{.underline}. In the *18
GHz Order*, the Commission allocated 400 MHz of spectrum at 17.3-17.7
GHz for primary use by the BSS, effective April 1, 2007.[^30] In
addition, the Commission allocated the 24.75-25.05 GHz band on a primary
basis to the FSS (Earth to space), limited to BSS feeder links.[^31] The
Commission also allocated the 25.05-25.25 GHz band for co-primary use
between the 24 GHz Fixed Service, formerly known as Digital Electronic
Messaging Service (DEMS), and the FSS (Earth to space), limited to BSS
feeder links.[^32]

8 We received petitions for reconsideration and/or clarification of the
*18 GHz Order* from Hughes, FWCC and Winstar, and a letter from
Teledesic Corporation (Teledesic).[^33] Teledesic is also seeking
judicial review of the rules adopted by the Commission in the *18 GHz
Order*.[^34]

9 Hughes's petition raises a number of arguments regarding the 18 GHz
band plan, the Legacy List policy, the deletion of secondary satellite
designations and blanket licensing. We address certain of these issues
in this Order. With respect to the Legacy List policy, Hughes argues
that the policy departs from FCC rules because the pfd limits set forth
in section 25.208 of the Commission's Rules were adopted as explicit
sharing criteria in order to avoid interference between FS and
GSO/FSS.[^35] Hughes states that the pfd limit in the 18 GHz band has
been in place since at least 1983 and was designed to pre-coordinate
spacecraft transmissions and terrestrial FS receivers, regardless of the
elevation angle and azimuth of the terrestrial receiver.[^36]
Consequently, Hughes argues that although there is no explicit
restriction on 18 GHz terrestrial operators pointing at the
geostationary satellite orbit, the sharing regime imposed by section
25.208 requires terrestrial operators to bear the burden of interference
from satellite downlinks that comply with section 25.208(c).

10 Hughes also contends that the Legacy List policy was adopted without
adequate notice and comment as required by the Administrative Procedures
Act (APA).[^37] Hughes contends the APA was violated because the *18 GHz
NPRM* did not discuss the terms or substance of any proposal that
deviated from the Commission's long-standing interpretation of the
existing pfd limits in section 25.208.[^38] Hughes also states that the
Commission failed to address Hughes's argument that any such potential
interference experienced by terrestrial operators was solely due to the
failure of terrestrial fixed operators to design their systems to take
into account the satellite-terrestrial sharing rules.[^39]

11 Hughes also argues that the *18 GHz Order* arbitrarily deleted the
secondary designations for NGSO/FSS in the 18.3-18.8 GHz band and the
secondary designation for GSO/FSS in the 18.8-19.3 GHz band, contrary to
the rationale in the *28 GHz Order*.[^40] Hughes argues that the
Commission did not adequately explain why it changed the inter-satellite
rules in the downlink band but not the uplink band.[^41] Hughes states
that it does not necessarily disagree that deleting the secondary
designations established in the *28 GHz Order* may be ultimately
correct, but that the Commission should deal with the issue
comprehensively by issuing a Further Notice of Proposed Rule
Making.[^42]

12 Hughes also argues that the Commission should reconsider or correct
several technical aspects of the Ka-band licensing rules regarding pfd
limits, including sections: 25.208(c), 25.138(a)(6) and 25.138(b).
Hughes states that the Commission did not adequately explain why it
changed the longstanding pfd limit in section 25.208(c) from -115
dBW/m^2^/MHz to -118 dBW/m^2^/MHz. Hughes contends that the Commission's
new rules irrationally apply a different pfd standard to the GSO/FSS
service in the 18.3-18.8 GHz band from that applied to the NGSO/FSS at
18.8-19.3 GHz and to NGSO/MSS Feeder Links at 19.3-19.7 GHz. Hughes also
argues that the new 25.208(d) limit is inconsistent with the
coordination threshold approach in sections 25.138(a) and (b).[^43]

13 Hughes contends the pfd limit of -118 dBW/m^2^/MHz in section
25.138(a)(6) should apply to all GSO/FSS downlink bands in which the
Commission permits blanket licensing. According to Hughes, the
Commission incorrectly omits the 18.58-18.8 GHz downlink band from
section 25.138(a)(6). Hughes states that the current section
25.138(a)(6) allows for routine processing of a blanket license
application that contemplates a higher pfd in the 18.58-18.8 GHz band
than -118 dBW/m^2^/MHz, for example, and this would cause disruption to
the industry consensus reached on this issue.[^44]

14 Finally, Hughes argues that the Commission incorrectly omitted the
word "blanket" before "earth station license" in section 25.138(b), and
that the Commission's action is contrary to the proposal of the Blanket
Licensing Working Group.[^45] Hughes contends that this omission was
done with no explanation, and could have unintended negative
consequences.[^46] According to Hughes, the rule could be interpreted to
require individually licensed earth stations, even after they are
coordinated, to power down to accommodate new operations at any of the
six orbital locations within six degrees.[^47] Hughes states that the
proposal of the Blanket Licensing Working Group (BLWG) was intended to
apply only to blanket-licensed earth terminals.[^48]

15 There are several issues that Hughes raises in its petition upon
which we defer action to a further Commission order. For example, with
regard to the 18 GHz band plan, asks the Commission to reconsider its
decision to designate only 220 MHz of additional Ka-band downlink
spectrum for ubiquitously-deployed earth stations. According to Hughes,
the Commission's decision is based on two flawed arguments: (1) that the
Commission designated only 750 MHz of unshared primary uplink spectrum
to GSO/FSS in the *28 GHz First Report and Order*,[^49] and that
therefore a similar designation of downlink spectrum is appropriate; and
(2) that the Commission's overall band plan for 18 GHz is a balanced
accommodation of the various uses of the band.[^50] Hughes also argues
that the *18 GHz Order* disproportionately burdened the GSO/FSS industry
by failing to meet adequately its needs for spectrum while providing
more fully for the needs of other industry operators, such as PCO/CARS
and the NGSO/FSS.[^51] Hughes states that the Commission did not address
its proposal that the Commission accommodate PCO/CARS operators in the
12.7-13.2 GHz and/or 21.2-23.6 GHz bands. Hughes also states that the
Commission's decision in the *18 GHz Order* ignores the decision in the
28 GHz *Order* that GSO/FSS systems warranted the designation of 1000
MHz for ubiquitous earth stations.[^52] Finally, Hughes contends that
the Commission should permit either blanket licensing of GSO/FSS earth
stations in the satellite-only band of 29.25-29.5 GHz or streamlined
registration of receive-only earth stations in the 18.3-18.58 GHz
band.[^53] Hughes argues that the Commission gave no rationale for its
refusal to establish blanket licensing in the 29.25-29.5 GHz band and
its decision to defer action on the 18.3-18.58 GHz band to a future
proceeding. Hughes contends that the record in the 28 GHz proceeding is
clear that the parties in that proceeding intended that the shared use
of the 29.25-29.5 GHz band between the GSO/FSS and NGSO/MSS feeder links
would not prevent deployment of ubiquitous GSO/FSS earth stations.

16 FWCC filed a petition for reconsideration asking that the Commission
restore sole primary status to the FS in 19.26-19.3 GHz.[^54] FWCC also
expressed concern that the Commission has not yet taken action to
rechannelize a portion of the 17.7-18.14 and 19.26-19.7 GHz bands for
low capacity systems.[^55] One of the results of the *18 GHz Order* is
that the point-to-point fixed microwave licensees in this band
(17.7-19.7 GHz) no longer have access to channels that are 5 MHz wide
and only shared access to channels that are 6 MHz wide. The remaining
channels are 10 MHz wide, or wider. This channelization can create
inefficient use of the spectrum or increased costs for licensees whose
traffic needs do not require such large bandwidths. FWCC argues that the
Commission's decision to designate 19.26-19.3 GHz on a primary basis to
the NGSO/FSS was based on an historical study by Comsearch, which
indicated that the remaining paired bands designated on a primary basis
to the FS (17.74-18.14 and 19.3-19.7 GHz) would be adequate to
accommodate FS needs.[^56] FWCC argues that there has been significant
growth and activity in this band by FS operators and the bands currently
designated for the FS are insufficient to accommodate them; therefore,
the Commission should restore the 19.26-19.3 GHz band to the FS.[^57]

17 Winstar filed a petition for reconsideration asking for clarification
of two issues and reconsideration of four others. Winstar requests that
the Commission clarify that incumbent licensees are not required to move
if no comparable facilities are offered and that assignments and
transfers of control by incumbent licensees will not result in loss of
primary status.[^58] Winstar requests that the Commission reconsider the
decision that upon relocation an FSS licensee need only provide the FS
licensee with adequate throughput to satisfy the FS licensee's actual
use at the time of relocation, rather than the total capacity of the FS
system.[^59] Winstar argues that the Commission should also reconsider
the decision to permit an FSS licensee to make an FS provider whole
through the provision of alternative media.[^60] Winstar argues that the
Commission should reconsider its decision to not permit incumbent
licensees to return to previous facilities if relocation is
unsuccessful.[^61] Finally, Winstar argues that the Commission should
reconsider its decision to not permit a voluntary negotiation period in
18 GHz relocation proceedings.[^62]

18 Teledesic, in response to the *18 GHz Order*, filed a letter with the
Commission claiming that the Commission made errors in stating the
cut-off dates for grandfathering pending terrestrial fixed station
applications in the 18.58-18.8 and 18.8-19.3 GHz bands.[^63] Teledesic
also filed a petition in the U.S. Court of Appeals for the District of
Columbia Circuit, seeking court review of the *18 GHz Order*.
Teledesic's court brief raises four principal arguments: (1) the
Commission used an incorrect methodology for compensating incumbent 18
GHz users that are required to relocate to different spectrum; (2) the
Commission failed to consider adequately measures to mitigate the cost
of relocation; (3) the Commission should not have permanently
grand-fathered low-power terrestrial stations in the 18.8-19.3 GHz band
allocated on a primary basis to the NGSO/FSS; and (4) the Commission
should not have granted a permanent right to compensation for relocated
terrestrial operators in the 19.26-19.3 GHz band.[^64]

19 The Commission received ten comments, seven reply comments, and one
late-filed reply comment in response to the petitions and the *ex parte*
letter discussed above.[^65]

20 With a few exceptions, in this Order we address all of the issues
noted above, including those raised by Teledesic. In finding that it is
appropriate to address the issues raised by Teledesic, we note that it
is well established that the Commission has authority in a rulemaking
proceeding to address an issue *sua sponte*, regardless of whether any
pending petition raises the issue.[^66] We will address the remaining
issues in a future Order.

# III. DISCUSSION {#iii.-discussion .unnumbered}

**A. [18 GHz Band Plan]{.underline}**

21 ***Status of the Fixed Service in 19.26-19.3 GHz.*** We reject the
argument advanced by FWCC to restore primary status for the terrestrial
fixed services in the 19.26-19.3 GHz band. FWCC argues that the
Commission's decision was erroneously based in part on a historical
study suggesting that other FS-primary bands (*e.g.*, 17.74-18.14 GHz
and 19.3-19.7 GHz) could accommodate the expected significant growth in
the Fixed Service and relocation.[^67] We find that, although the study
was historical, in the course of the proceeding the Commission had the
opportunity to consider the present level of growth in the FS, as well
as other issues relating to relocation.[^68] We are also aware of FWCC's
projections for growth in the FS. We agree, however, with Astrolink that
FWCC's proposal to redesignate this band would be detrimental to
NGSO/FSS use of the band.[^69] We find that this allocation was made
based on the Commission's assessment of the relative needs of the
competing services. Furthermore, we agree with Teledesic that there is
no other suitable spectrum available for NGSO/FSS services in the
Ka-band.[^70]

22 We recognize, as we did in the *18 GHz Order*, the unique
international status of the 18.8-19.3 band and that NGSO/FSS systems are
likely to need the entire 500 megahertz of spectrum. We find that in the
*18 GHz Order*, the Commission designated the 18.8-19.3 GHz band to the
NGSO/FSS service on a primary basis, in part to preserve decisions made
at the 1995 and 1997 World Radiocommunication Conferences (WRCs)[^71] to
allocate internationally the 18.8-19.3 GHz band to the NGSO/FSS
service.[^72] We note that in the original proceeding, terrestrial fixed
operators had requested that the Commission maintain the 19.26-19.3 GHz
band for terrestrial fixed service use in order to maintain the existing
paired channel in the 17.7-17.74 GHz band.[^73] Teledesic placed on the
record a statement showing that its proposed NGSO/FSS system would
suffer unacceptable interference from fixed stations operating anywhere
in the 18.8-19.3 GHz band.[^74] We acknowledge that there is growth in
the demand for spectrum among FS operators. We conclude, however, that
current operators can be accommodated through the policies adopted in
the *18 GHz Order*.

23 We reconsider our decision to grant permanent co-primary status to
existing terrestrial fixed stations in the 19.26-19.3 band, and we
hereby establish a sunset provision for these existing terrestrial
service operations. We find compelling the suggestion made by Teledesic
in its brief on appeal that we treat FS licensees in the 19.26-19.3 GHz
band the same as other FS licensees operating in the 18 GHz band.[^75]
We find that such treatment would better address the needs of the
parties and ensure more efficient and equitable use of the radio
spectrum in those bands that are shared on a co-primary basis by the FSS
and FS. Accordingly, we adopt a ten-year sunset provision for existing
terrestrial services operating in this segment, and apply the same rules
relating to relocation of existing users, *including* the right to
compensation for relocation of both parts of a channel pair.

