**FCC STAFF REPORT ON NTIA'S STUDY OF**

**CURRENT AND FUTURE SPECTRUM USE BY THE**

**ENERGY, WATER AND RAILROAD INDUSTRIES**

Congress has directed the National Telecommunications and Information
Administration (NTIA) Administrator, "after consultation with other
federal agencies responsible for regulating the core operations of
entities engaged in the provision of energy, water and railroad
services," to "complete and submit to Congress . . . a study of the
current and future use of spectrum by these entities to protect and
maintain the nation's critical infrastructure."[^1] In the statute,
Congress also directed the "Chairman of the Federal Communications
Commission \[to\] submit a report to Congress on actions that could be
taken by the Commission to address any needs identified in the
Administrator's study."[^2] On January 30, 2002, NTIA submitted its
report to Congress (*NTIA Report*).[^3]

This Report addresses matters identified in the *NTIA Report*[^4] and it
reflects the Federal Communications Commission's efforts to meet the
communications needs of the energy, water and railroad industries.
Energy, water and railroad interests are critical to the nation's
infrastructure and rely on radio spectrum to perform core operations,
ranging from routine monitoring to emergency responses.[^5] The
Commission is especially sensitive to needs involving domestic security
concerns.[^6] Therefore, the spectrum needs of the designated industries
as well as others must be very carefully balanced and efficient use of
the spectrum must be encouraged. Recent and ongoing actions of the
Commission, as will be discussed, demonstrate how the Commission is
responding to maximize the use of the airwaves.

The Report is divided into three sections. Section I provides the
background on the *NTIA Report* and this Report, presents the major
concerns identified in the *NTIA Report*, and offers an overview of the
communications systems used by the energy, water and railroad industries
("designated industries") and the bands currently used by these
industries. Section II addresses major actions that the Commission has
taken to address the spectrum requirements of the designated industries.
Section III provides the FCC Staff's response to the matters identified
by NTIA.

**I. BACKGROUND**

A.  **Procedural History**

In preparation for the *NTIA Report*, on April 9, 2001, NTIA solicited
comments from industry and the public.[^7] The agency sought information
on any issues of fact, law or policy that would inform the agency about
spectrum requirements of the designated industries, taking into account
growth, new technology, and future applications.[^8] In response,
nineteen parties filed comments, of which five comments were from
industry trade organizations.[^9] On July 5, 2001, NTIA also sent
letters to federal agencies with regulatory oversight over the
designated industries, seeking information related to their oversight of
these industries and spectrum requirements. NTIA received replies from
the Department of Energy, the Federal Energy Regulatory Commission, and
the Environmental Protection Agency.[^10] Additionally, NTIA solicited
relevant information from the Interdepartment Radio Advisory Committee
and Public Safety Wireless Network.[^11]

After the *NTIA Report* was submitted to Congress, the Commission's
Wireless Telecommunications Bureau requested public comment on the
report.[^12] Various associations, utility companies, water authorities
and the U.S. Department of Transportation (DOT) provided comments. The
vast majority of those filing comments with the Commission support the
*NTIA Report's* assertions.[^13]

> **B. NTIA Report**

The *NTIA Report* acknowledged the vital roles that the railroad, water
and energy industries play in the Nation's critical infrastructure[^14]
and that the events of September 11^th^ underscored the importance of
these industries not only in the daily lives of the public, but also in
times of disaster response and recovery.[^15] Based "predominantly on
comments received . . . and information from federal agencies with
oversight or regulatory authority over these industries,"[^16] the
report made a number of statements based on the record, which fall into
three main categories of concern. Those categories are: (1) access to
additional spectrum,[^17] (2) spectrum congestion and interference,[^18]
and (3) the limitations of commercial technological applications.[^19]

The *NTIA Report* also notes a number of other concerns with regard to
the comments that it received, such as a lack of consensus with respect
to where spectrum can be reallocated or obtained.[^20] Further, the
*NTIA Report* notes that NTIA received a limited response on the issue
of whether the energy, water and railroad industries use
spectrum-efficient technology.[^21] Moreover, the *NTIA Report* points
out that generally, the comments to NTIA were not specific with respect
to the frequency bands that the designated industries use.[^22]
Accordingly, the *NTIA Report* states that the agency is "unable to
validate specific \[radio spectrum\] requirements" of the energy, water
and railroad industries" and "issues highlighted . . . \[in the *NTIA
Report*\], such as exclusivity and congestion."[^23]

**C. Overview of Designated Industries' Systems**

According to the record gathered by NTIA, providers of energy, water and
railroad services rely on wireless radio systems as both an effective
and efficient way to process critical voice and data information that
allows for the day-to-day control of their systems.[^24] They rely on
wireless technologies for routinely assessing their systems, as well as
to perform maintenance and repair functions.[^25] In addition, some
utilities use wireless technology to facilitate compliance with timely
system restoration or emergency notification requirements that may be
imposed by various state laws.[^26]

In the energy industry, companies may use wireless technology while
prospecting for petroleum and in the distribution by pipeline of
fuels.[^27] Wireless technology is also used in maintaining the security
of nuclear power plants.[^28] Moreover, the producers, suppliers and
distributors of electric energy use wireless systems to monitor and
inspect power transmission lines, reroute or "switch" electricity
safely, and coordinate the activities of work crews.[^29] For example,
when companies are pulling electrical lines, workers are often separated
because the ends of the electrical line are far apart.[^30] Wireless
technology plays an important role in helping workers coordinate their
efforts to pull the lines safely and properly.[^31]

Water utilities also rely on wireless technologies for a variety of
purposes in their systems of pipelines, mains, reservoirs and
aqueducts.[^32] Use of wireless technologies can enable these utilities
to immediately report the status of leaks, malfunctions or problems
found during inspections by field personnel.[^33] Moreover, wireless
technology plays a critical function while shutting down portions of
plant facilities, where any error in communications could result in the
loss of vast quantities of water or the loss of lives of personnel
performing the shut down.[^34]

The railroad industry uses wireless technologies to: monitor and control
train functions; provide communications between train and dispatch
centers; maintain tracks, roadbeds and rights-of-way; in switching
(*i.e.*, moving train cars from one set of tracks to another); and set
track switches.[^35] Moreover, wireless technologies also will be
important in implementing the advanced civil speed enforcement system or
Positive Train Control systems.[^36] These data communications and
computer-based technologies are designed to assist railroad personnel in
controlling train movement, train separation, and route alignment.
Railroad industry activity has focused on employing Positive Train
Control systems to protect against train collisions and incursions into
locations reserved for roadway workers, and enforcing train speed
restrictions.[^37]

Commenters generally agree with the *NTIA Report* that the designated
industries rely on wireless communication networks to process voice and
data information and to comply with current safety, operational, and
other regulatory requirements.[^38] They generally indicate that
wireless services offer a reliable means of maintaining command,
coordination, and control during ordinary daily and emergency
situations.[^39] Commenters explain that wireline services are not an
adequate alternative to wireless services because the former are not
mobile, can be disabled when they are needed the most, and are generally
not as cost-effective to them.[^40] Therefore, the providers of energy,
water, and railroad services are generally supportive of NTIA's concern
that, without adequate spectrum, they would be unable to address major
service interruptions due to natural disasters or equipment
malfunctions.[^41]

The designated industries are looking to wireless systems as providing
an effective and efficient means of communication during
emergencies,[^42] such as in situations where there are service
interruptions due to natural disaster, equipment malfunctions or
terrorist activities.[^43] AAR points out that when natural or man-made
disasters occur, the circuits of telephone companies may be busy or
simply not work.[^44] In such situations, the designated industries must
rely on their own communications networks to perform work that can
become extremely important to the larger community.[^45] Any degradation
or interruption in the wireless radio systems used by the industries
during emergency periods could significantly hamper the efforts of
emergency responders and law enforcement, whose success can depend upon
the swift and timely receipt of critical information.[^46] Moreover, the
lack of adequate technology can certainly place at risk the success of
responses involving multiple jurisdictions.[^47]

**D. Bands Used by Energy, Water and Railroad Systems**

Currently, the designated industries use frequencies across a very wide
range of bands, primarily between 20 MHz and 25 GHz.[^48] Radio systems
are most commonly found in the PLMR service bands (150-174 MHz, 450-512
MHz, 806-821/851-866 MHz, 896-901/935-940 MHz), Location and Monitoring
Service band (902-928 MHz), the Fixed Microwave Service bands (2.4/5
GHz) and microwave links in many bands from 2 GHz to 19 GHz or higher,
and MAS band (928/952/956 MHz, 928/959 MHz, and 932/941 MHz).[^49]
Additionally, in the 1.614 MHz and 2 MHz bands, usage may be authorized
in connection with prospecting for petroleum, natural gas, or petroleum
products; distribution of electric power; the distribution by pipeline
of fuels or water; exploration and the repair of pipelines; and the
repair of telecommunications circuits.[^50]

Most commenters indicate that spectrum allocations beyond those for
which current Commission regulations provide are needed to meet the
communications needs of the designated industries.[^51] However, only a
few commenters specifically quantified their needs.[^52] As was
similarly reported in the *NTIA Report,* only a few commenters propose
where available spectrum could be found.[^53] Appendix A to this Report
shows the Commission either provides for use or is currently examining
for potential use by the designated industries virtually all of the
bands identified in the *NTIA Report*.[^54]

**II. FCC EFFORTS TO ADDRESS MATTERS IN THE NTIA REPORT**

In fulfilling the statutory obligation to "address any needs identified"
by the *NTIA Report*, a difficulty arises for the Commission in that the
*NTIA Report* does not independently validate or investigate any
specific needs or requirements of the designated industries. The Report
offers information provided by industry commenters as the basis for its
review. Nonetheless, as specified previously, the *NTIA Report* reflects
three major areas of concern.[^55] The Commission is continually
evaluating spectrum implications with regard to promoting safety of life
and property that involve these issues.[^56] Accordingly, the Commission
has undertaken, as this Report will demonstrate, a number of proceedings
that have a positive impact on the spectrum needs of the energy, water
and railroad industries and address concerns raised by parties who
commented on the *NTIA Report*. The discussion next turns to a detailed
examination of the Commission's efforts to address the three major areas
of concern reflected in the *NTIA Report* with respect to the designated
industries, namely: access to spectrum, spectrum congestion and
interference, and the limitation of commercial technological
applications.

**A. Access to Additional Spectrum**

As previously noted, the designated industries use spectrum between 20
MHz and 25 GHz.[^57] Even though spectrum is available in these bands
for use by the designated industries, the *NTIA Report* indicates that
commenters believe that access to additional spectrum is needed.[^58]
Accordingly, the *NTIA Report* summarizes the frequency bands that the
designated industries believe they could use.[^59] In light of the *NTIA
Report's* identification of access to additional spectrum as a concern
of the designated industries, this section of the report addresses the
Commission's allocation and licensing of spectrum that could be used by
the designated industries.[^60] Specifically, since 1995, the Commission
has evaluated over 56 megahertz of additional spectrum for potential use
by the designated industries in some of the bands identified in the
*NTIA Report*.[^61] This spectrum covers a large swath between 20 MHz
and 25 GHz.

