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 FCC  STAFF  REPORT  ON  NTIAS  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  nations  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  Administrators  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  Commissions  efforts  to  meet  the  communications  needs  of  the  energy,  water 


 and  railroad  industries.  Energy,  water  and  railroad  interests  are  critical  to  the  nations  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. 


 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  Commissions  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). 
1
 2 
 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  Staffs  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  Commissions  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 
 Reports  assertions.  13 


 7  NTIAs  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. 
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 3 
 B.  NTIA  Report 
 The  NTIA  Report  acknowledged  the  vital  roles  that  the  railroad,  water  and  energy  industries  play  in  the  Nations  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 


 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. 
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 4 
 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 


 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. 
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 5 
 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 
 NTIAs  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 


 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  Edisons  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 
5
 6 
 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 


 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 
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 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  Commissions 


 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  UTCs  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  Commissions  Spectrum  Policies,  Public  Notice,  DA  02-  1311  (rel.  June  6,  2002). 
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 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  Reports  identification  of  access  to  additional  spectrum  as  a  concern  of  the  designated  industries,  this  section  of  the  report  addresses  the 
 Commissions  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. 


 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  Commissions  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). 
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 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 


 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  Commissions  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. 
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 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  Commissions  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 


 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 
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 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  Commissions  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  nations  location  communities  while  providing  a  safer  environment  for 


 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  Commissions  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  Commissions  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  Commissions  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. 
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 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. 


 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. 
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 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 


 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  Commissions  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. 
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 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  Commissions  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 


 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." 
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 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 


 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. 
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 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  Commissions  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  Commissions  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 


 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 
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 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  Commissions  refarming  policies  promotes  better  utilization  of  spectrum.  To  the  extent  that  the  Commissions  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  holders 
 right  to  use  the  holders  licensed  spectrum  through  private,  contractual  agreements,  without 


 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). 
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 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. 


 140  Id.  The  Commissions  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  Commissions  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. 
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 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  Commissions  Wireless  Telecommunications  Bureau  granted  a  waiver  of 


 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. 
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 the  Commissions  rules  to  permit  AARs  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  AARs  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. 


 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. 
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 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 


 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  Commissions  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  Commissions  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. 
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 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 


 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. 
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 above  50.2  GHz  may  not  be  licensed  except  on  an  experimental  basis  under  Part  5  of  the  Commissions  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. 


 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  Commissions  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). 
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 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 


 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. 
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 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  nations  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 


 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  Commissions  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  HSRSCs  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  equipments  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  Commissions  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. 
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 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. 


 201  On  Nov.  14,  2001,  the  Commission  has  established  a  Homeland  Security  Council.  The  Councils 
 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/ 
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 APPENDICES 
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 APPENDIX  A  Potentially  Available  Spectrum  for  the  Energy,  Water  and  Railroad  Industries  202 
 Energy  Industry  Water  Industry  Railroad  Industry  Various  frequencies  in  the 
 Industrial/  Business  Radio  Pool  See  47  C.  F.  R. 
   90.35 


 Various  frequencies  in  the  Industrial/  Business  Radio  Pool 
 See  47  C.  F.  R.    90.35 
 Various  frequencies  in  the  Industrial/  Business  Radio  Pool 
 See  47  C.  F.  R.    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 
 776-  777  MHz  792-  794  MHz  203  746-  776  MHz  776-  777  MHz  792-  794  MHz  204  746-  776  MHz  776-  777  MHz  792-  794  MHz  205 
 747-  762  MHz  777-  792  MHz  747-  762  MHz  777-  792  MHz  747-  762  MHz  777-  792  MHz 
 806-  821/  851-  866  MHz  896-  901/  935-  940  MHz  806-  821/  851-  866  MHz  896-  901/  935-  940  MHz  806-  821/  851-  866  MHz  896-  901/  935-  940  MHz 
 902-  928  MHz  902-  928  MHz  902-  928  MHz  928/  952/  956  MHz 
 928/  959  MHz  928/  959  MZ 
 932-  941  MHz 


 928/  952/  956  MHz  928/  959  MHz 
 928/  959  MZ  932-  941  MHz 
 928/  952/  956  MHz  928/  959  MHz 
 928/  959  MZ  932-  941  MHz 
 1390-  1395  MHz:  Auction  1427-  1435  MHz:  Different  Uses 
 as  Follows:  1427-  1429.5  MHz: 
 Secondary  Telemetry  (WMTS  primary) 
 1429.5-  1432  MHz:  Primary  Telemetry 
 1670-  1675  MHz:  Auction  206 


 1390-  1395  MHz:  Auction  1427-  1435  MHz:  Different 
 Uses  as  Follows:  1427-  1429.5  MHz: 
 Secondary  Telemetry  (WMTS  primary) 
 1429.5-  1432  MHz:  Primary  Telemetry 
 1670-  1675  MHz:  Auction  207 


 1390-  1395  MHz:  Auction  1427-  1435  MHz:  Different  Uses 
 as  Follows:  1427-  1429.5  MHz: 
 Secondary  Telemetry  (WMTS  primary) 
 1429.5-  1432  MHz:  Primary  Telemetry 
 1670-  1675  MHz:  Auction  208 
 2390-  2417  MHz  (unlicensed)  2390-  2417  MHz  (unlicensed)  2390-  2417  MHz  (unlicensed) 
 4.94-  4.99  GHz  4.94-  4.99  GHz  4.94-  4.99  GHz  5925-  6875  MHz 


 10.55-  11.7  MHz  5925-  6875  MHz  10.55-  11.7  MHz  5925-  6875  MHz  10.55-  11.7  MHz  71-  76  GHz 
 81-  86  GHz  92-  95  GHz  71-  76  GHz  81-  86  GHz  92-  95  GHz  71-  76  GHz  81-  86  GHz  92-  95  GHz 


 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. 
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 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). 


 209  Filing  dates  provided  only  for  late  or  ex  parte  filings. 
29