24 We find that this treatment of FS licensees in the 19.26-19.3 GHz
band is supported by our findings in the *18 GHz Order* concerning the
unique circumstances surrounding FS operations in the 19.26-19.3 and
17.7-17.74 GHz bands.[^76] In the *18 GHz Order* we concluded that
existing terrestrial fixed services operating in the 19.26-19.3 GHz
band, which was redesignated to reflect primary status for FSS
operations, would be grandfathered on a permanent basis because, "the
channels in this band are paired with channels that are being retained
for primary terrestrial fixed use at 17.7-17.74 GHz, thus magnifying the
impact of this redesignation on the fixed service."[^77] The *18 GHz
Order* explained that:

> \[i\]f we were to impose a ten year sunset period, users of these
> pairings would likely be required because of equipment availability to
> relocate not only their transmissions in the 19.26-19.30 GHz band but
> also their paired transmissions in the 17.7-17.74 GHz even though the
> 17.7-17.74 GHz transmissions are not in a band that would be shared
> with FSS operations. Because of the significant impact on terrestrial
> fixed licensees, and since there are few existing fixed stations in
> this band, we do not believe it is appropriate to sunset the
> co-primary status, and associated relocation reimbursement rights, of
> existing terrestrial stations in this band.[^78]

25 Upon reconsideration, however, we conclude that the best way to
resolve the issues surrounding shared use and relocation of FS
operations in the 19.26-19.3 GHz band is to treat such operations in the
same manner as other operations in the 18 GHz band. We find that such
equal treatment necessarily includes the right to compensation for
relocation of those parts of a channel pair that might be located in the
17.7-17.74 GHz band, even though we did not redesignate the 17.7-17.74
band for FSS use. We find that there is nothing inherent in the
19.26-19.3 GHz band that would dictate that there be a transition period
longer than ten years, but there is an inherent need to have both sides
of paired frequencies be addressed and relocated. We also find that
requiring FSS operators to compensate fully FS operators in the
19.26-19.3 GHz band for relocation of channels in both this band and the
paired 17.7-17.74 GHz band, and subjecting these rights to the standard
ten-year sunset period are more narrowly tailored and directly related
to the unique circumstances in these bands than our decision in the *18
GHz Order* to extend permanent relocation reimbursement rights for FS
operations in the 19.26-19.3 GHz band. Accordingly, we find that the
public interest would be better served by giving FSS operators the
flexibility of undertaking the expense of relocating existing
terrestrial fixed service providers in the subject band under the same
terms and conditions discussed in the Relocation section of the *18 GHz
Order* applicable to all other FS licensees.[^79] We conclude that
existing terrestrial services operating in the 19.26-19.3 GHz band will
not be allowed to recover relocation reimbursement on a permanent basis
and will be subject to the ten-year sunset period applicable to other FS
operations in the 18 GHz band. We conclude, however, that the ten-year
sunset period for existing terrestrial services operating in the
19.26-19.3 GHz band will begin from the adoption date of this Order.

26 ***Channelization of Fixed Service bands.*** We agree with FWCC and
Teledesic that there is a need to rechannelize the 17.7-18.14 GHz and
19.3-19.7 GHz bands, and we plan to address channelization of these
bands in a future rulemaking. This is because we expect that as noted by
FWCC, as a result of the *18 GHz Order*, many FS licensees will migrate
from the 18.58-18.82 GHz and 18.92-19.16 GHz bands that are designated
on a primary basis only to satellite services.[^80] We agree with FWCC
and Teledesic that we will need to find other suitable channel pairings
for the continued operation of these fixed service operators. We find
that rechannelization of Fixed Service bands has the potential to
facilitate the relocation of these FS operators. Therefore, the
Commission intends to open a new proceeding to rechannelize the
17.7-18.14 GHz and 19.3-19.7 GHz bands, and we will transfer FWCC's
proposed band plan to that docket for further consideration.[^81]

27 ***Secondary Satellite Designations.*** We reaffirm our finding that
secondary satellite designations should not be made in bands designated
on a primary basis solely to the Fixed Service.[^82] We also affirm our
finding that the Fixed Service should not have a secondary designation
in bands allocated on a primary basis solely to the NGSO or
GSO/FSS.[^83] In the *18 GHz NPRM*, the Commission proposed allowing
secondary use of the entire 18 GHz band by FS, GSO/FSS, and NGSO/FSS
operators in bands where the particular service was neither primary nor
co-primary, to provide flexibility throughout the band.[^84] After
reviewing the comments filed on the issue, the Commission decided in the
*18 GHz Order* that secondary use of the band is not viable because it
would unreasonably inhibit ubiquitous deployment of the new satellite
services and limit the use of spectrum by primary operators of the
band.[^85]

28 Hughes and Astrolink argue that the Commission acted arbitrarily in
removing the secondary designations for NGSO/FSS in the 18.3-18.8 GHz
GSO/FSS co-primary and primary bands, and the secondary designations for
GSO/FSS in the 18.8-19.3 GHz NGSO/FSS primary band.[^86] Hughes and
Astrolink further claim that the Commission failed to provide an
explanation for its decision in the *18 GHz Order*.[^87] According to
Hughes, the Commission's decision is inconsistent with treatment of
secondary satellite designations in the corresponding uplink band
segments in the 28 GHz band.[^88] Hughes indicates that it "does not
necessarily disagree with the Commission that deleting the secondary
satellite designations that were established in the 28 GHz Order in the
satellite-primary bands ultimately may be sensible." Hughes, however,
argues that "adopting this policy in a haphazard and piecemeal way
without an adequate record makes no sense."[^89] Hughes, Astrolink, and
GE Americom argue that the Commission should issue a Further Notice of
Proposed Rulemaking and comprehensively address the issue for both the
Ka-band uplink and downlink bands in a new proceeding, where the results
of WRC-2000 could be considered.[^90]

29 We find the record in this proceeding to be insufficient to determine
whether and how GSO/FSS systems can operate on a secondary basis in
NGSO/FSS bands, and whether and how NGSO/FSS systems can operate on a
secondary basis in GSO/FSS primary bands. We find that by removing
secondary operations in these bands, the Commission has lessened the
potential for harmful interference to the primary service in each band
and avoided disruptions that could occur to users of secondary
services.[^91] Moreover, we find that detailed service rules would have
to be developed and adopted before secondary operations could be
authorized in primary satellite bands. We find that these rules would be
necessary to ensure that the primary service is adequately protected
from harmful interference, and that operators of secondary service have
a reasonable expectation of being able to provide service. We note that
while we lack sufficient information to address this issue at this time,
we welcome the provision of additional information or petitions that may
be used to initiate a new rulemaking proceeding to address this issue.

30 ***Secondary Designation for BSS at 17.7-17.8 GHz***. We disagree
with Pegasus's argument that, pending the Commission's future
re-examination of the status of the 17.7-17.8 GHz band, the Commission
should adopt a secondary allocation to BSS in this band.[^92] In the *18
GHz Order*, we allocated 400 MHz of spectrum at 17.3-17.7 GHz for
primary BSS use, 300 MHz of spectrum at 24.75-25.05 GHz for primary FSS
Earth to space use that is limited to feeder links for the BSS and 200
MHz of spectrum at 25.05-25.25 GHz for co-primary use between the Fixed
Service and the GSO/FSS service that is limited to BSS feeder
links.[^93] In the *18 GHz Order*, we recognized the importance of
preserving terrestrial fixed service operations in the 17.7-17.8 GHz
band.[^94] We found in the *18 GHz Order* that the ubiquitous nature of
BSS services precludes successful coordination with similarly widespread
terrestrial services.[^95] Although we decided not to designate the
17.7-17.8 GHz band for BSS use in the *18 GHz Order,* we noted that we
may re-examine the availability of this spectrum in the future,
depending on the outcome of the ongoing terrestrial fixed service
relocation efforts.[^96]

31 Pegasus argues that a secondary designation for the BSS in the
17.7-17.8 GHz is appropriate because BSS downlinks in the band will not
cause interference to FS operations, and that secondary status in the
band will allow Pegasus to provide service in areas where there are no
FS operations.[^97] We find that BSS is a consumer service and it would
be unreasonable to subject consumers to the risk of experiencing service
interruption each time a new terrestrial fixed service link is
introduced in the area. We also find that, at this time, it would create
uncertainty in this band to provide a secondary allocation to BSS.
Accordingly, we conclude that the Commission may re-examine this issue
in the future when the needs of operators are clearer. Given that we
have little more information than we did at the time that we issued the
*18 GHz Order*, we find no reason to deviate from it at this time. We,
therefore, reaffirm our decision to consider BSS service rules in the
17.3-17.7 GHz band in a future proceeding.

32 ***Low Power Terrestrial Operations in Satellite Bands***. While we
continue to believe that the potential for harmful interference to FSS
operations from low-power terrestrial fixed stations in the 18.82-18.87
GHz and 19.16-19.21 GHz bands is minimal, we recognize that our prior
decision did not provide NGSO/FSS operators with adequate certainty in
the 18.8-19.3 GHz band. Therefore, upon reconsideration, we conclude
that, instead of permanently permitting co-primary operation of these
low-power fixed service stations, they should be treated like other
fixed service stations operating in 18 GHz bands that were designated
for exclusive FSS use.

33 We find merit in some of the concerns expressed by Teledesic in its
brief to the U.S. Court of Appeals regarding the continued licensing and
operation of low-power terrestrial fixed systems in the 18.82-18.87 GHz
and 19.16-19.21 GHz bands pursuant to section 101.147(r)(10) of our
rules.[^98] In the *18 GHz NPRM*, we proposed to permit low-power fixed
systems to continue to operate in the 18.82-18.87 GHz and 19.16-19.21
GHz bands on a primary basis.[^99] In its comments in response to the
*18 GHz NPRM*, Teledesic suggested that the Commission not leave these
low-power fixed service stations in these bands on a permanent
co-primary basis, based on the possibility that these stations could
cause harmful interference to an NGSO/FSS terminal located up to\
two km away.[^100] Teledesic proposed that the Commission refuse to
accept any new applications for these low-power stations and halt the
deployment of additional stations under existing licenses.[^101]
Teledesic also proposed that existing stations be permitted to continue
operating for the full term of their licenses, or until January 1, 2003,
whichever is earlier.[^102] In response to the concerns raised by
Teledesic, the Commission decided in the *18 GHz Order* that:

> \[r\]egarding the low power fixed systems mentioned in the *NPRM*, in
> the 18.82-18.87 and 19.16-19.21 GHz bands, such stations have been
> licensed on a primary basis and will continue to be so licensed, given
> the proposal in the *NPRM* and the lack of significant comments. They
> will not be subject to the same transition rules as the full power
> stations in their band. In addition, they will not be subject to the
> same relocation requirement, since they will be co-primary with the
> FSS. They will be permitted to continue to operate, and new stations
> will be licensed subject only to the limitation that they operate
> indoors. The restriction to indoor use will, of necessity, place some
> signal-attenuating barrier between low power fixed stations and FSS
> earth stations, which are always located outdoors. While interference
> could still be possible, the probability of interference is
> significantly, and acceptably, reduced as the interfering signal is so
> diminished.[^103]

34 In its reply brief, Teledesic argues that "The Commission did not
explain how its 'indoor only' restriction on new licensees would in any
way reduce interference from existing licensees, yet the consequence of
the Commission's decision is that NGSO/FSS licensees such as Teledesic
have no right to relocate those incumbent outdoor providers."[^104]
Furthermore, Teledesic questions how much less interference can be
expected from indoor as compared to outdoor stations.[^105]

35 We emphasize that it was our intent in the *18 GHz Order* to
facilitate the deployment of new services in the 18 GHz band. We note
that it was also our intent to provide reasonable accommodation for the
continued operation of existing terrestrial fixed services in 18 GHz
bands that were designated exclusively for FSS use. In the *18 GHz
Order*, the Commission designated the 18.8-19.3 GHz band on a primary
basis for the deployment of new NGSO/FSS earth stations.[^106] For most
other terrestrial fixed service operations in this band, the Commission
decided to: 1) cease licensing additional terrestrial fixed stations; 2)
permit existing terrestrial fixed stations to continue operating on a
co-primary basis for a ten-year period, subject only to the right of FSS
providers to require them to relocate; and 3) require satellite
providers to pay for all necessary relocation costs.[^107]

36 We now conclude that a similar approach should be taken regarding
low-power fixed terrestrial stations. We find that such an approach
would give NGSO/FSS operators the ability to control the amount of
harmful interference they are willing to accept in the 18.8-19.3 GHz
band, and also give them the ability to relocate interfering terrestrial
fixed stations if necessary. We find that this approach also provides
certainty to low-power terrestrial fixed service operators regarding how
long they can expect to continue to be licensed and operate on a
co-primary basis in this band. We further find that this approach would
enable low-power terrestrial fixed service operators to receive
comparable facilities at no cost to the fixed operator if they are
required to relocate their systems within a ten-year period.

37 We continue to believe that the risk of interference is not
significant. This is in part because we find that there are likely to be
relatively few existing low-power transmitters operating in this band
and that each transmitter is likely to cause harmful interference to
NGSO/FSS earth stations only over a relatively small geographic area.
The Commission's records reflect that there are currently less than 120
low-power licenses in this band. Each license permits multiple
transmitters to be operated within\
28 km from specified center reference coordinates.[^108] We share
Teledesic's understanding that "the chief proponent of the technology is
no longer promoting it."[^109] However, it is not clear precisely how
many actual low-power transmitters are currently operating in this band
because of the nature of the licensees' authority to deploy transmitters
without notifying the Commission. It would also appear that each
transmitter is likely to cause harmful interference over a relatively
small area, particularly if the transmitter is located indoors. As
mentioned previously, Teledesic claims that outdoor low-power
transmitters could cause harmful interference to an NGSO/FSS terminal
located up to 2 km away. Furthermore, we note that Teledesic does not
appear to challenge the Commission's assertions in the *18 GHz Order*
that limiting the licensing of these low-power systems to indoor use
would reduce the distance at which interference could be expected.[^110]
This is because signals emitted by devices operating indoors will
experience significant building attenuation that substantially reduces
the risk of interference to systems outside the building. We recognize,
however, that no information on building attenuation in the 18 GHz band
has been submitted in the record in this proceeding.

38 Although we believe the potential for low power transmitters to cause
harmful interference to NGSO/FSS earth stations is small, we find that
our decision in the *18 GHz Order* does not give NGSO/FSS licensees the
ability to address harmful interference that could occur. We find that
the only possible remedy that an NGSO/FSS licensee could have to address
interference is the ability to relocate incumbent transmitters that
cause interference. We find that because our decision in the *18 GHz
Order* indicates that the low-power transmitters are not subject to our
transition and relocation rules, the ubiquitous deployment of NGSO/FSS
earth stations in this band could be hindered if we do not take further
action.