1.  **27 MHz Reallocation of Government Spectrum**

As mentioned above, the *NTIA Report* indicates that commenters believe
additional access to spectrum in the 216--220 MHz band and the
1427--1432 MHz band could be used by the designated industries.[^62] In
the *Government Transfer Bands R&O*, the Commission amended its rules to
permit secondary telemetry operators the flexibility to utilize the
216--220 MHz band.[^63] These changes were designed to enhance the use
of the 217-220 MHz band for radio services provided by utilities and
pipeline companies.[^64]

In addition to the amendments affecting the 216--220 MHz band, the
Commission also amended its rules with regards to the use of telemetry
in the 1427--1432 MHz band.[^65] Specifically, the Commission elevated
telemetry to primary status in the 1429--1432 MHz band, and non-medical
telemetry maintained secondary status in the 1427--1429.5 bands.[^66]
These decisions also help to relieve congestion and may lead to the
development of new technologies and services.

**2. 700 MHz Band**

AAR, in comments to the *NTIA Report*, indicated that the railroad
industry believes it could use spectrum in the 700 MHz Guard Band for
future expansion.[^67] Moreover, AAR indicated that this spectrum should
be licensed by geographic area to guard band managers.[^68] The 700 MHz
Guard Band spectrum consists of six megahertz of spectrum in the 746-776
and 776-794 MHz bands.[^69] As AAR suggested, the Commission adopted
rules authorizing guard band managers for this spectrum.[^70] A guard
band manager has the ability to lease the rights to use its spectrum to
third parties through private, contractual agreements without having to
secure prior approval by the Commission.[^71] Additionally, a band
manager is responsible for performing a valuable frequency coordination
function.[^72] Thus, guard band managers may aptly be called "next
generation" frequency coordinators. The Commission has assigned licenses
to entities which specifically function as guard band managers,
consistent with the technical rules adopted to protect public safety
users in adjacent bands.[^73] Generally, the 700 MHz Guard Band is
available to the designated industries, to include the railroad
industry, through the use of "guard band managers."

**3. PLMR Audit Below 512 MHz**

UTC seeks access to exclusive spectrum in the 450 MHz band[^74] because
the energy industry uses spectrum in this band.[^75] The *NTIA Report*
states that energy providers seek exclusive spectrum because they share
spectrum with a broad range of users in the Industrial/Business Pool of
frequencies.[^76] Consequently, some energy providers experience ambient
noise in this frequency band, as well as harmful interference.[^77] To
reduce the possibility of the ambient noise and harmful interference,
these energy providers seek exclusive spectrum in this frequency band.

Although spectrum is available in this band, the spectrum is licensed on
a shared basis.[^78] Thus, energy providers cannot receive exclusive
spectrum in this band. However, access to additional spectrum in this
band is possible. Currently, the Commission's Wireless
Telecommunications Bureau is conducting an audit of PLMR spectrum below
512 MHz to ensure efficient spectrum use.[^79] This audit will determine
the construction and operational status of PLMR stations licensed below
512 MHz that are subject to frequency coordination.[^80] Licensees who
are not using the spectrum as authorized are subject to cancellation of
their licenses.[^81] To the extent this happens, spectrum from the
canceled licenses can be made available to other entities for licensing.
Since the start of the audit, over 27,000 PLMR licenses below 512 MHz
have been returned or canceled as a result of this audit. Thus, the
audit has significantly increased the potential availability of spectrum
below 512 MHz for entities in the designated industries.[^82]

**4. 4.9 GHz Band**

The energy industry uses frequencies between 25 MHz and 25 GHz.[^83]
Within this range, energy companies use point-to-point microwave
systems, shared industrial/business pool, and systems in VHF and
UHF.[^84] However, the *NTIA Report* indicates that the Energy industry
seeks additional spectrum in the bands between 1--12 GHz for fixed
narrow and medium-wide data channels.[^85] This quest for additional
spectrum could potentially be satisfied through the Commission's recent
allocation in the 4920-4990 MHz band (4.9 GHz band).

In the *4.9 GHz Proceeding*,[^86] the Commission allocated 50 megahertz
of spectrum in the 4.9 GHz band for fixed and mobile services, in
support of public safety.[^87] The Commission also sought comment on
eligibility for the spectrum, which could provide for use of this
spectrum by the designated industries.[^88] The availability of this
spectrum provides an opportunity for responders to carry out critical
and urgent missions in a way that ensures more effective and efficient
services to the nation's location communities while providing a safer
environment for emergency responders.[^89] For example, the use of video
for remote-controlled robotics in dangerous terrorist situations or the
"real time" monitoring of suspects in high-risk situations.[^90]

Notably, this allocation may result in potentially additional spectrum
for the designated industries if the Commission expands what constitutes
"public safety" services, as it is currently considering.[^91] Unlike
the public safety allocation in the 700 MHz band, which is limited by
the statutory definition of "public safety services,"[^92] the 4.9 GHz
band is not subject to any statutory restriction on eligibility to
operate in the band. Therefore, the Commission is appropriately
considering a broad definition of "public safety services" to include
what it has described as "partnership opportunities between the more
traditional public safety entities (*i.e.,* entities offering police,
fire and ambulance services), and critical infrastructure entities, such
as utility companies, railroads, and others."[^93] In comments filed in
the *4.9 GHz Proceeding*, designated industry users express support for
such a broad definition of "public safety services" [^94] and express
their interest in being able to use spectrum in the 4.9 GHz band.[^95]
The Commission intends to fully explore innovative and non-traditional
means of employing public safety use of the band.[^96] In short, while
eligibility to use the band has not yet been determined,[^97] the
designated industries are potential users of this spectrum allocation.

**B. Reduced Congestion and Interference Avoidance**

Concern about the ability of the designated industries' to have access
to spectrum was but one of the concerns reflected in the *NTIA Report*.
All three industries agreed and informed NTIA that spectrum they
currently use is either congested or quickly approaching critical mass,
thus leading to problems of interference.[^98] Accordingly, their second
concern related to problems of spectrum congestion and interference.
This subsection addresses Commission actions aimed at reducing and
eliminating spectrum congestion and interference.

**1. Rulemaking Proceedings Examining Interference**

**a. 900 MHz MAS**

The *NTIA Report* indicates that congestion and interference is a
concern in the 900 MHz band.[^99] Specifically, UTC comments that "as
private wireless spectrum grows more congested, there are increasing
reports of harmful interference to energy activities, including critical
power restoration.[^100] In *WT Docket No. 97-81,* the Commission
addressed general concerns about congestion in the 900 MHz band. [^101]
MAS is point-to-multipoint, multipoint-to-point radio communications
services that consists of 3.2 megahertz of spectrum in the 928/952/956
MHz, 928/959 MHz, and 932/941 MHz bands ("900 MHz band").[^102]

Historically, MAS spectrum has been used by the energy industry for
various alarm, control, interrogation, and status reporting
requirements,[^103] but has also served an important role in the
transportation industry.[^104] Some railroads are using the frequencies
in the MAS spectrum for SCADA operations involving the remote control of
switches and signals along the rail right-of-way.[^105] Of consequence
to the designated industries, the Commission set aside frequencies in
the 928/952/956 MHz bands for "private internal" use, *i.e.*, "where
licensees use their authorized frequencies purely for internal business
purposes or public safety communications and not on a for-hire or
for-profit basis."[^106] Aiming to further reduce congestion
problems,[^107] the Commission reserved twenty of the forty channel
pairs in the 932/941 MHz bands for public safety/Federal Government and
private internal services.[^108] Also, for geographic area licenses, the
Commission generally prohibited licensees from exceeding a signal
strength of 40 dBuV/m at their service area boundaries in order to guard
against potential interference.[^109] Accordingly, the proceeding
exemplifies the Commission's efforts to address the needs and concerns
of private internal users, such as the energy, water and railroad
industries.

**b. 800 MHz Public Safety Interference**

In addition to noting that congestion and interference is a concern in
the 900 MHz band, the *NTIA Report* similarly avers that congestion and
interference is problematic in the 800 MHz band as well. Specifically,
the designated industries are experiencing interference on their PLMR
channels.[^110] Accordingly, the designated industries seek to alleviate
their claim of congestion[^111] in the 800 MHz band.

Recently, the Commission began a reexamination of the 800 MHz
band.[^112] In this proceeding, the Commission seeks to avoid
interference in the band with nonpublic safety users, including the
designated industry entities. As part of this reexamination, the
Commission is considering various potential solutions that would avoid
interference with 800 MHz communications systems. This band[^113] is
important for PLMR communications because it allows for the operation of
systems that typically provide communications to and among vehicular or
hand-held mobile units used in situations in which responders are
scattered throughout a large geographic area.[^114] The designated
industries rely on the 800 MHz band for mission-critical control and
support of their basic services.[^115]

The Commission initiated this proceeding in response to an increasing
number of reports of interference to public safety systems over the past
several years.[^116] The reports are most frequently from public safety
licensees who experience interference from commercial systems using
cellular architecture. Moreover, since the terrorist attacks of
September 11^th^, implementation of an effective Homeland Security
program is placing increased demands on public safety communications
capabilities, as many jurisdictions are planning or already are
implementing wide-area 800 MHz band public safety systems.[^117] These
developments, coupled with the fact that the Commercial Mobile Radio
Service (CMRS) is expected to continue to grow steadily over the next
several years, indicate that interference will be an even larger problem
than currently exists, unless appropriate measures are taken.[^118]

In the *800 MHz NPRM*, the Commission intends to obtain solutions to
these and related issues. [^119] Currently, the Commission allows for
use of the 800 MHz band of spectrum for public safety or non-public
safety purposes on adjacent channels, depending upon the
frequency.[^120] The Commission is exploring all available interference
reduction options for this band, including band restructuring,[^121]
increasing the amount of spectrum for public safety purposes,[^122]
establishing specific receiver standards,[^123] and establishing guard
bands similar to those used in the 700 MHz band.[^124] Moreover, the
Commission is considering two specific reallocation proposals[^125] and
whether measures such as a spectrum audit, currently underway on the
land mobile frequencies below 512 MHz, would be of value in the 800 MHz
band.[^126] Generally, the designated industries want solutions to solve
interference problems while encouraging innovative developments.[^127]
This proceeding represents the latest in a long-standing Commission
recognition that the public safety community requires effective radio
communications systems free of harmful interference if the safety of
lives and property are to be protected.[^128] In sum, the Commission
began this proceeding to address the highlighted interference concerns.

**2. Promoting Efficiencies in Use of Spectrum**

Although the designated industries have identified congestion and
harmful interference as concerns, the Commission has several tools at
its disposal to resolve these concerns. In addition to rulemaking
proceedings addressing congestion and harmful interference concerns, the
Commission has also effectively employed refarming and band manager
policies.

**a. Refarming**

The Commission's "refarming" policies represent a major Commission
commitment to realize reduced congestion and interference avoidance. All
spectrum users, including entities in the designated industries, benefit
by this set of Commission policies which result in more efficient,
flexible use of the spectrum in the PLMR allocations. Efficient,
flexible use of spectrum through refarming is important because the
majority of the spectrum used by designated industry users is shared
with other users, with Commission rules differing somewhat by the
various spectrum bands, for technical reasons.[^129] In the Commission's
"refarming" proceeding,[^130] the Commission adopted three key measures
that are significant for purposes of meeting the spectral needs of the
designated industries. First, to promote more efficient use of PLMR
spectrum below 512 MHz,[^131] channels in the 450-470 MHz band that were
12.5 kHz removed from regularly-assignable channels and reserved for low
power operation[^132] were reclassified as regularly assignable channels
available for high power operation. Second, the Commission consolidated
twenty private radio services into two frequency pools---public safety
and industrial/business (I/B).[^133] By reducing the number of pools to
two, the Commission ensured the most efficient distribution of the
additional channels created as a result of the transition to narrowband
technology. It also permitted better utilization of technologically
innovative and efficient equipment, and reduced administrative
burdens.[^134] For example, this approach eliminated the need for
license applicants to go through interservice sharing procedures in
order to obtain authorization to operate on frequencies available in
other radio services.[^135] This in turn allows users to get on the air
sooner as well as saves them from having to pay more than one
coordination fee.[^136] Third, the Commission provided specific
benchmarks after which equipment would not be certified unless it met
increasingly stringent efficiency standards.[^137]

Implementation of the Commission's refarming policies promotes better
utilization of spectrum. To the extent that the Commission's refarming
policies have "made more room" for those who need spectrum, its policies
have achieved the functional equivalent of making available additional
spectrum and reducing interference, which benefits the designated
industries.[^138]

**b. Band Managers**

By applying the innovative regulatory concept of "band managers," which
essentially act as "next generation" frequency coordinators, the
Commission has created an additional mechanism to more efficiently
manage spectrum and meet the current and future needs of spectrum users.
A holder of a band manager license[^139] may lease to third parties the
holder's right to use the holder's licensed spectrum through private,
contractual agreements, without having to secure prior approval by the
Commission.[^140] In effect, each band manager is granted a "systems" or
"blanket" license that allows it to construct/operate, or allow others
to construct/operate, stations at any available site within the licensed
area and on any channel for which it is licensed. Under this licensing
approach, the band manager performs not only a valuable frequency
coordination function,[^141] but it is also directly responsible for any
interference or misuse of its licensed frequency.[^142] Additionally, it
must terminate any operation causing harmful interference.[^143]

Band manager rules are not uniform across all bands due to technical
reasons and other issues; however, the general approach is consistent
across bands. As a market-based mechanism, band manager licensing can
create incentives for efficient use of spectrum. By aggregating use
amongst like users, band managers can avoid some of the interference
issues that concern entities in the designated industries. By utilizing
band managers, private users have greater flexibility to access spectrum
in amounts of bandwidth, periods of time, and geographic areas that best
suit their needs.[^144] Band manager licensing can help to alleviate the
spectrum concerns of users with smaller and/or more localized spectrum
needs,[^145] and it can reduce transactional costs and regulatory
burdens associated with traditional licensing.[^146] For example,
various companies in the designated industries with similar wireless
communications needs might secure their requirements from the same band
manager, who could meet their technical communications requirements and
take on licensing obligations that they would have otherwise had to
incur if they otherwise had secured communications authority on their
own. As their respective communications needs change, the companies
could rapidly alter their communications services, securing new
arrangements with the same or a different band manager, while being free
themselves from any license change obligation.

The Commission has applied the concept of band managers to licensing in
the 700 MHz[^147] and Government Transfer Bands.[^148] Moreover, the
Commission is actively considering expansion of the application of the
band manager concept in ongoing rulemaking proceedings, such as those
for the 71-76 GHz, 81-86 GHz and 92-95 GHz bands,[^149] the 800 MHz
public safety band,[^150] and the 4.9 GHz band.[^151] Accordingly,
implementation of the band manager concept promotes effective and
efficient spectrum use and the development of more efficient spectrum
markets, from which all spectrum users, including the designated
industries, benefit.

**3. Flexibility in Rules**

The Commission has sufficient flexibility in its rules to resolve
congestion and interference concerns resulting from unusual or
extraordinary circumstances. Specifically, the Commission may use rule
waivers [^152] and grants of Special Temporary Authority (STA)[^153]
when such methods would serve the public interest. Notably, the
Commission may grant a waiver on its own motion or pursuant to the
request of an applicant or licensee when unusual or extraordinary
circumstances exist.[^154] However, the Commission must receive an STA
request before it may authorize an applicant or licensee to operate
radio facilities in unusual or extraordinary circumstances. Thus, the
congestion and interference concerns can be addressed through rule
waivers and STAs in appropriate situations.

**a. 900 MHz Ribbon License**

In seeking to reduce congestion, avoid interference, and best address
spectrum needs generally, the Commission has been modifying its rules to
promote flexibility and has granted requests for modifications to
licenses when it can be shown that there are significant public safety
benefits or it is otherwise in the public interest. For example, in
2000, the AAR requested a modification of its licenses in the 900 MHz
band into a single nationwide geographic area license.[^155] Last year
the Commission's Wireless Telecommunications Bureau granted a waiver of
the Commission's rules to permit AAR's license modification.[^156] AAR
represents virtually every major American railroad and is the licensee
of over three hundred PLMR call signs in connection with a Positive
Train Control system.[^157] Such systems, as indicated earlier, are
designed to prevent train collisions, high-speed accidents, and
incursions into locations reserved for railway workers.[^158] AAR
requested modification of its licenses in the 900 band, into a single
nationwide geographic area license.[^159]

Before the license modification grant, AAR had to file and the
Commission had to review an individual modification application every
time a Positive Train Control station was relocated, as only
site-by-site authorizations existed for the six specific Positive Train
Control frequency pairs in the 900 MHz band.[^160] The waiver grant
produced a number of benefits for railroad operations. Primarily, the
waiver grant provided a 140-mile protected zone that ensured harmful
interference to railroad operations would not become a concern.[^161]
Additionally, the Bureau recognized that if the request were granted,
there would be greater administrative efficiencies gained both for the
Commission and AAR, and potential improvements to safety of train
operations. Finally, the Bureau recognized that grant of the
modification would facilitate the deployment of an efficient,
ubiquitous, and internationally coordinated[^162] railroad
communications system.[^163]

In granting the modified license, the Bureau authorized a 140-mile wide
swath or "ribbon" that tracks all of the railroad rights-of-way in the
United States (*i.e.,* a 70-mile zone extends in each direction from the
track), thus replacing AAR's site-by-site licenses in the 900 MHz
band.[^164] Providing ample flexibility, the grant generally permitted
AAR to locate, move, or modify its stations anywhere within its 140-mile
wide geographic area without obtaining additional Commission
consent.[^165] The grant provided for a unique approach to meet the
spectrum communications requirements of the railroad industry in a
dynamic spectrum environment.

**b. Special Temporary Authority**

Another tool to meeting dynamic spectral needs, is the use of its
statutorily-based STA.[^166] Under existing Commission rules, the
designated industries have the capability to have their most pressing
needs for the operation of private radio facilities satisfied by
obtaining an STA from the Commission.[^167] Commission rules on STAs
allow immediate or temporary operation of radio facilities for
restoration of existing facilities to continue communications service,
during natural disasters, emergencies or when other urgent conditions
are present.[^168] In emergency situations, STA requests need not be
made through a written application process; but, rather, may be
submitted to the Commission by telephone, telegram, or fax.[^169]
Granted with fixed, short-term expiration dates not exceeding 180 days,
STAs may be renewed for an additional period if circumstances warrant an
extension.[^170] Thus, under extraordinary circumstances where time is
of the essence, the Commission has in place a regulatory process that is
sufficiently flexible to be responsive to the designated industries'
communication needs.[^171]

The *NTIA Report* states the important role that these designated
industries played in the aftermath of the September 11^th^ terrorist
attacks.[^172] During this time, although no requests for STAs were
received from the Washington, D.C. area, the Commission granted all 15
requests it received for STAs in surrounding areas of the World Trade
Centers. [^173] Clearly, the Commission has flexible procedures in place
to address emergency and unusual circumstances regarding access to
spectrum, congestion and interference, etc.

**C. Keeping Pace with the Future**

The third major area of concern reflected in the *NTIA Report* addressed
the ability of new technologies to meet the spectrum needs of the
designated industries.[^174] In this regard, NTIA inquired about the use
of non-spectrum dependent alternative technologies or commercial
services that are currently available.[^175] For the most part,
commenters to the *NTIA Report* stated that commercial wireless services
did not adequately service their needs due to issues of compatibility,
reliability and cost-effectiveness.[^176] Additionally, many commenters
to the *NTIA Report* found that fiber optic and/or wireline networks
were not practicable because they do "not provide the mobility that
spectrum dependent equipment does"[^177] and they are not as cost
effective as radio-based systems.[^178] This section will discuss a few
areas of future opportunity.

**1. Access to Satellite Services**

Although *NTIA Report* and the record do not fully address the
availability and usage of commercial or civil satellites services by the
designated industries, such spectrum-based technologies are available
for use by the energy, water and railroad industries.[^179] These
industries have access to various commercial and government satellite
systems that can be used to transmit and/or receive communications
(voice, video and data), navigational, location, imaging and weather
satellite services. For example, communications satellites can transmit
business data, oil and gas deposits can be identified through a
combination of satellite imagery and other geological data, and the GPS
service can provide information to locate and navigate railroad cars.
There are various methods available to access such satellite systems and
services. For example, with respect to commercial satellite services,
designated industries could operate as a satellite provider, lease
capacity from an existing provider, or purchase services from a
satellite provider.

**2. 70/80/90 GHz Bands**

Recently, the Commission initiated a proceeding to encourage the
development of technologies that would effectively make 13 gigahertz of
additional, useable spectrum available in the 71-76 GHz, 81-86 GHz and
92-95 GHz bands (70/80/90 GHz Bands). [^180] Generally, this spectrum is
currently unavailable to companies, including energy, water and railroad
entities. To date, the highest frequencies on which the Commission
authorizes licensed services are in the 48.2-50.2 GHz band,[^181] and
the highest frequencies in which unlicensed devices may operate is in
the 76-77 GHz band.[^182] Under requirements currently in place, radio
technology that operates above 50.2 GHz may not be licensed except on an
experimental basis under Part 5 of the Commission's rules.[^183]

This spectrum may be suitable to meet some of the communications needs
of the energy, water and railroad entities. Advances in microchip
technology, and the special propagation characteristics of the 70/80/90
GHz Bands, provide a new environment for the development and market of
new applications in these bands.[^184] Because of shorter wavelengths,
the 70/80/90 GHz Bands permit the use of smaller antennas than would be
required for similar circumstances in the lower bands, to achieve the
same high directivity and high gain.[^185] The immediate consequence of
this high directivity, coupled with the high free space loss at these
frequencies, is the possibility of a more efficient use of the spectrum
for point-to-multipoint applications.[^186] Since a greater number of
high directive antennas can be placed in a given area than less
directive antennas, the net result is higher reuse of the spectrum, and
higher density of users, as compared to lower frequencies.[^187]
Furthermore, due to the fact that one can place more voice channels or
broadband information using a higher frequency to transmit the
information, this spectrum could potentially be used to supplement or
even replace fiber optics.[^188]

A similar approach was previously followed by the Commission that
benefited the designated industries. In 1985, the opening of certain
bands to spread spectrum technology on an unlicensed basis stimulated
rapid private sector development of that technology. Today, numerous
companies use many spread spectrum devices for such diverse applications
as remote meter reading, utility load management and voice-secure
cordless telephones.[^189] Similarly, energy, water and railroad
entities may find the 70/80/90 GHz bands attractive for their
communications needs.