39 Based on the comments filed in this proceeding and our judgment on
how to best to reconcile the competing arguments explained above, we are
taking the following additional actions in this Order. First, we will
cut off any further low-power applications under section 101.147(r)(10)
as of April 1, 2002 (outdoor applications have already been cut off in
the *18 GHz Order*). Second, we will permit low-power services
authorized pursuant section 101.147(r)(10) to continue to operate on a
co-primary basis for a period of ten years from the effective date of
this Order, subject to the right of satellite providers to require them
to relocate. After this date, such low-power terrestrial fixed stations
can be compelled to relocate in accordance with the relocation rules we
adopted previously in the *18 GHz Order*. During the ten year co-primary
status period, the satellite provider requiring relocation must pay for
all relocation costs, as was required for other terrestrial fixed
service operations in the *18 GHz Order*.[^111]

40 We recognize that, if it is necessary to relocate the existing
low-power terrestrial fixed services, this decision places new cost
burdens on the NGSO/FSS operators. We find, however, that given the
low-power and relatively limited deployment of these systems, this
burden is quite limited. We also find that this burden is completely
optional to the NGSO/FSS operators and only applies when the NGSO/FSS
operator determines that relocation is necessary or warranted.

41 A number of options may be available to re-accommodate existing
users. We note, for example, that there are a number of unlicensed bands
that can be used under Part 15 of our Rules to deploy low-power fixed
wireless services. For example, section 15.247[^112] permits operations
in three bands generally at comparable power levels to those permitted
under section 101.147(r)(10). These bands might be suitable for
relocation of some or all of the 18 GHz low-power fixed service
operations, but may raise comparability questions. Part 15 operations
are subject to the conditions that no harmful interference is caused and
that interference must be accepted that may be caused by the operation
of other radio transmitters and devices.[^113] Alternatively,
arrangements could be made to employ services offered by commercial
wireless operators, such as multipoint distribution service in the
2500-2690 MHz band. There are, however, no other bands identified in the
rules at this time that provides for the licensing of systems limited to
low power operations. We emphasize that existing low-power operations
are subject to relocation for a ten-year period, only if the FSS party
requesting relocation provides comparable facilities at no cost to the
low-power fixed operator. Finally, we will cut off any further
applications for low-power transmitters as of April 1, 2002. This
cut-off date will provide adequate time for the Commission and
interested parties to consider alternative arrangements for future
low-power fixed operations. Also, we find this cut off date is
appropriate and consistent with Teledesic's current service deployment
plans.

**B. [The Legacy List]{.underline}**

42 We are persuaded by Hughes and several commenters to reverse the
Legacy List policy that we adopted in the *18 GHz Order;* thus, we will
no longer require the use of the Legacy List coordination process by a
GSO/FSS space station licensee to alleviate interference to a
terrestrial fixed station. Similarly, we reverse our decision to require
licensees of NGSO/FSS systems in the 18.8-19.3 GHz band to provide
protection to fixed stations beyond that provided by our satellite pfd
limits. In light of our reconsideration of this issue, we find that it
would serve no useful purpose to address the arguments made by Hughes,
GE Americom, Astrolink, and SIA that the Legacy List policy violates the
Administrative Procedure Act.

43 The *18 GHz Order* addressed concerns raised regarding the
unacceptable levels of interference that may be experienced by
terrestrial fixed station receivers that are pointed at FSS satellite
stations in the geostationary satellite orbit.[^114] Specifically, the

Commission adopted a coordination process to accommodate the small
number of terrestrial FS stations with receivers pointing within two
degrees of the geostationary satellite orbit.[^115] The Commission
referred to the list of these FS licensees as the Legacy List.[^116]

44 Hughes argues that the Commission's pfd limits, which have been in
place since at least 1983, establish sharing criteria between satellite
transmissions and terrestrial fixed service receivers, and consequently
the Commission should not have granted additional consideration to
terrestrial operators in the bands but required them to accept any
interference resulting from satellites operating at or below the power
limits.[^117] Hughes argues that the Commission's terrestrial licensing
rules make clear that the band is shared with satellite systems.[^118]
Astrolink further asserts that the pfd limits in former section
25.208(c) are internationally recognized and avoid the need for FS/FSS
coordination, regardless of the azimuth and elevation angle of the FS
receiver.[^119] SIA argues that terrestrial operators were on notice of
the impending satellite use of the band since 1995, when the Commission
placed Ka-band satellite applications on public notice.[^120]

45 We agree with Hughes and several commenters that the pfd values in
place before we adopted the *18 GHz Order* were already designed to
"pre-coordinate" spacecraft transmissions, and terrestrial fixed service
receivers regardless of the elevation angle and azimuth of the
terrestrial receiver.[^121] We find that the pfd limit set in the
17.7-19.7 GHz band had been internationally adopted since September 6,
1983 to protect Fixed Service operations, and to avoid the need for
Fixed Service / Fixed Satellite Service coordination. While we noted in
the *18 GHz Order* that the Commission has adopted no rule limiting
terrestrial systems operating above 15 GHz from pointing at the
geostationary-satellite arc, the limitation that applies below 15 GHz
applies to terrestrial transmitters for the purpose of protecting FSS
space station receivers, and not for the protection of terrestrial
receivers from the transmissions of space stations. Therefore, we find
that our comparison in the *18 GHz Order* to the rules for operation
below 15 GHz is inappropriate.[^122]

46 We find that a fundamental purpose of satellite power flux ­­density
limits, in bands shared with terrestrial services, is to define the
sharing environment so that both services may operate with minimal
constraint. We note that, given that FS operators have known the maximum
allowed pfd levels from the GSO satellites, FS operators could have
effectively designed their point-to-point links to avoid receiving
unacceptable interference from satellites using the geostationary orbit.
We find that even though there are no non-government geostationary orbit
satellites currently operating in the 17.7-\
19.7 GHz band, the rules clearly provide for such service. Moreover, we
find that terrestrial fixed service licensees, through those rules, have
had ample notice of such a possibility.

47 Similarly, for the 8.8-19.3 GHz NGSO/FSS bands, the *18 GHz Order*
adopted pfd limits for NGSO/FSS satellites. The limits adopted were
those adopted at the ITU WRC-2000 conference for NGSO satellites in the
17.7-19.7 GHz band. That conference recognized that the satellite pfd
limits adopted were sufficient to protect terrestrial FS receivers in
those bands. Accordingly, on reconsideration we find that section
25.145(i) of the rules is neither necessary nor appropriate, and we
hereby delete section 25.145(i) from our rules.

## C. [Licensing Issues]{.underline} {#c.-licensing-issues .unnumbered}

48 ***Technical Corrections.*** We deny Hughes's request to modify
section 25.138(b) of the Commission's rules to limit the rule's
application to blanket-licensed earth stations. Section 25.138
establishes guidelines for Ka-band earth station operations.[^123] It
also requires licensees of non-compliant stations to coordinate with
affected Ka-band satellite operators, and bear the burden of
coordinating with future applicants and licensees.[^124] Hughes argues
that modification is warranted because the Commission improperly omitted
the word "blanket" before the phrase "earth station license" in
25.138(b), and failed to explain the basis for the omission.[^125]
According to Hughes, the rule is the result of a proposal of an
industry-working group, and the industry-working group only intended it
to apply to blanket-licensed earth terminals.[^126] Hughes argues that
in its current state the rule could be incorrectly interpreted to
require individually licensed earth stations, even after they are
coordinated, to power down to accommodate new operations at any of the
six orbital locations within six degrees.[^127]

49 We decline to make the change sought by Hughes because we agree with
Astrolink, Pegasus, and Lockheed Martin that section 25.138(b), as
adopted in the *18 GHz Order*, properly articulates the procedure to
license earth stations with higher uplink power densities or downlink
pfd levels than used by satellite operators to provide service to
blanket licensed terminals. Astrolink asserts that section 25.138(b)
applies the same guidelines to all earth stations operating in the band
as it does in the Ku-band, and does nothing more than extend to the
Ka-band the FCC's licensing practice with respect to non-compliant
Ku-band earth stations.[^128] Astrolink also argues that the explanation
that the Commission provided for its omission of the word "blanket" was
adequate because paragraph 43 of the *18 GHz NPRM* discussed the
proposal to extend to the Ka-band the Commission's previous licensing
approach to non-compliant GSO/FSS earth station applications.[^129]
Pegasus and Astrolink both argue that granting Hughes's request would
eliminate any applicable operational parameters for individually
licensed Ka-band earth stations, remove the requirement to coordinate
individually licensed earth station operations in excess of applicable
power levels with affected Ka-band satellite operators, and contravene
longstanding FCC policy.[^130] Lockheed Martin argues that the
Commission should retain the current language of section 25.138 of our
rules because to do otherwise would jeopardize the blanket-licensing
regime and associated policy objectives.[^131] Lockheed Martin further
argues that the approach set forth ensures that all existing and future
Ka-band satellite licensees have the opportunity to deploy ubiquitous
terminals for new satellite-based broadband services, and that
interference from non-conforming earth stations would undermine the
ability of other licensees to operate compliant earth stations.[^132]
According to Lockheed Martin, requiring non-compliant earth stations to
coordinate with subsequently deployed compliant earth stations prevents
one competitor from foreclosing competition in any given geographic area
from either existing licensees or future licensees, such as second-round
Ka-band applicants and licensees, including Lockheed Martin.[^133]

50 As noted above, we agree with Astrolink, Pegasus, and Lockheed Martin
that section 25.138(b), as adopted in the *18 GHz Order*, correctly
establishes the procedure to license non-compliant earth stations on
both a blanket and individual basis. We find that section 25.138(c) was,
among other things, intended to preserve the bands designated only for
GSO/FSS for such licensing. Consequently, we find that section 25.138(c)
properly places the coordination burden on the operator of the
non-compliant terminals, appropriately considering the type of GSO/FSS
usage for these frequency bands. We find that this procedure makes
additional spectrum available with fewer constraints on those satellite
operators that plan to operate at those levels established for blanket
licensing. Furthermore, for those operators that chose to operate
blanket- or individually-licensed earth stations within the unshared
GSO/FSS bands at levels beyond those established for blanket licensing,
we adopt a flexible coordination approach in section 25.138(c) to
accommodate such applications. Individually-licensed non-complaint earth
stations, e.g., TT&C stations, are not precluded from operating in the
unshared GSO/FSS bands. However, the risk of additional future operating
constraints must be assessed by the applicant and the non-compliant
operations must be coordinated with existing and future compliant
operations in the unshared GSO/FSS bands. In this manner, continued
orbit spectrum utilization efficiency will be assured.

51 ***Satellite pfds***. We agree with Hughes, GE Americom,[^134]
Astrolink, [^135] and SIA[^136] that the pfd limits specified for the
18.3-18.8 GHz band should be consistent with the current pfd limits set
out in the ITU Radio Regulations. Specifically, Hughes argues that the
current section 25.138(a)(6) allows for routine processing of a blanket
license application that contemplates a higher pfd in the 18.58-18.8 GHz
band than, for example, -118 dBW/m^2^/MHz, and this is contrary to the
industry consensus on this issue.[^137] According to SIA, the new
section 25.208(d) imposes a more stringent pfd limit at certain angles
of arrival than the prior rule and this precludes the ability to
coordinate inter-satellite operations at downlink power levels in excess
of the thresholds set forth in 25.138(a) over certain ranges of
elevation angles.[^138] SIA argues that the pfd limit should be returned
to its original value so as not to prohibit coordinated, higher-power
operations from many orbital positions over a range of angles of
arrival.[^139]

52 We find that the pfd limits specified in section 25.208(c) should
apply to the 18.3-18.8 GHz band, where satellite and
terrestrial/grandfathered terrestrial operators still share the band. We
agree with the petitioner and commenters that the pfd values in place
were already designed to "pre-coordinate" spacecraft transmissions and
terrestrial fixed service receivers regardless of the elevation angle
and azimuth of the terrestrial receiver. We note that the pfd limit set
in the 17.7-19.7 GHz band had been internationally adopted since
September 6, 1983, to protect FS operations and to avoid the need for
FS/FSS coordination. We find that GSO/FSS operations in the 17.8-20.2
GHz band, in accordance with footnote US334 of the United States Table
of Frequency Allocations, permit FSS sharing with the FS in those bands
using the same pfd limits specified in section 25.208(c). Accordingly,
we delete section 25.208(d), and amend the rules to apply the pfd values
in section 25.208(c) to the 18.3-18.8 GHz frequency band. Only sections
25.208(e) and 25.208(f) therefore remain, and are accordingly
re-lettered within section 25.208.

53 We also agree with Hughes that the pfd level in section 25.138(a)(6)
of ‑118 dBW/m^2^/MHz should apply to all GSO/FSS downlink bands in which
the Commission permits blanket licensing.[^140] Specifically, Hughes
contends that the Commission incorrectly omitted the 18.58-18.8 downlink
band from section 25.138(a)(6).[^141] We find that the pfd value in
section 25.138(a)(6) should apply as a coordination threshold in each
GSO/FSS downlink band in which blanket earth station licensing is
permitted. In paragraph 87 of the *18 GHz Order*, the Commission adopted
the blanket licensing procedure for GSO/FSS earth stations in the
unshared 18.58-18.8 GHz, 19.7-20.2 GHz, 28.35-28.6 GHz, and 29.5-30 GHz
bands.[^142] Therefore, we find that despite the fact that there is no
reference to the 18.58-18.8 GHz band in section 25.138(a)(6), the
blanket licensing text in the *18 GHz Order* is applicable to the
18.58-18.8 GHz band. In an effort to make the rules consistent, we
hereby delete reference to the 19.7-20.2 GHz band in section
25.138(a)(6) of our rules, and conclude that the pfd requirement will be
applicable to all frequencies listed under section 25.138.

## D. [Relocation Issues]{.underline} {#d.-relocation-issues .unnumbered}

54 ***Comparable Facilities.*** We deny Winstar's request that the
Commission clarify through a modification of its rules that if an
incoming licensee is unable or unwilling to provide an incumbent
licensee with comparable facilities, the incumbent licensee will not be
subject to mandatory relocation. Teledesic disagrees with Winstar's
request for clarification, claiming that it is an attempt to bait the
Commission into stating that facilities must be perfect in every respect
before relocation will be required.[^143] According to Teledesic,
sometimes it is necessary to make post-installation adjustments to
facilities after the switchover has occurred, and it would be
unreasonable to state otherwise by way of clarification.[^144] We find
that, as noted by Astrolink[^145] and Teledesic,[^146] modification of
the Commission's rules is unnecessary because the *18 GHz Order* states
that incumbents need not relocate until alternative facilities are
available for a reasonable time. Specifically, we note that the rule
adopted in the *18 GHz Order* states "\[n\]egotiations will be conducted
with the goal of providing the FS licensee with comparable facilities,"
and that "comparable facilities" are defined as facilities comparable
with respect to measurable criteria that include throughput,
reliability, and operating costs.[^147] We find that the *18 GHz Order*
sufficiently establishes that an FS licensee is not required to relocate
until the alternative facilities are available to the FS licensee for a
reasonable time to make adjustments, determine comparability, and ensure
a seamless handoff. We note that, according to the relocation rules, if
the FS licensee demonstrates to the Commission that the new facilities
are not comparable to the former facilities, the Commission can require
the FSS licensee to modify further or replace the FS licensee's
equipment.

55 We also disagree with Astrolink that there is a need to clarify that
an FSS licensee may come to the Commission to invoke mandatory
relocation if an FS operator refuses to accept comparable
facilities.[^148] We find that the rule is sufficiently clear in
establishing that replacement facilities must be comparable, and an FSS
licensee may invoke involuntary relocation where no agreement is reached
during the negotiations period.

56 ***Definition of Throughput.*** We decline to modify the rules to
permit throughput to be determined by total capacity of the licensed
spectrum, rather than the FS licensee's actual use at the time of
relocation.[^149] We are not persuaded by Winstar's argument that the
Commission failed to acknowledge the explosive growth in the FS market,
and failed to provide reasonable accommodation for that growth.[^150]
Winstar bases its claim on the fact that the *18 GHz Order* decided that
incumbents need only receive enough throughput to satisfy their actual
use.[^151] Specifically, the *18 GHz Order* states that when an FSS
licensee is relocating an FS licensee, the FS licensee must be provided
with "comparable facilities."[^152] The *18 GHz Order* establishes that
the new facility must, among other things, provide communications
throughput that is comparable to the previous facility.[^153] The *18
GHz Order* defines "communications throughput" as "the amount of
information transferred within a system in a given time,"[^154] and
notes that the FSS licensee must provide the FS licensee with enough
throughput to satisfy the FS licensee's system use at the time of
relocation, rather than requiring FSS licensees to match the total
capacity of the FS system.[^155]

57 These basic relocation principles, which we reaffirm in this order,
were originally drawn from the *2 GHz Relocation Order*.[^156] In the *2
GHz Relocation Order*, the Commission determined that an incumbent needs
to receive only enough throughput to satisfy its needs at the time of
relocation.[^157] In the *2 GHz Relocation Order*, the Commission noted
that it selected this amount of throughput to prevent inefficient use of
the spectrum, which could occur if an incumbent were relocated to a
system with capacity that exceeds its current needs.[^158] For example,
the Commission would not require that a 2 GHz incumbent that has 5 MHz
of bandwidth be relocated to a similar-size location when its current
needs only justify a 1.25 MHz bandwidth system.[^159] In the *18 GHz
Order*, the Commission likewise required that relocated incumbents be
provided only "with enough throughput to satisfy the FS licensee's
system use at the time of relocation, not match the total capacity of
the FS system."[^160]

58 We conclude that in the *18 GHz Order*, the Commission properly
invoked the policy of preventing spectrum warehousing and promoting more
efficient use of spectrum by incumbents and new entrants alike by
compensating incumbents only for the spectrum that they are actually
using at the time of relocation.[^161] We are not persuaded that
Winstar's effort to distinguish factually the *18 GHz Order* from the *2
GHz Relocation Order* warrants a different conclusion. Specifically,
Winstar argues that in the *2 GHz Relocation Order*, incumbents could be
relocated to different spectrum, whereas here the Commission has not
identified any new spectrum for relocation.[^162] We find that it is not
necessary for the facts to be identical in order for the rationale for
the decision in the *2 GHz Relocation Order* to be applicable to the
situation at hand.

59 Moreover, we agree with the majority of commenters. For example,
Astrolink argues that the Commission properly required FSS licensees to
provide FS operators with replacement throughput to satisfy actual use
at time of relocation, not total capacity, because relocation will only
be performed on a link-by-link basis.[^163] Hughes argues that the
Commission's decision to limit the "throughput" of the relocated FS
systems to the capacity actually in use was correct because this ensures
that grandfathered FS licensees do not warehouse spectrum during the
transition period in the hope of receiving a windfall of capacity upon
relocation by a satellite licensee and also recognizes that FS licensees
will have additional growth opportunities in the 17.7-18.3 GHz
band.[^164] Pegasus argues that the Commission properly took account of
the expected growth of both satellite and terrestrial services in its
order and rationally concluded that the public interest in efficient
market entry of FSS licensees outweighed the competing interest in FS
growth.[^165] Teledesic argues that the goal of the relocation rules
should be to move usage toward conformity with the Commission's band
plan quickly and with the least social cost possible.[^166] According to
Teledesic, a facility using an over-sized 40 MHz channel pair that has
customer requirements for only a 20 MHz pair is made whole by receiving
only a 20 MHz pair.[^167] Teledesic argues that requiring the new
entrant to build a 40 MHz facility that will remain underused is
inefficient and will result in spectrum warehousing.[^168]

60 ***Alternative Media.*** We deny the request by Winstar and FWCC to
clarify through modification of our rules that an FS provider is not
required to accept fiber or other bands as an alternative media. Winstar
and FWCC argue that such clarification is necessary because fiber
networks and certain other options may not be reasonable or logical
because they may not be cost-effective or available.[^169] Winstar
argues that fiber is generally much more expensive than microwave,
usually not available outside business-dense urban areas, and has a
lengthy construction time.[^170] Winstar also argues that other
non-fiber forms of media have similar problems because higher frequency
bands such as 23 GHz require multiple relay links with 1-2 mile hops
(due to propagation characteristics) and are, therefore, more expensive,
spectrally inefficient, and cumbersome to use.[^171] According to
Winstar, there are no lower frequency bands currently available with
sufficient bandwidth to meet its hub interconnection capacity
requirements.[^172]

61 We generally agree with Astrolink, [^173] Hughes, SIA,[^174] and
Teledesic, [^175] and thus we conclude that in evaluating possible
relocation options for FS providers, the key test should be whether the
alternative facilities are comparable under the applicable Commission
rules. The relocation rules adopted in the *18 GHz Order* states in part
that: "FSS licensees may negotiate with FS licensees authorized to use
frequencies in the 18.58-19.30 band for the purpose of agreeing to terms
under which the FS licensees would . . . \[r\]elocate their operations
to other fixed microwave bands or other media."[^176] We find that this
provision provides flexibility to incumbents and new entrants in the
relocation process to be able to use whatever comparable facilities are
available, including alternative media. We find that, as long as the
alternative medium is comparable, in terms of throughput, operating
costs, and reliability, it should not be ruled out as a possible option
for relocation. We note, however, that with respect to fiber optic
facilities, the receiving fees for the lease of such lines would be
considered a valid "operating cost" and must be considered as a factor
in any comparability analysis. We also note that our rules provide that
a terrestrial fixed licensee will be given a "reasonable" amount of time
to test the new facilities to ensure comparability.[^177] Accordingly,
we conclude that there is no need for further clarification of this
issue.

62 ***Cut-Off Dates.*** The cut-off dates in the *18 GHz Order* address
two specific and different situations. The first situation involves the
identification of terrestrial fixed stations that are entitled to
compensation from a satellite licensee that wishes to relocate the fixed
stations to a new frequency band or alternative media. The second
situation involves identification of terrestrial fixed stations that are
entitled to protection from interference from satellite stations.
Although we agree with Teledesic that the *18 GHz Order* might not have
been clear in distinguishing between the right to operate, the right to
compensation, and the right to protection from interference, we find
that the rules adopted in the Order are clear and correct.

63 With respect to the identification of terrestrial fixed station that
are entitled to compensation from a satellite licensee that wishes to
relocate the fixed station, in the 18.58-18.8 GHz band, stations
licensed or with applications pending as of the adoption date of the *18
GHz Order* (June 8, 2000) are entitled to compensation for the
relocation of their facilities for a period of ten years from the
adoption date of the *18 GHz Order*.[^178] In the 18.8-19.3 GHz band,
stations licensed or with applications pending as of September 18, 1998,
are also entitled to compensation for the relocation of their facilities
for a period of ten years from the adoption date of the *18 GHz
Order*.[^179] These provisions are reflected in sections 21.901, 74.502,
74.602, 78.18, and 101.147(r) of our rules, and we affirm them.

64 With respect to identification of a terrestrial fixed stations that
are entitled to protection from interference from the satellite
stations, we have reconsidered our decision to adopt Legacy List
procedures for fixed service receivers that point within two degrees of
an FSS satellite. Specifically, upon further consideration, we have
determined that the power flux‑density limits adopted for both the GSO
and NGSO satellites in the 17.7-19.7 GHz band are sufficient to protect
the fixed service receivers.[^180] With the elimination of the Legacy
List procedures and the acceptance of the section 25.208 Power
Flux‑Density Limits as the sole protection criteria for terrestrial
fixed stations from FSS satellites in the 17.7-19.7 GHz band, we see no
need for a cut-off date for the protection of terrestrial fixed
stations. Accordingly, we delete section 25.145(i) from our rules.

65 ***Negotiation Periods.*** We reaffirm the decision to require a
two-year mandatory negotiation period for non-public safety and a
three-year mandatory negotiation period for public safety incumbents and
new entrants to negotiate and reach agreement on relocation, before the
new entrants can begin involuntary relocation proceedings. Although
Winstar argues that the Commission should provide for a voluntary
negotiation period that would precede these mandatory negotiation
periods, we find that the *18 GHz* *Order* struck the right balance in
providing specific mandatory periods for incumbents to negotiate in good
faith. We agree with Astrolink[^181] that a mandatory negotiation period
provides a stronger incentive to incumbents than a voluntary negotiation
period.

66 We reject Winstar's arguments that the Commission incorrectly assumed
that many of the existing 18 GHz terrestrial fixed stations will likely
be able to relocate elsewhere in the 18 GHz band. As the Commission
noted in the *18 GHz Order*, relocation is not required until such time
as comparable facilities are located and tested for the incumbent.[^182]

67 In addition, we find that, as noted by Astrolink,[^183] Hughes, and
Teledesic,[^184] adding an involuntary negotiation period in this case
would be inconsistent with the effort to provide the expedited access
required by the FSS operators. We are not persuaded by Winstar's
argument that the Commission incorrectly assumed that FSS licensees
would roll out nation-wide service rapidly. We find, as we did in the
*18 GHz Order*, that satellite licensees will likely roll out their
service on a nation-wide basis, at one time, to ubiquitously deployed
user terminals. This situation necessitates expedited access to this
spectrum, which we believe will be promoted by our current relocation
rules.

68 ***Right to Return to Original Spectrum.*** We conclude that the
Commission properly determined that, even if the relocation is
unsuccessful, an incumbent licensee should not have the right to return
to previous facilities. Winstar argues the Commission should reconsider
this and establish a 12-month trial period based on the same principles
and logic employed in the *2 GHz Relocation Order.*[^185] Winstar argues
that this change is necessary to provide a "safety valve" to ensure that
licensees negotiate in good faith towards a shared goal of effective
relocation.[^186] Winstar further argues that without such a 12-month
trial period, there is no motivation for incoming licensees to pursue
the availability of comparable facilities for incumbents, and they may
be tempted to "buy time" by placing incumbent licensees in inadequate
facilities.[^187] Winstar also asserts that the Commission's petition
process for dissatisfied incumbents is hardly sufficient because it
leads to a slow, agonizing, and generally unsatisfactory resolution of
the problem.[^188]

69 We find, as noted by Astrolink, Teledesic, Hughes, and TRW that
giving incumbents the right to return to their previous facilities would
be unworkable and cause uncertainty and disruption to FSS deployment in
the band.[^189] Specifically, Hughes and TRW argue that a right of
return would be unworkable because in the 18 GHz band the service will
be rolled out immediately on a nation-wide basis, rather than phased in
as it was in the 2 GHz band.[^190] TRW urges the Commission not to apply
the right of return decision from the *2 GHz Relocation Order* because
the more appropriate analogous situation to the present one is the one
involving relocation of terrestrial facilities above 2 GHz to make room
for 2 GHz MSS systems.[^191] TRW notes that in that case the Commission
rejected a right of return for terrestrial incumbents, finding such an
approach infeasible, due to the disruptive impact on region-wide or
global satellite systems.[^192]

70 We agree with Hughes, Astrolink [^193] and Pegasus[^194] that a right
of return period is not necessary because the Commission's 18 GHz
relocation rules provide that involuntary relocation occurs only when a
satellite licensee has built and tested a comparable facility for the
relocated licensee prior to relocation.[^195] Moreover, we find that, as
noted by these parties and SIA, the FS licensee has the ability to
contest comparability if there has been inadequate testing, and the
Commission may order the satellite licensee to take additional measures
to ensure comparability after the relocation.[^196] Our rules provide
that the fixed licensee be given "a reasonable time" to conduct such
tests,[^197] and we amend section 101.91(c) to clarify that the fixed
licensee may take up to twelve months to complete such testing, to make
adjustments, and ensure compatibility.