**3. Commercial Alternatives: 800 MHz**

In the *800 MHz Proceeding,* the Commission currently is examining,
among other things, the extent to which commercial wireless technology
can meet the needs of entities that may operate in the 800 MHz band,
which include the designated industries.[^190] In the comments filed
with the Commission on the *NTIA Report,* the dominant view of those
representing the designated industries is that commercial mobile radio
services (CMRS) alone are inadequate to fulfill their communications
requirements. Some argue for an allocation of additional spectrum for
utilities or critical infrastructure entities.[^191] A number of
commenters emphasized the need for utilities to have reliable
communications.[^192] Commenters noted that commercial wireless
providers typically do not design their networks for redundancy, unlike
utilities, whose communication systems are less likely to be negatively
affected by adverse conditions.[^193] Moreover, they noted that
commercial systems do not always provide service throughout their
operating areas,[^194] are not necessarily capable of providing priority
access, and tend to become saturated, sometimes unusable, during
emergency periods.[^195] Accordingly, most commenters contend that
commercial wireless systems are an inadequate substitute for utilities'
private wireless systems. Only a few take an opposite[^196] or otherwise
different view.[^197] In the *800 MHz NPRM* proceeding*,* the Commission
notes that there has been a significant growth in CMRS, and that some of
these technologies may be suitable for meeting the more routine public
safety communications needs.[^198] The Commission has asked those who
may question the sufficiency of public safety spectrum to take into
account technological and regulatory developments that have occurred in
recent years.[^199] The Commission is considering the technological and
regulatory developments with regards to the communications requirements
of its licensees and may adopt rules to promote improvements in
efficiency and performance of 800 MHz equipment.[^200]

**III. CONCLUSION**

Although the *NTIA Report* did not validate specific spectrum
requirements for the energy, railroad and water industries, the
Commission always is sensitive to the communications needs of these and
other industries. Energy, water and railroad interests are critical to
the nation's infrastructure and rely on radio spectrum to perform core
operations, ranging from routine monitoring to emergency responses.
These interests have raised concerns about their ability to access and
use spectrum due to congestion and interference. The designated
industries are encouraged to continue to migrate to more efficient
technologies and to make use of available commercial spectrum services
when practicable, including terrestrial wireless and satellite services,
as well as civil satellite services. They are also encouraged to utilize
new methods of sharing and licensing to meet their needs, to ensure that
efficient and effective use of spectrum is achieved. The Commission must
satisfy the spectrum needs of many users, and it is especially sensitive
to needs involving domestic security concerns.[^201] The spectrum needs
of the designated industries as well as others must be carefully
balanced. Recent and ongoing actions of the Commission, as outlined in
this Report, demonstrate how the Commission is responding in the area of
spectrum management to maximize the use of the airwaves, which are a
finite, public resource.

**APPENDICES**

**APPENDIX A**

**Potentially Available Spectrum for the Energy, Water and Railroad
Industries**[^202]

+--------------------+---------------------------+--------------------+
| **Energy           | **Water Industry**        | **Railroad         |
| Industry**         |                           | Industry**         |
+--------------------+---------------------------+--------------------+
| Various            | Various frequencies in    | Various            |
| frequencies in the | the Industrial/Business   | frequencies in the |
| I                  | Radio Pool                | I                  |
| ndustrial/Business |                           | ndustrial/Business |
| Radio Pool         | See 47 C.F.R.             | Radio Pool         |
|                    |                           |                    |
| See 47 C.F.R.      | § 90.35                   | See 47 C.F.R.      |
|                    |                           |                    |
| § 90.35            |                           | § 90.35            |
+--------------------+---------------------------+--------------------+
| 150-174 MHz        | 150-174 MHz               | 150-174 MHz        |
+--------------------+---------------------------+--------------------+
| 216-220 MHz        | 216-220 MHz               | 216-220 MHz        |
+--------------------+---------------------------+--------------------+
| 450-512 MHz        | 450-512 MHz               | 450-512 MHz        |
+--------------------+---------------------------+--------------------+
| 746-776 MHz        | 746-776 MHz               | 746-776 MHz        |
|                    |                           |                    |
| 776-777 MHz        | 776-777 MHz               | 776-777 MHz        |
|                    |                           |                    |
| 792-794 MHz[^203]  | 792-794 MHz[^204]         | 792-794 MHz[^205]  |
+--------------------+---------------------------+--------------------+
| 747-762 MHz        | 747-762 MHz               | 747-762 MHz        |
|                    |                           |                    |
| 777-792 MHz        | 777-792 MHz               | 777-792 MHz        |
+--------------------+---------------------------+--------------------+
| 806-821/851-866    | 806-821/851-866 MHz       | 806-821/851-866    |
| MHz                |                           | MHz                |
|                    | 896-901/935-940 MHz       |                    |
| 896-901/935-940    |                           | 896-901/935-940    |
| MHz                |                           | MHz                |
+--------------------+---------------------------+--------------------+
| 902-928 MHz        | 902-928 MHz               | 902-928 MHz        |
+--------------------+---------------------------+--------------------+
| 928/952/956 MHz    | 928/952/956 MHz           | 928/952/956 MHz    |
|                    |                           |                    |
| 928/959 MHz        | 928/959 MHz               | 928/959 MHz        |
|                    |                           |                    |
| 928/959 MZ         | 928/959 MZ                | 928/959 MZ         |
|                    |                           |                    |
| 932-941 MHz        | 932-941 MHz               | 932-941 MHz        |
+--------------------+---------------------------+--------------------+
| 1390-1395 MHz:     | 1390-1395 MHz: Auction    | 1390-1395 MHz:     |
| Auction            |                           | Auction            |
|                    | 1427-1435 MHz: Different  |                    |
| 1427-1435 MHz:     |                           | 1427-1435 MHz:     |
| Different Uses as  | Uses as Follows:          | Different Uses as  |
| Follows:           |                           | Follows:           |
|                    | 1427-1429.5 MHz:          |                    |
| 1427-1429.5 MHz:   |                           | 1427-1429.5 MHz:   |
|                    | Secondary Telemetry       |                    |
| Secondary          |                           | Secondary          |
| Telemetry          | (WMTS primary)            | Telemetry          |
|                    |                           |                    |
| (WMTS primary)     | 1429.5-1432 MHz:          | (WMTS primary)     |
|                    |                           |                    |
| 1429.5-1432 MHz:   | Primary Telemetry         | 1429.5-1432 MHz:   |
|                    |                           |                    |
| Primary Telemetry  | 1670-1675 MHz:            | Primary Telemetry  |
|                    | Auction[^207]             |                    |
| 1670-1675 MHz:     |                           | 1670-1675 MHz:     |
| Auction[^206]      |                           | Auction[^208]      |
+--------------------+---------------------------+--------------------+
| 2390-2417 MHz      | 2390-2417 MHz             | 2390-2417 MHz      |
| (unlicensed)       | (unlicensed)              | (unlicensed)       |
+--------------------+---------------------------+--------------------+
| 4.94-4.99 GHz      | 4.94-4.99 GHz             | 4.94-4.99 GHz      |
+--------------------+---------------------------+--------------------+
| 5925-6875 MHz      | 5925-6875 MHz             | 5925-6875 MHz      |
|                    |                           |                    |
| 10.55-11.7 MHz     | 10.55-11.7 MHz            | 10.55-11.7 MHz     |
+--------------------+---------------------------+--------------------+
| 71-76 GHz          | 71-76 GHz                 | 71-76 GHz          |
|                    |                           |                    |
| 81-86 GHz          | 81-86 GHz                 | 81-86 GHz          |
|                    |                           |                    |
| 92-95 GHz          | 92-95 GHz                 | 92-95 GHz          |
+--------------------+---------------------------+--------------------+

**APPENDIX B**

**PARTIES THAT FILED WITH THE COMMISSION EITHER COMMENTS,**

**REPLY COMMENTS OR EX PARTE CORRESPONDENCE**

**REGARDING THE NTIA REPORT**[^209]

**Comments:**

Aeronautical Radio, Inc. (ARINC)

American Petroleum Institute (API)

Association of American Railroads (AAR)

Cinergy Corporation (Cinergy)

Consolidated Edison Company of New York (ConEd)

Delmarva Power & Light Company and Atlantic City Electric Company (DPLC
& ACE)

Entergy Services, Inc. (Entergy)

Itron, Inc. (Itron)

Metropolitan Water District of Southern California (MWD) (filed Mar. 7,
2002)

Nextel Comminations, Inc. (Nextel)

SCANA Corporation (SCANA)

SchlumbergerSema, Inc. (SchlumbergerSema)

Southern Company (Southern)

United States Department of Transportation (DOT) (filed Mar. 20, 2002)

United Telecom Council (UTC)

Wilkinsburg-Penn Joint Water Authority (WPJWA)

Williams Gas Pipeline (WGP)

Y-W Electric Association, Inc. (YW)

**Reply Comments:**

American Mobile Telecommunications Association (AMTA)

Cinergy Corporation (Cinergy)

Delmarva Power & Light Company and Atlantic City Electric Company
(DPLC&ACE)

Dixie Electric Power Association (filed Mar.19, 2002)

Entergy Services, Inc. (Entergy)

Excelon Corporation (Excelon) (filed Apr.3, 2002)

Industrial Telecommunications Association (ITA)

LMS Wireless and Warren C. Havens (LMSW-Havens) (filed Mar. 20, 2002)

Metropolitan Water District of Southern California (MWD) (filed Mar. 19,
2002)

Mobex Communications, Inc. (Mobex)

Nextel Communications, Inc. (Nextel)

SCANA Corporation (SCANA)

Southern Company (Southern)

Wilkinsburg-Penn Joint Water Authority (WPJWA) (filed Mar. 19, 2002)

Y-W Electric Association, Inc. (YW) (filed Mar. 19, 2002)

**Ex Parte Correspondence**

Aeronautical Radio, Inc. (filed May. 2, 2002)

Industrial Telecommunications Association, Inc. (ITA) (filed Mar. 25,
2002)

United Telecom Council (UTC) (filed June 20, 2002).

[^1]: *See* Federal Funding, Fiscal Year 2001, Pub. L. No. 106-553, 114
    Stat. 2762, 2762A-73 (2000). *See* text accompanying note 10,
    *infra,* for federal agencies consulted by NTIA.

[^2]: *Id.*

[^3]: Marshall W. Ross and Jeng F. Mao, Current and Future Spectrum Use
    by the Energy, Water, and Railroad Industries, Response to Title II
    of the Departments of Commerce, Justice, and State, Judiciary, and
    Related Agencies Appropriations Act, 2001 Public Law 106-553, U.S.
    Dept. of Commerce, NTIA (Jan. 2002).

[^4]: As Public Law 106-553 is explicit with respect to the spectrum
    needs of particular types of entities that are to be studied and
    reported upon (*i.e.*, energy, water and railroad industries), this
    Report will not address potential spectrum needs of entities in
    other industries. In response to the Commission's request for
    comment on the *NTIA Report,* several commenters have suggested that
    the Commission should examine the spectrum needs of other industries
    as well. *See* ITA Reply Comments to Wireless Telecommunications
    Bureau Seeks Comment on NTIA Report on Current and Future Spectrum
    Use by the Energy, Water, and Railroad Industries, 17 FCC Rcd 2458
    (2002) (*WTB PN*) at 4; ARINC Comments to *WTB PN* at 1. As the
    scope of this Report is established by statute, these additional
    matters are not addressed herein.