71 In sum, we conclude that, given the elaborate procedural safeguards
accorded to terrestrial fixed 18 GHz incumbents, and the nature of the
service being introduced by the 18 GHz new entrants, it is not in the
public interest to permit involuntarily relocated 18 GHz incumbents to
return to previous facilities in bands designated on a sole primary
basis to the FSS. We believe that the combination of the 12-month trial
period afforded to incumbents to examine and test the new facilities,
before having to surrender their old facilities, along with the petition
process set forth in the *18 GHz Order*, will provide adequate relief in
the event that the relocated incumbent finds during the trial period
that the facilities are deficient. We note that our rules permit
incumbents to seek further modifications to the new facilities from new
entrants to ensure comparability.[^198]

72 ***Assignments and Transfers.*** We agree with Winstar that the
adoption of section 1.929 of our rules requires that we clarify section
101.97 with regard to the transfer of control and assignments by
incumbent 18 GHz licensees. The issue that Winstar presents arises
because section 101.97 does not explicitly address whether a transfer of
control or assignment of an FS license by an incumbent is considered a
major or minor modification. Winstar points out that in the *ULS Order*,
[^199] the Commission adopted section 1.929 of our rules, which is
entitled "Classification of filings as major or minor." Section 1.929
states in part as follows: "Applications and amendments to applications
for stations in the wireless radio services are classified as major or
minor. ... For all stations in all Wireless Radio Services ... the
following actions are classified as major: ... Any substantial change in
ownership or control."[^200] Winstar and API are concerned that a
literal reading of section 101.97 together with section 1.929 will
result in a new owner of a facility being denied the primary status that
the incumbent seller had when the incumbent seller owned the
facility.[^201] Winstar and API argue that, although the *18 GHz Order*
intended to allow an incumbent to retain primary status even after a
change in ownership or control, the Commission failed to codify this
aspect of the decision in the amended rules, and a literal reading of
the rules will lead to the opposite result.[^202] Therefore, Winstar
requests that the Commission clarify section 101.97 to make it
consistent with the *18 GHz Order*, *i.e.*, to state explicitly that
changes of ownership or control are granted with primary status, unless
the Commission determines that doing so would increase the relocation
costs or that the transaction involves an attempt to abuse the
Commission's relocation policies.[^203]

73 We amend section 101.97 of our rules to state that incumbent FS
licensees will maintain primary status notwithstanding a change in
ownership or control. We find that section 1.929 is intended to classify
filings as major or minor for procedural purposes only with respect to
whether or not such a filing is considered newly filed, and was not
intended to modify the rule at section 101.97, which was adopted in the
*18 GHz Order.* We note that section 101.97 addresses the issue of
modifications and extensions to existing FS systems in the 18.58-19.30
GHz band, which the *18 GHz Order* designated on a primary basis to the
NGSO/FSS. We also note that section 101.97 states that "major"
modifications and extensions to an existing FS station would cause the
FS system to lose primary status and render the modified FS license
secondary to FSS operations.[^204] Section 101.97 also lists eight
specific technical modifications that do not result in an incumbent FS
licensee losing its primary status.[^205] Section 101.97 states that any
other modification would cause the modified FS license to become
secondary to FSS operations, unless the incumbent: (1) affirmatively
justifies retaining primary status, and (2) establishes that the
modification would not add to the relocation costs for FSS
licensees.[^206]

74 We clarify that, notwithstanding the transfer of control or
assignment of an FS license by an incumbent, the license will retain
primary status. As noted by API, this policy is consistent with
long-standing Commission policy with respect to license assignments and
transfers of control in the 2 GHz relocation proceedings.[^207] We agree
with API[^208] that a contrary policy would likely seriously impair the
marketability of the licenses in question and cause significant harm to
the existing investments made by 18 GHz incumbents, whereas allowing
incumbents the opportunity to retain primary status would cause little
or no harm because it would not likely increase terrestrial use of the
band or relocation costs. API correctly notes that assignees and
transferees will be limited to the same scope of operations as their
predecessors, and that the majority of transfers will involve either
*pro forma* reorganizations or sale of an entire business.[^209] For
these reasons, we reject the argument by Teledesic that the Commission
should treat the transfer of control or assignment of an incumbent
license as an opportunity to reduce the number of FS licensees operating
in the band, by not permitting the transferee or assignee to retain
primary status. We are not persuaded by Teledesic's argument that
denying the new owner the benefit of primary status will promote band
segmentation while lowering the total social cost of the transition
because it would not involve relocation.[^210]

75 ***Measure and Mitigation of Relocation Costs.*** We reaffirm our
decision to adopt the relocation rules codified in sections 101.89 and
101.91 because we conclude that it is appropriate to apply in this band
the established policy that we have employed in other similar
circumstances. In so doing, we reject Teledesic's proposal that the
Commission use other approaches to relocation that are plainly
inconsistent with the Commission's goal of enabling an incumbent that is
required to relocate to construct a comparable replacement system
without the additional burden of undue costs. Contrary to Teledesic, we
find that new entrants benefit from our policy of seeking to ensure that
incumbents have every possible reasonable incentive to relocate promptly
and voluntarily.

76 We find that the relocation rules in the *18 GHz Order* struck the
correct balance between the new entrants' immediate need for spectrum
and the need of the incumbents to cover the costs associated with the
early move out of the band. It did so by providing a framework that
encouraged voluntary negotiations between the parties. That is, we
continue to believe that the fact that an incumbent that is subject to
relocation will have the entire relocation cost paid by the new
applicant, will encourage the incumbent to negotiate voluntarily with
the new applicant, and further the interest of clearing incumbent
operations as promptly as possible from any portion of the band
allocated for use by the new entrants.

77 In addition, we are not convinced by Teledesic's argument that the
requirement for a comparable facility is a windfall; rather we are
convinced that anything less will discourage incumbents from relocating.
This is because as we noted in the *18 GHz Order*, comparable facilities
must be equal to or superior to existing facilities.[^211] It stands to
reason, therefore, that anything less than a comparable facility is an
inferior facility. We find Teledesic's effort to reduce its potential
costs to relocate existing terrestrial operators is an inadequate basis
for putting an incumbent in a worse position than it would have been
before the relocation. Indeed, as we have previously stated, we believe
that compensating licensees merely for the depreciated value of their
equipment is insufficient to enable incumbents to construct comparable
facilities, and, thus, to remain in full operation, in replacement
spectrum.[^212]

78 In any event, we note that the *18 GHz Order* properly left it up to
the parties to determine whether the new entrant replaces the old
equipment with new equipment.[^213] That is, we find that, as we
explained in the *Emerging Technologies Third Report & Order*, whether
the incumbent receives a windfall is largely a question of whether the
new entrant agrees to it.[^214] In the Emerging Technologies proceeding,
the Commission faced a similar situation, where circumstances required
the modification of existing spectrum allocations to make new
communications services possible in an already-occupied band. The
Commission there, as here, imposed upon the new entrant the
responsibility to "guarantee payment of all relocation costs" for
comparable alternative facilities.[^215] In that proceeding, the
Commission considered the issue of the appropriate standard for
determining the level of costs and rejected a depreciated value standard
in favor of the cost of comparable facilities.[^216] In the *Emerging
Technologies Third Report and Order*, the Commission specifically
rejected the argument that Teledesic seeks to advance in the petition
for review that is pending in the United States Court of Appeals: that
requiring new entrants to pay the full cost of relocation to comparable
facilities amounts to an inequitable windfall for existing
operators.[^217] Instead, in the *Emerging Technologies Third Report &
Order* the Commission declined to adopt a specific definition of
comparable facilities and allowed the parties in each case to negotiate
mutually agreeable terms for determining comparability.[^218] The
Commission further noted in the *Emerging Technologies Third Report &
Order* that, in any case brought to the Commission for resolution we
will use as our benchmark that comparable facilities must be equal to or
superior to existing facilities.[^219] However, the Commission stated in
the *Emerging Technologies Third Report & Order* that to determine
comparability we would consider, *inter alia*, system reliability,
capability, speed, bandwidth, throughput, overall efficiency, bands
authorized for such services, and interference protection.[^220] The *18
GHz Order* properly cited the *Emerging Technologies Third Report &
Order* to explain its conclusions.

79 Similarly, in its recent *MSS Allocation* proceeding, the Commission
adopted the same approach requiring new entrants to pay the entire costs
to relocate existing operators. The Com­mission explained further the
balance that it struck in the *Emerging Technologies* proceeding with
respect to relocation costs, which it applied with some modifications in
the *MSS Allocation* Pro­ceeding. Citing the *Emerging Technologies Third
Report & Order* in the *MSS Allocation Order* the Commission noted that:

> "\[t\]hroughout this pro­ceeding we have recognized the important and
> essential functions, such as public safety and utility management
> communications, that 2 GHz fixed microwave operations now provide and
> indicated our intention to minimize the impact of our spectrum
> redevelopment plan on those services." At the same time, we provide
> motivation to incumbents to negotiate and relocate expeditiously by
> providing for comparable facilities, and by providing a sunset date
> after which new licensees are no longer required to relocate
> incumbents (see above). The two features of comparable facilities and
> a sunset date act to encourage incumbents to vacate the reallocated
> spectrum quickly, thus providing early access for new technology
> licensees.[^221]

80 We again find it appropriate to encourage incumbents to relocate
expeditiously. As we explained above, in the *18 GHz Order*, the
Commission was not chang­ing policy with respect to relocation occasioned
by spectrum allocations, but applying an estab­lished policy that it has
employed in other similar circumstances.[^222] Therefore,
notwithstanding the differences between this proceeding and the
*Emerging Technologies* proceeding, we reaffirm the adoption in the *18
GHz Order* of the measure of relocation costs derived from the Emerging
Technologies proceeding.[^223]

**IV. CONCLUSION**

81 In this First Order on Reconsideration we addressed issues raised by
Hughes, FWCC, Winstar, and Teledesic in petitions to the Commission for
reconsideration, and a petition to the United States Court of Appeals
for the District of Columbia for judicial review of the *18 GHz Order*.
The issues generally fall into one of four groups: 18 GHz band plan,
licensing, Legacy List, and relocation.

82 With regard to the 18 GHz band plan, this Order gives the NGSO/FSS
operators increased flexibility in relocating interfering terrestrial
fixed stations by terminating after ten years the co-primary status of
existing terrestrial fixed stations in the 19.26-19.3 GHz band, and
low-power terrestrial fixed service stations in the 18.8-19.3 GHz band.
This Order finds that it is appropriate to treat such operations in the
same manner as other operations in the 18 GHz band, and that such
treatment necessarily includes the right to compensation for relocation
of both parts of a channel pair. Thus, this Order provides that, where
it becomes necessary during the ten years to relocate an existing
terrestrial fixed station in the 19.26-19.3 GHz band, or low-power
terrestrial fixed service station in the 18.8-19.3 GHz band, the FS
operator will be able to receive comparable facilities at no cost to the
fixed operator.

83 We are persuaded by Hughes and several commenters to reverse the
Legacy List policy that we adopted in the *18 GHz Order*. As a result,
this Order deletes section 25.145(i) of our rules and the requirement
for a GSO/FSS space station licensee to use of the Legacy List
coordination process to alleviate interference to a terrestrial fixed
station.

84 This Order also generally affirms our basic findings in the *18 GHz
Order* with regard to the blanket licensing rules. It changes, however
the power flux-density (pfd) value for the 18.3-18.8 GHz frequency band
to the values in section 25.208(c) to be consistent with the pfd limit
in the Radio Regulations of the International Telecommunication Union
and deletes section 25.208(d). We also determine that the pfd level in
section 25.138(a)(6) of -118 dBW/m2/MHz should apply to all
Geostationary Satellite Orbit/Fixed Satellite Service (GSO/FSS) downlink
bands in which the Commission permits blanket licensing. We amend
section 101.97 to clarify that an incumbent Fixed Service (FS) licensee
retains primary status notwithstanding a change in ownership or control.
Further, we clarify that an incumbent licensee is entitled to a 12-month
trial period after relocation to test the new facilities.

85 Finally, this Order generally denies the requests to reconsider the
relocation issues, and reaffirms the Commission decision to adopt the
relocation rules codified in sections 101.89 and 101.91. This is in part
because we find that it is appropriate to apply in the 18 GHz band the
established policy that the Commission has employed in other similar
circumstances. In addition, we find that it is Commission policy to
enable an incumbent, that is required to relocate, to construct a
comparable replacement system without the additional burden of undue
costs. Moreover, this Order finds that the alternative proposals offered
by Teledesic for measuring relocation costs are plainly inconsistent
with this Commission goal. We further find that, contrary to the
allegations made by Teledesic, new entrants benefit from the Commission
policy of seeking to ensure that incumbents have every possible
reasonable incentive to relocate promptly and voluntarily.

# V. ORDERING CLAUSES {#v.-ordering-clauses .unnumbered}

86 IT IS ORDERED that, pursuant to sections 1, 4(i), 4(j), 301, 302,
303(c), 303(e), 303(f), 303(r) and 403 of the Communications Act of
1934, as amended, 47 U.S.C. sections 151, 154(i), 154(j), 301, 302,
303(c), 303(e), 303(f), 303(r), and 403, this *Order* IS ADOPTED.

87 IT IS FURTHER ORDERED that the Regulatory Flexibility Analysis, as
required by section 604 of the Regulatory Flexibility Act and as set
forth in Appendix B, IS ADOPTED.

88 IT IS FURTHER ORDERED that the Commission\'s Consumer Information
Bureau SHALL SEND a copy of this *Order*, including the Final Regulatory
Flexibility Analysis to the Chief Counsel for Advocacy of the Small
Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

> Magalie Roman Salas
>
> Secretary

# APPENDIX A: Final Rules {#appendix-a-final-rules .unnumbered}

# Rule Changes {#rule-changes .unnumbered}

For the reasons set forth in the preamble, parts 25, and 101 of title 47
of the Code of

Federal Regulations are amended as follows

# PART 25\--SATELLITE COMMUNICATIONS {#part-25--satellite-communications .unnumbered}

The authority citation for Part 25 continues to read as follows:

AUTHORITY: 47 U.S.C. 701-744. Interprets or applies sec. 303, 47 U.S.C.
303. 47 U.S.C. sections 154, 301, 302, 303, 307, 309 and 332, unless
otherwise noted.

1.  Section 25.138 is amended to read as follows:

§ 25.138 Blanket licensing provisions of GSO FSS Earth Stations in the
18.58-18.8 GHz (space-to-Earth), 19.7--20.2 GHz (space-to-Earth),
28.35-28.6 GHz (Earth-to-space) and 29.5--30.0 GHz (Earth-to-space)
bands.

\* \* \* \* \*

(a)(6) Power flux-density (PFD) at the Earth\'s surface produced by
emissions from a space station for all conditions, including clear sky,
and for all methods of modulation shall not exceed a level of --118
dBW/m^2^/MHz, in addition to the limits specified in paragraph 25.208
(d) of this Part.