[^5]: *See* Sec. I.C., *infra.*

[^6]: *See e.g.,* The 4.9 GHz Band Transferred from Government Use, WT
    Docket No. 00-32, *Second Report and Order and Further Notice of
    Proposed Rulemaking,* 17 FCC Rcd 3955 (2002) (*4.9 GHz Proceeding)*.

[^7]: NTIA's Request for Comment on Energy, Water and Railroad Service
    Providers' Spectrum Use Study, 66 Fed. Reg. 18448 (2001). Comments
    were due June 8, 2001. *Id*.

[^8]: *See NTIA Report,* Sec. 1, at 1-4.

[^9]: The five trade organizations are: American Petroleum Institute
    (API), American Water Works Association (AWWA), Association of
    American Railroads (AAR), National Telecommunications Cooperative
    (NTC), and the United Telecom Council (UTC).

[^10]: *See* *NTIA Report*, Sec. 1, at 1-3.

[^11]: *Id.* at Sec. 1, at 1-2.

[^12]: *WTB PN,* 17 FCC Rcd 2458. Comments were due March 6, 2002 and
    reply comments were due March 18, 2002. *Id*. The Commission
    received 18 comments, 15 reply comments and 3 *ex parte*
    correspondence in this matter.

[^13]: Hereafter, this Report will refer to entities that filed some
    form of comments with the Commission on the *NTIA Report* as
    "commenters", and will refer to comments and reply comments filed in
    this proceeding as, respectively, "Comments to *WTB PN*" and "Reply
    Comments to *WTB PN*." A list of commenters is attached at Appendix
    B.

[^14]: *NTIA Report,* Sec. 7, 7-1.

[^15]: *Id.*

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

[^17]: The *NTIA Report* indicates that commenters generally believe
    that: continued access to spectrum is crucial to the current and
    future operations of the designated industries (*Id.* at xvii); and
    without adequate spectrum, these industries would be unable to
    address major service interruptions due to disasters or equipment
    malfunctions. *Id.* Sec. 3, at 3-3.

[^18]: The *NTIA Report* shows that commenters generally believe that:
    spectrum congestion is leading to interference in some spectrum
    bands (*Id.* at xviii; Sec. 7, at 7-2, 7-3); additional spectrum is
    needed to alleviate congestion and lack of available spectrum to
    these industries (*Id.*); and exclusive spectrum (*i.e.,* spectrum
    allocated for specific services) would help to avoid interference
    problems (*Id.* at Sec. 7, at 7-2*)*.

[^19]: The *NTIA Report* conveys that commenters generally believe that
    commercial wireless technologies, by themselves, are inadequate to
    meet their needs due to insufficient coverage, reliability,
    redundancy, robustness, and high cost. *Id.* at xviii; Sec. 7, at
    7-2.

[^20]: *Id.* at xviii.

[^21]: *Id.*

[^22]: *Id.* However, the *NTIA Report* shows that the energy, water and
    railroad industries generally use spectrum between 20 MHz and 25
    GHz. *See NTIA Report* at Sec. 2, at 2-1through 2-7. The *NTIA
    Report* indicates that these industries generally operate in the
    150-174 MHz Private Land Mobile Radio (PLMR) service (VHF), 450-512
    MHz PLMR service (UHF), 806-821/851-866 MHz PLMR service,
    896-901/935-940 MHz PLMR service, 902-928 MHz, 2.4 and 5.8 GHz
    unlicensed bands, 928/932/941/952/956/959 MHz Multiple Address
    Service (MAS), and on microwave links from 2 GHz to 19 GHz.

[^23]: *Id.* at xxi. The agency "did not independently validate . . .
    spectrum requirements". *NTIA Report* at Sec.1. at 1-3.

[^24]: *See generally NTIA Report* Secs. 1-3. *See also* Michele
    Farquhar, *et al*, *Private Land Mobile Radio Services: Background*.
    Wireless Telecom. Bureau Staff Paper, FCC, 1996 (*WTB PLMR Paper*)
    at 7-103. *See generally* AAR Comments to *WTB PN*; *see also
    generally* UTC Comments to *WTB PN*.

[^25]: *See generally WTB PLMR Paper.*

[^26]: *See, e.g.,* Southern Comments to *WTB PN* at 10-13 (on
    requirements of Alabama, Florida, Georgia and Mississippi).

[^27]: *See* 47 C.F.R. § 90.35(c)(1)(A)-(B).

[^28]: *See* Amendment of Part 15, Subpart F, to Permit Operation of
    Field Disturbance Sensors in the Band 54 to 72, and 76 to 88 MHz,
    Gen. Docket No. 85-231, RM-4824, *Notice of Proposed Rule Making*,
    101 F.C.C.2d 962 ¶ 2 (1985).

[^29]: ConEd Comments to *WTB PN* at 9-11.

[^30]: *Id.* at 10.

[^31]: *Id.*

[^32]: MWD Comments to *WTB PN* at 2; WPJWA Comments to *WTB PN* at 2.

[^33]: MWD Comments to *WTB PN* at 2; WPJWA Comments to *WTB PN* at 2.

[^34]: WPJWA Comments to *WTB PN* at 2-3.

[^35]: AAR Comments to *WTB PN,* Attachment at 6-8.

[^36]: *See* AAR Comments to *WTB PN*, Attachment Exhibit D at 1-7,
    9-10.

[^37]: *Id.,* Attachment Exhibit D at 3.

[^38]: *See, e.g.,* Cinergy Comments to *WTB PN* at 6-12; ConEd Comments
    to *WTB PN* at 6-12; API Comments to *WTB PN* at 4-6; MWD Comments
    to *WTB PN* at 2-3; WPJWA Comments to *WTB PN* at 2-4.

[^39]: *See* DPLC&ACE Comments to *WTB PN* at 6-11; UTC Comments to *WTB
    PN* at 7-10; Entergy Comments to *WTB PN* at 7-11; SCANA Comments to
    *WTB PN* at 7-12.

[^40]: *See, e.g.* Cinergy Comments to *WTB PN* at 29-31; Entergy
    Comments to *WTB PN* at 29-31; DPLC&ACE Comments to *WTB PN* at
    28-30; SCANA Comments to *WTB PN* at 29-31. For the railroad
    industry, wireline communication is not a viable option due to the
    inherent mobile nature of the industry. *See* AAR Comments to *WTB
    PN*, Attachment at 23.

[^41]: *See generally* SCANA Comments to *WTB PN* at 11-14; DPLC&ACE
    Comments to *WTB PN* at 4-16; Entergy Comments to *WTB PN* at 5-15;
    ConEd Comments to *WTB PN* at 6-16; Cinergy Comments to *WTB PN* at
    6-12; Southern Comments to *WTB PN* at 9-17.

[^42]: *WTB PLMR Paper* at 3.

[^43]: This shift in thinking has become evident in light of the
    terrorist attacks of Sept. 11, 2001. A number of companies indicate
    an even greater need for wireless communications in view of the
    general disruption of local telephone facilities that occurred in
    Manhattan and the inability of landlines to communicate to and from
    Consolidated Edison's utility mobile command centers. *See* ConEd
    Comments to *WTB PN* at 12-13; Cinergy Comments to *WTB PN* at 13;
    DPLC&ACE Comments to *WTB PN* at 12; SCANA Comments to *WTB PN* at
    12-13. Anticipating scenarios involving terrorist attacks is
    particularly important in light of recent evidence found in
    Afghanistan. There, the United States discovered that terrorists had
    diagrams of American public water facilities and nuclear power
    plants. ConEd Comments to *WTB PN* at 6, *citing* David Johnston and
    James Risen, *Seized Afghan Files Show Intent, Not Plans,* N.Y.
    Times, Feb. 1, 2002 at A13. The fact that a known terrorist group
    had this detailed information strongly suggests that utilities are
    viewed as an attractive target by terrorists. ConEd Comments to *WTB
    PN* at 6.

[^44]: AAR Comments to *WTB PN,* Attachment at 24.

[^45]: *Id.*

[^46]: *See 4.9 GHz Proceeding,* 17 FCC Rcd at 3966-70.

[^47]: *Id.*

[^48]: *NTIA Report* at xviii. The majority of the spectrum used by
    designated industry users is shared with other users and is
    allocated exclusively for non-Federal Government use. This spectrum
    includes the PLMR frequency bands, except 902-928 MHz, the 900 MHz
    MAS bands, and most of the fixed service bands (*i.e*, 2450-2483.5
    MHz and 5925-6425 MHz). Some of the fixed service bands are shared
    with Federal Satellite service (*e.g.*, 17.8-18.3 GHz). *See* 47
    C.F.R. § 2.106.

[^49]: *See* 47 C.F.R. Parts 90 and 101; *see also NTIA Report*, Table
    6-1.

[^50]: *See* 47 C.F.R. § 90.35(c)(1)(i).

[^51]: *See e.g.,* Cinergy Comments to *WTB PN* at 13-16; ConEd Comments
    to *WTB PN* at 14-18; DPL&ACE *WTB PN* at 13-16; Entergy Comments to
    *WTB PN* at 2; Itron Comments to *WTB PN* at 1; SCANA Comments to
    *WTB PN* at 13-16; Southern Comments to *WTB PN* at 16-17; UTC
    Comments to *WTB PN* at 15-17; WPJWA Comments to *WTB PN* at 4-5;
    WGP Comments to *WTB PN* at 5; YW Comments to *WTB PN* at 3-5.

[^52]: UTC's estimate of the amount of spectrum needed by the designated
    industries tracks the 1998 recommendations of the Utilities Spectrum
    Assessment Taskforce (USAT). Utilities Spectrum Assessment Taskforce
    (USAT) Final Report, United Telecom Council, June 30, 1998. In its
    recommendations, the USAT projected that future wireless
    applications and growth would require 1.0 MHz of additional spectrum
    by the year 2000, 1.9 MHz of additional spectrum by the year 2004,
    and 6.3 MHz of additional spectrum by the year 2010. *Id.* at 1. AAR
    states that the railroad industry is experiencing congestion in the
    mobile radio frequency bands over which AAR exercises coordination
    control, particularly in major urban centers where rail lines
    converge and large terminal and yard operations are located. (The
    AAR exercises coordination control over three VHF bands,
    160.215-161.565 MHz, the designated channel pairs between 450-460
    MHz, and the six channel pairs at 896/923 MHz for Positive Train
    Control Systems). AAR Comments to *WTB PN,* Attachment at 25.

[^53]: AAR is looking to the 700 MHz Guard Band for available spectrum
    because it believes that the licensees may be in a position to enter
    into long-term contracts with railroads for the provision of
    wireless services. *Id*. UTC hopes to identify spectrum below 1 GHz
    to be allocated on an exclusive basis for the designated industries
    and the other "critical infrastructure" industries. UTC Comments to
    *WTB PN* at 5, 11. Some commenters would like more PLMR spectrum in
    the 48 MHz, 150 MHz, 450 MHz, 800 MHz, and 900 MHz bands because the
    majority of the current spectrum used by the designated industries
    is in these bands. *See* Cinergy Comments to *WTB PN* at 17;
    DPLC&ACE Comments to *WTB PN* at 16. Other commenters would like
    spectrum to be made available to the designated industries for
    telemetry, utility dispatch, and Supervisory Control and Data
    Acquisition (SCADA) operations. *See* Cinergy Comments to *WTB PN*
    at 17; DPLC&ACE Comments to *WTB PN* at 16; SCANA Comments to *WTB
    PN* at 17. SchlumbergerSema, Inc. (SchlumbergerSema), a provider of
    advanced meter reading services, would like to see private carriage
    permitted in the MAS bands. SchlumbergerSema Comments to *WTB PN* at
    7.

[^54]: *See NTIA Report*, Sec. 6 at Table 6-2.

[^55]: *See* text accompanying notes 17-19, *supra.*

[^56]: *See* 47 U.S.C. § 151. Moreover, the Commission has recently
    established a Spectrum Policy Task Force, whose purpose is to
    conduct a systematic evaluation of existing spectrum policies and to
    make recommendations as to possible improvements. Spectrum Policy
    Task Force Seeks Public Comment on Issues Related to Commission's
    Spectrum Policies, *Public Notice*, DA 02-1311 (rel. June 6, 2002).

[^57]: As a whole, the energy industry uses frequencies anywhere from 25
    MHz to 25 GHz. *See* *NTIA Report*, Sec. 3, at 3-17.

[^58]: *NTIA Report* at xx, 3-24, 4-8, 6-1.

[^59]: The *NTIA Report* indicates that the 220 MHz band, 450 MHz band,
    800 MHz band, 900 MHz band, 1427--1432 MHz band and the 1--12 GHz
    band could be used by the Energy Industry. *NTIA Report*, Table 2,
    at xx. Moreover, the *NTIA Report* indicates that the 216--220 MHz
    band, 6 GHz band, 11 GHz band and 23 GHz band could be used by the
    water industry. *Id*. Finally, the *NTIA Report* indicated that the
    700 MHz band and the 1.4 GHz band could be used by the railroad
    industry. *Id*.

[^60]: The designated industries failed to provide NTIA with sufficient
    information to determine how much spectrum is available or used in
    the frequency bands. *NTIA Report* at 3-18, 4-6, 5-7.

[^61]: *See* Reallocation of the 216-220 MHz, 1390-1395 MHz, 1427-1429
    MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz
    Government Transfer Bands, and Amendment of Parts 2 and 95 of the
    Commission\'s Rules to Create a Wireless Medical Telemetry Service;
    and Amendments to Part 90 of the Commission\'s Rules Concerning
    Private Land Mobile Radio Services, *Report and Order and Memorandum
    Opinion and Order,* 17 FCC Rcd 368 (2002) (*27 MHz* *Reallocation
    Report and Order*); *see also* Service Rules for the 746-764 and
    776-794 MHz Bands, and Revisions to Part 27 of the Commission\'s
    Rules, WT Docket No. 99-168, *First Report and Order*, 15 FCC Rcd
    476, 491 ¶ 34 (2000) (*700 MHz First Report and Order*); *see also*
    Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions
    to Part 27 of the Commission\'s Rules WT Docket No. 99-168, *Second
    Report and Order, see also* 15 FCC Rcd 5299 (2000) (*700 MHz Second
    Report and Order*); *see also 4.9 GHz Proceeding,* 17 FCC Rcd 3955;
    *see also* Replacement of Part 90 by Part 88 to Revise the Private
    Land Mobile Radio Services and Modify the Policies Governing Them,
    PR Docket No. 92-235, *Second Report and Order,* 12 FCC Rcd 14307
    (1997) (*Refarming Proceeding); see also* Amendment of the
    Commission's Rules Regarding Multiple Address Systems, WT Docket No.
    97-81, *Report and Order,* 15 FCC Rcd 1956 (2000) (*900 MHz MAS
    Order); see also* Improving Public Safety Communications in the 800
    MHz Band, Consolidating the 900 MHz Industrial/Land Transportation
    and Business Pool Channels, WT Docket No. 02-55, *Notice of Proposed
    Rule Making*, 17 FCC Rcd 4873 (2002) (*800 MHz NPRM*); Service Rules
    for Use of the 71-76 GHz, 81-86 GHz and 92-95 GHz Bands; *see also*
    Loea Communications Corporation Petition for Rulemaking, WT Docket
    No. 02-146, RM-10288, *Notice of Proposed Rule Making*, FCC 02-180 ¶
    14 (rel. June 28, 2002) (*70/80/90 GHz Proceeding*).

[^62]: *NTIA Report,* Sec. 3, 3-24 through 3-25.

[^63]: *See 27 MHz Reallocation Report and Order*, 17 FCC Rcd 368,
    375-84 (2002). However, the Commission declined to grant new
    licenses in the 216--217 MHz band because this portion of the band
    was reallocated to Low Power Radio Service. *Id*.

[^64]: *Id*.

[^65]: Telemetry is relied upon by utilities for automated meter
    reading. *See* Reallocation of the 216-220 MHz, 1390-1395 MHz,
    1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and
    2385-2390 MHz, Government Transfer Bands WT Docket No. 02-08;
    RM-9267; RM-9692; RM-9797; RM-9854; RM-9882, *Notice of Proposed
    Rule Making,* FCC 02-15, ¶ 25 (rel. Feb. 6, 2002).

[^66]: *See 27 MHz Reallocation Report and Order*, 17 FCC Rcd at 368.

[^67]: *See NTIA Report* at xxi, Sec. 5, at 5-10. The 700 MHz Guard Band
    is commercial spectrum immediately adjacent to the 747-762 MHz and
    777-792 MHz public safety bands -- *i.e.*, the 746-747 MHz, 776-777
    MHz, and 792-794 MHz bands. These commercial bands were auctioned in
    two paired segments, one of 4 MHz and one of 2 MHz. The Guard Band
    was established to avoid interference problems for public safety in
    the 700 MHz Guard Band, and for other technical reasons. *See
    generally 700 MHz Second Report and Order*, 15 FCC Rcd 5299 (2000).
    The Guard Band has protections that include a requirement that
    entities operating in the 700 MHz Guard Band cannot employ cellular
    system architectures. *Id.* The Commission defines "cellular system
    architecture" as "one where large geographic service areas are
    segmented into many smaller areas or cells, each of which uses its
    own base station, to enable frequencies to be reused at relatively
    short distances. *Id.* at 5306 ¶ 14 n.34. Protections also include a
    requirement that entities operating in the Guard Band must comply
    with out-of-band emission limits (*Id.* at 5299 ¶ 2), and with
    prescribed frequency coordination procedures that, among other
    things, require advance notification to Commission-recognized public
    safety frequency coordinators and adjacent area Guard Band users.
    *Id.* The Commission's interference criteria ensures that public
    safety licensees in the 700 MHz band operate free of interference
    from any new commercial users in that band.

[^68]: *See* *NTIA Report* at xxi.

[^69]: *See* note 67, *supra.*

[^70]: *See* *700 MHz First Report and Order*, 15 FCC Rcd 476 (2000);
    *700 MHz Second Report and Order,* 15 FCC Rcd 5299.

[^71]: *700 MHz Second Report and Order,* 15 FCC Rcd at 5322 ¶ 49.

[^72]: *Id.* at 5299 ¶ 2.

[^73]: *See* Sec. II.B.2.b, *infra,* for general discussion on band
    managers.

[^74]: *See* *NTIA Report* at xx.

[^75]: *Id*. Sec. 3, at 3-24.

[^76]: *See* *NTIA Report* at 3-18.

[^77]: *Id*. at 3-20.

[^78]: *See generally* 47 C.F.R. Part 90.

[^79]: *See generally* Wireless Telecommunications Bureau Announcement
    of an Audit of the Construction and Operational Status of Private
    Land Mobile Radio Stations, *Public Notice*, 16 FCC Rcd 14264 (WTB
    2001). In recent months, the Bureau has been sending letters to
    these station licensees and may conduct random station inspections
    to insure the completeness and accuracy of the required responses.
    To date, the Bureau has mailed over 300,000 audit letters to
    licensees.

[^80]: The Commission's Part 90 rules for PLMR stations require and that
    stations must be placed in operation within twelve months from the
    date of authorization, and that stations remain operational, in
    order for the license to remain valid. 47 C.F.R. §§ 90.155(a),
    90.157.

[^81]: When a licensee fails to construct its authorized PLMR facilities
    within its construction period, or allows its constructed station(s)
    to discontinue operations for a period of one year, the station
    license cancels automatically. *See* 47 C.F.R. §§ 90.155(a), 90.157.
    If a station is not placed in operation within the required time,
    the Commission's rules require the licensee to return the
    authorization to the Commission. *See* 47 C.F.R.

    § 90.155(a).

[^82]: Derived from information reported by the Licensing & Technical
    Analysis Branch of the Commission's Public Safety and Private
    Wireless Division.

[^83]: *See* *NTIA Report* Sec. 3, at 3-17.

[^84]: *See id.*

[^85]: *See* *NTIA Report* at xx.

[^86]: *4.9 GHz Proceeding,* 17 FCC Rcd 3955.

[^87]: *Id.* at 3955 ¶ 1. (With the exception of aeronautical mobile
    service.)

[^88]: *Id.* at 3970-73 ¶¶ 31-38. Comments were due July 8, 2002; reply
    comments are due Aug. 7, 2002.

[^89]: *Id.* at 3966-67 ¶ 23.

[^90]: *Id.* at 3962 ¶ 9*.*

[^91]: *Id.* at 3970-73 ¶¶ 31-38.

[^92]: Section 337(f) of the Communications Act of 1934, as amended, 47
    U.S.C. 337(f), defines "public safety services" as services: "(A)
    the sole or principal purpose of which is to protect the safety of
    life, health, or property; (B) that are provided (i) by State or
    local government entities; or (ii) by nongovernmental organizations
    that are authorized by a government entity whose primary mission is
    the provision of such services; and (C) that are not made
    commercially available to the public by the provider."

[^93]: *4.9 GHz Proceeding,* 17 FCC Rcd at 3971 ¶ 34.

[^94]: *See* AAR Comments in *4.9 GHz Proceeding* (filed July 8, 2002)
    at 3-4; Joint Comments of Cinergy and Consumers Energy in *4.9 GHz
    Proceeding* (filed July 8, 2002) at 17-24; UTC Comments in *4.9 GHz
    Proceeding* (filed July 8, 2002) at 2-4.

[^95]: Cinergy and Consumers Energy state that the critical
    infrastructure industries, in which they include themselves, "would
    use the 4.9 GHz band for essentially the same applications
    identified by Public Safety entities . . . ." Joint Comments of
    Cinergy and Consumer Energy in *4.9 GHz Proceeding* (filed July 8,
    2002) at iii. Further, they state that "\[t\]he 4.9 GHz could
    enhance the ability of Cinergy and Consumers to perform their public
    safety services in a more efficient and effective manner." *Id.* at
    4. UTC states that "\[u\]tilities and other CI \[critical
    infrastructure\] entities are first responders with traditional
    public safety agencies, and the 4.9 GHz band could be used for such
    'hot spot' communications. Moreover, making all likely emergency
    responders eligible for licensing in the 4.9 GHz band would
    encourage the joint development of these systems. . . ." UTC
    Comments in *4.9 GHz Proceeding* (filed July 8, 2002) at 3. AAR
    believes it appropriate to afford access to the 4.9 GHz band to
    utilities, railroads, metropolitan transit systems, pipelines,
    private ambulance companies, volunteer fire departments, and
    non-profit organizations that offer emergency road service "because
    those entities do provide essential services and critical
    infrastructure to the public, and because the facilities and
    operations of those entities may be directly involved in emergency
    situations." AAR Comments in *4.9 GHz Proceeding* (filed July 8,
    2002) at 3. AAR maintains that "such entities need reliable
    communications in order to prevent or respond to disasters or crises
    affecting their service to the public." *Id.* at 4.