\* \* \* \* \*

2.  Section 25.145 is amended by revising paragraph (h) to read as
    follows, and by deleting paragraph (i).

**§ 25.145 Licensing Conditions for the Fixed-Satellite Service in the
20/30 GHz Bands**

\* \* \*

\(h\) Policy governing the relocation of terrestrial services from the
18.58 to 19.3 GHz band: Frequencies in the 18.58-19.3 GHz band listed in
Parts 21, 74, 78, and 101 of this chapter have been reallocated for
primary use by the Fixed-Satellite Service, subject to various
provisions for the existing terrestrial licenses. Fixed-Satellite
Service operations are not entitled to protection from the co-primary
operations until after the period during which terrestrial stations
remain co-primary has expired. (see §§ 21.901(e), 74.502(c), 74.602(g),
78.18(a)(4), and 101.147(r)).

3.  Section 25.202(a)(1) is amended by modifying note 7 to read as
    follows:

**§ 25.202 Frequencies, frequency tolerance and emission limitations**.

(a)(1) Frequency bands. \* \* \*

\* \* \*

^7^ The band 18.8-19.3 GHz is shared co-equally with terrestrial
radiocommunications services until June 8, 2010.

\* \* \* \* \*

4.  Section 25.208 is revised and reordered to read as follows:

[**§ 25.208 Power flux-density limits**.]{.underline}

\* \* \* \* \*

\(c\) In the 18.3-18.8 GHz, 19.3-19.7 GHz, 22.55-23.00 GHz, 23.00-23.55
GHz, and 24.45-24.75 GHz frequency bands, the power flux-density at the
Earth\'s surface produced by emissions from a space station for all
conditions and for all methods of modulation shall not exceed the
following values:

\(1\) -115 dB (W/m^2^) in any 1 MHz band for angles of arrival between 0
and 5 degrees above the horizontal plane.

\(2\) -115+0.5 (d-5) dB (W/m^2^) in any 1 MHz band for angles of arrival
d (in degrees) between 5 and 25 degrees above the horizontal plane.

\(3\) -105 dB (W/m^2^) in any 1 MHz band for angles of arrival between
25 and 90 degrees above the horizontal plane.

(d) In addition to the limits specified in paragraph 26.138 of this
    Part, the power flux-density across the 200 MHz band 18.6-18.8 GHz
    produced at the Earth's surface by emissions from a space station
    under assumed free-space propagation conditions shall not exceed -95
    dB(W/m^2^) for all angles of arrival. This limit may be exceeded by
    up to 3 dB for no more than 5% of the time.

(e) In the 18.8-19.3 GHz frequency band, the power flux-density at the
    Earth\'s surface produced by emissions from a space station for all
    conditions and for all methods of modulation shall not exceed the
    following values:

-115 - X dB(W/m^2^ ·MHz) for 0° ≤ δ \< 5°

-115 - X + ((10 + X)/20)(δ - 5)dB(W/m^2^ ·MHz) for 5° ≤ δ \< 25°

-105 dB(W/m^2^ ·MHz) for 25° ≤ δ \< 90°

Where:

> δ: is the angle of arrival above the horizontal plane and
>
> X is defined as a function of the number of satellites in the non-GSO
> FSS constellation, n, as follows:

for n ≤ 50 X = 0 (dB)

for 50 \< n ≤ 288 X = (5/119) (n - 50) (dB)

for n \> 288 X = (1/69) (n + 402) (dB)

**PART 101---FIXED MICROWAVE SERVICES**

The authority citation for Part 101 continues to read as follows:

AUTHORITY: 47 U.S.C. 154, and 303.

5.  Section 101.85 is amended by revising paragraph (b) to read as
    follows:

**§ 101.85 Transition of the 18.58-19.3 GHz band from the terrestrial
fixed services to the fixed-satellite service (FSS)**

\* \* \*

(b) FS operations in the 18.58-19.30 GHz band that remain co-primary
    under the provisions of §§ 21.901(e), 74.502(c), 74.602(d),
    78.18(a)(4), and 101.147(r) will continue to be co-primary with the
    FSS users of this spectrum until June 8, 2010 or until the
    relocation of the fixed service operations, whichever occurs sooner,
    except for operations in the band 19.26-19.3 GHz and low power
    systems operating pursuant to section 101.47(r) (10), which shall
    operate on a co-primary basis until **(10 years after adoption of
    this First Report and Order on Reconsideration)**. If no agreement
    is reached during the negotiations, an FSS licensee may initiate
    relocation procedures. Under the relocation procedures, the
    incumbent is required to relocate, provided that the FSS licensee
    meets the conditions of Sec. 101.91.

\* \* \* \* \*

6.  Section 101.91(c) is amended by adding an additional sentence to the
    end of the paragraph to read as follows:

**§ 101.91 Involuntary relocation procedures**

\* \* \*

(c) \* \* \* The FS licensee may take up to 12 months to make such
    adjustments and perform such testing..

\* \* \* \* \*

7.  Section 101.95 is amended by revising the title to read as follows:

**§ 101.95 Sunset provisions for licensees in the 18.58-19.30 GHz
band**.

\* \* \* \* \*

8.  Section 101.97 is revised by adding an additional sub-paragraph (a)9
    as follows:

[**§ 101.97 Future licensing in the 18.58-19.30 GHz band**.]{.underline}

> \* \* \* \* \*

a(9) Changes in ownership or control.

9.  Section 101.147(r) is amended to read as follows:

**§ 101.147 Frequency assignments**

\* \* \* \* \*

\(r\) *17,700 to 19,700 and 24,250 to 25,250 MHz*: Stations operating on
the following frequencies in the band 18.58-18.8 GHz that were licensed
or had applications pending before the Commission as of June 8, 2010 may
continue those operations on a shared co-primary basis with other
services under Parts 21, 25, and 74 of the Commission\'s rules until
June 8, 2010, except for operations in the band 19.26-19.3 GHz and low
power systems operating pursuant to section 101.47(r) (10), which shall
operate on a co-primary basis until **(10 years after adoption of this
First Report and Order on Reconsideration)**. Those stations operating
on the following frequencies in the band 18.8-19.3 GHz that were
licensed or had applications pending before the Commission as of
September 18, 1998 may continue those operations on a shared co-primary
basis with other services under Parts 21, 25, and 74 of the
Commission\'s rules until June 8, 2010. After this date, operations in
the 18.58-19.30 GHz band are not entitled to protection from
fixed-satellite service operations and must not cause unacceptable
interference to fixed-satellite service station operations. No new Part
101 licenses will be granted in the 18.58-19.3 GHz band after June 8,
2010, except for certain low power operations authorized under Sec.
101.147(r)(10), which may continue to be licensed until April 1, 2002.
Licensees may use either a two-way link or one frequency of a frequency
pair for a one-way link and must coordinate proposed operations pursuant
to the procedures required in Sec. 101.103. (Note, however, that
stations authorized as of September 9, 1983, to use frequencies in the
band 17.7-19.7 GHz may, upon proper application, continue to be
authorized for such operations, consistent with the above conditions
related to the 18.58-19.3 GHz band.)

\* \* \* \* \*

10. Section 101.147(r)(10) is amended by adding a new subsection (iv) to
    read as follows:

**§ 101.147 Frequency assignments**

\* \* \* \* \*

\(r\) (10) \* \* \* \* \*

\* \* \* \* \*

\(iv\) Low power stations authorized in the bands 18.82-18.87 GHz and
19.16-19.21 GHz after June 8, 2000 are restricted to indoor use only. No
new licenses will be authorized for applications received after April 1,
2002.

# APPENDIX B {#appendix-b .unnumbered}

# Supplemental Final Regulatory Flexibility Analysis {#supplemental-final-regulatory-flexibility-analysis .unnumbered}

As required by the Regulatory Flexibility Act (RFA),[^224] an Initial
Regulatory Flexibility Analysis (IRFA) of the possible significant
economic impact on small entities was incorporated in the *18 GHz
NPRM*.[^225] The Commission sought written public comments on the
proposals in the *18 GHz NPRM* including comment on the IRFA. This
Supplemental Final Regulatory Flexibility Analysis (FRFA) conforms to
the RFA.[^226]

##  Need for, and Objectives of, the Rules

In this First Order on Reconsideration, the Commission changes the pfd
value for the 18.3-18.8 GHz frequency band to the values in section
25.208(c) to be consistent with the pfd limit in the Radio Regulations
of the International Telecommunications Union and delete section
25.208(d). This First Order on Reconsideration also determines that the
pfd level in section 25.138(a)(6) of -118 dBW/m^2^/MHz should apply to
all Geostationary Satellite Orbit/Fixed Satellite Service (GSO/FSS)
downlink bands in which the Commission permits blanket licensing. It
amends section 101.97 to clarify that an incumbent Fixed Service (FS)
licensee retains primary status notwithstanding a change in ownership or
control. Further, this First Order on Reconsideration clarifies that an
incumbent licensee is entitled to a twelve-month trial period after
relocation to test the new facilities. Upon reconsideration, this First
Order on Reconsideration also concludes that existing terrestrial
services operating in the 19.26-19.3 GHz band will not be allowed to
recover relocation reimbursement on a permanent basis, and will be
subject to the ten year sunset period applicable to other FS operations
in the 18 GHz band. This First Order on Reconsideration also takes the
following steps to better reconcile the competing interests of the new
entrants and the low-power terrestrial fixed service operators in
satellite bands: 1) cuts off any further low-power fixed service
applications under section 101.147(r)(10) as of April 1, 2002 (outdoor
applications were already cut off in the *18 GHz Order*); and 2) permits
low-power services authorized pursuant section 101.147(r)(10) to
continue to operate on a co-primary basis for a period of ten years,
subject to the right of satellite providers to require low-power
operators to relocate. Finally, this First Order on Reconsideration
deletes section 25.145(i) of our rules and reverses the Legacy List
policy that the Commission adopted in the *18 GHz Order*; thus, the
Commission will no longer require the use of the Legacy List
coordination process by an FSS space station licensee to alleviate
interference to a terrestrial fixed station.

**B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA**

No comments were submitted in direct response to the IRFA.

C.  **Description and Estimate of the Number of Small Entities To Which
    the Rules Will 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 adopted rules.[^227] The RFA generally defines the term
\"small entity\" as having the same meaning as the terms \"small
business,\" \"small organization,\" and \"small governmental
jurisdiction.\"[^228] In addition, the term \"small business\" has the
same meaning as the term \"small business concern\" under the Small
Business Act.[^229] A small business concern is one which: (1) is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
Small Business Administration (SBA).[^230] A small organization is
generally \"any not-for- profit enterprise which is independently owned
and operated and is not dominant in its field.\"[^231] Nationwide, as of
1992, there were approximately 275,801 small organizations.[^232]
\"Small governmental jurisdiction\" generally means \"governments of
cities, counties, towns, townships, villages, school districts, or
special districts, with a population of less than 50,000.\"[^233] As of
1992, there were approximately 85,006 such jurisdictions in the United
States.[^234] This number includes 38,978 counties, cities, and towns;
of these, 37,566, or 96 percent, have populations of fewer than
50,000.[^235] The Census Bureau estimates that this ratio is
approximately accurate for all governmental entities. Thus, of the
85,006 governmental entities, we estimate that 81,600 (91 percent) are
small entities. Below, we further describe and estimate the number of
small entity licensees that may be affected by the adopted rules.

1\. [International Services]{.underline}. The Commission has not
developed a definition of small entities applicable to licensees in the
international services. Therefore, the applicable definition of small
entity is generally the definition under the SBA rules applicable to
Communications Services, Not Elsewhere Classified (NEC).[^236] This
definition provides that a small entity is one with \$11.0 million or
less in annual receipts.[^237] According to the Census Bureau, there
were a total of 848 communications service providers, NEC, in operation
in 1992, and a total of 775 had annual receipts of less than \$9.999
million.[^238] The Census report does not provide more precise data.

2\. [Fixed Satellite Transmit/Receive Earth Stations]{.underline}.
Currently there are no operational fixed satellite transmit/receive
earth stations authorized for use in the 17.7-20.2 GHz and 27.5-30 GHz
band. However, with 12 GSO/FSS licensees and 1 NGSO/FSS licensee, and
our decision to adopt blanket licensing, we expect applications for FSS
earth station licenses to be filed in the near future. We do not request
or collect annual revenue information, and thus are unable to estimate
the number of earth stations that would constitute a small business
under the SBA definition.

3\. [Mobile Satellite Earth Station Feeder Links]{.underline}. We have
granted one license for MSS earth station feeder links. We do not
request or collect annual revenue information, and thus are unable to
estimate of the number of mobile satellite earth stations that would
constitute a small business under the SBA definition.

4\. [Space Stations (Geostationary)]{.underline}. Commission records
reveal that there are 12 space station licensees. We do not request nor
collect annual revenue information, and thus are unable to estimate of
the number of geostationary space stations that would constitute a small
business under the SBA definition, or apply any rules providing special
consideration for Space Station (Geostationary) licensees that are small
businesses.

5\. [Space Stations (Non-Geostationary)]{.underline}. There is one
Non-Geostationary Space Station licensee and that licensee is
operational. We do not request or collect annual revenue information,
and thus are unable to estimate of the number of non-geostationary space
stations that would constitute a small business under the SBA
definition.

6\. [Direct Broadcast Satellites]{.underline}. Because DBS provides
subscription services, DBS falls within the SBA definition of Cable and
Other Pay Television Services (SIC 4841). This definition provides that
a small entity is expressed as one with \$11.0 million or less in annual
receipts. As of December 1996, there were eight DBS licensees. However,
the Commission does not collect annual revenue data for DBS and,
therefore, is unable to ascertain the number of small DBS licensees that
could be impacted by these proposed rules. Although DBS service requires
a great investment of capital for operation, we acknowledge that there
are several new entrants in this field that may not yet have generated
more than \$11 million in annual receipts, and therefore may be
categorized as a small business, if independently owned and operated.

7\. [Auxiliary, Special Broadcast and other program distribution
services]{.underline}. This service involves a variety of transmitters,
generally used to relay broadcast programming to the public (through
translator and booster stations) or within the program distribution
chain (from a remote news gathering unit back to the station). At the
frequencies under consideration in this proceeding there are no
transmissions of this type directly to the public. The Commission has
not developed a definition of small entities applicable to broadcast
auxiliary licensees. Therefore, the applicable definition of small
entity is the definition under the Small Business Administration (SBA)
rules applicable to radio broadcasting stations (SIC 4832) and
television broadcasting stations (SIC 4833). These definitions provide,
respectively, that a small entity is one with either \$5.0 million or
less in annual receipts or \$10.5 million in annual receipts. 13 C.F.R.
§ 121.201, SIC CODES 4832 and 4833. The numbers of these stations are
very small. The FCC does not collect financial information on any
broadcast facility and the Department of Commerce does not collect
financial information on these auxiliary broadcast facilities. We
believe, however, that by themselves most, if not all, of these
auxiliary facilities could be classified as small businesses. We also
recognize that most of these types of services are owned by a parent
station which, in some cases, would be covered by the revenue definition
of small business entity discussed above. These stations would likely
have annual revenues that exceed the SBA maximum to be designated as a
small business (as noted, either \$5 million for a radio station or
\$10.5 million for a TV station). Furthermore, they do not meet the
Small Business Act\'s definition of a \"small business concern\" because
they are not independently owned and operated.

8\. [Microwave Services]{.underline}. Microwave services includes common
carrier, private operational fixed, and broadcast auxiliary radio
services. At present, there are 22,015 common carrier licensees,
approximately 61,670 private operational fixed licensees and broadcast
auxiliary radio licensees in the microwave services. Inasmuch as the
Commission has not yet defined a small business with respect to
microwave services, we will utilize the SBA\'s definition applicable to
radiotelephone companies \-- i.e., an entity with no more than 1,500
persons. 13 C.F.R. § 121.201, SIC CODE 4812. We estimate, for this
purpose, that all of the Fixed Microwave licensees (excluding broadcast
auxiliary licensees) would qualify as small entities under the SBA
definition for radiotelephone companies.

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

The Commission has adopted rules in this First Order on Reconsideration
that involve no reporting requirements.

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

The changes made by this First Order on Reconsideration do not affect
small entities disproportionately and it is likely no additional outside
professional skills will be necessary to comply with the rules and
requirements here listed. The *18 GHz NPRM* solicited comment on several
alternatives for spectrum sharing blanket licensing, and band
segmentation. This First Order on Reconsideration considered comments
offering alternatives, and has acted in response to stated concerns and
suggestions, particularly those representing significant agreement or
consensus by commenters. The decisions of this First Order on
Reconsideration should positively impact both large and small businesses
by providing a faster, more efficient, and less economically burdensome
coordination and licensing procedure.

**F.** **Report to Congress**

The Commission will send a copy of this First Order on Reconsideration
including this Supplemental FRFA, in a report to be sent to Congress
pursuant to the Small Business Regulatory Enforcement Fairness Act of
1966, *see* 5 U.S.C. § 801 (a)(1)(A). In addition, the Commission will
send a copy of this First Order on Reconsideration, including this
Supplemental FRFA, to the Chief Counsel for Advocacy of the Small
Business Administration. A copy of this First Order on Reconsideration
and Supplemental FRFA (or summaries thereof) will also be published in
the Federal Register. *See* 5 U.S.C. § 604(b).

**APPENDIX C**

# List of Oppositions/Comments and Reply Comments {#list-of-oppositionscomments-and-reply-comments .unnumbered}

Oppositions/Comments:

Astrolink

American Petroleum Institute (API)

Fixed Wireless Communications Coalition (FWCC)

GE Americom

Hughes Electronics Corporation (Hughes)

Independent Cable and Telecommunications Association (ICTA)

Pegasus

Satellite Industry Association (SIA)

Teledesic

TRW

Winstar

Reply Comments:

Astrolink

American Petroleum Institute (API)

Fixed Wireless Communications Coalition (FWCC)

Hughes Electronics Corporation (Hughes)

Lockheed Martin

Pegasus

Winstar

Late-Filed Reply Comments:

Fixed Wireless Communications Coalition

[^1]: *Redesignation of the 17.7-19.7 GHz Frequency Band, Blanket
    Licensing of Satellite Earth Stations in the 17.7-20.2 GHz and
    27.5-30.0 GHz Frequency Bands, and the Allocation of Additional
    Spectrum in the 17.3-17.8 GHz and 24.75-25.25 GHz Frequency Bands
    for Broadcast Satellite-Service Use*, Report and Order, IB Docket
    No. 98-172, 15 FCC Rcd 13430 (rel. June 22, 2000) (*18 GHz Order*).

[^2]: *See* Hughes Electronics Corporation, Petition for Partial
    Reconsideration, IB Docket No. 98-172 (filed Oct. 6, 2000) (Hughes
    petition); Fixed Wireless Communications Coalition, Petition for
    Reconsideration, IB Docket No. 98-172 (filed Sept. 29, 2000) (FWCC
    petition); Winstar Communications, Inc., *Petition for Clarification
    and Reconsideration*, IB Docket 98-172 (filed Oct. 10, 2000)
    (Winstar petition).

[^3]: *See* Letter from Samuel L. Feder, Harris, Wiltshire & Grannis, to
    Steven D. Selwyn, International Bureau, Federal Communications
    Commission (September 27, 2000) (*Teledesic Letter*). *See also*
    *Teledesic LLC v. FCC*, Petition for Review, Case No. 00-1466 (D.C.
    Cir. filed November 6, 2000) (*Teledesic Petition*)

[^4]: *Redesignation of the 17.7-19.7 GHz Frequency Band, Blanket
    Licensing of Satellite Earth Stations in the 17.7-20.2 GHz and
    27.5-30.0 GHz Frequency Bands, and the Allocation of Additional
    Spectrum in the 17.3-17.8 GHz and 24.75-25.25 GHz Frequency Bands
    for Broadcast Satellite-Service Use*, Notice of Proposed Rulemaking,
    IB Docket No. 98-172, 13 FCC Rcd 19923 (rel. June 22, 2000) (*18 GHz
    NPRM*).

[^5]: *Id.* at 19929-30, paras. 8, 9.

[^6]: *Id.* at 19928-29, para. 7.

[^7]: In the *18 GHz Order*, we stated that there are currently
    approximately 179,000 terrestrial fixed links in the 18 GHz band.
    *18 GHz Order* at 13435-36, para. 11.

[^8]: The 18 GHz band comprises a portion of the Ka-band for satellite
    services. The Ka-band refers to the space-to-Earth or downlink
    frequencies in the 17.7-20.2 GHz band along with the corresponding
    Earth-to-space or uplink frequencies at 27.5-30.0 GHz (the 28 GHz
    band).

[^9]: *18 GHz NPRM* at 19929-30, para. 9.

[^10]: *Id.* at 19925, para. 1.

[^11]: There are over 300 filings in the docket.

[^12]: *18 GHz Order* at 13431-32, para. 2.

[^13]: Capital letters identify services designated for primary domestic
    licensing priority, while lower case letters identify services
    designated for secondary domestic licensing priority.

[^14]: The 19.7-20.2 GHz band appears here merely to show the total
    spectrum available to the GSO/FSS.

[^15]: *18 GHz Order* at 13435-36, para. 11.

[^16]: *Id.* at 13438-39, para. 17.

[^17]: *Id.* at 13443-44, para. 28.

[^18]: *Id.*, *see also* *id.* at 13443, para. 28 n.61.

[^19]: *Id.* at 13443-44, para. 28.

[^20]: *Id.*

[^21]: *Id.* at 13451, para. 43.

[^22]: *Id.* at 13451-52, para. 44.

[^23]: *Id.* at 13452-53, para. 46.

[^24]: *Id.*

[^25]: *Id.* at 13460-61, para. 63.

[^26]: *Id.* at 13463-65, paras. 69-71.

[^27]: *Id.* at 13467-68, para. 77.

[^28]: *Id.*

[^29]: *Id.* at 13474, para. 93.

[^30]: *Id.* at 13475-77, para. 96; *see also* *18 GHz NPRM* at 19959
    n.116. This allocation was made in conformity with the corresponding
    ITU Region 2 allocation, although the Commission allocated only 400
    MHz to the BSS whereas the Region 2 allocation is for 500 MHz. *See
    also* ITU Radio Regulations Footnote S5.517

[^31]: *18 GHz Order* at 13479, para. 102.

[^32]: *Id.* at 13479-80, para. 102-106.

[^33]: *See* Hughes petition, FWCC petition and Winstar petition, n.2
    *supra*; *see also Teledesic Letter*.

[^34]: *See* Teledesic has also filed a petition for review of the *18
    GHz Order* in the U.S. Court of Appeals for the District of Columbia
    Circuit. *See Teledesic Petition*.

[^35]: *Id.* at 12.

[^36]: *Id.* at 13.

[^37]: *See* 5 U.S.C. § 553(b)(3) (requiring agencies to provide
    adequate notice of and a meaningful opportunity to comment on
    proposed rules being considered).

[^38]: Hughes petition at 15.

[^39]: *Id.* at 16.

[^40]: *Id.*

[^41]: *Id.* at 17.

[^42]: *Id.*

[^43]: *Id.* at 20-22.

[^44]: *Id.* at 22-23.

[^45]: *Id.* at 23-25.

[^46]: *Id.* at 24.

[^47]: *Id.*

[^48]: *Id.* at 23-25.

[^49]: *See* *Rulemaking to Amend Parts 1, 2, 21, and 25 of the
    Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band,
    to Reallocate the 29.5-30.0 GHz Frequency Band, to Establish Rules
    and Policies for Local Multipoint Distribution Service and for Fixed
    Satellite Service*, First Report and Order and Fourth Notice of
    Proposed Rulemaking, CC Docket No. 92-297, 11 FCC Rcd 19005 (1996)
    (*28 GHz First Report and Order*). The *28 GHz First Report and
    Order* established a band plan for the Ka-band.

[^50]: Hughes petition at 5-6.

[^51]: *Id.* at 9.

[^52]: *Id.* at 10.

[^53]: *Id.* at 18.

[^54]: FWCC petition at 1.

[^55]: *Id.* at 1-2. Channelization refers to the process of subdividing
    bandwidth into smaller increments. *See* *Newton's Telecom
    Dictionary*, 15th edition at 168. Channelization allows applicants
    to apply only for the spectrum they actually need, and therefore can
    promote more efficient spectrum use.

[^56]: *Id.* at 4.

[^57]: *Id*.

[^58]: Winstar petition at 6-8.

[^59]: *Id.* at 10-11.

[^60]: *Id.* at 12-14.

[^61]: *Id.* at 16-18.

[^62]: *Id.* at 18-19.

[^63]: Teledesic letter at 1.

[^64]: *See* *Teledesic Petition*.

[^65]: *See* Appendix C.

[^66]: *See* *Central Florida Enterprises v. FCC*, 598 F.2d 37, 48 n.51
    (D.C. Cir. 1978), *cert. dismissed*, 441 U.S. 957 (1979) (holding
    that the filing of a petition for reconsideration tolls the normal
    30-day limit on Commission action to reconsider a decision *sua
    sponte*).

[^67]: FWCC petition at 4-5.

[^68]: *18 GHz Order* at 13455-56, para. 52.

[^69]: *See* Astrolink comment at 9-10.

[^70]: *See* Teledesic opposition at 2.

[^71]: WRC's are regular international conferences held under the
    auspices of the International Telecommunications Union (ITU),
    headquartered in Geneva, Switzerland. The ITU is the specialized
    agency of the United Nations dealing with international
    telecommunications matters.

[^72]: *See* Teledesic reply comments at 9-10, IB Docket 98-172 (filed
    December 21, 1998).

[^73]: *See* TIA-Fixed Section comments at 3-4, IB Docket 98-172 (filed
    November 19, 1998).

[^74]: *See* Letter from Mark A. Grannis on behalf of Teledesic to
    Donald S. Abelson, Chief, International Bureau, FCC, IB Docket
    98-172, (November 30, 1999).

[^75]: *Teledesic LLC v. FCC*, Brief for Petitioner Teledesic, Case No.
    00-1466 (D.C. Cir. filed April 30, 2001) (*Teledesic Brief*) at
    45-46.

[^76]: *18 GHz Order* at 13463-64, para. 69.

[^77]: *Id.*

[^78]: *Id.*

[^79]: *18 GHz Order* at 13467-70, paras. 76-84.

[^80]: FWCC petition at 5-6.

[^81]: *See* Fixed Wireless Communications Coalition, *Ex parte*
    Presentation, IB Docket 98-172, (July 27, 2001).

[^82]: *18 GHz Order* at 13459, para.58.

[^83]: *Id*. at 13457-58, para. 56.

[^84]: *18 GHz NPRM* at 19939, para. 33.

[^85]: *18 GHz Order* at 13459, para. 58.

[^86]: Hughes petition at 16-17; Astrolink opposition and comments at 8.

[^87]: *Id.*

[^88]: Hughes petition at 16-17.

[^89]: *Id.*

[^90]: Hughes petition at 16-18; Astrolink opposition and comments at 8;
    GE Americom comments at 5.

[^91]: *18 GHz Order* at 13459, para. 58.

[^92]: *See* Comments and Opposition to Petition for Clarification and
    Reconsideration of Pegasus Development Corporation, November 13,
    2000 (Pegasus opposition). We note that Pegasus's arguments with
    respect to the 17.7-17.8 GHz band were not raised in a timely filed
    petition for reconsideration, but rather in objections/comments to
    timely filed petitions in this proceeding, and thus are not properly
    before the Commission. Nevertheless, to ensure that all possible
    issues in the 18 GHz band are resolved, the Commission on its own
    motion considers the issues raised by Pegasus.

[^93]: *18 GHz Order* at 13475-77, para. 96.

[^94]: *18 GHz Order* at 13477-78, paras. 97-99.

[^95]: *18 GHz Order* at 13477, para. 98.

[^96]: *18 GHz Order* at 13477-78, para. 99.

[^97]: Pegasus opposition at 8-9.

[^98]: *See Teledesic Brief* at 38-39.

[^99]: *See 18 GHz NPRM* at 19943, para. 42.

[^100]: *See* Teledesic comments at 6, IB Docket 98-172 (filed November
    19, 1998) (*Teledesic Comments*).

[^101]: *Id.*

[^102]: *Id.*

[^103]: *See 18 GHz Order* at 1347-58, para. 56.

[^104]: *See Teledesic LLC v. FCC*, Reply Brief, No. 00-1466 (D.C. Cir.
    filed xx date) (*Teledesic Reply Brief*) at 19.

[^105]: *See Teledesic Reply Brief* at 20.

[^106]: *18 GHz Order* at 13432, para. 4.

[^107]: *See 18 GHz Order* at 13460-61, para. 63.