[^96]: *4.9 GHz Proceeding,* 17 FCC Rcd at 3972 ¶ 36.

[^97]: *See id.* at 3970-73 ¶¶ 31-38.

[^98]: *See* *NTIA Report* at xviii.

[^99]: *Id.* at 3-19 to 3-20.

[^100]: *See id.* *citing* UTC Comments filed with NTIA at 18.

[^101]: *See 900 MHz MAS Order,*15 FCC Rcd at 11968 ¶¶ 30- 31.

[^102]: Licensed under Parts 22 and 101 of the Commission's Rules. 47
    C.F.R. Parts 22 and 101.

[^103]: *900 MHz MAS Order,*15 FCC Rcd at 11960 ¶ 4*.*

[^104]: *Id.* at 12039, Appendix C, ¶ 8.

[^105]: AAR Comments to *WTB PN*, Attachment at 21.

[^106]: *See 900 MHz MAS Order*, 15 FCC Rcd at 11967 ¶ 28.

[^107]: *Id.* at 11971-73.

[^108]: *Id.* at 11958. Of the 20 reserved channels, five were set-aside
    exclusively for public safety/Federal Government services. *Id.*

[^109]: *Id.* at 11998 ¶ 100. Geographic area licensees may agree to a
    higher signal strength at their service boundaries. The Commission
    also required the equivalent signal strength protection of any
    incumbent licensees concerning interference rights. *Id.*

[^110]: *See* *NTIA Report* at 3-20, 4-6, 5-8.

[^111]: *Id.* at xviii.

[^112]: *See* *800 MHz NPRM,* 17 FCC Rcd 4873 (2002).

[^113]: The initial allotment to public safety was 50 channels. *See*
    Amendment of Part 90 of The Commission\'s Rules to Designate
    Frequencies in the 806-821 and 851-866 MHz Bands for Slow-Growth
    Land Mobile Radio Systems of Utilities and Public Safety Agencies,
    PR Docket No. 79-191 *Report and Order*, 48 Rad. Reg. 2d (P&F) 837,
    FCC 80-663 (Nov. 25, 1980). This allotment was later increased to 70
    channels. *See* Amendment of Part 90 of the Commission\'s Rules to
    Release Spectrum in the 806-21/851-866 MHz Bands and to Adopt Rules
    and Regulations Which Govern Their Use. Amendment of Part 90 of the
    Commission\'s Rules to Facilitate Authorization of Wide-Area Mobile
    Radio Communications Systems. An Inquiry Concerning the Multiple
    Licensing of 800 MHz Radio Systems (\'community repeaters\');
    Amendment of Section 90.385(c) of the Commission\'s Rules to Allow
    Transmission of Non-Voice Signals at 800 MHz, PR Docket No. 79-191,
    PR Docket No. 79-334, PR Docket No. 79-107, PR Docket No. 81-703,
    *Second Report and Order*, 52 Rad. Reg. 2d (P&F) 11, FCC 82-338
    (1982). Subsequently, the Commission added 225 25 kHz channels
    spaced 12.5 kHz apart and 5 25 kHz channels spaced 25 kHz apart at
    866-869 MHz - the so-called \"NPSPAC Channels.\"

[^114]: *See 800 MHz NPRM,* 17 FCC Rcd 4873, 4880 ¶ 11.

[^115]: *See, e.g., 800 MHz NPRM*, WT Docket No. 02-55, Comments of
    Sioux Valley Southern Electric at 2 (filed May 6, 2002).

[^116]: *800 MHz NPRM,* 17 FCC Rcd at 4873 ¶ 1.

[^117]: *Id.* at 4883 ¶ 18.

[^118]: *See* Development of Operational, Technical, and Spectrum
    Requirements for meeting Federal, State and Local Public Safety
    Communications Requirements Through the Year 2010, WT Docket No.
    96-86, *Third Memorandum Opinion and Order and Third Report and
    Order*, 15 FCC Rcd 19844, Appendix G (2000). Currently, at 800 MHz,
    there is no guard band of the kind that the Commission established
    adjacent to the 700 MHz public safety allocation.

[^119]: *800 MHz NPRM,* 17 FCC Rcd 4873.

[^120]: *See id.* at 4876-80 ¶¶ 6-10.

[^121]: *Id.* at 4884-88 ¶¶ 20-26.

[^122]: *Id. at 4890-91* ¶ *29*.

[^123]: *Id.* at 4913 ¶ 74.

[^124]: *Id.* at 4914 ¶ 78.

[^125]: *Id.* at 4884-88 ¶¶ 20-25. The Commission also solicited other
    reallocation proposals.

[^126]: *Id.* at 4890-91 ¶ 29. *See* Sec. II.A.3, *supra,* for
    additional information on the audit affecting licensees of
    frequencies below 512 MHz.

[^127]: *See, e.g., 800 MHz NPRM,* WT Docket No. 02-55, Comments of the
    United Telecom Council at i (filed May 6, 2002).

[^128]: *800 MHz NPRM,* WT Docket No. 02-55, 17 FCC Rcd 4873.

[^129]: *See* note 48, *supra.*

[^130]: *See generally Refarming Second Report and Order,* PR Docket No.
    92-235, 12 FCC Rcd 14307 (1997).

[^131]: Replacement of Part 90 by Part 88 to Revise the Private Land
    Mobile Radio Services and Modify the Policies Governing Them and
    Examination of Exclusivity and Frequency Assignment Policies of the
    Private Land Mobile Radio Services, PR Docket No. 920235, *Report
    and Order and Further Notice of Proposed Rule Making,* 10 FCC Rcd
    10076, 10081 (1995) (*Refarming First Report and Order*).

[^132]: *See* 47 C.F.R. § 90.267 (1994).

[^133]: *Refarming Second Report and Order,*12 FCC Rcd at 14309 ¶¶ 2-3.
    Generally, eligibility for a Public Safety Pool channel license
    extends to those who were eligible in the former Public Safety Radio
    Services or the former Special Emergency Radio Service. Generally,
    eligibility for I/B Pool channel licenses extends to those persons
    primarily engaged in operations of commercial, educational,
    philanthropic, ecclesiastical or medical activities. *See* 47 C.F.R.
    § 90.35(a).

[^134]: *Refarming Second Report and Order*, 12 FCC Rcd at 14309 ¶ 3.

[^135]: *Id.* at 14317 ¶ 19.

[^136]: *Id.*

[^137]: *See* Replacement of Part 90 by Part 88 to Revise the Private
    Land Mobile Radio Services and Modify the Policies Governing Them
    and Examination of Exclusivity and Frequency Assignment Policies of
    the Private Land Mobile Radio Services, PR Docket No. 92-235,
    *Report and Order and Further Notice of Proposed Rule Making,* 10
    FCC Rcd 10076, 10081 (1995). The Commission is currently considering
    whether to revise these rules to further encourage migration to
    narrowband technology. *See* Implementation of Sections 309(j) and
    337 of the Communications Act of 1934 as Amended, Promotion of
    Spectrum Efficient Technologies on Certain Part 90 Frequencies;
    Establishment of Public Service Radio Pool in the Private Mobile
    Frequencies Below 800 MHz; Petition for Rule Making of The American
    Mobile Telecommunications Association, WT Docket No. 99-87; RM-9332;
    RM-9405; RM-9705, 15 FCC Rcd 22709, 22772 (2000).

[^138]: Also, the Commission currently is considering a pending petition
    by AMTA, which calls for the Commission to adopt dates certain after
    which non-Public Safety licensees on certain frequencies governed by
    Part 90, 47 C.F.R. Part 90, would be afforded only secondary status
    on their channels unless they have implemented equipment meeting
    certain spectrum efficiency standards. *See* Promotion of Spectrum
    Efficient Technologies on Certain Part 90 Frequencies, *Petition for
    Rulemaking* (filed June 19, 1998).

[^139]: *See* Reallocation of the 216-220 MHz, 1390-1395 MHz, 1427-1429
    MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz
    Government Transfer Bands, WT Docket No. 02-08; RM-9267; RM-9692;
    RM-9797; RM-9854; RM-9882; *Notice of Proposed Rule Making*, FCC
    02-152 ¶ 36 (2002).

[^140]: *Id.* The Commission's Secondary Markets proceeding may alter
    this framework by using band manager licensing as a vehicle for
    promoting wider use of the leasing of spectrum usage generally.
    *See* Promoting Efficient Use of Spectrum Through Elimination of
    Barriers to the Development of Secondary Markets, WT Docket No.
    00-230, *Notice of Proposed Rulemaking*, 15 FCC Rcd 24203, 24204,
    2409, 24212 (2000).

[^141]: *4.9 GHz Proceeding,* 17 FCC Rcd at 3978.

[^142]: 47 C.F.R. § 27.4.

[^143]: 47 C.F.R. § 27.602 (e)-(f).

[^144]: Implementation of Section 309(j) and 337 of the Communications
    Act of 1934 as Amended, Promotion of Spectrum Efficient Technologies
    on Certain Part 90 Frequencies, Establishment of Public Service
    Radio Pool in the Private Mobile Frequencies Below 900 MHz, Petition
    for Rule Making of the American Mobile Telecommunications
    Association, WT Docket No. 99-87, RM-9332, RM 9405, RM-9705, *Report
    and Order and Further Notice of Proposed Rulemaking*, 15 FCC Rcd
    22709, 22710 (2000) (*BBA Report and Order & NPRM).*

[^145]: Amendments to Parts 1, 2, 27 and 90 of the Commission's Rules to
    License Services in the 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz,
    1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz
    Government Transfer Bands, WT Docket No. 02-8, *Report and Order*,
    FCC 02-152 ¶ 15 (rel. May 24, 2002), 67 FR 41847 (June 20, 2002)
    (*27 MHz Service Rules Order*).

[^146]: *BBA Report and Order & NPRM,* 15 FCC Rcd at 22729.

[^147]: *700 MHz First Report and Order*, 15 FCC Rcd 476 (2000); *700
    MHz Second Report and Order,* 15 FCC Rcd 5299 (2000).

[^148]: *27 MHz Service Rules Order*, FCC 02-152 ¶ 40.

[^149]: *70/80/90 GHz Proceeding,* WT Docket No. 02-146, RM-10288 ¶ 79.

[^150]: *800 MHz NPRM,* 17 FCC Rcd 4873, 4911 ¶ 70 (2002).

[^151]: *4.9 GHz Proceeding*, 17 FCC Rcd at 3978-79.

[^152]: *See* 47 C.F.R. §§ 1.3, 1.925 (Permits waiver of the Commission
    Rules in extraordinary or unusual circumstances).

[^153]: *See* 47 U.S.C. § 309(f); 47 C.F.R. § 1.931(b).

[^154]: *See* 47 C.F.R. §§ 1.3, 1.925.

[^155]: The six frequency pairs involved were 896.8875/935.8875 MHz,
    896.9375/935.9375 MHz, 896.9875/935.9875 MHz, 897.8875/9375 MHz,
    897.9375/936.9375 MHz, and 897.9875/936.9875 MHz.

[^156]: *See, e.g.,* Petition of Association of American Railroads (AAR)
    for Modification of Licenses For Use in Advanced Train Control
    Systems and Positive Train Control Systems, *Order*, 16 FCC Rcd
    3078, 3083 ¶ 11 (WTB 2001) (*AAR Order)*.

[^157]: Some years ago, such systems were generally referred to as
    "Advanced Train Control Systems."

[^158]: *AAR Order,* 16 FCC Rcd at 3078 ¶ 2.

[^159]: *See id.* ¶ 1.

[^160]: *See id.* at 3079-82 ¶¶ 4, 6-7.

[^161]: *See id.* at 3081 ¶ 10.

[^162]: A modification would allow U.S. licensing to conform with that
    of the Canadian government. *Id.* at 3080 ¶ 7.

[^163]: *Id.* at 3081-83. For additional system description, *see* Sec.
    I.C., *supra.*

[^164]: *Id.*

[^165]: *Id.*

[^166]: *See* 47 U.S.C. § 309(f).

[^167]: 47 C.F.R. § 1.931(b) (STAs for private wireless services). STAs
    are also available for wireless telecommunications services. *See*
    47 C.F.R. § 1.931(a).

[^168]: *See id.*

[^169]: *See* 47 C.F.R. § 1.915(b)(1)(i)-(iii).

[^170]: *See* 47 C.F.R. § 1.931(b).

[^171]: The Wireless Telecommunications Bureau granted over 1700 STAs
    for use in the aftermath of September 11^th^. Information provided
    by the Licensing & Technical Analysis Branch of the Commission's
    Public Safety and Private Wireless Division.

[^172]: When the World Trade Center collapsed, utilities needed to be
    shut off or restored. NTIA Report at xxi. It was important for
    sufficient water pressure to be continuously available for
    firefighting. *Id*. People and commerce relied more on the railroad
    industry for transportation when the airlines were not able to fly
    their routes. *Id*.

[^173]: The Commission's Wireless Telecommunications Bureau granted STAs
    to: commercial carriers to restore wireless communications services;
    state and local governments to assist in rescue efforts; allow
    modification of licenses to restore communications; and allow use of
    additional frequencies to increase airport security.

[^174]: *NTIA Report* at xvii-xviii.

[^175]: *See* *id.* Sec. 3, at 3-23. The *NTIA Report* states that
    commenters to NTIA "provided no information or data on the viability
    of commercial geographic position and automatic location data
    systems (*e.g.,* LoJACK and Global Positioning Systems). However,
    energy providers would like to transmit location data that is
    determined by geographic position technology or other means,
    automatically or on demand, to other locations." *Id.* at 3-22.

[^176]: *Id*. Sec 3, at 3-23 through 3.24.

[^177]: *Id*.

[^178]: *Id*.

[^179]: *See*, *e.g*., *Orbital Communications Corporation*, Order and
    Authorization, 13 FCC Rcd 10828 (1998*);* see also *Space Imaging
    L.P*., Order and Authorization, 10 FCC Rcd 10911 (1995); Dept. of
    Defense, Global Positioning System (GPS) 2000, A Report to Congress
    (Oct. 2000).

[^180]: *70/80/90 GHz Proceeding*, WT Docket No. 02-146, RM-10288, FCC
    02-180.

[^181]: 47 C.F.R. § 25.202(a)(1).

[^182]: 47 C.F.R. § 15.253.

[^183]: 47 C.F.R. § 5.01 *et seq.* These rules permit simplified
    licensing of spectrum for experiments that would not otherwise be
    permitted under the Commission's rules. In general, equipment may
    not be marketed in connection with such experiments and service may
    not be provided for commercial use. However, there are provisions
    for "limited marketing studies" that permit marketing on a small
    scale. *See* 47 C.F.R. § 5.93.

[^184]: *70/80/90 GHz Proceeding*, WT Docket No. 02-146, RM-10288, FCC
    02-180, ¶ 5.

[^185]: For a given beamwidth (directivity), the required antenna size
    scales inversely with frequency. Thus a 45 GHz antenna would be
    twice as large as a 90 GHz antenna with the same beamwidth and a
    22.5 GHz antenna would be four times as large as a 90 GHz antenna
    with the same diameter.

[^186]: *70/80/90 GHz Proceeding*, WT Docket No. 02-146, RM-10288, FCC
    02-180 ¶ 6.

[^187]: *Id.*

[^188]: *Id.*

[^189]: *Id.* ¶ 10. *See* Redevelopment of Spectrum to Encourage
    Innovation in the Use of New Telecommunications Technologies, *First
    Report and Order and Third Notice of Proposed Rule Making,* 7 FCC
    Rcd 6886 (1992) (reallocating portions of the 2 GHz from fixed
    microwave services to emerging technology systems, including
    personal communications services (PCS)); *see* Authorization for
    Spread Spectrum and Other Wideband Emissions not Presently Provided
    for in the FCC Rules and Regulations, *First Report and Order,* Gen.
    Docket No. 81-413, 101 FCC 2d 419 (1985) (adopting rules in Part 15
    for low power spectrum devices).

[^190]: *800 MHz NPRM*, 17 FCC Rcd 4873 (2002).

[^191]: *See, e.g.,* API Comments to *WTB PN* at 6-14, UTC Comments to
    *WTB PN* at 15-17; Cinergy Comments to *WTB PN* at 13-16; ConEd
    Comments to *WTB PN* at 14-18; WGP Comments to *WTB PN* at 5;
    DPLC&ACE Comments to *WTB PN* at 13-16; SCANA Comments to *WTB PN*
    at 13-16.

[^192]: *See* ConEd Comments to *WTB PN* at 29; *See* DPLC&ACE Comments
    to *WTB PN* at 27; *See* Entergy Comments to *WTB PN* at 26-27;
    *See* SCANA Comments to *WTB PN* at 27-28.

[^193]: *Id.*

[^194]: ConEd Comments to *WTB PN* at 28-29; DPLC&ACE Comments to *WTB
    PN* at 26; Entergy Comments to *WTB PN* at 27; SCANA Comments to
    *WTB PN* at 27.

[^195]: *See* ConEd Comments to *WTB PN* at 12-13; Entergy Comments to
    *WTB PN* at 12-13.

[^196]: Only a few commenters take an opposing view. Nextel argues that
    the designated industries rely on commercial systems, and that there
    is enormous potential for leveraging the extensive nationwide
    network infrastructure developed by commercial carriers to provide
    advanced wireless communications for the designated industries.
    Nextel Comments to *WTB PN* at 2-3. Both Nextel and AMTA indicate
    that there is no technical barrier that precludes commercial
    services from satisfying such needs. *See* Nextel Comments to *WTB*
    at 2-3; AMTA Reply Comments to *WTB PN* at 6-7. Nextel argues that
    "technology exists to offer critical infrastructure users priority
    access" (Nextel Comments to *WTB PN* at 6) and states that Southern
    LINC, a commercial provider in the southeastern United States,
    provides priority access for its utility-based customers. *Id.* at
    6, n.3. However, Nextel concedes that in many instances, the needs
    of critical infrastructure industries are not being met by standard
    commercial services. Nextel Reply Comments to *WTB PN* at 5.

[^197]: A "middle view" is represented by Southern, who argues that
    certain types of CMRS can satisfy critical communications needs.
    Southern argues that generally, commercial wireless providers are
    not currently meeting the unique needs of the designated industries
    (*see generally* Southern Comments and Reply Comments to *WTB PN* );
    however, it argues that its operating utilities successfully use
    Southern LINC, an affiliated commercial carrier, for the majority of
    its commercial needs. Southern Reply Comments to *WTB PN* at 3.
    Southern maintains that Southern LINC is highly differentiated from
    other commercial carriers, and that those differences are what make
    it a viable alternative to utilities' private systems. *Id.*

[^198]: *800 MHz NPRM,* 17 FCC Rcd at 4890 ¶ 29. CMRS carriers are
    permitted to offer public safety entities priority access service on
    a voluntary basis. *See* Development of Operational, Technical and
    Spectrum Requirement of Meeting Federal, State and Local Public
    Safety Agency Communication Requirements Through the Year 2010;
    Establishment of Rules and Requirements For Priority Access Service,
    WT Docket No. 96-86, *Second Report and Order*, 15 FCC Rcd 16720,
    16728 ¶ 17 (2000); *see also* Voicestream Wireless Corp., Petition
    for Waiver of Section 64.402 of the Commission\'s Rules WT Docket
    No. 01-333, *Memorandum Opinion and* Order, FCC 02-84 (rel. April 3,
    2002).

[^199]: *800 MHz NPRM,* 17 FCC Rcd at 4890 ¶ 29.

[^200]: Further, the Commission is considering a petition by the High
    Speed Rail Safety Coalition, which has requested amendments to the
    Commission's rules in order to permit expeditious deployment of
    Positive Train Control systems for high-speed rail service. *See*
    Petition for Rulemaking, Jeffrey H. Olson, Esq. of Paul, Weiss,
    Rifkind, Wharton & Garrison, on behalf of High-Speed Rail Safety
    Coalition (HSRC) (filed Dec. 4, 1998) at i ("Petition"). Commission
    action on the petition has been delayed at HSRSC's request, which
    made the request to ensure that the regulatory scheme posed by the
    HSRSC petition is adequate to cover potential technical
    modifications. Mar. 9, 2001 letter from Jeffrey H. Olson, Esq., on
    behalf of HSRSC, to Bruce Franca, Office of Engineering and
    Technology, FCC at 2. Positive Train Control equipment are claimed
    to enable trains to receive time-critical safety information and
    override operating systems in the event of human or mechanical
    failure. Petition at i. The equipment's transmitter, located
    underneath the locomotive, queries transponders, located at various
    points in the track bed, using a signal at 27.115 MHz. The
    transponder responds with a data burst in the 4.5 MHz band. While
    members of the railroad industry view use of the equipment as
    "critical to the safe operation of high-speed rail service" (*Id.*
    at 1.), they indicate that they are unable to deploy it because it
    does not "correspond to any existing Commission allocation" (*Id.*
    at ii.) or otherwise "fit into any regulatory category presently
    established by the Commission's rules." *Id.* at 1. Because the
    Commission recognizes the dynamic needs of the railroad industry and
    rapid changes in technology, it plans to seek comment on the
    petition and other related public safety issues in the near future.

[^201]: On Nov. 14, 2001, the Commission has established a Homeland
    Security Council. The Council's mission is to: assist the Commission
    in evaluating and strengthening measures for protecting U.S.
    telecommunications, broadcasting and other communications
    infrastructure and facilities from further terrorist attacks; assist
    the Commission in ensuring rapid restoration of U.S.
    telecommunications, broadcast, and other communications
    infrastructure and facilities after disruption by a terrorist threat
    or attack; and assist the Commission in ensuring that public safety,
    health and other emergency and defense personnel have effective
    communications services available to them in the immediate aftermath
    of any terrorist attack within the United States. *See*
    http://www.fcc.gov/hspc/

[^202]: Chart does not list spectrum available through commercial
    providers.

[^203]: This spectrum will be made available by leasing spectrum from
    the "Guard Band Managers."

[^204]: *Id.*

[^205]: *Id.*

[^206]: Much of the spectrum indicated in this box is to be auctioned.
    Entities in the energy, water and railroad industries may bid for
    licenses in these auctions.

[^207]: *Id.*

[^208]: *Id.*

[^209]: Filing dates provided only for late or *ex parte* filings.