[^108]: 47 C.F.R. § 101.147(r)(10).

[^109]: *See* *Teledesic Comments.*

[^110]: *See* *Teledesic Reply Brief* at 20.

[^111]: *18 GHz Order* at 13460-61, 13464-70, paras. 63, 70-84.

[^112]: 47 C.F.R § 15.247.

[^113]: *See* 47 C.F.R. § 15.5(b).

[^114]: *18 GHz Order* at 13451, para. 43.

[^115]: *Id.* at 13451-52, para. 44.

[^116]: *Id.* at 13452-53, para. 46.

[^117]: Hughes petition at 13-14.

[^118]: *Id.*

[^119]: Astrolink opposition and comments at 10-11.

[^120]: SIA comments at 2.

[^121]: Hughes petition at 12; SIA opposition and comments at 5.

[^122]: *See* *18 GHz Order* at 13451-52, para. 44.

[^123]: 47 C.F.R. § 25.138.

[^124]: S*ee* 47 C.F.R. § 25.138(c).

[^125]: Hughes petition at 24.

[^126]: *Id.*

[^127]: GE Americom supports Hughes's request for modifications to the
    technical rules. GE Americom comments at 7-8.

[^128]: Astrolink opposition and comments at 15.

[^129]: Astrolink reply at 4-6.

[^130]: Pegasus comment and reply at 1-2, Astrolink opposition and
    comments at 15.

[^131]: Lockheed Martin comments at 2-3.

[^132]: *Id.*

[^133]: *Id.*

[^134]: GE Americom comments at 7-8.

[^135]: Astrolink opposition and comments at 12-17.

[^136]: SIA comments at 5.

[^137]: Hughes petition at 22-23; SIA comments at 5.

[^138]: SIA comments at 5.

[^139]: SIA comments at 5.

[^140]: Hughes petition at 23.

[^141]: *Id.*

[^142]: *18 GHz Order* at 13471, para. 87.

[^143]: Teledesic opposition at 3.

[^144]: *Id.*

[^145]: Astrolink opposition and comments at 6.

[^146]: Teledesic opposition at 9.

[^147]: *See* 47 C.F.R. § 101.89.

[^148]: Astrolink opposition and comments at 6-7.

[^149]: Winstar petition at 11.

[^150]: Winstar petition at 9-10.

[^151]: *Id.*

[^152]: *See* 47 C.F.R. § 101.89(d) ("Negotiations will be conducted
    with the goal of providing the FS licensee with comparable
    facilities.").

[^153]: *See* *18 GHz Order* at para. 82 n.167.

[^154]: *See* 47 C.F.R. § 101.89(d)(1).

[^155]: *See* 47 C.F.R. § 101.91(b)(1).

[^156]: *See* *Amendment to the Commission's Rules Regarding a Plan for
    Sharing the Costs of Microwave Relocation*, 11 FCC Rcd 8825, 8840-41
    (1996) (*2 GHz Relocation Order*), at para. 28 (addressing
    relocation of microwave facilities operating in the 1850 to 1990 MHz
    or "2 GHz" band.).

[^157]: *Id*. at para. 29.

[^158]: *Id*. at para. 29.

[^159]: *Id.*

[^160]: *See* 47 C.F.R. §101.89(d)(1), as adopted in the *18 GHz Order*.

[^161]: *See* *18 GHz Order* at 13437, para. 14 n.27.

[^162]: Winstar petition at 11.

[^163]: Astrolink opposition and comments at 3.

[^164]: Hughes opposition at 4-5.

[^165]: Pegasus opposition at 5-6.

[^166]: Teledesic opposition at 11.

[^167]: *Id.*

[^168]: *Id.*

[^169]: FWCC comments at 2; Winstar petition at 12.

[^170]: Winstar petition at 13.

[^171]: *Id.*

[^172]: Winstar petition at 13-14.

[^173]: Astrolink opposition/comments at 4. Astrolink argues that if
    other media are not available or otherwise inappropriate, then they
    obviously cannot be substituted as replacement facilities.
    Therefore, Winstar's concern is unfounded because a relocated FS
    operator will either obtain comparable facilities, as defined by the
    Commission, or continue to use its existing facilities. Astrolink
    argues the Commission should permit all potential replacement
    facility options to be explored and utilized, so long as they are
    comparable, rather than arbitrarily exclude certain options from the
    outset, as proposed by Winstar. *Id.*

[^174]: Hughes opposition at 5; SIA comments at 7-8. Hughes and SIA
    argue that alternative media, such as fiber, wireline or even
    satellite networks will provide the necessary flexibility in the
    relocation process. According to Hughes, to foreclose the option to
    relocate existing licensees to comparable facilities in alternative
    media would force the Commission into the position of choosing
    between competing but comparable technologies. Hughes and SIA argue
    that as long as the alternative media facilities are "comparable"
    under the Commission's rules, licensees have no basis for concern.
    Hughes argues that the alternative media simply need to meet the
    Commission's tests for throughput, reliability and operating cost,
    the same as a terrestrial fixed wireless relocation option.

[^175]: Teledesic opposition at 11-12. Teledesic argues that fiber
    networks and other options may sometimes be a reasonable relocation
    option and therefore should be considered. Teledesic further argues
    that where fiber is not cost-effective, the new entrant is unlikely
    to suggest it since the new entrant will be paying for it. *Id.*

[^176]: *18 GHz Order* at 13466, para. 73, Appendix A, Section
    101.85(a).

[^177]: *See* 47 C.F.R. § 101.91(c).

[^178]: *See* *18 GHz Order* at 13464-65, paras. 71-72.

[^179]: *Id.*

[^180]: *See* paras. 49-51 *supra*.

[^181]: Astrolink opposition and comments at 5-6.

[^182]: *See* *18 GHz Order* at 13469-50, para. 82.

[^183]: *Id.*

[^184]: Hughes opposition at 8-9. Hughes further argues that Winstar
    seeks solely to delay the relocation process, increasing its
    bargaining leverage with satellite licensees. *Id.* According to
    Hughes, adding to the current two-year mandatory negotiation period
    simply increases the time terrestrial fixed operators have to
    operate until subject to involuntary relocation. *Id.* Hughes and
    Teledesic argue that voluntary periods allow incumbents to refuse to
    negotiate unless new entrants pay a premium, and this has happened
    to those involved with relocation pursuant to the *2 GHz Relocation
    Order*. Hughes opposition at 8-9; Teledesic opposition at 8.

[^185]: Winstar petition at 16-18. The *2 GHz Relocation Order* provides
    that if a new facility was not found to be comparable during the
    first twelve months of operation, the PCS licensee must either cure
    the problem, restore the incumbent to its original frequency, or
    relocate it to an equivalent 2 GHz frequency. *2 GHz Relocation
    Order* at para. 44.

[^186]: Winstar petition at 17.

[^187]: *Id.* at 18.

[^188]: *Id.* at 16-18.

[^189]: Teledesic opposition at 10-11; Astrolink opposition and comments
    at 4-5.

[^190]: Hughes opposition at 5-8, TRW opposition at 5-6.

[^191]: TRW opposition at 5-6.

[^192]: *Id.*

[^193]: Astrolink opposition and comments at 4-5.

[^194]: Pegasus opposition at 6-8. Pegasus further argues that the
    Commission denied a right of return specifically to provide FSS
    licensees flexibility to develop their operations in a timely and
    economic manner, due the disruption it would cause to national,
    regional and global satellite systems for the benefit of relatively
    few terrestrial fixed incumbents. Pegasus argues that a right of
    return is not necessary in light of the Commission's other
    procedural safeguards, such as the rules requiring the FSS licensee
    pay all relocation costs and complete all necessary activities for
    implementing replacement facilities, including testing and a
    reasonable time to ensure a seamless handoff. *Id.*

[^195]: *See* 47 C.F.R. §§ 101.91(a)(1)-(3) (providing that the FSS
    licensee must, *inter alia*, guarantee payment of relocation costs,
    complete all activities necessary for implementing the replacement
    facilities and build the replacement facilities and test it for
    comparability).

[^196]: SIA comments at 8, Hughes opposition at 5-8

[^197]: *See* 47 C.F.R. § 101.91(c).

[^198]: *See* 47 C.F.R. § 101.91(d).

[^199]: *See* *Biennial Regulatory Review \-- Amendment of Parts 0, 1,
    13, 22, 24, 26, 27, 80, 87, 90, 95, 97 and 101 of the Commission's
    Rules to Facilitate the Development and Use of the Universal
    Licensing System in the Wireless Telecommunications Services*,
    Report and Order, WT Docket No. 98-20, 13 FCC Rcd 21027 (1998) (*ULS
    Order*).

[^200]: 47 C.F.R. § 1.929.

[^201]: Winstar petition at 7, API reply at 4.

[^202]: *Id.*

[^203]: Winstar petition at 6-7.

[^204]: *See* 47 C.F.R. § 101.97(a).

[^205]: *See* 47 C.F.R. § 101.97(a)(1)-(8).

[^206]: 47 C.F.R. § 101.97(a).

[^207]: *See* 47 C.F.R. § 101.81. The language in section 101.97
    parallels the language adopted in section 101.81, the rule that
    dealt with the same issue for fixed microwave users in the *2 GHz
    Relocation Order*. *Id.* In the 2 GHz proceeding, the Commission
    noted that, "existing 2 GHz fixed facilities licensed before January
    16, 1992, are permitted to make modifications and minor extensions
    and retain their primary status" and listed modifications in
    "ownership or control" among the acceptable modifications that
    warrant continued primary status. *Redevelopment of Spectrum to
    Encourage Innovation in the Use of New Telecommunications
    Technologies*, Third Report and Order, ET Docket No. 92-9, 8 FCC Rcd
    6589, 6611 (*Emerging Technologies Third Report and Order*) at
    paras. 53-54.

[^208]: API reply at 1-5. Specifically, API argues that its industry
    relies heavily on private microwave facilities to provide important
    safety-related functions, and that they have been experiencing a
    high level of mergers and acquisitions that may result in license
    assignments or transfers. *Id.* API further argues that if these
    transactions lead to a loss of the right to relocation compensation,
    it will impair the marketability and/or market value of these
    companies, as well as other 18 GHz FS incumbents, and may impede the
    ability of these companies to continue to maintain the microwave
    facilities needed to conduct their operations safely and
    efficiently. *Id.*

[^209]: API reply at 6-7. API also argues that, in the latter case, in
    the rare event that a particular applications appears to involve
    trafficking in a license itself or sale of a license no longer
    needed, it would be within the Commission's discretion to condition
    grant on the acceptance of secondary status. *Id.*

[^210]: Teledesic opposition at 6.

[^211]: *See* *18 GHz Order* at 13468, para. 78. To determine
    comparability we would consider, *inter alia*, system reliability,
    capability, speed, bandwidth, throughput, overall efficiency, bands
    authorized for such services, and interference protection. *See* 47
    C.F.R. § 101.89(d)(1)-(3).

[^212]: *See e.g.*, *MSS Allocation*, 15 FCC Rcd 12352-53, paras.
    111-112, 118 ("\[A\]ny further relief from relocation costs for MSS
    licensees, such as allowing them to pay only the depreciated value
    of the equipment operated by incumbents, would be contrary to the
    policies we established in our Emerging Technologies proceeding, and
    would threaten the integrity and continuity of the services provided
    to the public by incumbent 2 GHz licensees. ... Relocation is not a
    question of compensation, but rather a requirement that the new
    technology licensees take upon themselves the burden of all actions
    necessary to provide incumbents with comparable facilities.");
    Amendment of the Rules Regarding Sharing the Costs of Microwave
    Relocation, 11 FCC Rcd 8825, 8844 at para. 34 (1996)
    ("\[C\]ompensation for the depreciated value of the old equipment
    would not enable \[incumbents\] to construct a comparable
    replacement system without imposing costs on the incumbent, which
    would be inconsistent with our relocation rules.")

[^213]: *18 GHz Order* at 13468, para. 78.

[^214]: *Emerging Technologies Third Report and Order* at 6603-04 paras.
    36-38.

[^215]: *Id.*

[^216]: *See* 47 C.F.R. § 101.91(a)(1), *see also* *Emerging
    Technologies Third Report and Order* at 6603-04 paras. 36.

[^217]: *18 GHz Order* at para. 78.

[^218]: *See* *Emerging Technologies Third Report and Order* at 6603-04
    paras. 36.

[^219]: *Id.*

[^220]: *Id.*

[^221]: *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, 15 FCC Rcd 12315, para. 109 (2000).

[^222]: *See Hall v. McLaughlin*, 864 F.2d at 872.

[^223]: *See, e.g., 18 GHz Order* at 13468, para. 80.

[^224]: *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).

[^225]: *See* *Redesignation of the 17.7-19.7 GHz Frequency Band,
    Blanket Licensing of Satellite Earth Stations in the 17.7-20.2 GHz
    and 27.5-30.0 GHz Frequency Bands, and the Allocation of Additional
    Spectrum in the 17.3-17.8 GHz and 24.75-25.25 GHz Frequency Bands
    for Broadcast Satellite-Service Use*, Notice of Proposed Rulemaking,
    IB Docket No. 98-172, 13 FCC Rcd 19923 (1998) (*18 GHz NPRM*). at
    Appendix B.

[^226]: 5 U.S.C. § 604.

[^227]: 5 U.S.C. § 603(b)(3).

[^228]: *Id.* § 601(6).

[^229]: 5 U.S.C. § 601(3). (incorporating by reference the definition of
    \"small business concern\" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies \"unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after the opportunity for public
    comment, establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register.\" 5 U.S.C. § 601(3).

[^230]: Small Business Act, 15 U.S.C. § 632 (1996).

[^231]: 5 U.S.C. § 601(4).

[^232]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^233]: 5 U.S. C. § 601(5).

[^234]: U.S. Dept. of Commerce, Bureau of the Census, *1992 Census of
    Governments*.

[^235]: *Id.*

[^236]: An exception is the Direct Broadcast Satellite Service (DBS),
    *infra*.

[^237]: 13 C.F.R. § 120.121, SIC code 4899.

[^238]: 1992 Economic Census Industry and Enterprise Receipts Size
    Report, Table 2D, SIC code 4899 (U.S. Bureau of the Census data
    under contract to the Office of Advocacy of the Small Business
    Administration).